At 9:00 a.m. sharp, the gavel sounded three times before the familiar, “Hear ye, hear ye, hear ye,” the traditional Anglo Saxon call to begin a courtroom session. Every day, the Court Clerk announces the case: “The United States Court for the Western District of Texas is now in session, presided over by the Honorable Kathleen Cardone. This is the case of the United States of America v. Luis Posada Carriles, Number EP-07-CR-87-KC.”

Before convening the jury, Judge Cardone always asks the attorneys if they have any issues to discuss. Lawyers almost always have issues and today was no exception. One of the prosecutors, Jerome Teresinski, asked permission to argue the merits of an eight-page document that the Government had filed electronically in the wee hours of the morning. Signed by the trio of Department of Justice litigators of the Posada Carriles case, the document is called United States’ Submission in Regard to Redirect Examination by the United States of Gilberto Abascal.

Its purpose is to advise the Court that Mr. Teresinski intends to submit evidence that the witness previously provided valuable tips to the FBI that led to the conviction of certain criminal defendants in weapons cases, “in order to show that any health disorders from which he may suffer do not cloud his recollection and do not prevent him from providing reliable information to law enforcement authorities.” Teresinski also argued that as a result of defense counsel’s cross-examination of Mr. Abascal, the jury likely has formed a skewed picture of Abascal and the reasons money was paid to him by the FBI. He asked the Court to allow the Government to “provide the jury with a full and fair account of the reasons Mr. Abascal became an informant, and of the results of his cooperation with the FBI.”

Soap opera vs. the truth

Never at a loss for words, Posada Carriles´ attorney, Arturo Hernández, suddenly stood up and declared, “I also want to say something. I want to inform the Court that I’m thinking of delving into the connection between Abascal and the Cuban intelligence services.” Hernández then began to spin the tale that he wants to transmit to the jury: that Abascal was allowed to visit Cuba four times in 2004, because he is a spy for the “Castro regime.”

Abascal testified earlier in the week that the person who introduced him to Santiago Álvarez, the owner of the boat that brought Posada Carriles to Miami in March of 2005, is a man by the name of Ihosvani Surís. Posada Carriles´ lawyer alleges that Surís was arrested in Villa Clara, Cuba in 2001 after an “incursion” into the country and was tortured at the Villa Marista prison on the island. After the communists tortured Surís, Hernández told the Court today, a Cuban security agent named Daniel called Abascal four times from Cuba.

“The first time that Daniel called me, he asked if I knew what Surís had done,” Abascal testified last week. “I immediately told Santiago Álvarez and the FBI about the telephone call,” he said, “and the other three times that he called me, I hung up.” Hernández told the judge today that Daniel works for Cuban Intelligence and that he recruited Abascal to also become a spy.

What Hernández euphemistically characterizes as Surís´ “incursion” into Cuba was instead a terrorist operation, whose purpose included detonating explosives in the Tropicana, the famous Cuban cabaret. Cuban authorities intercepted the “incursion” on April 26, 2001 and confiscated four AK-47s, an M-3 rifle, three Makarov pistols and other weapons and grenades from Surís and his two accomplices. Surís is one of the leaders of Comandos F-4, an organization that Cuba classified as terrorist, because of its previous violent actions against civilian targets on the island.

Cuba’s “Mesa Redonda” news and commentary program showed a video clip on June 20, 2001, in which Ihosvani Surís could be seen speaking by phone with Santiago Álvarez, Posada’s financial benefactor and owner of the boat that smuggled him into Miami. In the clip Surís asks Álvarez what to do regarding the Tropicana. “A couple of little cans will do away with the whole thing,” Álvarez was heard to say on the clip.

That’s some “incursion.” Hernández does not want the jury to learn any of those details. To him such evidence tends to poison the jury against his client. On the other hand, he does want to insinuate, by way of cross-examination of the witness, that Surís was tortured at Villa Marista and that Abascal is a spy for the “Castro regime.” Under his reasoning, evidence that Suris planned to blow up a famous cabaret in Havana is, “poison”, because it was gathered by Cuban investigators and is therefore not credible.

“Cuba is an enemy of the United States and is on the list of terrorist countries next to North Korea and Iran,” Hernández vehemently maintained to the Court. “I will present witnesses who will show how the Cuban intelligence services operate,” he said. For example, “who paid for Gilberto Abascal’s trips to Cuba?” insinuating, of course, that it was the “Castro regime.”

Hearing Hernández´ soliloquy, the prosecutor’s face reddened in anger. “Hernandez’s arguments are fiction. They read like a John Grisham novel,” said Teresinski, referring to Grisham’s well-known legal thrillers. “Attorney Hernández wants to put Cuba, Castro and Abascal on trial,” Teresinski complained. “But this case is about the lying, perjury and obstruction of justice by Luis Posada Carriles, not by Cuba, Castro and Abascal.”

“Hernández wants to raise a smokescreen so that the jury won’t see what Posada Carriles did in March of 2005,” said the prosecutor, his voice trembling with anger. “The attorney is maneuvering a subterfuge. Abascal has family in Cuba and that’s why he went there,” said Teresinski. “That doesn’t mean he’s a spy.” Teresinski ridiculed the non sequitur of Hernández´ arguments, “Oh,” he says mimicking Hernández, “I see you made four trips to Cuba, so you must be a spy.” Teresinski wasn’t through. “There is no evidence whatsoever that Abascal is a spy for the Cuban government. This is a fantasy designed by counsel to put Fidel Castro on trial,” he told the Court, gesturing in the direction of the defense counsel’s table.

In a sense, the smokescreen that Hernández has thrown at the jury is working. For example, the name of Luis Posada Carriles has hardly been uttered in court for a number of days, except when the Clerk of the Court vocalizes it at the beginning of the day’s proceedings. The names Abascal, Castro and Cuba, on the other hand, are almost a constant refrain in Arturo Hernández’s courtroom presentation.

Judge Cardone’s Decision: The soap opera is more important than the truth

After listening to the arguments, Judge Cardone announced her decision. Hernández may continue cross-examining Abascal about his supposed ties to Cuban intelligence, but Teresinski will not be allowed to ask him questions on redirect about the two attempts on his life, after becoming an FBI informant. In August of 2006, someone shot at Abascal with a rifle, and in January of 2007 he discovered a pipe bomb under his vehicle. The jury may not be learn about the two attempts on Abascal’s life, ruled Judge Cardone. “It’s too inflammatory,” she said.

Last Friday, on cross-examination, Attorney Hernández left the impression that Abascal received more than $80,000 from the FBI to provide information about Posada. “This is misinformation purposely twisted by Attorney Hernández,” said the prosecutor. We don’t know what is on the jurors’ minds, but the press who heard his questions swallowed the bait that Hernández dangled in front of them.

Teresinski is right about this. For example, a newswire from the Spanish press agency Efe dated January 28 and disseminated worldwide during the weekend had this as its lead:

“The star witness for the U.S. prosecution in the case underway against Luis Posada Carriles, Gilberto Abascal, admitted today that he received more than $80,000 from the U.S. government to testify in the trial against the anti-Castro [Posada Carriles]…”

The truth, argued Teresinski, is that Abascal helped the FBI convict Santiago Álvarez and Osvaldo Mitat. Hernández knows it, said Teresinski, because he was their attorney, too. Álvarez and Mitat admitted having a warehouse stockpiled with sophisticated weapons and were convicted on November 14, 2006 in Fort Lauderdale, Florida. Álvarez and Mitat are also implicated in the plan to smuggle Posada into Miami aboard the Santrina Abascal was the person who initially informed the FBI about the weapons, but he didn’t have to testify because Álvarez and Mitat entered a guilty plea, thus avoiding trial and longer sentences. Álvarez was sentenced to four years in prison and Mitat to three.

The key witness would have been Abascal. There too, Hernández alleged that Abascal was a spy for the “Castro regime.” For Hernández, it’s the same soap opera, but a different episode.

Because of his collaboration with the FBI, Abascal was subjected to death threats as well as two attempts on his life. This was why the FBI wanted to protect and relocate him. The expenses in moving him to safety are what cost almost $80,000. “If the press didn’t understand that last Friday, then neither did the jury,” argued Teresinski.”If we are not allowed to ask Abascal about this, the truth will not emerge,” said Teresinski.

The judge roundly rejected Teresinski’s arguments. “The illegal weapons case against Santiago Álvarez is not relevant to that of Mr. Posada,” she said, “and it would be very prejudicial to him if the jury were made aware of it.”

The jury arrives

After issuing her ruling, Judge Cardone asked that the jury be brought into the courtroom. During all the morning’s legal arguments, the jury members had been in the antechamber, waiting.

Hernández then renewed his cross-examination of Abascal. He asked about the trips to Cuba in 2003 and 2004. “I went five times,” said Abascal, “and I will continue going because all my family, except for my children, is there.”

Hernández asked him if a Jesús (”Chucho”) Acosta is with Cuban state security. “No,” answered Abascal, “he’s a fisherman in Batabanó.” “Why did you go to Mexico so many times?” asked Hernández, insinuating that there are more Cuban spies in Mexico than chili peppers. “Because I have a girlfriend in Mérida and I also go to the cockfights,” explained Abascal.

“Did you meet with intelligence officers from the Castro regime in Cancún?” “No,” answered the witness. “Have you smuggled people from Cancún to Cuba or to the United States?” “The only person that I’ve smuggled has been Luis Posada Carriles,” he stated. “That’s a lie!” said Hernández. “No. It’s the truth. You’re the one who’s making things up,” Abascal said firmly.

And so it went for hours.

The prosecutors looked frustrated and the jury looked bored. One of the jurors fell asleep several times during Abascal’s testimony this afternoon. Comfortably seated in the first of the two rows, she reclined her head on her right shoulder and settled in for a lovely nap.

But no such sleepiness slowed down Hernandez’s cross-examination. During the next hour, Hernández questioned Abascal about some photos that the U.S. Coast Guard discovered on board a small boat that he used to try to return to Cuba in 1999, along with a couple and a three-year-old girl. The photographs were of a military training camp in Florida belonging to an organization called Alpha 66. Cuba considers it a terrorist group due to the various armed attacks it has made against civilians in Cuba.

Hernández wanted to convince the jury that Abascal was taking the photos to the “Castro regime’s” intelligence services. However, Abascal testified that the family traveling with him in the boat was taking the photos, at the request of Alpha 66’s leader, Nazario Sargén, to a tiny group in Cuba affiliated with the organization. “The FBI knows that. I told them,” said Abascal.

Hernandez’s cross-examination reached absurd proportions, when the defense counsel entered into evidence hundreds of pages of Abascal’s telephone records to ask him about certain phone numbers in Merida. “To whom does this particular number belong?” asked Hernández. “To Patricia Espada Reyna,” said Abascal. “And this other one?” asked the attorney. “To Patricia Espada Reyna,” answered the witness. “And why does she have two telephone numbers?” asked Hernández, gloating as if he had caught Abascal in a trap. “Because one is her cell phone and the other is the number for her house,” answered Abascal. Listening to that exchange, the juror who’d only recently awakened from her nap went back to sleep.

The junior club of Cuban spies

Finally, after keeping Abascal an entire week on the stand, Hernández concluded his cross-examination. It was now up to Teresinski to conduct redirect examination and try to undo any damage that Hernández´s cross may have done. Obviously mocking Hernández´s penchant for spy thrillers, Teresinski asked about the little three-year-old girl who was on board the small boat in which the photos of Alpha 66 were found. “Did you know whether that three-year-old girl belonged to the junior club of Cuban spies?” Everyone laughed except Hernández.

At long last, the name of Luis Posada Carriles came up. Teresinski asked Abascal if he harbored any animosity toward Mr. Posada Carriles. “No. Only against Santiago Álvarez, because it was him that got me mixed me up in this whole mess,” answered Abascal.

Sandstorms

Today in El Paso, the Secretary of Homeland Security gave an important speech. Secretary Janet Napolitano said, “Taken as a whole, the additional manpower, technology and resources [assigned to the US/Mexican border] represent the most serious and sustained action to secure our border in our nation’s history.” She did not mention that about a mile away from the University of Texas, where she gave her speech, the Government is prosecuting Luis Posada Carriles for lying and not for terrorism. There are 73 murder charges pending in Caracas against him, yet the Department of State does not extradite him to Venezuela. The Department of Homeland Security refuses to classify him as a terrorist and lock him up, under the provisions of the Patriot Act. Instead, Posada enjoys a comfortable stay in El Paso as a guest in a hotel and dines in the town’s better restaurants.

The El Paso jail is across the street from the courthouse. The family members of the people Posada is accused of having murdered think that the jail is where he should rightfully be spending his nights. There’s no need for increased personnel or new technologies on the border to incarcerate him: only political will.

Meanwhile, the El Paso Soap Opera continues. Abascal will probably return home tomorrow, if the winds that are blowing in El Paso this afternoon will permit. Gusts of wind of up to 44 miles an hour are spreading sand across downtown El Paso, and the six-block walk to my hotel suddenly became an odyssey fit for a Western movie. There is snow in the forecast for the next 48 hours in El Paso. I’m afraid that what’s coming is a sandstorm. A lot of sand is blowing in this frontier town in the Texas desert.

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