U.S. Entry Into Cuban War of Independence and Establishment of Protectorate of Cuba, 1898-1934

U.S. political clashes of 1898-1934 between advocates for and against U.S. imperialism is the subject of the new boook–The True Flag: Theodore Roosevelt, Mark Twain, and the Birth of American Empire (Henry Holt & Co. 2017)–by Stephen Kinzer. [1]

An important part of that early history is the U.S. decision to enter the second Cuban War of Independence in 1898 and convert it into what we in the U.S. call the Spanish-American War, the U.S. Senate’s ratification of the Treaty of Paris ending that war and documenting U.S. acquisition of Cuba, Puerto Rico, Hawaii, Guam and the Philippines and the U.S. establishment of a de facto protectorate of Cuba, 1898-1934.

Here are some of the book’s highlights about Cuba’s involvement in this drama.

Authorisation for U.S. Entry Into the Cuban War of Independence

After the February 15, 1898, explosion of the S.S. Maine battleship in Havana harbour and the subsequent, insistent calls of the Randolph Hearst press to “Remember the Maine,” there was no surprise when President William McKinley on April 11 made a passionate call for U.S. intervention. He said, “Forcible intervention of the [U.S.] as a neutral to stop [this war would be] in the cause of humanity and to put an end to the barbarities, bloodsheed, starvation, and horrible murders now existing there, and which the parties to the conflict are either unable or unwilling to stop or mitigate. . . . It is specially our duty [to intervene], for it is right at our door. . . . Surely the there was never a more righteous cause than this for any nation to ask for justice.” (Id. at 36-37.)

Eight days later (April 19), Senator Henry Cabot Lodge, Republican of Massachusetts, while emphasising that he did not want the U.S. to annex or colonize Cuba, introduced a resolution declaring that if Spain did not withdraw from Cuba, the U.S. would declare war. An anti-imperialist or anti-interventionist, Senator Henry Teller of Colorado, offered an amendment to the resolution to make that Lodge concession express. The amendment stated: “The people of the island of Cuba are, and of right ought to be, free and independent, and the [U.S.] hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, once that is accomplished, to leave the government and control of the island to its people.” Lodge acquiesced to the amendment, and as amended the resolution passed the Senate, 42-35 and the House 311-6; the next day President McKinley signed the resolution. (Id. at 38.)

Immediately thereafter, on April 24 and 25, Spain and the U.S. declared war against each other. (Ibid.)

Ending the Spanish-American War

The U.S. military forces actually entered the war on  June 10, and military hostilities ended on July 16 with a proclamation of peace on August 12. The Treaty of Paris of December 10, 1898, officially ended the war with Spain ceding to the U.S. the following: Cuba, Puerto Rico, Guam, Hawaii and the Philippines. (Id. at 61-66, 92.)

On February 6, 1899, the U.S. Senate, 57-27, ratified the Treaty of Paris. (Id. at 137.)

U.S. Establishes Its Conditions for the De Facto Protectorate of Cuba

Purusant to that Treaty and the terms of the Teller Amendment, the U.S. immediately assumed governance of Cuba as a de facto protectorate. Also almost immediately some in the U.S. government began to question the wisdom of the Teller Amendment’s commitment to transfer the governance and control of the island to its people.

A major reason for this attitude was the realisation that any popularly elected Cuban government would at least be partially black and a belief that they were not qualified to hold such positions. Indeeed, General Leonard Wood, the U.S. Governor-General of Cuba, described them as “only partially civilized.” (Id. at 137.)

The idea of amending or repealing the Teller Amendment, however, went nowhere. Instead, U.S. General James Wilson proposed that ¨Cuba be granted independence under a treaty that would ´practically bind Cuba . . . And put her destinies under our control.´¨ This approach was endorsed by President McKinley in his second inaugural address in March 1901: “The new Cuba . . .must . . . Be bound to us by ties of singular intimacy.” (Id.at 189.)

To that end U.S. Senator Orville Platt, chair of the Senate Committee on Cuban Relations, introduced a bill drafted by Vice President Theodore Roosevelt and Senators Henry Cabot Lodge and Secretary of War Elihu Root but known as the Platt Amendment that became law on March 2, 1901 as part of the Military Appropriations Act.  (Id.at 191-92.) It affirmed Cuba’s right to independence only on these conditions:

[a] Cuba “shall never ento any treaty or other contract with any foreign power or powers which will permit [them] to obtain by colonization or for military or naval purpose, or otherwise, lodgment in or control over any portion of said island;”

[b] “Cuba consents that the [U.S.] may exercise the right to intervene for the preservation of Cuban independence;”

[c] “Cuba will sell and lease to the [U.S.] land necessary for coaling or naval stations at certain points, to be agreed upon with the [U.S.] President,” which turned out to be the lease of Guantanamo Bay as discussed in prior posts.

Adoption of Cuban Constitution of 1901

Thereafter U.S. General Leonard Wood arranged for “the election of delegates to the [Cuban] constitutional convention” and told them “the constitution would have to guarantee an American ‘right of intervention.’ He ensured this would happen By bribing Cuban military officers and rebel leaders and by warning the delegates that failure to do so would put Cuba at the “not-so-tender mercies of the [U.S.] Congress.” As a result, on May 28, 1901, the delegates, 15 to 14, accepted these conditions for the Cuban constitution, which was adopted on December 25, 1901. (Id.at 190, 193.)

Cuba-American Treaty of 1903

These same conditions were reiterated in the Cuba-American Treaty of 1903, which was used to justify the Second Occupation of Cuba, 1906-1909, with future U.S. President and Supreme Court Justice, William Howard Taft, as Provisional Governor. (Id.at 193.)

Cuba-American Treaty of 1934

During the first term of President Franklin D. Roosevelt, the U.S. and Cuba concluded the Cuban-American Treaty of 1934 that eliminated the conditions of the Platt Amendment. (Id. at 236.)

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[1] Kinzer is an author, journalist and Senior fellow at the Watson Institute for Interntional and Political Affiars at Brown University. Here are two positive reviews of the book: Lind, From Isolation to Intervention: Teddy Roosevelt and Mark Twain square off over American imperialism, N.Y. Times (Jan. 29, 2017); Lears, How the US Began Its Empire, N.Y. Review of Books (Feb. 23, 2017).

Trump Administration Reviewing U.S. Policies Regarding Cuba

At the February 3 White House press conference, Press Secretary Sean Spicer said the Trump Administration was engaged in “a full review of all U.S. policies toward Cuba” with a focus on its human rights policies as part of the Administration’s “ensuring human rights for all citizens throughout the world.”

Such a comprehensive review has been anticipated. So far, however, no details have emerged as to how those policies might be changed.

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White House, Press Briefing by Press Secretary, Sean Spicer, 2/3/07, No. 8; Reuters, Trump Administration Reviewing Cuba Policy: White HOuse, N.Y. Times (Feb. 3, 2017).

Criticism of U.S.-Cuba Law Enforcement Agreement 

The head of New Jersey’s state police has criticized the two countries’ law enforcement agreement of January 16, 2017, because, he says, he has read the agreement and it does not require Cuba to extradite Joanne Chesimard (a/k/a Assata Shakur) to the U.S.[1]

After reviewing what we know about this woman, we will examine the police statement and provide commentary.

Chesimard/ Shakur

In the 1960s-1970s Chesimard, a U.S. citizen, was a member of the Black Panther Party and the Black Liberation Army in the U.S. In 1977 she was convicted in New Jersey state court for aiding and abetting first-degree murder, assault and battery of a police officer (New Jersey State Trooper Werner Foerster), assault with a dangerous weapon, assault with intent to kill, illegal possession of a weapon, and armed robbery during a gunfight on the New Jersey Turnpike in 1973.

She was sentenced to life in New Jersey state prison, but in 1979 she escaped and in 1984 traveled to Cuba. At some time thereafter President Fidel Castro granted her asylum, and she has been living there under the name Assata Shakur. She is now around 70 years old. The FBI has listed her as one of its “Most Wanted” and offered a reward of $1 million for her apprehension; the New Jersey Attorney General has offered to match that reward.

Since at least 1997 there have been various unsuccessful attempts by the U.S. government and others to obtain her extradition to the U.S.

Statement by New Jersey State Police Superintendent

The Superintendent Rick Fuentes’ January 18 statement reads as follows:

  • “On Monday, January 16, 2017, the White House signed a law enforcement pact with the government of Cuba that included the sharing of national security information on matters related to fighting terrorism and the scourge of the international narcotics trade. I have read this pact with great interest, as any aspect of the continued negotiations to normalize relations with Cuba impacts our continued advocacy to seek the return of Joanne Chesimard. Chesimard executed New Jersey State Trooper Werner Foerster in 1973 and fled to Cuba after escaping a New Jersey prison in 1979. She is most prominent among a rogue’s gallery of cop killers and domestic terrorists that have been given sanctuary by the Castro regime these past thirty years.”
  • With a continued sense of bewilderment and confusion not uncommon to the course of these negotiations, the pact does not address the return of: Joanne Chesimard; Victor Manuel Gerena, a member of Los Macheteros who was removed from the FBI Top Ten list one month ago; Charlie Hill, a member of the Republic of New Afrika, alleged to have killed a New Mexico state trooper in 1971; or, William Guillermo Morales, the murderous bomb-maker for the Puerto Rican separatist group, FALN.”
  • “Their omission from this agreement and from the negotiations-at-large is so glaring as to signal a clear intent by the Obama Administration to ignore these fugitives. By burning the last bridge to this Administration’s opportunity to gain their negotiated return, families who have long suffered the consequences of their terrorist acts and law enforcement everywhere in this country have been shown the back of the hand. An ignominious torch has been passed to the next president.”
  • “We are not deterred. I can say, unequivocally, that Governor Chris Christie, State Attorney General Chris Porrino and I remain resolute in our efforts to follow every political course leading to the return of Joanne Chesimard and the other remaining terrorist fugitives. We approach the next presidential administration with a renewed sense of optimism and moral superiority that justice will prevail.”

Comments

The Superintendent’s statements regarding Chesimard/Shakur are believed to be basically correct, and it is most understandable that the New Jersey State Police want her extradited to the U.S. and returned to New Jersey state prison.

The Superintendent says he has read the recent MOU in question and that it does not require Cuba to make that extradition. I have not been able to locate that MOU so cannot independently verify the validity of his statement. But for present purposes I will assume that his statement about the MOU is basically correct.

I assume, on the other hand, that the MOU does not contain a U.S. agreement to not continue to seek her extradition or a Cuban statement or promise not to extradite her. If it had, I am confident that the Superintendent would have so stated and raised the ante for his protest.

He also asserts that the subject of this requested extradition has not been raised by the U.S. in “the negotiations-at-large.” Although I have not been personally involved in those negotiations, I believe this to be a false statement. As noted in earlier posts, public reports indicate that the two countries’ respective requests for extraditions of criminals or suspects, which I believe includes the U.S. request regarding Chesimard/Shakur, have been the subjects of several such bilateral negotiating sessions since December 17, 2014.

As a result, I conclude that the parties have not been able to come to an agreement about such extraditions or about a judicial procedure for resolving any such disputes. Therefore, there apparently was no mention of the subject in the MOU in question.

Moreover, the Superintendent also fails to recognize a major legal issue regarding the requested Chesimard/Shakur extradition because of an extradition treaty between the two countries. Therefore, we will look at that treaty and the issue it raises regarding this possible extradition.

U.S.-Cuba Extradition Treaty.

As explained in an earlier post,[2] on March 2, 1905, the two countries entered into such a treaty, the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice.” Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926.

The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.” This obviously covers Chesimard/Shakur, who does not fall within the exception under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty,” unless she has been granted Cuban citizenship.

The long list of crimes covered by Article II, as amended, includes (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” This obviously covers the requested extradition discussed here.

Under Article VI of the original treaty, however, the requested country (Here, Cuba) is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.)

The only limitation on this exception is in Article VI itself, which states, “An attempt against the life of the head of a foreign government or against that of any member of his family when such attempt comprises the act either of murder, assassination, or poisoning, shall not be considered a political offense or an act connected with such an offense.” This exception, however, is not applicable to the case under consideration here.

Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) This exception seems to cover Chesimard/Shakur as discussed next.

The Treaty Issue Regarding Chesimard/Shakur

After fleeing to Cuba in 1984, at date unknown the Cuban government apparently granted her political asylum and perhaps Cuban citizenship. Assuming that to be the case, that appears to negate Cuba’s obligation under the treaty to extradite her to the U.S.

It is not known whether the Cuban government has the legal authority to revoke that grant of asylum (and of citizenship?) and whether it would do so in this case. However, after a bilateral negotiation session in Washington, D.C. in February 2015 Josefina Vidal, Cuba’s lead diplomat for these negotiations, said the issue of extraditing people between Cuba and the U.S. had been discussed many times in the past and that the two countries had signed a treaty on the topic in 1906 which has a clause such that it would not apply in cases involving political activities. “Therefore, Cuba has legitimately given political asylum to a small group of U.S. citizens, because we have reason to believe that they deserve this and that is how far we’ve gone. And when one grants political asylum, then you cannot get into these types of discussions.” She added that after the Cuban Revolution of 1959 the U.S. had not honored the treaty when Cuba asked the U.S. to extradite “members of the Cuban dictatorship who were responsible for terrible crimes.”[3]

In June 2016, the two countries held another negotiating session in Havana focused on counterterrorism cooperation, the subject of the January 16, 2017, MOU. Outsiders speculated that the meeting may have included discussions about a possible high-profile prisoner swap: U.S.-jailed Cuban spy Ana Belén Montes in exchange for Chesimard/Shakur). The State Department, however, has refused to confirm that such an exchange was being discussed. Instead the Department merely stated that the U.S. “continues to seek the return by Cuba of fugitives from US justice” and that the State Department “brings out the cases of fugitives to the Cuban Government to be settled and will continue to do so at every appropriate opportunity.” [4]

Therefore, unless there is some error in my analysis, the strong desire by many in New Jersey and elsewhere in the U.S. for this extradition appears to be a lost cause unless the Cuban government has the authority under its own laws to revoke the grant of asylum (and citizenship?) and chooses to exercise it. Or the Cuban government just decides to extradite her without changing her asylee or citizenship status.

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[1] Assoc. Press, With No Deal on Convicted Killer, Police Slam US-Cuba Pact, N.Y. Times (Jan. 20, 2017),‘Goodbye, Obama! NJ State Police slams president on the way out (Jan. 18?, 2017); New Jersey State Police, Colonel Rick Fuentes’ Response to the Recently Signed U.S./Cuban Law Enforcement Pact (Jan. 18?, 2017).

[2] Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015). Moreover, the “political offense” provision of the U.S.-Cuba treaty is not sui generis, but in fact is a common provision in other U.S. extradition treaties. (Ibid.; Extradition Has Become a Hot Topic for the United States, dwkcommentaries.com (July 25, 2016).

[3] U.S. and Cuba Hold Productive Second Round of Negotiations, dwkcommentaries.com (Mar. 6, 2015).

[4] U.S. and Cuba Discuss Counterterrorism Cooperation, dwkcommentaries.com (June 10, 2016).

Report for dwkcommentaries –2016 

This blog, which started on April 4, 2011, reports the following activity through December 31, 2016:

YEAR POSTS COMMENTS (by dwkcommentaries) VIEWS
2011 190        26  9,189
2012 179     170 51,164
2013   86     708 49,082
2014 138      47 58,602
2015 191      60 62,990
2016 149      55 56,831
TOTAL 933 1,066 287,858

The busiest day for 2016 and for all time was December 10, 2016, with 1,725 views. For 2016 as a whole the viewers came from 174 countries with most from the U.S.A. followed by the United Kingdom and Canada This blog has 639 followers (Facebook, 406; direct, 233).

The following were the most popular posts in 2016:

As indicated in detail in the Pages section on the left side of the home page, the posts and comments for 2011-2016 fall into the following categories (as stated in the Lists of Posts to dwkcommentaries-Topical):

  • Cuba [history and politics]
  • Education [my post-secondary education]
  • El Salvador [history and politics]
  • Law (Criminal Justice)
  • Law (International Criminal Court)
  • Law (Refugee & Asylum)
  • Law (Treaties)
  • Law (U.S. Alien Tort Statute)
  • Law (U.S. Torture Victims Protection Act)
  • Lawyering [my practice of law]
  • Miscellaneous
  • Personal [my personal background]
  • Religion [predominantly Christianity]
  • United States (History)
  • United States (Politics)

The blogger would appreciate receiving substantive comments on his posts, including corrections and disagreements.

 

 

 

New U.S. Statute Creates Another Exception to Foreign State (Sovereign) Immunity  

A controversial new federal statute—the Justice Against Sponsors of Terrorism Act (JASTA) –creates another exception to foreign state (sovereign) immunity in U.S. courts for certain claims regarding terrorism. Understanding this new exception first requires a look at the current law on such immunity and exceptions before we look at the new exception. This new exception, adopted by Congress’ overriding a presidential veto, has been described in the press as focused on 9/11 claims against Saudi Arabia, but it is not so limited. It also has generated a lot of controversy both before and after the congressional override, which will be examined in subsequent posts.

U.S. Law on Foreign State (Sovereign) Immunity

The underlying purpose of the U.S. statutes regarding immunity of foreign states in U.S. courts is put forth in 28 U.S.C. § 1602, which states:

  • “The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.”

The basic rule of immunity is simply stated in 28 U.S.C. § 1604: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” (Emphasis added.)

Preexisting General Exceptions to Foreign State (Sovereign) Immunity

The preexisting six general exceptions of such immunity are found in 28 U.S.C. § 1605 (a): (1) waiver of immunity; (2) certain cases relating to commercial activity; (3) certain cases relating to property in the U.S.; (4) certain cases for damage claims for torts committed in the U.S.; (5) certain cases relating to arbitration; and (6) certain admiralty cases.

 Preexisting Terrorism Exception to Foreign State (Sovereign) Immunity

The preexisting statutes in 28 U.S.C. § 1605A contained an exception to foreign state immunity for certain acts of terrorism. It provides there is no immunity for a foreign state designated by the U.S. as a “state sponsor of terrorism”[1] for claims for “money damages [by a U.S. national or a member of the U.S. armed forces or an employee or contractor of the U.S. government] . . . for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.”

New Terrorism Exception for Foreign State (Sovereign) Immunity

The Justice Against Sponsors of Terrorism Act (JASTA) (S.2040) (114th Cong., 2nd Sess.), which was passed by Congress on September 28 over a presidential veto, added a new terrorism exception to foreign state immunity in the U.S. Code’s Chapter on Foreign State Immunity: That new exception states as follows:

§ 1605B. Responsibility of foreign states for international terrorism against the United States”

“(a) Definition.—In this section, the term ‘international terrorism’—                         “(1) has the meaning given the term in section 2331 of title 18, United States            Code;[2] and “(2) does not include any act of war (as defined in that section).”[3]

“(b) Responsibility Of Foreign States.—A foreign state shall not be immune        from the jurisdiction of the courts of the United States in any case in which           money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by—“(1) an act of international terrorism in the United States; and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.”

“(c) Claims By Nationals Of The United States.—Notwithstanding section 2337(2) of title 18, [4] a national of the United States may bring a claim against a foreign state in accordance with section 2333 of that title if the foreign state would not be immune under subsection (b).

“(d) Rule Of Construction.—A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence.”

JASTA also provides in its section 5 a remedy for the U.S. Attorney General to seek a stay (postponement) of any case allowed under this new exception to foreign state immunity. It states as follows:

“SEC. 5. STAY OF ACTIONS PENDING STATE NEGOTIATIONS.”

“(a) Exclusive Jurisdiction.—The courts of the United States shall have exclusive jurisdiction in any action in which a foreign state is subject to the jurisdiction of a court of the United States under section 1605B of title 28, United States Code. . .       .”

“(b) Intervention.—The Attorney General may intervene in any action in which a foreign state is subject to the jurisdiction of a court of the United States under section 1605B of title 28, United States Code, . . . for the purpose of seeking a stay of the civil action, in whole or in part.

“(c) Stay.—

“(1) IN GENERAL.—A court of the United States may stay a proceeding                 against a foreign state if the Secretary of State certifies that the United States is   engaged in good faith discussions with the foreign state defendant concerning     the resolution of the claims against the foreign state, or any other parties as to       whom a stay of claims is sought.

(2) DURATION.—

(A) IN GENERAL.—A stay under this section may be granted for not more than 180 days.

(B) EXTENSION.—

(i) IN GENERAL.—The Attorney General may petition the court for an extension of the stay for additional 180-day periods.

(ii) RECERTIFICATION.—A court shall grant an extension under clause (i) if the Secretary of State recertifies that the United States remains engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought.”

Creation of New Cause of Action

In addition to the above provisions regarding a new exception to foreign state immunity, JASTA in section 2 has a lengthy statement of congressional findings and statement of its purpose and in section 4 creates the following new cause of action:

“SEC. 4. AIDING AND ABETTING LIABILITY FOR CIVIL ACTIONS REGARDING TERRORIST ACTS.

(a) In General.—Section 2333 of title 18, United States Code, [5] is amended by adding at the end the following:

(d) Liability.—

(1) DEFINITION.—In this subsection, the term ‘person’ has the meaning given   the term in section 1 of title 1. [6]

(2) LIABILITY.—In an action under subsection (a) for an injury arising from an   act of international terrorism committed, planned, or authorized by an             organization that had been designated as a foreign terrorist organization under   section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), [7] as of the   date on which such act of international terrorism was committed, planned, or       authorized, liability may be asserted as to any person who aids and abets, by   knowingly providing substantial assistance, or who conspires with the person       who committed such an act of international terrorism.”

Conclusion

As just shown, the subject of foreign state (sovereign) immunity is a complicated and interrelated area of U.S. statutory law even without attempting to examine the case law interpreting these statutes. The new statute with the new terrorism exception to such immunity has no specific mention of Saudi Arabia or of 9/11 claims. The controversy over this statute, before and after the congressional override of the presidential veto, will be examined in subsequent posts.

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[1] This blog frequently has commented on the U.S. law regarding “state sponsor of terrorism” as it applies to Cuba. See “Cuba: State Sponsor of Terrorism?” section in List of Posts to dwkcommentaries—Topical: Cuba.

[2] “International terrorism” is defined in 18 U.S.C. § 2331(1) as “activities that—(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;(B) appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.”

[3] “Act of war” is defined in 18 U.S.C. § 2331 (4) as “any act occurring in the course of—(A) declared war; (B) armed conflict, whether or not war has been declared, between two or more nations; or (C) armed conflict between military forces of any origin.”

[4] 18 U.S.C. § 2337(2) provides, “No action shall be maintained under section 2333 of this title against . . . (2) a foreign state, an agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under color of legal authority.”

[5] 18 U.S.C. § 2333 –Civil Remedies [for international terrorism] provides in subsection (a): “Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.”

[6] 1 U.S.C. § 1 defines “person” as including “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

 

 

[7] 8 U.S.C. § 1189 “Designation of foreign terrorist organization” grants the Secretary of State the authority to “designate an organization as a foreign terrorist organization . . . if the Secretary finds that—(A) the organization is a foreign organization; (B) the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title or terrorism (as defined in section 2656f(d)(2) of title 22), or retains the capability and intent to engage in terrorist activity or terrorism); and (C) the terrorist activity or terrorism of the organization threatens the security of [U.S.] nationals or the national security of the [U.S.].” https://www.law.cornell.edu/uscode/text/8/1189#fn002037

 

Fidel Castro’s Disingenuous Criticism of President Obama Over Nuclear Weapons

As reported in a prior post, Fidel Castro on August 12, 2016, criticized President Obama over his not apologizing to Japan over the 1945 U.S. dropping of atomic bombs on Hiroshima and Nagasaki. This criticism on its face was unfair. Although Obama in his recent speech at Hiroshima did not apologize, he recounted the horror of the bombing and stressed the need for the U.S. and other countries to eliminate nuclear weapons.

Fidel’s criticism of Obama also was disingenuous because near the end of what we call the Cuban Missile Crisis Fidel was urging the Soviet Union to conduct a nuclear attack on the U.S. and to keep its nuclear missiles in Cuba. Here are the details according to historians with access to original records.[1]

Background: The Bay of Pigs and the Cuban Missile Crisis

Let us first, however, set the stage for these remarks by Fidel from what is now known.

In April 1961 at the start of the third year of the Cuban Revolution’s operation of the Cuban government, a CIA-sponsored paramilitary group conducted an unsuccessful invasion of Cuba’s de Playa Girón (the Bay of Pigs).[2]

Soon thereafter, Fidel Castro told the Cuban people, “The result of aggression against Cuba will be the start of a conflagration of incalculable consequences, and they will be affected too. It will no longer be a matter of them feasting on us. They will get as good as they give.”

In July 1961, at a secret meeting of Fidel Castro and Nikita Khrushchev, the Premier of the Soviet Union agreed to Castro’s request to station nuclear missiles on the island to deter U.S. harassment of Cuba. Later that summer construction commenced on the sites for such missiles.

On October 14, 1962, an American U-2 spy plane making a high-altitude pass over Cuba photographed a Soviet medium-range ballistic missile being assembled for installation.[3]

On October 16, 1962, President Kennedy was briefed about the situation, and he immediately called together a group of advisors and officials. For nearly the next two weeks, the president and his team wrestled with this weighty crisis as did their counterparts in the Soviet Union.

On October 22, 1962, in a national television broadcast President Kennedy notified the American people about the presence of the missiles, explained his decision to enact a naval blockade of shipping to and from Cuba and made it clear that the U.S. was prepared to use military force if necessary to neutralize this perceived threat to U.S. national security.

On October 24, Soviet ships bound for Cuba neared the line of U.S. vessels enforcing the blockade, but stopped short of the blockade.

On October 26, Khrushchev sent a message to Kennedy offering to remove the Cuban missiles in exchange for a promise by U.S. leaders not to invade Cuba. The letter stated, “Let us then display statesmenlike wisdom. I propose: we, for our part, will declare that our ships bound for Cuba are not carrying any armaments. You will declare that the United States will not invade Cuba with its troops and will not support any other forces which might intend to invade Cuba. Then the necessity for the presence of our military specialists in Cuba will be obviated.”

The following day, the Soviet leader sent a second letter proposing that the Soviets would dismantle its missiles in Cuba if the Americans removed their missile installations in Turkey.

The Kennedy administration decided to accept the terms of the first letter, and on October 28, Robert F. Kennedy, the Attorney General, hand delivered to the Soviet Ambassador in Washington the administration’s letter accepting the terms of the first message. (The administration officially ignored the second letter, but privately agreed to withdraw U.S. missiles from Turkey.)

On October 28, the immediate crisis drew to a close with a joint U.S. and Soviet announcement of the agreement.

On November 20, 1962, after all Soviet offensive missiles and light bombers had been withdrawn from Cuba, the blockade was formally ended.

Fidel’s Urging Nuclear Armageddon and Nuclear Missiles in Cuba

In the midst of this crisis Fidel strenuously objected to the Soviets removing nuclear missiles from Cuba and pleaded for those missiles to remain on the island. “Castro fumed. He had been bypassed in negotiations between the two superpowers. Set on keeping the nuclear warheads [on the island], he began to chafe at his handlers in Moscow.”

On October 26, Castro summoned the Soviet Ambassador, Aleksandr Alekseev, to the Cuban command post. Fidel could not understand why Soviet troops in Cuba were sitting on their hands while American planes were flying over the island with impunity. He urged them to start shooting at U-2 spy planes with surface-to-air missiles and suggested that Cuban troops should begin firing on low-flying planes with antiaircraft guns, contrary to Soviet wishes. Alekseev promised to relay Castro’s complaints to the Kremlin.

Very early the next day, October 27, Castro, unaware of Kennedy and Khrushchev’s progress toward a deal, decided to send a cable to Khrushchev, encouraging him to use his nuclear weapons to destroy the United States in the event of an invasion of Cuba. At 3:00 a.m., he arrived at the Soviet Embassy in Havana and told Ambassador Alekseev that they should go into the bunker beneath the embassy because a U.S. attack was imminent. According to declassified Soviet cables, a groggy but sympathetic Alekseev agreed, and soon they were set up underground with Castro dictating and aides transcribing and translating a letter.

Castro became frustrated, uncertain about what to say. After nine drafts, with the sun rising, Alekseev finally confronted Castro: are you asking Comrade Khrushchev to deliver a nuclear strike on the U.S.? Castro responded, “If they attack Cuba, we should wipe them off the face of the earth!” Alekseev was shocked, but he dutifully assisted Castro in fine-tuning the 10th and final draft of the cable and then cabled it to Moscow.

That cable stated that in the event of an American invasion, “the danger that that aggressive policy poses for humanity is so great that following that event the Soviet Union must never allow the circumstances in which the imperialists could launch the first nuclear strike against it.” A U.S. invasion of Cuba “would be the moment to eliminate such danger forever through an act of clear, legitimate defense however harsh and terrible the solution would be, for there is no other.”

Premier Khrushchev, according to his son and biographer, received the Castro cable in the midst of a tense leadership meeting and shouted, “This is insane; Fidel wants to drag us into the grave with him!” Khrushchev had not understood that Castro believed that Cuba was doomed, that war was inevitable, and that the Soviets should transform Cuba from a mere victim into a world martyr.

To calm Castro down, Khrushchev in early November sent Soviet Deputy Prime Minister Anastas Mikoyan to Havana. Mikoyan initially told Castro he could keep the tactical nukes that had escaped U.S. notice. On November 20, Castro instructed Cuba’s U.N. ambassador to tell the world that Cuba possessed tactical nuclear warheads, but that announcement was never made because Mikoyan said all Soviet missiles had to be removed from the island.

This rescission happened on November 22 after Mikoyan on his own had concluded that Castro could not be trusted and that the USSR could not control Cuba. Mikoyan told Castro that a Soviet law — which did not exist — banned a permanent transfer to the Cubans. Fidel responded, “So you have a law that prohibits transfer of tactical nuclear weapons to other countries? It’s a pity. And when are you going to repeal that law?” Mikoyan merely said, “We will see.”

Conclusion

When, Fidel, did you offer an apology for your 1962 efforts to threaten the United States and the world with nuclear Armageddon? You are not a wizened guru of world peace.

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[1] Bright & Lang, How Castro Held the World Hostage, N.Y. Times (Oct. 25, 2012); Bright & Lang, The Armageddon Letters: Kennedy/Khrushchev/Castro in the Cuban MIssile Crisis (2012); Mikoyan & Savranskaya (ed.), The Soviet Cuban Missile Crisis: Castro, Mikoyan, Kennedy, Khrushchev, and the Missiles (2012); Cuban Missile Crisis’ Untold Story: Casto Almost Kept Nuclear Warheads on the Island, Huff. Post (Oct. 15, 2012). James G. Blight and Janet M. Lang are professors at the Balsillie School of International Affairs (Waterloo, Ontario, Canada) and the authors of “The Armageddon Letters: Kennedy/Khrushchev/Castro in the Cuban Missile Crisis.” Many of the documents mentioned above have been donated to George Washington University’s National Security Archive by the son of Anastas Mikoyan, Sergo Mikoyan, who with the Archive’s researcher, Svetlana Savranskaya, co-authored the previously mentioned “The Soviet Cuba Missile Crisis.”

 

 

 

 

 

 

 

[2] Invasion of Bar of Pigs, Wikipedia. https://en.wikipedia.org/wiki/Bay_of_Pigs_Invasion

 

[3] Cuban Missile Crisis, History, http://www.history.com/topics/cold-war/cuban-missile-crisis

Nikita– https://en.wikipedia.org/wiki/Nikita_Khrushchev

 

President Obama and Others Call for Republicans To Stop Backing Donald Trump

On August 2 at the White House President Obama said Donald Trump was “unfit to serve as president” and urged the leaders of the Republican Party to withdraw their backing for his candidacy.   This comment was part of a lengthy response to a reporter’s question at a joint press conference with Prime Minister Lee of Singapore. Many others have been voicing similar comments.

President Obama’s Statement[1]

President Obama
President Obama

“I think the Republican nominee is unfit to serve as President.  I said so last week, and he keeps on proving it.  The notion that he would attack a Gold Star family that had made such extraordinary sacrifices on behalf of our country, the fact that he doesn’t appear to have basic knowledge around critical issues in Europe, in the Middle East, in Asia, means that he’s woefully unprepared to do this job.”

“And this is not just my opinion. . . . [There also have been] repeated denunciations of his statements by leading Republicans, including the Speaker of the House and the Senate Majority Leader, and prominent Republicans like John McCain. . . . [They] have to ask themselves is, if you are repeatedly having to say in very strong terms that what he has said is unacceptable, why are you still endorsing him?  What does this say about your party that this is your standard bearer?  This isn’t a situation where you have an episodic gaffe.  This is daily, and weekly, where they are distancing themselves from statements he’s making.  There has to be a point in which you say, this is not somebody I can support for President of the United States, even if he purports to be a member of my party.”

“And the fact that that has not yet happened makes some of these denunciations ring hollow.  I don’t doubt their sincerity.  I don’t doubt that they were outraged about some of the statements that Mr. Trump and his supporters made about the Khan family.  But there has to come a point at which you say somebody who makes those kinds of statements doesn’t have the judgment, the temperament, the understanding to occupy the most powerful position in the world.”

“This “is different than just having policy disagreements.  I recognize that they all profoundly disagree with myself or Hillary Clinton on tax policy or on certain elements of foreign policy.  But there have been Republican Presidents with whom I disagreed with, but I didn’t have a doubt that they could function as President.  I think I was right, and Mitt Romney and John McCain were wrong on certain policy issues, but I never thought that they couldn’t do the job.  And had they won, I would have been disappointed, but I would have said to all Americans . . . this is our President, and I know they’re going to abide by certain norms and rules and common sense, will observe basic decency, will have enough knowledge about economic policy and foreign policy and our constitutional traditions and rule of law that our government will work, and then we’ll compete four years from now to try to win an election.”

“But that’s not the situation here.  And that’s not just my opinion; that is the opinion of many prominent Republicans.  There has to come a point at which you say, enough.  And the alternative is that the entire party, the Republican Party, effectively endorses and validates the positions that are being articulated by Mr. Trump. . . . [But] I don’t think that actually represents the views of a whole lot of Republicans.”

Others’ Comments About Trump

Meg Whitman
Meg Whitman

Similar thoughts were offered the same day by a prominent Republican and Hewlett Packard executive, Meg Whitman. Saying that Mr. Trump was “a dishonest demagogue” who could lead the country “on a very dangerous journey,” Whitman announced that she supported Hillary Clinton, including making a substantial donation to her campaign. Whitman also stated that she “absolutely” stood by her comments at a private gathering of Republican donors this year comparing Mr. Trump to Hitler and Mussolini.[2]

Richard Hanna
Richard Hanna

Representative Richard Hanna, Republican of New York, who called Mr. Trump “unfit to serve.” The Congressman added, “I was stunned by the callousness of his comments [about the Kahns]. I think Trump is a national embarrassment. Is he really the guy you want to have the nuclear codes?” The Representative also announced that he was planning to vote for Mrs. Clinton in the November election.[3]

Newt Gingrich, the former Republican Speaker of the House and a loyal Trump supporter said,

Former House speaker Newt Gingrich, one of Trump’s most loyal defenders, warned that his friend was in danger of throwing away the election and helping to make Democratic nominee Hillary Clinton president unless he quickly changes course. Said Gingrich, “The current race is which of these two is the more unacceptable, because right now neither of them is acceptable. Trump is helping her to win by proving he is more unacceptable than she is.” More generally “a feeling of despair and despondence . . . [has fallen] over the Republican establishment.” [4a]

Other advocates for Republicans to withdraw their endorsements and support for Mr. Trump were a Wall Street Journal editor, as discussed in a prior post; and the editorial board of the New York Times[4] and the Washington Post;[5] conservative columnist Michael Gerson; [6] conservative author and pubic servant, Robert Kagan;[7] University of Chicago Professor Harold Pollack;[8] and many other Republicans.[9]

From France came this comment by President François Hollande. He said Mr. Trump’s comments on the Khan family were “hurtful and humiliating” and his “excesses end up making you feel like you want to retch.”[10]

 Trump’s Reactions

Mr. Trump’s response to all this negative news? More of the same. On August 2 he said he had no regrets about his clash with the Khan family ; he declined to endorse for re-election several Republicans who had criticized him, including the House speaker, Paul D. Ryan of Wisconsin, and Senator John McCain of Arizona, who both face primaries this month.; and he had harsh words for Republican Senator Kelly Ayotte of New Hampshire, who had criticized his treatment of the Khans.[11]

The Republican vice presidential candidate, Mike Pence, however, on August 3 endorsed his “longtime friend” and a “strong conservative leader.” Paul Ryan. According to Pence, he had discussed his endorsement of Ryan with Trump on Wednesday morning and Trump had “strongly encouraged me to endorse Paul Ryan in next Tuesday’s primary.” [11a]

What will Trump now say about the federal judge of Mexican heritage, who on August 2 denied Trump’s motion to dismiss the case alleging that he had “knowingly participated in a scheme to defraud” with respect to Trump University. Instead, the judge ruled that this was an issue of fact that had to be resolved at trial.[12]

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[1] White House, Remarks by President Obama and Prime Minister Lee of Singapore at Joint Press Conference (Aug, 2, 2016); Shear, Obama Says Republicans Should Withdraw Support for TrumpN.Y. Times (Aug. 2, 2016). 

[2] Meg Whitman, Calling Donald Trump a ‘Demagogue,’ Will Support Hillary Clinton for President, N.Y. Times (Aug. 2, 2016).

[3] Burns, House Republican Backs Hillary Clinton, Calling Donald Trump ‘Unfit to Service,” N.Y. Times (Aug. 2, 2016).

[4] Editorial, Mr. Trump and Spineless Republicans, N.Y. Times (Aug. 2, 2016).

[4a] Rucker & Balz, GOP reaches ‘new level of panic’ over Trump’s candidacy, Wash. Post (Aug. 3, 2016), https://www.washingtonpost.com/politics/gop-reaches-new-level-of-panic-over-trumps-candidacy/2016/08/03/de461880-5988-11e6-831d-0324760ca856_story.html?hpid=hp_hp-top-table-main_gop-120pm%3Ahomepage%2Fstory.

[5] Editorial, Donald Trump is a unique threat to American democracy, Wash. Post (July 22, 2016); Editorial, Is the G.O.P. turning on Mr. Trump?, Wash. Post (Aug.1, 2016) ttps://www.washingtonpost.com/opinions/is-the-gop-turning-on-mr-trump/2016/08/01/70b0a02c-581d-11e6-9aee-8075993d73a2_story.html.

[6] Gerson, Dear Republican leaders: it’s not too late to dump Trump, Wash. Post (Aug. 1, 2016), https://www.washingtonpost.com/opinions/republican-leaders–its-not-too-late-to-repudiate-trump/2016/08/01/6e9db5b4-5812-11e6-831d-0324760ca856_story.html?tid=hybrid_collaborative_1_na.

[7] Kagan, There is something very wrong with Donald Trump, Wash, Post (Aug. 1, 2016), https://www.washingtonpost.com/opinions/there-is-something-very-wrong-with-donald-trump/2016/08/01/73809c72-57fe-11e6-831d-0324760ca856_story.html?tid=a_inl.

[8] Pollack, Joe McCarthy was brought down by attacks on his decency. Trump will lose the same way, Wash. Post (Aug. 1, 2016), https://www.washingtonpost.com/posteverything/wp/2016/08/01/joe-mccarthy-was-brought-down-by-attacks-on-his-decency-trump-will-lose-the-same-way/?tid=a_inl.

[9] Blake, A former Christie aide is latest Republican to back Clinton, and the list is growing, Wash. Post (Aug. 2, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/06/30/heres-the-growing-list-of-big-name-republicans-supporting-hillary-clinton/.

[10] Breeden, France’s President Says Trump’s ‘Excesses’ Make People ‘Want to Retch,’ N.Y. times (Aug. 3, 2016) . http://www.nytimes.com/2016/08/04/world/europe/francois-hollande-donald-trump.html?ref=world&_r=0.

[11] Burns, Ignoring Advice, Donald Trump Presses Attacks on Khan Family and G.O.P. Leaders, N.Y. Times (Aug. 2, 2016) http://www.nytimes.com/2016/08/03/us/politics/donald-trump-gop.html?rref=collection%2Fsectioncollection%2Fus&action=click&contentCollection=us&region=rank&module=package&version=highlights&contentPlacement=2&pgtype=sectionfront; Corasanti, Donald Trump Refuses to Endorse Paul Ryan and John McCain, N.Y. Times (Aug. 2, 2016), http://www.nytimes.com/2016/08/03/us/politics/donald-trump-refuses-to-endorse-paul-ryan-and-john-mccain.html?ref=politics.

[11a] Johnson, Mike Pence ‘strongly’ endorses Paul Ryan, as Trump refuses to do the same, Wash. Post (Aug. 3, 2016),https://www.washingtonpost.com/news/post-politics/wp/2016/08/03/mike-pence-strongly-endorses-paul-ryan-as-trump-refuses-to-do-the-same/?hpid=hp_hp-top-table-main_pence-2pm%3Ahomepage%2Fstory.

[12] Eder, Federal Judge Allows Suit Against Trump University to Proceed, N.Y. Times Aug. 2, 2016) http://www.nytimes.com/2016/08/03/us/politics/trump-university-case.html?