IV Ricardo Alarcon, President of the ANPP: Part II

Part I: http://www.scoop.co.nz/stories/HL1003/S00020.htm

Ricardo Alarcon
(Click to enlarge)

WHY there is a big wave of concern around the world

The incredible case of Gerardo Hernández

While some other defendants in this infamous case[i] were also charged with failure to register as foreign agents, false identity and various conspiracy charges, Gerardo Hernández was hit with something so far out of left-field it ranks a right hook – conspiracy to commit first degree murder.

This charge related to a sovereign act of the Cuban Government, the shooting down of two of three planes, one at least of which had entered Cuban airspace, on February 24, 1996.[ii] More bizarre still, the prosecution themselves attempted to withdraw the charge because even they acknowledged that they could not prove Gerardo Hernández had any involvement – yet he was still found guilty.

“That was an absolute fabrication, the biggest fabrication in the case, it was so obvious that the Bush Administration, the Bush Attorney General’s office - remember what kind of an attorney general I am talking about, the same guy who justified war and torture and so on, Alberto Gonzalez, none other than Alberto Gonzalez - in a written form, in an official document, recognised that they failed to prove that charge, and they asked for its removal from the instruction to be given to the jury, because they could not prove that Gerardo was involved in such a crime. That request was denied, and the jury had to pronounce itself on the original accusation, and they found him guilty, unanimously, in a matter of minutes,” said Ricardo Alarcon.

Let me get this straight, I wonder, you have a man charged with something for which there is no evidence, and which the prosecution themselves admits they cannot prove and requests the judge to drop, yet the jury finds him guilty of it – how can that possibly happen?

“You have to turn back to the original problem, the venue,” says Alarcon.

Okay, so the first trial got it horribly wrong, but there were appeals, and in 2008, an order for resentencing for Antonio Guerrero, Fernando González, and Ramón Labaniño.

“In the case of Gerardo unfortunately, in the same judgement, they ratified his sentence and his conviction, with the exception of one magistrate, the only woman, who said something very very specific and very concrete which corresponds with the truth. Never did the Government produce any piece of evidence linking that man with the events they are using as the foundation for this, and even though [this was ] recognised by the Government when they tried to withdraw the charge, he got the maximum sentence possible, another a life term,” Alarcon noted.

I checked the decision, and sure enough, in a dissenting opinion Judge Kravitch said:

“In my view, the Government failed to present evidence sufficient to prove beyond a reasonable doubt that Hernandez agreed to participate in a conspiracy, the object of which was to shoot down BTTR planes over international airspace, resulting in the deaths of several pilots,” and she concluded that the conviction and sentence should be reversed.[iii]

Alarcon adamantly agrees. “They added the accusation against Gerardo to inflame the feelings in the Miami community because the issue, the accusation, is of killing four Cuban Americans, people from that community, in a very well-known incident. Without having any evidence, without being able to produce just a single piece of evidence of his connection with the events! Because the trial was not [about] Cuba, it was not discussing the decision of the Cuban air-force to defend the national sovereignty and so on, it was an accusation against one human being. This is really a scandalous violation of every legal principle. And the government failed to demonstrate that, and said that officially in a written document, in which they recognised what they are doing has never happened before in American history. At the end of the trial, recognising that they have failed, and trying to withdraw [the charge]! But they didn’t fail – why? Because of Miami. As Gerardo said before the trial even began, I will be found guilty of anything with a Miami jury.”

Hernández’ fears were well-founded, and also shared by the three-judge panel of the first appeal, who vacated all of the five men’s convictions and sentences, based on their assessment that the venue should have been changed from Miami due to a “perfect storm” of prejudice in that community.[iv] Although this ruling was later overturned in the En Banc decision, Judges Birch and Kravitch joined in a dissenting opinion and “...remain convinced that this case is one of those rare, exceptional cases that warrants a change of venue because of pervasive community prejudice making it impossible to empanel an unbiased jury.”[v]

The media (or is it ‘greedier’?)

These legal opinions were handed down even before the role of the media in this “perfect storm” was discovered - and who was behind it.

Alarcon reveals: “One argument that was substantial to the unanimous three judges panel decision in 2005, the only just decision taken regarding the Five during this long process (to declare null and void the trial in Miami and vacate all the convictions and order a new trial) was the venue, the atmosphere, “the perfect storm”, as they said, that was created there against the Five. At that time nobody knew what was learned later, what was revealed last year, that the US. government was paying those journalists who organised and deployed a campaign against the Five. They were on the government payroll. A number of U.S. and Cuban journalists in Miami who were writing, or speaking over the radio, TV, in newspapers, in every media, day and night, they were being paid with U.S. tax-payers’ money through the so-called Cuban broadcast system there, they have radio and TV Marti, anti-Cuban propaganda paid with the Federal budget, that means with the taxpayers’ money.

And it happens that if you draw a list of those people who were in the papers, over the radio or on TV during or around the trial of the Five – all of them were on the payroll of the Federal Government propaganda machine against Cuba. That means that the atmosphere, the negative atmosphere, to make it impossible to have a fair trial in Miami, was mostly created by the media, but it was not an independent media, it was a media paid by the [Bush] Federal Government. That is something that was discovered after – we knew about the campaign, we denounced it, what we didn’t know at that time was that those people were paid, and some of them very very well paid. We’re talking of people who got more money than a congressperson, than a secretary in the government, very very well paid, to slander, to distort reality, to create an atmosphere of fear amongst the jurors, not only by what they wrote, what they said. Even the judge is on record protesting about the behaviour of the media people that went after the jurors all the way through the parking lot, that were filming and showing on TV their car plates, a way to identify who you are, where you live and so on, even entering the building of the court and harassing them through the corridors all the way to the jury-meetings door. That’s on the record, on the record of the trial, the judge begging the [marshalls] “Please do something, they are scared, they are afraid,” but what we didn’t know, what the judge didn’t know at that time, was that those so-called journalists were on the government payroll. Can you imagine!”

Of the Bush government, unfortunately only too well....but is this new administration any different? With all appeal processes seemingly exhausted, what possibilities exist to extract Gerardo from this bizarre situation where he has been found guilty of a crime even the prosecution concedes there is not evidence for, by a jury whose fear was palpable and whose impartiality, not to say ability to base conclusions on the evidence, is seriously questionable?

Ricardo Alarcon offers a way out. “Gerardo’s solution, the only solution, is a political decision by President Obama. I keep insisting that this problem can be resolved very very easily. President Obama knows how to do that. He did last May with a famous case, a colonel working in the Pentagon [who] was found guilty of giving military secrets to Israel...May 1st last year, the justice department dropped the charges. The guy was found guilty, was appealing - of course he was not in jail, he was at his home appealing. Our Cubans have been in jail since the very first day. In the case of Gerardo it is even easier, they only need to quote Bush and [Alberto] Gonzalez, he just needs to quote from Mr Gonzalez, “We failed to prove this accusation” and drop it, he can do that, what [Alberto] Gonzalez tried to do in 2001 - as you see, it is not so complicated, it’s not difficult.”

Wives

He considers President Obama should also find it simple “...to just to abide by the law and the regulations of the U.S.” and enable family visits.

“Mr Obama wants to project a different image than Mr Bush, and that’s in the interests of the U.S. - I know that he is getting more and more demands from many quarters, of people that are demanding the freedom of the Five, and also many people are also demanding the end of the unjust and cruel treatment that the U.S. is imposing on the Five and their families, especially the case of Gerardo’s wife and Rene’s wife, they have not been permitted to visit their husbands in their prisons, violating not only international law – there is a convention on Minimum Rules for the Treatment of Prisoners, also the U.S. regulations – every prisoner has the right to receive visits. These people are Cubans, their families live in Cuba. Every time that they want to visit them they have to apply for a visa. They have to make a request, they have to wait weeks, sometimes months, sometimes even more than a year to receive an answer. And in two cases, Adriana and Olga, the answer is always no.[vi] Rene will be out next year. [Obama] better hurry up allowing Olga to visit him before he leaves the prison, because if he fails to do that then he would have violated Rene’s rights as a prisoner for his entire prison term. He has an opportunity to grant her a visa now to go there at least to see her husband before he’s out of prison.”

Spies or lies?

Fabricated charges, abuses of process, breaches of human rights and humanitarian law – just what is going on here?

“Clearly, clearly it is a political case, the motivations, all the process has been political. I mean by that, that the United States who is now involved in a so-called war on terror all around the globe in reality has been waging terror against Cuba for half a century. That’s precisely the key to understand this problem, this issue.

Conspiracy to commit espionage - without a piece of paper, without any word being gathered or transmitted abroad, because it is ‘conspiracy to’. What means conspiracy in American law? The agreement of two or more persons to try to do something. Well, the only thing that you have to convince the jurors is that these people are so bad that they maybe in the hypothetical future [will] do that. They did nothing, but they may try to because they are bad people, they are the bad guys.

And then the Government asked [for], and the judge gave, the highest punishment possible, as if they had actually put into practice what they might have intended to do. It is such a hyperbolic exaggeration that it only has a political interpretation; it was so obvious that the Court of Appeal said no, you are wrong. You have imposed the most extreme sentence without any damage, without any concrete materialisation of that thing.

When the media refer to [the Five], in the few cases they do, they always refer to them as spies, or as people that were accused of spying. That is not true. A spy is an individual who gathers and transmits secret information of a military nature or affecting the national security of another country.

In this last process of appealing at least we won something...in 2008, the Court of Appeals recognised that in this case national security was not involved, was not threatened, that these people didn’t gather any secret material whatsoever. They said that time and again in a huge document in the determination of the Court of Appeals in 2008...the so-called conspiracy to commit espionage was never materialised in a single piece of paper, they didn’t gather information, they didn’t threaten the US security, my god, and they have already spent more than eleven years [imprisoned].

Another dimension to prove the political nature of the trial is...the imbalance between the sentences against them and other cases.[vii] Nobody [else] has gotten a life term in the last years in the US for similar, or allegedly similar, or even for far more serious violations of the law. I will give you a list of names of people that committed actual spying and were sentenced to far lesser terms.[viii]

Dumeisi - what he did was exactly what Rene Gonzalez did - the difference is that this Dumeisi was not prosecuted in Miami, as was Rene. The judge in the Dumeisi case recognised that that guy was not spying on the U.S. but monitoring the activities of the Iraqis, and that made a difference.

The most recent case is another gentleman, a Defence Department official, convicted for communicating classified information to the Chinese Government, including a report on Chinese military power. And he lied to the FBI when he was interviewed – he got three years, three, not life, but three years and that was January 23, 2010. It’s very recent.

So should Obama give them a pardon?

“I am not talking about a pardon, about a reduction of sentence, DROP the charges. It’s what Obama should do with this case, and it’s very simple. The Court of Appeal has already said that there was no threat to national security. That there was not gathering of secret information, in other words that there was no spying. And they have served already more than eleven years in maximum security prisons, subjected to the special duress and hardships that are imposed on a prisoner in maximum security.

A few months ago I read that a former Guantanamo prisoner who was tried at the US Federal Court in the U.S. - the judge ordered him free on the grounds that he suffered especially harsh conditions during his term of imprisonment in Guantanamo, although he was found guilty of terrorism, and he was, according the judge, rightly sentenced to x number of years, I don’t remember. According to the judge “That x number of years in a regular prison, the years you spent in Guantanamo are equal to those years in a regular prison, then out, go home.” That should have been the result in Miami...the President knows that.”

Considering the maximum sentence for the administrative offences is five years, and would normally be served in a minimum security facility, Alarcon has a very good point.

U.S. public opinion

How come the rest of the world knows about this case, but the average U.S. citizen seems not to?

Alarcon explains, “Because the main obstacle that we face is lack of knowledge, lack of information. The media do not cover this case, it is not covered by the big media for a very simple reason - that if it were known, if people could be permitted to learn, it would be extremely difficult for any United States administration from Eisenhower to Obama, to justify the international policy of the U.S. because the reality is that the U.S. has been sustaining, protecting, promoting terrorism against Cuba. That was explicitly said at trial.

[President Obama’s] problem is inside the US and for that, unfortunately, he has had, the US administration has had, the complicity of the so-called US media. Not just in terms of imposing a wall of silence around this case in order that no Americans will never know that they live in a country where terrorists are protected - the same guy, the same kind of individual that kills Americans, guys who have actually killed real Americans, threatened others during a number of years, all that is very well documented. You have now a parallel case of Posada Carriles...this administration continues to fail to prosecute Posada as a killer, as a terrorist, as a fugitive of Venezuelan and Panamanian justice.

For the U.S. government, what was absolutely essential at the sentencing of the Five was to ensure that they will be forever incapacitated, so they can never try to attempt again what they did, meaning by that, putting at risk the activities of the terrorists. It is fascinating, the way the U.S. authorities are infatuated with the terrorists, they are so close to them that they abandon any ideas of decency and principle. And that is wrong.

It is like the Vietnam war – when the American people realised what was going on they demonstrated by the millions on American streets, and they made it impossible for the U.S. to continue that war. It will be the same, the day that wave [of concern around the world] breaks through and enters and damps the American streets, universities, factories and so on, President Obama will be in a more easy position to do what he has to do, which is to simply drop the charges and order their freedom.

He will need political backing. American politicians - it is very very rare to find a ‘statesman’ in American history, you have politicians - they always consider the benefits and risks of any decision they will make. Well, they already know that such a decision is convenient in terms of the international standing of the U.S. Everybody will have to recognise a good gesture if he does that tomorrow, everybody around the world.”

Looks like it's time to get out those board-shorts and surf the wave of concern, Obama – hang ten, and free the five.

Notes:

[i] http://www.scoop.co.nz/stories/HL0610/S00136.htm etc

[ii] Documentary evidence reveals that the decision to shoot down the two aircraft was the independent decision of a Cuban Command Post of anti-aircraft defense, taken according to instructions issued to it in January, and responding in self-defense to the entry of unauthorised aircraft into Cuban territory on 24 February. There is no evidence of any contact, on that day or any other, between Gerardo Hernández, who was in Miami, and the Cuban Command Post. There is also extensive documentation that the U.S. administration could have taken measures to prevent this incident occurring, but did not do so, although they did intervene to prevent a similar incident only days later. For example, Anya K. Landau and Wayne S. Smith in Keeping Things in Perspective (Centre for International Policy 20/11/2001) note on Pg 11 “Aviation expert Charles Leonard testified that Basulto and other Brothers pilots had repeatedly flown into Cuba airspace to drop anti-government leaflets. Leonard also acknowledged that Cuba had repeatedly warned the government of the United States that planes that continued to undertake “provocative” flights might be shot down. The U.N.’s International Civil Aviation Organization records also confirmed that Havana had issued these warnings. Leonard further acknowledged that the United States had indeed passed these warnings on to Basulto. An internal FAA communication revealed that the U.S. State Department had warned that, “it would not be unlikely that the [Brothers would] attempt an unauthorized flight into Cuban airspace tomorrow….State has also indicated that the Government of Cuba would be less likely to show restraint [in an unauthorized flight scenario] this time around.” On the morning of the shootdown, the planes were warned by Havana tower. They were told they had entered the Cuban defense zone, which had been activated, and that they should turn back. They ignored multiple warnings...” In addition, United Nations Document GA/9052: Press Release 6 March 1996 records Mr. ROBAINA GONZALEZ, Cuban Representative to the United Nations, addressing the General Assembly Plenary about the incident, saying: “...three aircraft, violating their flight plan, began to penetrate a dangerous activated zone, despite warnings given by the Havana Traffic Control Center. The chief of the band, which was taking part in the action, answered that he knew it was prohibited to fly in that zone, but that they would do so nevertheless. From another plane, it was pointed out that they were heading for Havana. Two intercepting fighters of the Cuban air force then took off, performed the preventive warning pass. There was no response. According to the Cuban pilots and air command, two of the pirate planes were at a distance of from five to eight miles from Cuba's coasts, possibly to repeat the actions of 9 and 13 January. The Command Post of anti-aircraft defence, in view of the instruction that had been received in mid-January and the powers vested in it, therefore, ordered the fighters to shoot down the two planes. The third one, which by then was out of Cuban airspace and flying away, was not pursued any further. "The Cuban Government fully assumes the responsibility of the patriotic action carried out in legitimate defense of the sovereignty and security of our country", he said. "We do not really think that the United States Government wished to provoke the February 24 incident and the conflict that might have resulted from these developments... What is affirmed was that the United States did not take the effective and timely measures to prevent those events from occurring. The decisions adopted by President Clinton in the past few days and carried out by the United States authorities on 2 March were able to prevent another provocation planned by the very same perpetrators of the previous violations. If those decisions had been adopted and executed earlier, the events in question would not have taken place.

[iii] http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf

[iv] http://www.ca11.uscourts.gov/opinions/ops/200117176.pdf

[v] http://www.ca11.uscourts.gov/opinions/ops/200117176op2.pdf

[vi] See http://www.scoop.co.nz/stories/HL0610/S00136.htm Since that article, Gerardo’s wife Adriana Perez’ last two visa applications (in 2009) were denied on the grounds that she is a national of a country on the U.S. terrorist list, while Rene Gonzalez’ wife Olga Salanueva, at her last attempt in July 2008, was told that she was permanently inadmissible to the United States. Amnesty International has issued numerous letters, public statements, and reports calling for the two women to be issued with visas on humanitarian grounds, and their calls have been joined by numerous religious, human rights and other organisations and individuals. Some, such as the World Council of Churches, have offered to accompany the women to ensure that their visit to their husbands would in no way pose any threat to U.S. national security.

[vii] The Cuban Five sentences are as follows: Gerardo Hernández – 2 life terms plus 15 years – ratified by the Appeal Court; Ramón Labaniño – 1 life term plus 18 years – vacated by the Appeal Court, resentenced to 30 years; Antonio Guerrero – 1 life term plus 10 years - vacated by the Appeal Court, resentenced to 21 years 10 months; Fernando González – 19 years - vacated by the Appeal Court, resentenced to 17 years 9 months; René González – 15 years – Ratified by the Appeal Court

[viii] In addition to Khaled Abdel-Latif Dummeisi (note 5 in Part I) the list includes Leandro Aragoncillo, guilty in 2007 of illegally obtaining and transmitting U.S. secret national defense information – 10 years; Michael Ray Aquino, conspiring to commit espionage (with Aragoncillo) - admitted possession of secret documents with information about U.S. intelligence sources and threats of terrorist actions against U.S. personnel in the Philippines – 6 years 4 months; Gregg W Bergersen – guilty in 2008 of conspiring to provide national defense information to unauthorised persons - gave information about U.S. military sales to Taiwan in exchange for money and gifts – 4 years 9 months; Lawrence Anthony Franklyn – charged in 2005 with giving classified information and national defense information to a representative of a foreign government without authorisation – handed over military secrets to an Israeli diplomat and two Israeli lobbyists – 12 years 7 months plus $10,000 fine – then charges mysteriously all dropped on May 1st 2009; Jose Padilla – guilty in 2007 of conspiracy to commit terrorist acts against the U.S. and conspiracy to commit murder, kidnapping and mutilation – 17 years 4 months; John Lindh Walker, fighting with Taliban Army against U.S. troops and being responsible for the deaths of several soldiers and a CIA official – 20 years – negotiated to serve his sentence in California to facilitate familial visits; Zacarias Moussaoui, convicted in the U.S. for direct implication in the September 11 2001 terrorist attacks and ties to Al Qaeda – French-resident mother granted a visa without entrance limitations to visit him on humanitarian grounds.

ENDS

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