Is the Castro Indictment a Prelude to a Maduro-Style Op?

T he Justice Department has announced that former Cuban dictator Raúl Castro and other officials of that Caribbean island nation’s communist regime have been indicted for murder in the 1996 shoot-down of two civilian aircraft, killing four American nationals, three of whom were U.S. citizens.

The timing is significant. President Trump has for weeks directed the blockading of oil shipments into energy-starved Cuba. The Castro charges were announced just as the president dispatched the USS Nimitz aircraft carrier, along with its companion warships, into the Caribbean, within range of Cuba. The military saber-rattling — with no request for congressional authorization, as is the president’s wont — also comes in the wake of Trump CIA Director John Ratcliffe’s unusual visit to Cuba last week, in which he demanded that the communist regime make fundamental changes.

Seen in light of those developments, the Castro indictment may well be a prelude to another military operation, reminiscent of the Trump administration’s extraction of Venezuelan dictator Nicolás Maduro earlier this year (which itself was modeled on President George H. W. Bush’s extraction of Panamanian dictator Manuel Noriega in a 1989 military invasion).

Castro, who is 94 and appears to be in fragile health, helped his brother, Fidel Castro, forge the communist regime in 1959. It thereafter became a Soviet satellite, where Moscow’s staging of missiles just 90 miles from Florida threatened to raise the Cold War into a nuclear conflict in October 1962.

Fidel Castro died in 2016. Raúl Castro stepped down as First Secretary of the Communist Party of Cuba in 2021, having relinquished (at least nominally) the “presidency” of the totalitarian island state in 2018. Withal, he is still seen as the power behind the throne — i.e., behind President Miguel Díaz-Canel, a Castro political lackey.

The indictment was returned by a grand jury in the Southern District of Florida. It supersedes charges previously filed in the case. The document refers to Castro by his full name, Raúl Modesto Castro Ruz; his co-defendants are military pilots who allegedly carried out the 1996 attack on Castro’s orders while operating MiG fighter jets.

The targets of the attack were planes operated by Brothers to the Rescue (BTTR, whose Spanish name was Hermanos al Rescate), a Miami-based organization that sought to promote democratic revolution against the Cuban regime and to aid Cubans seeking to flee. The indictment alleges that, at the time of the attack on February 24, 1996, the BTTR aircraft were flying just outside of Cuban territory over international waters, heading away from the island. Raúl Castro is accused of giving the order to use lethal force. Carlos Costa, Armando Alejandre Jr., Mario de la Peña, and Pablo Morales were killed.

Castro and his co-defendants are charged with conspiracy to kill U.S. nationals, four counts of murder in the special aircraft jurisdiction of the United States, and two counts of destruction of aircraft. Castro and four of the alleged pilots are believed to be in Cuba — which, at least under current regime defiance, would be highly unlikely to extradite them to the United States.

A fifth pilot, 65-year-old Luis Raul Gonzalez-Pardo, is in U.S. custody. He was living in Florida last year when the Trump Justice Department charged him with immigration fraud. Gonzalez-Pardo is scheduled to be sentenced on those charges next month — by which point he will surely have been arraigned on the murder indictment.

On those charges, he and the other defendants, if they are apprehended and convicted, would potentially face the death penalty or life imprisonment.

Any prosecution of Raúl Castro would face hurdles. Like Maduro, Castro would surely try to assert foreign sovereign immunity. The Cuban regime regarded the shooting down of the BTTR aircraft — after Fidel Castro reportedly demanded that President Bill Clinton take action to halt unwelcome flights in or near Cuban airspace — as a legitimate military operation. As I’ve previously explained, however, foreign sovereign immunity is a statutory defense unlikely to succeed in a criminal prosecution (as compared with U.S. presidential immunity, a constitutional defense that President Trump asserted, with significant success, in Biden DOJ special counsel Jack Smith’s attempt to prosecute him in connection with the 2021 Capitol riot).

Perhaps more fraught, at least politically if not legally, are the obvious comparisons between the Castro regime’s shooting down of the BTTR flights and the Trump administration’s use of lethal force, unauthorized by Congress, to kill suspected drug traffickers on the high seas — who may have been committing narcotics offenses prosecutable in U.S. court (even that has not been established) but were not engaged in military attacks or acts of war against the United States. The strikes have continued since I last wrote about them nearly two weeks ago — the latest estimate is close to 60 strikes, with at least 193 people killed.

The salient point here is not that Americans generally see the BTTR operatives as heroic freedom fighters and the suspected drug boat as criminal “narco-terrorists.” The point is that the targets of military action in both cases have been noncombatants, engaged in activity the governments that took military action regarded as hostile.

The Trump Justice Department is taking the position that a head of state and his subordinates can be prosecuted for murder arising out of military operations they directed and executed against American nationals — operations conducted in international territory, under the rationale that national security concerns justified the use of lethal force even if the targets were noncombatants.

If the Trump DOJ’s theory is correct, it is difficult to see what would prevent countries whose nationals have been killed in the Trump administration’s military campaign in the Caribbean from filing similar charges against an American president and his subordinates, who similarly claim the right to use military force against noncombatants.