"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.
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.
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."
This past January Blumenfeld expanded on that theme, again at the expense of Guerrero and his fellow sleuths. While cross-examining FBI supervisory special agent Richard Giannotti, the lawyer picked up a navy blue cardboard box half the size of a shoebox, on which the words "War Planes" were printed. FBI agents had seized the box from the Hollywood apartment of defendant Ramon Labañino the day of his arrest. The federal prosecutors presented the box, which contained glossy cards with photos of military aircraft and a receipt for $6.88 -- as evidence the spies were studying U.S. military planes. "They are kind of like baseball cards, for us old-timers," Blumenfeld said, trying to describe them for the jury. "But instead they have pictures of aircraft on them."
Blumenfeld pulled out one the prosecution had not shared with the jury and put it on an overhead projector. It was an Albatros, the small propeller plane German pilots such as the Red Baron flew during World War I. "I'd like to stipulate that I took it from the box," Blumenfeld joked.
Last week retired U.S. Navy Admiral Eugene Carroll, an expert on U.S. and Cuban military capabilities who flew in from Washington, D.C., testified that far more detailed information is available in publications such as Jane's Defense Weekly. Blumenfeld also asked Carroll to testify whether he thought procedures at a U.S. military base could be lax enough to allow a sheet-metal worker to get anywhere near classified or top-secret information, even if he wanted to.
"Objection," yelled prosecutor David Buckner. The question called for speculation, he protested, and was outside the scope of Carroll's expertise.
"Sustained," replied Judge Joan Lenard.
The jury will have the chance to answer that question and others raised by the fatherland defense when the trial concludes, probably in April.
