[Prepared Statement of Ann Louise Bardach]{.underline}

Author, Journalist

November 15, 2007

House Committee on Foreign Affairs,

Subcommittee on International Organizations, Human Rights and Oversight

I first began reporting on the Cuban exile militant arena in the early
1990's when I was a staff writer for *Vanity Fair* magazine. In 1998, I
co-authored a five part series in the *New York Times* on the exile
militant Luis Posada Carriles and his cohorts in 1998. I also wrote
extensively about Posada in my book *Cuba Confidential: Love and
Vengeance in Miami and Havana*, and have done considerably more research
for my new book *Without Fidel* (to be published in 2008). Additionally,
I wrote a 10,000 word investigative article on the 1976 bombing of the
Cubana airline in *The Atlantic Mon*thly in November 2006
<http://www.theatlantic.com/doc/200611/cuba> ,
<http://www.theatlantic.com/doc/200610u/posada-qa?ca=0iOPA9JtNFepUh54A%2BWhzsNXNmaGrDtEWQxfYBXgFzY%3D>

and
<http://www.theatlantic.com/doc/200610u/posada-notes?ca=IQI74xpBzb1dzIWJ5fPwG65VGq6LhH1gAgqzG2Bzjzc%3D>.

Several other pieces by me on Luis Posada have appeared in *The
Washington Post* and other newspapers. To facilitate tracking this
complex story, what follows is a brief history of Mr. Posada's career as
an anti-Castro militant based on CIA, FBI, and State Department
memorandum.

[Posada's Documented History]{.underline}

Mr. Posada entered the United States at Miami from Cuba on April 28,
1961, and was selected to be part of a Cuba infiltration team of the
Black Falcons, an anti-Castro commando group. (Exhibit 5 at 3). "Posada
said he was planning to place limpet mines on either a Cuban or Soviet
vessel in the harbor of Veracruz, Mexico and had 100 pounds of C-4
explosives and detonators." (Exhibit 5 at 3).

In March 1963, Mr. Posada enrolled in U.S. Army officer candidate school
at Fort Benning and received instruction in demolition, propaganda and
intelligence. He left the Army, however, about one year later after it
became clear that the United States had no intention of invading Cuba.
(Exhibit 6).

After leaving the Army, Mr. Posada joined Junta Revolucionaria Cubana,
an anti-Castro organization, and built a military training camp in Polk
City, Florida for guerillas who were planning to invade Cuba. (Exhibit 5
at 4).

Mr. Posada "has been of operational interest to \[the Central
Intelligence\] Agency since April 1965" and "was a member of the crew of
a motor launch which was to be used January 1965 by the Junta
Revolucionario Cubana to infiltrate JURE leader Manuel Ray Rivero into
Cuba." (Exhibit 7).

Mr. Posada received approximately \$300 per month from the CIA and was
selected to head of three anti-Castro organizations. (Exhibit 8).

In the late 1970s, Mr. Posada told investigators from the House
assassinations panel that he had been trained as a CIA operative in the
Florida Keys and had quickly become a "principal agent" who "worked with
the company direct" and had had arms, boats, and a network of safe
houses. (Exhibit 9).

Mr. Posada has been recognized as "a former Agent of CIA" who "was
amicably terminated in July 1967." (Exhibit 10).

Mr. Posada then became head of the Counterintelligence Division of the
Directorate for the Services of Intelligence and Prevention (DISIP) for
the Venezuelan Civilian Security Service, but that he lost his position
with DISIP in March 1974 as a result of a change in the Venezuelan
government. (Exhibit 11).

Mr. Posada became of intense interest to the CIA shortly after the
October 6, 1976, crash of a *Cubana* airliner off the coast of Barbados
with 73 people aboard, including teenagers from Cuba's national fencing
team. An October 7, 1976 CIA memo states "This Agency has conducted an
investigation of the names of persons suspected of involvement in the 5
October 1976 crash of the Cubana airlines flight...We have determined
that this Agency had a relationship with one person whose name has been
mentioned in connection with the reported bombing. Both \[Freddy\]
Lugo's and \[Hernan Ricardo\] Lozano's employer in Caracas is Luis
Posada Carriles." (Exhibit 12).

A November 8, 1976, declassified FBI memo notes that "Some plans
regarding the bombing of a Cubana Airlines airplane were discussed at
the bar in the Anauco Hilton Hotel in Caracas, Venezuela, at which
meeting Frank Castro, Gustavo Castillo, Luis Posada Carriles and
\[Ricardo "Mono"\] Morales Navarrete were present. This meeting took
place sometime before the bombing of the Cubana DC-8 near Barbados on
October 6, 1976." (Exhibit 13 at 2-3).

. The CIA and FBI memoranda as well as numerous press reports show that
ultimately, Mr. Posada was charged with Venezuelan authorities with the
bombing, tried and acquitted in a military court, but the acquittal was
deemed invalid due to lack of jurisdiction and in 1985, while awaiting
trial in a civil court, Mr. Posada escaped from a Venezuelan prison
after eight years of incarceration. He remains the subject of an
extradition request from the Venezuelan government for his alleged
involvement with the bombing.

After his escape from Venezuela, Mr. Posada went to El Salvador and
re-established ties with the CIA. He became involved there in supplying
arms to the U.S.-backed Contras fighting the Sandinistas in Nicaragua.
(Exhibit 14) (R&R at 4).

In September, 1989, Mr. Posada moved to Guatemala. In February, 1990, he
was shot numerous times in the face and torso during an assassination
attempt. (Exhibit 14) (R&R at 4).

On February 3, 1992, FBI special agents Michael S. Foster and George R.
Kiszynski conducted a detailed, tape-recorded interview of Mr. Posada in
Tegucigalpa, Honduras concerning Mr. Posada's involvement in the
Iran-Contra Affair. (Exhibit 15) .

[The New York Times Series]{.underline}

The background of the New York Times series concerned a series of eleven
hotel and restaurant bombings that went off in Cuba from April 11, 1997
through September 4, 1997. One of the bombings on September 1, 1997,
killed Fabio Di Celmo, an Italian tourist. Early on, Mr. Posada was
accused by the Cuban government - and suspected and investigated by US
authorities of masterminding the bombings. (Exhibit 14) (R&R at 5).

The bombings attracted extensive national media attention. For example,
the *Los Angeles Times* published an article on July 15, 1997,
headlined, *U.S. Denies Role in Havana Hotel Blasts*, and an article on
September 11, 1997, headlined *Salvadoran Held in 4 Recent Explosions.*
On September 7, 1997, *The Washington Post* published an editorial
entitled *Murder in Havana. The Miami Herald* published the results of
its investigation of the Havana bombings on November 11, 1997, in
article headlined, *Exiles Directed Blasts That Rocked Island\'s
Tourism, Investigation Reveals.* *The Herald* article quoted three Miami
exiles as identifying Mr. Posada as obtaining \$15,000 from wealthy
Cuban-American businessmen in Miami to pay the Salvadorans to commit the
bombings and as commanding the operation. (Exhibit 16).

[The Beginning of *The* *New York Times* Series]{.underline}

*New York Times* Caribbean Bureau chief*,* Larry Rohter, and I began
work on a series about Cuban exile militant activities in early 1998.
*The Times* published our first article, *Plot On Castro Spotlights A
Powerful Group*, on May 5, 1998. (Exhibit 17). The 2200-word article
described how in October, 1997, U.S. Coast Guard officials boarded a
cabin cruiser called *La Esperanza* near Puerto Rico and found four
Cuban exiles who claimed to be on a fishing trip, but who had no fishing
gear. Instead, the Coast Guard found two .50-caliber Barrett
high-powered sniper rifles, registered to the president of the Cuban
American National Foundation (CANF), and that the cabin cruiser was
registered to a company owned by Jose Antonio Llama, a member of the
CANF executive board. (Exhibit 17). One of the exiles on *La Esperanza*,
Angel Alfonso Aleman, reportedly blurted out during the search that the
rifles were "for the purpose of assassinating Fidel Castro." (Exhibit
17). The article also reported how the incident touched off an
investigation of CANF, which had raised more than \$1 million for
Republicans and Democrats and forged close ties to every Administration
from Ronald Reagan onwards. That is, until the current Administration of
George W. Bush, for whom they were judged to be insufficiently hardline
enough in regard to Cuba.

In this first article, Larry Rohter and I reported that the lawyer
representing Mr. Alfonso, Ricardo Pesquera, warned that if the
Government tried his client, "we will go after the Government very
strongly" and "attack their hypocrisy." We also reported that Mr.
Pesquera had a sheaf of declassified CIA documents about Government
efforts to overthrow the Cuban leader and complained that "for 30 years
they tried to kill Castro and now they say others can\'t do the very
same thing they were doing." (Exhibit 17).

The first article also reported that in August 1997, CANF "startled some
in Miami when it declined to condemn a string of bombings of hotels and
restaurants in Cuba" and took out a full page ad in *The Miami Herald*
announcing that it would continue using every means at its disposal
against Cuba, without excluding violence*.* (Exhibit 17).

In our *New York Times* article was an interview with Angel Alfonso
Aleman of Union City, N.J. in which he said "I am a Cuban patriot." He
also said that he had visited the White House on four occasions, "once
with Reagan, once with Bush, and twice with Clinton," and that he
produced a photograph of himself alone with Mr. Clinton. (Exhibit 17).
We reported that the case was under investigation by the United States
Attorney, Customs, the Coast Guard, the Bureau of Alcohol, Tobacco and
Firearms, the Maritime Enforcement Agency, the CIA, the FBI and the
State Department. (Exhibit 17).

[My Interview with Luis Posada]{.underline}

In June 1998, a colleague at *Vanity Fair,* where I worked for 10 years
as a Contributing Editor, put me in touch with a Cuban businessman
living in Caracas with ties to Mr. Posada. In the first week of June,
1998, I met with the businessman in New York City and asked him to
arrange an interview with Mr. Posada.

Around the same time *The Miami Herald* published an article on Sunday,
June 7, 1998, entitled *An Exile\'s Relentless Aim: Oust Castro.*
(Exhibit 18). *The Herald* was unable to interview Mr. Posada, but it
identified two of his co-conspirators in Guatemala as Jose Alvarez and
Jose Burgos, officers of three Guatemala City subsidiaries of WRB
Enterprises, a Tampa firm whose Guatemala operations were headed up by
Antonio Alvarez, a Cuban exile from Greenville, S.C.

A FBI agent who worked on the Havana bombing case told me that the FBI
had sent agents to Guatemala to interview Antonio Alvarez. Mr. Alvarez
related precisely how Mr. Posada's operation worked and identified its
intended targets. "We found him entirely credible," said one FBI agent,
who worked extensively on the case. "We thought it would be a slam dunk:
we'd charge and arrest Posada." "But then," the agent said, "we had a
meeting one day and the chief said, 'Hey, wait a minute. Lots of folks
around here think Posada is a freedom fighter.' We were in shock. And
they closed down the whole Posada investigation. When we asked for a
wiretap on \[famed militant\] Orlando Bosch, who we knew was working on
bombing runs, we were turned down."

Two weeks after my New York meeting with the Cuban-exile businessman, I
received a message on my phone machine from "Ramon Medina. He left a
number and asked that I call him back. I knew that Ramon Medina was a
*nom de guerre* of Luis Posada Carriles. As I was working on *The
Times'* investigative series on exile militant groups, I phoned my
editor, Steve Engleberg, and played Mr. Posada's message. He instructed
me to call Mr. Posada back and to arrange to meet with him wherever he
might be.

I did speak with Mr. Posada again by phone several times and arranged to
meet him for an interview. Prior to meeting with Mr. Posada, I had gone
to Caracas, Venezuela and Isla Margarita where a Venezuelan official
gave me a copy of a FAX from Mr. Posada sent to his partners, Jose
Alvarez and Jose Burgos, in Guatemala City in August, 1997. In the FAX,
Mr. Posada indicated Alvarez and Burgos would receive "via Western Union
four transfers of \$800 each . . . from New Jersey." The FAX also
stated: "If there is no publicity, the work is not useful. The U.S.
newspapers don't publish anything unless it's confirmed," reflecting Mr.
Posada's concern that the Cuban government was hushing up many of the
summer bombings to avoid creating panic in its tourism industry. The FAX
was signed "Solo," one of Mr. Posada's code names and it was clear to us
that Posada's "Solo FAX" concerned the Havana hotel bombings. While I
was in Caracas, my reporting partner, Larry Rohter, flew to Guatemala
City to investigate Mr. Posada's operation there.

Mr. Rohter and I then flew to Aruba to meet Mr. Posada on June 18, 1998.
Mr. Posada picked me up at the airport wearing Bermuda shorts and
sandals. Mr. Rohter stayed long enough to observe Mr. Posada's entrance
and greeting of me, then left by taxi to a hotel where he continued
working on the story. Mr. Posada carried my bags outside to a waiting
van, and off we went to his gated safe house, the home of a supporter,
hidden from view by a high stucco gated wall. He explained that he had
granted the unprecedented interview because publicity was necessary for
the bombing campaign he had launched in 1997 against Cuba's tourist
industry. We also felt he wanted to see his side of the story published,
believing it would aid the anti-Castro cause.

During that first day, Mr. Posada spoke for several hours and I recorded
much of the conversation. I continued to conduct taped interviews of Mr.
Posada over the next several days. Not infrequently, Mr. Posada would
turn the tape recorder off so that he could tell me things that would
not be recorded. I showed Mr. Posada the "Solo FAX" during one of the
interviews and he seemed troubled by it and fretted that it could cause
him problems with the FBI.

On my last day in Aruba, Mr. Posada handed me three pages of notes he
had written in Spanish and English. "Ideology," he had written at the
top in Spanish. They included this observation:

> The absence of freedom of expression, of freedom of movement for a
> hungry people oppressed and terrorized by communist repression ...
> This gives all free Cubans a right to take up arms against the tyrant,
> using violence or whatever means at our disposal to derail this
> terrible system and bring freedom to our country.

At the bottom he had written, in English: "He does not admit the bombs
in the hotels but he does not deny either." (Exhibit 19).

[The July 1998 *New York Times* Articles]{.underline}

On the basis of our review of declassified CIA and FBI materials, dozens
of interviews we had conducted in Union City, Miami, Guatemala, and
Venezuela with Mr. Posada's collaborators and government investigators,
and my interviews of Mr. Posada, Larry Rohter and I prepared three new
articles. *The Times* published the first article on page one on Sunday,
July 12, 1998. under the headline *A BOMBER'S TALE: Taking Aim at
Castro; Key Cuba Foe Claims Exiles' Backing*. The article stated:

> Luis Posada Carriles, said he organized a wave of bombings in Cuba
> last year at hotels, restaurants and discotheques, killing an Italian
> tourist and alarming the Cuban Government. Mr. Posada was schooled in
> demolition and guerrilla warfare by the Central Intelligence Agency in
> the 1960\'s.....
>
> Mr. Posada proudly admitted authorship of the hotel bomb attacks last
> year. He described them as acts of war intended to cripple a
> totalitarian regime by depriving it of foreign tourism and
> investment....
>
> For several months the attacks did indeed discourage tourism. With a
> rueful chuckle, Mr. Posada described the Italian tourist's death as a
> freak accident, but he declared that he had a clear conscience,
> saying, "I sleep like a baby."

(Exhibit 2).

This first article also reported that money had been delivered to Mr.
Posada by several friends, some of whom held key positions in the Cuban
American National Foundation that "was used for his living expenses and
for operations" and that his late friend, Jorge Mas Canosa, CANF's
former chairman, told him "he did not want to know the details of his
activities." (Exhibit 2).

The article noted that Mr. Posada identified Gaspar Jimenez, who was
jailed in Mexico in 1976, as a Cuban exile who delivered money to him
from Miami. (Exhibit 2).

The article further reported Mr. Posada's belief that after the hotel
bombings began, American authorities did not bother to question him due
to his longstanding relationship with American law enforcement and
intelligence agencies. (Exhibit 2). The first article also reported that
Mr. Posada denied any role in the Cubana airline bombing. (Exhibit 2).

*The Times* published a second article the same day under the headline
*A Cuban Exile Details the \'Horrendous Matter\' of a Bombing Campaign.*
This article was based primarily on an interview of Antonio Jorge
Alvarez, a whistleblower in Posada's office who was alarmed by the
bombing campaign.. (Exhibit 3). *The Times* also published with this
article a copy of the FAX that Mr. Posada had sent to Mr. Alvarez's
office signed "Solo."

Mr. Alvarez claimed that for nearly a year, he had watched with growing
concern as two of his Cuban partners acquired explosives and detonators,
congratulating each other whenever a bomb went off in Cuba. We reported
that he said that he overheard the men talk of assassinating Fidel
Castro at a conference of Latin American heads of state to be held in
Margarita Island, Venezuela. Mr. Alvarez reported this to Guatemalan
security officials and when they did not respond, he wrote a letter that
eventually found its way into the hands of Venezuelan intelligence
agents and the U.S. FBI. (Exhibit 3).

The article reported that the FBI showed little interest in Mr.
Alvarez's information. According to Mr. Alvarez at the time we
interviewed him in 1998, the FBI had contacted him once by telephone,
told him that his life was in danger and that he should leave Guatemala,
and never spoke with him again. (Exhibit 3).

The article reported that Mr. Alvarez told us about possible links
between the plotters in Guatemala and Cuban exiles living in Union City,
N.J., who Mr. Alvarez said were wiring money to Mr. Posada. (Exhibit 3).
Mr. Alvarez said events in his office rapidly made clear that Mr.
Posada's main interest was waging war in Cuba against Fidel Castro.
(Exhibit 3).

The article contained Mr. Alvarez's detailed account and description of
how Mr. Posada moved explosives to Cuba. (Exhibit 3). It reported that
in August, 1997, at the height of the bombing campaign in Cuba, Mr.
Alvarez had intercepted the FAX that Mr. Posada had sent from El
Salvador and signed "Solo" and that Mr. Alvarez gave the FAX to
Guatemalan intelligence. The FAX identified Abel Hernandez, who is the
owner of Mi Bandera (My Flag), a restaurant in Union City as well as a
Western Union office, a Cuban-American community just across the Hudson
River from Manhattan. At the restaurant\'s entrance, one of Mr. Posada's
paintings faced a photograph of Mr. Hernandez arm in arm with Jorge Mas
Canosa, the late founder of the Cuban-American National Foundation.
Three other men named in the FAX also lived in Union City and at least
two belonged to the Union of Former Political Prisoners, an exile group
whose members have served long and harsh terms in Cuban prisons and are
committed to Castro's overthrow by any means. (Exhibit 3).

The two articles published on July 12, 2006, were accompanied by a
timeline chart of Mr. Posada's life from his birth through the
commencement of the Havana hotel bombings in 1997. The last entry read,
"APRIL 1997 \-- Bombs begin to explode at Havana's better hotels, an
operation Mr. Posada says he directed." (Exhibit 2).

The following day, Monday, July 13, 1998, *The Times* published our
third article under the headline, *Decades of Intrigue; Life in the
Shadows, Trying to Bring Down Castro*. (Exhibit 4). This article
provided a broader perspective on Mr. Posada's life and his involvement
with U.S. law enforcement agencies over the course of four decades.
(Exhibit 4). In the following passage, Mr. Posada explained why he did
not believe that the United States could prosecute him for his
involvement in attacks on the Castro regime:

> As Mr. Posada sees it, because he does not stage his anti-Castro
> activities from within the United States, his activities should be of
> no concern to the American authorities. "What I do is from Latin
> America, and my targets are inside Cuba," he said. "I am not a
> citizen, so they do not have power over me."

(Exhibit 4).

[The Failed Prosecution]{.underline}

On August 25, 1998, a United States grand jury in Puerto Rico indicted
Jose Rodriguez Sosa, Alfredo Otero, Angel Alfonso Aleman, Angel
Hernandez Rojo, Juan Bautista Marquez and Francisco Secundino Cordova
were indicted on various charges, including conspiring to assassinate
Fidel Castro. *See United States v. Alfonso,* No. 3:97-cr-00257-HL-1
(D.P.R. Aug. 25, 1999) (D.E. 123).

Mr. Rohter and I then prepared a further article for the *Times* which
was published on August 26, 1998, under the headline, *Cuban Exile
Leader Among 7 Accused of Plot* (Exhibit 20). The article reported that
the lawyer for Mr. Alfonso, Ricardo Pesquera, stated that the Government
was "opening a Pandora's box they\'re going to regret" and that he vowed
to demand access to every CIA and FBI document on nearly 40 years of
plots, some of them Government-organized, to kill Mr. Castro. (Exhibit
20).

Later, the prosecutor decided that Mr. Alfonso's confession \-- that the
rifles found on *La Esperanza* were intended to assassinate Castro \--
would not be used as evidence because its legality was too vague.
(Exhibit 21). The defense, based on the United States support of efforts
to overthrow Castro, evidently worked because six of the defendants were
acquitted on December 8, 1999, by the jury in Puerto Rico. *See United
States v. Alfonso,* No. 3:97-cr-00257-HL-1 (D.P.R. Dec. 8 & 21, 1999)
(D.E. 344 & 348). The seventh, Mr. Bautista had been severed because he
was arrested in Miami before the trial for smuggling cocaine. *United
States v. Alfonso,* No. 3:97-cr-00257-HL-1 (D.P.R. Nov. 21, 1999) (D.E.
306).

Luis Posada Arrested in Panama,

[then Released & Returns to the United States]{.underline}

In November 2000, Mr. Posada, along with three collaborators, was
arrested in Panama regarding an alleged plot to assassinate Fidel
Castro. (Exhibit 14) (R&R at 5). The charges were dropped, but on April
20, 2004, he was convicted in Panama of crimes against national security
and counterfeiting public records. (Exhibit 14) (R&R at 5). He was
sentenced to eight years of imprisonment, but was released on August 25,
2004, after outgoing Panamanian President Mireya Moscoso pardoned him.
(Exhibit 14) (R&R at 5). His pardon followed intense lobbying from
several hardline exile groups and leaders in Miami, including several
representatives to Congress.

On or about April 13, 2005, Mr. Posada's attorney filed an application
for political asylum in the United States, not long after Mr. Posada was
seen in and around Miami. His lawyers subsequently would claim that on
March 26, 2005, Mr. Posada had entered the United States illegally by
crossing the border from Mexico near Brownsville, Texas and then made
his way to Florida. (Exhibit 14) (R&R at 5).

. In the midst of the news of Mr. Posada's return to the United States,
an FBI agent phoned me and asked if I voluntarily would share my copies
of FBI and CIA files regarding Mr. Posada. When I asked why, he said,
"Do us a favor. We can't find ours." Later, I would learn that the Miami
bureau of the FBI had closed its file on Mr. Posada and that the closure
had greenlighted or allowed the destruction of extensive evidence
regarding Mr. Posada, reportedly some five boxes of materials. On May 3,
2005, the Venezuelan Supreme Court approved an extradition request for
Posada. Speaking the same day in Washington, D.C., State Department
Assistant Secretary, Bureau of Western Hemisphere Affairs Roger Noriega
stated somewhat incredibly that Posada might not have been in the United
States and that charges against Posada "may be a completely manufactured
issue." (Exhibit 22) (BBC News).

[The Government's First Subpoena to Me]{.underline}

On May 6, 2005, the Immigration and Customs Enforcement Division of the
U.S. Department of Homeland Security issued two subpoenas duces tecum
commanding *The New York Times* and me to produce to it "Copies of
[all]{.underline} tape recordings and documents relating to the
interview of Luis Posada Carriles by Ann Bardach, which was conducted in
June 1998, excerpts of which were published in the New York Times on
July 12 and 13, 1998." (Exhibit 23).

I regarded the subpoena as an attack on my independence as a journalist
because I had conducted the interview of Mr. Posada in my role as a
professional journalist. I had not promised Mr. Posada confidentiality,
but I believe that I was able to obtain the interview because Mr. Posada
did not view me as a tool of U.S. law enforcement agencies. He granted
me an interview in my role as a reporter for The New York Times, not as
a prosecutor for the US government.

Coincidentally, on May 10, 2005, The National Security Archive (NSA)
compiled information that it had assembled regarding Mr. Posada in a
single briefing book called, *LUIS POSADA CARRILES THE DECLASSIFIED
RECORD CIA and FBI Documents Detail Career in International Terrorism;
Connection to U.S.,* National Security Archive Electronic Briefing Book
No. 153. The National Security Archive, an independent non-governmental
research library located at The George Washington University, collects
and publishes declassified documents obtained through the Freedom of
Information Act and is accessible online at:
<http://www.gwu.edu/~nsarchiv/>. One can read hundreds of documents
relating to Luis Posada at
http://www.gwu.edu/\~nsarchiv/NSAEBB/NSAEBB153/ index.htm.

On Monday, May 16, 2005, I filed a petition in the United States
District Court for the Southern District of Florida asking the Court to
quash the subpoena as it had been issued in violation of constitutional
and common law protections of journalists, the Department's own
guidelines for subpoenaing journalists, and constitutional protections
of privacy rights. (Exhibit 24). I pointed out in a declaration filed in
support of that motion that "the Department already is in possession of
abundant materials concerning the actions of Mr. Posada Carriles upon
which it could dispose of the petition."

The following day, May 17, 2005, Mr. Posada appeared at a news
conference in Miami-Dade and announced his intention to leave the United
States. He was then detained by Immigrations & Customs Enforcement
agents of the Department of Homeland Security. (Exhibit 14) (R&R at 5).
Posada's arrest presented diplomatic problems because his extradition
had been sought by both Cuba and Venezuela. His arrest also coincided
with large anti-Posada protest demonstrations in Havana, estimated in
the hundreds of thousands. (Exhibit 26). Relatives of the victims of the
Cubana bombing also protested in the US.

The Department of Homeland Security placed Mr. Posada in detention in a
federal facility in El Paso, Texas shortly after his arrest and
reportedly charged him with entering the country illegally. On August 8,
2005 the Justice Department withdrew its subpoena of me instead of
responding to my petition to quash. (Exhibit 27).

[Mr. Posada's Limbo]{.underline}

On September 27, 2005, an immigration court denied Mr. Posada's request
for political asylum and found him removable from the United States
either to Cuba or Venezuela for violating the immigration laws of the
United States. (Exhibit 14 at 1-2).

On September 28, 2005, the same immigration judge ruled that Mr. Posada
could not be deported because he "faced the threat of torture in
Venezuela." The Venezuelan government reacted by claiming that the
United States had a "double standard in its so-called war on terrorism."
(Exhibit 28). The judge had no recourse as the U.S. government did not
produce a single witness in its prosecution of Mr. Posada.

After a petition for political asylum is denied and an alien is found to
be excludable, the Attorney General is required to remove the alien from
the United States within 90 days. *See* 8 U.S.C. §1231(a)(1). It is my
understanding that an alien may obtain a deferral of removal beyond 90
days, however, by showing a substantial likelihood that he would be
tortured or killed upon his removal to his countries of nationality. 8
CFR § 208.17 (implementing article III of the Convention Against
Torture). Mr. Posada applied for and obtained such a deferral. (Exhibit
14 at 2).

The Supreme Court has held, however, that detention after a removal
order may not continue indefinitely and that an alien generally must be
released if after six months of post-removal order detention he or she
can establish that his or her removal is not reasonably foreseeable.
*See* *Clark v. Martinez*, 543 U.S. 371 (2005); *Zadvydas v. Davis*, 533
U.S. 678 (2001).

Although the six-month period following entry of the Mr. Posada removal
order would expire on March 25, 2006, the Department of Homeland
Security determined in an interim decision on March 22, 2006, to
maintain Mr. Posada in custody for the purposes of effectuating his
removal to a third country that would be willing to accept him. (Exhibit
14 at 2).

On September 11, 2006, U.S. Magistrate Norbert J. Garney entered a
recommendation that Mr. Posada must be released. (Exhibit 14). The order
began as follows:

> Petitioner is a 78-year-old native and citizen of Cuba and naturalized
> citizen of Venezuela. As observed by the IJ, Petitioner's "case reads
> like one of Robert Ludlum's espionage thrillers, with all the plot
> twists and turns Ludlum is famous for.

The Magistrate further noted that 8 U.S.C. §§ 1531-37 establish the
Alien Terrorist Removal Court and that upon receipt of classified
information that an alien is an alien terrorist, the Attorney General
may seek removal of the alien by filing an application with the removal
court and may take the alien into custody indefinitely, **but that the
Attorney General had not provided the certification required by this
statutory mechanism.** (Exhibit 14 at 20-21). Specifically, the
Magistrate pointed out: "In this case, Petitioner was never certified by
the Attorney General as a terrorist or danger to the community or
national security."

The Magistrate also observed that 8 C.F.R. §§ 241.13(e)(6) & 241.14
allow for continued detention if the Attorney General certifies that
there are special circumstances that require continued detention, **but
again the Attorney General had not certified any such circumstances
exist.** (Exhibit 14 at 21-22). These procedures authorize continued
detention of an alien for additional periods of up to six months of any
alien whose removal is not reasonably foreseeable and who has engaged in
terrorist activities or otherwise presents a threat to national security
et al.

In sum, the Magistrate concluded that the Government had any number of
alternative legal means for ensuring that Mr. Posada would continue to
be held, but that it had chosen not to employ any of those means. This
seemed to demonstrate that the Government did not regard investigation
or prosecution of Mr. Posada as a ***compelling interest***. Instead, it
appears to be the view of the current Administration that because Mr.
Posada's actions historically have been directed against overthrowing
Fidel Castro, an objective which appears to be consistent with the
interests of the United States, that Mr. Posada should not be
prosecuted. It also appears that the Government is hesitant to state
this view openly due to the criticism that it likely would engender.

The Government's hesitancy to express its true views regarding Mr.
Posada manifested itself in the nominal objection that the Government
filed to the Magistrate's recommendation to release Mr. Posada. There,
the Government stated that he had not yet decided whether to make the
certifications allowed under the various statutes and regulations
authorizing continued detention, but that it may do so in the future.
(Exhibit 30).

[The Government's Renewed Interest in My Journalism]{.underline}

While Mr. Posada and the Government were arguing about whether he would
be removed, detained, or released, my attorney Thomas R. Julin of Hunton
& Williams LLP heard again from attorneys for the Government. On October
31, 2005, an assistant United States Attorney assigned to the
Counterterrorism Division of the Justice Department contacted *The
Times'* attorney to let him know that the Justice Department might seek
a grand jury subpoena to require me to turn over materials relating to
my interview of Mr. Posada.

If the Government had been serious about criminally prosecuting Mr.
Posada on the basis of the statements he made in June, 1998 and that had
been reported on the front page of *The New York Times* and other
national newspapers*,* it could have done so long ago.

[More Evidence]{.underline}

In June 2006, I received a copy of a document written by Mr. Antonio
"Tonin" Llama, a former director of the Cuban American National
Foundation, who had been indicted and acquitted in the *Esperanza* case
in 1998. In it, Mr. Llama demanded that the CANF "deliver the titles and
assets that I bought and paid for the campaign that we carried out when
I was a director, with the purpose of destabilizing Castro's communist
government that has been in power in Cuba for almost half a century." He
explained that he needed the assets to deliver them to the International
Finance Bank, "which lent me part of the money to buy 10 airplanes, 8
ships and armaments, since I have not been able to pay them after having
filed for bankruptcy." (Exhibit 31 is the original document sent by Mr.
Llama in Spanish and Exhibit 32, is an English translation of that
document).

When I became aware of Mr. Llama's admissions, it seemed to me that the
Government then would be able to obtain extensive information from Mr.
Llama regarding whatever the Grand Jury might be investigating. Indeed
Mr. Llama has since been interviewed by the FBI in Miami. Antonio
Alvarez was another obvious alternative source of detailed eyewitness
testimony concerning Mr. Posada and those who had been working with him
during the 1997 bombings. I was confident the Government would end its
efforts to obtain materials or information from *The Times* or me
because that evidence seemed so unnecessary either to any investigation,
to obtain an indictment, or to prosecute those involved. But that was
before I learned that the Miami FBI office, evidently bowing to local
political pressure, had done the unimaginable.

[The Government Destroys its Own File]{.underline}

I learned from sources inside the FBI that in August 2003, the Miami FBI
had closed its investigation of Mr. Posada. The closure of his case
allowed a green-lighted destruction of the evidence that conscientious
FBI agents had so meticulously gathered against him for many years-
including some of the original cables from Union City to Posada. FBI
spokeswoman Judy Orihuela, confirmed the destruction but explained it as
a "routine cleaning" of the evidence room. Once a case is closed, she
said, it is greenlighted for destruction in order to free up space in
The Bulky, as the evidence room is known. Ms. Orihela initially said
that the Bureau believed that Posada had disappeared from sight, and was
out of action, with his location unknown. Therefore, their reasoning
went, it no longer warranted keeping his case file open. However, Posada
had rarely been more active and it had been front page news as to his
exact location. He and his three comrades were sojourning in a
Panamanian prison for their attempted assassination on Castro at a
summit held in Panama.

Ms. Orihuela, told me that the supervisory agent in charge or SAC,
Hector Pesquera, and the U.S. Attorney's Office of Marcos Jimenez would
have had to "sign off" on the file closure and destruction. Ms. Orihuela
added that the file has been reopened in May 2005 after Posada had
reentered the country "and is now a pending case." However, I learned
from staff in the Miami FBI office that five boxes of some of the most
crucial data regarding Posada and the Havana bombings had been
destroyed. One can only wonder why would the FBI Special Agent in Charge
and the US Attorney agree to close, then destroy much of the Posada
files and evidence? Does this not raise the question of possible
obstruction of justice?

Moreover, the Posada file closure and subsequent destruction struck me
as compelling evidence that the Government had no real interest in
prosecuting Posada and that at that time (2003), it may have taken
intentional steps to make sure that Posada could not be prosecuted.

At the time that the file closure took place in August, 2003, Mr. Posada
was being held in jail in Panama for attempting to assassinate Fidel
Castro. (Exhibit 33). Several months earlier on May 8, 2003, several
South Florida members of Congress, including Reps. Ileana Ros Lehtinen
and Lincoln Diaz Balart, had written on Congressional stationery to
Panamanian President Mireya Moscoso asking for her to release Posada.
(Exhibit 33). The Congressional leaders reportedly then sent a second
letter again asking for Mr. Posada's release on November 5, 2003.
(Exhibit 33). This sequence of events demonstrated to me that important
U.S. public officials were far keener on securing Mr. Posada's release
than in pursuing a criminal prosecution of him or those working with him
against Fidel Castro notwithstanding their awareness of the material
that *The New York Times* and other media had published about him in
1997 and 1998.

Preserving case files and evidence against Posada and his comrades has
proven challenging in several countries. As far back as 1988, President
Carlos Andrés Pérez asserted that \"the \[*Cubana* bombing\] file had
been tampered with." His successor, Hugo Chavez, likewise complained
that in the days before he assumed the presidency in 1998, many
sensitive DISIP files were destroyed, including *Cubana* case records,
according to Jose Pertierra, who has represented Venezuela in its case
against Posada.

In 1992, a fire at the police station in Port of Spain, the capital of
Trinidad and Tobago, destroyed many of the files in the *Cubana*
bombing. When I called Dennis Ramdwar, Trinidad\'s former police
commissioner, who had interviewed Hernán Ricardo and Freddy Lugo, he was
initially helpful. But during subsequent calls, Ramdwar, now 82, said,
\"I don\'t want to talk about it. I don\'t want to get in between Chavez
and the U.S.\" Nor did he want to comment on his files on Bosch and
Posada. "They have powerful friends who protect them," he said. "They
did then and they do now."

There were other thorny details in this case. To give you a sense of how
challenging the environment in Miami is consider that the Miami-Dade
Police Department\'s liaison to the FBI\'s Joint Terrorism Task Force is
a detective named Luis Crespo Jr. Although well-liked, he is the son of
Luis Crespo, one of the most famous anti-Castro militants, known as El
Gancho, or The Hook, because of the hand he lost to an ill-timed bomb.

Working alongside Crespo Jr. is detective Hector Alfonso, whose father
is also a legendary anti-Castro militant, Hector Fabian, who also hosts
a radio show. Assigned to the MDPD intelligence unit, Alfonso has access
to the most sensitive information on homeland defense, including all
materials on Cuban exile militants. \"Say you had a tip for the FBI
about a bombing,\" mused one former agent who worked on Posada's case.
\"Would you want to give it to a guy whose father is Luis Crespo?\"

[*The* *Atlantic Monthly* Article]{.underline}

On October 3, 2006, *The Atlantic Monthly* magazine published a new
article that I wrote concerning Mr. Posada and others entitled *Twilight
of the Assassins*. (Exhibit 34). Relying on newly declassified FBI and
CIA files, I reported that 30 years after the downing of a Cubana
airliner that still more evidence implicated Mr. Posada. For example, I
reported that the two Venezuelans arrested for placing a bomb on the
Cubana airliner made their the first call after the attack to the office
of Luis Posada's security company." The article also reported for the
first time that the Miami bureau of the FBI had closed its file on Mr.
Posada and that this had cleared the way for destruction of evidence
gather by the FBI concerning Mr. Posada's operations.

Shortly after publication of my *Atlantic Monthly* article, the NSA
released still more documents that it had obtained from Government files
including new investigative records which the NSA stated "further
implicate Luis Posada Carriles" in the downing of the Cubana airliner
(http://www.gwu.edu/\~nsarchiv/NSAEBB/NSAEBB202/index.htm). Among the
documents posted is an "annotated list of four volumes of still-secret
records on Mr. Posada's career with the CIA, his acts of violence, and
his suspected involvement in the bombing of Cubana flight 455 on October
6, 1976."

[The Grand Jury Subpoenas Me]{.underline}

On October 6, 2006, my attorney, retained by *The New York Times*,
received a grand jury subpoena which directed me to appear and testify
before the grand jury and to produce all tape recordings that I have of
the 1998 interviews of Posada. My attorney, Mr. Julin continues to fight
to keep me out of the Grand Jury on First Amendment grounds. At stake,
is not only my right, but the right of the public to continue to have
access to information that is critical to its participation in our
democracy. In this case, my independence as a professional reporter
allowed me to bring to the public through *The New York Times*
information showing that a private war was being conducted against a
foreign nation and the Justice Department was doing little, if anything,
to prevent it notwithstanding the availability of abundant evidence that
could be used to prosecute those involved in that effort.

The United States Government has compiled extensive information
concerning Luis Posada Carriles and his activities since he openly
opposed Fidel Castro shortly after the Cuban Revolution in 1959, left
Cuba in February, 1961, and volunteered for training by the Central
Intelligence Agency-backed Bay of Pigs invasion two months later.

My knowledge of the Government's extensive files is based in part on
*The New York Times'* review of declassified CIA and FBI documents, a
good deal of it compiled by the National Security Archive. The NSA has
publicly stated that the Government has hundreds of other documents
relating to Mr. Posada and the *Cubana* airliner downing which it
refuses to release to the public.

The declassified FBI and CIA documents show that the Government has
extensive alternative sources of information concerning Mr. Posada's
involvement in actions that the Newark Grand Jury -- convened in 2005 -
appears to be now investigating.

If the Government were seriously interested in prosecuting Mr. Posada or
others associated with him for criminal activities for attacks against
Cuba, it has had ample evidence so for a very long period of time but it
chose not to do so. Instead, it has forestalled any prosecution of him
and others and has sought to compel evidence -- thus comprising the
reporter's privilege- from me ***only after it has destroyed its own
files regarding Mr. Posada.***

In early May, 2007, US District Judge Kathleen Cardone dismissed the
sole charge brought by the US Justice Department against Luis Posada.
The charge was not for acts of terrorism , but for having illegally
entering the country. Just days before his trial was to begin in El
Paso, the judge issued a blistering rebuke against the US government,
chastising prosecutors for \"fraud, deceit and trickery\" in their
attempt to try a terrorism case in an immigration court proceeding.

Posada's lawyers had made much of a woeful interpreter who had conducted
an extended interview with Posada about his career as a militant. Citing
several errors in translation, they won the judge's ire, who also was
irked that prosecutors were shopping for information against Posada in
the wrong legal venue. However, no one pointed out the that Luis Posada
did not need a translator -- having learned English as a young man and
who later served as a translator during Iran-Contra for US servicemen. I
had interviewed him mostly in English, as did Blake Fleetwood for *New
Times* in 1976, and at no time did Posada indicate to either of us that
he did not understand something. In fact, his attorney, Matthew
Archambleault, who handled his arraignment, spoke to him in English.

With all immigration charged dropped against him, Luis Posada walked out
of jail on May 8th a free man - albeit one branded by the U.S. Justice
Department as \"a dangerous criminal and an admitted mastermind of
terrorist plots.\" Pressure mounted as to why former U.S. Atty. Gen.
Alberto R. Gonzales refused to declare Posada a security threat and
arrest him under The Patriot Act, legislation he crafted and so ardently
supported. Former Attorney General Gonzalez and the Bush Administration
have consistently refused to do so.

Soon after his release, Posada was seen celebrating at El Club Big Five,
an exclusive private club popular with many of Miami's political elite.
With Posada was his old comrade and former cellmate, Orlando Bosch. In
early 1972, Mr. Bosch was convicted of acts of terrorism and sent to
federal prison. He later became a fugitive and was charged in the
bombing of the Cubana plane downing in 1976. He spent 11 years in prison
then returned to the U.S. Over the objections of the FBI, CIA and the
Justice Department, Bosch was granted US residency by Pres. George H.W.
Bush.

It was not until Nov. 6, 2007, that DOJ prosecutors announced that they
would appeal Judge Kathleen Cardone's ruling dismissing charges against
Posada regarding his immigration status.

Call me a strict constructionist, but somehow I do not believe that our
founding fathers intended that our government be allowed to raid the
news media for their work files after it bungles a case and destroys
crucial evidence. And that is exactly what happened in the case of Luis
Posada Carriles

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Ann Louise Bardach October 10 , 2007

> Santa Barbara., California.