Legal and Political Issues Regarding U.S. Rescinding Designation of Cuba as a “State Sponsor of Terrorism”

Under the December 17th U.S.-Cuba agreements, the U.S. is obligated to review whether the U.S. should rescind its designation of Cuba as a “State Sponsor of Terrorism” under U.S. law. This review is to be completed with a report to the President within six months (or by June 17, 2015). The President already has instructed Secretary of State John Kerry to “immediately launch” that review.

 Commentary by the Department of State

Secretary of State            John Kerry
Secretary of State John Kerry
Assist. Sec. State Roberta Jacobson
Assist. Sec. State    Roberta Jacobson

The same day Secretary of State Kerry announced that he already “had asked my team to initiate a review of Cuba’s designation as a State Sponsor of Terrorism.”

The next day, December 18th, Assistant Secretary of State, Bureau of Western Hemisphere Affairs, Roberta S. Jacobson, held a press briefing on the many issues raised by the U.S.-Cuba rapproachment. She said the Bureau had “begun already – the process that we need to do under the law on the question of the state sponsor of terrorism listing, which has been in place since 1982.”

The Assistant Secretary added, “we’re not going to prejudge the outcome of the process we’ve just undertaken. . . . We’re going to undertake this review. We’re going to take it where the facts lead us on this. . . . At the end of that process, were Cuba to be removed from the list, there are a series of things that get taken off, some forms of sanction that get taken off. Although in Cuba’s case, I will say there are some overlapping . . . of things that may have been part of the state sponsor of terrorism list, and it may subsequently have been part of the Libertad Act or other legislation that deals with Cuba.”

In addition, she said,“[T]he law is fairly specific. . . . We have to review the record of Cuba over the last six months and ensure that they have not been participants or supported acts of international terrorism over the last six months. We have to look at whether they have renounced the use of terrorism. We have to look at their ratification of international instruments against terrorism. . . . I would have to look and check to see if there are other things that are in the law. . . . We then have to send any report that has conclusions on those subjects [to the President for his approval and transmittal] to the Congress, where it has to remain for 45 days. It’s an informing of Congress, not a request for approval or denial. It’s just an informing.”

Another point on the legislative process for the hypothetical recommended termination of such a designation was made at the November 17th daily press briefing. The Departmental spokesperson said, “The relevant statutes also provide that . . . within 45 days after the receipt of the report from the President [deciding for rescission], the Congress would need to enact a joint resolution on the matter prohibiting this in order for it not to happen.” However, this statement is incomplete and, therefore, erroneous, as discussed below.  While joint resolutions like bills have to be passed by both houses of Congress, they then have to be submitted to the president for signature or veto. In this hypothetical situation, any such joint resolution would be vetoed by the president.

The Merits of Past Designations of Cuba as a “State Sponsor

This blog already has concluded that such designation is absurd, ridiculous, stupid and cowardly for 2009, 2010, 2011, 2011 (supplement), 2012,  2013, and 2013 (supplement). I believe that any rational person would come to the same conclusion as has the New York Times Editorial Board this October and December.

That, however, is not the end of the story.

Statute Regulating Rescission of a “State Sponsor” Designation

As Assistant Secretary Jacobson alluded to, under provisions of Section 6 (j) (4) of the Export Administration Act (50 U.S.C. § 2405(j)(4)) the following two alternative restrictions are imposed on any Administration’s rescission of any such designation.

First, the President may rescind such a designation by submitting, before the rescission takes effect, a report to Congress certifying that “(i) there has been a fundamental change in the leadership and policies of the government of the country concerned; [and] (ii) that government is not supporting acts of international terrorism; and (iii) that government has provided assurances that it will not support acts of international terrorism in the future.” This is not relevant for Cuba because there has not been “a fundamental change of leadership” in Cuba.

Second, and alternatively, the President may rescind such a designation by submitting to Congress, at least 45 days in advance, “a report justifying the rescission and certifying that (i) the government concerned has not provided any support for international terrorism during the preceding six-month period; and (ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.” Assistant Secretary Jacobson’s comments confirm that this is the relevant option for the Administration, and a future post will summarize concessions in the U.S.’ purported justifications for its prior designations that instead support the conclusion that Cuba ¨has provided assurances that it will not support acts of  international terrorism in the future.¨

Such a report to Congress is merely an “informing” function, as the Assistant Secretary mentioned. But if Congress disagrees with the President’s decision to remove a country from the list, it could seek to block the rescission through a bill or a joint resolution.

Given the Republicans control of both houses of the Senate (54 of 100 with 44 Democrats and 2 Independents) and the House (247 to 188 Democrats) in the 114th Congress (2015-2017) and the belligerent opposition of some Republicans like Senator Marco Rubio to the new U.S.-Cuba path to reconciliation, such a legislative attempt to block the removal, in my opinion, can be expected.

But any such attempt, by bill or joint resolution, has to be submitted to the president for approval or veto. Obama presumably would veto any such measure, thereby requiring under Article I, Section 7 of the Constitution each house of Congress to obtain a two-thirds vote to override the veto. The Republicans by themselves will not have enough votes to override. If the Republicans had total party unity in such an effort, they would need 13 Democratic Senators and 43 Democratic Representatives to join them to overturn such a presidential veto. I think it unlikely they could obtain those extra votes. Let us hope they are not able to obtain such a super majority. We should lobby the Democratic Senators and Representatives (and some Republicans, like Senator Flake of Arizona) not to do so.

Conclusion

Stay tuned for future developments on the issue of rescinding the U.S. designation of Cuba as a “State Sponsor of Terrorism.” Be ready to lobby senators and representatives to resist any efforts to countermand any rescission.

President Obama’s Strategic Timing of Announcement of U.S.-Cuba Reconciliation

With God’s leading or nudging the U.S. and Cuba to reconciliation, the timing of the announcement of that historic change on December 17th was due to more prosaic factors from the U.S. perspective.

Pressures for an announcement as soon as possible were several. The health of U.S. citizen, Alan Gross, was reportedly declining in a Cuban prison, and President Obama and Secretary of State John Kerry legitimately believed that reconciliation would be destroyed if he died in that prison. As we now know, the U.S. and Cuba had been engaged in secret negotiations for 18 months, and delaying the announcement ran the risk of a leak of the existence of the negotiations that would upset, if not destroy, the reconciliation. Less immediate was the upcoming Summit of the Americas in April 2015 with the U.S. needing to have a position on host country Panama’s invitation to Cuba to attend the Summit.

In addition, U.S. domestic political considerations pointed towards a December announcement before the Republican-controlled 114th Congress opened in early January and as soon as possible (the next day) after the adjournment of the 113th so that there would be no resulting interference with the completion of the many items of unfinished business of the current Congress. December also is the traditional time for exercise of presidential clemency (pardons and commutation of sentences), the latter of which was used for the release of the remaining three of the Cuban Five on December 17th.

All of these considerations suggest why the President on December 16th (the day before the announcement about Cuba) quietly signed the $1.1 trillion appropriation bill even though it contained a repeal of an important provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act regulating financial institutions that Senator Elizabeth Warren passionately resisted.  The President did not want a lack of funding to interfere with or torpedo the reconciliation.

Within a week of the announcement we learned that the U.S. GDP for the third quarter had increased 5.0%, the strongest quarterly performance in a decade, and the U.S. stock market reacted with a record close on December 23 with the Dow Jones Industrial Average at 18024.17, registering its 36th record close this year. Unemployment is below 6.0%. The FY 2014 deficit is below its 40-year average. The Affordable Care Act has reduced uninsured Americans by 25%, and overall health-care spending has slowed significantly. The U.S. Dollar is stronger against other world currencies. The federal government’s bailouts of banks and the auto industry that rescued the economy from a total collapse at the start of the Obama presidency were closed out with a net profit to the taxpayers of $15.4 billion. Low world oil prices help the American consumer and weaken regimes hostile to the U.S., especially Russia, Iran and Venezuela. An amazing economic performance! (Packer, A Pretty Good Year for Government, New Yorker (Dec. 23, 2014); Higgins, Oil’s Swift Fall Raises Fortunes of U.S. Abroad, N.Y. Times (Dec. 25, 2014).)

President Obama, using the “fourth quarter” analogy of his favorite sport of basketball, obviously has concluded that he would be engaged in a vigorous “fourth quarter” (the last two years of his eight years in office) to do as much as possible of what he believes to be in the national interest of our country. Indeed, at the first Cabinet meeting after the huge Republican victories in this year’s midterm election, Obama gave every Cabinet member a white card that said, “We are entering the fourth quarter, and really important things happen in the fourth quarter.” Timothy Egan, a New York Times’ columnist, says Obama has “been liberated by defeat” and “in finally learning how to use the tools of his office, Obama unbound is a president primed to make his mark.” He is “marching ahead of politicians fighting yesterday’s wars,” who are forced “to defend old-century policies, and rely on an aging base to do it.” Moreover, Obama now “has Pope Francis as a diplomatic co-conspirator,” leaving Republican opponents of Cuban reconciliation to try to lecture “the most popular man on the planet.”  (Osnos, In the Land of the Possible, New Yorker (Dec. 22 & 29, 2014); Eagan, Obama Unbound, N.Y. Times (Dec. 20, 2014).)

Finally the merits of reconciliation and these reflections on the timing of the announcement resurrect my personal support of the President. Given the Administration’s problems with the implementation of the Affordable Care Act and other administrative issues, I was beginning to think that Obama’s lack of prior administrative experience was a reason why he would not be the great President I expected him to be. Now, however, his achieving reconciliation with Cuba is a masterful demonstration of his intellectual, administrative and political skills.

Congratulations, Mr. President!