MARY MURRAY

September 2

Top official insists 5 agents wrongly convicted in U.S.

NBC News

 Ricardo Alarcon, president of Cuba’s National Assembly, discusses the ongoing legal dispute over the so-called “Cuban Five” – five Cubans convicted in the U.S. in 2001 for serving as unregistered agents of a foreign country. 

Alarcon, Castro’s main advisor on U.S. affairs — he was heavily involved in the Elian Gonzales custody struggle — and his main liaison with international media, talks with NBC News’ Mary Murray about the ongoing legal battle between the U.S. and Cuba.

 Mary Murray: Mr. President, now that the Atlanta Appeals Court has ruled that the Five received a fair trial in Miami, is your battle over?

 Ricardo Alarcon: No, certainly not. The court only reviewed one issue. At the time of the trial, the defendants had requested a change of venue which had been denied by the original trial judge. Last year, a three-judge panel (on the Atlanta Appeals Court) studied the case and determined that the defendants were right to request a change of venue.

 Now, this new ruling nullifies that decision and affirms the Miami court’s original decision. From the strictly judiciary dimension, there are two possibilities open to us at this moment.

 We could ask the Supreme Court to review this latest decision concerning the venue issue or we can wait until the three-member panel of the Atlanta Court considers the other nine issues on appeal. They include lack of evidence for the substantive charges against the defendants, improper use of the Classified Information Protection Act, and denial of access to their defense lawyers.

 So, they are still appealing their convictions on certain substantive accusations. The [11th Circuit Appeal Court] panel solely concentrated on the venue issue.

 The thinking went along these lines: if you recognize that the venue was improper, the rest of the case falls down. You would have to begin anew. But since the full court did not agree with the panel and instead ruled that the venue was proper, we have decided to go ahead and ask the Court to consider the rest of the issues on appeal. A long, long process still lies ahead.

 How optimistic are you that the U.S. Appeals Court might rule in your favor?

 This last ruling was a divided decision. It’s very interesting to compare the majority and minority decisions. One side states that the trial process was fair and even goes as far as to qualify it as a model.

 The dissenting decision points out that the trial judge, on several occasions, protested the anti-Cuba disturbances in the courtroom and requested that the government remove the protestors. The entire legal process was, without a doubt, constantly subjected to pressures by certain groups in that community.

 How can anyone claim that it was possible to empanel an objective, impartial jury in Miami when even the judge herself complained about improper behavior? At one point, she even had to ask the police to protect the jurors from demonstrators surrounding the building.

While the majority appeals decision found that the media was unimportant, the two dissenting judges cited the opposite — quoting the trial judge about the interminable parade of media coverage.

 Eventually, we may have to consider whether or not to go all the way to the Supreme Court. Even the two dissenting judges in their opinion suggest that this is a case that deserves a Supreme Court determination.

 Would the Cuban government ever give up their demand for these five men to return home?

 No – and for one simple reason. They never should have been arrested to begin with.

 We maintain that these men were working against terrorism. Since the beginning, this was clearly a political case. We are not discussing a technicality about the jurors or about the procedures in a court in Scandinavia. No, we are talking about what happened in Miami, in Dade County—the same city where well-known terrorists can even go on local TV and explain their exploits.

 According to the Miami Herald, the Anti-Terrorist Task Force in southern Florida visited a guy by the name of Jose Antonio Llama — a former leader of the Cuban American National Foundation, to ask him about remarks he made to the local press about $1.5 million he gave to the Cuban-American National Foundation to buy explosives, a helicopter, speedboats and 10 light radio-controlled planes. He told the press that the plan had been to attack Revolution Square during a public gathering. No attack had taken place, so the guy wanted his money back … By the way, this Mr. Llama gave that astonishing interview on the same day that half a dozen African-Americans and some Haitians were arrested in Miami because they presumably had intentions of attacking the Sears Towers. But they didn’t have weapons or money or specific plans.

 But Mr. Llama can go on Miami TV, show his cancelled checks, openly talk about bombs and nothing happens. By the way, these terrorist plans were brought up during the trial of the Five. They had been trying to locate those planes, weapons and explosives.

So, to deny that there are Miami terrorist plots against Cuba is simply to ignore reality. Even the U.S. government has admitted that, under certain circumstances, you need to violate the rules in order to save lives.  

It’s true that the Five didn’t register with the Justice Department as Cuban agents. They violated U.S. regulations. But, they have already served eight years — more than the maximum penalty breaking that law. Some of the Five used false names and documents. That, too, is a violation [of U.S. law]. But they violated certain rules in order to expose terrorist plans and save lives.

 So you maintain that they were never Cuban spies working against the U.S. government? They were working to uncover terrorist plots against the nation of Cuba.  Where is the proof of espionage? Where is the proof of conspiracy to commit espionage?

 Leonard Weinglass, one of the defense attorneys, has said that this is the first case in American history of alleged spying and espionage without a single page from a secret document.

 The government never presented any evidence of a stolen official document or any attempt to steal an official document. This is the first spy case without secrets from the government. The only secrets the Five discovered had to do with covert activities from Miami-based terrorist groups.

 Like what sir?

 The one I mentioned earlier. The evidence presented during the trial includes messages exchanged between (defendant) Gerardo Hernandez and Havana that detailed that plot. The U.S. Government, instead of going after the plotters, went after the people who revealed the plot.

 That government protection is the reason why people like Mr. Llama believe there is nothing wrong in buying weapons and explosives and targeting the Cuban government in terrorist attacks. After all, government prosecutors defended them in federal court. On the other hand, the government pretends that it was possible for these five men to have a fair trial in Miami after discovering these plots.

 Were you surprised with this decision?

 Frankly speaking, no. We expected this for several reasons. First of all, during oral arguments a few months ago, a clash of views emerged and we saw that there were judges who supported the Miami decision.

Second, this particular appeals court is identified as being pro-prosecution, rarely ruling against the government in other appeals. And since this case was so highly politicized, we were never very optimistic. At best we expected this divided opinion with the majority ruling against the Five.  

What did surprise me was the tone — how one side just rubber stamped the original decision of the Miami court while the two dissenting judges dedicated the same amount of space to criticizing the opinion of their colleagues.  

So while we were never that optimistic, we had hoped that the Atlanta judges would have recognized the bias of holding this kind of trial in Miami. Don’t forget that these men went to trial during the hysteria that ensued in the Elian Gonzalez case. In fact, a year after the Five went to court, U.S. government lawyers fought for a change of venue in an Elian-related case — arguing that no one in Miami can have a fair trial in anything connected with Cuba. The dissenting judges even made this point in the case of the Five.  

You seem to be suggesting that the Five would not be in jail today if their trials had taken place outside of Miami. 

I believe that any other federal judge in any other city would have simply dismissed the case - especially after learning that these guys spent the first 17 months of their detention in solitary confinement.

 They were denied access to the outside world; denied access to their attorneys; denied access to the evidence. Any other court outside of Miami would have dismissed the case on those violations alone.  

Even a United Nations investigation of the case concluded that their imprisonment is arbitrary. The U.N. Working Group on Arbitrary Detentions found that the trial did not take place in the climate of objectivity and impartiality and has asked the U.S. government to remedy the situation.

 Mary Murray is an NBC News producer based in Havana, Cuba. The Associated Press contributed to this report.

(Trabajadores) 02-09-2006