By Jayatilaka de Silva, Prensa Latina,
Five Cubans -Rene Gonzáles, Antonio Guerrero, Fernando Gonzáles, Gerardo Hernández and Ramón Labañino were arrested on September 12, 1998 by the United States Federal Bureau of Investigation.
They have been languishing in US prisons under solitary confinement for exactly 10 years. Having kept them for long without trial, they were later tried by a “partial” Court in unfriendly Miami, Florida – the home of Cuban exiles and anti-Cuba mafia with links to the White House.
They have been tried for crimes they did not commit and the prison sentences imposed on them are the harshest under the “law”. Rene was imprisoned for 15 years and Fernando for 19 years. Ramon received a life sentence plus 15 years while Antonio received life sentence plus 10 years. Gerardo was served the harshest punishment – two life sentences plus 15 years.
On May 27, 2005 the United Nations Working Group on Arbitrary Detentions concluded that the arrest and detention of the five persons are arbitrary as it contravenes the UN Covenant on Civil and Political Rights to which the US is a party.
On August 9, 2005 the 11th Circuit Court of Appeal revoked the convictions imposed on the five by the Miami District Court and ordered a re-trial. Yet they continue to be incarcerated as before.
The only crime they committed was to fight terror and that too unarmed. The only weapon they used was their intelligence.
Strange as it may seem it is really true – all of them were punished for fighting terrorism in the country who’s President has declared a “Global War on Terror”.
The trial of the Cuban Five have exposed not only the hypocrisy of the US in its war on terror but also its collaboration with notorious terrorist criminals such as Luis Posada Carriles aka Bin Laden of Latin America.
Evidently, the trial as well as the verdicts was politically motivated. Hence, the struggle for their release remains mainly political though legal means are not spared.
This calls for a global campaign for their release. Actually the campaign has been going from strength to strength. Yet it needs to be intensified so that Washington would be compelled to release the five.
It is necessary to go further into history to reveal the sequence of events that led to the incarceration of our five heroes.
As is well known the Cuban Revolution of January 1, 1959 put an end to the United States political and economic control of the island which became the first free territory of the Americas.
It is to the United States that dictator Batista, his associates, the bankers, landlords and other magnates of capital emigrated after the revolution.
The US started its covert and overt operations against the Cuban Revolution from Day One. There is much documented evidence to prove the hand of the United States in the numerous acts of terrorism against Cuba.
They, including the Bay of Pigs invasion which suffered an inglorious defeat, are part of history.
Our attention here goes to the numerous acts of terrorism against Cuba, planned and executed by mafia gangs in Miami during the 1990s. A series of attacks on civilian and tourist facilities were carried out causing loss of life and much economic damage. Several attempts were made on the life of Cuban President Fidel Castro.
A terrorist organization Brothers to the Rescue provocatively violated Cuban air space several times.
All these happened while terrorist leaders Orlando Bush and Luis Posada Carriles gave media interviews owning their complicity in these acts of terror as well as earlier actions including the mid-air explosion of a Cuban civilian aircraft with 73 passengers on board in 1976 October.
It is no wonder that in this threatening situation Cuba decided to do everything to prevent such attacks and secure the safety of its citizens and property.
Our five heroes went to the United States on a mission to gather intelligence about the activities of the terrorist mafia operating from Miami, Florida so as to be able to prevent them.
Having gathered information about impending acts of sabotage and terrorism they passed on the information to the Cuban government. They were doing nothing other than performing their patriotic duty, an obligation internationally accepted in diplomatic practice.
The Cuban government placed the evidence at the disposal of the US government. Instead of prosecuting the offenders on the basis of the evidence, the US arrested the five Cubans. So they were actually arrested for fighting against terrorists.
The five were held without bail for 33 months between arrest and trial. All jurors selected for the trial were vehemently against the Cuban Government, a fact they had not kept secret.
Their open hostility as well as the pressures brought upon them would have been sufficient for the judges to shift the trial to some other city, as requested by the defendants and as guaranteed by US law. Nothing, however, happened and the judges gave the severest of punishments.
The Appeal
In April/May 203 attorneys for the defence filed the appeal on the following grounds:
i. The defendants were denied a fair trial in Miami where there was an atmosphere of hostility
ii. Conspiracy to commit espionage was not proved beyond reasonable doubt
iii. Conspiracy to commit murder by Gerardo was not proven beyond reasonable doubt
iv. The sentences were excessive and they violated appropriate guidelines
v. The secret procedures adopted by the government as well as the conduct of the trial were a violation of the US Constitution and
vi. The actions of the five unarmed and involved in the allegations of espionage were justified by the Doctrine of Necessity and hence excusable in law.
On August 5, 2005 three magistrates mandated by the 11th Circuit of the US Court of Appeal in Atlanta to hear the case released their decision, unanimously reversing the convictions and ordering a new trial.
In this ruling, they only responded to the first issue raised by the defence, in relation to the venue or place where the trial was held.
According to U.S. federal criminal proceedings rules, it is not beneficial to review an appeals court panel ruling, and therefore it should have been received by both sides, with the case being sent once again to the Miami court so that a new trial could take place in a venue without conditions of hostility toward the defendants. The judges’ ruling should have been respected.
Notwithstanding that, the U.S. Attorney General’s office submitted a request for an exceptional hearing before a plenum of the Atlanta Appeals Court’s judges to review the ruling issued by the three-judge panel. The plenum is comprised of 12 judges in total.
Exactly one year after the sentences were overturned —August 9, 2006— the plenum of the judges in the Atlanta Appeals Court, in a majority decision of 10-2, rendered null and void the ruling of the three federal judges assigned to hear the appeal, and ruled that the case go back to the plenum to decide on questions that had not been resolved on August 9, 2005.
Subsequently, new documents from the defense and government representatives were addressed to the panel, defending their respective positions. On august 20, 2007 an oral hearing was held, more for the benefit of the judges than of the two sides in the case. Each side had 30 minutes to present its arguments.
More than 70 observers from the United States and from other countries, organized by the solidarity campaign with the Five, attended the hearing to hear the arguments of both sides at first hand.
The Federal Appeals Court on Wednesday June 4, 2008 upheld the convictions of the five Cuban anti-terrorists while vacating the sentences of three of them, who are to be re-sentenced in Miami, the only place they never should have been or should be tried.
The three-judge panel of the 11th Circuit Court of Appeals in Atlanta issued a 99-page verdict in which it sends back to the same Miami court the cases of Ramón Labañino (life plus 18 years), Fernando González (19 years), and Antonio Guerrero (life plus 10 years).
However, the sentences of Rene González (15 years) and Gerardo Hernández (double life plus 15 years) stand as they are.
On September 2, 2008 the Atlanta Court of Appeals denied the reconsideration request presented by the defence regarding the five imprisoned in the United States.
This means that the June 4th decision of the three-judge panel is ratified and enters in force. In consequence, the guilty verdicts of The Five are ratified, confirming the sentences against Gerardo and René and that Judge Joan Lenard, of Miami, can initiate the process to dictate new sentences to Ramón, Antonio and Fernando.
Until December 1, 2008 the defence could ask the United States Supreme Court to consider a revision of the case.
Adding further injustice, the US government has denied visas to family members to visit the prisoners in the United States. The wives of Gerardo Hernandez and Rene Gonzalez have been permanently denied the right to visit their husbands , violating their human rights and international law including the US constitution itself.
As this is a political case, the struggle to seek the release of the five Cubans would succeed only to the extent that the struggle outside the court in the public arena expands and gathers momentum.
It is the duty of all who oppose terrorism to solidarise with the five Cubans incarcerated in the United States for fighting terrorism and demand their unconditional release.
*Editor of the Daily News of Sri Lanka