CHAPTER 4: THE HUMAN RIGHTS OF FIVE YOUNG CUBAN ANTI-TERRORIST FIGHTERS, WRONGLY IMPRISONED IN THE UNITED STATES, AND THOSE OF THEIR FAMILIES, ARE GROSSLY VIOLATED FOR SPURIOUS POLITICAL MOTIVATIONS.

• Conclusions
• Annex to the Chapter

Five young Cuban anti-terrorist fighters and human rights defenders of the Cuban people —René González Sehwerert, Ramón Labañino Salazar, Gerardo Hernández Nordelo, Fernando González Llort and Antonio Guerrero Rodríguez— continue to be arbitrarily imprisoned for more than eight years in United States jails.

The U.S. government has been subjecting these five young men to systematic and sustained practices of torture and sufferings or 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, arrived in the United States from Cuba with the mission to infiltrate armed and mercenary organizations established in the Cuban exile community and, thus, disclose their potential terrorist activities against Cuba. These organizations operate with impunity, and are even protected in the State of Florida.

The five are intellectuals, simple men, two of them are U.S. citizens and three of them have children. Not one of them committed a single violent act. The acts 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, well-being and development. They were motivated by nothing other than their consciousness 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 decisive 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.

The criminal acts perpetrated by those terrorist groups against Cuba are recorded in declassified official documents of the U.S. government itself and have been presented in this document.

Overview of the case:

On September 12, 1998, the five were arrested and taken to the Miami headquarters of the FBI where they were interrogated non-stop for six hours without the presence of a lawyer.

On September 14 they were taken before a Miami district court where they were appointed defense lawyers and given date for a bail hearing; the bails were denied in the hearing on September 29 of that same year.

From January 5, 2000 on, the defense lawyers began to submit motions asking for a change of venue since it would not be possible for the defendants to have a fair trial in Miami, as guaranteed under the Fifth and Sixth Amendments of the U.S. Constitution.

On March 20, 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 Cuban Five in Miami.

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 July 27, 2000, Judge Joan Lenard denied the motion requesting a change of venue. With this, the scene was set for the trial to begin on November 27, 2000; a trial so plagued with irregularities that it was both illegal and unconstitutional since the Fifth and Sixth Amendments of the U.S. 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 imposed 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 sentence plus 18 years; Antonio Guerrero to life sentence 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 November 12, 2002, Mr. Leonard Weinglass, Antonio Guerrero’s lawyer, backed by the other defense lawyers asked the Miami district 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 February 10, 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, the defense attorneys submitted their appeal allegations to the Eleventh Circuit Court of Atlanta.

The main arguments being:

• Defendants were denied a fair trial as it was impossible to get a fair judgment of their case in Miami.

• Conspiracy to commit espionage was not proven beyond a reasonable doubt.

• Not only was conspiracy to commit murder against Gerardo Hernández not proven beyond a reasonable doubt –as admitted by the government itself, but the accusation is unprecedented in the U.S. Law, as the shooting down of the aircrafts was an act of State protecting its sovereignty, its land and its people.

• Sentences were excessively long and violated the adequate procedures.

• The secrete proceedings called upon by the government and the conduction of the trial were key violations of the Constitution of the United States.

• Whatever act of the five defendants, all of them without weapons and in connection with an alleged espionage were justified by the Doctrine of the Necessity, hence, excusable in Law.

On September 29, 2003, the U.S. government submitted a written response to the appeal documents submitted by the Cuban 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 10, 2004, in Miami, Florida, before three judges from the Eleventh 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 August 9, 2005, the three judges—Birch, Kravitch and Oakes— appointed by the Atlanta Eleventh Circuit Court  of Appeal to consider the case of the Five, made public their decision ruling only to reverse the convictions and remand a retrial.

In a 93 page serious argumentation, the judges 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 U.S. Constitution.

The Court said that to adopt this ruling:

- All circumstances around the case were reviewed: “the indictments, the motions for change of venue, voir dire, the Court’s interactions with the media, the evidence presented at trial, jury conduct and their concerns during the trial, and the motions for new trial.”

- A more extensive review of the evidence than is typical 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 states: “the evidence at trial disclosed the clandestine activities of not only the defendants, but also of the various Cuban exile groups and their paramilitary camps that continue to operate in the Miami area” and concludes that: "the perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable.”

- It identifies Alpha 66, Brigade 2506, BTTR (Brothers to the Rescue), Independent and Democratic Cuba (“CID”), Comandos L, Cuban American National Foundation and others, responsible for numerous terrorist actions against Cuba and it provides vast explanation on the violent actions they have been involved in, guns, ammos, and other war weaponry that have been confiscated.

- It mentions Luís Posada Carriles as “a Cuban exile with a long history of violent acts against Cuba”.

-It confirms that from the very start of the process until a year after its conclusion, the defense attorneys presented an overall of 7 motions requesting a change of venue or a new trial, all of which were denied by the Court.

-It states in its ruling that “The evidence submitted [to the Miami District Court] in support of the motions for change of venue was massive.”

- It underscores that the new evidence endorsing the November 2002 defense’s motion “is of such a nature that a new trial would reasonably produce a new result” and that, by denying it, the Miami district court overlooked the issue of the “interests of justice”.

- It concludes that “there was no reasonable means of assuring a fair trial by the use of a continuance or voir dire; thus, a change of venue was required.”

- It refers back to the evidence that the Miami district 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 selecting twelve citizens of Miami-Dade County who can be impartial in a case involving agents of the Cuban government is virtually zero (...) even if the jury were composed entirely of non-Cubans, as it was in this case” and his explanation that the Cuban created an “ethnic enclave” which exercised strong economic and political influence within the Miami-Dade County community.

Considerations of the Court

• “When the jurors are to be drawn from a community which is “already permeated with hostility toward a defendant (...) the Court should examine the various methods available to assure an impartial jury. Those methods include (…) granting a change of venue when the community has been repeatedly and deeply exposed to prejudicial publicity.”

• “If community sentiment is strong, courts should place emphasis on the feeling in the community rather than the transcript of voir dire which may not reveal the shades of prejudice that may influence a verdict.”

• “Empanelling such a jury in this community [Miami] was an unreasonable probability because of pervasive community prejudice. The entire community is sensitive to and permeated by concerns for the Cuban exile population in Miami.”

• “The perception that these groups [which continue to operate in the Miami area] could harm jurors that rendered a verdict unfavorable to their views was palpable."

• “It is uncontested that the publicity concerning Elián González continued during the [Cuban Five] trial, “arousing and inflaming passions” within the Miami-Dade community”. Under these circumstances “there was no reasonable means of assuring a fair trial by the use of a continuance or voir dire; thus, a change of venue was required.”

• “A prosecutor may not make improper assertions, insinuations or suggestions that could inflame the jury’s prejudices or passions.” Such an "obligation includes a duty to refrain from improper methods calculated to produce a wrongful conviction.”

• “Here, a new trial was mandated by the perfect storm created when the surge of pervasive [Miami] community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references”.

Beyond acknowledging the violation of the defendants’ basic rights, the Court, for the first time in the history of American case law 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 Working Group on Arbitrary Detention which considered the detention of the Five arbitrary and appealed to the U.S. Government to take the necessary steps to put an end to this situation.
 
After the ruling, former White House legal counselor to George Bush, Mr. Alberto González--current U.S. Attorney General--took the unusual decision of presenting an appeal to the 12 judges of the Eleventh 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.

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 prosecution submitted a motion requesting the Court to disregard both Amicus arguing that they do not offer a different perspective to that of the defense lawyers of the Five and that they used them to evade limitations in the number of pages of their appeals.

The unusual motion of the prosecution 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 Sixth Amendment for the defendants subject to punishment based upon racial, ideological, religious, ethnic or other equally irrational prejudices.

In its Amicus, the National Association of Criminal Defense Lawyers, its Florida Chapter and the National Association of Federal Public Defenders explained the need for the defendants to have the guarantees of an impartial process as enshrined in the U.S. 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 Amicus of the National Lawyers Guild, however, focused on the right of having an impartial jury and the need of due process, according to the U.S. Constitution in its Sixth Amendment, stressing the Florida district court’s mistake of not granting the change of venue as requested by the defense and the misconduct of the Government during the process.

Once accepted by the Court, the Amicus become part of the documentation of the case in the process of appeal.

An unusual en banc decision by the Atlanta Court of Appeal

On August 9, 2006, exactly one year after a three-judge panel of the Court of Atlanta unanimously ruled to reverse the convictions of the Cuban Five, the court sitting in banc overturned that decision by a majority and ratified the convictions, denied the holding of a new trial—fair and in accordance with the law—and referred the case back to the panel to consider the remaining aspects.

The decision ratified the—manipulated and forced—ruling of the Miami district court, thus reinstating the decision that the venue should not be changed. The three-judge panel must now decide on the nine other aspects pending appeal.

In its 120 pages, the Court document devotes almost half of it for the arguments of the ten judges acting against the defense and the rest for the two judges who confirmed their points of view.

The two members of the panel with a right to participate in the vote, Byrch and Kravitch, both of them members of the panel of August 9, opposed such decision and reiterated that “this case is one of those rare, exceptional cases that warrants a change of venue because of pervasive community prejudice making it impossible to empanel an unbiased jury.”

The decision handed down by the Court of Atlanta fails to take into account the environment of violence and intimidation that prevails in Miami and the most recent events that took place in that city, published by its own local press, including the seizing of cache of arms for terrorist actions against Cuba, public statements made by terrorists who recognize their crimes and the barring of children’s books due to its objective approach on the island. There is abundant evidence ratifying Miami as the only city where a fair and impartial trial for the Cuban Five could have not been held.

Also ignored has been the decision made by the UN Working Group on Arbitrary Detentions which ruled that, it arises from the facts and circumstances in which the trial took place and from the nature of the charges and the harsh sentences given to the accused, that the trial did not take place in the climate of objectivity and impartiality which is required in order to conclude on the observance of the standards of a fair trial, as defined in Article 14 of the International Covenant on Civil and Political Rights. It declared arbitrary their detention and urged the U.S. government to immediately adopt the necessary steps to remedy the situation that they have been subjected to.

The legal process of the Cuban Five continues to drag on. On next September 12, nine years will be marked of the arrest of five men who should have never been in prison. In spite of their innocence, they are still jailed in the United States, confined to maximum security prisons, with limited—and in some cases deprived of—contact with their close relatives.

The more than 200 pages of contradicting rulings on the case of the Cuban Five reveal that it is impossible to look at it from a legal perspective and in terms of the American Law, as this is an essentially political trial and, in particular, subjected to the United States anti-Cuban policy.
 
Still there are nine charges in appeal process to the Court of Atlanta and change of venue of the trial will have to go to the Supreme Court of Justice, also dominated by the conservatives. As American attorney Leonard Weinglass said “the road may be long”, but there is the conviction in the Five, the Cuban people and in the defense counsels—the entire American people—that eventually justice will prevail.

In October 2006, the Court of Atlanta requested supplemental brief on the case from the prosecution and the defense. On November, the defense submitted the brief which includes nine outstanding elements pending in the appeal, but emphasizing four:

First: The dismissal of count 3, murder conspiracy, which was never proved.

Second: espionage conspiracy was not proved and, in any case, the life sentences that were imposed based on that conviction were excessive and out of the standards given to a judge to sentence the three for life.

Third: prosecutorial proceedings during trial violated the procedural rules. There was prosecutorial misconduct, particularly during the closing argument to the jury. The prosecution asked the jury to find the Cuban Five as guilty because, using their own words “they came to the United States to destroy the United States.” This was repeated three times. This element is both relevant to the count on espionage conspiracy as it is in the murder conspiracy count.

Four and last: The defense argued extensively on the way the judge dealt with two issues relating to CIPA--Classified Information Procedures Act. In this case there were no secret documents involved. However, the government classified each of the documents of the defendants as top secret and later argued that, as a result, they classified under the CIPA provisions. Defense lawyers were denied access to some of the documents presented by Cuba.

On 20 December the Prosecution submitted their supplemental brief.

It is very difficult to predict how long the panel can take before they make a decision. Suffice it to recall that it took 16 months to decide on the venue issue.

Meanwhile, human rights violations continue against the Cuban Five and their families. There should have never been any trial. They should have never been arrested.

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

The guarantee of an impartial jury was completely ignored in holding a farce of a trial against the Cuban Five in Miami, an utterly hostile city, seriously biased against the defendants. The Fifth and Sixth Amendments of the U.S. Constitution were grossly violated.

Miami is the U.S. city where terrorist groups have set off bombs and violently attacked people who have just attended concerts by Cuban bands, and where, in defiance of rulings handed down by competent courts, Elián González was kept hostage for four months.

2. Violation of the principle of due process of law

Penalties for serious crimes were applied without a single piece of concrete and precise evidence being adduced, in violation of the principle that the Prosecution must prove the alleged crimes beyond all reasonable doubt.

The defense’s right to freely review and examine the documents presented as evidence was constantly constrained, as the documents were classified under the CIPA (Classified Information Procedures Act). Its declassification was carried out in an arbitrary fashion, thus defense lawyers were often prevented from having access to the information with enough time to evaluate the facts adequately; similarly, a number of requests by the defense asking that documents throwing light on the facts be admitted as evidence were denied.

The Prosecution was allowed to manipulate witnesses at all times and a press campaign aimed at intimidating the latter was mobilized, making it difficult or preventing facts and information that constituted evidence favorable to the defendants from being presented to the jury and the Court.

3. Cruel forms of imprisonment intended to create serious obstacles for the defense; which caused the Cuban Five and their relatives torture and suffering which constitute flagrant violations of their human rights

In violation of the UN Standard Minimum Rules for the Treatment of Prisoners, article seventh of the International Covenant on Civil and Political Rights and even the Eighth 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, U.S. 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.

4. Mistreatment and psychological and emotional torture perpetrated against the relatives of the Cuban Five young men

Having repeatedly been denied visas by U.S. 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 more than eight 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.

In clear violation of the obligations and duties for Consular Relations undertaken pursuant to the Vienna Convention on Consular Relations, the State Department has made it difficult for Cuban consular officials to provide consular assistance to the Cuban Five and for the Five to receive this assistance.

5. Defenders of their People’s Human Rights? Yes!. Spies? ¡no!

In an unprecedented move, the Cuban Five were convicted for alleged espionage against the United States, without any evidence or testimonies having been adduced to substantiate the claim that the national security of the United States or the interests of its people were damaged or violated in any way. There were witnesses who specifically refuted the charges that the Cuban Five had carried out acts of espionage; these included former CIA chief, General Clapper, who was called as an expert witness for the prosecution, and former high ranking officers of the U.S. Armed Forces, such as Generals Wilhelm and Atkeson, Admiral Carroll and Colonel Buckner.

6. There were neither violent actions nor prejudices 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 the events of February 24, 1996, the day when Cuban authorities downed two aircrafts 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 district 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 Criminal 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 offense 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 May 25, 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. U.S. Government withheld evidence and proofs of terrorist actions against the Cuban people at the trial of the Cuban Five.

The U.S. government presented several motions to exclude from the proceedings any consideration of the activities of counterrevolutionary terrorist groups in Miami, which provided the logical reason for what the Cuban Five did.

In order to achieve this aim, the Prosecution prepared and presented a motion to have renowned terrorists pleading the Fifth Amendment of the U.S. Constitution. It thus prevented those individuals from testifying and making statements about the terrorist acts they have perpetrated against the Cuban people, key elements in constructing an argument explaining the motivations of the Cuban Five.

8. Voir dire irregularities.

In no other jurisdiction would the defendants have found themselves forced to use 9 of their 15 peremptory vetoes just to eliminate from the jury people with connections to anti-Cuba groups that operate in the southern Florida.

The prosecution rejected six candidates for jury service, with no other reason than the fact that they were Afro-Americans.

9. The Jury’s suspiciously unusual behavior.

Despite having heard 74 witnesses (43 for the prosecution and 31 for the defense) over a period of nearly seven months, the Miami jury deliberated for a very short time and announced the exact date and time on which it would pronounce its verdict many days in advance. It requested no clarification and expressed not a single doubt, despite the complexity of the task at hand: to reach a decision on the basis of documents containing tens of thousands of pages and on the many charges brought against five defendants. The jury brought in a guilty on all counts verdict for the Cuban Five in record time.

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 aggravations to the charges. As it has already been explained, 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 eight of the UN’s Minimum Rules for the Treatment of Prisoners.

11. The Cuban Five were spread in five separate prisons, in five different States, in the remotest places in the United States.

The Cuban Five are located very far away from the offices of their respective lawyers in the United States, making any contact with them, as well as with relatives and friends, extremely difficult. Attempts are made to make the job of their legal representatives as difficult as possible.

12. The real problem: Terrorists with impunity.

During their trial, the Cuban Five demonstrated that, while in the United States the only information they tried to obtain was connected to monitoring the Cuban-American terrorist José Basulto and Brothers to the Rescue, the organization he founded. They also tried to obtain information about the activities of other renowned Cuban-born terrorists who operate against Cuba from the United States with impunity. These include Orlando Bosch, responsible for the midair bombing of a Cuban commercial aircraft, killing 73 people including the entire Olympic fencing team.

Another terrorist, whose activities were being monitored by the Cuban Five, was Luis Posada Carriles. He was also responsible for the 1976 terrorist attack on the Cuban civil aircraft which killed the 73 people on board and is one of those who plotted to assassinate the Cuban Head of State, Fidel Castro. The plan was to place several bombs in the auditorium of the University of Panama and detonate them when the Cuban leader went there to meet with thousands of Panamanian students and teachers.

Working with money supplied by the Miami-based Cuban American National Foundation, Posada Carriles orchestrated the terrorist bombings in Cuban hotels in 1997. These killed an Italian tourist and wounded several other people.

13. Judge Joan Lenard violated procedural law several times thus helping to deprive the defendants of their elemental rights and making the defense’s job more difficult.

Miami Federal Court Judge Joan Lenard began by turning down the defense’s request to be given access to documents that had been classified, which would contain almost all of the alleged evidence used to charge and convict the Cuban Five. Then she then turned down another motion presented by Mr. Weinglass, Antonio Guerrero’s defense attorney, to which the remaining defense attorneys added their names, calling for a retrial to be held anywhere but in Miami.

To support this motion, the defense presented new evidence taken from Ramirez vs. Ashcroft, 2002, which involved a fraudulent and ill-intentioned government attitude. In Ramirez vs. Ashcroft, the Prosecution ended up in the dock, and, on presenting itself for trial, the government claimed that no fair and unbiased trial was possible in Miami, since the crime was related to Cuba. How should we interpret that double standard? It is clearly a crime of prevarication, due to the premeditated and deceitful use of power by an authority.

14. The Atlanta’s Court regrettable strange refusal to admit the report on the Five Cuban prisoners in the United States (June 2003).

The refusal of the Eleventh Circuit Court of Appeal in Atlanta to consider the report submitted by jurist Erick Luna, a distinguished University of Utah professor, on behalf of the Cuban Society of Criminal Sciences, (an instrument commonly referred to as an Amicus Curiae brief) is something which almost never occurs in the U.S. justice system, since such reports seek only to give the Court a wider view of the cases before it.

The report elaborates on terrorist actions against the Cuban people and other facts of great interest that would have permitted the defense to use the state of necessity argument, which is recognized by the US justice system and which is the principle that guided the actions of the Cuban Five.

15. Collusive silence of the American media on the unjust trial.

The case of the Cuban Five has all of the features of a news story of nationwide interest in the United States. Former generals and admirals testified. There were 72 witnesses, diplomatic notes and White House Memos and even one of former advisers to President Clinton testified. Additionally, it was the longest trial held in the United States that year and the only trial involving American foreign policy issues.

Despite all this, and in obvious compliance with U.S. government instructions, the vast U.S. media machinery did not paid the slightest attention the unjust and illegal trial of the Cuban Five, with the exception of the media 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.

16. Support from the U.S. legal community and international solidarity.

Some of the most prestigious lawyer and jurist associations in the United States and worldwide have added their voice to the struggle for the release of the Cuban Five. The National Jury Project, whose members are distinguished experts in the U.S. jury system, has presented a plea to the Trial Court calling for a retrial.

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 Economic and Social Council.

There are already 208 solidarity committees in 79 different countries of the world working on behalf of the five young Cuban anti-terrorist fighters unjustly imprisoned in the United States. More voices proclaiming their solidarity are heard around the world and in the United States, part of an effort to mend injustice and have the Cuban Five return to their country and families.

The Cuban people reiterate their demand for justice and solidarity with these Five defenders of their right to life, to self-determination, to the highest levels of wellbeing and development, which have been violated and continue to be threatened by the actions of a group of Cuban American terrorists who act at the instance of or enjoying the impunity granted to them by the U.S. government.

17. Mistreatment and emotional and psychological torture of the relatives of the Cuban Five:

• Obstacles to consular visits
• Limitations imposed to consular officials to accompany the relatives when they have been able to visit the Cuban Five.
• Visa denials
• Delay in granting visas

The Cuban Five have been the favorite target in Bush administration’s escalating hostility and aggressiveness towards our people.

Since the year 2003, by means of clear provocative intentions and vengeance motivations, the U.S. government increased the measures aimed at isolating and punishing even more these young defenders of the Cuban people's human rights, hindering the process of appeal, and trying to overcome the spirit and strength of the Five and their relatives.

Since 2003, more and more obstacles have been placed to consular and family visits to the Cuban Five. The delays in granting visas and the denial to the visas of Adriana Pérez and Olga Salanueva, wives of Gerardo Hernández Nordelo and René González respectively, are two of the cruelest and most inhumane acts ever seen in violation of the International Law, in particular international human rights instruments, and even American law.

In March 2003, coinciding with the imposition of new restrictions on the movement of our officials in Washington, the Sate Department cancelled planned consular visits to Gerardo and Fernando.

From June 2003, the U.S. State Department took the first steps that ultimately led to a complete elimination of any possibility that Cuban consular officials with accreditation in Washington could accompany relatives of the Cuban Five on their prison visits.

During family visits in June, July and August of 2004, additional conditions were imposed: consular officials were no longer allowed to stay for the weekend with the relatives in the towns closest to the prisons but to return to Washington.

The relatives of the Five were left with no consular assistance and attention when they had to deal with emotions aroused by seeing their loved ones after such a long wait.

In December 2003, the State Department denied the first consular permission to accompany Gerardo’s relatives during their visit. The excuse given was that this was a journey of a personal and not consular nature.

It must be remembered the very complex obstacles imposed by the blockade on Cuba the relatives of the Five Cuban defenders of the human rights have to overcome, just to get to the United States. And this, added to the fact that the five heroic young men have been 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 places and get to the prisons which are in located in inhospitable places with no assistance.

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 January 7, 2004, the Ministry of Foreign Affairs published a statement denouncing the absurd revanchist behavior of U.S. authorities. In Note 845 from the U.S. Interests Section in Havana, dated December 23, 2003, they once again returned the visa application forms of Olga Salanueva and Adriana Pérez informing that visa applications for these two women sent by the Ministry of Foreign Affairs would no longer be accepted; that, instead, Olga and Adriana must submit their visa applications personally.

From February 2, 2004 on, the U.S. Interests Section in Havana began to enforce the same measures on the rest of the family members of the Cuban Five, that is, from that date forward their visa applications are not to be submitted by the Ministry of Foreign Affairs but in person by our comrades’ relatives.

On February 27, 2004, the State Department—in open violation of the responsibilities undertaken pursuant to the 1961 Vienna Convention on Consular Relations—sent a Diplomatic Note to the Cuban Interests Section in Washington saying that henceforth consular visits to the Cuban Five by our officials in Washington would only be authorized once every three months.

This hostile act received a reply from Cuba in a Ministry of Foreign Affairs statement “A new outrage against our Five heroes” issued on March 4, 2004. It denounced the new restrictions on consular activities of our officials in Washington.

The denial of visas to Adriana Pérez and Olga Salanueva is not the only flagrant violation of the rights of the Fives and their families to keep in contact through periodic visits. There have also been long delays in granting visas to other family members.

The visa application process has not been worry-free for the other family members either. To cite just one case: visa applications were submitted by Carmen Nordelo, Magalys Llort, Irma Sehwerert and Colmes Labañino on August 7, 2003, and the rest on September 23, 2003 but the visas were only issued in April 2004, seven months later after the last applications.

In their inhuman behavior, U.S. authorities turn a blind eye to the fact that several of the relatives of the Five heroes are already of an advanced age.

Visas denial to Adriana Pérez and Olga Salanueva, wives of Gerardo Hernández Nordelo and René González, respectively.

For years, the U.S. authorities have denied visas to Gerardo Hernández and René Gonzalez’s wives; In this way they were unable to see their husbands.

The visa denial is not only a violation of human rights enshrined in different international instruments, but also a violation of the U.S. Constitution, as expressed by the U.S. 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.

Adriana Pérez’ case

Adriana has never visited the United States. She has never been able to see her husband after his arrest on September 12, 1998.

In practice, the U.S. 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 the national security of that country.

Adriana’s name does not appear on the indictment listing the charges that were falsely laid against Gerardo nor on any of his four comrades.
Her only reason to apply for a U.S. entry visa is to visit her husband, Gerardo Hernández Nordelo, who is serving two life sentences plus 15 years in Victorville prison in California.

On March 29, 2002, the United States government granted her a visa after a process of interagency consultation, which is usual when a Cuban citizen applies for a visa. In July 2002, she went to the U.S. 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 she was not allowed to enter the U.S. 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 denial was based on Section 212 (A) (3) (a) of the Immigration and Naturalization Act applied to all cases which may affect National Security as considered.

As yet another example of the U.S. lack of pretexts to take up this inhuman and cruel measure, the visa was denied in 2005 alleging she could be a possible immigrant (Section 212 was applied).

On 2 October 2006, the US Interest Section again denied Adriana a visa, on the grounds that her entry is detrimental to the United States interests, according to Section 212 (f).

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 there is a child 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.

During this time—until she was deported to Cuba in November 2000— she was present when the warrant to arrest René was carried out and when he was charged. She was in contact with FBI officers and with his defense lawyer. At no time was there any suggestion that she was involved in any of the offences her husband was later charged with.
If the United States government had thought she was an infiltrated agent, two years and two months was more than enough to bring charges against her. Nevertheless she was neither accused nor charged of any federal offense.

In August 2000, she was arrested by immigration authorities and deportation proceedings started. One month earlier, July 2000, the Prosecution offered her husband a deal; if he would admit the two counts he was charged with, (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 March 29, 2002, the U.S. government granted her a U.S. entry visa so she could visit her husband.

On April 23, 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 denies entry to US territory to those with connections to terrorist activities. In fact, her husband, René González, was not charged of having any link 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 U.S. government once again denied Olga a visa.

On the latest of these occasions, the State Department alleged that she was denied a visa by virtue of Section 212-3 (A) of the Immigration and Nationality Act, which denied entry to the United States to those it considers wish to do so in order to engage in acts of espionage or sabotage. This is yet another absurd argument, especially since her husband was not accused of espionage but of being an unregistered foreign agent and of conspiracy.

In June 2003, once again she 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 the visa denial.

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 reverse that decision (Section 212 (a)(9)(A)(ii) was applied).

Ivette González’ Case

The girl Ivette González, daughter of René González and Olga Salanueva, had not been able to see her father due to the systematic refusal of the United States Government to let Olga Salanueva enter that country, after been deported to Cuba in 2000.

On seven occasions the U.S. Government has denied Olga an entry visa, keeping her from visiting her husband and René from meeting his little daughter Ivette, whom he has not seen since she was very little.

After an eight-year wait, in face of the long and unpredictable outcome of the legal process, and taking into account the conclusions of Olga’s last visa denial; René insisted on being visited by his daughter.

The girl is already eight years old and she wanted to see her father.          

In these circumstances, the family decided that Ivette go visit her father in prison accompanied by her sister Irma González Salanueva, who is already of age.

The visit took place after the girl received professional care by specialists to try to reduce the psychological impact this first encounter may generate in her, after a prolonged separation, without the presence of his mother and in a hostile environment.  Certainly, at this point it is impossible to determine the long term damage.

The meeting took place on last 30 December in the correctional institution in Marianna, Florida, amid the typical adverse conditions of a prison.

After the scheduled visits to her father, Ivette returned to Cuba with her sister. Having been born in the United States, Ivette does not require an entry visa for that country.

The non-governmental organization Amnesty International issued a public statement on January 17, 2007, in connection with the situation of the relatives of the Cuban Five. The statement urges the U.S. authorities to stringently review its decision to deny temporary visas to the wives of Gerardo Hernández and René González, and, in the absence of reasonable and conclusive evidence for the denials, and it claims to grant them the visas so that Adriana Pérez and Olga Salanueva may visit their husbands.

Since 2002 the U.S. government has denied the wives’ applications for temporary visas for different reasons relating to terrorism, espionage and issues of national security. Yet, neither of the two women has faced charges in connection with such claims, nor have their husbands been charged with, or convicted of terrorism.

Adriana and Olga have made representations to Amnesty International in which they deny being a security risk to the U.S, while their husbands are currently held in ‘general population’ within prison which suggests that they are not considered to be a security risk to the country.

Amnesty International has repeatedly raised the issue with the U.S. authorities since 2002 because it believes that denying the men visits from their wives--and in the case of René González, also his child--is unnecessarily punitive and contrary to standards for humane treatment of prisoners and States’ obligations to protect family life.

The organization believes that this deprivation is particularly harsh given the length of the men’s sentences and the questions that have been raised on whether the sentencing at trial fulfilled the due process and constitutional rights or not.

Interviews of some of the relatives of the Cuban Five in the Commission on Human Rights.

In order to continue denouncing the flagrant human rights violations that the Cuban Five and their families have been subjected to, several of the relatives have met with different thematic procedures of the Council on Human Rights and with officials from the Office of the United Nations High Commissioner for Human Rights during the second session of the Council.

Adriana Pérez (wife of Gerardo Hernández) and Magalys Llort (mother of Fernando González) attended the second session, held from 20 to 28 September.

Following is a list of representatives of the Council’s thematic mechanisms and officials of the OHCHR contacted by the relatives of the Cuban Five.

Meetings with Special Procedures:

• Meeting with Leandro Despouy, Special Rapporteur on Independence of Judges and Lawyers.

• Meeting with Ms. Yakin Erturk, Special Rapporteur on Violence against Women

• Meeting with Leila Zerrougui, Chair-Rapporteur of the Working Group on Arbitrary Detentions.

Meetings with officials from the Office of the United Nations High Commissioner for Human Rights:

• Meeting with Maria Francisca Iza-Charrin, Head of Division of the Office of the United Nations High Commissioner for Human Rights.

• Meeting with Dragana Korljan, Assistant to the Rapporteur on Right to Health (Paul Hunt).

• Meeting with Charo Murga, Assistant to the Rapporteur on Right of the Migrants.

All representatives of thematic mechanisms and officials from the OHCHR were given an updated report by the relatives of the Cuban Five denouncing the human rights violations committed in the case of the Five young Cubans defenders of human rights. Similarly, the relatives submitted a document on behalf of Cuban NGO's with Consultative Status in ECOSOC, denouncing the human rights violations carried out by U.S. authorities against the Cuban Five and their families.

A proven truth

• Between February and March 2006, a series of event took place in the United States which confirms both the prejudice against Cuba that is pervasive in Miami and the defense of the State of Necessity claimed by the Cuban Five during trial.

On April 19, 2006, Robert Ferro was arrested in South California and charged with illegal possession of an arsenal. When his house was searched, 1,500 weapons were found, including 35 machine guns, 130 silencers, 89,000 ammo cartridges and a rocket-launcher. His lawyer filed formal documents in court claiming that his client was keeping these weapons for “a militant group planning to overthrow the Cuban Government.

These revelations confirm the defense of the State of Necessity      presented by the Fives at trial.

• On June 22, 2006, The Miami Herald reported an extensive interview with José Antonio Llama, a Miami resident who emigrated from Cuba, former member of the Board of the terrorist organization Cuban American National Foundation. He confessed in the interview having been given 1,400,000 USD to a CANF group to purchase light remote-control air equipment, among other weapons, in order to use them against Cuba between 1994 and 1997. He called Domingo Sadumin by his name, another Cuban émigré residing in Puerto Rico, as the facilitator of the purchase of a helicopter and Raúl López, a Cuban-American with a construction business in Miami, as the supplier of the explosives. While the objectives for which contributions were made to a terrorist group were not mentioned in the interview, it comes to mind a plan orchestrated from Miami which was disclosed during the trial to the Cuban Five.

“(…) initially it was conceived to launch two airplanes loaded with explosives and remotely controlled from a helicopter aimed at a rally in Revolution Square during a speech by the Commander in Chief”. (Quoted from a document presented during the trial, as one of the Cuban Five’s alleged report to Havana on plans of Miami-based “militant” groups in order to carry out such attack against Cuba, which appears in the official transcription of the trial on page 4992).

The interview to José Antonio Llama confirms the fact that the Cuban Five’s work was monitoring Miami-based terrorist groups to know violent actions planned against Cuba which may result in the death of innocent civilians. 

• On the venue change issue, on June 15, the Miami Herald reported that the Miami Board of Education had taken extraordinary steps carrying out a vote to ban a children’s book from public libraries. The book described children in Cuba to be similar to those in Miami in terms of attending school and education. In spite of the fact that banning such book seemed to be essential for some members of the Cuban emigration, who happen to be members of the board, it was not true regarding one non-Cuban member, Robert Ingram, who, although feeling differently, voted in favor of banning the book out of fear of “…finding a bomb below our cars” if I failed to support the resolution and concluded saying: "I cannot vote my conscience without feeling threatened".

These were the exact, same fears that the members of the jury had during the trial in Miami, about which the defense showed proving evidence to the Court of Appeal in Atlanta. As non-Cuban members of that community, jurors could not be able to give a not guilty verdict without “feeling threatened”.

• In September 2006, in documents obtained through a petition filed on the basis of the Freedom of Information Act, it was discovered that at least 10 influential journalists from Southern Florida, including three from El Nuevo Herald, regularly received federal government payments for appearances on Radio and TV Marti shows, two official government media aimed at promoting the overthrowing of the Cuban Government. These journalists set the stage for the intimidation campaign in Miami as a context to the Cuban Five trial since 1998. Their credits backed many of the stories published there to promote the perfect storm of prejudice denounced in the Court of Atlanta, which was an essential element to sentence the Fives.

• On January 19, 2007, Santiago Alvarez, wealthy builder and terrorist Luis Posada Carriles´ ally, with Osvaldo Mitat—his employee—with a hope to reduce the prison sentences that they were given for conspiracy, handed in through their lawyers tens of machine guns, dynamite and a grenade-launchers that were destined to carry out terrorist acts against the Cuban Revolution.

CONCLUSIONS

The Bush administration has slaked its thirst for vengeance and hatred on our Five antiterrorist fighters using various kinds of arbitrariness, abuses and new violations of their most fundamental human rights.

They have irrefutably shown Bush and his protégés in the Miami terrorist mob 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 openly terrorist and criminal organizations, they unveiled the hypocrisy and double standards of the alleged all-out fight against terrorism the U.S. so much brag about.

The August 9, 2005 ruling of the Eleventh Circuit of Atlanta and the Opinion 19 of May 27, 2005 of the Working Group on Arbitrary Detentions confirmed the arbitrary character of the detention of the Fives. Deprival of freedom, when it is arbitrary and against the law is equivalent to kidnapping. In this case, the kidnappers are the U.S. authorities and its victims have been confined under such conditions for over 7 years.

The unexpected decision adopted by the Court of Atlanta, on August 9, 2006-–ratifying the ruling of Miami district court and reinstating the provision that the venue should have not been changed—failed to take into consideration the environment of violence and intimidation that prevailed in Miami.

This confirms once again that the “legal process” of the Cuban Five has not been taken from the viewpoint of the law by the representatives of the U.S. powers of the State. They are political prisoners arbitrarily detained.

Just like their relatives, the Cuban people and numerous Solidarity Committees around the globe, will not rest until justice prevails and the Five Heroes can return home to their Motherland with dignity. To this end, 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.

Annex to the Chapter

ON THE DECISION BY THE WORKING GROUP ON THE ARBITRARY DETENTION IN THE CASE OF THE CUBAN FIVE.

On May 27, 2005, this Working Group considered that the detention of Antonio Guerrero, Fernando González, Gerardo Hernández, Ramón Labañino and René González was arbitrary and urged the government of the United States to adopt immediately the necessary steps to remedy this situation.

The members of the Panel fulfill their duty and do not represent any government. The five members at that time were: Mrs. Manuela Carmena Castrillo (Spain), Mrs. Leila Zerrougui (Algeria), Mrs. Soledad Villagra (Paraguay), Mr. Tamás Ban (Hungary) and Mr. Seyed Mohammad Hashemi (Iran). Therefore, there is no Cuban involved in this group.

The Group adopted its decision as a result of the request made by the relatives of the Cuban Five and after assessing the arguments provided both by the relatives and the government of the United States.

As included in its decision, the arguments the Working Group on Arbitrary Detention based upon to reach such conclusion can be summed up as follows:

• That “trial did not take place in the climate of objectivity and impartiality as should be required” and that "the [United States] government has not denied the fact that the climate of bias and prejudice against the accused in Miami persisted and helped to present them as guilty from the beginning.” “It was not challenged by the [United States] government the fact that one year later it admitted that Miami was not a suitable place for a trial where it proved almost impossible to select an impartial jury in a case linked with Cuba.”

• That “the [United States] government has not contested the fact that the defense had very limited access to evidence as the case was classified as one of national security” which “undermined the equal balance between the prosecution and the defense thus negatively affecting their ability to present counter evidence.”

• That the fact that they were “kept in solitary confinement for 17 months” determined that “communication with their attorneys, and access to evidence and thus, possibilities to an adequate defense were weakened.”

• That “these three elements combined, are of such gravity that they confer the deprivation of liberty of these five persons an arbitrary character.”

The White House disregards this opinion. According to an article published by The Miami Herald on July 20, 2005, the Department of State said that they would not accept the "ridiculous and confusing decision" adopted by the United Nations Working Group on Arbitrary Detention of the CHR.