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But McKenna did. For in the protect-the-fatherland defense, the most hardened natural enemies of Cuban spies become very useful allies in court, albeit against their will. Basulto challenged the subpoena McKenna issued to force him to testify. McKenna can use the Bay of Pigs veteran to elaborate on testimony of others, such as U.S. Customs agent Peter Ostrovsky, who once investigated Basulto concerning "an assassination plot against [Fidel] Castro," according to a court document. Other enemies-cum-allies on the defense team's witness roster include members of the Alpha 66 paramilitary group who have publicly boasted of machine-gun attacks on Cuban resort hotels in the mid-Nineties -- just the kind of violent deeds the five defendants purportedly were in town to detect.
The closest parallel to the protect-the-fatherland defense, attorney Kleibomer said, would be a "keeping the peace" claim. "Many of the people who did espionage on behalf of the former Soviet Union maintained at one point or another that they wanted to preserve the balance of power so as to prevent war, to make sure that the Soviets had access to the type of information that the United States had." For example Aldrich Ames, a former CIA agent now serving a life sentence for passing classified information to the Soviet Union, told a Washington Post reporter in 1994 that his motivation was money, but that he wanted to "level the playing field" for Moscow in the hopes of accelerating the end of the Cold War.
But the fatherland defense does not stop there. Another prong is based on the tautological premise that spying is not espionage. For months after their arrest on September 12, 1998, the defendants held fast to the instructions their Havana managers had given them: They denied they were spies. But by the time their lawyers made opening arguments in U.S. District Judge Joan Lenard's courtroom more than two years later, some trappings of a classic American criminal defense had emerged. McKenna et al. homed in on the perceived weaknesses of the government's case and, just as important, conceded charges they deemed indefensible.
"Competent defense counsel would, through the pretrial investigation, determine whether the prosecutor is going to be able to establish the link between these guys and Cuban intelligence," surmised Lee Schinasi, a law professor at the University of Miami who prosecuted espionage cases for the Pentagon in the Eighties. "And if they can do that, what's the point to challenge it? So the theory is, “We'll agree with the government on this, and the jury will see we are reasonable people.'"
This component of the fatherland strategy will likely be nettlesome. The U.S. government is charging that three of the five Cuban spies conspired to gather and distribute "nonpublic" U.S. military information to Havana, as opposed to classified or secret. Gerardo Hernandez, Ramon Labañino, and Antonio Guerrero could face life sentences if convicted on that count. (Fernando Gonzalez faces up to 38 years and Rene Gonzalez up to 15 for lesser offenses related to spying, including "acting as a foreign agent without prior notification to the U.S. Attorney General.") The law states that to convict, the prosecutors must prove the accused intended to use the information "to the injury of the United States or to the advantage of a foreign nation."
Here's where the novel defense enters uncharted waters. "There are no published cases upholding an espionage conviction ... in which the defendant did not obtain or try to obtain some classified or secret information," McKenna declared in a recent court memorandum aimed at convincing the judge to throw out some charges. He cites past espionage cases, including a 1945 case involving a German-American man who provided unclassified information on the production of U.S. aircraft to the Nazi government. "If the information is lawfully accessible to anyone willing to take pains to find, to sift, and to collate it," a federal court in New York found, "you may not find that the defendant is guilty." Last August a federal appeals court in Virginia validated that old opinion while reviewing the 1998 conviction of Theresa Squillacote, a Pentagon employee charged with spying for East Germany in the Eighties. The appeals court upheld her conviction because she had passed on classified information.
This tactic has worked in the past, even for spies charged with disseminating information on nuclear weapons. "In many cases you will find that part of the defense is that the information is publicly available," observed Kleibomer, the national security law expert. "That's been time and again an assertion by defendants, particularly in cases relating to atomic secrets: that they haven't really given anything away, that basically you could have gone down to any library and found the information there. And in some cases they've been absolutely correct, and basically the government has tried to put the genie back in the bottle."
Perhaps the most innovative feature of the fatherland defense is to zero in on the incompetence of one's own clients. Jack Blumenfeld admitted his client Antonio Guerrero, who was employed as a sheet-metal worker at the Boca Chica Naval Air Station near Key West at the time of his arrest, counted F-16s and other planes. But Blumenfeld quickly belittled his effort. Sometimes Guerrero included articles from the local newspaper, the Key West Citizen, in his intelligence, Blumenfeld said. Sometimes they knew more in Cuba about the base than the local resident spy did. And sometimes, Blumenfeld continued, "he was reporting them [the planes] three or four months after they were there and gone."