THE SINGULAR STORY OF THE CUBAN FIVE

DESTROY THE UNITED STATES?

THE SINGULAR STORY OF THE CUBAN FIVE

Leonard Weinglass

Published in Le Monde Diplomatique

December, 2005



Five Cuban men, later to become known as the Cuban Five, 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. In other words, no less than 8 judges have reviewed the process that led to the conviction of the Five up to this point and all 8 agreed that their fundamental rights were violated.

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 > .

Information that is generally available to the public cannot form the basis of an espionage prosecution. Once again, General Clapper , when asked, > replied, > Nonetheless, after hearing the prosecution’s highly improper argument, repeated 3 times, that the five Cubans were in this country > 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. Hernandez, who had successfully infiltrated the group that sent the aircraft, was not charged with tipping off the Cubans about the planned flight, its route or mission, but rather with being part of a conspiracy to shoot down the aircraft.

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.

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Leonard Weinglass: "I'm fortunate to be defending the Five"



New York attorney Leonard Weinglass is a veritable monument to the practice of law. He maintains an enviable professional vitality after more than 40 years as a defense lawyer. His perennial commitment to justice - both past and present - is manifest in his defense of those

who have received unjust legal treatment.

He has represented well-known plaintiffs such as Angela Davis, the Chicago Eight, the Pentagon Papers, Jane Fonda and Mumia Abu Jamal, in his struggle for justice. "But only the old folks remember them", he says modestly during a meeting in Havana with a group from the Hispanic National Bar Association and their Cuban counterparts.

For almost four years Weinglass has been part of the defense team for Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando González and René González - the five Cubans arrested September 12, 1998. They had infiltrated terrorist organizations located in Southern Florida to prevent criminal acts being carried out against the Island.

The Longest Trial Ever

During a discussion with Granma newspaper, Weinglass said that the trial that was brought against the Five in Miami was the "longest that has ever taken place in U.S. history", lasting almost six months with 119 volumes of transcriptions and more than 200 depositions from a

large number of witnesses – among them important U.S. generals as well as Richard Nuccio, who was the White House advisor on Cuban affairs during the Bill Clinton administration between 1992-2000.

The Cuban government compiled a copious amount of information on terrorist activities planned against the Island and bound them in four volumes, joined by recorded tapes, that were delivered to the U.S. authorities in June of 1998.

"The material included addresses, locations of camps, and activities by the groups in question that violated U.S. laws - and above all its neutrality - because of plans to carry out projected military action against a nation with which the United States was not at war", commented Weinglass.

"All this was provided to Washington, but Cuba didn't receive a reply – nothing happened. Our prestigious newspaper, The New York Times, also received valuable information, but published nothing. The mercenaries that operate in Florida were permitted to go about with

total impunity, and no action has been taken as a consequence of those documents. This is what motivated Cuba to send a group of patriots to my country to monitor the activities of mercenary forces that were planning violence against Cuba. The only thing the U.S. government did, however, is known: they imprisoned the messengers.

"They went to the United States without weapons, and the government has found nothing; they did no damage to any property; they infiltrated those groups that operate against Cuba and they did so with success. They committed no crime against the people of the United

States, hurt nobody and just reported the activities of these organizations."

They Are Not Guilty

The five Cubans were found guilty of 26 charges after an improper trial full of violations in which defense counsels were not granted access to a good portion of the evidence because it was placed under the so-called "Classified Information Act".

"There are documents that we have not been able – nor will be able – to see" says Weinglass, in spite of the fact that they are known not to be U.S. government documents.

This is why he maintains that this "is the first case in the history of the United States in which a court has said: Although this is a case of espionage, ladies and gentlemen of the jury, we don't have specific documents - not even a single page that accuses them of espionage. They didn't provide a single page of classified information."

But "Miami is different from any other city in the United States: it's the only one with its own foreign policy that has been investigated by a U.S. group for human rights violations. It is not a safe city and nothing can be resolved there in relation to Cuba. For example, the Oklahoma City bombing case was heard in Denver, 200 miles away, to avoid a prejudiced jury. We asked for the case of the Five to be heard only 25 miles away from Miami in Fort Lauderdale and were denied."

When the defense presented its appeal to the Eleventh Circuit Court in Atlanta, a panel of three judges took 16 months to reach a verdict. "In a 93-page ruling – the longest in the history of the United States - the court for the first time ever unanimously ruled that the trial

held in Miami had been erroneous and reversed all the sentences.

"The panel explained that this case was a perfect example of the storm of prejudice centered upon Cuba, and for that reason the judgment was reversed. On the last page of the ruling appeared something that had never before been seen in a court of appeals: a statement asking the Miami community to understand that the federal judges were obliged to apply constitutional precepts in a just manner and that there should be an apology for this bad procedural application of a rightful trial."

"It was an unprecedented decision", said Weinglass, but the U.S. government did not agree and through the federal prosecutor requested that the entire Eleventh Circuit Court review the decision of the panel. This request was granted and an oral hearing was held in Atlanta last February 14. Now we are awaiting the ruling."

Although there is confidence and assurance in all the arguments presented with the truth clearly on our side, we cannot forget that the case of the Five was a political one from the outset. The very request to reconsider this ruling by the panel on August 9, 2005, confirms this. The obstacles will be numerous: in the last 25 years the Eleventh Circuit Court of Appeals has never granted a defense attorney a victory.

"The history of this case shows a parallel between the relations of both countries. Our legal system has been affected by foreign policy requirements in relation to Cuba."

Although he is part of the overall defense team, Leonard Weinglass represents Antonio Guerrero. Has he had recent contact with his client?

"I maintain telephone contact with Tony. He's well, in spite of being in a maximum security prison which has the reputation of being one of the worst in the United States. When his mother visits she is never allowed to see him for the entire visiting period as, for one reason

or another, they always shorten the visit."

It's now been three months since the oral hearing before the full Atlanta appeals court. Is there any news?

"No news is forthcoming from the Atlanta court, but the more recent events on a national level should be favorable for the case of the Five. I'm referring to the attempt to protect the terrorist Luis Posada Carriles (under detention in Texas for immigration violations) in the United States. There are other cases pending in Florida such as those of Santiago Álvarez Fernández-Magriñá and Osvaldo Mitat, whose trial will soon begin, as well as the arrest in Los Angeles of Robert Ferro who was found with a large number of weapons and stated he was a

member of Alpha 66 (a paramilitary Florida-based organization that has carried out attacks against Cuba). They are all confessed terrorists.

"This shows once more that Cuba has been the victim of an aggression that emanates from the United States and this has been the fundamental defense position we have taken in our case. The recent events have enabled us to become a little more optimistic in respect to the

decision that the Atlanta court may make."

About four years ago Leonard Weinglass joined the Cuban Five defense team. What has he gained from the experience?

"I've learned how fortunate I am to be defending these five young men as a U.S. attorney. I have been personally able to appreciate their courage, gallantry and strong principles, and this has been a privilege. I can also state that all the other attorneys on the team feel this way."

If the verdict being awaited in Atlanta supports the ruling of the three judge panel on August 9, 2005, what will happen with the Five?

"The case will revert to the beginning again, in Florida, where we will present our arguments to support their release and that they be allowed to return to their families here in Cuba."

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Jornada Mundial por los Cinco del 12 de Septiembre al 6 Octubre

Del 12 de septiembre al seis de octubre próximos tendrá lugar una Jornada Mundial para acabar con el silencio acerca del caso de los Cinco, de denuncia contra el terrorismo y en reclamo de justicia para las víctimas de sus criminales acciones.

Ese día, 12 de septiembre, se cumplirán 8 años del injusto encierro al que han sido sometidos los Cinco Héroes cubanos Gerardo Hernández Nordelo, Ramón Labañino Salazar, René González Sehwerert, Fernando González Llort y Antonio Guerrero Rodríguez, luchadores antiterroristas que cumplen largas e injustas condenas en cárceles de Estados Unidos.

La jornada tendrá además otras dos fechas claves: el 21 de septiembre cuando se cumplirán 30 años del asesinato de Orlando Letelier, canciller del gobierno de Salvador Allende, víctima de un atentado en las calles de Washington junto a la norteamericana Ronnie Moffit, y el 6 de octubre, 30 aniversario del atentado a un avión de Cubana de Aviación en el que fallecieron 73 personas.

Los responsables de estas acciones, no están presos ni han sido condenados, gozan de la impunidad que les brinda el gobierno norteamericano. Documentos recién desclasificados por las autoridades norteamericanas prueban no sólo la participación en tan monstruosos hechos de Orlando Bosch y Luis Posada Carriles, sino que el gobierno de Estados Unidos lo sabía y ha estado encubriendo y protegiendo a esos asesinos, durante todo este tiempo.

Esta gran movilización mundial denunciará la falacia de la actual cruzada antiterrorista de Estados Unidos, reclamará el cese de la impunidad de que gozan Posada Carriles, Orlando Bosch y otros connotados criminales internacionales, y exigirá la libertad inmediata de los Cinco cubanos.

La situación de los Cinco durante 8 años - aislados en diferentes cárceles, una buena parte de ese tiempo además en confinamiento solitario, y víctimas de un cruel castigo adicional: la restricción de sus visitas familiares - se sostiene pese a que dos prestigiosos organismos jurídicos determinaron la ilegalidad del proceso contra ellos.

El 27 de mayo de 2005 el Grupo de Trabajo sobre Detenciones Arbitrarias de la Comisión de Derechos Humanos de Naciones Unidas declaró arbitraria su detención e instó al Gobierno de Estados Unidos a adoptar de inmediato las medidas necesarias para solucionar esta situación.

El 9 de agosto de 2005 los tres magistrados a los que la Corte de Apelaciones del 11 Circuito de Atlanta encargó el caso de los Cinco, hicieron pública su decisión determinando unánimemente revocar las condenas y ordenar un nuevo juicio. La Corte reconoció el derecho de los Cinco a ser juzgados imparcialmente en una atmósfera no hostil y a tener un juicio justo tal como lo contempla la Constitución de Estados Unidos.

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http://www.antiterroristas.cu

http://www.ain.cubaweb.cu/patriotas/principal.htm

http://www.granma.cubaweb.cu/miami5/index.html

http://www.juventudrebelde.cu/inocentes/index.html

http://www.freethecuban5.com

http://www.freethefive.org/

http://www.cubanews.ain.cu/

http://www.familiesforjustice.cu/interface.en/design/home.tpl.html

http://www.granma.cubaweb.cu/secciones/ingles/index.html

http://www.granma.cu/ingles/index.html

http://www.plenglish.com/

http://www.cubanow.net/