August 13, 1999

Still On The Hook. Cuban State Liable For Fliers' Murders

Published Friday, August 13, 1999, in the Miami Herald

Court's unfortunate ruling doesn't stop families from seeking damages.

Let us not lose perspective. This week's U.S. 11th Circuit Court of Appeals rulings may be a temporary setback for the families of four South Florida fliers brutally murdered by the Cuban state on Feb. 24, 1996. Yet in no way does it diminish the importance of their case, which is pushing the limits of human-rights law.

Nor does the ruling undermine the families' moral and legal right to punish the Cuban regime -- if only by hitting its treasury -- for the terrorist act that took the lives of the four Brothers to the Rescue fliers: Armando Alejandre, Carlos Costa, Pablo Morales and Mario de la Peña.

Some measure of punishment against the Cuban state remains vital to satisfying even the most basic standard of justice in this case. Were it not for the families' civil suit, the Cuban government would get away with cold-blooded murder, just as it has countless other times over its 40 repressive years of existence.

The case before the appellate court began in 1997 when Senior U.S. District Judge James Lawrence King found the Cuban Air Force guilty of premeditated killing and awarded the families $186.7 million in damages. That ruling marked the first time that the Cuban state's, or any terrorist state's, actions had met with legal consequences in U.S. civil court.

The challenge, however, came in collecting those damages from the Cuban government. Blocked from claiming certain Cuban frozen assets, the families went after millions in fees currently paid by U.S. phone companies to ETECSA, the state-controlled firm that completes U.S. calls to the island. But the appeals court ruled that the families didn't sufficiently prove that ETECSA is an ``alter ego'' of the Cuban government -- though it is a joint venture that looks, acts and is majority-owned by Cuban government entities. Thus, ETECSA is not liable for the Cuban state's debt, the court said.

That's unfortunate. Even more unfortunate was the fact that the U.S. government actually argued against the families' claim in court. While the administration clearly has the right to set foreign policy, it must recognize that enforcing respect for human rights -- particularly when its own citizens suffer the abuse -- must be priority.

What must not be overlooked, however, is that the appellate ruling leaves undisturbed a fundamental thrust of the case: that the families have the legal right to claim punitive damages from the Cuban state itself. Had the court struck down the lower courts' ruling on that provision, collecting damages in this and others cases against terrorist states might have been hampered. The three-judge panel, in footnotes, also outlined other avenues for recovering damages.

That would be a shame. These families should be commended for trying to find ways to legally make Cuba's government pay for its heinous crime.

``This us about human rights and about justice. We seem to get bogged down in technicalities. But the families aren't going to stop,'' said Maggie Khuly, sister of Armando Alejandre, speaking for the families. ``Such human-rights abuses can not be tolerated in civilized societies.''

Copyright 1999 Miami Herald