FACSIMILE

Cuba's Response to U.N. Working Group on Arbitrary Detention

REPLY TO THE LETTER FROM THE WORKING GROUP ON ARBITRARY DETENTION OF THE HUMAN RIGHTS COUNCIL CONTAINING ALLEGATIONS ABOUT THE ALAN GROSS CASE

Introduction:

Contrary to the allegations made by the source of the denunciation against the Cuban government, the arrest of Mr. Alan Phillip Gross in Cuba has not violated any article of the Universal Declaration of Human Rights and/or the International Covenant on Civil and Political Rights or the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Therefore, his arrest cannot be classified as arbitrary.

Mr. Gross was arrested, prosecuted and sentenced on charges of unlawful and covert importation of communication equipment in Cuba, including some military grade devices, and establishment of clandestine data networks designed to help implement a US Government program that is funded by the federal budget, and which purpose is to subvert the Cuban constitutional law and to destabilize this country. He was tried for his acts against the Cuban national security and public order, rather than for promoting freedom or any right recognized in the aforementioned international instruments. His covert operations violated the Cuban laws and constitute serious crimes in most countries, including the United States.

As is the case with many other countries, the US does not allow any foreign government to send undercover individuals to its soil, in circumvention of the US regulations and funded by that foreign government, charged with the mission to set up unlawful and clandestine communication systems that elude the existing formalities and /or registration requirements; particularly if such actions are designed to destabilize the US existing order.

In response to a request for information submitted by the Working Group in relation to the above-mentioned claim, the Cuban Government shall hereby deny the alleged arbitrary detention of Mr. Gross as untrue and illegitimate. In the same spirit of transparency and cooperation that characterizes Cuba’s relations with the mechanisms of the UN human rights machinery, abundant and detailed information is presented hereunder to address each point raised by the report from the source of the allegation.

This is not a case of “arbitrary detention.” Rather, it is the case of a legal action instituted in compliance with all the guarantees defined in the Cuban legislation and brought against an individual who had violated the laws of a sovereign state and who was consequently sentenced, as appropriate, by a competent court.

Paragraph 3:

It is essential to note that the description of Para la Isla (“For the Island” or “PLI” for Spanish) project in paragraph 3 of the letter from the source is incomplete and poorly objective. The following observations are fundamental because this project justifies and explains the work that brought Mr. Gross to Cuba on several occasions.

This was not just a simple project intended to establish wireless internet and intranet connections for the small Cuban Jewish community. This project was actually part of the US government policy designed to subvert and destabilize the Cuban society, as was corroborated during the proceedings, and to change the political, economic and social system that the Cuban people have freely chosen.

While Mr. Gross stated at the hearing that he was unaware of the subversive political content of this project, his assertions made during the investigatory phase, the evidence found in the electronic devices seized from him, the accounts offered by several witnesses who interacted with him in Cuba, and the public statements made by the US Agency for International Development (“USAID”), Development Alternatives Incorporated (“DAI”) and other American entities, which were all posted on the Internet, showed just the opposite.

His own statements and other pieces evidence suggest, without a doubt, that Mr. Gross was indeed aware of the political aims pursued by the project that he had designed and adjusted to the politicized interests of his sponsors (i.e.; USAID, acting through its contractor DAI).

Mr. Gross’ connection with DAI in regards to Cuba dates back to 2008, within the framework of the “Democracy for Cuba Program,” a subversive project that had been allocated a large sum of money from the USAID’s Cuba Program funds. In 2008, DAI obtained US $6 million for application to subversive programs against Cuba. Between 2001 and 2012, the US Congress approved US $197 million for programs directed against Cuba. This amount includes US $45.3 million in 2008 and US $20 million for each fiscal year from 2009 to 2012. The US administration has requested US $15 million for 2013.

Mr. Gross was awarded a DAI subcontract for some US $258 000.00 to establish within Cuba, certain communication networks that may evade the regulatory and legal framework of the Cuban telecommunication system.

The PLI Project developed by Mr. Alan Gross was consistent with the requirements and objectives of the DAI Program; i.e., the use of portable, mobile and wireless hi-fi and satellite-based devices for data transportation, and the establishment of communications that may bypass the national regulatory framework. In other words, its ultimate goal was to make sure that these communications could not be monitored by the Cuban authorities.

In his reports for the PLI Project, Mr. Gross repeatedly described his intentions and those of his sponsors as responding to the interests of US government agencies to destabilize Cuba, subvert its constitutional order and undermine its sovereignty, as set forth in the Torricelli and Helms-Burton Acts that constitute the legal justification for the funding of these programs. For this purpose, Mr. Gross designed and placed on Google a website known as "ParaLaIsla.Net.” Established for one year, this website was due to expire on February 12, 2010.

The statements that Mr. Gross made about the PLI Project right after his arrest help further substantiate the real purposes of this undertaking. Mr. Gross indicated that the PLI Project had originated from one Mr. Marc Wachtenheim, who in 2007 had made him a proposal to introduce and install BGAN’s, computers and other pieces of equipment in Cuba. This proposal was presented in consideration of the various projects that Mr. Gross had executed in many countries under the auspices of USAID.

Mr. Wachtenheim, Project Director of the Pan-American Development Foundation (“PADF”), as well as founder and director of the Democracy for Cuba Program, a subversive project against this country, has since 1993, been associated with the Cuban American National Foundation, an organization with a long record of terrorist actions against Cuba. Mr. Gross said that Mr. Wachtenheim had given him assurances of support and funding from the Organization of American States (“OAS”) and of private contributions for the implementation of this proposal.

Mr. Gross said that he had rejected this proposal arguing disagreement over its planned IT deployment and operation in Cuba (but not over its objective); however, he later offered similar ideas in the context of what eventually became the PLI Project.

Mr. Gross also said that after he had designed the PLI Project in 2008, he submitted it for approval to one Mr. John McCarthy, Senior Development Specialist of DAI; i.e., the executing company of the USAID’s programs and projects. Mr. McCarthy, who acted as general manager of the “Democracy for Cuba Program”, welcomed Mr. Gross’ project. Mr. Gross was handsomely rewarded with hundreds of thousand dollars for that project.

The following excerpts from case file compiled during the preparatory phase leading to the legal action help illustrate Mr. Gross’ awareness of the political objectives pursued by his project:

“Between late November 2008, when the first draft was submitted, and January/February 2009, when Mr. McCarthy requested a second version, Mr. Gross searched the web for information on DAI, USAID and Mr. John McCarthy. As a result, he learned about the “Democracy for Cuba Program, as well as about Mr. McCarthy as its director. However, he decided to proceed on the basis of his profit expectations, without regard being paid to the consequences of his actions. ”

“In response to Mr. Gross’ submission of a first draft, Mr. John McCarthy suggested in writing that the first part of the proposal be amended to reflect the language of the Democracy for Cuba Program, so that approval from the USAID may be obtained. Based on these suggestions, as well as his internet searches, Mr. Gross designed a more politicized project that included such terms as “democracy,” “transition for Cuba” and other language in order to win the contract, gain profits and develop the technical components. ”

“Mr. Gross imported computers and communication equipment in Cuba, aware that this pilot project was part of a larger USAID program, which aim was to foster political transition to democracy in Cuba. ” (The US laws that enforce the Cuba policy show in detail that by “political transition towards democracy” the US understands the replacement of the constitutional order established in Cuba by an order blessed by the US government. See Section 109 of the “Cuban Liberty and Democratic Solidarity Act of 1996 and Section 1705(b) of the Cuban Democracy Act of 1992 )

“Mr. Gross is aware that his work in Cuba is consistent with the aims defined by the USAID through its project to promote Democracy in Cuba; and for these reasons, his work is carried out undercover and behind the backs of Cuban State authorities. He entered into a confidentiality agreement under which he agreed not to disclose any information pertaining to Cuba or to the purposes, channels for equipment introduction and related installation, targeted sites or the pilot nature of the project. ”

Another fact that documents Mr. Gross’ awareness, the covert nature of his activities and the US government’s sponsorship of the PLI Project, is a statement by Mr. Gross, which is contained in the aforementioned dossier. Mr. Gross he noted that “he requested travel permits from the Department of Treasure’s Office for Foreign Asset Control (“OFAC”), as well as an export license from the Department of Commerce in respect of his equipment, and in such applications, he consistently advised that if additional information was required, DAI should be contacted. ” In a letter addressed to OFAC officer Mr. Antonio Cabral, Mr. Gross indicated that the “funds for these activities are supplied by non-governmental organizations, and to the best of our knowledge, by US government programs.” In the same letter, Mr. Gross goes on to say that “in addition to being bound by a Non-Disclosure Agreement (“NDA”), JBDC has agreed to exercise absolute discretion over our contacts in the island, and we are being very cautious to keep them out of trouble.”

It is public knowledge that under the web of laws and regulations that shape the US blockade of Cuba, it is impossible for any US national or institution to conduct any operation that may otherwise be normal for them in the rest of the world. The infringers are punished. Nevertheless, as part of the US government’s official policy, the US laws do authorize American federal agencies, such as USAID, to promote covert operations and subversive actions designed to subvert the political, economic and social system of the Cuban State. All these actions are occurring in spite of their open rejection by both Cuba and the international community for their interfering nature.

Due to the subversive and covert activities conducted by the USAID in different parts of the world at the service of the most aggressive interests of US foreign policy, several countries, including some Latin American nations, and more recently, Russia, have banned the operations of this US agency.

Paragraph 4

The unlawful nature of Mr. Gross’s actions in violation of the Cuban regulations is also illustrated by the fact that his Cuba imports of IT supplies and materials from the US were designed to dodge the Cuban State controls and legally established communication channels.

Witness Mr. William Miller Espinosa, Vice President of the Board of Trustees of the Cuban Hebrew Community House, stated that Mr. Gross had explained to him that the two SIM cards Mr. Gross had brought into the country on one of his trips, were meant for the BGAN’s and permitted the operation of these units without detection within a 400-mile range.

This technology has been applied by the American and British armies. These cards are designed to keep satellite phone transmissions from being detected. According to experts, these cards are usually operated by the CIA and the Pentagon to avoid electronic detection of telephone signals and are not off-the-shelf supplies. They are available solely to governments. These cards are regularly provided to the Defense Department and the CIA, but they may also be obtained by the State Department, the oversight body of the USAID.

The reports Mr. Gross sent to his employer help confirm his full awareness of the illegal nature of his activities and his use of clandestine techniques to avoid detection. Here are some examples:

- “It included the need to restructure the pilot project in terms of: (…) The imperative need to exercise discretion in regards the individuals who will be invited to be members of the committee or the individuals who will know about the pilot project. The leadership of the target group has raised specific concerns about government informants; hence, absolute discretion has been guaranteed”.

- “The committee agreed to send M & E (monitoring and evaluation) data reports on a weekly basis if possible and under security conditions. One must assume that the idea of “security conditions” is not an exaggeration”.

- “The use of the BGAN’s for connectivity is probably the most sensitive subject within the target group leadership (…) Nevertheless, the use of the BGAN’s is not justified for this “experimentation” and will be a problem should it become exposed.”

- “The PLI-1 committee leader has responsibilities and can exercise certain “liberties” to develop the computer laboratory on other parts of the island, as well as to conduct certain “equipment tests”. Essentially, the committee leader made it very clear that we are all “playing with fire” by agreeing to participate in the PLI-1 and that we need to be extremely cautious and reticent about the PLI-1 activities and exercise discretion in regards the individuals with whom such activities will be discussed.”

- “The main concerns raised at the discussions focused on: 1. the strengths/weaknesses of the relationships of the PLI-2 leaders with provincial authorities; 2. a greater control by provincial authorities over the circulation of information; 3. possible undesirable visibility of the activities on the site; 4. probable adverse consequences of the risk.”

- “The equipment that was not installed in PLI-2 was stored in security conditions in the capital city and under the supervision of the local JBDC personnel.”

- “Just like in the second site visit, the project director traveled to the island on a chartered flight from Miami carrying the key equipment with him. A community development specialist traveled with another group on the same chartered flight carrying the rest of the equipment. All the equipment was gathered in the capital city”.

- “The trip to the provinces and to sites 2 and 3 was made by road to avoid inspection by airport authorities.”

- “We are dealing with a very risky task in unequivocal terms. Evidently, provincial authorities are very strict with unauthorized use of radio frequencies (“rf”). The project director was categorically informed that significant surveillance was being applied and that the “detection and termination of unauthorized rf usage by government enforcement units are swift. Generally, detection leads to the confiscation of the equipment and the arrest of its users”.

In order to import a significant portion of these diverse equipment units, on more than one occasion, Mr. Gross relied on third-party travelers from whom he concealed his true intentions, consistently with objectives of the PLI Project. Of course, Mr. Gross never declared to Cuban customs his ownership of these many equipment units. He also concealed from these authorities the function of one of the devices he was bringing in; specifically, a satellite receiver station.

It must be noted that, as is the case elsewhere around the world, thorough customs inspections are conducted solely at random. Given the massive arrival of goods by air, it becomes impossible to effectively inspect every cargo in its entirety.

In light of the above, both Cuba and most foreign countries rely on the oral or written statement made by each traveler using a signed customs declaration form that certifies to the customs inspector the correctness and completeness of the goods being imported. Occasionally, these written or verbal testimonies are replaced by prima facie evidence or juris tantum; however, the application of this procedure does not warrant the lawful nature of any declared goods.

Mr. Gross filed no application for license to import and activate these wireless devices or to set up proprietary networks, as required by the laws in Cuba and many other countries, including the US, and as readily understood by any specialist of Mr. Gross’ caliber. In Cuba, each telecommunication network is subject to registration with the Registrar of Internet Service Providers. Anywhere in the world, the implementation of any such networks must obtain a license or permit from the competent government authorities.

The activities described by Mr. Gross cannot be viewed in isolation from other similarly covert and subversive operations promoted by the USAID, the National Endowment for Democracy (“NED”), the International Republican Institute (“IRI”), the Pan-American Development Foundation (“PADF”), Freedom House and other similar institutions that have joined the US intelligence services in the effort to implement Washington’s policy against Cuba. These operations have been publicly exposed by Cuban agents who have been “recruited” for their execution; by documentary evidence, including videos, tape recordings and reports issued by American officials; and by statements and information issued from the aforementioned entities overseen by the USAID and other federal agencies.
In the context of these operations, couriers using different covers, such as US diplomats, have illegally distributed in Cuba a large number of equipment supplies similar to those imported by Mr. Gross, including several BGAN’s, satellite antennae disguised as surf boards, and data encoding or encrypting software packages with their related how-to-use manuals.
The underground distribution of these technologies for their safe and secure application beyond detection by Cuban servers and network administrators seeks to promote subversion and “public uprisings;” spread distorted or manipulated news about the country; and transmit sensitive intelligence, such as mobilizations of the Cuban revolutionary armed forces, profiles of Cuban leaders and/or young individuals with potential to occupy important government positions, the status of foreign business ventures in the Island, the main foreign investors and their home countries, cultural figures who may play future leadership roles, and the position of university students regarding the affairs in progress in Cuba.
An example of the above is the incriminating testimony and documentary evidence against American intelligence officials offered by Cuban agent Raúl Antonio Capote Fernández, a.k.a. “Daniel,” who was “recruited” in 2006 for these operations by one Mr. Rene Greenwald, a seasoned CIA official with vast experience in Latin America. Daniel was later handled by Mr. Marc Sullivan, another American “diplomat.” After completing his tenure in Cuba, Mr. Sullivan was deported from Ecuador on charges of interference with that South American nation’s internal affairs while he was serving his “diplomatic term” there. It was eventually found that Mr. Sullivan was the CIA Station Chief in Ecuador. Agent Daniel was also “supervised” by above-mentioned Marc Wachtenheim, director of PADF’s Cuba program.

Daniel “assignments” included the formation of a scholarly NGO (“Genesis”), the purpose of which was to attract “unhappy” intellectuals. He was supplied a BGAN, and in December 2010, during a web-based chat with Mr. Wachtenheim shortly after Mr. Gross was arrested, Daniel was asked to get rid of the BGAN; an obvious reference to that recent occurrence. As the chat reveals, Wachtenheim told Daniel, “don’t use it again […] if they find it on you, things will get complicated for you, for us and for someone else who has been arrested.”

Paragraph 5:

Paragraph 5 of the letter from the source purports to praise Mr. Gross as a high-minded promoter of internet connections for the small Jewish communities. At first glance, no one may question such a claim. However, in regards these internet installations, the source fails to disclose the fact that Mr. Gross kept every member of the Cuban Jewish community uninformed of the true purpose of his project and of his contract with the USAID, as was later confirmed during the trial.

To justify these connections, Mr. Gross consistently claimed that his purpose was to make a donation that may help these communities improve their conditions and enhance their communications within Cuba and with the outside world. Mr. Gross never revealed his real objectives, the US entities that supported his project or the origin of the funds he was receiving for his actions. In their statements and depositions before and during the trial, many of the witnesses from the Jewish community noted that they had been deceived by Mr. Gross.

These witnesses included; inter alia, Mr. David Pernas Levy, President of the Camagüey Hebrew Community, Ms. Diana María Marrero Basulto, from that same community; Ms. Eugenia Farín Levy, President of the Santiago de Cuba Hebrew Community; Emma Farín Levy and David Budegén Farín, member and religious service activist and manager, respectively, of the Santiago de Cuba community; Mr. Jeiro Montagne Babani, Deputy Director of the Technological Project of the Cuban Hebrew Community House; Mr. William Miller Espinosa, Vice President of the Board of Trustees of that same community; Mr. Fernando Cheong Cisnal and Dairel Rodríguez de la Fuente, employees of that community center.

Mr. Gross’ bad faith and covert activity were evinced by the fact that he did not advise Mr. William Miller Espinosa about his actions outside Havana. Mr. Espinosa had made Mr. Gross aware of his reluctance to set up connections in other provinces in the country. Mr. Gross ignored this rejection, and under the pretext of visiting the Jewish communities in those places, Mr. Gross traveled to the provinces of Camagüey and Santiago de Cuba carrying with him pieces of equipment that were similar to those used in Havana. When Mr. Miller found out about these actions, discomfort and agreement arose between them, because Mr. Gross had acted without giving advance notice and in a manner contrary to observations made by the Vice President of the Board of Trustees the Cuban Hebrew Community House.

It must be made clear that Mr. Gross was not tried because he was helping any Jewish community to connect to the Internet. All the Cuban synagogues had internet service before Mr. Gross first visited Cuba.

Mr. Gross never told any of his contacts that he was working for the US government. Mr. Gross was not a volunteer who was coming to help the Cuban people. He is a professional who is handsomely paid by the US government. Acting under a contract worth hundreds of thousands of dollars, Mr. Gross illegally introduced in Cuba pieces of equipment intended to set up telecommunication networks. He lied about the purpose of his trip in order to execute programs designed to destabilize the country.

In his declarations, Mr. Gross made it clear that DAI officers reviewed all his travel reports, and these officers were kept regularly informed of the progress. These facts were corroborated by DAI spokesman, Mr. Steven O'Connor, as reported by AP. Through contacts with DAI employees, this news agency found that such travel reports revealed all the efforts made by Mr. Gross to avoid detection by the Cuban authorities. The foregoing is fully confirmed by the excerpts from these travel reports that were described above.

In fact, Mr. Gross made five trips to Cuba, and every time he came to smuggle in ITC equipment, he used a tourist visa. Therefore, during his stay in Cuba, he was obligated to adhere to the terms established for this migratory category that is absolutely inconsistent with the activities Mr. Gross was conducting. This behavior constitutes a violation, not only under the Cuban law, but also under the US Immigration Act.

If the covert activities that by Mr. Gross conducted in Cuba while acting at the service of a foreign government agency had been carried out in the US, he would have been liable to prosecution there as well. Under the Foreign Agents Registration Act of 1938, an individual may not act in the United States as agent of a foreign government, organization or corporation, without prior registration with the US authorities.
The provisions in the US National Security Act of 1947 leave no room for doubt about the undercover nature of Mr. Gross’ work in Cuba. Under this piece of legislation, the term “undercover” is defined as any government activity designed to influence the conditions in a foreign country “in a manner that the involvement by the US government may not be apparent or publicly recognizable.”

Paragraph 6

In support of the claim of alleged arbitrary detention, paragraph 6 of the letter questions certain procedures pertaining to Mr. Gross’ case. These questions merit several points of clarification, as discussed below:

Mr. Gross has never been held in any maximum security prison. During the initial phase of the case investigation, he was held at the investigation center of the General Division of Criminal Investigations and Operations (“Villa Marista”), a department of the Ministry of Interior. He was later transferred to the Dr. Carlos J. Finlay Military Hospital, as acknowledged by the source in its allegations.

Mr. Gross was the subject of a thorough investigation as new evidence of his violations of Cuban laws and regulations gradually surfaced. Right from his initial detention, Mr. Gross enjoyed all the rights and guarantees of due process of law, as defined in the Cuban Constitution and effective regulations, as well as under the applicable international instruments. The US government was kept permanently informed, via diplomatic channels, about the various phases of this legal case.

Mr. Gross was arrested on December 3rd, 2009, on the charge of illegal importation of communication equipment. The ensuing investigation found that his operations were being conducted in compliance with a subversive project funded by the US government under the Helms-Burton Act. These facts were duly brought to the attention of both the defendant and his legal counsel. Mr. Gross was not charged 14 months after the date of his arrest, as has been claimed. At the time of his arrest, Mr. Gross was advised of the charges laid against him, as recorded in the Arrest Report (a legal document prepared both in English and Spanish languages and read with interpreter’s assistance) signed by Mr. Gross on December 3rd, 2009.

Indeed, the actions carried out by defendant Alan Gross constitute “Acts against the Independence and/or Territorial Integrity of the State,” as defined in Article 91 of Law No. 62: “The Criminal Code of the Republic of Cuba.” Mr. Gross committed an offense when he designed and implemented the PLI Project that was commissioned by the USAID and DAI, and as has been discussed and documented, this project is part of the publicly stated policy of US government that seeks to subvert the political and social order existing in Cuba.

The undercover activities carried out by Mr. Gross in Cuba constitute crimes in many other countries around the world, including the United States.

Paragraphs 7 and 11

Contrary to the claims made in paragraphs 7 and 11 of the letter, the legal proceedings against Mr. Gross observed all formalities and guarantees defined in the Cuban law, in keeping with the provisions of the International Public Law. The composition both of the lower court that sentenced Mr. Gross and the court of appeals that reviewed his case included five members, rather than four as was claimed. The requirements of Article 39(a) of the Rules and Regulations defined in Law No. 82, “The People’s Courts,” were observed.

At the court hearing, Mr. Gross made a free statement and answered questions from the prosecution, the defense and the court in relation to the offenses for which he was being accused. The court considered the depositions of ten witnesses and nine experts, 26 written expert opinions, and abundant material and documentary evidence submitted by both the prosecution and the defense.

Mr. Gross was given due notice of all the procedures instituted against him, including his arrest, seizures and searches. At all times, an English-language translator-interpreter was available, and all the applicable notices were given in English. Mr. Gross enjoyed every guarantee for his defense, in full respect for his rights to justice. His family appointed and retained a legal counsel. Mr. Gross held contacts with his attorney, and through this legal counsel, he had access to the findings of the investigation, and was therefore able to recommend the evidence that he deemed desirable. All the evidence items were subjected to debate at a public hearing that observed the legal principles of immediacy and contradiction.

Also present at the hearing were his wife Mrs. Judith Gross, American lawyers retained by his family, and consular officials of the US Interest Section in Havana.

Further to his trial by an unbiased collegiate court, Mr. Gross was able to appeal its ruling before the People’s Supreme Court.

Under the Cuban Constitution and Law no. 82: “The People’s Courts,” each Cuban judge is independent in the discharge of his duty to dispense justice and owes obeisance solely to the law. Each judge is elected by the Peoples’ Power Assemblies and may be recalled solely for any cause defined in the law; as a result, his/her autonomy and independence in the performance of his/her obligations are reinforced.

The Cuban constitutional order is built on the principle of absolute respect for the dignity of the individual, as enshrined in the Constitution.

The substantive procedural rules that apply to criminal cases define the guarantees and legal principles that govern the due process of law. These principles include Lawfulness; Public Participation; Presumption of Innocence; Objectivity; Reparation of Miscarriage of Justice; Non Discrimination; Sentencing Process; Legitimacy of Prosecution; Oral and Public Proceedings; Immediacy, Concentration, Contradiction, Assessment and Substantiation of Evidence; and the right of either party to refer its case to a higher court in the event of disagreement with a lower court ruling.

Paragraph 8

After his sentence was delivered, Mr. Gross had the opportunity to have his case re-examined and publicly heard by a higher court. On July 22, 2011, the People’s Supreme Court held a public hearing to review Mr. Gross’ motion for annulment of his sentence. The defense counsel substantiated her client’s disagreement with the verdict handed down by the lower court. Exercising his right to a final statement granted by this tribunal, Mr. Gross offered his views and expressed his appreciation for the opportunity to present his case in person before the highest court.

On August 5, 2011, the Peoples’ Supreme Court issued its final verdict rejecting the motion of annulment lodged by Mr. Gross and his defense counsel against the sentence handed down by the People’s Court of Havana.

Paragraphs 10 and 16

The discussions herein have helped show that Mr. Gross has not been the subject of any arbitrary detention. For further clarity and in order to counter the claims in paragraphs 10 and 16, it must be recalled that the purpose of the project executed in Cuba by this US government contractor was in no way intended to champion the rights of Jewish citizens to freedom information and expression. If all the synagogues in Cuba had Internet connections prior to the date when Mr. Gross began his operations, why did he want to create clandestine ITC networks in the above-mentioned three Jewish community facilities separately from the networks existing in Cuba?

The legal proceedings showed that the purpose of these undercover networks was not to promote freedom of information and expression; but rather, lay the groundwork to foster destabilizing actions; and Mr. Gross did so, consciously and clandestinely. As was already discussed, Mr. Gross pursued his actions without advising his alleged beneficiaries about the fact that these connections were being funded by famously anti-Cuban US government entities or about the planned objectives of the PLI Project.

Mr. Gross’ actions attempted against the Cuban national security and public order. If his actions were so apolitical and uninterested in changing the Cuban socio-political system, why did Mr. Gross write in his project reports that his intentions and those of his sponsors were to contribute to a “political transition in Cuba?” Why did his reports to DAI recognize that he was “playing with fire” and why did he apply absolutely strict security measures in his activities?

It is not incumbent upon the source of the allegation to pass judgment on the legal regulations that govern the Cuban criminal courts. The criminal offense established under Article 91 of the Cuban Criminal Code is consistent with internationally accepted standards; and by the way, many nations, including the convict’s home country, have similar provisions in their laws.

Paragraph 12 (and sections of Paragraph 11)

The legal proceedings against Mr. Gross observed the principle of presumed innocence, contrary to the claim in paragraph 12 and the allegation in paragraph 11. Each offense attributed to Mr. Gross was demonstrated through evidence items that were debated between the parties in a transparent and public session in which the burden of proof was provided by the prosecution. The factual arguments that supported the sentence handed down by the court were abundant and detailed.

Mr. Gross exercised his right to avoid self-incrimination, and at the hearing, he offered testimonies that differed from his prior statements during the investigatory phase. However, in his various statements to the case investigator in the presence of an interpreter prior to the trial, Mr. Gross described the PLI Project and its objectives in detail. The documentary evidence reviewed and debated by the parties at the court was abundant and conclusively showed that the defendant was actually the perpetrator.

The evidence items include the seizure reports describing the IT devices imported in Cuba by Mr. Gross. The fact that these devices were owned by the convict was corroborated by the witness testimonies offered by many members of the Jewish communities of Havana, Camagüey and Santiago de Cuba.

The data recovered from two pen drives seized from the defendant constituted a relevant piece of evidence. The electronic documents found in these drives revealed the regulatory framework and subversive purpose of the PLI Project, as well as the defendant’s links with US entities that attack the interests of the Cuban State.

As described in the Sealing Report contained in Page 22, Preparatory Phase Case File no. 59/2009 of the records kept by State Security Department, upon seizure, the two pen drives were placed in an envelope that was sealed “BEU 5759” in the presence of then defendant Alan Gross who affixed his signature thereon as proof of acknowledgement. After tracing the chain of custody, specialists of Cuba’s Central Forensic Laboratory recovered several Word formatted documents that were later shown to the defendant in the presence of other individuals connected to the case, as well as two witnesses. Mr. Gross recognized most of these documents without question. A video presentation of this investigatory procedure was shown at the hearing.

Some of the recovered documents recognized by Mr. Gross described the technical and functional operation of the PLI experimental project. A caption at the bottom of each page warned as follows, “The information contained herein is considered highly confidential and shall not be disclosed or otherwise copied for distribution without prior consent in writing from JBDC LLC. The failure to comply with these instructions may cause irreparable damage to certain parties in La Isla.” These instructions substantiate the conscious unlawfulness, as well as the clandestine and subversive nature of this project.

As discussed above, Mr. Gross was tried, not because he was facilitating access to the internet or because he was a US national or because he was working for a US government contractor, but because his activities are part of the US government policy towards Cuba, as set forth in Section 109 of the “Cuban Liberty and Democratic Solidarity Act of 1996 and Section 1705(g) of the “Cuban Democracy Act” of 1992, both of which openly call for subversion of the Cuban constitutional order.

The USAID activities and programs have been openly rejected by Cuba as interventionist; notwithstanding, the US government insists in their execution.

Like Cuba, other countries have recently criticized the work carried out by this US government agency, as shown below:

• In July of 2009, the Bolivian Ministry of Planning and Development advised the US Embassy that the USAID’s “Democracy” programs were to be terminated.

• In July of 2012, the Government of Ecuador was reportedly considering to expel USAID from its territory on charges of destabilizing the democracy there.

• According to media reports of last September 19, the Russian Ministry of Foreign Affairs instructed the United States to terminate its USAID operations in Russia, effectively October 1st, 2012. In the words of spokesperson Alexander Luskashévich, this decision was adopted after confirming that the activities by USAID representatives in Russia, “on many occasions failed to satisfy their stated goal of promoting bilateral humanitarian cooperation.” Mr. Luskashévich noted that the USAID had attempted to “influence political processes, including elections at different levels, as well as political society institutions, through the allocation of grants.”

American personalities have also criticized the USAID Cuba programs. For example, on December 25, 2011, Mr. Fulton Armstrong, former advisor to the US Senate Foreign Relations Committee, wrote in The Miami Herald:

“Designed to identify, organize, train and mobilize Cubans to demand political changes in their country, the USAID’s Cuba programs have a specially problem-ridden legacy of misappropriation, poor management and systematic politicization (…) The State Department and the USAID fought us at all times, even refusing to give us basic information on their programs and disclosing only one document that referred to vague “program objectives.” These programs do not involve our intelligence community, but their secrecy, their clandestine practices – like the use of encrypting technologies – and their deliberate cover- up of the part played by the US government, do have the marks of an undercover intelligence operation (…) The Obama administration policy requires that the parties in Cuba be kept uninformed about the origin and purpose of the aid they are receiving, unless they ask directly. Some Cubans can tell, of course, but the implications of non disclosure, particularly when the new programs are targeting children as young as 12 years of age, are significant in a country that expressly forbids the receipt of funds from the US (…) The USAID has become an undercover warrior to undermine the anti-US regimes around the world – without having the burden of responsibility shouldered by the Intelligence Community.”

Former CIA operative Philip Giraldi noted, "It occurs far too frequently that the USAID people are perceived as intelligence agents. (…) This is damaging to USAID, it is damaging to the CIA and damaging to any other intelligence agency that has to operate below the radar."

The United States does not allow any foreign government to circumvent its telecommunication and airwave regulations by sending to the US territory an undercover individual funded by that foreign government with the mission to set up illegal and clandestine communication systems without satisfying the US formalities and registration requirements.

As discussed above, Mr. Gross imported the aforementioned equipment without obtaining prior approval from the Cuban Ministry of Informatics and Communication, as required for the establishment of satellite communication stations in Cuba.

Under the US blockade, Cuba is not authorized to deal with American companies in order to expand its technological base and internet access capacity.

Paragraphs 9 and 15

Some of the comments in paragraphs 9 and 15 are deceitful and may lead to misinterpretation of Mr. Gross’ real situation. Therefore, the following points of clarification are required.

Mr. Gross has been treated humanely and decently since the date of his arrest. Regular contacts with his family, lawyers and friends have been facilitated. Mr. Gross talks with these persons on the telephone every week. He eats a balanced diet, including light foods of his choice. He sends and receives unrestricted correspondence, and has access to books, magazines and newspapers. He also receives monthly consular visits by US officials registered in Cuba.

Cuba has authorized all the travel visas requested by his wife, including three conjugal visitations and another trip for the court hearing, when she also met with her husband. In response to humanitarian concerns, the Cuban government proposed to its US counterpart to jointly organize a Cuba trip by Mr. Gross’ mother on a specially equipped flight, including specialized medical care, and to provide facilities in Cuba for her visit with her son.

Since his arrest, Mr. Gross has been held in a military hospital where he has received specialized medical care. His health condition is normal and consistent with both his age and his chronic ailments. On several occasions, meetings have been arranged between his attending physicians and the US consular officials in Havana in order to provide updates on his medical test results and health condition. He has been assessed by internationally reputed Cuban medical specialists in such fields as nutrition, surgery, imaging, dermatology, oncology, orthopedics, rheumatology, ophthalmology, urology and cardiology. He has also undergone more than a hundred medical tests, at absolutely no cost to him. He follows a daily physical exercise program that includes walks, high bars and other drills. He monitors his bodyweight that is normal and decides what to eat and how much exercise to perform.

The US government was kept permanently informed, via diplomatic channels, about all the matters pertaining to his legal process.

Mr. Gross has been allowed access to American public figures that have traveled to Cuba for other purposes and have asked to see him. Some of these visitors include former President James Carter in March 2011; US Senators Carl Levin in January 2011, Patrick Leahy and Christopher Coons in February 2012, and Richard Durbin in January 2012; Assistant Secretary of State Roberta Jacobson in January 2011; and Deputy Chair of the Democratic Party Donna Brazille in June 2011.

Another prominent figure that visited him is President Leonel Fernández of the Dominican Republic in July 2010.

Mr. Gross has also been visited by religious leaders from the US and other countries and by members of the Cuban Hebrew community and Jewish American organizations. He has received gifts and typical foods on Jewish holidays. Some of these visitors include Mr. Bruce Pascal, Vice President of B’Nai B’rith International, in December 2011 and July 2012; Mr. Arthur Schneier, President of the Appeal of Conscience Foundation, in March 2012; Archbishop Athenagoras, representative of the Greek Orthodox Church for Mexico, Central America and the Caribbean, in April 2012; and Ms. Adela Dworin, President of the Cuban Hebrew Community on several occasions. Legal counsel James Berenthal and Rabbi Elie Abadie, leader of the Sephardic Jewish Community are expected to visit Mr. Gross next November.

Paragraph 18

The points raised in paragraph 18 in reference to the laws that applied to Mr. Gross’ case merit some clarification. From the outset, it must be recalled that Mr. Gross has never been in any prison, let alone a maximum security penitentiary. For the most part, he has been held in a medical facility in good conditions.

Mr. Gross was arrested on December 3, 2009, at 22:00 hours. Exercising their powers under the law, officers of the Investigatory Section of the State Security Department carried out this arrest after evidence of actions against the national security had been obtained and after the Prosecuting Attorney had issued a precautionary measure requiring the provisional incarceration of Mr. Gross. His arrest was not ordered by People’s Court of Havana. In Cuba, the courts are not vested with any powers to pursue inquiries and are not authorized to intervene in the investigatory phase of any criminal case; therefore, the references made in the first paragraph of the letter by the Working Group are mistaken.

The arresting officers acted in full compliance with the applicable Cuban laws. Accordingly, Mr. Gross was advised of both the reasons for his arrest and his rights.

Mr. Gross was originally charged with illegal introduction of communication equipment in Cuba while in the execution of a subversive project funded by the US government under the Helms-Burton Act that seeks regime change in Cuba.

Under Law No. 5, “Code of Criminal Procedure Act,” after the true identity of the individual subject to arrest has been determined, a report must be prepared containing the declaration, if any, made by this individual. The law also requires that the arrestee be advised of both the charges leveled against him/her and the party filing such charges. The arrestee must also be advised of his/her right to either make a statement or remain silent. And if the arrestee decides to make a statement, he/she may do so at any time and as many times of his/her choice. In this case, the above legal requirements were strictly observed by the competent authorities.

The legal case against Mr. Gross complied with all the terms defined by the law. The prosecuting attorney’s order that required the provisional imprisonment of Mr. Gross was issued on December 8, 2009. From the time of an arrest, the duration of which shall not, by principle, exceed 24 hours, the police authorities have 72 hours to impose any precautionary measure defined in the Code of Criminal Procedure Act, except for the provisional imprisonment that is subject to approval by the prosecuting attorney.

After notice of the imposition of a precautionary measure has been given, the arrestee has the right to appoint an attorney for his/her defense. Thereupon, the defense attorney becomes a party to the process, and as such, has access to his/her client and may recommend evidence in his/her favor.

The rights and duties of the defense attorney during this phase are defined in Article 249 of the Code of Criminal Procedure Act and include the right to communicate and meet with his/her client in appropriately private conditions; the right to review the procedures instituted under the case file of the preparatory phase; the right to recommend evidence items and submit documentation in favor of his/her client; and the right to request the repeal or modification of any precautionary measure imposed on his/her client.

During the investigatory process, Mr. Gross was able to unrestrictedly exercise his rights, as spelled out in the applicable Cuban laws, and relied on both legal counsel and consular access. He also had the opportunity to receive family visitations.

The investigatory process was completed before the expiration date of the term authorized by the Attorney General. The resulting case file was handed over to the public prosecutor to pursue a legal action. On January 29, 2011, the case was submitted to the Trial Chamber for Crimes against the State Security of the People’s Provincial Court of Havana as the competent authority.

Acting in accordance with the law, the aforementioned tribunal decided to start its hearing on February 3rd, 2011, and in compliance with the provisions in Article 281 of the applicable Code of Criminal Procedure Act, the court gave notice of the prosecutor’s interim conclusions to the defense attorney; i.e., MSc. Nuris Piñero Sierra, the following day. This legal counsel was given the term defined by the law to submit her plea, and on February 10th, 2011, the defense presented its interim conclusions.

The public hearing started right on schedule on March 4th, 2011. The tribunal issued its sentence within the term authorized under Article 45 of Code of Criminal Procedure Act, on March 11th, 2011.

Paragraph 2

Admittedly, as paragraph 2 of the letter notes, Mr. Gross’ resume is remarkable. However, this paragraph fails to describe the activities Mr. Gross has conducted as a US government employee; a role that he played in Cuba in an active and undercover manner.

The USAID is not authorized by the Cuban government to conduct programs in this country, either directly or through third parties. Regardless, since 1966, the USAID and other US government agencies have retained contractors, like Mr. Gross, and have allocated millions of dollars per annum to unlawfully implement various projects within Cuba in order to change this country’s constitutional order.

Paragraph 13

In conclusion, as a matter of important reply to the allegations in paragraph 13, it must be noted that, as the contents herein illustrate, Mr. Alan Phillip Gross’ arrest did not violate any of the referenced articles in the Universal Declaration of Human Rights and/or the International Covenant on Civil and Political Rights, or the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Mr. Gross was tried, not because he was promoting the freedoms and rights described in these legal instruments, but because he attempted against the Cuban national security and public order. It was demonstrated that he had breached Cuban laws by implementing a US government program to undermine the Cuban constitutional order. The undercover activities he carried out in Cuba constitute crimes in many other countries, including the United States.

The IT supplies and materials Mr. Gross introduced in Cuba from the US were designed to circumvent the Cuban state controls and legally established communication channels. He even imported non-commercial, military-grade technologies. Mr. Gross did not file any application for approval to import and/or activate these devices or to develop any proprietary network, as legally required in both Cuba and the US. His real purpose was not to connect Jewish communities to the internet because these communities already had full internet connectivity.

As further proof of his undercover activity, Mr. Gross used third-party travelers to introduce much of the equipment and concealed from them the true intentions of his project. Mr. Gross did not declare to customs authorities his ownership of these devices and he disguised some of these imports. He never told the alleged beneficiaries of his activity that he was working for the US government. These persons testified that Mr. Gross had deceived them. Mr. Gross lied about the purpose of his trip. He entered Cuba using a tourist visa in spite of the real purpose of his trip, and as discussed herein, he expressly recognized in his reports that, on his trips to Cuba, he was violating Cuban laws and regulations and exposing himself to risks.

The US laws do not authorize any foreign government to circumvent their provisions by sending to the US, an undercover individual, funded by that foreign government and charged with the mission to set up any illegal and covert communication systems that fail to satisfy US registration and other formal requirements, let alone with the mission to subvert the US existing order.