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The Case

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a legal update: THE CASE OF THE CUBAN FIVE

In September 1998, five Cuban men were arrested in Miami by FBI agents. Gerardo Hernandez, Ramón Labañino, Fernando Gonzalez, Antonio Guerrero and René Gonzalez were accused of the crime of conspiracy to commit espionage. The US government never accused them of actual espionage, nor did it affirm that real acts of espionage had been carried out, as no classified document had been confiscated from the Five. Their actual mission in the United States was monitoring the activities of the groups and organizations responsible for terrorist activities against Cuba. After the triumph of the Cuban revolution in 1959, Cuba had been the victim of more terrorist attacks than any other country in the world, killing 3,478 and injuring 2,099. The vastly majority of those attacks originated in southern Florida, by groups tolerated and partly financed by the US government.

After their arrest, the Five were immediately placed in solitary confinement, isolated from all other inmates for the entire 17 months of pretrial custody. For the first five months they were housed in separate cells isolated from each other as well as the other inmates. After those five months, a motion was filed by the defense asserting that their need to work on their defense was being compromised by the isolation. Four were then moved into the same single cell, with one kept housed alone, but they remained in the Special Housing Unit in isolation cells for all 17 months before their case was first brought before a court.

In spite of the vigorous objections raised by the Five’s defense, the case was tried in Miami, Florida, a community with a long history of hostility toward the Cuban government, which prevented them from receiving a fair trial.   

The trial, which lasted over six months, became the longest trial in United States history. More than 119 volumes of testimony and over 20,000 pages of documents were compiled, including the testimony of three retired US Army generals and a retired admiral, who agreed that no evidence of espionage existed.

Near the trial’s conclusion, when the case was about to be handed to the jury for consideration, the US government recognized in writing that it had failed to prove the main charge against Gerardo Hernandez, conspiracy to commit murder, admitting that it was facing an “insurmountable obstacle” in connection with winning the case. This charge had been added seven months after Gerardo’s arrest. However, the jury, under intense pressure brought to bear on them by the local media and Cuban-American community, nonetheless found the Five guilty of all charges.

The Five were sentenced to a total of four life sentences plus 77 years and were imprisoned in five separate maximum security prisons spread across the US without the possibility of communication with each other.

Additionally, a clause was imposed on them that stated “as a further special condition of supervised release the defendant is prohibited from associating with or visiting specific places where individuals or groups such as terrorists, members of organizations advocating violence, and organized crime figures are known to be or frequent.”

The charges of conspiracy to commit espionage and conspiracy to commit murder represented life sentences for three of them. They were the first people ever to be sentenced to life imprisonment for espionage in the United States in a case where no secret document was ever obtained.

The appeals process has lasted nine years. In August 2005 a three judge panel of the Eleventh Circuit Court of Appeals in Atlanta overturned all of the convictions on the grounds that the Five had not received a fair trial in Miami. In an unexpected move, the government then asked the entire twelve judges of the Court of Appeals to review the panel’s decision through a so-called en banc procedure. Exactly one year later, in August 2006, in spite of the strong disagreement voiced by two of the three judges who made up the original panel, the court revoked by majority the decision of the three judges.

Meanwhile, on May 27, 2005, the UN Working Group on Arbitrary Detention, after reviewing the arguments advanced by the families of the Cuban Five and the US government, concluded that their imprisonment was arbitrary and urged the US government to take the measures needed to rectify the situation. The Working Group stated that, based on the facts and the circumstances in which the trial was held, the nature of the charges and the severity of the convictions, the imprisonment of the Five violates Article 14 of the International Convention on Civil and Political Liberties, to which the United States is a signatory. Never before had the UN Working Group on Arbitrary Detention denounced as arbitrary, due to violations committed during the legal process, a conviction in a case in the United States.

During the appeals process there have been two key arguments advanced by the defense in its efforts to reveal the arbitrary nature of the convictions. First is the lack of evidence needed to substantiate the two main charges: conspiracy to commit espionage and conspiracy to commit first-degree murder. The second is the imposition of completely irrational and unjustifiable life sentences. 

On September 2, 2008, the Court of Appeals ratified the guilty verdicts of the Five and ratified the sentences of Gerardo Hernandez and René Gonzalez. It judged the sentences of Antonio Guerrero, Fernando Gonzalez and Ramón Labañino to be wrongful and revoked them, referring the cases once again to the Miami District Court so they could be re-sentenced.

At that time, the full Court of Appeals recognized that no secret or national defense information had been obtained or transmitted in the case of the defendants charged with conspiracy to commit espionage. One of the three judges, the Hon. Phyllis Kravitch, affirmed in a 16-page dissenting opinion that the government did not present sufficient evidence to find Gerardo guilty of the charge of conspiracy to commit murder.

On June 15, 2009, the US Supreme Court announced, without explanation, its decision not to review the case of the Five, in spite of the solid arguments made by their defense attorneys concerning the obvious and multiple legal violations committed during the entire trial. The Supreme Court also ignored the unprecedented backing of the petition for review of the convictions of the Five expressed by 12 amicus curiae briefs, which was the largest number of amicus briefs ever to have urged the US Supreme Court to review a criminal conviction.

Ten Nobel laureates, among them East Timor President Jose Ramos Horta, Adolfo Perez Esquivel, Rigoberta Menchu, Jose Saramago, Wole Soyinka, Zhores Alferov, Nadine Gordimer, Gunter Grass, Dario Fo and Mairead Maguire, as well as the Mexican Senate, the National Assembly of Panama, and Mary Robinson, the former President of Ireland (1992-1997) and former UN High Commissioner for Human Rights (1997-2002), and UNESCO General Director Federico Mayor, among others, signed the amicus briefs. They were joined by hundreds of parliamentarians from around the world. Among them were 75 members of the European Parliament, including two ex-presidents and three current vice-presidents of this legislature.  Also represented were numerous legal and human rights associations from different countries in Europe, Asia and Latin America, as well as international personalities and legal and academic organizations in the United States.

With this US Supreme Court decision, legal resources with which to appeal the ruling of the Atlanta Court that ratified their convictions have practically run out.

On October 13, 2009, the sentencing hearing of Antonio Guerrero took place in the US District Court for the Southern District of Florida. During it, the same judge that had condemned him to a life sentence plus 10 years in December 2001 admitted that in Antonio’s case evidence of gathering or transmitting secret information does not exist. However, she imposed on him an unfair sentence of 21 years and 10 months of imprisonment plus five years of supervised release.

The sentencing hearings for Fernando González and Ramón Labañino took place on December 8, 2009. The original sentence for Fernando González (19 years) was changed to 17 years and 9 months, while Ramón Labañino’s sentence (life plus 18 years) was reduced to 30 years.

Since the Cuban Five were first unjustly imprisoned on September 12, 1998, their relatives have faced constant delays in the granting of visas. This has, in most cases, prevented these relatives from visiting the Five more than once a year on average, despite regulations at their different prisons allowing monthly visits.

Two of them, Gerardo Hernandez and René Gonzalez, have been prevented from receiving visits from their spouses, Adriana Pérez and Olga Salanueva. The entry permits into US territory necessary to accomplish these visits have been repeatedly and systematically denied to the wives. As a result, Adriana and Olga have been prevented from visiting their imprisoned husbands for more than 11 and 9 years, respectively.

Gerardo Hernández    Court of Appeals ratified his sentence
2 life terms plus 15 years

Ramón Labañino    Court of Appeals vacated his sentence
Re-sentenced on December 8, 2009 to 30 years

Antonio Guerrero    Court of Appeals vacated his sentence
Re-sentenced on October 13, 2009 to 21 years and 10 months

Fernando González    Court of Appeals vacated his sentence
Re-sentenced on December 8, 2009 to 17 years and 9 months

René González    Court of Appeals ratified his sentence
15 years

OTHER CASES TRIED IN RECENT YEARS BY UNITED STATES COURTS. COMPARE WITH THE TREATMENT RECEIVED BY THE CUBAN FIVE

Khaled Abdel-Latif Dumeisi, Jordanian citizen residing in Chicago, was arrested in that city in January 2004, accused of being an agent of the Iraqi Government of Sadam Hussein and not having registered as such with the U.S. authorities.

The basis of the accusations was that Dumeisi supplied information to Baghdad intelligence services about activities of Iraqi exile groups conspiring against the government of his country.

The prosecutor, Patrick J. Fitzgerald, declared that Dumeisi was not accused of espionage despite supplying information to a hostile government.

In April 2004, in the middle of the war unleashed by the United States in Iraq, Dumeisi was sentenced on the charges of conspiracy and as an unregistered foreign agent to 3 years and 10 months in prison.

René González, one of The Five, was sentenced to 15 years for the same charges.

Leandro Aragoncillo, U.S. citizen of Filipino origin, was found guilty by the New Jersey Federal Court in July 2007 of illegally obtaining and transmitting secret national defense information of the United States.

Some 800 classified documents were brought by Aragoncillo from his office in the White House, where he worked as military assistant to Vice Presidents Al Gore and Dick Cheney, before passing them to the Federal Bureau of Investigations for intelligence analysis.

Aragoncillo, who admitted his guilt, was sentenced to 10 years in prison.

Michael Ray Aquino, Filipino citizen residing in the United States, was arrested with Aragoncillo in the same espionage case and accused of conspiring to commit espionage.

Aquino, who admitted possessing secret documents with information about U.S. intelligence sources and about threats of terrorist actions against US military personnel in the Philippines, was sentenced to 6 years and 4 months in prison.

Gregg W. Bergersen, Defense Department analyst, was found guilty in July 2008 by a Virginia Federal Court of conspiring to provide national defense information to unauthorized persons.

Bergersen, who admitted in Court that he had given information about U.S. military sales to Taiwan in exchange for money and gifts, was sentenced to 4 years and 9 months in prison.

Lawrence Anthony Franklyn, U.S. Air Force Reserves colonel, was charged in a Virginia Federal Court in May 2005 with giving classified information and national defense information to a representative of a foreign government without authorization.

The colonel conducted his espionage activity while working in the Defense Department where he occupied positions in the Office of International Security Affairs and the Secretary of State where he gained the highest approval to access sensitive secret information.

Franklyn, who admitted handing over military secrets to an Israeli diplomat and to two Israeli lobbyists, was sentenced to 12 years and 7 months in prison and a 10,000 dollar fine.

Judge T.S. Ellis III imposed the lowest sentence possible under federal guidelines alleging that he considered Franklyn was motivated by the desire to help the United States and not to harm it.

José Padilla, U.S. citizen was arrested in May 2002 and accused of conspiracy to commit terrorist acts against the United States and conspiracy to commit murder, kidnapping and mutilation, and was found guilty of all charges in August 2007.

He was sentenced by the same Federal District Court of Southern Florida to 17 years and 4 months in prison.

John Lindh Walker, U.S. citizen captured in Afghanistan at the beginning of the U.S. war against that country, was sentenced by a Virginia Federal Court to 20 years in prison for fighting with the Taliban Army against U.S. troops and being responsible for the death of several soldiers and a CIA official.

After the sentence was reached through a negotiation of the charges, the Court added a clause that Walker would serve his sentence in a California prison, where his family lived, to facilitate familial visits.

Zacarías Moussaoui, born in Florida of Moroccan origin, and residing in the United Kingdom, was arrested, charged and convicted in the United States for direct implication in the September 11, 2001 attacks and for his ties to Al Qaeda.

Moussaoui is serving his sentence in a super-maximum security prison in Florence, Colorado.  His mother, a French resident, sought a visa from the U.S. government to enter U.S. territory and visit him in prison and this was granted without entrance limitations for humanitarian reasons

James W. Fondren Jr., an American citizen, was convicted of giving classified Defense Department documents to a Chinese government agent, including a report on Chinese military power. Fondren worked at the Pentagon and until February 2008 was deputy director for the Washington Liaison Office of the U.S. Pacific Command.

On January 2010 he was sentenced to 3 years of prison.

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