The People of Cuba
vs. the U.S. Government
by William Schaap
CovertAction Quarterly, Fall / Winter 1999
In Cuba, it is known simply as la demanda-the legal complaint.
On May 31, 1999, a lawsuit for $181 billion in wrongful death
and personal injury damages was filed in Havana Provincial Civil
Court against the government of the United States. The plaintiffs
are eight national organizations, on behalf of their members,
representing nearly the entire population of the island.
The complaint describes, in considerable detail, forty years
of U.S. acts of aggression against Cuba, and specifies, often
by name, date, and particular circumstances, each person known
to have been killed or grievously wounded as a direct victim of
this campaign. In all, 3,478 people were killed and an additional
2,099 seriously injured. (These figures do not include any indirect
victims of the economic pressures, the blockade, the difficulties
in obtaining medicine and food, all due to deliberate U.S. policy)
The complaint was served upon the United States through the
appropriate diplomatic channels: from the Court, to the Cuban
Ministry of Foreign Affairs, to the United States Department of
State. As expected, the U.S. chose not to respond, and twenty
days later was declared by the Court to be in default, in accordance
with Cuban law.
Nevertheless, under Cuban law, as in most jurisdictions, a
default by the defendant does not, by itself, authorize a judgment
in the amount of damages requested. The plaintiff must still prove
the two elements of such an action, that the defendant caused
the damages and that the damages were in the amount claimed. Consequently,
on July 5, 1999, what was ultimately to be a 13-day trial with
testimony from 196 witnesses commenced in the large, elegantly
marbled chamber where the Supreme Court of Cuba once sat. The
trial ended on July 21, 1999, and the five-judge court recessed
to prepare its judgment. As of this writing, the decision has
not yet been announced.
THE NATURE OF THE CHARGES
The case was, in legal terms, very narrowly drawn. It was
for the wrongful death of individuals, on behalf of their survivors,
and for personal injuries to those who survived extremely serious
wounds, on their own behalf. No unsuccessful attacks were deemed
relevant, and consequently there was no testimony regarding the
many hundreds of unsuccessful assassination attempts against Cuban
President Fidel Castro and other high officials, or even of bombings
in which no one was killed or injured. Damages to crops, livestock,
or the Cuban economy in general were also excluded, so there was
no testimony about the introduction into the island of swine fever
or tobacco mold, or about the U.S. embargoes on direct and indirect
trade with Cuba.
The complaint describes nine discrete aspects of the U.S.
campaign against Cuba, roughly chronologically The first deals
with the formal beginnings of the covert war campaign almost immediately
after the triumph of the Revolution, relying in large part on
declassified U.S. government documents, most significantly, "Program
of Covert Actions Against the Castro Regime," approved by
President Eisenhower on March 17, 1960, and "The Cuba Project,"
issued by Edward Lansdale on January 18, 1962.
The vast body of declassified documents is essential to the
crux of the complaint, that the U.S. government is responsible
for the damages claimed, because it confirms the ultimate legal
responsibility of the U.S., regardless of the status of the individual
perpetrators of the murderous acts. Indeed, the evidence of direct,
official U.S. involvement in training, paying, supplying, and
directing the actual perpetrators of the fatal bombings, shootings,
arson, and torture is, in most cases, overwhelming.
The complaint then describes the campaign of air and naval
attacks against Cuba that commenced in October 1959, when Eisenhower
approved a program that included bombings of sugar mills, machine-gun
attacks on Havana and even on passenger trains, and the burning
of sugar fields. The campaign was coordinated in detail by the
Central Intelligence Agency In mid-1961, the ClA's lnspector General
noted that the CIA station in Miami overseeing the campaign had
grown from 40 people in January 1960 to 588 people by April 16,
1961. It was becoming "one of the largest branches of the
The third section of the complaint, which was supported by
days of testimony and dozens of witnesses-many in their 70s and
80s-described the armed terrorist groups, los banditos, who ravaged
the island for five years, from 1960 to 1965, when the last group
was located and defeated. These bands, most numerous in the central
Escambray region but operating throughout Cuba, terrorized small
farmers, horribly torturing and killing those considered (often
erroneously) active supporters of the Revolution, men, women,
and children. Children who saw their fathers or mothers murdered
before their eyes testified, as did elderly parents who watched
their children tortured and killed. Young volunteer literacy campaign
teachers were among the victims.
Although the actual totals were, after so many years, impossible
to tally, the plaintiffs' attorneys presented documentation attesting
to 549 murders and 200 maimed survivors.
The most notorious and most fully documented U.S. attack on
Cuba was the Bay of Pigs invasion, in April 1961. Although the
entire incident lasted less than 72 hours, 176 Cubans were killed
and 300 more wounded, 50 of them permanently disabled.
The complaint then described the unending campaign of major
acts of sabotage and terrorism that included the bombing of ships
in Havana harbor and of stores and offices in town, of attacks
on ships and planes. Some of the most horrific examples of the
brutality of this war were described here, including the 1976
bombing of a Cubana airliner off Barbados in which all 73 people
on board were killed, as well as the murder of Cuban diplomats
and officials around the world, including one such murder on the
streets of New York City in 1980. This campaign has continued
to the present, with the murders of Cuban policemen, soldiers,
and sailors in 1992 and 1994, and the 1997 hotel bombing campaign.
While the retention and use of Guantanamo Naval Base by the
U.S. is well-known, the extent to which it has been used provocatively
as part of the campaign against Cuba is less understood. Aside
from serving as a safe haven for fugitives from Cuba, in the 1960s
several Cuban workers were tortured and murdered there, and a
number of Cuban border police were shot by U.S. troops within
the base, with eight killed or "disappeared" and 15
maimed for life.
The complaint also describes in detail those aspects of the
chemical and biological warfare waged against Cuba that have involved
human victims, most significantly the creation of an epidemic
of hemorrhagic dengue fever in 1981, during which, in only a few
weeks, some 340,000 people were infected and 116,000 hospitalized-this
in a country which had never before experienced a single case
of the disease. In the end, 158 people, including 101 children,
Finally, the complaint makes reference to the Cuban Missile
Crisis of 1962, which brought the world to the brink of nuclear
war, and describes the costs to Cuba of defending against all
of the previously described warfare, conventional and unconventional.
It is difficult to convey the poignancy and power of the personal
testimony of the hundreds of eyewitnesses who recounted these
horrors. In describing the five-year war against the bandits in
the countryside, men and women now in their 80s told of seeing
their children tortured and killed before their eyes. Likewise,
children, now in their 40s or 50s, described the deaths of their
parents at the hands of the bandits. Aging veterans of the peasant
militia-many of whom had never held a weapon until they took up
arms against the bandits- showed the court, and the Cuban television
audience, their horrible wounds, their maimed or missing limbs.
Some spoke of suffering mental illness for decades, of nightmares
While the terror in the country was aimed primarily at peasants
who supported the land reform program of the new revolutionary
government, another target was the sweeping literacy campaign,
with ultimately nearly 100,000 volunteers throughout the island,
many of them teenagers, teaching the people to read and write.
Several of these young teachers, along with a number of their
adult pupils, were murdered by the bandits. These martyrs received
huge state funerals, and their names have been known ever since
to all Cubans. The mother of one such young hero testified, asking
for justice against the nation that trained and armed the people
who killed her son 38 years before.
The testimony relating to the 1981 dengue fever epidemic was
both scientific and personal. On the one hand, a number of doctors
and public health officials enumerated all the reasons that the
epidemic appeared artificially induced and described the history
of secret U.S. research on mosquito-borne diseases. A portion
of the transcript of a 1984 federal criminal trial in New York
was submitted, in which the head of the anti-Cuba terrorist organization
Omega 7 testified under oath that, shortly before the outbreak
of the epidemic, the CIA had given members of his group "some
germs" to be taken to Cuba.
On the other hand, the parents of young children who died
from the fever, often in a matter of days, also testified. One
mother described how she held her four-year-old daughter in her
arms as she looked up and said, "Mommy, l think I'm going
to die." The current Minister of Public Health, who was the
head of the Havana Pediatrics Group at the time, described the
frantic efforts of the government to combat the epidemic which,
in areas with poor health care, can be fatal in 40 to 50 percent
of the cases. That only 158 people died, out of some 116,000 who
were hospitalized, was an eloquent testimony to the remarkable
Cuban public health sector.
AN UNENDING WAR
Although many of the incidents described, many of the wrongful
deaths alleged, happened in the 1960s and 1970s, the campaign
is by no means ancient history, even if the role of the U.S. government
is harder to prove the more recent the incident. Cubans, government
officials and ordinary citizens, are still being killed in actions
strikingly similar to those of the early years of the struggle.
In the early 1990s, Cuban soldiers, police, and civilians
were murdered by would-be, and occasionally successful, hijackers.
In 1997, seven bombs were set in Havana hotels, killing one foreigner,
in a campaign alleged to have been coordinated by Cuban exile
agents of the CIA. Only last year, a group of exiles were charged
with plotting to assassinate President Castro, and are facing
trial in Puerto Rico.
Throughout the decades in question, the formal role of the
United States is sometimes clear and sometimes vague, sometimes
obvious and sometimes subtly twice or thrice removed. That role,
of course, is fundamental to this lawsuit, and some critics, even
if they deplore the terrorist acts against Cuba, argue that it
is paranoid to assume that every such act has been directed by
the powers that be in Washington. The extremist wing of the Cuban
exile community, they note, contains a fair share of lunatics
capable of acts of terrorism without any prompting from the White
House or Langley.
That may well be, but it has been the explicit policy of the
U.S. since 1959 to destabilize, hopefully to overthrow, the Cuban
government. And part of that policy has been to use the exile
community however possible. Every government document that has
surfaced, that has been declassified, has confirmed that policy.
None of the claims in la demanda are far-fetched. Witnesses
described, for example, planes from the U. S. with U.S. pilots
air-dropping weapons and supplies made in the U.S. to the bandits
in the mountains. Intelligence experts read into the record the
recently declassified October 1961 report of the then CIA Inspector
General, Lyman Kirkpatrick, that described in detail CIA support
to the bandits. It noted that, in 12 drops during the six months
ending March 1961, known as Operation Silence, "151,000 pounds
of arms, ammunition, and equipment were transported by air.
Does that not suggest that the widow of a peasant murdered
by one of the bandits who received his weapon in one of those
airdrops has a decent wrongful death claim against the U.S. government?
Does the fact that that bandit was not a formal U.S. government
employee in any way lessen that claim?
Certainly, no high official at Fort Detrick has yet admitted
that they sent mosquitoes infected with type-2 dengue fever virus
to Cuba in 1981. And yes, no report has yet been released in which
the CIA admits it helped Luis Posada Carriles fund the terrorists
who bombed the Havana hotels two years ago. Still, the last 40
years of U.S.-Cuban relations suggest that it is almost impossible
to be paranoid about Washington's potential for ill intentions
WHAT DOES IT ALL MEAN ?
No one in Cuba is wasting time planning how to spend the $181
billion that the lawsuit demands. No one in Cuba thinks they are
really going to collect a dime on their default judgment victory
But that hardly makes this case either foolish or irrelevant.
For one thing, it has enormous historical importance for the
people of Cuba, the majority of whom were not even born when most
of these events took place. The testimony of all the witnesses,
many of whom had never before spoken publicly, was transcribed,
recorded, and videotaped. Most of it will be published soon.
But beyond the preservation of a nation's history, there is
a moral imperative to this detailed demonstration of forty years
of an unconscionably murderous and unquestionably illegal war
against Cuba. The U.S. (along with most of its western allies)
has the audacity to say that Cuba does not respect human rights,
that Cuba is "undemocratic" and must have U.S. free-market
capitalist democracy imposed upon it.
But it is the U.S. that bombs Cuba, not Cuba that bombs the
U.S. It is the U.S. that uses chemical and biological warfare
against Cuba, not the reverse. It is the U. S. that prevents food
and medicine from reaching Cuba, a blatant violation of the Geneva
Conventions. And it is Cuba, not the U.S., that has completely
free health care, completely free higher education. It is in Washington,
not in Havana, that homeless people die of exposure just blocks
from the White House.
If the Cuban people have chosen to demonstrate, by the testimony
in this trial, that the United States government is hypocritical,
Iying, and criminal, that is not just their right, that may well
be their obligation.
The trial received almost no media coverage in the U.S., even
though the Associated Press and Cable News Network were there
and filed material every day. While their reporters in Havana
may have seen the significance of the testimony, the editors and
publishers back home, mesmerized as always by forty years of propaganda,
rejected, almost subconsciously, anything that did not parrot
the conventional wisdom.
The very notion of such a case was rejected as ludicrous by
the same people who see nothing strange about a Yugoslavia War
Crimes Tribunal that only charges Serbs. More to the point, it
was dismissed by the same media pundits who thought that the case
brought in Florida against Cuba by relatives of the Brothers to
the Rescue pilots was righteous and self-explanatory Yet that
case, which received saturation coverage in the U.S., is much
less defensible in terms of both national and international law.
Until the latter half of the twentieth century, nations were
absolutely immune from suits, civil or criminal, brought in the
courts of other nations. Over the course of time that principle
of international law changed, but only to a certain extent, with
two exceptions to state immunity generally recognized by international
law. Under modern international law and as reflected in the domestic
statutes of many countries, foreign states can be sued in the
courts of another state for only two categories of wrongs: acts
emanating from commercial activities, like breach of contract
claims, and tortuous acts actually committed by the foreign state
within the territory of the other state. Thus, when Orlando Letelier
and his co-worker Ronni Moffitt were murdered by agents of the
Chilean government in 1976 in Washington, D.C., Chile itself could
be sued in the courts of the United States. However, if Letelier,
or any U.S. citizen for that matter, had been killed by agents
of Chile outside the United States, Chile could not be sued for
that act in the courts of the United States.
The case being tried in Cuba meets these standards of international
law; the actions carried out by the U.S. against Cuba were carried
out within Cuba or were meant to have an effect inside Cuba. The
United States does not have sovereign immunity for such acts.
The Brothers to the Rescue case does not, however, meet these
international standards; the downing of the plane, apart from
other defenses the Cuban government has, occurred outside the
territory of the United States. Even if one believes the U.S.
claim that the plane was in international waters when shot down,
that would not establish U.S. court jurisdiction under international
So how could that case have been brought in federal court
in Florida? Congress passed a special law in April 1996 that purports
to give federal courts jurisdiction over certain countries that
commit torture, murder, aircraft sabotage, or hostage taking outside
the United States. The law probably does not pass muster under
international law, but so far it has been upheld in U.S. courts,
under the doctrine, astonishing as it sounds, that an act of Congress
overrides inconsistent international law, even preexisting treaties
ratified by the United States.
Aside from its arrogance and its contempt for generally accepted
principles of international law, what is particularly pernicious
about this law is that it does not apply to every state that commits
one of the prohibited acts; it only applies to those countries
that the State Department designates "state sponsors of terrorism."
You can guess who is and who is not on the list. There are only
seven such countries, and, of course Cuba is one of them. So we
have selective "justice" of the worst kind. A Cuban
exile group in Miami can use the federal courts in this fashion,
while a group of Kurdish exiles, for example, could not sue the
Turkish government in our courts. Whatever the legality under
international law of allowing such suits- and it is doubtful-it
is certainly illegal to do so with a rule of law that applies
to some countries but not to all.
And there is yet another taint to this case. The Brothers
to the Rescue plane was shot down in February 1996; the law permitting
the suit was passed two months later, in April 1996. Yet the court
in Miami upheld its application to conduct that occurred before
the law was passed, because Congress stated that the law should
be applied retroactively There is nevertheless a strong presumption
in U.S. Iaw that such statutes should not apply to past conduct,
but when it comes to Cuba, the laws-both international and domestic-are
made to be broken.
In September, Cuba again took the moral offensive, charging
very publicly that the U.S. campaign against it, including the
trade embargo, constituted genocide. ~ 7 This is an escalation
in rhetoric fraught with dangers, but there is, in fact, a strong
case to be made. U.S. efforts to block the importation by Cuba
of food and medicine can only have the primary effect of worsening
the health of every Cuban, raising mortality rates in every area.
What is this if not attempted genocide?
Whether la demanda or these new charges will have a significant
effect on Cuban-American relations remains to be seen. The influence,
vastly disproportionate to their numbers, that right-wing Cuban
exiles have had on American politics is waning, as some of the
more virulent leaders die off. Small cracks appear in the wall
of the blockade, such as the recent easing of some restrictions
on food and medicine, marginally better communications, increased
airplane flights, etc. La demanda shows not that the blockade
is stupid or immoral, but that the war of which it has been a
part is inhuman and illegal.