Campaign News | Tuesday, 6 January 2004

Fromthe US National Committee


Dear friends:

As the year 2004 dawns, we want to update you on the struggle

to free the Cuban Five.

Wednesday, March 10 has been set by the 11th Circuit Court of

Appeals to hear oral arguments by attorneys for the Cuban Five.

The hearing will be in Miami. As the date for the oral arguments

approaches, we will advise supporters of the feasibility of

attending the hearing, after discussions with the attorneys, with

plenty of time to make travel arrangements. The Cuban Five will

not be present at the hearing. For more information on the

hearing, an interview with Paul McKenna, attorney for Gerardo

Hernandez, conducted by Bernie Dwyer of Radio Havana Cuba,

is available on the website: www.antiterroristas.cu and on our

website: www.freethefive.org

A report on the 2003 Cuban Five activities that were organized by

supporters across the U.S. is accessible on our website. The

2003 activities report gives an idea of the many actions that were

organized. If you have more to add, please write us at:


There is also an important declaration from the National

Assembly of Cuba, acknowledging support from various

Parliaments around the world, for the Cuban Five, and urging

more parliamentary actions. It is at the end of this message.

Our priority for January and February is to raise the necessary

funds and publish the full-page ad in the New York Times. We

are aiming for a mid-February publication date. An exact date is

not possible, because by giving the newspaper the choice of

date, it greatly lowers the cost of the ad. Please give generously

to this vital campaign to help break through the media blockade

in the U.S. You can make a credit card donation at

www.freethefive.org. Already, committees in Germany, England,

Australia, Argentina, Spain, and in U.S. cities like New York,

Miami, Los Angeles, Chicago, San Francisco, and Milwaukee,

have pledged thousand of dollars. But much more is needed.

On the legal front: The defense attorneys filed briefs with the 11th

Circuit Court, in April and May. Then the prosecutors handed in

their response to the defense briefs. Then, on November 17, the

court received the final papers from the Cuban Five's attorneys.

The briefs and reply from the defense total between 600 and 700

pages. The government has filed 100 to 150 pages.

The court informed the Cuban Five attorneys that they will hear

oral arguments in Miami on Wednesday, March 10. It will

probably be in the morning. The time is limited to 15 minutes,

which narrows to 3 minutes per lawyer arguing. The attorneys for

the Five intend to file a motion to the 11th Circuit Court, asking for

additional time. Whether it will be granted is not known. At the

time the trial took place, it was the longest trial being conducted

in the United States. The record is extensive, and certainly this

case merits more time for oral arguments.

The three-judge panel from the 11th Circuit who will decide the

case is to be announced around February 24. They will be

chosen from a panel of 14 to 16 judges. The briefs, as well as

the motion for a new trial (filed by Leonard Weinglass in the

Miami federal district court on November 13, 2002, and denied

by Judge Lenard, available on our website:


were consolidated into one case by the appeals court, for the

purposes of the appeal. Thus, the motion and the appeal will be

heard at the same time. This is important, because the Nov.

2002 motion for a new trial expands the court record and

strengthens the venue argument, one of the main points of


The courtroom is open to the public during the oral arguments.

Ordinarily these courtrooms are small, because appellate

procedures usually involve only the lawyers, so the courtroom is

often only large enough to seat the lawyers that day. But to the

extent that supporters of the Cuban Five are able to be present

after considerations of lawyers and family members, we will let

all their supporters know the feasibility of coming to Miami, with

time for travel arrangements. In addition, please organize

support actions in your own city around that date.

Regarding the prosecutors' response to the appeals briefs: It is

weak; the prosecutors did in their appellate briefs what they did

in the trial, they tried to impress upon whoever reads it that the

actions of the Cuban Five were harmful to the U.S., which is

absolutely false. As the Cuban Five's attorneys point out, when

the prosecutors have to argue the points of law in their response

to the defense briefs, particularly on venue, they don't spend one

sentence, for example, defending the city of Miami and the exile


There are many points of appeal in the briefs. Venue is a major

point. The Cuban Five's attorneys also argue that on count 2

(conspiracy to commit espionage) and count 3 (murder

conspiracy against Gerardo Hernandez), evidence is

inadequate. The murder conspiracy charge is an unprecedented

act by the government. The act of a sovereign country in

defending its territory has never resulted before in a prosecution.

There are a number of other issues, such as excessive

sentencing. Then there are the issues of the defense being

precluded from preparing a proper defense, the mistreatment of

the defendants -- being in the hole for 17 months, and having

their documents confiscated and not returned to them, by the

government's use of the Classified Information Procedures Act,


Other points of appeal are issues that arose during the trial, for

example, the misconduct of the prosecutors, particularly in their

final argument. There is the issue of necessity defense: After

seeing the evidence of 31 documents on the violence

perpetrated against Cuba, the court refused to give the

instruction for necessity defense. In the trial, a number of

witnesses detailed the history of the terrorist actions, to explain

the justified actions of the Five Cubans in monitoring and

preventing possible terrorist attacks on Cuba. Judge Lenard

limited the necessity defense, allowing only evidence of terrorist

attacks on Cuba from 1992 forward, even though the history of

terrorism against Cuba goes back decades. Then after hearing

the evidence from 1992 forward, she took away the right of the

defense attorneys to raise the necessity defense. This is all part

of the appeal.

Then, when the Cuban Association of Criminal Sciences

(Sociedad Cubana de Ciencias Penales) sought to file an

"amicus curiae" brief in resolving the necessity defense issue

(on April 9, 2003), the court struck the brief [the brief is

available on our website by clicking:


This is a summary sketch of the main points of appeal.

If any part of the appeal is denied, the attorneys will apply for an

"en banc" hearing, asking the entire court, the 14 or 16 judges in

the 11th circuit, to review the case. If the defense loses that, they

could ask for a petition for the Supreme Court to take the case.

Besides the legal efforts, the most important of all, for a positive

and successful outcome for the Cuban Five, is what we activists

in the progressive movement do, to mobilize, and raise public

awareness and support. This is key for us.

The attorneys for the Cuban Five have done an excellent job on

the appeals.

The rest is up to us.

The year 2004 will be critical for our brothers, who remain

steadfast while imprisoned in the United States, and whose sole

mission while in the U.S. was to struggle for peace and the

safety of their people. We urge everyone who is in support of

their fight for freedom to dedicate the coming days, weeks and

months on behalf of Antonio, Rene, Fernando, Gerardo and

Ramon to assure their return home.


National Committee to Free the Five Cuban Political Prisoners

Unjustly Held in the U.S.

From the Cuban National Assembly:



STATES The National Assembly of People's Power of the

Republic of Cuba has reviewed the development of international

solidarity - and parliamentary efforts especially - seeking to end

the enormous injustice committed against five young Cubans

who heroically risked their lives in the fight against terrorism and

in denouncing the cruel violation of their human rights, and those

of their families, perpetrated by American authorities. The

Assembly wishes to express its recognition and appreciation to

the numerous parliaments and members of parliament that, with

other organizations and peoples of the world, have joined this

noble effort.

The Assembly extended an especially warm salute to the State

Duma of The Russian Federation and the Chamber of Deputies

of Mexico, to the Women's Forum of the ACP-EU Joint

Parliamentary Assembly, the members of the Parliamentary

Conference of the Americas, and to the British, Irish, Argentine

and other parliaments for the agreements that they have reached

and the steps they have taken in this regard.

Gerardo Hernández, Ramón Labañino, Antonio Guerrero,

Fernando González and René González not only are victims of

terrorism, but they were unjustly punished for fighting against it.

To protect the terrorist groups that operate with impunity on US

soil, as numerous official documents attest to, was the objective

of American authorities, accusing and condemning these five

Cuban young men in a reprehensible trial that contradicts the

avowed "war on terrorism" and represents an insult to the

memory of the victims of 9-11.

As we approach the date when the Court of Appeals reviewing

this case must pass judgment, the National Assembly urge all

parliaments and parliamentarians to step up their efforts of

solidarity, and calls on U.S. legislators, and on all men and

women of good will in the United States - for whom our five

fellow countrymen also sacrificed themselves - to add their

voices to a demand that has an ever-growing support across the

world: the freedom of the Cuban Five.

Havana, December 23, 2003 "Year of Glorious Anniversaries of

Martí and Moncada"

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