The Fabricated Case Against Gerardo Hernández
Charge No 3, added in May 1999, against Gerardo Hernández Nordelo, almost eight months after his incarceration is based on a false –more than false, absurd’- premise: the made-up existence of a Cuban Government plan to attack US planes in international airspace. This is equivalent to saying that Cuba wanted a military confrontation with its powerful neighbor. Can anybody believe that such was the intention of a country that had never attacked anyone and, at that moment, was going through the worst economic crisis in its history? What could it win from a war with the United States?
The first problem in fabricating something so feverish is that there is plenty of documentation proving exactly the opposite. Apart from denouncing it publicly, Cuba protested through diplomatic notes each violation of its territory. These notes requested Washington to act in order to prevent repetitions of such actions. Simultaneously, we conducted discreet contacts at very high level with the State Department and the White House where we expressed our concern and requested their help to avoid a confrontation. President Fidel Castro personally participated in these efforts. Bill Clinton promised the provocations would not be repeated.
In response to our diplomatic notes, the State Department informed us they had started the process to take away the pilot´s license of Jose Basulto –the leader of the group of provocateurs– and asked for additional information, which they received and formally acknowledged in writing.
Mr. Basulto, by the way, took his stupidity as far as declaring openly that the deterioration of Cuba’s economy was such that the country had no means to protect its borders, and promised to continue the provocations.
February 24, 1996 was a lukewarm and sunny day: a pleasant Saturday when nobody could foresee the tragedy. Along the Malecón many were watching a speedboat competition. Others were busily preparing the penultimate parade of the carnival. Many others were heading to the stadium to enjoy a decisive baseball game in which the team of the capital would be facing its main rival. At the University we had just celebrated the 40th Anniversary of the creation of the Revolutionary Directorate of FEU (Federation of University Students) and at noon, old combatants and students were celebrating the date together along the shore.
Thousands of Havana residents were involved in these various activities, carefree, without the hint of an idea that, somewhere beyond the sea, somebody was planning to fly over the city to confirm the foolish hypothesis of our helplessness.
Others, across the Florida Channel, did know what was about to happen. According to the information Washington would later hand out to the delegation of the International Civil Aviation Organization (ICAO) that investigated the incident, the State Department had asked an official to be in permanent contact with the Opalocka Airport before the fatidic flight took off. Afterwards, when the National Transportation Safety Board, discussed the issue –because they finally took away Basulto’s license- an official by the name of Houlihan, in charge of monitoring the US radars from the control center in California, testified that a few weeks earlier and the day before February 24, he had been alerted by Washington to watch carefully the flights of Basulto’s group on the 24th, because there was going to be an incident.
Somebody knew what might happen, but did nothing to prevent it –as was his duty– nor alerted Cuba.
Yes, there was a plan, but it was not a plan of the Cuban Government and much less of Gerardo Hernández Nordelo.
Gerardo probably was, as many fans of the Industriales [the baseball team of Cuba´s capital city] waiting to see his team win. He did not know, as nobody else in Cuba did, of the incoming airborne provocation. He could not have guessed that what others were planning would be having so serious consequences for him.
He knew nothing of what was going to happen on that day. He could not have imagined that this beautiful early spring afternoon would, years later, be transformed into the infamous slander that would drive him through a real hell.
A Strange Investigation
On March 6, 1996, at its headquarters in Montreal, the International Civil Aviation Organization (ICAO) Council designated a commission to carry out an “investigation on the February 24 incident in all its aspects, taking into account all the factors that conditioned the incident and led to it” and charged the commission with the presentation of a report 60 days later. On March 19, the president of the commission sent a communiqué to the governments of Cuba and the United States indicating the data and information that would be required, while simultaneously requesting permission to visit both countries.
Cuba responded immediately and received the investigators a few days later, on March 24. The commission worked intensely until the 31st of that month. From there, it went on to Washington, from April 2 to 4, and to Miami, from April 14 to 19.
But by May 6, the report wasn’t ready. The Commission could only report what it had done during its visits to the two countries and had to ask for an additional month to collect the information that remained missing.
What had happened? With respect to Cuba, the commission stated the following: “by March 30, 1996 the Cuban authorities had fully met all the requests formulated by this team regarding interviews and declarations by civilian and military personnel involved, interviews and declarations by witnesses, civilian and military data, documents and letters, as well as communications registers and transcripts.” In regard to the United States, however, it mentioned that it had met with authorities on a number of occasions, had met with only one witness – José Basulto – and was still waiting to receive US radar data. Even at that level it had still not been handed over.
The ICAO, of course, extended the commission’s mandate for another month, until June 6. But by the second week of June, the report had still not appeared. The Council continued to wait and the Commission did not present its report until the end of June, to be considered at the last meeting of the Council before its summer recess.
What the Commission had done after it left Havana, the only place where it was able to collect all the necessary information three months earlier, was also evident. According to the final report, the Commission did not return to Washington or Miami. It met only with US officials, in Montreal, on May 2, 3, 6, 7 and 9, and again on June 3 and 4. One need not be an oracle to figure out that these secret conclaves facilitated the final drafting of the report.
Even the data from the US radar stations was surprising. From one, the data had been destroyed, from another it was lost, from others it was confused, while generally coinciding with Washington’s official version, which was that the event had occurred outside Cuban airspace, although very near to it.
In Cuba, certainly, not only did the investigators receive radar data promptly, they also visited installations, checked equipment and interviewed operators. They were unable to do anything of the kind on the US side.
In view of the circumstances, the ICAO commission decided to forget the radar information. In a moment of rare lucidity, it asked Washington to deliver the images taken by its special satellites. But the request was rejected. Although it made no complaint, the ICAO recorded the curious negative response.
Instead, the commission preferred to use the captain – of Norwegian origin but resident in Miami – of the Majesty of the Seas, a tourist cruise line that, it was said, had been in the area on the day of the incident. He was made available thanks to the kind selection of US authorities, who recommended him and set up the meeting. No other crew or passengers were interviewed. The commission chose, as though at random, the visual observation of a person who said that the downing had occurred off the Cuban airspace. The investigators were prudent enough to clarify that they had been unable to make an independent determination of the real location of Majesty of the Seas. But they did not mention that this ship belonged to a company located in Miami and that its owners and executives were among the founders and largest donors to the Cuban American National Foundation (CANF), the main promoter of anti-Cuban terrorism, and the group that provoked the incident on February 24, 1996. Nor did they recall that in a report on the CANF published in 1995 by the New York Times, the same Majesty of the Seas boss had said “We want to help the Cuban community here in their efforts to move Mr. Castro out.”
In effect, the intrepid sailor lost no time making good on his promise.
The question of the imagery registered by US satellites of the events of February 24, 1996, imagery that was unsuccessfully ordered by the International Civil Aviation Organization (ICAO) for the report it was to send to the U.N. Security Council, came up again at the trial in Miami. The determination of the exact location where the incident occurred was irrelevant as far as Gerardo was concerned, since he was completely alien to the action, regardless of wherever it occurred. But it was decisive in terms of the court, since it could only have jurisdiction if the regrettable event had taken place outside Cuban territory.
In Miami the argument about the contradictory radar data was repeated. It was an expert witness for the government, a retired senior Air Force official, who let the horse out of the barn. Perhaps believing that it might be a way to resolve the dispute, he asked simply, why don’t we just look at our satellite imagery?
The defense immediately backed the idea, appropriated it and presented a motion for the judge to instruct the government to present the imagery. The prosecution stubbornly opposed the motion. Now the dispute was no longer about the location of the aerial incident but the location of the imagery that would supposedly clarify the affair. The court took the side of the government and did not grant the petition.
Considerable effort has been expended since that time to locate the imagery as famous as it is lost. The Center for Human Rights and Constitutional Law, a respectable private institution has initiated countless efforts to obtain them, all fruitless to date. Backed by the Freedom of Information Act (FOIA), the center has made repeated requests to the official agencies that manage US satellites. All have refused to facilitate those requests. The Center has also resorted to legal means and is currently awaiting a ruling from the State of California Court of Appeals.
A similar claim is part of the Habeas Corpus presented in the name of Gerardo Hernández Nordelo. As the reader will surely have guessed by now, in its response, the prosecution has already opposed the release of the imagery.
The United States government has proven itself rigorously consistent in its tenacious refusal to release the images taken by its own satellites. The only people to examine them, obviously, are US authorities who, at the same time, have taken it upon themselves to impede anyone else from seeing them. Neither the ICAO, the UN Security Council, the federal court, nor US civil society have been allowed to see them. Only the government. No-one else. More than 16 years have passed since they were hermetically sealed away. The satellite images were, quite simply, kidnapped, disappeared.
How can such conduct be explained? What other explanation could there possibly be besides the fact that those in the US government who have seen the images – the only ones in that privileged position – know that they prove that the incident took place within Cuban territory? It is the only way to explain that the imagery should also have been condemned, put in solitary confinement and sunk in a bottomless “hole”.
Ricardo Alarcón is the president of the Cuban National Assembly.
Translated by CubaNews.