Julie Webb-Pullman
The Cuban Five, anti-terrorist fighters jailed in the US since 1998, had their convictions reversed on August 9 in an historic and unanimous decision by three judges of the US Court of Appeals Eleventh Circuit in Atlanta.
Gerardo Hernandez, Antonio Guerrero, Ramon Labanino, Rene Gonzalez and Fernando Gonzalez were serving sentences ranging from 15 years to two life sentences plus 80 months in separate prisons around the US for various alleged spying offences, and one for conspiracy to commit murder.
The Appeal Court decision follows a report by the UN Working Group on Arbitrary Detention of the UN Commission on Human Rights, which concluded that the detention of the five Cubans was both arbitrary and in breach of international law.
The five were part of group of 14 Cubans living in Miami in 1995 who infiltrated and monitored Miami-based terrorist groups, with the sole aim of warning of, and frustrating, their planned attacks, a principle considered legitimate by the US administration to defend their country after the September 11 attacks.
In July 1998, the Cuban government submitted a memorandum to the FBI documenting the terrorist activities of the Miami-based groups, based on the information provided by the 14 Cubans.
Instead of arresting the Miami terrorists, on whom the FBI had their own extensive files, 10 of the 14 Cubans were arrested. Five accepted plea bargains and were tried separately, and the remaining five were subjected to a farcical politically motivated trial that has finally been judicially exposed for the travesty of justice it was.
The judges' decision addressed only one of the eight or nine issues raised at the appeal hearing on March 10, 2004 — that of change of venue.
The defendants' lawyers argued that the pervasive community prejudice against Fidel Castro and the Cuban government and the publicity surrounding the trial combined to create a situation where they were unable to obtain a fair and impartial trial. The judges agreed, unanimously reversing the convictions and overturning their sentences, and remanding them for a new trial on a date yet to be determined.
Leonard Weinglass, appeals attorney for Guerrero, said at a press conference in the US on August 10 that this landmark decision is probably the finest example of a judicial analysis of what is required for a fair trial in the US, and will be used as a precedent throughout the US.
"Never before in the history of the United States has a Federal Circuit Court of Appeals reversed a trial court's finding with respect to venue. This is a first. And in writing their opinion ... the court analysed in great detail virtually every facet of the case of the community, of the publicity, the attitude of the jurors, the actions of the prosecutor, and the motions that were made during trial and after trial. It is as extensive and factual in detailed an analysis on the issue of venue that I have ever seen in a written opinion by any court anywhere."
Aside from making legal history, the successful appeal represents the first small shred of justice to surface in the sorry saga of US misadministration of due process that led to these convictions, and while welcoming the Appeal Court decision as an important step towards the five's freedom, there is still the matter of remand to be addressed, and possibly yet another trial to be endured by the defendants and their families.
In the US justice system, a person is considered innocent until proven guilty. The convictions of the five have been reversed, rendering their guilt unproven. On September 12, these innocent men will have already spent seven years behind bars, during which time US prison authorities acknowledge they have all been model prisoners.
How long will the retrial process take to play out — another two, three, four, five years? Given the time already served by these innocent men, and their impeccable behaviour while incarcerated, is there any need for further periods of imprisonment pending the retrial?
As evidence from US military personnel at the first trial demonstrated, the five posed no threat to US security, and these anti-terrorist fighters certainly pose no threat to the US public or to any peaceful citizen of the world, rather the opposite.
Do they pose a threat of flight? Hardly — they openly and voluntarily handed over all of the information on their activities to the FBI months before they were arrested, months during which they had plenty of time to leave the US, if that was their intention.
The miscarriage of justice identified by the Atlanta Appeals Court is compounded by abuses of human rights, the focus of considerable international concern by Nobel laureates such as Nadine Gordimer, organisations such as Amnesty International and the UN, and thousands of citizens from more than a hundred countries throughout the world.
In addition to the arbitrary and unnecessary use of solitary confinement, they have expressed extreme concern that Hernandez and Gonzalez and their families have been subjected to cruel and inhumane punishment by the refusal of US immigration authorities to grant family members visas to enable them to visit the men in prison.
Visas have been denied to Adriana Perez Oconor, unable to visit Gerardo since his arrest in 1998, and Olga Salanueva, unable to visit Rene since 2000 when she was deported from the US. Olga and Rene's seven-year-old daughter Ivette last saw him when she was four months old. He was chained to a chair in a prison, surrounded by guards.
With the appeal decision, the US justice system has shown that however belatedly, it is capable of reconciling truth with justice. Now it must immediately reconcile the innocent families it has split asunder.
The mountain of disallowed evidence presented at the first trial, and the equally copious evidence sealed and withheld from the defence, would render a new trial another miscarriage of justice should it proceed along similar lines. However if the necessary defence evidence was allowed, and if all prosecution evidence was made available to the defence, it is highly unlikely a prosecution would succeed.
Given the guilty pleas to the lesser charges, which carry maximum sentences of five years, and the time already served, the only fair and just course of action is to discontinue charges against the five, and release them immediately and unconditionally.
[Abridged from Prensa Latina. For a more detailed history of the case visit < http://www.plenglish.com/article.asp?ID={893732AC-420E-4EDB-A HREF="mailto:BD3F-1E3E7B8FADB4}&language=EN"><BD3F-1E3E7B8FADB4}&language=EN>. For more information on the solidarity campaign visit <http://www.freethefive.org>.]
From Green Left Weekly, August 24, 2005.
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