Pertierra: Roadmap for Liberating Cuban 5, plus author's past as attorney for Jennifer Harbury

[magbana]

Jose Pertierra is currently the attorney for the Venezuelan government seeking the extradition of Luis Posada Carriles. In Jose Pertierra is a Cuban-American,DC-based attorney and currently represents the government of Venezuela seeking the extradition of Luis Posada Carriles. In addition, some of you may know, but for those that don't, Pertierra was Jennifer Harbury's attorney in her fight for the release of her Guatemalan husband, Efrain Bamaca. For his association with Jennifer's case, Pertierra woke up one morning to a bomb going off in his driveway. The second article below tells the story of this chapter in Pertierra's life.

COUNTERPUNCH

Weekend Edition
March 27-29, 2009

http://www.counterpunch.org/pertierra03272009.html

A Historical Roadmap for Liberating the Cuban Five
Gesture For Gesture
By JOSÉ PERTIERRA

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, Raúl revealed a willingness to free some prisoners currently held in Cuba in response to a gesture from the United States to free the Cuban Five. Gesto a 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 US 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-a-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 US 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

US 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 US 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 US policy, and that commuting their sentences would be welcomed as a compassionate and humanitarian gesture. Brezenzinski 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 US 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 arrested the Cuban Five in 1998. 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 US 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 US 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 political prisoners.

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 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

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

The power to commute a sentence is the President’s alone. 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 simply orders that the prisoners’ sentences be reduced.

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.

Notes.

1 Raúl Castro marca su lógica a Washington, por Patricia Grogg, IPS, 20 de diciembre de 2008.

2 See TIME Magazine, Monday October 1, 1979. “A diplomatic issue involving Cuba was resolved last week when Havana released four Americans from its prisons. For four years, Fidel Castro had said that they would be freed if the US released four Puerto Rican nationalists who were in prison for trying to assassinate President Truman and House leaders in the 1950s. Carter granted them clemency two weeks ago. . . . On arrival in Miami, one of the former prisoners in Cuba, Lawrence Lunt . . . readily admitted that he had been spying for the CIA.”

3 That Infernal Little Cuban Republic: the United States and the Cuban Revolution, by Lars Schoultz, the University of North Carolina Press, Chapel Hill, 2009 at page 324.

4 Undated letter from Zbigniew Brzezinski to John R. Standish, Pardon Attorney, for the Department of Justice. Found on pages 267 and 268 of volume 2 of Futuros Alternos (Documentos Secretos) Edited by Jaime Rodríguez Cancel and Juan Manuel García Passalacqua, EMS, 2007.

5 Ibid.

6 Memorandum from Robert Pastor of the National Security Council to Zbigniew Brzezinski and David Aaron regarding Lolita Lebron, dated September 26, 1978. Futuros Alternos, Ibid, at pages 228 and 229.

7 Grupo de Trabajo sobre la detención arbitraria (Naciones Unidas), Opinión No. 19-2005. Opinión adoptada el 27 de mayo de 2005.

8 Letter to Congressman Benjamín Gillman, US House of Representatives, from Zgigniew Brzezinski. See Futuros Alternos at page 213.

9 Memorandum from Zbigniew Brzezinski to Frank Moore regarding US Prisoners in Cuba, See Futuros Alternos at page 214.

10 Abogados de espías cubanos no descartan “negociación política”, por Wilfredo Cancio Isla, El Nuevo Herald, 25 de enero de 2009.


"Guatemalan hit squads come to the U.S.A - Cover Story
Progressive, The , June, 1996 by Martha Honey, Ricardo Miranda


It was 4:30 A.M. on Friday, January 5, 1996. The Washington Post carrier was making his rounds down Irving Street in Brookland, a suburb of Washington, D.C. Phil Mayo, a bus driver, had gotten up a few minutes earlier, and he recalls hearing the newspaper hit his pavement--the reassuring start to a normal day.

Mayo walked over to his window. Outside, the sun had still not risen, and the temperature was falling. The street was empty. He glanced across the street at the yellow Victorian house belonging to his neighbors, the Pertierras, noticing their newly leased Acura in the driveway. A few minutes later, Mayo was just opening his front door to leave for work when a tremendous explosion ripped through the neighborhood. Across the street, fifteen-foot-high flames were engulfing the Pertierras' car.

Jose Pertierra didn't hear the explosion. He always slept soundly. But he was awakened by his Guatemalan wife, America, shaking him and shouting, terrified, "Jose! Jose, a bomb!" The forty-four-year-old Cuban-American lawyer leapt out of bed and ran downstairs, thinking his house was on fire. "Then I saw huge flames coming from the yard," he says. "It was incredible. The flames were really high and very hot. My car was somewhere in the middle of them."

At that moment, two images flashed through Pertierra's mind. The first was of Orlando Letelier, the former left-leaning Chilean foreign minister who died in 1976 when his car was blown up at Sheridan Circle, in downtown Washington. Agents working for Chile's ultrarightist military had planted the bomb. The second was of the Guatemalan army.

Pertierra had good reason to suspect the Guatemalan military. He represents Jennifer Harbury, the Harvard-educated lawyer whose Guatemalan guerrilla husband, Efrain Bamaca, was killed by the army, allegedly under orders from a paid CIA informant. Since 1992, Harbury has been waging a relentless, high-profile campaign, including two hunger strikes, to learn the truth about her husband's capture, torture, and murder.

"The only controversial case I have is Harbury's," says Pertierra, an immigration lawyer. "And everyone connected with Jennifer has felt threatened."

Pertierra called 911. Within a few minutes, fire engines arrived and doused the flames. The car was a total write-off. Heavy water damage made it impossible, authorities said, to determine what type of incendiary device was used. But FBI investigators concluded that the fire bomb contained an "accelerant" to augment the explosion. The bomb "appeared not to have been the work of children or vandals," said FBI spokeswoman Susan Lloyd. "They're pros," concluded another agent.

The Guatemalan army reacted quickly to the fire-bombing. "We believe that the bombing was done by the lawyer himself and Jennifer Harbury, his client. It was a self-attack, intended to get publicity," asserted military spokesman Colonel Julio Caal.

Four days after the bombing, Pertierra was in his downtown Washington office when the fax machine suddenly came alive. The message was marked CONFIDENTIAL. It contained the names of "two possible suspects": Colonel Jose Luis Fernandez Ligorria and Federico Baechli.

The fax was signed by a high-ranking Guatemalan official who has been critical of human-rights abuses. When asked to elaborate on his fax, he said: "Who else in D.C. dislikes Harbury so intensely? Ligorria and Baechli are very close. They work together. They discuss things. They share the same line of thinking. Baechli is a mechanic and knows about cars. I can't see anyone else doing it."

Ligorria and Baechli are an odd couple. Fred Baechli, a naturalized U.S. citizen who left Guatemala thirty years ago, owns an auto-repair shop and used-car showroom on East-West Highway in Silver Spring, Maryland. He recently worked as a Washington lobbyist for the Guatemalan army and government. His auto showroom serves as the headquarters for The Fraternity, a Guatemalan social club whose members are staunch supporters of the military. "I give them the shop to have their meetings," Baechli told us. "I help them in every way."

Fernandez Ligorria, former chief of Guatemala's notorious intelligence branch, G-2, was accused in Guatemala in early 1995 of involvement in cocaine trafficking and a car-theft ring. He also has been linked to death-squad activities. Ligorria has denied all the charges, and criminal proceedings against him in Guatemala were quickly dismissed. Ligorria now attends the Inter-American Defense College at Fort McNair, in Washington, D.C. He refused numerous requests to be interviewed for this article.

Baechli denies being involved in the bombing of Pertierra's car. "I would love to find out who did it," Baechli says, laughing. "We Guatemalans are not that dumb." He adds that he thinks the bombing was done in a "sloppy" manner. Like the Guatemalan military, Baechli suggests that activists opposed to the Guatemalan government might have done it for "publicity."

Baechli does not hide his distaste for Harbury and Pertierra. "She's damaging the country of Guatemala. People don't care for Harbury, nor her lawyer. So I don't know who did it, but if ever I find out I'll give you a call.""
http://findarticles.com/p/articles/mi_m1295/is_n6_v60/ai_18311895

[Judi Lynn]

1. Have never heard about Pertierra but must read this because I admire, respect Jennifer Harbury.

Jennifer Harbury, holding photo of her tortured, murdered husband, Efraín Bámaca Velásquez.

Published on Monday, March 18, 2002 in the Washington Post
Slain Rebel's Wife to Plead Case Before High Court
by Charles Lane

A political and legal drama that began 10 years ago in a remote corner of Guatemala reaches the Supreme Court today, where a lawyer-activist will argue for the right to sue former senior U.S. officials for allegedly covering up the murder of her husband, a Guatemalan rebel leader who died in Guatemalan army custody.

Jennifer K. Harbury says her constitutional right of access to the courts was violated by then-Secretary of State Warren M. Christopher, then-national security adviser Anthony Lake, and five other White House and State Department officials who, she says, falsely assured her in 1993 and 1994 that they were looking into Efrain Bamaca Velasquez's fate.

"But for those deceptive statements," Harbury said in an interview, "I could have gone to court and saved his life."

Although its origins lie in a bygone chapter of U.S. foreign policy, and the ultimate result is likely to turn on how broadly the justices define the right of access to the courts, the Harbury case is attracting attention as a conflict between citizens' right to know what their government is doing – and the government's need to operate in secrecy under some circumstances.

It arises at a time when the United States and its allies are conducting secret intelligence, law enforcement and military operations against terrorists around the world – amid criticism from civil libertarians that secrecy could prevent accountability for violations of human rights.

More:
http://www.commondreams.org/headlines02/0318-05.htm

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Human Rights Brief

A Legal Resource for the International Human Rights Community



Volume 9 Issue 3
Bámaca Velásquez V. Guatemala: An Expansion
of the Inter-American System's Jurisprudence on Reparations
by Megan Hagler and Francisco Rivera*


On November 28 and 29, 2001, the Inter-American Court of Human Rights (Court) held hearings for the reparations phase of Bámaca Velásquez v. Guatemala, a landmark case that expanded the scope of reparations for cases of forced disappearance in the inter-American system. At the reparations hearing, the Inter-American Commission on Human Rights (Commission) requested that the Court order the exhumation and return of the disappeared body as a specific remedy. In its judgment on reparations, released on February 22, 2002, the Court granted the Commission's request and ordered the Guatemalan government to exhume the body and return it to the victim's family. Because the Court has never before ordered the exhumation of a body in a case of forced disappearance, the Court's ruling on reparations in the Bámaca case is a significant development in forced disappearance jurisprudence in the inter-American system.

History of the Case

On March 12, 1992, the Guatemalan army captured Efraín Bámaca Velásquez, a Mayan comandante of the Guatemalan National Revolutionary Unity (URNG), during Guatemala's civil war. The army secretly detained and tortured Bámaca for over a year before killing him in September 1993. According to an eyewitness, Bámaca was last seen "lying half-naked on a bed, with his eyes bandaged and an arm and leg bandaged" and with his face swollen. His body has never been found. For the last ten years, Jennifer Harbury, Bámaca's wife, has been searching for truth, justice, and her husband's body.

Hoping to find her husband alive, Harbury filed petitions for habeas corpus, pursued several criminal lawsuits, and carried out a series of hunger strikes in front of Guatemalan military headquarters and in front of the United States White House. At that time Harbury did not know that Bámaca was already dead. In 1995, three years after Bámaca's disappearance, U.S. Senator Robert Torricelli disclosed that Bámaca was assassinated in 1993 upon orders of Guatemalan Colonel Julio Roberto Alpírez, a former paid CIA informant and a graduate of the School of Americas, a U.S. Army training center based in Fort Benning, Georgia.

Since 1995, Harbury has focused her efforts on obtaining her husband's remains. To this end, Harbury participated in various exhumations in attempting to identify her husband's remains. These exhumations were unsuccessful due to a number of obstructions by Guatemalan agents. Although it was fully aware that the bodies exhumed belonged to people other than Bámaca, the government of Guatemala carried out the exhumations under the pretext that the exhumed bodies at least matched Bámaca's characteristics. None of the bodies exhumed so far resembles the physical characteristics of Bámaca or appears to have died of the same causes.

In 1995, CIA documents provided information indicating that Bámaca's remains were buried in a Guatemalan military base called Las Cabañas. To this day, no exhumation has been conducted at Las Cabañas base, and Guatemalan authorities have stated that they would "continue to obstruct any exhumation procedure in Las Cabañas until they receive an amnesty."

Despite official stonewalling, Harbury has continued with her quest for justice simultaneously on three fronts. First, the Guatemalan government has denied Harbury justice despite her continuous demands for a full investigation and the return of her husband's body. Second, in the United States, Harbury filed a Freedom of Information Act suit against the CIA, which is allegedly withholding vital information regarding her husband's case. Harbury also filed a Bivens action, a case for damages against a federal agent who violates the U.S. Constitution while acting under color of law. In this case, which Harbury argued before the U.S. Supreme Court, she claimed that CIA officials participated in torturing and murdering her husband, and that while he was being tortured, and for more than a year and a half after his death, U.S. State Department and National Security Council officials systematically concealed information from her and misled her about her husband's fate. Finally, Harbury has sought justice through the inter-American human rights system.

More:
http://www.wcl.american.edu/hrbrief/09/3bamaca.cfm

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Glancing at the opening I see Jose Pertierra is Cuban-American. Excellent. That group needs some intelligent, moderate and progressive people in this country like nobody's business, since their violent right-wing has been doing all their talking for them!

Thank you for posting this.