The case of the Cuban Five, writes Curtis Doebbler*, reveals the politicisation and undermining of US law On 20 August in a United States courtroom in Atlanta, Georgia, the appeal of five Cuban men was heard. The hearing was not the first nor, undoubtedly, will it be the last in this case that has brought to the fore some of the best and worst qualities of American justice. According to the US government, the case is about trying people who were seeking to use violence against persons and interests in the US. That the US is willing to use its ordinary courts to punish persons it claims to be criminal cannot but be applauded. It is for this reason that courts exist. A country's judicial system is supposed to provide an independent, impartial and fair forum for determining if the laws of the country have been broken. Unfortunately for "lady justice" in the US, this case appears to provide more evidence that American justice is broken. Strikingly, as the case started even before 11 September 2001, it seems to indicate that even before the date that Americans claim "changed everything", the corruption of justice was already well under way. Military tribunals for Guantanamo detainees, the processes that whitewashed Americans who committed atrocities in Abu Ghraib and elsewhere in Iraq, the unfair trials that are scripted by the US before Iraqi courts, are perhaps not aberrations, but express the present essence of the American justice system. The case of the "Cuban Five" stands out not only because of when it started, but also because, like some of the other examples, it has been reviewed and condemned as unfair by international human rights bodies. This is a case with a long and complicated history. It concerns five men: Antonio Guerrero Rodriguez, René Gonzàlez Sehwerert, Fernando Gonzàlez Llort, Gerardo Hernàndez Nordelo and Ramón Labanino Salazar. The first two are American citizens; the other three are Cuban citizens. All of them were resident in the US. The five men have all spent almost 10 years in US prisons to date. They were arrested in September 1998 in Florida. None of the five men resisted arrest. Nevertheless, they were all denied bail, denied access to their lawyers for two days while they were questioned and pressured to confess, and then held in solitary confinement for almost two years. During this time they had limited access to their lawyers and to the evidence presented against them. The US government subsequently declared all 20,000 documents it had taken from the defendants to be secret, which under American practice prevents the defence from having full access to their own documents. When the trial finally started the defendants did receive, as requested, a jury trial, but in Miami, Florida. This is the US city with the highest number of Cuban dissidents in US and the de facto seat of the movement to overthrow the current government of Cuba. Dissident activities are not secret. The Cuban government has claimed in a report to the UN that since 1959, 3,478 Cubans have died as result of terrorist attacks or aggression and that in the 1990s Cuba suffered 68 terrorist attacks. Many of these attacks have been allegedly planned from Miami. At the trial of the five defendants, it was claimed by defence lawyers that in addition to those who died, 2,099 Cuban citizens have been wounded since 1959 by these attacks. Perhaps there is no better barometer of the unfriendly nature of US relations with Cuba than the unilaterally imposed embargo and the US government's admission in recently declassified documents that it has repeatedly tried to assassinate Cuban leader Fidel Castro. According to the UN Working Group on Arbitrary Detention, the US government has admitted that "the climate of bias and prejudice against the accused in Miami persisted and helped to portray the accused as guilty from the beginning." And further, that the US government admitted, "one year later... that Miami was an unsuitable place for a trial as it proved almost impossible to select an impartial jury in a case linked with Cuba." Defence attorneys for the five men told Reuters that, "nearly all the jury candidates expressed negative views of Cuba and the only three who said they had mixed views of the island were dismissed." More surprisingly, during the trial the judge denied the prosecution's request to withdraw some of the most serious charges and refused to give much attention to the fact that the rights of the defendants had been obstructed from the time they were arrested. At trial, the US attorneys for the prosecution argued that none of the above constituted serious interferences with the rights of the five defendants. Defence attorneys argued that the obstruction to the defendants' rights of defence was significant enough to make the whole trial illegal and unfair. Defence lawyers also called for a change of venue, arguing that their clients could not get a fair trial in Miami. They argued this was the case even though Cuban dissidents had been excluded from the jury. A climate of prejudice exists so as to prevent a fair and unbiased trial, they argued. The trial nevertheless went ahead in the Miami courtroom. The government argued that the Cuban Five were all members of the "La Red Avispa", or the "The Wasp Network", that was allegedly a terrorist cell intending to harm the US. Although never registered as agents of a foreign government, the defendants claimed that they were acting on behalf of the government of Cuba to protect its national security and to prevent terrorist attacks against their country. The prosecution did not dispute that the Cuban Five were all government agents, but argued that they were still involved in unauthorised covert activities. Despite relatively wide agreement on the facts, all the documents that had been confiscated from the defendants remained classified, and although they could be used against the defendants, they could also not be disclosed to them. In June 2001, the five men were convicted of 26 counts allegedly connected to acts against the security of the United States, including being unregistered foreign agents, espionage and conspiracy to obtain military secrets. One of the defendants was also convicted of conspiracy to commit murder for providing the Cuban government with information regarding the unauthorised flight of a plane to Cuba. The plane was later shot down off the northern coast of Cuba. The men were sentenced to terms in prison ranging from 15 years to life imprisonment plus 18 years. The Cuban Five appealed the guilty verdict and the sentences. On 9 August 2005, a three-judge appellate panel of the Court of Appeals for the Eleventh Circuit in Atlanta, Georgia, overturned the convictions and sentences of the Cuban Five and ordered a new trial. The court agreed that the trial had been biased against the defendants because it was held in Miami where the defendants, according to the US court, could not get a fair trial. In handing down its decision, the appellate panel stated that one of the US's "most sacred freedoms is the right to be tried fairly in a non-coercive atmosphere." The three-judge panel of the Court of Appeals for the Eleventh Circuit essentially followed the decision of the UN Working Group on Arbitrary Detention which had just three months earlier, on 27 May 2005, stated that the detention of the five men was arbitrary because "from the facts and circumstances in which the trial took place and from the nature of the charges and the harsh sentences handed down to the accused, the trial did not take place in the climate of objectivity and impartiality that is required in order to conform to the standards of a fair trial." The Cuban Five remained in prison with continued limited access to legal counsel and limited access to evidence, even their own documents, while the US government appealed the decision of the three-judge panel to a 12-judge panel of the same Eleventh Circuit Court of Appeals. Exactly a year after the three-judge panel of the Court of Appeals for the Eleventh Circuit had found the trial to be unfair, on 9 August 2006, a 12-judge panel reinstated the original convictions. The panel ruled that the Cuban Five had received a fair trial despite the shortcomings. Most strikingly, unlike the UN Working Group that is made up of five legal experts from five continents, the Eleventh Circuit Court, which consists only of American jurists, found that the trial was fair. In part this might be due to the fact that US courts generally do not apply international law, despite the fact that the United States Constitution says that international law is the law of the land, and that the US has ratified the International Covenant of Civil and Political Rights. This treaty, in Article 14, provides for the right to a fair trial. It is this treaty that the UN Working Group based its decision on, noting that the US government has voluntarily agreed to apply it. The US Court of Appeals completely ignored it. On Monday, 20 August 2007, the case again came before the Eleventh Circuit Court of Appeals. Lawyers for the Cuban Five argued that the process had been so flawed that the court should take the unusual step of reopening the case and ordering a new trial in a neutral site. Jason Frazzano, who worked on the appeal with lawyer Len Weinglass, described the reasons for appeal in striking terms: "The original judge applied the wrong legal standard, ignored venue complaints, and refused prosecutorial attempts to drop the murder charges. This is an extremely unusual thing for a judge to do; to refuse a prosecutorial attempt to drop a charge." In the days before the 20 August hearing, dozens of judges, lawyers and leading rights activists from around the world converged on Atlanta, Georgia, to support the call for a new trial. Among those in Atlanta were Chilean Judge Andres Guzman, the president of the International Lawyers Association, Paolo Lins e Silva, Ramsey Clark, former US attorney-general, German Parliamentarian Norman Paech, US Congresswoman Cynthia McKinney, Colombian Judge Uriel Gomez Ceballo, the president of the Brazilian Bar Association, Raymundo Cesar Britto, the former head of the National Lawyers Guild, Heidi Boghosian, and president of the American Association of Jurists, Vanessa Ramos. Approximately 75 supporters, including some of the above attended the hearing on 20 August. All of these persons believed that justice was not done and was not seen to be done. It was also pointed out that there was a double standard in trying the Cuban Five for attempting to prevent acts of terrorism against their government, while releasing people like Luis Posada, who the Cuban government claims has carried out acts of terrorism against Cuba. Indeed, a basic principle of justice and the rule of law is that the law applies to everyone equally. Hernandez claims that a group of Cuban exiles called "Brothers to the Rescue," had announced plans to fly to Cuba as they had done before at a press conference. The Cuban government has stated that the five "were working with the Cuban government to protect Cuba from invasion and terrorism organised, funded and launched from Miami..." One of the Cuban Five ironically described the situation to Reuters, lamenting that apparently "you can be a terrorist in this country if you are a terrorist against Cuba, no problem with that. Those are the good terrorists for the US government." Perhaps the US judges deciding the appeal of the Cuban Five must ask themselves how the rule of law really applies? * The writer is a professor of law at An-Najah National University in Nablus, Palestine.
