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This story disgusts me. I know why it happened: the people involved didn’t know the relevant issues they had to raise to defend themselves, and the perceptual-level “optics” of their actions made the vast majority of Americans who heard about this story (and there weren’t that many) think something happened other than what probably actually did happen.
It’s about six Cuban refugees – Alexis Norniella Morales and Miakel Guerra Morales, his brother; and four others: Eduardo Javier Mejia Morales, Yainer Olivares Samon, Neudis Infantes Hernandez, and Alvenis Arias-Izquierdo. They hijacked a Cuban-government plane flying from the Isle of Youth to Havana on March 19, 2003, using knives to force the crew to fly to Florida. Lacking the fuel needed to make it to Miami, they landed in Key West. The six were then arrested, tried and convicted of air piracy in 2004 in the U.S. District Court for the District of South Florida and sentenced to 20 to 25 years in federal prison. They are then to be deported to Cuba, possibly to be tortured and executed. (Imagine the psychological torture of having to live the rest of your life like that.)
Why I’m disgusted to the hilt is that I believe this conviction is improper. As an attorney I think it’s improper because the elements of the offense of air piracy probably weren’t met. Federal air piracy law makes it illegal to forcefully or violently commandeer an aircraft with wrongful intent (49 U.S.C. §46502). Admitted, these men did commandeer the aircraft with force or violence. But I don’t believe what they did was with wrongful intent. The plane was one of the Cuban government’s and the pilot and crew were all essentially employees and agents of Castro. The men made it clear they only wanted to defect to the United States. They didn’t want to (and, as far as I know, didn’t) harm anyone in doing so any more than necessary to escape lifelong slavery in what’s essentially a nation-sized prison in Cuba. By pulling knives on the pilot and crew, they essentially were defending themselves against agents of their captors. To protect their rights to life, lib erty, property and the pursuit of happiness, they had no choice but to use force or violence to escape.
To call what these men did wrongful intent would violate victims’ rights by making any retaliation through force or violence illegal. If force or violence were necessary for someone to defend himself, he could be doomed to either being jailed or being injured, robbed or killed. For example, an Israeli fighting off an Isis/Al Qaeda/ Hezbollah/Hamas terrorist out to kill or kidnap him would be in the wrong, as would a woman being mugged shooting her assailant on a street in a US city. (Also, Kyle Rittenhouse, anyone?)
Unfortunately, the defense counsel, from everything I can tell, didn’t make this argument. They basically defended on the grounds that Cuba is very poor and the men were fleeing poverty. But this is a very weak argument because merely being hungry with no money doesn’t justify pulling a knife on anyone the way defending one’s rights does. The defense also basically let the prosecutor conflate force or violence with wrongful intent, as if there were no distinction between them, and any use of force or violence was automatically with wrongful intent. (Given when this occurred it was probably an easy sell to the jury and the public, with the air piracy of the 9/11 attacks still fresh in everyone’s minds.) According to the Los Angeles Times, this is the view of Hans de Salas de Valle of University of Miami, who said, “The U.S. wants to send the message to the Cuban government and to the Cubans that using forceful means to leave the island won’t be allowed.” (What are they supposed to do then? Ask pretty please with sugar on top??)
Because the defense didn’t make these arguments, I believe these six men were essentially denied effective assistance of counsel. For this reason, the conviction should be overturned and a new trial ordered – with a defense team that argues on the basis of rights violations rather than poverty. This I believe would result in a different verdict. (If you haven’t heard of this case, you’re probably far from alone. I suspect the media kept it hush-hush because the publicity over the Elian Gonzalez deportation a few years earlier probably cost Al Gore the 2000 election.) Also, when Cubans hijacked planes in the past to the United States before the Morales case, they were welcomed, not prosecuted.
Some of the cast of characters involved in this debacle:
Judge: James Lawrence King
Prosecutors: Harry Wallace, John Delionado
Defense attorneys: Mario Cano, Israel Encinosa
University of Miami (possibly played a consulting role for the prosecution): David Abraham, law professor (also the mastermind of the Elian Gonzalez deportation); Hans de Salas de Valle, teaching assistant.
This is the kind of atrocity that occurs when justice becomes a floating abstraction.
Does anyone know of any firms, agencies, etc., who might want to try to get these men a new trial? If so, let me know – I want to do whatever I can to bring a just outcome to this situation.
(If you want the context as to why Mexican and Cuban migrants need to be treated differently, here goes: Mexicans aren’t fleeing a dictatorship while Cubans are. It’s true Mexico is a poor, corrupt and dangerous mixed economy. But you can still speak your mind there, disagree with the government, vote for opposition political parties and own private property. In Cuba none of this is possible. In Cuba but not in Mexico, you are constantly in peril of the government detaining, torturing and even murdering you as an act of official policy. This is why Cubans must be given asylum automatically while Mexicans who want the same treatment can’t just say they’re leaving Mexico; they must also prove up additional facts showing their rights are being jeopardized.)
/sb
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Re: David Wilens’ post 103066 of 12/17/21
This story disgusts me.
You said it!
I know why it happened: the people involved didn’t know the relevant issues they had to raise to defend themselves, and the perceptual-level “optics” of their actions made the vast majority of Americans who heard about this story (and there weren’t that many) think something happened other than what probably actually did happen.
No, it happened because of the teaching of Jesus of Nazareth. Teachings raised from the dead by Immanuel Kant.
Proof? Just imagine that these had been people fleeing Nazi Germany; they would have been feted as heroes for stealing a Nazi plane, at knifepoint, and flying it out of that dictatorship.
The Christian-altruist premises of Nazi Germany have never been understood or admitted. That’s why the Christian-altruist West was able to damn Nazi Germany as fiendishly evil. But since the Christian-altruist premises of Cuba are understood (under a splintered layer of evasion) by the intellectuals and the media, damning that dictatorship will summon the Night Riders of the cancel culture to damn you and threaten your life.
People clearly understand that Hitler was a death-deserving monster and that his Third Reich was a vast slave pen where everyone lived in constant fear. They don’t understand that about any communist regime. Even regarding North Korea, I bet they don’t grasp a hundredth part of the horror.
A moral nation would have celebrated these hijackers as heroes. A smart nation would have offered asylum to the pilot and crew of the plane! I’m sure many of them would have leapt to take it, and that would have thrown the fear of Man into Castro’s heart. Our announced policy should have been: defectors from the Cuban military and the (lower-level) government are granted automatic asylum. (The real criminals, the higher-ups in the regime, should be executed.)
Of course, the fundamental answer is: open immigration. No “grants” of anything, because the lives of people are not ours to grant or reject.
/sb
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Re: Harry Binswanger’s post 139978 of 12/17/21
There is precedence here and worse so.
The two fugitive slave acts (1793 and 1850) used the police to track down and capture slaves who had escaped the south into the north and return them to their “owners.” Such slaves escaped entirely peacefully without even threat of force, not that that would make a difference as they were being held captive.
One interesting legal thought experiment: how should the authorities in Atlas Shrugged‘s America have dealt with Ragnar had they caught him for what would by today’s laws be classified as terrorism? How would today’s American law enforcement deal with him?
/sb
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Re: Gordon Gregory’s post 139992 of 12/18/21
how should [did you mean, “would”?] the authorities in Atlas Shrugged’s America have dealt with Ragnar had they caught him for what would by today’s laws be classified as terrorism? How would today’s American law enforcement deal with him?
Unspeakably brutally.
/sb
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Re: Harry Binswanger’s post 139978 of 12/17/21
My understanding of altruism is it’s a moral duty to give up one’s happiness by giving away one’s values to other people. Now you and I have argued about whether religious sacrifice from obedience to dogma is altruism. It’s still sacrifice of values, but altruism is according to you more specific than that: it’s sacrifice to other people. That’s why you’re talking about the Christian-altruist ethics, with sacrifice for God (Christian) or your neighbor (altruist). So the common thread here is sacrifice of values.
My thinking is that sacrifice of values came about as an ethical doctrine that wasn’t openly bankrupt in many people’s minds because people didn’t understand the difference between satisfaction and happiness, and the difference between tradeoffs and sacrifices. Given the nature of sacrifice, as giving up a greater value for a lesser one (or none at all), it should never be done and is always immoral if done willfully. And given the nature of happiness, as not just satisfaction but as a satisfaction with no pain, fear, guilt or other misgivings associated with it, it should always be pursued with no reason for why it shouldn’t. That’s why according to John Locke and the Founders we have an inalienable right to pursue it.
However, if someone conflates tradeoffs with sacrifices, sacrifices “sometimes” become moral (e.g., conservatives gushing over the “sacrifices” of our wounded veterans, who actually made very legitimate tradeoffs for greater values despite the steep prices they paid). And, if someone conflates satisfaction with happiness, happiness “sometimes” becomes immoral (e.g., some conservative commentator calling a murderer “selfish” for drowning her kids or driving his SUV into a crowd of people, etc., as if these killers were pursuing not just satisfaction, which they were, but also happiness, which actually wouldn’t be possible under these circumstances).
So what we’re left with: the application of the Christian-altruist ethics to the Morales brothers. The liberals condemn them for opposing the slavery of Cuba. And the conservatives convict them for not dutifully accepting the sacrifice of either accepting Cuban slavery or, if they wanted to escape, the sacrifice of “having to do so peacefully” for the alleged “greater good” of “keeping the peace” (a common Christian pseudo-value) when they did it.
A moral nation would have celebrated these hijackers as heroes. A smart nation would have offered asylum to the pilot and crew of the plane! I’m sure many of them would have leapt to take it, and that would have thrown the fear of Man into Castro’s heart. Our announced policy should have been: defectors from the Cuban military and the (lower-level) government are granted automatic asylum. (The real criminals, the higher-ups in the regime, should be executed.)
If there were the proper understanding of tradeoffs for happiness, people wouldn’t for the most part believe in, spite and nihilism aside, sacrifice of values. And honoring the hijackers is exactly what they would do.
*sb
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Re: Harry Binswanger’s post 139978 of 12/17/21
HB commented:
Proof? Just imagine that these had been people fleeing Nazi Germany; they would have been feted as heroes for stealing a Nazi plane, at knifepoint, and flying it out of that dictatorship.
If the hijackers were Jewish (my first thought), I am not so sure. The United States and many other countries refused to take Jewish refugees from the Nazi onslaught. If they were not identified as Jews, I’d agree with you.
Nazism was vilified much more during the war than before it by a deliberate propaganda campaign by our government. There were many Nazi supporters in the US prior to the US entering the war.
I think David Wilens does suggest an ethical legal approch that might have given the defendants a better chance. The decision would still be up to a jury, steeped as HB said in Christian altruism that would not identify Cuban Communism as anything so evil as Nazism.
The other point Wilens made is that arguing the poverty of the hijackers is a weak one. Yes, it is weak because it is an appeal to altruism. Arguments must reject altruism consistently. To use altruism in the defense only concedes validity to altruism — the same altruism that makes Cuban communism more tolerable in the minds of jurors than Nazism.
It would be best to use the self-defense approach along with identifying the horrible consequences of Cuban communism to life, liberty and the pursuit of happiness. The American sense of life or what’s left of it might prevail.
/sb
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Re: Joseph Peter Miller’s post 139997 of 12/18/21
The United States and many other countries refused to take Jewish refugees from the Nazi onslaught.
That was FDR, the “great humanitarian” that he was! I don’t think the American people were that anti-semitic.
*sb
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Re: Harry Binswanger’s post 139998 of 12/18/21
I don’t think the American people were that anti-semitic.
In America, anti-Semitism was strongest among admirers of Germany: academics and “public servants.” Universities blocked Jews from some departments, such as Chemical Engineering at MIT; from receiving substantive scholarships (lest anti-Semitic donors be offended); and imposed quotas similar to current quotas against Asians. To be fair, American universities, unlike those in Europe, did not restrict the few Jews that they did admit to segregated “bench ghettos.” Forcing refugees back to Europe was politically driven by the labor unions (“They are coming here to steal American Jobs!”) – hence FDR’s policy.
The racism of the less-educated classes was directed mainly against Blacks, with routine lynchings as far North as Ohio, but only once or twice on the scale of the everyday pogroms against Jews in Europe.
*sb
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Re: David Wilens’ post 139996 of 12/18/21
(e.g., conservatives gushing over the “sacrifices” of our wounded veterans, who actually made very legitimate tradeoffs for greater values despite the steep prices they paid).
That gushing rationalizes sacrifice. It’s not respect or sympathy. American warriors, in reality, independently of intentions, selfishly fight for their selfish, individual rights. Tell that to conservatives and watch their hatred of rights slither out.
*sb
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Re: Adam Reed’s post 139999 of 12/18/21
Universities blocked Jews from some departments, such as Chemical Engineering at MIT
One of my Jewish uncles left his chemical engineering studies at MIT to fight as a combat engineer in WW-Europe. He had to kill German children in uniforms shooting at US troops. He returned to finish his studies, eventually become the president of an industrial paper corporation, and hire me for a summer job. He once beat the East German woman’s tennis champion in a game and died at 80 or so, playing tennis.
*sb
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Re: Harry Binswanger’s post 139998 of 12/18/21
Indeed FDR, but I was under the impression there were numerous groups in the US and numerous nations that actively opposed Jewish migration including Canada and GB. I’ll have to look for sources, however.
Many Jewish children were sent here for protection by their families. Those were likely regarded as temporary arrangements that became permanent.
*sb
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