Cuba considers suing US to get satellite photos of shootdown

Fifteen years after Cuban MiGs blew two Brothers to the Rescue aircraft out of the sky, the Cuban government continues to insist the planes were inside Cuban airspace when they were brought down.

Ricardo Alarcon

In an interview in Havana last week, Cuban President Ricardo Alarcon told me his government is “considering suing” one of four American government agencies he says have refused to release satellite images of the incident. Alarcon believes those images will prove his country’s contention the shootdown took place inside Cuban territory.

On February 24, 1996—after protesting to no avail to U.S. authorities for more than seven months about Brothers’ persistent incursions into its airspace, and even after explicitly warning American officials on several occasions that it would not tolerate any more violations—Cuban MiGs shot down two of three aircraft belonging to the Florida-based anti-Castro group, killing four people.

At the time, Cuba says its radar data showed the Brothers’ aircraft were flying inside its territory; American radar placed the planes over international waters.

In the end, the International Civil Aviation Organization—the United Nations agency that investigated the accident—concluded the information the two countries provided “could not be reconciled.” So it based its own findings on the “recorded position and track” of a cruise ship that had been sailing near Cuba at the time of the incident.

Based on that information, the ICAO decided the shootdown took place in international waters.

But the accuracy of the cruise ship’s log became yet another issue of contention during the 2001 trial of the Cuban Five. One of the Five, Gerardo Hernandez, was accused of conspiracy to commit murder for his supposed role in the incident.

During the trial, a defence expert witnesses—retired American Air Force Colonel George Buchner—questioned the ICAO findings and suggested the only way to definitively determine exactly where the planes went down would be to examine photographs of the area that he claimed would have been taken that day by American satellites.

“It is my expert opinion,” Buchner testified, “that the government has satellite photos that would resolve this whole issue.”

Over defence objections, the judge ordered Buchner’s remarks stricken from the record.

The Cubans have been trying to get their hands on those photos ever since.

“Several American agencies operate satellites that are constantly monitoring and photographing Cuba and the rest of the world,” Alarcon points out. “We don’t have satellites; they have satellites. But they refuse to provide the images. Why?”

On December 29, 2009, American lawyers working on Hernandez’ last-ditch habeas corpus appeal of his murder conviction filed Freedom of Information requests with five U.S. government agencies—the CIA, the Department of Defence’s National Geospatial-Intelligence Agency, the National Ocean and Atmospheric Administration, NASA and the US. Geological Survey—for copies of satellite images from the day of the shootdown.

All the agencies turned down the Cuban request, though only one—the National Oceanic and Atmospheric Administration—claimed not to have what the Cubans were seeking.

On May 5 last year, Hernandez’s lawyers filed a “complaint for declaratory and injunctive relief” against NASA and the Geospatial-Intelligence Agency.

Though the question of exactly where the shootdown took place isn’t central to Hernandez’s appeal—Hernandez insists he had no advance knowledge the shootdown would take place and no role in organizing or ordering it—the location continues to be a matter of significance to Cuban authorities.

The ICAO report claiming the incident took place in international waters sparked international condemnation of Cuba’s actions.

And the shootdown—which prompted outrage in the U.S. that was only exacerbated by the ICAO conclusions—had a dramatic impact on relations between Washington and Havana.

In the months leading up to the incident, there had been a noticeable thaw in the usually icy relations between Havana and Washington. There was even optimistic, if muted talk in Washington that U.S. President Bill Clinton might finally end the then-35-year-old trade embargo against Cuba.

Instead, in the aftermath of the incident, Clinton not only condemned Cuba for being “repressive, violent [and] scornful of international law,” but he also signed a bill he’d previous opposed—the notorious Helms-Burton Act that gave Americans the right to sue foreign companies that did business with Cuba.

To make matters worse, that law—still on the books—prevents any future president from lifting the embargo against Cuba without prior Congressional approval.

Proving the 1996 incident took place over Cuban waters would not, of course, eliminate all criticism of the decision to shoot down the planes. Many observers, even those friendly to Cuba, argue Havana had other options besides shooting down what turned out to be unarmed civilian aircraft.

Still demonstrating that the Brothers to the Rescue aircraft were inside Cuban airspace—again—would help bolster Havana’s case that it was justified in taking action to protect its territory.