The Untold Story of the Cuban Five

Without Any Exception Whatsoever?

By RICARDO ALARCÓN de QUESADA

Venezuela’s formal request for the extradition of Luis Posada Carriles was well founded. There is an Extradition Treaty between Venezuela and the United States, ratified by both countries in 1922, which has been implemented for a century.

Venezuela followed the letter of the law, with its Supreme Court issuing an arrest warrant for the fugitive who had absconded from a Venezuelan prison in 1985. The Venezuelan government formally transmitted its extradition request to the United States government on June 15, 2005.

According to the Treaty, Washington should have immediately detained Posada and submitted his case to a federal court for an extradition process in which the Secretary of State would have the final word. That’s how Montesquieu's idea of “separation of powers” allegedly works in America.

But nothing of the sort has happened. The US government has instead chosen not to detain Posada Carriles or to submit the case to a federal court for extradition.

The US could have also detained Posada under its own Patriot Act, which gives the Attorney General the authority to detain a terrorist until his ultimate removal from the United States. The Patriot Act obviates the need to consult with the courts in order to detain someone the federal government considers a terrorist. The Attorney General need only certify the person as a terrorist. (See Section 1226 (A) of Title 8 of the United States Code). By deciding not to certify Posada as a terrorist and allow him to roam free, the United States is in clear violation of its own Patriot Act. And by ignoring the extradition treaty with Venezuela and several international conventions on terrorism, Washington grossly violated the US Constitution, specifically Article VI which establishes that such international treaties “shall be the supreme law of the land.”

Bush decided that Posada's mendacity to a bureaucrat was a more serious offense than 73 counts of first-degree murder. And instead of abiding by the US constitutional and treaty obligations, Bush preferred to try and convince other governments to help him shelter and protect Posada. No other government, however, was prepared to do that.

The Bush administration flatly ignored certain international conventions that are among the main pillars in the fight against international terrorism: the Montreal Convention for the Suppression of Illicit Acts Against Civil Aviation and the Protection of Passengers and the International Convention against Terrorist Acts Committed with the Use of Bombs.

Both Conventions introduced a very specific provision to make it impossible for any suspect of such crimes to escape prosecution. They established one alternative to extradition and only one. If any State does not comply with an extradition request, it shall be obligated to immediately prosecute and put on trial the alleged criminal for the same crime as if it had been committed in its own territory. That has to be done, according to both Conventions, “without any exception whatsoever.”

In September 2001, a few days after 9/11, the Bush Administration urged the UN Security Council to adopt mandatory and concrete measures that every country must take, under the threat of force in case of non compliance. Security Council Resolution 1373, introduced by the US delegation and approved unanimously, made it an enforceable obligation for all member states to cooperate in prosecuting fugitive suspects, denying them shelter, condemning political excuses not to extradite and demanding the full application of all international agreements against terrorism, including the two Conventions cited above.

To ensure implementation of Resolution 1373, a special permanent UN Security Council committee was established. It meets regularly in its New York headquarters. At every meeting, the United States is denounced for being in clear violation of Resolution 1373 with its hypocritical double standard on terrorism, as reflected in its protection of Luis Posada Carriles and the incarceration of the Cuban Five.

The next round of the charade known as the Posada “trial” is scheduled for March 1, 2010. Posada is to be “tried” on perjury charges. By then it will be five years of US adamant efforts in protecting a terrorist and not allowing him to be tried for his real crimes. By then, five anti-terrorist heroes will be in the middle of their 12th year of unjust, cruel punishment.

By not respecting its international treaty obligations, Washington is undermining the main legal instruments which were conceived to sustain the struggle against terrorism, which is supposed to be of a highest priority for the United States. The damage to US credibility may not be clearly perceived by many Americans because the big corporate media do not allow them to ascertain it. They are not permitted to know how the hypocrisy and arrogance permeating US policy is universally rejected. To imagine the possibility of the US playing any leadership role in the world, not to mention the idea of being respected, is to indulge in irrational, unfounded daydreaming.

Ricardo Alarcón de Quesada is president of the Cuban National Assembly.