The Battle Over the Cuban Five

On September 12, 1998, ten alleged Cuban spies from the group known as La Red Avispa (the Wasp Network) were arrested in South Florida by the FBI during an early-morning raid. They were charged with conspiracy to commit crimes against the United States, conspiracy to commit espionage, and acting as unregistered agents of a foreign government. Half of the accused cooperated with the district attorney’s office and received reduced sentences. The others—Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González, and René González, who came to be known as the Cuban Five—denied the accusations. The saga of their imprisonment, trial, and release is the subject of North of Havana by Martin Garbus, the renowned civil rights attorney who joined the case in 2012, after the death of the Cuban Five’s lawyer, Garbus’s longtime friend Leonard Weinglass.

Fidel Castro, Cuba’s Communist president, had sent the Wasp Network to the US in the early 1990s for two purposes: to monitor US Southern Command in order to warn Cuba if the US were planning an aerial invasion of the island, and to infiltrate the exile community in Miami, which was led by anti-Communists who had fled Cuba after Castro came to power in 1959. This Miami community had a history of bellicosity against the Cuban government, including participating in the US-backed invasion of the Bay of Pigs in 1961.

In the early 1990s, after the fall of the Soviet Union, which had supported the Communist regime in its first three decades, Cuba experienced its greatest economic crisis, the so-called Special Period. Some Cuban exiles saw an opportunity to hasten the regime’s collapse, attempting to inspire a revolution through infiltrations, bombings, and other subversive activities on the island. Castro, Garbus writes, felt he “was under threat from right-wing Cuban exiles.” Cuban intelligence shared “much of what they learned with American intelligence agents” in the hope that conspirators “could be identified—and then, if the Americans would intervene—arrested, tried, and jailed.” In view of the tense diplomatic relations between the US and Cuba, as well as the US’s previous support of Cuban anti-Communists, there is little reason to believe the FBI would have diligently followed up on threats against the Castro government.

During the Special Period, Cubans began leaving the island in ever greater numbers on balsas, or homemade rafts, with hopes of reaching the United States, where they would be guaranteed a legal path to residency thanks to the 1966 Cuban Adjustment Act. In 1991 José Basulto—a participant in the Bay of Pigs invasion who, two decades after the failed coup, declared himself a supporter of Gandhi-style pacificism—founded a group called Brothers to the Rescue (Hermanos al Rescate). The Brothers flew small Cessna planes over the open sea to locate Cuban refugees. When the Brothers spotted a balsa, they would report it to US authorities, who would then pick up the refugees and bring them to the mainland. Juan Pablo Roque and René González, two of the Wasp Network’s agents, successfully infiltrated the Brothers and flew planes for them.

At the height of the balseros crisis, in 1994, more than 37,000 people were apprehended by the coast guard or border patrol. That year, Cuba and the Clinton administration negotiated a deal that limited the number of visas given to Cuban émigrés to 20,000 per year. Cubans who left the island on balsas now risked being turned back. The number of balseros decreased, and Basulto changed his organization’s mission: the Brothers began dropping anti-Castro leaflets and copies of the Universal Declaration of Human Rights over Havana. Havana reported those flights to US authorities, who did little to stop them. Basulto further provoked the Cuban government after a flight in 1995 during which he had to refuel in Havana. He later boasted that he had infiltrated Cuban air space, declaring on Radio Martí, the anti-Castro broadcasting network, “I showed the Cuban people I can easily go through Cuban air defenses and I ask for their courage now to overthrow their dictator.”

On the morning of February 24, 1996, the anniversary of José Martí’s 1895 revolution against the Spanish colonial power, three small planes belonging to Brothers to the Rescue took off from the Miami-Opa Locka airport. The Cuban authorities were informed by American air traffic control of their flight route. During the flight, Basulto also informed Havana that his plane and the others were crossing the 24th parallel and approaching Cuban air space, and he received a warning from the Cuban air traffic controller.

That afternoon, a pair of Cuban MiG-29s shot down two of the Brothers’ planes, piloted by the forty-five-year-old Armando Alejandre, the twenty-four-year-old Mario Manuel de la Peña, the twenty-nine-year-old Carlos Alberto Costa, and the thirty-year-old Pablo Morales, all four of whom were killed. All except Morales were US citizens. According to Basulto, the attack took place above international waters (his claim was later supported by the International Civil Aviation Organization), but the Cuban government stated that the planes were well within its territory. Basulto managed to escape and return to Florida.

Less than one month after the incident, Clinton, who was embarrassed by his earlier efforts at détente with Cuba, signed the Helms-Burton Act, also known as the Cuban Liberty and Democratic Solidarity (Libertad) Act, which intensified the US’s trade embargo on goods from the island and signaled a clear deterioration of the already tense relations between the countries.

The revelation of the Wasp Network profoundly shook Miami’s Cuban community. The FBI had known about the group’s existence since 1995 and had secretly searched Hernández’s apartment, copying more than two hundred of his computer disks. But the US attorney for southern Florida didn’t bring any charges against the spies until 1998, when the Miami FBI came under the control of Hector Pesquera, a Puerto Rican special agent who was sympathetic to anti-Castro exiles. In May 1999, eight months after his arrest on espionage and conspiracy charges, Hernández was charged with conspiracy to commit first-degree murder by providing the Cuban government details about Basulto’s 1996 flight.

When the trial of the five Cuban spies began in late 2000, it aroused little interest in the US press outside Miami and was soon eclipsed by the bitter dispute surrounding the balserito Elián González, the six-year-old boy who was taken out of waters off the Florida coast on November 25, 1999, and whose relatives in Miami claimed custody of him. Elián was eventually returned to his father in Cuba, causing profound unrest in Miami. Garbus argues that the turmoil was stoked by the powerful Cuban American National Foundation and Jorge Mas Canosa, the most influential politician of the Cuban exile community. The furor over the Elián González case weighed heavily in the fate of the Cuban spies. Miami’s Cuban population clearly wanted some kind of revenge against Castro after Elián was sent back.

Although Cuba and the defense attorneys argued that the Wasp Network was only instructed to gather intelligence on Cuban exiles, not on US military activity, the FBI had proof that they had also monitored military bases in southern Florida, supporting the charge that the network was spying on the US itself. This much was clear from the evidence. The trial was controversial, however, for two separate reasons: the additional charge against Hernández relating to the deaths of the four pilots and, more importantly, the challenge of, as Garbus writes, “selecting an impartial jury in Miami.”

“There was a level of misconduct involving pretrial publicity in this case that I had never seen before,” Garbus writes. In his opinion, news outlets such as the Spanish-language Nuevo Herald, under pressure from Mas and Miami’s anti-Castro right, made a fair trial impossible. (“During the 194-day trial,” Garbus notes, one newspaper—El Nuevo Herald, the Spanish counterpart to the Miami Herald—published 806 articles advocating conviction.”) The defense attorneys tried six times to change the venue of the trial, without success. During voir dire, many prospective jurors said that they would have difficulty remaining impartial or that they feared reprisals from the Cuban-American community if the spies were not convicted. Though the jury didn’t include a single Cuban-American member, most jurors expressed strong disapproval of the Cuban government. David Buker, the foreman of the jury, testified to the judge, “Castro is a communist dictator and I am opposed to communism so I would like to see him gone and democracy established in Cuba.”

Garbus, who did not attend the initial trial, says that he has read the 20,000-page court record twice. A lawyer with vast experience—in his sixty-year career, he has represented Daniel Ellsberg, Cesar Chavez, and Leonard Peltier, among others—he argues that many things had gone wrong from the beginning. “The prosecutor’s opening statement was a blatant misstatement of the facts of the case,” he contends. “Cuban intelligence operations were described as ‘an intelligence pyramid’ with Fidel Castro at the top.” It did not help that “mentions of Cuba were often accompanied by one adjective: ‘repressive.’” At one point, “the prosecutors showed photographs of the dead pilots and had a Brothers pilot choke back tears as he read their death certificates. It’s hard to counter that kind of appeal.”

Garbus also believes that the Five were unlucky in drawing Judge Joan A. Lenard, who “had never tried a federal case of this duration with these legal complexities.” Though the trial lasted seven months (Garbus notes that Timothy McVeigh’s trial lasted only six weeks), “less than 10 percent of the nearly 20,000 documents collected in the government raids on the defendants’ apartments were presented as evidence.” A more experienced judge, he argues, would likely have prevented the tearful reading of the Brothers’ death certificates. Garbus writes that Lenard “showed the highest integrity, she tried hard and worked hard,” but he concludes that the “justice system required far more than she could do.”

“The prosecution strategy was simple,” Garbus writes: “show that the Brothers were devoted American patriots, that the Cuban Five were killers, and that their leader, Gerardo Hernández, was directly responsible for the death of four pilots” because he had provided information to the Cuban government. The defense, by contrast, focused “on an argument [it] could not win.” Instead of arguing that the Cuban government didn’t need any information from Hernández to learn of Basulto’s plans for his flight on February 24, 1996, which Basulto himself had broadcast on Radio Martí, “the defense…spent much of the trial parsing the logistical details of the shoot down, because it was crucial to their argument that it occurred in Cuban airspace and was, therefore, legally justified.”

After closing arguments were given in June 2001, “the jury deliberated for five days, a very short time for a trial of this length and complexity,” Garbus writes. The accused were found guilty of the twenty-three acts with which they had been charged. Hernández received two life terms plus fifteen years. The other four received sentences ranging between fifteen years and life in prison. Years later, Hernández’s defense attorney, Paul McKenna, admitted to Garbus, “I made a lot of bad decisions. These guys should not be in jail.”

The ruling was political, the prison terms disproportionate to the crimes. The verdict received strong condemnation from Amnesty International, which raised “serious doubts about the fairness of the proceedings leading to [the] conviction, in particular the prejudicial impact of publicity about the case on a jury in Miami.” Castro launched a tireless international campaign on behalf of the imprisoned men that lasted more than sixteen years. In 2001 he established the National Committee to Free the Cuban Five, which organized hundreds of public events, collected signatures worldwide in support of the prisoners, and paid for large billboards in San Francisco and Los Angeles. The Cuban Five gained support from celebrities such as the actor Danny Glover. The prima ballerina assoluta of the Cuban National Ballet, Alicia Alonso, took out full-page advertisements in The New York Times, The Nation, and The Washington Post. One hundred members of British Parliament signed a petition demanding the Five’s release, as did Nobel Prize–winning activists and writers including Rigoberta Menchu, José Saramago, Wole Soyinka, Zhores Alferov, Nadine Gordimer, Günter Grass, and Dario Fo.

The efforts to free the Cuban Five dominated Cuban political life for years. The streets and public spaces of the island were inundated with their pictures and slogans demanding their release. The Cuban Parliament gave the Five the honorific title of Héroe de la República de Cuba, or Heroes of the Republic of Cuba, and, in the revolutionary style of naming years, decided to call 2002 the Año de los Héroes Prisioneros del Imperio, or “Year of the Hero-Prisoners of the Empire.” State television broadcast endless round tables in which experts from all over the world were invited to discuss the details of the case. The government went so far as to ask a well-known artist to make a replica of the fifteen-by-seven-foot cell in which Hernández spent seventeen months in solitary confinement in flagrant violation of the law. The peculiar installation was exhibited in the Palace of Fine Arts, the Cuban museum of modern art in downtown Havana.

In 2002 Leonard Weinglass became the Cuban Five’s attorney and appealed the initial decision. On August 9, 2005, the defense scored a victory when a three-judge panel of the Eleventh Circuit Court of Appeals ruled that a fair trial had been impossible in Miami. The original conviction was overturned, and the appeals court ordered a new trial in a new location. But in June 2008 Judge William Pryor upheld Hernández’s original sentence, even while reducing the sentences for three of the condemned. “When the planes were shot down,” Pryor wrote, “everything, including the unjustified killing in the jurisdiction of the United States, went according to plan. Hernández’s conviction for conspiracy to murder is affirmed.” In June 2009 the Supreme Court denied review.

After Weinglass’s death in 2011, the Cuban government contacted Garbus to ask if he would agree to defend Hernández. Before making a decision, Garbus traveled to Cuba to interview Ricardo Alarcón, then president of the Cuban Parliament. Alarcón told him, “I have spent more time on the Cuban Five case than I did at the parliament,” adding that “sometimes it was my main job.”

Alarcón asked Garbus whether it would be possible to reverse the initial verdict. At that point, Garbus writes, “the defendants had only one remedy left…. Habeas corpus relief allows the court to review the entire trial and appellate record in light of newly discovered evidence.” The new evidence included reports that “Miami journalists [took] US pay” when covering the trial and advocating for conviction. But even if Hernández were granted habeas corpus relief, the chances that the verdict would be overturned were small.

Nevertheless, Garbus took on the case:

I believed that Gerardo and his co-defendants were innocent. The legal issues in the case involved a dramatic clash between First Amendment rights to…a fair trial and due process and raised questions about a prejudiced media that are among the most important issues in American jurisprudence. I believed the prosecution was politically motivated.

At the end of Garbus’s Havana trip, Alarcón took him to meet Fidel Castro: “I listened to the aging leader in his baseball jacket for three hours,” Garbus writes. “He knew the case thoroughly…. ‘I will take care of the politicians,’ Castro said. ‘You take care of the law.’”

Garbus was amazed by the courage and composure of Hernández, who had not given in to the tremendous pressures of solitary confinement:

Gerardo was singled out for particularly brutal treatment: as the only one of the five who had contact with Havana prior to their arrest, officials apparently believed he could testify against Havana officials who ordered the shoot down and implicate Fidel and Raúl Castro.

The lawyer established a personal bond with his defendant: “I was struck by his quiet dignity and self-respect in the face of unspeakable circumstances… A perfect example of Hemingway’s definition of courage as grace under pressure.”

Garbus comes off as a trustworthy guide to the Cuban Five Case. I find his recapitulation of the evidence honest and his motivations for writing North of Havana well intended, as he clearly wanted to leave a testimony of this unique case in the history of American jurisprudence. Besides, the author is clearly fascinated by the story he tells: “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.”

In December 2009 a sixty-year-old US government contractor named Alan Gross was arrested in Havana and sentenced to fifteen years in prison for espionage. “Finally, finally,” Garbus writes, “the Cuban Five got lucky. Very lucky.” Gross had previously been a government contractor with USAID in Iraq. In 2009 he decided to travel to Cuba and established contact with the remnants of its once-flourishing Jewish community, which now included about 1,500 people. His declared intention was to improve overseas communication by providing Cuban Jews with better Internet access than they were receiving from the state.

Alarcón claimed that Gross was “contracted to work for American intelligence services,” which Gross vehemently denied: he said he was just providing satellite telephones, computers, and external hard drives. He said USAID never informed him that his activities were illegal under Cuban law (and he later sued the agency).

According to the Cubans, Gross was looking to instigate a coup, by, in the jargon of revolutionary propaganda, undertaking a “subversive project of the US government that aimed to destroy the Revolution through the use of communication systems out of the control of authorities.” The Cubans claimed that USAID was a CIA front and Gross a spy. Some say that the American—who lost a hundred pounds during the five years he spent in jail—had always been seen by the Cubans as a token to be exchanged for their own imprisoned agents. “The Cuban regime is obviously looking for some kind of US concession, callously using the contractor as a bargaining chip,” said Representative Ileana Ros-Lehtinen, a Republican member of the House Foreign Affairs Committee from Florida, in 2010. The US continued to deny that Gross was an intelligence agent. After intense and secret negotiations that included the mediation of the Vatican, the parties agreed to exchange Gross for the three Wasp Network agents who were still imprisoned. (René González had been freed in October 2011, and Fernando González in February 2014; in Cuba, both were received as heroes.)

On December 18, 2014, a photo of the freed Cubans was printed on the front page of Granma, the official newspaper of the Central Committee of the Cuban Communist Party, with the banner headline “¡Volvieron!” (“They Have Returned!”) Below it, there was a photo of Raúl Castro and Barack Obama during their historic speeches in Havana announcing a reestablishment of diplomatic ties between the two countries. The message was that Cuba was more interested in the return of the spies than the historic visit of an American president, the first in eighty-eight years. Havana cheered. The Five had returned from the “entrañas del monstruo,” the entrails of the monster—which is how the United States is referred to in the official discourse of the island.

During the official celebrations with the Cuban agents upon their return, Adriana Hernández, Gerardo Hernández’s wife, was in the late stages of a pregnancy. Before Gerardo was released, the Obama administration, in an unusual gesture of goodwill, had allowed an artificial insemination procedure so that the couple could have a baby. Journalists referred to it as “sperm diplomacy.”

Today the Five are part of civilian life and hold public office within the Cuban nomenklatura: Hernández is the vice-director of the Higher Institute of International Relations. They have become celebrities. They travel around the world, and Cuban children recognize them in public and take photos with them. Besides Garbus’s meticulous and fascinating account, two other worthy books have addressed the spies and their trial: What Lies Across the Water: The Real Story of the Cuban Five by the Canadian journalist Stephen Kimber (2013) and The Last Soldiers of the Cold War: The Story of the Cuban Five by the Brazilian journalist Fernando Morais (2011) and translated into English by Robert Ballantyne and Alex Olegnowicz in 2015. Morais’s book is the basis for Wasp Network, a feature film directed by Olivier Assayas and starring Gael García Bernal and Penélope Cruz that was screened at international film festivals in 2019 and acquired by Netflix earlier this year. The Cuban Five have now been immortalized in a movie, the ultimate consecration for the accused spies the Castro regime turned into heroes.

—Translated from the Spanish by Regina Galasso