In early 1996, the Cubans sent messages to Washington through various intermediaries, warning that if the United States didn’t stop further Brothers flights, the Cubans would.
So the Cubans did. On the afternoon of Feb. 24, 1996, Cuban fighter jets blew two small, unarmed Brothers to the Rescue aircraft out of the sky, killing all four men aboard.
The Cubans claim that the planes were inside their territory. The U.S. government claims — and the International Civil Aviation Organization agreed — that the planes were in international airspace when they were attacked.
But did Hernandez really know in advance that the Cuban government planned to shoot down those planes? Was he involved in the planning?
My answer is no. During my research for a book on the Cuban Five, I reviewed all 20,000-plus pages of the trial transcript and sifted through thousands of pages of decrypted communications between Havana and its agents. I found no evidence that Hernandez had any knowledge of, or influence on, the events that day.
The evidence instead paints a picture of a Cuban intelligence bureaucracy obsessed with compartmentalizing and controlling information. Hernandez, a field-level illegal intelligence officer, had no need to know what Cuba’s military planned. The messages and instructions from Havana were ambiguous, hardly slam-dunk evidence, particularly for a charge of conspiracy to commit murder.
In one message, for example, Hernandez’s bosses refer to a plan to “perfect the confrontation” with Brothers to the Rescue, which prosecutors insisted meant shooting down the planes.
But as Judge Phyllis A. Kravitch pointed out — in her 2008 dissent from a decision by the U.S. Court of Appeals for the 11th Circuitupholding the murder charge against Hernandez — “There are many ways a country could ‘confront’ foreign aircraft. Forced landings, warning shots, and forced escorted journeys out of a country’s territorial airspace are among them — as are shoot downs.” She said that prosecutors “presented no evidence” to link Hernandez to the shootdown. “I cannot say that a reasonable jury — given all the evidence — could conclude beyond a reasonable doubt that Hernandez agreed to a shoot down,” Kravitch wrote.
A “reasonable jury.” There’s the rub.
By the late 1990s, Miami juries had become so notorious in cases involving Cuban exiles that federal prosecutors in a different case opposed a defense motion for a change of venue from Puerto Rico to Miami for some Cuban exiles accused of plotting to assassinate Castro.
Miami “is a very difficult venue for securing a conviction for so-called freedom fighters,” former U.S. attorney Kendall Coffey explained to the Miami Herald at the time. “I had some convictions, but some acquittals that defied all reason.”
Anti-Cuban militants, in fact, were considered heroes. In 2008, more than 500 Miami exile movers and shakers gathered to honor Posada’s contributions to la causa — as the effort to overthrow Castro is known in the community — at a gala dinner.
His contributions? Besides the Havana hotel attacks (“I sleep like a baby,” he told the New York Times, commenting on the tourist who was killed), Posada is the alleged mastermind of the bombing of Cubana Flight 455. Cuba and Venezuela have asked for his extradition. The United States has refused.
In 2000, Posada was arrested in Panama in connection with a plot to assassinate Castro; he was convicted and served four yearsbefore receiving a still-controversial pardon. That pardon was revoked in 2008.
The closest the U.S. government has come to prosecuting Posada was in 2009, when the Obama administration charged him — not for his role in the Havana bombings but for lying about his role on an immigration form. He was acquitted.
Today, Posada, 85, walks the streets of Miami, a living contradiction in America’s war on terrorism. How to square his freedom with President George W. Bush’s post-Sept. 11 declaration that “any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime?” How to square Posada’s freedom with the continued imprisonment of the Cuban Five, whose primary goal was to prevent terrorist attacks?
It is a contradiction Americans should consider.
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