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by posted by F Espinoza
Friday, Aug. 17, 2007 at 10:12 AM
The allegation of «Conspiracy to gather and to transmit information on National Defense» is the technical charge, according to US criminal law (18USC & 794), commonly called «Conspiracy to commit espionage». It is without doubt the central topic of the legal process against five Cuban prisoners wrongly held in the United States...
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The Cuban Five: Mission against Terror and Hypocrisy
A View from Atlanta: Deconstructing the Illusion of «Espionage»
by Rodolfo Davalos
August 12, 2007
The allegation of «Conspiracy to gather and to transmit information on National Defense» is the technical charge, according to US criminal law (18USC & 794), commonly called «Conspiracy to commit espionage». It is without doubt the central topic of the legal process against five Cuban prisoners wrongly held in the United States. One should recall that the Miami press once called theirs «the spy trial,»a description that used on other occasions in El Nuevo Herald during the trial itself.
For that crime, three of the men were each unjustly sentenced to life imprisonment. What is necessary is to rebut those accusations, to demonstrate the lack of evidence about the charges and reveal the innocence of the accused. This will be central task of the defense lawyers this coming August 20 before the three-judge panel in charge of hearing appeals presented to the Eleventh Circuit of Appeals in Atlanta.
This issue triggers discussion when one raises the case of the Five before any audience. The accusation of «espionage»(generically speaking) it tends to create concern by anyone who hears that dark and menacing description. Nonetheless, where the true conspiracy against the Five existed was on the part of the government of the United States, which crafted a macabre plan to discredit the accused and to present them as dangerous criminals, as enemies of the American people.
When unable to try the men for espionage, they accused them of «conspiring»to commit it, something ethereal, subjective. The presumption of innocence was reversed, since what was alleged by the prosecution was that «they had the intention of appropriating»supposedly «classified information»that never appeared, that has not been seen, that was not presented – nor could be it, which was never the intention. But that name is there in the charges, in the atmosphere that was created by the prosecution in the trial, and that they conveyed to the jury. The result: three sentences for life imprisonment.
One time I gave information on the unjust process to a German lawyer. He later spoke with me for several hours about how the crime of espionage is completely differs from what was carried out by the Five. The accusation was manipulated and tendentious, and what was even worse was the information given out by the press in Miami. The experienced and recognized lawyer, a progressive, previously did not have the correct information, yet since then he has never taken his eye off the case. Moreover, he continues to contribute his abilities to the just cause.
What is important is to explain what the Five were doing in United States and why. I remember that at the beginning this was a topic on the Cuban news/commentary program «the Round Table.»I was coming home one night after the program and ran into an old friend — a neighbor, a revolutionary above any suspicion. He yelled at me from saying, «Very well, professor, very well.»– yet immediately he came closer and whispered to me about the trial. «But they are spies,»he said. I couldn’t believe it, I froze! If that old revolutionary believed that the Five were spies what would others think? I invited him to come into the house and I explained to him:
«There are not spies without espionage. Espionage is a crime, and like all crimes it has to be «codified»in criminal law, that is to say described in the penal code as constituting an illegal action and therefore punishable.
The crime of espionage, according to American federal law itself, consists of appropriating, gathering and transmitting information pertaining to National Defense – information that is classified and protected by the State and would cause damage to United States if known by non-authorized parties.
What does that have to do that with the actions of the Five, with monitoring terrorist organizations and groups? Were there any classified documents protected by the State or relating to National Defense? This question was asked during the trial to US Army General Edgard Atkenson, the former head of the Office of Intelligence and an instructor at the Intelligence School of the Defense Department. He responded with a categorical «No.» They were not «spying.”
With this information, my neighbor ended up convinced that night, as convinced the three judges from Atlanta will end up.
If there is justice in Atlanta, this will end the dirty game of allegations of «spies»that has kept the five men in jail for nine years, despite the fact that known anti-Cuba terrorists Luis Posada Carriles «peacefully»walks the streets of Miami.
Justice cannot permit a similar infamy.
A Sun That Will Never Burn Out
by Ricardo Alarcón de Quesada
February 11, 2002
Early in the morning of Saturday, September 12, 1998, the FBI informed Ileana Ros-Lehtinen and Lincoln Díaz Balart, hornblowers for the Batistian terrorist mob in Miami, that it had just arrested five purported “spies” living there.
Although the Florida Congressional Delegation comprises 25 individuals, none of the others were given advance notice by the investigators. At the time, the FBI had yet to ascertain the identity of three of the men arrested, while the other two held U.S. citizenship. The above-mentioned “legislators” do not occupy positions in Congress related to security or intelligence matters. Why this privilege? Why share information with them from an “investigation” yet to be made public?
Formal charges were not laid until four days later. But from the very beginning, it was clear that this was a case of a political-repressive operation, aimed solely at benefiting the most aggressive and violent sector of those who had turned South Florida into the main base for their war on Cuba since 1959.
The various counterrevolutionary factions and politicians and officials closely tied to them immediately unleashed a frenzied and hysterical campaign to stigmatize the five prisoners. There in South Florida, where almost all of the printed, radio and television media are controlled by the anti-Cuban mob or operate under its constant threat, not a day went by without the appearance of new articles or announcements, including statements by officials, slandering and denigrating the five by portraying them as dangerous enemies of society.
The real reason behind their unjust imprisonment was hidden. Not a word was published about the unblemished and honorable trajectory of their exemplary lives, in Cuba and the United States, as students, workers, fathers or citizens. Nothing was said about the selfless and admirable sacrifices they made to protect their country and its people. Nor was anything said about what had happened to them since the early morning hours of that September 12, or about the brutal conditions they suffered in one of the worst prison systems ever even imagined by humankind.
Gerardo Hernández, Ramón Labañino, Fernando González, Antonio Guerrero and René González are victims of an abominable injustice and of cruel, inhuman and degrading treatment that blatantly violates their human rights and is irrefutable proof of the arbitrariness and illegitimacy of the legal proceedings to which they were submitted. From the day of their arrest until February 3, 2000, throughout 17 months, they were kept in solitary confinement, isolated from each other and from other prisoners. They were shut up the entire time in the “hole”, a term used to describe the unspeakable treatment reserved for part of the U.S. prison population. The legal representation for the five fought tenaciously until the men were finally integrated into the regular prison system. But the fact that this was accomplished in no way diminishes the unjustifiable atrocity committed against them. What is more, their treatment constituted a violation of U.S. prison regulations, which establish the use of solitary confinement solely as punishment for infractions committed in prison, and limit its length to a maximum of 60 days for the most serious cases, such as murder. They had obviously not violated any of the prison’s regulations before being imprisoned, nor had they ever killed anyone. Nevertheless, they were kept in total isolation, and it is worth reiterating, throughout 17 months.
During this lengthy period, it was impossible for them to maintain adequate communication with their attorneys and prepare their defense with the minimum guarantees of due process. If there were anything similar to justice in Miami, then for this sole fact, the court should have ordered their release and obliged the government to make adequate reparations.
But in Miami, when it is a matter of Cuba, there is nothing that even remotely resembles justice.
We should mention the commendable work done, in spite of everything, by the defense. The five defendants did not have attorneys of their own, nor the financial resources needed to hire them. As a result, they were assigned public defenders, with whom they had no prior relationship whatsoever. When these lawyers came to know the men they were defending, however, they were able to appreciate the purity of their motivations and the nobility and heroism of their conduct. And despite the profound ideological differences separating them – which they attested to in court – they became convinced of the absolute innocence of the five, as reflected in the personal effort they made to defend them, above and beyond their professional skill.
While the five heroes endured in the shadows and in utter solitude, their cowardly enemies occupied cameras, microphones and newspapers day and night to slander them and threaten their families and friends, as well as to administer “justice” Miami-style. You could read up on all the details of this so-called legal trial in the city’s slander sheets, including the details of additional charges that the prosecution would formulate many months later. This was how news came out, for example, of the most aberrant, absurd and false accusation of all – conspiracy to commit murder – presented for the first time by the prosecution in May of 1999. This took place after the prisoners had already spent eight months in jail in complete isolation, and following a shameful operation in the Batistian terrorist mob-controlled press and public and private meetings between the prosecutors and mob members, at which plans to put forward the fallacious charge were openly announced.
Holding a trial in this city with even the appearance of a normal legal proceeding was inconceivable. That it was impossible had been fully demonstrated even before jury selection. Yet the repeated requests made by the defense to have the trial moved to another city were turned down by Joan Lenard, the Miami federal judge to whom the case was assigned.
During that same time, an event took place that earned notoriety in the international press. Concerned over openly announced threats of violent acts, the organizers of the Latin Grammy Awards decided to move the ceremony originally scheduled to take place in Miami to Los Angeles. If it was not possible to judge the work of some of Cuba’s finest musical performers in peace in Miami, if they could not guarantee the safety of the participants in a concert there, as was publicly stated by the organizers, then who could possibly believe that a peaceful and impartial trial could be held there for individuals subjected to the most ferocious slander campaign imaginable and portrayed as “dangerous” agents of the Cuban Revolution?
Ms. Lenard offered no explanation as to why the trial had to be held there, only there, and nowhere else. But she did say something to the press that could provide the key to understanding her stubborn insistence: “this trial will be much more interesting than any TV program,” she proclaimed, erudite and severe, on March 16, 2000.
Of course, local television turned out to be indispensable for following the trial. It is only fair to acknowledge that the designated counsel responsible for the defense were not locked up in the “hole” along with the defendants, and unlike the latter, they were allowed to read newspapers, watch television and listen to the radio. We must also point out, however, that it was often through these media that the lawyers received news, long before any official communication was made, of the steps being taken by the prosecution, the purported “evidence” they claimed to possess, the charges that could be laid, and even the motions they raised in their obstinate efforts to introduce some semblance of legality into the midst of such arbitrariness and fraud.
And if all of the foregoing were not sufficient, there were numerous violations of procedure during the court sessions that even further vitiated a trial that was rigged and therefore nullified from the very outset. The defense attorneys were not allowed access to all of the “evidence” used to back the charges made. Instead, it was selectively doled out by the prosecution, which on more than one occasion introduced hundred of pages of new “evidence” without prior notice, or prevented the complete examination of the documents submitted, leading to repeated objections from the defense. The defense was denied its request for the inclusion of evidence, including official documents, that were fundamental for shedding light on the accusations made against the defendants. A number of witnesses were openly pressured by the prosecution, in front of the judge, right in the courtroom, in view of everyone, under the threat of being charged themselves if they revealed certain information. The court provided the counterrevolution’s mouthpieces with over 1400 pages of documents selected by the authorities which was blatantly manipulated by the local press and thus served to fuel the incessant and spurious propaganda campaign to demonize the accused. The media joined with the terrorist groups that freely operate there to organize public demonstrations as a means of pressuring the jury and the judge.
That is because, in spite of everything, the mob came to be seriously worried over the way the trial was unfolding. Fully aware of the absolute falseness of the charges made, they feared a verdict contrary to their purposes. They were particularly alarmed by the fact that the defense attorneys, through their talent and high degree of professionalism, had exposed the shady maneuvers of the prosecution and effectively put the mob itself on trial.
The evidence and arguments put forward by the defense were overwhelming. They clearly demonstrated the terrorist activities carried out from Miami against Cuba and the complicit tolerance exhibited by the U.S. authorities, which make it necessary for the Cuban people to defend themselves through the heroic efforts of men like the accused in the case. They made it abundantly clear that the defendants had not sought out information that would threaten the national security of the United States, and had caused no harm to anyone. Testimony to this effect was provided by officials from the FBI itself and the Southern Command, and high-ranking military figures who had held major positions in the U.S. armed forces. These included General Charles Wilhelm, former head of the Southern Command; General Edward Atkeson, former US Army deputy chief of staff intelligence; Rear Admiral Eugene Carroll, former assistant deputy chief of naval operations; and Colonel George Bruckner, who had occupied a high-ranking position in the command of the U.S. Air Defense System. Even General James Clapper, former director of the DIA (the intelligence agency of the U.S. Department of Defense), called to testify as an expert witness for the prosecution, acknowledged that the accused had not committed espionage against the United States.
At the end of five months of courtroom battle, in the most difficult and hostile conditions imaginable, the total innocence of Gerardo, Ramón, Fernando, René and Antonio and the guilt of their accusers had been made abundantly clear.
The accused had carried out no espionage activities whatsoever. They had neither obtained nor sought any information related to the security, defense or any other interest of the United States. They had done nothing to cause damage to that country or its citizens. Not a single piece of inculpatory evidence had been put forward. Not a single witness had uphold the charges.
Their selfless efforts had been focused, solely and exclusively, on infiltrating terrorist groups and informing Cuba of these groups’ plans for aggression against the island. They never hid this fact. During the trial, it was thoroughly demonstrated that terrorist acts are carried out against Cuba from Florida, and that the U.S. authorities do nothing in response to these acts. As a result, in the exercise of its inalienable right, Cuba is obliged to defend itself from these activities which, as was also clearly demonstrated, have sometimes led to the loss of lives and serious damage for the people of the United States as well.
The most serious accusation, made against Gerardo Hernández – conspiracy to commit murder, in connection with the incident of February 24, 1996 – is a colossal outrage and unprecedented stupidity. There is a lengthy record of the use of light aircraft taking off from Miami to carry out countless and repeated violations of Cuban airspace and to perpetrate numerous crimes, including shootings, bombings, and the dropping of chemical and bacteriological substances. All of this was amply documented during the trial. It was equally documented that before the date in question, Cuba had warned that it would not tolerate further incursions into its territory. Cuba’s defensive action against those who had once again violated its airspace, and right in front of the center of its capital, fully complies with international law. And independently of all of this, Gerardo had nothing to do with the decision carried out by the Cuban air force. He had no involvement whatsoever, in any way, with what happened that day. Consequently charging him with first degree murder and sentencing him to a second life sentence is quite simply the height of both outrage and stupidity. Never before in the history of the US had anyone been found guilty of first degree murder without a single witness, without a shred of proof, without putting forward even circumstantial evidence.
The terrorist mob, in despair, publicly acknowledged its defeat and intensified its virulent and strident campaign to intimidate the court as the trial drew ever closer to its end.
This was the setting in which the jury pronounced its decision. After announcing, with unheard of precision, the exact date and time at which this decision would be pronounced, with remarkable speed, in just a few hours, without asking a single question or expressing a single doubt, it reached a unanimous verdict: the five were declared guilty of each and every one of the charges against them.
A brief aside on the subject of the jury is called for. Right from the time of the jury selection process, its members were subjected to the relentless pressures and maneuvers typical of the poisoned atmosphere of a city totally devoid of lawfulness. The counterrevolution’s mouthpieces did not even attempt to hide it. On December 2, 2000, for example, El Nuevo Herald, in an article entitled “Fear of being jury member in trial of spies”, stated: “The fear of a violent reaction on the part of the Cuban exile community if a jury decides to acquit the five men accused of spying for the island regime has led many potential candidates to ask the judge to excuse them from civic duty.” And one of these citizens is quoted as saying, “Yes! I fear for my own safety if the verdict is not to the liking of the Cuban community.”
This fear was not unfounded. The members of the jury lived in a community that had only recently suffered months of violence and anxiety, when a group of criminals held Elian Gonzalez, a six-year-old boy kidnapped, openly and publicly, defying the federal authorities with firearms. These individuals had burned the American flag, destroyed property, plunged the streets into chaos and threatened to burn the city down, without one of them ever facing trial for these acts. The members of the jury were also aware of the physical and verbal attacks, the threats and bombs used against those who dared to voice opinions contrary to the ones held by those who control this “exile community”. If they had done all of these things in broad daylight and in front of television cameras from around the world, what would they not have done in secret to bribe and control a dozen frightened people?
The party got going in the courtroom itself, where prosecutors and mobsters, FBI officials and terrorists merged in a confusing tangle of kisses and embraces. They kept the celebrations going later in bars and taverns and the headquarters of counterrevolutionary organizations, inundating the radio waves, all of them together, with their brazen diatribes and threats against anyone in Miami who opposed these anti-Cuban misdeeds. The head of the local FBI office himself was honored with a public tribute on the local “Cuban radio” stations, which openly advocate war and terrorism on a daily basis; he sang in perfect harmony with the most notorious criminals among them.
In the meantime, the five men were once again locked up in the “hole” from June 26 to August 13. They had committed no infractions whatsoever. There was nothing to justify this new violation of their rights and of prison regulations. It was an act of mindless vengeance to punish them for their integrity, but it was also a form of torture, with the deliberate purpose of breaking them down and preventing them from adequately preparing for the next and final stage of the trial: the sentencing hearings scheduled for the following month. The initial 17 months of solitary confinement were aimed at making it impossible to organize their defense; this further 48 days of complete isolation were meant to prevent them at any cost from preparing for the only opportunity they would have to directly address the court. For this reason, when they were finally returned to their usual cells following insistent demands by their attorneys, their access to telephone communication was restricted and they had most of their belongings taken away, leaving them with barely a pencil stub to write with. First they had tried to make it impossible for them to defend themselves, now they were attempting to stop them from denouncing the crime being committed against them.
Ms. Lenard had originally planned to pronounce judgment during the month of September. But then the atrocious attack on the Twin Towers took place on September 11, and it was perhaps her high degree of sensitivity that led her to allow a suitable amount of time elapse between this date and the tribute that she, as a resident of a Miami herself, would be rendering to the terrorists.
She did it in December. She imposed the toughest sentences possible on all five of the defendants, disregarding the potential mitigating circumstances and incorporating the aggravating circumstances put forward by the prosecution. She essentially acted like an echo of the anti-Cuban hatred and prejudices that had poisoned the entire proceedings, clearly expressing this in words and in the irrationally excessive sentences she passed down. For Gerardo Hernández, two life sentences plus 15 years; for Ramón Labañino, a life sentence plus 18 years; for Fernando González, 19 years in prison; for René González, 15 years in prison; and for Antonio Guerrero, a life sentence plus 10 years.
Yet their voices were not silenced. Their long, brutal and profoundly unjust imprisonment did not intimidate them. Nor were they weakened by the psychological tortures and pressures, or the absence of family and friends. Nothing could break their indomitable spirit. Lacking the basic necessities for organizing their thoughts and getting them down in writing, they were able to rise above the filth that strove to crush them and deliver the formidable statements published in this book.
Far from following the Philistine American tradition of using this final opportunity offered to the accused to grovel before the judges and beg for clemency with a show of repentance, the five men denounced and exposed their accusers, laid bare all of the illegitimacy and arbitrariness of a trial that was fixed from the outset, and reaffirmed their unshakable loyalty to their homeland, their people and their ideals.
At the time these lines were written, the five heroes were once again separated and isolated, newly shut away in some “hole”, although their exact location is unknown. All that is known is that Gerardo will be sent to the Lompoc penitentiary in California; Ramón to Beaumont, Texas; Fernando to Oxford, Wisconsin; René to Loreto, Pennsylvania; and Antonio to Florence, Colorado. A quick look at a map of the United States makes it clear that they are being spread to the five most distant and dispersed points in the country possible. As well as distancing them from one another, this arrangement will also make it extremely difficult for them to have any contact with family members living in Cuba and with Cuban diplomatic representatives, who should be allowed access to them, in accordance with international standards.
All five are notoriously severe prisons, to which they undoubtedly send inmates convicted of the worst crimes. Given the potential for brutality demonstrated by the authorities in a place like the federal detention center in Miami, where the five were kept from the time of their arrest along with others awaiting trial, it is easy to imagine the cruelty they will have to endure in the United States’ toughest prisons. It is particularly outrageous, and should be denounced as vigorously as possible, that Washington has completely ignored universally accepted principles, standards and practices and failed to acknowledge the political prisoner status of these five heroes of the Republic of Cuba.
The brazenly treacherous conduct of the U.S. authorities in this case fully reveals their genuine stance towards terrorism and the utter hypocrisy of the campaign deployed after the horrific attack of September 11, 2001. These five heroic Cubans are being punished precisely because of the fact that they truly did fight against terrorism, even at the cost of their own lives. Those who have taken away their freedom and sought to slander and denigrate them have done so because they dared to combat the heinous criminals who were created and continue to be protected by those very same authorities. Every hour that they spend locked up in that living hell is an insult to the memory of those who lost their lives on September 11 and all other victims of terrorism. It is also an affront to all those who believe in dignity and human decency. The Cuban people will fight relentlessly until the five are freed and can return to their homes and their homeland. In order to achieve this goal, the solidarity of all men and women of good will around the world is urgently needed.
The five speeches compiled in this book will give the reader an idea of selflessness, nobility and idealism of Gerardo, Ramón, Antonio, Fernando and René.
They are oratory works that will survive the test of time. Millions and millions of people will read them, and feel both moved and grateful. Above and beyond their obvious merits in style and content, they are even more remarkable in view of the terrible circumstances in which they were conceived. They give voice to the very best in all of humankind. They bring a message of struggle, of hope and of victory. They are like a sun whose rays manage to break through the utmost darkness. A sun that will never burn out.
February 11, 2002
 Introduction to the book published by the Colombia-Cuba Friendship Association, containing the statements made by Gerardo Hernández, Ramón Labañino, Fernando González, Antonio Guerrero and René González at their sentencing hearings in Miami.
Committee to Free the Cuban Five Convenes Press Conference after the August 20 Hearing Date
The National Committee to Free the Cuban Five
Oral arguments in 11th Circuit Court
Mon., Aug. 20, 3:00 pm, Room 338
11th Circuit Courthouse, 56 Forsyth St. N.W., Atlanta
(press conference immediately after hearing)
As their ninth year of imprisonment nears completion, the Cuban Five will have their latest appeals heard in oral arguments on August 20, 2007.
The Cuban Five, Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González, were arrested Sept. 12, 1998, and unjustly convicted before a Miami jury in June 2001, of espionage-conspiracy and related charges. As the Five showed in their 7-month trial, they were only in the U.S. to monitor terrorist groups and prevent terrorist attacks on Cuba.
In recent weeks, their case has received major international media attention, with coverage by The New York Times, BBC, and Reuters. For the first time, one of the Five, Gerardo Hernández, was interviewed live, on BBC.
International and U.S. jurists will observe hearing
Jurists and others from around the world will be in Atlanta to observe the hearing. Among the countries represented will be Chile, Brazil, Italy, Germany, Ecuador, England, Canada, Belgium and the United States.
Among those attending the hearing are: Ramsey Clark, former U.S. Attorney General; and Cynthia McKinney, former U.S. Congressperson; Juan Guzmán, Chilean judge who led the prosecution of dictator Augusto Pinochet; Dr. Norman Paech, human rights attorney and member of the German parliament, and many others.
Press Conference immediately after the hearing, approximately 4:30 pm, at
127 Peachtree St. N.E., lower level (two blocks from the court)
The appeals attorneys and jurists will speak at the press conference. To arrange interviews beforehand, contact the National Committee to Free the Cuban Five.
Third judge added to court panel
A third judge, William Pryor, has been added to the panel. Pryor has served on the 11th Circuit bench since his appointment by President Bush in 2003. There will now be three judges to hear the arguments. The other two judges, who decided unanimously for a new trial and overturning of the Five's convictions in 2005 (in the original 3-judge appeals panel) are: Stanley Birch and Phyllis Kravitch.
About the National Committee To Free The Cuban Five...
The National Committee to Free the Cuban Five, formed in June 2001 after the Five's unjust conviction, works to create public support for the freedom of the Cuban Five. It has collected over 100,000 petition signatures demanding that Pres. Bush free the Five anti-terrorists; published a full-page ad in the New York Times (Mar. 2004) and sponsored numerous public forums. The committee organized a national demonstration in front of the White House last Sept. 23, 2006.
2489 Mission St., #24, San Francisco, CA 94110, 415-821-6545, http://www.freethefive.org
For more information contact:
• Gloria La Riva
phone: 415-312-6042 (cell) or
• Steven Patt
phone: 408-823-3391 (cell)
http://youtube.com/watch?v=CCdGdpeNps8 Video: "Mission against Terror"
http://www.granma.cu/ingles/2007/agosto/lun6/32NYT.html "The New York Times" article
http://www.bbc.co.uk/worldservice/ondemand/rams/nh27166____2007.ram BBC interview with Gerardo Hernández, one of the Cuban Five. Or read it at the site of: http://www.antiterroristas.cu
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