By Ricardo Alarcón, president of Cuba’s National Assemby
all the running you can do,
to keep in
the same place” -- Through the Looking
May 29, 2010 -- The case of Elian González, a
six-year-old boy abducted by his unknown-to-him great-uncles and against the
will of his father, in clear defiance of US law and decency, was widely
reported by the media around the world. Miami, the place of the kidnapping,
became a kind of secessionist city in North America when the mayor, the chief
of police, the politicians, every newspaper and local radio and TV
broadcasters, together with religious and business institutions, joined
notorious terrorist and violent groups in opposing court and government orders
to free the boy.
It was necessary for a special forces team sent from
Washington DC to launch a surreptitious and swift operation to occupy several
houses, disarm the heavily armed individuals hidden there and in the neighbourhood
to save the child and restore law.
Everybody followed that story. Day in and day out.
But practically nobody knew that, at the very same
time, in exactly the same city, Miami, five other young Cubans were arbitrary
deprived from their freedom and subjected to a gross miscarriage of justice.
Gerardo Hernández, Ramón Labañino, Antonio Guerrero,
Fernando González and René González were detained in the early hours of
September 12, 1998, and locked for the next 17 months in punishment cells, in
solitary confinement. The main accusation against them -- as recognised by the
prosecutors and the judge from their indictment to the last day of the trial --was
that they had peacefully, with no weapons, penetrated anti-Cuban terrorist
groups with a view of reporting their criminal plans to the Cuban government.
Was it conceivable to have a fair trial in Miami for
any Cuban revolutionary facing such an accusation? Could that happen while the
kidnapping of Elian was going on with its surrounding atmosphere of violence,
hatred and fear?
According to the prosecution it was perfectly
possible. In their words Miami was “a
very large, diverse, heterogeneous community” capable of handling any
sensitive issue even those involving the Cuban Revolution. They repeated that
line when rejecting the more than ten motions presented by the defence lawyers
requesting a change of venue before the start of the trial.
The same government that was obligated to deal with
Miami as a sort of rebel city and to sent there secretly its forces to restore
legality, lied repeatedly on the venue issue denying the defendants a right so
cherished by Americans, and refused to move the proceedings to the neighbouring
city of Fort Lauderdale, half an hour away from Miami.
Ironically a few years later, in 2002, when the
government was the object of a civilian complaint of an administrative nature,
of far lesser significance-later resolved by an out of court settlement, and
only indirectly related to the Elian case, they asked for a change of venue –
to Fort Lauderdale – affirming that “anything
related to Cuba” was impossible to get a fair trial in Miami. (Ramírez vs.
Ashcroft, 01-4835 Civ-Huck, June 25, 2002)
Such a flagrant contradiction, a clear proof of
prosecutorial misconduct, of real prevarication, was one of the main factors
leading to the unanimous decision of the Court of Appeals panel, in 2005, to
vacate the convictions of the Five and order a new trial. (Court of Appeals for
the Eleventh Circuit, No. 01-17176, 03-11087). That historical decision was later
reversed by the majority of the entire court under the pressure of Attorney
General Alberto González in an action that went contrary to the normal US legal
practice. Mr. González successful move, one manifestation of his peculiar legal
philosophy, foreclosed the possibility of a just resolution of this case in
manner that would have honour the United States.
The panel decision, an exceptionally sound and solid
93 pages document including irrefutable facts about the half century old
terrorist war against Cuba, remains an outstanding moment in the best US
tradition and will continue to be a text to be analysed with respect by
scholars and law school students.
But that’s another chapter in the long saga of the
Elian is about to finish high school and continues to
attract the attention of foreign media and visitors who keep going to Cardenas,
the beautiful town where he lives. When travelling towards Elian’s home they
will be surprised by billboards demanding freedom for five youngsters they never
heard off before.
In Leonard Weinglass words:
The trial was kept secret by the American media. It is inconceivable
that the longest trial in the United States at the time it was taking place was
only covered by the local Miami press, particularly where generals and an
admiral as well as a White House advisor were all called to testify for the defence.
Where was the American media for six months? Not only was this the longest
trial, but it was the one case involving mayor issues of foreign policy and international
terrorism. The question should be directed to the American media, with
continues to refuse to cover a case with such gross violations of fundamental
rights, and even violations of human rights of prisoner. (www.antiterroristas.cu, September 12,
Elian was saved because Americans knew about his case
and got involved and made justice prevail. The Five are still incarcerated – it
will be 11 years next September – victims of a terrible injustice, because
Americans are not permitted to know.
The Cuban Five are cruelly punished because they
fought against terrorism. They are heroes. But forbidden heroes.
first -- verdict afterwards”
adventures in Wonderland, Lewis Carroll
Having been defeated on the issue of venue the outcome
of their trial was predetermined. It will go strictly in accordance with the
The American media played a very important two-pronged
role. Outside Miami it was and it continues to be how Weinglass so aptly
described contrasting sharply with their role within Dade County, both offering
an impressive show of discipline.
The local media nor only intensively cover the case
but intervened actively on it as if they were part of the prosecution. The Five
were condemned by it even before they were first indicted.
Very early in the morning on Saturday, September 12, 1998, each media outlet in Miami was
talking, without breathing, about the capture of some “terrible” Cuban agents “bent
to destroy the United States” (the phrase that prosecutors love so much and
will repeat time and again during the entire process). “Spies among us” was the headline that morning. At the same time,
by the way, the Miami FBI chief was meeting with Licoln Díaz-Balart and Ileana
Ross Lehtinen, representatives of the Batista–terrorist gang in federal
An unprecedented propaganda campaign was launched
against five individuals who could not defend themselves due to the fact that
they were completely isolated from the outside world, day and night, for a year
and a half, in what is accurately described in prison jargon as the “hole”.
A kind of media circus has surrounded the Five since
they were detained all the way until now. But only in Miami. Elsewhere in the
United States they have only gotten silence. The rest of the country does not
know much about this case and is kept aside, on the dark, as if everybody
accepted that Miami – that “very diverse,
extremely heterogeneous community” as described by his DA – belongs to
That could have been a reasonable proposition if it
were not for some rather embarrassing facts recently discovered. The media
people involved in the Miami campaign -“journalists”
and others- were paid by the US government, were in its payroll as employees of
the radio and TV anti-Cuban propaganda machine that has cost many hundreds of
millions of US taxpayer’s dollars.
Without knowing it Americans were forced to be very
generous, indeed. There is a long list of “journalists”
from Miami who covered the entire trial of the Cuban Five and, at the same
time, were receiving juicy federal checks (for those interested, all the names
and what they got for their “work” is
The Court of Appeals decision on 2005 provides also a
good summary of this propaganda campaign before and during the trial. That was
one of the reasons leading the panel “to
vacate the convictions and order a new trial”. Miami was not a place to have
even the appearance of justice. As the judges said “the evidence submitted in support of the motions for change of venue
was massive”. (Court of Appeals for the Eleventh Circuit, No. 01-17176,
Let’s clarify something. Here we are not talking about
journalists in the sense Americans outside Miami may be thinking of. We are
referring to Miami “journalists”,
something quite different.
Their role was not to report the news but to create a
climate guaranteeing conviction. They even called for public demonstrations
outside the office of defence counsel and harass prospective jurors during the
pre-trial phase. The court itself expressed concern about the “tremendous amount of requests for the voir
questions in advance of their been asked, apparently destined to inform their
listeners, including members of the venire, of the questions prior to the time
they are posed to them by the Court”.
We are talking about a bunch of individuals who
harassed the jurors, following them, with cameras, through the streets, filming
their car licences and showing them on TV, tracking them inside the court
building, down to the jury room’s door, during the entire seven months trial
proceedings, all the way to the last day.
Judge Leonard more than once protested and begged the
government to stop such a deplorable masquerade. She did that at the very
beginning of the trial, on several occasions thereafter and until the very end.
To no avail. (Official transcripts of the trial, p. 22, 23, 111, 112, 625,
The government was not interested at all in having a
fair trial. During the jury selection process it was very keen in excluding the
majority of African-American prospective jurors. It also excluded the three
individuals who didn’t manifest strong anti Castro sentiments.
By that time Elian González has been rescued but he
was very much in the minds of the jurors. As one of them said during voir dire:
“I would be concerned about the reaction
that might take place … I don’t want rioting and stuff like that to happen like
what happened in the Elian case”. Or in the words of another: “I would be a nervous wreck if you wanted to
know the truth … I would have actual fear for my own safety if I didn’t come
back with a verdict that was in agreement with the Cuban community”.
In that ambience of fear begun the longest trial at
the moment in American history. And the one that the big media “chose” to ignore.
face of impunity
recognised during voir dire, the kidnapping of Elian González and its
consequences for the community was very much in the minds of those chosen to be
jurors at the trial of the Cuban Five a few months after the six year old boy
was rescued by the federals.
everybody else they had followed the events related to Elian which saturated
the news. The faces of the kidnapers, their promoters and supporters, as well
as others involved in the scandal have become quite familiar to the jury
members. The faces, and two features of the Elian drama with a unique character
and a direct connection with the process of the Five Cubans.
perplexing behaviour of every Miami public official, from its federal congress
member, the mayor and the city commissioners to firefighters and members of the
police force, who openly refused to obey the law and did nothing to put an end
to the most publicised case of child abuse ever to occur. And, second, but not
less astonishing, that nothing happened to a group of individuals that so
clearly had violated the law with the abduction of a child and the violence and
disturbances they spread over the town when he was saved by the federal
government. Nobody was prosecuted, arrested, or fined. No local authority was
dismissed, substituted or invited to resign. The Elian case demonstrated how
anti-Castro impunity reign over Miami.
jurors sat first at the court room to do their citizens duty they were probably
surprised. There, live, were the “Miami
celebrities” that they have been so accustomed to watch, day and
night, on local TV. And they were together, sometimes smiling and embracing
each other, as old pals. The kidnapers and the “law enforcement” guys hand and glove with the prosecutors
(those valiant people who never show up when a little boy was being molested in
front of the media)
spent seven months in that room looking at, and being watched by the same
people so acquainted to them who now were at the witness stand, at the public
area or at the news corner, the same people they will find frequently at the
parking lot, at the building entrance, at the corridors. Some now and then
proudly showing the attire used at their last military incursion to Cuba.
heard them explaining in detail their criminal exploits and saying time and
again that they were not talking about the past. It was an odd parade of
individuals appearing in a court of law and recognising their violent actions
against Cuba that were planned, prepared and launched from their own neighbourhood.
making speeches, demanding the worst punishment, slandering and threatening the
did what she could to try to preserve calm and dignity. She certainly ordered
the jury, many times, not to consider certain inappropriate remarks, but by so
doing their prejudicial and fearsome effects could not be erased from juror’s
consequences were obvious. The Court of Appeal panel’s decision stated it in
clear terms: “The evidence at trial disclosed the clandestine activities of not
only the defendants, but also of the various Cuba exile groups and their military
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” (Eleventh Circuit Court of Appeal, No. 01-17176, 03-11087).
was more. After hearing and seeing the abundant evidence of terrorist acts that
the defendants had tried to avert, the government succeeded in defending the
terrorists by having the court inexplicably agreeing to take from the jury the
right to exonerate the Five on the basis of necessity which was the foundation
of their defence.
The heart of
the matter, in this case, was the need for Cuba to protect its people from the
criminal attempts of terrorists who enjoy total impunity on US territory. The
law in the United States is clear: if one acts to prevent a greater harm, even
if he/she violates the law in the process, he will be excused from any
criminality because society recognises the necessity –even the benefit- of
taking such action.
States, the only world superpower, has interpreted such universal principle in
a manner leading to war in faraway lands in the name of fighting terrorism. But
at the same time it refused to recognise it to five unarmed, peaceful,
non-violent persons who, on behalf of a small country, without causing harm to
anybody, tried to avoid the illegal actions of criminals that have found
shelter and support in the US.
government, through the Miami prosecutors, went even farther, to the last mile,
to help those terrorists. They did it very openly, in writing and with
passionate speeches that curiously were not considered newsworthy.
happening in 2001. While the Southern Florida prosecutors and the local FBI
were very busy harshly punishing the Cuban Five and protecting “their” terrorists, the criminals
preparing the 9/11 attack had been training, unmolested, in Miami for quite
some time. They should have had a good reason to prefer that location.
IV. In their
The disproportionate prison
terms imposed on the Cuban Five – Gerardo Hernandez Nordelo (two life terms
plus 15 years), Ramón Labañino Salazar (one life term plus 18 years), Antonio
Guerrero Rodríguez (one life term plus 10 years), Fernando González Llort (19
years) and Rene Gonzalez Sehwerert (15 years) – contrast sharply with those
applied in recent years in the United States on other persons accused of truly
practicing espionage, sometimes at an uncommon scale, and even on some tied to
violent armed actions against the United States. None of them was condemned
to life sentences; all of them received lesser sentences than the Cuban Five,
some have already served their sentences and are free and others, convicted of
espionage, have had their charges withdrawn by the Obama administration and
were set free.
The excessive nature of the
sentences of the Five is an indication of the vengeful political motivation of
the whole trial, as are the conditions of their incarceration, including the
very serious obstacles for family visits that go to the extreme of having always
denied visas to Gerardo and Rene’s wives.
But there is an even more
revealing aspect demonstrating that the purpose of the US government was to
give shelter and protect anti-Cuban terrorists, to prevent their sinister plans
from being discovered, thus becoming accomplice and cover-up for their future
outrages. For the Bush administration that was as important, or more, than the
extravagant years of incarceration. That was what the prosecutors said,
vehemently and in rather graphic terms, when asking the court for an additional
What does that mean? In their
own words, for the government it was essential to ensure that these five
individuals, after serving their prison terms, could never again do anything
that may affect the activities of the terrorists who operate in Miami under the
protection of the US government. To guarantee that, the prosecutors requested,
and the court granted, specific provisions on each sentence, making certain
that, after completing their entire period of incarceration, even one and more
life terms, the defendants will be prevented from trying to do what they did
prompting their imprisonment.
Gerardo, Ramón and Fernando
were born in Cuba and as undesirable aliens, after terminating their prison
terms will be immediately expel from the US territory. That was specifically
incorporated in each of their sentences including Gerardo’s, who after spending
in prison 15 years of his second life will immediately be deported (transcript
of sentencing hearing before the Honorable Joan A. Lenard, December 12, 2001,
René and Antonio posed a
particular problem. Having been born in Chicago and Florida, respectively, they
are both US citizens by birth and cannot be forced to leave the country. That
called for a more imaginative thinking and inspired rhetoric on the part of the
prosecutors. And they showed plenty of both.
A more precise and candid
explanation of “incapacitation” was required.
First came René, sentenced
“only” to 15 years. The prosecutors expressed plainly their grave concern with
the prospects of a still young man getting free and going back attempting to do
again what he had done.
The court, conceding to the
government anxiety, added this peculiar requirement to René’s sentence: “As a
further special condition of supervised release the defendant is prohibited
from associating with or visiting specific places where individuals or groups
such as terrorists, members of organisations advocating violence, and organised
crime figures are known to be or frequent.” (Transcript of sentencing hearing
before the Honourable Joan A. Lenard, December 14, 2001, pages 45-46).
And then it was the turn of
Antonio Guerrero, who had already received a life plus 10 years in prison. The
prosecutors had to employ all the resources of their eloquence. For the
government “incapacitation” was of paramount importance. It could not take any
chances and when Antonio faced the court on December 27, 2001 it was added to
his sentence, word by word, the same “special condition” imposed previously to
All that happened in December
2001, just three months after the horror of 9/11. Since that fateful day George
W. Bush became famous calling for an all out war against terrorists and anybody
that gives them any kind of help. Just one quotation from his repetitive
parlance: “Any government that supports, protects or harbours terrorists is
complicit in the murder of the innocent and equally guilty of terrorist
We have to take George W.
Bush at his own words.
(P.S. In October 2011 René
González will have completed his prison term if his defence does not succeed in
getting him out before. In any case he will be on supervised release during the
current administration. Will President Obama try to “incapacitate” him? Shall
René still be prohibited from doing anything to disturb the terrorists where
they are “known to be or frequent”?)
V. `Spies’ without espionage
The first indictment in
September 1998 charged the Cuban Five of being unregistered Cuban agents and of
other minor violations. The government also charged three of them – Gerardo,
Ramón and Antonio – with “conspiracy to commit espionage” (Count two of the
Prosecutors didn’t accuse any
of them of actual espionage for a very simple reason: there was not such a
thing and thus it could never be proven. The prosecutors went even farther. At
their opening statement they warned the jury not to expect them to present any
secrets or anything of that sort. The only thing the prosecution needed was to “convince” the jurors that the defendants
were really bad people capable of conceiving an attempt to endanger the
national security of the United States sometime in a hypothetical future. And,
they argued, the defendants had to get the most severe punishment possible because
they were the really bad guys disrupting the peace and tranquillity in Miami.
In order to achieve that goal
the prosecutors, notwithstanding what their own indictment said, made the most
inflammatory kinds of statements at trial, accusing the Five of no less than
trying “to destroy the United States”
and reminding the scared jurors that if they failed to condemn them they will “betray the community”.
The media did the rest of the
job. They have always portrayed the Cuban Five as “spies” or as people accused
of being “spies”. The media
went into overdrive in performing their task. They keep repeating the same tune
even after the en banc Court of
Appeals unanimously determined in September 2008 that there was no evidence
that the accused had “gathered or
transmitted top secret information” or that they had damaged the
national security of the United States and thus it decided that the sentences
for Charge 2 (conspiracy to commit espionage) were erroneous, it vacated them
and remanded Ramon and Antonio for re-sentencing (Eleventh Circuit Appeals Court, No. 01-17176, D.C Docket No.
98-00721-CR-JAL, pages 70-81).
Nevertheless, even though it acknowledged that the same procedure should be
applied to Gerardo, in an astounding act of judicial discrimination, the court
refused to do so adducing that a life sentence was already weighing against
As a matter of fact, it was
very easy to realise that in this case no secret or military information was
involved and that the national security of the US was never affected. That was
what the Pentagon said, in clear, plain language before the trial started. That
was the testimony, under oath, by Admiral (R) Eugene Carroll (official
transcripts pages 8196-8301), Army General (R) Edward Breed Atkeson (Idem pages
11049-11199), General and former Commander of Southern Command Charles Elliot
Wilhelm (Idem pages 11491-11547), Air Force Lieutenant General (R) James R.
Clapper (Idem pages 13089-13235).
Their testimonies were not
secret, but were made voluntarily in open court. Probably such a parade of
distinguished and decorated military chiefs sustaining the innocence of some
young Cuban revolutionaries has not happen before a US Court of law. This
didn’t make the news out of Miami, but the official transcripts of the trial
are there for anybody to read.
Since the Cuban Five were
condemned there have been other cases whose results sharply contrast with
theirs. Let’s very briefly consider a few of them.
Khaled Abdel-Latif Dumeisi,
accused of being an unregistered agent of the Saddam Hussein government, was
sentenced in April 2004,
in the middle of the US war with Iraq,
to three years and 10 months in prison.
Leandro Aragoncillo was found
guilty in July 2007 of transmitting secret national defence information of the
United States (around 800 classified documents) obtained from his office in the
White House, where he worked as military assistant to Vice Presidents Al Gore
and Dick Cheney. Mister Aragoncillo was sentenced to 10 years in prison while
his co-conspirator Michael Ray Aquino got six years and four months.
Gregg W. Bergersen, a Defence
Department analyst was found guilty in July 2008 of providing national defence
information to unauthorised persons in exchange for money and gifts and was
sentenced to four years and nine months in prison.
Lawrence Anthony Franklyn, a
US Air Force Reserves colonel, working in the Defence Department was found
guilty of giving classified and national defence information, including
military secrets, to representatives of a foreign government and was sentenced
to 12 years and seven months. But he never entered a federal prison. He was
free while appealing and last May the Justice Department dropped the charges
that sustained his case.
It goes without saying that
none of the cases referred to above were tried in southern Florida or involved
any attempts to frustrate criminal plans.
The Cuban Five got, together,
four life terms plus 77 years. They didn’t work at the White House, or the
Pentagon, or the State Department. They never had or sought access to any
secret information. But they did something unforgivable. They fought anti-Cuban
terrorism and they did it in Miami.
VI. Indictment à la carte
More than seven months after the Cuban Five were
arrested and indicted a new charge was presented by the US government. Again,
the charge was one of “conspiracy”, but this time to commit murder in the first
degree and was brought specifically against one of the Five, Gerardo Hernández
The new indictment came after
a public campaign in Miami actively promoted by “journalists” on the US government
payroll, including reports about meetings in public places attended by
well-known Cuban exile leaders, US prosecutors and FBI officials, in which the
accusation against Gerardo was openly discussed. It became a clear demand by
the most violent groups in town and was a central focus of the local media.
The government acquiesced to
the demand and introduced the second superseding indictment whose essential new
feature was adding this “crime” to Gerardo's list of charges.
This was a political
concession to anti-Cuban terrorists, who were seeking revenge for the downing
by Cuba’s Air Force, in February 24, 1996, of two airplanes (Model O2 used by
the US Air Force first in Vietnam and later in El Salvador wars, as was
concretely the case with these two planes) piloted by members of a violent
anti-Cuban group, an event that had taken place two years before the Cuban Five
were detained, when those airplanes were within Cuban airspace.
The timing was very
suspicious, indeed. According to information provided by the government at
trial, the FBI had found the real nature of Gerardo’s revolutionary mission in
Miami and was monitoring him and controlling his communications with Havana at
least a couple of years before the downing of the planes. If that
incident was a result of a “conspiracy,” in which Gerardo was a key
participant, why wasn’t he arrested in 1996? Why was this issue not even
mentioned in September 1998 when he was first detained and indicted?
The planes belonged to a
group led by José Basulto, a veteran CIA agent involved in many paramilitary
actions since 1959, included the Bay of Pigs invasion and a number of
assassination attempts on Fidel Castro. In the 20 months preceding the
incident, this group had penetrated Cuban airspace 25 times, each one denounced
by the Cuban government.
After so many diplomatic
démarches the US government wanted to appear responsive. It initiated an
investigation about those flights, asked for Cuba’s help in providing details
of previous provocations, acknowledged their receipt and thanked for
them. On February 24, 1996 such administrative proceedings had not been
completed, but later Mr. Basulto was deprived by the Federal Aviation
Administration (FAA) of his pilot license and he doesn’t fly anymore (at least
The provocateurs had
blatantly announced that they will continue making illegal flights into Cuba’s
airspace and even proclaimed that the island, which was at the time suffering
its worst crisis ever – worse in economic terms, that the Great Depression,
according to a UN report – was not able to respond to their illegal incursions.
In January, Mr. Basulto brought with him an NBC TV crew from Miami who filmed
and broadcasted how they overflew downtown Havana throwing out propaganda and
other materials. Cuba made it public that such provocations will not be
tolerated anymore, made the proper notifications to all that may be concerned,
including the US government, the State Department and the FAA, which in turn
warned Basulto and his group that they should refrain from such flights.
The alleged “conspiracy” was
in itself a monumental stupidity, incomprehensible to any rational mind. It
supposed that the Cuban government had decided provoke an all-out war with the
United States, a military confrontation that obviously would have resulted in a
terrible blow not only for the Cuban government, but for the entire nation and
its people. In any crime motivation is always a key factor, a decisive cue.
What could have been Cuba’s motivation to provoke such an event precisely at
that moment, the most risky for the survival of our country without allies or
friends in a world and a hemisphere under the full control of the United States
Cuba did exactly the opposite.
It denounced one by one, each provocation to the FAA and to the International
Civil Aviation Organisation (ICAO, the UN family institution dealing with these
matters) and sent dozens of diplomatic notes to the State Department. But Cuba
went farther. It did his best to reach out to the highest level of the US
Administration, the White House, trying to prevent more incidents.
The New Yorker issue of January 1998 dedicated to Cuba on the occasion
of the Pope’s visit included a serious article in which a fairly objective
account of those efforts by Cuba can be found. (Carl Naguin, “Annals of
Diplomacy Backfire”, the New Yorker,
January 26, 1998, http://www.newyorker.com/archive/1998
Yes, there was a conspiracy
to provoke the tragedy of February 24, 1996. But it was the entire and
exclusive work of the same Miami groups that have launched a half-century
terrorist campaign against Cuba, the same gang that will afterwards kidnap
Elian Gonzalez, a six-year-old boy. Events from which they always came out with impunity.
VII. It happened in Miami
Court of the Southern District of Florida is not an international tribunal,
neither is it a UN body having jurisdiction on matters affecting relations
between countries. It has a very specific duty, which is to determine if a
particular defendant is guilty or not of a concrete charge. In instructing the
jury in the case of Gerardo Hernandez, the court recalled the language of the government’s
indictment: “Count 3 charges that defendant Gerardo Hernandez
conspired with other persons to perpetrate murder, that is, the unlawful
killing of human beings with malice aforethought and premeditated intent in the
special maritime and territorial jurisdiction of the United States.”
(Transcript of Trial before the Honourable Joan A. Lenard, June 4, 2001, pages
14587 – 14588)
Judge Lenard pointed out that
Gerardo: “Can be found guilty of that
offence only if all of the following facts are proved beyond a reasonable
doubt. First. That the victims named in the indictment are dead. Second. That
the defendant caused the death of the victims with malice aforethought. Third. That the defendant did so with
Fourth. That the killing
occurred within the special maritime or territorial jurisdiction of the United
States.” (Idem pages 14598 – 14599).
She elaborated further:
To kill with malice
aforethought means to kill another person deliberately and intentionally …
Killing with premeditated intent is required in addition to proof of malice
aforethought in order to establish the offence of first degree murder.
Premeditation is typically associated with killing in cold blood and requires a
period of time in which the accused deliberates or thinks the matter over before
It must be long enough for
the killer after the intent to kill, to be fully conscious of the intent. You
are instructed that the location of the alleged murder, as described in the
indictment, if you find beyond a reasonable doubt that such offence occurred
there, would be within the special maritime or territorial jurisdiction of the
United States. (Idem pages 14599 – 14600).
Such a crime had never
occurred. During seven months of trial the prosecutors failed to provide any
piece of evidence implicating Gerardo in the tragic event of February 24, 1996,
nor could they demonstrate, “beyond a reasonable doubt”, the exact location of
the incident – something that ICAO experts had already failed to determine.
It should be noted, however,
that Cuban radars showed clearly the shoot-down taking place well inside our
territory, that the only remnants were found very close to Havana waterfront
and that the US coast guard, having failed to find anything in the
international area, asked on February 25th officially through the State
Department for Cuba’s permission to search within our territorial waters. The
local media – the same government-paid “journalists” that had fabricated the
accusation in Count 3 – became nervous and even announced an imminent defeat.
A few days earlier, as soon
as the judge made it known to the parties her instructions to the jury, the
prosecutors took what they described as “the unprecedented step of petitioning”
– to the Court of Appeals – “for a writ of prohibition” because “in light of
the evidence presented in this trial, this [the instructions to the jury]
presents an insurmountable hurdle for the United States in this case, and will
likely, result in the failure of the prosecution on this count” (Emergency
Petition for Writ of Prohibition, May 30, 2001, pages 4 and 21).
After recognising again that
the instruction “imposes an insurmountable barrier to this prosecution” the
government asked the Court of Appeals to urgently decide:
That the district court be
ordered to instruct the jury that it is not necessary for the jury to find that
defendant Hernández or his co-conspirators in Count Three of the indictment
agreed that the murders would occur in the special maritime and territorial jurisdiction
of the United States.
That the district court be
prohibited from giving the pattern jury instruction on first degree murder and
from instructing the jury that it must find that defendant Hernandez conspired
to commit premeditated murder.” (Idem, page 39)
The Court of Appeals denied
the emergency petition and accordingly the district judge maintained her
instructions as quoted above.
Some on the defence team were
jubilantly celebrating a victory that was anticipated even by the prosecutors.
But it took the jurors a few
minutes, without asking any questions, to find Gerardo guilty of conspiracy to
commit murder in the first degree in the special maritime and territorial
jurisdiction of the United States, a “crime” that he did not commit and which
the prosecutors had desperately tried to withdraw.
That happened in Miami. In
Miami, it is normal to kidnap with impunity a six-year-old boy, so why should
it be difficult to condemn a young man for a “crime” that didn’t occur?
When the historic unanimous
decision was reversed at the urging of George W. Bush's attorney general (Remember Elian?,
CounterPunch, August 11, 2009), the
same three-judge panel was to hear the remaining issues other than venue, which
had been the one upon which they had expressed their landmark opinion. However,
in the meantime, one jurist, the oldest and most liberal, had retired and
somebody else was designated to substitute for him. The one chosen for that
role was a Bush recess appointee, William H. Pryor, whose nomination, described
as “one of the most contentious in recent history”, had provoked uproar in the
Senate, which confirmed him over the opposition of 45 Senators. (For a detailed
investigation into Pryor's legal career see Jeffrey St. Clair's Pryor Unrestraint,
CounterPunch, June 14, 2003.)
Senator Kerry, claimed that
the new judge “has been a constant advocate for scaling back constitutionally
guaranteed rights” with his “consistent pursuit of extreme and incorrect legal
views … as a result our Federal judiciary will have less ability to protect the
constitutional rights we hold so dear” (Congressional record, Senate June 14,
Pryor was criticised by some
major newspapers, and was described as a “right wing zealot not fit to judge”.
In summing up his pedigree Jeffrey St. Clair writes: “he goes much, much
farther than even many of the most extreme ideologues in his party” (“Pryor
Unrestraint”, CounterPunch, June 14,
Mr. Pryor wrote the opinion
for the court rejecting the other issues presented by the defence in language
that at times was closer to a slanderous anti-Cuban vulgar diatribe than to the
balanced, sober style of the judiciary (even some well-known terrorists,
rightly described as such by the previous panel, were now transmuted into
patriotic freedom fighters). Interestingly the accusation of “spying” was so
clumsily fabricated and the Miami trial included other wrongs so obvious that
even Pryor had to agree with the other two judges in vacating the sentences of
three of the defendants. ("Spies Without Espionage",
CounterPunch, August 28-30, 2009).
This time the panel was divided
on a very crucial point: Count three, conspiracy to commit murder. One of the
judges, J. Birch, while concurring with Pryor’s opinion recognised that “this
issue presents a very close case” and reiterated “that the motion for change of
venue should have been granted” adding that “the defendants were subjected to
such a degree of harm based upon demonstrated pervasive community prejudice
that their convictions should have been reversed” (US Court of Appeals for the
Eleventh Circuit N. 01-17176, DC Docket No. 98- 00721 CR-JAL, Page 83).
Judge Phillys Kravitch, in an
impressive 15-page dissent, demonstrated the terrible injustice committed by
her colleagues against Gerardo Hernández.
She pointed out:
A country cannot lawfully
shoot down aircraft in international airspace, in contrast to a country
shooting down foreign aircraft within its own territory when the pilots of
those aircrafts are repeatedly warned to respect territorial boundaries, have
dropped objects over the territory, and when the objective of the flights is to
destabilize the country’s political system. Thus, the question of whether the
Government provided sufficient evidence to support Hernández’s conviction turns
on whether it presented sufficient evidence to prove that he entered into an
agreement to shoot down the planes in international, as opposed to Cuban
airspace” (Idem Pages 94-95).
and in this regard “the Government cannot point to any evidence” (Idem Page
But beyond the issue of the
location of the incident “the Government failed to provide sufficient evidence
that Hernández entered into an agreement to shoot down the planes at all. None
of the intercepted communications the Government provided at trial show an
agreement to shoot down the planes. At best, the evidence shows an agreement to
'confront' BTTR planes. But a 'confrontation' does not necessarily means a
To prove her point she
referred to testimonies and videotapes presented at trial:
This evidence demonstrates
the obvious: there are many ways a country could “confront” foreign aircraft.
But the Government presented no evidence that when Hernandez agreed to help
“confront” BTTR that he agreed confrontation would be a shoot down. To conclude
that the evidence does show this goes beyond mere inferences to the realm of
speculation … Because so much evidence points towards a “confrontation” other
than a shoot down, I cannot say that a reasonable jury – given all the evidence
– could conclude beyond a reasonable doubt that Hernandez agreed to a shoot
down. (Idem Pages 96-97)
It was so obvious that the government
itself had recognised the point in an “unprecedented” emergency petition to
that very Court of Appeals: to demonstrate Gerardo’s invented guilt on such a
fabricated crime constituted an “insurmountable obstacle” for the prosecution.
Such would have been the case
with “a reasonable jury” in any other venue. But not in Miami, where the
intimidated jurors where surrounded at the court room by a bunch of individuals
who proclaimed their terrorist exploits and were able to kidnap Elian Gonzalez,
always with total impunity, and joined the government in demanding the worst
punishment for Gerardo. That could have been understood by any reasonable
jurist. But not by a “right-wing zealot not fit to judge.”
Somebody at the White House
was happy. His appointee served him well. Gerardo got his two life sentences
confirmed with the reluctant and paradoxical vote of a judge, Birtch, who
insisted that all of the Five “convictions should have been reversed” and a dignified
lady who maintained her dissenting voice: “the Government presented no
evidence” to sustain its accusation.
After Pryor’s shame
judgement, the Cuban Five appealed to the en
banc court. This time they were not contesting an unanimous and
well founded decision – as the Government did in 2005 – but one clearly unfair
and prejudicial that had sharply divided the panel on Count Three, with
Kravitch rejecting it with impeccable consistency and Birtch – after recognising
her arguments, but ignoring the presumption of innocence and his own “reasonable doubts” – strangely decided
to join Pryor’s pro-government stance and neocon logic.
But this time the Court of
Appeals confirmed the disputable conclusions of the panel. The Atlanta judges
even forgot that it was to them that the same government had made an “emergency
petition” admitting that it had failed to prove Gerardo’s guilt.
IX. The unheard
Having exhausted their appeal
efforts, the Cuban Five petitioned the Supreme Court to review their case. They
were not asking too much. It was a case deserving the attention of the Justices
for a number of reasons, some of a really exceptional nature.
All along the legal process –
one of the most prolonged at the time in US history – a number of
constitutional rights were violated, as well rulings which contradicted with
the holdings in other circuits – which are considered to be the main business
of the Justices – on important issues such as venue, racial discrimination in
jury selection, sentencing, and defendants and defence lawyers’ rights.
It was a case, furthermore,
having a direct connection with terrorist groups and their activities within
the US territory – at a time when terrorism was supposed to be the biggest
issue – and with clear implications in terms of international relations; a case
in which generals and top military chiefs and even a president’s special
advisor had appeared on the witness stand. It had the distinction of being
unique in several respects.
The original Court of Appeals
panel’s unanimous determination, after having examined all aspects of the case
for several years, to set aside all the convictions and order a new trial, was
in itself unique, as was the 93-page document explaining the ruling. Very
exceptional was the US government decision, taken at the highest level, to
demand the court to reverse the decision and very rare getting the court
agreeing to such an uncommon petition.
On the other hand, it is not
a regular thing for an appellate judge to ask the Supreme Court to review a
case, much less to do so twice as did Judge Birch, who repeated that demand
while strangely joining Judge Pryor in his shameful judgement.
It was unique also in terms
of concern and interest all over the world.
In 2005, prior to the
determination of the appeal’s court panel, a very important and also unique
decision was unanimously adopted by the UN Working Group on Arbitrary
Detention. This is a completely independent entity, not an intergovernmental
body, with five judges – one for each continent – not representing any UN
member state and conducting themselves exclusively in a personal
capacity. The UN group studied the situation of the Five at the request of
their wives and mothers. The group spent several years researching the case in
its entirety and interacting with the US in official correspondence. The Cuban
government was never consulted, as it should not be, because Cuba was not a
party to that process.
It was a history-making
decision. The UN group concluded that the deprivation of liberty for the Five
was arbitrary and in contravention of the relevant UN Human Rights Conventions
and called on the government of the United States to take steps to remedy the
The group stated that: “the
trial did not take place in a climate of objectivity and impartiality which is
required” and “the Government [of the United States] has not denied that the
climate of bias and prejudice against the accused in Miami persisted and helped
to present the accused as guilty from the beginning. It was not contested by
the Government that one year later it admitted that Miami was an unsuitable
place for a trial where it proved almost impossible to select an impartial jury
in a case linked with Cuba.”
“The Government had not
contested the fact that defence lawyers had very limited access to evidence
because of the classification of the case by the Government as one of national
security” which “undermined the equal balance between the prosecution and the defence
and negatively affected the ability [of the defence] to present counter
The UN experts noted that the
accused “were kept in solitary confinement for 17 months”, and as a consequence
“communication with their attorneys and access to evidence and thus,
possibilities to an adequate defence were weakened.”
In conclusion they determined
that these “three elements, combined together, are of such gravity that they
confer the deprivation of liberty of these five persons an arbitrary character”
(Report of the UN Working Group on Arbitrary Detention E/CN.4/2006/7/Add.1 at
p. 60, Opinion No. 19/2005 – United States of America).
This was the first and only
time in the history of the United States and in the history of the United
Nations that a UN body had found a trial process in the US to be unfair and
contrary to universally established standards of human rights and international
But that finding of five
independent judges, none of them, by the way, a leftist or a radical, was not
easily available in the US media and most Americans probably have never heard
Many Americans do not know
about the Cuban Five because they have not been permitted to know.
Not only was the long trial
of the Cuban Five maintained in the dark, Americans have not even been allowed
to know that this case has been very much in the minds of many millions around
the globe. The big corporate media that didn’t report their legal battle threw
a similar curtain of silence around the wide, ever growing, movement of
solidarity that the Cuban Five have received practically everywhere from
Ireland to Tasmania, from Canada to Namibia. Churches, parliaments, human
rights organisations, labour unions, writers, lawyers and peoples from all
walks of life have expressed their concern and interest in all languages,
But the Supreme Court did not
bother to listen.
X. An insult
On March 6, 2009, 12 separate amicus briefs were
presented in support of the Cuban Five’s petition for certiorari before the
Supreme Court, the largest number of amicus filings ever to have urged Supreme
Court to review a criminal conviction.
Eight briefs were submitted by institutions or persons
based on the United States: National Association of Criminal Defense Lawyers;
Florida Association of Criminal Defence Lawyers, Miami Chapter; National Jury
Project; National Lawyers Guild and National Conference of Black Lawyers;
William C. Velazquez Institute and Mexican American Political Association;
Civil Rights Clinic at Howard University School of Law; Center for
International Policy and Council on Hemispheric Affairs; and one amicus brief
submitted by Professors Nelson P. Valdés, Guillermo Grenier, Félix
Masud-Piloto, José A. Cobas, Lourdes Arguelles, Rubén G. Rumbaut and Louis
Pérez, distinguished Cuban-American scholars, authors of some of the most
important books about the Cuban emigration to the US.
The support from around the world was really impressive. It included:
An amicus presented by ten Nobel Laureates: José
Ramos-Horta (President of the Republic of East Timor), Wole Soyinka, Adolfo Pérez
Esqivel, Nadine Gordimer, Rigoberta Menchú, José Saramago, Zhores Alferov,
Darío Fo, Günter Grass and Máiread Corrigan Maguire.
Another brief was submitted by a record number of
legislators from every corner of the world, including the entire Senate of Mexico
and the National Assembly of Panama, both having discussed and unanimously
decided to join. Also by Mary Robinson, former President of Ireland and United
Nations High Commissioner for Human Rights; dozens of members of the European
Parliament from every political group, including three current vice-presidents
and two former Presidents and hundreds of lawmakers from Brazil, Belgium,
Chile, Germany, Ireland, Japan, Mexico, Scotland and the United Kingdom.
This document added similar appeals by other Nobel
Laureates, Archbishop Desmond Tutu and Harold Pinter, and by the Latin-American
Council of Churches, the Permanent Conference of Latin-American and Caribbean
political parties, the Latin-American Parliament as well as other regional
legislative bodies and specific resolutions of support approved by national
parliaments from Namibia, Mali, Russia, Mexico, Brazil, Bolivia, Venezuela,
Peru, Ireland, Switzerland and Belgium, among many others.
Two separate amicus came from a wide spectrum of
lawyers’ organisations and personalities: One was submitted by the
Ibero-American Federation of Ombudsman, the Order of Attorneys of Brazil, the
Belgium bar association, the Berlin and other German bars, the International
Federation for Human Rights and a number of religious, legal, human rights
organisations, law professors, and lawyers from Argentina, Chile, Colombia,
Ecuador, Germany, Japan, Mexico, Panama, Portugal, Spain and the United
Kingdom. Among the personalities signing it were Federico Mayor Zaragoza,
former director-general of UNESCO, and Judge Juan Guzmán Tapia of Chile.
The other amicus was presented by the International
Association of Democratic Lawyers, the American Association of Jurists, the
Indian Association of Lawyers, Droit Solidarité, the Haldane Society and other
legal organisations from Italy, Japan, the Philippines, Portugal and Belgium.
A number of US lawyers volunteered in drafting those
papers (as required by law), consulting and coordinating with the many
individuals involved and presenting the briefs on time and with due respect to
the technical and other parameters that the court has established. Every
individual or institution submitting an amicus brief had to identify
himself/herself with specific data, to sign it personally and pay a filing fee.
Pursuant to Rule 37.6 of the court “no counsel for a party has authored this
brief, in whole or in part. No person or entity other than amici curiae, or its
counsel have made any monetary contribution to the preparation or submission of
this brief.” It was a hell of a work for which many people deserve being recognised.
All the amicus briefs, along with a complete list of the amici can be found on
SCOTUS blog (www.scotusblog.com) and
We shall never know what the justices or their clerks
thought, if anything, about those documents. Nobody knows if they even glanced
over them. The amici didn’t get an answer or a single comment--not even a
clerk’s receipt note.
Nobody knows either how the Justices pronounced
themselves regarding the petition for certiorari. We only learned that on June
14 the petition of the Cuban Five was thrown out with the other petitions the court
had decided not to hear.
A famous Mexican poet once defined US imperial
attitude with the melding of two words: arrogance and ignorance. It appears
that the court, supremely, epitomises both.
When the Supreme Court
decided not to hear the Cuban Five petition, the Justices acted exactly as
requested by President Obama’s solicitor general, showing that on this issue,
there has been no change, certainly not a change we can believe in.
The Supreme Court last June
14 simply joined the other two branches of government in demonstrating their
hostility towards the Cuban people. During the 1990s this official animus, had
among its main features their connivance with a terrorist campaign that has
cost lives, caused human suffering and material damages, which the US instead
of preventing – as was its obligation – tolerated or promoted.
Immediately after the break
up of the Soviet Union, Cuba entered an extremely severe economic crisis, worst
for us than the Great Depression of 1929. It was precisely the time chosen by
the US to strengthen its economic blockade as reflected in the Torricelli
Amendment (1992) and the Helms-Burton Act
(1996). The trio – Torricelli, Helms and Burton – replying to those objecting
the illegal extraterritorial legislations assured their colleagues that it was
the last year of the government led by Fidel Castro.
Others made easy money in
those days publishing cheap texts, announcing with specific datelines the
inevitable end of the Cuban Revolution. It became an uncontested dogma for many
scholars, politicians and journalists and a source of encouragement for those
who have actively sought revenge for decades.
Some, unsatisfied with what
they perceived as Washington’s insufficient aggressiveness, tried to make a
final assault on the abandoned, isolated island.
Paradoxically in September
1994 and May 1995, Cuba and the US succeeded in negotiating new migration
accords in an exercise of quiet private diplomacy that involved the commitment
to move towards the lifting of the embargo and a promise to curb terrorist
actions against Cuba.
It was then that Mr. Basulto
and his cohorts ramped up their airborne incursions. Basulto was very open in
explaining his intentions. The alleged “humanitarian” nature of their previous
flights – to help undocumented Cubans to enter the US – had disappeared with
the new US policy, since May 2, 1995, to send them back to the Island. From
that day on, as recognised by Basulto, the flights would continue and be
multiplied with a subversive purpose. Almost daily he was on the media
announcing the next provocation and proclaiming that Cuba was so weakened by
the economic crisis that it could not protect its borders or even impede him to
overfly downtown Havana as he did on more than one occasion. The US authorities
knew what he and his group were doing, as it was known by anybody having a TV
set because the provocations were filmed and reported live by the Miami local
stations of national TV networks.
In 1995 and early 1996 we
made our outmost to persuade Washington to prevent those completely illicit air
provocations. We were just asking the US Administration to respect
international law and abide by its own domestic laws and regulations.
A rather intense wave of
official communications took place between the authorities of both countries
through which the US side explicitly recognised the illegal character of the
flights and initiated, with Cuban cooperation, administrative proceedings
against the transgressors. Or so they reiterated in diplomatic notes.
Apart from the open channel
we warned time and again, at the highest level, both US civilian and military
Fidel Castro was personally
involved in those efforts. He spent many hours with more that one US important
visitor, some with clear White House endorsement. And we succeeded in getting a
very specific commitment by President Clinton that those provocations will
never happened again (“Indictment à la Carte”, Counterpunch, September 3, 2009; “Annals of Diplomacy, Backfire”, New Yorker, January 26, 1998).
Something rather strange
happened on the road from Washington to Miami. It appears that President
Clinton gave specific instructions to fulfill his commitment. But in that
peculiar town (Remember Elian?) the US Commander in Chief’s orders are not
always obeyed. As soon as the Miami mafia learned of the president’s
instructions, the provocateurs organised their last violation. That was the
real conspiracy, the only one, leading to the tragic events of February 24,
astonishingly reacted as if he never knew anything and rushed to sign the Helms-Burton Act in a deplorable
ceremony at the White House, joyfully surrounded by some of the true culprits,
the very individuals who defied him. It was a presidential election year and
Clinton won easily in Miami.
That experience would have
been more than enough to anybody in terms of believing in the possibility of
serious talks and engagement with such frivolous partners, some kind of mission
But we tried it again. We
didn’t have a choice.
XII. Cherry blossoms
Attracting foreign tourism was at that time – mid and late 1990s – one of
the few possibilities to earn much needed hard currency. Knowing that,
Washington reinforced its sanctions and threats against foreign companies
investing in Cuba or having any transaction with the island. Coincidentally the
so-called Cuban American National Foundation (CANF) and other anti-Cuba
terrorist groups openly declared such visitors “enemies” and justified violent
attacks against them.
As tourists were arriving to the island in larger numbers a series of
bombs exploded and others were found at our hotels and beach resorts in 1997
From April to September 1997 such attacks had the city of Havana as its
main target. As a result, four people were wounded on July 12 when bombs
exploded at the Nacional and Capri Hotels. On September 4, explosions occurred
almost simultaneously in the Copacabana, Chateau and Triton Hotels and at a
Havana restaurant. In the Copacabana, Fabio di Celmo, a 32-year-old Italian
tourist was killed.
On August 11, 1997 in the middle of that terrorist campaign CANF
made public a statement describing it as “incidents
of internal rebellion which have been taking place in Cuba over the last few
weeks” and stating that “the Cuban
American National Foundation supports these without hesitation or
These acts were not “internal” much less a “rebellion”. Some Central American
mercenaries arrested in Havana had admitted that they were acting under
instructions of Luis Posada Carriles, a fugitive criminal who had escaped from
trial for masterminding in 1976 the first midair destruction of a civil
Posada now enjoys total impunity in Miami. On July 12, 1998 in a front-page interview with the New York Times, Posada Carriles admitted
full responsibility for the new terrorist attacks, recognised that he was
financed by CANF and cynically referred to Fabio di Celmo as a person “at the wrong place at the wrong time”
whose death didn’t disturb him. Posada said he was able to “sleep like a baby”. He repeated similar words in front of a TV
camera on a programme broadcasted through the United States.
Between March and April 1998, Cuba was approached several times by the
State Department and their representatives in Havana to share with us some
sensitive information they had gotten, the gravest of all related to possible
attacks on civilian airplanes flying to the island. We spent hours jointly
examining intelligence that the Americans considered so credible that the Federal
Aviation Administration (FAA) issued a special warning to air companies.
In view of those positive exchanges Fidel took a very important
initiative. Gabriel García Márquez, a well recognised friend of Cuba and of the
leader of its revolution, was travelling soon to attend a conference at
Princeton and expected to meet President Clinton, a reader and admirer, like
many millions, of the Nobel Laureate in Literature.
On April 18, Fidel personally drafted a message to Clinton and gave it to
the Colombian writer who arrived to the US Capital on May 1. García Márquez
waited for several days “in my
impersonal room at the Washington hotel where I spent up to 10 hours a day
writing. However, even if I refused to admit it, the true reason for my
confinement was the custody of the message lying in the safety box … I devoted
myself to its custody while I continued to write, to eat my meals and to
receive my visits in the hotel room.”
Unable to receive Gabo personally, President Clinton arranged for some of
his closest associates to meet him at the White House on May 6. According to
Gabo’s report Fidel’s message was taken very seriously.
One after the other, they read it with keen interest. Richard Clarke, a
senior official at National Security Council, said “that they would take immediate steps for a joint US-Cuba plan on
terrorism.” James Dobbins, also a senior at NSC, “concluded that they would communicate with their embassy (sic) in Cuba
to implement the project.” Mack McLarty “expressed
his appreciation for the great importance of the message, worthy of the full
attention of his Government, of which they would urgently take care.”
In closing the White House meeting McLarty said, “Your mission was in fact of utmost importance, and you have discharged
it very well.”
Both Fidel’s message and García Márquez's entire and fascinating
description of his mission were published, unedited, by Fidel Castro in a
special public address on May 20, 2005 (“A Different Behaviour”, www.antiterroristas.cu).
Having concluded such a delicate task, Gabo was happy, almost completely
"My only frustration on the way back to
the hotel was not having discovered and enjoyed till then the miracle of the
cherries in blossom during that superb spring season.
I barely had time to pack my bags and catch
the flight at five that afternoon. The plane that had brought me from Mexico
fourteen days earlier had had to return to base with a broken turbine and we
waited for four hours at the airport till there was another available flight.
The one I took back to Mexico, after the meeting at the White House, was
delayed in Washington for an hour and a half while they repaired the radar with
the passengers on board.
landing in Mexico, five hours later, the plane had to hover over the
city for almost two hours due to an out of service runway. Ever since I began
flying fifty two years ago, I never had gone through anything like this. But
then, it couldn’t be any other way, for a peaceful adventure that will forever
hold a privileged place in my memories.
Just a couple of days after the Clinton White House
encounter with García Márquez, US diplomats in Havana approached Cuban
authorities. We had a number of discussions specially focused on what the US
had found about terrorist plots against civilian aircrafts and the warning that
the FAA felt obliged to issue. In the course of those exchanges the US asked
formally for a high level FBI delegation to come to Havana with a view toward
receiving from their counterparts our intelligence concerning the ongoing
terrorist campaign.In preparation for
that visit an sssistant secretary of state, John Hamilton, communicated that “this time they would like to emphasize the
seriousness of the United States offer to investigate any evidence that [Cuba]
The meetings were held in Havana on June 16-17, 1998.
The US team was given copious information, both documentary and testimonies.
The material handed over included the investigations related to 31 terrorist
acts, having taken place between 1990 and 1998, including detailed information
on the financing of the most dangerous actions carried out by Luis Posada
Carriles’s network. The information included lists and photographs of weapons,
explosives and other material seised in each case. Additionally, 51 pages with
evidence concerning how the money was routed to various groups for terrorist
acts on the island. The FBI also received tapes recording 14 phone
conversations in which Posada Carriles referred to violent attacks against
Cuba. Specific data was provided on how to locate the notorious murderer, such
as his home addresses, places he frequented, and his car number plates in El
Salvador, Honduras, Costa Rica, the Dominican Republic, Guatemala and Panama.
The FBI took the files of 40 Cuban-born terrorists,
most living in Miami, and the clues to find each individual. The US delegation
brought back with them three 2-gramme samples of explosive substances from the
bombs deactivated before they could have exploded in the Melia Cohiba Hotel on
April 30, 1997 and in a tourist van on October 19, 1997, as well as the
explosive device confiscated from two Guatemalans on March 4, 1998.
The FBI was also given five video and eight audio
cassettes and their transcripts with statements by the Central Americans who
had been arrested for placing bombs in hotels. There they talked about their
links to Cuban gangs and in particular to Posada Carriles.
The US side acknowledged the value of the information
and made a commitment to reply as soon as possible.
We never got a word back. Nobody knows for sure what
the FBI did with the evidence and the thorough information they received in
Havana. They certainly did not use it to arrest any of the criminals or to open
Wasn’t the State Department any more worried with the
information it had gathered on its own concerning terrorist attacks against
commercial airlines? What happened with their preoccupation with the lives and
security of passengers, including US passengers?
Is that the way to
“take immediate steps” on a problem “worthy
of the full attention of his Government, of which they would urgently take
care” as solemnly promised at the White House? Or “to emphasise the seriousness of the United States”?
It may be assumed that the FBI shared the information
they got with their pals in Miami.
If facts have any meaning this must have been the
case. On September 12, 1998, almost three months after the visit to Havana, we
learnt through the media about the detention of Gerardo, Ramón, Antonio,
Fernando and René and that Mr. Pesquera, the FBI chief in Miami, was, on that
Saturday morning, visiting with Ileana Ros Lehtinen and Lincoln Díaz-Balart –
the Batista-Miami Congresspersons – to inform them of the incarceration of the
History repeated itself. In 1996 President Clinton
gave instructions to stop Brothers to the Rescue air provocations, but when his
orders reached Miami, the local mob conspired to do exactly the opposite. In
1998 the very same President appeared to be willing to put an end to terrorist
attacks against Cuba – and also against Americans – but when his intentions
were learnt in Miami, the FBI there blew them out.
Mr. Pesquera has recognised in a press interview that
his main difficulty was in getting Washington’s authorisation to apprehend the Cuban
Five. It should have been very hard, indeed. Was not Washington supposed to be
on the other side of the fence in the fight against terrorism?
But Mr. Pesquera and his cronies, won. They proved
being able to ignore law and decency, and to ridicule again the US Commander in
Chief. Remember Elian?
XIV. Which side
are you on?
FBI officials received a huge
amount of concrete, detailed information about anti-Cuban terrorist groups,
including their exact locations, with addresses and phone numbers, photographs
and tape recordings describing sinister plans in their own voices and many
other data. At no time did they protest or express concern regarding
Cuba’s ability or methods used to obtain such precise evidence.
They just thanked us and
asked for some time, arguing that they got more evidence, far much more, than
what they could have expected.
When Gabriel García Márquez
met President Clinton’s closest advisors at the White House on May 6, 1998,
nobody asked how Cuba had unveiled those terrible plots. One of the US
gentlemen just said, “We have common enemies.”
It was exactly the same on
every other occasion when we met in Havana, Washington or elsewhere to discuss
with US officials the information we had on terrorist attempts. They never
complained in any manner, directly or indirectly – not even in a whisper.
US officials never objected
to our investigative efforts for some very obvious reasons. The history of
violence and terror against Cuba is quite long – has lasted so far half a
century – and is very well documented in an extensive bibliography partially
registered in the US Congressional Record and also available in declassified,
or not yet so, official papers with which our American counterparts, we should
assume, are well familiar.
With such a background Cuba
has the right (even the inexcusable obligation) to protect itself and its
people and to discover what may be in the making among those who try to cause
material damage and human suffering. This is the universally recognised
principle of self defence.
The Americans were very well
aware of that. As they surely remembered, when we learned about an
assassination attempt against President Reagan we promptly shared the
information with them, the Great Communicator’s antipathy towards Cuba notwithstanding.
Washington did not complain then, but expressed thankfulness.
They also knew that Cuba is
just a small island in the Caribbean, with a population a little above 11
million people. Cuba does not have satellites getting data from outer space,
neither has it any of the extremely sophisticated devices that are in common
use by the American and other Big Powers intelligence services.
Cuba only has human
intelligence. Something that is admitted now as indispensable in the United
States, something that would have saved many US lives if it had been aptly used
by the US before the terrible events that shook America in 2001.
And ours is not paid human
intelligence. We have never spent money, as others do by many billions, to buy
information or contract with expensive agents around the world. We depend on
the generous heroic sacrifice of youngsters like Gerardo, Ramón, Antonio,
Fernando and René.
Long before the heinous
attacks of 9/11, Gerardo Hernandez Nordelo said these simple truths to a US court
that regrettably was unwilling to listen:
the right to defend itself from the terrorist acts that are prepared in Florida
with total impunity, despite the fact that they have been consistently
denounced by the Cuban authorities. This is the same right that the United
States has to try to neutralize the plans of terrorist Osama Bin Laden’s organisation,
which has caused so much damage to this country and threatens to continue doing
so. I am certain that the sons and daughters of this country who are carrying
out this mission are considered patriots, and their objective is not that of
threatening the national security of any of the countries where these people
are being sheltered.
When Gerardo wrote those
words many of the individuals, who would later use civilian aircrafts as lethal
weapons against Americans, were finalising their training right there in Miami.
But the local FBI did nothing to frustrate their horrendous project. They
didn’t have time for that. Their time was devoted exclusively to protecting
their own terrorists by persecuting and punishing Gerardo and his comrades.
The FBI, at least in Miami,
was not fighting terrorism. Neither was it preventing criminal attacks against
Americans or Cuba. It was on the other side of the fence.
XV. The importance of being a
Posada Carriles is a real VIP enjoying unique courtesies and privileges not
offered to other dignitaries and celebrities. But he is also a self-confessed
and duly certified international terrorist.
- Posada began his long
carrier with the early actions against the Cuban Revolution, including the Bay
of Pigs fiasco and several years as the CIA man in Venezuelan political police
where he became a leader of some conspicuous torturers;
- Posada was sought by Interpol,
since he escaped from a Venezuelan prison in 1985 – Hugo Chávez was still an
unknown young man – while on trial for masterminding the first destruction ever
of a civilian airplane in midair and the murder in cold blood of 73 human
- Posada emerged immediately
in Central America as a key figure in the Iran-Contra scam, being mentioned
several times during the US Senate investigation and in Oliver North’s
- Posada published his
autobiography – a Miami bestseller – and has appeared many times in the local
and US media;
- Posada twice landed on the
front page of the New York Times, in
consecutive issues, describing his responsibility in the bombing campaign in
Cuba in the 1990s;
- Posada was found guilty by
a Panamanian tribunal of crimes associated with a plot to bomb the university
in order to kill Fidel Castro and hundreds of students and professors; being
illegally pardon by the president of Panama, on the eve of her last day
in office and after receiving special emissaries sent in a hurry by George W.
- Posada again went into
“hiding” somewhere in Central America, but maintained constant communication
with his pals in the Cuban American National Foundation and other terrorist
groups and collected money from frequent well publicised fundraisings.
Yes, it's been a long career
of infamy, always on behalf of US goals and interests as proudly proclaimed by
his Miami lawyer.
If we are to believe his
words all through that period Posada has visited the US several times, although
unnoticed. One day he decided to settle there for good. After all, his family
has been residing in Miami for decades.
And then he went back home.
Posada Carriles entered
Florida in March 2005, clandestinely, without a US visa, like millions of
Latinos try to do unsuccessfully time and again. But he was not arrested, much
less deported. The story of how he did it in the Santrina boat with the help of
his US based terrorist network was described in a Yucatan newspaper Por Esto, in a story widely disseminated
through the continent. Everybody knew it except the Bush administration, which
insisted for two months that they knew nothing about his whereabouts--until,
that is, Posada convened a press conference in May to announce his willingness
to continue waging from Miami his total warfare against the Cuban Revolution.
Having no other option, the
Bush administration detained Posada and took him to the immigration facility in
El Paso, where they had prepared for him VIP quarters, completely separated
from the general population, with special food and amenities of every sort,
even the possibilities to meet friends and journalists. Posada’s only grumble:
the US protocol failed to provide him Cuban guava pastries.
According to official papers
submitted by the US government to migratory courts, Washington deployed
strenuous diplomatic efforts trying to convince other countries to grant
shelter and protection to Posada. US diplomats approached governments in
Central and South America and even in Europe asking them to receive the
notorious VIP. Without exception the answer always was: No thanks.
Ironically, Washington has
yet to answer the diplomatic note presented by Venezuela on June 15, 2005, for
his detention and subsequent extradition to Caracas in accordance with the
extradition treaty existing between both countries.
The Bush administration, and
so far his successor, choose to accuse him of being a liar and entered in a
deliberately confused litigation with Mr. Posada for allegedly not being
truthful with immigration officials about how he entered the country. As a
result, an administrative court sent Posada home to keep comfortable, arguing
for his formal admission by authorities who have shown such unparalleled
patience and understanding.
How many undocumented poor
Latinos have had that opportunity? How many of them have, in the meantime, been
freed and allowed to walk away unmolested and do whatever they want to?
Posada doesn’t complain
anymore. He is a free man in Miami eating plenty of guava pastries.
XVI. The importance of being a Liar 2
Venezuela’s formal request for the extradition of Posada Carriles is
well founded. There is an extradition treaty between Venezuela and the United
States, ratified by both countries in 1922, which has been implemented all century.Venezuela followed the letter of the law,
with its Supreme Court issuing an arrest warrant for the fugitive who had
absconded from a Venezuelan prison in 1985. The Venezuelan government formally
transmitted its extradition request to the United States government on June 15,
According to the treaty, Washington should have immediately detained
Posada and submitted his case to a federal court for an extradition process in
which the secretary of state would have the final word. That’s how Montesquieu
idea of “separation of powers” allegedly works in the United States.
But nothing of the sort has happened in more than four years. The US
government has instead chosen not to detain Posada Carriles or to submit the case
to a federal court for extradition.The
US could have also detained Posada under its own Patriot Act which gives the attorney general the authority to
detain a terrorist until his ultimate removal from the United States. The Patriot Act obviates the need to consult
with the courts in order to detain a terrorist.
The Attorney General need only certify the person as a terrorist (see Section 1226 (A) of Title 8 of
the United States Code). By deciding not to certify Posada as a terrorist and
allow him to roam free, the United States is in clear violation of its own Patriot Act. And by ignoring the
extradition treaty with Venezuela and several international conventions on
terrorism, Washington grossly violates the US constitution and specifically
Article VI which establishes that such international treaties “shall be the
supreme Law of the Land”.
Bush decided that Posada’s mendacity to a bureaucrat was a more serious
offense than 73 counts of first-degree murder. And instead of abiding by the US
constitutional and treaty obligations, Bush preferred to try and convince other
governments to help him shelter and protect Posada. No other government,
however, was prepared to do that.
The US administration has flatly ignored certain international
conventions that are among the main pillars of the fight against international
terrorism: the Montreal Convention for the Suppression of Illicit Acts against
Civil Aviation and the Protection of Passengers and the International
Convention against Terrorist Acts Committed with the Use of Bombs.
Both conventions introduced a very specific provision to make it
impossible for any suspect of such crimes to escape prosecution. They
established one alternative to extradition: only one. If any State does not
comply with an extradition request, it shall be obligated to immediately
prosecute and put on trial the alleged criminal for the same crime as if it had
been committed in its own territory. That has to be done, according to both conventions,
“without any exception whatsoever”.
In September 2001, a few days
after 9/11, the Bush administration urged the UN Security Council to adopt
mandatory and concrete measures that every country must take, under the threat
of force in case of non compliance. Security Council resolution 1373, introduced
by the US delegation and approved unanimously, made it an enforceable
obligation for all member states to cooperate in prosecuting fugitive suspects,
denying them shelter, condemning political excuses not to extradite and
demanding the full application of all international agreements against
terrorism, including the two Conventions referred to above.
To ensure implementation of Resolution 1373, a special permanent UN Security
Council committee was established.It
meets regularly in its New York headquarters. At every meeting, the United
States is denounced for being in clear violation of Resolution 1373 with its
hypocritical double standard on terrorism as reflected in its protection of
Luis Posada Carriles and the incarceration of the Cuban Five.
The next round of the charade known as the Posada “trial” is scheduled
for March 1, 2010.Posada is to be
“tried” on perjury charges. By then it will be five years of US adamant efforts
in protecting a terrorist and not allowing him to be tried for his real crimes.
By then, five anti-terrorist heroes will be in the middle of their 12th year of
unjust, cruel punishment.
By not respecting its international treaty obligations, Washington is
undermining the main legal instruments which were conceived to sustain the
struggle against terrorism which is supposed to be of a highest priority for
the United States. The damage to US credibility may not be clearly perceived by
many Americans because the big corporate media do not allow them to ascertain
it.They are not permitted to know how
the hypocrisy and arrogance permeating US policy is universally rejected. To
imagine the possibility of the US playing any leadership role in the world, not
to mention the idea of being respected, is to indulge in irrational, unfounded