National Committee to Free the Cuban Five

'Society has become more punitive'

For 40 years, Leonard Weinglass has been the defence lawyer in some of America's most spectacular trials, representing the Chicago Eight, the kidnappers of Patty Hearst and the man who helped bring down President Nixon. He tells Duncan Campbell why the current case of the Cuban Five shows how politics is derailing the US justice system

This month a series of billboards will start appearing in US cities informing pass- ers-by about five prisoners serving up to life sentences in US jails. While the Cuban Five, as they are known, are heroes in their home country and in parts of Latin America, they are virtually unknown in the land where they are incarcerated. Soon they are due back in court and Leonard Weinglass, their lawyer, believes the case should be as famous as any political trial in the US over the past four decades.

Weinglass should know. In fact, if you wanted to understand American politics over the past four decades, you could do worse than to study the casebook of this quietly spoken New York-based lawyer whose task it is to try and free them. From the Chicago Eight to Jane Fonda, from Angela Davis to the kidnappers of Patty Hearst, from Daniel Ellsberg to Amy Carter, Weinglass has represented the defendants in many of the most spectacular real-life courtroom dramas.

He is in London to meet British parliamentarians and raise awareness of the Cuban Five, a story that has hovered under the radar in the US. The five young Cuban men, who had infiltrated anti-Castro groups in Miami that were planning sabotage in Cuba, were convicted of espionage offences in 2001. Weinglass believes they are victims of a grave miscarriage of justice and that the courtroom acts as a barometer of a country's political health.

It was the trial of the Chicago Eight, the anti-Vietnam war protesters arrested in the wake of the riots at the Democratic party's convention in 1968, that first propelled Weinglass into the legal limelight. The defendants included Abbie "Steal This Book" Hoffman; Tom Hayden, a political activist who would later become a Democrat congressman; and Bobby Seale, who appeared in court manacled and with his mouth taped shut. The trial is the subject of a forthcoming Steven Spielberg film. A few years later, Weinglass found him self defending Daniel Ellsberg, the man who, in 1971, leaked the Pentagon papers on the hidden history of the Vietnam war, which were instrumental in the downfall of President Nixon. He has kept in touch with many of his old clients.

"Last summer, Dan Ellsberg and Tom Hayden and I were speaking at a community east of Vancouver that was founded by a group of Russians who had their way there paid by Tolstoy during the Tsar's period because they had thrown down their weapons and burned them in a ceremonial bonfire," says Weinglass. "During the Vietnam war, they welcomed American war resisters and they are still helping those [soldiers refusing to fight in the Iraq war] who are coming now."

What perplexes Weinglass is that his current case has had scant attention in the American mainstream media. "There is very little coverage except in the leftwing or Latin press. I was on Wolf Blitzer on CNN about six months ago, and I received many calls afterwards from people who were shocked to learn about it for the first time. It's inexplicable. Here you have a case, the longest trial in the US at the time it was heard, with a US admiral, the adviser to the president, Cuban generals, all testifying in a criminal trial that covered the 40-year history of US-Cuban relations and it received no press."

He draws parallels between the Cuban case and that of Ellsberg. "In Dan's case, the court process had to examine the 40-year history between the US and Vietnam, so both cases are the product of foreign policy failures and responses to those failures, which is rare in court proceedings. Most cases are two-dimensional - what happened, who did it? In these cases you went into a third dimension - why? That gives it political content."

The trial had started on the heels of the case involving Elian Gonzalez, the shipwrecked boy who was eventually returned to his father in Cuba. "There were 100,000 people in the street protesting against Elian's return approximately three months before the case began. There is great fear and intimidation in Miami. Some of those called to serve on the jury said they thought they could be fair, but they were afraid for their families if they reached a verdict that was unacceptable to the Cuban exile community. A banker said he felt he would lose his business. The jury foreman was asked about Cuba and he said it was a 'communist dictatorship and I will be pleased when it is removed'."

Weinglass drew up the trial brief for Angela Davis, the black radical, when she stood trial for murder in 1972. She, unlike the Cubans, was acquitted. "Angela's case involved a black woman, a member of the Communist party, tried for the murder of a judge in a rural Californian community, in front of an all-white jury. She was defended by excellent African-American lawyers and a decision was made correctly that her legal team would be all of colour, but I wrote the trial brief. The issue was: could she be acquitted without testifying? They were afraid that if she testified the prosecution would get into a lot of her political associations which she would not publicly reveal. So she had to run the risk of a life sentence in order to keep private her political associations. She prevailed, I believe, largely because the whole world was watching.

"In the Cuban Five case, there were demonstrations in front of the courthouse, people dangling nooses, calling for the hanging of the five, editorial comment in the local paper saying this was the first step in getting Fidel Castro and urging the indictment of Castro in a Noriega-type attack on Cuba. The environment was more hostile in the case of the Cuban Five. Angela, I believe, was saved by the international and domestic support network which the Five did not have."

So what has changed in the decades since the Chicago Eight, Ellsberg and Davis were all cleared? "Society has become far more punitive and the system reflects that. The UN general assembly considered a ban on life sentences for juveniles - people under 18 - and the vote was 185 in favour of the ban with only the US voting against. That is because we have 2,300 juveniles doing life, including some from 13 years old. This generates no discussion in the US. In the 60s, a life sentence would mean that after 24 years you would be eligible for parole, and you would have to be released after 34. Under the Clinton administration, they abolished parole. If you get life, you are in prison until you die.

"When I argued the Chicago Eight appeal, the court set aside two days for argument; when we argued the case of the Five, all five were given a total of 15 minutes, so I had three minutes to argue my client's life sentence. That is attributed to judicial efficiency which, of course, curtails the rights of the accused. So the system operates faster and more punitively, and there is no groundswell to address this in either party. We now have distinguished liberal professors, like Alan Dershowitz of Harvard, calling for the courts to issue warrants for torture and an attorney-general who refuses to acknowledge that water-boarding is torture. There can't even be a robust debate in the US on an issue as fundamental as torture."

Why the change in climate? "I think it's a reaction to the 60s, to what most people considered an overly permissive era, which was followed by a sharp increase in crime, which was followed by a vindictive reaction, which we are still undergoing. In the 60s there were 700,000 people in prison and 600 on death row. Now there are 2m in custody and 3,200 on death row." He also believes that verdicts reflect public moods. "The Chicago Eight were right on the issues of war and racism. Dan Ellsberg was right on the Vietnam war. Angela was clearly innocent and was tried at the height of the black liberation struggle in the US."

One of Weinglass's best-known cases was that of Emily and Bill Harris for kidnapping Patty Hearst in 1974. They were convicted, but Weinglass believes they had a fair trial. "It was a sensational kidnapping. It had the largest ransom ever paid and her father had to come up with several million dollars worth of food for the poor." Remarkably, the Harrises were free within a decade. How come? "Let me just say that they benefited from the influence of the Hearst family, who didn't want their daughter to testify."

Weinglass's Wikipedia biography has apparently been written by a malign rightwinger. It suggests, falsely, that he was an adviser to the Hanoi government. "I think it's hilarious," he says. "I can't imagine anyone believing it as an honest source." He did defend Jane Fonda after she went to Hanoi and broadcast to the US pilots who were bombing the city, asking them to consider the consequences of what they were doing. There was a call to charge her with treason and the House Committee on Un-American Activities subpoenaed her to testify. "I sat with a group of lawyers who felt we should file a lawsuit to quash that, but after talking to Jane we decided to take a totally different tack: she would publicly thank the committee for the subpoena and say she was willing to testify. The strategy was correct. The committee met and withdrew the subpoena. They were afraid of having Jane there. They never charged her."

Another client was Amy Carter, daughter of the former president, who was arrested in 1987 with 15 others for occupying a university building which was used by the CIA for recruitment during the war waged by the Contras against the Sandinistas in Nicaragua. The students were charged with criminal trespass. "We used the defence of justification and necessity which says, 'Yes, I did the crime, but it should be excused because I did it to prevent a greater wrong.' A conservative jury in Massachusetts acquitted, which was a wonderful victory."

Weinglass is also currently dealing with the case of Kurt Stand and his wife, Theresa Squillacote, who were jailed a decade ago for attempted espionage (for the former East Germany) and obtaining national defence information "to be used to the injury of the United States". The FBI bugged every room of the Stands' home and used what they heard to brief a psychologist who would then train an undercover agent to penetrate the family. "It's quite a story," says Weinglass. "Most Americans would not believe that the FBI records bedroom conversations and then brings in psychologists to train an undercover agent to betray a family."

Each case, he says, has its "heartbreak and satisfaction". Now 74, he sees no reason to stop. "The typical call I get is one that starts by saying, 'You're the fifth attorney we've called.' Then I get interested".

Three of the Cuban Five are serving life sentences, the others 19 and 15 years, after being convicted in a US federal court in Miami on June 8 2001. They are Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González. All were accused of committing espionage. Their defence was that they were involved in infi ltrating and monitoring Miami-based anti-Castro groups to prevent terrorist attacks on Cuba. These organisations have mounted various attacks on the island over the years; the Five claimed that as many as 3,000 people have died as a result.

The seven-month trial began in November 2000 in a hostile atmosphere, but motions from defence attorneys for a change of venue were denied. In 2005, a three-judge panel of the circuit court of appeals overturned the convictions and ordered a new trial outside Miami. This decision was reversed by a 12-judge panel. Nine remaining issues of appeal are before the three-judge panel and a decision is expected shortly.