A three-judge appeals panel in Atlanta has granted a new trial to the five Cuban nationals imprisoned in a government frame-up seven years ago. The five — Antonio Guerrero, Fernando González, Gerardo Hernández, Ramon Labañino and René González — were operating in Miami as a part of a Cuban anti-terrorist operation when they were arrested, held in solitary for 17 months and then railroaded to jail by federal agents.

While this is a major victory, it is not the full victory since the Cubans remain in high security confinement. The panel unanimously concluded that a fair trial was impossible in Miami, but the government will likely retry the Five in another venue. Until they are released, there must be no dampening of the public outrage at this politically motivated injustice.

Several points deserve to be made. Despite the determined and effective work of the lawyers, this victory is the result of mass pressure upon the U.S. government at a particularly sensitive time. As with the Rosenberg case, many were initially afraid to speak against this travesty because of the intimidating charges of “spying.” But the Cuban government and the Cuban people, first and foremost, kept attention on this case with statements, demonstrations and petitions. Solidarity groups not blinded by anticommunism or fear of being branded unpatriotic also fought persistently to gain a new trial and their release. Many can be proud of organizing to raise funds for a full-page ad in The New York Times that brought the case to the attention of tens of thousands, along with many other less dramatic initiatives.

At the same time, few elected officials, media personalities or other public figures dared to question the official government position, proving again that popular organization and activism make the difference in countering the ultra-right juggernaut, in particular in this victory, which was snatched from the teeth of the most vicious, reactionary elements of the U.S. ruling class.

The court decision was undoubtedly influenced by the recent government embarrassment surrounding the CIA-favored terrorist Luis Posada Carriles. Again, the relentless publicity from the Cuban government and people and from Cuban solidarity groups exposed this thug’s comfortable residence in the Miami area despite a history of terrorist acts such as sabotaging an airliner, bombing hotels and participating in assassination attempts. The obvious hypocrisy of the U.S. government’s benign acceptance of this murderer while cynically championing the cause of anti-terrorism forced immigration officials to confine Posada. Clearly, they would like the embarrassment to go away without causing Posada much discomfort. It is likely that some in the ruling class brain trust would like to show a little leniency towards the Cuban Five in order to pave the way for a lenient road for Posada. This is what the U.S. ruling class considers “evenhandedness.”

In addition, the government has stumbled upon a genuine, but clumsy, spy scandal: the passing of official secrets to the Israeli government through the right-wing pro-Israeli-government lobby group, AIPAC. Despite the media efforts to minimize the damage, the story lingers, suggesting a glaring imbalance in the treatment of the Miami Five and the genuine spies for Israel. This, too, looms over the decision.

Last, this ruling demonstrates that while judicial appointments are important and should be challenged, the character of the judiciary is shaped profoundly by public opinion. In spite of the myth that the judiciary is independent and only concerned with the application of law and precedent — strict constructionism and that nonsense — the reality is that decisions are often influenced by the temper of the times. Certainly every major progressive court decision has been decided more on mass sentiment than the prior judicial tendencies of judges. Some liberals get it wrong when they express appreciation for the epiphanies or pangs of conscience that overtake conservative judges, without recognizing that, in fact, these judges are swayed by popular opinion.

Release the Cuban Five now!

Greg Godwin and Walter Tillow are readers of the PWW.