[Ppnews] Cuban Five - The Habeas Corpus Appeal of Gerardo Hernández

Political Prisoner News ppnews at freedomarchives.org
Wed Jan 19 13:27:16 EST 2011

The Habeas Corpus Appeal of Gerardo Hernández, One of the Cuban Five


“Gerardo Hernández never did receive due process 
of law either on the part of the prosecutors or his own defense.”
  Leonard Weinglass

Attorneys for Gerardo Hernández, a Cuban citizen 
serving two consecutive life sentences plus 15 
years in the maximum security wing of the US 
Federal Penitentiary at Victorville, California 
have filed his final appeal in the US legal 
system. The evidence supporting his right to a new trial is staggering.

Hernández is one of ten Cubans who, like the 
Russian agents arrested in the summer of 2010 in 
New York, New Jersey and Massachusetts, were 
arrested by the FBI in Miami in 1998 and charged 
with failing to register as agents of a foreign 
government, as well as  conspiracy to commit 
espionage. Unlike the Russians, who were swiftly 
deported and never faced a trial, five of the 
arrested Cubans quickly pled guilty and were 
rewarded with reduced sentences and green cards, 
while the remaining five, including Hernández, 
were thrown into separate solitary confinement 
cells for nearly a year and a half to await their 
court date. All the evidence for, against, and 
irrelevant to their cases was locked away by 
federal authorities under cover of national 
security. The government’s manipulation of the 
evidence is one of the issues raised in the appeal.
During the 1990s, as rightwing Cuban Americans in 
Miami rejoiced at the toppling of Cuba’s 
principal sponsor, the Soviet Union, their 
actions against Cuba grew ever more provocative 
as they aimed for a similar result. Small Miami 
based boats and planes began buzzing in and out 
of Cuban seas and airspace, shooting at beachside 
hotels, dropping objects from the skies, and 
meanwhile, mercenaries were hired to plant bombs 
and bring weapons into the country, with tragic 
and lethal results. The Cuban agents were sent to 
Miami in order to report back to Cuba and thwart 
these actions, which Cuba quite understandably views as terrorist attacks.

Hernández was their leader.

As the trial date approached in 2000 for the 
“Cuban Five” (as they are known in the US), an 
additional count was suddenly added to the first 
two against Hernández. The third count was 
“conspiracy to commit murder by supporting and 
implementing a plan to shoot down United States 
civilian aircraft outside of Cuban and United States airspace.”
Nearly five years prior to the trial, on February 
24, 1996, two planes belonging to one of the 
Miami paramilitary groups known as Brothers to 
the Rescue (BTTR) [Hermanos al Rescate] were shot 
down by Cuban fighter jets as they were flying 
toward Cuba, in restricted airspace they had 
violated many times before.  BTTR was headed by 
José Basulto, an original member of the 
CIA-sponsored Bay of Pigs mercenary brigade, who 
in 1962 had inaugurated the practice of attacking 
Cuban beachside hotels from an offshore vessel, 
when he attacked a hotel in the Miramar district 
with a 20 mm cannon which he shot from a speedboat.

Four people were killed in the destruction of the 
planes, three of them US citizens and the fourth 
a Cuban with US residency. A third plane escaped 
that day, containing Basulto, and his three 
passengers.  It was the government’s contention 
that Hernández knew in advance about a Cuban 
government plan to shoot down the planes, that 
the plan was an illegal one by virtue of the 
charge that Cuba intended to shoot the planes 
down in international airspace – not Cuban 
airspace - and that Hernández agreed to help with that plan.

After a seven month trial that was marked by a 
media frenzy unusual even by Miami standards, the 
Five were convicted on all counts.

The initial appeals process

Hernández’s case, along with those of his 
compatriots, was appealed. In 2005, a three judge 
appellate panel unanimously 
all the convictions due to community prejudice 
and the failure of the trial court to move the trial out of Miami.
The government sought a review of that decision 
before the entire 11 members of the Eleventh 
Circuit Court, called the En Banc court.  Despite 
the previous unanimous decision overturning the 
convictions, the En Banc court reversed that 
decision, reinstating the convictions and sending 
the remaining issues, aside from venue, back to a 
three judge panel.  That panel, composed of 
Judges Birch, Pryor and Kravitch, affirmed the 
convictions on a 2 to 1 decision, but ordered 
three of the defendants to be re-sentenced.

As for Hernández, his two life sentences plus 15 
years were upheld.  But Judge Kravitch wrote a 
very clear dissent on the issue of Hernández’s 
conviction.  And Judge Birch, speaking 
specifically about Hernández’s conviction, called it a “very close case.”

Leonard Weinglass, one of the attorneys involved 
in Hernández’s appeal, urges the reading of 
dissent. “Here you have a well-respected senior 
judge on the Eleventh Circuit Court of Appeals, 
who wrote an eloquent dissent against Hernández’s 
conviction, saying that he ought not to have been 
convicted, had no knowledge of what was going to 
happen with the planes that day, and that Cuba 
had the right to self-defense. This is not 
something we made up,” said Weinglass.
Weinglass also calls attention to the language in 
Birch’s opinion. Note, says Weinglass, “he did 
not say it was a ‘close’ question, but a ‘very 
close’ question.” Effectively, only Pryor, one of 
the most conservative judges in the entire 
country, did not express any doubts about Hernández’s conviction.

Habeas Corpus Appeal

A habeas corpus appeal cannot be filed until all 
other appeals are exhausted, and indeed, after 
the reconsideration by Birch, Pryor and Kravitch, 
the case of the Cuban Five traveled to the 
Supreme Court which, in June 2009, declined to hear it.

This is the kind of appeal that Hernández’s 
current legal team has 
filed. With all its appendices, it is hundreds of 
pages long. It focuses at length on the errors 
made by Hernández’s public defender, Paul 
McKenna, which together with the violations by 
the prosecution, had the practical effect of 
denying him his constitutionally mandated right 
to due process. It also presents new evidence 
that has been discovered since the original 
trial, evidence which Weinglass calls “evidence 
of a constitutional dimension.”
Much of that evidence involves the 2006 discovery 
that many of the journalists producing incendiary 
stories on the trial in 2000/2001 were 
simultaneously on the US government payroll, 
reporting for Radio and TV Martí, anti-Cuba 
propaganda stations funded and operated by the US 
government. The struggle to obtain information 
about the reporters involved in the media 
manipulation of community attitudes during the 
trial is another interesting story all by itself.

Some of the new evidence also comes from the 
classified information that the government 
improperly tried to conceal in order to better 
make its case while simultaneously denying 
Hernández the opportunity to defend himself. The 
appeal shows how Hernández’s rights to due 
process were violated when the government 
excluded Hernández and McKenna from a private ex 
parte hearing where materials which included high 
frequency messages from the Cuban government to 
its agents were reviewed and decisions taken on 
which would be admitted at trial.

“Had [Hernández] known of the existence of these 
high frequency messages (it was later known that 
the government disclosed only 44 out of 
approximately 350 intercepted messages) and the 
additional classified communications, he would 
have sought to introduce them into evidence to 
show that he had no knowledge that the government 
of Cuba intended to illegally shoot down the 
Brothers to the Rescue aircraft.”[1]

Media mischaracterization of the appeal

It is practically impossible to explain the 
countless and often extremely technical due 
process violations outlined in the appeal, 
through the economical technique of quickly 
helicoptering into the documents, extracting 
selected sensational quotes, and then contacting 
sources on both sides for comment. Not that this 
hasn’t been tried. The Miami Herald gave it a go 
on December 26, 2010, in a story filed by Jay 
Weaver emblazoned with the headline: “Cuban 
Spymaster now claims Brothers to the Rescue 
shooting was outside Cuban airspace.”

The story is a perfect illustration of why hasty 
and selective reading is no substitute for real 
investigative journalism, though it may have 
perfectly adequate results as propaganda. [Also 
note the loaded language in the headline: 
“Shooting” in lieu of “Shoot down” and 
“Spymaster” instead of, for instance, “Cuban Agent”.]

The case made by the Herald is quite different 
from the one actually being made by Hernández’s attorneys.

Defense errors

Hernández’s habeas corpus appeal explains that 
one of the most grievous errors made in his 
defense was the failure to advise him that he had 
the right to ask for a severance, in order to be 
tried separately on the third murder conspiracy 
count, rather than at the same trial on the 
espionage conspiracy and foreign agent counts. 
The practical effect of this failure was that all 
five Cubans were tried and sentenced in a climate 
of guilt by association, but also that McKenna 
was so busy trying to deal with the third murder 
conspiracy count that he essentially abandoned his client on the other two.

As well, by failing to sever the trial, other 
witnesses who might have been able to testify to 
Hernández’s lack of knowledge about any shoot 
down, such as the other five Cubans who quickly 
pled guilty, and specifically, Hernández’s 
co-defendant René González, who had infiltrated 
BTTR and could have testified that Hernández had 
no special knowledge about any shoot down, were 
unable to testify in his defense. The problem of 
González being unable to testify might have been 
resolved to some extent in an un-severed trial 
through a legal instrument called a Byrd 
Affidavit, but McKenna did not utilize it.

“Had counsel evaluated and investigated such 
issues and consulted with his client, he would 
have been able to obtain a Byrd affidavit from 
Rene Gonzalez to show that whatever knowledge 
Hernandez may have had or conveyed regarding an 
impending confrontation of BTTR with Cuba was of 
the same general understanding as that in the 
public domain, that Cuba might attempt to shoot 
down aircraft if they continued to violate Cuban 
airspace and that he understood Cuba to have the 
lawful right to do so within Cuban territory. 
Hernandez was unaware of any plan to act 
unlawfully or to act in a manner that could 
legitimately provoke military retaliation.”[2]

How the Miami Herald got it wrong
Another serious defense error, and one that is 
perhaps easier understood in hindsight, at least 
for non-lawyers, was the defense effort to 
revisit the decision made at the UN Security 
Council which pinned the location of the shoot 
down in international airspace rather than Cuban airspace.
The decision was pushed through the Security 
Council by Madeleine Albright notwithstanding the 
fact that after months of investigation that were 
repeatedly extended when the US failed to meet 
deadlines for the submission of its evidence, the 
UN’s civil aviation arm - the International Civil 
Aviation Organization (ICAO)  - had found   that 
the US and Cuban radar data had “significant and 
irreconcilable differences.”  As a result of 
these differences and other irregularities, the 
ICAO Council refused to endorse its own 
investigative report. This did not present 
Albright with a particularly significant 
obstacle, and she and her diplomatic colleagues set the location themselves.

McKenna erroneously opted to try to convince the 
Miami jury that the UN Security Council had 
erred, and endeavored to retry its decision in 
the Miami courtroom. By this time though, the 
Security Council decision had already been used 
in another Miami court proceeding as a basis to 
obtain access to frozen Cuban assets in order to 
compensate the families of the downed fliers and 
their attorneys. In trying to persuade the jury 
of twelve non-aviation experts to revisit the 
ICAO investigation and decide that Cuba was right 
and the US government was wrong – a hopeless 
proposition in a community where the downed BTTR 
fliers had been cast as heroes – McKenna was 
slogging uphill against not one but two legal 
precedents. The only thing this kind of defense 
managed was to harden the jury’s antagonism 
toward his client. But more importantly, it was 
not the case he was asked to defend.

It’s worth re-examining the third count of the 
indictment to fully grasp this point.

“Conspiracy to commit murder by supporting and 
implementing a plan to shoot down United States 
civilian aircraft outside of Cuban and United 
States airspace.” [Italics added.]

In other words, a plan to shoot down aircraft 
within Cuban airspace would have been no crime at 
all – this was where McKenna set off down a 
doomed road paved with good intentions, by 
seeking to free his client on the basis of the 
argument that no crime had actually been committed.

Historical questions

Despite the legal precedents, as a historical 
matter, the shoot down location does remain an 
open question as far as factual evidence is 
concerned. The 
appendix in the appeal makes this clear: US 
satellite data would be the most objective and 
definitive way to resolve the location question 
once and for all, but despite a recommendation 
from his aviation expert witness, George Buchner, 
McKenna never requested that data, nor has it 
ever been released. Buchner says that the ICAO 
investigative team also tried and failed to obtain this data.

in the appeal, the declaration by Professor John 
Quigley, an expert in international law, makes 
clear that some of the questions McKenna sought 
to argue at the Miami trial, such as whether 
BTTR’s planes were actually military or civilian, 
were erroneous and irrelevant in light of 
established international law: “
the relevant 
inquiry was whether the territorial state might 
reasonably perceive an imminent threat from the 
intrusion, rather than whether the aircraft was 
civil or military in character.”

This particular argument had truly devastating 
consequences for Hernández, “difficult to fathom 
and painful to contemplate,” when the jury was 
incorrectly instructed to “deliberate whether 
Cuba’s fighter jets properly identified BTTR’s 
light Cessna aircraft as ‘military’ planes under 
ICAO standards, and, if so, whether those BTTR 
planes were in fact shot down as a ‘last 
”[3] It was an issue a world apart from 
and totally irrelevant to the actual conspiracy charge faced by Hernández.

Through the looking glass

On the face of it, a shoot down outside of Cuban 
airspace makes no logical sense whatsoever. Cuba 
was certainly aggrieved by the constant air 
incursions by BTTR – one of the most interesting 
parts of the appeal is the appendix which 
includes the ICAO investigative report, a 
document that has never been publicly revealed 
until now (ICAO Report 
2).  BTTR planes had roared “at rooftop level” 
through downtown Havana, tossing leaflets and 
religious medals out the windows six months prior 
to the downings, something as dangerous as it is 
illegal, not only in Cuba, but everywhere. The 
planes enjoyed unusual access to the US Naval 
Base in Guantánamo, and used that access to buzz 
whatever Cuban territory caught their fancy “on 
the spur of the moment.” Cuba’s right to defend 
itself against such intrusions is unquestionable.

But a shoot down outside of Cuban airspace would, 
and did, result in international condemnation of 
Cuba, open the door to the seizure of Cuban 
assets frozen since 1961, and most damaging, 
provide the impetus to set the US blockade of 
Cuba in stone, through the anti-Cuba legislation 
known as Helms-Burton that was creeping through 
the US Congress in the mid-1990s. Before the 
shoot down, Clinton had been threatening to veto 
the bill, if by some miracle it were to pass. 
After the shoot down, the law passed easily. It 
may have been something short of the 
confrontation hoped for by Basulto, the 
terrorist who was continually looking for a Bay 
of Pigs do-over and still asks why US fighter 
jets were not launched in retaliation on the 
24th, but Helms-Burton has been destructive enough all on its own.

At Hernández’s trial, establishing the location 
of the shoot down was simply not the question at 
hand, and the government could simply point to 
the Security Council decision in any case. In 
order to convict Hernández, the government needed 
to prove that there was an illegal plan to shoot 
down BTTR planes in international airspace, not 
Cuban airspace, that Hernández knew about this 
illegal plan and that he agreed to support it.

It couldn’t be done.

It depends on what the meaning of “or” is

To overcome the leap of logic necessary to 
believe, counter-intuitively, that Cuba 
deliberately planned to shoot BTTR planes down in 
international airspace rather than Cuban 
airspace, the government presented the tortured 
argument that what was really bothering Cuba 
about BTTR’s aerial invasions was not their 
dangerous low-level cowboy flights over congested 
areas, nor Basulto’s jamming of radio frequencies 
used by commercial airliners traveling through 
Cuba’s air corridor with extemporaneous speeches 
about his rights to violate anyone’s restricted airspace as a “free Cuban.”

According to the US government, what Cuba really 
wanted to accomplish through a planned shoot down 
in international airspace was to stop BTTR from 
dropping leaflets from a spot just outside Cuban 
airspace where wind currents might carry them 
ashore. The ICAO report clearly showed how the 
leaflets had actually been dropped inside Cuban 
airspace, and Basulto himself had said on the 
radio in Miami that he’d dropped them from inside 
Cuban airspace, but suddenly all that was 
forgotten (and never rebutted by the defense).

Finally, in an argument that only lawyers could 
possibly make, the government pointed to “an 
alleged message that asked agents who penetrated 
BTTR to report any planned ‘leaflet dropping 
missions or incursions into Cuban airspace.’” [Emphasis added.]

Government lawyers pointed to the word “or” as 
“proof that the Cuban plan included confrontation 
in international airspace to stop the leafleting.”[4]

It was an exquisitely technical legal argument, 
but as far as Hernández was concerned, there was 
still absolutely no evidence that he had any 
inside information about a shoot down planned to 
take place anywhere, either inside or outside of Cuban airspace.

“A confrontation does not necessarily mean a shootdown.”
In her dissent, Judge Kravitch pointed out that 
at best, the coded messages submitted by the 
government as evidence showed that Hernández 
(like everyone, including BTTR) knew that there 
would be a “confrontation” of some sort.

She added, “A confrontation does not necessarily 
mean a shoot down.” The evidence that BTTR itself 
expected nothing more than a confrontation 
possibly resulting in a forced landing was 
contained in a homemade video deliberately left 
behind at BTTR headquarters on February 24th. In 
it, flight participants said they would either 
blink furiously or try not to blink as some sort 
of coded message to Miami, should they be forced 
to confess on Cuban television.

Kravitch explained further:

“It is not enough for the Government to show that 
a shoot down merely occurred in international 
airspace: the Government must prove beyond a 
reasonable doubt that Hernandez agreed to a shoot 
down in international airspace. Although such an 
agreement may be proven with circumstantial 
evidence, here, the Government failed to provide 
either direct or circumstantial evidence that 
Hernandez agreed to a shoot down in international 
airspace. Instead, the evidence points toward a 
confrontation in Cuban airspace, thus negating 
the requirement that he agreed to commit an unlawful act.

the fact that the intercepted communications 
after the shoot down show that Hernandez was 
congratulated for his role and that he 
acknowledged participation and called it a 
“success” does not clearly establish an agreement 
to a shoot down in international airspace. The 
Government cannot point to any evidence that 
indicates Hernandez agreed to a shoot down in 
international, as opposed to Cuban, airspace.”

Hernández has 
maintained that the coded message he sent to Cuba 
after February 24th, where he said “the operation 
to which we contributed a grain of salt ended 
successfully”[5] was a reference not to the 
operation to confront BTTR planes, but to an 
entirely different one, that of returning another 
agent to Cuba. He says the government purposely 
created “a cloud
of confusion” about the two 
operations in order to use that particular 
message in its case against him. McKenna, 
beavering away at the shootdown location, failed 
to object to or counter the government’s cynical 
misappropriation of the message.

Even if one accepts the government’s 
mischaracterization of that particular message, 
Kravitch explained that this is still not 
sufficient for conviction – if Hernández had 
really referred to the shoot down of an enemy 
plane as a “success” that still does not mean he 
agreed to a plan to shoot it down in 
“international” rather than Cuban airspace.

Richard Gere’s Cuban double

The agent whose return Hernández was referring to 
in the “grain of salt”[6] message was Juan Pablo 
Roque, an intriguing character in the case. Often 
referred to as someone who bears a striking 
resemblance to Richard Gere, Roque snorkeled his 
way to the US base at Guantánamo and soon found 
himself in Miami, where he captured the hearts of 
Basulto and his clan with the tale that he was a 
Cuban military pilot who’d been grounded and 
therefore become disillusioned. The Cuban 
American National Foundation (CANF) even 
facilitated a vanity press publication of his 
memoirs, while Roque began quietly moonlighting 
for the FBI, providing information about BTTR’s 
concealed, less savory, drug trafficking 
activities and weapons smuggling plans.

But practically as soon as he arrived in Miami, 
Roque suffered from unbearable homesickness and 
asked to be transferred back. Hernández was 
tasked with arranging the defector’s 
re-defection. “Operation Venezia” was planned as 
a way to get Roque back to Cuba and 
simultaneously capitalize on the intelligence 
Roque had gathered, through planned press 
conferences where he would reveal much the same 
information as he had given the FBI.
secret Cuban document contained in the appeal 
confirms that this denunciation was the main 
thrust behind Operation Venezia, and that Roque’s 
return was approved by Cuban intelligence 
headquarters for “either the end of February or 
beginning of March, 1996”[7] depending on commercial flight availabilities.

At the time of the trial, much was made of the 
fact that Roque had slipped away on February 23rd 
and arrived in Cuba either the day of the shoot 
down or the day after. But the timing was 
coincidental, based largely on Roque’s insistence 
that he be back in time for his son’s birthday on 
the 26th.  Also, the shoot down on the 24th was 
demonstrably at odds with Operation Venezia’s 
objectives.  Although 
appeared on CNN with Lucia Newman on the 27th and 
again in an 
with the Cuban newspaper Juventud Rebelde on 
March 3rd, still maintaining his cover in order 
to protect the agents remaining in Miami, the 
tsunami of negative press about the shoot down 
largely overshadowed the negative information he 
revealed about BTTR in the interview.

Too little too late
Toward the end of the trial, Hernández’s defender 
seemed to have realized he’d been chasing a red 
herring. After six long months of painstaking 
efforts to convince the jury that the shoot down 
location had been erroneously decided, he 
suddenly changed course and told the jury that 
all the evidence he had presented to them over 
the previous six months was irrelevant. This 
surely did not endear him or his client to jury 
members anxious to get on with their lives.

What mattered, he said, was that the government 
could not prove that Hernández knew anything at 
all about an illegal shoot down plan. But it was 
too late. The damage had been done.

The appeal says that “to his credit” McKenna has 
recognized his errors in the original trial and 
agreed to testify at a habeas corpus hearing in 
order to provide evidence as to why Hernández should receive a new trial.

That evidentiary hearing is likely to be held 
once all the replies have been submitted in the 
case, sometime between March and June of this 
year, although according to Weinglass, it is 
still unknown whether Judge Lenard will hold onto 
the case and hold that hearing herself, or refer 
it to a magistrate, as frequently occurs in Miami.

An invisible force
In the meantime, in the desolate high desert of 
California, Hernández continues to be an active 
advocate in his own case and that of rest of the 
Five. This sometimes leads to peculiar 
resentments on the part of his jailers. “You get 
too much mail,” he is told, and in the 
upside-down logic of the federal prison system, 
the solution is to hold his mail captive on 
occasion until the excess becomes an avalanche. 
He continues to endure extra-judicial punishments 
such as the denial of a visa, 13 years running, 
for his wife to visit him. He is denied email 
access which, in contrast, is granted to 
hardened, proven violent offenders incarcerated 
in the same facility. Last summer he was 
suddenly, inexplicably, thrown into the prison 
“hole” and some weeks later, following an international outcry, released.

Regardless of whether Hernández is ultimately 
granted his right to due process through a new 
trial, he guards an undiminished sense of 
optimism, tempered with realism. Of the multitude 
of efforts to obtain his freedom he says, “It’s 
like water on a rock.” And even the hardest rocks give way over time.

I would like to thank Nelson Valdés, Manuel 
Cedeño Berrueta and Manuel Talens for their 
assistance in the preparation and translation of this report.


[1] Gerardo Hernández, Movant, vs. United States 
of America, Respondent - Memorandum in Support of 
Motion to Vacate, Set Aside, or Correct Judgment 
and Sentence under 28 U.SC. § 2255, p. 79

[2] Ibid, p. 19

[3] Ibid, p. 37

[4] Ibid, p. 31

[5] Ibid, p. 83

[6] “Grain of salt” is likely to be a 
mistranslation of Hernández’s original Spanish 
language message. It is extremely improbable that 
Hernández would have written “granito de sal,” 
instead of “granito de arena,” which means “grain 
of sand.” The transcription of the 
language interview conducted with Hernández by Saul Landau confirms this.

[7] Ibid, Appendix B


Courtesy of <http://www.tlaxcala-int.org/>Tlaxcala
Publication date of original article: 18/01/2011
URL of this page: 

Freedom Archives
522 Valencia Street
San Francisco, CA 94110

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