May 2014 – dwkcommentaries

William Carlos Brown’s New York Central Railroad Career

After his successful 19th century career with railroads in the Midwest, in 1902 my great-great-uncle, William Carlos (or W.C.) Brown, became the Vice President in charge of the transportation, engineering, mechanical and purchasing departments of the New York Central Railroad, which as described in a prior post was one of the most powerful corporations in the country.

Brown’s joining the Central in 1902 prompted a letter writer to the New York Times to state that W.C. “has made a careful study of [railroad] safety appliances, and he is in large part responsible for the adoption of the operating rules now in force on [U.S. railroads]. He was a member of the first Committee on Safety Appliances and Train Rules of the American Railway Association.” In addition, according to this writer, Brown had a “strong and vigorous personality and he has a faculty of making friends with all of his employees.”

Brown was a Vice President until 1906, when he was promoted to the position of the Senior Vice President. He held this position until 1909 when he was appointed to be the Central’s President, Director and member of its Executive Committee. Effective December 31, 1913, he retired from the Central.

When Brown assumed the Central’s presidency in 1909, a trade journal said W.C. was “a studious man, clear-headed, with retentive memory” and “an accurate judge of men and subjects.”

The New York Times added that Brown was “one of the most popular railroad officials” in the U.S. and had “an extraordinary forcefulness and energy. He has a faculty of disposing of things in the shortest possible span of time, and an equally strong one for analyzing propositions down to the backbone. He talks quickly, energetically, and very clearly. Among his subordinates and associates he is immensely popular, and the joy over his promotion is heartfelt and unaffected.” He also was described as “courteous and modest . . . [a] moderate disciplinarian . . . kind-hearted and considerate . . . [and] not as uncompromising as many of his contemporaries [toward labor unions].”

Another journalist in 1909 said Brown “knows what the duty is of every one of his 150,000 men in the system.” The National Cyclopedia of American Biography in its 1910 edition stated that Brown was then “probably one of the best posted and most able and efficient railroad men in the [U.S.] He is firm and determined . . . . His career affords a splendid example of accomplishments due to untiring industry, perseverance, and fidelity to one’s duties.”

Brown himself was quoted in the New York Times at the time of his promotion to President of the Central. He said, “ In the United States, it is the workingman who, even though he starts at the bottom, ends in the important posts at the top of our railroads and our great industrial enterprises. The day of favoritism and family has departed. I believe that plain sticking to it is a good rule for every workingman who is earnest in his ambition. I believe, too, it may not be for his best welfare for any worker to set for himself . . . a definite goal.”

For another publication, Brown continued on this theme. He said the most important factor his advancement was, “Just sticking to it and making a business of my business, filling every job I got as well as I knew how. . . . [I]t is more or less a mistake to preach to young men that they should fix for themselves a specific goal, and strive toward it . . . . If a fellow sets out with that idea, he is apt to become an office politician, and he wastes more time figuring out how he is going to get the step over somebody else than he expends in attending to the business in hand. The thing he has to do is bend every energy . . . to doing today, as well as it can be done, what he has to do. The man who does that does not need to worry about promotion . . . . Promotion will look for him.”

Here are some of the significant events at the Railroad in which he was involved during his 12 years at the Central and which have been or will be covered in other posts:

the demolition of the old Grand Central Terminal and the construction of the new Terminal at 42^nd Street and Park Avenue in Manhattan;[1]
the related electrification of the trains coming into and going out of that Terminal;
the Woodlawn Crash, February 16, 1907, when a Central train with a new electric engine flew off the tracks, instantly killing 20 people and injuring more than 150, some seriously;
the financial panic of 1907;
the national political issue of whether and how the federal government should regulate railroads, especially their freight rates; and
other public issues, including promotion of agriculture.

In these and other issues over those 12 years, Brown, of course, was not a sole actor. Just look at the members of the Railroad’s Board of Directors, 1909-1913, whom we reviewed in an earlier post and with whom Brown worked.

During this time at the Central, Brown and his family lived in Manhattan at 135 Central Park West overlooking Central Park. But every summer he and his family returned to Iowa to visit his parents and friends and his farms. These visits along with other ways he honored his parents will be discussed in a subsequent post.

————————————-

[1] A prior post discussed the Terminal on its centennial in 2013 with other details provided in another post.

Another Perspective on the Dysfunctionality of the U.S. Government

The dysfunctionality of the U.S. government has been common theme of this blog.

Another reason for this unfortunate phenomenon is posited by Philip Howard in an op-ed article in the Washington Post and presumably in his book, The Rule of Nobody: Saving America from Dead Laws and Broken Government.

Howard believes the “main culprit” for dysfunctionality is law. “Generations of lawmakers and regulators have written so much law, in such detail, that officials are barred from acting sensibly. Like sediment in the harbor, law has piled up until it is almost impossible — indeed, illegal — for officials to make choices needed for government to get where it needs to go.”

Examples are cited. The President “lacks the power to approve the rebuilding of decrepit bridges and roads.” Legally required reviews for highway projects now take up to eight years. New statutes these days are complex and lengthy.

“Human responsibility,” Howard argues, “should be restored as the operating philosophy for democracy. Only real people, not bureaucratic rules, can make adjustments to balance a budget, or be fair, or change priorities. Democracy cannot function unless identifiable people can make public choices and be accountable for the results.”

“Our government is failing not because of bad policies but because of flawed institutional design. No one is allowed to take responsibility.”

Howard is a frequent commentator on national issues and the author of several books. In 2002, he formed Common Good, a nonpartisan national coalition dedicated to restoring common sense to America. Howard is a Partner in the New York City office of the law firm of Covington & Burling, LLP, where he represents corporations and executives in a wide range of issues, including governance, regulatory disputes, securities litigation, and business transactions. He is a graduate of Yale College and the University of Virginia Law School.

Former U.S. Diplomats and Government Officials Urge President Obama To Expand U.S. Involvement with Cuba

A group of nearly 50 prominent U.S. citizens has issued an open letter to President Obama urging him to take executive action to expand U.S. involvement with Cuba. Here are the specific recommendations from this group:

Expand and safeguard travel to Cuba for all Americans
1. Expand general licensed travel to include exchanges by professional organizations, including those specializing in law, real estate and land titling, financial services and credit, hospitality, and any area defined as supporting independent economic activity.
2. Expand travel by general license for NGOs and academic institutions and allow them to open Cuban bank accounts with funds to support their educational programs in Cuba.
3. Authorize U.S. travelers to Cuba to have access to U.S.-issued pre-paid cards and other financial services-including travelers’ insurance-to expand possibilities for commerce with independent entrepreneurs and safeguard people-to-people travel.
Increase support for Cuban civil society
1. Allow unlimited remittances to non-family members for the purpose of supporting independent activity in Cuba and expand the types of goods that travelers may legally take to the Island to support micro-entrepreneurs.
2. Establish new licenses for the provision of professional services to independent Cuban entrepreneurs.
3. Authorize the import and export of certain goods and services between the U.S. private sector and independent Cuban entrepreneurs.
4. Allow U.S. NGOs and other organizations to lend directly to small farmers, cooperatives, self-employed individuals, and micro-enterprises in Cuba.
5. Permit family remittances to be used as credits or equities in Cuban micro-enterprises and small farms.
6. Allow U.S. academic institutions to issue scholarships for exceptional Cuban students.
7. Allow for Cuban entrepreneurs to participate in internships in U.S. corporations and NGOs.
8. Promote agricultural exchange studies between U.S. based NGOs and private cooperative farms in Cuba.
9. Authorize the sale of telecommunications hardware in Cuba, including cell towers, satellite dishes, and handsets.
10. Authorize general travel licenses for the research, marketing and sale of telecommunications equipment.
11. Authorize telecommunications hardware transactions to be conducted through general license in the same manner as existing transactions for agricultural products.
Prioritize principled engagement in areas of mutual interest
1. The Obama Administration should engage in serious discussions with Cuban counterparts on mutual security and humanitarian concerns, such as national security, migration, drug interdiction, and the environment, among others. The United States should leverage these talks to press Cuban officials on matters such as the release of Alan Gross and on-going human rights concerns.
The Obama Administration should take steps to assure financial institutions that they are authorized to process all financial transactions necessary and incident to all licensed activities.

Such measures, the group says, would “provide openings and opportunities to support the Cuban people in their day-to-day economic activities, and in their desire to connect openly with each other and the outside world and to support the broad spectrum of [Cuban] civil society, independent, non-state organizations created to further individual economic and social needs irrespective of political orientation.” In addition, the measures would “deepen the contacts between the U.S. and Cuban society. . . [and] help Cubans increase their self-reliance and independence.” Finally, the measures would help counter the U.S.’ increasing international isolation regarding Cuba.

This is a helpful suggestion from such a group of eminent citizens even though they do not go far enough. They say nothing about ending the U.S. embargo of Cuba or the U.S. absurd designation of Cuba as a “State Sponsor of Terrorism” or about launching a much needed respectful bilateral negotiation with the Cuban government on a raft of issues that have accumulated over the last 50 years. Perhaps they did delve into these issues because of their asserted belief that in “the current [U.S.] political climate little can be done legislatively.”

The group includes 12 former U.S. diplomats,[1] two former U.S. military officials[2] and nine former U.S. Senators, Representatives and federal officials.[3]

=================================================

[1] The former diplomats are Harriet Babbitt, former U.S. Ambassador to the Organization of American States; Paul Cejas, former U.S. Ambassador; Jeffrey Davidow, former U.S. Assistant Secretary of State for the Western Hemisphere; Vicki Huddleston, former U.S. Ambassador, Chief of the U.S. Interests Section in Cuba and Director of Cuban Affairs at Department of State; John Negroponte, former U.S. Deputy Secretary of State and U.S. Director of National Intelligence; Michael Parmly, former Chief of U.S. Interests Section in Cuba; Thomas Pickering, former U.S. Ambassador and U.S. Under Secretary of State for Political Affairs; Charles Shapiro, former U.S. Ambassador to Venezuela; Anne-Marie Slaughter, former Director of Policy Planning for the U.S. Department of State; Strobe Talbott, former U.S. Deputy Secretary of State; Arturo Valenzuela, former U.S. Assistant Secretary of State for Western Hemisphere Affairs; and Alexander Watson, former U.S. Assistant Secretary of State for Western Hemisphere Affairs.

[2] The former military officials are John Adams, former Brigadier General, U.S. Army, U.S. Military Representative to NATO and Assistant Deputy Chief of Staff for Intelligence, U.S. Army; and Admiral James Stavridis, former Commander of U.S. Southern Command Supreme Allied Commander NATO.

[3] The former Senators, Representatives and federal officials are Bruce Babbitt, former U.S. Secretary of the Interior and Governor of Arizona; Carol Browner, former U.S. EPA Administrator and Director of White House Office of Climate Change and Energy Policy; Byron Dorgan, former U.S. Senator; Richard Feinberg, former Latin American Advisor to the White House; Dan Glickman, former U.S. Secretary of Agriculture and Congressman; Lee Hamilton, former U.S. Representative and Chairman of the House Committee on Foreign Affairs and the Permanent Select Committee on Intelligence; Jane Harman, former Congresswoman; Ken Salazar, former U.S. Secretary of the Interior, U.S. Senator and Colorado Attorney General, and Hilda L. Solis, former U.S. Secretary of Labor and U.S. Representative.

Progress on the Vatican’s Canonization of Archbishop Oscar Romero

This blog has made many posts about martyred Salvadoran Archbishop Oscar Romero. Therefore, this blogger is pleased with the news of progress on Romero’s canonization from Super Martyrio Blog that is devoted to obtaining that canonization. The following is a re-posting of the May 20, 2014, post by the Super Martyrio Blog. Thank you, Super Martyrio for this good news.

=====================================================

The current Archbishop of San Salvador, Msg. José Luis Escobar Alas, confirmed this Sunday that in his May 9 audience with Pope Francis, he and three Salvadoran Bishops accompanying him discussed the canonization process of Archbishop Oscar A. Romero with the Pontiff. Archbishop Alas described Pope Francis as happy and enthusiastic about the cause and he confirmed the fact, first reported by Super Martyrio, that the Salvadorans are inviting the Holy Father to El Salvador for the canonization. “What we are thinking, what we are asking the Lord,” Msgr. Alas said, “is the prompt canonization of Monseñor Romero, and that Pope Francis come and that it will be here” [in El Salvador].

The Archbishop reported that, based on the Pope’s reaction, “I would say that he accepted with pleasure, but we did not talk about timing, because the cause is still in course.”

However, the statement fell short of the huge expectations created when Auxiliary Bishop Gregorio Rosa Chávez intimated last Sunday that there would be a big announcement, bearing exciting news from Alas, leading many to infer that the church was about to announce Romero’s imminent beatification. The latest excitement would not constitute the first false report about an impending beatification from those close to the process. In September 2005, the postulator of the cause, Msgr. Vincenzo Paglia suggested to Vatican reporter John Allen that he was “within a month” of securing Romero’s beatification. Paglia has remained comparatively more tight-lipped this time, not making any statements since reporting last year that Pope Francis had released a hold over the process.

Alas reported that the Pope “demonstrated his happiness, his approval,” of Romero’s beatification, “but he did not provide a date, we understand, out of respect for the very process,” Alas said.Additional details about the Salvadoran delegation’s activities in Rome were revealed last week in the Salvadoran Church’s weekly newspaper, Orientación. In a letter to the editor from Alas in Rome, the newspaper revealed that the four Salvadoran bishops who traveled to Italy for the recent canonizations of Popes John XXIII and John Paul II had met with Paglia ahead of meeting with Pope Francis. “The whole meeting was on the issue of the beatification of Archbishop Romero,” Alas said in his letter. “Archbishop Paglia spoke to us about his knowledge about Archbishop Romero, about the process, and about his activities as postulator. He was very happy with us.”The ecclesial weekly also disclosed the novelty of the Salvadoran bishops’ letter expressing unanimous support for Romero’s beatification. Super Martyrio had previously reported that such a letter had already been sent to the Vatican. However, the previous letter was sent to the Congregation for the Causes of Saints and, the diocesan newspaper reported, the bishops conference had recently concluded that the previous step had been legally insufficient as a matter of canon law, and that it was necessary to direct a letter to the Pope himself. To further bolster the gesture, the bishops decided to deliver it in person.

During his Sunday press conference on May 18, Archbishop Alas also disclosed that the Pope had told the Salvadoran bishops during their meeting that he had been similarly invited to visit El Salvador by President-Elect Salvador Sánchez Cerén when the two met in April, also regarding Archbishop Romero’s canonization cause.

The New York Central Railroad at Start of the 20th Century

At the start of the 20^th century the New York Central Railroad was one of the most important and powerful railroads in the U.S., and because of the importance of railroading at the time, it was one of the country’s most powerful corporations. Its lines stretched from Boston in the east to Chicago and St. Louis in the west and from New York City in the south to the Canadian border in the north.

Starting in 1902, its flagship operation was the luxurious first-class Twentieth Century Limited, operating on a fast schedule between New York’s Grand Central Terminal and Chicago’s LaSalle Street Station. Here are an image of an early Twentieth Century Limited train and a map of the Central’s lines in 1914.

The Central’s Board of Directors

From its headquarters in New York City, the Central’s board of directors during the first decade of the century included men (all white and no women, sorry) who were wealthy and powerful in their own right and who are important in American history. Here are profiles of some of these figures.

William K. Vanderbilt, a grandson of Cornelius “Commodore Vanderbilt, [1] had been active in the day-to-day operations of the Central from 1863 until 1903. He was a yachtsman who won the America’s Cup in 1895, an owner of many race horses, an active supporter of the Metropolitan Opera and an owner of fine paintings which he eventually bequeathed to the Metropolitan Museum of Art. His mansion on Fifth Avenue was regarded as one of Manhattan’s most magnificent residences. When he died in 1920 his estate publicly was estimated at $100 million.

Frederick K. Vanderbilt was another grandson of the Commodore who also had been active in the Central.

Hamilton McKown Twombly was married to the Commodore’s granddaughter, Florence Adele Vanderbilt, and through wise investment of her inheritance and his own money became very wealthy.

Chauncey M. Depew was the Vanderbilts’ lawyer, a “glib raconteur, master of ceremonies and after-dinner speaker” who used his legal talents in “an essentially public relations role for the [Central] and other Vanderbilt properties.”

Depew also was a prominent Republican Party politician. He was one of the organizers of the Party in 1858; a delegate to every Party convention from 1860 to 1920; a member of the New York legislature, 1861-62; New York’s Secretary of State, 1864-65; a candidate for the Party’s presidential nomination in 1888; President Harrison’s choice for U.S. Secretary of State, which Depew declined; and a U.S. Senator from New York, 1899-1911 (while he was a Director of the Central). During the Civil War he was a confidant of President Lincoln, which lead to Depew’s being New York’s official escort for President Lincoln’s funeral train on its way to Illinois.

In 1866 Depew as the principal speaker at the dedication of the Statue of Liberty said,“We dedicate this statue to the friendship of nations and the peace of the world. The spirit of liberty embraces all races in common; it voices in all languages the same needs and aspirations. The full power of its expansive and progressive influence cannot be reached until wars cease, armies are disbanded, and international disputes are settled by lawful tribunals and the principles of justice. Then the people of every nation, secure from invasion and free from the burden and menace of great armaments, can calmly and dispassionately promote their own happiness and prosperity.” This sounds like the post-World War II Universal Declaration of Human Rights.

John Pierpont (“J.P.”) Morgan, of course, was the famous Wall Street financier of the robber barons in the late 19^th century. He reorganized major industrial companies and railroads and was one of the most powerful figures in railroading. J.P. also helped to halt financial panics in 1893 and 1907.

George S. Bowdoin was a wealthy partner of J. P. Morgan.[2]

William Rockefeller with his older brother, John D. Rockefeller, established and was active in the Standard Oil Company. William also was part of the “Standard Oil Gang” that engaged in various financial promotions. William was a jovial man who liked good living with little taste for philanthropy.

George F. Baker was another Wall Street financier, an ally of the Rockefellers and a founder of the First National Bank of New York. During the Civil War he was consulted by members of the Lincoln Cabinet on financial matters. He endowed the Harvard Business School and made large contributions to the Metropolitan Museum of Art and the Red Cross.[3]

James Stillman was the President of the National City Bank of New York City (now known as Citibank), and his two daughters married sons of William Rockefeller. Stillman was considered to be one of the 100 wealthiest Americans of his time.

Edward H. Harriman was the President of the Union Pacific Railroad and an ally of William Rockefeller and James Stillman.[4]

Marvin Hughitt was the President of the Chicago & Northwestern Railroad.

Lewis Cass Ledyard, a Wall Street lawyer, co-founder of the law firm of Carter, Ledyard & Milburn and counsel for the New York Stock Exchange and noted corporations. Ledyard was the executor of the J.P. Morgan estate.

Darius O. Mills was a Gold Rush adventurer who turned to finance and banking. For a time he was the wealthiest person in California.

William H. Newman was the Central’s President at the start of the 20^th century until he was succeeded by W. C. Brown. Newman was from Virginia and started his railroad career at age 23 in 1869 as a station agent to become in 1898 the president of two Central subsidiaries–the Lake Shore & Michigan Southern and the Lake Erie & Western Railroads.

Conclusion

This was the world that in 1902 welcomed into its senior executive ranks William Carlos Brown, a man of modest background from the State of Iowa.

——————————————-

[1] “Commodore” Vanderbilt through a shipping fortune and stock manipulations gained control of the Central in the 1860’s. His grand ball in 1883 is often seen as the epitome of the gilded age. The Commodore gave $1 million to Tennessee’s Central University in exchange for its being renamed as Vanderbilt University. A contemporary descendant of the “Commodore” is CNN’s Anderson Cooper.

[2] One of George S. Bowdoin’s ancestors, James Bowdoin, was a Governor of Massachusetts, and the latter’s son, James Bowdoin III, was an early benefactor of Bowdoin College in Brunswick, Maine. The College was chartered in 1794 by Massachusetts Governor Samuel Adams when Maine was part of Massachusetts and was named for Governor Bowdoin.

[3] Baker’s son, George F. Baker, Jr., was another Wall Street financier whose trust established a college scholarship program, of which I was a beneficiary as a George F. Baker Scholar at Grinnell College.

[4] Edward Harriman’s son, W. Averell Harriman (1891 – 1986), was a special envoy to Europe for President Franklin D. Roosevelt, U.S. Secretary of Commerce under President Truman, Governor of New York and U.S. Ambassador to the Soviet Union and later to Great Britain. He was a candidate for the Democratic presidential nomination in 1952, and again in 1956, but lost to Adlai Stevenson both times.

William Carlos Brown: A 19th Century Railroading Success Story

My great-great-uncle, William Carlos (or W.C.) Brown, was a senior executive of the New York Central Railroad when Manhattan’s Grand Central Terminal was built in the early 20^th century at 42^nd Street and Park Avenue. He was one of its Vice Presidents, 1902-1906; Senior Vice President, 1906-1909; and President, 1909-1913.[1]

As we will see in this post, W.C. rose to these important positions with the New York Central from very modest beginnings. He was a 19^th century railroading success story.

On July 29, 1853, W.C. and his twin brother, George Lyon, were born in Norway, New York. His father was my maternal great-great-grandfather, Rev. Charles Edwin Brown, who was recuperating in his native upstate New York from “inflammatory rheumatism” he had caught while working as a Baptist missionary in the Iowa Territory (and State after 1846). W.C.’s mother (and my maternal great-great-grandmother) was Frances Lyon Brown.[2]

Four years later (July 1857) Rev. Brown returned to Iowa to continue his missionary work in the northeastern part of that State.[3] Going with him were his wife and their four sons: Charles Perry, 17 years old; James DeGrush (my maternal great-grandfather), 11 years old;[4] and the four-year old twins, William and George.

William in 1869, at the age of 16, after being educated at home and in schools in small towns, started working as a “section hand and wooder” in Illinois for the Chicago, Milwaukee & St. Louis Railroad [“the Milwaukee Road”]. During the day W.C. loaded, unloaded and piled wood that powered the seam-engines of the locomotives. At night he learned telegraphy skills from the station agent.

This was the start of Brown’s 33-year journey in the railroad industry to become a senior executive of the New York Central Railroad in New York City.

By the spring of 1870 he was a telegraph operator for the Milwaukee Road in Iowa, and the next year (1871) he was promoted to night-operator at the Road’s train dispatcher’s office in Minneapolis, Minnesota.

In 1872 W.C. left the Milwaukee Road to join the Illinois Central Railroad as train dispatcher in Iowa. Three years later, in 1875, he was hired in the same position at another Iowa town by the Chicago, Rock Island & Pacific Railroad.

The Chicago, Burlington & Quincy Railroad (“the Burlington Road”) was the next stop on W.C.’s advancement in railroading for the next 18 years. From 1876 to 1880 he was a train dispatcher in Iowa, and during a blizzard he volunteered to help rescue cattle from 400 stalled cattle-cars. This demonstration of ability to act in an emergency and his other skills brought him successive promotions to chief dispatcher, trainmaster, assistant superintendent and then superintendent for the Burlington Road from 1880 to 1890.

In the 1880’s while on duty in St. Louis, W.C. pulled a switch to let a train proceed in the middle of striking switchmen holding rifles. He instantly was anointed with the nickname: “Little Man Unafraid.” This moniker was used again when in 1888 he took over as engineer to take a train out of Ottumwa, Iowa during an engineer’s strike and safely piloted the train to Chicago. Perhaps for the working men on the railroads, he was known as “the Strikebreaker.”

From 1890 to 1896, W.C. was general manager for several railroads with operations in Missouri (Hannibal & St. Joseph; Kansas City, St. Joseph & Council Bluffs; and Chicago, Burlington & Kansas City). In 1893 after learning that a band of robbers were planning to hold up a passenger train, Brown quietly replaced the passengers on that train with armed policemen in the baggage car. When the bandits stopped the train and forced the engineer and fireman to open up the baggage car, the bandits were surprised to be looking into the barrels of police rifles. The robbery was foiled, and a St. Louis newspaper said, “the lives of some innocent passengers, were undoubtedly saved. Mr. Brown thus adds another circlet to the palm and laurel which he already wears.”

In 1896 W.C. returned to the Burlington Road as general manager. This prompted an Ottumwa newspaper to say, “There are a few especial reasons for Brown’s success. He took whatever duties that were assigned to him and gave them his best effort. His methods were always clean and honest and his treatment of his subordinates and of the public has been based on the same candor and courtesy accorded his superiors in rank. The story of his life reads like a romance and in this story is the greatest incentive to youth, for hard work, intelligent effort, and clean methods, in whatever is undertaken.”

Brown remained with the Burlington until 1901 when at age 48 he joined the New York Central system as Vice President and General Manager of its Lake Shore & Michigan Southern Railroad, which ran from Buffalo along the southern shore of Lake Erie through Cleveland, Toledo, and South Bend to Chicago, and of its Lake Erie & Western Railroad, which ran from Fremont Ohio to Bloomington Illinois.

Thus, over his past 33 years, W.C. had advanced from a manual laborer handling wood for steam-engines to become the C.E.O. of two railroads affiliated with the New York Central Railroad. He did this with the modest education available in small towns on the prairie. This remarkable journey shows the amazing employment opportunities then available in railroading before the age of university business education.[5]

During this period of career advancement, W.C. married his sweetheart from Lime Springs, Mary “Ella” Hewitt, in 1874 in her parents’ home in the town, and their five children were born: Georgia Frances Brown, 1875; Charles Edwin “Eddie” Brown, 1877; Lura Belle Brown, 1880; Bertha Adelaide Brown, 1882; and Margaret Heddens Brown, 1891. Two of the children died during this period: “Eddie” Brown, 1882; and Lura Belle, 1882, while Georgia Frances was married to Dr. Frank Ellis Pierce, 1899.

Subsequent posts will look at what the New York Central looked like at the start of the 20^th century, at W.C.’s career with the New York Central, his retirement, his being charged (but not prosecuted) with a federal crime, and his death.

——————————————

[1] A prior post discussed the Terminal on its centennial in 2013 with other details provided in another post.

[2] Other posts discussed Rev. Brown’s lineage in America, his initial trip to the Iowa Territory in 1842, his missionary work in that Territory (and State), 1842-1851; and his recuperation in New York State, 1851-1857.

[3] Another post was about Rev. Brown’s missionary work in Iowa, 1857-1887.

[4] An earlier post focused on my maternal great-grandparents, James DeGrush and Ella Francelia Dye Brown.

[5] Two of W.C.’s brothers also went into railroading. His twin brother, George Lyon, was a trainman for the Milwaukee Road, but died at age 18 in 1871 from injuries received while coupling railroad cars in St. Paul, Minnesota. Another brother (and my maternal great-grandfather), James DeGrush Brown, worked in railroading his entire working life.

A Trial Lawyer’s Reflections on His Calling

Mark N. Stageberg , a Minnesota civil trial lawyer with over 40 years of experience, has written a fascinating review of his career in Win Some Lose Some: The Trials and Tribulations of a Trial Lawyer .

I am amazed by the broad variety of his experience–insurance defense work in personal injury cases as he was starting out and then plaintiff’s personal injury and other types of cases over the rest of his career. Most were in state and federal courts in his home state of Minnesota, but he also has handled cases in the courts in 14 other states. Moreover, he has been a lawyer in over 175 completed jury trials or an average of about four per year.

In an era when most civil cases are settled, that is a truly remarkable accomplishment. This is shown by the statistics for all civil cases for all the federal district courts for Fiscal 2013 (10/01/12–09/30/13):

*Civil Cases*	*Number*
Pending at 09/30/12	271,141
Filed FY 2013	284,604
Terminated by trials FY 2013	(11,036)
Terminated by other means FY 2013	(244,224)
Terminated subtotal FY 2013	(255,260)
Pending at 09/30/13	300,485

In other words, only 4.3% (11,306/255,260) of all the federal court civil cases that were terminated in FY 2013 were terminated by trial. I believe similar statistics exist for other years for the federal courts. The same is true, I believe, for most state courts.

Becoming a Capable Trial Lawyer

Stageberg starts by saying that finishing law school and passing a bar exam do not by themselves make anyone ready to conduct a civil trial (p. 20-21). Instead, it takes actually trying cases and learning from experience. This would be aided by having an experienced mentor, something he did not have (p. 27).

As a retired lawyer reflecting on my first years of practice nearly 50 years ago, I wholeheartedly agree.

Like almost all law students in my first year I had civil procedure, an essential tool of a trial lawyer and litigator, but it was book-learning, and it seemed like ancient history three years later when I was starting to practice and trying to learn how civil procedure worked in the “real world.”

Moreover, there is not a general overarching set of procedural rules that apply in all courts in the U.S. There is the Federal Rules of Civil Procedure that govern all civil cases in all the federal district courts plus local rules for each of the 94 such courts. The local rules with which I am most familiar is the set for the District of Minnesota. In addition, each federal district judge often has his or her own additional rules or practices.

Each state in turn has its own set of civil procedural rules. Thankfully for the trial lawyer, most states have adopted rules modeled on the Federal Rules of Civil Procedure, but there are usually some differences between the two. Here I reference the Minnesota Rules of Civil Procedure. The states also frequently have an additional set of rules; in Minnesota it is called the General Rules of Practice. Again the lawyer also needs to be aware if the individual trial court judge has other rules or practices.

Trial lawyers also need to be intimately familiar with the jurisdiction’s law of evidence. Now there is the Federal Rules of Evidence for trials in the federal district courts, and there are separate evidentiary rules in each state. Again the trial lawyer is thankful that today they are modeled on the Federal Rules of Evidence; an example is the Minnesota Rules of Evidence.

Another body of law needs to be in the trial lawyer’s tool kit: conflict of laws. Because many cases involve facts in different states or different countries, there has to be a set of rules or principles to determine which jurisdiction’s substantive law applies. Each state has its own body of such law, and the rules applicable in federal court cases are even more complex.

All of these areas of law—procedure, evidence and conflicts—are in addition to the substantive law that determines whether or not there is liability and the appropriate remedy. Frequently the trial lawyer will look for guidance on these substantive issues to other lawyers in his or her law firm with appropriate expertise. For example, I handled a case raising issues under the complex federal Employee Retirement Income Security Act (ERISA), for which other lawyers in the firm who specialized in that area provided the substantive legal analysis.

For all of these areas of law the trial lawyer needs to keep abreast of any amendments to the rules and statutes and their interpretations by the courts.

As a result, if the lawyer is handling or trying a case outside his or her home state, the lawyer is required by court rule to associate with an attorney of the bar of that jurisdiction, and such co-counsel needs to be knowledgeable about all these issues in that jurisdiction. Stageberg learned this lesson when his local counsel was not so qualified (p. 188).

Another requirement for the trial lawyer is developing the skills of using the courts’ discovery rules plus independent investigations to discover the facts relevant to the case and to assemble the evidence for the case, including the retention of expert witnesses when appropriate.

All of the foregoing knowledge is necessary before you enter the more complex and challenging trial courtroom. There the lawyer needs to develop the skills of oral advocacy, of asking non-objectionable questions, of making appropriate objections, and of making tactical and strategic decisions, all in the pressure cooker of a trial courtroom when there is an opposing lawyer who is trying to counter whatever you do and defeat you in the courtroom battle.

Yes, indeed, learning how to be an effective trial lawyer takes a lot of learning by doing.

The Stress of Being a Trial Lawyer

Stageberg tells us, “Trying lawsuits is very strenuous, high-pressure occupation. Working thirteen or fourteen hour days for the duration of the trial is . . . very hard work” (p. 382).

Amen! From my much more limited experience of actually trying cases, I concur, and a prior post discussed some of the aspects of this stress.

Indeed, the mere foregoing recital of the things that have to be learned by a trial lawyer should make it self-evident that trial work is very stressful and very hard work. But wait, there is more.

When you are in the courtroom itself, even though that may “only” be three or so hours in the morning and another three or so in the afternoon, your mind is continuously multitasking. Here are a few of the questions that are running through your mind when you are examining your own witnesses. What did the witness say? How do you respond to any objection? What is the next question? Are you covering the essential points for the plaintiff’s claim or the defendant’s defense? Have you covered all you wanted to do with this witness? Have you introduced and offered into evidence all the exhibits you planned? How is the judge reacting to the testimony? The jury? Who is the next witness? Do your plans for that witness have to be changed in light of what this witness is saying?

The opposing lawyer has all these questions running through his or her mind plus others. Is the question objectionable, based upon the law of evidence? If so, what objection and whether and how to state it? Is the witness’ testimony consistent with what he or she said in a deposition or an affidavit, both under oath, or in a letter, memo or email or other document? How should I cross-examine this witness? Then conducting the cross-examination puts you in the shoes of the lawyer described in the prior paragraph.

Moreover, before you start in the courtroom in the morning, you are also multitasking. Preparing the witnesses who will be testifying that day. Anticipating what the opposing counsel will do or say. Changing and adjusting the plans you had made before the trial started. Checking in with your assistants on current and new assignments. This process continues during any breaks during the day in court and after you leave the court to prepare for the next day. Thus, it is easy to have 14 or more billable hours for each day of trial. (This shows why trial is so expensive and why the cost of continuing litigation is a frequent factor in settling cases, before, during or after trial.)

You also have to find time during trial for bathroom breaks, meals and sleep. Sleep does not come easily as your mind races over all of the decisions you made that day and those you will have to make the next day. As a result, your sleep suffers and you get exhausted. You need to eliminate all other demands on your time, including commuting. For example, in my last trial in state court in downtown Minneapolis in January 2001, I stayed in a hotel close to the courthouse in order to eliminate the daily seven-mile commute from my home and the risk of winter storms and traffic making such commutes even more difficult and time-consuming.

Practical Tips for the Trial Lawyer

Stageberg emphasizes that the attorney should never believe everything a prospective or actual client says and that a new client should not be accepted before the attorney has done some independent research about the prospective client (p. 327). I recall a case for a regular client of the law firm when I should have followed this precept. The client’s distributorship had been terminated by the manufacturer, and after obtaining the client’s file for the distributorship, I commenced a lawsuit for breach of contract and other alleged wrongs only to have the manufacturer’s lawyer provide me with a copy of the written contract (which I had never seen) that torpedoed the lawsuit.

Stageberg frequently tells us of lessons learned about trial practice as he tried more and more civil cases. Here are some of them:

“Don’t take loser cases to trial. Settle them.” (p. 23)
Evaluating pre-trial settlement offers is difficult. It requires evaluation of the strength of all the witnesses and other evidence as well as the lawyers involved. (p. 43)
Juries can go off on tangents so try to provide careful explanations of photographs and other exhibits (pp. 21-22). Be honest with the jury. Do not downplay the problems with your case (p. 306).
Trying to “read” a jury’s reaction to the testimony and to you as attorney is very difficult and easy to mistake (p. 23). Also avoid prejudging a jury based on stereotypes (p. 45).
An expert’s testimony about his or her opinions requires the prior establishment of foundation for that testimony (P. 22).
The lawyer needs to know how to pronounce the unusual names of witnesses and places (p. 51). The lawyer should also be careful about what vehicle he or she drives to court, not wanting to offend U.S. workers by driving a foreign vehicle (p. 50).
The lawyer needs to make a trial court record for anything that might become an appellate issue, including the judge’s inattentiveness (pp. 91-92).
Always try to anticipate the unexpected and maximize your control of the situation (p. 126).
Eyewitness testimony is not always reliable (p. 129). In certain cases, the lawyer should make his or her own inspection of the accident or other important scene in the case (p. 133). Having a jury inspect such scenes can also be a very effective tool for the lawyer (p. 210).
Especially in personal injury cases, the plaintiff and his or her attorney needs to be aware that insurance companies frequently conduct surveillance of the plaintiff (p.142).
The attorney’s presentation of the essentials of a case to a focus group or mock jury can greatly assist the attorney in revising the case to make it more effective in the court (150-57).
The attorney needs to counsel the client to be careful on what he or she says and their appearance in the presence of the jury or individual jurors in and out of court (p. 214).

Stageberg has harsh words about some lawyers from large law firms who represented clients in litigation, but did not have much actual trial experience (pp. 245-50). In at least one instance Mark, known as an experienced trial lawyer, bluffed about his eagerness to go to trial and thereby induced the defense counsel to make a substantially better settlement offer (248-50).

When I encountered Stageberg in a case, I was a “litigator” from a large law firm with much less actual trial experience than him. I do not recall if he tried this “trick” with me, but I know we did not accept any of his pretrial settlement demands or substantially change our counteroffers. As a result, we went to trial and only settled after the trial of the liability issues and before the damage phase of the trial. Moreover, although Mark is critical of pretrial motions (p. 245), the dismissal and summary judgment motions that I made were granted and his motion to add punitive damages was denied, all substantially reducing the ad terrorem nature of his case. (A prior post discussed my disagreement with some of the things Stageberg said about this case.)

Trials by the Court

Trial by jury, or course, is not the only way U.S. courts try civil cases. In the federal system, parties may waive their constitutional right to jury trial under the Seventh Amendment and have a single judge hear all the evidence and render a decision in that case.

This is another tactical and strategic decision for the client with the lawyer’s advice. For a lawyer like Stageberg with extensive jury trial experience facing other lawyers who probably have less jury experience, Stageberg would favor trial by jury.

I, however, tended to favor trial by the judge unless there was some reason to doubt the ability or fairness of the judge. In addition, the lawyer usually knows a lot about the judge’s record and manner whereas nothing is known about the abilities and skills of an unknown jury. Finally I often believed that a judge can better understand the complexities of a case than a jury.

In 2013 (long after my retirement from lawyering), I was called for jury duty in Minneapolis and was on two panels of prospective juries, but as anticipated, I was stricken from both by preemptory challenges. Trial lawyers generally do not want other lawyers to serve as jurors on suspicion that they will be too dominating in the jury’s deliberations. But it was an educational experience to see the process from a different angle and to appreciate and respect the seriousness of the prospective jurors and the trial judges.

I did not find a discussion of this issue for the trial lawyer in the Stageberg book. This is merely an observation, not a criticism.

Alternative Dispute Resolution (ADR)

The foregoing discussion by itself should demonstrate the high cost of litigation through trial. Given the legitimate public interest in resolving disputes as quickly and as cheaply as possible, many of our courts have adopted what is often called court-annexed ADR (Alternative Dispute Resolution).

For example, in Minnesota state court cases, pursuant to General Rules of Practice 114.04, the parties are required to confer promptly after the commencement of a case on various matters, including “the selection and timing of the ADR process,” and if the parties do not so agree, “the court, at its discretion, may order the parties to utilize one of the non-binding processes, or may find that ADR is not appropriate.”

A similar rule exists in Minnesota’s federal district court. Its Local Rule 16.5(b) provides that with certain stated exceptions, “the court must schedule a mediated settlement conference before a magistrate judge. The court, at a party’s request or on its own, may require additional mediated settlement conferences. Each party’s trial counsel, as well as a party representative having full settlement authority, must attend each mediated settlement conference. If insurance coverage may be applicable, an insurer’s representative having full settlement authority must also attend.” In addition, Local Rule 16.5(c) states that the court may order the parties to participate in other ADR procedures.

Independent of these court measures, the parties to contracts often agree to submit their disputes to arbitration or another form of ADR under the rules of a private agency that will administer the process such as the American Arbitration Association. These rules are similar in many ways, but not identical, to the relevant court rules of civil procedure, so the lawyer needs to be knowledgeable about these rules too. These proceedings are private and hopefully shorter than court trials. But the arbitrators or other neutrals are paid by the parties, which adds another expense to the cost of dispute resolution.

I spent a lot of time promoting ADR in the Minnesota State Bar Association and elsewhere. One of my motivations was to reduce the estrangement of parties that is often a by-product of litigation. I also acted as an arbitrator, drafted contractual arbitration and other dispute resolution provisions for other lawyers in the firm and was a lawyer for parties in arbitration.

I did not see a discussion of this aspect of the life of a trial lawyer in Stageberg’s book. Again, this is merely an observation.

Conclusion

This book is entertaining and educational for anyone interested in the contemporary American civil justice system. It also is most useful for someone who is thinking about becoming a trial lawyer or just starting down that long winding road. I thank Mark for sharing his career with the rest of us.

Litigation Over an Early Compact Fluorescent Lamp

In 1988 the Faegre & Benson law firm of Minneapolis was retained to defend the Phillips Lighting Company [1] in a civil lawsuit brought in U.S. District Court for the District of Minnesota, and I was assigned as the lead attorney for the case.[2]

The plaintiff was Ibac Industries, Inc. of Princeton, Minnesota, a small town about 50 miles north of Minneapolis. It had been working at manufacturing a plastic cover for an early Compact Fluorescent Lamp (CFL) designed by Phillips.[3]

The complaint asserted claims for alleged breach of a joint venture agreement; violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), which if successful entitled the plaintiff to treble the amount of actual damages plus attorneys’ fees; fraud; negligent misrepresentation; and four other theories. I do not recall what the alleged damages were except that they were significant.

Before trial on behalf of Phillips I successfully moved to dismiss the RICO and joint venture claims for failure to state a claim on which relief could be granted and for summary judgment on another claim. I also was successful in resisting the plaintiff’s motion for leave to amend the complaint to add a claim for punitive damages.

As a result, we went to trial in December 1989 on the fraud, negligent misrepresentation and three other claims. At the end of the evidence, the court granted Philips’ motion for directed verdict on the three other claims, leaving only two for the jury to decide.

The jury returned a special verdict for Phillips on the fraud claim. Thus, the only remaining claim for resolution by the jury’s special verdict was negligent misrepresentation.

Under the Minnesota common law of negligent misrepresentation, at the time, as I recall, a person who, through his or her profession, business, or employment, or in any transaction in which he or she has a pecuniary interest, fails to exercise reasonable care or competence in obtaining or communicating information and thereby supplies false information while guiding others in their business transactions, is liable for any pecuniary loss caused by the claimant’s justifiable reliance on the information. However, such a claim is subject to the comparative fault doctrine, whereby the plaintiff can recover only the percentage of fault attributable to the defendant, and if the plaintiff’s fault exceeds the defendant’s, the plaintiff can recover nothing.

To prevail on a negligent misrepresentation claim under Minnesota law at the time, as I recall, a plaintiff must establish that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant supplied false information to the plaintiff; (3) the plaintiff justifiably relied upon the information; and (4) the defendant failed to exercise reasonable care in communicating the information; and (5) damages.

Even though, as I recall, Phillips contested all of these elements, the jury’s special verdict found such negligent misrepresentation and assigned slightly greater responsibility to Phillips (something like 60%) than to Ibac (something like 40%). This was good news for Phillips in that Ibac’s recovery of its damages would be reduced by the percentage of responsibility assigned to Ibac. This was bad news for Phillips, on the other hand, in that Ibac was not shut out from recovering anything. At the time I was disappointed after coming so close to “zeroing out” the plaintiff.

The trail was bifurcated between liability and damages, and after the above jury determinations on liability and before a trial before the same jury on damages, there was a settlement in January 1990 with Phillips paying Ibac a sum of money, the amount of which I do not recall.

The bifurcation of the trial provides insights about the life of the litigator/trial lawyer and being subject to the demands or whims of the court.

As I recall, U.S. Senior District Court Judge Edward J. Devitt, the presiding judge,[4] called a pretrial conference in early December 1989 and much to my surprise and consternation and without any prior notice, set the trial to commence just before Christmas, only a few weeks away. Perhaps this was the Judge’s stratagem to try to force a settlement because of all the difficulties this short notice would present to the parties and their attorneys.

Unfortunately my wife and I already had paid for a vacation to Costa Rica for later that month. When I objected to this date for the trial on that basis and on the difficulties of having my client’s witnesses come from Boston on short notice during the holiday season, Judge Devitt accommodated me by bifurcating the trial between liability and damages and only conducting the liability trial before I was scheduled to go on vacation.

While I was in Costa Rica, I received news from my law firm that the plaintiff was increasing its alleged damages. This forced me to leave Costa Rica early when I was not feeling well. I well remember leaving La Selva Research Station in the rain forest where we were staying to catch a local bus on a country road for a long ride to the capital city of San Jose. When the bus came over the mountain, I saw the widespread lights of the city looking as large as Los Angeles. That really impressed upon me the lure of cities across the world to people living in the countryside.

The opposing counsel for Ibac was Mark N. Stageberg, an able, very experienced civil trial lawyer. He discusses this very case, I assume based on recollection, in his memoir, Win Some Lose Some: The Trials and Tribulations of a Trail Lawyer (pp. 94-96). [5]

I have no disagreements with what Stageberg said about this case, except for the following:

First, he did not mention his losses on the previously mentioned pretrial motions that significantly reduced the potential of his case.
Second, he says his client had “developed and sold a new prototype fluorescent lightbulb to . . . Phillips.” According to my firm recollection, that is absolutely erroneous because the bulb, to my recollection, was designed by Phillips, especially its crucial electronics parts, and Ibac was only retained to manufacture the plastic cover according to Phillips’ specifications
Third, I do not recall Stageberg’s account of the so-called “smoking gun” document from Phillips’ files, and I certainly do not believe that this document or any other evidence proved that the Phillips’ witnesses were lying, as Stageberg claims. Indeed, the jury’s rejection of the fraud claim undercuts Stageberg’s interpretation or recollection of this point.
Fourth, contrary to what Stageberg said, the jury did not determine that Phillips had “breached its contract and had committed fraudulent misrepresentations” with Ibac. As previously stated, the breach of contract claim was dismissed on motion or on directed verdict, and the jury determined that there was no fraudulent misrepresentation.
Fifth, we will never know that would have happened if Ibac had started the whole process with a more reasonable demand.

Nevertheless, I have to admit that after all of the skirmishing, his client walked away with a substantial settlement amount (minus attorneys’ contingent fee).

I also note that Stageberg expressed his consternation in another case when he was subjected to a trial court’s unexpectedly setting a trial date that interfered with his plans to do other things. (Win Some Lose Some at 189-192).

————————————-

[1] Phillips was part of Koninklijke Philips N.V. (Royal Philips, commonly known as Philips), a Dutch diversified technology company headquartered in Amstrerdam and one of the largest companies in the world.

[2] This post is based upon my personal recollection and on my December 1989 and 1990 descriptions of the status of this case in my annual reports to the partner in charge of my group at Faegre & Benson, which I am confident accurately reflected what had happened in the case. I do not have any documents from the case. I am confident that Faegre’s files for a 24-year-old closed case were destroyed a long time ago under regular document-retention guidelines. Finally the court’s files for the case (# 3:88cv-00482-EJD) have been sent to storage in a remote federal facility.

[3] In 1980 Phillips introduced its model SL, which was a screw-in lamp with integral magnetic ballast. The lamp used a folded T4 tube, stable tri-color phosphors, and a mercury amalgam. This was the first successful screw-in replacement for an incandescent lamp. All of this, as I recall, was before any involvement of Ibac with respect to the plastic cover.

[4] In 1989 Judge Devitt at age 78 was a very eminent federal jurist. He had served as one of Minnesota’s federal District Judges, 1954-1958, as its Chief Judge, 1959-1981, and as one of its Senior Judges since 1982. He continued in that capacity until his death in 1992. Before his federal judicial career, he served one term in the U.S. House of Representatives.

[5] I plan to write a general review of the memoir after I finish reading it.

U.S. Stupidity and Cowardice in Continuing to Designate Cuba as a “State Sponsor of Terrorism”

On April 30, 2014, the U.S. Department of State issued its annual report on terrorism in the world: Country Reports on Terrorism 2013. A prior post reviewed the report as a whole.

We now examine this report’s designation of Cuba as a “State Sponsor of Terrorism” [“SST”], i.e., as a country that has “repeatedly provided support for acts of international terrorism.” This post’s analysis is also informed by the U.S.’s similar designations of Cuba in the annual reports on terrorism for 1996 through 2012. Earlier posts analyzed and criticized the reports about Cuba for 2009, 2010, 2011 and 2012.

State Department’s Rationale

The following is the complete asserted justification for the Department’s designation of Cuba for 2013:

“Cuba was designated as a State Sponsor of Terrorism in 1982.
Cuba has long provided safe haven to members of Basque Fatherland and Liberty (ETA) and the Revolutionary Armed Forces of Colombia (FARC). Reports continued to indicate that Cuba’s ties to ETA have become more distant, and that about eight of the two dozen ETA members in Cuba were relocated with the cooperation of the Spanish government. Throughout 2013, the Government of Cuba supported and hosted negotiations between the FARC and the Government of Colombia aimed at brokering a peace agreement between the two. The Government of Cuba has facilitated the travel of FARC representatives to Cuba to participate in these negotiations, in coordination with representatives of the Governments of Colombia, Venezuela, and Norway, as well as the Red Cross.
There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.
The Cuban government continued to harbor fugitives wanted in the United States. The Cuban government also provided support such as housing, food ration books, and medical care for these individuals.”

Rebuttal of State Department’s Rationale

On its face alone, this alleged justification proves the exact opposite: Cuba is not a state sponsor of terrorism. Nevertheless, a detailed rebuttal follows.

U.S. Admissions of the Weakness of Its Designation

First, the report itself admits, “There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.” This is consistent with past U.S. admissions that there was no evidence that Cuba had sponsored specific acts of terrorism (1996, 1997) and that there “was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups” (2011, 2012, 2013). Similar admissions were made in the U.S. reports for 2005, 2008, 2009 and 2010.

Second, earlier U.S. reports admitted that “Cuba no longer supports armed struggle in Latin America and other parts of the world” (1996, 1997, 1998, 2008, 2009) and that in 2001(after 9/11) Cuba “signed all 12 UN counterterrorism conventions as well as the Ibero-American declaration on terrorism” (2001, 2002, 2003).

Third, the latest report’s Western Hemisphere Overview says the FARC “committed the majority of terrorist attacks in the . , . Hemisphere in 2013.” There is no mention of Cuba in this overview. The same was said in the report for 2012.

Fourth, there is no mention of Cuba in the latest report’s “Strategic Assessment” that puts all of its discussion into a worldwide context.

Fifth, the latest report makes no allegations against Cuba regarding money laundering and terrorist financing, which was one of the purported bases for the SST designation for 2012. Thus, the U.S. apparently has recognized the weakness of such charges were evident to all, as discussed in this blogger’s post about the prior report and a related post about Cuba’s adoption of regulations on these financial topics.

All of this rebuttal so far is based only on what the State Department has said about this designation since 1996.

In addition, the Cuban government has taken the following actions that strengthen the rebuttal of the designation and that, to my knowledge, the U.S. has not disputed:

Cuba publicly has stated that Its “territory has never been and never will be utilized to harbor terrorists of any origin, nor for the organization, financing or perpetration of acts of terrorism against any country in the world, including the [U.S.]. . . . The Cuban government unequivocally rejects and condemns any act of terrorism, anywhere, under any circumstances and whatever the alleged motivation might be.”
In 2002, the government of Cuba proposed to the U.S. adoption of a bilateral agreement to confront terrorism, an offer which it reiterated in 2012, without having received any response from the U.S.
Cuban President Raul Castro on July 26, 2012 (the 59th anniversary of the Cuban Revolution) reiterated his country’s willingness to engage in negotiations with the U.S. as equals. He said no topic was off limits, including U.S. concerns about democracy, freedom of the press and human rights in Cuba so as long as the U.S. was prepared to hear Cuba’s own complaints. In response the U.S. repeated its prior position: before there could be meaningful talks, Cuba had to institute democratic reforms, respect human rights and release Alan Gross, an American detained in Cuba.

But let us go further.

Cuba As an Alleged Safe Haven for Terrorists

The only remaining asserted basis for the “SST” designation is Cuba’s alleged providing safe haven to individuals with two U.S.-designated Foreign Terrorist Organizations—ETA (an armed Basque nationalist and separatist group in Spain) and FARC (an armed Colombian rebel group)—and to certain fugitives from U.S. criminal proceedings.

Analysis shows that these charges do not support the SST designation.

a. ETA

Prior U.S. reports say there were only 20 to 24 ETA members in Cuba, and the latest report says “Cuba’s ties to ETA have become more distant, and . . . about eight of the two dozen ETA members in Cuba were relocated with the cooperation of the Spanish government.” Thus, there are only 12 to 16 ETA members remaining in Cuba, and by now they must be older people who have not participated in any terrorist activities in Spain for many years. They are “side-line sitters.”

Moreover, the 2011 and 2012 U.S. reports state that Cuba is “trying to distance itself” from the ETA members on the island and was not providing certain services to them.

Earlier U.S. reports also reflect the limited nature of the charges regarding ETA. Of the 20 to 24 members previously on the island, the U.S. said, some may be in Cuba in connection with peace negotiations with Spain (2009). In May 2003, the U.s. reported, Cuba publicly asserted that the “presence of ETA members in Cuba arose from a request for assistance by Spain and Panama and that the issue is a bilateral matter between Cuba and Spain” (2003). In March 2010, a U.S. report stated, Cuba had “allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members” (2010).

Moreover, in March 2011 the Spanish Ambassador to Cuba told former U.S. President Jimmy Carter that Spain was “not concerned about the presence of members of . . . ETA . . . in Cuba.” Indeed, the Spanish Ambassador maintained that this enhances his country’s ability to deal more effectively with ETA. In fact, the Ambassador added, some ETA members are there at the request of the Spanish government.

At least the last three U.S. reports say that Cuba is providing “safe haven” to the ETA members, but their separate chapters on the legitimate international problem of terrorist safe havens have no mention whatsoever of Cuba.

It also should be noted that there has been some movement towards an understanding to resolve the ETA challenges to the Spanish government. In September 2011 an international verification commission was established to help broker such a resolution, and the next month ETA announced a unilateral cease-fire. More recently, February 2014, that commission announced its corroboration of a partial disablement of ETA weapons. The Spanish government, on the other hand, publicly has refused to negotiate and instead has insisted that ETA admit defeat and surrender unconditionally. In addition, the government still enforces a criminal law against publicly glorifying terrorists or their actions with April 28^th arrests of 21 Spaniards for praising terrorist groups such as ETA and radical Islamists, for encouraging further attacks, and for making fun of victims on social networking sites.

In the meantime, Spain as a member of the European Union is participating in negotiations between the EU and Cuba to establish a Political Dialogue and Cooperation Agreement without any mention of ETA members being on the island. Recently the parties completed the first round of those negotiations with an understanding that the final agreement will have these four components: political dialogue and governance; cooperation and sectoral policies; the economy and trade; and management of the bilateral relationship. The subject of human rights will remain an issue in the chapter on the Political dialogue and governance.

In summary, I submit, any objective analysis shows that Cuba’s limited connection with a small number of ETA members is no legitimate reason for the U.S. SST designation.

b. FARC

Most of the reasons for the speciousness of the charges regarding ETA also apply to the charges regarding the Colombian group, FARC.

In addition, the 2008 U.S. report said in July of that year “former Cuban President Fidel Castro called on the FARC to release the hostages they were holding without preconditions. He has also condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians who had no role in the armed conflict.”

There is no indication in the State Department’s reports of the number of FARC members allegedly in Cuba, but for 2009 the U.S. reported that some may be on the island in connection with peace negotiations with Colombia (2009 report).

Moreover, in March 2011 the Colombian Ambassador to Cuba told former U.S. President Jimmy Carter that Colombia was “not concerned about the presence of members of FARC . . . in Cuba.” Indeed, the Ambassador maintained that this enhances their ability to deal more effectively with FARC.

Cuba’s limited connections with the FARC resulted in a September 2012 statement by Cuba’s Ministry of Foreign Relations about the then recently-announced peace talks between Colombia’s government and the FARC. It stated that Cuba “has a historical commitment to peace in Colombia and efforts to put an end to [her] . . . political, social and military conflicts.” To that end, the Cuban Government “has made constructive efforts to . . . search for a negotiated solution, always responding to a request from the parties involved and without the slightest influence in their respective positions.” The statement continued. For over a year, at the express request of the Government of Colombia and the FARC, “the Cuban government supported the . . . exploratory talks leading to a peace process,” and as a “guarantor” Cuba participated in these talks. “The Cuban government will continue to . . . [provide its] good offices in favor of this effort, to the extent that the Government of Colombia and the FARC . . . so request.” The Government of Colombia publicly stated its gratitude for Cuban facilitation of such negotiations.

As a result, the last two U.S. reports admit that Cuba has “supported and hosted negotiations between the FARC and the Government of Colombia aimed at brokering a peace agreement between the two sides.” In addition, Colombia’s president has said that support for such negotiations by Cuba and Venezuela has been crucial in helping the two sides to reach agreement on conducting the negotiations.

In May 2013, the two sides announced an agreement to distribute land to small farmers and undertake development projects that would improve rural education and infrastructure that will not take effect until a final peace agreement is reached.

In short, Cuban involvement with some FARC members is not a legitimate basis for the U.S. designation of Cuba as a SST .

c. U.S. fugitives

There apparently were or are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes, but, as the U.S. has admitted, since at least 2005 Cuba has not admitted any additional U.S. fugitives. In addition, the U.S. also had admitted that in a few instances Cuba has extradited such fugitives to the U.S. (2001, 2003, 2004, 2005, 2006, 2007, 2008, 2009).

One of the U.S. fugitives, William Potts, this year voluntarily returned to the U.S. after serving a 15-year Cuban sentence for the 1984 hijacking of a Piedmont Airlines passenger plane with 56 people aboard in the U.S. and forcing it to go to Cuba. On May 1, 2014, Potts appeared in a U.S. federal court and pled guilty to kidnapping (with a possible life sentence); under a plea agreement, the government dropped an air piracy charge (with a mandatory minimum sentence of 20 years). Potts is asking the court to give him credit for the 15 years he already served in a Cuba prison on the same charge. Sentencing is scheduled for July 11^th.

None of the other U.S. fugitives apparently is affiliated with any U.S.-designated terrorist organizations. The issue of whether or not they will be extradited to the U.S. is an appropriate issue for bilateral negotiations between the two countries.

In any event, the presence in Cuba of some fugitives from U.S. criminal charges is not a legitimate basis for the U.S. designating Cuba as a SST.

Conclusion

The U.S. designation of Cuba as a “State Sponsor of Terrorism” is absurd. This conclusion is shared, in less colorful language, at least by the U.S. Central Intelligence Agency, former President Jimmy Carter, the U.S. Council on Foreign Relations, the Center for Democracy in the Americas, the Center for International Policy, the Latin American Working Group, The Atlantic Magazine’s noted national correspondent (Jeffrey Goldberg) and a retired U.S. Army Brigadier General (John Adams).

Not surprisingly the Cuban government comes to the same conclusion. In response to the latest designation, it stated,” Cuba’s Foreign Ministry “energetically rejects the manipulation of a matter as sensitive as international terrorism by turning it into an instrument of policy against Cuba and it demands that our country be definitively excluded from this spurious, unilateral and arbitrary list.” Last year, it said “the only reason Cuba is kept on this list is . . . an attempt to justify the U.S. blockade of our country, as well as the adoption of new measures to limit our financial and commercial transactions, to strangle the Cuban economy and impose a regime which responds to U.S. interests.”

The U.S. itself also has damned the designation by faint praise. In a press briefing about the most recent terrorism report, a journalist pointed out some of the weaknesses of the stated rationale and asked when the U.S. would cancel the designation. The State Department spokesperson refused to speak directly about the purported rationale for the Cuban SST designation. Instead the spokesperson said, “there’s not a routine process by which you re-evaluate the state sponsors. . . . [and the annual terrorism reports just list those on the SST list. It is not]as if every year we look at those and re-evaluate them in some way based on the report.” [1] She added she knew of no plans to remove the SST designation for Cuba.

Whatever legitimate issues are raised by these U.S. reports, I submit, they are appropriate subjects, among many, for the bilateral negotiations that a prior post recommended should occur between the U.S. and Cuba to the end of reconciliation and restoration of normal relations.

In the meantime, this SST designation is ridiculous, absurd, stupid. It can only continue, in this outsider’s opinion, because of the Administration’s political cowardice in facing resistance to an elimination of this designation, especially from influential Cuban-Americans in Congress, especially Democratic Senator Robert Menendez, Chairman of the Senate Foreign Relations Committee,[2] and Republican Rep. Ros-Lehtinen, member of the House Foreign Affairs Committee.[3]

All U.S. citizens should protest this SST designation to President Obama, Secretary of State Kerry, Senator Menendez (and your own Senators), Representative Ros-Lehtinen (and your own Representative).

——————————————–

[1] The State Department also posted this statement on its website. “While there are no statutory triggers for review of a State Sponsor of Terrorism designation, the State Department can review such designations at its discretion. With respect to criteria for rescission, there are two possible pathways to rescission of a State Sponsor of Terrorism designation, in accordance with the relevant statutory criteria. The first path requires the President to submit a report to Congress, before the proposed rescission would take effect, certifying that: (1) there has been a fundamental change in the leadership and policies of the government of the country concerned; (2) the government is not supporting acts of international terrorism; and (3) the government has provided assurances that it will not support acts of international terrorism in the future.The second path requires the President to submit a report to Congress, at least 45 days before the proposed rescission would take effect, justifying the rescission and certifying that: (1) the government concerned has not provided any support for international terrorism during the preceding six month period, and (2) the government concerned has provided assurances that it will not support acts of international terrorism in the future.

[2] In April 2014, Senator Menendez made a speech on the Senate floor endorsed Cuba’s SST designation while castigating Cuba on all sorts of issues.

[3] Responding to the latest designation, Rep. Ileana Ros-Lehtinen (R., Fla.), said Cuba “continues to pose a national security threat to the United States.” She added that recently “the Castro regime has been responsible for training the ‘colectivos’ in Venezuela that violate human rights and murder innocent civilians and Cuba was caught trying to ship military equipment to North Korea in violation of many United Nations Security Council resolutions [and the] tyranny in Havana is also guilty of harboring terrorists, providing safe haven for American fugitives, and building a sophisticated spy network that seeks to undermine our national security interests at every turn.”

The Novel “Ordinary Grace” Wins Awards

A prior post recorded my delight in the novel “Ordinary Grace” by William Kent Krueger despite my criticism for his use of an Aeschylus quotation about suffering and wisdom. Not surprisingly the book has received many awards.

On May 1, 2014, the Mystery Writers of America granted its 2014 Edgar Allan Poe Award for Best Novel to “Ordinary Grace.”

Earlier the novel had won (a) the 2014 Midwest Booksellers Choice Award for Best Novel of the year; (b) the 2014 Dilys Award from the Independent Mystery Booksellers Association for the mystery book their members most enjoyed selling; and (c) the Squid Award from Left Cost Crime , a group of mystery fans for the best mystery set in the U.S. The novel also has been included on many Best of 2013 lists.