The Habeas Corpus of Gerardo Hernandez

August 23, 2012 | Havanna Times

The photos of the five Cuban agents are part of the island’s landscape. Photo: Raquel Perez

HAVANA TIMES — UN Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, officially expressed her concern over the lack of transparency and the legal procedures employed in the trials of five Cuban agents arrested in the US over a decade ago.

Apparently the prosecution and the judge played with cards up their sleeves by preventing the defense from having “access to all available evidence and documentary archives.” This was a violation of procedures so elementary that it even appears in TV series.

But the procedural mistakes don’t stop there. According to the UN rapporteur, the habeas corpus writ presented by the defense is being reviewed “by the same judge who was previously in charge of the case,” thereby making her the judge and the jury.

To top it all off, the hand of the US government can be seen in its pressuring of the courts for tougher sentences. Before and during the trial, several journalists in Miami received money to write articles against the five Cuban agents.

It really doesn’t seem legal for the executive branch to exert influence over the judiciary, nor is it very ethical for a journalist to agree to receive money from the government in exchange for writing articles to influence the outcome of an ongoing trial.

US attorney Martin Garbus says that between 1998-2001 an arsenal of propaganda was received by the Miami community through print, radio and television — paid for by the government — to interfere with the trail and to persuade the jury.

According to Garbus, fifteen journalists received money to write against the five agents. Apparently some received their funds secretly, with not even their media outlets knowing that they were working for another more generous employer. For this, one of the reporters was paid $175,000 USD.

The Office of Cuba Broadcasting (OCB) of the US government was forced to admit to the accusation when reporter Oscar Corral revealed that 50 of his colleagues in Florida were paid by government-funded Radio Marti for articles supporting the position of the US Department of State against Cuba.

The scandal was such that Jesus Diaz, the editor of the largest newspaper in Miami, fired several journalists claiming that the press can’t “ensure objectivity and integrity if any of our reporters receive monetary compensation from any entity, especially a government agency.”

Gerardo Hernandez

The head of the Cuban agents, Gerardo Hernandez, was sentenced to two life sentences. Photo: Taken from Cubadebate

Despite the harsh words of the editor, this lack of ethics and professionalism seem not to have been considered too serious because a few months later several of those journalists returned to their old jobs, writing as if nothing had ever happened.

Certainly, there have been so many legal and ethical anomalies that make it seem logical for UN Rapporteur Gabriela Knaul to look askance at the independence of the judges in this case. Just the same, one would have expected such occurrences given the place where the trial was held.

Miami is a city where Cuban exiles have enormous political, economic and media power. It was highly unlikely to obtain a fair verdict in relation to these five agents who confessed to monitoring and reporting to Cuba on the activities of [terrorist figures] within that same community.

The atmosphere in Miami surpasses even their hatred of Fidel Castro and extends to citizens who live on the island. In the largest newspaper in the city diatribes appear ensuring that any relaxation of tensions “will have to be built by the submissive Cubans living on the island.”

The island’s residents are described as “those who have endured everything, who collaborated with everything, who have beaten Cuban dissidents, those who have betrayed their compatriots, who have tortured them, who have thrown them into the sea, and who have spent fifty years filling Fidel’s Revolution Square applauding and sniffing his ass.”

But it seems that the natural environment of that city wasn’t enough for Washington, so they decided that their official information apparatus would “burn up” hundreds of thousands of dollars to further inflame the situation and create a bonfire through the press.

In such an environment, Gerardo Hernandez was sentenced to two life sentences, ensuring that he would remain behind bars even if reincarnated in another life. Now his defense is demanding a fair trial in an unbiased city and without pressure from governmental or media campaigns.

The issue is worrisome even to the United Nations, because — as American lawyer Martin Garbus has expressed — “every dollar for every article, photo or radio or television program that was spent on this secret program violated the integrity of the trial.”
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(*) An authorized translation by Havana Times (from the Spanish original) published by BBC Mundo.

Defense Team for Gerardo Hernandez Files Appeal in U.S. Court

 Aug. 20, 2012 cadenagramonte.cu

Miami, August 20.- The defense team for Gerardo Hernandez, one of the five Cuban anti-terrorists sentenced to long prison terms in the United States, filed an appeal today in Miami to overturn his conviction.

Attorney Martin Garbus introduced the 82-page affidavit in the U.S. District Court in Miami, to support the habeas corpus appeal for Gerardo and the reversal of his conviction, citing misconduct by the U.S. Government during the trial.

Gerardo, sentenced to double life plus 15 years, was detained in September 1998 along with Rene Gonzalez, Ramon Labañino, Antonio Guerrero and Fernando Gonzalez, for monitoring violent groups in Miami that were organizing and carrying out actions against the island.

Through the affidavit, the defense team asks the court, on behalf of Gerardo, to order discovery from Washington of evidence that reveals payments to journalists to create a hostile atmosphere and influence the jury for a conviction.(Taken from Radio Havana Cuba)

U.S. Blocks Consular and Legal Visits of Gerardo Hernandez Nordelo

July 13, 2012 by ICFC5

This page is also available in: Spanish

Once again an additional punishment has been inflicted upon Gerardo Hernandez Nordelo, one of the Cuban 5 anti-terrorist fighters unjustly imprisoned in the United States for almost 14 years. On Saturday July 7 Cuban consuls  were not allowed to enter the prison  and on Monday July 9 his lawyer, Martin Garbus, was also denied a legal visit  having to resort instead to enter as a regular visitor. This meant that Garbus could not enter the prison with any legal documents for Gerardo’s current appeal or any pens or writing paper.

The International Committee for the Freedom of the Cuban 5 denounces this new arbitrary measure against Gerardo. It seems that it is not enough for the US government to keep 4 innocent men in prison and another under a punitive supervised probation, now they add more impediments to elementary legal and human rights.

We also demand the US government  grant immediate visa to Adriana Perez to visit Gerardo in prison and to allow Rene Gonzalez to immediately return home to his loved ones.

Statement by the Ministry of Foreign Affairs of Cuba 

One of the five antiterrorist fighters unjustly imprisoned in the United States, Hero of the Republic of Cuba, Gerardo Hernández Nordelo, has been subject  of a new arbitrariness by the authorities of that country, aiming at hindering his legal process.

Last Saturday, July 7th, the Cuban officers who had been already authorized by the State Department to carry out a consular visit to Gerardo, were not able to fulfill it, under the supposed argument that the memorandum of the Chief of the penitentiary center Victorville, in California, authorizing their entrance to the prison, was not available at the reception desk. This fact powerfully calls the attention  when, in addition to the procedures followed by the Cuban Interests Section in Washington with the State Department to get the authorization for this visit, Gerardo himself had reconfirmed with the prison´s authorities that everything was in order.

Additionally, last July 9th, lawyer Martin Garbus, member of Gerardo´s defense team, who had scheduled a legal visit to review, together with Gerardo, the documentation related to the current collateral process of appeal, was not able to do it with the same pretext that the memorandum of authorization of the chief of prison was not at the reception desk. Garbus could finally visit Gerardo, thanks to the fact that his name was on the visitor´s list; however, and given the conditions imposed to the type of visit he was authorized to, without a legal character, he could not bring in the documentation our Hero should read and sign, and neither met with him under the appropriate conditions.

This is not the first time events like this one occur. They have taken place systematically during every key moment of Gerardo´s legal process. Just to mention a few examples: in 2010, during the preparations of the collateral appeal, known as Habeas Corpus, the penitentiary authorities denied Gerardo the possibility to be visited by his lawyer Leonard Weinglass in two occasions, and deliberately delayed the delivery of his legal mail, which prevented his participation in the reviewing. In 2003, Gerardo was isolated in a punishment cell prior to the presentations of his direct appeal.

The Minister of Foreign Affairs denounces this new maneuver by US authorities, aiming at hindering Gerardo´s process of appeal, depriving him from one of the few rights he has as a prisoner in the United States.

Gerardo has been sent to solitary confinement several times without justification; he´s had repeated difficulties with his personal and legal mail; his wife, Adriana, has not been granted visa to visit him and they have not been able to conceive a child. During his long and unjust imprisonment, on charges for crimes he did not commit and have never been proved, his rights have been violated repeatedly.

Cuba will not stop denouncing to the world these violations and will not cease the efforts to achieve the return to the Homeland of Gerardo and his other four brothers unjustly imprisoned and retained in the United States for almost 14 years.

Havana July 12th, 2012

United States Rejects Petition of Anti-terrorist Gerardo Hernandez

Monday, 09 July 2012 cadenagramonte.cu

Havana, July 9.- The Attorney General’s Office of the US state of Florida expressed the Miami court its rejection of the request issued by lawyer Martin Garbus, on behalf of Cuban antiterrorist Gerardo Hernandez, of an oral hearing and access to additional information that allowed a deeper probe into the case of “journalists”, who were paid to act before and during the trial against the five Cuban antiterrorists in order to create what was described in 2005 by the Appeals Court as a perfect storms of prejudices and hostility.

In an evidently evasive maneuver, the US government tries to argue that the facts presented by the defense do not exist and that it is not necessary to look for more information in order to clarify them, according to the Antiterroristas.cu) website.alt

The government told Judge Joan Lenard that the denunciation by the defense about the behavior of the “journalists”, who Lenard herself admitted to have threatened and harassed the jury, is but conspiracy and generalized speculation.

The Attorney General’s Office warned that it could resort to “executive privileges” and to the Classified Information Protection Law to reject the petition, which is the same as admitting its intention to keep hiding and manipulating the proofs.

The government office also rejected the oral hearing requested by Gerardo Hernandez.

Gerardo Hernandez, along Rene Gonzalez, Antonio Guerrero, Fernando Gonzalez, and Ramon Labanino, were given unfair and extremely long sentences on charges that were not proven, after they monitored Florida-based ultra-right organizations that have undertaken terrorist actions against Cuba over the past five decades. (Taken from Radio Habana Cuba)

Gerardo Hernandez - The View From Victorville Prison

Weekend Edition June 8-10, 2012 Counterpunch

by DANNY GLOVER and SAUL LANDAU

We visited Gerardo Hernandez for the fifth time and, as usual, his spirits seemed higher than ours despite the fact that he resides in a maximum-security federal prison.

Gerardo and three other Cuban intelligence agents approach their 14th year of incarceration – each in different federal penitentiaries. Rene Gonzalez, the fifth Member of the Cuban Five, got paroled after serving thirteen years, but not allowed to leave south Florida without permission for another 2½ years.

The uniform, given to Gerardo earlier in the day, looks three sizes too large. But the ill-fitting tan jumpsuit doesn’t affect Gerardo’s smile or the warm embrace of his hug when he greets us.

He had watched some of the recent CNN “Situation Room” shows in which Wolf Blitzer interviewed a variety of actors – Secretary of State Hilary Clinton, Victoria Nuland (Press agent at State), Alan Gross (convicted of anti-regime activities in Cuba) and Josefina Vidal (US desk chief in Cuban Foreign Ministry). They presented views on the justice or injustice surrounding the cases of Gross and the 5.

Cuba sent the 5 to south Florida in the 1990s to stop terrorism in Cuba because that’s where the planning for bombings of hotels, bars and clubs took place, he explained. In 2009, “Gross came to Cuba as part of a US plan to push for “regime change,” Gerardo asserted.

Gross sounded desperate when he talked to Wolf Blitzer on CNN’s Situation Room. He described his confinement in a military hospital: “It’s just like a prison, with bars on the windows.” Did he forget he received a fifteen-year sentence?

For Gerardo, bars, barbed wire, electronically operated, heavy metal doors, and guards watching and periodically screaming commands describe routine daily life in the Victorville Federal Prison.

Gerardo eats a pink slime sandwich, which we bought at the visiting room’s vending machines and popped into the microwave. We munch on junk food – all bought from the same sadistic apparatus offering various choices of poisons.

Other prisoners, mostly sentenced for drug dealing, sit with wives or women companions and kids under the watchful eyes of three guards seated above on a platform. The uniformed men chuckle and exchange prison gossip; we talk about Gerardo’s case.

The Miami federal judge condemned him to two consecutive life sentences plus fifteen years for conspiracy to commit murder and conspiracy to commit espionage must get to him. Gerardo became a victim of the strange notion of US justice in Miami where the US prosecutor presented not a shred of evidence to suggest Gerardo Hernandez knew about Havana’s plan to shoot down two planes flying over Cuban air space (“murder”); nor that he had any control over, or role in what happened on February 24, 1996 when two Cuban MIG fighters rocketed two Brothers to the Rescue planes and killed both pilots and co-pilots – just as Cuban had warned the US government it would do if the illegal over-flights continued.

Indeed the evidence paints a very different picture of what Gerardo Hernandez really knew. Cuban State Security would hardly inform a mid level agent of a decision made by Cuban leaders to shoot down intruding aircraft after he had delivered a series of warnings to Washington.

In fact, as a new Stephen Kimber book shows, “the back-and-forth memos between Havana and its field officers in the lead-up to the MIG jets firing rockets at the Brothers’ planes make it clear everything was on a need-to-know basis—and Gerardo Hernandez didn’t need to know what the Cuban military was considering.” (Shootdown: The Real Story of Brothers to the Rescue and the Cuban Five. Available as an ebook)

Gerardo, like the Cuban government, insists the Brothers’ planes got shot down over Cuban airspace, not in international waters as Washington claims. But the National Security Agency, which had satellite images of the fatal event, has refused to release them.

The Brothers’ planes had over flown Cuban airspace for more than half a year (1995-6) before they got blown out of the sky. Cuba had alerted the White House several times, and a National Security Counsel official had written the Federal Aviation Authority to strip the Brothers’ pilot licenses – to no avail.

The Cuban intelligence agents that had infiltrated Brothers to the Rescue had informed Havana that Jose Basulto, the Brothers’ chief, had successfully test fired air-to-ground weapons he might use against Cuba. For Cuba, the Brothers had become a security threat.

The NSA documents, however, never arrived at the trial, nor did Gerardo’s lawyers get them for the appeals.

Gerardo’s case for exoneration for conspiracy to murder rests on establishing one simple fact: if the shoot downs occurred over Cuban airspace no crime was committed.

On conspiracy to commit espionage, the government relied on Gerardo’s admission that he was a Cuban intelligence agent rather than seek evidence to show he tried to get secret government documents or any classified material. Gerardo’s job was to prevent terrorist strikes against Cuba by exiled Cubans in Miami, not penetration of secret US government agencies.

Justice in the autonomous Republic of Miami led five anti-terrorists to prison. Gerardo smiles, perhaps his way of telling us he remains convinced he did the right thing, meaning he has stayed true to his convictions. We wonder if we could endure fourteen years of maximum-security confinement.

DANNY GLOVER is an activist and an actor.

SAUL LANDAU’S ”WILL THE REAL TERRORIST PLEASE STAND UP” screens at San Francisco’s Brava Theater (24th & York) on June 8, 7:30.