Having exhausted their appeal efforts, the Cuban Five petitioned the Supreme Court to review their case. They were not asking too much. It was a case deserving the attention of the Justices for a number of reasons, some of a really exceptional nature.
All along the legal process – one of the most prolonged at the time in American history – a number of constitutional rights were violated, as well rulings which contradicted with the holdings in other Circuits – which are considered to be the main business of the Justices – on important issues such as venue, racial discrimination in jury selection, sentencing, and defendants and defense lawyers’ rights.
It was a case, furthermore, having a direct connection with terrorist groups and their activities within the US territory – at a time when terrorism was supposed to be the biggest issue – and with clear implications in terms of international relations; a case in which generals and top military chiefs and even a president’s special advisor had appeared on the witness stand. It had the distinction of being unique in several respects.
The original Court of Appeals panel’s unanimous determination, after having examined all aspects of the case for several years, to set aside all the convictions and order a new trial, was in itself unique, as was the 93-page document explaining the ruling. Very exceptional was the US government decision, taken at the highest level, to demand the en banc Court to reverse the decision and very rare getting the Court agreeing to such an uncommon petition.
On the other hand, it is not a regular thing for an appellate judge to ask the Supreme Court to review a case, much less to do so twice as did Judge Birch, who repeated that demand while strangely joining Judge Pryor in his shameful judgement.
It was unique also in terms of concern and interest all over the world.
In 2005, prior to the determination of the Appeal’s Court panel, a very important and also unique decision was unanimously adopted by the UN Working Group on Arbitrary Detention. This is a completely independent entity, not an intergovernmental body, with five judges – one for each Continent – not representing any UN member state and conducting themselves exclusively in a personal capacity. The UN group studied the situation of the Five at the request of their wives and mothers. The group spent several years researching the case in its entirety and interacting with the US in official correspondence. The Cuban government was never consulted, as it should not be, because Cuba was not a party to that process.
It was a history-making decision. The UN group concluded that the deprivation of liberty for the Five was arbitrary and in contravention of the relevant UN Human Rights Conventions and called on the government of the United States to take steps to remedy the situation.
The Group stated that: “the trial did not take place in a climate of objectivity and impartiality which is required” and “the Government [of the United States] has not denied that the climate of bias and prejudice against the accused in Miami persisted and helped to present the accused as guilty from the beginning. It was not contested by the Government that one year later it admitted that Miami was an unsuitable place for a trial where it proved almost impossible to select an impartial jury in a case linked with Cuba.”
“The Government had not contested the fact that defense lawyers had very limited access to evidence because of the classification of the case by the Government as one of national security” which “undermined the equal balance between the prosecution and the defense and negatively affected the ability [of the defense] to present counter evidence.”
The UN experts noted that the accused “were kept in solitary confinement for 17 months,” and as a consequence “communication with their attorneys and access to evidence and thus, possibilities to an adequate defense were weakened.”
In conclusion they determined that these “three elements, combined together, are of such gravity that they confer the deprivation of liberty of these five persons an arbitrary character.” (Report of the UN Working Group on Arbitrary Detention E/CN.4/2006/7/Add.1 at p. 60, Opinion No. 19/2005 – United States of America)
This was the first and only time in the history of the United States and in the history of the United Nations that a UN body had found a trial process in the US to be unfair and contrary to universally established standards of human rights and international law.
But that finding of five independent judges, none of them, by the way, a leftist or a radical, was not easily available in the American media and most Americans probably have never heard of it.
Many Americans do not know about the Cuban Five because they have not been permitted to know.
Not only was the long trial of the Five maintained in the dark, Americans have not even been allowed to know that this case has been very much in the minds of many millions around the globe. The big corporate media that didn’t report their legal battle threw a similar curtain of silence around the wide, ever growing, movement of solidarity that the Cuban Five have received practically everywhere from Ireland to Tasmania, from Canada to Namibia. Churches, parliaments, human rights organizations, labor unions, writers, lawyers and peoples from all walks of life have expressed their concern and interest in all languages, English included.
But the Supreme Court did not bother to listen.
RICARDO ALARCÓN de QUESADA is president of the Cuban National Assembly.