| WHITE BOOK 2006 >> FIRST PART >>CHAPTER 4 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
CHAPTER 4: THE HUMAN RIGHTS OF 5 YOUNG CUBAN ANTI-TERRORIST ACTIVISTS, WRONGLY IMPRISONED IN THE UNITED STATES, AND THOSE OF THEIR FAMILIES, ARE GROSSLY VIOLATED FOR SPURIOUS POLITICAL MOTIVATIONS. René González Sehwerert Sehwerert, Ramón Labañino Salazar, Gerardo Hernández Nordelo, Fernando González Llort and Antonio Guerrero Rodríguez are five young men —two of whom are US citizens— who fought against terrorism and defended the human rights of the Cuban people; The US Government has been subjecting these five young men, arbitrarily imprisoned in that country for over six years, to systematic and sustained torture and cruel, inhuman and degrading treatment. Such treatment is part of a shameless plot intended to break, physically and morally, these five defenders of the Cuban people’s human rights. These brave young men, risking their own lives, were warning Cuba about and thus preventing many terrorist actions directed at Cuba, planned and organized by various groups which operated with impunity inside the United States. The five are intellectuals, simple men and three of them have children. Not one of them committed a single violent act. The things they were accused of had to do with the peaceful exercise of the Cuban people’s legitimate right to defend itself from terrorism. They worked to defend their people’s right to life, to well-being and to development. They were motivated by nothing other than their consciences and principles and were inspired by a deep love for their people. The only weapon each one of them had for this struggle was his own intelligence and sacrifice; they were convinced that the information they obtained to neutralize the terrorist acts of the anti-Cuban groups in the United States would be extremely useful in protecting the lives and property of men, women and children in Cuba. During the course of more than 40 years, thousands of Cubans have been killed or left permanently crippled as a result of the actions of these groups, whose training camps, recruiting and fundraising campaigns enjoy wide press coverage in cities such as Miami. Overview of the case: On 12 September 1998 the five were arrested and taken to the Miami headquarters of the FBI where they were interrogated non-stop for six hours with no lawyer present. On 14 September they were taken before a Miami Court where they were assigned defense lawyers and given date for a bail hearing; bail was denied in the hearing on 29 September of that same year. From 5 January of 2000 on, the defense lawyers began to submit motions asking for a change of venue since it would not be possible for the accused to be given a fair trial in Miami, as guaranteed under the Fifth and Sixth Amendments of the US Constitution. On 20 March 2000, the five, represented by their lawyers, submitted a motion requesting that the trial be transferred to Fort Lauderdale arguing that the terrorists against whom the five had been working were based predominantly in Miami. They supported their request with a poll whose results showed that there was prejudice against the five in Miami.80 It is impossible to obtain a fair verdict in Miami in any court case involving Cuba. The streets of Miami are full of self-confessed terrorists who boast openly of their exploits, organize and announce them publicly and the authorities never do anything at all to prevent or punish them. On 27 July 2000 Judge Joan Lenard denied the motion which requested a change of venue. Once she did this the scene was set for the trial to begin on 27 November, 2000 a trial so plagued with irregularities that it was both illegal and unconstitutional since the Fifth and Sixth Amendments of the US Constitution were violated. The five were tried in a community completely hostile to them which denied them the opportunity to face an impartial jury and to be tried with due process. The sentences handed down were irrationally long and vengeful, the court having refused to consider any of the attenuating circumstances put forward by the defense. Gerardo Hernández was sentenced to two life sentences plus another fifteen years, Ramón Labañino to life plus 18 years, Antonio Guerrero to life plus 10 years, Fernando González to 19 years and René González to 15 years yet the principal counts on which they were charged were not proven and statements in their favor made by witnesses during the trial were ignored. On 12 November 2002 Mr. Leonard Weinglass, Antonio Guerrero’s lawyer, backed by the other defense lawyers asked the Miami Court for a new trial in a motion presented to the Florida District Court. The arguments on which the motion was based included the unfortunate way the prosecution and the judge had dealt with the original defense demand that the trial be held anywhere but in Miami. It had made this request on several occasions from January 2000 on and attached documents and sworn statements which clearly demonstrated its just nature and the need to restore the legality which had been transgressed, all in the light of new evidence in the interest of justice. On 10 February 2003 Judge Lenard of the South Florida Federal District Court denied this motion without even granting the lawyers a hearing so they could illustrate the reasons behind their motion. The Appeal Between April and May 2003, defense attorneys submitted their appeal allegations to the Eleven Circuit Court of Atlanta.
The main arguments being: 1. Defendants were denied a fair trial as it was impossible to get a fair consideration of their case in that city. In September 29th 2003, the US government submitted a written response to the appeal documents submitted by the Five. The defense submitted its written reply on November 17 of that year, That wrapped up the written presentations to the Court of Appeal. The oral hearing took place in March 10th 2004 in Miami, Florida before three lawyers from the Eleven Circuit Court of Appeal where again, a new trial was requested, out of the City of Miami, aimed at ensuring the guarantees of a due process, which this case has been lacking of from the beginning. On the 9th of August 2005 the three attorneys –Birch, Kravitch and Oakes— who the Atlanta 11th Circuit Court of Appeal gave the case of the Five, made public their decision ruling only to revoke the sentences and order a new trial. In a 93 page serious argumentation, the lawyers left without effect the sentences from that twisted process. The Court recognized the Five’s right to be given a fair court case in a non hostile atmosphere as envisioned in the US constitution. - All circumstances around the case were reviewed: “charges, venue change motions, jury selection, interaction of the Court with the media, evidence made public, the jury’s behavior and their concerns during the process and the motions for a new trial. - A more comprehensive review of the evidence was conducted. Upon submitting its opinion, the Court presented the following arguments: - it recognizes the defense’s arguments in terms of terrorist actions targeting Cuba and it states: “not only did the evidence bring to light all the underground activities of the defendants but that of the several Cuban exile groups and their paramilitary centers which continue to operate in Miami” and it concludes that: “the perception that these groups could cause damage to the jury members that would give a disfavorable verdict to their viewpoints is obvious”. - It identifies Alpha 66, Brigada 2506, Hermanos al Rescate (Brothers to the Rescue), Cuba Independiente y Democrática, Comandos L, Cuban American national Foundation and others, responsible for all terrorist actions against Cuba and it provides vast explanation on the violent actions they have been involved, guns, ammos, and other war weaponry that have been confiscated. - It mentions Luis Posada Carriles as “a Cuban exile with a long record of violent acts against Cuba”. - It confirms that from the very start of the process until a year after its conclusions, the defense attorneys presented an overall of 7 motions requesting a change of venue or a new trial, all of which denied by the Court. - It states in its final ruling that “evidenced submitted to the Miami Court endorsing the motions for a change of venue was overwhelming. - It stresses that the new evidence endorsing the November 2002 defense’s motion “is of such a nature that a new reasonable trial would produce a new result” and by denying it, the Miami Court overlooked the issue of the “interest of justice”. - It concludes that “there was no reasonable way to guarantee a fair case through by postponing it or through a [meticulous] selection of jury; therefore, a change of venue was imperative. - It refers back to the evidences that the Miami Court declined to consider, particularly the testimony of Dr. Lisandro Pérez, professor of Sociology at the Florida International University who states that: “the possibility of choosing twelve imparcial citizens in Miami Dade in a case involving Cuba government’s agents is virtually zero (…) even if the jury would be composed of non-Cuban, as it was in this case” and his explanation that the Cuban created an “ethnic kibbutz “ with strong economic and political influence upon the Miami Dade community. Considerations of the Court - “When jury members are chosen in a community biased by hostility against a defendant (…) the Court must review the different methods available to ensure an impartial jury. These procedure include (…) the granting of a change of venue when the community has been repeatedly and profoundly exposed to a biased publicity”. - “If the feeling of the community is strong, the courts must pay more attention to those feelings within the community rather than to the outcome of the selection of jury, which may not unveil the shade of prejudices that can bias a verdict”. - “Putting together an impartial jury in this community [of Miami] was a far-fetched possibility due to the existing prejudice. The community as a whole is sensitive, permeated by the interests of the Miami-based Cuban exile population.” -The idea that [those Cuban-exile clusters which continue their operations in the Miami area] could inflict damage to the jury members reaching a verdict against their viewpoint, was obvious”. - It is unquestionable that the Elian González publicity continued to exist during the Five Trial, spurring and inflaming passions into the Miami Dade community”. Under these circumstances “there was no reasonable way of ensuring a fair trial by postponing it or by a [careful] process of selection of the jury; therefore, a change of venue was a must. -“An attorney cannot make inappropriate assertions, insinuations or suggestions that can ignite the prejudices and passions of the jury”. His “obligation includes his responsibility to refrain from using inadequate procedures, that may lead to an inaccurate condemnatory ruling”. “In this case, the perfect storm created when the spate of intense feelings of the [Miami] community and the vast publicity prior and during the trial together with the inappropriate references of the Attorney’s Office created the perfect storm that led to the need of a new trial”. Beyond the violation of the defendants’ basic rights, the Court, for the first time in the history of American jurisprudence also admitted the evidences submitted by the defense concerning the terrorist acts against Cuba from Florida, referring to Luis Posada Carriles as a terrorist. Such ruling of the three judges left the Bush Administration astonished. However, it was preceded by Opinion No 19/2005 dated May 27 of last year of the of UN Task Group on Arbitrary Detention which considered the detention of the Five arbitrary and appealed to the US Government to take the necessary steps to put an end to this situation (the interviews of the relatives with representatives of the Human Right Commission theme procedures has been addressed further on). After the ruling, former White House Counsel to George Bush, Mr. Alberto González, current US Attorney General- took the unusual decision of presenting an appeal to the 12 judges of the 11th Circuit, requesting to review the troika’s ruling, a seldom successful procedure, especially with the three judges agreed and expressed such a full well-founded opinion. Today the case is in the hands of the 12 judges of the 11th Circuit Court of Appeal (Atlanta) whose public hearing is scheduled for next February 13, 2006. In January 6, 2006, the Court was handed the two Amicus Brief (documents of friends of the Court) who were registered by the National Lawyers Guild, the National Association of Criminal Defense Lawyers, its Florida Chapter and the National Association of Federal Public Defenders in favor of the Five Cubans imprisoned in the United States. The Attorney’s office submitted a motion requesting the Court to disregard both Amicus alleging that they do not offer a different perspective to that of the defense lawyers of the Five and that they used them to evade limitation in the number of pages of their appeals. The unusual motion of the Attorney’s Office requesting to disregard the Amicus took the legal community by surprise and generated a strong reaction on the part of the criminal defense lawyers who sought the protection of the 6th Amendment for the defendants subject to punishment based upon racial, ideological, religious, ethnic or other irrational prejudices. In its Amicus the National Association of Criminal Defense Lawyers, its Florida Chapter and the National Association of Federal Public Defense explained the needs to guarantee an impartial process as enshrined in the US Constitution. Its importance lies in the fact that one of the endorsing organizations is precisely that of the Florida Criminal Defenders, which includes the only Association of that kind in the Miami Dade County. The national Lawyers Guild, however, was led to the right of having an impartial jury and the need of a due process, according to the Constitution and its 6th Amendment, stressing the Florida Court’s mistake of not granting the change of venue as requested by the defense and the inappropriate behavior of the Government during the process. Once accepted by the Court, the Amicus become part of the documentation of the case in the appeal process. According to the procedures established by the Court of Atlanta, a day will be scheduled for an oral hearing in the week of February 13, aimed at clearing the doubts or the questionings of the 12 judges with both parties: the Government and the Defense. In 2005, 8 legal experts 82 they arrived at the conclusion that the detention of the Five was arbitrary. Therefore, they remain abducted in the US prisons. Their immediate release is the only way to put an end to the violations of the human rights of the Five. It is necessary to continue denouncing at international level the wheedled legal process against the Five Cubans and demanding its immediate release. Facts which show that the trial of the five young Cubans, anti-terrorist fighters and defenders of their people’s human rights, was rigged and manipulated for political reasons 1. Miami: an utterly hostile city where justice is impossible In violation of the In violation of UN Standard Minimum Rules for the Treatment of Prisoners, article seven of the International Covenant on Civil and Political Rights and even the 8th Amendment to the United States’ Constitution, following their arrest, the Cuban Five, who had committed no breach of discipline were kept in solitary confinement in punishment cells; their first time in solitary confinement lasted 17 months, the second 48 days. In April of 2003, the Cuban Five were once again subjected to the horrors of “The Hole”. On this occasion, US government authorities wanted to hinder the preparation of the appeal documents that were submitted to the Eleventh Circuit Court of Appeals in Atlanta and the request for a just and unbiased trial in a place other than Miami. Having repeatedly been denied visas by US authorities, Adriana Pérez and Olga Salanueva have not been able to visit their respective spouses, Gerardo Hernández and René González, since the time of their arrests five years ago. The decision also affects little Ivette, René’s daughter, who does not know her father, as she was four months old at the time of his arrest.81 In violation of the obligations and duties for Consular Relations accepted when the United States signed the Vienna Convention, the State Department has made it difficult for Cuban consular officers to exercise their duty and right to offer consular assistance to the Cuban Five and for the Five to receive this assistance. 6. There were neither violent actions nor harms perpetrated against anyone or anybody’s property The injustice of convicting Gerardo Hernández for premeditated murder, when no evidence, witnesses or even circumstantial evidence to prove his guilt or link him to any crime of this nature was presented is as alarming as it is scandalous. Although there was no evidence or witnesses against him, he was alleged to be responsible for what happened on February 24, 1996, the day when Cuban authorities downed two aircraft that repeatedly invaded its national territory. In judging what the Republic of Cuba did that day in legitimate defense of its territory, the court violated the Act of State Doctrine that has been clearly and repeatedly recognized by the Supreme Court of the United States. By passing judgment on acts of the Cuban State, the court in Miami violated International as well as American Law, and in attributing these acts to Gerardo Hernández, who was not representing that State, who was not a member of the Cuban Air Force, nor took part in any of the events that occurred that day, the court grossly violated the basic precepts of Penal Law. It could be said that Gerardo Hernández is the only person in the world serving two life sentences one of which is for an offence he had not been charged with when the sentence was passed. As the trial unfolded, the prosecution found itself obliged to acknowledge in writing, on 25 May 2001, that it could not prove the charge for which Gerardo was given one of his life sentences and asked that it be modified. The prosecution said: “In the light of the evidence presented in this trial this presents an insurmountable hurdle for the United States in this case and will likely result in a failure of the prosecution on this count since it imposes an insurmountable barrier to this prosecution”. 7. US Government withheld evidence and proofs of terrorist actions against the Cuban people at the trial of the Cuban five. 10. The politicized and irrationally excessive nature of the sentences. The judge did not accept any of the attenuating circumstances proven during the trail but she did accept the prosecution’s request to increase the seriousness of the charges. Gerardo was given two life sentences, plus 15 years; Ramón was given one life sentence, plus 18 years; Antonio was given one life sentence, plus 10 years; Fernando was sentenced to 19 years in prison and René to 15 years. The Cuban Five are political prisoners who are denied this status and held under the same conditions as and mixed in with common criminals, in violation of article 8 of the UN’s Minimum Rules for the Treatment of Prisoners. 12. The Real Problem: Terrorists who get off Scot Free. Despite all this, and in obvious compliance with US government instructions, the vast US media machinery paid not the slightest attention the unjust and illegal trial of the Cuban Five, with the exception of those controlled by the Cuban American terrorist mob, which, of course, stirred up a spirit of vengeance and hatred towards the Cuban heroes, a veritable witch-hunt of the five anti-terrorist fighters. In addition to this, the National Lawyer’s Guild, which represents nearly 5,000 lawyers in the United States, has presented a formal request to the court, calling for a retrial in an unbiased setting. This request was backed by the International Association of Democratic Lawyers, a body with members from 90 different countries and consultative status at the UN’s Economic and Social Council. • Obstacles placed in the way of consular visits The Five have been the favorite target in the Bush administration’s escalating hostility and aggressiveness towards our people. Since 2003, more and more obstacles have been placed in the way of consular visits to the Five and of their contacts with their families. The delays in granting visas and the refusal to grant visas to Adriana Pérez and Olga Salanueva, the wives of Gerardo Hernández Nordelo and René González respectively are two of the cruelest and most inhumane acts ever seen and ones that violate International Law, in particular international human rights instruments, and even US law. In March 2003, the Sate Department cancelled planned consular visits to Gerardo and Fernando; this coincides with the imposition of new restrictions on the movements of our officials in Washington. In June 2003, the State Department took the first steps that ultimately led to a complete elimination of any possibility that Cuban consular official with accreditation in Washington could accompany relatives of the Five on their prison visits. During family visits in June, July and August of last year, the State Department imposed an additional condition: consular officials were no longer allowed to stay for the weekend with the relatives in the towns closest to the prisons but had to return to Washington. The relatives of the Five were left with no consular care and attention when they had to deal with emotions aroused by seeing their loved ones after such a long wait. The first time that the State Department denied consular officials permission to accompany relatives was in December 2003 when they denied them permission to accompany Gerardo’s family. The excuse given was that this was a journey of a personal and not consular nature. It must be remembered that the relatives of the Five Cuban human rights defenders have to overcome the very complex obstacle course installed by the blockade on Cuba just to get to the United States. And this is compounded by the fact that the Five heroes are imprisoned in very remote places. The relatives are therefore obliged to change planes several times, travel hundreds of kilometers on highways stay in completely unfamiliar towns and get to the prisons which are in locations of difficult access and do all of this completely unaided. The mothers, wives and other relatives of the Five have dealt with all this cruelty —and more—with unflinching courage. The violations of Adriana Pérez and Olga Salanueva’s human rights —the wives of Gerardo Hernández Nordelo and René González respectively— are even crueler. On 7 January 2004 MINREX published a statement denouncing the absurd revanchist behavior of US authorities. In Note 845 from the US Interests Section in Havana dated 23 December 2003 they once again returned the visa application forms submitted by Olga Salanueva and Adriana Pérez informing the ministry that they would no longer accept visa applications for these two women sent by MINREX but that Olga and Adriana must submit their visa applications personally. From 2 February 2002 on, the US Interests Section in Havana began to apply the same measures to the rest of the family members of the Five, that is, from that date forward their visa applications were not to be submitted by MINREX but in person by our comrades’ relatives. On 27 February 2004, the State Department — in open violation of the responsibilities assumed under the 1961 Vienna Convention on Consular relations— sent a diplomatic note to the Cuban Interests Section in Washington that henceforth consular visits to the Five by our officials in Washington would only be authorized once every three months. This hostile act received a reply from Cuba in MINREX statement “A new outrage against our Five heroes” issued 4 March 2004. Among other things it denounced the new restrictions on the consular activities of our officials in Washington. The refusal to grant visas to Adriana Pérez and Olga Salanueva is not the only flagrant violation of the rights of the Five and their families to keep in contact through periodic visits. They have also been long delays in granting visas to other family members. In their inhuman behavior, US authorities turn a blind eye to the fact that several of the relatives of the Five heroes are already of advanced age. Refusal to grant visas to Adriana Pérez and Olga Salanueva, the wives of Gerardo Hernández Nordelo and René González. respectively. For years, the US authorities have refused to grant visas to Gerardo Hernández and René Gonzalez’s wives. Not only is the visa denial a violation of the human rights enshrined in different international instruments, but also a violation of the US Constitution, as expressed by the US Supreme Court in the Overton Vs. Bastea case. It is even a violation of the regulations of the Federal Bureau of Prisons (28 CFR Sec. 540.40). the continued isolation of Gerardo and René from their relatives is completely unjustified from the legal viewpoint and it is morally intolerable. Last refusal to grant visa to both wives, dates back to 2005. Adriana Pérez’ Case • In practice, the United States government does not have nor could have any evidence or any indication whatsoever to back its contention that Adriana’s presence in the United States could jeopardize the interests or security of that nation. • Adriana’s name does not appear on the indictment listing the charges that were falsely laid against Gerardo nor on that accusing any of his four comrades. • Her only reason for requesting a US entrance visa is to visit her husband, Gerardo Hernández Nordelo who is serving two life sentences plus 15 years in Victorville prison in California. • On 29 March 2002 the United States government granted her a visa after a process of interagency consultation, which is what usually happens when a Cuban citizens applies for a visa. In July 2002, she went to the US to visit her husband but when she landed at the airport in Houston, Texas she was arrested and interrogated in a humiliating manner for 11 hours, finally was not allowed to enter the United States and had to return to Cuba. • If there was any concrete evidence against her, US authorities could have arrested her when she was refused entry to the United States. • In April 2003, the United States government once again denied her a visa, invoking section 212-3 (A) of the US Immigration and Nationality Act which denied entry to the country to those it considers wish to do so in order to engage in acts of espionage or sabotage. • In June 2003 she once again applied to the United States government for a visa which she was once again denied. In April 2004, Adriana was again denied a visa. On that occasion the refusal was based on Section 212 (A) (3) (a) of the Immigration and Naturalization Act applied in this case to those considered to affect national security. As yet another example of the lack of pretexts to take up this inhuman and cruel measure, Adriana was refused a visa again in 2005 alleging she could be a possible emigrant (Section 212) Olga Salanueva’s Case The last time she saw her husband was on the evening before his trial began in November 2000. In this case the situation is even more inhumane because Olga has a little daughter who is the victim in this tragedy. • When her husband René González was arrested, Olga had legal residence status in the United States and had been living there for two years and two months. • If the United States government had thought she was an infiltrated agent, two years and two months was more than enough time to lay charges against her. Nevertheless she was neither accused of any federal offence nor were any federal charges laid against her. • In August 2000, she was arrested by immigration authorities and deportation proceedings against her were begun. One month earlier, July 2000, the prosecution had offered her husband a deal, to wit, if he would admit to the two counts on which he was accused, (conspiracy and unregistered foreign agent) they would not deport his wife, Olga Salanueva. • René González refused the deal with dignity; Olga was deported to Cuba. • On 29 March 2002, the United States government granted her a US entry visa so she could visit her husband. • On 23 April 2002 the United States government revoked her visa claiming to have discovered information according to which Olga Salanueva might be inadmissible under the provisions of Section 212 (a) (3) (B) of the Immigration and Nationality Act which denied entry to US territory to those with connections to terrorist activities. In fact, her husband, René González was not accused of having any ties whatsoever to terrorism but quite the opposite of having acted specifically against terrorist groups. It is, therefore absurd to try to slander Olga in such a way. • On two later occasions, October 2002 and April 2003, the US government once again denied Olga a visa. • On the latest of these occasions, the State Department alleged that she was denied a visa as per Section 212-3 (A) of the Immigration and Nationality Act which denied entry to the United States to those it thinks wish to do so in order to engage in acts of espionage or sabotage. This is yet another absurd argument, all the more so since her husband was not accused of espionage but of being an unregistered foreign agent and of conspiracy. • In June 2003, she once again applied to the United States government for an entry visa which she did not receive. • In October 2003 and April 2004 the United States government once again denied Olga a visa and both times changed the reasons for not giving her a visa. In 2005, Olga was one more time denied the possibility of taking her young daughter to meet her father. This time the US Interest Section in Havana told her she could no longer apply for visa as she had been deported from that territory and that only the State Department could undo that decision (Section 212 (a)(9)(A)(ii) Ivette González’ Case • The refusal to issue a visa to Olga Salanueva means that one of her daughters, Ivette González, a little child who is only 6 years old is prevented from seeing her father. • Ivette González Salanueva was born on 24 April 1998 in Miami, Florida. In the first four months of her life when she lived with her parents and sister Irma González, she did not face too much difficulty. • On 12 September 1998, Ivette’s life and that of her family changed cruelly and dramatically. That was the day when the FBI arrested René González Sehwerert without giving him a chance to say goodbye to his family. • On 3 August 2000, René received a letter from the prosecution offering to reduce his sentence if he collaborated by informing on the other people charged in the same case. In the letter he was warned that since Olga was not an American citizen, her immigration status could be affected if he refused to collaborate. René turned his back on this attempted blackmail and shortly thereafter the INS arrested Olga. • Olga should have been sent to an internment centre when she was accused of having broken the Immigration Law, but on 16 August 2000 she was put in Fort Lauderdale jail for three months, a prison for inmates with a record of misconduct. Ivette was cared for by her paternal great-grandmother. Olga was not allowed to have visits with her daughters where she could make physical contact with them; she was only allowed to see them once through glass. Therefore she preferred that Ivette not be brought to see her. On 22 November 2000 she was deported and Ivette traveled with her paternal grandmother, Irma Sehwerert, Olga has lived in Cuba since then with her two daughters. Ivette has not seen her father for more than four years. • If Ivette is an American citizen what has prevented her from seeing her father during the last four years? • The US Supreme Court has recognized intimate family ties and given them protection under the First Amendment to the US Constitution and under the right of association recognized by that constitution. As early as 1923 in the famous case of Pierce vs. Society of Sisters, the court referred to family relations as something central to Civil Law and deserving of greater protection from state interference. What is involved here is one aspect of the right of association, not so much indicative of this right but an intrinsic part of it and one which plays a fundamental role in the emotional and psychological development of children as the Supreme Court confirmed in Roberts vs. United States Jaycees, 1984. • On 16 June 2003, the Court once again ruled on this subject saying in Overton vs. Bazzetta that the Constitution, if it protects anything, protects the intimate personal relations that develop inside the family unit. In the ruling on the Overton vs. Bazzetta case the court said: “It is reasonable to ensure that a visiting child is accompanied and supervised by those adults charged with protecting and serving the child’s best interests.” • In her short life, Ivette González has gone through countless abrupt changes, major separations and emotionally traumatic situations caused by none other than the United States government. Olga Salanueva had managed to provide Ivette with a stable home and an affectionate family environment in Cuba. The most important factor has been the permanent presence of the mother as the main person providing affection. To expose this child once again to change, to a journey to another country and to a visit to a federal jail without her mother’s company would be to play irresponsibly with factors that could have a permanent, negative affect on her psyche. • According to the recommendations of experienced child psychology experts, Ivette should be accompanied by her mother when she goes to see her father since she cannot be separated from her main care giver because this could cause her to suffer anxiety and have other negative psychological effects. • The refusal to issue a visa so that Olga Salanueva and Ivette can go to visit René together is not only arbitrary and capricious but it also violates Ivette’s right, as per the First Amendment of the US Constitution, to maintain a relationship with her father. An arbitrary, unconstitutional hurdle is being place in the way of René’s, his wife’s and his daughter’s right to free association. • The Convention on the Rights of the Child is directly relevant to Ivette’s case. According to Article 10 of the Convention: “A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents”. •The only exceptional circumstance which is coming between Ivette and her father is the arbitrariness and arrogance of the Bush administration and its contempt for the cries of a 6 year old girl. • This six year old has just learnt to read and write and the first word she learned to read was solidarity, rightly so. Interviews of some of the relatives of The Five in the Commission on Human Rights. Several of the relatives of the Five have been interviewed regarding several of the agenda items mechanisms of the Commission on Human Rights and have met with officials from the office of the United Nations High Commissioner for Human Rights during the Commissions 59th and 60th period of sessions in order to denounce the flagrant violations of the human rights of the Five and their families. Olga Salnueva, Ivette González and Adriana Pérez were present at the Commission’s 59th period of sessions. Adriana, Olga and little Ivette were once again present at the 60th period of session as were Magalys Llort, Fernando González’ mother. Below is a list of the representative of the agenda mechanisms and the OUNHCHR officials who were contacted by relatives of the Five. 59th session • Deputy High Commissioner for Human Rights, Mr. Bertrand Ramcharan All of these people were given a report denouncing the violations of the human rights of the Five Cuban human rights defenders. Similarly, on behalf of Cuban NGOs that have consultative status with ECOSOC, the relatives delivered a document denouncing the violations committed by US authorities of the human rights of the Five Heroes and their families. No reply came from any of these mechanisms during the whole of 2003. 60th session (2004) • The OUNHCHR’s coordinator for Latin America and the Caribbean, Mr. Dougan-Beaca. The relatives of the Five delivered documents denouncing the violations of the human rights of their husbands and sons.
61 session CHR 2005
. Mrs. Leila Zerrougui, Chairwoman of the United Nations Working Group on Arbitrary Detention. . Mr. Leandro Despoy Special Rapporteur of the UN Human Rights. Commission on the independence of judges and lawyers. . Mr. Andres Pedersen, High Commissioner’s Representative for North America. . Mrs. María Francisco Ize Charrin, Secretary of the HRC Bureau. . Assistant to the Rapporteur against Torture. . Assistant to the Rapporteur of Violence against Woman. Statement of the Group on UN Working Group on Arbitrary Detention The only theme procedure of the HRC that has publicly stated its views on the Five anti-terrorist Cuban fighters came from the UN Working Group on Arbitrary Detention. This Working Group declared the detention of Antonio Guerrero, Fernando González, Gerardo Hernández, Ramón Labañino and René Gonzáez, arbitrary and urged the US Government to immediately adopt the necessary measures to solve this solution 84 The Panel Members do their job and do not represent any government. The five members were then: Mrs. Manuela Carmena Castrillo (Spain), Mrs. Leila Zerrougui (Algeria), Mrs. Soledad Villagra (Paraguay), Mr. Tamás Ban (Hungary), and Mr. Seyed Mohammad Hashemi (Iran). There was no Cuban in the group. The Group also adopted such decision after considering the request presented by relatives of the Five Cubans and after assessing the arguments provided by both the relatives and the US Government. According to that decision, the Group based its conclusion on the following facts:
The White House ignored this opinion. According to an article published in the Miami Herald on July 20, 2005, the State Department said the “ridiculous and confusing ruling of the UN Working Group on Arbitrary Detentions would not be accepted. A State Department Senior officer said to the Herald that the “ruling was a “politically motivated” maneuver orchestrated by the Cuban government. “We have a number of ideas on how to respond”, said the anonymous officer, but made it clear that he was speaking officially on behalf of the US government. The correspondence between relatives of the Five and several of the thematic procedures of the Commission on Human Rights continued in 2004 Since 2003, relatives of the Five Cuban anti-terrorist fighters have been in communication with representatives of the theme procedures of the CHR to denounce the violation of their human rightsand that of their beloved ones’. Following a chronology of this exchange.
Conclusions The Bush administration has slaked its thirst for vengeance and hatred on our Five heroes using various kinds of arbitrariness, abuses and new violations of their most fundamental human rights. They have shown Bush and his protégés in the Miami terrorist mob an unmistakable way that none of these measures can scare them, nor weaken the resolve with which they have thus far defended the right of all to enjoy, first and foremost, the right to their own existence. By infiltrating the Florida-based terrorist and criminal organizations, they unveil the hypocrisy and double standards of the alleged all-out fight against terrorism the US so much brag about. The August 9, 2005 ruling of the 11th Circuit and the Opinion 19 of May 27, 2005 of the Working Group on Arbitrary Detentions confirmed the arbitrary character of the detention of the Five. Deprival of freedom, when it is arbitrary and against the law, is equivalent to abduction. In this case, the abductors are the US authorities and its abductees have been confined under such conditions for over 7 years. Just like their relatives, the Cuban people will not rest until justice is made and the Five Heroes can return to their Homeland with dignity. To accomplish this, the support of honest men and women from all over the world must be accounted for. They deserve understanding and assistance, they deserve justice and claim their truth to be spread and known. Just like the relatives, the Cuban people will not rest until justice is done and the Five Heroes can return home to their Motherland with dignity. And to do this, we need the support of honest men and women all over the world. They deserve understanding and help, they deserve justice and demand that the truth about them becomes known and triumphs.
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