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Then the case against Posada almost fell apart. Under the sway of President George W. Bush and a Republican, maniacally anti-Communist Congress, the subcommittee and U.S. Attorney General Michael Mukasey did nothing. And on May 8, 2007, U.S. District Judge Kathleen Cardone freed Posada, criticizing prosecutors for "fraud, deceit, and trickery."
"The government's tactics in this case are so disgraceful and scandalous that they violate the universal sense of justice," she wrote.
The next year, an appeals court threw out Cardone's decision and ordered a new trial. This time, though, Posada wouldn't be charged with illegally entering the country — only with lying to federal agents. A wrinkle was added when Bardach's notes were obtained, and he was charged with lying about the Havana bombing.
Worse, in the leadup to the trial, the court has buckled to prosecutors and sealed almost all the investigative documents related to Posada. Last July 10, the Miami Herald and the Associated Press tried to intervene in the case. Their idea: The government cannot haphazardly seal documents unless they are classified "secret." But the court has essentially rebuffed the attempt, sealing more than 300 documents just this year.
"Badly done," says Adolfo Jimenez, lawyer for the Herald and the AP. "The whole case is essentially being kept from the public."
Cardone recently announced the trial would probably last two months. A wacky group of leftists, the National Committee to Free the Cuban Five, has announced it will protest during the trial. And last October, Kornbluh's National Security Archive published declassified government documents showing Posada even betrayed the exile community. Under the code name Pete, he informed the CIA about the activities of leaders including the now-departed Jorge Mas Canosa.
So here we are. The government destroyed much of the evidence. A respected federal judge declared prosecutors guilty of fraud. And while letting a rather important case melt away, the government is battling not with its enemies, but with the press (Bardach, the Herald, and the AP).
Prosecutors might even lose the pathetically limited remaining case they have against one of the most dangerous ideologues in the Western Hemisphere. But Kornbluh remains hopeful. "This trial can confirm what everybody already knows," he says. "Luis Posada is a leading purveyor of terrorism."
Writing fellow Erik Maza contributed to this report.