Malice, Contradictions & the Lack of US Fair Play

Malice, Contradictions and the Lack of Fair Play in the Bush Administration’s War on Terrorism:

The Case of the Cuban Five

• While the Bush administration demands a clear-sighted “good versus evil” dichotomy in the war on terror, self-serving double standards afford the U.S. the right to apply custom tailored anti-terrorism sanctions on other nations while ignoring calls to abide by the same conditions.

• Since 1959, Cuba and its interests at home and abroad have been the target of approximately 700 terrorist attacks, including military incursions, weapons smuggling and hotel bombings aimed at threatening the all-important tourist industry, resulting in 3,478 deaths. During the same period, Fidel Castro alone has been the target of more than 600 assassination attempts.

• Federal district judge Joan Lenard presided over a miscarriage of justice.

• The U.S. response to terrorist acts by some of its residents against Cuba with indifference, while a former senior U.S. federal prosecutor says it is official American policy to monitor but not stop U.S.-based exile groups that have carried out acts of terrorism against Cuba.

• Dispatched to the U.S. in 1990 as part of the “Wasp Network,” five Cuban agents arrested in 1998 for conspiring to commit espionage and were handed out sentences as harsh as those that were given to notorious U.S. spies Robert Hanssen and Aldrich Ames who, as U.S. citizens, massively sabotaged this country’s counter-espionage capabilities compromising its security and causing the loss of a number of double agents. The Cubans’ crimes were child’s play in comparison.

• Defense attorney Leonard Weinglass and the rest of the Five’s defense team have argued that their clients have been the subjects of an unfair trial in which obvious anti-Cuba prejudices in Miami poisoned the atmosphere and especially punitive jail terms, including a denial of an array of basic living privileges, have been maliciously handed out.

Since President Bush’s statements in November 2001 that there was no room for neutrality in the war against terror, the U.S. government has placed foreign policy issues in a “good versus evil” dichotomy. Pentagon policy chief and its reigning neocon Douglas Feith echoed the president’s sentiments in a 2002 speech when he said that “moral clarity is a strategic asset [in the war on terror]” and that the president’s label of “evil” is to “steer the world toward an unquestionable rejection of terrorism, regardless of its goals.” As such, other nations have been pressured (diplomatically, economically and militarily) to leave no stone unturned when investigating groups that may be acting against U.S. interests. However, such a clear cut paradigm – which already has been used by Washington to justify two of its recent wars – has not been applied to the U.S. government when it itself is accused of harboring terrorists, especially when the accusations come from Havana.

Miami-Authorized Terrorist Threats Against Cuba
Since 1959, the Cuban government has held that Miami-based organizations supported by a sympathetic Cuban exile community have launched approximately 700 terrorist attacks against the Fidel Castro government, the Cuban public and economic targets at home and overseas. According to Cuban officials, military landings and territorial incursions, weapons smuggling (including Stinger anti-aircraft missiles) and hotel and airline bombings have resulted in more than 3,000 deaths and 2,000 injuries over the years. Alpha 66 is one such extremist Miami-based group. Founded in 1961 “with the intention of making commando type attacks on Cuba,” the terrorist body has attempted to raise an army in Cuba, has attacked Cuban and other foreign flagged ships in international waters that were heading for Cuba, and maintains training facilities in the Florida Everglades and southern California. In clear violation of the U.S. Neutrality Act, Alpha 66 and other kindred groups such as Commando L, Omega 7 and the Cuban American National Foundation (CANF), have undertaken or financed such missions out of Miami with complete impunity.

Orlando Bosch, the mastermind behind the 1976 bombing of Cuban air flight Cubana 455 which killed 73, publicly gloats to the local media about the parole violations and the presidential pardons that he has been granted by the White House. Luis Posada Carriles, who actually placed the bomb onboard the doomed Cuban flight and was later sentenced to prison in Panama for trying to assassinate Fidel Castro, arrived in Miami last April 12 seeking political asylum. It would be surprising if he were not granted this request.

The use of terrorist activities has not been restricted to the Cuban island. Paramilitary groups have been known to target politically moderate Cuban-Americans living in the U.S. and elsewhere who share an interest in advocating an open dialogue with Cuba. They also have claimed responsibility for an elaborate scheme of political assassinations, planting suitcase bombs on outbound U.S. flights and even firing a bazooka shell at the U.N. headquarters in New York. According to Second Secretary Dario Machado Font of the Cuban Interests Section in Washington, D.C., no positive U.S. response in almost any of these cases has taken place. In fact, as one former senior U.S. federal prosecutor told the Montreal Gazette, “From long ago, there’s been a policy to gather intelligence and demobilize these people, to disrupt rather than arrest.”

The American Response
While characterized as refusing to carry out or discharge their responsibilities by Cuban officials, the FBI and other U.S. agencies have not been completely inert in regard to terrorist activities. Specifically, a number of Alpha 66 and Omega 7’s members have been incarcerated for related activities at one point or another and the National Memorial Institute for the Prevention of Terrorism, funded by the U.S. Department of Homeland Security, lists these two groups as domestic terrorist organizations. A 1976 U.S. Senate hearing, “Terrorism in the Miami Area,” established Dade County as “a base for international terrorism” in which “many criminal conspiracies are entered into…which culminate in terrorist type attacks in Latin American countries or international waters, directed against Cuban targets or targets which have, or appear to have, some relationship to Cuba.”

Despite these actions, however, the Cuban exile community has continued to protect and encourage such activities to this day, including Miami’s 1983 declaration of an Orlando Bosch day, the venue change for the 1999 Latin Grammys from Miami to Los Angeles due to fears of violence directed at Cuban artists and the stoning of Cuban band Los Van Van’s concertgoers in the same year. During this entire period, through both Democratic and Republican administrations, nothing has been done to reassure Havana that U.S. laws and regulations would be upheld and that Washington would vigorously prevent any threats against Cuban security from being carried out.

In reaction to continued plots against Havana, Cuban authorities launched a top-secret intelligence operation known as La Red Avispa (the Wasp Network) in 1990. Originally composed of 14 members, the group was instructed to infiltrate exile groups in order to forestall future attacks against the island. The entire operation began to unravel in 1998 after FBI representatives accepted an invitation tendered by Cuban officials to come to Havana for the purpose of examining information that the Wasp Network had collected regarding illicit operations against Cuba involving U.S.-based anti-Castro exile groups. Instead of using this information to break up these operations and apprehend these perpetrators, the FBI agents instead were instructed to investigate the source of the disclosures, eventually arresting the Cuban network’s undercover members on U.S. soil. Of those who did not collaborate with U.S. authorities for lighter sentences or flee altogether, five remained.

The Cuban Five
Fernando González, 41; Rene González (no relation to Fernando), 49; Antonio Guerrero, 46; Gerardo Hernández, 39; and Ramon Labañino, 41, were convicted in Miami in 2001. Fernando González and René González were both found guilty of conspiracy, operating as unregistered foreign agents and using false identities and were sentenced to 19 and 15 year terms in jail, respectively. Labañino and Guerrero were both found guilty of conspiracy to commit espionage and were sentenced to life plus 18 and 12 years respectively. Hernandez was found guilty of conspiracy to commit espionage and conspiracy to commit murder because of his alleged involvement with the 1996 downing of a flight piloted by Brothers to the Rescue (BTTR) – an exile group which periodically had flown into Cuban airspace to drop anti-Castro flyers. He was sentenced to two life sentences plus 15 years.

The Cuban government and many overseas government officials, international law specialists and community leaders responded to the trial with a lively campaign to free the Five, which was spearheaded by the San-Francisco based National Committee to Free the Five (www.freethefive.org). In Cuba, the Five have become national heroes, featured daily in state television broadcasts and newspapers as well as in individual roadside monuments and frontyard memorials. Overall, the campaign has produced some results, prompting numerous letters of solidarity from British and French parliamentarians as well as the issuance of an invitation to have Rene González’s daughter, Irma and Che Guevara’s eldest daughter, Aleida Guevara March, address the Canadian Senate in 2003. Approximately 200 other ‘Free the Five’ advocacy groups have sprouted up during the ongoing appeals process in the U.S., according to Cuban news media.

The Trial
The controversial trial began in 1998 with Federal District Judge Joan A. Lenard presiding. From the onset of jury selection, the politically sensitive nature of the case was apparent. While both sides agreed to exclude Cuban-Americans from the jury because of the latter’s strong opinions on Cuba-related issues, the defense has argued that the prosecution and the judge were not stringent enough with other conservative-leaning Miami residents who very often held preconceived prejudicial notions about Cuba due to the socio-political dynamics of their local environment. Of the 160 potential jurors interviewed, not one had a favorable opinion regarding Castro Cuba. During questioning, one juror said, “I look forward to the day Fidel Castro is no longer the leader of Cuba.” Other jurors complained during the trial that they felt intimidated by the anti-Cuba passion surrounding the case and felt harassed by both the locals and the Spanish-language media.

According to civil rights attorney and a member of the appeals team, Leonard Weinglass, Miami was perhaps the only place in America where the Cuban Five could not get a fair trial. Dr. Wayne Smith, former Chief of the U.S. Interests Section in Havana agreed, adding, “It’s likely [the Five] would have received significantly lighter sentences if they were not Cubans or if the trial was not held in Miami.” Despite this, Judge Lenard denied multiple requests for a change in venue, including a plea that the trial be moved to Fort Lauderdale, 30 miles north of Miami. Some observers of the trial found her conduct too sectarian if not distinctly tilted in favor of the prosecution and that she would fall under the Bush discretion of an activist judge, so opposed by both President Bush and Florida Governor Jeb Bush.

During the proceedings, both the Five and the Cuban government acknowledged that the accused were Cuban agents, calling them national heroes who were defending the Cuban people against an established terrorist threat that was not being countered by U.S. officials. The defense followed this premise and argued that the Five did not infiltrate government installations or attempt to obtain national security secrets.

While the prosecution was unavailable for comment because of the appeals process, Weinglass indicated that the prosecution calculatedly entered conspiracy charges instead of espionage and murder because the former required no need to evidence that such actions were actually occurring, only a demonstration of an intent to break the law. The prosecution specifically alleged that Guerrero worked at the Boca Chica naval air station and while there sought government information and that, in fact, he had provided genuine information to Cuban authorities that contributed to the BTTR plane being shot down and its four crewmembers killed. The other defendants, the prosecution maintained, attempted to work at the U.S. Southern Command and operated as unregistered foreign agents within the United States. However, no evidence has been introduced by the prosecution that there had ever been a single instance of successful acquisition of classified information.

According to the defense, the Five were acting as an anti-terrorist unit charged with the mission to gather intelligence that amounted to scarcely more than public information. In an interview with COHA, Weinglass maintained the Boca Chica naval air station has “no gates, no guards and includes a viewing platform area for the public. Certainly the station has secure areas, but no allegation of infiltration of those areas has been brought up.”

Addressing the murder charge, Weinglass and the defense team argued that Guerrero could not have known what actions the Cuban government would take with any specific piece of information he provided. Weinglass also explained that independent of Guerrero’s information-gathering function, the U.S. and BTTR had been officially warned by the Cuban government on a number of occasions about the potential dangers of the illegal Cuba fly-overs. When called by the defense, U.S. Navy Rear Admiral (ret.) Eugene Carroll of the Center for Defense Information testified that such warnings had been given. After a meeting with his air force counterpart in Havana twenty months prior to the shoot down, Carroll reported the Cuban officer as saying that the island had experienced 25 incursions into its airspace and that the Cuban Air Force could no longer tolerate them and intended to defend the island. Carroll was asked to meet with the Pentagon to discuss the Cuban government’s position; despite these admonitions, nothing was done. Weinglass explained that shortly before the shoot down, Richard Nuncio, then an advisor to President Clinton on Cuban affairs, also mentioned Havana’s position in a memo to the Federal Aviation Association (FAA). The FAA response suggested that it was powerless to stop the incursions because BTTR pilots were purposely deviating from their previously filed flight plans. During the actual fatal episode, the FAA and Cuba’s equivalent authority in Havana were frantically wiring back and forth, warning each other as well as alerting the planes. When the planes allegedly violated Cuban airspace, the Cuban air force responded. When contacted for comment by COHA, FBI Miami Bureau spokesperson Judy Orihuela was unable to offer a statement due to the ongoing appeals process.

In June 2001, the five were convicted on all 26 counts and sentenced in December. Judge Lenard used her discretionary sentencing enhancement powers in order to maximize their sentences, matching the terms which had been handed down to the infamously successful spies Aldrich Ames and Robert Philip Hanssen. The question is, why did she feel compelled to make already draconic terms even more severe? The Cuban Five’s defense has now filed a petition in the U.S. District Court of Appeals in Atlanta, arguing that the trial was unfair because of the pressure arising from the influential Cuban-American community and disputing Judge Lenard’s refusal to change the venue of the proceedings, as well as her heartless use of sentencing extension procedures.

With the convictions now under appeal, Weinglass is citing a case that involved the same U.S. Attorney’s office that prosecuted the Five a year after that trial was heard. In this case, a non-Cuban Hispanic alleged discrimination by the Immigration and Naturalization Service. The U.S. Attorney’s office, who had just a year prior opposed a change in venue now successfully argued that it was “virtually impossible” to have a fair trial in Miami-Dade county in a case that tangentially referred to attitudes towards Cuba.

Blakely v. Washington, a Supreme Court case decided in June 2004, could also be a factor in the appeal. The Supreme Court’s decision in this case prohibits judges from enhancing criminal sentences unless, according to Justice Antonin Scalia’s opinion, “any and every fact which increases a defendant’s effective maximum sentence is found by a jury to be beyond reasonable doubt or is admitted to by the defendant.” Although Weinglass explained “no one would argue [the Cuban Five] were sentenced in violation of Blakely,” the government contested its use during the appeal because the Cuban Five case had been already debated when the Supreme Court made its ruling.

Double Standards
Since their imprisonment, the Cuban government, the Free the Five organization and a number of international bodies as well as sympathizers have argued that the prisoners have been made to experience cruel conditions, including lengthy stays in solitary confinement, separation from each other and a denial of consular visits. Dagoberto Rodriguez, Cuba’s chief representative in Washington, said in a 2003 interview with the Associated Press that there has been "strong psychological pressure" placed on the Five. “They were prevented from wearing clothes. They had nothing more than underwear without shoes. The lights were on 24 hours a day so they didn't even know whether it was day or night. They had no right to a piece of paper or pencil,” Rodriguez said.

Linda Thomas, a branch administrator for the Federal Bureau of Prisons, explained in an interview with COHA that solitary confinement, or “Special Housing,” is a particular classification referring to separation from the general prison population for administrative purposes (such as a pending trial, inmate exchanges or security for the inmate or the rest of the prison, etc.) or disciplinary reasons that may involve the termination of certain specified privileges. According to prison bureau policy, extended solitary confinement must be approved by a warden or a discipline hearing officer. A prisoner’s privileges may also be taken away on a discretionary basis if the prisoner poses a security threat to the institution. Thomas further explained that it was not the policy of the Federal Bureau of Prisons to separate prisoners on account of nationality or language and that the bureau has Spanish-speaking staff members.

Weinglass, speaking of his recent visit with Antonio Guerrero, said that the order to hold the prisoners in extended solitary confinement had come from Washington and not the local prison staff. According to Weinglass, the Cubans are subject to additional restrictions spelled out in a 12-page document that includes a ban on visitors except for immediate family members, lawyers and Cuban consular officials and the recording of all conversations.

The Cuban Five’s families also have complained about a refusal on the part of U.S. authorities to issue temporary visitation visas to see their incarcerated loved ones – some have waited six years with no respite – on account of the perceived risks they pose to national security. Some of the relatives, such as René González’s daughter Ivette, are American citizens; others, as minors, cannot travel alone and are thus being unfairly denied visas, according to their well-wishers.

Quid pro Quo
The United States’ superpower status does not give it the moral authority to simultaneously undertake a war against terror while turning a blind eye to its own grievous shortcomings in this very area, including the treatment of those who it has imprisoned for relatively minor offenses. Similarly, Cuba’s status as a socialist state does not buy it automatic immunity from fair criticism of its own institutional lapses.

Cuba’s spotty human rights record and its crackdowns on dissidents such as the ‘Cuban Seventy Five’ (called ‘kangaroo court proceedings’ by a State Department spokesperson), the fate of the Varela Project, Las Damas en Blanco, the jailing of numerous self-denominated journalists and writers and recent declarations by the government to “reclaim the streets of anti-social elements,” all merit as much scrutiny by Havana as to the justice it expects from the outside world regarding the excesses associated with the trial of the Cuban Five.

The Cuban government could acquire enhanced bargaining power as well as sympathy from its often self-serving critics in Washington and Brussels by demonstrating an earnest dedication to respecting the rights of authentic dissidents. Only with open cooperation from Washington – not through ill-funded and naïve espionage attempts – will Havana’s sovereign right to be protected from terrorist attacks from Miami be assured.

For its own part, Washington must resort less to pulpit propaganda and demonstrate a willingness to enter into a sincere dialogue with Havana by accepting its offers of cooperation (five such cooperative agreements dealing with crime and related subjects have been presented and rejected by Washington, according to Font). As for Judge Lenard, the mean-spirited disposition of the Cuban Five case represents a very specific miscarriage of U.S. justice, presenting blind justice as something that can be manipulated to harmonize with this administration’s ideological posturing against Cuba. It could be argued that this was precisely the nature of the trial over which Judge Lenard presided.

“We must look on terrorism as a universal evil, even if it is directed toward those with whom we have no political empathy.” – Acting U.S. Associate Attorney General, Joe D. Whitley, 1989

While the Cuban Five undoubtedly broke U.S. laws concerning unregistered agents, their actions were inspired by a government desperate to put a stop to what it felt was a state-sanctioned campaign of terrorism against it. As Dr. Smith commented, “It isn’t [that] they were without any guilt. The punishment was harsh for the crime.” The harsh sentence, the behavior of the presiding judge and the U.S. Attorney’s office and the State Department’s refusal to grant visas to visiting family representatives symbolize only a segment of the discrimination and unfettered odium targeted against Cuba on the part of U.S. authorities.

If Washington is prepared to undertake law enforcement measures against foreign governments in order to protect its own citizens, the U.S. should also be prepared to take full responsibility for suspected terrorists operating on its own soil. When it comes to Cuba, however, U.S. policies always have demonstrated a consistent doble moral in Washington’s pall mall efforts to please the biased segment of Cuban-Americans in Miami. In other similar cases, in which those accused presented no real threat to national security, unregistered foreign agents have been expelled without jail time, just as 40 Russian spies were in 2001.

The Bush administration will further caricature the comparative playpen behavior of the Cuban Five if it should decide to offer political asylum to Luis Posada Carriles, the perpetrator of countless acts of terrorism, who is now seeking refuge in this country. By showing itself ready to differentiate between left-wing and right-wing “terrorists,” this administration will lose any integrity that its hard line policies against terrorism once had.

Such a move would be part of the general propensity in Miami and Washington to discount legitimate information or accusations coming from the Cuban authorities because of where it originates. The Cuban-American community and its political cohorts in Washington must realize that ghastly atrocities have occurred on their behalf and with their support.

As Judge Lenard said at the conclusion of the case, “There are many sad ironies in this case. I thought how much all of these persons come from the same fold, from the same culture and how apart they are. The distance between Cuba and the United States seems much farther today than the 90 miles that separate the Florida Keys and Havana. Whatever the distance, I’m sure the Florida straits are filled with the tears of mothers from both the United States and Cuba.” Terrorism, if nothing else, offers the possibility of a common ground for Cubans – those in Miami and those in Havana – to see eye to eye for the common good, but only if the United States is willing to play by its own rules and is ready to provide a more seemly model for judicial deportment.

This analysis was prepared by COHA Research Associate, Jorge Esteban.
Additional Research provided by COHA's Director, Dr. Larry Birns

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