Caught in the Crossfire

On Wednesday, March 16, I am scheduled to appear in federal court in El Paso, Texas, at the protracted and politically charged trial of anti-Castro militant Luis Posada Carriles. Regarded as the godfather of anti-Castro exile militants, Posada has had a legendary 50-year career of attempting to topple Fidel Castro. I’ve been writing about Posada for more than a decade, and my reporting has now brought me into the middle of a case I want nothing to do with.

Posada is being prosecuted on 11 counts of allegedly violating U.S. law, most of which concern his alleged illegal entry into the United States in 2005. So why are they calling me? Because several counts in Posada’s indictment concern his alleged involvement in a 1997 bombing campaign of several Cuban tourist sites in which a visiting Italian businessman was killed. In its pursuit of proving the Havana bombing perjury charges, the Justice Department’s counterterrorism division served the New York Times and myself with multiple, high-vacuum subpoenas regarding the Times‘ series of articles on exile militants that I co-authored in 1998. Over the last five years, subpoenas have been issued for interview tapes, notes, documents — even a painting Posada gave to me. And, after five years of unsuccessful legal wrangling, I will also be compelled to testify.

While Posada was not a confidential source, coercing me to testify may serve as a caution to others that speaking with a reporter poses unforeseen perils. In fact, it could well change the rules of the game for journalists. At a minimum, sources who learn of this case will think twice about spilling the beans, if they know that their trusted reporter could also be crowbarred into testifying against them. This makes my forced participation 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.

There is a personal price, as well. Posada may not be a sympathetic character to many –he is accused by Venezuela and Cuba of blowing up a Cuban airliner in 1976, killing 73 passengers (a charge U.S. intelligence officials do not counter). In 1985, he escaped from a Venezuelan prison before a final verdict was rendered. And though a fugitive, Posada went to work in the secret and illegal Iran-Contra operation, and he retains a small yet influential cadre of supporters in Miami.

In 2006, I wrote an article in the Washington Post that revealed that in the summer of 2003 the FBI’s Miami office destroyed five boxes of evidence regarding Posada’s case, after mysteriously deciding to close the case. The fact that some original documents were shredded appears to have hurt the government’s case at trial. Some have even suggested that the Justice Department’s decision to compel me to testify was, in part, retaliatory for that story.

Certainly, there is one advantage for the Justice Department’s compelling me to appear in court: Effectively, it has neutralized my reporting. Witnesses are typically not allowed to attend trials. This is a rich irony considering I have been among the lead chroniclers of the Posada story for the last 15 years. In fact, the court may direct that I not discuss my testimony once I am sworn in as a witness, further sidelining me from my profession. I would then be unable to respond to accusations that will undoubtedly be hurled by opposing counsel seeking to impugn my standing as an independent, unbiased reporter.

While prosecutors hope to use me and the research materials as a legal bludgeon against the 83-year-old anti-Castro warrior, his defense team will likely seek to malign me. Indeed, I was told as much. In 2005, when covering Posada’s arraignment, I dodged an ambush by two Justice Department prosecutors in the court’s restroom, who exhorted me to take the stand to assist their case. Later, one of Posada’s attorneys told me 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.

I have had somewhat of a preview. When the New York Times series appeared in 1998, Miami exile radio reported that my Times writing partner was a spy for Cuba, the Times was a communist front, and I was "la amante de Fidel Castro" — the lover of Fidel Castro. A week later, one Miami listener said she heard me referred to as "una marijuanera tortillera" (a pot-smoking lesbian). Then there is always the canard of accusing me of "bias": Never mind that I was detained and kicked out of Cuba in 2007 for articles el Comandante disliked.

Although I have published widely for more than 30 years, I am rather old-school about journalism and prefer to write in the third person. 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.

Already much of what I cherished as my personal privacy has been surrendered to government subpoenas: work files, interview tapes, even medical records (though much has been, blessedly, sealed). Moreover, in late January, the computer expert who maintains my computers informed me that my laptop had been methodically hacked by someone very "sophisticated" who removed its security patches and installed data to prevent future security patches from being installed.

Then there are the actual costs. Estimates for the Justice Department’s prosecution range from $25 million to $40 million, and likely half that for the defendant’s high-powered legal team. While both sides appear to have an infinite amount of financial resources, the New York Times, which retained media attorney Tom Julin of Hunton & Williams, does not. This is hardly a welcome expense during the most severe crisis and transformation in the media business.

There are other costs to the Fourth Estate. Media institutions need worry now that their reporters can be summoned to make the case for prosecutors whose own investigators falter through laziness or negligence. More than one reporter has told me that he no longer keep notes or tapes anymore. The message is not ambiguous: Destroy your materials or risk being compelled to testify against sources. Consider this loss to archivists and historians.

Sometime soon, a jury will hear excerpts from audio tapes (about five to six hours) that I made during my time with Posada (which was roughly 13 hours over several days in June 1998). They are battered, old RadioShack tapes — with scores of stops and starts, in deference to Posada, who set the ground rules for the interview — that were handled by a half dozen transcribers over the years, before being subpoenaed as evidence. The government will play their favorite bits, and then the defense will likely ferret out whatever they conclude might have an ambiguous meaning, though the tapes are mostly in English. (Posada worked for Firestone in Akron, Ohio, as a young man and later was the translator for Eugene Hasenfus and other U.S. soldiers during the Iran-Contra affair.)

While the tapes are protected evidence, no prohibitions have been placed on my use of them or other work materials. In this regard, Judge Kathleen Cardone has been scrupulously mindful of copyright concerns and my right to use my own research and continue working. She pointedly rejected a defense motion to prohibit me from publishing them or any research materials.

It was a small consolation, but an important one, nevertheless, and one that places the responsibility on me to put in context what Posada told me over several warm days in Aruba 13 years ago.

The El Paso jury will hear only those parts that the prosecutor and defense have selected. At some point, when the trial has concluded, I will publish the complete transcript in the interests of journalistic transparency and neutrality. Then readers can render their own verdict in the thorny case of Luis Posada Carriles.