Opinion: The Supreme Court will not review the ‘Cuban Five’ case

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In the behind-the-scenes maneuvering to thaw icebound relations between Washington and Havana, the Supreme Court has taken one option off the table.

The high court’s decision Monday not to review the case of the so-called Cuban Five means the men convicted by a Miami jury in 2001 of being unregistered foreign agents will languish in U.S. prison cells until and unless President Obama pardons them as part of a deal to end the 50-year-long diplomatic standoff with the communist-ruled island.

If the Supreme Court had agreed to take the case, those in the administration sounding out Cuban officials about boosting trade and easing travel restrictions could have staved off Havana’s insistent demands for the men’s release by pointing to the pending high-court review, claiming reluctance to interfere with the judicial workings.

Freedom for the “Five Heroes,” as the men are known in Cuba, is the No. 1 issue for Havana in any U.S.-Cuban rapprochement and a cause celebre for the regime’s portrayal of the United States as a hostile neighbor bent on its destruction.


Cuban authorities and human rights lawyers have cast the prosecution and jailing of the five as a political backlash by Miami’s powerful Cuban exiles after they lost the emotional custody battle over young Cuban castaway Elian Gonzalez. The 5-year-old boy who miraculously survived a voyage of escape that killed his mother and washed up on Florida shores on Thanksgiving Day 1999 was returned to his father in Cuba in 2000 over the fierce objections of Miami relatives of his dead mother.

In the Cuban Five case, a Miami judge declined to move the trial to a venue less dominated by Cuban exiles and the five were convicted of espionage, primarily for surveillance of militant exile groups. The men’s defense lawyers argued their work wasn’t spying, but rather efforts to infiltrate and avert plots by the CIA-backed groups intent on assassinating revolutionary leader Fidel Castro.

On appeal four years later to the U.S. 11th Circuit Court of Appeals, a three-judge panel agreed with the men that they couldn’t have gotten a fair trial in the supercharged atmosphere of Miami after the Elian fiasco. The full 11th Circuit later reinstated the men’s convictions, which will now stand with the Supreme Court decision to pass on the case.

Alleged ringleader Gerardo Hernandez, who was also convicted of murder conspiracy in the 1996 deaths of four pilots from the Brothers to the Rescue group for allegedly passing information that helped the Cuban Air Force shoot down the intruding aircraft, issued a statement through the Cuban parliament denouncing the Supreme Court decision. Hernandez said the court’s refusal to review the case was further evidence that “our case has been, from the beginning, a political case.”

Ten Nobel laureates and dozens of foreign parliamentarians and rights advocates had filed “friend of the court” briefs in support of the Cuban Five’s petition for a high-court review.

U.S. advocates of better relations with Cuba have been encouraging the Obama administration to consider pardoning and repatriating the Cuban Five as a gesture to Havana that could spur human rights reforms on the island and the expulsion of U.S. fugitives in Cuba.

-- Carol J. Williams

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