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Montreal lawyer reports on "Free the Five" hearing

  (The following article is from the September 16-30, 2007 issue of People's Voice, Canada's leading communist newspaper. Articles can be reprinted free if the source is credited. Subscription rates in Canada: $25/year, or $12 low income rate; for U.S. readers - $25 US per year; other overseas readers - $25 US or $35 CDN per year. Send to: People's Voice, c/o PV Business Manager, 133 Herkimer St. Unit 502, Hamilton, ON, L8P 2H3.)

(This report by Montreal human rights lawyer Bill Sloan is an update on the legal situation faced by the Cuban Five, prisoners in US jails for defending their homeland against terrorist attacks.)

     What would you do if a neighbouring country tolerated terrorist groups using its territory as a base of operations, to plan, train, finance and launch attacks against your people and your country? Since 1960, hundreds of terrorist actions have killed almost 3,500 Cubans, injured and maimed thousands more.    In response, Cuba did not attack the US. It sent five men to infiltrate terrorist groups based in Florida to try get advance notice as a preventive measure. In June 1998, the FBI was called to Havana to receive a 20,000 page file, with video and audio tapes, on activities of anti-Castro groups which are illegal under US law. None were arrested. Instead, the infiltrators were arrested and treated as spies and terrorists.

     The Cuban Five have been treated in ways which are contrary to the UN Convention Against Torture, and indeed, contrary to US law. This began with seventeen months in "THE HOLE," a concrete box with a 24 hour light bulb, used as a punishment cell in SuperMAX prisons for hard-case offenders who refuse to abide by prison rules. The maximum time allowed in "the hole" is 60 days.

     Their trial in Miami was the longest in US history, yet outside the rabid Florida media, it received little network coverage. All five were found guilty of all charges and sentenced to long prison terms. Three have a life term, which means they will die in jail.

     In 2005, a three-judge panel of the 11th US Circuit Court of Appeals in Atlanta unanimously ordered a new trial because Miami could not be the scene of a fair unbiased jury trial. In 2006, the full Court of Appeals (twelve judges) reversed that decision by a 10-2 vote and sent the case back to another three judges to hear the defence's other arguments. That hearing was held in Atlanta on August 20. I rode the Greyhound down to attend as an observer.

     I was in good company, with Judge Juan Guzman of Chile, who prosecuted Pinochet; Ramsay Clark, Attorney-General for JFK; Paolo Lins e Silva, president of the Union Internationale des Avocats; Cezar Britto Aragao, President of the Bar of Brazil; Paul Bekaert, Batonnier of Bruges for the Belgian Bar; Cynthia McKinney, ex-US Congresswoman; Dr. Norman Peach, German member of Parliament; Eddy Boutmans, ex-Senator and Minister from Belgium; and Vanessa Ramos, Continental President of the American Association of Jurists.

     The judges began by rejecting a technical argument that the government had insisted on in its written brief. Then they ordered the prosecutors to submit a copy of the transcript of their secret hearing with the Miami trial judge, where they explained why about 80% of the evidence was secret and could not be seen by the defense.

     There were three main points argued orally. First, the prosecutors broke the rules dozens of times when addressing the jury - for example, stating three times that the Five had come to Miami to destroy the USA. That should be worth a new trial.

     Second, the "espionage conspiracy" charge does not involve a single classified or secret US government document, yet three of the Five have life sentences. And what kind of a spy gives the results of his work to the FBI?

     Last, Gerardo Hernandez was convicted of conspiring to murder the pilots of the "Brothers to the Rescue" planes shot down by Cuban MIGs on February 24, 1996, as they approached Cuba. The evidence on this charge was so bad that the prosecutors made an emergency motion during the Miami Trial asking that the judge's legal instruction to the jury be changed, arguing that it made their case impossible to prove. The emergency motion was rejected, but the Miami jury convicted anyway, without even asking the judge for clarifications.

     From the appeal judges' comments during the hearing, and the nature of the arguments, there is hope. But we, and the Cuban Five, will have to be patient as the first Appeal Court judgment took over a year. In the meantime, terrorists such as Luis Posada Carriles, Orlando Bosch and other murderers and hijackers walk the streets of Miami as free men. Nasty things happen more easily in the dark, and we must break the US media's wall of silence around this case, to bathe it in the light that can shame the courts into righting this injustice.

     You can organize local seminars, download and distribute material from the Free The Five website http://www.freethefive.org, show movies, and bring in speakers. This case is about exposing the USA's hypocritical, phoney War on Terror, and sending the Five home to their families.