The Miami Herald
BY JAY WEAVER
When President Bill Clinton signed a 1996 decree barring forays into Cuban territorial waters without a federal permit, he acted with near-absolute authority for national security reasons.
That means Cuban exile activist Ramón Saúl Sánchez faces a formidable fight against U.S. government prosecutors, who charged him and two boatmates with illegally entering Cuban waters to stage a memorial protest against Fidel Castro's government, three legal experts said Thursday.
Decades ago, Congress gave the president emergency powers to pass laws for national security reasons. Clinton did just that in March 1996, declaring an emergency security zone around Florida to prevent a possible confrontation after a Cuban MiG jet shot down two Brothers to the Rescue planes days earlier, killing four men.
Lawyers for the Democracy Movement leader could have problems if they try to argue that his constitutional free-speech rights were violated when Sanchez was charged with trespassing in Cuban waters without U.S. permission on July 14, the legal experts say.
The defense lawyers face more hurdles if they argue that federal authorities selectively charged Sánchez and two other Democracy Movement protesters with violating the zone regulation, while allowing fishermen to travel into Cuban waters.
``They are going to have a lot of trouble establishing a constitutional defense,'' said Mark Tushnet, a professor at Georgetown University Law Center.
``This won't be easy and [Sánchez] will probably lose, because people will understand that the proclamation was motivated by a larger foreign policy agenda,'' said University of Miami law professor Patrick Gudridge.
Sánchez and Democracy Movement members Alberto Pérez and Pablo Rodríguez, charged with conspiring to violate the security-zone regulation and knowingly breaking
it, are scheduled to appear next week before U.S. Magistrate Hugh Morgan in Key West.
If convicted, the trio faces 10 years in prison, fines and the forfeiture of their boat, My Right To Return.
The boaters ignored Coast Guard warnings to leave Cuban waters on July 14. The three men were honoring 41 Cubans who drowned on July 13, 1994, after their tugboat was allegedly rammed and flooded by Cuban gunboats while fleeing the island.
Democracy Movement lawyers insist that federal authorities selectively enforced the security-zone law by prosecuting the three, while allowing 3,000 fishermen and other boaters to enter Cuban waters during the past six years.
``It's pure free speech that has been criminalized,'' said Kendall Coffey, one of Sánchez's defense attorneys and the former U.S. attorney for South Florida.
Randall Marshall, legal director for the American Civil Liberties Union, said the Democracy Movement's constitutional right to free speech should trump any presidential emergency proclamation.
`ACTIONS WERE SPEECH'
``It's clear that Democracy Movement's actions were speech,'' Marshall said. ``It wasn't that they were out for a pleasure cruise. They were out there to commemorate the sinking of a tugboat by the Cuban government. They were engaging in speech activities that were protected by the Constitution.''
Tushnet said that argument will not hold up in court because there does not appear to have been any discriminatory enforcement of the security-zone regulation.
Sánchez can claim that the U.S. Coast Guard granted more than 3,000 permits to fishermen and other travelers to leave the security zone. But he said Sánchez's
argument appears weak because the Coast Guard has apparently not granted permits to other protesters, such as pro-Castro activists, to enter Cuban waters.
``If that were the case, that would be a serious constitutional problem,'' Tushnet said.
Coast Guard spokesman Ron LaBrec said he does not believe any other protest group has sought a permit to leave the security zone, which forms a perimeter around Florida, except parts of the Panhandle.
LeBrec said he reviewed a batch of 300 security-zone permit applications on Thursday. The applications were from fishermen, people involved in cultural exchanges, families visiting relatives in Cuba and others stopping there on their way to another country.
``There were no permit requests for a protest,'' LaBrec said.
The indictment against Sánchez comes almost 13 months after he signed a consent decree acknowledging that the presidential proclamation prohibiting entry into Cuban waters is ``lawful, valid and constitutional.''
He said he signed the agreement so the federal government would return his boat, Human Rights, which had been seized by the Coast Guard after a December 1998 flotilla that allegedly infringed on Cuban waters. Sanchez said he believed the presidential decree only applied to the Human Rights boat.
Federal prosecutors in Miami said this was the first time anyone has been charged with violating the Florida security zone -- established on March 1, 1996, less than one week after the shootdown of the Brothers to the Rescue planes on Feb. 24, 1996.
In Presidential Proclamation 6867, Clinton said he imposed the restrictions on U.S.-registered boats because it could lead to injury or loss of life again ``due to the potential use of excessive force, including deadly force, against them by the Cuban military.''
Clinton also said violating the security zone ``could threaten a disturbance in international relations.''
President George W. Bush signed the proclamation again on Feb. 27, 2001.
Legal scholars said Sánchez and the other defendants will have a hard time challenging that authority, which is based on a congressional act dating back to 1917.
The president has the constitutional and statutory authority to invoke the National Emergencies Act to protect U.S. security.
Gudridge and another legal scholar said Sánchez can argue in the court of public opinion that his right to free speech was violated by the U.S. government, but federal law would probably prevail.
``There will be a certain outrage here because he's simply expressing his views. The court of public opinion will say, `Let the guy go free.' They'll say the law is unfair.
After all, he's doing it to remember the dead. He's protesting the tyranny of Castro,'' said the Rev. Robert F. Drinan, a constitutional expert at Georgetown University Law Center and a former Massachusetts congressman.
``But the president has vast powers in this situation -- almost unchecked.''
© 2001 The Miami Herald and wire service sources. All Rights Reserved.