The Case of the Cuban Five

4-30-06, 9:58 am

Last Valentine’s Day, the Federal Court of Appeals heard oral arguments concerning one of the greatest injustices in the history of U.S. jurisprudence. The lives of five innocent men hang in the balance, awaiting the decision of the 11th Circuit. Although the United Nations Working Group on Arbitrary Detentions already declared their trial in Miami unfair and in violation of international law, most Americans are not familiar with the story of the Cuban Five.

They are five men of peace who came to this country from Cuba to combat violence and terror. The men were wrongfully arrested eight years ago, tried and eventually convicted in Miami for conspiracy to commit espionage and murder. A Miami Court meted out the maximum prison terms that the law allows: 1. Gerardo Hernandez received a double life sentence, 2. Antonio Guerrero was given a single life sentence, 3. Ramon Labañino a life sentence, 4. Fernando Gonzalez a 19 year sentence, and 5. René Gonzalez 15 years.

To understand their story and their trial, we must reflect on the last forty-seven years of terrorism that have been launched against the people of Cuba from the shores of South Florida with the knowledge and consent of the United States government.

The extremists in Miami have fought a dirty war against Cuba for over almost fifty years. With the aid and comfort of the United States, Cuban-immigrant terrorists specifically target innocent men, women and children of Cuba in a type of Miami-Jihad against Cuban Communism. They target Cuban airliners, ships, restaurants, hotels, places of business—all in an effort to take over the island and shape it in their own bloody image.

Cuba puts the number of its victims of terrorism at 3,478 killed and 2,099 wounded. The terrorists also caused significant property damage which, when added to the damage done to the Cuban economy by the United States blockade against the island, amount to losses in excess of $67 billion.

In the early 1990s Cuba was struggling to jump-start an ailing economy, after the dramatic disappearance of its principal trading partners: the Soviet Union and its allies. Desperate for dollars, Cuba broadened its tourist industry. Looking to cause a chilling effect on the bourgeoning tourist trade in Cuba, the Miami-based terrorists targeted Havana’s finest hotels and restaurants. An internationally known Cuban-émigré terrorist named Luis Posada Carriles used tens of thousands of dollars obtained from Cuban extremist groups in Miami to hire Central Americans to take and set bombs in Cuba. The bombs killed an Italian tourist, Fabio di Celmo, and wounded several others.

Frustrated with the FBI´s apparent unwillingness to stop this campaign of terror, Cuba asked the Five to penetrate the Miami based extremist organizations and gather information about upcoming terrorist acts in order to try and derail them before the terrorists could carry them out. They were able to establish clear, convincing and unequivocal evidence that implicated leading organizations and individuals living in Miami as being behind the campaign of terror.

President Fidel Castro decided to send a personal emissary to Washington to deliver a hand-written note to President Bill Clinton, asking that the United States indict and prosecute the terrorists. Castro’s letter to Clinton said in part, “if you really want to do so, you can put a stop to this new form of terrorism. It is impossible to stop this terrorism without United States involvement. . . . Unless it is stopped now, in the future any country could be victimized by this new terrorism.”

President Castro’s personal emissary was none other than Nobel Prize for Literature Gabriel García Márquez who arrived in Washington, D.C. on May 1, 1998. President Clinton was out of town for several days in California, and after waiting him out at the Hotel Washington for several days, García Márquez finally met with White House Chief of Staff Mac McLarty on May 6, 1998 and gave him the letter. García Márquez recalls McLarty´s reaction to the letter: “The terrrorist plot the letter outlined elicited from McLarty a grunt, from which he uttered ´this is terrible´. García Márquez tells that McLarty then repressed a mischievous smile and exclaimed without interrupting his reading of the letter, ´we have a common enemy´.”

After McLarty finished reading, García Márquez asked the question he had been saving since arriving in Washington, “would it be possible for the FBI to establish contact with its Cuban counterparts and begin a war in common against terrorism?” The meeting in the White House, says García Márquez, lasted fifty minutes and ended with McLarty looking into his eyes saying “Your mission was of the highest importance, and you have done your job very well.” García Márquez committed the phrase to paper in a letter to Fidel Castro and said: “neither the personal decency that I possess abundantly, nor the modesty that I lack permits me to abandon this phrase to the ephemeral glory of the microphones hidden in the flowerpots.”

In the wake of the Garcia Marquez visit, the U.S. sent an FBI team to Cuba a month later to discuss collaboration with Cuba on a “War On Terror”. Cuba handed over 64 files containing the results of its investigation into 31 different terrorists’ acts and plans against the island in the decade of the 90s. Cuba enclosed details of the terrorist operations, including photographs of the explosives used. Having learned the lesson taught Woodward and Bernstein by their famous source “Deep Throat”, Cuba advised the FBI to “follow the money” if it was to discover the organizations in Miami who were behind the campaign of terror, and Cuba handed the FBI 51 files with information relating to the money trail.

The mastermind behind the terror campaign of the 90s was Luis Posada Carriles, who was then living in hiding in Central America and receiving money from Miami extremist groups. Posada Carriles was wanted in Venezuela for the cold blooded murder of 73 innocent passengers aboard a Cuban civilian airliner he downed in 1976 using C-4 explosives. With the help of influential friends in Miami and Washington, he escaped from jail in Venezuela while awaiting trial.

The money trail led directly to the lap of Posada Carriles and passed through the offices of the terrorist organizations in Miami that financed him. In 1998, Posada Carriles admitted to the New York Times of being the mastermind behind the bombing campaign in Cuba and that the money used to carry out the campaign of terror came from well known Cuban-immigrant organizations in Miami.

Cuba handed over to the FBI tapes of 14 telephone conversations of Luis Posada Carriles with details on the series of bombs that had exploded in Cuba in the 90s. Cuba also gave the FBI Luis Posada Carriles´ addresses in El Salvador, Honduras, Costa Rica, Guatemala and Panamá. Also tapes of conversations with Central American detainees in Cuba who admitted Posada Carriles is their boss and had sent them to Cuba to place explosives in the hotels and restaurants. Finally, Cuba turned over 60 sets of documents with information about 40 terrorists based in Miami, including their addresses, and evidence of their ties to terror.

Cuba then waited . . . and waited . . . and waited. Cuba waited for the FBI to start arresting terrorists. But instead the FBI arrested on September 12, 1998, the men now known as the Cuban Five: the men who had come to Miami to penetrate the Miami exile terrorist organizations.

According to El Nuevo Herald, the first persons that were notified of the arrests of the Cuban Five were Cong. Lincoln Diaz Balart and Ileana Ros-Lehtinen of Miami.

The Five were charged with 26 counts of violating federal laws. They were placed in solitary confinement (in a place called “the hole”) for the next 17 months, until the start of their trial.

The Elian González case had stirred up anti-Cuba passions in Miami during the first several months of the year 2000, and a defense team concerned about prejudices in the city against their clients made motions to have the venue changed from Miami-Dade which the defense called “a basic nucleus of anti-Castro Cuban exiles where the conditions for a fair trial do not exist.” The motions to change venue were denied, and the trial took place in Miami in the fall of 2000. It lasted seven months.

The Five were not tried for espionage, but for conspiracy to commit espionage. It is not disputed that the Five didn’t have, didn’t take and didn’t see a single page of classified government information. The first thing the prosecutor said to the jury at the beginning of trial was: “We arrested these five men and confiscated 20,000 documents from their computers, but ladies and gentleman of the jury none of these 20,000 documents contain a single page of classified information.” The lynchpin of the government’s case on conspiracy to commit espionage was that Antonio Guerrero worked in a metal shop in the Boca Chica Navy Training Base, a base that was completely open to the public and that even had a visitor’s viewing area to allow folks to photograph planes on the runway. No one even alleged that Antonio Guerrero or any of the Five had access to any classified information from the base or from anywhere else.

The government argued that the Five had agreed to have Tony Guerrero work in the navy base and that the alleged agreement constituted a conspiracy to commit espionage.

The second conspiracy charge was as ridiculous as the first: conspiracy to commit homicide. The Government alleged that Gerardo Hernández conspired with Cuban officials to shoot down two aircraft from a Miami organization called Hermanos al Rescate as they entered Cuban airspace. The two aircraft had been intercepted by the Cuban Air Force and all four aboard were killed. No evidence of any agreement between Gerardo and anyone else regarding the shoot-down was ever presented. Only a jury in Miami could ever find guilt beyond a reasonable doubt regarding a conspiracy about which not a single piece of evidence was presented. The absence of evidence on this charge was so glaring that the Prosecutor tried to modify the charge but the Court of Appeals refused to allow it.

The jury, whose foreman openly admitted during voir dire his dislike of Fidel Castro, returned guilty verdicts on all 26 counts of a seven month trial against five defendants in a single day. After listening to more than 70 witnesses over the course of the trial, reviewing 119 volumes of transcript plus 15 volumes of pre-trial testimony and more than 800 exhibits some as long as 40 pages, the jury took all of one day of deliberation to convict.

After their convictions, the Five were sent to maximum security prisons across this country, and two of them have been denied visits from their wives for the past seven years in violation of U.S. and international law.

On August 9, 2005, a Three-Judge Panel of the very conservative Court of Appeals for the 11th Circuit in Atlanta published a 93 page decision that reversed the convictions and sentences, ruling that the Five did not receive a fair trial in Miami and acknowledging evidence produced by the defense at trial that revealed terrorist actions by Miami exile groups against Cuba. The three judges even cited in a footnote the role of Luis Posada Carriles and correctly referred to him as a terrorist. They found that “a perfect storm” of prejudice prevented the Cuban Five from having a fair trial in Miami.

The Bush Administration, however, didn’t give up. Through its Solicitor General, the government made a formal appeal to all 12 judges of the Eleventh Circuit in Atlanta, and out of apparent deference to the unusual request from the Department of Justice the Court of Appeals nullified the three-judge panel decision and agreed to hear the case en banc. Oral Agreements were heard on February 14, 2006. and we continue to await a verdict from the Court of Appeals, as the Five continue to languish in prisons throughout the country far away from their loved ones. They will have spent eight years in prison unjustly this coming September 12.

Attorney Leonard Weinglass who represents Antonio Guerrero said recently: “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.”

As the Five were being prosecuted in Miami, the campaign of terror against Cuba continued. In November 2000, Posada Carriles was arrested in Panama along with three accomplices before they could carry out the plan to blow up an auditorium filled with students at the University of Panamá where Cuban President Fidel Castro was to speak. The four were convicted by a Panamanian Court, but on August 26, 2004, in one of her last acts as President, Mireya Moscoso pardoned them in violation of Panamanian law. The three accomplices, all Cuban-Americans, immediately went to Miami to be given a heroes welcome. Unable to immediately join them in Miami, because he is neither a US citizen nor a legal resident, Posada Carriles went to Honduras to scheme for a way to go where many terrorists love to live: Miami.

In March 2005 he finally got his wish. His Cuban-immigrant friends smuggled him into Miami from the Yucatán peninsula aboard a yacht called the Santrina in March of last year.

Venezuela immediately presented a request for his extradition for 73 counts of first degree murder in relation to the downing of the civilian aircraft in 1976. Rather than acting on the extradition request, the United States government is now sheltering him in El Paso, Texas in violation of important international treaties and conventions, including one that protects us from terrorism aboard civil aviation and another one that prosecutes terrorists who use explosives in commission of their crimes.

The United States Government is conducting a schizophrenic war on terror, as it prosecutes those who combat terrorism and save lives, while it shelters those who commit terrorism and murder, such as Posada Carriles, Orlando Bosch and so many other terrorists who currently reside in Miami.

Washington’s schizophrenia on terror is undetected by the majority of the American people, because the mainstream media in this country does not care enough to tell the story.

Should the American people learn the truth about the Cuban Five, they will hold the United States government accountable for its responsibility concerning forty-seven years of terrorism against Cuba, including the unjust prosecution of the Cuban Five and the equally unjust sheltering of international terrorists such as Luis Posada Carriles.

Some in Miami think Cuban immigrant terrorists are patriots. They ignore that civilized people must abide by rules, even in politics and war. To target innocent civilians because some would disagree with their country’s policies is not patriotism. It is murder. There is no honor in murder.

There is no honor in prosecuting those who peacefully combat terrorism, and there is no honor in sheltering terrorists. As long as the Cuban Five remain behind bars and impunity reigns in Miami, President Bush’s War on Terror will lack credibility.

There is no honor in silence. Journalists have a duty to tell the American people the truth: about the absence of weapons of mass destruction in Iraq, about the torture of prisoners in Guantanámo and Abu Ghraib, about the existence of CIA controlled clandestine prisons, about the government’s illegal domestic surveillance program, about the bloody history of Miami’s terrorists, and about the true story of the Cuban Five. It takes a while, but eventually the truth comes out.

History will honor the Cuban Five, and justice will soon set them free.

--José Pertierra is an attorney in Washington, D.C. He represents the government of Venezuela in the extradition case of Luis Posada Carriles.