By Angus MacSwan
MIAMI, Nov 12 (Reuters) - The Cuban government and its air force will stand trial in Miami on Thursday accused of the extra-judicial killings of three U.S. citizens shot down last year by Cuban jet fighters as they flew over the Florida Straits searching for refugees.
But no Cuban officials or lawyers will be present at the trial, to be presided over by Judge Lawrence King at a U.S. District Court in Miami.
President Fidel Castro's government refuses to recognize U.S. authority to judge the lawsuit brought by the victims' families, the first case to be tried under new U.S. anti-terrorism laws.
"They elected not to defend the case. I don't think they have a defense. These planes were on a humanitarian mission and in international waters,'' Aaron Podhurst, lead attorney for the plaintiffs, said.
Cuban Americans Armando Alejandre, Carlos Alberto Costa, Mario de la Pena and Cuban exile Pablo Morales were flying in two small planes over the Florida Straits near Cuba on Feb. 24 last year on a mission for Brothers to the Rescue, an exile group which patrols the seas searching for refugees trying to flee the Communist-ruled island in boats or rafts.
They were blown out of the sky by two Cuban MiG jets, an act that drew international condemnation and slammed shut the door on a tentative rapprochement between Washington and its erstwhile foes in Havana.
The downing also shocked and enraged the large Cuban American population in the victims' hometown Miami, where they are now regarded as martyrs in the anti-Castro cause.
Cuba maintains the planes were inside its 12-mile (19 km) territorial limit and that Brothers to the Rescue -- whose planes had previously buzzed Havana dropping anti-Communist propaganda -- posed a threat to it.
The lawsuit says the Cuban government and Air Force engaged in a "willful and deliberate act of extrajudicial killing,'' attacking the planes in international waters while they were on a humanitarian mission.
Podhurst said that despite the absence of Cuban representatives, the plaintiffs must still show the judge that this was a case of state-sponsored terrorism that occurred outside of Cuban territory.
They are seeking undisclosed compensatory and punitive damages. If they win, these could be paid from Cuban assets that are frozen in the United States or held against future Cuban assets should the U.S. embargo against the island be lifted, plaintiffs' lawyer Victor Diaz said.
The suit has been brought under the 1996 Anti-Terrorism and Effective Death Penalty Act, which allows U.S. citizens to file suits against foreign governments deemed by Washington to sponsor terrorism.
The law has been invoked in the case of the bombing of a Pan-Am airline over Scotland in 1988 but this is the first time such a case will have reached court.
"It is a very big case with very big legal issues. We are setting a lot of legal precedents, Diaz said.
Asked about the act's validity in the eyes of the rest of the world, Diaz said the lawsuit's premise was that international laws and treaties were violated.
"I don't see how you can allow your citizens to be murdered without the United States giving a remedy for that,'' Podhurst said. "Every country has a right to defend its nationals.''
Cuba was notified of the case through diplomatic and legal channels but rejected it through a Foreign Ministry note.
19:20 11-12-97