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).

 

 

 

 

Conclusion of Seventh Congress of Communist Party of Cuba

The final three days (April 17-19) of the Seventh Congress of the Communist Party of Cuba featured criticism of President Obama’s words during his March visit to Cuba, adoption of the Party’s Central Committee’s report, election of the Party’s leaders for the next five years, a concluding speech by Raúl Castro and a surprise appearance of Fidel Castro.[1] These topics will be discussed in this post. Prior posts provided an overview of the Congress, Raúl Castro’s discussion of Cuba-U.S. relations and his discussion of socio-economic issues.

Criticism of President Obama

Bruno Rodriguez
Bruno Rodriguez

The most direct criticism of Obama came from Cuba’s Minister of Foreign Affairs, Bruno Rodriguez Parilla. He said, “Obama came to stand here and dazzle the non-state sector of the economy [the so-called cuentapropistas] as if he was not the defender of big corporations but the defender of those selling hot dogs and small businesses in the U.S.”

Moreover, according to the Foreign Minister, “In this visit, there was a deep attack on our ideas, our history, our culture and our symbols.” However, “Socialism and the Cuban Revolution are the guarantees that there can be a non-state sector that is not that of big North American companies. ”

The Foreign Minister also referred to Cuba’s constitutional referendum in the near future as “a battle” in a different context, with “a very heterogeneous society…in which there are changes in the perception of the enemy, which remains the enemy. And it is there, in the North.”

René González, one of the Cuban Five, said Obama was “the ‘Pied Piper’ . . . [who] came to play to our children and steal their hearts. He played the flute very well, because he has specialists who tell him how to play it.”

But Rene González also made an unusual call for the consideration of political reform in Cuba by saying the Party had focused excessively on the economy for 10 years. “Let the party [now] call for a broad public discussion that goes beyond concepts of economic development. Let’s arrive at the eighth party congress [in 2021] for the first time in human history with a consensus on that human aspiration that some call democracy, and that’s possible through socialism.”

Another member of the Cuban Five who was released from U.S. prison on December 17, 2014, Antonio Guerrero, dedicated a few verses from Cuban poet Cintio Vitier to Obama and his policy of rapprochement: “Don’t attempt with your delicacy to have me betray myself. Do not pretend you are going to believe in my situation.” According to a report in Juventud Rebelde, Guerrero turned to poetry, “as a resonant symbolic exercise against those who approach us today with fake softness.”

Adoption of the Central Committee Report

As reported in an earlier post, on April 16 Raúl Castro as the First Secretary of the Communist Party of Cuba, spent two hours reading the report of the Party’s Central Committee.

Miguel Diaz-Canel
Miguel Diaz-Canel

Two days later Miguel Diaz-Canel had the important, but boring, job of making a resolution for the Congress’ adoption of that report, which meant that he had to re-read that report. This included the report’s criticism of the Cuban governmental bureaucracy as having obsolete ways of thinking led both to inertia in enacting reforms and “a lack of confidence in the future. Along with other deficiencies, there’s a lack of readiness, high standards and control, and little foresight or initiative from sectors and bureaucrats in charge of making these goals a reality.”

That resolution was adopted unanimously by the 1,000 delegates to the Congress.

Election of Party Officials

Castro y Machado Vedntura
Castro y Machado Vedntura

Raúl Castro was re-elected as the Party’s First Secretary as was 85-year-old Machado Ventura as Second Secretary, who is known as the enforcer of Communist orthodoxy and an opponent of some of the biggest recent economic reforms. Raúl added that the “inexorable law of life” means that the Seventh Congress will be the last headed by the historical generation.

There had been speculation that Miguel Diaz-Canel might have replaced Machado Ventura as a clear sign that Diaz-Canel was the successor to Raúl as President. But Diaz-Canel was re-elected to the Political Bureau of the Party.

Raúl addressed the composition of the Party’s Political Bureau, noting that its 17 members include a four women, five Black or mixed-race members, two heads of mass organizations, five Council of State vice presidents, three Council of Ministers vice presidents, and four generals, including the First Secretary. Five new members were elected to this body.

The Central Committee was composed of 142 members, of which more than two-thirds were born after the triumph of the Revolution and the average age was 54.5 years, lower than in 2011. More than 98% of Central Committee members have university-level education, the representation of women has grown and now reaches 44 or 37% and blacks and mestizos with 35 or 92%

Fidel Castro’s Valedictory Remarks

Fidel Castro
Fidel Castro

I’ll be 90 years old soon [in August],” Castro said in his most extensive public appearance in years. “Soon I’ll be like all the others. The time will come for all of us, but the ideas of the Cuban Communists will remain as proof on this planet that if they are worked at with fervor and dignity, they can produce the material and cultural goods that human beings need, and we need to fight without a truce to obtain them.”

“This may be one of the last times I speak in this room,” Fidel Castro said. “We must tell our brothers in Latin America and the world that the Cuban people will be victorious.”

Raúl Castro’s Closing Speech

In a reprise of his two-hour speech on Saturday, Raúl Castro said the development of the national economy, with the struggle for peace and ideological firmness, was the main task of the Party. “This will be a revolution of the humble, by the humble and for the humble, as defined by comrade Fidel.”

Conclusion

I agree with other U.S. commentators that the harsh language against Obama at the Party’s Congress is a sign that the Cuban people had and still have a very positive opinion of President Obama, his speech to the Cuban people and his meeting with Cuban entrepreneurs. As Richard Feinberg, a former national security adviser to U.S. President Bill Clinton, put it, “The harsh rhetorical push-back by the ideological wing of the Communist Party suggests their heightened sense of vulnerability.”

“Clearly the Cubans are on the defensive after President Obama’s trip,” said Ted Piccone, a Cuba analyst at the Brookings Institution in Washington. Ted Henken, a Cuba analyst at Baruch College in New York, said Mr. Obama’s visit “was very effective in rattling” the regime. “Instead of taking Obama’s visit as a chance to open up and speed up the transition to a younger generation, they have circled the wagons.”

Carlos Alberto Pérez, who writes under the name La Chiringa de Cuba, said that he was not surprised by the party’s decision to keep President Castro and Mr. Machado in place. “The transition is planned for 2018 when Raúl steps down. Anyone who thought there would be a change now was dreaming.”

“Party leaders are trying to set up continuity in the context of reform — but it will be the type of reform managed by conservative politicians,” said Arturo Lopez-Levy, a lecturer at the University of Texas, Rio Grande Valley, and a former Cuban intelligence analyst. He added, “Generations do matter. Their formative experiences are different. The younger leaders will take up their posts at a time when the party is becoming more nationalist and less Communist. Younger militants also are less adverse to market mechanisms in the economy than their elders.”

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[1] Reuters, Cuba Calls Obama Visit ‘an Attack’ as Communists Defend Ideology, N.Y. Times (April 18, 2016); Assoc. Press, Cuban Leaders Criticize Both Bureaucracy and Private Sector, N. Y. Times (April 18, 2016); Assoc. Press, Cuba congress says state’s obsolete mentality is holding back economy, Guardian (April 18, 2016); Loforte, There is, and will be, a single Party, Granma (April 18, 2016); Torres, Riled Cuban Communists deploy colorful arsenal against Obama, InCubaToday (April 18, 2016); Whitefield, Cuba’s Communist Party Congress wants change, but also more of the same, Miami Herald (April 18, 2016); Raul Castro: The development of the national economy, with the struggle for peace and ideological firmness, main tasks of the Party, Granma (April 19, 2016); Assoc. Press, Fidel Castro gives Rare Speech Saying He Will Die Soon, N.Y. Times (April 19, 2016); Reuters, Cuba’s Castro Keeps Top Job but Leadership Changes to Come, N.Y. Times (April 19, 2016); Torres, Fidel Castro bids final farewell to his Communist Party comrades, Miami Herald (April 19, 2016);Whitefield, Raúl Castro and hardline deputy remain at helm of Cuba’s Communist Party, Miami Herald (April 19, 2016); Burnett, In Farewell, Fidel Castro Urges Party to Fulfill His Vision, N.Y. Times (April 19, 2016); Morales, Raúl reelected as First Party Secretary, Granma (April 19, 2016); Assoc. Press. Cuba’s Aging Leaders to Remain In Power Years Longer, N.Y. Times (April 20, 2016); Córdoba, Raúl Castro Re-Elected to Top Post in Cuba’s Communist Party, W.S.J, (April 20, 2016).

 

U.S. Imprisonment of “The Cuban Five” and Their Recent Releases from U.S. Prison

On December 17th U.S. President Barack Obama commuted the sentences of three Cuban spies 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.

Antonio Guerero
Antonio Guerero
Ramón Labańino
Ramón Labańino
Gerardo Herńandez
Gerardo Herńandez

They were known as members of “the Cuban Five,”  a Cuban spy ring in South Florida in the 1990s that infiltrated Cuban-exile groups and U.S. military installations.[1] They, along with other members of the ring, tried to make themselves indispensable to the exile groups whose secrets they stole. One of the operatives worked at the Naval Air Station in Key West, while another worked undercover in Tampa.

Once their cover was blown and federal agents smashed the ring, they were arrested and jailed on September 2, 1998. Several of its members pleaded guilty to various charges, but the Cuban Five instead went to trial, starting in November 2000 and concluding in June 20001. They were convicted on all charges and sentenced in December 2001 to long prison terms although two of them after completion of their sentences were released from prison and returned to Cuba in 2013 and 2014.

Mr. Guerrero, who was born in South Florida and studied engineering in Ukraine, was originally sentenced to life plus 10 years, but later was re-sentenced to 21 years plus 10 months (262 months). Mr. Labañino is a native of Havana who studied economics at the University of Havana. Originally sentenced to life plus 18 years, he later was resentenced to 30 years.

Mr. Hernández was the only one of the group convicted of conspiracy to commit murder and sentenced to two life sentences plus 15 years. American investigators accused him of having previous knowledge of the Castro government’s plans in 1966 to shoot down two Cuba-exile organization private planes that regularly flew missions from the U.S. near Cuba, killing four anti-Castro volunteers.

A fuller understanding of the Cuban Five and the recent release of the three Cuban men from U.S. prison requires an examination of (a) the events that precipitated the downing of the two planes; (b) the actions of the Cuban Five relating to those events; (c) the long, complicated history of their criminal case in U.S. federal courts; and (d) reactions to the commutation of  the three men’s sentences and their release from U.S. prison and return to Cuba.

Precipitating Events

According to one of the judges in the latest 11th Circuit decision that is discussed below, the trial evidence established that Brothers to the Rescue (“BTTR”), an anti-Castro Cuban exile group in Miami, repeatedly and knowingly had violated Cuban airspace since 1994. Here are some of the details:[2]

  • 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. [3]
  • 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. [4]

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.[5] According to one of the judges in the latest 11th Circuit opinion, 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.[6]

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 are 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.

On December 17, 1997, a U.S. district court entered a default judgment against Cuba for $187 million for the deaths of three of the four pilots.[7]

The Cuban Five’s Actions

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

Instead, according to the latest 11th Circuit opinion that is discussed below, the evidence at trial established that the Five 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. [8]

The 11th Circuit also stated that the trial evidence established that the mission of one of the Wasp Network’s operations, known as Operation Escorpion, was to stop flights to Cuba by BTRR.

According to the Cuban Government, the Cuban Five are patriots and Heroes of the Cuban Revolution who were acting to save American and Cuban lives from terrorists operating in Miami and to defend Cuba from attacks from the U.S.

What Happened in the U.S. Criminal Process?

In September 1998, the Cuban Five were arrested in Miami. A federal grand jury in Miami indicted them on charges of conspiracy to commit murder (of the four pilots); 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. Each of them then spent 17 months in solitary confinement before trial.[9]

In November 2000, the trial of the Cuban Five started in federal court in Miami. During the course of pre-trial proceedings the defense made five unsuccessful motions to change venue to move the trial away from Miami because of intense public hostility towards the Cuban Five.

In June 2001 the trial ended in Miami federal court with a jury verdict holding the Cuban Five guilty on all counts.[10] 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 of three men who died in the airplane’s crash 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 the previously mentioned sentences. [11] (At about the same time, the Cuban legislature declared that the Five were Heroes of the Revolution.)

In August 2005, a three-judge panel of the U.S. Circuit Court of Appeals for the Eleventh Circuit in Atlanta unanimously reversed the convictions on the ground that is was reversible error for the trial court to deny the motions for change of venue out of Miami.[12]

A year later, August 2006, however, the entire 11th Circuit en banc, 10 to 2, overturned the panel’s decision and affirmed the trial court’s denial of the motions for change of venue and for a new trial, but remanded the case to the previous three-judge panel of the 11th Circuit to decide the following other issues on appeal:[13]

  • alleged prosecutorial misconduct regarding the testimony of a government witness and during closing argument;
  • alleged improper use of the Classified Information Procedures Act;
  • alleged improper denial of a motion to suppress fruits of searches under the Foreign Intelligence Surveillance Act;
  • alleged Batson violations by the prosecution in striking prospective jurors on the basis of race;
  • alleged insufficiency of the evidence regarding the conspiracy to transmit national defense information to Cuba, alleged violations of the Foreign Services Registration Act, and conspiracy to commit murder;
  • alleged improper denial of a motion to dismiss Count 3 based on Foreign Sovereign Immunities Act jurisdictional grounds;
  • alleged improper denial of jury instructions regarding specific intent, necessity, and justification; and
  • alleged sentencing errors.

On June 4, 2008, that three-judge panel of the 11th Circuit resolved these issues in 99 pages of opinions. With one exception, the panel unanimously rejected all of the Five’s arguments on the merits.[14] The exception was the sufficiency of the evidence for the conviction of Hernandez for conspiracy to commit murder, where the decision to affirm the conviction was 2 to 1. The dissenter concluded that there was insufficient evidence for this charge because the Government had not proved beyond a reasonable doubt that he had agreed to have another agent shoot down a BTTR plane in international airspace, which is illegal, as opposed to shooting down a plane in Cuban airspace, which is legal. Another judge conceded that this issue was very close.[15]

The three-judge court also vacated the sentences of three of the Five and remanded the case forresentencing, presumably for shorter periods. The three are Labañino and Guerrero who had been sentenced to life imprisonment and Gonzalez who had received a 19 years sentence.[16]

On September 2, 2008, the 11th Circuit denied the Five’s petition for rehearing and rehearing en banc (the entire 11th Circuit). On June 15, 2009, the U.S. Supreme Court denied their petition for review (denial of certiorari).[17]

On October 13, 2009, the district court reduced the sentence of Guerrero, under an agreement between the defendant and the prosecution, from life to 262 months. On December 8, 2009, the district court reduced the sentence of Labañino from life to 30 years. On that same date (December 8, 2009), the sentence of Gonzalez was reduced from 19 years to 18 years.[18] Gonzalez subsequently completed his sentence and was returned to Cuba.

After their resentencing, the three Cubans released a statement reiterating their claims of innocence and affirming, ¨We did not give one inch in our principles, decorum and honor, always defending our innocence and the dignity of our homeland.¨in addition, they asserted that they continued to reject the U.S. government´s proposal for more lenient sentences in exchange for collaboration with the U.S.¨[19]

Reactions to the Release of the Three Cubans

When the three men  returned to Cuba on December 18th after their release from U.S. prison, they were welcomed home by Cuban President Raúl Castro. A Cuban reporter said of this celebration, “The Cuban sky, which they had so longed to see, offered the first welcome to our heroes, then the breeze, the feeling of freedom… hard for their eyes to believe what was unfolding before them, hard for their hearts to bear so much joy, to see the radiant, euphoric people opening their arms to their sons, and offering them a cup of coffee. Eleven million tears were shed as the news was announced, and the photos began to appear, with Raúl welcoming them to the homeland. Who didn’t feel goosebumps along with Elizabeth as she embraced [her husband] Ramón. Who was not moved as Gerardo gazed into [his wife] Adriana’s face, and who did not feel the warmth shared by Mirta and her son Tony [upon seeing her husband Antonio Guerrero]… And what an avalanche of emotions hearing the exclamations, including, “Para lo que sea”, (For whatever may be needed), offering an exemplary lesson of genuine patriotism. Outside, in the streets, a sea of human beings welcomed them home, every corner of the nation was full of joy. Feeling the country’s greatness, it is no lie that Cubans feel our hearts swelling.”

Afterwards the three had a joyous reunion with their previously released fellow Cuban Five members.

Members of the Cuban-exile community in Florida reportedly were most upset with the release of Hernandez.  Given his conviction for conspiracy to murder and his double life sentence plus 15 years, that reaction is understandable. On the other hand, he personally did not shoot down the two BTTR planes causing the death of their occupants and was not personally involved in any other way in that incident. In addition, as at least one U.S. judge observed, there was evidence that  Hernandez did not understand or agree that the Cuban air force would shoot down a BTTR plane in international air space, which is illegal, as opposed to shooting down such a plane if it entered Cuban air space, which is legal. Moreover, Cuba had protested the prior BTTR flights to the U.S. authorities and asked the U.S. to stop such flights. Finally Hernandez had been in U.S. jail and prison for over 16 years, which is a significant punishment. Therefore, it should be possible to understand that he is not as evil as suggested by his being labeled as a convicted murderer or as a convicted murder conspirator.

The other two–Guerrero and Labañino–after 16 years in jail and prison were nearing the end of their sentences, and the commutation of their sentences to time served seemed to be less controversial to the Cuban-exile community in Florida.  They already had served their sentences in substantial part.

For this blogger, I see the commutation of the sentences of Hernandez and the other two Cubans and their release from U.S. prison and  return to Cuba as the price that had to be paid by the U.S. in order to obtain Cuba’s simultaneous release of the U.S. spy from Cuban prison. He was Rolando Sarraff Trujillo, a Cuban who was a cryptologist in Cuba’s Directorate of Intelligence. He had provided U.S. officials with the codes being used by the Cuban Five and the other members of the Wasp Network that lead to their being arrested in 1998. (Mazzetti, Schmidt & Robles, Crucial Spy in Cuba Paid a Heavy Cold War Price, N.Y. Times (Dec. 18, 2014); Assoc. Press, Spy’s Parents Search for Son After Cuba-U.S. Deal, N.Y. Times (Dec. 18, 2014).) Supposedly unrelated was Cuba’s simultaneous release of U.S. citizen Alan Gross. Obtaining Cuba’s releases of these prisoners and achieving the overall U.S.-Cuba agreement to normalize diplomatic relations and to start resolving the many bilateral issues that have accumulated over the last fifty-plus years are significant. These benefits alone, in my judgment, justify the commutations and releases of the last three of the Cuban Five.

Moreover, the previous discussion of the precipitating circumstances to the downing of the two BTTR planes and the deaths of their four occupants should help us see the Cuban perspective. The island was being threatened by previous BTTR flights and had raised legitimate complaints to U.S. authorities about those flights, all to no avail. As a result, the Cuban government was left to its own devices to protect itself, including trying to obtain information about future BTTR flights with the Wasp Network investigations of the BTTR in Florida. Moreover, the exact location of the planes when they were shot down was disputed with the Cubans asserting it was in Cuban territorial air space, which was legal. These considerations, in my opinion, provide additional reasons justifying the U.S. commutations and releases.

As a retired lawyer whose practice involved extensive experience in litigating civil cases in U.S. federal courts, I have a general respect for those courts and the U.S. civil and criminal judicial procedures, and  the prior discussion of the Cuban Five´s case in those courts convinces me that the Five had competent and dedicated defense lawyers. I have not attempted a review of the extensive trial record in order to reach my own conclusions on the legitimacy of the many complaints raised about that trial by the Cuban Five support network, by the U.N. Working Group on Arbitrary Detentions and by the amicus curiae briefs submitted to the U.S. Supreme Court from Nobel laureates, international human rights groups and a former U.N. High Commissioner for Human Rights and President of Ireland, Mary Robinson. Nevertheless, the mere existence of those complaints and concerns, without investigating or conceding their merits, are other factors that support, in my judgment, the commutations and releases of the three Cubans by eliminating these international and domestic irritants.

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[1] They are Antonio Guerrero Rodriguez, Fernando Gonzalez Llort (Rueben Campa), Gerardo Hernandez Nordelo (Manuel Viramontes), Ramón Labañino Salazar (Luis Medina) and Rene Gonzalez Sechweret. The “Cuban 5” website gives a lot of information about them and their case. http://www.thecuban5.org/who-are-the-cuban-5/

[2] Slip Opinions at 84-90, United States v. Campa, 529 F.3d 980 (11th Cir. June 4, 2008) (J. Kravitch, concurring and dissenting).

[3] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996.

[4] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996.

[5] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996; Rohter, Cuba Blames U.S. in Downing of Planes, N. Y. Times, Feb. 27, 1996; Crossette, U.S. Says Cubans Knew They Fired on Civilian Planes, N. Y. Times, Feb. 28, 1996; Crossette, Cuba, Citing Earlier Intrusions, Defends Downing of 2 Cessnas, N. Y. Times, March 7, 1996.

[6] Slip Opinions at 90, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008) (J. Kravitch, concurring and dissenting), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[7] Navarro, U.S. Judge Assesses Cuba $187 Million in Deaths of 4 Pilots, N. Y. Times, Dec. 18, 1997.

[8] Slip Opinions at 3-6, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[9] E.g., Cuban Five, http://en.wikipedia.org/wiki/Cuban_Five; The incredible story of five men imprisoned in the United States for fighting terrorism, Judtyicia/Justice.

[10] Id.; Atlanta and the Cuban Five: A Long March Towards Justice at 1-31 (Editora Politica: Havana, 2005)[“Atlanta“]; Fernandez, United States vs. The Cuban Five: a judicial cover-up at 1-134 (Editorial Capitan San Luis: Havana 2006)[“Fernandez“]; The Perfect Storm: The Case of the Cuban Five at 85-108 (Editora Politica: Havana, 2005) [“Storm“].

[11] Id.; Atlanta at 32-51; Fernandez at 135-82; Storm at 108-09, 149-63.

[12] United States v. Campa, 419 F.3d 1219 (11th Cir. 2005) (No. 01-17176), vacated & ordered to be heard en banc, 429 F.3d 1011 (11th Cir. 2005).

[13] United States v. Campa, 459 F.3d 1121, 1126 n.1 (11th Cir. 2006)

[14] Slip Opinions at 4, 6-63, 84, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[15] Slip Opinions at 83-99, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[16] Slip Opinions at 63-82, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[17] Campa v. United States, No. 08-987 (U.S. Sup. Ct. June 15, 2009).

[18] Anderson, Deal gives man accused in Cuban Five spy case reduced sentence, Miami Herald, Oct. 10, 2009; Urbina, Judge Reduces Sentence for One of Cuban Five, N.Y. Times, Oct. 13, 2009, ; Anderson, Cubans get reduced sentences for spying in US, Washington Post, Dec. 8, 2009; BBC News, US cuts Cuban spies’ jail terms, Dec. 12, 2009.

[19] Statement by Antonio, Rámon and Fernando: We will continue until the final victory, Granma (Dec. 9, 2009); The U. S. administration was forced to recognize that we did not endanger national security, Granma (Dec. 9, 2009).