The Cuban Five


Leonard Weinglass, well-known civil rights lawyer representing Antonio Guerrero, one of the five Cuban political prisoners incarcerated in the United States, told Bernie Dwyer, Radio Havana Cuba, in a telephone interview from his office in New York, Friday 23rd that the defense team are feeling very optimistic about the outcome of the oral arguments hearing due to be held in Miami on March 10th. But he pointed out that, of course, the question remains, as it has from the very beginning in this case, whether or not the climate that exists will allow the facts and the law to prevail.

[Bernie Dwyer (BD)]: We are getting very close to the 10th of March, the date set in Miami by the 11th Circuit Court of Appeals in Atlanta for the oral arguments in the case of the five Cuban men imprisoned in the US. Can you up-date us on the work you and the other members of the legal team have been doing?

[Leonard Weinglass (LW)]: All five lawyers on the case are working very hard on the preparation of the argument. We have just, within the last two days, received notice from the court that our case is one of four cases scheduled to be heard on March 10th and, in fact, we are the last case to be heard on that day. This is a relatively good indication because, as we are the last case, it opens the possibility that we will be heard for more than fifteen minutes.

There is, of course, no guarantee or assurance but the possibility is now there. In addition we will be filing, within two or three days, a formal motion to the court asking them to grant us additional time because of the length of the trial and the size of the trial record.
Hopefully we will be given more than three minutes for each lawyer or a total of fifteen minutes, but it remains to be seen.

[BD]: You will have fifteen minutes to put your oral arguments. Does the US government have an equal amount of time to present theirs?

[LW]: The government gets equal time so the government will have fifteen minutes and we will have fifteen minutes. If the court expands our time to one hour or a half hour, it will most likely expand the time for the government as well.

[BD] From your previous court experience, will you get any indication during the hearing or immediately afterwards of the judges reaction to the oral arguments?

[LW] The court will reserve its decision and we will receive a formal written decision probably anywhere from two to four months after the argument. However, during the argument, you can get some indication of, at least, what the court’s thinking is, by virtue of the questions they ask.

It’s not always possible from those questions to know precisely which way the court will rule; however you will know what the troubling questions are, if any, on the court’s mind.

[BD] Would you mind going over the main points of the appeal to refresh our memories?

[LW] There are many. Firstly, we’re going to argue that the evidence on count 3 against Gerardo Hernández was insufficient as a matter of law to convict him of conspiracy to commit murder.

Secondly, we will be arguing that the evidence on count 2, which is a charge of conspiracy to commit espionage, was insufficient against my client, Antonio Guerrero and the other two who were charged with him.

Thirdly, we will be arguing that the venue should not have been held in Miami. This is a very powerful argument because Miami was the worst possible jurisdiction to hear this case. Then we will also be arguing that the sentences were excessive and illegal under American law. I just have to point out that although there was not a single page of classified information involved in this case, my client Antonio Guerrero is serving the same life sentence as some of the most notorious spies in American history who gave hundreds, if not thousands of pages of classified information to the Soviet Union. So we will be pointing out the excessive nature of the sentence.

There are then a number of trial issues. The prosecutor committed acts of misconduct, that’s one issue; secondly, the defense was impeded in its ability to make a defense because the government wrongfully withheld documents, claiming they were secret, which the defense was entitled to. Thirdly, the government violated its own rules when it broke into the apartments of Gerardo Hernández and others and secretly down-loaded their computers, all in violation of US law.

In addition we will be arguing that the defense of necessity was wrongfully taken away from the defendants.
Under US law, someone is entitled, even encouraged, to break the law, if breaking the law will reduce the possibility of violence or physical damage. In this case, evidence was introduced which very clearly showed that the Five were attempting to reduce the violence and the physical damage done to Cuba by the terrorist network in Southern Florida. Therefore they were entitled to not register as foreign agents; they were entitled to carry documents that hid their identity.
These are minor infractions and the law allows a minor infraction if you attempting to prevent a major wrong.

That was precisely the issue in this case; the judge would not permit the defense lawyers to argue that to the jury. This was a wrong and we are going to argue this very strenuously.

So there are a number of issues in this case, all of which require a great deal of time and it is almost impossible to accomplish any form of justice during these oral arguments if we are not given more than three minutes each to argue our case.

[BD] One of the central points in the appeal is that Miami was the worst possible venue to hold the trial of the five Cuban political prisoners. Now the oral arguments will be held in Miami on March 10th. Will that prejudice the case?

[LW] We hope not. The judges, of course, are from the 11th Circuit which means that most of the judges, and we don’t know which three we will have, do not come from Miami. A few do but hopefully, we will not have Miami judges. We might even have a judge outside of the 11th circuit; we don’t know yet who our judges will be.

But, in the ordinary course, criminal cases out of Miami that are appealed to the 11th Circuit in Atlanta are heard on appeal in Miami. We thought that this case would be an exception because we are arguing the prejudice of that jurisdiction. Unfortunately, the 11th circuit decided that it would hold the hearing in Miami just the same.

I wouldn’t say that this, in and of itself, prejudices us but I will say that it does indicate a lack of sensitivity on the part of the court to our argument against the Miami jurisdiction.

[BD]: Do you and the other members of the legal team share an optimistic outlook regarding the result of the oral argument hearing in Miami?

[LW]: Frankly, we had a long discussion by conference telephone call Thursday. We have all now read all of our papers, approximately seven hundred pages of written argument and we have read the prosecutors response, approximately one hundred pages and we are all of the opinion that on the basis of the written arguments that we have read, our case is very, very strong against the government.

And there is even some feeling that we should almost rely upon the strength of our written arguments versus the government’s written arguments.

So we are feeling very optimistic about the state of the facts of the case and the state of the law. Of course, the question remains, as it has from the very beginning in this case, whether or not the climate that exists will allow the facts and the law to prevail. Hopefully it will but we feel very strong about the strength of the case.

[BD]: Your client, Antonio Guerrero, was moved from his prison in Colorado to another prison in Springfield, Illinois during the week that his mother was visiting him. She was not told anything until she went to make her final visit before returning to Cuba. Can you comment on that?

[LW]: Antonio was moved, unfortunately without prior notice while his mother was in Colorado visiting him from Cuba. He was taken to Springfield which is a medical center for all federal prisoners who require medical attention. I believe he is undergoing minor surgery there as well as a physical check-up. He will be kept there for a period of time, longer than he would like, but they usually keep people there for at least several months even though he could probable be safely returned within a matter of weeks.

So far as I know he is still in Springfield in Illinois.
He and I have spoken twice by phone. He is O.K. there and he is still held there. The only complaint I would have is that when he got to Springfield, they again put him in the “Hole” (punishment cell) even though he was traveling for medical attention and it was while he was in the “Hole” that he was consulted by his surgeon for the medical procedure that they intend to do.

I felt that was a terribly inhumane thing to do to Antonio. But, nonetheless, that’s what they did with him for his first five days. He is now out of the “Hole” and hopefully he is receiving the medical attention he requires.

[BD]: Was any reason given why he was put in there having arrived at the prison for medical attention?

[LW]: No, they don’t give a reason When I questioned Antonio about that, he said that that is their normal procedure, which is quite remarkable given the fact that it is a medical center and people who are brought there, and he was flown there, are frequently brought there for emergency medical treatment; this is hardly the way you would expect a medical center to treat people who arrive for medical care and attention.

[BD]: Olga Salanueva and Adriana Pérez, married to René González and Gerardo Hernández respectively, have recently been refused visas again to travel to the US to visit their husbands in prison. This time the US immigration authorities said they cannot apply for visas on humanitarian grounds as they constitute a threat to the security of the United States. Surely these grounds are exaggerated?

[LW]: Of course, there is absolutely no credible evidence that either Olga or Adriana or Olga’s children are a threat to the United States. It is completely inconceivable that they could make a credible claim in that direction.

Secondly the issue of the rights of families to visit federal prisoners was addressed just within the last year by the United States Supreme Court and, in a remarkable ruling; the Supreme Court held quite unequivocally that if the United States Constitution protects any interest, it protects the interest of maintaining the family.

And in that case they held that an agency of the government could not break up a family by preventing the inmate who is in custody from maintaining a relationship with his spouse and his children. I feel that the Constitution of the United States overrides all of the other statutes including the immigration statutes.

So, it as a clear and fundamental violation of the United States Constitution to prevent this family, in Olga and Adriana’s case, from maintaining its unity.

Furthermore, when we looked up the regulations of the Federal Bureau of Prisons, their regulations require that families be allowed to visit, for the simple reason, that the prisons have found through experience that when an inmate is visited regularly by his or her family, that inmate becomes a better inmate, less of a problem, less angry, less hostile and better for the institution. So, its even in the interest of the Federal Prison, as written in the regulation, that inmates are not only allowed but encouraged to see their spouses and their children because experience has shown it makes them a better prisoner.

So the US Constitution and prison regulation clearly favor Olga and Adriana being allowed to visit. In addition to that, the government of the United States has received a letter of protest from Amnesty International indicating that international law requires that an inmate be allowed to see his family members.
This is very clearly a requirement of humane international law. So, on both the international and the constitutional level they should be allowed to visit as well as under the regulations of the Federal Bureau of Prisons.

[BD] The US authorities seem to be fairly entrenched in their attitude and continue to refuse to give then visas. Is there anything that you think can be done about this?

[LW] We are living in a very special time. We are living in a time when the government is refusing to allow people who are being held in Guantánamo as so-called ‘combatants’ the right to see lawyers. Even people held in the United States are being denied the right to see lawyers. These are the most fundamental rights, and yet we find that since 9-11 that these rights are not being granted.

So in a certain sense, in a very terrible sense, it’s not surprising that even the fundamental right of the family is being denied in the case of Olga and Adriana, because this is the new America.

This is the America that legal scholars, Deans of Law Schools, even judges, are now crying out against, that we are losing the basic rights that all people have had for two hundred years and just in the last two years we have been losing them.

And so, it is the arrogance of standing against international law, and even US constitutional law, by this administration, it’s unfortunately not surprising, but it is part of the pattern and practice that we have been enduring in the United States recently.

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