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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 in Miami of conspiracy to commit espionage, conspiracy to commit murder, acting as an agent of a foreign government, and other illegal activities in the United States. The Five were in the United States to observe and infiltrate the U.S. Southern Command and the Cuban-American groups Alpha 66, the F4 Commandos, the Cuban American National Foundation, and Brothers to the Rescue. They were part of "La Red Avispa", or the Wasp Network,
At their trial, evidence was presented that the Five infiltrated the Miami-based Cuban exile group 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 U.S. 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 U.S. 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.
For their part, Cuba acknowledged, after denying the fact for nearly three years, that the five men were intelligence agents, but says they were spying on Miami's Cuban exile community, not the U.S. government. Cuba contends that the men were sent to South Florida in the wake of several terrorist bombings in Havana masterminded by anti-communist militant Luis Posada Carriles, a former Central Intelligence Agency operative.
The Five appealed their convictions and the alleged lack of fairness in their trial has received substantial international criticism. A three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta overturned their convictions in 2005, citing the "prejudices" of Miami’s anti-Castro Cubans, but the full court later reversed the five's bid for a new trial and reinstated the original convictions. In June 2009 the U.S. Supreme Court declined to review the case. In Cuba, the Five are viewed by the government as national heroes and portrayed as having sacrificed their liberty in the defense of their country.
René González was released in October 2011 following the completion of 13 years of his sentence with a further 3 years of probation in the US. He was allowed to return to Cuba for his father's funeral on 22 April 2013, and a federal judge allowed him to stay there provided that he renounce his United States citizenship.
In 1960s and 1970s, there were many acts of terrorism against Cuba by U.S.-based counterrevolutionary exile groups such as Coordination of United Revolutionary Organizations (CORU), Alpha 66, and Omega 7. 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, 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). As a result, the Cuban government had long sought to combat these groups. Their efforts include the use of spies sent to operate in the U.S. The Federal Bureau of Investigation 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 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 U.S. 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 U.S. citizens aboard. The U.S. government also accused the remaining four of lying about their identities and sending 2,000 pages of unclassified information obtained from U.S. military bases to Cuba. The network received clandestine communications from Cuba via the Atención numbers station.
U.S. 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 U.S. 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 U.S. 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.
All five were arrested in Miami, on September 12, 1998 and were indicted by the U.S. government on 25 different counts, including charges of false identification and conspiracy to commit 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 they spent the first 17 months of their imprisonment 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 Hernández 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 U.S. 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 González; and 15 years for René González. In addition, the prosecution sought the post-release deportation of the three Cuban-born members, and for the two U.S.-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 Alarcón, 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 U.S. 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 U.S. 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, Ramón Labañino and Fernando González's sentence were reduced to 30 years and 18 years, respectively.
In June 2010 Cuban Five defense lawyer Leonard Weinglass was preparing to file a new round of appeals that would include evidence of U.S. government payments to journalists who later authored negative articles before and during the original trial of the Cuban Five. Weinglass died on March 23, 2011. Following the death of Leonard Weinglass, civil rights lawyer, Martin Garbus took over the case. On June 13, 2012, Martin Garbus held a press conference where he revealed a new strategy based upon proof that the United States government had paid numerous reporters and press outlets to create media pressure on the jurors to convict.
In May 2012, it was reported that the U.S. had declined a "spy swap" proposed by the Cuban government, wherein the Cuban Five would be returned to Cuba in exchange for USAID contractor Alan Phillip Gross, imprisoned in Cuba for illegally providing equipment allowing Cuban Jews to have internet access.
|“||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 U.S. 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 U.S. 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 U.S. treatment of the Cuban Five as "unnecessarily punitive and contrary both to standards for the humane treatment of prisoners and to states’ obligation to protect family life", 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 U.S. 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 U.S. 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."
In 2011, Brazilian writer Fernando Morais wrote The Last Soldiers of the Cold War, about the Cuban Five. The book is based on over 40 interviews and documents of the governments of United States and Cuba.
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