Vol. 73/No. 31      August 17, 2009

They had been monitoring the actions of right-wing Cuban American groups that have carried out murderous bombings and other armed attacks against Cuba, acting with the complicity of the U.S. government.

At their sentencing Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González, and René González affirmed their determination to keep fighting for justice. In September they will have served 11 years in federal prison. Because of their unwavering record as working-class fighters, the campaign to free the Cuban Five, as they have become known internationally, has won increasing support worldwide.

Previous articles in this series have detailed how FBI agents arrested the five men on Sept. 12, 1998, in raids on their homes in South Florida. Denied bail and kept in solitary confinement for 17 months, they were convicted on all charges, given the maximum sentences, and locked up in five different federal prisons.

The trial, held in the federal court in the Southern District of Florida, lasted nearly seven months, from November 2000 to June 2001. It heard 74 witnesses, including three retired U.S. generals and a retired U.S. admiral. Despite the major issues it posed, from constitutional rights to U.S. foreign policy, the proceedings received little coverage in the U.S. big-business media outside southern Florida.

The men faced 26 criminal charges. Guerrero, Hernández, and Labañino were accused of “conspiracy to commit espionage.” Hernández was additionally charged with “conspiracy to commit murder.” Both of these charges carried a sentence of up to life in prison. The other accusations included failure to register with the U.S. government as foreign agents and lesser charges such as the use of false names.

The murder conspiracy charge against Hernández was unprecedented. The federal prosecutors held him responsible for an action of a sovereign government—Cuba’s downing in 1996 of two hostile planes flown over its territory by Brothers to the Rescue, a counterrevolutionary U.S. group that had carried out many provocative incursions into Cuban airspace over the previous two years despite Havana’s warnings. (The sixth article in this series, in the August 3 issue, details this incident.)  
 
Secret searches, secret evidence
The government’s case against the Cuban Five was built on “evidence” collected through the secret wiretapping of phone conversations and seizure of computer files and other personal belongings from their homes by FBI agents, using the Foreign Intelligence Surveillance Act. Under that law—which violates the Fourth Amendment’s 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 from a regular court.

U.S. district judge Joan Lenard rejected defense motions to suppress evidence obtained through these secret searches.

In another violation of constitutional rights, the court allowed the prosecution to use secret evidence. After federal agents seized more than 20,000 pages of documents from the five men, the Justice Department stamped every page “top secret.” But not a single one was a secret U.S. government document.

The government then invoked the Classified Information Procedures Act (CIPA), under which the court restricted defense access to the evidence. The prosecutors were allowed to introduce heavily censored documents or “summaries” of documents as “evidence.” The defense attorneys could only review the materials in a special room in the courthouse basement and were prohibited from taking their working notes from the facility.

A large amount of evidence was suppressed. Under the CIPA provisions, prosecutors met privately with the judge to decide what evidence would be kept from the defense and excluded from the trial. This included documents that could have contradicted the government’s case.

For example, the government alleged that Hernández was tied to the Cuban government’s downing of the two Brothers to the Rescue planes. As proof, they asserted that after the shootdown “Hernández wrote to his superiors that he and others took pride in having contributed to an operation that ‘ended successfully’” and that Cuban intelligence commended Hernández for “outstanding results achieved on the job.”

In an April 1, 2009, phone interview for Progreso Weekly magazine (reprinted in the July 20 Militant), Hernández explained that the “evidence” was manipulated by suppressing documents.

Just before the shootdown, Hernández had helped get Juan Pablo Roque, a fellow Cuban revolutionary who had infiltrated the Brothers outfit, secretly back to Cuba. “The U.S. government wanted to show that Roque’s return was linked with the shootdown. That’s absolutely false,” Hernández said in the interview. “It’s well documented that Roque’s return had been planned for a year before that happened.”

But the prosecution, he said, “cleverly removed from the evidence certain communications referring to Operation Venice—Roque’s return—and made it seem that they referred to Operation Scorpion, the operation to prevent the violation of Cuban airspace.

“One clear example is a message I sent responding to a request from Cuba saying that for me it was an honor to have made a modest contribution to a successful mission. It is super clear in the evidence that this referred to Operation Venice, the one about Roque. The government used it as its sole piece of evidence that I had something to do with the shootdown, although they know it did not refer to Operation Scorpion… . The prosecution mixed the two up purposely.”

In addition, the U.S. government prevented the defense attorneys from adequately preparing for the trial by limiting access to their clients, who were put in solitary confinement for 17 months prior to the trial.  
 
Judge denies change of venue
From the outset, a central issue was the defense request for a change of venue because the accused could not receive an impartial trial in Miami-Dade County. Despite the atmosphere of bias and intimidation, Judge Lenard rejected seven defense motions to move the proceedings to another location, such as Fort Lauderdale in Broward County, just 30 miles to the north.

That atmosphere was promoted by U.S. officials, who from the moment of the arrests whipped up an effort to convict the five in the media, announcing the discovery of a “Cuban spy network” in Florida that “threatens national security.” The capitalist press in Miami did its part with sensationalist headlines and editorials about “Spies among us.”

Thuggish right-wing Cuban American groups, while much weaker than they were in earlier decades, were part of this picture. They organized protests in Miami during the trial, including actions marking the anniversary of the shootdown. In the months before the trial, Miami was also polarized by the controversy over Elián González, with rightists staging street protests opposing the return of the child to his father in Cuba.

During the jury selection, several potential jurors admitted they were concerned about the repercussions if they acquitted the five Cubans. David Cuevas, for example, said he would “fear for my own safety” if he didn’t return a guilty verdict acceptable to right-wing Cuban Americans. Jess Lawhorn expressed concern about economic reprisals against his business. Prospective juror Glanery said that because of publicity and the volatile atmosphere it would be difficult to follow the court’s instruction not to expose oneself to information about the case.

These concerns were well-founded. On Nov. 27, 2000, the first day of jury selection, right-wing forces organized a demonstration on the courthouse steps, featuring relatives of the downed Brothers outfit pilots. Jurors were exposed to the lunchtime protest and some were approached by the press.

Judge Lenard took a few steps to give the appearance that jurors were insulated from such pressures. She instructed U.S. government officials to talk to the Brothers pilots’ relatives about their improper conduct. She extended a gag order to cover jurors and witnesses in addition to attorneys, and sealed the jury selection questions. She ordered marshals to accompany jurors as they left the building. During the trial she also limited the sketching of witnesses for their protection.

Jurors continued to complain they felt harassed. The judge again modified their guarded transportation to the courthouse and entry and exit from the building.

But during deliberations, right-wing TV stations continued to film jurors entering and leaving the courthouse, all the way to their cars. Even their license plates were filmed.

At one point in the trial, when José Basulto, head of Brothers to the Rescue, was questioned by defense attorney Paul McKenna about that group’s record of armed attacks on Cuba, Basulto shot back, “Are you doing the work of the intelligence service of Cuba?”

This red-baiting, spy-baiting attack was a clear warning to the jurors of how they might be treated if they issued a not-guilty verdict. The judge told the jury to ignore the remark and chided Basulto, but allowed the tainted proceedings to continue.  
 
Double standard
While federal prosecutors insisted that an impartial trial could be held in Miami-Dade County for the five Cuban revolutionaries, just one year later they contradicted their argument in a separate case, Ramirez v. Ashcroft. The same U.S. attorney, Guy Lewis, moved for a change of venue in the new case on the basis that a fair trial in Miami-Dade was “virtually impossible” because of media coverage and community “prejudice.”

In Ramirez, then-attorney general John Ashcroft and the Immigration and Naturalization Service were accused of employment discrimination against Latinos. In asking for a change of venue, the government cited many of the same facts it had previously dismissed as irrelevant in the case of the Cuban Five, including the right-wing demonstrations over Elián González.

During jury selection for the trial against the Cuban Five, some of the 12 people chosen for the jury—which did not include Cuban Americans—expressed their hostility toward the Cuban government. David Buker, who said he believed “[Fidel] Castro is a communist dictator and … I would like to see him gone and a democracy established in Cuba,” was seated on the jury and named its foreman.

At the same time, the prosecution used its allotted peremptory challenges (those not requiring a reason) to strike Blacks from the jury. It used nine of its 11 peremptory challenges to strike potential jurors. Seven of the nine were Black. Subsequently, one of the grounds for appeals of the frame-up of the Cuban Five was that the disproportionate exclusion of Blacks from the jury was discriminatory, a violation of the Equal Protection clause of the 14th Amendment to the Constitution.

Federal prosecutors had good reason to try to minimize the number of Blacks on the jury. From experience many Blacks, especially workers, are likely to recognize a frame-up and understand the class-biased role of the government and police. And many have some knowledge of revolutionary Cuba’s outstanding contributions to liberation struggles worldwide.

The next article will take up other issues that came up in the trial.

(To be continued)
 
 
Related articles:
White House builds on domestic spy program
Army spied on group in Washington State  
 
 
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