Cuban Spy Case Poses Dilemma for U.S.

They’re known in Cuba as the Five Heroes and their faces, names and the details of their seven-year legal drama are familiar to schoolchildren and sugar cane cutters across the Communist island.

The Cuban Five, as they are known in the U.S., were convicted four years ago here in Miami of spying for President Fidel Castro and sentenced to maximum-security prisons for terms of 15 years to life. Cubans’ reaction to the case rivals the collective fury that mobilized them to demand the return of castaway Elian Gonzalez in 2000.

Since a federal appeals court overturned the quintet’s espionage convictions last month on grounds that their trial venue was tainted by fierce anti-Castro sentiments, the U.S. government must decide whether to request a retrial.

The case has been one of the most divisive issues between Washington and Havana since the five were arrested in 1998. The men admitted to being Cuban agents but have insisted throughout that they were only gathering intelligence on radical and sometimes violent exile groups to protect Castro and their Cuban homeland.

U.S. prosecutors, who contended the five were spreading disinformation, posing a threat to exiles and trying to steal military secrets because one of the men worked as a laborer at a Key West naval air station, won convictions in June 2001. The Miami federal court also found alleged ringleader Gerardo Hernandez guilty of murder conspiracy, based on allegations that he provided intelligence to Havana that led to the deaths of four Cuban exiles shot down by Cuban MIGs in international airspace in 1996.

Deemed amateurs even by some of Castro’s harshest critics here, the five, if not retried, could instead be expelled to Havana or swapped for U.S. fugitives long sheltered in Cuba, according to their attorneys and foreign policy analysts.

The 11th Circuit Court of Appeals’ reversal of the convictions of Hernandez, Antonio Guerrero, Fernando Gonzalez, Ramon Labanino and Rene Gonzalez, can also be appealed to the same court, said Alicia Valle, spokeswoman for the U.S. attorney’s office in Miami. She declined to say how the prosecution would proceed.

Last week, a group of Nobel laureates and intellectuals including Desmond Tutu and Noam Chomsky, released a letter to the U.S. government calling for the release of the five men.

Castro used the occasion of his 79th birthday on Aug. 13 to visit the family of Hernandez, who coincidentally called his wife from custody in a U.S. prison while Castro was at his Havana apartment.

“The best they could do would be to free you,” Castro told the prisoner, according to Cuban reporters who were present. Castro also warned that a retrial could prove embarrassing to the U.S. because it would allow defense lawyers to present evidence of American support for terrorism against Cuba, alluding to the case of Luis Posada Carriles, a radical anti-Castro exile accused of blowing up a Cuban airliner.

U.S. immigration authorities arrested Posada in May and charged him with entering the country illegally two months earlier. He remains detained at an El Paso facility pending a court decision on whether to extradite him to Venezuela to face trial in the airliner bombing, allegedly planned in Caracas.

Castro calls the months of indecision on extradition evidence of hypocrisy by Washington in its global war on terrorism. The 77-year-old Posada was convicted by a jury in Panama in connection with a plot to assassinate Castro in 2000 but was freed a year ago by outgoing Panamanian President Mireya Moscoso, an action that Castro claims was orchestrated by the White House.

Some Cuba analysts predict that the United States probably won’t use the appellate decision as an opportunity to advance relations with Havana. Since Washington pulled out of twice-yearly migration talks with Cuba two years ago, there are no remaining forums for official contact or dialogue between the two countries.

FBI media liaison Judy Orihuela said the agency does not maintain a formal list of wanted fugitives believed to be living in Cuba, nor has it made any requests for extraditions.

Civil rights attorney Leonard Weinglass, who represents Guerrero, one of the men sentenced to life, said the Justice Department had asked for a 30-day extension of the usual 21-day period for requesting that the appellate court reconsider its decision.

Noting that no classified documents were involved in the case brought against the five for being unregistered agents, Weinglass said he is convinced the federal prosecutors “recognize privately” the weakness of their case and that convictions would be unlikely in a more neutral venue.

“There’s never been a 93-page decision on venue,” Weinglass said of the appellate decision. “Any lawyer would say you don’t retry this case.”

Cuba-watchers at the Council on Hemispheric Affairs contend that the Bush administration is bent on maintaining the status quo of total disengagement in hopes of undermining Castro, who has held power for nearly half a century.

Larry Birns, director of the Washington-based think tank, said he has met with three Cuban diplomats since the Aug. 9 appeals court decision and “the subject came up about a political settlement or a joint release of people. They are extremely prone to negotiate a solution to this problem.”

Among the longtime U.S. fugitives in Cuba are financier Robert Vesco, convicted cop-killer and Black Power figure Joanne Chesimard and one of the FBI’s 10 Most Wanted, Victor Gerena, sought in connection with a $7-million armed robbery and hostage-taking in Connecticut in 1983. At least 70 suspected criminals are believed to be taking refuge in Cuba.

But Birns doubts any such resolution will emerge.

“This thing is so churned up by ideology and domestic politics that even though there is a compellingly rational path to a solution, the United States doesn’t want to do anything that would portray Cuba as anything but a nation of beasts,” said the director of the left-leaning think tank.

Longtime Castro critic Joe Garcia, former head of the right-wing Cuban-American National Foundation, predicts that the U.S. government will pursue a new conviction, even though the Cuban Five represent no threat to U.S. security and are of limited symbolic value because most Americans outside Cuban exile-heavy Miami know nothing about them.

“It’s impossible at this stage to just deport them,” said Garcia, now a Democratic Party advisor. “The return of these people would be a victory for Fidel.”

The Bush administration could also seek to exchange the Cuban Five for Castro’s promise to release dozens of dissidents and independent journalists jailed in Cuba, Garcia said. But that action would backfire on the Cuban opposition by linking it with the U.S. government, he added, validating Castro’s claims that his domestic critics are paid lackeys of Washington.

Moreover, Castro is not likely to give up a prominent U.S. fugitive, Garcia said. Vesco is jailed in Cuba on conspiracy charges and knows too much about Cuban government dealings to be trusted, Garcia said, and it would be politically difficult to turn over Chesimard or other Black Power radicals wanted in the United States for murder.

“Joanne Chesimard is a symbol in Cuba. To turn her over would be a betrayal of the left, and Fidel is the last leftist. It’s tough for him to give up symbols,” said Garcia.

Damian Fernandez, director of Florida International University’s Cuban Research Institute, sees little hope of the Cuban Five prompting either Havana or Washington to change their adversarial postures.

“I don’t sense either the United States or the Cuban government having the will to change the status quo. They like it the way it is,” he said. “The five are a cause celebre for Castro. For the United States, they’re a symbolic repudiation of Castro’s Cuba.”

The National Committee to Free the Cuban Five objects to the idea of using the men as political trade goods. The private support group instead has lobbied for their release without conditions.

“We feel the Cuban Five have already suffered enough,” said the group’s New York spokeswoman, Teresa Gutierrez. “As for a swap between prisoners, we don’t think that’s fair at all. It’s apples and oranges.”