CUBA NEWS
The Miami Herald

Feds bugged bedroom, phones of FIU pair

New court evidence in the Cuba spy case reveals the United States used wiretaps for years before agents arrested an FIU professor and his counselor wife.

By Jay Weaver. jweaver@MiamiHerald.com. Posted on Wed, Mar. 29, 2006.

Federal agents planted a bug in the bedroom of a Florida International University a couple of years ago, netting evidence to charge them as unregistered agents for the Cuban government, according to court records.

The FBI also wiretapped the home phones of Professor Carlos Alvarez and his counselor wife, Elsa Alvarez, from at least late 2001 until last summer, collecting electronic evidence on practically all of their conversations.

The reams of intercepts included mundane exchanges and even the private musings between husband and wife.

The FBI's eavesdropping of the couple's home goes far beyond what was first known about evidence in the case, which included alleged ''confessions'' to federal agents last summer and the confiscation of the Alvarezes' home and FIU computers. The surveillance evidence surfaced as part of their lawyers' efforts to revoke the couple's detention before their scheduled May 8 trial.

It's unclear from the court record how these thousands and thousands of surveillance intercepts will help the U.S. attorney's office prosecute the couple, who are suspected of reporting on the exile community and its leaders to Cuban leader Fidel Castro's government.

According to sources familiar with the case, the FBI had hoped the electronic intercepts would provide leads on alleged spying activity on behalf of the Cuban government. The evidence led only to the Alvarezes' arrests in January. It's unclear why prosecutors chose to charge them at that time.

The couple's lawyers say prosecutors have produced ''about 200 supposedly pertinent conversations'' recorded by the FBI, court records show. The evidence remains sealed from the public. But the Alvarezes' lawyers say the ''majority deals only with mundane activities of daily life'' -- such as conversations about the Alvarezes' dinner plans, the tenting of their South Miami home for termites and meetings at their Catholic church.

THE DEFENSE STANCE

The couple's lawyers, Steven Chaykin and Jane Moscowitz, argue their clients would not leave for Cuba if released because they have strong ties to the community, including five children and elderly parents.

They are challenging whether the FBI lawfully obtained warrants to conduct the electronic surveillance. The FBI obtained the warrants under the Foreign Intelligence Surveillance Act, which allows the government to wiretap people in the United States suspected of being agents for a foreign government or involved in terrorist activity overseas.

In the war on terror, the Bush administration has attracted sharp criticism for authorizing warrantless domestic wiretaps without approval from the secretive FISA court -- an issue that doesn't apply to the Alvarez case.

It is not clear from court records how long the FBI conducted electronic surveillance of the couple's home. But it appears the FISA wiretaps of the Alvarezes may have begun years before the Sept. 11, 2001, terrorist attacks. Post-9/11, Congress approved the USA Patriot Act that allows federal agencies to use foreign intelligence wiretap evidence for criminal investigations, such as the Alvarezes' case.

'On March 6, 2006, the government produced summaries of allegedly 'pertinent' recorded conversations produced by that surveillance starting in December 2001 and ending July 4, 2005, although the government states that the eavesdropping began earlier and continued until the defendants' arrest on Jan. 6, 2006,'' the Alvarezes' lawyers wrote.

The attorneys, in their motion, asked the government to disclose the documents related to the wiretap warrants. They are trying to challenge evidence that could affect their clients' case before a jury.

They cited constitutional protections for Carlos Alvarez, 61, a psychology professor, and his wife, Elsa, 55, a psychology counselor, both U.S. citizens.

Referring to the FISA law, the attorneys said: No U.S. citizen "may be considered an agent of a foreign power solely upon the basis of activities that are protected by the First Amendment. . . .''

For example, they argued, more than 40 of the ''pertinent'' FISA recordings are telephone conversations between Carlos Alvarez and an unidentified colleague regarding legally licensed culture-exchange programs between the United States and Cuba.

PROTECTIVE ORDER

This month, federal prosecutors refused to turn over documents for the FISA warrants to the Alvarezes' attorneys.

So far, U.S. District Judge K. Michael Moore has issued a protective order that allows only members of the legal teams and their staffs to review the declassified FISA intercepts for the upcoming trial.

Prosecutors apparently disclosed evidence about the FISA wiretaps to show the judge that the Alvarezes are a "serious risk of flight.''

Assistant U.S. attorney Brian Frazier cited Magistrate Judge Andrea Simonton's January ruling in which she said the couple would receive ''a hero's welcome'' in Cuba.

The prosecutor said the couple used their cover at FIU to infiltrate the exile community, spying on the university's president, Mitch Maidique, and other exile leaders. He said they secretly communicated with the Cuban intelligence directorate, using five-digit code in short-wave radio transmissions.

Once the messages were received, they would input them into their home computer, equipped with decryption technology.

Prosecutors say the couple traveled to Cuba, Mexico and other countries to exchange information with their handlers from the Cuban Directorate of Intelligence.

According to court filings, the Alvarezes reported on ''community attitudes'' after the FBI's 1998 arrests of 10 Cubans charged with spying. That high-profile espionage case was linked to the Cuban government's shoot-down of two Brothers to the Rescue exile planes over the Florida Straits that killed four Miami men two years earlier.

Excerpts from court arguments

Posted on Tue, Mar. 28, 2006.

I this were like a criminal proceeding, we wouldn't be here. The whole point of this is to say we're challenging the lawfulness of the tribunal itself. This isn't a challenge to some decision that a court makes. This is a challenge to the court itself. . . . The framers harbored a deep distrust of military tribunals, and the thing that makes it different than the ordinary criminal context, the thing that, as this court said, stops military justice from being lawless is the Congress of the United States setting clear limits on the use of military justice.

Hamdan attorney Neal Katyal

The executive branch has long exercised the authority to try enemy combatants by military commissions. That authority was part and parcel of George Washington's authority as commander in chief of the revolutionary forces. . . . And that authority was incorporated into the Constitution. Congress has repeatedly recognized and sanctioned that authority. Indeed, each time Congress has extended the jurisdiction of the court-martials, Congress was at pains to emphasize that that extension did not come in derogation of the jurisdiction of military commissions.

Solicitor General Paul Clement

How do you want us to view his status? Do we accept the government's submission that there's probable cause to believe that he was not in a formal uniform, that he was not a formal combatant, but that he was aiding and abetting or conspiring with al Qaeda? Can we accept that, that there's probable cause for that?

Justice Anthony Kennedy

If you take the the position that the commissions are operating under the laws of war, you've got to accept that one law of war here is the Geneva Convention right to a presumption of POW status unless there is a determination by a competent tribunal otherwise. . . . Won't you go from the frying pan into the fire, in effect, when you take the position that the laws of war are what the tribunal is applying?

Justice David Souter

[Solicitor] General Clement, if you can straighten me out on the piece that you read about consistent with the Constitution and laws of the United States. I thought that it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States?

Justice Ruth Bader Ginsburg

I take their argument as saying: Look, you want to try a war crime, you want to say this is a war crimes tribunal. One, this is not a war, at least not an ordinary war. Two, it's not a war crime because that doesn't fall under international law. And three, it's not a war crime tribunal or commission because no emergency, not on the battlefield, civil courts are open, there is no military commander asking for it. It's not, in any of those and other respects, like past history. And if the president can do this, well then he can set up commissions to go to Toledo, and in Toledo pick up an alien and not have any trial at all except before that special commission.

Detainee's lawyer tells justices that Military Commissions are illegal

By Carol Rosenberg, crosenberg@MiamiHerald.com. Posted on Tue, Mar. 28, 2006.

WASHINGTON - Detainee's lawyer tells justices that Military Commissions are illegal

In a key test case of President Bush's war powers, a lawyer for Osama bin Laden's former driver asked the Supreme Court Tuesday to put the brakes on the Pentagon's plan to try him by Military Commission at Guantánamo.

Attorney Neal Katyal argued that the Pentagon had crafted an unrecognized war crime -- conspiracy -- to try Yemeni Salim Hamdan under a framework that violates both international treaty obligations and the U.S. Constitution.

''This is a Military Commission that is literally unbounded by the laws, Constitution and treaties of the United States,'' Katyal told the court.

Solicitor General Paul Clement defended the Military Commissions created by the Pentagon to try 10 of the nearly 500 captives at Guantánamo as "part and parcel of [presidential] war powers for 200 years.''

The unusually long 90-minute argument took place in front an eight-member court, raising the specter of a 4-4 deadlock, which would allow Hamdan's war crimes trial to go forward after a decision some time this summer.

Chief Justice John Roberts' seat was empty; he left the chambers before the arguments began because as an appeals court judge he had sided with President Bush on the issue just days ahead of his nomination to the high court.

Several justices, notably freshman Samuel Alito, questioned whether it would be wrong to go forward with the commission by U.S. military officers -- and then to see whether a civilian court should consider their procedures and policies once a verdict is rendered.

Others focused on whether Congress intentionally or inadvertently stripped those held at the Navy base in Cuba of their habeas corpus rights to sue for their freedom in civilian court -- and whether the law signed by President Bush Dec. 30 actually applied to the case.

Hamdan, in his 30s, is among 10 captives at the base facing charges of conspiring to commit war crimes as part of al Qaeda's worldwide terror network.

He asserts through his lawyers that he never joined al Qaeda, never fought anyone and was a civilian driver who earned $200-a-month driving a pickup truck from bin Laden's private farm. His attorneys argue that if the man with a fourth-grade education is to face a U.S. trial, he should go before an ordinary military or civilian court, rather than one created to, in some instances, shield the accused from evidence against them.

Virtually none of his life story come up during the arguments, in which every justice but Clarence Thomas peppered the lawyers with pointed questions. Instead the issue is whether the commissions the Pentagon created on orders from President Bush wereconstitutional, whether they guarantee basic American freedoms and whether they follow the U.S. international treaty obligations.

A former aide spills the dirt on Fidel Castro

A member of Fidel's inner circle now lives in Miami and is talking up a storm. He even knows why the Cuban leader burns his underwear.

By Oscar Corral, ocorral@MiamiHerald.com. Posted on Thu, Mar. 23, 2006.

As part of Fidel and Raúl Castro's inner circle, Delfín Fernández learned titillating secrets -- everything from why the Cuban leader incinerates his dirty underwear to his cravings for pricey Spanish ham.

Oh, Fidel's former gofer confirms, too, the heftier ''secrets'' that Cuba experts have talked about for years: how the brothers assemble dossiers on foreign businessmen who want to invest in Cuba, for instance.

It's Fernández's knowledge about Fidel Castro's dirty laundry, though -- literally and figuratively -- that has made him a cause célbre in South Florida. No detail about the Castro brothers seems too small for sharing with the world.

Fernández says chief of bodyguards, Bienvenido ''Chicho'' Perez, told him the Cuban leader has his underwear burned to foil any assassination plots with chemicals during laundering.

And he knows Fidel's capricious appetite for Serrano hams, having been sent to Spain to bring $2,500 worth of the pata negra delicacy back to Cuba. He knows well the Castro brothers' doctors and children, having vacationed with them at lavish oceanfront homes on the island.

So what does a man with such sensitive information do once he goes into exile?

Why, he gets a steady, if unpaid, gig on a Spanish-language TV show in Miami, of course, after having been a bodyguard to international stars -- among them, Antonio Banderas.

Fernández, cherubic, chatty and with a portfolio of sensitive photographs and a memory filled with intimate Castro morsels, arrived in Miami less than a year ago after living in Spain for five years. But already, he has a spot on a new TV show on WJAN-Channel 41.

"I was assigned to take care of the people closest to Fidel. So that they don't lack anything and don't feel threatened by anything inside or outside of Cuba. . . . When I tell about these things on television, people see me and I start making a name for myself.''

Former CIA analyst Brian Latell, a senior researcher at the University of Miami's Institute for Cuban and Cuban American Studies, said this week he spent several hours meeting with Fernández in Miami earlier this year for academic research.

''A lot of the stories he told me were fascinating, and I found almost all of them to be highly credible,'' Latell said.

Fernández, 44, was code-named ''Otto'' when he reported to Cuban counterintelligence's Department 11 -- assigned to the Castro brothers and their closest foreign investment contacts, mostly from Spain, he said.

Fernández got the post as a trusted gofer in 1980 through his uncle, Rodolfo Fernández Rodriguez, chief of the Office of Special Affairs of the Counsel of State and one of Fidel's most trusted confidants.

While he worked for the Castro brothers, Fernández witnessed the tactics used by Cuba's leaders to monitor important foreign investors. His disillusionment with the regime, he said, and his ambitions for a better life compelled him to defect.

''The initial idea of Fidel was good. Batista was an assassin,'' Fernández said. "What happened was, the course he took with the revolution was wrong. It has dissolved into this unstoppable, insatiable corruption without limits, a vast lie. The people are in misery. Cuba's people have been enslaved as cheap labor for foreign businessmen.''

Fernández said Cuba's leader always travels around Havana in a six- or seven-car motorcade led by three nearly identical black Mercedes-Benz 560s. The Castro brothers have as many as 300 cars for them, their families, their bodyguards, Fernández said.

Fidel Castro turns 80 this year, and he has become obsessed with his health, Fernández said. The Castro brothers each have their own clinics and their own doctors in Havana's Council of State Building and in the Cimeq Hospital. Last year, Fidel Castro built a multimillion-dollar clinic a few yards from his front door, on the grounds of his Havana estate, Fernández said he learned from his island contacts. .

''So that if Castro has a heart attack or he dies, the only people who will know about it will be his family, the guards working at the time, and Raúl,'' Fernández said. "Fidel never cedes control, and will never cede power.''

One example of Fidel Castro's concern with ceding power is former Foreign Minister Roberto Robaina, applauded by some in the international community for trying to open Cuba to the world. But Robaina, whom Fernández knew well, was ultimately sacked by Castro in 1999, according to The Miami Herald and other media reports at the time.

''He was a guy with progressive ideas,'' Fernández said. "But he is an example of what happens if you try to change the Cuban system from within. He was under house arrest for two years.''

Fernández paints Raúl Castro, who runs Cuba's armed forces and by extention much of its economy, as more practical and family oriented than his older brother, an analysis echoed by Latell in his book After Fidel.

''Raúl likes the money -- he has a transition plan,'' Fernández said. "Fidel doesn't. I think Raúl would want to lead an economic transformation, and ultimately find a way to retire peacefully with his family with all the money he has stolen from the Cuban people over the years and taken out of the country.''

Fernández said he carried suitcases with cash out of Cuba for the Castro brothers.

Fernández's photographs include several of him with the children of Fidel and Raúl at one of their beachfront estates and with many high-profile Spanish businessmen.

Fernández said he defected in Spain in 1999 on a trip to Europe to drop off Raúl's daughter, Mariela Castro Espin, in Italy to visit her father-in-law and pick up a Rotweiller in Germany for Fidel.

Fernández settled in Spain for five years, becoming one of Europe's most successful bodyguards. Among his clients in Spain: actors Antonio Banderas and his wife, Melanie Griffith, soccer star David Beckham, Spanish actresses Ana Obregon and Esther Cañada, former Spice Girl Emma Bunton and several high-profile businessmen.

The Spanish media have embraced him, writing dozens of articles about his life as a Castro insider and bodyguard. He was also a consultant on an investigative book, Conexión Habana, by Spanish authors. Fernández said there's a black market trade in sensitive videos of Spanish businessmen -- videos made by Cuban agents.

''Fidel is an avid consumer of those materials,'' he said.

Last year, Fernández moved to Miami, eager to reconnect with friends and a community that reminds him more of home: like Cuba without Castro on TV every night. He has been an outspoken critic of the Castro government since he defected.

"Cuba has a death sentence against me for high treason.''

Now waiting to get residency under the Cuban Adjustment Act, Fernández won't talk about his own family, but he has plenty to say about the Castro clan. People can't seem to get enough.

Oscar Haza, a popular Spanish language talk show host on Channel 41, has invited Fernández on his show at least six times, firing up the ratings when he's a guest, said Channel 41 news director Miguel Cossío.

The ratings were so strong that Channel 41 offered to let Fernández be a permanent guest on a new daily weekday show, Arrebatados, at 6 p.m., hosted by Maria Laria.

''I'd like to start a bodyguard agency in Miami when I'm all settled down here,'' he said. "I'm very grateful to the people in Miami that have been so welcoming to me.''

Major League Baseball denies Castro's claims

By Kevin Baxter And Pablo Bachelet, pbachelet@MiamiHerald.com. Posted on Thu, Mar. 23, 2006.

WASHINGTON - Major League Baseball Thursday denied a claim by Cuban leader Fidel Castro that his government will donate proceeds from the World Baseball Classic to U.S. victims of Hurricane Katrina.

In a speech Tuesday, Castro boasted that the Bush administration's initial attempts to bar his country from participating in the tournament had backfired, and that Cuba's take from the tournament would go to "Katrina's martyrs.''

His comments raised eyebrows in the U.S. Treasury and State Departments, where officials had hammered out a deal with Major League Baseball: Cuba would get no money from the tournament, and no donations could be made on its behalf.

That accord between organizers of the Classic, won by Japan in a championship game against Cuba Monday, and the U.S. government was necessary to allow Cuba to take part in the first-ever World-Cup style baseball competition without contravening U.S. sanctions against the island.

Patrick Courtney, a spokesman for Major League Baseball (MLB), which helped organized the tournament, said that the Classic's agreement with the Cuban baseball federation clearly stipulated that Cuba, unlike the other 15 participating federations, would receive none of the tournament's proceeds.

''To the contrary, at the insistence of the Treasury and the State Department, Cuba agreed, as a condition of its participation in the tournament, that 'it will not receive any direct or indirect revenues and/or prize money,'' Courtney wrote in an email to the Miami Herald.

''Based on the agreement, Cuba doesn't have a cut of the proceeds from the tournament, and there is nothing for Cuba to donate,'' he added.

In fact, there's a chance none of the countries will get paid. Initial estimates put the cost of staging the 17-day, 39- game tournament at $50 million. Gene Orza of the major league players union, said the event could wind up losing money. The participating teams, Cuba included, had their expenses paid for.

Before the Havana team left San Diego, site of the championship game, Cuban spokesman Pedro Cabrera told reporters that the team would be donating tournament proceeds to Hurricane Katrina victims and asked reporters to include that in their stories. Cuban manager Higinio Velez made a similar claim before the tournament began.

U.S. officials say privately that the Bush administration would react angrily if MLB ends up making a donation from the tournament's proceeds to a Katrina charity.

PRINTER FRIENDLY