The Alan Gross "sentencia" summarized

Why did Cuba jail USAID contractor Alan Gross? 

The official Cuban answer has consistently been about Cuban sovereignty and Gross’ conduct that was alleged to have threatened, as the charges against him put it, the “independence and territorial integrity” of Cuba.

If you have wondered what they mean by that, a court document that came to light this month explains in detail what the Cuban government found and what it perceived Gross to be doing. 

In brief, the Cuban court held that Gross was working on a project that he designed, that he described in his own papers as focused on political objectives and contributing to the Bush Administration’s regime change objectives; that he imported and installed three satellite Internet/Wifi systems for Cuba’s Jewish community, never representing himself as working for a U.S. government program; that those communications systems were chosen because they do not operate on the Cuban communications network; that he traveled to Cuba five times in one year, carrying some equipment himself and enlisting unwitting Americans who were traveling to Cuba for religious exchanges to carry the rest; that he was going to be assigned to repair a satellite communications system that another USAID grantee had installed; and that he had a discussion – at Cuba’s Hotel Nacional, of all places – about installing satellite communications systems for Cuba’s Masonic Lodges.

If just half of that is true, the real question becomes: Is there a more surefire scheme for sending an American into Cuba to get arrested?

Regardless of one’s view of Gross’ conduct, USAID programs, Cuba’s reaction, or Cuba’s legal system, this document is an important addition to the discussion. 

After the jump, a summary and comments on it.

The Alan Gross Sentencia – Summary and Comments

by Philip Peters

The sentencia (pdf) in the case of jailed USAID contractor Alan Gross, first published by Café Fuerte, deserves more examination than I gave it here. 

The sentencia is not a “sentence” in our terminology; it is not exactly like anything in our judicial system.  It is issued by the court, in this case the Court for Crimes against the Security of the State, which is part of the Havana Provincial Court.  The sentencia presents the set of facts that the court accepted to be true and on which it decided the case; the proof that led the court to accept their veracity; the laws that the court applies to that set of facts to try the case; considerations regarding the defendant’s degree of responsibility and any factors that would increase or reduce any fine or jail term; and the court’s decision regarding any punishment.

The sentencia presents a new level of detail in Cuba’s case against Gross, and has value for that reason.  It refers to numbered pages in volumes of evidence gathered by prosecutors, much coming from documents found on Gross’ laptop and flash drives.

What appears below is a not a comprehensive summary of the sentencia; rather, it is a summary of selected information that sheds light on the factual and legal case lodged against him.  Readers are welcome to point out additional elements that should be included or explained.

It is not a translation.  It is a paraphrase, written in the court’s voice but not using the court’s words. 

When quotes appear, they are from the sentencia, i.e. from the judges that tried the case and signed the document.  In all cases where the sentencia quotes from other documents, mainly Gross’ own papers, I point that out.

My comments follow at the end.

Explanatory notes are in brackets.  Page numbers refer to those in the sentencia itself.

Finally, a definition of the term BGANS that appears throughout the document.  A satellite Internet system that USAID programs have sent to Cuba is called a broadband global area network system, or BGANS.  It involves a laptop-sized unit, an antenna, and some associated gear.  It enables a user to gain access to the Internet from virtually anywhere in the world through a direct satellite connection independent of any local cable, phone, or wireless network.  It also creates a low-power WiFi hotspot.

Summary of Information Contained in the Sentencia

of the Cuban Court in the Alan Gross Court Case

Page 1

The first mention of Alan Gross’ connection with the USAID program: before June 2004, he was contacted by the Pan American Development Foundation (PADF), a USAID grantee, and received about $400 to deliver a video camera to a Masonic Lodge in Cuba.  He delivered the camera to Jose Manuel Collera, a member of the lodge. 

In early 2007, Gross received $5,500 from PADF to buy equipment for PADF that Gross knew would be distributed in Cuba.  The purchases included a BGANS satellite Internet system, a laptop, and assorted other items.

Page 2

Documents on one of Gross’ flash drives included a funding proposal for a project that Gross presented to PADF in 2007.  The proposal contained “truly political content.”  The idea, quoting from Gross’ proposal, was to provide Internet access to “pro-democracy groups” and to break “the strict surveillance over communications between existing pro-democracy groups in Cuba.”  BGANS and associated equipment were to be used.  Gross planned to have the equipment enter Cuba using, again in the proposal’s words, “multiple conduits such as tourism, humanitarian missions, and diplomatic pouches.”  The proposal was not accepted.

In 2008, Gross contacted the [Bethesda, Maryland-based] company Development Alternatives Incorporated (DAI) because that company was seeking bids for its “Cuba democracy program.”

The programs under which Gross worked are rooted in the Helms-Burton law, which is intended to change Cuba’s political system; the programs have among their objectives “bringing down the Socialist Revolution.” USAID bid solicitations describe the objectives of “expanding the reach and impact of independent civil society in Cuba and, as a result, accelerating the peaceful transition to democracy.”  (The foregoing quote is from an unidentified USAID document.) 

Page 3

Gross’ October 30, 2008 contract with DAI contains a clause committing the parties to keep its contents confidential.

To win that contract, Gross submitted a proposal to DAI that was “essentially” the same as the one turned down by PADF.  He called the project “ParaLaIsla.Net.”  Its intention, quoting from the proposal, was to provide “unrestricted” communications capability that “cannot be monitored” for “democratic activists” and “other participants,” all “to contribute to the promotion of a just and democratic government” in Cuba.

Gross’ documents “repeatedly” refer to the objective of a “peaceful transition in Cuba.”

The “ParaLaIsla.Net” website had a one-year duration, expiring February 12, 2010.  It included e-mail programs, an encyclopedia, and other content.  Its homepage bore the Cuban flag and the slogans, “If not now, when?” and “Cuba’s future is now.”  This is “an obvious subliminal incitement to subversion against Cuba’s political, economic, and social order.”

Gross’ plan was to install three BGANS for the Jewish communities in Havana, Camaguey, and Santiago. 

Once he received the DAI contract, Gross contacted Williams Recant, a member of a New York Jewish organization active in Cuba.  “Without giving him details,” Gross told Recant that he would be participating in a program called “For Cuba.”  Recant recommended that Gross contact William Miller of the Cuban Jewish community.  Recant informed Gross about Jewish groups that travel to Cuba, and Gross used members of those groups to carry equipment for his project to Cuba.  Gross sought licenses from the Treasury and Commerce Departments, respectively, to travel to Cuba and to export equipment to Cuba, emphasizing in his license applications the need for discretion and caution.

Page 4

Gross made his first trip to Cuba March 30, 2009.  He passed through Customs with his equipment “without being detected.”  He contacted Miller at the Gran Patronato synagogue in Havana.  He installed the equipment, set up the WiFi, and told Miller it was “to improve communication between Jewish communities.”  Gross used the equipment to communicate with DAI.  He trained two members of the synagogue in the use of the BGANS.

On April 4, 2009, Gross wrote a report to DAI.  In the report, Gross said he told Cuban users of his equipment to set up Gmail, Hotmail, or Yahoo accounts and “communicated to them that they should not use their own names in the e-mail accounts they would create, obviously to make their identification even more problematic for Cuban authorities.”

Page 5

Gross traveled to Cuba again on April 25, 2009.  Before his trip he contacted Suzanne Andisman, an American who was going to travel to Cuba with a religious group.  She agreed to Gross’ request to carry some communications equipment with her; she arrived in Cuba the next day, met Gross at the Parque Central hotel, and gave the equipment to him.  She “was unaware of the true plans” of Gross. 

Gross proceeded to take the BGANS equipment to Santiago, told the leader of the Jewish community there that he carried a “donation to improve communication between Jewish communities,” and installed the equipment.  Because one element of the system did not work, it could not connect to the Internet.  Gross returned to Havana and then to the United States May 4.

On June 4, 2009 Gross made another trip, having contacted in advance an American named Richard Klein, and having received Klein’s agreement to carry some equipment for Gross.  They arrived the same day on separate flights.  Gross took the BGANS system to Camaguey, told the leader of the Jewish community there that it was “a donation from the Jewish community in the United States to improve communication among Cuban Jewish communities,” he installed it, and it worked.

Page 6

Gross’ trip report to DAI described his work as “very risky.”  He reported that if the BGANS were to be detected by Cuban authorities (quoting from the report), “it would lead to confiscation of the equipment and arrest of the users.”   

An “extensive” document titled, “How to communicate securely in repressive environments” was found on Gross’ flash drive.  It is directed, in the document’s own words, “to political activists who operate in non-permissive environments and those who support their work.”  It provides tips on how to use different technologies and how users should conduct themselves.

Gross traveled again to Cuba from July 22 to 30 and from November 24 until his December 3 arrest.  He was in Havana, Santiago, and Camaguey to train users in the operation and upkeep of the BGANS systems.  Upon the project’s completion, his compensation was to be $258,264.  That sum and his activities demonstrate the “lucrative, conspiratorial, and covert” nature of his work.

In November 2009, before his final trip to Cuba, Gross was contacted by Akram Elias, formerly a top official of a Masonic lodge in Washington.  Elias had called DAI about assisting the Masons in Cuba, DAI put him in touch with Gross, and they agreed to meet in Havana in December 2009 to discuss installing BGANS in Cuba’s lodges.  They met at the Hotel Nacional December 2, 2009, discussed the project, and agreed to talk further.

Page 7

Gross traveled to Cuba on a tourist visa on every trip he made.

A detailed list of all equipment seized from Gross is presented.

A long paragraph presents Gross’ professional resume.

Page 8

Evidence from Gross’ five trips to Cuba in 2009 includes the BGANS and other equipment installed by Gross and seized by police; the items in his possession at the time of arrest; his hotel and rental car records; and testimony from a communications ministry official to the effect that Gross never applied for a permit “to establish satellite communications stations.”

The defense lawyer objected to the way in which documents taken as evidence from Gross’ flash drive were handled.  The court turned aside the objection and went on to note that Gross acknowledged in front of prosecutors and witnesses that the documents were his own with the exception of the one titled, “How to communicate securely in repressive environments.”

Page 9

The “furtive character” of Gross’ projects is shown by the notation at the bottom of each page of his project proposal, a warning that disclosure of its contents could cause, quoting from the proposal, “irreparable harm to certain parties on the island.” 

The project proposal also argued that Cuban government controls on communication “among pro-democracy groups” had reduced “the island’s ability to make well-founded decisions” and that with “the efficient use of current information and communication technologies, the possibility that social change would come about on the island and the possibility of supporting it would increase sooner rather than later.”  (Quotes from his project proposal.)

Page 10

A Customs document shows that upon entering Cuba [date unspecified], Gross declared and paid duty on equipment that he described in his customs declaration as a “modem” when it was in fact satellite equipment.

A sworn statement from Judy Gross, Alan Gross’ wife, “provides details” about a lawsuit against DAI.

Page 12

In a deposition, Daniel Motola of the Havana synagogue library staff said that the phrase “If not now, when” is from the Talmud, but he did not understand why it was placed on the computer screen of a non-religious project; nor did he understand why it was accompanied by the phrase, “The future of Cuba is now.”

William Miller of the Havana synagogue testified that Gross was introduced to him by Americans who are known by the Havana Jewish community.

Page 13

Leaders of the Camaguey synagogue testified that Gross was introduced to them by an American whom they know.

Jose Manuel Collera, the Cuban who received the video camera from Gross in 2004 at the Masonic Lodge, received news of the arrest of Alan Gross in a phone call from Marc Wachtenheim, a PADF official.  Collera testified that he was paid $250 per month to recruit Cubans who would be trained in the use of information technology provided by USAID.  He testified further that on a visit to Washington, he was awarded a medal by the “Republican Committee of the Congress.”  Collera worked as undercover agent of Cuban state security until 2011.  [In 2011, Collera and others revealed themselves on a Cuban television program as state security agents that had worked undercover on their own, or with Cubans and/or Americans connected to U.S. government programs.]

Raul Antonio Capote, a Cuban who collaborated with PADF and who also revealed himself in 2011 to be a Cuban state security agent, testified that he received a BGANS from Wachtenheim on April 25, 2008.  The equipment subsequently needed repair.  Rene Greenwald, Capote’s “liaison with Marc Wachtenheim,” told Capote that the person who should repair the BGANS is Alan Gross, but Gross had been detained by Cuban authorities after committing “a series of careless errors.”

Page 14

In his testimony in court, Alan Gross stated that DAI “used him without warning him of the legal consequences that could result from his project” in Cuba.  He also “appeared evasive” regarding the true import of the charges laid against him, as was his right to testify in a way that served his case, and he acted as if he “was not aware of the political content” of his project.  He also testified that the project approved by DAI and actually carried out by him was different from that described in the proposal found on his flash drive.

“In reality,” the “fundamentally political” goals of Gross’ work are clear in a) the warnings he put on each page of his proposal; b) the reports he submitted to DAI; c) his communications with the Treasury Department regarding his license; and d) the fact that his actions in Cuba differed “hardly at all” from the project proposal.

The court concluded that Gross did indeed write the document that he denied writing and that was found on his flash drive (“How to communicate securely in repressive environments”).  Apart from the question of that document’s authorship, “what is certain” is that Gross was setting up satellite Internet communication networks outside the Cuban government’s ability to detect them, and for the purpose of advancing the U.S. government’s foreign policy goals toward Cuba.

Page 15

The defense attorney argued that the appropriate law for charging Gross is Law 88 [a Cuban statute that responds to the Helms-Burton law], and that Gross should be fined, credited with time served, and released forthwith.

The court found that Gross’ actions did indeed violate Law 88 but that they also went beyond the scope of the crimes defined in that law.  The court found that his actions fit under the section of the Cuban Penal Code that concerns “acts against the independence or the territorial integrity of the state.”  [See Article 91, here.]

Under Cuban law, the fact that Gross was motivated by financial gain is an aggravating factor in assessing the severity of any punishment.  His cooperation in the investigative phase would have been an attenuating factor were it not for the fact that during his subsequent testimony he was evasive, changed his story, and tried to distort certain points of fact that were already established.  His age of more than 60 years counted in his favor. 

Page 16

The court noted that his actions presented “a high degree of danger” to Cuban society at a time when U.S. government contractors are increasingly employed in “mercenary action” in certain countries.

Gross’ activities are not justified by their “apparent legality” in the United States; they violate basic norms and principles of international law; and they violate the constitution of the International Communications Union, which recognizes the right of all states to regulate communications.

A 15-year prison sentence is ordered. 

Pages 17 and 18

Gross’ equipment and personal possessions and the disposition thereof are listed.

Gross’s time served is credited against his sentence.

[End of summary.]

Comments

I.

How authentic and accurate is this document? 

Its authenticity does not seem to be in doubt.  Persons familiar with the Cuban legal system recognize its form and style.  Neither USAID nor anyone connected with Gross has questioned the document or its assertions of fact, and no debate on that issue has broken out here or in Cuba.  USAID could be expected to dispute any inaccuracies by now, given its assertion that its operations in Cuba “aren’t secret, covert or classified.”  Also, given that so much of the case is derived from the apparently large number of Gross’ documents on his laptop and flash drives – material to which USAID and its grantees would have access – then USAID’s ability to rebut any Cuban misrepresentations or errors would be strong.  Finally, many claims in the document fit with what is generally known about the program. 

All of this favors the conclusion that the sentencia’s contents are accurate.  We’re left with a detailed account from Cuba, generalities from USAID, and nothing from Gross’ direct employer DAI.  Maybe it’s political sensitivity, maybe the lawyers have all the information clamped down.  But it’s not satisfying to anyone who would want to compare both sides’ stories.  For now, what stands out is that the U.S. government is letting the Cuban account stand unchallenged.

II.

Why care?

First, because an American is in jail.

Second, this document adds substantially to the discussion.  It’s likely to be all we’ll get from the Cuban side, unless there is disclosure of videos or transcripts of the court proceeding or of the volumes of documentary evidence to which the sentencia refers repeatedly.

Third, because the USAID program is at the center of U.S.-Cuba relations under the Obama Administration – both because Gross’ incarceration is characterized as a roadblock to progress from Washington’s point of view, and because the Administration asserts that the program is perfectly normal, implicitly saying that the modus operandi are fine too.

And finally because the program was at the center of the Bush Administration’s bureaucratic, government-centered approach to Cuba.  It was the point of the spear of the U.S. approach to Cuba, an approach to which we might return if Governor Romney is elected.  The Bush idea was to restrict private contacts with Cuba by Americans who go on their own volition – not to mention on their own dime! – to engage with Cubans on their own terms.  (Such contacts have been viewed as beneficial in the long term in all other contexts, not to mention a normal exercise of our freedoms, but never mind.)  Instead, the Bush Administration wanted contacts focused on changing Cuba’s political system, which meant spending lots of government money on contacts designed and approved by the government, such as Mr. Gross’, which landed him in jail and perfectly wasted probably a million dollars once you add the costs attendant to his $585,000 contract. 

III.

What’s worse, if the sentencia is accurate, is that Gross endangered Americans who traveled to Cuba for reasons of religious fellowship by having them carry equipment that could have landed them in trouble in Cuba. 

The sentencia says that Gross contacted a man in a Jewish organization in New York, “Williams Recant.”  In fact, one William Recant is listed on the website of the American Jewish Joint Distribution Committee, a venerable international charity founded in 1914, with a recent history of aiding Cuba’s Jewish community.

It would be interesting to know if USAID has a policy about how its operatives present themselves.  Are they permitted to enlist participation by Cubans or help from Americans without informing them that it’s a U.S. government program that could lead to trouble in Cuba?  One would think that people are entitled to understand the risks, then make up their mind.

IV.

Gross, in his heart, may have only wanted to get a contract so he could get paid to assist Cuba’s Jewish community.  The “transition” language in his proposals could be boilerplate in his mind, language necessary to get the contract but containing concepts in which he did not believe.  The reason why such language would be necessary, why USAID can’t simply help the Jewish community or farmers or any other Cubans just for the good of it, is because the program’s authorizing law dictates that it “support democracy-building efforts.”  See Section 109 of the Helms-Burton Act.  The Administration could use other authorities for Cuba programs, but does not seem to have done so.

V.

The connection to Cuban intelligence is striking: Gross’ first reported Cuba contact in 2004 is with an undercover agent; a USAID grantee phoned that agent to inform him of Gross’ arrest in 2009; and a second agent who had received a BGANS from a source other than Gross was to connect with Gross had he not been arrested.  Then there is the notion that Gross carried so much digital material on his person, and that he and another American chose the Hotel Nacional as a place to discuss a new initiative involving Cuba’s Masons.

There’s more on Cuban agents who worked with the USAID program here, here, and here.

With all this, I was reminded of an interview that Miami Herald editors conducted with House Foreign Affairs Committee Chair Ileana Ros-Lehtinen.  The Congresswoman said that the U.S. government is “going to be very nervous” about the operation of these programs in Cuba. “Alan Gross was not the perfect person to represent the U.S. government in giving equipment to the Cuban people,” she said. “You’ve got to know what you’re dealing with…you can’t just send someone with the best intentions … you’ve got to know what you are doing and he was not the right person.”

That’s reasonable enough.  Her implication is that “the right person” might be out there.  Another implication is that USAID should not be in this business at all, bumbling at covert operations with no apparent rules against endangering American citizens and organizations in Cuba.

VI.

Gross claimed that he was not the author of a document found on his flash drive entitled, “How to communicate securely in repressive environments.”  The court adduced that he was the author.  A document by that title appears on the web; the author is Patrick Meier.

VII.

In the court’s discussion of aggravating and attenuating factors in the decision to arrive at a 15-year sentence, the implication seems to be that the sentence might have been shorter had Gross not taken different approaches in his statements during the investigative and trial phases. 

An excerpt of his statement at trial, written in his own hand, is here; it was first published at Café Fuerte, where a Spanish version appears.

VIII.

The sentencia goes to some length to demonstrate Gross’ efforts, such as they were, to operate below the radar “in a surreptitious manner.”  In support of that it cites the nondisclosure clause in Gross’ contract with DAI.  I wonder if that part of the argument is overdrawn, and if there is a standard clause that binds the parties to confidentiality unless both agree to disclose.

IX.

The sentencia, first reported by CafeFuerte, has also been covered by Reuters, The Miami Herald, AP, and Radio Marti.