[Marxism] Ricardo Alarcon: The Cuban Five in Atlanta - A Long March Toward Justice

Walter Lippmann walterlx at earthlink.net
Sat Aug 27 23:35:24 MDT 2005


(In this exceptionally complete and concise essay,
the President of Cuba's National Assembly succinctly
summarizes the case of the Cuban Five and explains
the meaning of the historic decision of the panel of
the 11th Circuit Court of Appeal which unanimously
threw out the verdict in the case. Yet these five
men, completely innocent of all charges, remain in
separate prisons, unable to freely see their loved
ones now for seven years. Alarcon puts all of this
into perspective. I strongly urge that readers post
this to every possible list after reading it with
the greatest care and attentiveness yourselves.)
================================================

http://www.counterpunch.org/alarcon08272005.html 
Weekend Edition
August 27 / 28, 2005
A Long March Towards Justice
The Cuban Five in Atlanta
By RICARDO ALARCÓN de QUESADA
"The sun of justice shall rise,
bearing salvation on its wings"
(Malaquías, 4, 2)

On 9th August last, 28 months after the defendants had filed their
arguments, the 11th Circuit Court of Appeals in Atlanta finally
handed down its verdict reversing the unjust convictions imposed over
four years ago by a Miami Court on five young Cuban anti-terrorism
fighters. The decision of the Atlanta Court was in no way a
precipitated one. The process enabling the defendants to exercise
their right of appeal was long, complex and hazardous. They had to
face a whole series of obstacles that breached principles and rules
of both American and international law, which forced them to a
defense in conditions that defy imagination. It seemed their case
would never actually reach the superior court for its necessary
review. Then, the judges in Atlanta in order to do justice dedicated
to the case four times the period used by the shameful farce in
Miami. (1).

The Atlanta decision has a truly historical significance.

To understand it, it is necessary to put it in context and to go over
- albeit briefly - the events leading up to it.

On September 12th, 1998, the FBI arrested Gerardo Hernández, Ramón
Labañino, Antonio Guerrero, Fernando González and René González. They
were accused of being unregistered agents of the Cuban government,
whose mission was to infiltrate - with the aim of revealing their
criminal plans - the terrorist groups that operate with impunity out
of Miami. None of the men had criminal records; none had ever been
accused of breaking any law or infringing any rule or regulation.
They were unarmed and had never been involved in acts of violence or
disturbances of any kind. They were nonetheless denied the
possibility of applying for a release on bail.

On the contrary, from the very day of their arrest, they were put in
solitary confinement - locked up in the infamous "hole", where they
remained for a continuous period of 17 months. They were subjected to
an entirely illegal punishment regime, restricted by US law to
dangerous criminals who commit acts of violence inside the prison,
and to a maximum of 60 days. They were prevented from mounting their
defence while a massive, ruthless press campaign was unleashed in
Miami with the participation of the prosecution, the FBI officials
and the local authorities, portraying them as dangerous enemies
guilty of the worst crimes, including the attempt "to destroy the
United States". (2). Condemned in advance without trial or
possibility of defence, they were subjected to a barrage of slander
and threats.

But that was not enough for their accusers. To make quite sure that
justice could not prevail, the government (with the agreement of the
Miami Court) classified as secret the alleged "evidence", much of
which belonged to the defendants themselves and included family
photographs, personal correspondence and recipes. The defendants and
their attorneys were thus denied access to the material, while the
government was able to arbitrarily use and manipulate it. The defence
is still now awaiting permission to view this "evidence". It has
vainly claimed it time and again before the Miami Court and appealed
in this connection to the Atlanta Court; it has still received no
reply.

These were the circumstances in which the "trial" opened, on November
27th , 2000. 26 months had gone by since the day of the five men's
arrest. And let us not forget that they spent 17 of those 26 months
buried in the "hole".

The Miami judicial farce ended in June 2001 when a submissive,
frightened jury, which had announced in advance the date and precise
hour at which it would deliver its verdicts, found them guilty on all
26 counts, after deliberations lasting just a few hours and without
asking a single question or expressing the slightest doubt. To cap it
all, it found Gerardo Hernández guilty of something - the infamous
Charge 3, first-degree murder - that the prosecution itself, in the
knowledge that it could not be proved, had applied to withdraw it.
(3).

Surprisingly, having arrived so quickly and easily at the desired
verdict, the judge took six months to pronounce the sentences. She
took as long as the "trial" itself. Why? Was she about to change or
amend in some way the conduct of the jury? Was she trying to distance
herself at least to some extent from the prosecution's request?

Nothing of the sort. The disproportionate sentences were exactly
those the government had proposed. Was it necessary to delay half a
year to respond? Why the long wait?

At the end of the trial, the judge announced that she would proceed
to sentence in September. While she took vacation, the five were
returned to solitary confinement. This time, they remained in the
"hole" for 48 days, and got out only after several efforts by their
attorneys. This further arbitrary treatment had a clear purpose: to
make preparation of their statements - their only opportunity to
address the court - as difficult as possible. When the time came,
instead of apologizing or seeking clemency, as convicted prisoners
generally do, the five vigorously condemned the farcical proceedings
and exposed the terrorists and the Government that supports and
protects them.

But something else happened in September 2001. The odious crime
committed on the 11th had shaken American society and the whole
world; the judge decided to postpone the sentencing sessions. It was
an unusual deferral: three months. It was not mourning of or homage
to the victims of that atrocity which caused the delay. Rather, it
was quite the opposite.

Her reasons were utterly different. What she and the government were
proposing to do was, among other things, a gross affront to the
victims of that fateful day. They needed to separate the two events
by as large an interval as possible, and gain enough time to ensure
maximum impunity, relying on the customary cooperation of the
information-suppressing mass media.

The government was going to bring to a climax a manoeuvre designed to
support and protect the terrorists with whom the Bush family has
close and longstanding links, and to whom the current tenant of the
White House had promised reward in kind for the scandalous fraud by
which he obtained the presidency in 2000.

That was why, after seeking maximum sentences, the prosecution
shamelessly introduced in court proceedings its immoral and illegal
theory of "incapacitation": in addition to the exorbitant sentences
imposed on the accused, they were to be subjected to very specific
restrictions after their release, such that they could never again
attempt any action against these murderers who are close friends of
the Bush family and behave as if they owned Miami, from where they
organize and openly vaunt their misdeeds against the Cuban people.

They could never again be free men. Beyond the years in prison, which
included four life sentences, they were to suffer a special regime, a
sort of unusual apartheid designed to protect the terrorists. Places
were defined which they could not go near, locations they could not
visit, streets they would be forbidden to walk in.

The agency tasked with enforcing these spurious, unconstitutional
prohibitions would be the FBI. The same FBI that pursued them,
mistreated them and fabricated the infamous accusation against them.
The same FBI, incidentally, under whose nose most of the terrorists
who attacked the American people on September 11th lived, freely
moved about and were trained in the use of aircrafts as monstrous
weapons.

The judge naturally welcomed the government's request and in the
sentences pronounced on René González (15 years imprisonment) and
Antonio Guerrero (life, plus ten years), both US citizens by birth,
expressed the restrictions in the following terms: "As a further
special condition of supervised release the defendant is prohibited
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".
(4).

The defence attorneys immediately notified their intention to appeal
to the relevant superior court. But, again, the long wait.

All 2002 went by before the Miami Court sent the case file to
Atlanta, a prerequisite for the opening of the appeal process by the
11th Circuit Court of Appeals. In that year something happened that
can only take place in Miami. In June, the US government appeared as
defendant, before that same federal court, in a suit for an alleged
employment discrimination which was indirectly related to Cuba
(Ramírez vs. Ashcroft). Precisely a year before, this Court had
condemned the five men after having tried them there, on the
insistence of the prosecution who had claimed that Miami was a
cosmopolitan centre where a fair and impartial trial for our heroic
compatriots was possible.

Twelve months later, the same prosecutors unblushingly claimed the
exact opposite: it was impossible to hold a proper trial of any case
related to Cuba in Miami. They successfully requested that the
proceedings be moved to another city. The same concession denied to
the five men, who had applied for a change of venue time and again
and invariably received the same cynical denial from those who, a
little later and when it suited them, handed down a quick and easy
decision that admitted the truth. It is hard to find more conclusive
proof of the fraudulent, gangster-like attitude of Miami's judges and
prosecutors.

In response to this clear example of misconduct, the five men again
applied for annulment of the trial against them and moving the case
away from a venue now recognized - by judges and prosecutors - as
entirely unsuitable. Incredibly, this defence motion based on the
same logic and arguments as those advanced by the government was
opposed by the prosecution and denied by the judge. All of them,
remember, were Miami-based. For that reason, the Court of Appeals
finding of August 9th, 2005 is largely based on this defence motion
and censures the manifest injustice implied by its denial.

It was not until January 2003 that the case file arrived at the end
of its long and eventful journey to Atlanta. The 11th Circuit Court
of Appeals set April 7th as the date on which the five men were to
file their appeals.

While the papers gathered dust in Miami, the defendants were
transferred from there to the maximum security prisons where they
have been held since the beginning of 2002 and where they remain to
this day. The authorities that were so tardy when it came to sending
the documents to the principal city of a neighbouring state, which is
also one of the US's main centres of communication, lost no time in
dispersing the five men to the remotest corners of American
territory. Each in a different prison, in five different states, as
far separated as possible from one another, from their attorneys and
from their relatives.

Their families reside in Cuba and require American visas to visit
them, visas that only have been granted after annoying and slow
procedures. Unlike any other inmate, that elemental right has been
denied to the Five: for three of them the visits have not been
weekly, but one in a year, and the visas of Adriana Pérez, Gerardo's
wife and Olga Salanueva, René's wife, have been systematically
denied. Consequently, Ivette, Olga and René's daughter, could not
visit her father either.

These were the conditions under which they were to prepare their
appeals. All, naturally, in a foreign language. Without access to the
"evidence", without the possibility of consulting each other, while
communication with their attorneys was extremely limited. And subject
to the severest prison regime under which, among other things, they
were required to work to pay with their wages for the rigged trial
they had undergone.

But, as the Bible says, "Our eyes can never see enough to be
satisfied; our ears can never hear enough".

While the five defendants were immersed in this difficult, complex
task, under the most hostile conditions vindictively imposed by the
federal authorities, the latter's thirst for revenge and desire to
obstruct justice were still not satisfied.

For such purposes, there was the "hole", and within that, the "box".
And that is where they were confined from February 28th until March
31st , 2003. Each of them, in their five prisons, in the decisive
month for their appeals, again in solitary confinement without any
contact with the outside world. Moreover, they were now denied any
communication with their attorneys, even by telephone or letter,
while all writing materials were confiscated - not a sheet of paper
or a stub of pencil. One was left without clothes, in the middle of
winter, and subjected to physical torture (noises, lights and
shouting flooding the "box" twenty-four hours a day).

This time there was not even an attempt to disguise the government's
purpose. The men were denied access to their legal documents and
their attorneys were not allowed to communicate with their clients.
These measures were controlled directly by the South Florida District
Attorney's office. It was only international denounce and the
tireless efforts of the defence attorneys that forced the authorities
to "ease" these measures: Leonard Weinglass, Antonio Guerrero's
attorney, was able to visit his client, but under such appalling
conditions that he was barely able to verify the gross violations of
the right to a defence. Weinglass denounced the situation before the
Court of Appeals and requested more time for submitting Antonio's
arguments which, because of the situation described, he had been
unable to complete. In granting this request, Atlanta acknowledged
that these measures had seriously infringed the rights of the accused
and their defence attorneys. (5).

In outline, that was the long path travelled by the five men, to
reach Atlanta. Getting there was a truly heroic deed.

What came afterwards were another two years of waiting. The three
judges took that time to assess the appeal arguments of both sides,
study the trial records and all the other material relating to the
Miami farce, review the relevant legislation, hold a hearing (on
March 10th, 2004) which exposed the shaky foundations of the
government's arguments, seek additional information from prosecuting
and defence lawyers, working towards their final conclusion revoking
convictions and annulling the Miami "trial".

Their decision was announced on August 9th, 2005, but the five men
are still being held in the same maximum-security prisons. They are
locked up with people presumably convicted of various crimes, while
they themselves are different from the rest of the inmates, being the
only ones now without any conviction.

It is of no consequence to the US government that the Atlanta Court
of Appeals has pronounced them free men against whom no legal
sanction now remains. It was unmoved also in May of this year when a
working group on arbitrary detention set up by the UN Human Rights
Commission declared the incarceration of the five men since September
1998 arbitrary and illegal.

Two weeks have passed, out of the three the law allows the
government, to request the Atlanta Court to revoke its finding. So
far, Washington has not said whether it intends to do so. Indeed, it
has just asked the Court for another month to decide whether to make
the request.

Meanwhile, the five men remain isolated in five prisons for convicted
criminals. They are suffering all the rigours of that situation,
despite their false culpability had already been annulled by three
honorable judges.

Now they are five kidnap victims of an administration that rides
roughshod over the law everywhere. Not just in Abu Grahib and
Guantánamo. Within US territory as well.

What is to be done? The time has come to shout it from the rooftops.
To go on demanding their immediate release until it happens,
unconditionally. Freedom now for the Cuban Five. Nothing more.
Nothing less.

Ricardo Alarcon de Quesada is Cuba's Vice President and President of
its National Assembly.

NOTES

(1) District Court No. 98-00721-CR-JAL. The document issued by the
Atlanta Court is 93 pages long. The court's decision to reverse the
convictions of the Miami Court and annul the previous "trial" was
based on Miami's denial of the various requests to have the trial
moved to another venue. In arriving at its decision, Atlanta found it
necessary to "review the totality of the circumstances surrounding
the trial", including the "evidence" submitted and other aspects of
the earlier proceedings. The length of the document and the
exhaustiveness of its coverage are unusual, as were the time taken to
produce it and the complete unanimity of the three judges concerned.
While what took place in Miami was a charade that shames the American
legal system, Atlanta produced an example of professional ethics and
rigour that goes beyond the bounds of the normal appeals process, to
demonstrate the innocence of the five accused and expose the colossal
injustice to which they fell victim.

(2) The employment of this argument, obviously false and aimed at
pressuring the jury and encouraging and exploiting the hostility and
prejudices of the Miami community against the accused, was one of the
examples cited by the Atlanta judges to demonstrate the fraudulent
conduct of the South Florida District Attorney's office. The then DA,
Guy Lewis (now retired) published an article in the Miami Herald on
August 18th repeating the same foolish slander: he still insists that
the five men "had vowed to destroy the United States".

(3) In its "emergency petition for writ of prohibition" to the Court
of Appeals on May 25, 2001, the U.S. Attorney's Office recognized
that "in light of the evidence presented in this trial, this presents
an insurmountable hurdle for the United States in this case, and will
likelly result in the failure of the prosecution on this count" (page
21) since it "imposes an insurmountable barrier to this prosecution"
(page 27). The government was afraid of the fact that "it is highly
probable that the jury will request further elaboration on this
issue" (pages 20 ­ 21). (Emergency Petition for Writ of Prohibition).
Nevertheless, although the court rejected the Government's petition,
nothing alike happen. Without any question, without hesitation, all
the jurors declared Gerardo guilty in the first degree of the alleged
crime.

(4) Transcript of Sentencing Hearing before the Honorable Joan A.
Lenard on 14th December 2001 (pp. 45-46). In the same session, the
judge herself had recognized that "the terrorist acts committed by
others could not excuse the wrongful and illegal conduct of the
defendant and the other accused" (p. 43). In other words, the
Miami-based anti-Cuba terrorists are protected by the federal
government and the judges who punish - with four life sentences over
75 years' imprisonment and the unusual prohibition mentioned above -
those who fight terrorism. So that they should never again fall into
such "wrongful and illegal" conduct, Miami invented "incapacitation",
which it unveiled three months after the atrocity of 11th September
2001, when Bush was already attacking Afghanistan, was preparing to
attack Iraq and was declaring an alleged war on terrorism to be waged
everywhere - except Miami, of course.

(5) Weinglass was able to gain permission to visit Gerardo Hernández
on March 16th, and he described his visit in this way:

"Gerardo is being most severely punished in his prison, confined in
what is known as "the Box"-a hole within the "Hole".

He is confined in a very small cell barely three paces wide, with no
windows and only a slot in the metal door through which food is
passed. His clothes were taken from him and he is allowed to wear
only underpants and a T-shirt, but no shoes.

He cannot tell if it is day or night. His is the only cell where the
lights are on 24 hours a day and the incessant cries of other
prisoners, many of whom suffer from mental health problems, prevent
him from sleeping.

He is allowed no printed material, nothing to read. Signs saying that
no one is to have contact with him are posted outside his cell. He is
the only prisoner kept in this kind of solitary confinement who is
not allowed to use the telephone to date he has received nothing -
not even correspondence from his attorneys"

Two days later he outlined in this way his meeting with Antonio:

"He showed up at the visit in leg irons and handcuffed. They were
removed during the visit. The corridors were cleared when moving him.
The visiting facility was abysmal. It was a very small cubby with a
thick glass between us and a telephone which we had to use to
communicate. The space was so small that my associate counsel and I
could not fit in it together. He had to stand behind me and share the
one phone on our end. Antonio was locked in on his side and we, the
attorneys, were also locked in on our side! There was no slot for
passing documents and we were invited to give them to the guards who
would bring them around the back to Antonio. I did this with one
document and then decided to abandon this and hold the papers up to
the glass. It was very awkward. The visiting conditions were much
worse than those I experienced with Mumia Abu Jamal on death row. We
protested these conditions but they refused to bring the warden down
for a meeting or any other ranking official"

"Only in Miami", Editora Política, La Habana 2004,

Pages 109-110 and 111 ­ 112)






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