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.
LEONARD WEINGLASS is a defense 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.
This story originally appeared in Le Monde Diplomatique.