The Cuban Five: A Starkly Controversial Case

• Members of the "Wasp Network," were arrested in 1998 and charged with espionage, false
• Five men, known as the "Cuban Five", have filed an appeal of their unusually long prison sentences, hoping to have their case reviewed by the U.S. Supreme Court
• The U.S. judicial system and the Bush Administration have been accused of violating the legal rights of the Cuban inmates as a result of its Cold War mentality during the former president's tenure
• Latin American presidents, Nobel prize winners and human rights organizations have called for their release

During Barack Obama's first three months in office, his administration took several tentative steps toward rehabilitating the U.S. relationship with Cuba. Up to now such ties have been dominated by unremitting hostility towards the Castro Regime of over the last five decades since the 1959 communist revolution as well as the installation of the U.S. embargo in 1962. On April 13, as a sign of a political opening, Obama lifted the restrictions that his predecessor, George Bush, had placed on Cuban-Americans' ability to send remittances at will back home and to visit their relatives on the island. He also relaxed rules governing the activities of the U.S. telecommunications industry there.

Such changes in policy, despite being heralded by some as the initial phases of a process to end the U.S. trade embargo on Cuba, in reality fall short of accomplishing this feat. Rather, these controlled and very modest moves can only sustain the U.S.-Cuba standoff even if they serve to reignite a debate over the nature of Washington's relations with Havana. With Obama's reform deserving to be seen as only a minimum gesture of detente between the two foes. His efforts are more representative than a Mickey and Minnie mouse de-marche than a courageous move aimed at proving results. It is a fallacious view that upholding the embargo will give his administration a leveraged position with Havana. Nevertheless, Obama's recent actions are significant because they may serve to reopen discussions regarding an enormously important 1998 espionage case involving the apprehension, trial and sentencing of the "Cuban Five".

The Cuban Five
The "Cuban Five," Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez, and Rene Gonzalez were volunteer members of the fourteen-member Wasp Network, La Red Avispa, which was headed by the Direccion de Inteligenica (DI), a branch of Havana's foreign intelligence service. The network was disbanded that year after FBI agents obtained evidence that the group was engaged in illegal espionage activities against violence prone anti-Castro organizations based in Florida. Four Wasp members are believed to have fled to Cuba before they could be apprehended and five other members cooperated with U.S. federal authorities by pleading guilty to being unregistered foreign agents and are currently serving time (29 years collectively) in federal prison.

The remaining five attracted brief media attention in the U.S. after having plead innocent to charges ranging from false identification to the far more serious accusation of conspiracy to commit murder. These detainees remain imprisoned after being found guilty by a jury. Meanwhile, the U.S. government continues to face intense international criticism for having committed human rights violations, which were allegedly carried out before and during the course of their trial. The perpetrators of these gross obstructions of justice were carried out by officials in the heavily politicized Miami Federal Attorney's office and a Federal Branch , including Joan Lenart, which were veritable "shock" troops for a radically right wing campaign to "get" the Cuban Five. The defendants were denied visitation with their families, had limited communication with their lawyers, and were also subjected to seventeen months of solitary confinement during the trial. The fate of the five now lies in the hands of the U.S. Supreme Court, which is due to decide in 2010 whether or not it will hear the defendants' appeal against the Bush administration's era charges.

The Cuban Five and Wasp Operations
A significant element of the case against the Cuban Five relates to their interaction with the Wasp Network, which was assigned to monitoring and infiltrating the virulent anti-Castro organization, Brothers to the Rescue (BTTR). BTTR was founded to help rescue Cuban refugees trying to flee the island by raft. Its tactics include broadcasting information such as the text of the UN Declaration of Human Rights from airplanes flying in international airspace, in order to encourage Cubans to stand up to the authorities. On February 24, 1996, the Wasp Network launched a fatal mission, Operation Scorpion, which was to later form the basis of the charges of alleged conspiracy of murder that was brought against the Cuban Five.

Having received secret radioed instructions from the DI, Hernandez gave orders to undercover operative Rene Gonzalez and another Wasp member, Jose Pablo Roque, that they were not to fly with the BTTR between February 24 and February 27, 1996. On February 24, three BTTR planes, flying over the Florida straits, crossed into international airspace then purportedly into Cuban airspace. Havana, over the course of several months, repeatedly asked the U.S. to stop the BTTR from attempting to breach Cuban airspace, due to the dire consequences that might be forthcoming. In fact, U.S. officials did communicate such information to the anti-Castro forces. While the U.S. authorities nominally did move to discourage such flights, as a consequence of Washington's basic inaction regarding these provocative moves, two Cuban military aircrafts were launched to intercept the three BTTR aircrafts; two were shot down with the loss of four lives. A subsequent investigation was ordered by the International Civil Aviation Authority to determine if the hostile aircrafts were in Cuban or international airspace when they were downed. The operation ultimately earned Cuba a unanimous condemnation by the UN Security Council in July 1996.

The DI, which opportunely was located in Miami, also sent Hernandez to oversee the success of Havana's efforts to penetrate U.S. military facilities. The overarching goal of infiltrating these bases was to report on the quantity and types of aircrafts arriving and departing from the bases, monitor U.S. military personnel in key zones, identify new communication devices which had been installed, establish radio frequencies, gauge physical security procedures being followed, as well as to identify those who could potentially be recruited as spies or serve as subjects of interest to the Cuban intelligence services. The DI also planned for two Wasp Network agents to penetrate the re-election campaign of hard line Cuban-American Representative Lincoln Diaz-Balart, who was known to be aggressively opposed to the normalization of U.S. relations with Cuba. The purpose of this move was to gather information that could later be used to discredit, harass or neutralize him and other well-known Cuban-American congressional ideologues.

The FBI had been monitoring the Wasp Network since 1995, and in September 1998, it moved to dismantle the group by apprehending its members and unearthing the information that the intelligence organization had collected. U.S. federal prosecutors submitted more than 1,200 pages of detailed communication reports between the DI and the Cuban Five, which it had obtained from the computers being utilized by Wasp members.

The Case
In certain respects, the proceedings involving the Cuban Five were the longest of its kind in U.S. legal history. All told, 119 volumes of testimony and more than 20,000 pages of exhibits and evidence were presented. Great controversy surrounded the defendants' June 8, 2001 conviction on all charges. Since their 1998 arrests, they have remained incarcerated, awaiting a decision by the Supreme Court on whether it will review their case.

Central to the decision of the Cuban Five's defense team, led by Thomas Goldstein, has been the decision to appeal the verdict (filed January 30, 2009), based on the argument that the selection of the jury, and the environment in which the trial took place, prejudiced the proceedings. The equal protection clause of the U.S. Constitution states that no one can dismiss jurors on the basis of race. In the filed appeal, defense lawyers claimed that prosecutors unfairly removed seven potential African American venire men from the jury pool. In the end, three African Americans jurors were selected, but no Cuban-Americans. However, the defense team will argue that the Cuban-American presence nevertheless was felt throughout the trial.

Moreover, despite the increasing silhouette in international law allowing for a person to be tried in a location different from that in which a crime was allegedly committed, federal district judge Joan A. Lenard, known for her right-wing proclivities, refused to grant a change of venue from Miami, even though this would have advanced the prospects of fair trial. The fact that Miami is home to many Cuban exiles that hold strong opinions and sentiments against the Castro regime in Havana failed to sway Lenard. As CNN reported at the time, the danger was that, "The pervasive and violent anti-Castro struggle of the Miami community would not only infect the jury with hostility but would cause jurors to fear for their (and their families') safety, livelihoods, and community standing if [they're] acquitted."

On its first appeal, the Court of Appeals agreed with the defense's assessment and overturned the Cuban Five's convictions because the appellate judges felt that the trial took place in a prejudiced environment. In spite of this reasoning, the full Court of Appeals later disagreed with that judgment and reinstated the convictions of the Cuban Five, a move which now leaves the men to wait for the results from the Supreme Court's deliberations. The new judgment also expanded the charges pending against Hernandez to include conspiracy to commit murder, for his direct involvement in the 1996 shooting of the two BTTR planes, and the resulting four deaths of members of that organization. During their collective trials, the Cuban Five did not deny their covert service in favor of Cuba's DI, but rather tried to give the impression that, in fact it was they who were fighting against terrorism and protecting Cuba. Their defense was that they were monitoring the terrorist actions of Miami-based anti-Castro groups, who were actively involved in terrorist activities, and who they feared would attack their native country.

Guerrero, Hernandez and Labanino were all convicted of conspiring to commit espionage in the United States. Hernandez was convicted of conspiracy to commit first-degree murder based on his role in the February 1996 BTTR plane crashes and deaths of their four passengers (who were all U.S. citizens). All five have been convicted of conspiracy to act in the U.S. as agents of a foreign government without notifying the Department of Justice, and conspiracy to defraud the United States. Hernandez has been sentenced to two life terms, Guerrero and Labanino each have been given one life sentence, Fernando Gonzalez has been sentenced to nineteen years and Rene Gonzalez is currently serving a fifteen-year sentence.

Human Rights Violations
Human rights groups such as Amnesty International have criticized the U.S. government's policy regarding the Cuban Five and have accused it of perpetrating human rights violations against the group. Beginning with their arrest and subsequent trial three months later, the five Cuban defendants have been held without bail for a period of thirty-three months. They were incarcerated in solitary confinement cells for seventeen months with all contact between the defendants and their families cut off. Olga Salanueva and Adriana Perez, the wives of Rene Gonzalez and Gerardo Hernandez, were deported back to Cuba, and their requests for temporary U.S. visas were denied. The U.S. government justified its draconian treatment of the alleged culprits by stating it was exercising its legitimate authority to protect itself against covert spies and their affiliates. Evidence was presented at the trial, which revealed that both wives were in fact members of, or at least affiliated with the Wasp Network, and thus were labeled as bona fide threats to Washington's national security.

In August 2001, upon being found guilty, the Cuban spies were remanded to serve solitary confinement once again, this time for a period of forty-eight days, prior to their pre-sentencing hearings, and then, in March 2003, when they were sent to isolation cells on orders from the Bush Department of Justice. Justice continued to claim that the Cubans were still active threats to U.S. national security. Throughout this period, the Cuban inmates were prohibited from receiving correspondences from their families as well as their lawyers, which the defense contended was a clear violation of domestic and international law. These human rights violations have been submitted along with procedural complaints over aspects of the original trial, as part of the basis of the defense team's later appeal to the Supreme Court.

Cuba's Response to the Convictions
In Cuba, the defendants have become national icons and are today more commonly known as the "Five Heroes," serving as symbols of the political struggle between their native country and the U.S. Their images decorate the entire country, with posters as well as block-long murals invoking their names along with inspirational quotes from them, one of which says "volveran," meaning, "they will return". A mural honoring their service to Cuba was dedicated to the national heroes in Santa Clara, Cuba on March 13, 2009. The imprisoned Cubans have been transformed into major propaganda figures for Havana, with their personal virtues and willingness to sacrifice for their country praised and memorialized on postcards, factory walls, billboards, and in newspapers, as well as being invoked during formal ceremonies and in speeches by Cuban officials. Additionally, there are websites, such as the National Committee to Free the Cuban Five, which points to the patent violations of justice during their trial and the unbalanced treatment of those the U.S. describes as spies. As a result, there is a clear sentiment in Cuba that justice is only blind when it is conducive to U.S. ideological interests.

As reported over NPR, the Cuban population regards the Cuban Five as heroes who are "prisoners of the empire, unjustly held in the United States." Cuban officials maintain that the incarcerated prisoners are Cuban nationalists and patriots who are enduring excessively harsh punishment, as a consequence of the ongoing hostility between the U.S. and Cuba. Many ordinary Cubans feel that the U.S. employs a double standard in its War on Terror, because as violent opponents of the Castro regime sometimes kill pro-Havana militants, the U.S. government casts a blind eye to these malicious crimes. Furthermore, these aggressors have launched repeated criminal acts of violence against Cuba, which have not been subject to the same rigid judicial standard as those who are avowedly pro-Castro. Elizabeth Palmero, the wife of Labanino, drafted a statement defending the cause of the Cuban Five, stating the reason why they are regarded as national heroes in Cuba, was that, "The [five] personify the resistance of the Cuban people. They personify the will of the Cuban people to decide their destiny to have the government that we wish."

Domestic and International Reactions
Five Latin American presidents, ten Nobel Prize Laureates, prominent intellectuals, religious figures, union leaders, head of legal and human rights organizations, artists, members of parliament, and leading civic personalities around the world have been calling for the release of the Cuban Five. There have been petitions, which have sought to win over the interest of both Secretary of State Hillary Clinton and President Obama. Apologists for the actions of the jailed Cubans have hammered away at Washington's alleged violations of international law, due process and fair trial. All of these efforts have been focused on calling for the pardoning and release of the jailed Cubans and the granting of humanitarian visas to their deported wives to provide for visitation rights for them immediately.

The recent lifting of travel restrictions for Cuban-Americans suggests that the U.S. may slowly be trying to create a new relationship with Cuba, replacing a policy which for so long has crippled relations between Havana and Washington. The current Cuban president, Raul Castro, has suggested a prisoner swap if need be, which should be staged in a manner that would send all of Cuba's political prisoners and their families to the United States in exchange for the five convicted Cuban spies. Yet it appears that quite a few of the Cuban political prisoners do not want to be part of such a deal, reflecting a distinct spirit of plurality that exists among the group. As the Washington Post has recently reported, some of these prisoners "prefer to stay in their homeland with their families and culture and fight for changes to the political system of their own country."

Taking it to the U.S. Supreme Court
Unlike other judicial chambers, the Supreme Court is vested with the authority to decide which cases will be heard. In a February 6, 2009 interview with their lawyer Thomas Goldstein and Democracynow.org, Goldstein claimed that the Wasp members did not steal any American secrets, and that its members were only trying to gather information on people violently opposed to the Castro regime. Goldstein also asserted in a comment to the press that the Cuban Five were "tried by jurors who took out their instinct for revenge over their anger at the Castro government and what they perceive it's done in Cuba." The defense team also claims, that Hernandez was wrongly convicted of a crime that he did not commit. Furthermore, Goldstein and the defense team feel that the defendants should have been charged as no more than unregistered aliens, which would have greatly reduced the length of their sentence. The Supreme Court will decide whether to hear the case in June 2009, and if it does, it will decide the merits of the case in 2010. Until then, the Cuban Five will be serving their time and will remain a deep source of concern for all Cubans as they continue their struggle against what they perceive as American political prejudices.

This analysis was prepared by COHA Research Associate Deanna Cox