[NYTr] Landau: The Cuban 5 - Victims of National Security Justice

[All the News That Doesn't Fit]

Progreso Weekly - Aug 23, 2007
http://progreso-weekly.com/index.php?option=com_content&task=view&id=108&Itemid=1

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LANDAU’S "FIDEL" TO AIR on LINK-TV

LINKTV will air Saul Landau's classic 1968 film "Fidel" 
starting Friday, August 24, at 5pm Pacific Time. LINK 
is accessible on DIRECT TV Channel 375 and on DISH TV 
on Channel 9410. 
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The Cuban Five -- victims of national security justice

By Saul Landau

In 1953, a man I knew got busted for masturbating at a public urinal. A
cop had hidden in the ceiling grate above him “to find perverts.” The
lawyer, a friend of our family, charged him $5,000. “I gave $500 to the
cop,” the lawyer explained, “bought the judge a present and paid two
witnesses $250 each to testify that he was wearing a complicated truss
and that’s what made it seem like an unnaturally long time for him to
get adjusted after he went wee wee,” the defense lawyer explained to my
father.

I have no idea if his behavior typified that era or remains a standard
today. Comedian Lenny Bruce’s quipped: “In the Hall of Justice the only
justice is in the hall,” where the payoffs occurred. Indeed, the poor,
not the middle class and certainly not the rich, inhabit U.S. jails and
prisons. Most Americans understand that equal justice for all means
police will arrest a rich or poor man sleeping under the bridge or
stealing a loaf of bread.

Those who can afford expensive lawyers usually get away with murder.
Take the cases of Claus von Bulow, who overdosed his rich wife with
insulin, or O. J. Simpson, a case where the Los Angeles police actually
framed the right guy for wife and friend killing. The accused paid
millions of dollars to top lawyers who skillfully placed seeds of doubt
in the jurors’ minds. Public defenders often lack the resources, time
and will to build minimum defenses for poor clients.

In some case, however, even the best defenders can’t buy justice,
especially when the government cites “national security.” The Cuban
Five case became victims of that phrase that usually means the
government will not tell the public what it is doing or why. It reeks
with imperial arrogance and often with vengeance as well.

The FBI busted five men (Gerardo Hernández, Antonio Guerrero, Ramón
Labañino, Fernando Gonzáles, and René Gonzáles) in 1998 and a Miami
jury convicted them in 2001 for conspiracy to commit murder, conspiracy
to commit espionage and other serious offenses. The case illustrated
the U.S. standard of justice for third world nations that disobey its
dictates.

Since Washington had failed to punish Cuba adequately for its near half
century of disobedience, the opportunity presented by the Cuban Five
fell like a serendipitous apple onto the vengeful ground of the
national security elite, the group that wages war and regularly
infringes on citizens’ rights in order to “protect” the public. This
bureaucratic posse inside executive agencies looks at the public as an
obstacle to its imperial ambitions, to the notion of accountability as
an irritant, the proverbial pimple on a sewer rat’s butt. The following
story illustrates.

In 2004, John Negroponte, then UN Ambassador en route to becoming
Ambassador to Iraq and then top U.S. spy, explained why the security
elite would have to reject an offer from the Iranian government (under
Khatami) to reopen the U.S. embassy and normalize diplomatic relations.
“In the last decades, Vietnam, Cuba and Iran have humiliated the United
States,” he explained to the diplomat -- a friend of mine -- who
delivered the message from the Iranian government. “I suppose we’ve
gotten even with the Vietnamese [4 million killed and 20 plus years of
sanctions], but there’s no way we’re having relations with Iran or Cuba
before they get what’s coming to them.” Since the elite will not wage
war on Cuba -- Cubans will fight back -- they used the Cuban Five as
surrogate punishment objects.

In the 1990s, these Cuban nationals infiltrated Florida-based
anti-Castro terrorist groups and reported on the terrorists’ activities
to Havana. In 1998, an FBI delegation traveled to Cuba. Cuban officials
gave the FBI some 1,200 pages of material, along with video and audio
tapes that incriminated groups and individuals -- their names, weapons
they carried or stored and other details that the Justice Department
could use to prosecute the terrorists.

The FBI told their Cuban counterparts they would respond in a month.
The Cubans are still waiting, but the FBI did use the material. They
arrested the Cuban Five. The Justice Department then charged them with
felonies.

Irony accompanied injustice. The five admitted they entered the United
States to access U.S.-based groups plotting terrorism against Cuba. In
fact, U.S. law actually allows people to commit crimes out of a greater
necessity, one that would prevent greater harm.

“It is a form of self-defense, extended to acts which will protect
other parties,” argued Leonard Weinglass, attorney for Antonio
Guerrero, one of the Five. Indeed, the Five’s lawyers presented this
argument to trial judge Joan Lenard, but she refused to let the jury
consider it.

Weinglass and the other attorneys argued their appeals this month
claiming the judge had erred by not submitting the “‘defense of
necessity’ claim to the jury, because the Five came to the United
States to prevent additional violence, injury and harm to others.”

The U.S. government knew all about the terrorist “accomplishments” of
Luis Posada Carriles and Orlando Bosch, for examples. Both had boasted
to reporters about their roles in terrorist acts, including the 1976
bombing of a Cuban commercial airliner -- they did this jointly -- in
which 73 passengers and crew members perished. In 1998, Posada bragged
about sabotaging Cuban tourist sites the previous year. In one bombing
carried out by his paid agent, an Italian tourist died.

“We didn’t want to hurt anybody,” he told reporters Larry Rohter and
Anne Bradach. “We just wanted to make a big scandal so that the
tourists don’t come anymore. We don’t want any more foreign
investment.” Posada said he wanted potential tourists to think Cuba was
unstable “and to encourage internal opposition.”

Posada succeeded. Less tourists came to Cuba after the Italian died in
the bombing. The Times reporters write that Posada “declared that he
had a clear conscience, saying, ‘I sleep like a baby.’” Then he said:
“That Italian was sitting in the wrong place at the wrong time.” (NY
Times July 13, 1998)

The Five came here precisely to stop such activities, says Weinglass.
“The Five’s activities were justified and necessary in order to save
lives.” Weinglass had used this very argument to defend Amy Carter,
when the President’s daughter “occupied a building, with other
students, at the University of Massachusetts, in opposition to the CIA
agents who came to the campus to recruit students into the CIA. She
acknowledged that her occupation of the building was a crime but she
argued that that was justified by the doctrine of necessity because the
CIA was then engaged in an illegal war in Nicaragua.” The jury
acquitted Amy and the other defendants.

Weinglass made a similar argument before a two-judge appeals court. In
August 2005, this court initially heard the case and decided that the
Five had not received a fair trial. The entire 12 judge panel of the
11th circuit reversed that decision despite massive evidence to show
the Miami jurors had felt intimidated. From the window of the
deliberation room they saw people taking photos of their license
plates. Jurors had reason to fear serious retribution should they vote
to acquit the Five.

The lawyers also appealed the conviction of Gerardo Hernandez for
“conspiring” to commit murder. This charge arose from the February 1996
shoot-down by Cuban MIGs of two Brothers to the rescue planes that had
violated Cuban airspace and were repeatedly warned of “grave
consequences” should they enter Cuban territory without permission. At
the trial, the Assistant U.S. Attorney acknowledged that he had no
solid evidence to back up this charge.

Weinglass noted that the Gerardo conviction marked “the first time in
history that an individual is being held liable for the action of a
sovereign state in defending its airspace.” Indeed, Cuba had every
reason and the right to maintain sovereignty over its air space. The
prosecutor made outrageous claims to the jury without citing evidence
and the judge let him. He argued without facts that Cuba had sent the
men to attack the United States. For the first time in legal U.S.
history, the U.S. Attorney’s office prosecuted a case without even
referring to a single classified document.

The Five stole no secrets; unlike FBI Special Agent Robert Hansen, or
the CIA’s Aldrich Ames who passed tens of thousands of “top secrets” to
the Soviet enemy, but two of them like the real spies, got life
imprisonment.

Was U.S. justice fairer when a lawyer could bribe a cop in a
meaningless case and rich guys could buy their way out of murder raps
-- as they still do? Not if one recalls the “national security” framing
of Sacco and Vanzetti in the 1920s and the 1953 execution of Julius and
Ethel Rosenberg, even though FBI Chief J. Edgar Hoover and President
Dwight Eisenhower both knew they had not passed atomic secrets to the
Soviets. The government had invoked “national security” under which no
justice occurs, not even in the halls.

[Saul Landau is an Institute for Policy Studies fellow. His new book is
A BUSH AND BOTOX WORLD.]