Accessory to murder?

"I keep looking at all the information together-the lack of response on the U.S.'s part, the transcripts from the planes, the fact that they came so close to the United States and the Air Force didn't do anything-and it can only lead me to one conclusion: that, yes, certain factions of the U.S. government conspired with the Cubans to kill Brothers to the Rescue."

This statement does not come from a John Grisham melodrama, but from attorney Sophia Powell-Cosio. She spoke to WORLD at the end of eight days in federal district court in Miami last month, where her client, Jose Basulto, was locked in a battle with the U.S. government to keep his pilot's license. Mr. Basulto heads Brothers to the Rescue, a group of pilots originally organized to reduce the loss of life among balseros, or rafters, who are escaping from Cuba.

The trial coincided with the conclusion of a four-month investigation by the International Civilian Aviation Organization (ICAO), a U.N. agency. It condemned Cuban jet fighters for shooting down two unarmed Cessna twin-engine planes in the international airspace between Florida and Cuba last Feb. 24. Four Brothers to the Rescue volunteer pilots were killed in the incident; Mr. Basulto and co--pilot Arnaldo Iglesias were the only ones to escape.

So why is the U.S. government trying to put Mr. Basulto out of business instead of trying to extradite the Cuban MiG pilots and put them on trial? That's just one of the questions Ms. Powell-Cosio is asking about the incident that occurred five months ago. The testimony of government witnesses at the trial in Miami began to reveal some answers.

On Saturday Feb. 24, radar specialist Jeffrey Houlihan of the U.S. Customs Agency took up his duties around noon eastern time and was informed that MiGs within Cuban airspace, apparently on maneuvers, had been seen on radar that morning. Just after 1 p.m. he began monitoring three Cessnas he knew were piloted by Brothers to the Rescue as they came down the Florida Keys and out over the Florida Straits. Then he saw two Cuban MiGs take off "near Havana" and head north to meet them.

Mr. Houlihan works far from the waters off south Florida in the Domestic Air Interdiction Coordination Center located in Riverside, Calif., at March Air Force Base. From there, defense-trained specialists in contact with all major military radar systems around the country provide constant surveillance of U.S. borders, primarily to catch drug smugglers. Mr. Houlihan, who first served with the Air Force at the North American Air Defense Command (NORAD) near Colorado Springs, regularly supervises radar scopes covering the Florida waters down to the Caribbean. On February 24, three separate radar systems were trained on the Brothers' flight.

"Based on my Air Force experience at NORAD," he told the Miami courtroom where Mr. Basulto's hearing took place, "I identified the aircraft from Cuba as MiGs on patrol." He said he judged them to be using combat-type maneuvers because of their speed, altitude, and flight pattern. And he was sure they were jet fighters, he said, because of where they came from, the speed they were traveling, and the fact that they did not issue transponder signals.

He immediately made a print-out from his radar scope of the unfolding confrontation, "because in two years working at the facility I had never seen them out of the Cuban ADIZ [Air Defense Identification Zone, or airspace] or out flying at all. We understood that they rarely flew because they had a hard time getting fuel. I was concerned about a MiG heading toward U.S. airspace."

Mr. Houlihan then made what he termed "the equivalent of a 911 call" to the Air Force South East Air Defense Sector headquarters at Tyndall Air Force Base in Panama City, Fla. The sector defends U.S. airspace in that area and works from the same radar image he does.

"I asked them, 'Do you see Brothers to the Rescue?' and they said they did.

"I asked, "Do you know what's going on with them and high--speed primary targets?'" he said, referring to the MiGs.

"They said they did and they would take care of it."

Mr. Houlihan hung up, expecting to see U.S. military planes put in the air from South Florida.

Mr. Houlihan called at 3:17 p.m. eastern time. Four minutes later, one of the MiGs launched a missile that shot down the first Brothers aircraft. Seven minutes later the MiG shot down the second plane.

"I made what turned out to be a poor assumption," Mr. Houlihan told the Miami Herald after his testimony. "I expected them to launch interceptor aircraft to go after the MiGs. They didn't make any move."

Defense Department spokesman Kenneth Bacon told reporters in February that F-15s based south of Miami at Homestead Air Force Base were put on alert as the MiGs went after Brothers to the Rescue. They waited on the runway, engines running and pilots at the ready, but were taken off alert when the MiGs turned south. According to Mr. Bacon the U.S. planes would have been sent only if the MiGs had crossed the 24th parallel-the beginning of airspace the U.S. defends-and continued north.

Mr. Basulto, having lost radio and visual contact with his colleagues, circled north after radioing an emergency. According to the United Nations report, a third MiG pursued Mr. Basulto's Cessna close to the 24th parallel after the two other planes were shot down, challenging U.S. airspace. It also said "U.S. military intelligence" first notified the FAA of the downings 11 minutes before Mr. Basulto radioed the emergency to Key West.

Officers at Tyndall Air Force Base are now reluctant to discuss the decision not to send fighter aircraft after the MiGs. "I don't want to get into that exactly. It's classified," Col. Sam Baptist told WORLD during Mr. Basulto's trial.

By the time Mr. Basulto and his Cessna landed safely at Opa-Locka airport near Miami, the U.S. Customs Service and the Air Force had already begun preparing briefing books for the CIA and Oval Office. Included in the books were radar print-outs showing that Mr. Basulto's Cessna was the only one of the three Brothers' planes that actually crossed into Cuban airspace-by one to three miles, given the radar scope's margin of error-before turning north.

But there's more at stake here than why U.S. fighters did not respond during those crucial minutes. According to trial testimony, the FAA had an interest in the February 24th Brothers' flight even before the incident. The agency asked Tyndall Air Force Base in advance to send up a special B-94 radar balloon to monitor the Brothers' flight. And Mr. Houlihan of the U.S. Customs testified that he was instructed by the FAA a week before the flight to track the Brothers' flight, to make computerized prints of it from the radar scopes, and to forward them to the FAA in Washington as soon as it was completed.

"We were told they would fly on Feb. 24, 1996, to make a political statement against the Communist government of Cuba," Mr. Houlihan said. Mr. Houlihan could not recall who gave him the order, but he agreed with Basulto attorney Stuart Goldstein that it was an unusual request. Never before had he been asked to "make a log" on a Brothers' flight, he said, and he was not told why Washington thought this one worth the record books.

Even though there was intense intelligence gathering focused on the flight-and the Air Force even had access to audio recordings of the MiG pilots' conversation-the Defense Department's Mr. Bacon said, the Air Force "did not know what was going to happen" before the two civilian planes were shot down.

But there was what may have been a crucial oversight: Although Mr. Houlihan acknowledged that he had the Brothers' hangar phone number stored in his computer and he had used it in the past, neither he nor any other Air Force or Customs personnel made an attempt to contact the Brothers pilots directly by radio or with a call to their hangar to warn them of the impending attack.

The incident prompted a foreign-policy turnaround at the Clinton White House. Just when the president was ready to lift much of the 37-year-old embargo against Cuba, Republicans in Congress used the shootdown to force the president to embrace tougher sanctions. He prohibited air travel between the two countries and signed the Helms-Burton Act, which punishes firms that do business with Fidel Castro and allows American concerns with confiscated property in Cuba to sue those using it now. Recently he agreed to a timetable for implementing the legislation, in spite of objections from most U.S. allies overseas and the U.S. diplomatic corps.

The focus on sanctions has diverted attention away from questions about the incident:

Did the FAA and others monitor the Brothers' flight in anticipation of a confrontation or to build a case against them?

Do intelligence-gatherers and military commands consider the presence of enemy aircraft a danger only if it threatens military targets and not civilian ones?

Did cutbacks in military spending become a factor (both March and Homestead Air Force Bases have been shrunk under the base-closing plan) in the non-response?

In the middle of these queries is Jose Basulto, a stocky Cuban-American with salt-and-pepper hair, tailored suits, a quick flash of fine teeth, and a melodic Latin accent.

Appearances, if his story proves anything, are deceiving. Mr. Basulto, who learned to fly planes in Cuba and is considered an ace, was exiled to the United States when Fidel Castro seized power but returned briefly (and secretively) in 1961 in the employ of the CIA as part of the ill-fated Bay of Pigs invasion. He determined to make his own way back to Florida when he realized the CIA operation was falling apart.

In 1991, Mr. Basulto organized a group of volunteer Cuban-American pilots into Brothers to the Rescue, one of four such groups operating out of Miami-area airports. The pilots' search-and-rescue missions have often located rafters escaping from Cuba in the 90-mile expanse of the Florida Straits and air-dropped supplies to them, allowing the escapees to survive until they could be plucked from the shark-ridden waters by the Coast Guard. In one year, the Brothers pilots flew more than 1,000 search-and-rescue flights.

That mission changed a year ago when Mr. Clinton agreed with Mr. Castro to return rafters to Cuba. The crossings dwindled. Mr. Basulto turned to other ways of aiding exiles and dissidents. He and his pilots began supplying a Cuban refugee camp in the Bahamas. They escorted seagoing anti-Castro demonstrations into the Florida Straits. They air-dropped pro-democracy leaflets over Cuba.

Mr. Basulto insists the Feb. 24 flight was a typical search-and-rescue mission (and the U.N.'s ICAO report agreed that the three planes' flight paths appeared to be). The group filed flight plans with both the FAA and aviation authorities in Havana. Mr. Basulto radioed the Havana control tower when his group crossed the 24th parallel going south and again when it began its search mission. Mr. Houlihan testified he had regular contact with Mr. Basulto and his pilots, whom he described as "very cooperative" in filing flight plans, largely because their planes can be confused with smugglers, who also fly small aircraft at low altitude and low speed.

Mr. Basulto's good deeds did not win him favor in Washington. On May 16, the FAA revoked his pilot's license. Another Brothers flight was planned for that day, and the FAA employed an emergency revocation procedure to confiscate his license immediately. When he filed to get it back, the agency took him to court.

Even as Secretary of Transportation Frederico Peña led a delegation in June calling on the United Nations to endorse the ICAO report and to condemn Cuba, attorneys working for Mr. Peña and the FAA were telling the Miami courtroom the same week that Mr. Basulto violated Cuba's airspace in the incident and should lose his license to fly-permanently.

After eight days of testimony (most license hearings take 1-3 days), Administrative Law Judge William Pope decided to suspend Mr. Basulto's license until October. He said Mr. Basulto penetrated Cuban airspace but based his decision to suspend the license rather than revoke it on motive, calling the Feb. 24 incursion "less serious because it was not intentional."

The FAA promptly appealed the decision and is continuing to seek the permanent revocation of Mr. Basulto's license.

When Undersecretary of State for political affairs Peter Tarnoff was asked at a White House briefing whether the FAA action was out of step with the government's current get-tough policy toward Cuba, he said, "I think we have to let it run its course."

Republicans are also reluctant to look into Mr. Basulto's case, preferring to work alongside the Clinton administration while it is going their way on Cuba. Even Sen. Jesse Helms and Rep. Dan Burton, long advocates of the kind of sanctions they finally won only by riding the flaming coattails of Brothers to the Rescue, want to keep the focus on sanctions. "Right now we just want to work toward getting all aspects of the [Helms-Burton] legislation implemented," Gil Kapen, an aide to Rep. Burton on the International Operations Committee, told WORLD. Sen. Helms has not commented on the Basulto case and his staff would not return phone calls about Jose Basulto.

Ms. Powell-Cosio said her client feels the judge's decision to suspend rather than revoke his license was fair. But they will continue to fight the FAA to make what Mr. Basulto has called a "moral point." Nagging concerns remain, she said, that government officials tracking his flight were more concerned about relations with Fidel Castro and a possible incursion into Cuban airspace than the welfare of the four Americans killed.

What transpired in the Miami courtroom indicates that there is more to watch in U.S.-Cuban relations than the unfolding Helms-Burton sanctions. Despite having entered one of the most antagonistic moments in that relationship, Washington and Havana have found one thing in common: Both want to see Jose Basulto grounded.