Should U.S. Indict Raúl Castro for 1996 Downing of Cuban-American Planes?

In 1996 in the midst of U.S. private aircraft flights near and over Cuba by Cuban-Americans opposed to the Cuban Revolution, two such planes were shot down by Cuban military planes, and three U.S. citizens and one U..S. resident were killed in the crash.

Now , on May 22, 2018, two Cuban-American politicians—U.S. Senator Marco Rubio (Rep., FL) and U.S. Representative Mario Diaz-Balart (Rep., FL)—have asked President Trump to have the U.S. Department of Justice investigate whether the U.S. could and should indict Raul Castro, Cuba’s former President, for the deaths of the four Americans.

After looking at this request, we will examine what happened in 1966 and in two U.S. criminal cases about this incident. We conclude with an evaluation of the merits of this request

Rubio and Diaz-Balart’s Letter to President Trump[1]

The letter urged the President “to direct the Department of Justice to review whether Raúl Castro should be indicted for the illegal and heinous act of shooting down in international waters two American civilian aircraft flown by Brothers to the Rescue [“BTTR”] on February 24, 1996.”

BTTR, according to Rubio and Diaz-Balart,, was “a humanitarian organization that operated rescue missions to search for Cubans who fled the island by sea.The journey from Cuba is treacherous, and many have perished in the attempt.”

This letter continued, “On February 24, 1996, the Cuban Air Force—unprovoked and without warning—shot-down two unarmed Brothers to the Rescue [“BTTR”] planes in international waters, murdering three American citizens, Carlos Costa, Armando Alejandre, Jr., and Mario de la Peña, as well as one United States legal permanent resident, Pablo Morales.”

Thereafter, the letter says, “a U.S. federal court [in Miami] indicted the head of the Cuban Air Force, General Rubén Martínez Puente, and the two MiG pilots, Lorenzo Alberto Pérez-Pérez and Francisco Pérez-Pérez, on charges of murder.”

The letter also says, “a member of the WASP spy ring ultimately was convicted for conspiracy to commit murder for his role in planning the shoot-down, and was sentenced to life in federal prison.  Shamefully, the previous administration, as part of its appeasement policy, commuted his sentence and let him return to a hero’s welcome in Cuba.  However, the Cuban operative ultimately responsible, then-Minister of the Revolutionary Armed Forces Raúl Castro, was never indicted.”

The letter concludes, “Taking these bold actions would demonstrate to our adversaries that they cannot act with impunity against Americans, and that human rights abusers and criminals will be held accountable for their crimes.  Most importantly, it would send a signal to the Cuban people that the United States will not permit their oppressors to operate without consequences.”

Cuba’s Downing of Two U.S. Civilian Planes[2]

According to the trial evidence in one of the criminal cases mentioned by Rubio and Diaz-Balart, BTTR, an anti-Castro Cuban exile group in Miami, repeatedly and knowingly had violated Cuban airspace since 1994 with the following details:

• In 1994 a BTTR flight flew near the Cuban coast with a television reporter who filmed Cuban military fighter jets circling, but not firing at the BTTR plane.
• Later in 1994, another BTTR plane flew over Cuba near Guantanamo Bay and dropped BTTR bumper stickers, and again Cuba did not fire at the plane.
• In 1995 BTTR announced that it would commit civil disobedience in Cuban waters, and in response the U.S. State Department issued a public warning that no one should violate Cuban waters and airspace. Nevertheless BTTR proceeded to send a boat into Cuban waters and a plane flew over Havana for 13 minutes dropping anti-Castro leaflets and religious medals. Again the Cuban military did not attack the BTTR plane.
• Immediately afterwards the Cuban Government complained to the U.S. FAA and requested action to prevent violations of Cuban sovereignty and stated, “Any craft proceeding from the exterior that invades by force our sovereign waters could be sunk and any aircraft downed.” In response the U.S. State Department reiterated its warning that U.S. planes should not violate Cuban airspace and quoted the Cuban warning.
• Nevertheless in January 1996 BTTR flew twice to Cuba and presumably over international waters dropped anti-Castro leaflets that landed in Havana. Again Cuba requested the U.S. to stop these flights.

On February 24, 1996, three light-civilian U.S. planes that were operated by BTTR flew from Miami to Havana. All three at one time were in international airspace close to Cuba’s territorial waters. One of them clearly flew into Cuban airspace, but was not shot down. The other two civilian planes were shot down by Cuban MIG fighters, killing three Cuban-American citizens and one non-U.S. citizen. Cuba defended its actions by contending that the planes were shot down within the territorial limits of Cuba whereas the U.S alleged that the downings had occurred over international airspace. According to one of the courts in the Cuban Five case, these two planes did not enter Cuban airspace and were shot down in international airspace, 4.8 and 9.5 miles (land miles or nautical miles?] from Cuban airspace.

The concept of national and international airspace is complicated. National airspace is the area or portion of the atmosphere above a country’s territory that is controlled by that country and above a country’s territorial waters, which generally is considered to be 12 nautical miles [or about 13.8 land miles] out from the coastline of the nation. All other airspace is known as ‘international airspace.’

In any event, the two planes that were shot down were at least very close to Cuban airspace after a history of such planes entering Cuban airspace and dropping leaflets and medals and potentially dropping bombs.

Cuban Spy Network in U.S.[3]

In September 1998 five Cuban men (“The Cuban Five”) were arrested in Miami and indicted for conspiracy to commit murder (of the four men killed on February 24, 1996); conspiracy to commit espionage; conspiracy to commit crimes against the U.S.; use of false identity and documentation; and being unregistered agents of a foreign government.

The Cuban Five, however,  were not directly involved in any of the above BTTR incidents. They did not shoot down the private planes on February 24, 1996. They were not in any of the Cuban MIG fighter jets that were involved in that incident.

Instead, according to one of the court opinions in their criminal case, they were in the U.S. as agents of the Cuban Directorate of Intelligence and members of its Wasp Network that was organized for espionage in southern Florida. The Network was to gather and report information regarding operations of U.S. military facilities, U.S. political and law enforcement agencies and U.S. nongovernmental organizations supporting regime change in Cuba, including BTTR. To that end, the Five attempted to penetrate the Miami facility of the U.S. Military’s Southern Command while one of the Five obtained employment at the Key West U.S. Naval Air Station and reported information about the Station to the Cuban Government. Their mission also was to stop flights to Cuba by BTRR.

In November 2000, the trial of the Cuban Five started in federal court in Miami and ended in June 2001 with a jury verdict of the Cuban Five’s being guilty on all counts. As none of the Cuban Five had been directly involved in shooting down the airplane in 1996, the key legal issue on the conspiracy to commit murder charge was the U.S. legal principle of conspiracy. Under U.S. law (U.S.C. sec. 1117), “If two or more persons conspire to [murder], and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.” In simple terms, the overt act of shooting down the plane is attributed or imputed to all members of the conspiracy even though some were not directly involved in that act.

In December 2001 (three months after 9/11), the Miami federal court sentenced the Cuban Five to lengthy sentences. In later 2009, after extensive appellate proceedings, the district court reduced the sentence of Guerrero from life to 262 months, of Labanino from life to 30 years and of Gonzalez from 19 years to 18 years.

Two of the Cuban Five  subsequently completed their sentences and were returned to Cuba in 2013 and 2014. On December 17, 2014, as part of the U.S.-Cuba agreement to pursue normalization of relations,  President Obama commuted the sentences of the other three Cubans to time served and released and returned them to Cuba. They are Antonio Guerrero, 56, a U.S. citizen; Ramón Labañino, 51; and Gerardo Hernández, 49.

Criminal Case Against General Martinez Puente and the Cuban Pilots[4]

On August 21, 2003, Cuban General Rueben Martinez Puente, the head in 1996 of the Revolutionary Air Force of the Republic of Cuba, and the two Cuban jet-fighter pilots who shot down the two planes operated by BTTR (Lorenzo Alberto Perez-Perez and Francisco Perez-Perez) were indicted by a federal grand jury in the U.S. District Court for the Southern District of Florida in Miami for conspiracy to kill the U.S. nationals in the February 1996 crash, four counts of murder and two counts of destruction of aircraft.

The three defendants in this case were and are Cuban citizens and apparently were in Cuba at the time of the indictment and have remained there. Thus, on Nov. 10, 2003, the district court entered an order transferring them to its Fugitive File “until such time as the defendants are apprehended.” That is the last entry in this case’s file.

Conclusion

For this blogger, the foregoing objective review of the evidence relating to the letter from Senator Rubio and Representative Diaz-Balart yields the following conclusions:

1. The BTTR was not “a humanitarian organization,” at least with respect to the private planes it had flown to Cuba.
2. The BTTR apparently did not “operate rescue missions to search for Cubans who fled the island by sea.”
3. Instead the BTTR, at least from 1994 through early 1996, operated to harass the government of Cuba by dropping anti-Castro leaflets over Cuba itself.
4. On February 24, 1996, the Cuban Air Force was provoked by the BTTR flights that day and previously.
5. Prior to July 24, 1996, the Cuban Government repeatedly sought the assistance of the U.S. Government to stop the BTTR flights to Cuba.
6. The U.S. Government, however, did not adequately attempt to stop BTTF flights to Cuba.
7. Yes, the U.S. in 2003 indicted the head of the Cuban Air Force and the two Cuban pilots of the jet fighter planes that shot down the two private planes flown by BTTR pilots on February 24, 1996, but nothing has happened in that case because the Cuban defendants have not been in the U.S.
8. Yes, the U.S. in 1998 indicted the Cuban Five for various crimes, even though they were not personally involved in the shooting down of the two BTTR planes on February 24, 1996, and they were convicted and sentenced to U.S. prison for long periods of time. By December 2014, two of them had completed their sentences, been released from U.S. prisons and returned to Cuba, and on December 17, 2014, the remaining three’s sentences were commuted to time served (16 years including pretrial detention) by President Obama and they also were released from U.S. prison and returned to Cuba while Cuba simultaneously released U.S. citizen Alan Gross and another man who had spied for the U.S. from a Cuban prison and returned them to the U.S.
9. The release of the remaining three of the Cuban Five on December 17, 2014, was part of the praiseworthy overall U.S.-Cuba agreement to embark on the path of normalization of relations. It was not, as the Rubio/Diaz-Balart letter states, part of the shameful “appeasement policy.”[5]
10. There never has been any contention that Raúl Castro was involved in any way in the downing of the two BTTR planes in February 1996. Instead Rubio and Diaz-Balart allege that at the time Raúl was Minister of the Revolutionary Armed Forces and thus presumably in overall charge of everything involving the Cuban Air Force.
11. now nearly 87 years old and no longer Cuba’s President, Raúl Castro is still Secretary of the Communist Party of Cuba and has retired to Santiago de Cuba at the eastern end of the island. Presumably he will not be coming to the U.S. in the future, especially if he were to be indicted as Rubio and Diaz-Balart suggest.[6]

In short, the suggestion that Castro be indicted is a cheap, unfounded political trick only designed to continue to stroke the egos of the Cuban-Americans in Florida who cannot forget and forgive the past. The U.S. should not waste time and money on such a wild-goose chase.

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[1]  Press Release, Rubio, Diaz-Balart Call for DOJ to Consider Indicting Raúl Castro for Murder of American Citizens (May 22, 2018); Torres, Rubio, Diaz-Balart want investigation of Raúl Castro in 1996 shoot-down of exile plane, Miami Herald (May 22, 2018).

[2] The BTTR flights and the February 1996 crashes, as established by trial evidence, are covered in  U.S. Imprisonment of “The Cuban Five” and Their Releases from U.S. Prison, dwkcommentaries.com (Dec. 31, 2014).

[3] The extensive U.S. litigation in the criminal case against the Cuban Five is reviewed in U.S. Imprisonment of “The Cuban Five” and Their Releases from U.S. Prison, dwkcommentaries.com (Dec. 31, 2014); U.S. and Cuba Embark on Reconciliation, dwkcommentaries.com (Dec. 21, 2014).

[4] Indictment, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL Aug, 22, 2003) Notice to Transfer to Fugitive Status, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL Nov. 10,, 2003); Criminal Docket, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL ) [searched on May 26, 2018].

[5] U.S. and Cuba Embark on Reconciliation, dwkcommentaries.com (Dec. 21, 2014).

[6] The retirement of Raúl Castro: a luxurious estate in Santiago de Cuba, CiberCuba (May 2018).