Update on Proposed U.S. Legislation Opposing U.S.-Cuba Reconciliation  

A prior post reviewed the pending bills in this Session of Congress that support U.S.-Cuba reconciliation. Now we look at the 16 pending bills and resolutions opposing U.S.-Cuba reconciliation, all but two of which have had no substantive action taken by either chamber. Details on these measures are available on the Library of Congress’ THOMAS website.

Three of them—H.R.1782, S.1388 and H.R.2466—seek to impose preconditions for seeking normalization of diplomatic relations with Cuba and thereby attack a major premise of the Administration’s current efforts regarding Cuba: for over 50 years the U.S. has failed to obtain Cuban reforms through imposing preconditions and sanctions.

The other 13 pending measures are less threatening to the Administration’s ongoing efforts to normalize relations with Cuba.

Improved Cuban Human Rights as Precondition for Reconciliation

The major premise of the Administration’s new approach to Cuba is attacked by H.R.1782 “Cuba Human Rights Act of 2015” authored by Rep. Christopher Smith (Rep., NJ) with 12 cosponsors. Until Cuba ceases violating the human rights of its citizens, the bill, among other things, would prohibit any changes in the U.S. relationship with Cuba and require the U.S. to oppose Cuban membership on the U.N. Human Rights Council. The bill was referred to the House Committee on Foreign Affairs, which in turn referred it to its subcommittees on the Western Hemisphere and on Africa, Global Health, Global Human Rights and International Organizations. No substantive action on the bill has been taken by that Committee and said subcommittees.

Less intrusive on the Administration’s approach to Cuba on human rights is S.Res.152 “A resolution recognizing threats to freedom of the press and expression around the world and reaffirming freedom of the press as a priority in efforts of the United States Government to promote democracy and good governance.” It condemns actions around the world that suppress freedom of the press and reaffirms the centrality of freedom of the press to U.S. efforts to support democracy, mitigate conflict, and promote good governance. A preamble references a Freedom House report that ranked Cuba as one of the countries having the worst obstacles to access, limits on content, and violations of user rights among countries and territories rated by Freedom House as “Not Free.” More recently the Committee to Protect Journalists leveled another criticism of press freedom in Cuba. The resolution was offered by Senator Robert Casey, Jr. (Dem., PA) and was referred to the Senate Committee on Foreign Relations, which has not yet taken any action on the matter.

Plan for Resolving U.S. Claims for Expropriated Property as                          Precondition for Reconciliation

Two pending bills relate to Cuba’s expropriation of property of U.S. nationals without compensation in violation of international law. Resolution of U.S. claims for money damages for such acts clearly is an important subject for direct discussions with the Cuban government in the first instance. As discussed in a prior post, those claims are currently estimated to total at least $7.0 billion.

Although I am not privy to how the U.S. Government intends to proceed on such claims, that prior post anticipated an inability to resolve these claims through direct negotiations and, therefore, suggested that the U.S. submit such claims to the Permanent Court of Arbitration along with all other U.S. claims for money damages against the Cuban government and that Cuba similarly submit all of its claims for money damages against the U.S. government. Moreover, that prior post pointed out that any consideration of U.S. claims for money damages against the Cuban government has to recognize that Cuba does not have the financial resources to pay a large sum of money.

S.1388: “A bill to require the President to submit a plan for resolving all outstanding claims relating to property confiscated by the Government of Cuba before taking action to ease restrictions on travel to or trade with Cuba, and for other purposes.” This bill legitimately recognizes that such claims are important for the U.S. and need to be resolved, but in this blogger’s opinion, this bill unwisely makes a plan for resolution a precondition for proceeding with reconciliation. On the other hand, the bill does not require actual resolution of the claims as a precondition so maybe the bill is not as threatening to reconciliation as might first appear. The bill is authored by Senators Marco Rubio (Rep., FL) and David Vitter (Rep., LA) with 11 cosponsors. It was introduced on May 19th and referred to the Senate Committee on Banking, Housing and Urban Affairs, which has not taken any action on the bill. Senator Rubio, however, referred to this bill at a Senate Foreign Relations Committee hearing about Cuba on May 20th.

The companion bill in the House with the same title is H.R.2466 introduced on May 20th by Rep. Thomas Rooney (Rep., FL) with no cosponsors. It was referred to the House Committee on Foreign Affairs, which has not yet taken any action on the bill.

 Limits on Certain Trademarks Expropriated by Cuba

Cuba’s expropriation of property owned by U.S. nationals without compensation, in some instances, included trademarks. Therefore, such trademarks need to be included in the previously mentioned U.S. claims against Cuba.

This subject is addressed by S.757 “No Stolen Trademarks Honored in America Act, ” which would prohibit U.S. courts from recognizing, enforcing, or otherwise validating, under certain circumstances, any assertion of rights by a designated Cuban national of a mark, trade name, or commercial name that was used in connection with a business or assets that were confiscated by the Cuban government. The bill is authored by Senator Bill Nelson (Dem., FL) with 2 cosponsors and was referred to the Senate Committee on the Judiciary, which has not taken any action on the bill.

The companion bill with the same title in the House (H.R.1627) was authored by Rep. Darrell Issa (Rep., CA) with 10 cosponsors. It was referred to the House Committee on the Judiciary, which in turn referred the bill to its Subcommittee on Courts, Intellectual Property, and the Internet.  Neither that Committee nor the Subcommittee has taken any action on the bill.

These bills on trademarks are less troublesome, in this blogger’s opinion, and could provide an interim measure of relief until resolution of the U.S. claims for expropriated property.

 Seeking Extradition of U.S. Fugitives from Cuba

Two pending congressional measures relate to fugitives from U.S. justice in Cuba. The U.S.’ seeking Cuba’s extradition of them has been recognized by the Obama Administration as an important subject for negotiations with Cuba. Indeed, some such discussions already have occurred, and further discussions are to take place. However, as discussed in a prior post, existing extradition treaties between the U.S. and Cuba provide each country the right to not grant extradition if it determines that the offense in the other country is of a “political character,” and Cuba has invoked that provision to deny previous U.S. requests for extradition of some of the most notorious U.S. fugitives.

H.R.2189 “ Walter Patterson and Werner Foerster Justice and Extradition Act” was authored by Rep. Christopher Smith (Rep., NJ) with 3 cosponsors. It would require the president to submit an annual report to Congress regarding U.S. efforts to obtain extradition of fugitives from U.S. justice. One of the proposed findings of the bill states, “The refusal of Cuba to extradite or otherwise render Joanne Chesimard, an escaped convict who fled to Cuba after killing Werner Foerster, New Jersey State Trooper, is a deplorable example of a failure to extradite or otherwise render, and has caused ongoing suffering and stress to Mr. Foerster’s surviving family and friends.” The bill was referred to the House Committee on Foreign Affairs, which has not taken any action on the bill.

H.Res.181 “Calling for the immediate extradition or rendering to the United States of convicted felon William Morales and all other fugitives from justice who are receiving safe harbor in Cuba in order to escape prosecution or confinement for criminal offenses committed in the United States.” It was authored by Rep. Peter King (Rep., NY) with 15 cosponsors and was referred to the House Committee on Foreign Affairs, which in turn referred the bill to the Subcommittee on the Western Hemisphere. Neither body has taken any action on the proposed resolution.

The above bill (H.R. 2189) does not interfere with the Administration’s efforts to pursue reconciliation with Cuba as the bill implicitly recognizes that the U.S. may seek, but not compel, extradition. A prior post reported that the U.S. has made several requests over the years for the extradition of Joanne Chesimard (a/k/a Assata Shakur) and that Cuba had rejected such requests on the ground that her offenses in the U.S. were of a “political character.” Anticipating that Cuba would continue to reject such requests, the prior post recommended submitting disputes over extradition to the Permanent Court of Arbitration. The proposed resolution is merely a call by Congress for such extradition.

 Various Measures Regarding U.S. Naval Station, Guantanamo Bay, Cuba

As discussed in a prior post, the U.S. has leased Guantanamo Bay from Cuba since 1903, and since September 11, 2001, one of the U.S. uses of that territory has been to house, interrogate and make adjudications of detainees from other countries. Since President Obama took office in 2009, he has sought to end the use of Guantanamo Bay for such detentions. Moreover, Cuba has made it known that it wants to have the U.S. leave Guantanamo Bay and return the territory to Cuba. Another prior post examined whether Cuba had a legal right to terminate the lease and recommended submission of any unresolved conflicts over this territory to the Permanent Court of Arbitration.

There has been considerable congressional opposition to ending the detention facilities at Guantanamo Bay and to ending the lease and returning the territory to Cuba. This is seen in the following six pending measures in this Session of Congress.

  1. Ban on U.S. Abandoning Lease of Guantanamo Bay, Cuba. This is the intent of H.R.654 “Naval Station Guantanamo Bay Protection Act” authored by Rep. David Jolly (Rep., FL) with 56 cosponsors. It would bar the U.S. from modifying, terminating, abandoning, or transferring said lease. It was referred to the House Committee on Foreign Affairs, which has not taken any action on the bill. This bill would limit the Administration’s discretion in negotiations over Guantanamo with Cuba, including obtaining a new lease with significantly higher rental fees.
  2. Ban on Transferring Guantanamo Bay Detainees to Other U.S. Facilities. Senator Kelly Ayotte (Rep., NH) with 27 cosponsors submitted S.165: “Detaining Terrorists to Protect America Act of 2015.” It was referred to the Senate Committee on Armed Services, which on February 12th approved the bill with an amendment in the nature of a substitute that would prohibit (i) the construction or modification of any U.S. facility to house certain individuals detained in Guantanamo Bay, Cuba, as of October 1, 2009; (ii) the transfer or release of certain detainees at Guantanamo Bay to other U.S. facilities and foreign countries; and (iii) judicial review of certain claims by said detainees. On 23rd February it was placed on the Senate’s Legislative Calendar.
  3. The companion bill with the same title in the House (H.R.401) was authored by Rep. Jackie Walorski (Rep., IN) with 38 cosponsors. It was referred to the House Committee on Armed Services, which has not taken any action on the bill.

Neither of these bills about transfer of detainees would have direct adverse effects on U.S. reconciliation efforts although it could complicate any negotiations over Guantanamo with Cuba.

  1. Ban on Aid to Certain Countries That Accept Transfer of Guantanamo Bay Detainees. S.778: “Guantanamo Bay Recidivism Prevention Act of 2015” would prohibit certain assistance for five years to a foreign country if: (1) the country received an individual who was released or transferred from Guantanamo Bay on or after February 1, 2015; and (2) after the date of such release or transfer, the individual is included in a report of individuals confirmed or suspected of returning to terrorist activities. The bill is authored by Senator Tom Cotton (Rep., AR) with 4 cosponsors and was referred to the Senate Committee on Foreign Relations, which has not taken any action on the bill.
  1. The companion bill in the House (H.R.1689) “To prohibit the provision of certain foreign assistance to countries receiving certain detainees transferred from United States Naval Station, Guantanamo Bay, Cuba” was authored by Rep. Ron DeSantis (Rep., FL) with 6 cosponsors. It was referred to the House Committee on foreign Affairs, which has not taken any action on the bill. Neither of these bills about foreign assistance would adversely affect U.S. negotiations with Cuba.
  1. Fund for Constructing and Improving Guantanamo Bay Detention Facilities. S.Con.Res.11 establishes the congressional budget for the federal government for FY 2016. S.Amdt.664 to this Concurrent Resolution was offered by Senator Tom Cotton (Rep., AR) to establish a reserve fund for constructing or improving detention facilities at Guantanamo Bay. On March 27th this amendment was ruled out of order.

Continuation of Radio Marti and Television Marti.

H.R.2323 “United States International Communications Reform Act of 2015” would reform the U.S. government agencies responsible for international communications, but in section 124(b) would not affect Radio Marti and Television Marti. The bill was offered by Rep. Edward Royce (Rep., CA) with 14 cosponsors. It was referred to the House Committee on Foreign Affairs, which on May 21st reported it with amendments to the full House.

This bill could be a minor irritant on advancing reconciliation as Cuba consistently has objected to these services.

 Imposing Sanctions on North Korea.

This is the subject of H.R.204 “North Korea Sanctions and Diplomatic Nonrecognition Act of 2015,” which was authored by Rep. Ileana Ros-Lehtinen (Rep., FL) with 17 cosponsors and was referred to the House committees on Ways and Means and on Foreign Affairs, the latter of which referred the bill to its Subcommittee on Asia and the Pacific. No action on the bill has been taken by either committee or by the subcommittee.

This bill is mentioned here for two reasons. First, Rep. Ros-Lehtinen, a Cuban-American, is a vigorous opponent of U.S.-Cuba reconciliation and conceivably would find ways to use the bill to oppose U.S.-Cuba reconciliation. Second, the bill’s proposed findings refer to the U.S. Treasury Department and the U.N. Security Council’s imposition of sanctions on North Korean shipping companies for attempting to import a concealed shipment of arms and related material from Cuba and to the U.S. telling the Security Council that Cuba had participated in a “cynical, outrageous and illegal attempt” to circumvent U.N. sanctions and had made “false claims” about the shipment.

Conclusion

U.S. citizens who support U.S.-Cuba reconciliation should contact their Senators and representatives in Congress to urge them to oppose the above measures, especially those–H.R.1782, S.1388 and H.R.2466— that would impose preconditions for such reconciliation.

A subsequent post will examine pending authorization and appropriation measures that relate to Cuba.

 

 

 

 

 

 

 

 

 

 

 

 

 

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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