What Spies Beneath

Okay, so they really were spying for Cuba, but not in a bad way

This humble geopolitical region, which last year transformed a child-custody dispute over a boy named Elian into an international crisis, is now slowly making a unique contribution to the annals of espionage law. The lawyers of five men standing trial for spying for the Cuban government have embarked on a paradoxical defense that would be a stretch any place but in Miami. Yes, their clients were spying, they conceded in opening arguments, but for good reasons: to protect their fatherland from incursions by violent members of Miami's Cuban exile community.

"God almighty," exclaimed Axel Kleibomer over the phone from his law office in Washington, D.C., after New Times ga ve him the gist of the defense. Kleibomer co-wrote the textbook used by the University of Virginia's Center for National Security Law in Charlottesville. "I'm racking my memory to see if anything of this nature has ever been asserted before as a defense. I can't think of a parallel case."

Neither could the five defendants' lawyers, Paul McKenna, Joaquin Mendez, William Norris, Jack Blumenfeld, and Phillip Horowitz. For one thing the case (USA v. Hernandez et al.) is the first in which a group of Cubans accused of trying to obtain defense information for Havana has stood trial in a U.S. courtroom. Traditionally Cuban spies who are incarcerated have not been as useful to the FBI and other intelligence agencies as Cuban spies on the street who sometimes serve as double agents. Most captured spies never even stand trial. Rather they tend to bargain for a reduced sentence (which, if they are U.S. citizens, often means they are spared the death penalty) in exchange for a guilty plea. The U.S. intelligence establishment likes this arrangement because it avoids the prospect that classified information could be divulged during the accused spy's trial. Robert Philip Hanssen, the FBI agent arrested in Virginia last month for selling U.S. intelligence information to the former Soviet Union and Russia, is the latest to take that path.

Lawyers for five Cuban spies are trying to  shoot down the evidence, including Government Exhibit SAV-52, a box of aircraft cards available at department stores near you
Lawyers for five Cuban spies are trying to shoot down the evidence, including Government Exhibit SAV-52, a box of aircraft cards available at department stores near you

While the eyes of the nation are transfixed on the Hanssen case, they are largely missing the unprecedented protect-the-fatherland-from-terrorism defense developing in Miami. It is safe to say no other spy trial in history has involved the shootdown of two aircraft flying toward Cuban airspace, despite repeated warnings from the U.S. Federal Aviation Administration and Havana's foreign ministry that they might be blasted from the sky. McKenna's client, Gerardo Hernandez, is charged with conspiracy to murder in connection with the February 24, 1996, incident in which Cuban MiG fighter jets destroyed two Cessnas flown by the anti-Castro Cuban exile group Brothers to the Rescue. Four members of that group were killed. Brothers' founder José Basulto and three others escaped in a third plane. Hernandez faces a life sentence if convicted.

One prong of McKenna's offensive is to elevate Brothers to the Rescue's role in the shootdown. That hasn't been very difficult since Basulto publicly boasted about violating Cuban airspace, including a flight over Havana in July 1995 in which he dropped leaflets urging anti-government protests. Last week McKenna called former and current FAA officials to testify that the agency and the State Department had warned Basulto at least seven times that Cuba was threatening to use deadly force to keep the Brothers away. "Worst-case scenario is that one of these days the Cubans will shoot down one of these planes, and the FAA better have all its ducks in a row," wrote Cecelia Capestany, one of the FAA witnesses, in an e-mail to a colleague a month before the MiGs downed the Cessnas. McKenna also noted the FAA did not revoke Basulto's commercial pilot license until after the deadly encounter. One of McKenna's challenges is to diminish the significance of several secret messages his client received from Havana via shortwave radio that relate to the shootdown. One instructs Hernandez that two of his operatives who had infiltrated the Brothers -- Juan Pablo Roque and Rene Gonzalez -- were not under any circumstances to fly between February 23 and February 25. After the February 24 shootdown, Hernandez received another message stating, "We have dealt the Miami right a hard blow."

Before launching his defense last week, McKenna already had dealt a hard blow, smack in the middle of the prosecution's case. He managed to mangle the credibility of senior Brothers to the Rescue member Arnaldo Iglesias, whom the Assistant U.S. Attorneys had called to testify because he was in Basulto's plane the day of the shootdown. Under cross-examination by McKenna, Iglesias admitted he and Basulto had test-fired a PVC pipe filled with shotgun shells at the Opa-locka Airport in 1995.

"So there was a plan to drop PVC pipes into Cuba to see if they could be used to harm people?" McKenna asked Iglesias. Iglesias insisted he didn't think he was testing something that could hurt people and that Brothers was "a peaceful operation only."

"Didn't Brothers to the Rescue publish an article saying Brothers to the Rescue was going to [carry out a strategy] of confrontation with the government of Cuba?" McKenna continued.

"Possibly," Iglesias replied.

Wisely, perhaps, the prosecutors did not call the more pugnacious Basulto to the stand.

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