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.