Richard Klugh

Interview with Richard Klugh by telephone to his office 23^rd August 2011

Gerardo Hernandez, one of the Cuban Five submitted his request for a habeas corpus relief in March based on new evidence.  He received the US reply on 25th April this year opposing his request. He has now submitted a reply with additional information.

Radio Havana Cuba spoke to Richard Klugh, a member of the defence team for the Five by telephone to his office in Miami 23^rd August 2011 for an up-date on Gerardo’s legal situation:

Bernie Dwyer (BD): What is happening now with Gerardo’s habeas corpus petition?

Richard Klugh (RK): Where we stand right now is that the legal team for Gerardo has filed a comprehensive reply as well as additional memoranda and affidavits in response to the (US) government’s opposition to Gerardo’s petition for Habeas Corpus relief.

The response was filed just last week and we believe we have responded to all the arguments made by the government and we filed further an  affidavit from Gerardo and an additional affidavit from his former attorney Paul McKenna which supports the fundamental allegations that we have made in the habeas corpus application. We really feel that we have made many strides towards proving everything we have said and proving Gerardo’s innocence in this matter.

As for Antonio, last week he also filed his reply to the government’s response in which he is also focusing, as did Gerardo, on the use of paid Radio Marti and TV Marti employees to publish articles prejudicial to the Five at trial here in Miami. And that is what his document is focused on with affidavits, as we did in Gerardo’s case, indicating how the evidence has gradually come out as to exactly the extent to which the United States tried to prejudice the Five during their trial by publishing articles that were intended to stir up anger and hostility towards Cuba and Cuban agents.

Both of these documents present compelling reasons for relief for all of the Five, particularly for Gerardo and the fact that his own attorney has supported the allegations that we have made is a tremendously important development in the case.

BD: Does the application for habeas corpus apply to Fernando, Rene’s and Ramon?

RK: The documents that have been filed for Gerardo and Antonio also apply to Rene. Ramon and Fernando have not yet had the opportunity to request habeas corpus relief. They will be filing their motions within a week or two and we will be raising some of the exact same grounds in support of their claim.

We feel that we have reached a point now where the evidence is overwhelming and establishes the actually hostile and intentionally hostile environment in which the trial was held and that the government’s failure to admit what they had done to poison the atmosphere against the Five is a fundamental violation of their rights. We also believe that the grounds that we allege, specifically in regard to Gerardo establishes his innocence and we believe that it establishes the unfairness of the convictions of all of the Five.

This has reached a point where there is a compelling level of evidence that cannot be ignored, it simply cannot be ignored. It’s very unusual when the attorney himself will come forward with an affidavit that sustains the very claims made as to his being hampered in his ability to fully and adequately defend Gerardo.  But that has now happened in the case of Gerardo and we are very pleased and very grateful that the attorney has come forward and bravely set forth the very facts that we believe will show that the convictions were unjust.

BD: What are the issues in Gerardo’s Habeas Corpus that don’t apply to the other four?

RK: One of the principal factors in the case was the law that we were operating under. The (US) government has never tried to prosecute someone as they prosecuted Gerardo, not just for the conspiracy to commit espionage, which was a unique charge, where they had conceded that he had not even attempted to commit espionage or never planned to attempt to commit espionage, that nevertheless, that somehow they could sustain a conspiracy.

But apart from the charge which we believe was fundamentally defective, with regard to the claim of attributing to a conspiracy to commit murder is just an incredible charge. One of the problems with that accusation is that the government had never tried to prosecute somebody under that theory before. When the judge tried to restrict their ability to prosecute on a bad theory, the prosecutors admitted in an emergency filing in the court of appeals, that it would be impossible for them to prove Gerardo guilty under the law as found by the judge.

What happened then was a very unusual thing.  Even though the judge had agreed to correctly instruct that the jury was limited to one theory under the law, the court of appeals held that the judge didn’t successfully instruct the jury of that limitation, that the jury was left to pursue other theories and so even though the defense attorney didn’t realize it, Gerardo was being convicted on theories that he didn’t even know were before the jury.

So the procedures created a situation where the lawyer really felt that he had not defended the case because he thought that the theory on which the case was sustainable was not even before the jury.

So that’s the origin of the realization that we had on our part that the lawyer was unable effectively to defend because he didn’t even have the opportunity to know even what the jury was considering as a theory. And it is truly a unique theory the government tries to rely on to attribute to Gerardo something for which he had no responsibility whatsoever.

But beyond that so much additional evidence has come forward with regard to Gerardo’s actual innocence and had a lawyer known how the court of appeals would limit his ability to defend the case, then clearly he would have presented more evidence of Gerardo’s innocence. He (Paul McKenna) readily acknowledges these mistakes, readily acknowledges that had he understood the law completely he would have been able to fully present and take on a more affirmative responsibility to prove Gerardo’s innocence and which is what he was left with the responsibility of doing even if he didn’t know it.

And that’s largely where we are right now. He admits that had he understood where the case was going, this novel prosecution, this unheard of prosecution, he would have been able to easily establish Gerardo’s actual innocence and how strongly he feels about the steps he could have taken to do that including Gerardo’s own testimony. And so his willingness to admit how he was foreclosed from presenting fundamental evidence is really a striking testament to his honesty and integrity in coming forward but what you can seen that too is the lawyer’s and all our absolute belief that Gerardo is being punished for something that he is absolutely innocent of and we all await the day, and may it come very soon, when Gerardo is completely exonerated of the false charge.

BD: Is the US government still refusing to release documentary evidence to Gerardo to build his case?

RK: The US government is still resisting the presentation of documentary evidence that shows so much more clearly than we ever could have with the types of evidence that we had exactly what was going on with these airplanes and what was going on with some of the transmissions back and forth that show that he neither intended to do any harm to the United States nor did he intend to do any harm to anybody else. And the government’s documents, including satellite evidence for example, would have shown the way towards a proper defense for Gerardo but the government never produced it.

BD: So the next step in the Habeas Corpus petition is up to the court?

RK: We are waiting the setting of a hearing at which we can further establish all of these facts, further establish Gerardo’s actual innocence-show the evidence that should have been presented at the trial, show the evidence that would have been presented had the attorney not been placed in the position of being unable to defend Gerardo because of a misunderstandings as to the law and what the burdens of proof were. We readily await the opportunity for a hearing in which we can do that.

BD: When is the response due from the US court?

RK: There is no particular time frame. It’s up to the district court to set a stay hearing and we hope that it happens soon.

We want production of evidence and we want a hearing. That’s what we have asked for and we wait an opportunity to go forward with that.

This interview was broadcast by Radio Havana Cuba on Saturday 27^th August 2011

Fernando González

Today is Fernando Gonzalez’ fifth time to spend his birthday in a US prison. Fernando is one of the five Cubans who are now in prison for defending their country against terrorism. His work in Miami was monitoring the actions of one of the most notorious terrorists alive today, Orlando Bosch. Fernando is serving nineteen years in Oxford Federal Correctional Institution in Wisconsin for doing his duty by his country and the self-confessed terrorist, Orland Bosch is freely walking the streets of Miami.

Shadowing Orlando Bosch

The life of a security agent is dangerous. And when one is monitoring the actions of one of the most notorious terrorists alive today, the job takes of an even more perilous dimension.  This was the work of Fernando González, one of the five Cubans who are now in prison for defending their country against terrorism. Fernando González, under his alias Luis Medina was shadowing Orlando Bosch, one of the most sinister and treacherous Cuban Americans resident in Miami. Bosch’s Criminal History Orlando Bosch’s Index of Criminal History as published in Cuba’s daily newspaper Granma in October 1980 begins on the 18th January 1968 when he was involved in a bomb being sent to Havana in a suitcase. In just that one year, Orlando Bosch was involved in 40 plus acts of sabotage against Cuba, many of which took place in the United States. Orlando Bosch was so full of hatred that he set out to kill or injure anyone who showed any support for Fidel Castro and the revolutionary government. Orlando Bosch-Avila, is a native, citizen and national of Cuba.  On July 28, 1960, he was admitted to the United States as a non-immigrant visitor for pleasure, with authorization to remain until August 28, 1960.  Bosch, however, remained in the United States without permission until about April 12, 1974.  He has never been granted lawful permanent residence status. From about 1960 to 1968, Bosch was the leader of Movimiento Insurreccional de Recuperacion Revolucionaria (MIRR), an anti-Cuban terrorist organization.  On or about September 16, 1968, Bosch was involved in firing a shot from a 57 mm. rifle at the Polish vessel “Polanica”, which was then docked at the Port of Miami.  The shell hit the side of the “Polanica”, causing damage to the vessel, but no loss of life. On November 15, 1968, Bosch was convicted in the United States District Court for the Southern District of Florida of various felony offenses arising out the assault on the Polish vessel.  Bosch was sentenced to ten years imprisonment, paroled in 1972, and left the United States in 1974, thereby violating the terms of his parole. Subsequently, Bosch, while outside the United States, founded and led Coordinacion de Organizaciones Revolucionarias Unidas (CORU), a terrorist organization which has claimed responsibility for numerous bombings in Miami, New York, Venezuela, Panama, Mexico, Argentina, and elsewhere. Bombing of Cuban Civilian Airliner In October, 1976, Bosch was arrested in Venezuela in connection with the October 6, 1976 in- flight bombing of a civilian Cuban airliner, which resulted in the deaths of 73 men, women, and children including the island’s entire fencing team. Though detained in Venezuela for eleven years on charges arising from this incident, he was finally acquitted. At his trial, evidence was presented that the two men convicted of homicide in connection with the bombing were in contact with Bosch both before and after the bombing. This was the world’s first terrorist action involving the bombing of a civilian airliner. Bosch was recruited, trained, and supported by the CIA. Released from Venezuelan prison under suspicious circumstances in 1987, Bosch returned to Miami in 1988 without benefit of a visa and was almost immediately arrested for his earlier parole violation. The Immigration and Naturalization Service began proceedings to deport him. As the associate attorney general put it in 1989: “For 30 years, Bosch has been resolute and unwavering in his advocacy of terrorist violence.” This was not an idle statement. The Justice Department had information linking Bosch to more than 30 acts of sabotage and violence in the United States, Puerto Rico, Panama and Venezuela. As the associate attorney general pointed out: “The security of this nation is affected by its ability to urge credibly other nations to refuse aid and shelter to terrorists….We could not shelter Dr. Bosch and maintain that credibility.” The logic was unassailable, but, unfortunately, the case was not decided on the base of logic. Miami congresswoman Ileana Ros-Lehtinen and the usual crowd of hard-line Cuban exiles rowed in behind Bosch. They lobbied unrelentingly for his release. Among those in the forefront of the lobbying effort was the present President’s brother, Governor Jeb Bush, then managing Ileana Ros-Lehtinen’s election campaign. Miami Hard-liners Achieve Bosch Release In the face of all this pressure, coming even from his own son, the first President Bush decided it was politically convenient to free the terrorist. Bosch was released. Most controversially, at the request of Jeb, Mr Bush Sr not only intervened to release the convicted Cuban terrorist Orlando Bosch from prison but then granted him US residency. Bosch’s release, often referred to in the US media as a pardon, was the result of pressure brought by hard-line Cubans in Miami, with Jeb Bush serving as their point man. Bosch now lives in Miami and remains unrepentant about his militant activities. In July 2002, Jeb Bush nominated Raoul Cantero, the grandson of Batista, as a Florida supreme court judge despite his lack of experience. Mr Cantero had previously represented Bosch and acted as his spokesman, once describing Bosch on Miami radio as a “great Cuban patriot”. While this convicted terrorist, responsible for death and injury in his own country and abroad enjoys the freedom given him by the senior Bush administration, there has never been a serious attempt to make him pay for his crimes. Fernando González, whose only so-called crime was to defend his country against the horror and death perpetrated by Orlando Bosch is serving a life sentence in a prison miles away from home and family. Who is fighting the war against terrorism and who is harboring the terrorists? The answer is obvious.

Among the measures, effective from June 30th, 2004 headed by US Secretary of State, Colin Powell, directly affecting the family are the following:

• To limit family visit to Cuba to one (1) trip every three years under a specific license; individuals would be eligible to apply for a specific license three years after their last visit to Cuba; new arrivals from Cuba would be eligible for a specific license three years after leaving Cuba.
• To limit the definition of “family” for the purposes of visits to immediate family (including grandparents, grandchildren, parents, siblings, spouses, and children); and
• To reduce the current authorized per diem amount (the authorized amount allowed for food and lodging expenses for travel in Cuba) from $164 per day to $50 per day and limited to 14 days the travels.

Bernie Dwyer, Radio Havana Cuba called Silvia Wilhelm, executive director of the Cuban American Commission for Family Rights by telephone to North Carolina; Monday, 2nd August to find out more about the organization which views the Bush measures as anti-family; un-American and anti-Cuban.

[Bernie Dwyer]   Will you tell our listeners exactly how the Cuban American Commission for Family Rights came about?

[Silvia Wilhelm]  The Cuban America Commission for Family Rights is a broad based alliance of Cuban Americans who got together after the Commission for Assistance to a Free Cuba made their recommendations to President Bush.

We were irate when we heard what that Commission recommended and, very specifically, we came together to defend the integrity of the Cuban family. The recommendations made by the Bush administration are absolutely anti-family; they are un-American and they are certainly anti-Cuban. And we, as Cuban Americans have to defend the unity of our family. A lot of us have family in Cuba and even if we didn’t, we still have to defend many whose voices are not heard.

[BD]  Explain how this is actually affecting people? Are they very upset?

[SW]  People are very upset about it and I would dare say that they are just beginning to understand the ramifications of this new law. A lot of them haven’t really felt it because they had traveled to Cuba prior to it or maybe they are thinking of going to Cuba sometime in August or even next year. Then they will realize that in most cases they will be unable to travel, and that is going to have a major effect on our community. It is having it already.

If you read the press in Miami, I would say that the majority of letters that are written to the editor are denouncing these new measures: very few letters support it. And even those who are supporting it always try to give an explanation and say: “Oh, we do understand, it is disastrous for the individual but we do have a higher purpose…”

In terms of the community, there have been several demonstrations in Miami against these regulations and I expect there will be more.

People don’t fully understand what this means. They don’t understand that these regulations are retroactive. So if you went to see your mother last year and you think you can go next year because you didn’t go this year, you cannot: you cannot go for another two more years. So the full impact is still not being realized in our community but I would say that it’s disastrous.

[BD]  Does your organization have any political basis?

[SW]  We want to change policy so in that sense we are political. Either we want the Bush Administration to repudiate these regulations and understand that they were badly advised. To tell you the truth, we would like to elect a new president of the United States. But we are not partisan. As a commission, we don’t support one candidate versus another but as individuals, we obviously support a candidate. I have been a Democrat all my life and I am not at all in favor of the present administration in Washington so I plan to vote for John Kerry in November.

[BD]  Do you think that the recent anti-Cuban measures will affect Bush’s vote in the state of Florida?

[SW]  Without a doubt, it will affect Bush’s vote in Florida State. As a matter of fact, the latest poll showed that there has been a decline of about 16% in the Cuban American support for President Bush. If you look at the support he received in the 2000 election versus the poll measured right now, he has lost 16% of that support and I would imagine that between now and November, he’s going to lose more than that.

In addition to that, one thing that was never part of the equation when the advisers advised Bush to go into this mode, are the thousands of Cuban Americans who left Cuba after 1980, who have families in Cuba and travel to Cuba and have since become American citizens. We understand that in a lot of those cases, those people have not registered to vote and if they do, we are talking about, by conservative estimates, probably 35,000 people who fall into that category. Now, as to whether they will vote Republican or Democrat, I don’t know but I would imagine that if they are impacted by these regulations, there is only one way to vote.

[BD]  Are the right-wing anti-Cuban groups expressing any opinion about these measures?

[SW]  I think that in the majority of cases, those people don’t have any relatives in Cuba so it doesn’t affect them personally. They also have this strange way of thinking that anybody who stayed behind in Cuba and never left is irrelevant and should be discarded, which is a very peculiar way of thinking because after all, we are all Cubans and have to make the decisions we have to make with our lives. So we are all part of the Cuban nation.

But even they, realizing that the American people cannot relate to these measures, that the American press has rejected the measures in its totality, then, in their speech they are saying “we understand that this is detrimental to families blah, blah, blah: but we have a higher purpose, that is to bring down the Cuban government: therefore the means justify the end”. Of course the end is not what they think it going to be. It’s not going to do anything to the government but it is going to hurt the people very much.

[SW]  Can you describe some of the activities that you have organized in Miami?

As part of the Commission, we put together a press conference denouncing these measures a week after they came out. On May 20th, we held a press conference in Miami, and within 48 hours 400 people had gathered in a hotel in Miami. We thought that was pretty important. It had never happened so quickly before or with such incredible support from the community.

A week last Saturday, we put together what has been called the major demonstration in Miami against the measures. That took place in front of US Congress member, Lincoln Diaz Balart’s office. By conservative estimates, between 500 and 600 people marched up and down 87th Avenue basically repudiating these regulations and requesting they be overturned. Basically, they were doing what Americans can do: protest civilly and demand their rights. It made the local and national press. We thought it was quite effective. Last Saturday, another group put together a demonstration in front of US Congress member Illeana Ros Lehtinen’s office.

But we have other things in the works. We have an event in August and we have an event in September, which will be quite a big event, denouncing these regulations. We plan to bring a national key-note speaker. I am not at liberty to say who it is right now but I m pretty sure that it will be quite an important event in Miami.

[BD]  Is there any form of threat or counter-protest from the right-wing groups there?

[SW]  Last Saturday there were about 30 people who put together a counter-protest at a different site. They didn’t come to our site. There were no more than 30 people. From what I know, there have been no counter protests of any size. There were hardly any at this Saturday’s event.

[BD]  Lincoln Diaz Balart was at Miami airport when several hundred Cuban Americans were trying to travel to Cuba. How do you think he is affected by all this?

[SW]  I don’t think he is going to have change of heart. This is not something he doesn’t believe in. He’s a hardliner against Cuba and I don’t foresee any change in his position whatsoever. I think he was very surprised by the incident at Miami airport because for the first time, people from Miami, some of them his constituents, really confronted him at the airport. In fact some very bad language took place and he was called a few not very nice adjectives because people were so frustrated. I was actually at the airport that day but I left 15 minutes before he arrived.

He was flying from Washington to Miami and he was told what was happening at the airport. So he had no choice but to stand in front of 400 of his constituents at the request of the airport officials. I think that he did not expect what happened. It was pretty ugly and I have to give the Miami press some kudos about the fact that they did publish it in the paper. Usually our press is very slick about not covering some important events when they don’t fit their line but they did cover this.

I don’t expect Diaz Balart to change at all. As a matter of fact, after our demonstration in front of his office, he made a statement that things were going to get even tighter.

[BD]  It seems to me that there is a different voice coming out of Miami now. We are used to hearing the right-wing anti-Cuban voices. Is this the first time there has been public protest from the ordinary Cuban American residents there?

[BD]  No, I really don’t think so. It might be the case that these are the biggest demonstrations that have happened but I don’t think it’s the first time. I think that a lot of people for many, many years have been showing a different face of the Cuban American community and a different position. I think Washington has heard it loud and clear now.

In fact, three years ago we put together a conference in Miami that was historic. A group of us Cuban Americans put on the first conference opposing the US embargo against Cuba at the Biltmore Hotel. Over 400 people attended and it made history in our city. We did another one last year that also made history. This has been going on for quite a while. It’s just now it seems to be of larger proportions.

[BD]  Is this because these measures go right to the heart of Cuban American families?

[SW]  I want to call it the Elián 2. Obviously, you are very aware of the Elián episode*, it cut to the heart of the problem of family separation. Now we are once again dealing with the same issue. It will backfire: it has no way but to backfire because every time you get into the business of dividing families, it usually turns out to be a loser at the end of the day.

[BD]  So, you and the Commission for Cuban American Family Rights are going to continue protesting?

[SW]  Absolutely, we will continue fighting until November 2nd. And on November 3rd, when we wake up in the morning and find out who our next president is, we will regroup and we will have different strategies depending on who the president is. We are not going away any time soon.

(This interview was aired on Radio Havana Cuba on August 2nd and 3rd, 2004)

Marazul is a travel agency based in Miami, that has been arranging travel to Cuba for the last 25 years. It is the biggest company dealing with North American travellers to Cuba with direct departures from New York and Miami. Armando Garcia, vice president of Marazul heads up the department that caters to Cuban-American passengers and Bernie Dwyer of Radio Havana Cuba spoke to him by telephone at his office in Miami, today 1st July, the day after stringent and inhumane travel restrictions imposed by the Bush administration came into effect.

[Bernie Dwyer]  Why is it necessary for Cuban-Americans to have a particular department at Marazul Travel to arrange the trip for them?

[Armando García]  It’s more convenient to go through an agency for a start because there are a lot of requirements from the American side. There are different types of categories of passengers who can travel legally from the United States and they use us as a conduit to explain the regulations to the passengers. From the US point of view they have to sign different kinds of forms defining in which category they are travelling to Cuba.

[BD]  Can any US resident travel to Cuba if they want to?

[AG] No, the only way a US resident can travel directly to Cuba from the United States is to comply with US regulations and they are closely checked at the agency and airport level. The travel operators to Cuba are required to have a license from the US Treasury Department and that licence requires that you inform the passengers of the different options to travel. The tour operators are responsible to ensure that people comply with these regulations.

[BD] Can you explain exactly what the regulations are and what changes have been made?

[AG] Cuban-Americans are the largest group travelling to Cuba to visit relatives. Before June 30th, the regulations stated that Cuban-Americans could travel once every 12 months to visit relatives in Cuba. If they had not travelled in the last 12 months, they could simply go to an agency and sign an affidavit that they had not gone to Cuba in the last 12 months and that was it. Before, you could go every 12 months just by signing an affidavit.

The new regulations state that, from June 30th, you need a specific license to go to Cuba. To give you a specific license, there are conditions: that you had not travelled to Cuba in the last three years and that the travel is for the purpose of visiting close relatives defined as mother and father, sons and daughters, grandparents, siblings or a wife or husband. In other words, the US administration has redefined the concept of close family. For instance you cannot travel to visit an uncle or an aunt or a cousin. Those are the requirements. But we are having a more serious problem at this time. The regulations were announced on the 16th of June. Yesterday was the first day that a Cuban-American needed a specific license to travel to Cuba. We are speaking here of the fact the US Treasury Department have not issued a form to request that specific license. In other words, they have totally stopped any family travel. Yesterday’s flights, today’s flights, probably, tomorrow’s flights and so on, are probably going to be going without any Cuban-American on board because the US Treasury Department have not published the form.

Then there’s processing the form. Let’s say that if they publish it today or tomorrow, how long is it going to take to process that particular person to obtain that particular license? It could be weeks before any Cuban-American can travel to Cuba.

As to the licence requirements for non Cuban-Americans, I am not a specialist in that department as my responsibility in Marazul is related specifically to Cuban-Americans, but I can give you a general idea. Before, under the general license, US students could travel to Cuba for different kinds of educational purposes if their university had a license. The new regulations state that trips that are organised for student purposes to Cuba could continue only until the 15 of August. After the 15th of August, they will only permit students participating in studies in Cuba with certain characteristics. It has to be organised study over an extended period of time. Obviously that would limit the number of students going because usually the type of trips are for shorter periods.

[BD] There is something very unreal about these measures being put into effect. Did you really think it would come to this and how are your customers reacting?

[AG] When it was announced on May 12th or 13th, that these regulations – regarding the family, the 3 years and so on – were possible because of a recommendation put to Washington by the so-called Commission for a Free Cuba, Cuban-Americans were in denial. They could not believe it was going to happen. We were explaining to them at our offices what was expected according to the announcements that were made.

I would say that 95% of the people didn’t believe that this was going to happen. When the regulations were announced on the 16th of June, reality hit and many people began to realize what was really happening. We have had a very interesting reaction here in Miami where a polarisation of the Cuban community has become very real between people who support these new measures and people that are against it. It’s very interesting how the opinion is divided 50/50 up to this point.

[BD] You mention that it 50/50. Are these people actually making their opinions known or are you just surmising?

[AG] There have been some unofficial polls. For example, one of the TV stations here – “Telemundo” on local Channel 51 in Miami – did an Internet poll. Obviously this is not a scientific poll but the numbers were precisely that. There have been many other polls done by different organisations that show that close to 50% of the people support the possibility to travel and this is something that is increasing. People are feeling the need to express their opinions.

Concretely, I can tell you that an organization has been formed called the Commission for Cuban-American Family Rights, which is composed of many people from different sectors and has organised different activities. There have been other activities that have been organised by other groups and individuals. Some are spontaneous demonstrations. For example, we had a spontaneous demonstration at the airport here in Miami where people were demanding the possibility of travelling to Cuba. There were some marches here in Miami and car caravans.

But specifically, let me tell you that on the 20th of May the commission I mentioned before announced a press conference inviting people to participate. That was on a Thursday at noon. With two days prior notice that this activity was going to take place, I was really surprised that there were more than 400 people attending that press conference. So that shows you the level of reaction and we are talking about the 20th of May. I am sure that if other organized demonstrations are called, now after the 30th we are probably talking about thousands of people.

[BD] Do you feel that the Bush administrations somehow got it wrong in thinking that there would be widespread support for these measures in Miami?

[AG] Personally I think they got the wrong signal; the wrong advice. The people that had been advising them on this issue got the situation wrong. They have their own interests and I think they didn’t measure the reaction that would happen here. I think they calculated in order to obtain more Cuban-American votes here in Florida. They calculated that, by carrying out these measures, Cuban-Americans were going to rally around them. And they calculated that the majority of people that are registered to vote are people who left Cuba before 1980 and these people support the restrictions because they don’t have close family in Cuba. What they didn’t calculate was that this situation has moved a lot of people who came after 1980 to register to vote. In my opinion, they are going to find out in November how many of them there are.

[BD] What is the atmosphere like in Miami today?

[AG] Obviously a lot of people are affected. If you go to one of the Cuban restaurants or coffee places you will witness the dynamic of people talking about these measures. And you hear the discussion going from one side to the other. The polarization is happening here and it is very interesting and I think this is just the beginning.

[BD] Do you think that people are speaking out a bit more or are people still afraid of the old guard right-wing Cuban-Americans?

[AG] What happened is that they touched a very, very sensitive issue here: the family issue. Cubans are family-oriented and people are losing their fear of speaking out because they are not just talking about themselves, they are talking about the family and they are talking about a very unjust situation that has been created. Definitely, many people who are against these regulations understand that they are being pushed or they are being supported in a very active way by factors inside the Cuban community that are looking out for their own interests and miscalculating reality.

[BD] What solution can be offered to people when faced with these measures?

[AG] I think people are beginning to look at the solution to this situation as being directly related to the elections. The presidential nominee, or close to being nominee, for the Democratic Party, John Kerry, has already expressed his position: he is against these absurd regulations that go against the family and family values and he has expressed very clearly that he’s against restriction of travel to Cuba in general and specifically more against the restriction of family travel.

I think the polarization has been directed towards the elections and many people are beginning to see that one candidate is totally opposed to the other as far as this issue is concerned. A voter registration drive has developed all over this city and I think that it very interesting.

Saul Landau

Saul Landau, an internationally-known scholar, author, commentator, and filmmaker, is the Director of Digital Media Programs and International Outreach at California State Polytechnic University, Pomona. He is known for his work on foreign and domestic policy issues, Native American and South American cultures, and science and technology.Saul Landau’s most widely praised achievements are the forty films he has produced on social, political and historical issues, and worldwide human rights. He has also written extensively on Cuba and recently published an article in the newsletter, CounterPunch called: “Five Cubans in Prison Victims of Bush’s Obsession”.

Bernie Dwyer, Radio Havana Cuba, spoke by telephone to Mr. Landau at his home in California, Thursday 10th June, about the article.

[Bernie Dwyer]:           Mr. Landau, in your recent article published in CounterPunch 6th June, you referred to the Five Cubans who came to the United States undercover in the 1990s to infiltrate anti-Castro terrorist groups and now occupy U.S. prison cells as victims of George W. Bush’s obsessive-compulsive disorder. Would you explain what you mean by that?

[Saul Landau]:  Alcoholism is an obsessive-compulsive disorder and George W. is an alcoholic. It doesn’t mean he’s drinking. There’s what alcoholics call dry drunk; those who stop drinking but nevertheless have not recovered from the most furious symptoms of the disease. Obsessive-compulsive disorder is when you begin to obsess about something, usually it is the drink, and then you are compelled, literally, to follow your obsession and you can’t stop. This is what’s happened to George with Cuba.

He seems to be obsessed with Cuba and he will go to all lengths to, quote, “punish” it, although it is not clear exactly who he is punishing because he says he loves the Cuban people and wants them to be free like, of course, he wanted the Iraqi people to be free, and as everybody can see, the Iraqi people are basking in their freedom today.

Well, who is being punished by his love for the Cuban people and the desire to set them free? I don’t really think that Fidel has really missed a meal because of this punishment but Cuban people on both sides, in the US and in Cuba, are being severely punished by this man’s compulsive behavior. That is, if you analyze it, the only beneficiaries of this policy are those who make money or have their prestige, fame and reputation involved in maintaining an ever stiffer embargo. People like, Otto Reich, (his friends call him ‘sir’ as a joke) or Frank Calzon. These people live from essentially hating Castro as a profession and so these five Cubans, who were essentially workers in the war against terrorism because that is what they came over to do, are victims of George W. Bush’s supposed war against Cuba and in this sense, it is a compulsive disorder.

I would add, by the way that alcoholics don’t ever understand the consequences of their actions. They simply act and then they refuse to take responsibility and of course, they don’t admit their mistakes or errors. So, if you want to look at the character study of this man, whose behavior is supposedly more and more erratic every day, you can look to the behavior of any addict or alcoholic, whether or not they are continuing to use. This is a man who has not gone into recovery and certainly has not examined the source of his disease.

[BD]    What is your own particular interest in Cuba and, more specifically in the Cuban Five?

[SL]:    I first went to Cuba in 1960 and, like most people who went to Cuba during that time, I got sort of fascinated and have probably visited it another 75 times since then. I have made five or six films in Cuba for public television or CBS and have many friends there. I have, therefore followed events very closely on the island.

In addition, terrorism came into my own life in 1976 when two of my friends and colleagues were assassinated by a car bomb in Washington DC. The perpetrators of this horrendous crime were the secret police or intelligence service of General Augusto Pinochet and the actual detonators of the bomb were part of the whole anti-Castro team. They were members of the Cuban Nationalist Movement, located at that time in Northern New Jersey. One of them was a man named Guillermo Novo, who is today sitting in prison in Panama for his attempt to assassinate Fidel Castro when Fidel was in Panama, back a few years ago for a Heads of State meeting.

So my interest in terrorism directly, dates back to them and Guillermo was also a man who actually threatened to kill me. So I have a more personal interest as well. I thus understand what anti-Castro terrorism is and I also see as a result of this, the incredible double standards that George W. Bush employs.

[BD]:   Do you see the vehement hatred that some Cuban Americans still have for Fidel Castro as another manifestation of obsessive-compulsive disorder?

[SL]     I think any time they get obsessed with hatred or resentment, it eats at them and they do things that are dangerous both to the public and to themselves. I am not sure whether it is an obsessive-compulsive disorder on the part of those who can see nothing else in their lives, like Luis Posada Carilles or Orlando Bosch, well known terrorists in the anti-Castro community, if the word “community” applies to such people. These people are obsessed and they seem also compelled to follow their obsessions. Whether this is a form of addiction or not, I am not capable of saying. I really don’t know enough.

But I think that there is a small group of people in the exile community who think of nothing else except of trying to kill Fidel Castro. This is “cookie” behavior. It’s also very dangerous behavior and it falls under the definition of terrorism. When you plot to assassinate a foreign leader: that’s terrorism. And it’s specifically forbidden by American law albeit you don’t see a lot of prosecution going on against these people.

Indeed, one of the terrorist who had been convicted-caught in the act of pouring gasoline on a warehouse in Miami-by the anti-terrorist branch of the FBI on May 20th 2002, was seated two rows behind President Bush on the platform when the President was giving his speech in Miami. The man known as Sixto Reynaldo Aquit Manrique or El Chino Aquit, was sitting there with a big grin on his face. There he is convicted of an act of terrorism, caught “in flagrangte”, excuse the pun, and nevertheless sitting on the platform with the president.

I called a former FBI agent I know and asked if it was possible that the secret service wouldn’t have known about the man’s conviction. The FBI agent said “no, that’s not possible”. The FBI very carefully vets everyone that gets close to the president so they knew he was convicted of terrorism. Aquit also fired at a ship of the coast of Cuba so this wasn’t his first act. It became clear that the White House had authorized this terrorist to sit literally within spitting distance of the president of the United States. So much for the war on terrorism.

[BD]:   You say in your article: “Among a small sector of Miami, anti-Castro fixation overwhelms other events and stands out as a glaring exception to Bush’s war on terrorism”. How do you rate Bush’s war on terrorism?

[SL]:    I would rate it the way the war on drugs, the war on poverty, the war on crime, the war on cancer, all these wars are wars that can’t be won and wars that are not really intended to be won. They are wars that are essentially to confuse people and to allow bureaucracies to grow and keep the issue without solution ever present in front of the public.

You can’t wage a war against terrorism. Terrorism is a tactic, nor can you wage war against poverty, poverty is a condition, nor can you wage a war against drugs. Drugs are things people ingest. Wars are waged against hostile nations so when you do this kind of a thing you immediately confuse the issue. The war on terrorism: if you really wanted to fight against the people who are attempting to use these violent and brutal means to get their way with other countries or societies, then you will have to have an international police action. You would have to recruit all of the police agencies and courts of the world into this effort. But Bush turned his back on that. In fact I remember the government of Cuba offered their help in the war against terrorism and bush didn’t even give them an answer.

He has done this with other governments and instead he said: “You are going to do what we say or we are going to kick your butt”. This isn’t the way you go after the terrorists. You can’t bomb massively the caves in Afghanistan and hope to make any headway against terrorists. All you do is to recruit more people for this anti-American jihad that developing in the Muslim world. So rather than fights a war against terrorists, George Bush is helping to recruit terrorists. Whether he is doing this with full knowledge or whether he is going along. This is not a man who-how shall I say- spends a lot of time reading. People say that he does get the Bible read to him. George W. Bush is almost a joke if he were not so dangerous, as president of the United States.

When he says he is going to wage a war against terrorism, I would say to the world’s public “Watch Out”.

[BD]:   In your article, you say that when Bush says to fight the terrorists, he means good terrorists not bad terrorists. How do you explain the difference?

[SL]:    The Cuban Five came to South Florida with the purpose of fighting terrorism. It was terrorism that was aimed at the society of Cuba. People had gone to Cuba to plant bombs in hotels and one of these bombs killed in the mid 1990s an Italian tourist. A man named Lois Posada Carilles, who I mentioned recently, had taken credit for this.

He told reporters and they published this in the New York Times that he had done this and that was too bad that the guy was in the way but that’s what happens when you are in a war. So, Posada Carilles was waging his own private war against the society of Cuba, against the government of Cuba and against the tourist trade of Cuba. Luis posada Carilles had been trained by the CIA. He worked with the CIA. He had been protected by the CIA. He had worked for Oliver North who was a national security official under the Reagan administration-surely people will remember Ronald Reagan.

Anyway Oliver North hired Lois Posada Carilles after another -let me say it straight out- another terrorist in Miami, a man called Jorge Mas Camosa had paid $50,000 in bribes to Venezuelan prison officials to spring Posada Carilles. So that Ollie North hired the man, who is a fugitive from Venezuelan prison. Posada Carilles then worked in the Contra operations under Reagan administration until he could resume his assassination plots against Fidel Castro and other people in Cuba who were using the tourist industry.

Now two other terrorists, Jose Dionysio Suaraz and Virgilio Paz, both of whom confessed to conspiring to assassinate Orlando Letelier and Ronnie Moffat, had served seven years of their twelve years sentences and as they were sprung on parole they were arrested by the INS and were held as undesirables for deportation.

George W. Bush over the strong advice of the FBI and the INS freed these guys. He put two known terrorists back on the streets of South Florida. Here you have the Cuban five, who are working to stop terrorism against Cuba and here you have George W. Bush pardoning people who are working as terrorists and whose life’s goal is to assassinate the Cuban leader and do damage to Cuban society and its economy.

So I don’t know how to add this up. These five guys are victims and it’s too bad that the mainstream press in the United State isn’t picking up their case. They are truly deserving of public support.

[BD]:   Do you think a better world is possible?

[SL]:    Do I think it’s possible or do I feel it’s possible? I don’t know. I feel that a better world is possible. I’m not sure anymore. After living through three plus years of George W. Bush’s presidency, I begin to think that the better world will be after he’s gone.

While he thinks of the better world as the post- Armageddon world in which he and a few chosen people enjoy the Rapture, I think much more concretely.

I work for a better world so I must think that a better world is possible. All my adult life I have been dedicated to the causes of equality and justice and peace. I teach my students and my own children and grandchildren that these are causes worth getting involved in and struggling for.

So, in some way, down deep place inside of my soul, I guess that I do believe that. When one reads the headlines of the newspapers, one can only think of Chris Rock, the comedian who said that George Bush is trying his best just to distract us from focusing on those issues of making a better world: that George Bush killed Raefy Peterson and he put that boy in Michel Jackson’s bed and that young woman in Coby Bryants hotel room just to distract us from dealing with the issues of the world.

Among those attending the trial this week in Panama City are families of victims of previous terrorist acts by the accused, as well as the Venezuelan ambassador to Panama, Claudio Grenado, whose country is interested in the extradition of Luis Posada Carriles to complete serving a prison sentence there. Posada Carriles was convicted of the sabotage deaths of 73 passengers aboard a Cubana airliner in October 1976. He escaped from a Caracas prison in 1985 and was since sought by Venezuelan authorities for nearly 20 years.

After being delayed three times, the trial finally got underway Monday with a reading of statements from the accused, all of whom declared their innocence. In previous rulings, courts found there wasn’t enough evidence to try the defendant for attempted murder, which would carry a maximum sentence of up to 20 years in prison. Also charged in the case are two Panamanians, Cesar Matamoros, and Posada Carriles’ driver, Jose Hurtado. The defendants have denied any involvement in the plot to kill Castro, but Panamanian authorities found explosives hidden outside Panama City and say they have evidence linking the explosives to Posada and the others. The Panamanian federal attorney, Arquimides Saenz and other lawyers presented evidence against the suspects

Tuesday afternoon.

By the second day of the trial in Panama, the Panamanian federal attorney Arquimides Saenz is reported as saying that there shouldn’t be any clemency for Luis Posada Carriles, Gaspar Jimenez Escobedo, Guillermo Novo Sampol, and Pedro Remon, who have been charged with conspiracy, possessing explosives, and endangering the public safety. In Panama, an explosives conviction carries a maximum penalty of 7 years in prison, while the lesser changes carry sentences of 1 to 3 and 2 to 5 years behind bars.

Wednesday

On Wednesday, the judge heard from two of the lawyers presenting the case against the alleged plotters.

Radio Havana Cuba Talking to Jean-Guy Allard in Panama

[BD (RHC)] Jean-Guy, you’re there in Panama, you’re right at the heart of what’s going on at the heart of this trial. Please, can you give me some idea of the atmosphere that’s in the court and outside the court?

[JGA] Well, let me begin by describing something really interesting happening under my eyes at this exact moment. I’m on the parking lot of the court building, which is near the famous Panama Canal Panama–and in the middle of parking lot there is a big tree, and under the big tree, there is José Gonzalez Rodriguez. Do you have an idea of who Jose Gonzalez Rodriguez is?

[BD] No, no. Tell me.

[JGA] Well, let me tell you that this guy lives in the US, a Cuban American, who was arrested in 1971 with arms and explosives, and who finally was never condemned for anything, as is usual in the United States in these types of cases of terrorism against Cuba. He was a leader– still is –of Alpha 66. They’re probably still the most infamous terrorist group from Miami. It is really strange to be at the trial of six terrorists–well, five terrorists and their Panamanian chauffeur–and to see the room half full of Cuban-American terrorists from Miami who came here as a delegation, among them people who have lived all their lives taking part in terrorist activities. It is really more than a little strange.

All the defendants in this trial have extensive criminal records going back at least to the US-run Bay of Pigs, including Posada Carriles, a former CIA operative, who was acquitted in a bombing trial in Venezuela but remained imprisoned until he escaped in 1985. He has acknowledged organizing several Cuban hotel bombings that killed an Italian tourist and injured 11 other people in 1997. Pedro Remon, who is 57, was sentenced to 10 years in federal prison in 1986 in the March 1980 attempted murder of Cuba’s former delegate to the United Nations, and to an attempted bombing of the Cuban United Nations mission in December 1979.

[BD] The trial was expected to last for a week. Why did it finish up after three days?

[JGA] The trial was very short in the end because it is not a trial before a jury. The decision will be taken by one judge alone and that decision is mostly based on the reports made by the state attorney, whose investigation comprises 44 books of reports containing 12000 pages that were placed right in front of the judge here in the courtroom. Until now, the defense has presented almost no arguments to counteract the prosecution arguments in any way. Attorney Arquimides Saenz, who is a young attorney with a brilliant reputation, has been very confident and well-prepared for this case. When he finally gave his final address, it was very impressive to see how organized he was the way he knew his case, I just don’t see Rogelio Cruz, the defense lawyer can in any way break this wall of evidence that Arquimides Saenz has presented.

[BD] So the prosecution put the case on Monday, Tuesday and Wednesday, the, and now it starts with the defense. Is that the way it is now?

[JGA] On the first and second day the procedure here is that if one side or the other want to ask any of the persons who testified for the state attorney to be present in court, they can ask them to be appear for questioning to find out some more details or to confirm what is already is stated in the reports of the attorney. You see, the State Attorney has interrogated tens of people linked with the case. If you are the defense attorney, maybe you might want to question some of the prosecution witnesses to find some holes or something in his declaration, in his statement, that can be in favor of your client.

But the defense attorney only asked a few people to appear and quickly renounced their testimony. This is the reason everything was so quick. So that by the afternoon of the second day everybody from the defense and the general attorney office and also from the lawyers representing popular organizations here in Panama; and the judge decided altogether to request that no more people testify.

Judge Jose Hoo Justiniani is expected to give his verdict within 30 days

This is a report on the oral arguments of the appeal put to the US Court of Appeal of the 11th Circuit by the defense team in the names of Antonio Guerrero, Fernando Hernández, René González, Gerardo Hernández and Ramón Labanino at the James Lawrence King Courthouse in Miami, Wednesday 10th March 2004

Court 12 at the James Lawrence King Justice Center in Miami was packed from early Wednesday morning, 10th of March, with legal people, solidarity observers, local and Cuban press, family members of the five Cuban political prisoners, members of the families of the pilots of the Brothers to the Rescue planes that were shot down by the Cuban government after making 25 incursions into Cuban airspace in the 20 months before the shoot-down, and several FBI agents. Ironically the court is named after the former Chief Judge who presided over the civil case which granted a $140, 0000 compensation claim to the families of Bothers to the Rescue pilots shot down over Cuban territorial waters in 1997 after numerous warnings over many months to stop making illegal incursions into Cuban sovereign territory.

The case of the five was the fourth case of the morning and the one that generated the most interest as observers scrambled for seats. Court 12 holds about 50 people and it works on a first come, first served basis. As the court clerk announced: “When we are full, we’re full”.

After a recess, the court rose at approximately 10.40 am and the three judges entered. The presiding judge, Mr. Justice Oakes took the center seat flanked by Justice Kravith on his right and Justice Birch on his left. The court clerk explained that the court uses a traffic light system to indicate the time limit. She emphasized that when the red light showed, the speaker must stop.

The presiding judge stated that all three judges had read the written briefs and signaled for the hearing to begin.

Joint Defense Agreement

In the presence of all the defense attorneys for the five Cubans, the Assistant Federal Public Defender, from the federal Public Defenders Office for the Southern District of Florida, Richard Klugh, started the proceedings.

The attorneys for the five Cubans have had a joint defense agreement between them since early in the case. In that capacity, even though the Public Defenders Office is technically assigned to represent Fernando González, Richard Klugh has an attorney/client relationship with all the defendants. The attorneys separated out issues relating to venue which Mr. Weinglass had worked on and Joaquin Mendez had also worked on during the trial, so they handled that issue. The time was divided between Richard Klugh who took 60% of the time leaving Leonard Weinglass and Joaquin Mendez with 40% to present the venue and new trial issues which also encompassed the prejudicial events at trial.

Richard Klugh represented everybody else on everything else that could advanced at the oral argument. The most important concept to argue was the issue of count three: conspiracy to commit murder which permeated the trial as well as the prejudice that eventually came to bear with the venue denial.

Count 3: Conspiracy to Commit Murder

Richard Klugh began the argument by listing some of the major issues in the case: the venue issue, the discovery issues relating to the Classified Information Procedures Act, (CIPA), which prevented the defense team from having legitimate access to the evidence used by the prosecution against their clients, issues relating to witness outburst, and prosecutorial over-zealousness and other significant sentencing issues.

Then he went straight into the issue of the sufficiency of the evidence with regard to Count 3, which is the murder conspiracy and explained that the government really was speculatively imputing to Hernández a belief that Cuba would intentionally exceed the limits of its sovereignty, which the record simply does not support. The court did not immediately have any questions for him so he proceeded to make the full argument on that and went over the history of the incursions made over Cuba by Brothers to the Rescue, Cuba’s responses, the United States’ responses, the United States’ understanding of the limits of its sovereignty and the beginnings of Cuba’s sovereignty and the fact that they expressed that to Brothers to the Rescue.

At a certain point it became clear that the court was not going to ask Richard Klugh any questions so the presiding judge suggested that he proceed to other issues.

Count 2: Conspiracy to Commit Espionage

The Assistant Federal Defender proceeded to count 2, first with regard to the sufficiency of the evidence and the conspiracy to commit, what is colloquially called, espionage, although espionage is to obtain and transmit national defense information, which the five Cubans were not doing. He pointed out that in four years of US government wire taps; there was not a single piece of top secret information. He went from there into the related sentencing issue which resulted in life sentences for Antonio Guerrero, Gerardo Hernández and Ramón Labanino, which is the determination at sentencing that not only was it espionage but the purpose of the espionage was the actual transmission of matters that would be reasonably likely to cause exceptionally great damage to the national security of the United States.

Mr. Klugh focused on that both in terms of the argument that because the government had conceded that they had not obtained anything, much less serious information that would be classified, that the guidelines should not apply in this case.  The guidelines should only apply if actual harm occurred or was likely to occur as a result of the transmission of information and as no information was transmitted here, the guidelines should not apply.

The second component of his argument was that assuming if you read the guidelines to apply if no such transmission of information occurred realistically there is just no way you could look at what the Cubans were doing and what they were about was likely to cause exceptionally grave damage to the national security of the United States or really any damage of any kind to the national security of the United States.

He received a couple of questions on that, specifically with respect to the structure of the argument he was making, the sufficiency argument, the guideline argument and the guideline sufficiency argument so there were really three arguments to be made. Then with time running out, the judge gave an additional period of time to address the classified information procedures act (CIPA) issue. Mr. Klugh advised the court that because of the nature of the case, the government was trying to characterize the actions of the defendants in as negative and harmful a light as possible and that it was critical for the defense team to have all the relevant information on what  they had obtained, what they thought they had obtained or what Cuba was interested in, what messages Cuba gave them, what directions Cuba gave them and any other information relevant to the case to really get the full picture of the case at the stage we were at.

He then explained that this issue is not just limited to a question of guilt or innocence but also comes back to that issue whether anything they were doing was really likely to cause exceptionally grave damage to the national security of the United States. Even though the attorneys for the defendants didn’t have the burden of disproving guilt, it would be really difficult for them to disprove that without having all of the relevant material available.

Judges Error to Deny Change of Venue

At that point Mr. Klugh was well over his time and Mr. Weinglass began his argument. The argument Mr. Weinglass made was to go to the source of their complaint with regard to venue, which is that at trial Judge Joan Lenard had made an error in denying a motion for change of venue. There are several levels of argument, one is that she made an error at that time; the other is that she made an error at later times in the course the trial, that she erred in denying a motion for a new trial and then a change of venue arguments.

He went first to the heart of it, which is that she had gone about the matter from the beginning from a stand point that was too stringent, that was very, very difficult for a defendant to meet even in the face of obvious community hostility. He engaged in a legal discussion of the distinctions between the standards of review for district court actions in the pre-trial context or in the standards of appeals and the standards of review that might be applicable after an appeal process had been concluded when somebody is seeking habeas corpus. Direct appeal is a chance to closely look at what the judge did, not simply look for horrendous and grievous errors, just look for errors, look for things that are just not right and he also asserted that a test could be met but she had applied a test that would not applicable to a district court but would be applicable to a reviewing court at a very much later stage in the process.

He explained that the government had later admitted community prejudice in Miami when the voirdire (interview of prospective jurors) had demonstrated not only prejudice and fixed opinions but also fear by prospective jurors of reaching an opinion not consistent with prevailing community attitudes. He analyzed the multiplicity of the problem both in terms of prejudice and in terms of error. He was given additional time to go over that argument and he explained what the position of the defense was, how the defense had tried to be reasonable. They renewed the motion for change of venue many times, particularly during trial when prejudicial events took place, and given the way the case was tried.

At that point they concluded the initial argument and the case was turned over to the federal prosecutor to argue: Caroline Heck Millar.

The Case for the Prosecution

Before she began her argument, the presiding judge directed Caroline Heck Miller, for continuity purposes, to go direct to the venue issue because that had just been addressed, the sufficiency of evidence in count 3 and then whatever else she wanted to talk about. Although she ran out of time, the presiding judge gave her a great deal of additional time. He even said to her that he felt he had given her more time than the defense, giving her every opportunity, but she didn’t address any other issue. She didn’t have argument with any other issue. They were the only two she managed to address.

With respect to venue, her principle point was that because the defense had gone ahead and selected a jury, they had not taken advantage of all peremptory strikes* open to them.  In other words they had accepted a jury and had even expressed their satisfaction with it. But the defense said that some of these people may well be better than others. She said that because the defense took that position, they had waived their argument with regard to change of venue. She tried to cite two instances on the record where she claimed the defense was happy with the jury.

The argument then turned to what some of the judges considered very important: the government had taken the exact opposite position in the Ramirez civil litigation case and she was asked to explain that litigation, her position and why the government had changed its position. She argued that that had more to do with the attorney for the plaintiff in that case who was talking to the press a lot and trying to make prejudice in the press. She also tried to distinguish that case as having more to do with the Elián González matter than the present case saying that the Elián González matter was more divisive than this case.

Some of the judges didn’t appear to agree with that distinction indicating that the prejudice of Elián seems to carry over across a broad spectrum and in fact the Elian events were much closer to this trial than they were to this much later civil litigation that Miami could not be a fair venue.

Approximately ten minutes into her argument, she began a review of the sufficiency of evidence in Count 3. There were a number of questions by the court indicating that a higher standard of proof that had yet been met would be required to attribute to an agent of the Cuban government a belief and an intent that his country in taking sovereign actions exceeds the limits of its sovereignty intentionally. She spent the better part of her argument trying to explain that there were somehow nuances in the record that don’t appear in the transcripts that if you look at them would somehow she could justify that making Gerardo Hernandez responsible for what happened in the issue of downing the aircraft. Judge Kravich then asked Caroline Heck Millar several questions underlining that Gerardo Hernández can’t be guilty of conspiracy to murder without the desire for a criminal act to take place. It is a great and unwarranted leap of inference for the law to make to have that kind of malice and aforethought that really is required for this crime.
She was also asked where was the evidence that Hernández knew that a murderous act would occur. The public prosecutor was clearly under duress to give a satisfactory answer to these questions but she didn’t address the law on it.

Rebuttal Arguments: No New Reasons to Answer Doubts

After about twenty minutes Richard Klugh began his rebuttal argument. The judge asked how they wanted to proceed. To maintain the continuity Mr. Klugh started with count 3.  His argument basically was that the government had not provided any new reasons to answer the doubts that the court had already raised, that they had provided no legal support for their theories and in fact had taken no legal analysis on what the law in the circuit court was required to prove the murder conspiracy. He argued that essentially Caroline Heck Miller was asking the court to make an extraordinary inferential leap from an agent, an attribution from one to the other as in this case.

At some point as he was making that argument, the court interrupted and the chief judge asked if they simply reversed on count 3 how would that affect the situation for Mr. Hernandez. Frequently judges ask what are the sentencing consequences and Mr. Klugh said that the judge would need to go to count 2 and see what would happen to count 2 and hopefully that count would also be reversed for lack of evidence and even if it weren’t you would have to look at the sentencing question again.  He returned again to the government’s failure to at any time, at sentencing or on appeal, to express or make any way intelligible the concept how these men could in any way cause grave national damage. The cliché is used is that it is like a flea on the pimple of the United States.

There is no possibility that anything seriously bad is going to happen as a result. Mr. Klugh then explained the further prejudice during sentencing. He returned to the denial of information with regard to the classified information act. He explained that just as they had their hands tied behind their backs during trial, they had their other hand tied behind their back during sentencing when it became effectively their burden to show that there was no reasonable possibility of harm to the national security so the CIPA issue was doubly prejudicial to them.
At that point he concluded his argument and Joaquin Mendez stood up to give the final rebuttal.

Final rebuttal

Joaquin Mendez proceeded to answer some of the claims made by Ms Miller with regard to the defense’s attitude toward the jury as selected, the reasons for the jury being selected in the way it was, the fact that the defense team renewed the motion for the change of venue nine times. He explained further just how the pressure is in Miami. The reason so many jurors said they didn’t want to serve from fear was that they are pretty violent individuals that respond very stridently to any pro-Cuba reaction. The very fact that one of the witnesses at one point in the trial accused  the defense attorney of being an agent for the Castro government, a charge the jurors would fear if they did not render an anti-Castro view. He elucidated those points the best he could and tried to give it some real flavor of what it was going to be like at trial. That was it.

Legal appeals are taken by defense teams if it seems to them and their clients that a fair trial and sentencing did not take place. Before the oral hearing the defense team submits their written briefs in which they make their argument for a re-trial. If the defendants do not have private lawyer, as in the case of four of the Five Cubans, the Public Defenders Office takes the case using public defense lawyers.

Peremptory strikes

The law allows the defense to strike ten prospective jurors without any reason at all, just because they would prefer other jurors. The defense team used all ten of those. They asked for additional peremptories and asked for more additional peremptoriness. They received the final additional peremptories but didn’t use every single one of them. The government is trying to argue that means the jury is fine and the defense team are trying to argue that that doesn’t make sense. What you are trying to do when you are picking a jury is to try to get the best of the worst. That doesn’t make the best of the worst good. It just makes them the best of the worst.

Philip Agee

But fascism has other elements apart from an economic system in which corporations and governments serve each others needs. Many people think that fascism is a thing of the past but if one examines the ideology behind the word, we find that it is as alive and thriving today as it ever was.

Bernie Dwyer talked to Philip Agee, ex CIA agent, who has lectured on the different aspects of fascism and its re-emergence in Europe and the United States and asked him about the meaning and history of fascism and its manifestation today.

[Philip Agee] I think that fascism is one of those badly used words like democracy.  It can mean practically anything to anybody and it’s dangerous to use those kinds of terms and labels unless you mean something specific.

In terms of historical fascism we all know that this is a political concept of the extreme right. It has its origins in the reaction to the French Revolution and the Enlightenment. We know that in the 19th century various philosophers and thinkers put out tomes of material attacking the achievements of the Enlightenment and their embodiment in the French Revolution and of course in the US constitution and Declaration of Independence, particularly in the first ten amendments to the US Constitution known as the Bill of Rights.

The rights of the individual in a fascist system are always subordinated to the needs of the state. A fascist system is totalitarian and normally has one dominant political party that calls itself any thing it likes and allies itself with the entrepreneurial and certain leaders of the working class. The goal of fascism, in order to control a country, is to co-opt the working class movement in alliance with the entrepreneurial class for the good of the state. Individual civil rights and human rights take a back seat.

The manifestations of fascism really began to appear in the early part of the 19th century and take their form as political movements after World War I, particularly in the early 1920’s when you see fascism developing in Italy and Hungary, Germany and Spain. These fascist movements developed across much of Western Europe—and they were all different—but they had a number of elements in common which were broad national super-patriotic fronts on the political scene led by a sole political party and in some cases a single leader having no peers. They also had an element of racism to them and of racial superiority, this being most evident, I believe, in the German Nationalist Socialist Party led by Hitler, but in practically all these fascist regimes one can find the racial element. Benefits in such a system flow naturally to the party leadership, to the captains of industry and to certain professionals.

In economics fascism is generally laissez-faire, it is a freedom for capital to operate in the form that it wishes, in its natural form of accumulation. And the working class movement, the trade union movement, is subordinated in its purpose and rights to the development of capital. And so, as a legacy of the 19th century development of the trade union movement across Europe and also in the US, one finds that progressive ideas particularly with respect to workers rights and to individual rights are anathema to a fascist regime because, as already mentioned, the individual is totally subordinate to the well-being of the state. That is where the repression of the left comes in. Fascism and the philosophy on which it is based, of racial superiority and nostalgia for things past, is opposed to new and progressive ideas. It needs an enemy opposition, a béte noire, to create contempt and hatred, and these are socialists and communists. Repression of dissenters and the political opposition is severe and exemplary in order to intimidate.

Where fascism more recently is concerned, you see many of these same elements emerging, showing that fascism has never disappeared. I don’t think that you could say that with the end of World War II and the defeat of the Axis powers that fascism disappeared because Fascist Spain continued on until 1975. Fascism in Portugal continued until 1974. Portugal, I believe became a founding member of NATO, if not, very close to the beginning. And this was a fascist country since the 1920’s. Those powers like the United States and Britain that fought against fascism in Europe, particularly against the Nazi movement in Germany, were not opposed to fascism in principle. They were opposed to fascism for other reasons, that is, the US opposed Nazi Germany in order to save Great Britain that was under threat of invasion, and it made the temporary alliance with the Soviet Union as a path of convenience to try to contain Germany in the east, easing the threat to Britain.

So to sum up: fascism has been around for quite a long time. You could trace it back nearly two hundred years to a reaction to the French Revolution and to all things new and progressive. Today one calls the Bush regime in the US, or the Bush junta, better said, a fascist regime, because it has some of the elements of traditional fascism.

[Bernie Dwyer] Fascism has always had a strong following. Can you throw any light on what it is that attracts people to fascism?

[PA] Fascism has at times attracted a great following. Part of the reason is the militaristic aspects of fascism which appeal to people: the uniforms, the marching, the music, and the mass demonstrations for which fascism is so famous. They are excellent at mobilizing large groups for political manifestations in stadiums or in the street. They are also very effective in the use of goon squads: that is, fascism has also had its paramilitary side wherein militants form groups that attack and intimidate their opposition in the streets. This has led to lynching and outright murder.

The appeal of fascism is also the appeal of patriotism. It’s a super patriotism which in a way has its racial content as well. Certainly in the United States and other countries, there has always been a movement based on a belief of racial superiority. This has not died out at all in the US in recent years, despite gains by minority races such as African-Americans, and every now and again a new treatise will come out trying to demonstrate the superiority of the Aryan race over all others. There’s also a strong religious element in U.S. fascism. People will find citations from scripture, from the holy books like the Bible, to support this idea of a chosen race. These things, all taken together, make an appealing set of beliefs and actions for many people who are subjected to the propaganda and the sense of belonging that a fascist movement will give.

[BD]  There many countries that have uniforms, symbols and national anthems, etc. that also engender a sense of patriotism in the people. What is it that separates them from fascism?

[PA]  The difference is in purpose and beneficiaries. We are talking here in part about international relations, the foreign policy of a fascist state. I believe that fascist states tend to be expansionist, seeking the righting of supposed past wrongs, which was the case in Germany when they sought expansion to the east. This justified the move to Czechoslovakia and Poland and on into the Soviet Union.

As fascism is essentially opposed to socialist movements of the working class, as opposed to their allied capitalist class, the German fascist movement felt totally justified moving against socialism as it existed in the Soviet Union. They saw the socialist movement there as a threat, and even though both systems used the word socialist, there was a world of difference between national socialism and the socialism preached and put into practice in a certain way by the Soviet Union. One was nationalist and the other was internationalist. One benefited rulers and owners, and the other benefited the people without distinction, at least in theory. International socialism is based on the international solidarity of the working class. This was the kind of socialism that the Russians adopted from Marx and Engel and Lenin as well. It grew out of the 19th socialist movement, which attempted to show the union of interests and to unite the entire working class in opposition to the entrepreneurial or capitalist class.

[BD] Can you give an example of a fascist state in operation today?

[PA]  Fascism tends to be expansive and militarist and one sees this in the United States today. The doctrines that have come out of the Bush regime are doctrines that would have been unthinkable by sane persons fifteen years ago. They began in 1992 with the leaking of a Pentagon document called Defense Planning Guidance attributed to Paul Wolfowitz, then number three in the Department Defense, now number two behind Rumsfeld. The ideas in that document were then adopted in 1997 in the “Project for the New American Century,” a propaganda operation founded by Wolfowitz, Cheney, Rumsfeld and other conservatives, and they were effectively adopted by the current Bush government in the aftermath of September 11, 2001.

The 1992 document called for a US defense policy for the foreseeable future based on unilateral action around the world and on the determination never to be challenged again by another power, regionally as well as globally, as the U.S. was challenged for so many years by the Soviet Union. This included China, India, Russia and any NATO power like Germany, and NATO as an organization or any other regional organization or powers. And it was spelled out quite clearly. The document was not published. It was leaked. I think it was leaked in part and not as an entire treatise. In any case this is the doctrine that the Bush administration is putting into practice as we speak, and it includes some things that are certainly hard to believe. One is the concept of preventive war based on unilateral U.S. decisions. This was a part of the doctrine long before the attacks on September 11 that simply provided the pretext on which to inaugurate this new self-proclaimed power.

The first item on the agenda after the attacks was the passage of the Patriot Act. This
law was passed by Congress in such a hurry that almost none of the people who voted for it even had time to read it. But it was approved very quickly and made a mockery of the first ten amendments of the Constitution. It took away all sorts of civil liberties, and until mid-2003 there has not been, as far as I know, a test case in the courts to challenge the constitutionality of this law. Now there is a challenge, but it will take many months to make its way through the courts.

The Bush regime not only imposed the Patriot Act, but an even more repressive Patriot II has been written. It was clear from the first one that it had been written long before the 9/11 terrorist attacks because it is a 131-page document that went to Congress within days. It could never have been written in such a short period of time after the attacks but was prepared beforehand. The terrorist attacks were not only horrible in themselves and what they caused in terms of damage and human suffering to the victims, but they opened the door to the introduction of a fast track toward fascism in the United States itself because of its infringements on civil rights. In this I include the super patriotism and the treatment that dissenters have received since the attacks. This has been abominable. It has been a disgrace to the United States when you read about teachers in grammar and secondary schools or university professors who have tried to show the reasons behind those attacks and why people may hate the United States because of its Middle Eastern policy, especially regarding Israel and the Palestinians. These people have tried to explain that policy as the possible root of these attacks, and they have been treated as traitors. They lose their jobs. This has happened more than once since then.

It’s not paranoia on the part of progressive people in the U.S. to feel threatened and intimidated as they now do. The cause for fear is really there, and the government has such expanded powers now, they can practically do anything to you if they can just label you as a supporter of terrorism. I don’t think that they even have to prove it. They don’t even have to prove that you are an enemy combatant. You are just labeled that, and you have no legal appeal. Then you lose all your rights: your citizenship can even be taken away and you can be deported from your own country under Patriot II. This is what it has come to in the United States. So you have the element of super patriotism and the repression of dissenters. You have an expansionist militaristic foreign policy in the doctrine of preemptive wars and the never-ending war on terrorism in any corner of the world. And you have an enormous financial-military-industrial sector allied with the regime and making handsome profits.

One also has the effect on the Bill of Rights, which before guaranteed Americans the integrity of their person before the government. That too has taken a big blow. Racism is also a part of this process through selective repression of people with Arab names and appearance. Racism is perhaps the worst scourge that the US has ever suffered in its history, and now it’s getting worse. It has been manifested in different ways all through the life of the country even before the US independence. Racism was always there and certainly with this Bush junta there is a racial superiority coupled with extreme nationalism that is also one of those concepts that fall into the definition and the practice of fascism. The arrests and secret captivity of hundreds of people in the U.S. after 9/11, together with the criminal, inhuman treatment of the Taliban and other prisoners at the Guantanamo base in Cuba, reflect the unrestrained state power of a fascist regime.

[BD] I’m sure the ordinary person in the United State does not view their government as fascist and if they did, do you think they would accept a fascist government?

[PA]  No, I don’t think many people in the United States see the US government as fascist. I think that a huge majority don’t even know what the word fascist means. They may think of ‘Fascist Pig’ meaning a put down of a police officer attacking a crowd or something like that, but in actual fact a meaning of the word fascism or where the word comes from is not part of the historical memory of many Americans. There is a problem of political education, but what is most important is not really to understand that this is a fascist regime but to understand what a fascist regime is, that is, what the erosion of civil liberties means to the individuals and what it means to the opinion of the United States in other countries when a president lies to the people in order to justify a war, and hundreds of Americans are killed and wounded in a war that was fought on false pretences, and approval for the war was obtained from Congress based on lies. Nobody can deny that now.

Although we are now in July of 2003, the question is not going to go away. The Democratic Party has been pretty timid in picking up on this but are finally doing so, focusing on the various elements of the false pretences, such as the supposed purchase of uranium in Africa by Iraq which was a complete falsehood. They are picking up all these various elements. I hope they are going to hold Bush’s feet to the fire in the coming elections. But they too are subject to being labeled as traitors and anti-patriotic because in a country like the United States, there is a tremendous amount of nationalism, a tremendous amount of love-of-country that can be manipulated. This can reach extremes. It’s a complex situation, a complicated country, but in the end a lot of Americans will be drawn to support this government because they believe America has to be right without judgment and that God is on our side: these too are fascist concepts.

But if you ask someone who supports the Bush government if they think it’s a fascist government, most will probably say “no,” these are our rights, we are just exercising our right to defend ourselves from international terrorism. And while some 50 years of outrages around the world were justified under the cause of anti-communism, now we are facing an endless series of outrages under the cause of anti-terrorism. There will always be an excuse to exercise power around the world justified by the enemies of the day. I think that mainly this comes from the domestic system within the United States. I could be wrong on this, but I think a country’s foreign policy is a product of its domestic system.

We have a domestic system within the United States that is exclusive. It’s exceedingly unjust. It’s riddled with racism that you can find in the prison system, the penal system and the justice system. You can find it in the schools and the work place and anywhere you look, you will find this very heavy quotient of racism, directed mostly by whites against non-whites, although there are many exceptions.

Because of the social and economic injustices in the United States, and the corruption within the political system, the system is fundamentally unstable. The foreign policy that comes from it is designed to preserve the domestic system as are the body of laws governing the country, which comes out of this instability in the domestic system. It means that in order to maintain the system within the US, the US has to have access to the primary products and to the labor and markets of countries outside the United States. The US, since the frontier closed in the 1880s, has not been able to survive as an autarchy, and it has depended on foreign trade ever since.

That need is as great today as ever, probably greater than it ever has been. So without access to those primary products and raw materials that the country lacks, without access to the cheap labor of foreign countries to produce those materials and finished products at a very low cost, and without access to the markets of those countries for disposing of surplus production within the US, the system within the United States collapses. That is why the foreign policy of the US is designed to preserve the exploitation of other peoples and other countries, in my opinion.

If a fascist regime is required within the US to do that, then it will be a fascist regime because there is a political class within the US that makes the decisions, and this is not a lot of people, a very small proportion of the entire population. This is a political class that is very aware of the internal threat in the US, the internal threat of collapse and the different ways that it could happen, and they design the foreign and domestic policy in order to avoid that collapse. And they are always with their finger in the dyke trying to prop up the system one way or another. This latest Bush foreign policy of, among other measures, preventive wars, is simply another way to assure stability or to put off the collapse of the system at home.

[BD]  It appears, from what you are saying that the economic success of the United States relies on their interference in the internal affairs of other countries. How does that relate to Washington’s attitude towards Cuba?

[PA]  US policy towards Cuba is a very good example of how the United States cannot accept a country that declares real independence, which decides to regulate for itself the activities of foreign countries in its territory. Here I am talking about the fact that from the earliest days of the revolution, from January 1st 1959, there was US interference.

At a National Security meeting in March 1959 President Eisenhower and his top advisers discussed how to replace the government in Cuba, what now is known as regime change. This policy was established in 1959, and it has been the same ever since. They tried with the invasion of the Bay of Pigs, with diplomatic and commercial isolation, with terrorism and sabotage, and with attempts to assassinate the leadership. Since the 1990’s they have given special emphasis to the development of a political opposition disguised as civil society, that is, NGOs in such areas as human rights, libraries, journalists, lawyers or medicine, everything that money can buy to create a political opposition in Cuba.

Now after twenty years they haven’t gotten very far. I know how those projects work, and I’ve written about it with the details on how every one of the people involved with the so-called dissident movement are part of written US government projects with money and with the designation of who gets the money and how. And they have set up a whole series of NGOs mostly based in Miami that receive many millions of dollars from US government to create counterpart groups in Cuba in order to turn back the clock.

Why? Look at what the Cubans have achieved. They have achieved what even developed countries have failed to achieve. They have free education through to doctoral level. They have developed world class scientific and research institutes and laboratories, a world class pharmaceutical industry. For a country with a population of 11 million people, they are the leading sports power in the world, when you weight for the size of the population. They also have universal medical care, which practically no other country has and at a very high level. They have two or three thousand volunteer doctors around the world at any one time in their foreign aid program, and these are doctors and nurses that go out to the most remote areas, where I certainly could not live very long, working in the most primitive of conditions. They are serving the ideals of the Cuban revolution. It is an amazing program, and I could go on and on about this. But why then should the United States want to destroy this project?

The reason is that it is a bad example because they have been able to do these things under the most adverse conditions. They forgot their proper place and got uppity. They had a subsidy from the Soviet Union and that helped them, but they didn’t collapse when that disappeared, and they have taken steps forward ever since. This is a very dynamic and pragmatic situation where if one solution doesn’t work, they drop it and they try something else. This revolution is not going to collapse by any means with the passing of Fidel Castro, as so many of Cuba’s enemies hope. It’s going to go on because it is institutionalized. It will never be accepted by the United States government until they can accept something that is different, a Cuba that rejects tutelage is not dependent economically on the US.

Cuba has set an example, to the rest of Latin America at the least, and they have been in the foreground of the opposition to the free trade zone of the Americas which is fundamental to US policy for dominating these countries, what I mentioned earlier about the markets and the labor, primary products and raw material. That is the way the US hopes to penetrate, and then come to dominate, the countries of Latin America and thereby prop up the system in the United States.

Well, Cuba has been opposed to this from the very beginning, and now you have Chavez in Venezuela, a much more important country to the United States than Cuba, and Brazil and even Argentina showing signs of opposing the Free Trade Area of the Americas. Chavez is not only opposing the free trade area dominated by the United States, he is calling for the union of the Latin American and Caribbean economies which together could negotiate much better deals with the European, US and Canadian trading blocks.

The Cuban example has been a thorn in the side of the US for forty-five years now, and it’s going to continue to be as long as the Cubans are adamant about retaining their independence. The US may adopt all kinds of fascist programs, but they will continue to find little satisfaction in their programs to turn back the clock here.