Everyone who has witnessed the ordeal of the five Cuban men fighting for their freedom from prison in one U.S. court battle after another was extremely disappointed to hear the latest decision from the 11th Circuit Court of Appeals.
On Aug. 9, the full court of 12 judges denied the Cuban Five anti-terrorist fighters a new trial.
Before their arrest by the FBI eight years ago in Miami, Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González had been living in Miami and Tampa since the beginning of the 1990s.
They had come on a mission: to infiltrate the terrorist anti-Cuba network and put an end to the scourge of attacks that have threatened their people in Cuba for almost 50 years.
For their anti-terrorist actions, the Five are now in prison serving a range of sentences from 15 years to double-life.
The 10 to 2 majority opinion reversed the unanimous three-judge panel ruling of exactly one year earlier, on Aug. 9, 2005, that granted the Five a new trial and overturned their convictions.
The three-judge panel’s ruling—unprecedented in U.S. appeals court history—was based on the pervasive prejudice in Miami against defendants closely identified with the Cuban government, the intimidating influence of Miami’s terrorist organizations on the jury and deliberate misconduct by the prosecution. The three judges called these factors the “perfect storm” that denied the Five their constitutional rights.
But after an appeal last September by U.S. attorneys and U.S. Attorney General Alberto Gonzales, the court agreed to set aside the Five’s victory and hear the issue of venue again “en banc” (before all 12 circuit judges).
Reversing the Five’s victory, the en banc ruling authored by Judge Charles Wilson claims that, “Miami-Dade County is a widely diverse, multi-racial community of more than two million people. Nothing in the trial record suggests that 12 fair and impartial jurors could not be assembled by the trial judge to try the defendants impartially and fairly.”
Miami: ‘a coercive atmosphere’
The appeals team and the court’s dissenting opinion strongly disagree. Leonard Weinglass, appeals attorney for Antonio Guerrero, spoke to the press immediately after the latest decision.
“The majority whitewashed the question of the coercive atmosphere of Miami,” he explained. “You can read the 68 pages of their opinion and you will find no substantial reference to the pre-existing community prejudice in Miami against anyone associated with the government of Cuba. This curious ‘omission of fact,’ as the dissent calls it, is something that we are very concerned about, and something which we might have to bring to the attention of the U.S. Supreme Court.”
The en banc decision is 120 pages. Some 52 pages of it is a dissent by Judge Stanley Birch, who presided in the three-judge panel. Birch’s dissent lists extensive evidence of terrorist plots raised by the defense during trial, which is ignored almost entirely by the en banc majority.
Terrorist attacks in Miami against any person or event associated with Cuba have been so violent and far-reaching that there is widespread fear in the population of publicly rebuking the terrorist network in any manner.
Every institution—the media, schools, courts, government, cultural and corporate establishments—has to cater to the terrorists and their U.S. government backers or face reprisal. Of course, many leaders of those institutions also foster anti-Cuba hysteria and wholeheartedly embrace the terrorists.
Birch states, “The evidence at trial validated the media’s publicity … of the various Cuban exile groups and their paramilitary camps that continue to operate in the Miami area. The perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable.”
Birch noted one potential juror’s fears: “[The potential juror] indicated he would be concerned about returning a not guilty verdict because ‘a lot of people in [Miami] are so right-wing fascist,’ because he would face ‘personal criticism’ and media coverage, and because he had concerns for what might happen after a verdict was returned. He believed the case to be ‘a high profile case’ and that he had been videotaped by the media when leaving the courthouse.
“I remain convinced that this case is one of those rare, exceptional cases that warrants a change of venue because of pervasive community prejudice making it impossible to empanel an unbiased jury.”
Despite the highly-controversial subject and potential danger, the jury was not sequestered.
Upon conclusion of the trial in June 2001, just before the jury deliberated, right-wing Spanish-language television crews filmed the jurors’ car license plates as they walked to their cars. In the past, Miami TV stations have broadcast license plate numbers and addresses of people associated with Cuba, who then received death threats.
Targeted for defending Cuba
Locked into the U.S. “justice” appeals process as the principal means for winning their freedom from prison, the Cuban Five are seeking a new trial, arguing that every aspect and phase of their seven-month trial was irreparably tainted by the Miami venue.
Until a new trial is granted, the Cuban Five cannot argue the substantive issues nor address the charges against them. The Five and their supporters are confident they would be exonerated in a new trial, arguing that they were justified by necessity to stop terrorism from inside Miami, and that they were not engaged in conspiracy to commit espionage against the United States.
If there were any real justice, the Five would never have been arrested nor tried for their actions. They were conducting surveillance on U.S.-based terrorist organizations in the early 1990s in the Miami and Tampa area. By monitoring those activities in southern Florida, they were able to protect their compatriots in Cuba from a number of terrorist plots they uncovered and thwarted.
On Sept. 12, 1998, the FBI arrested the five anti-terrorists and prosecuted the Cuban Five with sensationalist and false charges of espionage, conspiracy, failure to register as foreign agents and other crimes.
A murder-conspiracy charge filed eight months after the arrests against Gerardo Hernández, one of the Five, was crafted to falsely link Hernández to Cuba’s shooting down on Feb. 24, 1996, of two planes flown by the terrorist organization Brothers to the Rescue (BTTR) as the planes invaded Cuban airspace. Four pilots died in those planes.
Cuba’s action was an act of state justified by constant invasions of its airspace by BTTR in weeks preceding the shoot down. BTTR’s head, José Basulto, a convicted terrorist, held a press conference in Miami boasting that his organization would fly over Cuba again. The Cuban government, the U.S. State Department and the FAA all warned of direct action if the planes continued their threats to the Cuban population.
Despite no evidence whatsoever of “murder conspiracy” nor of Hernández’s role in the shoot down, that indictment alone added fuel to the highly charged and politically motivated persecution of the Five in the trial and media.
Terrorist groups like BTTR and Alpha 66 have been financed, trained, armed and given the green light by the U.S. government since the 1960s to terrorize the Cuban population in the hopes of destabilizing and bringing down the socialist government.
Despite several motions by the defense, District Judge Joan Lenard denied change of venue each time and proceeded to trial.
On June 8, 2001, despite more than 14,000 pages of transcript and seven months of an extremely complex proceeding, the jury reached a guilty verdict on all 26 federal counts without asking one question or asking for review of testimony. Even the murder-conspiracy charge, in which the prosecution complained that they had no chance of winning conviction, was returned with a guilty verdict.
The reason for the prosecution’s complete victory was simple: The trial was held in Miami.
World campaign to free the Five
It was at this moment that Cuba and worldwide supporters of the Cuban Five began a massive campaign to fight for their freedom. Almost immediately, the Cuban government and people began a series of massive rallies, forums and television roundtables to support the Five that have continued to this day. The Five’s families have traveled to every continent speaking at events held by the more than 250 committees.
The National Committee to Free the Cuban Five was formed to garner support from the people of the United States. To break through a total media blockade, the committee published a full-page ad in the New York Times on March 3, 2004, with $50,000 raised from around the world. The biggest contributors were progressive Cubans in Miami, who have defied threats and isolation to extend solidarity to their five brothers in prison.
The National Lawyers Guild filed three amicus briefs on behalf of the defense that were accepted by the appeals court. Its national conventions feature the Five’s case prominently.
In May 2005, just months before the 11th Circuit Court decision by the three judges, the U.N. Working Group on Arbitrary Decisions declared that the Five were denied the right to due process and called on the U.S. government to remedy the situation.
Now, the National Committee to Free the Cuban Five has issued a national call to march on the White House on Saturday, Sept. 23 and to demand that George W. Bush end the unjust imprisonment and free the Cuban Five immediately. The call is co-sponsored by the National Lawyers Guild, a coalition of progressive Cubans in Miami called La Alianza Martiana, the Salvadoran FMLN-USA, the ANSWER Coalition—Act Now to Stop War and End Racism, the National Network on Cuba and the George Washington University Progressive Student Union. Dozens of other organizations are also building for the action.
A forum after the march will feature prominent speakers Leonard Weinglass; Wayne Smith, former head of the U.S. Interests Section in Havana; Francisco Letelier, son of former Chilean foreign minister Orlando Letelier, who was assassinated in a car-bomb explosion 30 years ago on Sept. 21 by anti-Cuba terrorists; Saul Landau; and others.
There can be no doubt that the latest court ruling is a political decision against the Five and against Cuba’s right to defend itself against terrorism. It is part and parcel of the U.S. government’s counterrevolutionary campaign that includes blockade and the always-present threat of invasion.
The people’s struggle for the Cuban Five is more important than ever. An intervention on all fronts by the people—Cuba solidarity, anti-war and prisoner-rights activists, the legal community, intellectuals, artists, workers and students—to broaden and deepen support for the Cuban Five will help win their freedom.
