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Posted on Mon, Apr. 21, 2003 in The Miami Herald.
Seized Cuban planes propel diplomacy debate
Auctions benefit a judgment for Ana Margarita Martinez.
By Jennifer Babson. Jbabson@Herald.Com
The seizure and slated sale of three Cuban government planes -- all of which
Cuba claims were hijacked, two of which were forced under threat to land in Key
West -- have prompted some to worry that the United States is violating
international law in a manner that could prompt Cuba to reciprocate.
The planes, whose financial value is minimal, have become symbols in a
debate over the actions of a Miami woman who may have set diplomatic precedent
and, critics say, forced the United States to trample on treaties it has signed.
''God forbid, if some American Airlines plane on the way from Puerto Rico
ended up in Havana, we'd expect the Cubans to give us our airplane back,'' said
one U.S. government official familiar with discussions over the matter.
Spokesmen for the U.S. State Department and the Cuban Interests Section in
Washington, D.C., declined to comment.
Two of the planes -- a 1950s era DC-3 and a Cubana Airlines AN-24 -- will be
auctioned on June 2 in Monroe County to help satisfy a $27 million judgment
against Cuba won by Ana Margarita Martinez, the duped ex-wife of Cuban spy Juan
Pablo Roque. Miami-Dade Circuit Judge Alan Postman declared that Cuba
orchestrated Roque's sham marriage so he could infiltrate the Miami exile
community.
On March 19, six hijackers using knives and tape forced the DC-3 from the
Isle of Youth on the island's south coast to Key West. Nearly two weeks later,
the AN-24 was commandeered from the same airport -- landing in Key West after
negotiation efforts by Cuban President Fidel Castro and U.S. Interests Section
chief James Cason failed to stop the hijacking.
FAIR GAME
When the Cuban government-owned planes touched down, they were fair game for
Martinez under a provision in an antiterrorism act that is not yet 6 months old.
Postman had already cleared the way for their sale in December, when he
ordered the auction of their precursor, a rickety yellow Antonov AN-2 biplane
that was spirited from the island by its pilot.
The logic of Postman's order flowed, in part, from a clause in the Terrorism
Risk Insurance Act of 2002.
The clause, included in the massive terrorism insurance bill President Bush
signed into law in late November, specifies that people with judgments against a
designated ''terrorist party'' -- such as Iran, Iraq or Cuba -- may move to keep
the assets ''of any agency or instrumentality of that terrorist party.'' The
provision also states that such assets may be used to satisfy judgments for
compensatory damages.
The law removed any ambiguity about whether the planes could be legally
seized, says Mark Willis, counsel for the Monroe County Sheriff's Office, which
is auctioning them.
''There was no longer any doubt what law applied,'' Willis said.
As a result, Martinez's lawyers didn't have to go back to a judge after two
more hijacked planes ended up on U.S. soil.
''I think it made a big difference,'' said Fernando Zulueta, one of
Martinez's two lawyers. "It changed the nature of the game at that point.''
Although U.S. treaties are generally considered to be U.S. law, subsequent
measures passed by Congress often take precedence.
'IT'S DANGEROUS'
Berta Hernandez-Truyol, a Cuban-American professor of law at the University
of Florida, says that's an interpretation the United States may one day regret.
''I think it's dangerous, I think it's inappropriate, I don't think we
should do it,'' Hernandez-Truyol said. Hernandez-Truyol is alarmed that a
Miami-Dade judge could prevail on an issue that she believes hurts U.S. foreign
policy. The planes, she says, should be returned.
''The climate is such that politics is the reason that's not happening,''
Hernandez-Truyol said. "If this were a plane from Sweden, would this be
happening? The answer is no. The government would not allow one individual to
take over its foreign policy.''
In 1983, at least 11 U.S. aircraft -- flown by operators from Air Florida to
American Airlines -- were hijacked to Havana. Cuban authorities allowed the
planes to be flown back to the United States within hours in most cases, after
the hijacker or hijackers were removed and passengers were often allowed to
stock up on rum and cigars.
The unscheduled stops had become such a headache that in July 1983 the
Federal Aviation Administration announced plans to begin a radio-television
campaign stressing that hijackers would face tough treatment in Cuba.
Still, Zulueta and others contend that agreements such as the Hague and
Montreal Conventions -- to which Cuba and the U.S. are signatories -- require
hijacked aircraft to be ''delivered to the persons lawfully entitled to
possession.'' Once the plane reaches the United States, Zulueta said, that means
his client.
''In some respects this is a novel legal issue,'' Zulueta said. "I
think the courts feel that we have the entitlement.''
Federal officials have been remarkably silent about Martinez's one-woman
anti-Castro crusade -- even as they scrambled in February to return a speedboat
spirited to the Keys by Cuban border police before Martinez could assert her
legal claim.
The carefully choreographed transfer, which happened at sea, was permitted
by an interagency group that included the State Department.
It occurred just hours before Martinez's lawyers planned to file an order to
seize the boat -- which U.S. officials considered a Cuban military asset in need
of immediate return.
In the end, it is an international civil aviation treaty that may end up
accomplishing an end run around efforts to hawk the hijacked planes for any real
profit.
That's because the FAA, under provisions of the 1944 Chicago Convention,
doesn't allow planes to be registered in two countries at once.
Barring an agreement by the Cuban government or a Cuban court to ''delist''
the plane there, the FAA is unlikely to budge on that rule, experts say.
''If you want to reregister in the U.S. or any other country that's a
signatory to Chicago, you have to show proof of ownership from the previous
owner and cancellation of registration,'' said Joseph R. Standell, an FAA
attorney who has not been involved in the Cuban plane cases.
WHAT IF?
The regulation depressed the value of the first plane auctioned in January
-- forcing Martinez to buy it herself for $7,000 that was subtracted from her
unpaid judgment.
But it doesn't address a central concern of many: What if Cuba -- or another
nation -- decides in the future to retain a hijacked U.S. plane as payback?
'I'm concerned that scalawags can use that loophole against the United
States' interest,'' said Rick Asper, a Fort Lauderdale-based aviation attorney.
"Our interests are substantially higher -- the aircraft at risk from
hijacking from the U.S. to Cuba are not Antonovs that are worth $40,000. We are
talking about Boeings.
"That, at least, should give people pause.''
U.S. ready in case of major exodus from Cuba
By Alfonso Chardy. Achardy@Herald.Com
Coast Guard cutters operating off South Florida's shores have picked up
fewer Cuban migrants in the first three months of the year than Haitians and
Dominicans combined. But the absence of large numbers of Cuban migrants headed
for South Florida may be the calm before the storm.
A wave of repression in Cuba in recent weeks has been so alarming that U.S.
officials have begun to wonder whether Cuba may unleash a new Mariel-style
exodus -- a typical Cuban response in times of crisis. American officials are so
worried that they have already quietly advised Cuba not to attempt any such
action.
But if a new exodus occurs, officials say they will activate a classified
federal contingency plan designed to deal with migrant surges. Operation Distant
Shore would trigger a dramatic escalation in the number of Coast Guard and other
military vessels patrolling the Florida Straits -- a veritable floating wall
designed to interdict as many migrants as possible at sea.
Talk of the plan is all the more relevant in the wake of reports last week
that President Bush was preparing punitive steps against Cuba along with a
possible public warning to Fidel Castro not to resort to a new exodus. No one
will say when Bush would deliver the warning, but officials at the White House's
National Security Council and the State Department have left no doubt that
Washington is concerned.
''The United States remains committed to safe, legal and orderly migration
from Cuba to the United States,'' National Security Council spokesman Sean
McCormack said.
''We make clear to Cuba that the United States expects it to live up to its
commitments under the migration accords,'' a State Department official said.
ANONYMOUS REPORTS
While neither official would say what the administration is planning in
response to a recent crackdown against Cuban dissidents, administration sources
have floated anonymous reports that among the more drastic measures are a
possible halt to cash remittances to exiles' relatives in Cuba or an end to
direct flights to the island.
Responding to U.S. threats, the Cuban government published a statement
Friday saying that U.S. sanctions would not bother Cuba but might encourage
illegal migration.
''The presumed measures that are being announced of prohibiting flights and
remittances would stimulate illegal immigration,'' the Cuban statement said.
Later Friday, Cuban Foreign Minister Felipe Pérez Roque told a news
conference that three imprisoned hijackers were executed last week to prevent a
''migration crisis'' that could spark war between the United States and Cuba.
''It was an exceptional step, a painful measure, taken as a last resort and
founded on the hope of avoiding greater loss of life and costs for both
countries, [including] the unleashing of a new migration crisis that would end
with a war between the two countries,'' Pérez Roque said.
NO IDLE FEAR
Some American officials fear that if the United States enacts new steps to
inflict punishment on Cuba, then Havana might retaliate by unleashing a new
migrant exodus to punish the United States. It's not an idle fear.
Three times since Castro seized power in 1959, Havana has deliberately
encouraged thousands to reach South Florida on boats or rafts. After Mariel, in
1980, officials on this side of the straits came up with a plan, which has been
periodically updated. The exact plan remains secret, but a few details are
known:
· The first step would be to determine whether an exodus is under way.
Luis Díaz, a Coast Guard spokesman in Miami, said it would require
the spotting of hundreds of migrants headed to South Florida in one day to
trigger a decision on whether to activate the plan.
- Once the plan is operational, Díaz said, the Coast Guard would
pull reinforcements in from other districts, adding extra cutters to patrol off
South Florida shores.
- If senior federal officials agree, military vessels would rush to assist
the Coast Guard in picking up migrants.
- Once military personnel are involved, command for military activity would
switch to the U.S. Southern Command in Miami-Dade County.
''If there was a mass migration, we would be the unified command,'' said Lt.
Cmdr. Chris Loundermon, a Southern Command spokesman.
- If Cuba does not take back interdicted migrants, some might be brought to
the U.S. Naval Base at Guantánamo Bay, Cuba, and others to other
countries in the region.
- Finally, while the plan is designed to prevent the bulk of exodus
migrants from reaching U.S. shores, components of the plan assume that some may
get through. If that happens, federal, state and local authorities would
collaborate under the emergency plan to house and process exodus migrants who
reach shore.
A senior federal official who has seen copies of the plan said that while
the migrants would be received in South Florida, they would likely be taken
eventually to military installations around the country for processing.
Some Cuba analysts in the United States believe that the Camarioca
departures in 1965, the Mariel boatlift in 1980 and the rafter exodus in 1994
were ''engineered migrations'' -- political weapons designed to punish the
United States for real or imagined actions and coerce it into softening policies
toward Cuba.
Cuba expert Kelly M. Greenhill argued in a landmark study last year of Cuban
mass migrations that Castro launched the rafter exodus to ''manipulate'' fears
in the United States of another Mariel to compel a shift in U.S. policy toward
Cuba.
The exodus ended when the United States and Cuba began to negotiate new
migration accords under which Washington eventually agreed to return migrants
stopped at sea to Cuba. Until then, Cuban migrants rescued at sea were brought
to the United States and allowed to stay.
While Cuba welcomed the change in migrant policy, it was not totally
satisfied, since Cuban migrants who manage to reach shore still get to stay.
Greenhill, a research fellow at the Olin Institute for Strategic Studies at
Harvard University, said the circumstances of the current Cuban crisis should be
monitored closely for signs of a possible new exodus. ''I would say that the
situation bears close watching,'' he said. But he added that Castro might think
twice before sanctioning a new exodus.
''I don't think it's impossible we could see another outflow,'' Greenhill
said, "but if I were Castro, I'd think long and hard about launching an
engineered migration this time around, given the prevailing environment in the
aftermath of Sept. 11 and Iraq. The world looks different today than it did in
1965, 1980 and 1994.''
MOTIVE UNCLEAR
Precisely what would prompt Cuba to unleash another exodus is not known.
Better known is what initial steps the United States would take if another
exodus begins.
The new Department of Homeland Security has in place an agreement with
Florida state officials, signed in 1998, that would enable state law enforcement
officers to assist federal immigration officials in processing large numbers of
refugees.
Zachary Mann, a spokesman for immigration and customs enforcement and
customs and border protection in Miami, said the emergency plan was reviewed and
reevaluated last year.
''We came up with new strategies and options to deal with mass migration,''
he said, without giving details. "It's something we constantly try to be
ready for.''
More than 40 federal, state and local agencies are believed to be part of
the plan, including South Florida police departments.
Cuban intellectuals ask for end to criticism
From Herald wire services
HAVANA -A group of world-renowned Cuban intellectuals released a letter to
their colleagues around the world Saturday, asking them to stop criticizing
harsh measures recently employed here.
Titled Message from Havana to our friends in faraway places, the letter was
published Saturday in the Communist Party daily Granma.
Signed by 27 of Cuba's best-known cultural figures, the letter describes the
''surprise and pain'' felt when liberal intellectuals around the world
criticized Cuba for its crackdown on dissidents and the executions of three
ferry hijackers.
The Cuban letter blamed ''the distance, the disinformation and the traumas
of failed socialist experiences'' on the recent criticism from people it has
counted on for support.
The declarations ''are being used in the great campaign trying to isolate us
and prepare the stage for military aggression by the United States against
Cuba,'' the letter read.
The critics have included Mexican novelist Carlos Fuentes, who praised a
statement in which Portuguese Nobel Literature Prize laureate José
Saramago said Cuba "has lost my confidence, damaged my hopes, cheated my
dreams.''
However, noted Brazilian architect Oscar Niemeyer sent a message last week
expressing ''solidarity with the struggle'' of the Cuban leader as the U.N.
Human Rights Commission in Geneva passed a resolution calling for a U.N. rights
monitor to visit the island.
Among those who signed the letter in Granma were prima ballerina Alicia
Alonso, pianist Chucho Valdés, composers Cintio Vitier and Leo Brouwer,
and singers Omara Portuondo and Silvio Rodríguez.
Antonio Jorge, a Cuba expert at Florida International University, said he
was not surprised by the letter.
''All these people who signed this letter are long-time loyalists of Fidel
Castro,'' said Jorge, who teaches economics and international relations. "These
people are almost state functionaries, who are totally committed to the goals
and values of the Communist Party in Cuba.''
Brothers to the Rescue says it will broadcast another message of
solidarity to Castro's opponents in Cuba
By Elaine De Valle. Edevalle@herald.com.
Brothers to the Rescue will take to the skies again next month -- on the
anniversary of Cuba's independence and President George Bush's promise to
bolster TV Marti -- to broadcast a television signal to Cubans on the island.
Jose Basulto, the group's founder, announced the broadcast Monday. It would
be the second such transmission. The first came on Feb. 24, the seventh
anniversary of the shootdown that killed four Brothers fliers.
Like the first transmission, the message will be an expression of solidarity
with the internal opposition to Fidel Castro's regime.
''This should constitute a good incentive for our brothers on the island to
seek on their own the necessary changes to their present situation,'' Basulto
said.
He and a group of Brigade 2506 Bay of Pigs veterans urged President George
W. Bush to honor a promise he made last May -- during a celebration of Cuba's
centennial in Miami -- that TV Marti would be seen by Cubans on the island. The
transmissi
The federally-funded TV Marti, which is intended to provide island residents
an alternative to state-run media, is jammed by the Cuban government.
''It's time for President Bush's promise to be fulfilled,'' said Jorge
Garcia-Rubio, a Brigade member.
Basulto said the ''communications missions'' are a natural evolution for
Brothers, which started as a search-and-rescue organization and moved into a
position of encouraging civil disobedience after the Clinton administration
changed U.S. policy on Cuban migrants in 1995 -- making the search missions
obsolete. | 
