2.2                                      Developments in the United States on 23 February 1996


2.2.1                                According to authorities in the United States, the "Concilio Cubano, an umbrella human rights organization in Cuba II had been denied permission by the Cuban government to hold a public meeting planned for 24 February 1996; the Brothers to the Rescue had publicly stated their support for the Concilio Cubano and had filed an application with the Department of Treasury for a license to send financial assistance to the group.


2.2.2                                In the early afternoon of 23 February 1996, the Department of State's Office of Cuban Affairs contacted the FAA's Office of International Aviation (FAA/AIA), to indicate that "because of crackdown against dissidents in Havana the BTTR [Brothers to the Rescue] might attempt a flight to demonstrate solidarity with dissidents and in defiance of the Cuban government during the following day(s)." The Department of State also indicated that information suggests that the Cubans are in a 'rough mood'."


2.2.3                                The FAA/AIA then sent, at 14:40 hours on 23 February 1996, a message via electronic mail to FSDO, FAA in Miami and to FAA Headquarters, as follows:


"... The Government of Cuba's crackdown on dissidents has resulted in a number of arrests (in Havana) and the cancellation of a meeting that was to have been convened by the umbrella dissident organization 'Concilio Cubano' tomorrow.


We have received a call from the State Department indicating that since Brothers to the Rescue (BTR) and its leader Basulto support and endorse the Concilio Cubano, it would not be unlikely that the BTR attempted an unauthorized flight into Cuban airspace tomorrow, in defiance of the GOC and its policies against dissidents. State Department cannot confirm that this will happen and is in touch with local law enforcement agencies to better determine what is the situation, I've reiterated to State that the FAA cannot PREVENT flights such as this potential one, but that we'll alert our folks in case it happens and we'll document it (as best we can) for compliance/enforcement purposes.


State has also indicated that the GOC would be less likely to show restraint (in an unauthorized flight scenario) this time around. .."


FSDO was requested to convey the above message to the military liaison officer at Miami ARTCC.


2.2.4                                The military liaison officer received this message at 18:00 hours. He then briefed the Miami ARTCC shift supervisor and military liaison officer on duty of the "potential activity for the following day.” According to the authorities in the United States: "The specifics of the briefing were that the Miami AIFSS and Opa Locka Tower were to be advised to co-ordinate all flight plans and departure time information with the Watch Supervisor; the Watch Supervisor and/or the Military Liaison Specialist were to track the Brothers to the Rescue transponder codes as long as possible, take detailed notes and advise other facilities (DAICC, NORAD, etc.) of the activity, .The military liaison officer then called DAICC (Customs facility in California) supervisor, briefed him on the potential Brothers to the Rescue activity and requested their assistance. Furthermore. the manager of FSDO in Miami requested that the B94 aerostat radar balloon at Cudjoe Key, Florida, to be ”Put up”.


2.3                                      Events on 24 February 1996


2.3.1                                Situation in Cuba on 24 February 1996                        According to the Commander of the Anti-Aircraft Defence and the Air Force of Cuba. 24 February 1996 was a special day the one hundred and first anniversary of the Cuban War of Independence. There were carnivals and several other large public activities in Havana. The Brothers to the Rescue group had announced support for counter-revolutionary activities, and hence the Commander went to the command centre. At about 09:40 hours flight plan messages were received for flights by the Brothers to the Rescue aircraft. From 10: 16 hours three unidentified aircraft violated at various moments Cuban territorial airspace and activated danger areas. No SSR transponder codes were seen on radar for these aircraft. The Commander further stated that he ordered military interceptor aircraft to take-off and to persuade the unidentified aircraft to withdraw and that when the unidentified aircraft saw the MiGs, they withdrew. Two MiGs stayed north of Havana until the unidentified aircraft retired to the north, and the MiGs returned to base at 11:30 hours. By noon, three new flight plan messages for flights by the Brothers to the Rescue aircraft were received and the Commander decided to stay in the command centre.                          According to the authorities in the United States, their radar did not record any Cuban military aircraft activity, nor any unidentified aircraft, north of Havana between 10:12 and 11:30 hours. According to the authorities in the United States, they had no evidence that any Brothers to the Rescue aircraft departed from the United States in the morning of 24 February 1996. The Brothers to the Rescue confirmed that they had no flights that morning. However, United States radar recorded Cuban military aircraft activity north of Havana between 12: 15 and 12:45 hours. According to the authorities in Cuba, no such activity took place at that time.


2.3.2                                Situation in the United States on 24 February 1996                          According to the authorities in the United States, the Office of Cuban Affairs at the Department of State requested through the FAA Operations Center, Washington. D.C., Miami ARTCC and Miami AIFSS, information on the departure of Brothers to the Rescue aircraft. Opa Locka TWR confirmed to Miami AIFSS at 13'08 hours that three Brothers to the Rescue aircraft had taxied out for departure, and confirmed to Miami ARTCC at13: 15 hours that the three aircraft had departed and were just north of the airport. Opa Locka TWR was requested to inform Miami ARTCC if any additional Brothers to the Rescue aircraft departed. In addition, other agencies including Customs had been notified, According to the authorities in the United States, any incursions into Cuban airspace were to be documented for compliance/enforcement purposes.


2.3.3                                The flights of N2456S, N5485S and N2506                          General                    The movements of N2456S, N5485S and N2506, from 14:50 to 15:46 hours on 24 February 1996, were assessed from the following records: radar data provided by Cuba, in the form of plots from four air defence radar stations and an integrated plot; CARIBROC, NORAD's SEAD sector and Miami ARTCC radar data provided by the United States: recordings of the Cuban military radio communications provided by Cuba and the United States; recordings of radio communications provided by Havana ACC and Miami AIFSS; recordings of radio communications between the Cessnas, other civil radio communications and the intercom onboard N2506; statements by eyewitnesses, particularly from