WE visited Gerardo Hernández for the fifth time and, as usual, his spirits seemed higher than ours despite the fact that he resides in a maximum-security federal prison.

Gerardo and three other Cuban intelligence agents approach their 14th year of incarceration – each in different federal penitentiaries. Rene González, the fifth member of the Cuban Five, got paroled after serving 13 years, but not allowed to leave south Florida without permission for another 2½ years.

The uniform, given to Gerardo earlier in the day, looks three sizes too large. But the ill-fitting tan jumpsuit doesn’t affect Gerardo’s smile or the warm embrace of his hug when he greets us.

He had watched some of the recent CNN "Situation Room" shows in which Wolf Blitzer interviewed a variety of actors – Secretary of State Hilary Clinton, Victoria Nuland (Press agent at State), Alan Gross (convicted of anti-regime activities in Cuba) and Josefina Vidal (U.S. desk chief in Cuban Foreign Ministry). They presented views on the justice or injustice surrounding the cases of Gross and the Five.

Cuba sent the Five to south Florida in the 1990s to stop terrorism in Cuba because that’s where the planning for bombings of hotels, bars and clubs took place, he explained. In 2009, "Gross came to Cuba as part of a U.S. plan to push for ‘regime change,’" Gerardo asserted.

Gross sounded desperate when he talked to Wolf Blitzer on CNN’s Situation Room. He described his confinement in a military hospital: "It’s just like a prison, with bars on the windows." Did he forget he received a 15-year sentence?

For Gerardo, bars, barbed wire, electronically operated, heavy metal doors, and guards watching and periodically screaming commands describe routine daily life in the Victorville Federal Prison.

Gerardo eats a pink slime sandwich, which we bought at the visiting room’s vending machines and popped into the microwave. We munch on junk food – all bought from the same sadistic apparatus offering various choices of poisons.

Other prisoners, mostly sentenced for drug dealing, sit with wives or women companions and kids under the watchful eyes of three guards seated above on a platform. The uniformed men chuckle and exchange prison gossip; we talk about Gerardo’s case.

The Miami federal judge condemned him to two consecutive life sentences plus 15 years for conspiracy to commit murder and conspiracy to commit espionage. Gerardo became a victim of the strange notion of U.S. justice in Miami where the U.S. prosecutor presented not a shred of evidence to suggest Gerardo Hernandez knew about Havana’s plan to shoot down two planes flying over Cuban air space ("murder"); nor that he had any control over, or role in what happened on February 24, 1996, when two Cuban MIG fighters rocketed two Brothers to the Rescue planes and killed both pilots and co-pilots – just as Cuba had warned the U.S. government it would do if the illegal over-flights continued.

Indeed the evidence paints a very different picture of what Gerardo Hernández really knew. Cuban State Security would hardly inform a mid level agent of a decision made by Cuban leaders to shoot down intruding aircraft after he had delivered a series of warnings to Washington.

In fact, as a new Stephen Kimber book shows, "the back-and-forth memos between Havana and its field officers in the lead-up to the MIG jets firing rockets at the Brothers’ planes make it clear everything was on a need-to-know basis – and Gerardo Hernández didn’t need to know what the Cuban military was considering." (Shootdown: The Real Story of Brothers to the Rescue and the Cuban Five. Available as an ebook)

Gerardo, like the Cuban government, insists the Brothers’ planes got shot down over Cuban airspace, not in international waters as Washington claims. But the National Security Agency, which had satellite images of the fatal event, has refused to release them.

The Brothers’ planes had over flown Cuban airspace for more than half a year (1995-1996) before they got blown out of the sky. Cuba had alerted the White House several times, and a National Security Counsel official had written the Federal Aviation Authority to strip the Brothers’ pilot licenses – to no avail.

The Cuban intelligence agents that had infiltrated Brothers to the Rescue had informed Havana that Jose Basulto, the Brothers’ chief, had successfully test fired air-to-ground weapons he might use against Cuba. For Cuba, the Brothers had become a security threat.

The NSA documents, however, never arrived at the trial, nor did Gerardo’s lawyers get them for the appeals.

Gerardo’s case for exoneration for conspiracy to murder rests on establishing one simple fact: if the shoot downs occurred over Cuban airspace no crime was committed.

On conspiracy to commit espionage, the government relied on Gerardo’s admission that he was a Cuban intelligence agent rather than seek evidence to show he tried to get secret government documents or any classified material. Gerardo’s job was to prevent terrorist strikes against Cuba by exiled Cubans in Miami, not penetration of secret U.S. government agencies.