The report regarding the case of the Cuban Five is submitted on behalf of the Center for Human Rights and Constitutional Law, an organization dedicated to protecting and promoting respect for and compliance with human rights norms and constitutional provisions intended to safeguard the rights of vulnerable groups and insular minorities. We have attempted to objectively review the critical evidence of record in the Cuban Five case and, for the first time that we are aware, synthesize the case in one comprehensive document for consideration by your Administration. Based on our review of the record, we believe there are strong grounds for humanitarian release of the remaining three members of the Cuban Five still serving federal prison sentences in the U.S. and their removal to Cuba, whether under Article II, Section 2 of the U.S. Constitution or pursuant to the well-established Presidential power to enter into Executive Agreements with other governments affirmed. E.g., American Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (“our cases have recognized that the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate ... this power having been exercised since the early years of the Republic.”)
In July 2010, this Administration authorized a prisoner swap with Russia involving ten people convicted of conspiring to act as agents of the Russian government. In announcing the swap on July 9, 2010, Attorney General Eric Holder argued that none of the ten defendants passed classified information to Russia and none were charged with espionage. The same can be said of the Cuban Five. None passed classified information to Cuba and none were charged with espionage.
The State Department’s rejection of any consideration to release the three remaining members of the Cuban Five imprisoned in the U.S. ignores several critical points: (1) The Cuban Five never gathered or transmitted to Cuba a single classified national security document; (2) under any objective standard the conviction of Gerardo Hernández for “conspiracy to commit murder” in relation to Cuba’s 1996 shoot down of two Brothers to the Rescue planes and life sentence were entirely unjustified (as explained in detail in the attached report); and (3) the three remaining members of the Cuban Five still incarcerated here have already served sixteen years in U.S. prisons, a very long period when their actual activities are considered objectively.
The Report was send to US President Barack Obama and to US Attorney General Eric Holder.
CONCLUSIONS OF THE REPORT
Gerardo Hernández, Antonio Guerrero, and Ramón Labañino have now been imprisoned for over fifteen years. They have been model prisoners. Both to correct what has been a significant miscarriage of justice in their cases, and for purposes of taking steps towards the normalization of relations with Cuba, the U.S. Government should end its incarceration of Hernández, Guerrero and Labañino, commute their sentences to time already served, and repatriate them to Cuba.
As has been seen, the U.S. Government has historically condoned the activities of anti-Castro terrorist groups in Florida which justified the Cuban Government’s deployment of intelligence officers to Florida; the U.S. Government failed to take adequate measures to block illegal BTTR flights into Cuban airspace in 1995 and 1996; the U.S. Government knew as much if not more than the Cuban Five about the dangers faced by BTTR pilots if they penetrated Cuban airspace on February 24, 1996; the Cuban Five did not receive a fair trial in Miami; the sentences imposed were unduly harsh and excessive; Gerardo Hernández’s involvement in the BTTR shoot-down was entirely inconsequential; Hernández did nothing to encourage or entice the BTTR pilots to fly on February 24; the BTTR pilots knew the risk they were taking and assumed that risk; the U.S.Government not Hernández informed the Cuban Government about the BTTR’s flight plans on February 24, 1996; Hernández had nothing to do with high Cuban military officials giving the authorization for a MiG pilot to shoot down two of the BTTR planes; the U.S. Government not Hernández tracked the BTTR planes and MiG jets in the air on February 24 on several radar systems and failed to warn the BTTR pilots that they were in danger of being shot down by the MiGs; the Cuban Five never gathered or transmitted top secret U.S. national security information to Cuba; the Cuban Five believed their primary mission was to fight terrorism.
For all of these reasons, the case of the Cuban Five should now be ended by releasing the remaining three members of the Five serving long sentences in U.S. prisons and permitting them to return home and rejoin their families in Cuba. From the standpoint of justice and sensible foreign policy, this would be the rational, moral, and humane step to take to bring this 16-year old case to an end.
Full text of the Report on the convictions of and disproportionate sentences imposed on the Cuban Five and legal frameworks available for the humanitarian release and repatriation to Cuba of three members of the Five continuing to serve prison sentences in the U.S.
http://www.thecuban5.org/wordpress/2014/07/07/cuban-5-report-from-the-ce...
