President Obama "Free The Cuban Five"

The Honorable Barack Obama

President of the United States

The White House

Washington, D.C. 20500

                                                                                Re: The Cuban Five

Dear Mr. President:

             Greetings. We write to urge you to free Gerardo Hernández  Nordelo, Ramón Labañino  Salazar, René González Sehwerert, Fernando González Llort and Antonio Guerrero Rodríguez, collectively and popularly known as the Cuban  5.  As a Professor of Constitutional Law and a  student of the African American civil rights movement,  we trust that you will appreciate  that the trial, convictions, sentencing  and continued imprisonment of the  Cuban Five makes a mockery of the United States Constitution guarantee of due process of law, particularly the right to a fair trial. Like the defendants in Moore v. Dempsey, 261 U.S. 86 (1935),[1] the Scottsboro Nine and countless other, known and unknown Black activists, tried in the South during the Jim Crow era, the Cuban Five were compelled to stand trial in a city and before a jury pervasively infected with political hatred and prejudice against supporters of the Cuban government. [2]

            Time and time again, the Supreme Court has reiterated that: %u201CA fair trial in a fair tribunal is a basic requirement of due process,%u201D requiring not only %u201Cabsence of actual bias,%u201D but also an effort to %u201Cprevent even the probability of unfairness.%u201D[3]  Over their objections, the Cuban Five%u2019s trial was held in Miami, Florida, a city infamous as home to the most virulent and violent anti-Cuban organizations and activists in the United States. [4] From their arrest throughout their trial, local newspapers and the airwaves, carried nearly daily reports by journalists proclaiming the Cuban Five%u2019s guilt and linking them to plots as horrific as they were fictional. Even more egregiously, it has recently been revealed that many of the journalists who authored these reports were in the employ of the United States government. [5]

Moreover, during the time of the pre-trial and trial proceedings for the Cuban Five, Miami was also the site of several other high profile legal proceedings and events that generated massive publicity unfavorable to the Cuban Five, among them a city county-ban on doing business with Cuba, the arrest of a United States Immigration agent, Mariano Faget, who was accused of spying for Cuba, and most infamously the Elian Gonzalez case. [6]

            Indeed, the atmosphere was such that the United States in Ramirez v. Ashcroft, No. 01-cv-4835 (S.D. Fla.) moved for a change of venue %u201Coutside of Miami Dade County to ensure that . . . . [then U.S.  Attorney Ashcroft] . . . receive a fair trial on the merits of the case. %u201C In  Ramirez, the plaintiff, an INS employee, alleged a hostile work environment, unlawful retaliation and intimidation from his non-Latino fellow employees%u2019 resulting from the  April 22, 2002 removal of Elian Gonzalez from the United States and his return to his father in Cuba. In support of its motion for a change of venue, the government argued: %u201Cthe inhabitants of Miami-Dade-County are so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the instant case solely on the evidence presented in the courtroom.%u201D [7]

Similar to the ten Russian spies arrested in 2010, who were almost immediately deported from the United States rather than tried,[8] the Cuban Five were in essence accused of various offenses relating to their acting as unregistered Cuban intelligence agents within the United States.[9] No evidence was presented and none exists that the Cuban Five ever intended to or had posed a threat to the national security of the United States. In fact, their primary concern was uncovering and disrupting the activities of anti-Cuban terrorist groups such as Alpha 66, the Ex Club and  Commandos L.  Alpha 66, for example, was involved in terrorist attacks on Cuban hotels in 1992, 1994 and 1995, attempted to smuggle hand grenades into Cuba in March 1993 and issued death threats against Cuban tourists and installations in November 1993. In 1997, members of Alpha 66 were intercepted on their way to assassinate former Cuban President Fidel Castro. Cuba had advised the United States of the activities of Alpa 66 as well as of other groups and asked that the United States take actions against them to no avail.  

            The Cuban Five are not only Heroes in Cuba but to millions of people around the world, including many in the United States, for their contributions impeding the now more than fifty year long campaign of terror  against the  government and people of Cuba, as indicated by the over 100 people who endorsed this letter.[10]  As a result of the campaign of terror against Cuba conducted by Alpha 66 and other anti-Cuban groups more than 3,478 Cubans have been murdered and 2,099 seriously injured during the decades since the Cuban Revolution in 1959. [11]

The Cuban Five have now been in prison since 1998. Thirteen years is long enough. We strongly urge you to exercise your power pursuant to Article I, Section 2 of the United States Constitution to pardon or commute the sentences of the Cuban Five. Thank you in advance for your consideration of this letter. We await your response. 

Respectfully,

Joan P. Gibbs, Esq, ,National Conference of Black Lawyers, New York City Chapter*

Rosemari Mealy, JD, Ph. D., Author, Fidel and Malcolm X  

[1] In its landmark decision in Moore v. Dempsey, the Supreme Court reversed the convictions of six  African American men in Phillips County, Arkansas  on the grounds that a hostile and impassioned white mob had violated their right to due process of law. Prior to Moore, the Court had traditionally not interfered in state criminal court proceedings.  The six men who had faced the death penalty were subsequently freed.  See generally, Richard Cortner, A Mob Intent on Death: The NAACP and the Arkansas Riot Cases (1988); Arthur Waskow, From Race Riot to Sit-In, 1919 and the 1960s: A Study of Connections Between Conflict and Violence (1967).

[2] See generally, Mark M. Weiner, Black Trials (2004); Dan T. Carter, Scottsboro: A Tragedy of the American South (1969).

[3] In re Murchison, 349 U.S. 133, 136 (1955).

[4] See e.g., Human Rights Watch, %u201CReport, Dangerous Dialogue: Attacks on Freedom of Expression in Miami%u2019s Cuban Exile Community%u201D (1992). 

[5] See e.g., Oscar Corral,%u201D 10 Miami Journalists Take U.S. Pay, Miami Herald, Sept. 8, 2006 at A1. 

[6] See e. g., Juan O. Tamayo, Cuba toughens crackdown/'Biggest wave of repression so far this year', MIAMI HERALD, Nov. 11, 1999, at A1; Juan O. Tamayo, Castro Ultimatum/Return boy in 72 hours or migration talks at risk, MIAMI HERALD, Dec. 6, 1999, at 1A, Elaine de Valle, Fabiola Santiago, and Marika Lynch, FBI: Official in INS spied for Cuba, MIAMI HERALD, Feb. 18, 2000, at A1;  Sara Olkon, Gail Epstein Nieves, Martin Merzer, The Saga of Elian Gonzalez/Protest and Passion Spread to the Streets/Sit-ins block intersections and disrupt Dade traffic and Politicians, lawyers work to halt 6-year-old's return, MIAMI HERALD, Jan. 7, 2000 at  1A; Don Finefrock, Ban on business with Cuba tightened, MIAMI HERALD, Feb. 25, 2000, at 2A ; Jordan Levin, Miami-Dade threatens to cancel film fest grant/Cuban movie collides with county law, MIAMI HERALD, Feb. 25, 2000, at 1A;  Jordan Levin, Groups 'warned' on Cuba resolution, MIAMI HERALD, May 15, 2000, at 1B.

[7] Gov%u2019t Venue Mot., Ramirez v. Ashcroft, No. 01-cv-4835 (S.D. Fla. June 25, 2002).

[8]  See e.g., Peter Baker and Benjamin Weiser, %u201C10 Plead Guilty In Spy Ring Case As Swap Unfolds,%u201D The New York Times, July 9, 2010, at 1A; Benjamin Weiser, %u201C As the Spy Swap Was Hammered Out, a Balancing Act for Prosecutors,%u201D The New York Times, July 17, 2010, at  A17.

[9] One of the Cuban Five, Gerardo Hernandez was additionally convicted was additionally of conspiracy for murder for his alleged role in the shooting down of a Brothers to the Rescue plane by the Cuban government on February 24, 1986. However, serious doubts as to, inter alia, whether the plan was in fact over international airlines , rather than in Cuban airspace. 

 

[10] See e.g., Mauel Roig-Franzia, %u201CCubans Jailed in U.S. as Spies Are Hailed at Home as Heroes, The Washington Post, June 3, 2006; Daily Trust, %u201CNigeria; The Day Nigerians Rallied for Cubans in American Jail, Africa News, August 30, 2006; The Namibian, %u201CNamibia; Protest at U.S. Mission for Cuban Five, Africa News, July 17, 2009;  Catherine Sasman, %u201CCitizens to March for Release of Cuban Five, New Era (Windhoek), August 23, 2010. 

[11] See e.g., William Schaap, %u201CLa Demanda: The People of Cuba vs. The U.S. Govement, Covert Action Quarterly, Fall/Winter 1999, available at www.thirdworldtraveler.com/Latin _America /LaDemanda.html.