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Cuba’s war against terrorism
The UN General Assembly has condemned the United States embargo
on Cuba 14 times. The US also supports various illicit acts
committed against Cuba in contravention of international law.
This has been made explicit by the trial of five Cubans in
Florida.
By Leonard Weinglass
02/05/06 "Le
Monde diplomatique" -- -- FIVE Cuban men - Gerardo
Hernandez, Antonio Guerrero, Ramon Labañino, René Gonzalez and
Fernando Gonzalez - were arrested in Miami, Florida, on 12
September 1998 and charged with 26 counts of violating the
federal laws of the United States. “The five” had come to the US
from Havana to infiltrate armed organisations drawn from the
Cuban exile community, which were tolerated and even protected
by successive US governments, and to find out about any
terrorist activity aimed at Cuba.
The island had suffered human losses (some 2,000 dead) and
significant property destruction caused by the organisations.
Cuban protests to Washington and the United Nations were
ignored. The violence escalated after the collapse of the Soviet
bloc in the early 1990s, 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 in 1997 and there were
explosions in tourist buses and hotels. Boats from Miami sailed
to Cuba and shelled hotels and tourist facilities.
The five were arrested without a struggle. Their mission was not
to obtain US military secrets, but to monitor the activities of
the organisations and report back to Havana. They were working
against terrorism. Yet they were immediately put 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 that ended seven months later (and three months
after 9/11), they were sentenced to maximum prison terms:
Hernandez received a double life sentence; Guerrero and Labañino
got life; and René and Fernando Gonzalez 15 and 19 years
respectively.
Twenty-four of the charges were relatively minor technical
offences, such as the use of false names and the failure to
register as foreign agents. None of the charges involved
violence in the US, the use of weapons or damage to property.
Double standards
There is a revealing contrast between the US government’s
handling of this case and that of Orlando Bosch and Luis Posada
Carriles. They were self-confessed terrorists, part of the Miami
network that planted a bomb on a DC-8 Cubana de Aviacion
airliner on 6 October 1976; it exploded in mid-air, killing 73
people. When Bosch applied for legal residence in the US in
1990, an official investigation by the Department of Justice
concluded: “He has been involved in terrorist attacks abroad and
has advocated and been involved in bombings and sabotage.”
Despite this, he was granted residence by President George Bush
Sr.
Posada Carriles was arrested in Venezuela, accused of
masterminding the 1976 bombing. He “escaped” from San Juan de
los Morros prison in 1985, with the help of powerful friends
(1). He publicly admitted, from El Salvador where he lived, that
he was responsible for a series of bombings in Havana between
July and September 1997 (including one in which an Italian
tourist, Fabio Di Celmo, was killed and dozens wounded) (2). He
was arrested in November 2000 and charged with endangering
public safety by having substantial quantities of C-4 explosives
in his possession, which he intended to use to kill President
Fidel Castro (along with hundreds of others) at the 10th
Iberian-American summit in Panama. In April 2004 a local court
there sentenced him to eight years in prison.
Yet Posada Carriles received inexplicable hospitality from the
US government (busy with its global war on terrorism) after a
fraudulent pardon by the outgoing president of Panama, Mireya
Moscoso, in August 2004. After a short stay in Honduras he was
discreetly repatriated to the US in March 2005. This move was an
open secret. He was reluctantly taken into custody after giving
a televised press conference. He is now housed by the US
authorities, not in a prison but in a special residence inside a
detention facility. He does not face prosecution, only an
administrative procedure for not having appropriate residential
documents, which could lead to his deportation to a country of
his choice. The US has refused to extradite him to Venezuela,
where he faces charges related to terrorism.
Meanwhile the five Cubans were separated into maximum security
prisons, each several hundred miles apart, where they still
remain. Two have been denied visits from their wives for the
past seven years, in violation of US laws and international
norms.
During their seven-month trial, some 70 witnesses testified,
including two retired generals, one retired admiral and a
presidential adviser who served in the White House, all called
by the defence (3). The trial record ran to 119 volumes of
transcript. There were 15 volumes of pre-trial testimony and
argument. More than 800 exhibits were introduced into evidence,
some 40 pages long. The 12 jurors, with the foreman openly
expressing his dislike of Castro, returned verdicts of guilty on
all 26 counts without asking any questions or requesting a
rereading of any testimony, unusual in a trial of this length
and complexity.
The crime need not occur
The two main charges against the five alleged something
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, juries often infer agreement, absent any
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 had occurred, merely that
there was an agreement to commit it sometime in the future.
Although the media soon referred to the five as spies, the legal
fact and actual truth was that this was not a case of espionage,
but of an alleged agreement to commit it. Relieved of the duty
of proving actual espionage, the prosecutors set about
convincing a Miami jury that these 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 a single page of classified
government information in their possession, even though the
government had succeeded in obtaining over 20,000 pages of
correspondence between them and Cuba. That correspondence was
reviewed by one of the highest-ranking Pentagon military
officers on intelligence, who acknowledged that he couldn’t
recall seeing any national defence information. The law requires
the presence of national defence information to prove the crime
of espionage.
No testimony
All the prosecution relied on was the fact that Antonio Guerrero
had worked in a metal shop on the Boca Chica navy training base
in southern Florida. The base was 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, although the FBI had him under surveillance for two
years before the arrests, there was no testimony from any agent
suggesting a single act of wrongdoing on his part.
His role 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 also cut articles out of the paper
reporting on military units stationed there.
Former high-ranking US military and security officials testified
that Cuba presents no military threat to the US, 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” (4).
Information that is generally available to the public cannot
form the basis of an espionage prosecution. General Clapper (see
note 3) was asked: “Would you agree that open-source
intelligence is not espionage?” He replied: “That is correct.”
None the less, after hearing the prosecution’s highly improper
argument, repeated three times, that the five Cubans were in
this country “for the purpose of destroying the United States”,
the jury, swayed more by passion than by the law or evidence,
convicted. The second conspiracy charge had been added seven
months after the first. It alleged that Hernandez conspired with
other non-indicted Cuban 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 regarding any
alleged agreement between Gerardo and Cuban officials either to
shoot down planes, or where and how they were to be shot down.
In consequence, the legal 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 appeal
rejected. None the less, the jury convicted him of that specious
charge.
A new trial
The five appealed their convictions to the Eleventh Circuit
Court of Appeal, which sits outside Florida, in Atlanta,
Georgia. On 9 August 2005, after a thorough review, a
distinguished three-judge panel attached to the court released a
93-page analysis of the trial process and evidence, reversing
the convictions and sentences on the grounds that the five did
not receive a fair trial in Miami.
A new trial was ordered. Beyond finding that the original trial
violated the fundamental rights of the accused, the court, for
the first time in US jurisprudence, acknowledged evidence
produced by the defence at trial revealing that terrorist
actions emanating from Florida against Cuba had taken place, and
even citing in a footnote the role of Posada Carilles, correctly
referring to him as a terrorist.
The panel’s decision stunned the Bush administration: Miami,
with its 650,000 Cuban exiles who had provided the margin of
victory for Bush in the 2000 presidential election, had been
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 the trial of these five Cubans. The behaviour of the
government prosecutors in making exaggerated and unfounded
arguments to the jury who heard the case, exacerbated that
prejudice, as did the news reporting before and during the
trial.
Before the decision by the eleventh circuit panel, another
panel, from the UN Working Group on Arbitrary Detention (the
Human Rights Commission), concluded that the deprivation of
liberty of the five was arbitrary and called on the US
government to remedy the situation.
Bush’s former counsel, the US attorney general Albert Gonzalez,
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 9 August decision, a process rarely successful, least
of all when the three judges of the panel were in agreement in
their long and scholarly opinion. To the surprise of the many
lawyers following the case, the judges of the eleventh circuit
agreed on 31 October to review the decision. That process is now
ongoing.
The five were not prosecuted because they had violated American
law, but because their work exposed those who did. By
infiltrating the terror network that is allowed to exist in
Florida, they demonstrated the hypocrisy of the US claim of
opposition to terrorism.
© 1997-2006 Le Monde diplomatique.
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