Appeal Process Exposes the Grave Injustice Surrounding Miami Cuban Spy Trial

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Alana Yu-lan Price and Sara Clement, research associates at the Council on Hemispheric Affairs, explain how five innocent Cuban men have ended up in the Bush junta’s jails.

 

Plastered across billboards, banners, and t-shirts, the faces of the Cuban Five fill the streets of Havana. As a result of their efforts to infiltrate anti-Castro terrorist groups, these five confessed spies were convicted and sentenced to unusually long and severe prison terms during a controversial trial in Miami. Although the Cuban Five have achieved martyr status on the island, only a small percentage of U.S. citizens has even heard of their case. However, this situation is quickly changing as U.S. grassroots organizations create informational websites and host educational meetings on the topic. Mobilizations to free the Five already have occurred in New York City, Washington D.C., Los Angeles and San Francisco. Likewise, a resolution before the British Parliament has attracted the signatures of 99 members. More than 125 groups from 64 countries in Latin America, Europe, Asia and Africa have protested the plight of these prisoners. On the legal front, lawyers of the Five filed briefs with the 11th Circuit Court of Appeals in Atlanta on April 7, 2003, and on May 13, 2003, to appeal the district court’s denial of their motion for a retrial. The National Jury Project and the National Lawyers Guild, backed by the International Association of Democratic Lawyers, submitted amicus curiae or “friend of the court” briefs on behalf of the prisoners. The U.S. government is expected to file its response to the defense attorneys’ briefs on Sept. 15. “Lawyers agree that the law is on the side of these men,” said Leonard Weinglass, the distinguished trial lawyer defending Antonio Guerrero of the Cuban Five, “but as in all political cases, ideological factors are swaying the outcome of the case. Only if there is broad popular support for the Five will the courts be compelled to follow the law.” Needless to say, Washington would prefer to ignore the embarrassing similarities between the grounds used by Havana to prosecute and sentence 75 Cuban dissidents to lengthy jail terms and those used by the U.S. to incarcerate the Cuban “spies” for equally long terms under harsh conditions and on little hard evidence.

 

Trial basics

 

Gerardo Hernández, Luís Medina (Ramón Labañino), Antonio Guerrero, Rubén Campa (Fernando González), and René González—the “Cuban Five”—were arrested by the FBI in September 1998. The accused were indicted on 26 counts ranging from minor offenses concerning the falsification of identity, to more serious charges of conspiracy to commit espionage and murder. Due to a lack of incriminating evidence, prosecutors chose to pursue conspiracy charges rather than those of espionage and murder. Court-appointed public defenders argued the case during a six month trial that concluded on June 8, 2001, and after five days of deliberation, the jury found the defendants guilty on all counts. The December 2001 sentencing hearing before United States District Judge Joan A. Lenard, which followed their conviction, yielded the most severe punishments permitted by law—prison terms ranging from 15 years to two life sentences plus 15 years. Judge Lenard repeatedly refused petitions for a change of venue during the trial, despite Miami’s history as a prejudicial hotbed concerning U.S./Cuban issues. Similarly, the judge thwarted later motions to secure a new trial. At this point, Weinglass is spearheading the defendants’ legal challenge aimed at securing their ultimate release. After being found guilty, the Five were scattered across the country to penitentiaries in California, Texas, Colorado, Wisconsin and South Carolina, which represents a clear logistical obstacle for their legal counsel.

 

Wasps that didn’t sting

 

Legal experts have questioned the legitimacy of both the core allegations against the Five and the courtroom proceedings that led to their conviction, including Judge Lenard’s debatable deportment. Not contesting their direct ties to the Cuban government, the defendants vehemently deny the allegation that their intelligence operation posed even a remote threat to U.S. national security. Instead, they claim to have assumed alternate identities for the sole purpose of undermining the plans of radical U.S.-based Cuban-exile groups that commit terrorist acts against their homeland, and in violation of U.S. law.

 

The Cuban agents belonged to a low-budget operation aptly named La Red Avispa (the Wasp Network). Working within this network necessarily involved camouflaging one’s true identity: one agent committed to memory 30 pages of fake personal history; one posed as a janitor to scrutinize movements at the U.S. naval base at Boca Chica, Florida; and another infiltrated a Cuban exile organization. Following three years of FBI surveillance of their activities, 14 members of the network were arrested. Of these, five (the “Cuban Five”) maintained their innocence, four fled to Cuba, and five received 3½- to seven-year sentences after pleading guilty to the minor charge of failing to formally register as a foreign agent.

 

Federal authorities had compiled evidence by searching apartments and intercepting communications between the Cuban agents and officials on the island. However, despite its thorough review of the documents transmitted to Havana, the FBI was unable to produce a single page of classified material suggesting that the “spies” ever accomplished their purported goal of espionage. Assuring the American public of the impenetrability of the Boca Chica naval station and other military bases of the Southern Command, the Pentagon maintained that “there are no indications that they [the Cuban agents] had access to classified information.” Recovered pilfered documents did, however, outline the agents’ rather innocuous actions at the Florida military base: the monitoring of “unusual exercises, manoeuvres, and other activity related to combat readiness.” Accused of such crimes as counting departing planes, the Five transmitted information that was generally accessible to any curious onlooker.

 

Similarly shaky claims led to the conviction of Gerardo Hernández—the member of the Five who successfully infiltrated a Miami exile organization—for conspiracy to commit murder. Prosecutors based the charges against Hernández on the accusation that he was tangentially connected to the Cuban government’s 1996 decision to shoot down two planes belonging to the Miami exile group, “Brothers to the Rescue” (BTTR) that Havana maintains repeatedly infringed on Cuban airspace. It was determined that Hernández had communicated with Havana prior to the attack, notifying officials that no Cuban agents would be aboard the aircraft and supplying the exile group’s flight plans, which were also already accessible through the Federal Aviation Administration. Although the subsequent shootdown was a decision entirely made by Cuban island authorities, and reflected Havana’s mounting animosity toward BTTR provocations, prosecutors likened Hernández’s minimal involvement to “the unlawful killing of human beings with malice aforethought.” Eventually, even the prosecution was forced to concede that it lacked sufficient evidence to prove Hernández guilty of conspiracy to commit murder. The U.S. government formalized this concession by filing an emergency motion—called a Writ of Prohibition—which acknowledged that securing a conviction would be an “insurmountable hurdle” for the U.S. Attorney’s Office. Apparently, the Miami jury was more convinced of Hernández’s guilt than the prosecution: in a decision that defence lawyer Weinglass characterized as “unique in the annals of American jurisprudence,” the jury convicted Hernández of a charge that even the prosecution had ceased to support.

 

Allegations of espionage—a conspiracy theory

 

The U.S. government was able to incarcerate the Cuban Five largely because of the peculiar nature of the federal conspiracy statute. In order to obtain guilty verdicts, the U.S. government was not required to prove that the defendants amassed pages of classified material; instead, it only needed to demonstrate that they had agreed to spy. The conspiracy statute itself has drawn criticism from legal experts. For example, a Harvard Law Review article emphasizes the particular difficulty of directly proving the existence of an agreement that is, by nature, concealed. The author warns that, “in their zeal to emphasize that the agreement need not be proved directly, the courts sometimes neglect to say that it need be proved at all.” In the context of Miami’s highly politicized, anti-Castro environment, such freedom to return a guilty verdict without convincing evidence is a license to enshrine prejudice.

Protesting prison conditions

The unjustifiably harsh treatment of the Cuban Five within the U.S. prison system has roused the concern of a growing number of observers. Once in jail, the Cuban political prisoners spent significant intervals—some up to 17 months—in solitary confinement, commonly designated as “the hole.” Solitary confinement is usually reserved for prisoners who have committed violent acts within prison; the Cuban Five were not accused of any violent acts, either inside or outside prison. Earlier this year, the Justice Department cited national security concerns as grounds to subject the prisoners to inhumane conditions. Consequently, the Five—wearing only underwear—were confined to cells with perpetually blazing lights.

 

Attorney General John Ashcroft was legally able to place the Cuban Five in solitary confinement because of the Special Administrative Measures put at his disposal after September 11. Intended to “ensure that prisoners loyal to a foreign power do not carry out activities on behalf of that country through phone calls or other contacts,” the internationally-condemned special measures limited the inmates’ basic communication with family and legal counsel; they were lifted after one month in response to pressure from within the U.S. as well as from abroad. Because the administrative measures had barred adequate access to his client, defence attorney Weinglass was afforded an extension for the filing date of his most recent brief, which calls for a retrial due to the inescapable prejudice brought about by the use of a Miami-based jury. Weinglass intends to explore options for legal action against the U.S. authorities in order to redress the unprecedented harsh treatment of the Five.

 

An “impartial” jury

 

The Miami venue of the trial clearly compromised its fairness because of the immoderate political views of the dominant Miami exile community that made the selection of an impartial jury an impossible task. Professor Lisandro Pérez, Director of the Cuban Research Institute at Florida International University, describes the pervasiveness within the Miami community of Cuban exile ideology, which expresses “uncompromising hostility” toward the Castro regime and its agents. This strong sentiment, reenergized by the Elián González saga less than a year prior to the trial of the Cuban Five, dominated the proceedings, as federal attorneys repeatedly played on the preexisting prejudices of the jury. Many potential members of the panel requested to be excused from their civic duty for fear that giving an “unsatisfactory” verdict would result in substantial repercussions against them. The court continued to document jury members’ apprehensions as the case unfolded; several jurors expressed unease when the aggressive media coverage of the story uncovered their identities. As noted by the National Jury Project in its amicus brief, “the Court might have sequestered the jury, issued collateral orders restricting the conduct of third parties which could influence the jury, or undertaken various other curative measures… the Court did not effectively cure a stream of events which compromised the integrity of the jury.” Acting on an insight that Judge Lenard apparently lacked, the organizers of the Latin Grammy Awards celebration—which happened concurrent with the trial—eventually decided to move their event away from its planned Florida venue, in anticipation that Miami’s politicized environment would prevent a courteous and safe treatment of participating Cuban artists.

 

Miami-style litigation

 

During the trials of the Cuban Five, the prosecution’s antics egregiously catered to Miami’s anti-Castro bias. Its opening and closing arguments equated the Castro regime with Hitler’s morally reprehensible “final solution” and the Pearl Harbor attack. U.S. Attorneys repeatedly referred to the defendants’ ambition “to strike at the very heart of our national security system and our very democratic process,” and to destroy America. Such accusatory, if not outrageously incendiary language was particularly offensive in light of a motion brought before the Court by the same Federal prosecutor’s office on June 25, 2002 in request of a venue change for Ramirez v. Ashcroft, a case concerning racially motivated employment discrimination. In Ramirez, the motion for a change of venue was granted, allowing for the civil case against the Attorney General to be tried outside of the politically charged Miami venue. Contradicting its position in the Cuban Five case that Miami was a “diverse, and politically non-monolithic community” capable of housing a fair trial, the U.S. Attorney’s Office argued in Ramirez that it was “virtually impossible” to ensure a fair trial for the Government in Miami-Dade County, given that jury members would inevitably be “infected by…bias and preconceived opinions.” This sudden change of heart by the prosecutors suggests that justice in Florida is far from being the U.S. Attorney General’s top priority, at least when it comes to the Cuban Five.

 

The “necessity defence” of the Cuban Five

 

Professor Erik Luna of the University of Utah College of Law contends that the trial judge erred in refusing to instruct jurors on relevant legal precedence. Luna submitted an amicus brief condemning the lack of attention given to the “necessity defence,” often called the “lesser evil defence.” In a recent case before the First Circuit Court of Appeals, the Court upheld the necessity defence argument where the defendants can show that “they (1) were faced with a choice of evils and chose the lesser evil, (2) acted to prevent imminent harm, (3) reasonably anticipated a direct causal relationship between their acts and the harm to be averted, and (4) had no legal alternative but to violate the law” (United States v. Ayala).

 

The applicability of the “necessity defence” to the Cuban Five should have been explored further in light of the defendants’ mission to monitor Washington-condoned, Miami-based terrorism against Cuba. The U.S. government has violated international anti-terrorism treaties by ignoring Havana’s repeated requests for Washington to curb the violence of anti-Castro exile groups. Luna’s brief argues that the U.S. government had left the Cuban defendants no alternative but to try to protect themselves as well as the larger society from imminent harm by infiltrating and monitoring terrorist groups in the U.S. Following the same logic in its own anti-terrorist efforts, Washington routinely justifies breaking other countries’ laws in order to keep its own investigators camouflaged.

 

U.S.-based groups mastermind terrorism against Cuba

 

U.S.-sheltered Cuban exile groups have harassed, wounded and at times murdered Cuban citizens as well as Cuban diplomats abroad since shortly after the island’s 1959 revolution, routinely employing terrorist tactics such as car bombs and airplane hijackings. Following the Miami-organized 1976 bombing of a Cuban commercial airliner as it flew civilians from Venezuela to Cuba, and the 1976 car-bomb assassination of Chile’s former foreign minister, Orlando Letelier, in which anti-Castro Cuban exile operations were involved, the U.S. Senate held formal hearings on “terrorism in the Miami area,” which thoroughly documented the violence routinely practised by the exile community.

 

However, U.S. authorities failed to make use of the inflammatory information gathered for the hearings to break up Miami-based terrorist groups, presumably due to political considerations. Consequently, indiscriminate bombings of civilian "targets," murderous conspiracies against those who support rapprochement with Cuba, and assassination plots aimed at Cuban leaders and diplomats have continued into the present era. Washington conveniently has ignored the open organizing of terrorist forces in Miami, turning, for example, a blind eye to New York Times articles reporting that even the supposedly non-violent Cuban-American National Foundation (CANF) has all along maintained close ties to terrorist groups such as “Alpha 66” and “Acción Cubana,” with the latter groups functioning "as the military wing to the Foundation's political wing."

 

The U.S. government condones terrorism against Cuba

 

As a signatory of numerous international anti-terrorist treaties, the White House has an indisputable obligation to prevent terrorist attacks against Third nations launched from American soil. The UN Resolution 1373, which was sponsored by the United States in the wake of the terrorist attacks of 9/11, reaffirms that “every State has the duty to refrain from…acquiescing in organized activities within its territory directed towards the commission of [terrorist] acts."

The Bush administration, which never hesitates to denounce international terrorism elsewhere, has consistently neglected the obligations set out in the resolution it formulated to deal with the scourge in other parts of the world when confronting terrorism in its own backyard. Cuba has repeatedly provided the U.S. with comprehensive dossiers of information about exile terrorists and their activities, hoping to hasten the prosecution of these criminals and to prevent future acts of violence. The Cuban ambassador to the United Nations has even turned to the UN Security Council, asking that exile terrorism be addressed by the United States or the international community. However, rather than address Havana’s genuine fears concerning U.S.-based terrorism, Washington has responded by taking an even harder anti-Cuba stance. When Cuban officials provided information about exile violence to the Bureau in June 1998, the FBI used the information not to prevent anti-Cuban terrorism and investigate and prosecute exile terrorists, but to arrest the defendants in this case. Luis Posada Carriles, a Miami exile who claimed responsibility for organizing a string of bombings of Cuban hotels, restaurants, and nightclubs in 1997, neatly summed up the situation in an interview with the New York Times: "As you can see," he said, "the FBI and the CIA don't bother me, and I am neutral with them."

Adding insult to injury, Washington has allowed convicted anti-Castro terrorists to walk free and to continue their message of violence in Miami. Most notoriously, President Bush’s father allowed the notorious Cuban exile terrorist, Orlando Bosch, who organized the 1976 Cuban airliner bombing that killed 73 civilian passengers, to walk the streets of Miami a free man. According to an official U.S. government report, Bosch’s terrorist acts include bombings of Cuban embassies and attempted assassinations of high ranking Cuban diplomats. Nevertheless, on the recommendation of Florida Governor Jeb Bush, George Bush overruled the Justice Department in 1990 and released Bosch. Similarly, George W. Bush in 2001 permitted the release of Virgilio Paz and Jose Dionisio Suarez, two Miami exiles who had served prison time for planting the 1976 car bomb—masterminded by Pinochet’s secret police—that killed Orlando Letelier, who had served as foreign minister under Chilean President Salvador Allende.

Furthermore, when handing down sentences to the Cuban Five, Judge Lenard effectively protected Miami-based terrorists from further Cuban government scrutiny. Once González nears the end of his 15-year sentence and is paroled, the judge has prohibited him from “associating with or visiting specific places where terrorist individuals or groups can be found or that they are known to frequent." The judge’s sentence implicitly admits the existence of anti-Cuban terrorist groups in the U.S. and seeks to keep González from attempting to monitor them again.

 

The final straw: Washington’s empty accusations of Havana-based terrorism

 

Washington’s unsubstantiated inclusion of Cuba on the U.S. State Department’s list of state-sponsored terrorist countries—alongside Iran, Iraq, Libya, North Korea, Syria, and Sudan—involves an irony almost too harsh to countenance. Even close allies, as well as U.S. governmental officials, fail to share the Bush administration’s view of Cuba as a terrorist threat. “We are not in agreement with the U.S. view that Cuba sponsors terrorism,” said British Energy Minister Brian Wilson at a news conference in Havana last October. Not once has the UN accused Cuba of violating its 12 counterterrorism accords, all of which Cuba signed voluntarily. “It is outrageous that they include Cuba only for political reasons,” said U.S. Congressman James McGovern (D-Mass.), in requesting that Secretary of State Powell remove Cuba from the list this March.

 

President Reagan originally labelled Cuba as a “state sponsor of terrorism” in 1982 because of its support of guerrilla fighters in El Salvador. By 1992, the State Department had publicly verified Castro’s claim that he had ceased providing material support to revolutionary groups abroad, yet Washington refused to remove Cuba from the list. During the late 1990s, both President Clinton’s special advisor on Cuba, Richard Nuccio, and the Pentagon released comprehensive reports concluding that Cuba neither poses a threat to U.S. national security nor belongs on the terrorist list.

 

Currently, Washington justifies Cuba’s official terrorist status by pointing fingers at its biomedical and pharmaceutical industry’s potential to engage in dual usage research, and by accusing Castro of granting residence to Colombian insurgents and Basque separatists. The State Department’s lame explanation of Cuba’s inclusion in its terrorist list in 2001 also accused Castro of being a terrorist sympathizer for allegedly harbouring a number of Chilean terrorists and U.S. fugitives.

 

Although the State Department’s most acknowledged rightwing ideologue, Undersecretary for Arms Control John Bolton, continues to use the biological weapons argument in informal settings to rally anti-Castro sentiment, he declined a formal request to substantiate his claims before a Senate subcommittee, presumably because he lacked the evidence to back his charges. After reviewing the latest high-level State Department briefing he received from the intelligence community in May 2002, Jimmy Carter concluded that claims concerning Cuba’s involvement in terrorist activities were false. Washington’s accusations against Cuba rely on the fact that its sophisticated biotech industry could produce bioweapons, not on any evidence that it has. As Secretary of State Colin Powell said, "we didn't say it actually has some weapons but that it has the capacity and capability to conduct such research." In a debate on the House floor, Rep. Jim McGovern (D-MA) pointed out that this capacity is shared by "every single country in the world that produces aspirin."

 

Concerning the accusation that Cuba harbours terrorists from Colombia, Spain, and Chile, clarifications issued by officials of these governments undermine the integrity of Washington’s attempts to fabricate evidence of the island’s suspect terrorist connections. Bogotá allows that the Colombian insurgents’ presence in Cuba is part of Havana’s role in dialogue surrounding the peace-process with the Colombian government and representatives of the country’s leftist guerrillas. Spanish officials confirm that during the era of Prime Minister Felipe González, Madrid exiled ETA members who had agreed to discontinue their terrorist activities, to Cuba, as part of a quid pro quo arrangement which also involved the release of prisoners held by ETA forces. After travelling to Cuba this past February, Chilean investigators determined that Cuba had not harboured any terrorists from their country. Cuba does overtly harbour some political fugitives from the U.S.—such as Black Power activists who fled in the 1970s—and is quick to point out that the U.S. openly houses violent fugitives from Cuban law. However, U.S. fugitives living in Cuba are no longer organizing terrorism, whereas exiles sheltered in Miami continue to plan acts of violence. Clearly, Washington’s claims that Cuba supports terrorism break down under even the most perfunctory analysis.

 

Washington’s fabrication of terrorist accusations against Havana, paired with its refusal to address Miami exiles’ terrorist activity and the flagrant political manipulation of the trial of the Cuban Five, reveals a disturbing lack of integrity regarding the Bush administration’s purported “war on terrorism.” As long as the Five suffer the harsh conditions of their confinement, many will continue to ask Washington to explain the gross injustices the U.S. government has committed.

 

The Council on Hemispheric Affairs, founded in 1975, is an independent, non-profit, non-partisan, tax-exempt research and information organization. It has been described on the Senate floor as being “one of the nation’s most respected bodies of scholars and policy makers.” For more information, see the  web page at www.coha.org; or contact CHA’s Washington offices by phone (202) 216-9261, fax (202) 223-6035, or email coha@coha.org.