The Militant (logo)  
   Vol. 68/No. 12           March 29, 2004  
 
 
Cuban Five appeal U.S. gov’t frame-up
(front page)
 
BY SETH GALINSKY  
MIAMI—Five Cuban revolutionaries who have been in prison in the United States since 2001 on frame-up conspiracy charges took their case to the 11th U.S. Circuit Court of Appeals at a March 10 hearing here.

Fernando González, René González, Antonio Guerrero, Gerardo Hernández, and Ramón Labańino are serving from 15 years to a double life term. They were arrested in 1998 and convicted in a June 2001 frame-up trial of conspiracy to commit espionage, to act as unregistered foreign agents, and—in the case of Hernández—to commit murder. The five had been gathering information on ultrarightist Cuban-American groups that have organized violent attacks on Cuba from U.S. territory with the com plicity of the U.S. government. The groups were funded and in some cases created by Washington.

While the defense attorneys were originally allocated 15 minutes to present their case, the judges gave them a few extra minutes to present their arguments.

Lawyers for the five told the court that the government had denied defense lawyers access to documents seized from the defendants. They also argued that the long jail terms violated sentencing guidelines, and that the location of the trial in Miami acted against their receiving a fair hearing. Assistant Federal Public Defender Richard Klugh spoke first. Dealing with the case of Gerardo Hernández, he stated that the “conspiracy to commit murder” charge “does not stand up.”

The prosecution had accused Hernández of feeding information to the Cuban government on Feb. 24, 1996, flights by the right-wing Cuban-American group Brothers to the Rescue. On that day two of the planes were shot down in Cuban airspace by Cuban fighter jets.

Prosecutors claimed that the planes had not left international airspace. Hernández, they said, had warned other Cuban revolutionaries operating within the ultrarightist group to stay on the ground that day.

Klugh pointed out that a confrontation had been widely anticipated that day, including by U.S. government agencies and Brothers to the Rescue leaders, since the Cuban government had announced that it would no longer allow the planes to violate its airspace. Brothers to the Rescue had conducted 25 illegal incursions over the previous 20 months, he noted, sparking 25 protests by Havana. At least one of the “Brothers” pilots was wanted for the bombing of civilian installations in Cuba, he added.

In answer to the charge of conspiracy to commit espionage, Klugh said that U.S. officials had admitted that “no top secret information was obtained or sent,” and that the information gathered by the five Cubans was all publicly available.

This, said Klugh, was also true for Antonio Guerrero, who had worked at the U.S. Air Force Base in Homestead, Florida. Guerrero, who did not have a security clearance, had never violated the base’s security regulations and had “counted airplanes to see if there is a buildup” indicating a threat to Cuba.

With these points in mind, Klugh concluded, the life sentences were not justified and should be reversed.

Leonard Weinglass, the only private attorney acting for the defense, argued that it was not possible to get a fair trial in Miami for such a case, given the number of opponents of the revolution among Cubans resident in the city. He noted that half a dozen people had been excused from the jury after they expressed fear of the possible reaction of neighbors or co-workers.

During the original trial, recalled Weinglass, rightists dressed in military fatigues and wearing pictures of bazookas had entered the courtroom. “If the jury didn’t know before they knew now what the reaction would be,” if they came down with a verdict not to the liking of right-wing groups, he said. “The trial should have been moved 25 miles away to Fort Lauderdale.”  
 
Case for the prosecution
Prosecutor Caroline Miller claimed that Gerardo Hernández—a “career member of the Cuban Intelligence Service”—had made sure that the Cuban agents in Brothers to the Rescue didn’t fly on Feb. 24, 1996.

“You must infer” that he knew the planes would be shot down, she charged.

Judge Phyllis Kravitch interrupted Miller on this point. Even if Hernández knew of the coming confrontation, she asked, how would he have known whether it would take place in international airspace—making it murder in the judges’ eyes—or an act of defense of the country’s sovereignty against the violation of its airspace.

Lead Judge Stanley Birch indicated that the court might consider a reduction in the sentences, even if it doesn’t order a new trial. Defense lawyers say that it could be months before the court issues a decision.

At a packed press conference after the hearing, Weinglass noted that the U.S. government had not charged the Cubans with murder or espionage, since they “knew it could not prove either charge. That’s why it charged them with conspiracy,” he said.

Nor could the prosecutors “prove beyond a reasonable doubt that the shooting down of the Brothers to the Rescue planes took place in international airspace,” he said. In fact, they had conceded at the trial that the plane of Brothers to the Rescue leader José Basulto had entered Cuban airspace, although it had not been shot down.

“You’re really talking about a question of seconds,” said Weinglass, given the speed of the Cuban Air force planes. Washington “claims the Brothers to the Rescue planes were eight to twelve seconds outside of Cuban airspace,” he said, while “the Cubans say they were 20 seconds inside.”

When a reporter for Channel 10 television news asked, “does anyone here believe for a second that the shooting down of the planes wasn’t murder?” he was answered by Andrés Gomez, who leads the Antonio Maceo Brigade, a group of Cubans in the United States who support the Cuban Revolution.

The Brothers to the Rescue planes were “the exact same kind of planes that in the past had been used to drop bombs on Cuba,” he noted. “Cuba repeatedly warned the U.S. government that these flights must stop.”

“Cuba presented its radar records to an international commission investigating the incident, proving the planes were in Cuba’s airspace,” Gomez added. By contrast, he said, “the U.S. government refused to turn over its radar records.”

About 25 supporters of the five attended the appeal, including the brother and daughter of René González and Gloria La Riva of the National Committee to Free the Five. A number of lawyers’ associations from Latin America and Europe were also represented along with the Miami-based Alianza Martiana. Relatives of the downed Brothers to the Rescue pilots were also there.  
 
 
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