The second item on the agenda is the presentation by the Irish National Campaign Seeking Justice for the Miami Five. I invite the delegation to make its presentation. Will Mr. Simon McGuinness make the presentation? I note Ms Eleanor Lanigan wishes to introduce the matter.
Irish National Campaign seeking Justice for the Miami Five: Presentation.
Ms Eleanor Lanigan
I am the chairperson of the Free the Miami Five Campaign. I am accompanied by Simon McGuinness, the secretary of the campaign and Mark McEvoy, a Northern Ireland barrister who is also a member of the campaign. I thank the Chairman, Deputy Woods, and the members of the committee for the opportunity to make this presentation.
I first came across this story in a magazine and it struck a chord with me. It was not long after the Omagh bombing and I could not believe there were men locked up for trying to prevent these same type of atrocities. I subsequently began a correspondence with one of the five, Antonio Guerrero, and this too had a profound effect. I felt compelled to bring attention to this case. I thought that if I wrote to a few newspapers that would do the job, but some 200 letters later and a wall of silence in response I knew this was not going to work.
I started the campaign in earnest when I heard President George W. Bush's 2002 State of the Union address where he said that any country who harbours terrorists is as guilty as the terrorists themselves. What Simon McGuinness is about to tell the committee will question the sincerity of this statement.
I share the sentiments of Livio Di Celmo, the brother of Fabio, an Italian tourist killed in one of the bomb attacks these men were trying to prevent. He said the treatment of these five men is an insult to his brother's memory and to the memory of all terrorist victims.
I will deal with who the five are, what they were doing in Miami and how their human rights have been violated in terms of an unfair trial, excessive and unwarranted sentences and prison abuses while they have been in custody. I will also advise the members what stage the case is at currently and pass on some requests that we believe the committee would be interested in taking further.
I will deal first with biographic details on the five. Five Cuban men, the subject of this campaign, are regarded as either dangerous international spies or heroes in the war against terrorism, depending on who tells the story. Gerardo Hernandez is 40 years old and a graduate in international politics. He is married to Adriana and they do not and are unlikely to have children because of his incarceration. Gerardo is an accomplished cartoonist and has had work published in the Cuban media and also books of his work published. He is serving double-life plus 15 years for crimes he did not commit.
Ramon Labanino is a 42 year old graduate in economics. He is married to Elizabeth and has three daughters. He has received family visits unlike some of the five, averaging approximately two per year. He is serving a life sentence plus 18 years for crimes he did not commit.
Antonio Guerrero is 46 years old and the father of two sons. He is a graduate in civil engineering and a published poet. He is the person to whom Eleanor has been writing. He was recently prevented from collecting stamps as part of his severe prison conditions. He is serving life plus ten years for crimes he did not commit.
Rene Gonzalez is a pilot. He is 48 years old, married to Olga and has two daughters. His youngest, Ivette, has only seen her father once since he was detained, during which visit he was chained hand and foot and the two-year old asked if he was now a dog because he was in chains. He is serving 15 years for crimes he did not commit.
Fernando Gonzalez is 41 years old and an honours graduate in international political relations. Fernando successfully infiltrated the group run by what someone from the US immigration service described as the "most dangerous terrorist in the western hemisphere", a man called Orlando Bosch. Fernando is serving a sentence of 19 years for crimes he did not commit. They are the five.
I will briefly outline the history of this case. The number of individual terrorist acts against Cuba is overwhelming. There are far too many to even begin to describe here; suffice to say that almost 3,500 Cubans have been killed and 2,000 maimed in attacks perpetrated by extreme right wing terrorist groups based in Miami. To put it in context, this is more than all of the deaths on all sides in the Northern Ireland Troubles over the same period, yet we in Ireland know nothing about this problem that we must deal with as a campaign.
Ever since President Eisenhower established the policy of regime change in Cuba, US official funding has found its way through various channels and non-governmental agencies into the hands of organisations based in Miami which have waged this terrorist war. The groups in question include Alpha 66 and Brothers to the Rescue, the members of which boast in the US media about their involvement in terrorist acts against Cuba. Former members of the CIA have revealed that they were directly involved in arming and training anti-Cuban terrorists based in Miami who carried out attacks against civilian targets in Cuba. One such incident was the first recorded bombing of a civilian airliner in 1976, in which 73 Cubans lost their lives. Orlando Bosch, "the godfather of anti-Castro terrorism", served the first 11 years of a much longer sentence in Venezuela for this terrorist act. Technically he is still on the run from Venezuelan justice.
By 1991 Cuba was reliant on tourism as its main foreign currency earner. In a direct attempt to prevent economic recovery in Cuba a campaign of bombing tourist resorts was instigated by Miami based terrorist groups. Several well known hotels were damaged by bomb blasts in which several people were injured and one Italian tourist was killed. A copy of a letter from the brother of the tourist in question is included in the information pack we have provided.
In response the Cuban Government sent five agents to Miami to infiltrate the terrorist groups to see which of them was carrying out the bombings and to allow them to take action to intercept the bombers en route to Cuba. The five were successful, sending back information that proved instrumental in preventing several attacks. The information they collected built up into a substantial intelligence dossier on the workings of the terrorist groups. The Cuban Government invited the FBI to Havana and presented it with 4,000 pages of documentary evidence on the activities of the groups concerned, information the Cubans felt confident would lead to arrests and prosecutions but they are still waiting. The FBI arrested the five Cubans.
I will now deal with the charges brought against the five. The four main charges were travelling on false passports, failing to register as foreign agents, conspiracy to commit espionage and conspiracy to commit crimes against the United States of America. It is clear that their purpose would have been rendered impossible if they had not disguised their identities and notified the FBI of their plans in advance. They pleaded guilty to these two offences which are considered misdemeanours and for which crimes many have simply been deported from the United States. Very few are serving life sentences in prison for them.
The conspiracy charges were a cynical attempt to associate the five with crimes in which they had absolutely no involvement. It appears a charge of conspiracy reverses the presumption of innocence and it becomes necessary for the defendant to prove that he or she did not conspire with others to carry out the crimes in question. This has led to convictions only on the grounds of the presumed attitudes and views of the accused.
The defence called senior US military and intelligence officials who testified that not one single page of secret information was transferred to Cuba by the five and that no breach of national security had occurred as a result of their activities, yet they were convicted. They were sentenced to the maximum term on this charge which they are serving in prison as notorious spies from the cold war era who passed thousands of highly sensitive documents to the Soviet Union.
Seven months into the trial a further charge was added by the prosecution, conspiracy to commit murder in the first degree. The prosecution sought permission from the trial judge to withdraw this charge subsequently but the judge denied the nolle prosequi motion. Apparently, this charge relates to the shooting down by the Cuban air force of two aircraft operated by the terrorist group Brothers to the Rescue as they entered Cuban airspace on a direct course for Havana. This has shades of the events of 11 September 2001. In spite of the fact that no evidence of his guilt was presented and that proof of his non-involvement was provided for the court Gerardo Hernández was found guilty and sentenced to the maximum sentence of two life terms in prison to run consecutively.
The trial was deeply flawed. It was noteworthy in many respects, the partiality of the trial judge being one. I cannot go into detail in such a short time because the volume of procedural and legal violations is simply too overwhelming to deal with in this forum. I urge the committee to seek testimony on this aspect of the case directly from the defence team. If we get an opportunity, we will read a letter from the defence team which summarises some of the more glaring failings of the Miami court. Suffice to say, the National Lawyers' Guild of the United States awarded the defence team its gold medal for the best presented defence in any US courtroom in the year they were defended. The team members have subsequently gone on record to confirm their belief the convictions are unjustified and the sentences unwarranted. They have filed a lengthy amicus curiae brief with the court of appeal.
The original trial took place against the backdrop of the Elian Gonzalez affair, where a six year old Cuban boy was found floating on a rubber inner tube off the coast of Florida and became the subject of a custody battle between his uncle who lived in Miami and the boy's father who lived in Cuba. Into this cauldron of anti-Castro hatred fell the trial of the five alleged Cuban agents who had been acting against some of the main protagonists involved in the Elian Gonzalez custody case. It is not surprising that the first motion entered by the defence was for the trial to be moved out of Miami. It is surprising, however, that this motion was refused by the trial judge. Even Timothy McVeigh was allowed to be tried outside Oklahoma.
Our campaign is not alone in recognising that the five did not receive a fair trial and we are not alone in calling for a fair retrial in a neutral venue. Hundreds of NGOs from all around the world, including international human rights organisations, lawyers' groups, parliamentarians, trade unions and academics have all made the same demands.
The original trial was one of the longest in US history. The judge acknowledged that members of the jury had been intimidated. All were filmed entering the courthouse and their identities became known to terrorist groups in Miami. Some of the most notorious Miami terrorists, extremely dangerous individuals well known to members of the jury, were seen making high profile announcements to the television cameras from the steps of the courthouse during the case. Acquittal would have put jury members at extreme personal risk. The jury took less than two hours to review all the evidence and pronounce the five guilty on all charges. I have no doubt that jury in that city would have found them guilty of the murder of John F. Kennedy if it had been asked to.
The judge imposed the maximum sentence on each and every count, even splitting the two life sentences to run consecutively. She further imposed the unprecedented and incriminating release condition that some of the five were to be precluded for life from associating with "known terrorists" based in Miami. The very constitutionality of the judge's sentence is in question.
I will now deal with the imprisonment and cruel and unusual punishment of the five. Before the trial they were held for 33 months without bail, 17 in solitary confinement, typically only used to punish prisoners guilty of violent crimes after conviction. US prison regulations permit a maximum of 60 days in solitary confinement. The five were model prisoners then as they are today. Some of their prison experiences parallel those of prisoners recently released from Guantanamo and Abu Ghraib prisons. At times they have been denied access to legal and consular representation. They are held separately in five of the most notorious maximum security prisons which are widely distributed across the United States.
Amnesty International has repeatedly sought information on behalf of the five and their families from the US authorities on these reported abuses but has been met with a wall of silence. Amnesty International has even characterised the denial of family visits to two of the five as a form of torture. This provoked the US Attorney General to suggest that the two women in question were considered terrorists and were excluded from the United States for that reason. Needless to say, no evidence was offered by him to support that outrageous and wholly unfounded charge. Furthermore, Ivette, the six year old daughter of René González, who is herself an American citizen, could find herself in exactly the same position as Elián González if she enters the US without her mother. That is why she has been unable to see her father in the past four years.
Let me deal with the appeal process. The five have appealed for a complete retrial on the basis that the original trial was grossly unfair. The appeal court heard their appeal in March last year and has yet to give its judgment. No explanation has been offered for the unprecedented delay in issuing judgment, which has added to the distress of the prisoners and their families. In spite of all that has happened to them, the five believe that if proper safeguards enshrined in the US constitution are applied, they will receive a fair trial in the USA. It may take political pressure from outside the US to ensure that this happens sooner rather than later.
I will deal now with what I believe this committee can do. We have four pointers for action. First, we would like the committee to invite a representative of the defence team to explain the legal abuses that took place in the process. We ask the committee to send somebody to the prisons to meet the prisoners. We would like the committee to issue a request, and this can probably be done quite quickly, to the US authorities to permit family visits for all five prisoners. We would also like the committee to report on this case to the Minister for Foreign Affairs requesting that he take the case to the EU Council of Ministers.
Mr. Mark McEvoy
I have a letter here which came from the lawyer of one of the five men, Mr. Leonard Weinglass. It might take some time to read it, but I could leave it until the end if the committee wants to continue with questions. I am at the committee's disposal.
It is a comprehensive letter.
Mr. McEvoy
It is. It sets out the legal grounds for the appeal.
Would you like to proceed with the legal grounds?
Mr. McEvoy
This is a letter that was written to the Chairman of this committee. It states:
This office represents one of the five Cuban men (Antonio Geurerro) who is currently held in prison in the United States as a result of his and his co-defendants having been convicted of various federal offences——
That has been circulated to the members. I have a copy of it as well. It is a comprehensive letter. There is no need to read it. However, if there is any point you would like to make about it you can do so.
Mr. McEvoy
It can be used as a basis for dealing with any questions the committee might have.
Deputy Allen has indicated he would like to make a contribution.
Could Mr. McGuinness tell us whether he accepts that there is merit in any of the prosecutions for travelling on false passports, failing to register as foreign agents, conspiracy to commit espionage or conspiracy to commit crimes against the USA?
The five pleaded guilty——
Sorry, you can answer afterwards.
All right. I will make notes.
We must accept that the five people involved were Cuban Government undercover agents operating in a foreign jurisdiction. I have asked a specific question. Does Mr. McGuinness agree that some US laws were infringed in their activities in Miami? The situation as set out by Mr. McGuinness is very interesting and raised some questions. However, I find it difficult to accept that we as a Parliament here can attempt to interfere with the judicial process in another country. There would be severe resentment in our jurisdiction if the United States mounted an international campaign against a process our Government was pursuing. How does Mr. McGuinness propose we deal with the issue of interference with a sovereign government's right to prosecute individuals it believes has broken its laws?
I am very interested in what has been said here today by Mr. McGuinness, Mr. McEvoy and Ms. Lanigan. I was instrumental in the foundation of this committee. I have been on it since it commenced. The first thing this committee did was to exert pressure on our representatives in New York to change their position, which we successfully did, with regard to Cuba in support of the Cuban people. I make no apology for strongly supporting what has been said here today. I accept that technically there may be some offences. I have said the same kind of thing regarding the so-called Colombia Three, and some people might find it a little odd that on this occasion I am very strongly in support of the people in Miami. I would also like to point out that in the last while the United States Administration has been very openly boasting of the secret agents it had got into Iran. We need to keep that in context as well.
Technically some law may have been broken, but there is, as is pointed out in one of the excellent leaflets, the question of the state of necessity as a legal doctrine, the fact that this was an intervention in order to prevent gross attacks. I speak with some feeling on this. As a member of this committee I was in Cuba around that time. We visited locations that could quite easily have been bombed and the committee might be sitting here today on the anniversary of the murder of Irish parliamentarians by people like this lunatic, Orlando Bosch, who is one of the most disgusting, reptilian human beings on the face of the planet, and is covered by American protection. Three and a half thousand people have been killed, more than were killed on 11 September 2001. That is a parallel I would bear in mind.
No evidence whatever has been introduced that these people engaged in, were contemplating or were implicated in acts of violence against United States citizens. They were in fact involved in attempting to prevent this. It is a Swiftian world that we enter. We enter a world of mirror morality where good is bad and evil is to be commended. This information was assembled in good faith. I acknowledge there were infringements and they should be given some kind of penalty, but not this utterly disproportionate rubbish and then have them handed over to the FBI and the American authorities who arrest the people who tried to save life while they continue to celebrate the people who were planning further acts of destruction. I find that abominable. The majority of people in the United States would find it abominable too if they knew. The people of Ireland would also find it abominable if they knew.
I hope this campaign will get very wide publicity because this kind of miscarriage should be exposed. There are so many aspects to it. Recently we had an apology from the British Prime Minister, Tony Blair, regarding a miscarriage of justice. This is a festering, shocking, disgusting and continuing miscarriage of justice. Look at the location. How could anybody get justice in Miami? It is simply impossible. That case should have been moved. I believe there are appeals in this matter.
I strongly support the four proposals, if they are found to be within the remit of this committee, that we should invite a submission from the defence. It would be no harm to send people there to visit the prisoners because we undertake valuable fact-finding visits. Perhaps I am wrong but I understand this is within our remit. It would be no harm to do so on humanitarian grounds as a friendly country. I insist on this — we are friendly to the United States of America and to its people but we are not friendly to criminal miscarriages of justice and why should we be? It is no part of being a friend of the United States to be supportive of these appalling acts.
Other people should have an opportunity to contribute and there may well be very different views. I differ strongly from Deputy Allen on this because I think there was a lack of balance in the way the question was asked, which was reasonable. It was perhaps asked in a stronger way than I would have done. There is no balancing concern about the lives of people. On a human level, I have had the opportunity of meeting two of the wives of these people, two people who were described as terrorists. I have met terrorists in my time. They were the most unlikely people I have ever come across. I have met ex-terrorists in this House from all parties and not just one that might be blushing.
Is the Senator blushing?
I do not believe these people had any association like that and I strongly hope this committee will take action in the matter.
The Senator has terrorised a few people in this House.
In that case I withdraw any remarks that might have been suggestive.
The Senator does not have the monopoly of compassion. Each of us is entitled to make our judgment based on what is presented to us.
Of course.
We should not be lectured for our views.
I am perfectly entitled to make my views known. If the Deputy is lacking passion that is not my problem.
I did not say I was.
I do not apologise for having passion although it would be a poor day in this country if we were not allowed to be passionate about matters of injustice.
Senator Norris, through the Chair please.
Perhaps the Deputy could also go through the Chair.
I did go through the Chair.
I welcome Mr. McGuinness, Ms Lanigan and Mr. McEvoy to the Joint Committee on Foreign Affairs and thank them for their work on the Miami Five case and also on the broader issue of trying to build and develop the relationship between the Irish and the Cuban people. That there was a miscarriage of justice is an important aspect of the case of the Miami Five. We have to build and develop the relationship between the Cuban people and the Irish people. Given our history and our experiences in miscarriage of justice cases, the Irish people will provide a sympathetic ear to the case. I thank and commend the delegation for its work on that case.
I shall ask a few questions which the delegation may wish to bank. First, it said the campaign is dedicated to the 3,478 Cubans killed and the 2,099 maimed by groups based in the US. Given the delegation's recent experience in dealing with this case, are these activities still taking place against the Cuban people? My second question relates to the international aspect of the campaign. What other international groups are supporting the case of the Miami Five and what other lawyers or politicians from the international scene are supporting the case? In his submission, Mr. McGuinness mentioned that the Cuban Government invited the FBI to Cuba to discuss the whole issue of terrorism on Cuban soil. Perhaps he could expand on what happened at that meeting.
In regard to the two recommendations, the visit to the prisoners is an option for the Joint Committee on Foreign Affairs and an essential part of the campaign. Equally important would be to get the defence lawyer to visit this committee or Ireland to outline in detail the legal aspects of the case and also the broader international implications. I commend the delegation on its work and wish it well in the campaign.
I say, well done to Mr. McGuinness on a well presented case. I knew very little about this case despite the best efforts of the Cuban consulate here which has been sending us a great deal of information on it. Mr. McGuinness presented the case in a way that convinced me that the committee should take a stand and should support, as Senator Norris has said, the requests put to us today.
Before the meeting I read the briefing note from the Department of Foreign Affairs. I am extremely disappointed in the Department of Foreign Affairs and I fail to understand how it could send us a briefing note which, if I could summarise, gives the impression that the organisations in Miami were simply intent on distributing or dropping leaflets from planes at some human rights demonstration in Havana. There is no mention of the 3,500 Cubans killed or the litany of acts of terrorism we have heard. There is no mention of anything. I do not like saying this because in my dealings with the Department on the Colombia Three and other cases I found it to be fair, but this is the type of briefing note I would have thought would have come from the US Embassy——
Perhaps it did.
Perhaps it did, and not from the Department of Foreign Affairs. In addition to the request put to us today I suggest the committee consider asking the Department for an explanation on its briefing note and why it is so appallingly one-sided and the reason it did not go into the context of the case. It would not be necessary to do so in the manner outlined by Mr. McGuinness but an element of balance would have been valuable to all of us. If we are to consider any issue before us we need objective balanced information and I would have expected that from the Department. No reasonable person having read the one page briefing could consider it. Having listed to Mr. McGuinness' account it could not be considered to be balanced in the slightest way. I am concerned about that because it appears to reflect thinking in the Department on this issue. If nothing else comes out of this, we should redress the issue of imbalance from the Department. I second what Senator Norris has said and ask the joint committee to support the recommendations put to us today by the delegation.
I thank the delegation for coming before the joint committee to give us the benefit of its briefing and compliment it on the extent of the briefing notes. I do not agree with the last couple of speakers simply because I do not have, nor was it presented to me, the full range of information in a less than one-sided way. We have a comprehensive document from the delegation which in itself is one-sided by virtue of the fact that it has to be in order to present the case. It is like counsel for the defence, that is the way it goes.
I agree with my colleague, Deputy Allen, that no one person or one party has the monopoly of compassion in this House. We all have our views on various issues that have arisen in recent years, such as the Birmingham Six and the Guilford Four, and some of us were deeply involved in those issues long before it became popular to so do. I wish to clear the air on that aspect. My colleague, Deputy Allen, who had responsibility for that area, supported the change in the relationship between the US and Cuba and has supported the Cuban position on numerous occasions. He has also become involved in human and civil rights issues in various other Latin American states. He does not need to be reminded of his responsibilities.
A briefing has been provided to the committee by the Department of Foreign Affairs. I do not always agree with the Government but I have to accept that it has been democratically elected and that this is a sovereign state. When the Government presents its case as it has done, it is incumbent on this committee to ask questions of Government as to the basis for its conclusions. It is not our business, in my view, to come to conclusions ourselves in the absence of that information. I suggest an amendment to the proposal and that the committee seek further information from the Department of Foreign Affairs with a view to establishing more information than is given to us in the one-page synopsis.
In the catalogue of atrocities committed over the years, both 11 September 2001 and events in Northern Ireland are usually regarded as a barometer against which everything is measured. Each situation should be dealt with in its own right and on its own merit. Comparisons should not be made between situations.
I have no doubt that several thousand people have lost their lives in dubious circumstances on both sides. I am a little worried that the five people in question were arrested and tried. Apparently they are implicated in the shooting down of two airplanes which, according to the Department's briefing document, were dropping leaflets over a human rights demonstration. Unless the airplanes were en route to shoot or kill somebody else, their shooting down was scarcely a normal response if they were merely dropping propaganda leaflets. Propaganda has long been a part of the armoury of war. I ask the delegation to respond to that aspect of the situation as presented to the committee.
Various comparisons are made with the Colombia Three and other groups in recent history. I believe that every case should be dealt with on its own merit and should not need to lean on any comparable cases on one side or the other. The case is either right or wrong. The right to assume one has the right to take the lives of others in pursuit of a cause, just or otherwise, is highly questionable when it involves innocent people. Armies go to war and that is the established practice. It is not a nice thing but it happens. In recent years, it has become the case that if a cause is celebrated enough, if a war is holy enough, it has become acceptable to take innocent lives, whether by car bombing or by other means, in order to justify or to highlight that cause. This is totally unacceptable and will remain so.
I thank the delegation for its submission. As I cannot claim to be a legal expert, the delegation may be able to help me understand an aspect which has been outlined in the smaller document. It quotes the law called the state of necessity. Is that a principle that applies in Irish law or international law or is it a principle of American law? Some members of the committee were in Israel and Palestine a few weeks ago. Would this law, if invoked, justify what the Israeli Government is perpetrating against the Palestinians, in other words, degrading and inhuman treatment and the deprivation of human rights? Does this law justify the carrying out of suicide bombings? Can this principle of the state of necessity be invoked as a convenience to hide other motives for carrying out various acts, no matter how justified they seem to the perpetrators? Clarification of this aspect would colour my approach to what the delegation is seeking here.
The delegation referred to the judgment being delayed in the appeal. Is there any indication of the timeframe for a decision? If the finding is against the five men, what options are open to them in the United States to take other court actions? Will they be dependent on international support and support within the United States in order to win their freedom?
I invite the delegation to answer the questions raised.
I do not propose to deal with the legal questions as I am not legally qualified. Mark McEvoy will deal with them. I will respond to Deputy Allen's contribution. He asked whether there was infringement of US laws. There quite definitely was infringement. The men pleaded guilty to two of the charges, that of travelling on false passports and the charge of failure to register as foreign agents. They were convicted and they will serve their time for those offences; they are not appealing against serving time for having committed those crimes in the United States. What is at issue are the other unjustified crimes with which they have been charged and for which they have been found guilty. This is our focus. It makes our job difficult because we cannot say they are innocent men. We cannot claim they are not agents of a foreign government because they are agents of a foreign government. What we are trying to do is to split out the bits for which they are responsible and which they admit and for which they will serve their time. These must be separated from the charges which are unjustified and for which excessive sentences were handed down. We have a difficult task in separating the two things. I fully agree with the Deputy that if they have committed crimes they deserve to do the time. I have no problem with that.
On the question whether we should interfere in any way with the judicial system of a foreign country, I am fully supportive of the notion of sovereignty. I would be the first to protest if the United States tried to influence Ireland's legal system. Such interference is not part of our campaign in any way. We are very careful of what we say and very careful in what we have asked this committee to consider. We do not wish to interfere in any way with the ongoing legal process. The appeal by the men is currently under consideration. We do not wish to say anything to jeopardise the outcome of that appeal. We do not wish the committee to do anything that would in any way influence or jeopardise the outcome. We believe the US system will give them justice but to date that has not happened; it is only a matter of the length of time.
Excessive delay has been a very strong feature of this case. The men have been 33 months on remand without bail waiting for their initial trial. They have spent 17 months in isolation which is unjustified. This is the eleventh month waiting for the outcome of the appeal process to be handed down. It took only 15 minutes to present the evidence in their defence at the appeal hearing. I wonder why it takes 11 months to consider 15 minutes of oral evidence. It is impossible to understand. Justice delayed is also justice denied. All the while, children are growing up without their fathers. Their imprisonment is unjustified. They would all be out if they had been sentenced to 18 months or two years on passport offences and would be at home now with their families. We would be out of business without a job to do, which would be great.
Senator Norris has been very supportive of the campaign and open to what we have had to say. He has also managed to meet the families of the men which has been useful. We are thankful to have his voice in our support.
Deputy Finian McGrath asked questions about the 3,478 people who have been killed and whether killings are still taking place. The answer must be yes because the Cubans have not dropped their defences. The five agents in question are probably not the only agents active in the field and feeding back information to enable the Cubans to take evasive action. While we cannot be certain, we presume the campaign continues. This year, the US Congress allocated $59 million to fund the activities of groups, generally considered to be anti-Castro, which are based in Miami and Cuba. We have little knowledge about the destination of this funding.
Mr. McEvoy will respond to Senator Norris's question on other groups and lawyers which support the campaign. As regards the famous FBI visit to Havana, when Bill Clinton came to power a degree of dialogue opened up. This had not previously been noticeable. The Cuban Government indicated that it had the relevant evidence and asked the US Government to send officials to Havana to collect the documentation. It also indicated it would explain from where the evidence came and what it entailed. It asked the US Government to arrange to take the documentation to America and deal with it through normal US legal processes. It presented transcripts of telephone conversations and similar material. Approximately 4,000 pages in four volumes of Lever Arch files were handed over to the FBI. Nothing happened for two months until the doors were kicked down in the apartment buildings of the five Cuban agents. No prosecutions have been taken on foot of any of the evidence presented to the FBI, which is available and can still be activated.
Deputy Gregory referred to a one-page briefing note from the Department of Foreign Affairs. As I have not seen the document, I would be delighted to receive a copy. Each of the 3,478 people killed was an individual and their deaths are to be regretted regardless of who they are. I hold no brief for any organisation which uses killing as a means to advance its cause. The fact that the Department of Foreign Affairs issued a briefing note which the Deputy describes as one-sided does not surprise me. We have been knocking on the Department's door for three years without success.
While imbalance is a factor in the briefing note seen by members, it may also be a fault in our briefing. The joint committee is being asked to create a balance. Members do not have the full evidence but partial evidence from two different sources. The horse's mouth on this matter is the defence team. Members of the joint committee should invite the team to appear before the committee, listen to what it has to say and then make up their minds. They should not rely on partial evidence submitted by us or the Department. We do not have all the details and have only glossed over the circumstances of the case.
In discussing balance and the absence of all the information, I addressed Deputy Durkan's point. Members have not received full information from the Department of Foreign Affairs. As regards the notion that it would be acceptable for aeroplanes to illegally fly over Dublin if it transpired that they were about to drop leaflets, one cannot afford to wait until aeroplanes arrive and leaflets begin to appear before deciding whether the cargo is leaflets or bombs. The group in question had previously dropped bombs and biological agents which caused disease in pig farms. A large number of pigs were slaughtered in Cuba because biological agents had been dropped on farms from aeroplanes. The Cubans regard every single attack on their airspace which emanates from the United States as potentially a matter of life and death. Nobody should be or is under any illusions in that regard.
The group in question had also received 27 warnings not to infringe on United States and Cuban airspace from the aviation authorities in the United States and the Cuba, respectively. Some of its pilots had their Federal Aviation Administration licences withdrawn for violating Cuban airspace on previous occasions. The people involved were well aware of what they were doing. The reason they did it was to test Cuban defences. In this case, two people lost their lives which is regrettable but they were fully responsible for their actions.
I hold no brief for anybody who wants to take human life as part of a cause — it is not part of our campaign — but I hold a brief for people on all sides who deserve justice. I am deeply offended by the fact that children are growing up without fathers as a result of injustice. That is the reason I am involved in the campaign.
Deputy Carey raised the legal principles involved, while Deputy Ó Snodaigh asked a question on the options open to the men should they not receive a fair trial. Mr. McEvoy will deal with both issues.
Mr. McEvoy
As regards Deputy Ó Snodaigh's question, the five men currently await judgment from the US Court of Appeals for the Eleventh Judicial Circuit in Atlanta. Their appeal was heard last March, 11 months ago. If the court's decision goes against the men, I understand — I stand to be corrected on this — they will have an option to take a case straight to the United States Supreme Court. Obviously, this would require them to discern some error of law in the court's decision. If the court was to rule against the five men, it would have stood over fairly egregious errors of law from the decision of the trial judge and jury at first instance. In summary, the men's only option is to go straight to the United States Supreme Court.
With regard to Deputy Carey's question about the principle of the state of necessity, it was perhaps not helpful to include it in the pamphlet in these circumstances because it is a problematic concept that has arisen since the Second World War. To draw an analogy with human rights law, it is a balancing exercise wherein the acts of the person who is, for example, proceeding under a false identity are balanced against the acts the person is seeking to stop. Are the former acts the lesser of two evils? This will always be a problematic concept.
Is there an objective determinant?
Mr. McEvoy
No. The reason is that there never has been a proper forum for the question to be adjudicated upon. We did not have a proper international court prior to that which has been recently instituted in The Hague.
Would a verdict in England, if they were acquitted by a jury, be a precedent?
Mr. McEvoy
It would be a possible analogy. The question is problematic. From recollection, the state of necessity principle has been used by the Israeli Government in the past. It is, however, so subjective as to be almost obsolete. It is not an issue about which the International Criminal Court in The Hague would like to make great play.
As I may have stepped outside my remit as a lawyer, I will return to Deputy Allen's comments about sovereignty and the circumstances in which we should be mindful of treading on the sovereignty of the United States. On any analysis, we are not giving a full-blown critique of the US criminal justice system. It is not an assault on the US constitution or anything of that nature. I am convinced that the United States constitution provides for the machinery to ensure the men receive a fair trial. It stands testament to the integrity of the United States criminal justice system that, in circumstances such as these, the criminal process has been politically objectified.
My colleagues who are defending the five men are civil libertarians of note. While in some quarters they may be said to be crusaders, they have defended people who share their convictions and others who hold diametrically opposing convictions and policies, for example, Abu Mumaya, an Islamic intellectual who was convicted of various terrorist offences. As far as I am aware, Mr. Weinglass who is defending Mr. Guerrero does not share any of Mr. Mumaya's Islamic convictions but was prepared to defend him.
In the past United States Congressmen of note have had no difficulty in making welcome interventions to the United Kingdom Parliament concerning perceived miscarriages of justice. For example, Congressmen Peter King, Tip O'Neill and Thomas Foley did a great deal of good work to ensure justice was done in the cases of the Guildford Four, Birmingham Six and Maguire Seven.
On a point of information, which other individuals or groups are involved in this campaign? Does it receive any funding from the Cuban Government?
Mr. McEvoy
I am not a member of the campaign. I am simply an independent lawyer with an interest in the campaign which was brought to my attention in human rights publications I read. I have no political axe to grind. In fact, I worked for a summer for Congressman Jim Walsh, whom some members may know.
I do not doubt the probity of any members of the delegation, nor do I wish the question to reflect in any way on their commitment. I am asking for contextual information. Which other individuals or groups are involved in the campaign? Does it receive funding from the Cuban Government?
The campaign is paid for out of our own pockets. We have also raised some funds from trade unions.
I am curious about two specific questions, one of which Mr. McGuinness has answered. Will he answer the second?
Will the Senator repeat the question?
What other individuals, groups or organisations, either nationally or internationally, are involved in the campaign? Are the members of the delegation acting unilaterally?
We are the only such group in Ireland. Other groups, sister campaigns, are active elsewhere. For example, there are "Free the Five" campaigns in the United States and many European countries. Although I am in contact with other groups on a monthly basis via the Internet, there is no overall co-ordination. One of our major problems is that we have never met other groups and our campaigning is not co-ordinated at any level. Our group is relatively new and small.
The question was prompted by the reference in the briefings to Amnesty International. I wondered whether the campaign dealt with Amnesty International or other organisations.
While Amnesty International has been supportive, it has not delivered in that it has not been able to get answers from the United States authorities. Amnesty International covers this case and all other aspects of human rights.
I apologise as I must leave the meeting. I hope the delegation does not misinterpret vigorous questions as equating with a lack of sympathy. The joint committee should request a more detailed briefing from the Department of Foreign Affairs.
I apologise for my late arrival which was the fault of Iárnród Éireann. I had a lovely scenic bus tour from Athlone through Portarlington before linking up again with the train.
Free the Oireachtas One.
I supported the original request that the joint committee hear from the committee supporting the Miami Five. I am familiar with the case the delegation has made. I am delighted so many members of the joint committee are present. It is the largest attendance in a long time on an issue of great importance.
With regard to paragraph 5 of the briefing document provided by the Department of Foreign Affairs, it is not true that the Minister for Foreign Affairs, as has been pointed out in parliamentary questions, has no standing in this case or that it is an issue between the Cuban and United States authorities. The Government has standing because it is a signatory to a large number of human rights charters and conventions.
There is merit in the proposal to hear from a member of the men's distinguished defence team which has been honoured in the United States for its professionalism in preparing a defence case. We should also take seriously the desire expressed by members of the committee to seek balance by hearing different views on the issue. We should invite someone like Professor William Shabas of the Irish Centre for Human Rights who has experience of the Rwanda and Sierra Leone tribunals and wrote one of the most popular texts on the abolition of the death penalty. He would provide an excellent viewpoint on this issue.
My colleagues should bear in mind the nature of the charges against the men and the atmosphere in which they were laid. It behoves us to be interested in this case, not only because of the five men and their families but also because of what is coming down the tracks as regards the abuse of the concepts of terror, terrorism and terrorist. The absence of definitions in these areas could result in the wrecking of individual countries and independent legal systems. For example, if acts of terror are being perpetrated against one's country and one seeks to stop a terrorist act without interfering with the integrity or security of the country in which one happens to find oneself, the position in international law is entirely different from the arbitrary process through which the five men in question have been dragged.
I remember travelling through Miami many times after the Somoza and Salvadoran dictatorships were deposed. To hold a trial in an atmosphere influenced by the representatives of the last vestiges of la dictadura contravenes the fundamental principles necessary for the creation of an atmosphere of jurisprudence.
Mr. McGuinness's unequivocal dissociation of the campaign and its members from any act which threatens the life of another person is very important. I hold the same view. The inescapable context is an illegal blockade of Cuba and an attempt to dislodge the Cuban economy and infiltrate Cuban society. Whatever critiques people may want to make of aspects of Cuban life and society, these can be made in Cuba, international fora and Geneva. There is regular use and abuse of telecommunications and an illegal use — no one disagrees on this point — of trade blockades. Whatever can be done about aeroplanes flying into a country's airspace, dropping leaflets and fomenting trouble is not for me to judge. However, I am interested in hearing a balanced presentation.
In no circumstances is this simply a matter between two countries. The issue gives rise to international policy considerations. The Cuban blockade has been and is a matter for the United Nations. The dislodging of a neighbouring country and interference in its systems, economy, society and government is a matter for international politics and several international conventions.
This committee can learn a lot from someone such as Professor Schabas about how the crimes of which one is accused can change as one goes through the process. The United States Supreme Court may have to decide this case. If so, so be it. We cannot simply say the people concerned are five Cubans who happened to get caught up in what the United States regards as an illegal act, that it is a matter for the United States legal system, not for us. In essence, it is a matter for us, profoundly so.
I support the suggestion that the committee hear from the representative of the defence team on this specific issue and other more general ones. I suggest the committee invite Professor William Schabas. In the interim it should strongly support and make consular representations in respect of the atmosphere and circumstances of the five men and their families.
Having heard lectures consistently for weeks about the establishment of democracy, liberty and freedom all around the world, it would be good if people began with their neighbours and respected the sovereignty of both countries. Frankly, this committee is not disinterested as shown by the fact that so many members are in attendance. I am here as a representative of the Labour Party and thank the Chairman for allowing me to speak so late in the meeting. I appreciate that courtesy and apologise to those making the presentation for being unable to be here earlier.
I thank the Deputy. The presentation documents will be available for reading. It was a comprehensive and useful presentation. Professor Weinglass wrote the committee a useful letter regarding the legal aspects in which he pointed out that the five had appealed for a retrial on the basis that the original trial had been grossly unfair. Although the appeal court heard the appeal in March 2004, it has yet to pass judgment. He also pointed out that no explanation had been offered for the unprecedented delay in issuing the judgment which naturally has added to the distress of the prisoners and their families. He stated that, in spite of all that had happened to them, the five believed that if the proper safeguards enshrined in the US constitution were applied, they would eventually be given a fair trial in the United States. He believed it might take external political pressure to ensure this happened sooner rather than later.
When I read the material in advance of this meeting, I found it very disturbing, particularly in respect of the rule of international law which must apply in all countries for everyone at all times. One cannot simply select it now and again as it suits. One is either committed to the rule of international law or one is not. This issue needs to be thrashed out much more at international level. As Professor Weinglass has said, he has a great belief in the American system, as do we. However, the United States needs to be reminded from time to time of some of what is happening.
The committee must await the outcome of the appeal which may have to be brought to a higher court. The committee will convey its concerns to the Minister for Foreign Affairs. It will also communicate with the American ambassador to inform him of its concerns. It will ask the Department of Foreign Affairs for a more comprehensive report on the issue.
I am very concerned about the issues of degrading and inhuman treatment and human rights. The committee and its sub-committees will demand responses on every occasion. There are no state boundaries when dealing with this issue. When there are instances of unfair and degrading treatment, there is an onus on us, as Members of Parliament, to speak out, no matter where it happens. The delegation can be assured the members of the committee will do this. The committee will seek reassurance on the treatment of the prisoners involved.
The sentences seem excessive. The men accepted their guilt on two of the charges and there is argument about the others. The committee will seek advice on this matter, even though it respects the delegation's presentation of the case.
I believe Professor Schabas is in Galway.
The professor is sometimes out of Ireland and I often meet him at airports. He has been in Sierra Leone and is a member of the Rwanda and Sierra Leone commissions. He has also been appointed honorary professor on human rights in Beijing, China. He is now in Ireland. He would have a valuable contribution to make on the international legal instruments aspect of the case.
All members would agree that he be invited to a meeting to discuss that aspect. The matter has been given a good first airing today. The committee will follow up on the issues raised and invite Professor Schabas to attend.
I am in agreement with the Chairman's excellent summary and the proposal to invite Professor Schabas. I wonder about the question raised by both Deputy Gregory and me about responding to the proposal from the group making the submission that the committee should listen to somebody from the defence team in America.
While the committee would be happy to do so, it does not have a mechanism under Standing Orders for inviting somebody and allowing us to pay them to come.
The other suggestion was that the committee arrange a visit at the time of the trial.
The committee should consider the position further as discussed here. The proposal was that a rapporteur might visit. This can be considered at our next meeting and when replies have been received from the Department of Foreign Affairs. It may not be wise to do so at this time because of the impending appeal. As has been said, the campaign is very concerned not to upset the situation at this time while awaiting the decision but that is an aspect of the matter we can discuss further.
Professor Schabas may also have a view on the matter which may be helpful.
Yes.
The Chairman indicated that he would ask for a more comprehensive briefing from the Department. I suggest that he invite a representative of the Department to our next meeting to brief members.
Certainly. The delegation has been given a good hearing. As Deputy Higgins said, there is considerable interest in and concern about the issues raised today. We thank the delegation for coming and filling in the background for the committee.
I express my thanks and those of the group for what has been a very fair and courteous hearing. We hope this will be the start of a longer relationship where we can provide the committee with whatever information it needs. We have thousands of documents that can be transferred as the need arises.
I thank Mr. McGuinness.
The joint committee went into private session at 3.20 p.m. and adjourned at 3.30 p.m. until 11 a.m. on Wednesday, 2 March 2005.