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Cuban 5: Seeking U.S. Government Transparency

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SEEKING U.S. GOVERNMENT TRANSPARENCY ON THE 1996 BROTHERS TO THE RESCUE SHOOTDOWN

The Los Angeles-based Center for Human Rights and Constitutional Law has initiated several requests under the Freedom of Information Act (FOIA) seeking access to records that may show (1) what the U.S. Government knew about the likelihood for a confrontation between Cuba and Brothers to the Rescue (BTTR) planes that were routinely taking off from Florida after filing false flight plans and penetrating Cuban airspace in 1995-96, and (2) what the U.S. Government could have done to prevent the February 24, 1996 incident in which a Cuban MiG shot down two Brothers to the Rescue planes that had illegally penetrated Cuban airspace.

This interview was conducted on February 8, 2013 by the International Committee for the Freedom of the Cuban 5 with Peter Schey, President of the Center for Human Rights and Constitutional Law and lead counsel in the FOIA cases.

IC: When did the Center for Human Rights and Constitutional Law file a federal lawsuit seeking documents from the U.S. National Geospatial Intelligence Agency (NGA)?

PS: The Center filed a federal lawsuit in 2010 under the Freedom of Information Act against the National Geospatial-Intelligence Agency (NGA).

IC: Why did the Center file the lawsuit?

PS: The Center is pursuing this information for several reasons that were explained in the letters sent under the Freedom of Information Act addressed to the NGA and other U.S. agencies seeking disclosure of records relating to the 1996 Brothers to the Rescue (BTTR) shoot down incident. First, the records the Center is trying to obtain are of interest to all persons concerned with the BTTR shoot down and the Cuban Five case. Second, the information the Center is seeking is also relevant to the conviction and life prison sentence of Gerardo Hernandez, and legal and non-legal efforts to have his sentence vacated or reduced.

IC: Can you explain how this lawsuit may be relevant to the life sentence of *Gerardo Hernandez?

PS: Gerardo stands sentenced by a U.S. court to serve life in prison only because of the Brothers to the Rescue shoot down in 1996. There are at least four reasons why it may be helpful to achieve more transparency by the U.S. Government and eventually win a legal or political decision to reconsider Gerardo’s conviction or his sentence:

First, all Gerardo allegedly knew before the shoot down was that there would be a “confrontation” with BTTR pilots in February 1996. He had no knowledge whether that might mean an attempted interception and demand that the BTTR pilots land in Cuba to face charges, whether the BTTR planes would be chased out of Cuban airspace (if they entered Cuban air space), whether warning shots may be fired to force the BTTR pilots to leave Cuban airspace (if they entered Cuban air space), or whether the BTTR planes would actually be shot down. We are seeking transparency by the U.S. Government because it is very possible that the U.S.G. possessed more information than was available to Gerardo about the planned confrontation. If the U.S. Government possessed more information than Gerardo about the shoot down before it took place, this would clearly make his life sentence extremely unjust.

Second, it is likely that the U.S. Government was in a position to prevent whatever confrontation may take place, while Gerardo possessed no way to prevent a confrontation. BTTR pilots obviously knew that their illegal penetration of Cuban airspace and flying over the rooftops of Havana would eventually trigger a confrontation with Cuba. If Gerardo had warned them that a confrontation may take place in February 1996, they most likely would have been delighted and kept flying into Cuban airspace precisely to provoke the confrontation. In any event, the Cuban Government knew what planes the BTTR pilots were flying and had radar to track any planes entering Cuban airspace so they didn’t need information from Gerardo about the plans of BTTR pilots.

We are seeking transparency by the U.S. Government about reasonable steps it could have taken–but failed to take–to prevent BTTR pilots from filing false flight plans with the U.S. Federal Aviation Administration and using U.S. airports from which to depart to illegally invade Cuban airspace. If the U.S.G. was in a position to prevent the Cuban-BTTR confrontation, but failed to do so, this also makes Gerardo’s sentence extremely unjust. Unlike the U.S. Government, Gerardo had no power to avoid the confrontation.

IC: Are there other reasons why you believe seeking these records is important to Gerardo’s conviction and life sentence?

PS: Yes. The U.S. Government made clear at Gerardo’s trial that the location of the shoot down was critical. It believed Gerardo could only be convicted of conspiracy to commit murder if the shoot down took place in international airspace. However, not a shred of evidence showed that Gerardo, or anyone else including U.S. Government officials, had any knowledge or would have ever predicted, that a confrontation with BTTR planes would take place in international airspace rather than in Cuban airspace. In addition, if transparency by the U.S. Government showed that the shoot down took place in Cuban air space, or may have taken place in Cuban air space, this also would obviously make Gerardo’s conviction and sentence completely unjust.

Finally, while Gerardo is serving a life sentence in prison, the U.S. authorities who likely had more information than Gerardo possessed, and were in a position to prevent the shoot down, have shared in none of the responsibility for the incident.

IC: If Gerardo only knew that some kind of confrontation would take place between Cuba and the BTTR in February 1996, why then was Gerardo convicted of conspiracy to commit murder and sentenced to life in prison?

PS: Technicalities of U.S. law and a biased jury allowed Gerardo to be convicted of “conspiracy to commit murder” despite the minimal knowledge he possessed, his inability to change the course of events, and his obvious lack of knowledge that any confrontation may take place in international airspace. The legality of Gerardo’s sentence is being addressed in his writ now before the federal courts. Conspiracy has been defined in the U.S. as an agreement of two or more people to commit a crime. The U.S. Government believes the shoot down was a crime because it took place in international airspace, not Cuban airspace. But there is no evidence that Gerardo had any idea that any confrontation, or a shoot down, would take place in international airspace.  Under U.S. law someone can be guilty of “conspiracy” even if he or she has no direct involvement in the alleged crime and does not know the identity of the other members of the alleged conspiracy. However, regardless of the technicalities in U.S. law that allowed this conviction to take place and a life sentence to be imposed, the facts in this case make clear that Gerardo’s “life” sentence is grossly excessive and should be reconsidered by any U.S. authorities with the authority to reduce the sentence and permit Gerardo to be released.

IC: What is the Center for Human Rights and Constitutional Law plan to do next?

PS: The Center will continue to seek transparency by the U.S. Government using legal methods under the Freedom of Information Act and the Presidential Records Act which may disclose records showing the U.S. Government’s level of knowledge about the shoot down before it took place, and why the U.S. Government failed to take reasonable measures to prevent the shoot down long before it happened.

IC: Can you explain where the case stands right now?

PS: The U.S. Court of Appeals for the Ninth Circuit recently reversed the decision of the U.S. District Court in the case entitled Center for Human Rights and Constitutional Law v. National Geospatial-Intelligence Agency, a case we initiated with Len Weinglass before he passed away.

In a unanimous decision issued on January 23, 2013, by Chief Judge KOZINSKI, Circuit Judge McKEOWN and Circuit Judge M. SMITH, the Court of Appeals decided that the lower federal court “erred in granting summary judgment without requiring the National Geospatial-Intelligence Agency to submit a classified declaration for in camera review.” The Court of Appeals agreed with the Center for Human Rights and Constitutional Law position that the NGA’s “unclassified declaration [explaining why it would neither confirm or deny that the requested images of the BTTR shoot-down even exist] failed to provide ‘reasonably specific detail’ that would show why merely acknowledging the existence of records might reveal intelligence sources or methods, or affect our foreign relations.”

The Ninth Circuit Court of Appeals also agreed with the center argument that if the NGA sworn declaration submitted in support of its “Glomar” exemption allowing the agency to neither confirm nor deny that the requested images exist, then “the government would be free to issue a Glomar response in practically every case involving satellite images and records, as well as many other surveillance activities.”

The Ninth Circuit decided that the case must be returned to the U.S. District Court where it ordered that the NGA must provide a classified more detailed declaration for “in camera” review by the district court, as it offered to do at the oral argument The U.S. District Court must then “reconsider its summary judgment ruling in light of the information so provided.”

IC: Could the NGA appeal the decision of the Ninth Circuit Court of Appeals?

PS: We don’t know whether the NGA will seek further review by the Court of Appeals or seek review by the U.S. Supreme Court. The NGA has 45 days to ask the Ninth Circuit panel to reconsider its decision. Second, the NGA could petition the Ninth Circuit Court of Appeals to rehear the case “en banc.” If the NGA petitions the Ninth Circuit to rehear the case en banc, all judges on the Ninth Circuit vote on the petition and the case will only be reheard en banc if a majority of judges vote that the three-judge decision was wrongly decided. If the case is reheard en banc, it will be reheard before a panel of 11 judges. We believe it is unlikely the NGA will seek reconsideration or en banc review, but even if it does, it is unlikely that a majority of Ninth Circuit judges will vote to rehear the case en banc.

Finally, the NGA has 90 days in which to file a petition asking the U.S. Supreme Court to review the case. We doubt that the NGA will seek review before the U.S. Supreme Court because this could invite a decision that would apply nationwide and would make clear that the NGA cannot respond to every FOIA request for satellite images with a response that refuses to confirm or deny the existence of the requested records.

IC: What do you think will happen next in the NGA case?

PS: We believe it is likely that the NGA will agree that the case should be returned to the U.S. District Court where the NGA will have to submit a more detailed declaration “in camera” to the District Court judge. This means that the more detailed declaration will not be provided to the Center for Human Rights and Constitutional Law or made public. It will be submitted only to the judge for her private review. She will then have to decide if the new declaration provides “reasonably specific detail” that actually shows why “acknowledging the existence of [the requested] records might reveal intelligence sources or methods, or affect [U.S.] foreign relations.”

Whatever decision the U.S. District Judge reaches can then again be appealed to the U.S. Court of Appeals for the Ninth Circuit by either the Center for Human Rights and Constitutional Law or the NGA. If the district judge’s decision is again appealed to the Ninth Circuit Court of Appeals, the “in camera” NGA declaration will be reviewed by the panel of the Ninth Circuit judges to decide whether they agree that it provides reasonably specific detail that shows why acknowledging the existence of the requested BTTR satellite images or related documents may reveal intelligence sources or methods, or affect United States’ foreign relations.

We are also pursuing separate FOIA requests to the Clinton Presidential Library, the U.S. Coast Guard, and the U.S. Defense Intelligence Agency. The Center for Human Rights and Constitutional Law will continue to seek transparency by the U.S. Government using legal methods under the Freedom of Information Act and the Presidential Records Act which may disclose records showing the U.S. Government’s level of knowledge about the shoot down before it took place, and why it failed to take steps to prevent BTTR pilots from filing false flight plans and using U.S. airports from which to launch illegal and provocative flights into Cuban airspace. We believe that transparency by the U.S. Government will show that whether or not Gerardo’s “conspiracy to commit murder” conviction is technically correct or not, his involvement in the shoot down was so minimal, and his ability to avoid the shoot down so minimal, that his life sentence is grossly unfair and should be reconsidered by appropriate U.S. authorities in both the Judicial and the Executive branches of the government.

IC: What significance do you think that the release of Gerardo Hernandez would have on the general situation of the US/Cuban relations?

PS: First, for the reasons I already explained, we believe that Gerardo’s conviction and life sentence are unjust and unfair. Second, President Obama and his foreign policy staff should understand that Gerardo’s life prison sentence is of great concern to the Cuban people who view Gerardo as a hero and a political prisoner. Because of the widespread Cuban public sentiment that strongly supports Gerardo, finding a way to achieve his release and return to Cuba may be an essential pre-condition to improvement of Cuban-U.S. relations, and eventually a normalization of relations between the two countries.

*Gerardo Hernández Nordelo, one of the five Cubans imprisoned in the United States for almost 15 years.

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