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The Singular Story of the Cuban Five
Leonard Weinglass is a well-known lawyer and civil rights activist. He has represented Pentagon Papers defendants, the Chicago 8, Angela Davis, Jane Fonda, Mumia Abu Jamal and Amy Carter, daughter of President Jimmy Carter, among others. He is currently representing the Cuban Five.
Leonard Weinglass, Le Monde Diplomatique
Five Cuban men, were arrested in Miami, Florida in September, 1998
and charged with 26 counts of violating the federal laws of the
United States. 24 of those charges were relatively minor and
technical offenses, such as the use of false names and failure to
register as foreign agents. None of the charges involved violence in
the U.S., the use of weapons, or property damage.
The Five had come to the United States from Cuba following years of
violence perpetrated by a network of terrorist made up of armed
mercenaries drawn from the Cuban exile community in Florida. For
over forty years these groups have been tolerated, and even hosted,
by successive U.S. Governments.
Cuba suffered significant casualties and property destruction at
their hands. Cuban protests to the United States Government and the
United Nations fell on deaf ears. Following the demise of the
socialist states in the early 90's the violence escalated as Cuba
struggled to establish a tourism industry. The Miami mercenaries
responded with a violent campaign to dissuade foreigners from
visiting. A bomb was found in the airport terminal in Havana,
tourist buses were bombed, as were hotels. Boats from Miami traveled
to Cuba and shelled hotels and tourist facilities.
The mission of the Five was not to obtain U.S. military secrets, as
was charged, but rather to monitor the terrorist activities of
those mercenaries and report their planned threats back to Cuba..
The arrest and prosecution of these men for their courageous attempt
to stop the terror was not only unjust, it exposed the hypocrisy of
America's claim to oppose terrorism wherever it surfaces.
Nothing reveals this more than the contrast between the U.S.
government's handling of the Five's case with that of Orlando Bosch
and Luis Posada Carriles. Both Bosch and Carriles were members,
even leaders, of the Miami terror network and self confessed
terrorists, who planted a bomb on a Cubana airline in 1976, which
exploded in midair, killing 73 people.
When Bosch applied for legal residence in the United States in 1990
an official investigation by the U.S. Department of Justice examined
his 30 year history of criminality directed against Cuba and
concluded, "...over the years he has been involved in terrorist
attacks abroad and has advocated and been involved in bombings and
sabotage." Despite that official finding he was granted legal
residence by the then President of the United States, George Bush Sr.
The case of Posada Carriles' is no less revealing. A fugitive from
justice, he "escaped" from a Venezuela prison in 1985 (with the help
of powerful "friends") where he was accused and prosecuted for
master-minding the 1976 bombing of the Cuban airliner.
Twice Posada publicly admitted that he was responsible for a series
of bombings in Havana in 1997, in which an Italian tourist was
killed and dozens of others were wounded . He was convicted by a
Panamanian Court in 2000 for "endangering public safety" by having
several dozen pounds of C-4 explosives in his possession, which he
intended to use at a public gathering at the University in order to
kill President Fidel Castro (along with what would have been
hundreds of others, mostly students, who attended that meeting). His
long career in violence and terror is undeniable.
He, too, however, became the recipient of inexplicable hospitality
from the government of the U.S.. His presence in the United States,
following a fraudulent pardon by the outgoing President of Panama,
was an open secret, but he was reluctantly taken into custody only
after giving a televised press conference. He's now housed by
American authorities, not in a prison, but in a special residence
inside a detention facility. He faces no prosecutions, only an
administrative procedure for not having appropriate residential
documents, which could lead to his deportation to a country of his
choosing. Meanwhile the U.S. has refused to extradite him to
Venezuela where he is facing charges related to terrorism.
Contrast that treatment with that of the Five who were arrested
without a struggle and immediately cast into solitary confinement
cells reserved as punishment for the most dangerous prisoners, and
kept there for 17 months until the start of their trial. When their
trial ended 7 months later (more on the trial to follow) they were
sentenced three months after 9/11 to maximum prison terms, with
Gerardo Hernandez receiving a double life sentence and Antonio
Guerrero and Ramon Labañino getting life. The remaining two,
Fernando Gonzalez and René Gonzalez, got 19 and 15 years
respectively.
The Five were then separated into maximum security prisons (some of
the worst in the U.S.), each several hundred miles from the other,
where they remain today. Two have been denied visits from their
wives for the last 7 years in violation of U.S. laws and
international norms. Protests from Amnesty International and other
human rights organizations have been rejected.
The Five immediately appealed their convictions and sentences. Their appeal was to the Eleventh Circuit Court of Appeal which sits outside of Florida, in Atlanta, Georgia. After a thorough review of the proceedings, on August 9, 2005, a distinguished 3 judge panel of the Court released their opinion, a comprehensive 93 page analysis of the trial process and evidence, reversing the convictions and sentences on the ground that the Five did not receive a fair trial in Miami. A new trial was ordered. Beyond finding that the trial violated the fundamental rights of the accused, the Court, for the first time in American jurisprudence, acknowledged evidence produced by the defense at trial revealing that terrorist actions emanating from Florida against Cuba had taken place, even citing in a footnote the role of Mr. Posada Carriles and correctly referring to him as a terrorist.
This panel decision stunned the Bush administration. Miami, with its
650,000 Cuban exiles who provided the margin of victory for Bush in
the 2000 presidential election, was officially found by a federal
appellate court to be so irrationally hostile to the Cuban
government, and supportive of violence against it, as to be
incapable of providing a fair forum for a trial of these five
Cubans. Moreover, the behavior of the government prosecutors in
making exaggerated and unfounded arguments to the twelve members of
the public who heard and decided the case, exacerbated that
prejudice, as did the news reporting both before and during the
trial.
The Attorney General of the United States, Albert Gonzalez, Bush's
former counsel, then took the unusual step of ordering the filing of
an appeal to all 12 judges of the Eleventh Circuit, calling on them
to review the August 9th decision of the 3 judge panel, a process
rarely successful, especially when all 3 judges were in agreement
and expressed themselves in such a scholarly and lengthy opinion. To
the complete surprise of the many lawyers following the case, the
judges of the 11th Circuit agreed on October 31st to review the
decision of the panel. That process is now ongoing.
It is also worth noting that prior to the August 9th decision of the
11th Circuit panel, a panel of the UN Working Group on Arbitrary
Detention also concluded that the deprivation of liberty of the
Five was arbitrary and called on the Government of the United States
to take steps of remedy the situation.
The record of the Miami trial was mammoth. The process took over 7
months to complete, making it the longest criminal trial in the
United States during the time it occurred. Over 70 witnesses
testified, including two retired generals, one retired admiral and
a presidential advisor who served in the White House, all called by
the defense . The trial record consumed over 119 volumes of
transcript. In addition there were 15 volumes of pre-trial testimony
and argument. More than 800 exhibits were introduced into evidence,
some as long as 40 pages. The twelve jurors, with the jury foreman
openly expressing his dislike of Fidel Castro, returned verdicts of
guilty on all 26 counts without asking a single question or
requesting a rereading of any testimony, unusual in a trial of this
length and complexity.
The two main charges against the Five alleged a theory of
prosecution that's ordinarily used in politically charged cases:
conspiracy. A conspiracy is an illegal agreement between two or more
persons to commit a crime. The crime need not occur. Once such an
agreement is established, the crime is complete. All the prosecution
need do is to demonstrate through circumstantial evidence that there
must have been an agreement. In a political case, such as this one,
juries often infer agreement, absent evidence of a crime, on the
basis of the politics, minority status or national identity of the
accused. This is precisely why and how the conspiracy charge was
used here. The first conspiracy charge alleged that three of the
Five had agreed to commit espionage. The government argued at the
outset that it need not prove that espionage occurred, merely that
there was an agreement to do it sometime in the future. While the
media was quick to refer to the Five as spies, the legal fact, and
actual truth, was that this was not a case of spying, but of an
alleged agreement to do it. Thus relieved of the duty of proving
actual espionage, the prosecutors set about convincing a Miami jury
that these five Cuban men, living in their midst, must have had such
an agreement.
In his opening statement to the jury, the prosecutor conceded that
the Five did not have in their possession a single page of
classified government information even though the government had
succeeded in obtaining over 20,000 pages of correspondence between
them and Cuba. Moreover, that correspondence was reviewed by one of
the highest ranking military officers in the Pentagon on
intelligence who, when asked, acknowledged that he couldn't recall
seeing any national defense information. The law requires the
presence of national defense information in order to prove the crime
of espionage.
Rather, all the prosecution relied upon was the fact that one of the
Five, Antonio Guerrero, worked in a metal shop on the Boca Chica
Navy training base in Southern Florida. The base was completely open
to the public, and even had a special viewing area set aside to
allow people to take photographs of planes on the runways. While
working there Guerrero had never applied for a security clearance,
had no access to restricted areas, and had never tried to enter any.
Indeed, while the FBI had him under surveillance for two years
before the arrests, there was no testimony from any of the agents
about a single act of wrongdoing on his part.
Far from providing damning evidence for the prosecution, the documents seized from the defendants were used by the defense because they demonstrated the non-criminal nature of Guerrero's activity at the base. He was to «discover and report in a timely manner the information or indications that denote the preparation of a military aggression against Cuba» on the basis of «what he could see» by observing «open public activities.» This included information visible to any member of the public: the comings and goings of aircraft. He was also cutting news articles out of the local paper which reported on the military units stationed there. Former high-ranking US military and security officials testified that Cuba presents no military threat to the United States, that there is no useful military information to be obtained from Boca Chica, and that Cuba's interest in obtaining the kind of information presented at trial was "to find out whether indeed we are preparing to attack them."
Information that is generally available to the public cannot form the basis of an espionage prosecution. Once again, General Clapper , when asked, "Would you agree that open source intelligence is not espionage?" replied, "That is correct." Nonetheless, after hearing the prosecution's highly improper argument, repeated 3 times, that the five Cubans were in this country "for the purpose of destroying the United States," the jury, more swayed by passion than the law and evidence, convicted.
The second conspiracy charge was added seven months after the first.
It alleged that one of the Five, Gerardo Hernandez, conspired with
others, non-indicted Cuaban officials, to shoot down two aircraft
flown by Cuban exiles from Miami as they entered Cuban airspace.
They were intercepted by Cuban Migs, killing all four aboard. The
prosecution conceded that it had no evidence whatsoever regarding
any alleged agreement between Gerardo and Cuban officials to either
shoot down planes or where and how they were to be shot down. In
consequence, the law's requirement that an agreement be proven
beyond a reasonable doubt was not satisfied. The government admitted
in court papers that it faced an" insurmountable obstacle" in
proving its case against Gerardo and proposed to modify its own
charge, which the Court of Appeals rejected. Nonetheless, the jury
convicted him of that specious charge.
The case of the Five is one of the few cases in American
jurisprudence that involves injustice at home as well as injustice
abroad. Like the trial of the Pentagon Papers concerning the war in
Vietnam, it derives from a failed foreign policy, which it exposes.
In order to achieve a political end, the criminal justice system was
manipulated by the government which consistently violated legal
norms.
The Five were not prosecuted because they violated American law, but because their work exposed those who were. By infiltrating the terror network that is allowed to exist in Florida they demonstrated the hypocrisy of America's claimed opposition to terrorism.
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