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The Case of the Cuban Five: American Justice as a Political Weapon

Michael Collins

October 19, 2009

Americas Program Report Center for International Policy (CIP)

The decision by a Miami court on Tuesday October 13 to reduce Antonio Guererro's life sentence to 22 years imprisonment is the latest chapter in the ongoing legal battle to free a group of men known as the Cuban Five. Largely anonymous in the United States yet celebrities in their native Cuba, their conviction symbolizes the fraught relationship that exists between the two countries. The re-sentencing is the result of a decision taken last year by the U.S. Court of Appeals for the Eleventh Circuit, which stated that the court in Miami, where the original trial was held, may have erred when it imposed sentences on three of the five men. The hearing takes place at a time when many Cubans and Americans have high hopes for improved diplomacy between their nations.

The case of the Cuban Five is inextricably linked to the ongoing standoff between Havana and Washington. In the early 1990s, the Cuban government sent a group of men known as The Wasp Network to the United States to infiltrate anti-Castro organizations, which had been operating from Miami with apparent impunity since the 1960s. After these anti-Castro organizations orchestrated the bombings of Cuban hotels and the shooting down of a Cuban passenger aircraft near Barbados in 1976, the Cuban government decided to take covert actions, believing that the United States was not interested in helping prevent more attacks.

One of the groups targeted by The Wasp Network was Brothers to the Rescue (BTTR). The group was made up of Cuban exiles whose initial goal was rescuing Cuban rafters who were emigrating from the country, but whose focus changed after new U.S. immigration policy mandated that rescued rafters be sent back to Cuba, rather than taken to the United States. The group then began chartering planes to drop anti-Castro leaflets in Cuba, making repeated illegal incursions into Cuban airspace. Cuban authorities made numerous complaints to U.S. aviation authorities, but this failed to put a stop to the flights. On February 24, 1996, two BTTR planes were shot down by the Cuban Air Force, resulting in the death of the four pilots on board. The deaths provoked outrage in the United States, and led directly to the strengthening of the U.S. embargo on Cuba via the controversial Helms-Burton Act.

The ensuing crackdown also led to the arrest in 1998 of Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando González, and René González. In June 2001, after a seven-month court case in Miami, the men were found guilty of a series of espionage-related crimes. Gerardo Hernández was also convicted of conspiracy to murder for allegedly passing flight information to the Cuban government that led to the attack on the two BTTR planes. The men received a range of sentences, from 15 years for René González, to two consecutive life sentences for Gerardo Hernández.

The original case was not without controversy. To begin with, defense attorneys vociferously objected to the decision to hold the trial in Miami. The lawyers argued that it was impossible to have an objective case with an impartial jury in a city with the country's highest concentration of Cuban exiles. The case took place not only against the backdrop of the BTTR deaths, which had incensed the Cuban exile community, but also began a mere eight months after the FBI removed Elián González from his Miami relatives, in what was the final act of a heated international custody battle.

Despite this backdrop, the move for a change of venue was dismissed by Judge Joan Lenard, and the trial proceeded in Miami. Later, the UN's Working Group on Arbitrary Detention stated that, "the trial did not take place in the required climate of impartiality." Indeed, in August 2005 a federal appeals court in Atlanta quashed the convictions and demanded a retrial on the ground that prejudicial pre-trial publicity and pervasive hostility in the Miami area toward the Cuban government had made it impossible for the five men to receive a fair trial in that venue. Nevertheless, the U.S. government successfully appealed the decision and the convictions remain in place.

The nature of the charges and the length of the sentences are also a cause for concern. While the prosecution tended to focus on espionage as the core of their case, they also tacked on many other minor offenses such as "possession of fraudulent identification documents" and "making a false statement in a passport application," enabling them to achieve longer sentences. To put the case in perspective, a previous espionage trial held in Miami involved Mariano Faget, one of the most senior officials at the Immigration and Naturalization Service, who was convicted of disclosing classified government information to the Cuban government. The Cuban-born American received a 5-year sentence. In the case of the Cuban Five, the smallest sentence handed down was 15 years.

One of the men, Gerardo Hernández, was not merely charged with espionage, but also conspiracy to murder. This conviction is equally controversial, as there is great debate over whether or not the shooting down of the BTTR planes took place in Cuban airspace or in international airspace.

Lamentable as the deaths may be, under international law, nations have the right to shoot down unauthorized aircraft that violate their sovereign airspace. The U.S. government claimed that the attack took place over international airspace and was therefore illegal, whereas the Cubans disputed this fact. An independent investigation by the International Civil Aviation Organization concluded that although the two planes were shot down marginally inside international airspace, they "were flying within the MUD-8 and MUD-9 danger areas within Havana FIR (Flight Information Region)."

Wayne Smith, former chief of the U.S. interests section in Havana and director of the Cuba project of the Center for International Policy, sums up the legal inaccuracy of the conviction when he comments that "To prove that Hernández conspired to commit murder, i.e., an 'unlawful killing,' the government had to prove beyond a reasonable doubt that the conspirators planned the shoot-down to take place in international airspace rather than over Cuba."

It is therefore unthinkable that the prosecution could prove, beyond any reasonable doubt, that Gerardo Hernández was guilty of conspiracy to murder. The dubious nature of the charge is underlined by the fact that during the trial, the prosecution attempted to have the murder charge dropped, but were rebuffed by the judge. Jason Frazzano, who worked on the case alongside defense lawyer Leonard Weinglass, states that "The original judge (Lenard) … refused prosecutorial attempts to drop the murder charges. This is an extremely unusual thing for a judge to do; to refuse a prosecutorial attempt to drop a charge."

The questionable nature of the Cuban Five's convictions is further emphasized by an examination of the prosecution's original claim that the men represented a danger to U.S. national security. The notion that the men posed great risk to the United States permeated the prosecution's case, and undoubtedly played a role in the handing down of harsh sentences. Nevertheless, evidence brought to light this year has shown that the men were never a security threat. In October of this year, Assistant U.S. Attorney Caroline Heck Miller admitted that no national security damage assessments existed in relation to the five men. The fact that there are no damage assessments means that the Cuban Five were never deemed a national security risk, and therefore the government cannot justify their lengthy prison sentences.

The case also continues to receive widespread attention because of the human rights issues involved. According to the UN, the men were denied access to a lawyer for the first two days following their arrest, and were held in solitary confinement for 17 months until their trial began. In addition, Amnesty International has accused the U.S. government of acting "contrary to standards for humane treatment" given its constant refusal to grant temporary visas to two of the wives of the Cuban Five so that they could visit their husbands.

The previous administration of George W. Bush found itself at the center of controversy after it emerged that it had been paying journalists from the Miami Herald to write unfavorable stories about the Cuban government. Partnership for Civil Justice Fund, a nonprofit law group, is currently suing the U.S. government for information on the contracts the government had with Miami-based journalists. It is believed that many journalists who covered the Cuban Five trial were on the White House's payroll. This would seem to buttress earlier claims that media bias affected the outcome of the case.

Unfortunately, the Obama administration seems to have picked up where Bush and Company left off. During the summer, while the U.S. Supreme Court was considering the case of the Cuban Five for appeal, President Obama's solicitor general, Elena Kagan, requested that the Supreme Court decline to hear the case. In her writ she stated that, with respect to the bringing down of the BTTR planes, "Neither plane had entered Cuban airspace". This affirmation was made despite clear evidence to the contrary from the International Civil Aviation Organization's independent investigation. The Supreme Court subsequently acquiesced to the government's demands. In October, the U.S. government was also accused of resisting a judge's order concerning the disclosure of classified material vital to the case.

For a government that promised a change in attitude toward Cuba, the Obama administration's decision to block the Supreme Court appeal is deeply disheartening. Perhaps the new government has failed to grasp the importance this case has for Cuban citizens and for U.S.-Cuba relations as a whole. If Obama wishes to put daylight between his Cuba policies and those of the Bush administration, then a review of the Cuban Five's case would be a good place to start. These men may not be innocent of the initial charges of espionage, having admitted during the trial that they had infiltrated several anti-Castro organizations with a view to protecting their country from more attacks.

Nevertheless, the additional charges are largely spurious and the harsh sentences lack proportion.

Had it not been for the politicization of the case, the accused would have been free men a long time ago. Re-sentencing the men is simply not good enough, given that the men were denied the right to a fair trial to begin with, and based on the fact that it is the same judge from the original case, Joan Lenard, who presides over re-sentencing hearings at the same Miami venue. There is also substance to the argument that the Cuban Five would never have needed to infiltrate anti-Castro organizations if Washington had taken appropriate action against the terrorist groups which operate in Miami.

The irony of Washington's "War on Terror" is not lost on the Cuban government, which continues to see a double standard in the U.S. government's treatment of terrorists: the United States has consistently ignored Cuban requests for the extradition of Luis Posada and Orlando Bosch, who are suspected of carrying out deadly terrorist attacks against Cuban citizens.

If the Obama administration truly seeks progress on its Cuban policy, then it must push for a retrial of the Cuban Five, pursuant to the recommendations of the Atlanta appeal court in 2005. A gesture of this nature would go a long way in ameliorating relations with Cuba, and would help both countries as they embark on the arduous task of rebuilding 50 years of broken diplomacy.

Michael Collins (michael.mc.collins(a)gmail.com) is a research assistant for the Americas Program of the Center for International Policy (www.americaspolicy.org).

This article was originally published on the NACLA website (https://nacla.org/node/6166).

 

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