On September 11 a midlevel magistrate named Norbert Garney filed legal papers in an El Paso, Texas, court recommending that notorious Cuban-exile terrorist Luis Posada Carriles be set free. In response to a petition of habeas corpus filed by Posada’s lawyers, Garney’s twenty-three-page “Report and Recommendation” (R&R) concluded that the Bush Administration had failed to avail itself of basic legal procedures to keep Posada in jail. Posada “was never certified by the Attorney General as a terrorist or danger to the community” under the Patriot Act, according to the R&R, nor had the Justice Department presented evidence of “special circumstances” that would allow it to hold Posada for security or terrorism concerns. In light of those findings, the magistrate wrote, “the Court recommends that Petitioner’s request for habeas relief be granted, and that [Posada] be released.”

The Bush Administration is now facing the moment of truth in its handling of Posada’s case. Long considered the godfather of vicious anti-Castro violence, Posada–a k a Bambi, Comisario Basilio and Ramon Medina–has practiced the art of sabotage, bombing and attempted assassination for much of his 78 years. Yet unlike the way that many terror suspects with Middle Eastern names have been rounded up by US authorities and detained indefinitely under special anti-terrorism provisions, the Department of Homeland Security has chosen to treat the Posada problem as a simple “illegal entry” immigration proceeding. Any “special circumstances” appear to have more to do with Posada’s tenure with the CIA in the 1960s, his politically powerful right-wing Cuban-American allies in Florida and with Washington’s hostile relationship with Venezuela, from where, in 1985, Posada escaped from incarceration as a mastermind of the October 6, 1976, midair bombing of Cubana Flight 455, which killed all seventy-three passengers on board.

Since Posada was arrested May 17, 2005, after sneaking into the United States and flaunting his presence in Miami for almost two months, the Administration has struggled to avoid the political problems of prosecuting him as well as the hypocrisy of setting him free. For more than a year, the Administration has refused to respond to a formal extradition petition filed by Venezuela and instead has sought to deport Posada to a third country other than Venezuela or Cuba. (If the Administration denied the petition outright, it would be obligated under the 1973 Montreal Convention to put Posada on trial for that crime in the United States.) So far, as described in court records, US officials have attempted “to secure travel documents” for Posada to Canada, Honduras, Costa Rica, Panama, El Salvador, Mexico and Guatemala. All have said no.

Only in March, when the court was poised to release Posada on bail, did the Immigration and Customs Enforcement office issue an “Interim Decision to Continue Detention” identifying his proclivity for terrorism. “You have a history of engaging in criminal activity, associating with individuals involved in criminal activity, and participating in violent acts that indicate a disregard for the safety of the general public,” the ICE stated in a letter to Posada. “Due to your long history of criminal activity and violence in which innocent civilians were killed, your release from detention would pose a danger to both the community and the national security of the United States.”

But that letter is insufficient to hold Posada, according to Garney’s R&R; the evidence behind it or a certification by Attorney General Alberto Gonzales that Posada is a terrorist must be presented to the immigration court. Certainly the evidence is overwhelming. The Posada files include court records of his conviction in Panama on charges of endangering public safety after he was caught in November 2000 with thirty-three pounds of C-4 explosives in yet another plot to assassinate Castro; his admissions in 1997 to Ann Louise Bardach of the New York Times that he had orchestrated a series of hotel bombings in Havana that took the life of an Italian businessman; and volumes of US intelligence documents that identify him as one of the perpetrators of the 1976 bombing of the Cubana jet. “We are going to hit a Cuban airplane,” a secret CIA intelligence cable reported Posada as saying days before the aircraft exploded after takeoff from Barbados.

As the thirtieth anniversary of that atrocity approaches, Posada has become a litmus test of George W. Bush’s mantra that no nation should harbor terrorists and that every nation must do its part in bringing those who commit acts of terrorism to justice. Families of those who perished on the plane are bringing pressure on the Administration to hold Posada accountable. In Cuba the Communist Party newspaper, Granma, published a declaration on September 19 from the Comité de Familiares de las Victimas that stated, “Unlike the families of the 9/11 victims…we know where those who assassinated our families are, who is protecting them, and who is harboring them.” In a letter dated September 20 to Attorney General Gonzales, Roseanne Nenninger, the sister of Raymond Persaud, a 19-year-old Guyanese medical student killed on the plane, appealed “in the name of justice for my brother, and the other 72 passengers of that doomed plane,” for Posada to be certified as a terrorist. “If Luis Posada Carriles does not meet the definition of a terrorist,” she noted, “it is truly hard to imagine who does.”

Even so, the White House appears internally conflicted on how or even whether to proceed. On September 21 the Justice Department filed papers requesting an extension to respond to Garney. The government’s motion labeled Posada “an admitted criminal” and “a terrorist alien” whose release “could have significant national and foreign relations consequences.” But “due to the nature and complexity of the case,” government lawyers declared, “additional time is necessary to conclude the consultations and deliberations within the United States Government.”

The extension request, through October 5, means that the Administration’s decision will likely become public on the actual anniversary of the bombing of Cubana Flight 455. It is against that historic backdrop of the most heinous act of international terrorism ever committed in Latin America that the fate of Luis Posada Carriles could be determined–and along with it, the credibility of the President’s anti-terrorist campaign.