The Tragic Ordeal of the Cuban Five

Victims of National Security Injustice

By Saul Landau

In 1953, a man I knew got busted for masturbating at a public urinal. A cop had hidden in the ceiling grate above him "to find perverts." The lawyer, a friend of our family, charged him $5,000. "I gave $500 to the cop," the lawyer explained, "bought the judge a present and paid two witnesses $250 each to testify that he was wearing a complicated truss and that's what made it seem like an unnaturally long time for him to get adjusted after he went wee wee," the defense lawyer explained to my father.

I have no idea if his behavior typified that era or remains a standard today. Comedian Lenny Bruce's quipped: "In the Hall of Justice the only justice is in the hall," where the payoffs occurred. Indeed, the poor, not the middle class and certainly not the rich, inhabit U.S. jails and prisons. Most Americans understand that equal justice for all means police will arrest a rich or poor man sleeping under the bridge or stealing a loaf of bread.

Those who can afford expensive lawyers usually get away with murder. Take the cases of Claus von Bulow, who overdosed his rich wife with insulin, or O. J. Simpson, a case where the Los Angeles police actually framed the right guy for wife and friend killing. The accused paid millions of dollars to top lawyers who skillfully placed seeds of doubt in the jurors' minds. Public defenders often lack the resources, time and will to build minimum defenses for poor clients.

In some case, however, even the best defenders can't buy justice, especially when the government cites "national security." The Cuban Five case became victims of that phrase that usually means the government will not tell the public what it is doing or why. It reeks with imperial arrogance and often with vengeance as well.

The FBI busted five men (Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando Gonzáles, and René Gonzáles) in 1998 and a Miami jury convicted them in 2001 for conspiracy to commit murder, conspiracy to commit espionage and other serious offenses. The case illustrated the U.S. standard of justice for third world nations that disobey its dictates.

Since Washington had failed to punish Cuba adequately for its near half century of disobedience, the opportunity presented by the Cuban Five fell like a serendipitous apple onto the vengeful ground of the national security elite, the group that wages war and regularly infringes on citizens' rights in order to "protect" the public. This bureaucratic posse inside executive agencies looks at the public as an obstacle to its imperial ambitions, to the notion of accountability as an irritant, the proverbial pimple on a sewer rat's butt. The following story illustrates.

In 2004, John Negroponte, then UN Ambassador en route to becoming Ambassador to Iraq and then top U.S. spy, explained why the security elite would have to reject an offer from the Iranian government (under Khatami) to reopen the U.S. embassy and normalize diplomatic relations. "In the last decades, Vietnam, Cuba and Iran have humiliated the United States," he explained to the diplomat -- a friend of mine -- who delivered the message from the Iranian government. "I suppose we've gotten even with the Vietnamese [4 million killed and 20 plus years of sanctions], but there's no way we're having relations with Iran or Cuba before they get what's coming to them." Since the elite will not wage war on Cuba -- Cubans will fight back -- they used the Cuban Five as surrogate punishment objects.

In the 1990s, these Cuban nationals infiltrated Florida-based anti-Castro terrorist groups and reported on the terrorists' activities to Havana. In 1998, an FBI delegation traveled to Cuba. Cuban officials gave the FBI some 1,200 pages of material, along with video and audio tapes that incriminated groups and individuals -- their names, weapons they carried or stored and other details that the Justice Department could use to prosecute the terrorists.

The FBI told their Cuban counterparts they would respond in a month. The Cubans are still waiting, but the FBI did use the material. They arrested the Cuban Five. The Justice Department then charged them with felonies.

Irony accompanied injustice. The five admitted they entered the United States to access U.S.-based groups plotting terrorism against Cuba. In fact, U.S. law actually allows people to commit crimes out of a greater necessity, one that would prevent greater harm.

"It is a form of self-defense, extended to acts which will protect other parties," argued Leonard Weinglass, attorney for Antonio Guerrero, one of the Five. Indeed, the Five's lawyers presented this argument to trial judge Joan Lenard, but she refused to let the jury consider it.

Weinglass and the other attorneys argued their appeals this month claiming the judge had erred by not submitting the "'defense of necessity' claim to the jury, because the Five came to the United States to prevent additional violence, injury and harm to others."

The U.S. government knew all about the terrorist "accomplishments" of Luis Posada Carriles and Orlando Bosch, for examples. Both had boasted to reporters about their roles in terrorist acts, including the 1976 bombing of a Cuban commercial airliner -- they did this jointly -- in which 73 passengers and crew members perished. In 1998, Posada bragged about sabotaging Cuban tourist sites the previous year. In one bombing carried out by his paid agent, an Italian tourist died.

"We didn't want to hurt anybody," he told reporters Larry Rohter and Anne Bradach. "We just wanted to make a big scandal so that the tourists don't come anymore. We don't want any more foreign investment." Posada said he wanted potential tourists to think Cuba was unstable "and to encourage internal opposition."

Posada succeeded. Less tourists came to Cuba after the Italian died in the bombing. The Times reporters write that Posada "declared that he had a clear conscience, saying, 'I sleep like a baby.'" Then he said: "That Italian was sitting in the wrong place at the wrong time." (NY Times July 13, 1998)

The Five came here precisely to stop such activities, says Weinglass. "The Five's activities were justified and necessary in order to save lives." Weinglass had used this very argument to defend Amy Carter, when the President's daughter "occupied a building, with other students, at the University of Massachusetts, in opposition to the CIA agents who came to the campus to recruit students into the CIA. She acknowledged that her occupation of the building was a crime but she argued that that was justified by the doctrine of necessity because the CIA was then engaged in an illegal war in Nicaragua." The jury acquitted Amy and the other defendants.

Weinglass made a similar argument before a two-judge appeals court. In August 2005, this court initially heard the case and decided that the Five had not received a fair trial. The entire 12 judge panel of the 11th circuit reversed that decision despite massive evidence to show the Miami jurors had felt intimidated. From the window of the deliberation room they saw people taking photos of their license plates. Jurors had reason to fear serious retribution should they vote to acquit the Five.

The lawyers also appealed the conviction of Gerardo Hernandez for "conspiring" to commit murder. This charge arose from the February 1996 shoot-down by Cuban MIGs of two Brothers to the rescue planes that had violated Cuban airspace and were repeatedly warned of "grave consequences" should they enter Cuban territory without permission. At the trial, the Assistant U.S. Attorney acknowledged that he had no solid evidence to back up this charge.

Weinglass noted that the Gerardo conviction marked "the first time in history that an individual is being held liable for the action of a sovereign state in defending its airspace." Indeed, Cuba had every reason and the right to maintain sovereignty over its air space. The prosecutor made outrageous claims to the jury without citing evidence and the judge let him. He argued without facts that Cuba had sent the men to attack the United States. For the first time in legal U.S. history, the U.S. Attorney's office prosecuted a case without even referring to a single classified document.

The Five stole no secrets; unlike FBI Special Agent Robert Hansen, or the CIA's Aldrich Ames who passed tens of thousands of "top secrets" to the Soviet enemy, but two of them like the real spies, got life imprisonment.

Was U.S. justice fairer when a lawyer could bribe a cop in a meaningless case and rich guys could buy their way out of murder raps -- as they still do? Not if one recalls the "national security" framing of Sacco and Vanzetti in the 1920s and the 1953 execution of Julius and Ethel Rosenberg, even though FBI Chief J. Edgar Hoover and President Dwight Eisenhower both knew they had not passed atomic secrets to the Soviets. The government had invoked "national security" under which no justice occurs, not even in the halls.

Saul Landau is the author of A BUSH AND BOTOX WORLD. His films are available on dvd from roundworldproductions@gmail.com

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