March 10 was an historic day for the Cuban Five as appeals attorneys presented their oral arguments in a hearing before a three-judge panel of the 11th Circuit Court here in Miami.
 
Cuban Five supporters accompanied the attorneys at an impromptu press conference outside the courtroom. They said they were optimistic about the possibility of winning freedom for the Cuban Five and that the attorneys had made powerful and compelling presentations.
 
A decision is expected in several months.

 The five prisoners appealing their convictions are Cuban nationals Gerardo Hernández, Antonio Guerrero, Ramón Labañino, René González and Fernando González. They were living in Miami, monitoring counter- revolutionary Cuban groups, trying to stop the ultra-right terrorist groups in Miami from carrying out violent actions against the people of Cuba.

The Cuban people have been victims of terror attacks by the Miami-based gangs, many of whom came from the wealthy class that left Cuba after the popular overthrow in 1959 of U.S.-supported dictator Fulgencio Batista.
 
The five Cubans are in prison because they were framed up in a political witch hunt and railroaded by the U.S. in a seven-month trial in Miami, where it was impossible for them to have an impartial and fair trial.
 
The written briefs for each of the five, filed in spring 2003, are extensive, with numerous points of appeal. The hearing's aim was to emphasize certain issues and answer judges' questions.
 
The five attorneys--Leonard Wein glass, Paul McKenna, Joaquin Méndez, Phil Horowitz and Bill Norris--sat together, accompanied by Richard Klugh, deputy chief of appeals for the federal public defender's office in Miami. The three who presented oral arguments were Klugh, Weinglass and Méndez.
 
The three federal judges chosen to hear the cases were Stanley Birch and Phyllis Kravitch of the 11th Circuit, and James Oakes of the 2nd Circuit Court in New York.

 A series of news conferences around the March 10 date, a New York meeting of 400 people, and a full-page ad in the New York Times, published on March 3, raised interest in the case.
  
MURDER CONSPIRACY CHARGE
 
Richard Klugh began the defense arguments by focusing first on the murder conspiracy conviction against Gerardo Hernández. Hernández has been falsely linked by the U.S. government to the Feb. 24, 1996, shootdown by the Cuban government of two Brothers to the Rescue (BTTR) airplanes from Miami.
 
The Cuban government's shootdown of the planes was an act of self- defense against BTTR's numerous incursions in previous months.

 Before the shootdown, Cuba had publicly warned it would take direct action to stop any more invasions of Cuban territory. The U.S. government was warned by its own officials, including Richard Nuccio, who frantically tried to convey messages to President Bill Clinton's national security advisor, Sandy Berger, alerting him of BTTR's provocative plans. BTTR continually invaded Cuban airspace. U.S. authorities did nothing to stop it.

 The prosecutor's claim at the trial was that Cuba had planned ahead of time with Gerardo Hernández to have the planes shot down over international waters, not in Cuban territorial airspace. But Cuba has provided radar evidence showing the planes were indeed shot down over Cuban waters.
 
Count 3, the murder conspiracy charge against Hernández for the deaths of the four pilots, came eight months after the arrest of the Five in

1998, even though Hernández had nothing remotely to do with the shootdown.
 
U.S. prosecutors concocted a bizarre theory: that Hernández plotted, while living in Miami, to have the BTTR planes shot down in international waters. Why? Because, the U.S. said, he followed Cuba's instructions to tell the pilots NOT to fly. There was no evidence that he received such messages.

 This background into Count Three is important in order to understand the irrationality of the charge.
 
At trial, even the prosecutors didn't believe they could win a conviction on Count Three. They went so far as to go before the 11th Circuit Court to appeal for a loosening of the judge's instructions (an "emergency writ of prohibition") in order to gain a conviction. The prosecutors lost the appeal. Still, the Miami jury convicted.

Klugh emphasized the insufficiency of evidence to convict on Count Three.

 "The government's burden is heavy. It would have to show that a Cuban field agent knew the Cuban government had concocted a plan to commit extra-territorial murder. ... Cuba would for the first time in its history exceed its sovereignty and murder U.S. citizens."
 
He said it was unreasonable to believe that Cuba would deliberately plan to shoot a plane down outside its sovereign territory.
 
Klugh pointed out that former U.S. official Richard Nuccio acknowledged

25 warnings given to the head of BTTR, José Basulto, "an admitted terrorist wanted in Cuba."

 Then, on Count Two, conspiracy to com mit espionage, Klugh raised the issue of insufficiency of evidence, and excessive sentencing in the three life sentences given to Labañino, Guerrero and Hernández.
 
The mandatory life sentences came from the U.S. government's claim that the men were engaged in conspiracy to commit espionage, causing "exceptionally grave damage" to the United States.

 "The U.S. government rested its case on the fact that two of the agents were at military bases in Florida to count airplanes and determine whether there would be a build-up," said Klugh.
 
He said that the government at trial conceded that no top-secret evidence was gathered or sent to Cuba.
 
In his third point, Klugh said that the U.S. Classified Information Procedures Act greatly hampered the defendants' ability to defend themselves properly, because all their personal papers had been confiscated by the FBI and declared classified. They were not able to use their own possessions and documents to show they were not involved in espionage conspiracy against the U.S.

 "What was taken from the defendants was significant to provide the whole picture of what they were doing. The question is how could they be sentenced to mandatory life terms when they did not collect any top- secret evidence," Klugh asked.
 
Leonard Weinglass addressed the important issue of venue and the failure to move the trial from the heavily biased atmosphere of Miami.
  
PROSECUTION STORY WEAK
 
U.S. Attorney Heck Miller next laid out the government's scenario on the murder conspiracy charge. Her descriptions of Hernández's role and Cuba's intent in the plane shootdown were as incongruous as the original charge.
 
Miller said he was more than a Cuban field agent, and described him as an officer and able to make policy decisions.
 
Judge Birch asked in response: "What is the importance of all that vis-à- vis murder?"
 
Miller said Hernández was "more knowledgeable, he knew more things than others."
 
Judge Kravitch asked, "What evidence is there that Hernández was involved?"
 
As the attorneys walked out of the courtroom into the Florida sunshine, they spoke confidently to the bank of television cameras.
 
Paul McKenna, Hernández's attorney, described the prosecutor as "on the ropes."
 
News coverage was extensive in Miami and southern Florida. A press conference by the Five's supporters was well attended.
 
It is impossible to predict the court's decision, which may come in a few months. But their supporters believe the hearing was definitely a step forward and showed the strength of the Five's cause and the lawyers' arguments, and the weakness of the U.S. government's position.

The Committee to Free the Five plans to step up the fight around the world, until the Five are freed and in their homeland.