North of Havana: The Untold Story of Dirty Politics, Secret Diplomacy, and the Trial of the Cuban Five

By Martin Garbus

From one of America's leading legal minds, a riveting look at the U.S.-Cuban relationship seen through the lens of a nearly impossible case

During his distinguished career, Martin Garbus has established himself as a well-known trial lawyer representing the likes of Daniel Ellsberg and Leonard Peltier. But there is no story Garbus wants to tell more than that of his most challenging case: representing five Cuban spies marooned in the U.S. prison system and his efforts to get them out.

North of Havana tells the story of a spy ring sent by Cuba in the early 1990s to infiltrate anti-Communist extremists in Miami. Erroneously charged by the U.S. government in connection with the 1996 shootdown of two planes circulating anti-Castro leaflets over Havana, the spies—in the absence of evidence—were convicted in 2000 of conspiracy to commit espionage and murder. Caught up in the sweep of history, the Cuban Five, as they became known, played a central role over the next decade in the recent thaw in Cuban-American relations.

Set in Miami and Havana, North of Havana is a mesmerizing tale of international intrigue, espionage, and political gamesmanship that continues to play a shaping role in American foreign policy and presidential elections. In the process, the books shows how the justice system can be, and is, subverted for political purposes and gives readers insight into one of the most fascinating legal cases of our times.

• Language: English
• Publisher: The New Press
• Release date: Jun 4, 2019
• ISBN: 9781620974476

Martin Garbus

Martin Garbus is one of America's top trial lawyers. An expert at every level of civil and criminal trial, and litigation, he has appeared before the United States Supreme Court in leading First Amendment cases. He is the author of Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way and North of Havana: The Untold Story of Dirty Politics, Secret Diplomacy, and the Trial of the Cuban Five (The New Press). Garbus lives in New York City.

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INTRODUCTION

For several years in the early 1990s, Cuban exiles in Miami flew small planes over the Straits of Florida to assist Cubans who were fleeing their homeland in small boats, rafts, and inner tubes. These Samaritans called themselves Brothers to the Rescue, and they claimed to have effectively assisted 4,200 Cubans.¹ When that refugee crisis ended, Brothers to the Rescue found a new, overtly political, highly provocative mission: flying into Cuban airspace, and, on occasion, over Havana, to drop anti-Castro leaflets. On February 24, 1996, a Cuban MiG jet fighter launched heat-seeking missiles on two of these planes flying in Cuban airspace. Four pilots died.²

Right-wing Cuban exiles in Miami cried for justice. Politicians called for the indictment of Castro; some even called for the invasion of Cuba. The FBI and federal prosecutors in Miami found it through their pursuit of five members of a Cuban spy ring called the Wasp Network (La Red Avispa). None of them were based in Cuba. None flew a MiG. None planned the attack. But on September 12, 1998, Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando González, and René González—who came to be known as the Cuban Five—were arrested in Miami, and eventually tried and convicted for spying; one of them received two life sentences for his alleged connection with the shoot down.

Why were Hernández and his team tried as if they had fired those missiles?

Here the story takes a surreal turn.

For decades, extremist Cuban exiles in Miami terrorized their homeland with bombings and madcap plots aimed at getting rid of Fidel Castro. In 1991, with the collapse of the Soviet Union and the end of its subsidies to Cuba, the Cuban government was the most vulnerable it had been since the early days of the revolution. These right-wing exile groups accelerated their terrorist attacks. In early 1994, Castro responded by dispatching Gerardo Hernández and the Wasp Network to Miami to infiltrate these extremist groups, monitor their activities, and, in the hope of stopping future attacks, report their findings to government agencies in Cuba, who, in turn, when they thought it was to their advantage, shared some of their intelligence with the United States.

The U.S. Attorney’s Office in Miami spent three years investigating the shoot down of the Brothers to the Rescue planes; different federal prosecutors failed to turn up a single shred of evidence against Hernández and his associates, and, one after the other, each declined to prosecute.

But by 1998, justice for the Brothers to the Rescue pilots had become la causa for Miami’s right-wing exiles. Evidence didn’t matter. The government charged Castro’s spies with espionage.

And then, nine months later, federal prosecutors charged Hernández—the leader of the spy network and the only one of its members who had direct contact with the Cuban government—with the additional crime of conspiracy to commit murder.³ Their thinking was, if they squeezed Hernández hard enough, they would get him to say something that would serve as the basis for an indictment of Fidel Castro, which is what powerful, well-financed anti-Castro exiles had demanded from the start.

The trial of the Cuban Five began in the fall of 2000 in the U.S. District Court for the Southern District of Florida, despite the fact that there was little possibility of Hernández—or any Cuban spy—receiving a fair trial in Miami. For months, the story of the shoot down dominated Cuban news broadcasts on Radio Martí and local TV. The Elián González affair, which took place five months before the trial, further inflamed anti-Cuban sentiment.

Years later we would learn that the U.S. government paid Miami journalists and extremist Cuban exiles to write articles and commentary about the Cuban Five that expressed the anti-Castro exile community’s views. Government propaganda as sponsored journalism before and during a trial of Cuban agents? Unthinkable. But it happened.

During the trial, Hernández’s lawyers made repeated change of venue requests. All were denied. President Jimmy Carter’s former national security advisor Robert A. Pastor reviewed Hernández’s conviction and concluded, memorably, Holding a trial for five Cuban intelligence agents in Miami is about as fair as a trial for an Israeli intelligence agent in Tehran.⁴ Unthinkable that there was no change of venue. But it happened.

On June 9, 2001, the jury returned with the inevitable verdict: guilty.

Justice at Last! proclaimed the headline of the Miami Herald’s story about the verdict. Months later, a federal judge sentenced Hernández to two life sentences plus 15 years—a punitive ruling that was blatantly out of proportion to sentences imposed in similar cases.

The guilty verdicts resonated around the world. Amnesty International and the United Nations slammed the judge.⁵ More than 100 members of British Parliament wrote an open letter objecting to the trial and the verdicts and demanded that the U.S. attorney general release the Cuban Five.⁶ In a separate letter, ten international Nobel Prize–winning writers seconded that demand.⁷

Fidel Castro’s response was sustained outrage. He told a huge crowd in Havana, They will return. Volveran!⁸ Images of Gerardo Hernández and the rest of the Cuban Five popped up on giant billboards throughout Cuba, with the caption: "They will return. Volveran!"

For years after the conviction of the Cuban Five, I discussed the case with Leonard Weinglass, a fine American lawyer and my dearest friend. Lenny got involved in the case immediately after the defendants were convicted, representing Antonio Guerrero, one of Gerardo Hernández’s co-defendants. Like Hernández, he had been sentenced to life. In 2005 the 11th Circuit Court of Appeals—a three-judge appellate court that was one of the most conservative federal courts in the country—reversed the 2001 conviction on the grounds that these defendants could not get a fair trial in the Miami federal court. The case, the court said, should have been tried in a different federal court. And it ordered an immediate retrial outside of Miami.

Although that retrial never happened, this first victory for the defense was an extraordinary triumph for the Cubans—and for Lenny. I thought that, maybe, more could be done. And so, after Lenny’s death in 2011, I became Gerardo Hernández’s appellate lawyer.

Why did I? Well, let’s go back. When I was 21, I enlisted in the army. I was court-martialed shortly thereafter. I had given a number of speeches to my fellow soldiers about recognizing Red China and protecting the Fifth Amendment rights of people called before officials like Senator Joseph McCarthy. The officer in charge of my unit said I should stop giving speeches like that. He meant it. My next speech was on the Sacco and Vanzetti case; he said I could be charged with treason. And it came to pass that a court-martial was convened in a small room on the base’s first floor. But the army didn’t charge me for my speeches. My supposed offense was going AWOL a number of times.

Was I guilty? Well, like nearly every other soldier at Fort Slocum, I often left the base to eat out or see friends or family and to sleep in New York City or Westchester County. Few of us ever signed out. It was the MO at the base and every enlisted man on the base knew it—officers did it themselves.

The morning my trial began, Master Sgt. Hatch, a distinguished World War II and Korean War veteran, came into the small courtroom. I had seen him at the base—his military bearing was consistent with his World War II career as a lieutenant commander in the navy—but we had never met. Hatch asked the judges for permission to have me step outside the room while he spoke with them. They agreed. After 30 minutes they asked me to come back in.

Master Sgt. Hatch told me that these proceedings—which could lead to jail time and a dishonorable discharge—could be settled if I agreed to be stripped of my security clearance. I agreed and the court-martial was dropped. Why? Because Hatch told the three young lieutenants adjudicating my case and the commander of the base that he would go to Washington, DC, to show that I was really being punished for my speech.

I assumed I would be reassigned to some forsaken spot. Instead, I was ordered behind a desk in, of all places, the army motion picture center in Queens, New York, where they made enlistment films and films that cautioned soldiers not to smoke or catch sexually transmitted diseases. For months, I sat at a desk with nothing to do. Eager to make more use of the next 15 months, I looked around and noted with interest that NYU Law School offered night classes. So, thanks to my army salary and my lack of real work, I started law school at New York University. Interesting! I wouldn’t have otherwise been able to study law, but the army was paying my room and board. Soon I became a law clerk in the office of Emile Zola Berman, one of the best trial lawyers in America. Two years later, I became a lawyer and a court rat, trying as many cases as I could, watching other trials, sometimes spending five solid months in court. Here I saw, for the first time, how it was sometimes possible to resist the wrongful exertion of power, which, after being court-martialed for an unjust reason, had obvious appeal. And so began a life-long legal practice of battling the arbitrary or wrongful exercise of power, particularly government power.

With Leonard Weinglass, I defended clients in criminal cases during the New Jersey riots of the 1960s. In the early ’70s, Lenny and I were involved in the Pentagon Papers case against Daniel Ellsberg and Anthony Russo. For nearly two years I had hidden a copy of the Pentagon Papers in my Woodstock home. Dan wanted to make sure that if he was arrested, there would be another set of papers that could be released to the press.

The government knew about it, and the FBI often kept an eye on my Woodstock home. It was usually just two men in suits in a black car. Every other Saturday, during summer, usually between the hours of ten and six, they parked near the entrance to our driveway on Lewis Hollow Road. Sometimes I saw them getting coffee in town. We usually acknowledged each other when we saw each other.

Once we understood the FBI had me under surveillance I also delivered, at Dan’s suggestion, a set of the Pentagon Papers to my sister-in-law in Boston so she could release it if Dan and I were stopped. It was like something out of a B movie caper. I left it in a locker at the bus station in Boston and she picked it up a day later.

Curiously, once the Pentagon Papers were published in the New York Times I never saw the FBI men again. But it was later made clear to me that if I attempted to represent Ellsberg, I would be prosecuted. I referred Dan to Leonard Boudin.

I became habituated to living and often working in an environment of fear. With Leonard Boudin, Lenny and I represented his daughter Kathy Boudin in a triple homicide case in New York in 1981. On the first day of court Leonard Boudin and I had to walk four long blocks to the Nyack County courthouse through screaming crowds. They feared that Kathy would escape, or that her friends from radical movements would shoot up the town. There were snipers on the rooftops—both government and nongovernment. The sidewalks were jammed. So we had to walk in the middle of the street. I felt like it wouldn’t take a wrong move on our part for us to be shot. The sense of threat continued once we got inside—we were representing killers of young, local police officers, with wives and infant children. The community was furious. Even in the courthouse, we were nearly jumped in the hallways and roughly frisked by police.

Once after making First Amendment arguments on television on behalf of Nazi demonstrators in Skokie, Illinois, I was sent packages at home and in my office that I immediately turned over to the police—some contained feces, others mechanical parts to scare me into thinking they were bombs. In the farmlands of Delano, California, while representing Cesar Chavez, I was beaten, jailed, held, and threatened with contempt.

On another occasion I was detained in the Soviet Union in 1976 after obtaining Russian classified information from Andrei Sakharov, which I intended to deliver to President Jimmy Carter. Like a man of great courage, I put the letter in my wife’s underwear. Airport security and police searched me, not her, and kept us in the airport for 12 hours. But I delivered the letter to the president. As a Fulbright senior scholar I taught in Beijing for four months in 2001. I was told by a senior faculty member I should not be seen or be as heavily involved with Chinese dissidents and their lawyers. He said I could be kicked out of my teaching job and far worse.

I continued to do in China what I was doing and nothing happened. In fact I went back in 2002 the following year and did the same.

I’d also represented Cubans before, or rather Cuban dissidents (including the poet Heberto Padilla) who had fought their government’s attempts to jail them. More about that later.

I hadn’t attended the trial of the Cuban Five. But I read the entire 20,000-plus pages of trial transcript twice, as well as the mountain of connected documents. And I came to a conclusion that was obvious from the start: Gerardo Hernández and his comrades were victims of the kind of political show trial—a drama with a predetermined conclusion—more likely to occur in another country rather than America.

Their story, and what lawyers like me did to try to win their freedom, is the story of this book. It is, by turns, a spy story, a love story, a portrait of a man who couldn’t be broken, a tale of international intrigue, and a legal thriller with several astonishing surprises. But the best reason for telling a story about an event that occurred two decades ago and was, after great struggle and hardship, successfully resolved, is the important lessons it offers to us.

For one thing, it shows how our government can subvert the press and interfere with our jury system. It chronicles an unprecedented pollution of the American legal system in order to advance a political cause. For another—and this may be the real takeaway for us now—it reminds us that facts matter and truth matters, and that when people who believe that get involved, there are no hopeless causes. In fact, sometimes the innocent guys, after paying an awful price, win.

PART I

1

DO SOMETHING!!!!

In the late 1980s and ’90s, Miami was a sweltering locus of violence and vengeance, fueled by the enormous cocaine trade. Subsidized by the Mafia, the drug trade, and wealthy immigrants from Cuba, the right wing of Miami’s exile community dedicated itself with increasing fervor to an obsession that began in 1960: the elimination of Fidel Castro.

That desire was a torch waiting to be lit.

That torch began to burn in 1991, when the slow-motion collapse of the Soviet Union began to affect its strongest ally in the Caribbean. The first blow was a loss of financial aid for Fidel Castro’s government. That put the Cuban economy in free fall, and created fresh pain for Cuba’s poor.

For the first time in decades, there were horses in the streets of Havana. Farmers who couldn’t afford gas for their tractors used oxen to work their fields. Fidel Castro dubbed this the special period.

In Miami, right-wing exile groups that had been plotting and scheming to overthrow Fidel Castro sensed that this was their best opportunity in 30 years to do it. They escalated terrorist attacks against Cuba. Two right-wing Cubans from Miami slipped into Cuba in September of 1991 and sabotaged tourist shops; Cuban police confiscated their weapons and a radio transmitter. Two months later, three more Cuban American terrorists illegally entered Cuba; their weapons and other war material were also seized. On July 4, 1992, another group of Cuban American terrorists were on their way to attack economic targets along the Havana shoreline; detected by Cuban patrol boats when their boat broke down, they were rescued by the U.S. Coast Guard, which confiscated their weapons, maps, and videos. On October 7, 1992, Miami-based terrorists attacked the Meliá Varadero Hotel.

Orlando Suárez Piñeiro was a captain in Alpha 66, a notorious and longstanding paramilitary group that trained in the Everglades and launched many raids on Cuba during this period. Piñeiro was arrested May 20, 1993, along with other Alpha members, on a boat in the Florida Keys. The boat was a floating arsenal: machine guns, rifles, ammunition. At trial, Piñeiro was found not guilty of possession of an AK 47 rifle and two pipe bombs. A year later Piñeiro and some of his associates were intercepted again; they were released, but their weapons and boat were seized.¹

Eight Alpha members were also arrested near Marathon Key in 1994. Their boat was a veritable warehouse of terrorist tools: pipe bombs, propaganda, grenades, and more. How could they have been acquitted?

Their lawyer argued that none of them knew explosives were on board.²

And so it went, on and on.³

Because no U.S. law enforcement agency seemed focused on stopping them, these Cuban American terrorists felt they had the silent support of the American government. In the early 1990s Castro responded by forming the Wasp Network, La Red Avispa, and sending a crew of spies to Miami, to learn what the exile extremists were planning in order to aid counter-terrorism efforts in Cuba. On more than one occasion information was shared with American law enforcement, to motivate the Americans to shut the terrorists down.⁴ (At the same time, the Miami FBI knew about the network and had some of its members under surveillance—see Timeline.)

Meanwhile, for the third time since Castro came to power, Cubans in significant numbers started to flee their homeland.

Most of the Cubans who wanted to leave and owned boats had left long before. These new refugees had fewer resources. Some had Windsurfers, and if they were strong and could stand and hold a sail for several hours in the heat of the day, they made the 90-mile passage to Miami. But most of the refugees improvised. Some built rafts by lashing wood over thick pieces of Styrofoam, which in turn were attached to giant inner tubes, hence this became known as the balsero [rafters] crisis.⁵ And then there were the most poor and desperate, who rigged inner tubes with sails made of bed sheets and hoped for the best.

In Miami, a Cuban refugee named José Basulto heard a news report about the death of another refuge, 15-year-old Gregorio Pérez Ricardo.

He’s said it changed his life.

In pre-Castro Cuba, where his father was an executive with the Punta Alegre Sugar Company, José Basulto was privileged and pampered. He raced speedboats, owned a blue 1956 MGA sports car, exotic guns, and more.⁶

I had anything and everything you could possibly have, he told one documentary filmmaker.⁷ As a member of Havana’s young elite, his motto was a statement of entitlement: Sin first, ask forgiveness later.⁸

After the revolution on January 1, 1959, Basulto’s family fled, and life became harder and more politically charged. The CIA, plotting the liberation of Cuba, scoured Havana in search of young Cuban men from families who had been prosperous in prerevolutionary Cuba. Then a 19-year-old student at the University of Havana, Basulto was an obvious recruit. For 11 months he trained on a Florida island where he learned about cryptography, espionage, and explosives.⁹

In 1961, Basulto sneaked into Cuba to work for the counterrevolution as a radio operator in the provinces. He escaped detection, returned to Miami, and was peripherally involved in the botched Bay of Pigs invasion to overthrow Castro’s regime.¹⁰ A month later, the CIA sent him back to Cuba to bomb a missile base. Another failure. In 1962, he fired a small cannon from a speedboat at a hotel on the Cuban coast. And then, still hoping for an American invasion of Cuba, he joined the U.S. Army. There was no invasion, so he quit, got a degree in architectural engineering, and began to build luxury homes.¹¹

He retained his commitment to the overthrow of Fidel Castro. According to a Cuban government dossier shown to the intrepid Miami New Times journalist Kirk Nielsen, in August of 1982, Basulto and another veteran of the Bay of Pigs prepared an explosive device for an attempt against the Cuban President, and they studied the possibility of introducing it to Cuba. Basulto denied the allegation.¹²

By 1991, Basulto had married twice, raised children, and become financially comfortable again. And he had, he’s said, a total change of heart. On his bookshelves: videotapes from seminars on nonviolence; his reading list included books by Martin Luther King Jr. and Mohandas Gandhi. I was trained as a terrorist by the United States, in the use of violence to attain goals, he said.¹³ When I was young, my hero was John Wayne. Now I like Luke Skywalker. I believe the Force is with us.¹⁴ He was, according to one account, committed to peaceful action: Violence … did not elicit change in anyone or anything…. Change on the island had to come from within.¹⁵

However, he remained steadfast in his loathing for Fidel Castro. When he bought a plane, his license number was 2506, in honor of the Cuban anti-Castro brigades that fought at the Bay of Pigs.¹⁶ But when Basulto saw the report