Attorney Arthur Heitzer has practiced civil rights and employment law in Milwaukee, WI since 1975, where he has repeatedly been named among the “Best Lawyers,” as well as having been listed in Who’s Who in American Law and among Super Lawyers. He is an honors graduate of both the University of Wisconsin Law School and of Marquette University, where he was elected president of the student body and helped lead a movement against institutional racism which resulted in creation of the Educational Opportunity Program in 1968, a national model for recruiting and retaining students of color. He has held leadership roles in the Wisconsin Bar Association and the National Lawyers Guild, where he chairs its Cuba Subcommittee. He has been to Cuba numerous times, as part of sister church and sister city delegations, as well as professional research projects.
September 5, 2013
Dear President Obama:
I am a Midwesterner, born and bred. Like most of the people around me, I believe in hard work and fair play. That’s why, since my first visit to Cuba right before starting law school at the University of Wisconsin in 1972, I’ve been troubled by the contrast between people of Cuba who universally seem to love and show generosity to visitors from the U.S., and our government’s policies designed since 1962 to impose “hunger and hardship” on the Cuban people.
This letter is about the Cuban Five, asking you to act promptly to free them; still incarcerated are Gerardo Hernández, Ramón Labañino, Antonio Guerrero and Fernando González, plus René González was recently freed after serving over 13 years in prison.
As a lawyer in Wisconsin, I had the opportunity visit and get to know personally one of the Five, Fernando Gonzalez, when he was held at the Oxford Federal Correctional Institution a bit north of Madison, WI. I cannot imagine a more temperate, reasoned and educated individual, and I joked that if he ever got out, he could be the Cuban ambassador to the U.S. Let me first explain a bit about his role, which I think exemplifies what the case of the Cuban Five is all about. Then I’ll show evidence that even U.S. authorities have treated them as being political prisoners.
Fernando was only in the U.S. a short time before being arrested with the rest of the Cuban Five. They were all working for Cuba, to try to prevent further acts of terrorism and mass murder. Fernando in particular was attempting to monitor Orlando Bosch, who not only advocated murder of civilians for political purposes, but Bosch acted as well, most notoriously in engineering the bombing of a Cubana civilian airliner in October 1976, killing all 73 on board, including a victorious team of young fencers and medical students coming from South America. Joe D. Whitley Acting Associate Attorney General, and later the first General Counsel to the U.S. Dept. of Homeland Security, wrote in 1989 that “For 30 years Bosch has been resolute and unwavering in his advocacy of terrorist violence… His actions have been those of a terrorist, unfettered by laws or human decency, threatening and inflicting violence without regard to the identity of his victims.” But despite that and his illegal entry, Bosch was allowed to remain in the U.S., and without prosecution or confinement until he died in Miami in 2011. His partner in engineering the 1976 Cubana bombing, Luis Posada Carriles, still lives unfettered in Miami, where they have both been publicly honored, and your administration has failed to either try Posada for terrorism or honor an extradition request for him to face trial in Venezuela. On August 16, 2006, while Fernando and the rest of the Five were finishing their eighth year in jail, Bosch continued to publicly justify this bombing, in an interview in Barcelona’s LaVanguardia newspaper, where he also declared that “a bomb is a proof of rebelliousness, a proof of bravery.”
Contrast that with your own remarks on April 16, 2013, after the bombing of the Boston Marathon, that “Anytime bombs are used to target innocent civilians, that is an act of terrorism.” But that was Boston. Cuba claims to have lost over 3,000 of it people due to terrorism, much of it CIA inspired. The Cuban Five were sent to Miami, which the FBI had labeled as the “terrorist capital of the U.S.,” to try to prevent further deaths and mayhem.
To do this dangerous undercover work, most of the Five adopted aliases, and used false identification to match. Fernando’s alias is listed as the lead defendant in the court papers and on the appeals. Although when the U.S. media mentions this case at all, it often refers to the Five as “convicted spies,” that is not true. Their trial of over six months did not include any claims or evidence of any classified U.S. information, so none of them were ever charged with actual espionage, and only three of them were charged with “conspiracy”– supposedly, planning to do something which the evidence showed they did not actually do. For that, the judge initially gave them life sentences.
The Five all acted as agents of Cuba, and like the U.S. contractor Alan Gross now held in Cuba on a 15 years sentence, none of them registered with their host government to report their undercover work. On September 12, 2013, the four who remain in jail will begin their 16th year of imprisonment.
You have gone to Miami and publicly called for “justice for Cuba’s political prisoners…” But the imprisonment of the Cuban 5 in the U.S. was clearly a political act as well.
Here are a few examples of decisions in their case which were clearly “political”:
1. The decision to arrest them in violent, pre-dawn raids on September 12, 1998, while still allowing the career terrorists whom they were monitoring to live and operate freely in the U.S.
2. The decision to charge and later try them on grounds that for nationals of other countries, such as Russia, would lead to sending them home; and the extraordinary decision by Janet Reno to add a “conspiracy to commit murder” charge against Gerardo Hernandez, prior to her return to Florida and her run for Governor.
3. The decision to force their trial to take place in Miami, rather than let it be moved even to another county in Florida. The Miami jurors in the trial expressed strong feelings against the Cuban government these defendants all admittedly worked for; and the U.S. Justice Department in another case noted that a fair trial with less direct Cuban government involvement could not be held in Miami because of such sentiments.
4. The decisions to hold each of the Five in solitary confinement/special isolation for 17 months, to seek and obtain maximum sentences unheard of in a case where no U.S. interests or secrets were compromised, as well as to consistently deny two of their wives and children visas to visit them. These have been criticized by Amnesty International, and by the relevant body of the United Nations. The trial and confinement of the Cuban Five is the only U.S. domestic criminal proceeding to be found unjust by both these bodies.
5. Although the Cuban Five have been held in separate U.S. prisons and their conduct in prison has been exemplary, every one of them was simultaneously put and held in “the hole” around the time of the U.S. invasion of Iraq in March 2003; they were eventually returned to their respective prison populations after a public campaign on their behalf. No justification for these simultaneous actions has ever been provided to my knowledge.
6. Despite a unanimous three-judge panel decision of the U.S. Court of Appeals in 2005 that the Cuban Five’s conviction was the result of a “perfect storm” of hatred towards the Cuban revolution combined with intimidation, violence and threats in Miami, and prosecutorial misconduct, the Bush administration refused to accept a new trial outside of Miami, and instead pursued an unusual review by all members of that circuit, which then set aside the unanimous appellate opinion. That original court decision footnoted some of the extensive history of “exile” violence that the Five were attempting to deter.
7. The subsequent revelation that the U.S. government had paid the reporters for the Miami media who contributed to the prejudice against these Cuban agents and defendants, was a fact unknown to the defense or the judge at the time. The editor of one the influential Miami dailies that was implicated, El Nuevo Herald, then explained that serious compromise of journalistic ethics was not significant, because it was one of the paper’s founding principles to oppose the Cuban government.
Finally, and getting back to my Midwestern roots, the political nature of their imprisonment was also demonstrated by the authorities’ reaction in Oxford, WI when information about Fernando and the Cuban 5 started reaching the public. Each summer more than 10,000 Wisconsin progressives gathered just 20 miles away, in Baraboo, WI at “Fighting Bob” Fest, named after the famous “Fighting Bob” Lafollette; and for several years we worked to educate them about this case. By September 2007, hundreds of people came up to sign our petitions, under a banner with picture of Fernando and the caption “What Do You Know About Wisconsin’s Most Famous Political Prisoner?” We had a prison visit scheduled and confirmed by prison authorities to meet with Fernando that next week, but within 3 days of that gathering a prison representative called and said the visit was cancelled for no reason that could be disclosed, but it would be rescheduled. In fact, Fernando was being shipped away to Terre Haute, IND, where the case of the Five was not nearly so well known. I asked Sen. Russ Feingold to inquire as to the reason for the transfer, and was advised that the warden requested it based on alleged security concerns – even though there had never been the slightest infraction asserted against Fernando. When our government authorities act in fear of the public becoming educated, something’s not right.
So fair play is all we ask. The continued incarceration of any of the Five is not fair. When the people in the Heartland hear about this case, they agree. But it is both your job and your power to make things right, sooner rather than later.
Arthur Heitzer, Attorney at Law
Chair, National Lawyers Guild Cuba Subcommittee