In a surprise decision, a federal magistrate in Texas has recommended that Cuban exile militant Luis Posada Carriles be released from immigration custody.

BY ALFONSO CHARDY

Cuban exile militant Luis Posada Carriles should be released from immigration custody because the attorney general has not classified him as a terrorist and his continued detention runs counter to a 2001 Supreme Court ruling barring indefinite detention for foreign nationals who cannot be deported, a federal magistrate ruled Monday.

In a 24-page decision, U.S. Magistrate Norbert Garney in El Paso, Texas, wrote that U.S. Immigration and Customs Enforcement should put Posada under supervised release because the federal government had failed to find a country willing to take the 78-year-old exile, who has Venezuelan citizenship.

''The court recommends that petitioner's request for habeas relief be granted and that petitioner be released subject to the terms and conditions of supervised release,'' Garney wrote.

Garney's ruling is only a recommendation and will not lead to Posada's immediate release. He sent the recommendation to federal Judge Philip Martinez, who is expected to make a decision later -- either adopting or rejecting Garney's recommendation.

Posada's attorney, Eduardo Soto, told The Miami Herald Monday evening that he hoped Martinez would adopt Garney's ruling because ``normally the judge would accept the ruling of the magistrate who heard the case.''

Soto said he was elated by Garney's ruling.

''I'm so happy I'm about to start screaming,'' Soto said. ``It's tremendous news.''

Barbara Gonzalez, an ICE spokeswoman in Miami, said her agency had not reviewed Garney's ruling.

''We will study the decision when we receive it,'' she said.

Posada has been in ICE custody since May 17, 2005, when federal immigration agents detained him in Miami-Dade County hours after appearing at an invitation-only news conference near Hialeah.

Before his detention, Posada had been hiding in Miami-Dade after sneaking into the United States in March 2005.

He arrived from Honduras where he had been hiding since being freed from jail in Panama where he had been convicted in connection with an alleged plot to kill Fidel Castro in 2000.

The alleged plot was just one of many the CIA-trained Posada was accused of hatching over the years -- all of which he has denied.

In 1997 and 1998 the Cuban government accused Posada of playing a role in bombings in tourist spots on the island, and in 1976 he was arrested and charged in Venezuela with the bombing of a Cuban jetliner off Barbados.

He was initially acquitted in the case, but pending appeal he escaped from prison and wound up in El Salvador working for the nestepcovert Nicaraguan contra resupply network overseen by then White House national security council staffer Oliver North.

Posada sued ICE in federal court when the Homeland Security agency denied his release March 22, arguing he was a ''danger to the community'' and posed a ``risk to the national security of the United States.''

But Garney wrote in his opinion Monday that the ICE statement was not enough to keep Posada in detention. According to Garney, the law requires for indefinite detention a formal certification by the U.S. attorney general that a detainee is a terrorist or threat to the community. ''In this case, petitioner was never certified by the Attorney General as a terrorist or danger to the community or national security,'' wrote Garney, adding the government also had not ``moved to detain petitioner under any special circumstances.''

In its 2001 ruling, the high court said foreign nationals who cannot be deported can be held beyond six months after removal orders become final -- but only if they are deemed ``especially dangerous individuals.''

The court said those cases must be ''subject to strong procedural protections,'' but did not spell them out.