a legal update: THE CASE OF THE CUBAN FIVE

In September 1998, five Cuban men were arrested in Miami by FBI agents. They remained in the Special Housing Unit and 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 all other inmates. After a motion was filed by the defense at the end of five months asserting that their need to work on their defense was being compromised by the isolation, they were moved into a celling arrangement whereby a single cell was shared by two, twice over, with one still housed alone, but they always remained isolated from all other inmates in the Special Housing Unit for the rest of their pretrial status. and kept in isolation cells for 17 months before their case was even brought before a court. Their mission in the United States was monitoring the activities of the groups and organizations responsible of terrorist activities against Cuba.

Gerardo Hernandez, Ramón Labañino, Fernando Gonzalez, Antonio Guerrero and René Gonzalez were accused of the vague 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 them.

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, that prevented the holding of a fair trial. 

The trial, which lasted over six months, became the longest trial that the United States had known until then. More than 119 volumes of testimony and over 20,000 pages of documents were complied, including the testimonies of three retired Army generals and a retired admiral, who agreed that, did not existed evidence of espionage.

Near the trial’s conclusion, when the case was about to be presented to the jury for its consideration, the US government recognized in written that it had failed to prove the main charge of conspiracy to commit murder  against Gerardo Hernandez, alleging that it was facing an "insurmountable obstacle" in connection with winning the case. The jury nonetheless found the Five guilty of all charges, under intense pressure brought to bear on them by the local media.  

Found guilty, the Five were given in sum 4 life sentences and 77 years and were imprisoned in five completely separate maximum security prisons without communication between them. 

Text Box: Gerardo Hernández Nordelo     2 life terms plus 15 years  Ramón Labañino Salazar         1 life term plus 18 years  Antonio Guerrero Rodríguez     1 life term plus 10 years  Fernando González Llort           19 years  René González Sehwerert         15 years






Additionally they were imposed a clause according to which “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 for three of them life sentences, being 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 handled. 

The appeal process has lasted 9 years.  On August 2005 a three-judge panel of the court of appeals revoked all of the convictions on the grounds that the five accused had not received a fair trial in Miami. In an unexpected move, the government asked the twelve judges of the Court of Appeals of the Eleventh Circuit to review the panel's decision through a so-called en banc procedure. Exactly one year later, on August 2006, in spite of the strong disagreement voiced by two of the three judges who made up the panel, the Court revoked, by majority, the decision of the three judges. 

All the while, on May 27, 2005, the UN Working Group on Arbitrary Detention, after reviewing the arguments advanced by the family 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, the UN Working Group on Arbitrary Detention has denounced as arbitrary the privation of liberty in a case judged in the United States due to violations committed during the legal process.

The lack of evidence needed to substantiate the two main charges —conspiracy to commit espionage and conspiracy to commit first-degree murder—and the imposition of completely irrational and unjustifiable life sentences, has been in the course of all the appeal process another key argument advanced by the defense in its efforts to reveal the arbitrary nature of the process.

On September 2, 2008, the Court of Appeals ratified the guilty verdicts of the Five; ratified the sentences of Gerardo Hernandez and René Gonzalez; considered wrongful the sentences of Antonio Guerrero, Fernando Gonzalez and Ramón Labañino and revoked them, referring the cases once again to the Miami District Court so they could be re-sentenced (a process yet in course).  

In that occasion the full Court of Appeals recognized that not secret or national defense information was obtained or transmitted in the case of the defendants in the charge of conspiracy to commit espionage.

On the other hand, one of the three judges, the Hon. Phyllis Kravitch, affirmed in a 16-page dissident 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 U.S. Supreme Court announced, without explanation, its decision not to review the case of the Five, in spite of the solid arguments made by the defense attorneys from the obvious and multiple legal violations committed during the whole trial.

The US Supreme Court ignored also the universal backing to the petition and to the Five, expressed by 12 amicus curiae briefs, an unprecedented fact since it is the largest number of amicus briefs ever to have urged US Supreme Court to review a criminal conviction. 

Ten Nobel laureates, among them Timor Leste 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 (1992-97) 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 around the world, among them 75 members of the European Parliament, including two ex presidents and three current vice presidents of this Legislature; as well as numerous legal and human rights associations of different countries of Europe, Asia and Latin America, international personalities and legal and academic organizations in the United States.

With this US Supreme Court decision, legal resources to appeal the Atlanta Court’s ruling that ratified their convictions practically ran out.

On October 13, 2009, in the US District Court for the Southern District of Florida took place the sentencing hearing of Antonio Guerrero, during which, the same Judge that in December 2001 condemned him to a life sentence plus 10 years, was obliged to admit that in Antonio’s case does not exist evidence of gathering nor transmitting secret information. However, she imposed him an unfair sentence of 21 years and 10 months of imprisonment plus 5 years of supervised release. 

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

During these years of unjust imprisonment, the delay in the granting of visas to the relatives of the Cuban Five, imprisoned in the United States since September 12, 1998, has, in most cases, prevented these relatives from visiting the Five more than once a year on average, despite the regulations of the different prisons allowing monthly visits.

Two of them, Gerardo Hernandez and René Gonzalez, have been prevented from receiving visits of their respective spouses, Adriana Pérez and Olga Salanueva, to whom repeatedly and systematically have been denied the entry permit in US territory to accomplish these visits. 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


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 was sentenced to 3 years of prison.