Gesture for gesture: A historical roadmap for the liberation of The Cuban Five

By
José Pertierra                                                                  Read Spanish Version

INTRODUCTION

Recent
declarations by President Raúl Castro reveal a willingness to engage
the United States in negotiations that, if successful, could mean the
return of the Cuban Five. Responding to reporters´ questions last
December in Brasilia, Raúl said he would free some prisoners
currently held in Cuba in response to a gesture from the United
States to free the Cuban Five. Gesto
y gesto,
he called it: gesture for gesture.¹

Gibbon
said that the only way to judge the future is by the past. And
history gives us the lantern that illuminates a possible political
solution to one of the thorniest issues that still mars relations
between the United States and Cuba: prisoners.

HISTORICAL
PRECEDENT

There
is historical precedent for a mutual release of prisoners on the
basis of unilateral, but reciprocated, gestures. It is little known,
but thanks to U.S. government-declassified documents, we can now
learn about the delicate negotiations that led to a mutual release of
important prisoners thirty years ago.

In
September of 1979, the United States unilaterally released four
Puerto Rican nationalists, and ten days later Cuba reciprocated by
releasing four United States citizens who were in prison in Cuba.²

It
is curious to note that the phrase gesto-y-gesto
that Raúl is now using to urge the release of the Cuban Five is the
same one that his brother, Fidel, used in 1978, when he told U.S.
diplomats Robert Pastor and Peter Tarnoff, I
do not understand why you are so tough on the Puerto Ricans. The U.S.
could make a gesture and release them, and then we would make another
gesture — without any linkage — just a unilateral humanitarian
gesture.³

U.S.
government documents confirm that discussions between the U.S. and
Cuban governments occurred during 1978 and 1979 regarding an exchange
of prisoners. National Security Advisor Zbigniew Brzezinski said in a
letter in 1979 to the Justice Department: Castro
and his representatives have said publicly and told us privately
that, if we release the four Puerto Ricans, they will, after an
appropriate interval, release the four United States citizens
imprisoned in Cuba. . . . . while we should not accept nor even
consider an exchange, the fact that a positive decision by the U.S.
is likely to lead to a positive decision by Cuba to release U.S.
citizens is a welcome prospect.
⁴

THE
PRISONERS WHO WERE FREED

At
the time of their release in 1979, the Puerto Ricans, Lolita Lebrón,
Rafael Cancel Miranda, Irving Flores Rodríguez, and Oscar Collazo,
had been in prison in the United States for over 24 years. The
Americans who Cuba released ten days later, Lawrence Lunt, Juan Tur,
Everett Jackson, and Claudio Rodriguez — had spent more than 10
years in Cuban prisons.

THE
BRZEZINSKI AND PASTOR MEMOS

One
of the most interesting of the declassified documents is a memorandum
written by National Security Adviser, Zbigniew Brzezinski, in early
1979, to John R. Standish, Department of Justice Pardon Attorney. In
the memo, Brzezinski recommends that the U.S. government commute the
sentences of the four Puerto Ricans.

The
Obama Administration could well learn from the Brzezinski memo the
benefits of a gesture-for-gesture negotiation that, if used now,
could reap diplomatic benefits for both countries. In his memo to the
Department of Justice, Brzenzinski pointed out that the continued
imprisonment of the Puerto Ricans lends fuel to critics of U.S.
policy, and that commuting their sentences would be welcomed
as a compassionate and humanitarian gesture.
Brzenzinski goes on to argue that the
release of these prisoners will remove from the agenda of the United
nations, the Non-Aligned Movement, and other international fora, a
propaganda issue which is used each year to criticize the U.S., and
is increasingly used as an example of the inconsistency of our human
rights policy.⁵

Robert
Pastor makes a similar point in a memorandum dated September 26,
1978. After conducting a cost-benefit analysis of the situation,
Pastor concludes: I
have come to believe that the risks of releasing (the Puerto Rican
nationalists) unconditionally are minimal, while the benefits, as a
humanitarian, compassionate gesture, are considerable. I also believe
that the President would obtain considerable political benefit in
Puerto Rico as there is widespread support for such a move there.⁶

THE
CASE OF THE CUBAN FIVE

Critics
of U.S. policy today point to the case of the Cuban Five as an
example of American double-standards: the terrorists are allowed to
roam free in Miami and those who went to Miami to protect Cuba
against the terrorists are thrown in jail. The Cuban Five are part of
a team of agents that Cuba sent to Miami to gather evidence against
those guilty of orchestrating a campaign of terror against civilian
targets in the island: a campaign of terror that has claimed over
3,000 lives. The team infiltrated Cuban-American terrorist groups in
Miami, and using the evidence that the Five gathered, Cuba provided
the Federal Bureau of Investigations (FBI) with the names and
whereabouts of the terrorists. Rather than arrest and prosecute the
terrorists, the FBI learned that Cuba had penetrated the Miami-based
terrorist network and in 1998 arrested the Cuban Five who had gone to
Florida to combat terrorism. On June 8, 2001, they were convicted
and sentenced to four life sentences and 75 years collectively.

The
United States Supreme Court is expected to rule sometime this year
whether the Court in Miami that convicted and sentenced them erred by
forcing their trial in a Miami consumed with hostility and prejudice
against Cuba. Ten Nobel Prize winners have submitted amicus
curiae
(“friend of the court”) briefs asking the Supreme Court to review
the case. The Nobel laureates are joined by hundreds of
parliamentarians around the world, including two former Presidents
and three current Vice Presidents of the European Parliament, as well
as numerous U.S. and foreign bar associations and human rights
organizations.

The
United Nations Human Rights Commission noted that a
climate of bias and prejudice in Miami
surrounded their trial, and the Commission’s Working Group on
Arbitrary Detentions concluded that the trial
did not take place in the climate of objectivity and impartiality
that is required to conform to the standards of a fair trial.⁷

However,
even if the Cuban Five were to win their case before the United
States Supreme Court, their case would be far from over. Instead, it
would mean the beginning of a new trial in a jurisdiction other than
Miami. A far more elegant and swifter solution to their continued
imprisonment would be a Presidential Order of Executive Clemency that
would permit their immediate return to Cuba.

POLITICAL
PRISONERS?

One
important point of diplomatic disagreement between the two countries
is that to Cuba they are political
prisoners,
whereas to the United States the Five are common criminals.

Innocent
of the conspiracy charges against them, Cuban officials maintain the
Five were convicted in a biased and hostile environment in violation
of their constitutional rights.

The
issue of classifying the Five as political prisoners is particularly
thorny, since President Obama will certainly reject the implication
that the U.S. is holding political prisoners. Yet, President Barack
Obama has consistently called for Cuba to release its political
prisoners, before any normalization of relations.

Cuba,
in turn, claims that its own prisoners are serving sentences on the
island for violations of the law and that they are not prisoners of
conscience.

A
direct prisoner exchange runs the risk of the public equating the
crimes, but a unilateral gesture that is followed by a gesture from
the other side softens the criticisms.

Again,
history illuminates our way out of political gridlock. Prior to the
mutual exchange of prisoners in 1979, both Cuban and American
negotiators initially tripped over the use of the adjective political
to
describe the prisoners. That is why they shied away from a direct
prisoner exchange that would have been seen as a tacit acceptance of
the notion that each country was holding political prisoners.

In
a letter to Congressman Benjamin Gillman in 1979, Brzezinski said “we
want to avoid making any connection between the two cases, and
certainly the appearance of equating their crime.⁸
And in a memorandum immediately after release of the Puerto Rican
nationalists, Brzezinski said we
rejected the possibility of a prisoner exchange since we did not
consider the Puerto Ricans political prisoners . . . Now that
President Carter has decided to commute the sentences of the Puerto
Ricans, it occurs to us that it is Castro’s turn to fulfill his
promise.⁹

The
key to a mutual release of prisoners is therefore to avoid a linked
prisoner exchange and instead engage in gesture-for-gesture
negotiations. The good faith of both parties is essential for the
process to work.

THE
PRISONERS IN CUBA

If
the Obama Administration extended a gesture to Cuba and unilaterally
released the Cuban Five, what reciprocal gesture could Cuba offer?
What prisoners could it free and send to the United States?

Miami’s
El
Nuevo Herald
recently cited the cases of several prisoners in Cuba that may be of
particular interest to the United States, including some of those who
were arrested in March of 2003 and convicted in Cuba for working
under the direction and control of the U.S. Interests Section in
Havana, as well as other Cuban citizens imprisoned for espionage in
Cuba.¹⁰

The
difference between these prisoners and those that Cuba freed in 1979
is that those were United States citizens, but the ones in Cuban
jails now are not. Nonetheless, they worked directly for the
government of the United States. Washington does not want to abandon
them, and that is why it always insists on their release as a key
component in the negotiations between the two countries.

Through
diplomatic channels, the United States can signal which of Cuba’s
prisoners are a priority. That is not a problem.

THE
POWER OF EXECUTIVE CLEMENCY

Only
the President has the power to extend executive, humanitarian
clemency. It is not a pardon. It simply reduces the period of
incarceration. The President need not comment on the convictions, or
on the alleged crimes. He need not condition the commutation of
sentences on another country’s actions. He can simply and
unilaterally order that the prisoners’ sentences be reduced to time
served. They would then be immediately released.

CONCLUSION

First
as a candidate and now as President, Barack Obama has let it be known
that he is interested in improving relations with Cuba through direct
diplomacy. The case of the Cuban Five is a major stumbling block to
any rapprochement
between the two countries.

If
President Obama extends executive clemency to the Cuban Five and
commutes their long prison sentences, thus facilitating their return
to Cuba and to their families, it would be quite a significant
gesture and, after reciprocal gestures from Cuba, could eventually
lead to the normalization of relations between the two countries.

José
Pertierra is an attorney. He
represents the government of Venezuela in the extradition case
involving Luis Posada Carriles. His office is in Washington, DC.