 Leonard Weinglass with parents of Ren Gonz‡lez in Miami, September 2003. Photo: Rosa Peate |
Who are the Cuban Five? Why are they imprisoned in the United States?
The Cuban Five are five men who came to the United States in the early 1990s in response to the wave of violence directed at Cuba by mercenary groups from the Cuban exile community in southern Florida. Their names are Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando Gonzáles and René González.
The Five were sent by the Cuban government unarmed and without any plan to inflict harm on the U.S. Their sole purpose was to infiltrate the network of terrorist groups that had been attacking Cuba since the triumph of the Revolution.
They came at a particular time in the history of the Cuban Revolution. Cuba’s number one trading partner, the Soviet Union, had recently collapsed, and the economy of Cuba had gone into freefall. The Cuban government decided that one of the ways to restore economic health in Cuba was to engage in the tourist industry. The tourist industry was built up in 1992-93 and was an ongoing concern through 1994-95. In response, the mercenary wing of the Cuban exile community in South Florida decided to begin a violent terror campaign against the tourist industry as a way of undercutting the Cuban economy.
Bombs were placed in various hotels by anti-Cuban terrorists, in one instance killing an Italian tourist. A bomb was placed in the Havana airport. Bombs were placed in buses to and from the airport. The Cuban government protested these terrorist activities to the U.S., but to no avail. They protested to the United Nations, also without a response. As a result, beginning in the 1994-95 period, the Cuban Five came forward to protect their country.
The Five quickly succeeded in infiltrating the groups and reporting warnings to Cuba of the plans being developed to attack Cuba. In 1996-97, the U.S. government became aware of their presence in this country, and the FBI rounded them up in 1998. They were prosecuted on a variety of charges, including failure to register as foreign agents. Three were charged with conspiracy to commit espionage; one was charged with conspiracy to commit murder.
A Miami jury convicted them on all counts after a seven-month trial. The trial of the Five was the longest trial in the history of the U.S. at the time. During the trial, the attorneys for the Five requested a change of venue from Miami to another city five times. The judge denied each request.
In December 2001, two of the Five were sentenced to life in prison, one to 19 years, and one to 15 years. Gerardo Hernández received two life terms.
Why is it not possible for Cuban nationals like the Five to receive a fair trial in Miami? What role do anti-Cuban terrorists play?
Miami is the one city in the U.S. where the Five certainly could not receive a fair trial. There are approximately 650,000 Cubans who live there in exile. They control the local press and the media, they occupy the public offices, and they are the major business figures in the area. These individuals and institutions are highly influential, and they all have one thing in common: they take a hard line on Cuba. Miami is a different place than every other city in the U.S.
A portion of the exile community has engaged in terrorism against Cuba for decades. Violence against Cuba is heralded in small, but vocal, circles in Miami. For instance, in Miami, the terrorist Orlando Bosch walks the streets a free man. The U.S. Justice Department once labeled Bosch the most dangerous terrorist in the Western Hemisphere. He was responsible for bombing a Cuban passenger airline in mid-flight in 1976, killing all 73 passengers on board.
Hard-line exiles and their supporters play a large role in shaping public opinion and debate in Miami.
To try the Five in Miami was a clear violation of their right to have a trial free of outside influences that were prejudiced against them. The venue of the trial should have been moved out of Miami to another location.
Could you talk about the how the charge of “conspiracy” is used generally, and how it was used specifically against the Five?
The Five were not charged with espionage. Rather, three of the Five-Gerardo, Antonio and Ramón-were charged with conspiracy to commit espionage. Conspiracy has always been the charge used by the prosecution in political cases.
A conspiracy is an agreement between people to commit a substantive crime. By using the charge of conspiracy, the government is relieved of the requirement that the underlying crime be proven. All the government has to prove to a jury is that there was an agreement to do the crime. The individuals charged with conspiracy are convicted even if the underlying crime was never committed.
In the case of the Five, the Miami jury was asked to find that there was an agreement to commit espionage. The government never had to prove that espionage actually happened. It could not have proven that espionage occurred. None of the Five sought or possessed any top secret information or U.S. national defense secrets. Yet, three of the Five were convicted of entering into an agreement to commit espionage. And that is what the government sought to convince a jury drawn from Miami: “Although we can’t prove it, there certainly must have been an agreement to do it.”
The sentence for the conspiracy charge is the same as if espionage were actually committed and proven. That is how three got life sentences.
The major charges in this case were all conspiracy related, the most serious being conspiracy to commit murder levied against Gerardo Hernández. The government charged Gerardo with conspiracy to commit murder based on a February 24, 1997, shoot down of two “Brothers to the Rescue” planes that illegally entered Cuban airspace.
The 11th Circuit Court of Appeals heard oral arguments in the Cuban Five’s appeal on March 10, 2004. When do you think the Court will decide the case? What issues are important in the appeal?
There is no way to predict when an appellate court will decide a case. In the Five’s case, there were three judges on the 11th Circuit panel. They each have to reach their own conclusions and then see if they can reconcile their conclusions into a single decision.
The record that the court has to examine is voluminous-over 118 volumes of testimony and 800 exhibits. It is very time consuming to resolve the issues in the case. But I think we are getting close to a decision now that six months have elapsed since the oral arguments in March.
The most important issue in the appeal is the venue issue, because if the court finds that the trial should not have occurred in Miami, all the charges will be thrown out and the Five might get a new trial in a different city. That, of course, is the main objective.
Next, the charge against Gerardo for conspiracy to commit murder has no merit in law. I believe the Circuit court will have difficulty approving it.
Beyond that, there are a series of important events that happened before the arrest of the Five and during their trial. Before their arrest, their apartments and houses were broken into with warrants issued by a secret court. During the trial, the government used procedures that blocked the Five’s ability to defend themselves. All these are very crucial issues in U.S. law, because they address the right of people not to be harassed or interfered with by the government and the right to a fair trial.
 Billboard in Havana reflects overwhelming popular support for the Cuban Five. Photo: Ian Thompson |
If the Five are not fully exonerated on appeal, there are further steps available. A three-judge panel heard the appeal last March; however, the entire court of the 11th Circuit consists of 18 judges. We would have the right to appeal the decision of the three-judge panel to the entire court of 18. If any part of the case is lost, we would request that the entire court consider the decision of the panel.
These requests are ordinarily denied, but this is a major case and it is hard to predict what the court would do with it. The government also has the right to appeal an unfavorable decision to the entire Circuit. Either way, there will be a request made. If the request is granted, we proceed before the entire court.
If the request is denied, we then have the right to request the United States Supreme Court-the highest court in the U.S.-review the case. There are approximately 10,000 requests made to the Supreme Court each year to review cases. Of the 10,000 requests, the Supreme Court grants only 80. The odds of having your case reviewed are very low, but we would nonetheless make the effort and request that the Supreme Court review the case.
Even if they deny the request, the process is not over. We then would have an opportunity under what is called habeas corpus to ask a federal court-the same district court that heard the trial in Miami-to review the case on narrow grounds of Constitutional violations in the case of the Five. The federal trial court would then hear the request and make a ruling. If the court denies relief on that request, we could appeal the denial of relief, once again, up to the Circuit court of appeals and, if necessary, to the Supreme Court.
There are many legal avenues to pursue even if this appeal is unsuccessful.
The recent Supreme Court decision in Blakely v. Washington could affect the sentences of thousands of prisoners in the U.S. Will Blakely have any affect on the case of the Five?
The Blakely decision, issued in June 2004, has a major impact on the sentencing rules in the U.S. It is a major change in law. Blakely restricts a judge from increasing a sentence beyond the findings of the jury after a verdict. It says that a judge does not have that power.
In the Five’s case, when the jury found Gerardo, Antonio and Ramón guilty of conspiracy to commit espionage, Federal District Court judge Joan Lenard looked to the federal sentencing guidelines, which dictate what the sentence must be. The prescribed sentence was 26 years, which is what the jury found. However, the judge increased the sentence to life in prison based on factors never presented to the jury. That increase in the sentence is what Blakely prohibits.
After it was initially decided, Blakely was brought again before the Supreme Court on an emergency basis for complete review. The Court heard those arguments on Oct. 4, 2004. We anticipate a decision sometime in early November. When that decision comes, we will know exactly how Blakely impacts our case.
I presume that we will be arguing the sentencing in the Five’s case once again in the future.
What is the real reason that the U.S. has targeted the Five?
The U.S., in an effort to protect its own terrorist network, sought to stop these five men who had so successfully infiltrated the mercenary groups operating out of Florida.
But there is a broader context. There have been groups like the Five who have come to the U.S., just as the U.S. has gone to other countries, in an effort to infiltrate organizations that threaten the home country. To my knowledge, none of these groups have been prosecuted.
In this instance, however, we are dealing with Cuba. Cuba is handled differently than all other countries in the U.S. criminal justice system, in our immigration system, and in our exchanges with other countries.
There are certain U.S. policies and tactics that are reserved solely for dealing with the Cuban Revolution. Most recently, the U.S. rejected the visas of 61 Cuban scholars who applied to attend the Latin American Studies Association conference in Las Vegas. This case was handled in a similar vein and should be seen as an extension of the overriding U.S. policy toward Cuba.
Ordinarily, if five people caught in the U.S. were working for another country, they would simply be returned to their home country. This is especially true if, like the Five, they were not armed and did not inflict injury or property damage. However, in this instance three of the Five are doing life and two are doing very long prison terms. That kind of hostile treatment is reserved solely for the Cuban Revolution.
You represent Antonio Guerrero, one of the Cuban Five. What is he like as a person?
I spoke to Antonio just two days ago. We are constantly in touch with each other. Most often by letter, but occasionally we can speak by telephone. He is a remarkable person, a man of high principle and integrity, and obviously strong and courageous. He is also a poet with a poet’s sentiment and feeling. His expression is marvelous and always very touching and direct.
Antonio went to prison-one of the most difficult prisons in the United States-with the government hoping he would be treated roughly by other prisoners, especially those who are Cuban exiles. They hoped he would have a hard time because he was, in their view, a convicted spy, although he was never charged with spying. As it turns out, Antonio is beloved by the other prisoners. He is a teacher within the prison.
Over a year ago, when Antonio was removed from his class and subjected to very harsh treatment in solitary confinement, his students went on strike. I can see when I visit him that he is respected not only by other prisoners but by the guards as well.
Antonio’s situation is similar to that which developed around Nelson Mandela during his long imprisonment. By virtue of who he was and the way Mandela conducted himself, he won other people over. They respected him, they felt very close and secure with him. It is the same way with Antonio.
It is a pleasure and a great honor for me to be part of his defense team.
You are one of the most highly regarded civil rights lawyers in the United States, having represented such noted figures on the left as Angela Davis, Abbie Hoffman, Mumia Abu-Jamal, the Chicago 8, the Los Angeles 8, and many more. Why did you get involved in the case of the Cuban Five?
The case is remarkable because it involves both an injustice abroad-U.S. policy toward Cuba-and an injustice at home-the way the Five were treated after their arrest and during their trial.
This is precisely the kind of case that I enjoy being a part of. It is political in nature and involves foreign policy as well as domestic issues. I feel very privileged to have been asked to work on this case.
For more information on the case of the Cuban Five and to get involved with the fight to win their freedom visit http://www.freethefive.org or contact the National Committee to Free the Cuban Five at 2489 Mission Street, #24, San Francisco, CA 94110, 415-821-6545.
