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US resists disclosure of classified material in resentencing in 'Cuban Five' spying case

by Curt Anderson
Oct. 1, 2009
Reprinted from Associated Press

MIAMI (AP) — The U.S. is resisting a judge's order that could force disclosure of classified documents and other material sought by three men who are seeking reduced prison sentences for their 2001 convictions in a politically charged spying case.

Federal prosecutors have asked for an emergency stay and appealed a magistrate judge's disclosure order in the so-called Cuban Five case, contending it is far too broad and could produce sensitive material not required in a criminal case. The order requires U.S. officials to search for any national security damage assessments of the Cubans' actions, which could bear on whether three of the five get a more lenient sentence.

The three Cubans — Antonio Guerrero, Ramon Labanino and Fernando Gonzalez — are to be resentenced by a Miami federal judge Oct. 13. The 11th U.S. Circuit Court of Appeals upheld the convictions of all five Cubans in 2008, but vacated the life sentences for Guerrero and Labanino because there was no evidence they had obtained or transmitted top secret material.

Gonzalez, also known as Ruben Campa, had his 19-year sentence vacated because he was wrongly labeled a manager or supervisor of the spy ring known as the "Wasp Network." The five men are hailed as heroes in Cuba, where government officials regularly claim they are victims of political persecution.

Even before the magistrate judge's Sept. 23 order, prosecutors said they searched for any national security damage assessments that might have an impact on the new sentences and found nothing.

"Accordingly, there is nothing to disclose to the defense," wrote Assistant U.S. Attorney Caroline Heck Miller.

If no damage assessment exists, defense attorneys say, the U.S. cannot justify seeking long prison terms for the three.

"They claim a severe sentence, a sentence consistent with serious harm, is appropriate, but at the same time claim that the responsible officials in the U.S. government never bothered to do a damage assessment," wrote Labanino attorney William Morris. "This is not a credible position."

The magistrate's order would require the U.S. to turn over any damage assessments by Saturday, or if none exists describe in detail which agencies were searched. Prosecutors say that timeframe is far too short — particularly if classified material is involved — and would likely result in a delay of the sentencing hearing.

In addition, Miller said the emphasis on the damage assessments is misplaced because the case involved an espionage conspiracy, which doesn't require evidence that the men succeeded in their goals of penetrating U.S. military installations and reporting defense-related U.S. information to Cuba.

According to court documents, the men attempted to infiltrate the U.S. Southern Command in Miami, the Naval Air Station in Key West, congressional campaigns of politicians opposed to the Cuban government and Cuban exile groups. Guerrero, for example, got a public works job at the Key West installation and for years delivered encrypted diskettes to Cuba's intelligence service detailing military assets, troop exercises, names and addresses of commanders and other sensitive information, the documents say.

A decision on the damage assessment issue will be made by U.S. District Judge Joan Lenard, who presided over the Cuban Five trial and will impose the new sentences. It's unclear when she will rule, but defense attorneys were ordered to file papers by Thursday afternoon stating their positions.



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