Headlines, Human Rights, Latin America & the Caribbean

CUBA-US: Appeal in Espionage Case Set to Begin

Dalia Acosta

HAVANA, Apr 4 2003 (IPS) - The espionage charges against five Cubans who were sentenced to between 15 years and life in prison in the United States were never proven, lawyer Roberto González, one of the defence attorneys who will appeal the sentences Monday, told IPS.

René González, Antonio Guerrero, Gerardo Hernández, Fernando González, and Ramón Labañino were arrested by the U.S. Federal Bureau of Investigations (FBI) on Sep. 12, 1998 and convicted on Jun. 8, 2001 of conspiracy to commit espionage against U.S. national security interests and a number of lesser charges.

In December 2001, three of them were sentenced to life in prison, while the other two received 15 and 19-year terms. They are serving time in various federal maximum security penitentiaries in the United States.

But no convincing evidence of espionage – the most serious charge – was ever presented against the defendants, known as ”the Cuban five”, said González, a criminal lawyer and the brother of René González.

Moreover, the fact that the trial was held in Miami, Florida, home to a large Cuban exile community hostile towards the socialist government of Fidel Castro, made it impossible for the five men to have an impartial and fair trial, he maintained.

In Miami, ”everyone has an opinion on Cuba,” said González.

He noted that many Cuban artists are unable to show their work or perform in Miami because simply living on the island is enough for someone to be labelled an ”agent” of the Cuban government by the hundreds of thousands of Cuban exiles living in that U.S. city.

Hence, Miami ”should not have been the site of the trial of five men who from the start admitted to being agents of the Cuban state” – although not spies carrying out espionage to harm U.S. national security, but agents monitoring exile groups that have launched repeated attacks on Cuba, to prevent future terrorist violence, he argued.

The men’s attorneys unsuccessfully sought a change of venue for the trial. That is one of the key arguments in the appeal that opens Monday in the 11th circuit appeals court in Atlanta, Georgia.

According to U.S. law, an appeals court can overturn a legal ruling if it is convinced that the guarantees for a fair trial were not in place, or that the work of the defence was obstructed.

The five are seeking a new trial outside of Miami.

Of the 33 months that ”the Cuban five” spent in preventive detention prior to their conviction, they were held incomunicados for 18 months.

The president of the Cuban parliament, Ricardo Alarcón, said the latest period of solitary confinement to which the five were subjected, from early March to Apr. 1, was a clear attempt to obstruct the work of their defence counsel.

That ”absolutely arbitrary” measure infringed on their guarantees of due process, the American Association of Jurists wrote in a Mar. 19 letter addressed to Kathleen Hawk Sawyer, director of the Federal Bureau of Prisons.

On Mar. 14, the London-based rights watchdog Amnesty International urged U.S. authorities to guarantee the prisoners’ right to communicate with their lawyers.

In the years prior to their arrest in 1998, ”the Cuban five” were working as part of a Miami ring that infiltrated exile groups to gather information that would help prevent terrorist acts against Cuba.

Some three months before their arrest, Havana sent the FBI evidence that Cuban exiles living in the United States had taken part in a 1997 wave of bombing attacks against Cuba’s tourism industry, which led to the death of an Italian businessman, left several people injured, and inflicted extensive property damage. A year before, on Feb. 24, 1996, two small airplanes flown by the anti-Castro exile group Brothers to the Rescue were shot down by the Cuban air force as they flew without permission through Cuban airspace.

The group had invaded Cuban airspace 26 times between 1994 and February 1996, according to the Foreign Ministry in Havana. On several of the trips, anti-communist leaflets were dropped on the capital and other Cuban cities.

Before the planes were shot down, Brothers to the Rescue had received warnings from the U.S. government not to fly over Cuba, as well as direct orders from Cuban air traffic control not to enter its airspace. Cuban officials had also filed four formal complaints with the U.S. government that the organisation was routinely invading their airspace.

The shootdown put an end to the group’s flights, which were ostensibly carried out to find and rescue ”rafters” – people defecting from Cuba on precarious watercraft.

The group’s founder, José Basulto, was among those trained by the Central Intelligence Agency (CIA) for the 1961 Bay of Pigs invasion of Cuba.

A year and a half after that operation, Basulto helped organise a raid on a posh Cuban hotel by members of the Cuban exile group DRE. He himself opened fire on people in the hotel. There is evidence that the CIA was also involved in that incident.

According to the Castro administration, since the 1959 revolution, Cuban exile groups like Alpha 66, Omega 7, Brothers to the Rescue, and the Cuban-American National Foundation have killed hundreds of Cuban civilians in bombings, assassinations and other sabotage.

The paradox, according to Havana, was that during the trial the ”terrorists” – members of the exile groups – freely entered and left the court room as witnesses, while the Cubans who had been monitoring their organisations to prevent terrorist attacks were convicted.

The most serious of the more than 20 charges against ”the Cuban five” were of conspiring to commit offences against the United States and of passing U.S. national defence information to the Cuban government.

González pointed out that the five had rejected plea bargains. They had been offered substantially reduced sentences or even release in exchange for pleading guilty to those two charges.

But ”They refused, and by doing so made it impossible for the prosecution to make the case that Cuba presents a threat to the United States by carrying out espionage there. If they had given in, perhaps they would be free today,” he said.

The 44-year-old lawyer, who like his brother René was born in the United States, moved to Cuba with his parents shortly after the January 1959 triumph of the revolution. He was able to form part of the team of defence lawyers because he is also a U.S. citizen.

In his view, one of the key issues in the case is the difference between ”agent” and ”spy”.

Several high-ranking U.S. military officers who were called to the stand as expert witnesses for the defence said none of the evidence amounted to proof that the men had engaged in espionage conspiracy.

To prove that charge, it would have been necessary to demonstrate that the defendants had fed confidential information on U.S. national security interests to Cuba.

Given the total lack of evidence backing up the argument that the five men had obtained or relayed information kept confidential for ”reasons of state”, an attempt was made to show that they had ”tried” to obtain it.

But even retired U.S. air force lieutenant-general James R. Clapper, a witness for the prosecution, admitted that among the evidence presented there was no document containing instructions to obtain secret information on U.S. national security interests.

According to Roberto González, ”the Cuban five” were not ”spies,” and should only have been charged with acting as unregistered agents of the Cuban state. ”The sentence for the offence of not registering (with the U.S. attorney-general) ranges from zero to 15 years in prison, or a fine,” he explained.

In their defence, the five argued that the tense state of relations between Havana and Washington made it impossible for them to register.

They also underlined that the aim of their activity as agents was merely to prevent the loss of human life.

Nevertheless, U.S. district Judge Joan Lenard stated in the sentence handed down to René González that ”The terrorist acts of others cannot excuse the wrongful or illegal acts by this defendant or any other.”

González will be up for parole for the last three years of his 15-year term. However, during those three years, he would be prohibited from ”associating with or visiting specific places where terrorist individuals or groups can be found or that they are known to frequent,” according to Lenard’s verdict.

In other words, ”the judge admits that such groups exist (in the United States), and that (René) was fighting them, and she prohibited him from approaching them, supposing that they will still be there 12 years from now. She is protecting terrorists,” the lawyer maintained.

The appeals court must carry out an in-depth analysis of the prosecution of ”the Cuban five” if it fails to declare the trial in Miami void for violating the requirements of due process, he said.

González argued that the trial was accompanied by a full- fledged campaign in the Miami press that portrayed the five agents as spies and helped bias public opinion against them.

”No one talks about the evidence, because they know that if the evidence on which they were convicted comes to light, everyone will discover that the purported ‘espionage’ did not exist. The United States is not holding five spies; it is holding five counter-terrorism agents,” he said.