An international gathering of 75 jurists, attorneys and supporters was on hand in Atlanta Aug. 20 for the latest appeals hearing on behalf of Gerardo Hernández, Ramon Labañino, Antonio Guerrero, Fernando González and René González.

On Sept. 12, the Cuban Five will begin their ninth year in prison. Convicted on June 8, 2001 — after 17 months in solitary confinement — for “conspiring to commit espionage,” they are collectively serving four life sentences plus 75 years in widely separated federal jails. The Miami jury also convicted Gerardo Hernández for conspiring to murder pilots downed in an illegal Cuban American flight over Cuba.

Interviewed on Democracy Now, defense attorney Leonard Weinglass said this was the first time in U.S. history where the charge of conspiracy to commit espionage has been made against a defendant. Lawyers say that conspiracy charges open the door to hearsay and circumstantial evidence.

Prior to their arrest, the five men were in Florida to gather information on anti-Cuban, paramilitary terrorists in an effort to halt attacks that, according to the Cubans, have caused 3,478 deaths on the island over four decades.

Commenting on the appeal, Weinglass said, “The government admitted they could not prove espionage. … There wasn’t a single page of classified document involved in this case. That never happened before in an espionage case.” He cited testimony from high U.S. officials that the accused never gained information detrimental to U.S. interests.

“This case is the first case in our collective memory that will be argued a third time on appeal,” Weinglass said. In August 2006, the full 11th Circuit Court denied an appeal based on the prisoners’ claim that a prejudicial climate in Miami had invalidated their trial. In doing so, the court reversed an earlier ruling by an appeals panel calling for a new trial.

On Aug. 20, defense lawyers were dealing with still unanswered concerns: neglect of due process, insufficient evidence for conspiracy and inappropriate sentencing.

The lawyers warned that the court’s decision may not be known for months. They were encouraged by Judge Phyllis Kravitch’s reaction to a defense report that the original trial judge sustained 28 of the 34 defense objections introduced during the prosecution’s final summary. “I find that kind of troubling,” she remarked.

Judge Stanley Birch suggested that in regard to the death of the Miami pilots and the murder-conspiracy conviction of Gerardo Hernández, “A shoot-down over sovereign airspace is not murder.” In their first appeal, in 2005, both Birch and Kravitch ruled in favor of the Cuban Five.

Giving up on close reasoning, U.S. Attorney Carolyn Miller asked the court to “plunge into the record” where documents will be found “that show the defendants’ hatred of the United States.”

She accused the defense of concocting “a good tale … of red-baiting and McCarthyism” on the part of the government. Referring to free legal services for indigent defendants, she suggested that the five were “bent on the destruction of the United States, paid for by the American taxpayer.”

Judge Birch ordered prosecutors to produce a transcript of a meeting between the trial judge and government lawyers from which, crucially, defense lawyers had been excluded. The appeals panel required government lawyers also to submit supposedly classified documents viewed by that judge and presumably kept from the defense.

In 2005 the UN Human Rights Commission declared that the government’s reliance upon secret evidence — possibly at issue now — made the prisoners’ incarceration “arbitrary.” Birch indicated that after reviewing the material, the appeals panel could require another hearing.

Attending the Aug. 20 hearing, Chilean Judge Juan Guzman — law school dean and former prosecutor of Chilean dictator Augusto Pinochet — had advice for U.S. judges. “If they really seek justice,” he said, “they should make a ruling recognizing the innocence of [the Cuban Five].” He condemned political pressure on judges and jury at the hands of the Bush administration.

International support is a driving force in the political struggle for the five. Over 6,000 activists and intellectuals worldwide, including nine Nobel laureates, signed a letter in 2005 to the U.S. attorney general demanding their freedom. Earlier, Amnesty International reminded the U.S. government that restrictions on family visits to the prisoners — which remain in force to this day — were inhumane and contrary to international law.

“The system,” according to Weinglass, “is having trouble digesting this particular injustice.”

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