By Trevor Bach
By Francisco Alvarado
By Trevor Bach
By Michael E. Miller
By Allie Conti
By David Villano
By Jose D. Duran
By Michael E. Miller
In 1978 the Chilean armed forces dictated for themselves a sweeping amnesty law that provided blanket immunity from prosecution for security-force members. Until this year, nearly a decade after Chile returned to civilian rule, no judge had had the temerity to investigate any of the hundreds of rights-abuse cases that had been piling up and collecting dust.
Then something happened thirteen months ago that altered Chile's political and judicial landscape. Augusto Pinochet, retired dictator, was arrested in London on a warrant from a Spanish judge. After more than a year of legal wrangling, he remains under house arrest, awaiting extradition to Spain for trial on torture charges.
With Pinochet out of the country and civilian rule established firmly enough to be considered unassailable, Judge Guzman took a courageous step forward by indicting 30 military officers on human-rights-abuse charges. This past September he included Armando Fernandez Larios in the Caravan of Death indictment, charging him with nineteen counts of kidnapping.
Human-rights lawyers in Chile say the flurry of indictments was made possible by Pinochet's arrest abroad and a watershed Supreme Court decision this past July. The court ruled that the 1978 armed-forces amnesty was no longer applicable in cases of desaparecidos, so-called disappeared people. Victims whose bodies have not been found may be considered kidnapped, and such unresolved kidnappings are continuing events beyond the period covered by the amnesty. (None of the nineteen counts pending against Fernandez refers to the murder of Winston Cabello, whose body was exhumed and identified.)
This past October 7 the Chilean Supreme Court approved Judge Guzman's request for Fernandez's extradition from the United States and relayed it to the executive branch for transmission to Washington, which is expected to take place in the coming days. This long-gestating turn of events has made Miami-Dade resident Armando Fernandez a unique figure in the annals of international jurisprudence. In 1978 the U.S. government sought Fernandez's extradition from Chile in the Letelier case. Chile denied the request. Now it is Chile seeking to extradite Fernandez from the United States. According to several Justice Department sources familiar with the Fernandez case, such a convoluted situation is without precedent.
As complicated as that sounds, it is in fact even trickier.
According to attorney Steven W. Davis, part of a team of lawyers from three Miami law firms representing Fernandez, the government of the United States, in making its deal with Fernandez in the Letelier bombing case, promised him he would never be sent back to Chile.
But Shawn Roberts, legal director for the San Francisco-based Center for Justice and Accountability, which represents the Cabello family, argues that promises made to Fernandez in 1987 may not be valid now; much depends on how honest Fernandez was with U.S. officials. "Such a promise would not be binding," she says, "if it's found that Mr. Fernandez was not forthcoming in disclosing his prior actions."
Julie Ferguson, the Cabello family's attorney in Miami, notes that with each passing year, more previously secret U.S. government information regarding Pinochet's coup and its aftermath is coming to light. "For years it was, 'We didn't know this and we didn't know that.' But it turns out we knew a hell of a lot," she says. "In Fernandez's case there may have been questions that were not asked on purpose, a kind of willful blindness."
Current and former federal prosecutors decline to spell out precisely what is contained in the 1987 agreement with Fernandez. Channing Phillips, the assistant U.S. Attorney supervising the still-open Letelier bombing case (charges remain pending against DINA's former top officials), will not comment on the degree of Fernandez's protection. Justice Department spokesman Myron Marlin will only say that the deal with Fernandez is under court seal and that "it speaks for itself."
Fernandez attorney Steven Davis insists that the assurance given his client in 1987 is nothing less than a blanket promise that the former secret agent would not be returned to Chile under any circumstances. "And when the extradition request comes," Davis adds, "we would expect the U.S. to fulfill its commitment to him."
Whatever the outcome of the extradition request, the United States government has made extraordinary concessions to Fernandez that amount to a form of protection, at least against deportation. He lives here under what Davis describes as INS special status. "It's a de facto green card," he explains. "He is authorized to reside and work here." And unlike many other immigrants, he can do so without worrying about his criminal past. Under the harsh terms of a 1996 federal law, thousands of legal immigrants are facing deportation for having committed far less serious crimes. "So what's the deal?" asks Julie Ferguson. "Other people are being deported because they stole a typewriter. And Fernandez gets to stay?"
The Cabello family's suit is founded principally on two federal laws -- the Alien Tort Claims Act and the Torture Victims' Protection Act -- which provide jurisdiction in U.S. courts for human-rights violations committed abroad. The laws allow plaintiffs to seek monetary damages from those they accuse of wrongdoing, though Ferguson is quick to say, "The Cabellos are not in this for financial gain." Winston Cabello's sister, Zita Cabello-Barrueto, does acknowledge that the family would like to see Fernandez suffer financially as further punishment for his alleged crimes, but she says the major motivation for the lawsuit is to augment, by means of a trial, the public record regarding atrocities committed under Pinochet.