Gloria La Riva: 'Support for Cuban Five more important than ever'
by Owen Richards
December 2008
Reprinted from Direct Action (Australia)
In June 2008, a US appeals court upheld the convictions of the Cuban Five — five Cuban nationals who were arrested and convicted of espionage, conspiracy to commit murder, and other illegal activities, in the US. The appeals court vacated the sentences of three of the five men, ordering re-sentencing trials for them. It affirmed a sentence of two life terms for one of the men and a 15-year sentence for another. Gloria La Riva is the director of the US National Committee to Free the Cuban Five. She spoke to Direct Action about the Cuba Five case.
Can you provide readers of Direct Action with a brief explanation of the case of the Cuban Five?
The Cuban Five are five Cuban men imprisoned in the United States since September 1998. They are Gerardo Hernandez, 43; Ramon Labanino, 45; Antonio Guerrero, 50; Fernando Gonzalez, 45; and Rene Gonzalez, 52. They committed their lives to stopping terrorism and protecting the Cuban people. Their story began in the early 1990s, when each one entered Miami from Cuba, to infiltrate rightwing extremist Cuban-American organizations and prevent those groups from carrying out terrorist attacks on Cuba.
After the Cuban Revolution’s triumph in 1959, thousands of rightwing Cubans fled the island to exile in Miami. Using those exiles, the US government launched a program of terrorism and destabilisation to try to overthrow the Revolution, a policy that continues today. Since 1959, more than 3,400 Cubans have been killed by those attacks, bombings, assassinations and other sabotage.
One of the most notorious crimes was the 1976 bombing of a Cuban airliner in which 73 passengers and the crew perished. The two architects of the bombing, CIA-trained terrorists Luis Posada Carriles and Orlando Bosch, walk the streets free in Miami, after receiving kid-glove treatment by presidents George H.W. Bush and George W. Bush. Yet, the Cuban Five, whose mission in Miami was to prevent attacks against Cuba by monitoring the terrorists, are locked up in US prisons.
On September 12, 1998, the FBI arrested the five men in Miami and Tampa, in sudden pre-dawn raids on their homes. They were charged with 26 federal counts, including failure to register with the US attorney-general as foreign agents, and the use of false identity documents. But three major counts stand out, involving conspiracy charges.
Conspiracy is a favourite tool of prosecutors, readily utilised by the US government in politically-motivated prosecutions. With conspiracy, no crime need be committed nor evidence produced. A defendant can simply be accused of intent to commit a crime “in the future”.
Three of the five, Hernandez, Labanino and Guerrero, were charged with “conspiracy to commit espionage” on the US. They never committed espionage nor intended to, nor was the US government their target. They were monitoring the actions of the Miami terrorists, not the US government. Yet, despite the prosecution’s own admission that not one page of evidence existed in the five men’s possessions to prove espionage, the three were convicted of espionage conspiracy and received life sentences.
The other major charge, leveled against Hernandez, was “conspiracy to commit murder”. This indictment came eight months after the five men’s arrest, and was crafted to persecute not only Hernandez but the Cuban government and people as well. The “murder conspiracy” charge falsely linked him to the February 24, 1996, shooting down of two Brothers to the Rescue (BTTR) planes by the Cuban government.
BTTR planes had repeatedly invaded Cuban airspace in late 1995 and early 1996, including a January 13 flight in which the planes buzzed Havana buildings and 500,000 flyers were dropped over the island. Jose Basulto, head of BTTR and a self-admitted terrorist, boasted on Miami television that BTTR planes would fly into Cuban airspace on February 24, 1996. Despite urgent warnings by Cuba to Washington, the Clinton administration did nothing to stop the BTTR flight.
On the afternoon of February 24, three BTTR planes ignored Cuba’s repeated warnings, flying into Cuba’s territorial limit of 12 nautical miles. Cuban fighter planes shot down two of the Cessna planes. Four of the pilots died. Your readers may recall when President Bill Clinton used Cuba’s shootdown as the pretext to sign the infamous Helms-Burton Law, in March 1996. That law severely tightened the US blockade of Cuba and remains in place today.
Cuba’s action was a legitimate act of national defence, not murder. But that is the lie the US government has held against Cuba and against Hernandez, simply because he was the Cuban agent tasked to oversee the work of the patriotic Cubans who were monitoring BTTR.
On September 12, 1998, the Cuban Five were arrested by the FBI. They spent 17 months in solitary confinement leading up to their trial, virtually cutting off defense lawyers’ access and weakening their ability to prepare an adequate defense. Like the espionage conspiracy, there was no factual basis for charging Hernandez with “conspiracy to commit premeditated murder within the special US maritime and territorial jurisdiction”. Cuba presented ample proof at the trial that the planes were in Cuban airspace, including radar documentation. The US prosecutors disputed this, claiming the BTTR planes were shot down in international waters.
The US government’s only claim against Hernandez was a message he received from Cuban security in February 1996, telling him that the Cuban patriotic pilots infiltrated in BTTR should not take part in flights in late February, in case Cuba needed to act against invading planes.
In the trial, the US prosecutors admitted that they faced “an insurmountable obstacle” and could not win a conviction against Hernandez, if the judge’s instructions to the jury were to stand. Judge Lenard instructed the jurors that to convict Hernandez, they would have to find that he conspired with Cuba to have the planes deliberately shot down in international waters. The US prosecutors knew very well that this scenario was an absurdity. But the prosecution pushed on nonetheless. The U.S. attorney appealed to the 11th Circuit Court of Appeals, seeking a change of instructions to the jury that would enable a conviction against Hernandez. But the court denied the prosecution’s appeal. And yet, despite a complete lack of evidence, the jury found Hernandez guilty of murder conspiracy, and convicted the five of all 26 counts.
A Miami trial guaranteed that the five would be convicted. There was a virtual media hysteria promoted to the public. The jurors went home every day during the seven-month trial, exposed to the five’s virtual conviction in the media. Despite several defence motions to move the trial out of Miami, Lenard refused the five’s request to change venue. The defense asked for a venue change to Fort Lauderdale, only 25 miles away.
In the trial, a study by Dr. Lisandro Perez, Florida International University’s professor of sociology and director of the Cuban Research Institute, stated: “The possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero . . . even if the jury were composed entirely of non-Cubans, as it was in this case.”
Venue was the issue. And on August 9, 2005, the 11th Circuit Court of Appeals’ three-judge panel agreed. In a sweeping 93-page unanimous decision, the judges ruled that a “Perfect Storm” of “pervasive community prejudice” in Miami, prosecutorial misconduct, and a history of Miami terrorism added up to deny the five their constitutional rights. It was an incredible victory. The five’s convictions were overturned and a new trial was mandated.
The August 2005 ruling was without precedent in the history of US jurisprudence. Never before had a federal appeals court ruled to overturn a federal district trial verdict on the issue of venue. Unfortunately, it would not stand. The Bush administration appealed immediately, and exactly one year later, August 9, 2006, the full 12-judge panel of the 11th circuit affirmed the trial and reinstated the convictions.
What has been the outcome of the most recent court appeal?
After the denial of a new trial on the venue issue on August 9, 2006, the five filed appeals in late 2006 to the 11th Circuit Court of Appeals, on nine key remaining issues, including the lack of evidence for the espionage and murder conspiracy convictions, excessive sentencing in the four life sentences, extensive prosecutorial misconduct, etc.
On June 4 of this year, the 11th Circuit’s three-judge panel ruled against the five, upholding their convictions. In one partial step forward, it struck down the life sentences of Labanino and Guerrero, and the 19-year sentence of Fernando Gonzalez, for being excessive. They will be re-sentenced some time in the future — the date has not been set yet — in Miami before the same trial judge who originally sentenced the five. Lenard could still end up issuing long sentences to them.
This past September, the full panel of the court denied a request for a re-hearing by the defence attorneys. What remains now for the five is an appeal to the US Supreme Court. The centerpiece will be on the crucial issues of venue and wrongful murder-conspiracy conviction of Hernandez. All the five’s support is focused on Hernandez, as he is still burdened with two life sentences. There is no parole in US federal prison with a life sentence.
The defence attorneys are working very hard to prepare their appeals to the Supreme Court, but only 2-3% of cases are accepted by the court each year. While the defence team prepares its case, the work of the Cuban Five solidarity movement is more important than ever.
How important is the international movement to free the five and what should its role be?
The US National Committee to Free the Cuban Five was formed in July 2001, and since then over 300 committees have formed in dozens of countries on every continent. This support is born out of the solidarity that people the world over feel for the Cuban Revolution and its heroic defenders, the Cuban Five.
To mention just a couple of the many campaigns in which the international movement has played a major role for the five: One example was the release of the five from the extremely cruel isolation cells, after they were removed from the general population in March and April 2003, and placed in the isolation cells by order of then-US Attorney General John Ashcroft. This “special administration measure” put the five into complete isolation. They were denied their clothes and writing and reading material. Originally a one-year order, the thousands of protest letters that were sent to the US justice department in response to our appeal, along with the attorneys’ actions, ended this order after one month.
If it had not been for the numerous donations of dozens of Cuban Five organisation and hundreds of individuals, the $50,000 New York Times full-page ad of March 3, 2004 — one week before the first appeals’ oral argument in Miami — would not have been possible. That ad in the “newspaper of record” reached millions of people and placed the five’s struggle centre-stage. It gave tremendous encouragement to many others to launch their own publicity campaigns and to reach out to others for solidarity. | 
