Saturday, January 31, 2009

Armchair view of the Cuban Five's Supreme Court petition

Lawyers for five Cuban agents jailed in the U.S. for more than a decade on Friday appealed to the U.S. Supreme Court, CNN reported. The 50-page petition is here. It calls the trial of the Cuban Five “the only judicial proceeding in U.S. history to be condemned by the U.N. Human Rights Commission.”

Sounds impressive, but what does it mean? It means that the U.N. Working Group on Arbitrary Detention criticized the trial. And what is the working group? It's five independent experts that the commission appoints each year.

The working group studied the Cuban Five's trial in 2005. The five experts that year were:
Manuela Carmena Castrillo (Spain)
Soledad Villagra de Biedermann (Paraguay)
Leïla Zerrougui (Algeria)
Tamás Bán (Hungary)
Seyed Mohammad Hashemi (Islamic Republic of Iran)
These experts studied the case and issued a five-and-a-half page opinion in 2006. Then the Human Rights Commission adopted the opinion. So when the petition says the commission condemned the trial, you can trace that to the opinion of five human rights experts from Spain, Paraguay, Algeria, Hungary and Iran. Then lawyers for the Cuban Five take that and do what lawyers usually do: They hype their case. They stretch. They spin.

I'm not saying the experts' criticisms aren't justified, but spin is also at work.

Other thoughts:

1. The petition says the Cuban Five could not receive a fair trial in Miami.
At the time of petitioners’ trial, there were more than 700,000 Cuban-Americans living in Miami. Of those, 500,000 remembered leaving their homeland, 10,000 claimed to have had a relative who was murdered in Cuba, 50,000 reporting having a relative who was tortured in Cuba, and thousands were former political prisoners.
Just before the district court held oral argument on the question of venue, the Miami area was convulsed by the largest public demonstration in the city’s history with over 100,000 persons in the streets shouting anti-Castro slogans. Prospective jurors had recently witnessed anti-Castro groups turn parts of Miami into an armed camp in an effort to prevent federal agents from executing a court order to return
Elian Gonzalez to his father.
The lawyers write: "It is hard to imagine a stronger case for a change of venue than this case."

I am sold on that point. A change of venue should have been granted.

2. The petition also says the prosecution wasn't blind to race when selecting jurors and "used seven of its eleven peremptory challenges to strike black members" of the potential jury. Prosecutors evidently thought blacks would be more sympathetic to the defendants. In the end, three blacks wound up on the 12-person jury and the defendants were convicted anyway.

My guess is that lawyers for the Five are right on this point, but it doesn't seem like the kind of thing that would get the Supreme Court's attention. Then again, I'm not a lawyer.

3. Raul Castro has said he'll trade some 200 political dissidents jailed in Cuba for the Cuban Five. The dissidents would have to leave Cuba and go to the United States. I can see why Raul Castro would like the idea. He could get rid of a chunk of the political opposition while welcoming back the Cuban Five as heroes. My guess is that Fidel Castro came up with the swap. Over the years, he's been both creative and audacious. One problem with the trade is that U.S. presidents aren't accustomed to snatching prisoners from jail and freeing them. Sure, they issue presidential pardons. But, at least in theory, American presidents are supposed to respect judicial authority.

4. U.S. authorities might have remedied the case of the Cuban Five by simply deporting the unregistered foreign agents. That, to me, would have been an effective solution. Instead, U.S. taxpayers are shelling out big bucks to keep these Cuban agents in jail. I think time served - more than a decade at this point - is plenty.

5. The State Department has accused the Cuban government of using the case of the Cuban Five for propaganda purposes and "misinformation." That said, the Cuban agents have drawn support from around the world. And a large cast of characters, including eight Nobel Prize winners, has called for their release. You can read more about it on the National Committee to Free the Cuban Five Web site.

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