With the 12th anniversary of the imprisonment of the Cuban Five this past Sunday, renewed calls for their release throw into light difficult questions about the nuances of terrorism and international espionage.
The Cuban Five are Cuban intelligence officers currently serving jail sentences ranging from 15 years to double life in US maximum security prisons on charges of espionage and conspiracy to commit murder.
The convictions that have strained relations between the United States and Cuba for more than a decade are suspect, with advocates arguing that Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando González and René González were only in Cuba to defend the country from anti-Castro exile terrorism and did not receive a fair trial in the exile hotbed of Miami.
The case "has very profound implications for any person seeking a fair trial," said Bruce Nestor of the National Lawyers Guild, "particularly a fair trial in the current political climate in this country."
In the late 1990s, the Five infiltrated Cuban-American exile organizations that opposed the Castro government, many of which had a violent history of attacks against Cuba as part of "La Red Avispa" - the Wasp Network.
They were arrested in 1998 and sentenced in 2001 on 26 counts of spying on the Cuban exile community in Miami and US military bases, acting as unregistered foreign agents and conspiring to commit crimes against the United States.
In addition, one of the Five was sentenced to life in prison on a murder conspiracy charge for tipping two Cubans off not to fly with Brothers to the Rescue, an anti-Castro group that regularly flew planes over Cuba and dropped leaflets, the day the Cuban military shot down two of the group's planes in 1996 and killed four of its members.
However, the defense has argued that during the Five's time in the US they collected no classified data and did not enter into off-limits military bases. One of the five, Guerrero, worked in the metal shop of a US naval base in Florida and, according to his attorney, "Guerrero had never applied for a security clearance, had no access to restricted areas and had never tried to enter any."
In Cuba, the five are considered political prisoners and the Cuban government has lobbied for their release, arguing that they were not spying on the US but were working to ferret out right-wing, anti-Castro terrorists determined to hurt Cuba. Following the results of their trial, the state-run daily in Havana, Granma, responded with a front-page editorial headlined: "A Heroic Behavior in the Entrails of the Monster."
Since 1962, the US has imposed a trade embargo with the aim of toppling the Caribbean island's communist government, and after the fall of the Soviet bloc the economy went into a tailspin. The gross domestic product fell by 30 percent and most Cuban adults lost between 20 and 25 pounds.
It turned to tourism to keep its economy afloat, and when the terrorist attacks began in the mid-1990s, Castro's government pointed the finger at Cuban exile groups attempting to undermine the nation's economy.
According to reports, the Cuban government shared information with the FBI in 1998, shortly before the arrest of the Cuban Five, revealing evidence that 31 terrorist attacks were planned and took place between 1990 and 1998 in Cuba, and highlighted the money trail funding these acts. Possibly as a result and not long after this meeting, the arrests of the Five were made.
The trial of the Five came at a time of high tension with Cuba - three months after the initial arrests, three Cuban diplomats at the United Nations, a senior analyst at the Defense Intelligence Agency convicted of being a Cuban spy and a longtime professor at Florida International University were arrested, charged or expelled for alleged involvement with the Miami spy network.
But none of the cases has generated the fervor of that of the Cuban Five.
Their story has sparked an international human rights campaign, with eight Nobel laureates coming out with support and former American government officials vocally campaigning for the men's release. Some American groups and celebrities, including Alice Walker, actor Danny Glover and Noam Chomsky have publicly declared their support and the Detroit City Council even passed a resolution calling for their release.
In May 2005, the United Nations Commission on Human Rights Working Group on Arbitrary Detentions ruled that the trial fell below international standards for due process and that the United States should either retry or release them.
In Cuba, the five men languishing in jail in America are often called "The Five Heroes" or "The Five Prisoners of the Empire" and have more government billboard space on the island than any other national figure, including Che Guevara, Raul Castro, Fidel Castro and Jose Marti.
A central issue in the case for the release of the Cuban Five has been the circumstances of their trial
Robert A. Pastor, a professor of international relations at American University, who was President Jimmy Carter's national security adviser for Latin America, said, "holding a trial for five Cuban intelligence agents in Miami is about as fair as a trial for an Israeli intelligence agent in Tehran. You'd need a lot more than a good lawyer to be taken seriously."
While the Cuban Five were waiting trial, Miami's exile community was also in an uproar about Elian Gonzalez, a six-year-old boy found off the coast of Florida after a boat capsized, killing his mother and ten other refugees. The defense attorneys attempted to have the trial moved to Fort Lauderdale, but to no avail. Jury selection began in Miami for the trial seven months after Gonzalez was returned to his father, despite the objections of defense attorneys.
The spies' convictions were overturned by a three-judge panel of the 11th US Circuit Court of Appeals in Atlanta in 2005, citing the "prejudices" of Miami's anti-Castro Cubans, but the full court later nixed the bid for a new trial and reinstated the original convictions.
"It was odd," said Leonard Weinglass, Guerrero's attorney. "You have a man who was on a military base but who didn't take a single classified document and no one testified that he injured US national security, but the judge still rejects the prosecutors' request to lighten the sentence."
Weinglass persuaded the appeals court that the accused spies were not offered a fair trial in Miami, and now plans to concede a technical violation but argue that his client's actions were necessary to protect lives.
"If they are under attack, does a country have the right to send agents to another country to get the information?" Weinglass asked. "That is a major intelligence question."
Ricardo Alarcon, president of Cuba's National Assembly and the third-most-powerful political figure on the island, said the work of secret agents was part of the right of a sovereign nation to defend itself and cited banners saying "Iraq Now, Cuba Later" at demonstrations in Miami before the US-led invasion of Iraq in 2003.
As Stephen Englerberg notes in ProPublica, the discovery of a Russian sleeper cell in New Jersey this year came with many rumblings about cold-war-era intrigues, but the spies themselves were charged with relatively little.
When Alarcon was asked whether Cuba would continue to send agents to the United States, his answer was: "Yes, with a capital Y."
Guerrero also gave a passionate plea for his reasons for coming to the United States as a Cuban intelligence agent: "Allow me to explain my reasons, your Honor, in the clearest and most concise way: Cuba, my little country, has been attacked, assaulted and slandered, decade after decade by a cruel, inhuman and absurd policy. A real terrorist war.... Where have such unceasing ruthless acts been hatched and financed? For the most part, in the United States of America."
Cuba's president, Raul Castro, offered a prisoner exchange in April 2009, and Alan Gross, a US Agency for International Development subcontractor who has been held without charge since his arrest in Havana on December 3, has been touted for a possible prisoner swap.
Castro has gone as far as to say the release of the Cuban five "is very close ... very much before the end of the year."
However, the State Department has denied reports that the Obama administration is considering a prisoner swap.
"The United States is NOT considering the release of any member of the Cuban Five in exchange for Alan Gross,'' Mark Toner, director of the State Department's press office, wrote in a statement emailed to El Nuevo Herald on Thursday. "We are committed to using every possible diplomatic channel to press for Mr. Gross's release, but we will not consider a 'prisoner swap,''' Toner added. "We continue to urge the Cuban Government to release Alan Gross immediately.''
Any steps the government may take are heavily circumscribed by the five Cuban-American in Congress, who wrote that they were "seriously concerned about increasing reports that the Administration is conducting negotiations with the Castro regime'' for a swap.
"The US must be careful not to telegraph to rogue regimes that they may be able to successfully extort our government by abducting innocent Americans,'' said South Florida Republican Reps. Ileana Ros-Lehtinen and Lincoln and Mario Diaz Balart and New Jersey Democrats Sen. Bob Menendez and Rep. Albio Sires."We would hope that these reports are unfounded. However, if they are accurate, we respectfully ask ... that you immediately cease such efforts."
Wayne Smith, head of the US Interests Section in Havana under President Carter, said in a phone press conference that he had expected more progress from the Obama administration.
He had "hoped that once Bush was out of office and Obama was in, that the Obama administration would allow, in fact would encourage the Supreme Court to hear the case and I think with that the whole thing would have been thrown out. But to our great disappointment, Elena Kagan ... insisted that the Supreme Court not hear the case and so it stands as it is, with the Five still in prison, unjustly imprisoned," Smith said. "Cuba has the same effects on American administrations as the full moon once had on werewolves - we cannot deal rationally with it."