FIVE reasons to stay awake

The US Court of Appeals 11th Circuit in Atlanta is busily building precedents that will no doubt be VERY useful. Because one of the things that the latest Atlanta Appeal ruling in the case of the Cuban Five makes very clear is that international territory, ie what we reasonable people consider belongs to all of us and is subject to international law, is really under the jurisdiction of the United States.

Take I. Background A. Facts on page 4 of the Appeal decision – in this section the judges state, as fact, that "On February 24, 1996, three aircraft of Brothers flew toward Cuba, but two did not return. While the planes were flying away from Cuba in international airspace, Cuban military jets shot down two of the aircraft..."

but by page 54 this has morphed into "The evidence established that the shootdown actually occurred in the special maritime or territorial jurisdiction of the United States."

Now that's a devious precedent to establish a legal basis for U.S. world rule!

Let's take a sneak preview at what a justice system on the other side of that looking glass might look like – the Five's Atlanta Appeal decision has lots of pointers, so listen up October 15ers. Try due process – that quaint custom that says that defendants have the right to be informed of the evidence against them, so that they can have a reasonable opportunity to defend themselves. The Mad Hatter really had a party with this one!

In the trial of the Cuban Five much of the evidence presented against them was obtained from searches conducted under the U.S. Foreign Intelligence Surveillance Act. As a result, the Government successfully achieved the suppression of 80% of it, claiming it as classified information – not only throughout the trial, but also throughout the two appeals processes to date.

Maths may not be my forte, but even so it seems to me that no jury could convict anyone beyond reasonable doubt of anything, when at best they can only know 20% of the evidence!! Even on the balance of probability it's gonna be seriously skewiff. But wait, this legal system has a solution! Section four of the U.S. Classified Information Procedures Act "...allows the district court to permit the government either to redact the classified information or to substitute a summary or a statement of factual admissions in place of the classified documents." Far out, not only does the government get to hide all the evidence, but it also gets to write its own little stories about what the evidence is, or was, or might have been – and no-one, least of all the defendants, can prove otherwise. These lucky guys "...can examine these redacted documents and substitutes and, if he believes that they are inadequate, move for an order compelling discovery." At the risk of sounding unreasonable, I just have to ask the question – how the hell can the defendants know whether the summaries or redactions are "inadequate", thus move for an order compelling discovery, if they are prevented from comparing them with the originals??!! Even if they did move for discovery, wouldn't the Mad Hatter just pull the 'classified information' dormouse out of the teapot again?

Do they even need to bother...on page 26 the decision says "If the government was required to disclose more about the information seized from the defendants, then the defendants who earlier possessed that information should have been able to explain to the district court why the disclosure was inadequate." Right, I get it now - the information that the court was with-holding from the defendants on pages 23 and 24 on the grounds that it is confidential, is information that the court now admits the defendants previously had in their possession – so any confidentiality is already long gone! Now that makes sense!

Just in case you still expect some logic and reason from this legal, as distinct from justice, system the judges then hasten to make it clear that mens rea, a legal yardstick to ground legal argument against what a reasonable person would accept, does not apply. They don't have to make sense or be fair, they're the government!! Tough bikkies that the Five didn't know they had to register with the Attorney General, the Government only had to prove "general intent", yet when it was the Five that might benefit from a similarly generous interpretation on page 20, the court found that they had to prove it to be "clearly erroneous". One law for the U.S. Government and another for the Cubans – one without fear, the other without favour.

To be fair, they did extend largess to those bleeding-heart liberals at the old United Nations Commission on Human Rights who in 2005 demanded the U.S. Government take necessary steps to end the Five's arbitrary detention.* Based on their opinion that none of the five men gathered classified military information while in the United States, the judges did at least vacate the life sentences of Rene Gonzalez and Antonio Guerrero, and also Fernando Gonzalez's 19-year sentence - then sent them back to the federal court in Miami for resentencing - by Judge Lenard! Only time will tell if that is the Cheshire cat we see, or a cynical sneer.....Defense attorney Leonard Weinglass wryly pointed out this is the same "Judge Lenard [who] committed errors in sentencing Fernando, committed errors in sentencing Antonio; committed errors in sentencing Ramon; committed errors in the instructions to the jury about Gerardo and, according to two of the three judges, committed errors in rejecting a change of venue." Off with her head!

There is some light at the end of the rabbit-hole – Judge
Birch's dissenting opinion that the motion for change of venue should have been granted because "The defendants were subjected to such a degree of harm based upon demonstrated pervasive community prejudice that their convictions should have been reversed" together with his recommendation that the Supreme Court address this issue, acknowledges the significance of the arguments presented by the defense, as well as the desirability of further, and higher, review.

Judge Kravitz's 16 page dissenting opinion regarding Gerardo Hernández' murder conspiracy conviction goes even further. She concluded that there was insufficient evidence, both factually and legally, to sustain a conviction for conspiracy to commit murder. As Paul McKenna, Attorney for Gerardo Hernández said at a press conference the next day, "I think there is a legal issue in the conspiracy to commit murder charge that is very complex, and may well require an en banc review...Judge Kravitch looked at the statute which requires that there be an unlawful act for there to be any basis for a murder conspiracy conviction, and she found that what was happening in this case, Cuba trying to enforce its own borders and its own sovereignty, what they were doing, what Hernández believed they were doing, was not an unlawful act."

One might even call it necessary defence!

Andrés Gómez, who represents six different Cuban-American organisations, does. He is adamant that the Cuban Five were in the United States to protect the Cuban people from terrorist acts being planned in the United States with the full knowledge of the United States Government. "This is, above all, a political case. We have been subjected here in Miami to close to 200 terrorist acts in the past 40-some years. 70 others have been committed in the New York-New Jersey area, plus almost 30 in Puerto Rico These terrorist activities have been organized by extreme right-wing organizations of the Cuban-American community. There is no doubt in anyone's mind here in Miami, that these terrorists are guilty of crimes resulting in thousands of deaths and injuries. These five men were here in order to try to stop these acts from continuing to happen. The United States is a partner in these crimes, and that is why it acted against these men. The information that is available in classified U.S. government intelligence sources affirms what I have said."

And with a start, we awaken – and realise it wasn't all a dream. We mustn't be late, we mustn't be late, on June 24 we must ask the three judges to reconsider their decision based on the errors they committed in their ruling.............

* On May 27, 2005 the Working Group on Arbitrary Detention of the UN Commission on Human Rights concluded that the detention of the Five Cubans was arbitrary, and in breach of international law.

In Opinion No. 19/2005, they noted three aspects of the detention and arrest of the Five that made their detention arbitrary:

1. The Five were held in solitary confinement for 17 months, weakening their ability to mount an adequate defense;
2. Most of the evidence against them was withheld, undermining an equal balance between the prosecution and the defense;
3. The trial was held in Miami, where it was impossible to select an impartial jury in a case linked with Cuba.

The Working Group concluded that the three elements, combined together, "are of such gravity that they confer the deprivation of liberty of these five persons an arbitrary character," noting that the trial did not meet the standards of a fair trial as defined in Article 14 of the International Covenant on Civil and Political Rights, to which the United States of America is a party.

Having issued this opinion, the Working Group requested the United States Government to adopt the necessary steps to remedy the situation, in conformity with the principles stated in the International Covenant on Civil and Political Rights. Three years later, the world is still waiting for the United States to honour its human rights obligations.

For background on the case of the Five go to http://www.scoop.co.nz/stories/HL0610/S00136.htm

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