BY CAROL ROSENBERG

 If the Bush administration chooses to pursue it, Friday's Cuban espionage convictions could provide a framework for the murder indictment of Fidel Castro in the 1996 Brothers to the Rescue shoot-down, legal experts said Saturday.

 U.S. Attorney Guy Lewis raised the specter of an eventual indictment by declaring that the convictions, particularly of spymaster Gerardo Hernández, proved "beyond any doubt there was a conspiracy to commit murder that had been approved of and ordered by the highest levels of the Cuban government.''

 Lewis, who is acting head of the prosecutor's office until President Bush appoints a permanent chief, refused to answer a direct question on whether he would ask a grand jury to indict the Cuban leader.

 Instead, he told The Herald, ``We'll continue to pursue aggressively the investigation and let the chips fall where they may.''

 Ever since Soviet-made Cuban air force MiGs rocketed two Brothers to the Rescue planes over the Straits of Florida on Feb. 24, 1996, relatives of the dead fliers have demanded that Castro be indicted for murder. Killed were Armando Alejandre Jr., 45, Carlos Costa, 29, Mario de la Peña, 24, and Pablo Morales, 29, the only victim who was not a U.S. citizen.

 Brothers founder José Basulto, the Cuban American National Foundation and politicians, notably Republican Florida Rep. Lincoln Díaz-Balart, have championed indicting Castro during both the Clinton and current Bush administrations.

 Saturday, former U.S. Attorney Kendall Coffey, a Democrat who served under President Clinton and Attorney General Janet Reno from 1993 to 1996, said Friday's sweeping convictions ``make it less unthinkable'' that a South Florida grand jury may someday return a Castro indictment.

 He elaborated: "The government was able to prove that the shoot-down was murder. Citizens in our community were murdered and that's a finding. That cannot be
 ignored. The duty of the U.S. government is to continue to proceed to establish the culpability of others.''

 LOOKING BACK

 Advocates argue that a model may be found in the February 1988 drug-running indictment of Panama's Gen. Manuel Antonio Noriega. Then-President George Bush eventually sent U.S. troops to Panama City in December 1989, where they apprehended Noriega after a standoff around the Vatican Embassy where he was hiding.

 But former prosecutors knowledgeable about the workings of the Justice Department said significant procedural impediments have been placed in the path of such an indictment today, because the Noriega indictment took Washington by surprise. In 1988, it was orchestrated entirely in Miami by the office of then-U.S. Attorney Dexter Lehtinen, without prior consultation with the Reagan administration.

 Since then, Justice Department guidelines have required U.S. attorneys to notify headquarters about any strategies that might lead to an indictment of a world leader -- a process that would allow Attorney General John Ashcroft to veto or raise objections to charging Castro.

 An attorney general would likely consult the State Department and National Security Advisor Condoleezza Rice, and might ultimately let President Bush rule on an
 indictment, an option the White House did not have in the Noriega case.

 "Ultimately it comes down to the president,'' said former U.S. Attorney Bob Martínez, a Republican who succeeded Lehtinen and served in 1992 and 1993. ``The president doesn't have to become personally involved in the case,'' but he said several departments would need to discuss in advance any Castro indictment, including Secretary of State Colin Powell or his proxies, who might object.

 Indicting a head of state is "a complicated situation that would put the State Department on the spot,'' Coffey said.

 One issue is that, dictator or not, Castro has been recognized by international organizations as the head of state of Cuba, a recognition that the United States also
 conferred by allowing him to travel to New York to address the United Nations and nearby church groups. Noriega, at the time of his indictment, was armed forces chief and "strongman,'' who Panamanian President Eric Arturo Delvalle tried to fire after his indictment.

 "In my experience, the Department of State has been a constant source of impediment on the enforcement of our federal criminal laws against foreign heads of
 government,'' said Martínez, who applauded Lewis' office for the successful spy case prosecution.

 Martínez said he supports the idea of indicting Castro -- and believed even before this week that there was sufficient evidence to bring the case to a grand jury. But he added on Saturday that there is a necessary and recognized internal tension in Washington over such indictments because ``a national government needs to be in control of foreign relations.''

 Recognizing there might be a tug of war inside the Beltway over an indictment, Joe Garcia, executive director of the Cuban American National Foundation, urged President Bush and his brother, Florida Gov. Jeb Bush, to each order indictments.

 "The government should impanel a grand jury and see if an indictment is forthcoming,'' said Garcia, who is a lawyer. Separately, he said the governor, who recently
 announced he would seek reelection, should ``take the necessary steps under state law to indict the parties responsible, including Fidel Castro.''

 Saturday, Díaz-Balart, also a lawyer, said: ``Everyone with any common sense knows that Castro ordered the Brothers to the Rescue murders.''

 He called Friday's successful spy convictions ``a fundamental building block toward putting on the case against Castro.''

 WOULD AGENTS 'FLIP'?

 Yet even advocates of indictment say one would be unlikely before the September and October sentencing of the Cuban intelligence agents who were convicted Friday.

 Then, said former prosecutors who discussed the case on condition they not be identified by name, federal prosecutors would see if any of the three agents who are
 facing life prison sentences might "flip'' -- meaning turn on their bosses and testify convincingly before a secret grand jury on what they knew and how far in advance they knew of the killings.

 Prosecutors are probably pinning their hopes on Gerardo Hernández, the former prosecutors said. The Cuban intelligence captain who posed as cartoonist Manuel
 Viramontes in Miami, might be able to implicate those higher up in the chain of command.

 Hernández was convicted of conspiracy to murder for knowing in advance about the shoot-down, and had clandestinely traveled between South Florida and Havana in the months before the MiG attacks. He also was accused of warning away from the doomed flights two other Cuban agents -- Juan Pablo Roque, who defected back to Havana a day before the shoot-down, and René González, who was convicted of being an agent on Friday.

 Coffey would not discuss tactics toward securing a grand jury indictment of Castro but said a key would be establishing ``sufficient evidence with a degree of possibility to convict'' the Cuban leader.

 "You can't put on a witness called 'Everybody knows,' '' he said.

                                   © 2001