Despite overwhelming international support for their case, the US Supreme Court has ruled against the Cuban Five's appeal for a retrial. It's a highly politicised decision, writes Faiza Rady On 15 June, the US Supreme Court turned down the retrial case of the Cuban Five, who were jailed for "espionage" in 1998. The Five, who infiltrated rightwing anti-Castro exile groups in Florida, asked for a retrial on the grounds that they did not receive a fair trial in Miami. Though dismayed by the Supreme Court's decision, Ricardo Alarcon, Cuban National Assembly president, wasn't surprised. "In May, the administration urged the Supreme Court to deny the review of the case," he said. "The judges did what the Obama administration requested of them." In 2005, the Atlanta Court of Appeals of the 11th Circuit Court ruled for a retrial of the Five outside of Miami on grounds that the city is riddled by a "perfect storm of prejudice". The court also annulled the charge of espionage since there was no evidence of the transmission of secret information. The court's ruling, however, was reversed on appeal and the case went all the way to the US Supreme Court. The "Five" are Gerardo Hernàndez, Gerardo Labanino, Fernando Gonzàlez, Rene Gonzàles and Antonio Guerrero -- they all started their 11th year of incarceration in US high security jails last September. Arrested in Miami on 12 September 1998, they were also charged with and convicted for "posing a threat to US national security" in their controversial and highly politicised trial in 2001. Their sentences range from 15 years, to a double life sentence. Their trial and sentencing has been denounced worldwide. The UN Human Rights Commission condemned the "climate of bias and prejudice prevalent in Miami" that precluded the "objectivity and impartiality that is required to conform to the standards of a fair trial". This conclusion set a precedent. It was the first time that the UN agency condemned a US judicial proceeding. Ten Nobel laureates filed amicus curiae (Latin for "friends of the court") briefs with the US Supreme Court on behalf of the Five. The amicus is legally defined as a person who is not a party to the litigation but who believes that the court's decision may affect his or her interests. "The International Covenant on Civil and Political Rights, a treaty to which the US is a signatory, stipulates that 'everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law,'" read the amicus brief signed by East Timur President José Ramos Horte, German novelist and human rights activist Gunther Grass, Nigerian novelist Wole Soyinka, and South African novelist and ANC member Nadine Gordimer, among others. Former UN high commissioner for human rights and former president of Ireland Mary Robinson, the entire Mexican Senate, and the National Assembly of Panama are signatories of the 12 amicus briefs that were also signed by hundreds of international legislators, intellectuals and human rights activists. The Five are considered heroes at home because their job was to help save Cuban lives. In the early 1990s, the Cuban government sent them to Miami to gather information about planned mercenary assaults by Cuban-American rightwing groups against the island. The Cuban authorities had a point. Since the 1959 Cuban Revolution, 3,478 people were killed and 2,099 injured in terrorist attacks on Cuba. The attacks intensified after Cuba started to develop its tourism industry, following the collapse of the Soviet bloc in the early 1990s. Boats from Miami travelled to the island, targeting tourist facilities. In 1997 alone, Cuban-American terrorists placed bombs in no less than 10 Havana hotels and restaurants, in addition to placing a bomb in one of Havana's airports. During their mission, the Cuban Five traced 64 known terrorists residing in the Miami area and provided four hours of film, documenting illegal paramilitary training in various camps scattered throughout Florida. The Cuban government then approached the FBI and offered to share the information with them on the assumption that the agency is in business of combating terrorism. They were mistaken. The FBI was, in fact, well informed about the activities of the Cuban-American rightwing. Rather than acting on the information and arresting their indigenous terrorists, the Clinton administration arrested the Five on charges of espionage. Yet, "the mission of the Five was not to obtain US military secrets, but rather to monitor the terrorist activities of anti-Castro mercenaries and report their planned threats back to Cuba," says distinguished US attorney Leonard Weinglass, a defence lawyer for the Five. "The arrest and prosecution of these men for their courageous attempt to stop the terror was not only unjust, it exposed the hypocrisy of the US claim to oppose terrorism wherever it surfaces," he added. Though inconsistent with their public posture, and morally indefensible, the US position makes sense. Since the early days of the Cuban Revolution, successive US administrations have established strong links with anti-Castro mercenaries, who have served to fuel and facilitate the US conflict with the island. The FBI is in fact affiliated, through its sister agency, the CIA, to organisations like Alpha 66 and the Cuban American National Foundation (CANF) who both sponsor and finance terrorist operations against Cuba. Founded in 1962, Alpha 66 has been part of the autonomous operations of the CIA since its establishment. Miami police intelligence documents describes Alpha 66 as "one of the most dangerous and active among the Miami-based anti-Castro organisations". As for CANF, they officially function as a lobby to pass anti- Cuba legislation in Congress. To that effect they specialise in bribing and buying off politicians. But over and above their special version of politicking, CANF has financed criminal operations, the most infamous of which involved bankrolling self-professed terrorists like Cuban exiles Luis Posada Carriles and Orlando Bosh. According to declassified FBI files (Document 9, FBI, 7 October 1976), both men masterminded the midair bombing of Cubana Flight 455 on 6 October 1976, which killed all 73 people onboard. "There were no innocents on that plane," Bosh was quoted as saying. "All of Castro's planes are war planes." While Orlando Bosh and Luis Posada Carriles retired from the terror business and are enjoying the good life, a younger generation of mercenaries has taken over the call to arms. Attorney Weinglass reports that in April 2006 one Robert Ferro was arrested in Southern California and charged with the illegal possession of weapons. The police found a cache of 1,500 weapons in his home, among them 35 machine guns, 130 silencers, 89,000 rounds of ammunition and a number of rocket launchers. In defence of his client, his attorney explained in a brief filed in court that Ferro was hoarding the weapons for "a militant group planning to overthrow the government in Cuba". Santiago Alvarez of Fort Lauderdale, Florida, was likewise charged with unlawful possession of machine guns, grenades, grenade launchers and thousands of rounds of ammunition, also amassed to overthrow the Cuban government, says Weinglass. And The Miami Herald reported on 22 June that Miami resident Jose Antonio Llama, a former board member of CANF, admitted to having given $1.4 million, in the period between 1994 and 1997, to a militant group for the purchase of radio-controlled light aircraft in addition to other arsenals to be used against Cuba. Gathered in 2006 over a six-month period, this random sample indicates that armed groups besides CANF and Alpha 66 who plan to "overthrow the government of Cuba" are habitually given leeway to operate with impunity in the US. The case of the Five illustrates a surreal example of clamping down on those combating terrorism, while the real terrorists go free. "The Five were not prosecuted because they violated American law, but because their work exposed those who were," explains Weinglass. But over and above this travesty of justice, it is also remarkable that the Five weren't charged with espionage per se, but with "conspiracy to commit espionage". In legal terms, the distinction is crucial. In the case of espionage the prosecution has to prove that a foreign agent handed over classified information to a foreign government, while "conspiracy to commit espionage" isn't contingent on any evidence of actual spying having occurred in the real world. Instead, the case is built around the allegation of "intent" or "agreement" to spy. Although the FBI seized some 800 documents and thousands of pages from the Five, not one page included classified government documents. They were convicted on the tenuous charge of "agreement" to engage in espionage at some point in the future. "In a political case, such as this one, juries often infer agreement on the basis of the politics, minority status or national identity of the accused," says Weinglass. Still, despite the setback, the Five remain undaunted. Responding to the Supreme Court's dismissal of their request for a retrial, Gerardo and his comrades vowed to continue the struggle. "I have no confidence in the US justice system," says Hernàndez. "There is no doubt that our case has been, from the beginning, a political one. But as long as one person remains struggling on the outside, we will continue to resist, until there is justice."
