415-821-6545 • www.freethefive.org • www.antiterroristas.cu An Analysis of the Case of the Cuban Five UNITED STATES V. GERARDO HERNÁNDEZ NORDELO RAMÓN LABAÑINO SALAZAR ANTONIO GUERRERO RODRÍGUEZ FERNANDO GONZÁLEZ LLORT RENÉ GONZÁLEZ SEHWERERT FIVE CUBAN POLITICAL PRISONERS: THE CASE FOR A FAIR TRIAL (now on appeal before the 11th Circuit Court, Atlanta) Hostages to Miami politics In spite of all that, they were not only denied the right to bail, but also kept, for 17 months, in Gerardo Hernández Nordelo, Ramón Labañino solitary confinement cells used to punish prison- Salazar, Antonio Guerrero Rodríguez, Fernando ers guilty of assault and other violent behavior González Llort, and René González (not related) after being sentenced. They were completely cut are five young Cubans arrested in Florida in off from their families and young children, and not September 1998. They were tried and convicted of even able to communicate with each other. Even espionage conspiracy and related charges in the under these extreme conditions, however, the one place they could not get a fair trial: Miami. prosecution failed in its objective of making the Their case is typical of the political trials the arrested men so disoriented and desperate that United States criticizes as contrary to respect for one or more would falsely confess and implicate human rights when they occur in other countries. others in exchange for a promise of leniency. Unless overturned on appeal, it is also likely to be cited as precedent for denying a fair trial to other Rather, they went to trial with the truth as men and women tried in the United States. their defense, calling retired U.S. military officials and Miami-based leaders of plots to overthrow In what has become standard treatment for the government of Cuba to show that their only those whose political or religious beliefs or nation- offense was using false identities (with the excep- al origin are deemed suspicious by the United tion of Antonio Guerrero and René González who States, the five were held without bail for 33 were U.S. citizens and used their true identities) months between arrest and trial. The arrests were to enable them to help protect their country from all carried out without incident, and there was no violence perpetrated by US-based organizations suggestion that any had weapons, or had ever and to assess the likelihood of military attack by lived as anything other than peaceful members of the United States. the community. Two are US citizens, having been born in the United States to Cuban parents who Loyal Cubans, Yes; Spies, No fled the reign of corruption and terror of Cuban dictator Fulgencio Batista. All were well-regarded Espionage on behalf of Cuba and murder in the communities where they lived and worked. involving the shootdown of 2 aircraft over Cuban 1 waters, the most serious allegations, were not The five are now hostages to the irrational charged as crimes actually committed, but as hatred of the extraordinarily powerful enclave of conspiracies, together with other related lesser Cuban exiles who have made Miami the provi- offenses. As pointed out below, the use of "con- sional capital from which they work — with the spiracy" relieved the prosecution of the burden of support of federal, state and local government — proving that these offenses actually occurred. to overthrow the government of Cuba. This group has so dominated public opinion in Miami about Unique in the annals of American jurispru- anything even remotely related to Cuba that the dence was the charge of conspiracy to murder human rights organization Americas Watch pub- leveled against Gerardo Hernández. It became lished two reports titled “Dangerous Dialogue” the focal point of the trial and involved the (1992) and “Dangerous Dialogue Re v i s i t e d ” February 24, 1996 downing of 2 planes belonging (1994). Along with newspaper and other media to the Miami-based organization calling itself reports, they document the scores of assassina- “Brothers to the Rescue” by the Cuban Armed tions, and hundreds of bombings and arsons as Forces as they persisted in flying into Cuban air- well as threats and extortion used to control pub- space. The group was led by Miami-based Bay of lic opinion about Cuba in Miami. Pigs veteran, José Basulto. The Five were all in Miami at the time, and none was involved in mak- “An impossible place for justice” ing or executing the order to shoot down the planes after they ignored warnings not to proceed “When it comes to Cuba, Miami is an impossi- into Cuban airspace. ble place for justice,” Antonio Guerrero told the judge at his sentencing. By that time, the defense The Five were working with the Cuban had filed no less than five motions to move the Government to protect Cuba from invasion and trial to a more neutral site. It was obvious that terrorism organized, funded and launched from Miami was the last place in the world the five Miami and presented evidence to show the seri- Cubans could get a fair trial. Social science backs ous threat posed by Miami-based terrorism. They up Guerrero's observation. One of the nation's showed how they had infiltrated some of the foremost experts in the Cuban exile phenomenon, Miami-based organizations, and how US law Dr. Lisandro Pérez, wrote, “the possibility of enforcement had failed to act on evidence turned selecting twelve citizens of Miami-Dade County over by Cuban authorities before their arrest. who can be impartial in a case involving acknowl- They also presented evidence to show that the edged agents of the Cuban government is virtual- only military information to which they had access ly zero.” was publicly available. Furthermore, they pre- sented testimony from high-ranking former U.S. Weighing against the defendant's right to a military and intelligence officials to the effect that fair trial before impartial jurors was intense local Cuba poses no military threat to the United pressure for revenge for the shoot-down. When States, but is only interested in knowing what it the defense pointed out that under the prevailing needs to know in order to defend against the law, the hostile climate of opinion in Miami result- threat of attack, either by the United States or ed in such a probability of unfairness as to US-based mercenaries. “require … a change of venue to assure a fair and impartial trial,” the prosecution responded indig- The passionate climate that surrounds every nantly that the defense was unfairly comparing issue even remotely related to Cuba in Miami the cosmopolitan Miami to the small Texas town made any objective evaluation of the evidence involved in the case upon which the defense impossible. Despite the fact that it heard 74 wit- relied. (Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir. nesses (43 for the prosecution and 31 for the 1966). defense) over a period of nearly seven months, a Miami jury only deliberated for short periods of In fact, as the chief U.S. Attorney for the time during 4 days without even submitting a sin- District was later to acknowledge when he repre- gle note or query to the court to find all five sented a client facing a civil trial in Miami, the defendants guilty as charged in each of the 26 similarities were more significant than the differ- counts of the indictment. It asked not a single ences. With respect to the trial of these five question about the complex principles of law Cubans, Miami was not a diverse cosmopolitan involved, and did not make a single request to area in which no single group or ideology con- review any of the testimony. trolled public opinion, but one in which embittered 2 Cuban exiles wielded political and economic the prestigious Latin Grammys had to be trans- power and, when that did not work, resorted to ferred out of Miami twice after violence and terrorism, to control public opinion on any issue threats of violence caused it to be moved to i n volving Cuba. News reporter Jim Mullin of another venue. Miami-Dade County is the only Miami, in a long news article which was present- jurisdiction that passed an unconstitutional ordi- ed to the Court as an exhibit on venue, decried nance requiring all who sought funds for the arts the “lawless violence and intimidation (which) swear that they had no dealings with Cuba for the have been hallmarks of el exilio for more than 30 past ten years. And it is the only jurisdiction with years” and then detailed scores of bombings, a monument to those downed in the incident assaults, murder attempts and even assassina- inside the County government building, and tions in Miami and elsewhere (such as Letelier- streets and a plaza that bear their names. Moffit in D.C.) by anti-Cuban terrorists. These facts reflect the extraordinary power of In no other district would the defendants face an exile community that has managed to domi- prospective jurors at least 20% of whom were nate local politics in Miami-Dade in a manner men and women who had left Cuba because they unique in the immigrant experience. Within two disagreed with the government the defendants generations, it has elected three adamantly anti- were trying to protect. Among those reporting for Castro Cubans to the United States Congress. jury service was a director of the Cuban-American One, Ileana Ros-Lehtinen, was tipped off National Foundation, which provided funding for about the defendant's arrest as a matter of pro- Basulto’s flights into Cuban airspace, as well as fessional courtesy.