Vol. 72/No. 25      June 23, 2008

The three-judge panel, however, vacated the sentences against three of the men, two who are serving life terms. It sent their cases back to the original trial judge for resentencing on the basis that the prison terms were excessive.

Antonio Guerrero, Gerardo Hernández, Ramón Labañino, Fernando González, and René González have been locked up since September 1998. A federal court convicted and sentenced them on false charges in a 2001 trial that was riddled with violations of their rights. The five, resident in Miami, had for years been monitoring counterrevolutionary Cuban-American groups in Florida that have carried out murderous attacks in Cuba with the complicity of the U.S. government.

This was the second appeal by the Cuban Five, as they have become known worldwide. In 2005 a three-judge panel of the same court, the 11th U.S. Circuit Court of Appeals, threw out the convictions on the basis that the five men could not get a fair trial in Miami. A year later the full 12-judge court reversed that ruling, while allowing for appeal on other points.

In the June 4 ruling, one of the three judges, Stanley Birch, supported upholding the convictions but at the same time reiterated his belief that the defendants did not receive a fair trial in Miami and that their request for a change of venue should have been granted in the earlier appeal. “The defendants were subjected to such a degree of harm based upon demonstrated pervasive community prejudice that their convictions should have been reversed,” he wrote. During the 2001 trial, Judge Joan Lenard had rejected repeated defense motions for moving the trial out of Miami, where right-wing threats and widespread media bias created a prejudicial atmosphere.

The five were convicted on charges of “conspiracy to commit espionage,” failing to register as agents of a foreign government, and other false charges. Hernández was also falsely accused of “conspiracy to commit murder.”

The National Lawyers Guild, in a statement protesting the ruling, quoted Leonard Weinglass, an attorney for the Cuban Five, who noted, “Conspiracy has always been the charge used by the prosecution in political cases.” That way the government does not have to prove that espionage actually happened but can impose sentences (in the case of Gerardo Hernández two life terms plus 15 years) as if espionage had actually happened, Weinglass noted.

To sustain a conspiracy charge, the government must prove the existence of “an agreement to achieve an unlawful objective” but not that “the defendants accomplished the purpose of the conspiracy,” the ruling said in upholding the conviction of René González, who is serving 15 years.  
 
Dissent on ‘conspiracy to murder’
The judges were split 2-1 in upholding the conviction of Gerardo Hernández on the charge of conspiracy to commit murder. The charge was in connection with the 1996 shootdown by the Cuban air force of two Brothers to the Rescue planes, a Cuban-American rightist outfit, which over the years had repeatedly violated Cuban airspace in increasingly aggressive actions. Its leader, José Basulto, has a long history of armed attacks against Cuba, including his involvement in the 1961 U.S.-organized mercenary invasion of Cuba at the Bay of Pigs and an assault on a Cuban hotel in 1962.

René González and another Cuban, Juan Pablo Roque, had joined Brothers to the Rescue to obtain information on its plans for overflights and possible attacks against Cuba. The U.S. government alleges that on instructions from Havana, Hernández had told the two men to avoid flying with the group during a range of dates on which the Cuban air force would “confront” the provocative flights.

Prosecutors also cited alleged remarks by Hernández after the shootdown expressing approval of the self-defense action taken by the Cuban government. These two things, it said, constituted an “agreement” or “conspiracy” by Hernández in relation to the shootdown.

In a strongly worded 16-page dissent, Judge Phyllis Kravitch voted to overturn Hernández’s conviction, calling the government’s evidence “speculation” at best. She noted that Brothers to the Rescue had repeatedly violated Cuban airspace since 1994, flying low over downtown Havana on one occasion. The Cuban government, she wrote, twice filed written complaints with the U.S. Federal Aviation Administration about the incursions, warning that Cuba had the right to down any invading aircraft. Basulto even appeared on Miami radio boasting of the flights, but U.S. authorities took no action against him.

The judge noted that a conspiracy charge must be based on agreement to “achieve an unlawful objective,” but that the U.S. government failed to prove that Hernández’s goal was “to shoot down the planes in international, as opposed to Cuban, airspace.” The Cuban government says it shot down the planes within its own airspace.

Kravitch added that the government “failed to provide sufficient evidence that Hernandez entered into an agreement to shoot down the planes at all.”  
 
Disproportionate sentences
On the basis of this unfounded charge, Hernández was sentenced to a double life term plus 15 years. René González was sentenced to 15 years, Fernando González to 19 years, Ramon Labiñino to life plus 18 years, and Antonio Guerrero to life plus 10 years.

While upholding the convictions of all five, the court was unanimous in ruling that the sentences for Labañino, Guerrero, and Fernando González were excessive and had no basis in the law. It found that the government failed to show that Labañino or Guerrero had transmitted any “top secret” documents to Cuba, and failed to prove that González was a “manager” of the group.  
 
Constitutional rights violations
The government’s case against the Cuban Five is built on “evidence” taken secretly from their homes and computers by FBI agents under the Foreign Intelligence Surveillance Act (FISA). Under that 1978 law—an attack on constitutional protections against unreasonable searches and seizures—a secret court was set up inside the U.S. Justice Department to rubber-stamp requests by federal cop agencies to spy on U.S. residents without having to apply for a warrant at a regular court.

The June 4 ruling upheld the trial court’s decision not to suppress evidence obtained under the secret searches, stating that the government had certified that the request was proper. “When, as here, the applications contain the required certifications, they are subject ‘only to minimal scrutiny by the courts.’ The reviewing court has no greater authority to review the certifications of the executive branch than the FISA court has.”

The ruling upheld trial judge Lenard’s decision to bar the defendants and their attorneys from viewing the full documents presented as evidence, on the basis that some documents might contain classified information. Defense attorneys were allowed to view heavily censored documents or “summaries.”

Attorneys for the Cuban Five say they will ask the full court to reconsider its ruling. They said they are also considering appealing the case to the U.S. Supreme Court.
 
 
Related articles:
Court ruling on Cuban 5
Picket lines back call to release Cuban 5
Free the Cuban Five Working Conference leaflet  
 
 
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