by Julie Webb-Pullman
Mar. 2, 2010
Reprinted from Scoop (NZ)

Obama Is Supporting Arbitrary Detention AND Terrorists

That conclusion is inescapable, Ricardo Alarcon, President of the Cuban National Assembly, indicated in Havana last week, referring to the five Cuban men still imprisoned in the United States, despite a 2005 decision by the United Nations Working Group on Arbitrary Detention that the deprivation of the liberty of Antonio Guerrero, Fernando González, Gerardo Hernández, Ramón Labaniño and René González was arbitrary.

“The United States has been accustomed, is accustomed, to ignore international law, to ignore the world,” he said.

In stark contrast to the international response to the September 11 attacks in the United States, and as a sad indictment of the selective consciences of member countries of the United Nations Security Council, terrorist attacks against Cuba were to all intents and purposes ignored by the international community for many decades.

“For practically half a century Cuba has been the object of terrorist paramilitary attacks coming from US territory. First we tried to persuade the US bilaterally, through an unending list of diplomatic notes and denunciations, then we tried to get the international community to act, specifically the United Nations Security Council. I personally remember after months of insistence being able to have a Security Council meeting to discuss the issues of terrorism against Cuba, to no avail. Do you know how many speakers took the floor? Two. Myself and my denunciation, and the American Ambassador to refute it. Every other member of the Security Council didn’t even open their mouth, and the Security Council did nothing.”

Faced with the refusal of either US governments or the international community to intervene, and a sustained series of bombings at tourist installations in the 1990’s causing substantial damage, numerous injuries, and the killing an Italian tourist, the Cuban government was forced to take matters into their own hands. Unlike the US with Iraq and Afghanistan, Cuba did not invade Miami, nor launch military offensives. Rather, they sent an unarmed group of Cuban agents to Miami to work with other Cuban Americans to infiltrate Miami terrorist groups in an attempt to prevent further death and destruction at home and abroad.

Alarcon is the first to admit that the men were guilty of some administrative breaches. “Of course, they did violate the US law, first of all they didn’t report to the Justice Department what they were doing. That was aggravated in the case of three of the Five because while Tony (Antonio) and René are US citizens and were born in the US, the other three were sent from Cuba, violating the migratory laws of the US with other names, with other documents because they couldn’t say who they were, they would be identified...it would have been impossible to do their work, to penetrate the terrorist groups.”

Citing the necessity defence, Alarcon pointed out that it is a fundamental legal principle that if your aim is to achieve a higher purpose, such as to preserve life, then violating or ignoring a law or rule in order to do so, may justify your action.

“There are many examples in common life, everyday life,” he explained, citing a stranger going into a private house to try to save someone’s life as an example. By trespassing in the private property they are technically violating the law, but if they do that to save life they are not considered guilty, because the technical violation of trespass is justified by the saving of a life. Similarly, the relatively minor administrative offences committed by the Cuban Five, matters that even the Court of Appeal considered caused no actual harm, resulted in the prevention of significant damage to both persons and property in Cuba and elsewhere.

“We have, like everybody else, the right of self-defence, one of the oldest principles of human civilisation, since the first light of civilisation that concept has been accepted,” he said. “The necessity defence was fundamental to the case of the Cuban Five, and is an issue still relevant now while we are talking. That was recognised at the trial of the Five, before the trial, during the trial and at the end of the trial, and it is recognised now, even now. In the pre-trial phase the prosecutors were discussing the terms of the judicial process and they themselves said, “We know that the motivation of these five individuals was to fight terrorism, terrorist acts being plotted here against Cuba.””

Nevertheless, the prosecutors and the judge prevented any discussion of terrorism against Cuba during the trial, insisting their motivations were not the issue, only their violations of US administrative law. “I am quoting the judge almost verbatim, said Alarcon: “Terrorism is bad, it should be condemned, but the terrorist acts of others do not justify, sir, your violations and your erroneous conduct.””

He begs to differ, and is backed up by a considerable weight of international law,[i] as well as common sense, or mens rea. “These terrorists had operated not only against Cuba but against Americans. They are people who have killed US citizens on US soil, and in Puerto Rico, people who have been involved in crimes in Central and in South America. On which side of the fence is the US?” he asked. “Obviously on the side of the terrorists.”

Alarcon’s view is supported by one of the more bizarre aspects of the case, the special conditions added to the supervised release following the serving of their sentences of the two US citizens, René González and Antonio Guerrero. Alarcon recounted: “They added, at the request of the government, the following: “As a special condition for his supervised release the defendant is prohibited from visiting or approaching specific places where individuals or groups such as terrorists are known to be, or frequent.” Unquote. What does that mean? That they know that there are individuals and groups that practice terrorism. They know where they are, they know who they are, yet they do nothing against the terrorists. Instead they make an order to prevent the people trying to stop their attacks from going near them. Doesn’t that mean they are specifically protecting those terrorist individuals and groups?” What happened to the A/RES/60/288[ii] principle of extradite or prosecute?

The case of Posada Carriles, mastermind of many Miami-based attacks against Cuba, provides plenty of grist for that mill.[iii]

Again, international law is on Alarcon’s side,[iv] and it raises a particularly interesting point – what standing does such a judicial order have when it is so clearly in breach of United Nations General Assembly Resolution A/RES/60/288, the United Nations Global Counter-Terrorism Strategy, which specifically demands that signatories refrain from tolerating terrorist activities, and take the necessary steps to prevent terrorism? The judge herself, and anyone enforcing her order, should surely find themselves in the dock if the US is to actually uphold this Resolution! As a lawyer, and a President purportedly intent on restoring his country’s international image following the debacle of the Bush years, one can only hope that Obama will appreciate the considerable implications of this point, not least of which is international credibility.

Alarcon says, “The proof of the pudding will be next year because [René] will be out of prison. Will this [Obama] administration continue establishing that prohibition against him? Apparently that is the case, because the resentencing process in Miami [in October and December 2009] took place with this administration and they reiterated all the conditions...the prosecutor insisted on the restrictions in order to incapacitate them and to protect their terrorists, Obama’s terrorists, who were before Bush terrorists, and Clinton’s terrorists, Eisenhower’s terrorists, all the way...”

If the facts of the case alone were not sufficient, a brief look at similar cases highlights just how arbitrary their treatment is, he emphasised.

“We’ve got Dumeisi,[v] who was found guilty of being an unregistered secret agent of the Iraq government, of Saddam Hussein, monitoring the activities of the Iraqi exile community in the United States. He was detained in 2004 in the middle of the war against Iraq. He was found guilty of such a conspiracy, of such activities, and he got three years and 10 months in prison. What he did was exactly what René González did, René was only charged with being an unregistered agent reporting to the Cuban Government, a government with whom as far as I know the United States was not technically at war, as it was at war with the Saddam Hussein regime. René got 15 years for exactly the same charges.” (More examples to come in Part II)

“The only explanation is this is political, it was a way to satisfy the Miami mafia,” said Alarcon. “Don’t forget that this case ran parallel with the Elian Gonzalez case. It is something that is missed in the media usually. At the same time that Elian was kidnapped by his so-called relatives in Miami, these Five were in the ‘hole’ in the Miami Detention Centre, detained there during those days of upheaval and street-fighting, and defiance of the Federal Government by the Miami authorities. At that very same time they succeeded in imposing the trial of the Five in Miami. That was one of the gravest prevarications of the US government, at the same time that they were forced to send a commando team to free Elian from his captors, at that time when the local authorities had defied openly the US Federal Government, they said it was the proper venue to hold the trial of the Five. Why? Because they wanted to compensate the mafia who suffered a tremendous blow with the Elian case.”

These points were not lost on the UN Working Group, who noted that the trial did not take place in the climate of objectivity and impartiality which is required and the severe sentences put the U.S. in breach of Article 14 of the International Covenant on Civil and Political Rights, to which the United States of America is a party. They requested the United States to “adopt the necessary steps to remedy the situation, in conformity with the principles stated in the International Covenant on Civil and Political Rights.” Although few expected that George Bush would trouble himself with observing U.N. Commission of Human Rights decisions, many had higher hopes of Barack Obama. Sending the case back to the same Miami judge for resentencing, and the subsequent minimal reductions in sentence length and reiteration of want can only be described as perverse release conditions, are evidence a gross lack of good faith, suggesting the United States has, indeed, “been accustomed, is accustomed, to ignore international law, to ignore the world.”

Says Alarcon: “It is a great opportunity for President Obama, it is not just talking about change. It is doing something, it’ll be by your deeds and not by your words that everybody will be judged, some day. They were wrongly sentenced, and wrongly imprisoned under harsh conditions, and they have already served almost twelve years. He can simply drop the charges or order their freedom. Nelson Mandela, like many others, spent many years unjustly in prison until the moment that [the authorities] were forced or persuaded. I don’t want to be rude with President Obama, let’s say that he may be persuaded, convinced, being a man of integrity, an honest person. But he better hurry up, because it will be more and more difficult to have a good relationship with Latin America and the Caribbean as long as this injustice continues.”

Not to mention the rest of the planet - the ten Nobel Laureates, the thousands of parliamentarians, legal and human rights organisations, U.S. notables such as Noam Chomsky and William Blum and ordinary citizens of over a hundred countries have all demanded the Five's freedom. Alarcon quotes Mrs Heck-Miller, the prosecutor at the resentencing when she addressed the judge:

“Your Honour, there is a big wave of concern around the world.”

Read Part Two for why the general U.S. public is in the dark, two wives are out in the cold, media ethics hit an all-time low, and the case of Gerardo Hernández taking incredulity to new heights.

Notes:

[i] General Assembly Resolution 60/288 The United Nations Global Counter-Terrorism Strategy Reaffirming that acts, methods and practices of terrorism in all its forms and manifestations are activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening territorial integrity, security of States and destabilizing legitimately constituted Governments, and that the international community should take the necessary steps to enhance cooperation to prevent and combat terrorism. That is precisely what Cuba, and these men as its agents, were doing.

[ii] General Assembly Resolution 60/288 II. Measures to prevent and combat terrorism

We resolve to undertake the following measures to prevent and combat terrorism, in particular by denying terrorists access to the means to carry out their attacks, to their targets and to the desired impact of their attacks:

2. To cooperate fully in the fight against terrorism, in accordance with our obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle of extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or perpetration of terrorist acts or provides safe havens;

[iii] http://www.scoop.co.nz/stories/HL0506/S00046.htm and http://www.miaminewtimes.com/2010-02-25/news/cuban-killer-luis-posada-carriles-goes-on-trial/1 and

[iv] General Assembly Resolution 60/288 II. Measures to prevent and combat terrorism

1. To refrain from organizing, instigating, facilitating, participating in, financing, encouraging or tolerating terrorist activities and to take appropriate practical measures to ensure that our respective territories are not used for terrorist installations or training camps, or for the preparation or organization of terrorist acts intended to be committed against other States or their citizens;

[v] Khaled Abdel-Latif Dumeisi, Jordanian citizen residing in Chicago, arrested January 2004 and accused of being an agent of the Iraqi Government of Saddam Hussein and not having registered as such with the US authorities. The basis of the accusations was that Dumeisi supplied information to Baghdad intelligence services about activities of Iraqi exile groups conspiring against the government of his country. The Prosecutor, Patrick J Fitzgerald, declared that Dumeisi was not accused of espionage despite supplying information to a hostile government. In April 2004, in the middle of the war unleashed by the United States in Iraq, Dumeisi was sentenced on the charges of conspiracy and as an unregistered foreign agent to 3 years and 10 months in prison. René González was sentenced to 15 years for the same charges.