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<a href="http://www.counterpunch.org/alarcon09162009.html" eudora="autourl">
http://www.counterpunch.org/alarcon09162009.html<br><br>
</a></font><font face="Verdana" size=2 color="#990000">September 16,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>The Untold Story
of the Cuban Five <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">The
Unheard Call
</b></font></h1><font face="Times New Roman, Times" size=4>By RICARDO
ALARCÓN de QUESADA <br><br>
</font><font face="Verdana" size=6 color="#990000">H</font>
<font face="Verdana" size=2>aving 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.<br><br>
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.
<br><br>
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.<br><br>
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. <br><br>
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.<br><br>
It was unique also in terms of concern and interest all over the world.
<br><br>
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. <br><br>
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.<br><br>
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.” <br><br>
“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.” <br><br>
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.” <br><br>
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)<br><br>
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. <br><br>
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. <br><br>
Many Americans do not know about the Cuban Five because they have not
been permitted to know. <br><br>
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.
<br><br>
But the Supreme Court did not bother to listen.<br><br>
<b>Ricardo Alarcón de Quesada</b> is president of the Cuban National
Assembly.<br><br>
<br><br>
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