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The Cuban Five, also known as the Miami Five (Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando González, and René González) are five Cuban intelligence officers convicted of espionage, conspiracy to commit murder, and other illegal activities in the United States. The Five were in the United States to observe and infiltrate the Cuban-American groups Alpha 66, the F4 Commandos, the Cuban American National Foundation, and Brothers to the Rescue.
At their trial, evidence was presented that the Five infiltrated Brothers to the Rescue, obtained employment at the Key West Naval Air Station in order to send the Cuban government reports about the base, and had attempted to penetrate the Miami facility of US Southern Command. On February 24, 1996, two Brothers to the Rescue aircraft were shot down by Cuban military jets in international airspace while flying away from Cuban airspace, killing the four US citizens aboard. One of the Five, Gerardo Hernández, was convicted of conspiracy to commit murder for supplying information to the Cuban government which according to the prosecution led to the shootdown. The Court of Appeals has, however, reversed the conviction on the conspiracy to commit murder, since there is no evidence that Hernández knew the shootdown would occur in international airspace.
The Five appealed their convictions and the alleged lack of fairness in their trial has received substantial international criticism. In June 2009 the US Supreme Court declined to review the case. In Cuba, the Five are viewed as national heroes and portrayed as having sacrificed their liberty in the defense of their country.
Since the Cuban Revolution, there have been many acts of terrorism being committed with impunity against Cuba by US-based counterrevolutionary exile groups such as Coordination of United Revolutionary Organizations (CORU), Alpha 66, and Omega 7 in 1960s and 1970s. In a 2001 report by Cuba’s Permanent Mission to the United Nations, the Cuban government cataloged 3,478 deaths as a result of “terrorism”, “aggression”, “acts of piracy and other actions”. The events cited span the course of four decades and pertain to attacks such as the bombing of Cubana Flight 455 by men trained by the Central Intelligence Agency, and the CIA-supported Bay of Pigs invasion and the War Against the Bandits between the government and anti-communist rebels in the Escambray Mountains (see also Operation Mongoose and United States and state terrorism#Cuba (1956-present)). As a result, the Cuban government had long sought to combat these groups, including through the use of spies sent to the US, where they were based. The FBI and other U.S. organizations had been monitoring the activities of Cuban spy suspects for more than 30 years.
The “Cuban Five” were Cuban intelligence officers who were part of “La Red Avispa”, or Wasp Network, which the Federal Bureau of Investigation (FBI) dismantled with 10 arrests in 1998. According to Gerardo Hernández, the leader of the cell, and as reported by Saul Landau in the political magazine Counterpunch, the network observed and infiltrated a number of Cuban-American groups: Alpha 66, the F4 Commandos, the Cuban American National Foundation, and Brothers to the Rescue. The court found that they had infiltrated Brothers to the Rescue, a Miami-based organization that flew small aircraft over the Florida straits in efforts to rescue rafters fleeing Cuba, and which the Cuban government believed had on some flights intentionally violated Cuban airspace and dropped leaflets. They obtained employment as laborers at the Key West Naval Air Station and sent the Cuban government detailed reports about the movement of aircraft and military personnel, and descriptions of the layout of the facility and its structures. They also attempted to penetrate the Miami facility of Southern Command, which plans and oversees operations of all US military forces throughout Latin America and the Caribbean. On February 24, 1996, two Brothers to the Rescue aircraft were shot down by Cuban military jets in international airspace while flying away from Cuban airspace, killing four US citizens aboard. The US government also accused the remaining four of lying about their identities and sending 2,000 pages of unclassified information obtained from US military bases to Cuba. The network received clandestine communications from Cuba via the Atención numbers station.
US government organizations, including the FBI, had been monitoring Cuban spy activities for over 30 years, but made only occasional arrests. However, after the two Brothers to the Rescue aircraft were shot down by Cuban MiGs in February 1996 and four US citizens were killed, on the basis of information sent to Cuba by an infiltrator of the group, the Clinton administration launched a crackdown. According to US attorney José Pertierra, who acts for the Venezuelan government in its attempts to extradite Luis Posada Carriles, the crackdown was aided by the cooperation of the Cuban authorities with the FBI in 1997. The Cubans provided 175 pages of documents to FBI agents investigating Posada Carriles’s role in the 1997 bombings in Havana, but the FBI failed to use the evidence to follow up on Posada. Instead, they used it to uncover the spy network that included the Cuban Five. According to FBI evidence at the trial, the FBI had been monitoring the communications of Hernández, whose information enabled the shootdown, for several years prior to that event. He was not arrested until 1998.
Arrests, convictions and sentences
All five were arrested in Miami, Florida, on September 12, 1998 and were indicted by the US government on 25 different counts, including charges of false identification and espionage. Seven months later, an additional indictment was added for Gerardo Hernández – conspiracy to commit murder in connection with the shoot-down of the Brothers to the Rescue aircraft. The additional charge followed months of public and media debate in Miami, with Cuban exile groups pressing for the charge.
Hernández states that from the day of their arrests, five spent 17 months in solitary confinement. The President of the Cuban National Assembly Ricardo Alarcón de Quesada stated that evidence that “belonged to the defendants themselves and included family photographs, personal correspondence and recipes” – was classified as “secret”, preventing the defendants and their attorneys from seeing it.
The trial, beginning in November 2000, went on for seven months, although jury deliberations lasted a few hours. In June 2001, the group was convicted of all 26 counts in the United States District Court for the Southern District of Florida in Miami, including the charge of first-degree murder against Gerardo Hernandez which the prosecution had applied to withdraw. The prosecution had tried to withdraw the case when it became clear that the judge’s jury instructions would specify that the murder charge required that the deaths occurred within US jurisdiction, which it had been unable to show. The prosecution also applied for an emergency writ, which was denied, that the instructions should exclude reference to jurisdiction.
In December 2001, the members of the group were sentenced to varying prison terms: two life terms for Hernández, to be served consecutively; life for Guerrero and Labañino; 19 years for Fernando Gonzáles; and 15 years for René Gonzáles. In addition, the prosecution sought the post-release deportation of the three Cuban-born members, and for the two US-born members, a post-release sentence of “incapacitation”, imposing specific restrictions on them after their release, which would be enforced by the FBI. The restrictions ban them 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.”
After the arrests, motions by the defense for a change of venue, on the basis that Miami was a venue too associated with exile Cubans, were denied, despite the fact that the trial began just five months after the heated Elian Gonzalez affair. The jury did not include any Cuban-Americans but 16 of the 160 members of the jury pool “knew the victims of the shootdown or knew trial witnesses who had flown with them.” According to Ricardo Alarcon, President of Cuba’s National Assembly, a year later, an application to change venue for the same reason was granted by the same court in an employment case with a Cuban connection. As a result the Five applied for annulment of the trial and a change of venue for a retrial; the motion was denied. According to Alarcon, the Five’s appeal to a higher court was inhibited by further month’s solitary confinement in early 2003, and by denial of access to their attorneys. On August 9, 2005, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit in Atlanta unanimously overturned the convictions and sentences of the Cuban Five and ordered a new trial outside of Miami, saying that the Cuban exile community and the trial publicity made the trial unfavorable and prejudicial to the defendants. This was the first time a Federal Circuit Court of Appeals reversed a trial court’s finding with respect to venue. However, on October 31, 2005 the Atlanta court agreed to a US government request to review the decision, and in August 2006 the ruling for a new trial was reversed by a 10-2 vote of the Eleventh Circuit Court of Appeal sitting en banc. Charles R. Wilson wrote the opinion of the majority.
On June 4, 2008, a 3-judge panel of the Eleventh Circuit Court of Appeals upheld the convictions of the “Five” but vacated and remanded for resentencing in district court the sentences of Guerrero, Labañino, and Fernando González. The court affirmed the sentences of Gerardo Hernandez and Rene Gonzalez. The court held that the sentencing judge had made six serious errors and remanded the case back to the same court. The decision was drawn up by William Pryor. In January 2009, the Five appealed to the US Supreme Court. 12 amicus curiae briefs were filed.
In May 2009, in response to the request for Supreme Court of the United States review of the panel decision by Judge Pryor, Solicitor General Elena Kagan, on behalf of President Barack Obama, filed a brief asking that the petition for a writ of certiorari be denied. On June 15, 2009, the Supreme Court denied review 
On October 13, 2009, Antonio Guerrero’s sentence was reduced to 22 years. On December 8, 2009, Ramon Labanino and Fernando Gonzalez’s sentence were reduced to 30 years and 18 years, respectively. 
International criticism of the convictions, and US response
|“||Holding a trial for five Cuban intelligence agents in Miami is about as fair as a trial for an Israeli intelligence agent in Tehran. You’d need a lot more than a good lawyer to be taken seriously.||”|
Since their conviction, there has been an international campaign for the case to be appealed. In the United States, the campaign is most conspicuously represented by the National Committee to Free the Cuban Five which is represented in twenty US cities and over thirty countries.
On 27 May 2005, the United Nations Commission on Human Rights adopted a report by its Working Group on Arbitrary Detention stating its opinions on the facts and circumstances of the case and calling upon the US government to remedy the situation. Among the report’s criticisms of the trial and sentences, section 29 states:
29. The Working Group notes that it arises from the facts and circumstances in which the trial took place and from the nature of the charges and the harsh sentences handed down to the accused that the trial did not take place in the climate of objectivity and impartiality that is required in order to conform to the standards of a fair trial as defined in article 14 of the International Covenant on Civil and Political Rights, to which the United States of America is a party.
Amnesty International has criticized the US treatment of the Cuban Five as human rights violations, as the wives of René Gonzáles and Gerardo Hernández have not been allowed visas to visit their imprisoned husbands. Amnesty said in early 2006 that it was “following closely the status of the ongoing appeals of the five men of numerous issues challenging the fairness of the trial which have not yet been addressed by the appeal courts.” The US Government has responded to these claims, stating that the prisoners have received over a hundred visits from family members granted visas. The government contends that the wives of González and Hernández are members of the Cuban Intelligence Directorate, and thus pose a risk to the National Security of the United States:
Consistent with the right of the United States to protect itself from covert spies, the U.S. government has not granted visas to the wives of two prisoners. Evidence presented at their husbands’ trial revealed that one of these women was a member of the Wasp Network who was deported for engaging in activity related to espionage and is ineligible to return to the United States. The other was a candidate for training as a Directorate of Intelligence U.S.-based spy when U.S. authorities broke up the network.
Eight international Nobel Prize winners have written and sent a document to the US Attorney General calling for freedom for the Cuban Five, signed by Zhores Alferov (Nobel Prize for Physics, 2000), Desmond Tutu (Nobel Peace Prize, 1984), Nadine Gordimer (Nobel Prize in Literature, 1991), Rigoberta Menchú (Nobel Peace Prize, 1992), Adolfo Pérez Esquivel (Nobel Peace Prize, 1980), Wole Soyinka (Nobel Prize in Literature, 1986), José Saramago (Nobel Prize in Literature, 1996), Günter Grass (Nobel Prize in Literature, 1999).
In April 2009, a Brazilian human rights group, Torture Never Again, awarded the Five its Chico Mendes Medal, alleging that their rights had been violated, declaring that “their mail is censored and their visiting rights are very restricted.”
JESSE FREESTON, PRODUCER, TRNN: After more than ten years in US prisons, five Cuban intelligence agents, known collectively as the Cuban Five, have received shocking new information regarding their trial and conviction.
GLORIA LA RIVA, DIRECTOR, COMMITTEE TO FREE THE CUBAN FIVE: For the first time, today we are revealing the payments made to the Miami journalists by the Office of Cuba Broadcasting and the Broadcasting Board of Governors through Radio and TV Martí during the time of the Cuban Five’s detention and trial. What makes a secret payment so egregious is that they were made by the same government that was prosecuting the five Cubans.
FREESTON: The five were arrested in 1998 and convicted in 2001 on a series of charges and given lengthy prison sentences. They maintain that they were spying not on the US government but on Cuban exile terrorist groups based in Miami. The convictions were controversial due to a perceived lack of evidence and the severity of the sentences. These were joined by concerns that the trial should have never taken place in Miami, home to the world’s largest anti-Castro Cuban exile community. Today the fate of the Five stands intertwined with another famous Miami controversy. In 2006, Miami Herald journalist Oscar Corral broke a page-one story that at least 10 Miami-based journalists were accepting payments from the US government without disclosing those payments to their audiences at their independent outlets. The payments came from Radio and TV Martí, two stations that the US broadcasts into Cuba with the stated goal of promoting a free and open society. The Broadcasting Board of Governors, or BBG, is the agency under the US State Department that oversees the roughly $40 million budget to the Martí programs.
LETICIA KING, SPOKESPERSON, BROADCAST BOARD OF GOVERNORS: There’s nothing irregular in our hiring independent journalists. This is an industry norm, to have people paid a modest fee for contributing to on-air programs. There’s nothing that we’re trying to hide. And all of that was for on-air contributions. It was unrelated to any domestic coverage.
FREESTON: Professor on media ethics and law at the University of Minnesota Jane Kirtley followed the story closely when it broke in 2006.
JANE KIRTLEY, PROF. OF MEDIA & LAW, UNIV. OF MINNESOTA: The separation between the government and the press in the United States traditionally has been pretty absolute, and particularly when you’re talking about something like Radio Martí, which is—the government itself would say—a propaganda arm, that that’s simply not an appropriate role for journalists to play.
FREESTON: The story resulted in the immediate firings of three reporters at The Miami Herald‘s Spanish language sister paper, El Nuevo Herald. But after loud protest by the Cuban exile community in Miami, the publisher of both papers was forced to resign and the three reporters were rehired. This baffled many outside of Miami.
KIRTLEY: The Cuban-American community in South Florida, at least a good chunk of them, are comfortable with this idea of reporters and commentators working both for independent news organizations and for the government. In many respects, they view their role as advocates, as opposed to disinterested, independent journalists. They think part of their mission is to try to help in undermining the communist regime in Cuba.
FREESTON: Four years since the fallout, and new information shows that the payments go back to at least the arrest and trial of the Cuban Five. During the trial, the defense repeatedly asked for a change of venue, and though it was a decade before these government payments would be known, they cited the lopsided local media coverage as a reason for the change. Their requests were denied.
LA RIVA: Imagine if during the trial’s beginning, when the defense was seeking a change of venue, if this fact of government-paid journalists who have been covering for 26 months before the trial—hostile coverage—imagine if the defense had known. Does anyone really believe that the trial would have taken place in Miami?
FREESTON: Salvador Capote, writing for the CubaDebate site, counted 806 articles related to the case in El Nuevo Herald, of which he classified zero as positive. At least 239 of the articles were written by recipients of government payments, including 96 by Pablo Alfonso, who received at least $58,000 in government funds between the Five’s arrest and conviction, by far the most of anyone.
LA RIVA: Wilfredo Cancio Isla was a reporter for El Nuevo Herald, the newspaper with the highest Spanish-language distribution in Miami. He received $4,725 from September 30, 2000, to September 3, 2001—part of the period of the prosecution of the Five. Keep in mind that the jury was not sequestered. So on June 4, 2001, the very day that the jury began its deliberation on the question of guilt or innocence, Wilfredo Cancio Isla appeared in El Nuevo Herald with the headline: “Cuba used hallucinogens to train its spies”. This article claims from an unnamed source—a supposed Cuban spy defector—that Cuba gives its spies LSD or other hallucinogens in order to train them for missions abroad, as if to imply, by mentioning the Five in an article about hallucinogens, that the Five were given drugs to control their minds.
FREESTON: For more than a year, the committee to free the Cuban Five has been demanding to see the contracts that the government signed with these journalists. The Partnership for Civil Justice is representing the committee and these Freedom of Information proceedings.
MARA VERHEYDEN-HILLIARD, LAWYER, PARTNERSHIP FOR CIVIL JUSTICE: This is conduct by the Broadcasting Board of Governors, through its Office of Cuban Broadcasting, that violates domestic law in the United States. It violates the Smith-Mundt Act, under which the US government may not seek to propagandize the domestic population of the United States.
FREESTON: Recent law school graduate Jeremy Berkowitz is one of very few people to have written about the Smith-Mundt Act. He believes that the contracts will need to be seen before a legal violation can be proven.
JEREMY BERKOWITZ, RECENT GRAD, CATHOLIC UNIV. LAW: If there is evidence that’s revealed that could show that there were specific ties between government payments and these journalists writing specific articles on certain topics, then there could potentially be a violation of the Smith-Mundt Act.
VERHEYDEN-HILLIARD: We have gone to court to demand these records. We have filed federal litigation. They will not turn them over. Why are they withholding the contracts? Withholding the contracts makes it clear that the government is now engaged in a coverup of these operations that are being exposed.
FREESTON: The BBG denies the coverup claims.
KING: I can assure you that as an agency we are very mindful about FOIA [Freedom of Information Act] obligations and are happy to fulfill them. So we are not trying to complicate things.
FREESTON: The BBG’s legal filings cite procedural errors on the part of the Committee to Free the Five as the reason for not disclosing the contracts.
COL. LAWRENCE WILKERSON, FMR. CHIEF OF STAFF TO COLIN POWELL: Well, it’s not very difficult to withhold information when someone makes a FOIA request.
FREESTON: Col. Lawrence Wilkerson, former chief of staff to Secretary of State Colin Powell, has taken a keen interest in the case of the Cuban Five.
WILKERSON: I’m sure that throughout the bureaucracy, the federal bureaucracy, there are those who labor away every day to fulfill the letter of the law and the spirit of the law with regard to the Freedom of Information Act. But I also know there are people at the highest levels who know how to thwart, or at least thwart for a time, the requirements of that act. And you do it by simply obfuscating; you do it by demanding ever more specific information because you can’t find the information that they’re looking for.
FREESTON: The lawyer in the Freedom of Information case, Mara Verheyden-Hilliard, admits that they have low expectations for the contracts.
VERHEYDEN-HILLIARD: Although, realistically, would we expect that the US government would write, “Dear Sir, we’re writing you a contract for you to illegally propagandize the domestic public”? I don’t think so. I think what they do, they pay people, people write articles, people have interest in writing articles, they receive cash, and at no point do they disclose they’re on the payroll of the US government.
HEIDI BOGHOSIAN, EXEC. DIR., NATIONAL LAWYERS GUILD: The timing of the paid-for journalism suggests a concerted plan existed to taint the judicial proceedings and to tilt the outcome of the trial toward guilty verdicts, depriving the defendants of our cherished Sixth Amendment right to a fair trial by an impartial jury.
FREESTON: The convictions were already overturned once on appeal back in 2005.
BOGHOSIAN: The Eleventh Circuit three-judge panel cited the legal standard of, quote, “inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial.”
FREESTON: The attorney general at the time, Alberto Gonzales, appealed that decision, and the convictions were reinstated. All this took place before the payments to journalists were discovered. Trial laywer for the Five Leonard Weinglass believes that the law is on their side.
LEONARD WEINGLASS, LAWYER REPRESENTING THE CUBAN FIVE: Government agents are obligated not to do anything that will increase the prejudice in the venue. And if you read the articles that were put out by these individuals who were being paid by the government, these articles are very damning of the Five and certainly increased the prejudice in the community.
FREESTON: The US attorney’s office in South Florida who originally prosecuted the Five declined to comment on the demand for a retrial. On Monday, June 14, one of the Five, Gerardo Hernández, who is serving two life sentences plus 15 years, will be in court again to demand the convictions be overturned. Come back for part two, when we look into the politics that surround the case of the Cuban Five.
End of Transcript
DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.