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"The sun of justice shall rise,
bearing salvation on its wings"
(Malaquías, 4, 2)
On 9th August last, 28 months after the defendants had filed their arguments, the 11th Circuit Court of Appeals in Atlanta finally handed down its verdict reversing the unjust convictions imposed over four years ago by a Miami Court on five young Cuban anti-terrorism fighters. The decision of the Atlanta Court was in no way a precipitated one. The process enabling the defendants to exercise their right of appeal was long, complex and hazardous. They had to face a whole series of obstacles that breached principles and rules of both American and international law, which forced them to a defense in conditions that defy imagination. It seemed their case would never actually reach the superior court for its necessary review. Then, the judges in Atlanta in order to do justice dedicated to the case four times the period used by the shameful farce in Miami. (1).
The Atlanta decision has a truly historical significance.
To understand it, it is necessary to put it in context and to go over – albeit briefly – the events leading up to it.
On September 12th, 1998, the FBI arrested Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González. They were accused of being unregistered agents of the Cuban government, whose mission was to infiltrate – with the aim of revealing their criminal plans – the terrorist groups that operate with impunity out of Miami. None of the men had criminal records; none had ever been accused of breaking any law or infringing any rule or regulation. They were unarmed and had never been involved in acts of violence or disturbances of any kind. They were nonetheless denied the possibility of applying for a release on bail.
On the contrary, from the very day of their arrest, they were put in solitary confinement – locked up in the infamous "hole", where they remained for a continuous period of 17 months. They were subjected to an entirely illegal punishment regime, restricted by US law to dangerous criminals who commit acts of violence inside the prison, and to a maximum of 60 days. They were prevented from mounting their defence while a massive, ruthless press campaign was unleashed in Miami with the participation of the prosecution, the FBI officials and the local authorities, portraying them as dangerous enemies guilty of the worst crimes, including the attempt "to destroy the United States". (2). Condemned in advance without trial or possibility of defence, they were subjected to a barrage of slander and threats.
But that was not enough for their accusers. To make quite sure that justice could not prevail, the government (with the agreement of the Miami Court) classified as secret the alleged "evidence", much of which belonged to the defendants themselves and included family photographs, personal correspondence and recipes. The defendants and their attorneys were thus denied access to the material, while the government was able to arbitrarily use and manipulate it. The defence is still now awaiting permission to view this "evidence". It has vainly claimed it time and again before the Miami Court and appealed in this connection to the Atlanta Court; it has still received no reply.
These were the circumstances in which the "trial" opened, on November 27th , 2000. 26 months had gone by since the day of the five men’s arrest. And let us not forget that they spent 17 of those 26 months buried in the "hole".
The Miami judicial farce ended in June 2001 when a submissive, frightened jury, which had announced in advance the date and precise hour at which it would deliver its verdicts, found them guilty on all 26 counts, after deliberations lasting just a few hours and without asking a single question or expressing the slightest doubt. To cap it all, it found Gerardo Hernández guilty of something – the infamous Charge 3, first-degree murder – that the prosecution itself, in the knowledge that it could not be proved, had applied to withdraw it. (3).
Surprisingly, having arrived so quickly and easily at the desired verdict, the judge took six months to pronounce the sentences. She took as long as the "trial" itself. Why? Was she about to change or amend in some way the conduct of the jury? Was she trying to distance herself at least to some extent from the prosecution’s request?
Nothing of the sort. The disproportionate sentences were exactly those the government had proposed. Was it necessary to delay half a year to respond? Why the long wait?
At the end of the trial, the judge announced that she would proceed to sentence in September. While she took vacation, the five were returned to solitary confinement. This time, they remained in the "hole" for 48 days, and got out only after several efforts by their attorneys. This further arbitrary treatment had a clear purpose: to make preparation of their statements – their only opportunity to address the court – as difficult as possible. When the time came, instead of apologizing or seeking clemency, as convicted prisoners generally do, the five vigorously condemned the farcical proceedings and exposed the terrorists and the Government that supports and protects them.
But something else happened in September 2001. The odious crime committed on the 11th had shaken American society and the whole world; the judge decided to postpone the sentencing sessions. It was an unusual deferral: three months. It was not mourning of or homage to the victims of that atrocity which caused the delay. Rather, it was quite the opposite.
Her reasons were utterly different. What she and the government were proposing to do was, among other things, a gross affront to the victims of that fateful day. They needed to separate the two events by as large an interval as possible, and gain enough time to ensure maximum impunity, relying on the customary cooperation of the information-suppressing mass media.
The government was going to bring to a climax a manoeuvre designed to support and protect the terrorists with whom the Bush family has close and longstanding links, and to whom the current tenant of the White House had promised reward in kind for the scandalous fraud by which he obtained the presidency in 2000.
That was why, after seeking maximum sentences, the prosecution shamelessly introduced in court proceedings its immoral and illegal theory of "incapacitation": in addition to the exorbitant sentences imposed on the accused, they were to be subjected to very specific restrictions after their release, such that they could never again attempt any action against these murderers who are close friends of the Bush family and behave as if they owned Miami, from where they organize and openly vaunt their misdeeds against the Cuban people.
They could never again be free men. Beyond the years in prison, which included four life sentences, they were to suffer a special regime, a sort of unusual apartheid designed to protect the terrorists. Places were defined which they could not go near, locations they could not visit, streets they would be forbidden to walk in.
The agency tasked with enforcing these spurious, unconstitutional prohibitions would be the FBI. The same FBI that pursued them, mistreated them and fabricated the infamous accusation against them. The same FBI, incidentally, under whose nose most of the terrorists who attacked the American people on September 11th lived, freely moved about and were trained in the use of aircrafts as monstrous weapons.
The judge naturally welcomed the government’s request and in the sentences pronounced on René González (15 years imprisonment) and Antonio Guerrero (life, plus ten years), both US citizens by birth, expressed the restrictions in the following terms: "As a further special condition of supervised release the defendant is prohibited from associating with or visiting specific places where individuals or groups such as terrorists, members of organizations advocating violence, and organized crime figures are known to be or frequent". (4).
The defence attorneys immediately notified their intention to appeal to the relevant superior court. But, again, the long wait.
All 2002 went by before the Miami Court sent the case file to Atlanta, a prerequisite for the opening of the appeal process by the 11th Circuit Court of Appeals. In that year something happened that can only take place in Miami. In June, the US government appeared as defendant, before that same federal court, in a suit for an alleged employment discrimination which was indirectly related to Cuba (Ramírez vs. Ashcroft). Precisely a year before, this Court had condemned the five men after having tried them there, on the insistence of the prosecution who had claimed that Miami was a cosmopolitan centre where a fair and impartial trial for our heroic compatriots was possible.
Twelve months later, the same prosecutors unblushingly claimed the exact opposite: it was impossible to hold a proper trial of any case related to Cuba in Miami. They successfully requested that the proceedings be moved to another city. The same concession denied to the five men, who had applied for a change of venue time and again and invariably received the same cynical denial from those who, a little later and when it suited them, handed down a quick and easy decision that admitted the truth. It is hard to find more conclusive proof of the fraudulent, gangster-like attitude of Miami’s judges and prosecutors.
In response to this clear example of misconduct, the five men again applied for annulment of the trial against them and moving the case away from a venue now recognized – by judges and prosecutors – as entirely unsuitable. Incredibly, this defence motion based on the same logic and arguments as those advanced by the government was opposed by the prosecution and denied by the judge. All of them, remember, were Miami-based. For that reason, the Court of Appeals finding of August 9th, 2005 is largely based on this defence motion and censures the manifest injustice implied by its denial.
It was not until January 2003 that the case file arrived at the end of its long and eventful journey to Atlanta. The 11th Circuit Court of Appeals set April 7th as the date on which the five men were to file their appeals.
While the papers gathered dust in Miami, the defendants were transferred from there to the maximum security prisons where they have been held since the beginning of 2002 and where they remain to this day. The authorities that were so tardy when it came to sending the documents to the principal city of a neighbouring state, which is also one of the US’s main centres of communication, lost no time in dispersing the five men to the remotest corners of American territory. Each in a different prison, in five different states, as far separated as possible from one another, from their attorneys and from their relatives.
Their families reside in Cuba and require American visas to visit them, visas that only have been granted after annoying and slow procedures. Unlike any other inmate, that elemental right has been denied to the Five: for three of them the visits have not been weekly, but one in a year, and the visas of Adriana Pérez, Gerardo’s wife and Olga Salanueva, René’s wife, have been systematically denied. Consequently, Ivette, Olga and René’s daughter, could not visit her father either.
These were the conditions under which they were to prepare their appeals. All, naturally, in a foreign language. Without access to the "evidence", without the possibility of consulting each other, while communication with their attorneys was extremely limited. And subject to the severest prison regime under which, among other things, they were required to work to pay with their wages for the rigged trial they had undergone.
But, as the Bible says, "Our eyes can never see enough to be satisfied; our ears can never hear enough".
While the five defendants were immersed in this difficult, complex task, under the most hostile conditions vindictively imposed by the federal authorities, the latter’s thirst for revenge and desire to obstruct justice were still not satisfied.
For such purposes, there was the "hole", and within that, the "box". And that is where they were confined from February 28th until March 31st , 2003. Each of them, in their five prisons, in the decisive month for their appeals, again in solitary confinement without any contact with the outside world. Moreover, they were now denied any communication with their attorneys, even by telephone or letter, while all writing materials were confiscated – not a sheet of paper or a stub of pencil. One was left without clothes, in the middle of winter, and subjected to physical torture (noises, lights and shouting flooding the "box" twenty-four hours a day).
This time there was not even an attempt to disguise the government’s purpose. The men were denied access to their legal documents and their attorneys were not allowed to communicate with their clients. These measures were controlled directly by the South Florida District Attorney’s office. It was only international denounce and the tireless efforts of the defence attorneys that forced the authorities to "ease" these measures: Leonard Weinglass, Antonio Guerrero’s attorney, was able to visit his client, but under such appalling conditions that he was barely able to verify the gross violations of the right to a defence. Weinglass denounced the situation before the Court of Appeals and requested more time for submitting Antonio’s arguments which, because of the situation described, he had been unable to complete. In granting this request, Atlanta acknowledged that these measures had seriously infringed the rights of the accused and their defence attorneys. (5).
In outline, that was the long path travelled by the five men, to reach Atlanta. Getting there was a truly heroic deed.
What came afterwards were another two years of waiting. The three judges took that time to assess the appeal arguments of both sides, study the trial records and all the other material relating to the Miami farce, review the relevant legislation, hold a hearing (on March 10th, 2004) which exposed the shaky foundations of the government’s arguments, seek additional information from prosecuting and defence lawyers, working towards their final conclusion revoking convictions and annulling the Miami "trial".
Their decision was announced on August 9th, 2005, but the five men are still being held in the same maximum-security prisons. They are locked up with people presumably convicted of various crimes, while they themselves are different from the rest of the inmates, being the only ones now without any conviction.
It is of no consequence to the US government that the Atlanta Court of Appeals has pronounced them free men against whom no legal sanction now remains. It was unmoved also in May of this year when a working group on arbitrary detention set up by the UN Human Rights Commission declared the incarceration of the five men since September 1998 arbitrary and illegal.
Two weeks have passed, out of the three the law allows the government, to request the Atlanta Court to revoke its finding. So far, Washington has not said whether it intends to do so. Indeed, it has just asked the Court for another month to decide whether to make the request.
Meanwhile, the five men remain isolated in five prisons for convicted criminals. They are suffering all the rigours of that situation, despite their false culpability had already been annulled by three honorable judges.
Now they are five kidnap victims of an administration that rides roughshod over the law everywhere. Not just in Abu Grahib and Guantánamo. Within US territory as well.
What is to be done? The time has come to shout it from the rooftops. To go on demanding their immediate release until it happens, unconditionally. Freedom now for the Cuban Five. Nothing more. Nothing less.
Ricardo Alarcon de Quesada is Cuba’s Vice President and President of its National Assembly.
(1) District Court No. 98-00721-CR-JAL. The document issued by the Atlanta Court is 93 pages long. The court’s decision to reverse the convictions of the Miami Court and annul the previous "trial" was based on Miami’s denial of the various requests to have the trial moved to another venue. In arriving at its decision, Atlanta found it necessary to "review the totality of the circumstances surrounding the trial", including the "evidence" submitted and other aspects of the earlier proceedings. The length of the document and the exhaustiveness of its coverage are unusual, as were the time taken to produce it and the complete unanimity of the three judges concerned. While what took place in Miami was a charade that shames the American legal system, Atlanta produced an example of professional ethics and rigour that goes beyond the bounds of the normal appeals process, to demonstrate the innocence of the five accused and expose the colossal injustice to which they fell victim.
(2) The employment of this argument, obviously false and aimed at pressuring the jury and encouraging and exploiting the hostility and prejudices of the Miami community against the accused, was one of the examples cited by the Atlanta judges to demonstrate the fraudulent conduct of the South Florida District Attorney’s office. The then DA, Guy Lewis (now retired) published an article in the Miami Herald on August 18th repeating the same foolish slander: he still insists that the five men "had vowed to destroy the United States".
(3) In its "emergency petition for writ of prohibition" to the Court of Appeals on May 25, 2001, the U.S. Attorney’s Office recognized that "in light of the evidence presented in this trial, this presents an insurmountable hurdle for the United States in this case, and will likelly result in the failure of the prosecution on this count" (page 21) since it "imposes an insurmountable barrier to this prosecution" (page 27). The government was afraid of the fact that "it is highly probable that the jury will request further elaboration on this issue" (pages 20 21). (Emergency Petition for Writ of Prohibition). Nevertheless, although the court rejected the Government’s petition, nothing alike happen. Without any question, without hesitation, all the jurors declared Gerardo guilty in the first degree of the alleged crime.
(4) Transcript of Sentencing Hearing before the Honorable Joan A. Lenard on 14th December 2001 (pp. 45-46). In the same session, the judge herself had recognized that "the terrorist acts committed by others could not excuse the wrongful and illegal conduct of the defendant and the other accused" (p. 43). In other words, the Miami-based anti-Cuba terrorists are protected by the federal government and the judges who punish – with four life sentences over 75 years’ imprisonment and the unusual prohibition mentioned above – those who fight terrorism. So that they should never again fall into such "wrongful and illegal" conduct, Miami invented "incapacitation", which it unveiled three months after the atrocity of 11th September 2001, when Bush was already attacking Afghanistan, was preparing to attack Iraq and was declaring an alleged war on terrorism to be waged everywhere – except Miami, of course.
(5) Weinglass was able to gain permission to visit Gerardo Hernández on March 16th, and he described his visit in this way:
"Gerardo is being most severely punished in his prison, confined in what is known as "the Box"-a hole within the "Hole".
He is confined in a very small cell barely three paces wide, with no windows and only a slot in the metal door through which food is passed. His clothes were taken from him and he is allowed to wear only underpants and a T-shirt, but no shoes.
He cannot tell if it is day or night. His is the only cell where the lights are on 24 hours a day and the incessant cries of other prisoners, many of whom suffer from mental health problems, prevent him from sleeping.
He is allowed no printed material, nothing to read. Signs saying that no one is to have contact with him are posted outside his cell. He is the only prisoner kept in this kind of solitary confinement who is not allowed to use the telephone to date he has received nothing – not even correspondence from his attorneys"
Two days later he outlined in this way his meeting with Antonio:
"He showed up at the visit in leg irons and handcuffed. They were removed during the visit. The corridors were cleared when moving him. The visiting facility was abysmal. It was a very small cubby with a thick glass between us and a telephone which we had to use to communicate. The space was so small that my associate counsel and I could not fit in it together. He had to stand behind me and share the one phone on our end. Antonio was locked in on his side and we, the attorneys, were also locked in on our side! There was no slot for passing documents and we were invited to give them to the guards who would bring them around the back to Antonio. I did this with one document and then decided to abandon this and hold the papers up to the glass. It was very awkward. The visiting conditions were much worse than those I experienced with Mumia Abu Jamal on death row. We protested these conditions but they refused to bring the warden down for a meeting or any other ranking official"
"Only in Miami", Editora Política, La Habana 2004,
Pages 109-110 and 111 112)