12/03/2013 05:40 EST | Updated 02/02/2014 05:59 EST

Do the Cuban Five Deserve Such Harsh Sentences?

Just before dawn on Sept. 12, 1998, 33-year-old Gerardo Hernandez woke to the sound of someone smashing through his Miami apartment door. By the time he opened his eyes, the room had filled with men wearing helmets and carrying machine guns.

"FBI!" they shouted. "FBI!"

The scene repeated itself at houses and apartments all over South Florida that morning 15 year ago this month as the FBI rounded up what a gloating prosecutor claimed was a "sophisticated" Cuban spy ring sent "to strike at the very heart of our system of national security."

Hernandez, the agent who headed La Red Avispa (the Wasp Network), has been in custody ever since.

He and four other agents -- now known as the Cuban Five, and celebrated in Cuba as national heroes -- pled not guilty to a variety of "conspiracy to commit" charges ranging from espionage to murder. They were convicted in 2001 and sentenced to lengthy prison terms. Four, including Hernandez -- who is serving a double-life-plus-15-year sentence at the Victorville maximum security prison in California for his supposed role in the 1996 deaths of four civilian flyers from the Brothers to the Rescue exile group -- are still in jail.

Should they be?

Just over 11 years later -- four years ago today, on Dec. 3, 2009 -- a 60-year-old-social-worker-turned-telecommunications specialist from Bethesda, Maryland was about to board a flight at Havana's José Martí airport when Cuban State Security officers arrested him. They seized Alan Gross's laptop, his Rosetta Stone Spanish-language CDs, several flash drives and a sophisticated telephone SIM card.

Despite American protests -- the State Department called Gross a "humanitarian do-gooder" helping Havana's Jewish community gain access to the Internet -- Cuban authorities eventually charged him under Section 91 of the Cuban Penal Code with "acts against the integrity of the state." He was convicted in 2011 and sentenced to 15 years in prison. He's still there.

Should he be?

Let's start with this: neither the Cuban Five nor Alan Gross is exactly as described.

The Five were not members of some insidious spy ring stealing America's deepest military secrets, and they had no role in the Cuban government's decision to shoot down those planes over the Straits of Florida.

And Alan Gross was not just a wrong-place-wrong-time good-doer.

The Cubans were indeed trained intelligence agents. But their primary mission was to combat terrorism aimed at their homeland. They infiltrated and reported back to Havana on Miami-based, militant anti-Castro exile groups that were plotting -- and frequently carrying out -- deadly attacks against Cuba, attacks that violated U.S. neutrality laws.

Three of them had, at least in part, a military mission, but it was also mostly defensive. Their job was to provide Havana with an early warning system for an American invasion of Cuba at a time when such incursions-- Grenada (1983), Panama (1989), Haiti (1994) -- were not uncommon.

That's not to suggest their bosses back in Havana didn't press for any scrap of random intelligence the agents could uncover, but even they understood actual secrets were well above the pay grade of agents like Antonio Guerrero, a lowly janitor who barely spoke English. The reality is American authorities chose to charge the Cubans with "conspiracy to commit espionage" because there was no evidence they committed actual espionage.

As for the conspiracy to commit murder charge against Hernandez, I've read the entire 20,000-plus pages of trial transcript and examined intercepted intelligence documents, and there is no compelling evidence Hernandez had any role in, or control over the Cuban government's 1996 decision to shoot down those two aircraft. Hernandez was a mid-level field intelligence officer in a highly compartmentalized security service with absolutely no need to know what his superiors in Havana were planning.

Hernandez was only finally charged -- a full seven months after his arrest -- because he was convenient: Cuban exiles were understandably still angry about the deaths of their comrades and Miami-based Hernandez was easier to indict than Fidel Castro. In the end, prosecutors attempted to withdraw the charge before the case went to the jury because they realized they hadn't met the judge's required burden of proof. The court turned them down, but the jury -- Miami juries were notorious when it came to cases involving Cuba -- convicted anyway.

As for Alan Gross? The facts -- as uncovered by Associated Press reporter Desmond Butler in 2012 -- show Gross made five surreptitious trips to Cuba in 2009, posing as a member of religious travel groups while enlisting others to smuggle in often sophisticated telecommunications equipment. One SIM card, "intended to keep satellite phone transmissions from being pinpointed within 250 miles (400 kilometers)," was so spy-grade its distribution in the U.S. was restricted "only to governments... most frequently to the Defense Department and the CIA." His contract with USAID was worth $500,000.

Despite that, should Alan Gross -- whose mother and daughter have both been diagnosed with cancer since he was incarcerated -- languish in a Cuba prison until he's 77?

Should Gerardo Hernandez -- who'd been planning to start a family when he was arrested and whose wife has been denied a visa to visit him ever since -- die alone in an American jail?

The reality is they -- and the others -- are less villains than victims of close to 55 years of the same failed policies, the same trapped-in-warped-time Cuban-American relations.

President Obama should grant the remaining members of the Five executive clemency and send them home. The Cuban government should respond by freeing Alan Gross on humanitarian grounds.

It's never too late to start again.


Stephen Kimber -- -- a Canadian journalism professor and author of nine books, spent three years investigating the case of the Cuban Five. His latest book, What Lies Across the Water: The Real Story of the Cuban Five, is published by Fernwood.