On June 17, 1998, an unprecedented meeting took place in Havana between the Cuban government and the FBI. Seeking an end to the 40-year campaign of terrorism inflicted upon their island nation, the government of Cuba presented the FBI with the results of its investigation into right-wing Cuban exile groups based in Miami.
Documents, photographs and surveillance reports were presented to the FBI showing that these groups were about to unleash a new wave of terror, which in the past had included the 1976 bombing of a Cuban airliner that killed 73 civilians and the 1997 Havana hotel bombing that killed an Italian tourist.
The FBI promised to take action that would end the terrorism but instead “reverse-engineered” the surveillance reports that had been submitted, and on Sept. 12, 1998, arrested the Cuban agents who had prepared them. Those agents, now known as the Cuban 5, had infiltrated the anti-Castro exile community in Miami and were charged with conspiracy to commit espionage against the United States.
The United Nations Human Rights Commission would later condemn what happened next: The US government kept the Cuban 5 in solitary confinement for 17 months in a not-so-subtle attempt to coerce false confessions in exchange for leniency.
Espionage, the passing of secret documents to a foreign government, was never proven at their trial. The former director of the Defense Intelligence Agency testified that no secret national defense information had been transmitted to Cuba. But the US government argued that the Cuban 5, whose mission was to penetrate terrorist groups in order to prevent violence, had come to America “in order to destroy the United States.”
On June 8, 2001, the Cuban 5 were convicted and sentenced to four life terms and 75 years in prison. The trial had lasted more than six months. There were 24,000 pages of documents and 119 volumes of testimony.
On Sunday afternoon, an impressive gathering of prominent jurists from all over the world gathered at the historic terra cotta and marble Candler building in downtown Atlanta on the eve of oral arguments before the 11th US Circuit Court of Appeals.
The legendary Leonard Weinglass, one of the appellate attorneys, briefed the gathered dignitaries at the reception on the key issue on appeal: This was a conspiracy prosecution in which not one page of classified documents was found and absolutely no damage was done to US national interests.
On Monday, the appeal hearing was held at the United States Court of Appeals Building in downtown Atlanta, a majestic structure named after the late Judge Elbert Parr Tuttle, a native of Pasadena.
Among those in the audience were Judge Juan Guzman, who led the prosecution of former Chilean dictator Augusto Pinochet, and jurists from Brazil, Colombia, Germany, Belgium, Italy, Venezuela, Canada, Spain, Ecuador, England and the Ukraine.
Before the hearing began, Presiding Judge Stanley Birch announced that the government needed to submit to the court a transcript of the meeting that the government attorneys had with the trial judge without the presence of the defense attorneys and the “classified” documents that had been shown to the judge.
Birch also announced that after the three-judge appeals panel had reviewed this transcript and these documents another appeal hearing might be required. This process of secret evidence was precisely what the United Nations Human Rights Commission had also condemned in finding that the trial of the Cuban 5 had violated the International Covenant on Civil and Political Rights.
The defense attorneys told the appeals panel that prosecutors had made improper statements and the evidence used to convict was insufficient. “Every type of prosecutorial misconduct ever identified in case law occurred here, in some cases repeatedly so,” said defense attorney Brenda Byrn. The Cuban 5 “were never directed to obtain espionage-level information,” defense attorney Richard Klugh said.
One member of the Cuban 5, he said, “is serving a life sentence for what could have been published in the Miami Herald. … There is an injustice in this case. The theory that the government used to prosecute is a classic pile of inference upon inference upon inference.”
Birch and Judge Phyllis Kravitch closely questioned US Attorney Carolyn Heck Miller about the sufficiency of the government's evidence. With regard to prosecutorial misconduct, it was noted that during final argument to the jury, the defense raised 34 objections of which 28 were sustained, leading Kravitch to remark, “I find that number troubling.”
The third judge on the panel, William Pryor, made few comments during the hearing. His appointment to the bench by President George W. Bush had caused considerable controversy because of his conservative views on homosexuality and abortion. Bush first appointed Pryor when the US Senate was in recess in 2004 and in the next session of the Senate the nomination was filibustered. Pryor was ultimately confirmed in a negotiated Senate deal in 2005.
It's unclear how long it will take for the court to issue an opinion on the appeal.
From what is known now, many believe the Cuban 5 were railroaded.
“It's so unfair to imprison these men for trying to prevent terrorism,” prominent Atlanta community activist Krista Brewer said before Sunday's reception program.
“Tomorrow's hearing,” said Dagoberto Rodriguez, Cuban ambassador to the United States, “is another step toward justice for the Cuban 5.”