Injustice on Both Sides of Cuba: Havana And Washington Same Principles At Guantanamo Bay

16 April 2010

By Jacob G. Hornberger

The case of Alan Gross has U.S. officials stymied. He’s the U.S. Agency for International Development subcontractor who the Cubans have jailed for allegedly violating Cuban laws against subversion. Gross was apparently caught giving cell phones to Cubans, in violation of a Cuban law that prohibits receipt of U.S. government aid.

Gross has been jailed since December 3, but U.S. officials aren’t in a position to make too big a stink about it. After all, Cuba’s judicial system is based on the same principles as those of the U.S. government on its side of the island.

Here in the United States, when a person is charged with a federal crime, U.S. officials are required to promptly bring him before a magistrate for a preliminary hearing or secure an indictment from a federal grand jury. If they fail to do that, the accused is entitled to be released.

If the government persists in holding the accused without formal charges, he can file a petition for writ of habeas corpus, which requires the government to appear before a federal judge to show cause why the accused should not be ordered released. If the government fails to establish such cause, the judge orders the release of the accused.

Once the accused is indicted, he is entitled to a trial, at which he has the right to be represented by a competent attorney. He’s entitled to a jury trial. He’s presumed innocent. In order to secure a conviction the government must convince the jury beyond a reasonable doubt that he is in fact guilty of the offense. He cannot be forced to testify or give evidence against himself. Incompetent evidence, such as hearsay, is prohibited. He is entitled to confront any witnesses against him and to cross-examine them. If the accused is found not guilty, the judge orders his release.

None of this, however, applies in Cuba, either on the communist side of the island or on the U.S. government side of the island.

Alan Gross has been in jail more than four months, with no preliminary hearing and no indictment. He has no right of habeas corpus, which means that he can be held indefinitely — potentially for the rest of his life — without a trial.

But what standing does the U.S. government have to complain? It has embraced the same principles at Guantanamo Bay that the communists have embraced in Havana, that is, no preliminary hearings, indictments, jury trials, due process of law. U.S. officials, like their counterparts in Havana, also favor torture, kangaroo tribunals, coerced confessions, hearsay, and secret testimony to convict the accused. The accused is presumed guilty, both by the communists and the U.S. military.

One might say, “But Gitmo is for terrorists while Gross is just an American subcontractor, and so this isn’t fair!”

But the Cubans might not see things that way, especially given that the U.S. government — the government that is funneling money into Cuba to destabilize the Cuban regime — includes the CIA, which has long been involved in terrorist activities, such as kidnapping, rendition, torture, executions, and assassination, including against Cuba itself.

You see, while U.S. officials view CIA officials as “freedom fighters,” the Cubans view them as terrorists.

Who gets to make the final determination? Obviously, the government that has jurisdiction over the person who has been arrested. Gross was arrested in Cuba, not the United States.

Ask yourself: What would be the attitude of U.S. officials if a Cuban official were caught in the United States illegally trying to destabilize the U.S. government? Wouldn’t they take the same position that the Cuban regime is taking against Gross, including whisking him away to the U.S. side of Cuba as an enemy combatant in the war on terror?

Unfortunately, Gross’ incarceration has not dissuaded the U.S. government from continuing to interfere with the internal affairs of Cuba. In 2009 and 2010, the U.S. government amount of U.S. taxpayer money funneled into non-governmental agencies and private entities to destabilize the Cuban regime will amount to some $45 million.

Meanwhile, the U.S. government continues to enforce its brutal embargo on Cuba by threatening incarceration for private Americans who travel to Cuba and spend their own money there. In other words, it’s okay for the U.S. government to tax us and use the money to interfere with Cuban affairs, but it’s not okay for us to be free to spend our own money in Cuba the way we see fit.

What’s the solution to all this? It’s the libertarian solution. First, close Gitmo and give it back to the Cubans. Second, submit all Gitmo prisoners to the U.S. criminal justice system. Third, prohibit all U.S. government interference in the internal affairs of Cuba. Fourth, lift the embargo and free the American people to travel to Cuba and trade and interact with the Cuban people.

Jacob Hornberger is founder and president of The Future of Freedom Foundation.

 

 

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