Peter Schey is the President and Executive Director of the Center for Human Rights and Constitutional Law.
The Center is dedicated to the protection and promotion of fundamental civil liberties and human rights through major class action litigation,direct legal services, education, training and the presentation of petitions before international forums.
The Center serves as a resource to social, legal, religious and community-based groups throughout the United States and in other countries involved in civil and human rights advocacy.
March 5, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Dear President Obama,
I know that you are aware of the case of Cuban Five - Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González. I am writing to urge you to consider their release and return to Cuba, something you can accomplish under your executive powers. These men have been imprisoned in the United States for more than fourteen years. It is undisputed that they were Cuban intelligence officers whose primary purpose was to monitor U.S.-based groups that had engaged in terrorist or criminal acts against Cuba and Cuban civilians. Their sentences are unusually harsh given that nothing they did involved any significant threat to the national security of the United States. There is no question that the outcome of their cases may be very significant with respect to future U.S.-Cuba relations and progress on the goals both the U.S. and Cuban Governments have expressed.
The Cuban Five were primarily engaged in what the Cuban Government and the Five considered "counter-terrorist" activities, penetrating groups like Alpha 66, the F4 Commandos and Brothers to the Rescue. Military experts at their trial, including your current Director of National Intelligence, James Clapper, testified that the Cuban Five presented no substantial threat to national security. One member of the Five worked construction at a naval air station in Key West and did pass on information largely available to people without security clearances and not deemed particularly significant to the national security. But the record makes clear that the vast majority of the Cuban Five efforts were aimed at monitoring the activities of a small number of groups in Florida whose leaders had amply demonstrated their willingness to engage in illegal activities, at minimum, or terrorism, at worst, in pursuit of their objective: The overthrow of the Cuban Government.
The Center for Human Rights and Constitutional Law is extremely concerned with the grave injustice involved in the case of one of the Cuban Five, Gerardo Hernández, serving a life sentence in a federal high security prison for a conspiracy to commit murder conviction related to the February 24, 1996 downing by the Cuban military of two planes of the Brothers to the Rescue (BTTR) resulting in the deaths of four members of that group. The shoot down was the culmination of over twenty-five illegal flights by BTTR pilots into Cuban airspace in the twenty months leading up to the event. As discussed in detail below, Gerardo's sentence to "life" in a U.S. prison is grossly unjust for at least five reasons:
Gerardo did absolutely nothing to encourage or persuade the BTTR pilots to penetrate Cuban airspace where two planes were shot down.
The U.S. Government had far more warning and more details about the planned shoot down than Gerardo ever possessed.
The U.S. Government easily could have stopped the BTTR flights and avoided the shoot down while there was nothing Gerardo could have done to stop the BTTR flights or the shoot down.
Neither the U.S. Government nor Gerardo had the slightest idea that a shoot down would take place in international airspace (as the U.S. Government believes it did), and
The U.S. Government, not Gerardo, told the Cuban Government that the BTTR planes were taking off from Miami and could be heading for Cuban airspace on the day of the shoot down.
Under these circumstances, regardless of the technicalities of U.S. law as interpreted by the Eleventh Circuit Court of Appeals that may permit a "conspiracy" conviction to stand, a life sentence is extraordinarily disproportionate to Gerardo's absolutely insignificant role in any aspect of the 1996 shoot down. He had as little role in the BTTR shoot down as a U.S. intelligence agent based in Islamabad has in deciding when and where drone strikes will take place in Federally Administered Tribal Areas along the Afghan border in Northwest Pakistan.
By way of background, Brothers to the Rescue had repeatedly filed false flight plans with the Federal Aviation Administration (FAA) since 1994.MiG pilots had previously encountered BTTR's planes in Cuban airspace. BTTR leader Jose Basulto would communicate by radio with the Cuban pilots, ignore their warnings, and urge them to defect in their planes, an act that would obviously be criminal under Cuban law (as it would under U.S. law if a pilot defected to Cuba in a A-10 Thunderbolt II). Mr. Basulto is known for having engaged in various activities intended to overthrow the Cuban government. Trained by the CIA in intelligence, communications, explosives, and sabotage, he returned to Cuba posing as a physics student to help prepare for the Bay of Pigs Invasion, later infiltrated Cuba to sabotage an alleged missile site, and in August 1962 took a boat to Cuba and fired a 20 mm cannon at a hotel (Rosita de Ornedo) filled with tourists.
In 1995, Basulto and the BTTR publicly announced their new plan to commit "civil disobedience" within Cuban territorial waters. Cuba prepared to encounter the BTTR planes with MiGs. The U.S. State Department issued a weak warning to BTTR that its planes should not violate Cuban airspace. Disregarding the U.S. Government and Cuban law, on July 13, 1995, BTTR pilots again filed false flight plans and flew four planes into Cuban airspace. As Basulto and his cohorts entered Cuban airspace, Havana Air Traffic Control warned the planes to leave. Despite the presence of MiGs circling the BTTR planes, Basulto and the other pilots chose to ignore the warnings. In fact, at great risk to himself and Cuban civilians, Basulto kept flying towards downtown Havana and then buzzed the city at a low altitude for 13 minutes dropping nearly 20,000 leaflets.
The Cuban Government took restrained steps immediately after this incident forwarding a letter to the U.S. Federal Aviation Administration notifying it of the violations of the Cuban aeronautical laws committed by BTTR on July 13, 1995. The Cuban Government's letter specifically warned that the U.S. Government's failure to stop BTTR pilots from illegally entering Cuban air space "may bring grave consequences," and requested that the FAA promptly undertake "whatever measures are necessary" to insure that the illegal flights into Cuban air space and over Havana's rooftops be halted. Indeed, the Cuban Government made very clear that if the BTTR flights continued to illegally invade Cuban air space, "[the] aircraft [may be] downed."
Gerardo Hernandez had nothing to do with the BTTR continuing to illegally invade Cuban sovereignty, or the Cuban Government's response. He never encouraged the BTTR pilots to violate Cuban airspace, he never suggested that they enter Cuban air space, nor did he possess any influence to stop them from doing so. The Cuban Government obviously discouraged BTTR's intrusion into Cuban airspace by warning that this conduct may have grave consequences going forward.
The United States Department of State next issued a statement warning the BTTR pilots to stay out of Cuban airspace. The statement repeated the Cuban Government's position that it could shoot down aircraft illegally penetrating its airspace and stated that "[t]he Department takes this statement seriously."
Despite the warnings issued by both Cuba and the United States, it appears that neither U.S. intelligence agencies, the Department of Justice, nor the FAA took any effective steps to block Basulto and his BTTR pilots from continuing their illegal, provocative and dangerous unauthorized flights into Cuban air space.
In January of 1996, BTTR escalated its invitation of confrontation with the Cuban Government by dropping nearly 500,000 leaflets near Havana. Obviously aware of the dangerous confrontation they were inviting and maybe even hoped for, the BTTR pilots made a videotape they left behind in case the pilots did not return.
On January 15, 1996, Cuba once again sent a letter to the FAA, informing the U.S. Government of the BTTR's violation of Cuban airspace on January 13th and again making clear that the BTTR pilots should be prepared to face "serious consequences" if they continued their illegal breaches of Cuban airspace. Again, Cuba appealed to the United States to adopt the necessary measures to prevent BTTR planes from violating Cuban airspace.
Gerardo Hernandez had nothing whatsoever to do with BTTR's decision to leaflet Cuba by plane in January 1996, or Cuba's response to that incident. Nor of course was Gerardo in a position to compel the U.S. Government to take any action against the BTTR pilots.
Shortly after the Cuban Government warned the United States Government that grave consequences would follow if the BTTR continued to illegally invade Cuban airspace, and the U.S. Government warned the BTTR pilots, Gerardo Hernandez was basically told the same thing (though in less detail). In mid-February he received a message from Cuban authorities that Juan Pablo Roque and René González, the two men who had infiltrated the BTTR, should not fly with BTTR from February 24 through 27 because there could be a "confrontation" on those dates. The U.S. Government and the BTTR pilots also knew that a confrontation may take place, and unlike Gerardo, had been warned this could involve a mid-air shoot down.
BTTR leader Basulto has publicly testified that he was aware of Cuba's warnings "for a long time," and that he and the other pilots all knew a consequence of entering Cuban airspace could be a shoot down.
On February 24, 1996, I understand that the FAA, not Gerardo Hernandez, informed the Cuban Government that three BTTR planes had left Miami and may again illegally enter Cuban airspace. So again, the U.S. Government appears to have greater involvement and responsibility than Gerardo for it is the U.S. Government, not Gerardo, who informs the Cuban Government that the BTTR planes are taking to the air.
It is undisputed that Gerardo Hernandez had nothing to do with the BTTR's decision to fly planes that day towards Cuba. He did not encourage or solicit them to do so, nor did he have any power to stop them. Only the U.S. Government could have stopped them, if it wanted to.
As the planes approached Cuba, they were clearly warned that they were "in danger" and that they were flying into an area that was "activated." Gerardo had nothing to do with Cuba activating the airspace. This was obviously a decision made in Cuba. Basulto ignored Cuba's warnings as his plane flew into Cuban territory. Whether the other two planes entered Cuban territory is disputed. Cuba believes they did; the U,S. Government believes they did not. Gerardo, of course, has no independent way of knowing whether all three BTTR planes entered Cuban airspace or not.
Two planes were shot down by a Cuban MiG. When the shoot down occurred, Basulto's plane was 2.1 miles into Cuban territorial airspace. Based on its radar data, the Cuban Government has argued that the shoot down took place in Cuban airspace. However based on its own radar data and eye witness accounts, the U.S. Government believes the shoot down took place in international airspace, and therefore constituted murder.
At bottom, it appears the U.S. Government knew more than Gerardo knew about Cuba's plans before the shoot down.
It also appears that the U.S. Government, not Gerardo Hernandez, was in a position to avoid a confrontation by grounding the BTTR pilots or suspending their licenses, something Gerardo had no control over.
In addition, U.S. radar operator Major Jeffrey Houlihan and a Senior Director Technician at the Southeast Air Defense (SEADS), both observed the BTTR planes heading to the Cuban Air Defense Identification Zone, observed one of the planes penetrate Cuba airspace by at least three nautical miles, and observed MiGs launched from Cuba circling the BTTR planes, yet no effort was made to communicate with the BTTR pilots to leave the area or to scramble U.S. planes to intervene. At bottom, while the U.S. Government was observing the events unfold, and taking no steps to prevent a shoot down, Gerardo had no idea what was taking place.
After the shoot down a communication to Hernandez from Cuban officials stated: "We have dealt the Miami right a hard blow in which your role has been decisive." A response from Hernandez observed: "[T]he operation to which we contributed a grain of sand ended successfully." Finally, the head of the Directorate of Intelligence recognized Hernandez "[f]or outstanding results achieved on the job ..." None of these communications indicate that Hernandez-or anyone else in the U.S. Government-anticipated that the shoot down, if one took place, would occur in international airspace. Indeed, records indicate that these communications involved the long-planned successful operation to have Cuban intelligence agent Juan Pablo Roque return safely to Cuba on February 23, 1996, not "Operación Escorpion" involving the BTTR flights over Cuba.
How to respond to illegal and often dangerous invasions of its airspace by pilots calling for the overthrow of the Cuban Government, was a complex question decided by high level authorities in Cuba, not Gerardo Hernandez. The complexity of the issue is demonstrated by the executive authority called for in the U.S. Justice Department's "white paper" on "targeted killing," made public last month, that justifies under international and domestic law the president's (or other "informed, high-level" administration officials') decision to order the execution of persons abroad by drone strikes if such persons are believed to be "involved in planning terrorist attacks against the United States." Your Administration would never leave such decisions to an intelligence officer working abroad, and Cuba certainly did not leave the decision about how to respond to the BTTR flights to Gerardo Hernandez. They never even consulted him on the question.
The Court of Appeals that affirmed Gerardo's conviction was divided, with one judge finding the evidence was inconclusive and concluding that the conspiracy to commit murder conviction should be reversed. A second judge upheld the conviction but acknowledged that with all the technicalities involved, it was a "close" question whether the conviction was valid. The third judge found, based on numerous technicalities in the law (as interpreted by the Eleventh Circuit Court of Appeals), requiring a lengthy and complex explanation in his written decision, that a conspiracy to commit murder conviction could be affirmed.
However, regardless of the legal technicalities that may arguably support a conspiracy to commit murder charge under U.S. law as interpreted by the Eleventh Circuit Court of Appeals, it is undisputed that (1) Gerardo's involvement in the shoot down was absolutely minimal, (2) he did nothing to encourage the BTTR pilots to illegally penetrate Cuban airspace, (3) he had nothing to do with the decision to shoot down the BTTR planes, (4) he knew less about what was planned by the Cuban Government than the U.S. Government knew, and (5) there was unquestionably far more that the U.S. Government could have done to avoid the shoot down than Gerardo could have done. In this context, Gerardo's life sentence for "conspiracy to commit murder" is extremely harsh, undeserved, and fundamentally unjust.
The principle of proportionality--that the punishment should be proportional to the seriousness of the crime--is a fundamental tenet of domestic and international human rights law. This principle is embodied in Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The principle of proportionality is also a cornerstone of international criminal law. Under Article 77 of the Rome Statute of the International Criminal Court, a term of life imprisonment is permissible but must be "justified by the extreme gravity of the crime and the individual circumstances of the convicted person."
In addition to the entirely unjustified severity of Gerardo's sentence, I should also point out that the validity of his underlying conspiracy to commit murder conviction is highly questionable. Clearly there is no defense to a country shooting down a civilian plane in international airspace when the civilian plane does not pose an imminent threat to the safety of others. On the other hand, it is probably true that a country may lawfully shoot down a civilian plane that has repeatedly and illegally invaded its airspace, dangerously buzzed its capitol, refused repeated warnings to cease its illegal activities, and openly encouraged the overthrow of the country's government. Yet at Gerardo's trial the United States offered no evidence-for none exists-showing that Gerardo entered into a "conspiracy" (i.e. an agreement) with the Cuban Government to shoot down the BTTR planes in international airspace. In fact, the United States failed to prove that Gerardo entered into an agreement to shoot down the planes at all. As discussed above, the only thing Gerardo knew was that there could be a "confrontation" with the BTTR planes, less information than the United States Government had in its possession.
For all of the reasons discussed above, we urge you to give serious consideration to exercising your Executive powers to authorize (1) declassification of all U.S. records regarding the BTTR shoot down, and (2) Gerardo's release from prison and return to Cuba. Doing so would not only show the U.S. Government's commitment to proportionality in sentencing and equal and fair justice, it may also be a significant step contributing to the process of normalization of relations between Cuba and the United States, something supported by the vast majority of Americans and countries around the world.
I look forward to a response from your Administration on this issue. Thank you for your consideration.
Center for Human Rights and Constitutional Law
ccs: U.S. Senator Patrick Leahy
U.S. Senator Jeff Flake
U.S. Senator Sherrod Brown
U.S. Senator Debbie Stabenow
U.S. Senator Sheldon Whitehouse
U.S. Congressmen Jim McGovern
U.S. Congressmen Chris Van Hollen
James Robert Clapper, Jr., Director of National Intelligence
For more information about the Cuban 5 visit www.thecuban5.org
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