The last of the Cuban 5: why Cuba and the U.S. can’t make peace

Fernando Gonzalez

Fernando Gonzalez, Cuban intelligence officer goes free on Feb. 27.

A man named Fernando Gonzalez is scheduled to walk out of an Arizona prison on Thursday, and the Cuban Five, a group of Cuban intelligence officers convicted of espionage in 2001, will be down to three, since another defendant, Rene Gonzalez was released in 2011.

The Cuban 5 have been lionized by the government in Havana and demonized by the media in Miami. Their ordeal embodies the tortured relationship that has governed U.S.-Cuba relations since the presidency of John F. Kennedy.

(See “From July 26 to November 22 to today,” JFK Facts, February 9, 2014)

Of the remaining Cuban 5 prisoners, Antonio Guerrero, is scheduled to be released on September 18, 2017, and Ramón Labañino on October 30, 2024.

Gerardo Hernandez

Gerardo Hernandez will remain in U.S. prison indefinitely.

But the last of the Cuban 5, Gerardo Hernandez, has no release date. He is serving two life sentences, one for espionage conspiracy, which seems excessive, and one for conspiracy to commit murder, which was simply wrong.

While the release of Gonzalez removes one small irritant in U.S.-Cuba relations, the indefinite incarceration of Hernandez shows that the political dispute between Washington and Havana has gone beyond truth and justice down to nonsense.

The making of the Cuban 5

On February 24, 1996, three Cessna aircraft of the Miami-based organization Brothers to the Rescue (BTTR) were intercepted by Castro’s military jets. While flying away in international airspace near Cuba, two Cessnas were shot down with rockets and four people died. The third Cessna escaped.

The Cuban government had no tolerance for BTTR’s aerial adventurism because the group’s leader and founder, Jose Basulto, was the gunman in an attempt by the CIA-funded Cuban Student Directorate to assassinate Castro at a seaside Havana hotel in August 1962. They regarded any unauthorized incursion of BTTR planes in Cuban airspace as an imminent danger and had repeatedly warned U.S. officials to rein in the group.

CIA-funded group attempted to assassinate Castro in August 1962.

In Washington, where Basulto’s past as a terrorist was unknown, Brothers to the Rescue was seen as a band of martyrs.  The U.S. Congress passed a law deeming the Feb. 1996 shootdown “tantamount to cold-blooded murder” and urging President Clinton “to seek, in the International Court of Justice, indictment for this act of terrorism by Fidel Castro.”

That never happened because the facts of the shootdown did not support the charge.

In 2001, five Cubans who spied on BTTR on behalf of the Cuban intelligence service were indicted in Miami on a prima face case of espionage.

Gerardo Hernandez, the ringleader of the group known by the code name GIRO, was additionally charged of conspiracy to commit the “unlawful killing of a human being with malice aforethought” (18 U.S.C. §§ 1111, 1117).

The charge was that Hernandez had aided and abetted the shootdown by conveying massages to specify when the other Cuban agents (who had infiltrated BTTR) were flying with the group and to warn them not to fly unscheduled.

By doing so, he singled out other BTTR members for attack, or so the government’s theory held.

The conspiracy that wasn’t

Criminal conspiracy, in its essence, is an agreement to achieve an intended objective, not the result.

Jose Basulto, leader of Brothers to the Rescue.

Hernandez was tried for what he purportedly agreed to do, regardless of whether a crime “tantamount to cold-blooded murder” ultimately occurred. Even if he would have intended to aid and abet in a plan to destroy the BTTR Cessnas, but in an erroneous belief — and Hernandez did believe it — that Cuba was lawfully acting, his agreement to commit such justified killing would have not constituted the offense.

Indeed, Hernandez was a non-decision maker intelligence officer who played a messenger role by warning other agents. He neither caused the BTTR flights nor encouraged them.

His foreknowledge of the possibility of a Cuban attack was in the public domain: Castro’s government had repeatedly said the Cuban Air Force might attempt to shoot down the BTTR aircraft if they kept on violating Cuban airspace.

Hernandez would have never believed that Castro would take action against BTTR in an illegal manner, because Cuba would have been then exposed to a crushing U.S. retaliation. Furthermore, nobody could have ever agreed to what really happened in the skies off Cuba on Feb. 24, 1996. It was a tragic border incident.

Both the ICAO investigation and the U.S. radars revealed that the two downed Cessnas would have imminently entered Cuban airspace heading toward Havana and away from their planned flight path. They were following the other Cessna, which had already entered Cuban airspace. At 540 mph, two Cuban jets intercepted them, first with a warning pass and then with missile fire.

The pilots of the Cuban jets either exceeded the limits or miscalculated by less than a minute the invisible line of the national border. That’s why the U.S. government did not seek an indictment against Castro in the International Court of Justice. That’s why also the inference that Hernandez had foreknowledge of a plan to commit an “unlawful killing” — in international airspace — is false.

A flawed defense strategy

But when Hernandez came to trial, his attorney’s defense actually bolstered the prosecution’s case by heightening the political theater of the shootdown.

His counsel Paul McKenna argued, in essence, that Cuba was right about everything leading to the shootdown and that the victims from Brother to the Rescue themselves had it coming to them. Instead of defending Hernandez against the charge of conspiracy, McKenna defended Castro against the charge of  murder.

The result was that three quarters of the Cuban Five’s trial was devoted to where the shootdown had taken place, although it was irrelevant to the charge of conspiracy. Since his 29 February 2001motion to dismiss it, McKenna pinned his defense upon the thesis that the shootdown occurred in Cuban airspace and linked GIRO’S fate to proving that the actions of others were lawful.

It was in itself quixotic. McKenna set out to convince the jurors that they should believe that the Cuban radar data — based on onion skin drawings — were more accurate than those electronically recorded by the U.S. radar.

The coup de grace to Hernandez’s defense came when McKenna’s sole expert witness, US Air Force Col. David Buchner, couldn’t explain why the coordinates he had received from the Cuban government for the trial were noticeably different from those provided by the own Cuban government to ICAO in 1996.

On June 8, 2001, Hernandez was convicted by a jury that — quite remarkably — was never told by anyone that he must have intended the killing in order to have committed the offense.

He remains imprisoned in a federal prison in California.

Fernando Gonzalez will presumably return to Cuba where he can expect the government to give him a hero’s return.

But the dispute between the U.S. and Cuban governments, now in its sixth decade, won’t reach a satisfactory resolution if the persistent pursuit of narrow political goals obfuscates relevant issues, hinders justice, and inflames passions in disregard of common sense.

 

7 comments

  1. Melvin Fromme says:

    Fascinating story. With one of the Cuban 5 about to be released I can envision Paul McKenna packing his bags.

  2. Jonathan says:

    Jeff, it appears from our post Gerardo Hernandez’s conviction was not appealed. If it wasn’t, a screaming question is, why not?

    A primary ground for appeal in a criminal case is error in instructions the judge gives to the jury. From what you write, it appears the trial judge made errors as to the law of conspiracy and as to jury instructions.

    What you describe doesn’t amaze me, but it should outrage all readers here.

    • ARNALDO MIGUEL FERNANDEZ says:

      The story went on with a successful appeal before a three-judge panel, but the Court of Appeals rejected it in plenary session. Althoug Judge Phillys Kravitch wrote a well-reasoned 15-pages dissenting opinion, the Supreme Court abstained from reviewing the case. It seems that the charge of conspiracy to commit murder prevailed because the defense´s claim of lack of U.S. jurisdiction on the shootdown was considered strategic choice not subjected to review in the adversary process.

  3. Mayra Solloa says:

    Just today, the Miami Herald reported that a lawsuit demanding to submit evidence of murder against Fidel and Raúl Castro to a grand jury was rejected by federal Judge Donald H. Graham. The petitioner is Melson Morales, brother of Pablo Morales, one of the four people killed in the shootdown. Murder charges are filed against Brigadier General Ruben Martinez Puente, who commanded Cuba’s air forces in 1996, and the MiG´s pilots Lorenzo Alberto and Francisco Pérez. But there is no indictment against the Castro brothers.

    A notice of appeal has been filed to the 11th Circuit Court in Atlanta. Former U.S. Attorney Kendall B. Coffey and Brothers to the Rescue leader Jose Basulto had presented much of the evidence in 2008, but Judge Graham ruled Morales himself must present the evidence. Fidel Castro personally approved the shootdown and his spy service codenamed the mission “Operation Scorpion.”

  4. Jonathan says:

    Criminal law: If Party A performs act X believing act X is lawful, and it turns out act X is a crime, has Party A committed a crime?

    ANSWER: It depends on the ELEMENTS of the crime. If the crime does not require a specific intent (e.g., statutory rape) and is an absolute liability crime, yes, Party A has committed a crime. Contra if the crime requires a specific intent (e.g., signing a false tax return not knowing it is false).

    CONSPIRACY is a different critter in the criminal law. The only TWO ELEMENTS of conspiracy are (a) an agreement to commit a crime by two or more persons, and (b) an act in furtherance of the agreement b one of the parties. Conspiracy law doesn’t have a SPECIFIC INTENT requirement. That’s how Hernandez got nailed.

    This is technical criminal law stuff. It’s pretty clear to me that although the trial judge applied the correct law, Hernandez’z defense attorney made some poor judgments in how to argue Hernandez’s defense. But I’m a distant bystander.

    • Arnaldo M. Fernandez says:

      Thanks, Johnathan.
      The defense played right into the prosecutor´s hands. The U.S. was not obliged to prove that there was a plan to shoot down the BTTR planes in unlawful manner and that Hernandez knew of the unlawfulness of the plan.
      The defense’s strategy led directly to simplify the case thusly: if the Cuban MiGs pilots shot down the planes as justified last resort against military incursion, then Hernandez shouldn’t be convicted.
      It was an insult to the common sense the rewriting of the shootdown history by the defense. I think the key should have been to prove that there wasn’t any agreement with unlawful objectives.

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