[News] The Cuban Five - Leonard Weinglass interviewed on this scandalous case

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The Cuban Five
Leonard Weinglass interviewed on this scandalous case
by Leonard Weinglass
January 31, 2004
<http://www.zmag.org>www.zmag.org

Leonard Weinglass, well-known civil rights lawyer representing Antonio 
Guerrero, one of the five Cuban political prisoners incarcerated in the 
United States, told Bernie Dwyer, Radio Havana Cuba, in a telephone 
interview from his office in New York, Friday 23rd that the defense team 
are feeling very optimistic about the outcome of the oral arguments hearing 
due to be held in Miami on March 10th. But he pointed out that, of course, 
the question remains, as it has from the very beginning in this case, 
whether or not the climate that exists will allow the facts and the law to 
prevail.

[Bernie Dwyer (BD)]: We are getting very close to the 10th of March, the 
date set in Miami by the 11th Circuit Court of Appeals in Atlanta for the 
oral arguments in the case of the five Cuban men imprisoned in the US. Can 
you up-date us on the work you and the other members of the legal team have 
been doing?

[Leonard Weinglass (LW)]: All five lawyers on the case are working very 
hard on the preparation of the argument. We have just, within the last two 
days, received notice from the court that our case is one of four cases 
scheduled to be heard on March 10th and, in fact, we are the last case to 
be heard on that day. This is a relatively good indication because, as we 
are the last case, it opens the possibility that we will be heard for more 
than fifteen minutes.

There is, of course, no guarantee or assurance but the possibility is now 
there. In addition we will be filing, within two or three days, a formal 
motion to the court asking them to grant us additional time because of the 
length of the trial and the size of the trial record.
Hopefully we will be given more than three minutes for each lawyer or a 
total of fifteen minutes, but it remains to be seen.

[BD]: You will have fifteen minutes to put your oral arguments. Does the US 
government have an equal amount of time to present theirs?

[LW]: The government gets equal time so the government will have fifteen 
minutes and we will have fifteen minutes. If the court expands our time to 
one hour or a half hour, it will most likely expand the time for the 
government as well.

[BD] From your previous court experience, will you get any indication 
during the hearing or immediately afterwards of the judges reaction to the 
oral arguments?

[LW] The court will reserve its decision and we will receive a formal 
written decision probably anywhere from two to four months after the 
argument. However, during the argument, you can get some indication of, at 
least, what the court's thinking is, by virtue of the questions they ask.

It's not always possible from those questions to know precisely which way 
the court will rule; however you will know what the troubling questions 
are, if any, on the court's mind.

[BD] Would you mind going over the main points of the appeal to refresh our 
memories?

[LW] There are many. Firstly, we're going to argue that the evidence on 
count 3 against Gerardo Hernández was insufficient as a matter of law to 
convict him of conspiracy to commit murder.

Secondly, we will be arguing that the evidence on count 2, which is a 
charge of conspiracy to commit espionage, was insufficient against my 
client, Antonio Guerrero and the other two who were charged with him.

Thirdly, we will be arguing that the venue should not have been held in 
Miami. This is a very powerful argument because Miami was the worst 
possible jurisdiction to hear this case. Then we will also be arguing that 
the sentences were excessive and illegal under American law. I just have to 
point out that although there was not a single page of classified 
information involved in this case, my client Antonio Guerrero is serving 
the same life sentence as some of the most notorious spies in American 
history who gave hundreds, if not thousands of pages of classified 
information to the Soviet Union. So we will be pointing out the excessive 
nature of the sentence.

There are then a number of trial issues. The prosecutor committed acts of 
misconduct, that's one issue; secondly, the defense was impeded in its 
ability to make a defense because the government wrongfully withheld 
documents, claiming they were secret, which the defense was entitled to. 
Thirdly, the government violated its own rules when it broke into the 
apartments of Gerardo Hernández and others and secretly down-loaded their 
computers, all in violation of US law.

In addition we will be arguing that the defense of necessity was wrongfully 
taken away from the defendants.
Under US law, someone is entitled, even encouraged, to break the law, if 
breaking the law will reduce the possibility of violence or physical 
damage. In this case, evidence was introduced which very clearly showed 
that the Five were attempting to reduce the violence and the physical 
damage done to Cuba by the terrorist network in Southern Florida. Therefore 
they were entitled to not register as foreign agents; they were entitled to 
carry documents that hid their identity.
These are minor infractions and the law allows a minor infraction if you 
attempting to prevent a major wrong.

That was precisely the issue in this case; the judge would not permit the 
defense lawyers to argue that to the jury. This was a wrong and we are 
going to argue this very strenuously.

So there are a number of issues in this case, all of which require a great 
deal of time and it is almost impossible to accomplish any form of justice 
during these oral arguments if we are not given more than three minutes 
each to argue our case.

[BD] One of the central points in the appeal is that Miami was the worst 
possible venue to hold the trial of the five Cuban political prisoners. Now 
the oral arguments will be held in Miami on March 10th. Will that prejudice 
the case?

[LW] We hope not. The judges, of course, are from the 11th Circuit which 
means that most of the judges, and we don't know which three we will have, 
do not come from Miami. A few do but hopefully, we will not have Miami 
judges. We might even have a judge outside of the 11th circuit; we don't 
know yet who our judges will be.

But, in the ordinary course, criminal cases out of Miami that are appealed 
to the 11th Circuit in Atlanta are heard on appeal in Miami. We thought 
that this case would be an exception because we are arguing the prejudice 
of that jurisdiction. Unfortunately, the 11th circuit decided that it would 
hold the hearing in Miami just the same.

I wouldn't say that this, in and of itself, prejudices us but I will say 
that it does indicate a lack of sensitivity on the part of the court to our 
argument against the Miami jurisdiction.

[BD]: Do you and the other members of the legal team share an optimistic 
outlook regarding the result of the oral argument hearing in Miami?

[LW]: Frankly, we had a long discussion by conference telephone call 
Thursday. We have all now read all of our papers, approximately seven 
hundred pages of written argument and we have read the prosecutors 
response, approximately one hundred pages and we are all of the opinion 
that on the basis of the written arguments that we have read, our case is 
very, very strong against the government.

And there is even some feeling that we should almost rely upon the strength 
of our written arguments versus the government's written arguments.

So we are feeling very optimistic about the state of the facts of the case 
and the state of the law. Of course, the question remains, as it has from 
the very beginning in this case, whether or not the climate that exists 
will allow the facts and the law to prevail. Hopefully it will but we feel 
very strong about the strength of the case.

[BD]: Your client, Antonio Guerrero, was moved from his prison in Colorado 
to another prison in Springfield, Illinois during the week that his mother 
was visiting him. She was not told anything until she went to make her 
final visit before returning to Cuba. Can you comment on that?

[LW]: Antonio was moved, unfortunately without prior notice while his 
mother was in Colorado visiting him from Cuba. He was taken to Springfield 
which is a medical center for all federal prisoners who require medical 
attention. I believe he is undergoing minor surgery there as well as a 
physical check-up. He will be kept there for a period of time, longer than 
he would like, but they usually keep people there for at least several 
months even though he could probable be safely returned within a matter of 
weeks.

So far as I know he is still in Springfield in Illinois.
He and I have spoken twice by phone. He is O.K. there and he is still held 
there. The only complaint I would have is that when he got to Springfield, 
they again put him in the "Hole" (punishment cell) even though he was 
traveling for medical attention and it was while he was in the "Hole" that 
he was consulted by his surgeon for the medical procedure that they intend 
to do.

I felt that was a terribly inhumane thing to do to Antonio. But, 
nonetheless, that's what they did with him for his first five days. He is 
now out of the "Hole" and hopefully he is receiving the medical attention 
he requires.

[BD]: Was any reason given why he was put in there having arrived at the 
prison for medical attention?

[LW]: No, they don't give a reason When I questioned Antonio about that, he 
said that that is their normal procedure, which is quite remarkable given 
the fact that it is a medical center and people who are brought there, and 
he was flown there, are frequently brought there for emergency medical 
treatment; this is hardly the way you would expect a medical center to 
treat people who arrive for medical care and attention.

[BD]: Olga Salanueva and Adriana Pérez, married to René González and 
Gerardo Hernández respectively, have recently been refused visas again to 
travel to the US to visit their husbands in prison. This time the US 
immigration authorities said they cannot apply for visas on humanitarian 
grounds as they constitute a threat to the security of the United States. 
Surely these grounds are exaggerated?

[LW]: Of course, there is absolutely no credible evidence that either Olga 
or Adriana or Olga's children are a threat to the United States. It is 
completely inconceivable that they could make a credible claim in that 
direction.

Secondly the issue of the rights of families to visit federal prisoners was 
addressed just within the last year by the United States Supreme Court and, 
in a remarkable ruling; the Supreme Court held quite unequivocally that if 
the United States Constitution protects any interest, it protects the 
interest of maintaining the family.

And in that case they held that an agency of the government could not break 
up a family by preventing the inmate who is in custody from maintaining a 
relationship with his spouse and his children. I feel that the Constitution 
of the United States overrides all of the other statutes including the 
immigration statutes.

So, it as a clear and fundamental violation of the United States 
Constitution to prevent this family, in Olga and Adriana's case, from 
maintaining its unity.

Furthermore, when we looked up the regulations of the Federal Bureau of 
Prisons, their regulations require that families be allowed to visit, for 
the simple reason, that the prisons have found through experience that when 
an inmate is visited regularly by his or her family, that inmate becomes a 
better inmate, less of a problem, less angry, less hostile and better for 
the institution. So, its even in the interest of the Federal Prison, as 
written in the regulation, that inmates are not only allowed but encouraged 
to see their spouses and their children because experience has shown it 
makes them a better prisoner.

So the US Constitution and prison regulation clearly favor Olga and Adriana 
being allowed to visit. In addition to that, the government of the United 
States has received a letter of protest from Amnesty International 
indicating that international law requires that an inmate be allowed to see 
his family members.
This is very clearly a requirement of humane international law. So, on both 
the international and the constitutional level they should be allowed to 
visit as well as under the regulations of the Federal Bureau of Prisons.

[BD] The US authorities seem to be fairly entrenched in their attitude and 
continue to refuse to give then visas. Is there anything that you think can 
be done about this?

[LW] We are living in a very special time. We are living in a time when the 
government is refusing to allow people who are being held in Guantánamo as 
so-called 'combatants' the right to see lawyers. Even people held in the 
United States are being denied the right to see lawyers. These are the most 
fundamental rights, and yet we find that since 9-11 that these rights are 
not being granted.

So in a certain sense, in a very terrible sense, it's not surprising that 
even the fundamental right of the family is being denied in the case of 
Olga and Adriana, because this is the new America.

This is the America that legal scholars, Deans of Law Schools, even judges, 
are now crying out against, that we are losing the basic rights that all 
people have had for two hundred years and just in the last two years we 
have been losing them.

And so, it is the arrogance of standing against international law, and even 
US constitutional law, by this administration, it's unfortunately not 
surprising, but it is part of the pattern and practice that we have been 
enduring in the United States recently.


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