[Ppnews] The Untold Story of the Cuban Five - The Unheard Call

[Political Prisoner News]

http://www.counterpunch.org/alarcon09162009.html

September 16, 2009


The Untold Story of the Cuban Five


The Unheard Call

By RICARDO ALARCÓN de QUESADA

Having exhausted their appeal efforts, the Cuban 
Five petitioned the Supreme Court to review their 
case. They were not asking too much. It was a 
case deserving the attention of the Justices for 
a number of reasons, some of a really exceptional nature.

All along the legal process – one of the most 
prolonged at the time in American history – a 
number of constitutional rights were violated, as 
well rulings which contradicted with the holdings 
in other Circuits - which are considered to be 
the main business of the Justices - on important 
issues such as venue, racial discrimination in 
jury selection, sentencing, and defendants and defense lawyers’ rights.

It was a case, furthermore, having a direct 
connection with terrorist groups and their 
activities within the US territory – at a time 
when terrorism was supposed to be the biggest 
issue – and with clear implications in terms of 
international relations; a case in which generals 
and top military chiefs and even a president’s 
special advisor had appeared on the witness 
stand. It had the distinction of being unique in several respects.

The original Court of Appeals panel’s unanimous 
determination, after having examined all aspects 
of the case for several years, to set aside all 
the convictions and order a new trial, was in 
itself unique, as was the 93-page document 
explaining the ruling. Very exceptional was the 
US government decision, taken at the highest 
level, to demand the en banc Court to reverse the 
decision and very rare getting the Court agreeing 
to such an uncommon petition.

On the other hand, it is not a regular thing for 
an appellate judge to ask the Supreme Court to 
review a case, much less to do so twice as did 
Judge Birch, who repeated that demand while 
strangely joining Judge Pryor in his shameful judgement.

It was unique also in terms of concern and interest all over the world.

In 2005, prior to the determination of the 
Appeal’s Court panel, a very important and also 
unique decision was unanimously adopted by the UN 
Working Group on Arbitrary Detention. This is a 
completely independent entity, not an 
intergovernmental body, with five judges – one 
for each Continent – not representing any UN 
member state and conducting themselves 
exclusively in a personal capacity.  The UN group 
studied the situation of the Five at the request 
of their wives and mothers. The group spent 
several years researching the case in its 
entirety and interacting with the US in official 
correspondence. The Cuban government was never 
consulted, as it should not be, because Cuba was not a party to that process.

It was a history-making decision. The UN group 
concluded that the deprivation of liberty for the 
Five was arbitrary and in contravention of the 
relevant UN Human Rights Conventions and called 
on the government of the United States to take steps to remedy the situation.

The Group stated that: “the trial did not take 
place in a climate of objectivity and 
impartiality which is required” and “the 
Government [of the United States] has not denied 
that the climate of bias and prejudice against 
the accused in Miami persisted and helped to 
present the accused as guilty from the beginning. 
It was not contested by the Government that one 
year later it admitted that Miami was an 
unsuitable place for a trial where it proved 
almost impossible to select an impartial jury in a case linked with Cuba.”

“The Government had not contested the fact that 
defense lawyers had very limited access to 
evidence because of the classification of the 
case by the Government as one of national 
security” which “undermined the equal balance 
between the prosecution and the defense and 
negatively affected the ability [of the defense] to present counter evidence.”

The UN experts noted that the accused “were kept 
in solitary confinement for 17 months,” and as a 
consequence “communication with their attorneys 
and access to evidence and thus, possibilities to 
an adequate defense were weakened.”

In conclusion they determined that these “three 
elements, combined together, are of such gravity 
that they confer the deprivation of liberty of 
these five persons an arbitrary character.” 
(Report of the UN Working Group on Arbitrary 
Detention E/CN.4/2006/7/Add.1 at p. 60, Opinion 
No. 19/2005 - United States of America)

This was the first and only time in the history 
of the United States and in the history of the 
United Nations that a UN body had found a trial 
process in the US to be unfair and contrary to 
universally established standards of human rights and international law.

But that finding of five independent judges, none 
of them, by the way, a leftist or a radical, was 
not easily available in the American media and 
most Americans probably have never heard of it.

Many Americans do not know about the Cuban Five 
because they have not been permitted to know.

Not only was the long trial of the Five 
maintained in the dark, Americans have not even 
been allowed to know that this case has been very 
much in the minds of many millions around the 
globe. The big corporate media that didn’t report 
their legal battle threw a similar curtain of 
silence around the wide, ever growing, movement 
of solidarity that the Cuban Five have received 
practically everywhere from Ireland to Tasmania, 
from Canada to Namibia. Churches, parliaments, 
human rights organizations, labor unions, 
writers, lawyers and peoples from all walks of 
life have expressed their concern and interest in 
all languages, English included.

But the Supreme Court did not bother to listen.

Ricardo Alarcón de Quesada is president of the Cuban National Assembly.




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