[Ppnews] Arrested for Exposing Terrorists

[Political Prisoner News]

Arrested for Exposing Terrorists


The Singular Story of the Cuban Five

By LEONARD WEINGLASS
Five Cuban men, 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.
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 "to find out whether 
indeed we are preparing to attack them".

Information that is generally available to the 
public cannot form the basis of an espionage 
prosecution. Once again, General Clapper, when 
asked, "Would you agree that open source 
intelligence is not espionage?" replied, "That is 
correct." Nonetheless, after hearing the 
prosecution's highly improper argument, repeated 
3 times, that the five Cubans were in this 
country " for the purpose of destroying the 
United States," 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. 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.

Leonard Weinglass is a defense lawyer and civil 
rights activist. He has represented Pentagon 
Papers defendants, the Chicago 8, Angela Davis, 
Jane Fonda, Mumia Abu Jamal and Amy Carter, 
daughter of President Jimmy Carter, among others. 
He is currently representing the Cuban Five.

This story originally appeared in Le Monde Diplomatique.

The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
(415) 863-9977
www.freedomarchives.org 
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