FIVE Cuban men - Gerardo Hernandez, Antonio Guerrero, Ramon Labañino, René Gonzalez and Fernando Gonzalez - were arrested in Miami, Florida, on 12 September 1998 and charged with 26 counts of violating the federal laws of the United States. “The five” had come to the US from Havana to infiltrate armed organisations drawn from the Cuban exile community, which were tolerated and even protected by successive US governments, and to find out about any terrorist activity aimed at Cuba.
The island had suffered human losses (some 2,000 dead) and significant property destruction caused by the organisations. Cuban protests to Washington and the United Nations were ignored. The violence escalated after the collapse of the Soviet bloc in the early 1990s, 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 in 1997 and there were explosions in tourist buses and hotels. Boats from Miami sailed to Cuba and shelled hotels and tourist facilities.
The five were arrested without a struggle. Their mission was not to obtain US military secrets, but to monitor the activities of the organisations and report back to Havana. They were working against terrorism. Yet they were immediately put 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 that ended seven months later (and three months after 9/11), they were sentenced to maximum prison terms: Hernandez received a double life sentence; Guerrero and Labañino got life; and René and Fernando Gonzalez 15 and 19 years respectively.
Twenty-four of the charges were relatively minor technical offences, such as the use of false names and the failure to register as foreign agents. None of the charges involved violence in the US, the use of weapons or damage to property.
Double standards
There is a revealing contrast between the US government’s handling of this case and that of Orlando Bosch and Luis Posada Carriles. They were self-confessed terrorists, part of the Miami network that planted a bomb on a DC-8 Cubana de Aviacion airliner on 6 October 1976; it exploded in mid-air, killing 73 people. When Bosch applied for legal residence in the US in 1990, an official investigation by the Department of Justice concluded: “He has been involved in terrorist attacks abroad and has advocated and been involved in bombings and sabotage.” Despite this, he was granted residence by President George Bush Sr.
Posada Carriles was arrested in Venezuela, accused of masterminding the 1976 bombing. He “escaped” from San Juan de los Morros prison in 1985, with the help of powerful friends (1). He publicly admitted, from El Salvador where he lived, that he was responsible for a series of bombings in Havana between July and September 1997 (including one in which an Italian tourist, Fabio Di Celmo, was killed and dozens wounded) (2). He was arrested in November 2000 and charged with endangering public safety by having substantial quantities of C-4 explosives in his possession, which he intended to use to kill President Fidel Castro (along with hundreds of others) at the 10th Iberian-American summit in Panama. In April 2004 a local court there sentenced him to eight years in prison.
Yet Posada Carriles received inexplicable hospitality from the US government (busy with its global war on terrorism) after a fraudulent pardon by the outgoing president of Panama, Mireya Moscoso, in August 2004. After a short stay in Honduras he was discreetly repatriated to the US in March 2005. This move was an open secret. He was reluctantly taken into custody after giving a televised press conference. He is now housed by the US authorities, not in a prison but in a special residence inside a detention facility. He does not face prosecution, only an administrative procedure for not having appropriate residential documents, which could lead to his deportation to a country of his choice. The US has refused to extradite him to Venezuela, where he faces charges related to terrorism.
Meanwhile the five Cubans were separated into maximum security prisons, each several hundred miles apart, where they still remain. Two have been denied visits from their wives for the past seven years, in violation of US laws and international norms.
During their seven-month trial, some 70 witnesses testified, including two retired generals, one retired admiral and a presidential adviser who served in the White House, all called by the defence (3). The trial record ran to 119 volumes of transcript. There were 15 volumes of pre-trial testimony and argument. More than 800 exhibits were introduced into evidence, some 40 pages long. The 12 jurors, with the foreman openly expressing his dislike of Castro, returned verdicts of guilty on all 26 counts without asking any questions or requesting a rereading of any testimony, unusual in a trial of this length and complexity.
The crime need not occur
The two main charges against the five alleged something 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, juries often infer agreement, absent any 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 had occurred, merely that there was an agreement to commit it sometime in the future. Although the media soon referred to the five as spies, the legal fact and actual truth was that this was not a case of espionage, but of an alleged agreement to commit it. Relieved of the duty of proving actual espionage, the prosecutors set about convincing a Miami jury that these 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 a single page of classified government information in their possession, even though the government had succeeded in obtaining over 20,000 pages of correspondence between them and Cuba. That correspondence was reviewed by one of the highest-ranking Pentagon military officers on intelligence, who acknowledged that he couldn’t recall seeing any national defence information. The law requires the presence of national defence information to prove the crime of espionage.
No testimony
All the prosecution relied on was the fact that Antonio Guerrero had worked in a metal shop on the Boca Chica navy training base in southern Florida. The base was 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, although the FBI had him under surveillance for two years before the arrests, there was no testimony from any agent suggesting a single act of wrongdoing on his part.
His role 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 also cut articles out of the paper reporting on military units stationed there.
Former high-ranking US military and security officials testified that Cuba presents no military threat to the US, 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” (4).
Information that is generally available to the public cannot form the basis of an espionage prosecution. General Clapper (see note 3) was asked: “Would you agree that open-source intelligence is not espionage?” He replied: “That is correct.” None the less, after hearing the prosecution’s highly improper argument, repeated three times, that the five Cubans were in this country “for the purpose of destroying the United States”, the jury, swayed more by passion than by the law or evidence, convicted. The second conspiracy charge had been added seven months after the first. It alleged that Hernandez conspired with other non-indicted Cuban 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 regarding any alleged agreement between Gerardo and Cuban officials either to shoot down planes, or where and how they were to be shot down. In consequence, the legal 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 appeal rejected. None the less, the jury convicted him of that specious charge.
A new trial
The five appealed their convictions to the Eleventh Circuit Court of Appeal, which sits outside Florida, in Atlanta, Georgia. On 9 August 2005, after a thorough review, a distinguished three-judge panel attached to the court released a 93-page analysis of the trial process and evidence, reversing the convictions and sentences on the grounds that the five did not receive a fair trial in Miami.
A new trial was ordered. Beyond finding that the original trial violated the fundamental rights of the accused, the court, for the first time in US jurisprudence, acknowledged evidence produced by the defence at trial revealing that terrorist actions emanating from Florida against Cuba had taken place, and even citing in a footnote the role of Posada Carilles, correctly referring to him as a terrorist.
The panel’s decision stunned the Bush administration: Miami, with its 650,000 Cuban exiles who had provided the margin of victory for Bush in the 2000 presidential election, had been 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 the trial of these five Cubans. The behaviour of the government prosecutors in making exaggerated and unfounded arguments to the jury who heard the case, exacerbated that prejudice, as did the news reporting before and during the trial.
Before the decision by the eleventh circuit panel, another panel, from the UN Working Group on Arbitrary Detention (the Human Rights Commission), concluded that the deprivation of liberty of the five was arbitrary and called on the US government to remedy the situation.
Bush’s former counsel, the US attorney general Albert Gonzalez, 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 9 August decision, a process rarely successful, least of all when the three judges of the panel were in agreement in their long and scholarly opinion. To the surprise of the many lawyers following the case, the judges of the eleventh circuit agreed on 31 October to review the decision. That process is now ongoing.
The five were not prosecuted because they had violated American law, but because their work exposed those who did. By infiltrating the terror network that is allowed to exist in Florida, they demonstrated the hypocrisy of the US claim of opposition to terrorism.
© 1997-2006 Le Monde diplomatique.
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