March 24, 2011

El Paso Diary: Day 32 of the Posada Carriles Trial

Ann Louise Bardach Takes the Stand

By JOSÉ PERTIERRA

Today the jury in El Paso heard Luis Posada Carriles take responsibility for the bombings in Havana in 1997.  He did so in a tape recording made in June of 1998 by New York Times journalist Ann Louise Bardach when she interviewed him in Aruba.

Prosecutor Timothy J. Reardon, III, played clips from the recording for the jury, and Bardach identified the voices and commented on the statements made by Posada Carriles.

Morning routine

The morning began with the customary complaints from the defense attorney, Arturo Hernández, who objected to the admissibility of the recordings, despite having lost this battle months ago.

“The recordings are incomplete, they’re not authentic, no chain of custody has been established to guarantee that this tape is the same one recorded by Ms. Bardach in 1998.  Plus the recordings were made without my client’s authorization,” Hernández argued.

Judge Kathleen Cardone firmly reminded Hernández that she had ruled months ago that the recordings would be admitted into evidence and that the jury would be allowed to listen to them.

The reluctant witness

The United States then called Ann Louise Bardach to the stand.  She had been ill:  quite ill.  Bardach should have been in El Paso six days ago, but Judge Cardone continued the case to give her time to recover before she came here to testify.  Today she still had a fever, Bardach said.  When she arrived at the courthouse and before she began testifying, I shook her hand, and it was cold as ice.

She wore a brown muffler over her sober looking attire, almost like a shield against the blows she anticipated from the defense attorney.  Looking pale and anemic, she also seemed very nervous.  Perhaps she was reflecting on her experience with Posada’s attorneys in 2005—which she described in her March 15 article in Foreign Policy—when one of the attorneys told her “that if the government made me testify, he would use whatever weapons he could lay his hands on to attack me. ‘Sort of a like a crucifixion,’ he quipped with a laugh.”

It is an understatement to say that she did not want to come to El Paso.  It took a subpoena that she fought tooth and nail for five years, using high-powered attorneys and the support of the most powerful newspaper in the United States.  She finally lost the legal battle and was left with no choice but to come and testify.

The subpoena included her interview notes, the tape recordings and even a painting by Posada Carriles that he had given her as a parting gift at the end of the interview in Aruba.

“My reporting has now put me into the middle of a case I want nothing to do with,” Bardach said in an article published March 15 in Foreign Policy.  “I have long guarded my privacy—family, marriage, health and the rest.  I am neither a public confessor nor an appreciator of reality shows.  So this will not be pleasant,” she wrote.

Bardach also fought the subpoena because she believes that journalists should not have to testify against their sources, even if these are not confidential.  She argued, “My forced participation is an affront to the U.S. Constitution’s First Amendment, the crucial news-gathering role of the Fourth Estate and the values of a free press.”  A federal judge disagreed with her interpretation of the law, however.  Journalists will now have to destroy their materials “or risk being compelled to testify against sources,” she wrote inForeign Policy.

Green tea

To soothe Bardach’s tattered nerves, her husband Bob carried a cup of green tea to her on the stand.  He then took a seat in the gallery along with members of the press and next to New York Times attorney Thomas R. Julin, of the prestigious law firm of Hunton & Williams.

While we waited for the jury to enter the courtroom, Bob tried to give his wife encouragement, lifting his head, he did his best to catch her eye.  When their eyes finally met, he raised his right hand and moved his fingers in a tender gesture, as though he were stirring her tea.  Ann Louise smiled for the first time.

Who is Ann Louise Bardach?

At that moment, the jurors entered and the questioning began.  “What kind of work do you do?” asked prosecutor Reardon.  “I’m a writer, an author, a reporter and a journalist,” answered Bardach.  She explained that she studied English Literature at Hunter College in New York, where she earned a master’s degree.  She didn’t complete her Ph.D.

She began her journalistic career as a crime reporter at Vanity Fair magazine in the early 1980s, but said she also covered political affairs.  “Going from crimes to politics, there is not a lot of difference,” she told the jury.  “I don’t take a stand in politics.  I’m neither Democrat nor Republican.”

“Are you pro- or anti-Castro?” asked the prosecutor.  Bardach shrugged her shoulders and answered, “No one can read my writing without understanding that I am critical of the abuses in Cuba.”

Posada Carriles’ English

Aware that no other journalist in the United States has written more than she on the subject of Posada Carriles, Reardon asked, “Have you been in contact with Luis Posada Carriles?”

“In June of 1998, I gave a commencement address at the University of California, Santa Barbara.  Later I checked my home telephone answering machine.  I heard the voice that identified himself as Ramón Medina and as a friend of someone I knew,” Bardach testified.  She said she knew that Ramón Medina was one of Posada Carriles’ favorite aliases.

Bardach said that she called one of the telephone numbers that Posada Carriles had left her and spoke with him.  “He seemed like an easy-going, pleasant conversationalist.  He told me he wanted to get together,” she said.

Reardon knows that Posada Carriles previously told an immigration judge that he does not speak English and that he didn’t understand Bardach’s questions in Aruba.  This is why Reardon asked Bardach about the defendant’s fluency in English.  “He speaks it very well,” she said.  “I knew that he spoke English, because he had worked for Firestone in Akron, Ohio, and also helped translate for Eugene Hasenfus.”

Hasenfus was a CIA contractor whose plane crashed in Nicaraguan territory in 1986 during an undercover operation known as Iran-Contra.  Hasenfus worked with Posada Carriles during that period.  After falling into Sandinista hands, Hasenfus was tried, convicted and sentenced in Nicaragua to 25 years in prison—but the Sandinistas freed him shortly afterwards.

Trying to maintain the appearance that he doesn’t speak English, Posada Carriles listened to Bardach’s testimony through headphones that gave him a simultaneous translation.  Did the jurors notice the inconsistency?

The defense attorney asks for a mistrial

Posada Carriles and Bardach agreed that the interview would take place on the island of Aruba, northeast of Venezuela, in the southern Caribbean Sea.  “Posada pointed out that he was a fugitive,” said Bardach, referring to the 73 murder charges pending against him in Venezuelan courts for blowing up a passenger airliner.

Upon hearing the word fugitive, Posada Carriles’ defense attorney shot from his seat.  “Objection, Your Honor, and I reserve a motion,” said Hernández.  He asked for a conference at sidebar so that he could argue the motion for a mistrial away from the jury.  It was the seventh such motion since the trial began on January 10.

The judge overruled the motion, but instructed the jury to disregard Bardach’s statement about Posada Carriles having been a fugitive.  Reardon then asked Bardach how her arrival in Aruba had gone.  “Posada told me that he would meet me at the airport.  My colleague from the New York Times, Larry Rohter, had also arrived, as well as my husband Bob, because he was worried for my safety,” Bardach testified.

That pushed attorney Hernández’ motion-for-mistrial button again, and he made his eighth such request.  Judge Cardone overruled the motion again.

Bardach continued.  She said that Posada Carriles met her at the airport, “Ana Luisa, ¿cómo está?”

“I took a tape recorder out, right there in the car,” said Bardach.

“Did you secret it?” asked Reardon.

“No.  It’s a big clunky Radio Shack recorder.  You can’t secret it anywhere,” she said.  “We developed a pattern during the three-day interview.  Whenever he wanted the tape recorder off, he would let me know.”

“Did Posada Carriles tell you why he wanted to be interviewed?” the prosecutor asked.

Bardach recalled, “He didn’t feel he was getting his side of the story out.  He wanted to clarify certain things—‘I did this, but I didn’t do that.’  And he wanted to tell his role in what he called the heroic campaign going on in Cuba.”

“Which?” asked Reardon, interrupting her.

“The bombing campaign in 1997,” she said.

The interviews lasted for three days and took approximately 13 hours, half of which were recorded, said Bardach.  She explained that with his fingers mimicking a metronome, Posada Carriles would tell her when to turn the tape recorder off.  “When he wasn’t being recorded, he was more open, more frank,” said Bardach.  “It’s the way most people behave.”  She gave as an example the first time he spoke to her about the fax.

When Bardach mentioned the word fax, Hernández interrupted her, asked for a sidebar conference with the judge and made his ninth motion for a mistrial.  Last week the judge ruled that the incriminating Solo fax could not be admitted as evidence.

The judge once again rejected attorney Hernández’ motion for a mistrial.  She asked the jurors to ignore the reference to the word fax and announced a lunch recess.

“A silly delaying tactic”

The legal skirmishes that have marked this case since its beginning two and a half months ago continued after lunch.

The defense attorney insisted that rather than playing selected clips of the recorded interview of Posada Carriles for the jurors, the prosecutor should play the entire redacted recording in one sitting.  More than two and a half hours.  Prosecutor Reardon insisted on the Government’s prerogative to present the evidence as it saw fit and characterized Hernández’s tactics as “dilatory and silly.”

Hernández took umbrage at Reardon’s characterization.

“Judge, one thing is a brush-back pitch and another is when a pitcher aims the ball at your head,” he complained to the judge, like a second grader trying to get the teacher to settle a difference.  “Reardon’s words are beyond the pale.  I feel angst about them, and I ask that the court admonish him,” Hernández said, his ears flushed with anger.

Judge Cardone hardly paid him any mind.  She was more intent on making sure that the jury did not hear the parts of the interview that touched on inadmissible evidence.

She ruled that the Government could play selected clips of the interview as long as Bardach was able to identify the voices on the tape.

That is why Bardach’s phrase, “That’s my voice and that of Posada Carriles,” echoed in the courtroom each time the Government played a new clip from the interview.

Posada’s goodbye notes to Bardach in Aruba

“My last day in Aruba, Posada gave me some notes that he’d written to me,” said Bardach.  They included the reasons for his use of violence against Cuba.  After listing complaints about the Cuban government, Posada said to her in those notes, “And above all without hope for change, all free Cubans are given the right to armed rebellion against the tyrant using violence and any method at our reach that might contribute to the toppling of the nefarious system and lead to freedom for our homeland.”

The notes also include a statement that he neither admits nor denies responsibility for the bombings in Havana.  But the disclaimer notwithstanding, the recordings reveal without a doubt that Posada Carriles was behind the bombings in Havana in 1997, one of which took a young man’s life.

Posada Carriles’ confession

The Government began playing the clips, and the jury heard the voice of Posada Carriles admitting that:

• It took him only “one or two months” to plan the bombing campaign.
   
• He was “el jefe” (the chief) of the operation.
  
  
• He kept everything “compartmentalized.”
  
  
• The purpose of the bombings had been “no more tourism.”
  
  
• He’d directed small explosives to be placed in the hotels, because he “didn’t want to hurt anybody.”
  
  
• The murder of Fabio Di Celmo on September 4, 1997 had not been intentional.  “The Italian was in the wrong place at the wrong time.”
  
  
• His conscience is free, and he “sleeps like a baby.”

While listening to Posada Carriles’ admissions on tape, the jury members appeared riveted by the defendant’s stunning confession.  The woman with the broken foot opened her mouth in amazement, the portly man in the first row locked eyes with the woman with two-toned hair to his right.  Might they have been wondering why the defendant was only being tried for perjury instead of murder and terrorism?

“How did Luis Posada Carriles appear when he told you that Mr. Di Celmo was the unluckiest person in the world, because he’d been in the wrong place at the wrong time?” asked Reardon.

“With a certain amusement and ironic detachment,” answered Bardach.  “With a laughter of can you believe it,” she added.

And that’s how Posada Carriles looked in court today.  During Bardach’s entire testimony, he didn’t look at her once.  Seated with his legs crossed—with the electronic ankle bracelet visible on his left leg, the only restriction placed on his freedom by Judge Cardone—Posada Carriles sat at counsel table with a look of apathy on his face, his eyes gazing into some unknown dimension.

Listening to his own voice confessing to the bombings in Havana and cavalierly admitting to the murder of Fabio Di Celmo didn’t seem to ruffle him.  As he told the New York Times in Aruba in June of 1998, “What does another stripe matter to the tiger?”

José Pertierra practices law in Washington, DC.  He represents the government of Venezuela in the case to extradite Luis Posada Carriles.

Translated by Machetera and Manuel Talens.  They are members of Tlaxcala, the international network of translators for linguistic diversity.

Spanish language version:http://www.cubadebate.cu/opinion/2011/03/17/diario-de-el-paso-el-testimonio-de-ann-louise-bardach/