Obama: “Renewing the Mandela Legacy and Promoting Active Citizenship in a Changing World”

On July 17, the day before the centennial of Nelson Mandela’s birthday, Barack Obama delivered the 16th annual  Nelson Mandela Lecture in Johannesburg, South Africa to a crowd of 15,000 in a football (soccer) stadium (the Wanderers Stadium) and to a worldwide livestream audience of millions, including this blogger. The lecture’s title: “Renewing the Mandela Legacy and Promoting Active Citizenship in a Changing World.” [1] Below are photographs of a poster for the lecture and of Obama giving the lecture.

 

 

 

 

 

The Lecture[2]

The lecture weaved the life and legacy of Mandela into an overview of world history from his birth in 1918 to the late 20th century and early 21st century to the current situation. Here is an abridged version of that lecture; the full text is available on the websites listed in the last footnote.

The World of 1918

The lecture started with a dramatic picture of  the changes in the world from 1918, the year of Mandela’s birth, when there “was no reason to believe that a young black boy at this time, in this place, could in any way alter history.”

The World of the Late 20th Century

The lecture then moved to the “the remarkable transformations” of the world by the end of the 20th century and Mandela’s “long walk towards freedom and justice and equal opportunity . . . [which] came to embody the universal aspirations of dispossessed people all around the world, their hopes for a better life, the possibility of a moral transformation in the conduct of human affairs.”

When Mandela emerged from prison in 1990, It “seemed as if the forces of progress were on the march, that they were inexorable. Each step he took, you felt this is the moment when the old structures of violence and repression and ancient hatreds that had so long stunted people’s lives and confined the human spirit – that all that was crumbling before our eyes. And then as Madiba guided this nation through negotiation painstakingly, reconciliation, its first fair and free elections; as we all witnessed the grace and the generosity with which he embraced former enemies, the wisdom for him to step away from power once he felt his job was complete, . . .  we understood it was not just the subjugated, the oppressed who were being freed from the shackles of the past. The subjugator was being offered a gift, being given a chance to see in a new way, being given a chance to participate in the work of building a better world.”

“And during the last decades of the 20th century, the progressive, democratic vision that Nelson Mandela represented in many ways set the terms of international political debate. It doesn’t mean that vision was always victorious, but it set the terms, the parameters; it guided how we thought about the meaning of progress, and it continued to propel the world forward. Yes, there were still tragedies – bloody civil wars from the Balkans to the Congo. Despite the fact that ethnic and sectarian strife still flared up with heartbreaking regularity, despite all that as a consequence of the continuation of nuclear détente, and a peaceful and prosperous Japan, and a unified Europe anchored in NATO, and the entry of China into the world’s system of trade – all that greatly reduced the prospect of war between the world’s great powers. And from Europe to Africa, Latin America, Southeast Asia, dictatorships began to give way to democracies. The march was on. A respect for human rights and the rule of law, enumerated in a declaration by the United Nations, became the guiding norm for the majority of nations, even in places where the reality fell far short of the ideal. Even when those human rights were violated, those who violated human rights were on the defensive.”

The World of the Early 21st Century

In more recent years, however, “we now see much of the world threatening to return to an older, a more dangerous, a more brutal way of doing business.” We have to recognize that “the previous structures of privilege and power and injustice and exploitation never completely went away” while “around the world, entire neighborhoods, entire cities, entire regions, entire nations have been bypassed. In other words, for far too many people, the more things have changed, the more things stayed the same.”

“The result of all these trends has been an explosion in economic inequality. . . . In every country just about, the disproportionate economic clout of [many of] those at the top has provided these individuals with wildly disproportionate influence on their countries’ political life and on its media; on what policies are pursued and whose interests end up being ignored. . . . A decent percentage [of them, however,] consider themselves liberal in their politics, modern and cosmopolitan in their outlook.”

“But what’s nevertheless true is that in their business dealings, many titans of industry and finance are increasingly detached from any single locale or nation-state, and they live lives more and more insulated from the struggles of ordinary people in their countries of origin.” Nevertheless, “too often, these decisions are also made without reference to notions of human solidarity – or a ground-level understanding of the consequences that will be felt by particular people in particular communities by the decisions that are made.”

“Which is why, at the end of the 20th century, while some Western commentators were declaring the end of history and the inevitable triumph of liberal democracy and the virtues of the global supply chain, so many missed signs of a brewing backlash – a backlash that arrived in so many forms. It announced itself most violently with 9/11 and the emergence of transnational terrorist networks, fueled by an ideology that perverted one of the world’s great religions and asserted a struggle not just between Islam and the West but between Islam and modernity, and an ill-advised U.S. invasion of Iraq didn’t help, accelerating a sectarian conflict.”

“Within the United States, within the European Union, challenges to globalization first came from the left but then came more forcefully from the right, as you started seeing populist movements – which, by the way, are often cynically funded by right-wing billionaires intent on reducing government constraints on their business interests – these movements tapped the unease that was felt by many people who lived outside of the urban cores; fears that economic security was slipping away, that their social status and privileges were eroding, that their cultural identities were being threatened by outsiders, somebody that didn’t look like them or sound like them or pray as they did.”

“Perhaps more than anything else, the devastating impact of the 2008 financial crisis, in which the reckless behavior of financial elites resulted in years of hardship for ordinary people all around the world, made all the previous assurances of experts ring hollow – all those assurances that somehow financial regulators knew what they were doing, that somebody was minding the store, that global economic integration was an unadulterated good. . . . But the credibility of the international system, the faith in experts in places like Washington or Brussels, all that had taken a blow.”

The Current World Situation

A politics of fear and resentment and retrenchment began to appear, and that kind of politics is now on the move. It’s on the move at a pace that would have seemed unimaginable just a few years ago. I am not being alarmist, I am simply stating the facts. Look around. Strongman politics are ascendant suddenly, whereby elections and some pretense of democracy are maintained – the form of it – but those in power seek to undermine every institution or norm that gives democracy meaning. In the West, you’ve got far-right parties that oftentimes are based not just on platforms of protectionism and closed borders, but also on barely hidden racial nationalism. Many developing countries now are looking at China’s model of authoritarian control combined with mercantilist capitalism as preferable to the messiness of democracy. Who needs free speech as long as the economy is going good? The free press is under attack. Censorship and state control of media is on the rise. Social media – once seen as a mechanism to promote knowledge and understanding and solidarity – has proved to be just as effective promoting hatred and paranoia and propaganda and conspiracy theories.” (Emphases added.)

“So on Madiba’s 100th birthday, we now stand at a crossroads – a moment in time at which two very different visions of humanity’s future compete for the hearts and the minds of citizens around the world. Two different stories, two different narratives about who we are and who we should be. How should we respond?”

“Should we see that wave of hope that we felt with Madiba’s release from prison, from the Berlin Wall coming down – should we see that hope that we had as naïve and misguided? Should we understand the last 25 years of global integration as nothing more than a detour from the previous inevitable cycle of history – where might makes right, and politics is a hostile competition between tribes and races and religions, and nations compete in a zero-sum game, constantly teetering on the edge of conflict until full-blown war breaks out?”

I believe in Nelson Mandela’s vision. I believe in a vision shared by Gandhi and [Dr. Martin Luther King, Jr.], and Abraham Lincoln. I believe in a vision of equality and justice and freedom and multi-racial democracy, built on the premise that all people are created equal, and they’re endowed by our creator with certain inalienable rights. And I believe that a world governed by such principles is possible and that it can achieve more peace and more cooperation in pursuit of a common good.” (Emphasis added.)

“I believe we have no choice but to move forward; that those of us who believe in democracy and civil rights and a common humanity have a better story to tell. And I believe this not just based on sentiment, I believe it based on hard evidence.”

“The fact that the world’s most prosperous and successful societies, the ones with the highest living standards and the highest levels of satisfaction among their people, happen to be those which have most closely approximated the liberal, progressive ideal that we talk about and have nurtured the talents and contributions of all their citizens.” (Emphasis added.)

“The fact that authoritarian governments have been shown time and time again to breed corruption, because they’re not accountable; to repress their people; to lose touch eventually with reality; to engage in bigger and bigger lies that ultimately result in economic and political and cultural and scientific stagnation. Look at history.”

“The fact that countries which rely on rabid nationalism and xenophobia and doctrines of tribal, racial or religious superiority as their main organizing principle, the thing that holds people together – eventually those countries find themselves consumed by civil war or external war.”

“The fact that technology cannot be put back in a bottle, so we’re stuck with the fact that we now live close together and populations are going to be moving, and environmental challenges are not going to go away on their own, so that the only way to effectively address problems like climate change or mass migration or pandemic disease will be to develop systems for more international cooperation, not less.”

“We have a better story to tell. But to say that our vision for the future is better is not to say that it will inevitably win. Because history also shows the power of fear. History shows the lasting hold of greed and the desire to dominate others in the minds of men. Especially men. History shows how easily people can be convinced to turn on those who look different, or worship God in a different way. So if we’re truly to continue Madiba’s long walk towards freedom, we’re going to have to work harder and we’re going to have to be smarter. We’re going to have to learn from the mistakes of the recent past. And so in the brief time remaining, let me just suggest a few guideposts for the road ahead, guideposts that draw from Madiba’s work, his words, the lessons of his life.” (Emphasis added.)

Guideposts for the Future

“First, Madiba shows those of us who believe in freedom and democracy we are going to have to fight harder to reduce inequality and promote lasting economic opportunity for all people.” (Emphasis added.)

“I don’t believe in economic determinism. Human beings don’t live on bread alone. But they need bread. And history shows that societies which tolerate vast differences in wealth feed resentments and reduce solidarity and actually grow more slowly; and that once people achieve more than mere subsistence, then they’re measuring their well-being by how they compare to their neighbors, and whether their children can expect to live a better life. And when economic power is concentrated in the hands of the few, history also shows that political power is sure to follow – and that dynamic eats away at democracy. Sometimes it may be straight-out corruption, but sometimes it may not involve the exchange of money; it’s just folks who are that wealthy get what they want, and it undermines human freedom.” (Emphases added.)

“Madiba understood this. This is not new. He warned us about this. He said: ‘Where globalization means, as it so often does, that the rich and the powerful now have new means to further enrich and empower themselves at the cost of the poorer and the weaker, [then] we have a responsibility to protest in the name of universal freedom.’ So if we are serious about universal freedom today, if we care about social justice today, then we have a responsibility to do something about it. And I would respectfully amend what Madiba said. I don’t do it often, but I’d say it’s not enough for us to protest; we’re going to have to build, we’re going to have to innovate, we’re going to have to figure out how do we close this widening chasm of wealth and opportunity both within countries and between them.” (Emphases added.)

“How we achieve this is going to vary country to country, and I know your new president is committed to rolling up his sleeves and trying to do so. But we can learn from the last 70 years that it will not involve unregulated, unbridled, unethical capitalism. It also won’t involve old-style command-and-control socialism form the top. That was tried; it didn’t work very well. For almost all countries, progress is going to depend on an inclusive market-based systemone that offers education for every child; that protects collective bargaining and secures the rights of every worker that breaks up monopolies to encourage competition in small and medium-sized businesses; and has laws that root out corruption and ensures fair dealing in business; that maintains some form of progressive taxation so that rich people are still rich but they’re giving a little bit back to make sure that everybody else has something to pay for universal health care and retirement security, and invests in infrastructure and scientific research that builds platforms for innovation.” (Emphases added.)

“You don’t have to take a vow of poverty just to say, ‘Well, let me help out and let a few of the other folks – let me look at that child out there who doesn’t have enough to eat or needs some school fees, let me help him out. I’ll pay a little more in taxes. It’s okay. I can afford it.’ What an amazing gift to be able to help people, not just yourself.”

“It involves promoting an inclusive capitalism both within nations and between nations. And as we pursue, for example, the Sustainable Development Goals,[3] we have to get past the charity mindset. We’ve got to bring more resources to the forgotten pockets of the world through investment and entrepreneurship, because there is talent everywhere in the world if given an opportunity.”

“When it comes to the international system of commerce and trade, it’s legitimate for poorer countries to continue to seek access to wealthier markets. . . . It’s also proper for advanced economies like the United States to insist on reciprocity from nations like China that are no longer solely poor countries, to make sure that they’re providing access to their markets and that they stop taking intellectual property and hacking our servers.”

“While the outsourcing of jobs from north to south, from east to west, while a lot of that was a dominant trend in the late 20th century, the biggest challenge to workers in countries like mine today is technology. And the biggest challenge for your new president when we think about how we’re going to employ more people here is going to be also technology, because artificial intelligence is here and it is accelerating, and you’re going to have driverless cars, and you’re going to have more and more automated services, and that’s going to make the job of giving everybody work that is meaningful tougher, and we’re going to have to be more imaginative, and the pact of change is going to require us to do more fundamental reimagining of our social and political arrangements, to protect the economic security and the dignity that comes with a job. It’s not just money that a job provides; it provides dignity and structure and a sense of place and a sense of purpose. And so we’re going to have to consider new ways of thinking about these problems, like a universal income, review of our workweek, how we retrain our young people, how we make everybody an entrepreneur at some level. But we’re going to have to worry about economics if we want to get democracy back on track. ‘

“Second, Madiba teaches us that some principles really are universal – and the most important one is the principle that we are bound together by a common humanity and that each individual has inherent dignity and worth.” (Emphasis added.)

 “Now, it’s surprising that we have to affirm this truth today: . . . that black people and white people and Asian people and Latin American people and women and men and gays and straights, that we are all human, that our differences are superficial, and that we should treat each other with care and respect. . . . We’re seeing in this recent drift into reactionary politics, that the struggle for basic justice is never truly finished. So we’ve got to constantly be on the lookout and fight for people who seek to elevate themselves by putting somebody else down. . . . we have to resist the notion that basic human rights like freedom to dissent, or the right of women to fully participate in the society, or the right of minorities to equal treatment, or the rights of people not to be beat up and jailed because of their sexual orientation . . .  [do not] apply to us, that those are Western ideas rather than universal imperatives.” (Emphasis added.)

“Again, Madiba, he anticipated things. He knew what he was talking about. In 1964, before he received the sentence that condemned him to die in prison, he explained from the dock that, ‘The Magna Carta, the Petition of Rights, the Bill of Rights are documents which are held in veneration by democrats throughout the world.’ In other words, he didn’t say well, those books weren’t written by South Africans so I just – I can’t claim them. No, he said that’s part of my inheritance. That’s part of the human inheritance. That applies here in this country, to me, and to you. And that’s part of what gave him the moral authority that the apartheid regime could never claim, because he was more familiar with their best values than they were. He had read their documents more carefully than they had. And he went on to say, “Political division based on color is entirely artificial and, when it disappears, so will the domination of one color group by another.”

“What was true then remains true today. Basic truths do not change. It is a truth that can be embraced by the English, and by the Indian, and by the Mexican and by the Bantu and by the Luo and by the American. It is a truth that lies at the heart of every world religion – that we should do unto others as we would have them do unto us. That we see ourselves in other people. That we can recognize common hopes and common dreams. And it is a truth that is incompatible with any form of discrimination based on race or religion or gender or sexual orientation. And it is a truth that, by the way, when embraced, actually delivers practical benefits, since it ensures that a society can draw upon the talents and energy and skill of all its people.” (Emphases added.)

Embracing our common humanity does not mean that we have to abandon our unique ethnic and national and religious identities. Madiba never stopped being proud of his tribal heritage. He didn’t stop being proud of being a black man and being a South African. But he believed, as I believe, that you can be proud of your heritage without denigrating those of a different heritage. In fact, you dishonor your heritage. It would make me think that you’re a little insecure about your heritage if you’ve got to put somebody else’s heritage down. . . . people who are so intent on putting people down and puffing themselves up that they’re small-hearted, that there’s something they’re just afraid of. Madiba knew that we cannot claim justice for ourselves when it’s only reserved for some. Madiba understood that we can’t say we’ve got a just society simply because we replaced the color of the person on top of an unjust system, so the person looks like us even though they’re doing the same stuff, and somehow now we’ve got justice. That doesn’t work. It’s not justice if now you’re on top, so I’m going to do the same thing that those folks were doing to me and now I’m going to do it to you. That’s not justice. ‘I detest racialism,’ he said, ‘whether it comes from a black man or a white man.’” (Emphases added.)

“Now, we have to acknowledge that there is disorientation that comes from rapid change and modernization, and the fact that the world has shrunk, and we’re going to have to find ways to lessen the fears of those who feel threatened. In the West’s current debate around immigration, for example, it’s not wrong to insist that national borders matter; whether you’re a citizen or not is going to matter to a government, that laws need to be followed; that in the public realm newcomers should make an effort to adapt to the language and customs of their new home. Those are legitimate things and we have to be able to engage people who do feel as if things are not orderly. But that can’t be an excuse for immigration policies based on race, or ethnicity, or religion. There’s got to be some consistency. And we can enforce the law while respecting the essential humanity of those who are striving for a better life. For a mother with a child in her arms, we can recognize that could be somebody in our family, that could be my child. (Emphases added.)

“Third, Madiba reminds us that democracy is about more than just elections.” (Emphasis added.)

“When he was freed from prison, Madiba’s popularity – well, you couldn’t even measure it. He could have been president for life. Am I wrong? Who was going to run against him? I mean, Ramaphosa [the current South African president] was popular, but, . . . he was too young. Had he chose, Madiba could have governed by executive fiat, unconstrained by check and balances. But instead he helped guide South Africa through the drafting of a new Constitution, drawing from all the institutional practices and democratic ideals that had proven to be most sturdy, mindful of the fact that no single individual possesses a monopoly on wisdom. No individual – not Mandela, not Obama – [is]  entirely immune to the corrupting influences of absolute power, if you can do whatever you want and everyone’s too afraid to tell you when you’re making a mistake. No one is immune from the dangers of that.” (Emphasis added.)

“Mandela understood this. He said, ‘Democracy is based on the majority principle. This is especially true in a country such as ours where the vast majority have been systematically denied their rights. At the same time, democracy also requires the rights of political and other minorities be safeguarded.’ He understood it’s not just about who has the most votes. It’s also about the civic culture that we build that makes democracy work.”

“So we have to stop pretending that countries that just hold an election where sometimes the winner somehow magically gets 90 percent of the vote because all the opposition is locked up or can’t get on TV, is a democracy. Democracy depends on strong institutions and it’s about minority rights and checks and balances, and freedom of speech and freedom of expression and a free press, and the right to protest and petition the government, and an independent judiciary, and everybody having to follow the law.” (Emphasis added.)

“And yes, democracy can be messy, and it can be slow, and it can be frustrating. I know, I promise. But the efficiency that’s offered by an autocrat, that’s a false promise. Don’t take that one, because it leads invariably to more consolidation of wealth at the top and power at the top, and it makes it easier to conceal corruption and abuse. For all its imperfections, real democracy best upholds the idea that government exists to serve the individual and not the other way around. And it is the only form of government that has the possibility of making that idea real.” (Emphasis added.)

“So for those of us who are interested in strengthening democracy, . . . it’s time for us to stop paying all of our attention to the world’s capitals and the centers of power and to start focusing more on the grassroots, because that’s where democratic legitimacy comes from. Not from the top down, not from abstract theories, not just from experts, but from the bottom up. Knowing the lives of those who are struggling.” (Emphasis added.)

“As a community organizer, I learned as much from a laid-off steel worker in Chicago or a single mom in a poor neighborhood that I visited as I learned from the finest economists in the Oval Office. Democracy means being in touch and in tune with life as it’s lived in our communities, and that’s what we should expect from our leaders, and it depends upon cultivating leaders at the grassroots who can help bring about change and implement it on the ground and can tell leaders in fancy buildings, this isn’t working down here.” (Emphases added.)

“To make democracy work, Madiba shows us that we also have to keep teaching our children, and ourselves . . . to engage with people not only who look different but who hold different views.” (Emphasis added.)

“Most of us prefer to surround ourselves with opinions that validate what we already believe. You notice the people who you think are smart are the people who agree with you. . . . But democracy demands that we’re able also to get inside the reality of people who are different than us so we can understand their point of view. Maybe we can change their minds, but maybe they’ll change ours. And you can’t do this if you just out of hand disregard what your opponents have to say from the start. And you can’t do it if you insist that those who aren’t like you – because they’re white, or because they’re male – that somehow there’s no way they can understand what I’m feeling, that somehow they lack standing to speak on certain matters.” (Emphasis added.)

“Madiba, he lived this complexity. In prison, he studied Afrikaans so that he could better understand the people who were jailing him. And when he got out of prison, he extended a hand to those who had jailed him, because he knew that they had to be a part of the democratic South Africa that he wanted to build. ‘To make peace with an enemy,’ he wrote, ‘one must work with that enemy, and that enemy becomes one’s partner.’”

“So those who traffic in absolutes when it comes to policy, whether it’s on the left or the right, they make democracy unworkable. You can’t expect to get 100 percent of what you want all the time; sometimes, you have to compromise. That doesn’t mean abandoning your principles, but instead it means holding on to those principles and then having the confidence that they’re going to stand up to a serious democratic debate. That’s how America’s Founders intended our system to work – that through the testing of ideas and the application of reason and proof it would be possible to arrive at a basis for common ground.”  (Emphases added.)

“And I should add for this to work, we have to actually believe in an objective reality. . . . You have to believe in facts. Without facts, there is no basis for cooperation. . . . I can find common ground for those who oppose the Paris Accords because, for example, they might say, well, it’s not going to work, you can’t get everybody to cooperate, or they might say it’s more important for us to provide cheap energy for the poor, even if it means in the short term that there’s more pollution. At least I can have a debate with them about that and I can show them why I think clean energy is the better path, especially for poor countries, that you can leapfrog old technologies. I can’t find common ground if somebody says climate change is just not happening, when almost all of the world’s scientists tell us it is.” (Emphases added.)

“Unfortunately, too much of politics today seems to reject the very concept of objective truth. People just make stuff up. We see it in state-sponsored propaganda; we see it in internet driven fabrications, we see it in the blurring of lines between news and entertainment, we see the utter loss of shame among political leaders where they’re caught in a lie and they just double down and they lie some more. Politicians have always lied, but it used to be if you caught them lying they’d be like, ‘Oh man.’ Now they just keep on lying.” (Emphases added.)

We also see “the promotion of anti-intellectualism and the rejection of science from leaders who find critical thinking and data somehow politically inconvenient. . . . the denial of facts runs counter to democracy, it could be its undoing, which is why we must zealously protect independent media; and we have to guard against the tendency for social media to become purely a platform for spectacle, outrage, or disinformation; and we have to insist that our schools teach critical thinking to our young people, not just blind obedience.” (Emphasis added.)

“My final point: we have to follow Madiba’s example of persistence and of hope.”

“It is tempting to give in to cynicism: to believe that recent shifts in global politics are too powerful to push back; that the pendulum has swung permanently. Just as people spoke about the triumph of democracy in the 90s, now you are hearing people talk about end of democracy and the triumph of tribalism and the strong man. We have to resist that cynicism.”

“Because, we’ve been through darker times, we’ve been in lower valleys and deeper valleys. Yes, by the end of his life, Madiba embodied the successful struggle for human rights, but the journey was not easy, it wasn’t pre-ordained. The man went to prison for almost three decades. He split limestone in the heat, he slept in a small cell, and was repeatedly put in solitary confinement. And I remember talking to some of his former colleagues saying how they hadn’t realized when they were released, just the sight of a child, the idea of holding a child, they had missed – it wasn’t something available to them, for decades.”

“And yet his power actually grew during those years – and the power of his jailers diminished, because he knew that if you stick to what’s true, if you know what’s in your heart, and you’re willing to sacrifice for it, even in the face of overwhelming odds, that it might not happen tomorrow, it might not happen in the next week, it might not even happen in your lifetime. Things may go backwards for a while, but ultimately, right makes might, not the other way around, ultimately, the better story can win out and as strong as Madiba’s spirit may have been, he would not have sustained that hope had he been alone in the struggle, part of buoyed him up was that he knew that each year, the ranks of freedom fighters were replenishing, young men and women, here in South African, in the ANC and beyond; black and Indian and white, from across the countryside, across the continent, around the world, who in those most difficult days would keep working on behalf of his vision.” (Emphasis added.)

“What we need right now . . . is that collective spirit. And, I know that those young people, those hope carriers are gathering around the world. Because history shows that whenever progress is threatened, and the things we care about most are in question, we should heed the words of Robert Kennedy – spoken here in South Africa, he said, ‘Our answer is the world’s hope: it is to rely on youth. It’s to rely on the spirit of the young.’[4]

“So, young people, who are in the audience, who are listening, my message to you is simple, keep believing, keep marching, keep building, keep raising your voice. Every generation has the opportunity to remake the world. Mandela said, ‘Young people are capable, when aroused, of bringing down the towers of oppression and raising the banners of freedom.’ Now is a good time to be aroused. Now is a good time to be fired up.”

“For those of us who care about the legacy that we honor here today – about equality and dignity and democracy and solidarity and kindness, those of us who remain young at heart, if not in body – we have an obligation to help our youth succeed. Some of you know, here in South Africa, my Foundation is convening over the last few days, two hundred young people from across this continent who are doing the hard work of making change in their communities; who reflect Madiba’s values, who are poised to lead the way.”

These young people “will give you hope. They are taking the baton, they know they can’t just rest on the accomplishments of the past, even the accomplishments of those as momentous as Nelson Mandela’s. They stand on the shoulders of those who came before, including that young black boy born 100 years ago, but they know that it is now their turn to do the work.”

“Madiba reminds us that: ‘No one is born hating another person because of the color of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart.’ ’Love comes more naturally to the human heart, let’s remember that truth. Let’s see it as our North Star, let’s be joyful in our struggle to make that truth manifest here on earth so that in 100 years from now, future generations will look back and say, ‘they kept the march going, that’s why we live under new banners of freedom.’”(emphasis added.)

Comments on the Lecture[5]

Various  journalists saw the speech, which did not mention President Trump by name, as “a sharp rebuke” of him. Here are some of comments in Obama’s  speech that support that  interpretation:

  • A politics of fear and resentment and retrenchment . . .is now on the move. . . at a pace that would have seemed unimaginable just a few years ago.”
  • “Strongman politics are ascendant suddenly, whereby elections and some pretense of democracy are maintained – the form of it – but those in power seek to undermine every institution or norm that gives democracy meaning.”
  • “The free press is under attack. Censorship and state control of media is on the rise. Social media – once seen as a mechanism to promote knowledge and understanding and solidarity – has proved to be just as effective promoting hatred and paranoia and propaganda and conspiracy theories.”
  • So we’ve got to constantly be on the lookout and fight for people who seek to elevate themselves by putting somebody else down.”
  • While it is “not wrong” to want to protect the country’s borders or expect that immigrants assimilate, it cannot ”be an excuse for immigration policies based on race or ethnicity or religion.”
  • “We can enforce the law while respecting the essential humanity of those who are striving for a better life. For a mother with a child in her arms, we can recognize that could be somebody in our family, that could be my child.”
  • “You can be proud of your heritage without denigrating those of a different heritage.. . . You’re a little insecure about your heritage if you’ve got to put somebody else’s heritage down. . . . people who are so intent on putting people down and puffing themselves up [show] that they’re small-hearted, that there’s something they’re just afraid of.”
  • For democracy to work “we have to actually believe in an objective reality. . . . You have to believe in facts. Without facts, there is no basis for cooperation.
  • “Too much of politics today seems to reject the very concept of objective truth. People just make stuff up.. . . We see the utter loss of shame among political leaders where they’re caught in a lie and they just double down and they lie some more. . . . They just keep on lying.”
  • “We also see the promotion of anti-intellectualism and the rejection of science from leaders who find critical thinking and data somehow politically inconvenient. . . . The denial of facts runs counter to democracy, it could be its undoing, which is why we must zealously protect independent media; and we have to guard against the tendency for social media to become purely a platform for spectacle, outrage, or disinformation.”

Before the lecture, one of Obama’s aides, Benjamin Rhodes, said, that it was the former President’s “most important public address since leaving the White House in 2017. It gives him an opportunity to lift up a message of tolerance, inclusivity and democracy at a time when there are obviously challenges to Mandela’s legacy around the world.”

Rhodes added, “”At the current moment . . . , values that we thought were well-established — the importance of human rights, respect for diversity — in many parts of the world those values are under threat. Mandela’s life is an inspiring example of how we can overcome obstacles to promote inclusive democracy and an equitable society with tolerance of others.”

“In the U.S. and around the world, many see recent developments that run counter to Mandela’s legacy. This [was] a globally minded speech, highlighting global trends and focusing on how, in his life, Mandela embodied perseverance. It will be aimed at young people in Africa and also around the world to show that we have been through darker times before and we can overcome these challenges to keep Mandela’s vision alive.”

Conclusion

 As an admirer of Mandela[6] and Obama, I was thrilled to see and hear Obama deliver a lengthy and illuminating speech, especially his comments on the world’s current situation. Those words are challenges to everyone who values  knowledge, intelligence and  honesty about the many problems now facing the U.S. and the rest of the world. As he said, each of us has a responsibility to something to promote social justice. He also reminds us to have a better understanding of those who are adversely affected by the many changes in the world.

Obama’s lecture also made we wonder whether it would be possible for all of the living former presidents (Obama, George W. Bush, Clinton, George H.W. Bush and Carter) to promulgate a joint statement about the need for every president to be informed about the serious issues and prudent in making decisions on these issues and about President Trump’s demonstrated incompetence as president.

These thoughts were reinforced by the recent comments of Bret Stephens, a New York Times conservative columnist. After admitting that he has supported “some of the [current] administration’s controversial foreign policy decisions,” he urges Secretary of State Mike Pompeo and National Security Advisor John Bolton to resign because “Trump’s behavior in Helsinki is . . . another vivid reminder of his manifest unfitness for office. That’s true whether the behavior is best explained as a matter of moral turpitude or mental incompetence — of his eagerness to accept the word of a trained liar like Vladimir Putin over the consensus assessment of U.S. intelligence agencies, or of his inability to speak coherently at a critical moment in his presidency. The president’s pathetic suggestion on Tuesday that he misspoke by failing to use a double negative also reminds that, knave or fool, he’s a congenital liar.”[7]

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

[1] Nelson Mandela Foundation, Barack Obama to deliver the 16th Nelson Mandela Annual Lecture (April 23, 2018); Assoc. Press, Obama to Make Rare High-Profile Speech on Mandela’s Legacy, N.Y. Times (July 16, 2018); Nelson Mandela Foundation, Press release: Obama calls on the world to be Madiba’s Legacy (July 17, 2018).

[2] National Public Radio, Transcript: Obama’s Speech at the 2018 Nelson Mandela Annual Lecture (July 17, 2018); Read the Transcript of Obama’s Speech Defending Democracy, N.Y. Times (July 17, 2018).

[3] In September 2015 the U.N. General Assembly adopted the 17 Sustainable Developments Goals (and 169 targets) to transform the world by 2030 with respect to povertyhungerhealtheducationclimate changegenderequalitywater, sanitationenergyurbanizationenvironment and social justice. (Sustainable Development goals, Wikipedia.)

[4] See The Tragic Extinguishment of the Eloquence of Robert F. Kennedy, dwkcommentaries.com (Aug. 29, 2017).

[5] Haag, Obama Warns of ‘Strongman Politics’ After Trump’s Meeting with Putin, N.Y. Times (July 17, 2018); Meldrum (Assoc. Press), Obama gives Trump sharp rebuke in Mandela address on values, StarTribune (July 17, 2018); Assoc. Press, The Latest: Obama Notes Politicians’ ‘Utter Loss of Shame,’ N.Y. times (July 17, 2018); Wintour, Obama criticizes ‘strongman politics’ in a coded attack on Trump, Guardian (July 17, 2018).

[6] See these posts to dwkcommentaries.com: Nelson Mandela Was Inspired by Fidel Castro’s Cuban Revolution (May 18, 2018); Nelson Mandel Makes Connection with Cecil Rhodes (May 20, 2018); Celebrating the Rhodes Scholarships’ Centennial (June 21, 2011).

[7] Stephen, Resign, Mike Pompeo. Resign, John Bolton. N.Y. Times (July 19, 2018).

Possible Amendments to the New Justice Against Sponsors of Terrorism Act (JASTA) 

As reported in a prior post, on September 28, the U.S. Congress overwhelmingly voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA) even though the Chair (Senator Bob Corker (Rep., TN)) and Ranking Member (Senator Benjamin Cardin (Dem., MD)) of the Senate Foreign Relations Committee and Senator Diane Feinstein expressed deep reservations about the wisdom of this law.

Immediately after the adoption of this law, Senator Corker and others expressed desires to change the new law.[1] Let us look at these concerns and efforts to amend JASTA.

Certain Senators’ Concerns

Senator Corker said he thought the issues could be addressed in the “lame-duck” /Senator session of Congress after the November election and that possible fixes included limiting the bill’s scope just to the Sept. 11 attacks, changing some of the technical definitions or thresholds in the bill and establishing a tribunal of experts who ‘could first determine if there was culpability there.’”

Without specifics Senate Majority Leader Mitch McConnell said there could be “potential consequences” of JASTA that are “worth further discussing.” House Speaker Paul Ryan said Congress might have to “fix” the legislation to protect U.S. troops in particular. Trent Lott, a former Republican Senate Majority Leader and now a lobbyist for the Saudis, said, “I do feel passionately this is a mistake for a variety of reasons, in terms of threats to troops, diplomats, sovereignty, there’s serious problems here. Hopefully we can find a way to change the tenor of this.”

 Saudi Arabia’s Reactions

On October 3 Saudi Arabia’s Cabinet released a statement criticizing the adoption of JASTA.[2] It said the new law was “a source of concern to the international community in which relations are based on the principle of equality and sovereign immunity, as this law came to weaken the immunity of the world guaranteed by the United Nations, its agencies and councils which were formed to preserve the legal sovereignty of all its member countries across the universe. Weakening this sovereign immunity will affect all countries, including the United States. [The cabinet] expressed hope that wisdom will prevail and that the U.S. Congress would take the necessary steps to avoid the bad and dangerous consequences that may result from the JASTA legislation.”

On October 20 U.S. Secretary of State John Kerry met with Saudi Arabia’s Foreign Minister Adel al-Jubeir. Afterwards the two of them held a joint announcement at the State Department.[3] With respect to JASTA, Kerry said:

  • We “did discuss [JASTA’s] very negative impact on the concept of sovereign immunity. And the interests of . . . [the U.S.] are at risk as a result of the law that was passed in Congress in the final days. And we discussed ways to try to fix this in a way that respects and honors the needs and rights of victims of 9/11 but at the same time does not expose American troops and American partners and American individuals who may be involved in another country to the potential of a lawsuit for those activities. Sovereign immunity is a longstanding, well-upheld standard of law, and unfortunately this legislation – unintentionally, I think – puts it at great risk and thereby puts our country at great risk. So we’re talking about ways to try to address that.”

Foreign Minister Adel al-Jubeir’s comments about JASTA were the following:

  • “I . . . want to add my voice to what the Secretary said about the importance of sovereign immunities. Sovereign immunities have been a cardinal principle of the international legal order that was established after the Treaty of Westphalia in the 1600s. The objective is to bring order to the international system. And where sovereign immunities are diluted, the international system becomes chaotic, and no country, and no government, is able to conduct its official business without having to worry about lawsuits. The United States, as the country with the biggest footprint in the world, of course has the most to lose by this, because you have operations all the way from Japan to South America to the Pacific, and I think that is why the vast majority of countries have come out vehemently and very strongly against . . . JASTA . . . for its dilution of sovereign immunities. And there have been a number of countries that are looking at reciprocal measures, and if this issue takes hold, we will have chaos in the international order, and this is something that no country in the world wants.”

However, neither gentleman provided details about so-called “fixes for JASTA.

Moreover, there already are “9/11 lawsuits” brought by 9,000 plaintiffs against Saudi Arabia consolidated in federal court in the Southern District of New York in Manhattan that had been dismissed, but will be resurrected under JASTA. Already there is talk about potential discovery and other pre-trial activity in the cases. This includes plaintiffs’ efforts to reinstate Saudi Arabia as a defendant. And on September 30 a new Sept. 11 lawsuit against Saudi Arabia was filed in U.S. District Court in Washington, D.C., on behalf of the widow and daughter of a Navy officer killed in the attack on the Pentagon.

However, Raj Bhala, a professor of international and comparative law at the University of Kansas Law School, opines that the “deck remains stacked against the plaintiffs” with their biggest challenge: persuading a court there is solid evidence of a direct Saudi government role in the 9/11 attacks.[4]

Other Reactions

On October 10 China’s Foreign Ministry said China opposes all forms of terrorism and supports the international community on anti-terrorism cooperation, but that such efforts should “respect international law and principles of international relations, including fundamental principles of nations’ sovereign equality.” Therefore, every country “should not put . . . [its] domestic laws above international law and should not link terrorism with any specific country, religion or ethnicity.” The Foreign Ministry also noted that China’s people and assets at home and around the world face a growing risk from terrorism, but it has a foreign policy of non-interference in other countries’ affairs.[5]

Many other countries oppose JASTA. France considers that laws such as JASTA would lead to a “legal chaos” at the international level. Russia has slammed the legislation as undermining international law. Turkey views JASTA as a law against the principle of individual criminal responsibility for crimes and expects it would be reversed shortly. Egypt’s Foreign Ministry warned that JASTA could have a dire effect on US international relations.[6]

Daniel Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, said JASTA was an example of “legislative fecklessness.” Immediately after the bill’s passage, Republican congressional leaders talked about the need to “fix” the bill and tried to blame President Obama for the problems by falsely claiming he had not made a strong case against the bill. But the president had vetoed the bill, publicly articulated the reasons for the veto and personally and through Administration officials had warned congressional leaders about the adverse implications of the bill. Thus, a “’stupid bill’ that adversely affects American national interests is now law.”[7]

A New York Times editorial, agreeing with Professor Drezner, said that the adoption of the bill over a presidential veto, was a new example of congressional “craven incompetence” and that JASTA should be repealed. A Wall Street Journal editorial also called for repeal.[8]

Conclusion

The only specific suggestions of ways to “fix” JASTA that I have seen are Senator Corker’s. The idea of creating a new tribunal presumably to assess whether a specific state has sponsored or aided and abetted acts of terrorism in the U.S. sounds too complicated, but there are not enough details about such an idea to have a detailed response. The same is the case for his other suggestion about changing some of the technical definitions or thresholds in the bill. The idea of limiting the law to 9/11, however, might be a way to see how such a law works out in practice before it is expanded to include any other situation as the law now stands.

Instead, I offer the following initial suggestions for amending JASTA on the assumption that repeal is not currently feasible:

  1. Assign exclusive jurisdiction over all civil actions under JASTA to the U.S. District Court for the District of Columbia and require or suggest that all such cases be assigned to a designated District Judge. That will assist the U.S. Departments of State and Justice, the White House and foreign governments in monitoring any such actions and eliminate the risk of inconsistent decisions at the District Court level and at the level of the federal courts of appeal. There is no reason to have any other federal courts involved in such cases and absolutely no reason to have any state courts so involved.
  2. Make the U.S. Government a necessary party to any such civil action.
  3. There should be limitations on permissible pre-trial discovery in such cases. Here is one way to do so. After answers to any complaint in any such civil action have been served and filed and before any other proceedings in the case, require the U.S. Government to provide its opinion as to whether the foreign state in any such case has sponsored or aided and abetted any acts of terrorism in the U.S. If the U.S. Government states that the foreign state has not sponsored or aided and abetted any act of terrorism in the U.S., then the civil action should be dismissed. If the U.S. Government states that the foreign state has so sponsored or aided and abetted, then the case should proceed to assess damages with appropriate discovery. If the U.S. Government states that it does not know whether the foreign state has so sponsored or aided and abetted, then the U.S. Government should propose a plan for discovery in the case to attempt to resolve that question as quickly and as inexpensively as possible with a prohibition of any discovery that is not included in such a plan.

Now we wait to see what bills will be introduced in Congress to amend JASTA.

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

[1] Reuters, U.S. Lawmakers May change Sept. 11 Law After Rejecting Veto, N.Y. times (Sept. 30, 2016); Peterson & Lee, Congress Looks to Narrow Bill Allowing Terror Victims to Sue Foreign Governments, W.S.J. (Sept. 30, 2016).

[2] Reuters, U.S. Sept. 11 Law Weakens International Relations, Saudi Cabinet Says, N.Y. Times (Oct. 3, 2016); Saudi Press Agency, Press Release regarding JASTA (Oct. 4, 2016); Hubbard, Angered by 9/11 Victims Law, Saudis Rethink U.S. Alliance, N.Y. Times (Sept. 29, 2016).

[3] U.S. State Dep’t, Remarks with Saudi Arabian Foreign Minister Adel al-Jubeir After Their Meeting (Oct. 20, 2016) Reuters, U.S. Urges Houthis to Keep Ceasefire, Discusses JASTA With Saudi, N.Y. Times (Oct. 20, 2016). No additional details about any proposed “fixes” to JASTA were provided in response to questions at the State Department’s October 21 Daily Press Briefing.

[4] Mazzetti, Claims of Saudi Role in 9/11 Appear Headed for Manhattan Court, N.Y. Times (Sept. 29, 2016); Bravin, Lawyers Move Quickly After Congress Enacts Bill Allowing Suits Against Saudi Arabia, W.S.J. (Sept. 30, 2016).

[5] Reuters, China Backs Sovereign Immunity After U.S. Sept. 11 Bill Becomes Law, N.Y. Times (Oct. 10, 2016).

[6] Fotouh, JASTA: Real threats and hidden opportunities, Egypt Daily News (Oct. 24, 2016).

[7] Drezner, The unbearable idiocy of Congress, Wash. Post (Sept. 30, 2016).

[8] Editorial, Congress Has Itself to Blame for 9/11 Bill, N.Y. Times (Sept. 30, 2016); Editorial, Instant Senate Remorse, W.S.J. (Sept. 30, 2016).

Enactment of the Justice Against Sponsors of Terrorism Act (JASTA) Over the Presidential Veto

As a previous post reported, from September 16, 2015, through September 9, 2016, the current Session of Congress considered and overwhelmingly adopted the Justice Against Terrorism Act (JASTA). Although neither chamber of Congress held hearings on JASTA this Session and voiced little opposition to the bill, objections to the bill were raised outside Congress, and on September 23, 2016, President Obama vetoed the bill, as was mentioned in a prior post. Thereafter Congress overrode the veto and JASTA became law, whose details were discussed in another previous post.

Now we will retreat in time and examine the president’s veto message and the congressional overriding of the veto. Another post will look at subsequent efforts to amend JASTA.

President Obama’s Veto Message

 On September 23, President Obama vetoed JASTA and returned the bill to Congress with a message stating the following reasons for the veto:[1]

  • “Enacting JASTA into law . . . would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks. As drafted, JASTA would allow private litigation against foreign governments in U.S. courts based on allegations that such foreign governments’ actions abroad made them responsible for terrorism-related injuries on U.S. soil. This legislation would permit litigation against countries that have neither been designated by the executive branch as state sponsors of terrorism nor taken direct actions in the United States to carry out an attack here. The JASTA would be detrimental to U.S. national interests more broadly, which is why I am returning it without my approval.”
  • “First, JASTA threatens to reduce the effectiveness of our response to indications that a foreign government has taken steps outside our borders to provide support for terrorism, by taking such matters out of the hands of national security and foreign policy professionals and placing them in the hands of private litigants and courts.”
  • “Any indication that a foreign government played a role in a terrorist attack on U.S. soil is a matter of deep concern and merits a forceful, unified Federal Government response that considers the wide range of important and effective tools available. One of these tools is designating the foreign government in question as a state sponsor of terrorism, which carries with it a litany of repercussions, including the foreign government being stripped of its sovereign immunity before U.S. courts in certain terrorism-related cases and subjected to a range of sanctions. Given these serious consequences, state sponsor of terrorism designations are made only after national security, foreign policy, and intelligence professionals carefully review all available information to determine whether a country meets the criteria that the Congress established.”
  • “In contrast, JASTA departs from longstanding standards and practice under our Foreign Sovereign Immunities Act and threatens to strip all foreign governments of immunity from judicial process in the United States based solely upon allegations by private litigants that a foreign government’s overseas conduct had some role or connection to a group or person that carried out a terrorist attack inside the United States. This would invite consequential decisions to be made based upon incomplete information and risk having different courts reaching different conclusions about the culpability of individual foreign governments and their role in terrorist activities directed against the United States — which is neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack.”
  • “Second, JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests. The United States has a larger international presence, by far, than any other country, and sovereign immunity principles protect our Nation and its Armed Forces, officials, and assistance professionals, from foreign court proceedings. These principles also protect U.S. Government assets from attempted seizure by private litigants abroad. Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.”
  • “Indeed, reciprocity plays a substantial role in foreign relations, and numerous other countries already have laws that allow for the adjustment of a foreign state’s immunities based on the treatment their governments receive in the courts of the other state. Enactment of JASTA could encourage foreign governments to act reciprocally and allow their domestic courts to exercise jurisdiction over the United States or U.S. officials — including our men and women in uniform — for allegedly causing injuries overseas via U.S. support to third parties. This could lead to suits against the United States or U.S. officials for actions taken by members of an armed group that received U.S. assistance, misuse of U.S. military equipment by foreign forces, or abuses committed by police units that received U.S. training, even if the allegations at issue ultimately would be without merit. And if any of these litigants were to win judgments — based on foreign domestic laws as applied by foreign courts — they would begin to look to the assets of the U.S. Government held abroad to satisfy those judgments, with potentially serious financial consequences for the United States.”
  • “Third, JASTA threatens to create complications in our relationships with even our closest partners. If JASTA were enacted, courts could potentially consider even minimal allegations accusing U.S. allies or partners of complicity in a particular terrorist attack in the United States to be sufficient to open the door to litigation and wide-ranging discovery against a foreign country — for example, the country where an individual who later committed a terrorist act traveled from or became radicalized. A number of our allies and partners have already contacted us with serious concerns about the bill. By exposing these allies and partners to this sort of litigation in U.S. courts, JASTA threatens to limit their cooperation on key national security issues, including counterterrorism initiatives, at a crucial time when we are trying to build coalitions, not create divisions.”
  • “The 9/11 attacks were the worst act of terrorism on U.S. soil, and they were met with an unprecedented U.S. Government response. The United States has taken robust and wide-ranging actions to provide justice for the victims of the 9/11 attacks and keep Americans safe, from providing financial compensation for victims and their families to conducting worldwide counterterrorism programs to bringing criminal charges against culpable individuals. I have continued and expanded upon these efforts, both to help victims of terrorism gain justice for the loss and suffering of their loved ones and to protect the United States from future attacks. The JASTA, however, does not contribute to these goals, does not enhance the safety of Americans from terrorist attacks, and undermines core U.S. interests.”

Reactions to the Veto

Immediately after President Obama’s veto of JASTA, both Republicans and Democrats in Congress vowed to override the veto under Article I, Section 7 of the U.S. Constitution requiring a vote of at least two-thirds of each chamber of the Congress to do so. On the sidelines both major presidential candidates (Donald Trump and Hillary Clinton) said that they would have signed the bill if they were president.

These vows were made despite the prior day’s testimony before a Senate committee by Secretary of Defense Ash Carter opposing the bill on the ground that it could be a problem for the U.S. if another country was “to behave reciprocally towards the U.S.” And the Republican Chair of the House Armed Services Committee, Representative Mac Thornberry of Texas, amplified the military’s concerns and urged Republicans to study the bill’s consequences while announcing his intent to opposes the override.[2]

Not surprisingly immediately after this veto, Senator John Cornyn stated, “It’s disappointing the President chose to veto legislation unanimously passed by Congress and overwhelmingly supported by the American people. Even more disappointing is the President’s refusal to listen to the families of the victims taken from us on September 11th, who should have the chance to hold those behind the deadliest terrorist attack in American history accountable. I look forward to the opportunity for Congress to override the President’s veto, provide these families with the chance to seek the justice they deserve, and send a clear message that we will not tolerate those who finance terrorism in the United States.”[3]

On September 27 President Obama sent a letter to Senators Mitch McConnell (Rep., TN), the Majority Leader, and Harry Reid (Dem. NV), Minority Leader. The President said he was “fully committed to assisting the families of the victims of terrorist attacks of Sept. 11,″ but that the consequences of an override could be “devastating” by putting military and other U.S. officials overseas at risk. The bill’s enactment, he warned, “would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks.[4]

On September 28 Senators Cornyn and Shumer jointly wrote an op-ed article in USA Today urging Congress to override the veto because JASTA “would provide a legal avenue for the families of the victims of the 9/11 attacks to seek justice in a court of law for the terrorist attacks that took the lives of their loved ones. And it would deter foreign entities from sponsoring terrorism in the future.” The article also rejected as untrue the argument by JASTA’s opponents “that the bill will subject U.S. diplomats and other government officials to a raft of potential lawsuits in foreign courts.”[5]

On the morning of September 28, the New York Times published an editorial opposing the threatened congressional override of the veto because “the bill complicates the United States’ relationship with Saudi Arabia and could expose the American government, citizens and corporations to lawsuits abroad. Moreover, legal experts like Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School doubt that the legislation would actually achieve its goal.”[6]

Moreover, the Times editorial asserted that the “European Union has warned that if the bill becomes law, other countries could adopt similar legislation defining their own exemptions to sovereign immunity. Because no country is more engaged in the world than the United States — with military bases, drone operations, intelligence missions and training programs — the Obama administration fears that Americans could be subject to legal actions abroad.”

Nevertheless, later that same day (September 28) Congress overwhelmingly voted to override the presidential veto. The only vote against the override in the Senate was by the Senate Minority Leader, Senator Harry Reid (Dem., NV). The vote in the House was 348 to override with only 59 opposed.[7] We will now look at the debate in both chambers.

U.S. Senate’s Overriding the Veto

In the Senate debate, Senators Richard Blumenthal (Dem., CT), John Cornyn (Rep., TX), Chuck Grassley (Rep., IA) and Chuck Schumer (Dem. NY) spoke in favor of overriding the veto and passing JASTA while Senators Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, Benjamin Cardin (Dem., DE), the Committee’s Ranking Member, and Diane Feinstein (Dem., CA) offered qualified endorsements of an override. [8]

Generally these Senators argued that U.S. victims of state-sponsored acts of terrorism needed the opportunity to assert their damage claims in U.S. courts against such sponsors and that JASTA would deter such sponsored terrorism. Senator Cornyn added that this “legislation has been pending since 2009, and we have worked through a number of Members’ concerns . . . in order to modify the legislation and build the consensus we now have achieved. . . . That means [JASTA] has been negotiated and hammered out over a long period of time.”[9]

Cornyn then offered this argument for rejection of the presidential veto message:

  • JASTA would not “create complications” with some of our close partners. It “only targets foreign governments that sponsor terrorist attacks on American soil. . . . The financing of terrorism in the [U.S.] is not behavior we should tolerate from any nation, allies included.”
  • Possible foreign laws like JASTA “applied reciprocally will open no . . . floodgates” of lawsuits against the U.S. or military members by foreign governments in foreign courts.
  • “JASTA is not a sweeping legislative overhaul that dramatically alters international law. It is an extension of law that has been on the [U.S.] books since 1976. . . . [For] 40 years our law has been replete with immunity exceptions that apply to conduct committed abroad. This bill just adds another exception.”

Senator Grassley, the Chair of the Senate Judiciary Committee, noted that this Committee unanimously supported overriding the veto of JASTA. He also said it was “highly unlikely” that passage of the bill would result in “the Saudis . . .pulling their money out of U.S. securities. . . . But even if they did, there would be plenty of buyers for those securities. But more importantly, . . . [such an argument would send the message;] if you want to influence U.S. legislation, make sure to buy up U.S. debt, and then threaten to sell that debt any time the U.S. Congress does something you don’t like. We absolutely cannot be intimidated or bend to that type of threat.”

Senator Corker commented that he had “tremendous concerns about the sovereign immunity procedures that could be set in place by other countries as a result of this vote” and that it could have adverse consequences for the U.S. “standing in the world.” He was troubled by “the concerns [of] . . . the head of our Joint Chiefs” and of the President. He also thought it would be better “to establish some type of tribunal, where experts could come in and really identify what actually happened on discretionary decisions that took place within the country of Saudi Arabia” with respect to the pending 9/11 claims.

As a result, Senator Corker prepared a bipartisan letter to the Senate sponsors of JASTA (Senators Cornyn and Schumer).[10] It expressed concern about “potential unintended consequences that may result from . . . [JASTA] for the national security and foreign policy of the United States. If other nations respond to this bill by weakening U.S. sovereign immunity protections, then the [U.S.] could face private lawsuits in foreign courts as a result of important military or intelligence activities. We would hope to work with you in a constructive manner to appropriately mitigate those unintended consequences.”

One of the signers of this letter and the Ranking Member of the Senate Foreign Relations Committee, Senator Benjamin Cardin (Dem., DE), recognized “that there are risk factors in terms of how other countries may respond to the enactment of JASTA. [11] As a nation with hundreds of thousands of troops that serve abroad, not to mention multiple foreign bases and facilities, the United States of America is a country that benefits from sovereign immunity principles that protect our country and our country’s interests, its Armed Forces, government officials, and litigation in foreign courts. Therefore, there is a concern of unintended consequences, including irresponsible applications to U.S. international activities by other countries. While I have faith and confidence in the American legal system, the same faith does not necessarily extend to the fairness of legal systems of other countries that may claim they are taking similar actions against America when they are not. So [as the Ranking Member of the Foreign Relations Committee, I will] follow closely how other countries respond and try to mitigate the risks of the [U.S.] abroad” and will “explore with my colleagues the possibility of whether we need or will need additional legislative action.”

Another signer of the letter, Senator Feinstein, expressed her “key concern relates to the exception to the immunity of foreign governments.”[12] “Proponents of this bill argue that the exception is narrow, that it applies only if a foreign nation, with ill intent, takes unlawful actions that cause an act of terrorism on our soil. But other nations that are strongly opposed to American actions abroad could respond by using the bill as an excuse to adopt laws that target our own government’s actions. A September 15 Washington Post editorial said it well: ‘It is not a far-fetched concern, given this country’s global use of intelligence agents, Special Operations forces and drones, all of which could be construed as state-sponsored `terrorism’ when convenient.’ Those of us on the Senate Intelligence Committee know that, if other countries respond to JASTA in this manner, it could jeopardize our government’s actions abroad. If that happens, it is likely that our government would be forced to defend against private lawsuits, which could pose a threat to our national security.” Therefore, she was interested in limiting JASTA to “the September 11 attacks” and to “those directly impacted by an attack–including individuals, their estates and property damage, rather than companies with only tangential connections.”

U.S. House of Representatives’ Overriding the Veto 

On the afternoon of September 28 the House voted to override the veto of JASTA by a vote of 348 (225 Republicans and 123 Democrats) to 77 (18 Republicans and 59 Democrats).[13]

The supporters of override were led by Representative Robert Goodlatte (Rep., VA), the Chair of the House Judiciary Committee, who asserted, “The changes JASTA makes to existing law are not dramatic, nor are they sweeping.. . .The President’s objections . . . have no basis under U.S. or international law.. . . Consistent with customary international law, JASTA, for terrorism cases, removes the current requirement that the entire tort occur within the United States and replaces it with a rule that only the physical injury or death must occur on U.S. soil.” Later in the debate he claimed (erroneously as explained in n.14) that his argument was supported by “Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties [which] would apply the territorial tort exception if the act or omission occurred in whole or in part in the territory of the state exercising jurisdiction.”[14]

Others who supported the override and who spoke during the debate were Representatives Peter King (Rep., NY), Sheila Jackson Lee (Dem., TX), Leonard Lance (Rep., NJ), David Donovan (Rep., NY), Carolyn Maloney (Dem., NY) and Jerrold Nadler (Dem. FL).

Leading the opposition to the override were Representative M. “Mac” Thornberry (Rep., TX), the Chair of the House Armed Services Committee, and Representative John Conyers (Dem., MI). Other opponents of override who spoke during the debate were Representatives Eddie Bernice Johnson (Dem., TX), David Jolly (Rep., FL), Betty McCollum (Dem., MN), Robert Scott (Dem., VA) and Earl Blumenauer (Dem., NY).

Thornberry expressed concern for the possible erosion of sovereign immunity, which is “one of the key protections that the military, diplomats, and intelligence community of the [U.S.] has around the world. Once that doctrine gets eroded, then there is less protection, and . . . the [U.S.], has more at stake in having our people protected than any other country because we have more people around the world than anyone else.” Thornberry also quoted from a letter to him from Joseph F. Dunford, Jr., General, U.S. Marine Corps. and Chairman of the Joint Chiefs of Staff: `Any legislation that risks reciprocal treatment by foreign governments would increase the vulnerability of U.S. Service members to foreign legal action while acting in an official capacity.” This letter and a letter urging defeat of the override from Secretary of Defense Ash Carter were inserted into the House record.

Conyers supported the President’s reasons for his veto. “First, the President stated that [the bill] could undermine the effectiveness of our Nation’s national security and counterterrorism efforts. For instance, other nations may become more reluctant to share sensitive intelligence in light of the greater risk that such information may be revealed in litigation.   Moreover, the President raised the concern that this legislation would effectively allow non-expert private litigants and courts, rather than national security and foreign policy experts, to determine key foreign and national security policy questions like which states are sponsors of terrorism.   Second, the President’s assertion that enactment of[the bill]may lead to retaliation by other countries against the [U.S.] given the breadth of our interests and the expansive reach of our global activities.   So while it seems likely at this juncture that [the bill] will be enacted over the President’s veto, I remain hopeful that we can continue to work toward the enactment of subsequent legislation to address the President’s concerns.”

Conyers also cited others who called for sustaining the President’s veto: Michael Mukasey, the former Attorney General under George W. Bush; Stephen Hadley, the former National Security Adviser for that President; Richard Clarke, the former White House counterterrorism adviser for Presidents Bill Clinton and George W. Bush; and Thomas Pickering, the former [U.S.] Ambassador to the United Nations.

Representative Scott said, “JASTA abrogates a core principle in international law–foreign sovereign immunity. There are already several exceptions to this immunity recognized by our Nation and others, but JASTA goes much further than any present exception or recognized practice of any national law…. One fundamental indication of fairness of legislation is not how it would work to our benefit, but what we would think if it were used against us. If the [U.S.] decides to allow our citizens to haul foreign nations into American courts, what would we think of other nations enacting legislation allowing their citizens to do the same thing to us? Obviously, we would not want to put our diplomats, military, and private companies at that risk.”

Scott also pointed out that “JASTA does not make clear how the evidence would be gathered to help build a credible case against a foreign nation. Would the plaintiffs be able to subpoena foreign officials? Or would the U.S. Department of State officials have to testify? Would . . . [the U.S.] be required to expose sensitive materials in order to help American citizens prove their case? Again, how would we feel about foreign judges and juries deciding whether or not the [U.S.] sponsored terrorism? There are also questions about how the judgment under JASTA would be enforced. The legislation does not address how a court would enforce the judgment. Could foreign assets be attached? How would this process work if other countries enacted similar legislation? Would U.S. assets all over the world be subject to attachment to satisfy the foreign jury verdicts?”

Jolly emphasized that “the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the CIA Director, and the Chairman of the House Armed Services Committee [Representative Thornberry] have all issued statements against this legislation.”

White House Reaction to the Overriding of the Veto

On the same day as this Senate vote and before the House voted on the same bill later that day, White House Press Secretary, Josh Earnest, said, “I would venture to say that this is the single-most embarrassing thing that the United States Senate has done possibly since 1983. You had at least one prominent Republican senator quoted today saying that . . . the members of the Senate Judiciary Committee were not quite sure what the bill actually did.  And to have members of the United States Senate only recently informed of the negative impact of this bill on our service members and our diplomats is, in itself, embarrassing.  For those senators then to move forward in overriding the President’s veto that would prevent those negative consequences is an abdication of their basic responsibilities as elected representatives of the American people.”[15]

Furthermore, said the Press Secretary, “these senators are going to have to answer their own conscience and their constituents as they account for their actions today.  You’ve got to give some credit to Harry Reid.  He showed some courage.  The same can’t be said for the other 96 members of the Senate who voted today.”

The same day President Obama on CNN said that a few lawmakers who backed the bill weren’t aware of its potential impact and that he wished Congress “had done what’s hard.” CIA Director John Brennan said he was concerned about how Saudi Arabia, a key U.S. ally in the Middle East, would interpret the bill. He said the Saudis provide significant amounts of information to the U.S. to help foil extremist plots. “It would be an absolute shame if this legislation, in any way, influenced the Saudi willingness to continue to be among our best counterterrorism partners,” Brennan said.[16]

On September 29, after the House had voted and JASTA became law, Press Secretary Earnest added, “I think what we’ve seen in the United States Congress is a pretty classic case of rapid-onset buyer’s remorse.  Within minutes of casting their vote to put that bill into law, you had members of the United States Senate — some 28 of them — write a letter expressing deep concern about the potential impact of the bill they just passed.  The suggestion on the part of some members of the Senate was that they didn’t know what they were voting for, that they didn’t understand the negative consequences of the bill. That’s a hard suggestion to take seriously when you had letters from President Bush’s attorney general and national security advisor warning about the consequences of the bill.  You had attorneys from our closest allies in Europe expressing their concerns about the impact of the bill.  You had a letter from some of America’s business leaders, including Chief Executive of GE, Jeffrey Immelt, warning about the potential economic consequences of the bill.  You had letters from the Director of the CIA, the Chairman of the Joint Chiefs of Staff, the Secretary of Defense and the Commander-in-Chief all warning about the potential impact of the bill.”[17]

Conclusion

As indicated above, certain Senators indicated their intent to pursue amendments to JASTA to remedy what they see as problems with the statute. This will be the subject of future posts.

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[1] White House, Veto Message from the President—S.2040 (Sept. 23, 2016) Afterwards Josh Earnest, the White House Press Secretary, discussed whether there was congressional opposition to overriding the veto and criticism of the bill from Saudi Arabia and “a lot of other countries, including the European Union. White House, Press Briefing by Press Secretary Josh Earnest, 9/26/16; White House, Press Briefing by Press Secretary Josh Earnest, 9/27/16.

[2] Assoc. Press, Lawmakers Vow to Override Obama’s Veto of Sept. 11 bill, N.Y. Times (Sept. 24, 2016).

[3] Cornyn, Cornyn Statement on President’s Veto of JASTA (Sept. 23, 2016).

[4] Demirjian & Ellperin, Congress overrides Obama’s veto of 9/11 bill, Wash, Post (Sept, 28, 2016).

[5] Cornyn, Cornyn Op-Ed: give 9/11 Families a Legal Avenue (Sept. 28, 2016).

[6] Editorial, The Risks of Sueing the Saudis for 9/11, N.Y. Times (Sept. 28, 2016)

[7] Steinhauer, Mazzetti & Davis, Congress Votes to Override Obama Veto on 9/11 Victims Bill, N.Y. Times (Sept. 28, 2016); Eilpirin & Demirjian, Congress thwarts Obama on bill allowing 9/11 lawsuits against Saudi Arabia, Wash. Post (Sept. 28, 2016).

[8] Cong. Rec. S6166-73 (Sept. 28, 2016).

[9] The prior post about the initial passage of JASTA started with the 2015 introduction of the bill and did not attempt to cover earlier versions of the bill or the process referenced by Senator Cornyn. Comments about this earlier process would be much appreciated.

[10] This bipartisan letter was signed by 15 Democrat Senators (Bennet, Cardin, Carper, Coons, Feinstein, Heitkamp, Hirono, McCaskill, Merkley, Nelson, Reed, Schatz, Shaheen, Udall and Warner), 12 Republican Senators (Alexander, Coats, Corker, Cotton, Flake, Graham, McCain, Risch, Roberts, Rounds, Sullivan and Thune) and Independent Senator King.

[11] Cardin, Cardin Statement on JASTA Veto Vote (Sept. 28, 2016).

[12] Feinstein, Feinstein Statement on Justice Against Sponsors of Terrorism Act (Sept. 28, 2016).

[13] Cong. Record H6023-32 (Sept. 28, 2016).

[14] The United Nations Convention on Jurisdictional Immunities of States and Property is certainly relevant to the issue of international law on the subject. Representative Thornberry, however, failed to quote the entirety of Article 12 of this treaty and thereby reached an erroneous conclusion that it supports JASTA. That Article states, “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” The portion in bold was not quoted by Thornberry.  Moreover, this treaty is not yet in force because its Article 30 requires 30 states to become parties thereto, and to date only 21 states have done so, and the U.S. has neither signed nor ratified this treaty.

[15] White House, Press Gaggle by Press Secretary Josh Earnest en route Fort Lee, Virginia 9/28/16.

[16] Assoc. Press, Congress Rebukes Obama, Overrides Veto of 9/11 Legislation, N.Y. Times (Sept. 28, 2016); Reuters, Congress Rejects Obama Veto, Saudi Sept. 11 Bill Becomes Law, N.Y. Times (Sept, 28, 2016).

[17] White House, Press Briefing by Press Secretary Josh Earnest and Secretary of Education King (Sept. 29, 2016).

 

Pre-Veto Controversies Regarding the Justice Against Sponsors of Terrorism Act (JASTA)         

A prior post reviewed the Justice Against Sponsors of Terrorism Act (JASTA) (S.2040) that was passed by Congress on September 28, 2016, with sufficient votes to override President Obama’s veto of the bill. Now we look at the pre-veto legislative history of JASTA and controversies over the bill.

Legislative History

S.2040 was introduced in the U.S. Senate on September 16, 2015, by Senator John Cornyn (Rep., TX) with 12 Republican and 12 Democrat cosponsors. Without any hearings on the bill, the Senate Judiciary Committee on January 28, 2016, passed an amendment as a substitute for the original bill, and on February 3, 2016, the Committee Chair, Senator Charles Grassley (Rep., IA), reported the bill to the Senate without a written report.[1]

On May 17, 2016, the Senate unanimously passed the JASTA bill with limited debate.[2] On the Senate floor Senator Cornyn offered a substitute amendment and stated that the U.S. Code already had an exception to sovereign immunity for certain acts of terrorism [28 U.S.C. § 1605A], but “it does not extend to terrorist attacks on our homeland by countries and organizations that have not already been designated as state sponsors of terrorism. This [bill] makes some small changes in that legislation that first passed in 1976 to expand the scope of that [provision] to allow the families of the 9/11 tragedy to seek justice in our courts of law.” The bill has been limited to “injury in the United States.” The bill requires injuries caused by “acts of terrorism,” and excludes “acts of war.” Cornyn also discussed the secondary liability provision of the bill.[3]

Immediately following Cornyn that day, Senator Chuck Schumer (Dem., NY), a cosponsor of the bill, emphasized the bill’s provision allowing the Department of Justice to seek a stay of any lawsuit under this exception. Following the Senate’s passage of the bill, Senator Schumer issued a statement praising this action as correcting erroneous court decisions granting immunity to “foreign actors who finance and enable terrorism on a massive scale” and allowing “terrorism victims, like victims of the September 11th attacks [and of any other acts of terrorism on U.S. soil after 9/11] the opportunity to pursue [financial damage claims against] foreign states who sponsor terrorism in federal court.”[4]

On October 23, 2015, an identical companion bill (H.R.3815) was introduced in the U.S. House of Representatives by Representative Peter King (Rep., NY) with 31 Republican and 30 Democrat cosponsors. It was referred to the House Judiciary Committee, which did not hold any hearings on the bill. On September 9, 2016, the Senate companion bill (S.2040) was agreed to and passed by a voice vote in the House.[5]

 Pre-Veto Controversies Over JASTA

The Senate passage of JASTA, on May 17, 2016, was despite lobbying against the bill by Administration officials and warnings by the Saudi government that if the legislation passed, that country might begin selling off up to $750 billion in U.S. Treasury securities and other assets in the U.S. before they faced the danger of being frozen by American courts.[6]

In the midst of this congressional consideration of JASTA, on July 15, 2016, the Senate/House Select Intelligence Committee published the previously classified 28 pages regarding possible connections between Saudi Arabia and 9/11 from the Committee’s “Report on Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001.”

A journalist said that these 28 pages set forth “a wide-ranging catalog of meetings and suspicious coincidences. It details contacts between Saudi officials and some of the Sept. 11 hijackers, checks from Saudi royals to operatives in contact with the hijackers and the discovery of a telephone number in a Qaeda militant’s phone book that was traced to a corporation managing an Aspen, Colo., home of Prince Bandar bin Sultan, then the Saudi ambassador to Washington.” The 28-pages also said, ”It was not the task of this Joint Inquiry to conduct the kind of extensive investigation that would be required to determine the true significance of any such alleged connections to the Saudi Government. . . [But the Committee found no evidence that the] “Saudi government as an institution, or senior Saudi officials individually funded” Al Qaeda.[7]

Some former September 11 Commission staff members, however, pointed out that the wording in the group’s final report did not rule out the possibility that lower ranking Saudi officials had assisted the hijackers.

On the same day (July 15, 2016) of the release of the 28-pages of the Senate report, White House Press Secretary Josh Earnest said, “This information, even as it’s now publicly available, does not change the assessment of the U.S. government [as stated in these 28 pages] that there’s no evidence that the Saudi government as an institution, or senior Saudi officials individually funded al Qaeda. . . . And the 9/11 Commission was able to draw on the information that’s been declassified today as they wrote their report.  They were able to do follow-up interviews and to further investigate those leads.  Those leads didn’t really turn up anything as it relates to specific evidence about the Saudi government as an institution or senior Saudi officials individually funding al Qaeda.”[8]

Press Secretary Earnest also stated, “based on the analysis that’s been conducted by our lawyers here in the U.S. government, the way that this [proposed] law [JASTA] is written could open up U.S. companies and even potentially U.S. personnel to vulnerabilities when they’re engaged in actions or doing business or conducting official government work overseas. There is an important principle related to sovereign immunity.  And when you’re the most powerful country in the world, you’re invested in the idea of sovereign immunity, given how deeply the United States is involved in so many other countries.”

On September 9 (the same date as the House passage of JASTA) the New York Times reported that the Obama Administration had been lobbying against the bill for months and that according to Jack Goldsmith, a professor of law at Harvard and a former official in the Department of Justice under President George W. Bush, “Congress itself could have investigated lingering questions about 9/11, but instead is delegating those tasks to the unelected judiciary. The costs of the law will be borne by courts, which are an awkward place to ascertain Saudi responsibility for 9/11, and especially the president, who will have to deal with the diplomatic fallout with Saudi Arabia and other nations.”

The Times also quoted Pierre Lellouche, a member of the French Parliament, who said he would pursue legislation that would permit French citizens to sue the United States with cause. “I have sympathy with the notion of hitting those countries which actively support terrorism.” But the American bill “will cause a legal revolution in international law with major political consequences.” Even the Republican Chair of the Senate Foreign Relations Committee, Senator Bob Corker of Tennessee expressed some hesitancy over the bill. He said, “We were able to get some changes to make it less damaging to potential dangers over time. We as a nation have got more to lose on sovereignty issues than any other nation in the world. If the White House actually vetoes this, I think there will be whole levels of discussion.”[9]

Senator John Cornyn, the author of the bill, however, started a barrage of comments urging President Obama to sign the bill by saying on September 9, “the families of those lost in attacks like that on September 11th should have every means at their disposal to seek justice. . . . I hope the President will sign it into law.”  On the Senate floor on September 12 Cornyn said: “It’s important for us to send a message that that evil shall not prevail. . . . [The] victims [of 9/11] and their families still don’t have the ability to get justice from the people, including the governments, who helped fund those terrorist attacks. And that’s where the bill . . . [JASTA] comes into play because if this legislation is signed by the President, it will become the law of the land . . . to make sure that these families who are still grieving and still don’t have closure will be able to seek justice in a court of law against the people who killed their loved one on September 11th.” Cornyn on September 13 threatened an override of a presidential veto of the bill.[10]

President Obama, however, did not sign the bill into law. Instead, On September 23, he vetoed the bill as will be discussed in a subsequent post.

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[1] Library of Congress, THOMAS: S.2040 Justice Against Sponsors of Terrorism Act . Going back to 2009, earlier versions of this law were introduced, but I have not examined the history of those versions. If a reader of this post has done so, please elaborate in a comment to this post.

[2] Cong. Record S2845-48 (May 17, 2016); Mazzetti, Senate Passes Bill Exposing Saudi Arabia to 9/11 Legal Claims, N.Y. Times (May 17, 2016).

[3] U.S. Cong. Rec. S2845-2848 (May 17, 2016).

[4] Schumer, Schumer Announces Passage of Justice Against Sponsors of Terrorism Bill—Urges House to Quickly Pass Legislation Allowing American Families To Seek Justice After 9/11 Attacks (May 17, 2016); Schumer, Schumer Urges House To Swiftly Pass JASTA Bill; Law Would Allow Victims To Seek Justice for Terrorist Acts on U.S. Soil, Senator Says American Families Deserve Their Day in Court (Sept. 7, 2016).

[5] Cong. Record H5239-44 (Sept. 9, 2016); Library of Congress, THOMAS: H.R.3815 Justice Against Sponsors of Terrorism Act.

[6] See n.2 supra.

[7] Mazzetti, In 9/11 Document, View of a Saudi Effort to Thwart U.S. Action on Al Queda, N.Y. Times (July 15, 2016);    House/Senate Select Comm., 28 Pages of the 2002 Congressional Inquiry into the Sept. 2011 Attacks, N.Y. Times (July 15, 2016).

[8] White House, Press Briefing by Press Secretary Josh Earnest (July 15, 2016).

[9] Steinhauer, House Passes Bill Allowing 9/11 Lawsuits Against Saudi Arabia; White House Hints at Veto, N.Y. Times (Sept. 9, 2016).

[10] Cornyn, Cornyn Calls on President to sign 9/11 Victims Bill (Sept. 9, 2016);Cornyn, Cornyn: American People Support 9/11 Victims Bill (Sept. 12, 2016); Cornyn, Cornyn to White House: Don’t Keep 9/11 Families Waiting (Sept. 13, 2016); Cornyn, Cornyn Presses White House to Act on 9/11 Victims Bill (Sept. 19, 2016); Cornyn, Cornyn to White House: Stop Stalling on 9/11 Bill (Sept. 20, 2016).

 

 

President Obama’s Civics Lesson at Town Hall Meeting in London

On April 23, 2016, President Barack Obama addressed a town-hall meeting of 500 young Leaders of the United Kingdom at London’s Lindley Hall. [1] Below are photographs of Obama and of some of the young leaders at the meeting.

Obana UK more

London crowd

 

 

 

 

Here is Obama’s civics lesson that is directly relevant to U.S. citizens

Post-World War II World

The U.S. and Great Britain “ultimately made up [over the American Revolutionary War] and ended up spilling blood on the battlefield together [in World War II], side-by-side, against fascism and against tyranny, for freedom and for democracy.  And from the ashes of war, we led the charge to create the institutions and initiatives that sustain a prosperous peace — NATO; Bretton Woods, the Marshall Plan, the EU.  The joint efforts and sacrifices of previous generations of Americans and Brits are a big part of why we’ve known decades of relative peace and prosperity in Europe, and that, in turn, has helped to spread peace and prosperity around the world.“

“And think about how extraordinary that is.  For more than 1,000 years, this continent was darkened by war and violence.  It was taken for granted.  It was assumed that that was the fate of man.  Now, that’s not to say that your generation has had it easy.  Both here and in the United States, your generation has grown up at a time of breathtaking change.”

“You’ve come of age through 9/11 and 7/7 [the date of the 2005 terror attacks on a London bus and Underground trains].  You’ve had friends go off to war.  You’ve seen families endure recession.  The challenges of our time — economic inequality and climate change, terrorism and migration all these things are real.  And in an age of instant information, where TV and Twitter can feed us a steady stream of bad news, I know that it can sometimes seem like the order that we’ve created is fragile, maybe even crumbling, maybe the center cannot hold. And we see new calls for isolationism or xenophobia.  We see those who would call for rolling back the rights of people; people hunkering down in their own point of view and unwilling to engage in a democratic debate.  And those impulses I think we can understand.  They are reactions to changing times and uncertainty. “

“I implore you to reject those calls to pull back.  I’m here to ask you to reject the notion that we’re gripped by forces that we can’t control.  And I want you to take a longer and more optimistic view of history and the part that you can play in it. I ask you to embrace the view of one of my predecessors, President John F. Kennedy, who once said:  “Our problems are man-made.  Therefore, they can be solved by man.  And man can be as big as he wants.”

The “world, for all of its travails, for all of its challenges, has never been healthier, better educated, wealthier, more tolerant, less violent, more attentive to the rights of all people than it is today. “

“That doesn’t mean we don’t have big problems.  That’s not a cause for complacency, but it is a cause for optimism.  You are standing in a moment where your capacity to shape this world is unmatched.  What an incredible privilege that is.”

Reject “pessimism and cynicism; know that progress is possible, that our problems can be solved.  Progress requires the harder path of breaking down barriers, and building bridges, and standing up for the values of tolerance and diversity that our nations have worked and sacrificed to secure and defend.  Progress is not inevitable, and it requires struggle and perseverance and discipline and faith.”

“Fighting for change that you may not live to see, but that your children will live to see.  That’s what this is all about. . . . Whether in the Cold War or world war, movements for economic or social justice, efforts to combat climate change — our best impulses have always been to leave a better world for the next generation.”

Historical Perspective

Abolitionists “in the 1700s . . . were fighting against slavery, and for a hundred years built a movement that eventually led to a civil war, and the amendments to our Constitution that ended slavery and called for equal protection under the law.  It then took another hundred years for those rights that had been enshrined in the Constitution to actually be affirmed through the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  And then it’s taken another 50 years to try to make sure that those rights are realized.  And they’re still not fully realized. There’s still discrimination in aspects of American life, even with a black President.”

This history means “that if any of you begin to work on an issue that you care deeply about, don’t be disappointed if a year out, things haven’t been completely solved.  Don’t give up and succumb to cynicism if, after five years, poverty has not been eradicated, and prejudice is still out there somewhere, and we haven’t resolved all of the steps we need to take to reverse climate change. “

“Dr. [Martin Luther] King [,Jr.] said, ‘The arc of the moral universe is long, but it bends towards justice.’  And it doesn’t bend on its own.  It bends because we pull it in that direction.  But it requires a series of generations working and building off of what the previous one has done. “  (Emphasis added.)

Passion To Highlight Societal Problems

“As a general rule, I think that what, for example, Black Lives Matter is doing now to bring attention to the problem of a criminal justice system that sometimes is not treating people fairly based on race, or reacting to shootings of individuals by police officers, has been really effective in bringing attention to problems.”

 Need To Have a Strategy for Change and Compromise

But “once you’ve highlighted an issue and brought it to people’s attention and shined a spotlight, and elected officials or people who are in a position to start bringing about change are ready to sit down with you, then you can’t just keep on yelling at them.  And you can’t refuse to meet because that might compromise the purity of your position.”

“The value of social movements and activism is to get you at the table, get you in the room, and then to start trying to figure out how is this problem going to be solved.  You, then, have a responsibility to prepare an agenda that is achievable, that can institutionalize the changes you seek, and to engage the other side, and occasionally to take half a loaf that will advance the gains that you seek, understanding that there’s going to be more work to do, but this is what is achievable at this moment.

And too often what I see is wonderful activism that highlights a problem, but then people feel so passionately and are so invested in the purity of their position that they never take that next step and say, okay, well, now I got to sit down and try to actually get something done..”

Everyone has “to be principled, you have to have a North Star, a moral compass. There should be a [good] reason for you getting involved in social issues. . . . But you have to recognize that, particularly in pluralistic societies and democratic governments like we have in the United States and the UK, there are people who disagree with us.  They have different perspectives.  They come from different points of view.  And they’re not bad people just because they disagree with us.  They may, in fact, assert that they’ve got similar principles to ours, but they just disagree with us on the means to vindicate those principles.”

Compromise “does not mean surrendering what you believe, it just means that you are recognizing the truth, the fact that these other people who disagree with you or this other political party, or this other nation — that they have dignity too, that they have worth as well, and you have to hear them and see them.”

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[1] White House, Remarks by President Obama in Town Hall with Young Leaders of the UK (April 23, 2016); Gani, Barack Obama tells young people that progress is possible, Guardian (April 23, 2016); Hayden, Obama’s ‘Town Hall’ Meeting with British Youth Covered Gender Rights, Islamophobia, and Leadership, Vice News (April 23, 2016).

Does Cuba Have a Right To Terminate the U.S. Lease of Guantanamo Bay?

Whether Cuba has a legal right to terminate its lease of Guantanamo Bay to the U.S. is an important issue that has been addressed by Michael J. Strauss, an expert in international relations with a specialty in territorial leases by states. [1] A prior post referred to his 2013 article that touched on this topic, and this post is based upon his more extensive discussion of the issue in his 2009 book and a 2014 article. His book also helps clarify the history regarding the amount of the rent charged to the U.S. under the lease. [2]

Does Cuba have a legal right to terminate the lease?

As the lease does not grant Cuba an express right of termination and as there has been no decision by a court or arbitrator on the validity of any other purported termination right, no definitive answer can be given as to whether Cuba has a legal right to terminate the lease. At least the following four theories have been suggested for such a result.

First, after the Revolution, Cuba asserted that the lease was perpetual and, therefore, invalid. For example, a 1970 book by the Cuban Ministry of Foreign Affairs asserted, “The contract for the lease in perpetuity . . . lacks existence and juridical validity because it is faulty in its essential elements: a) radical incapacity of the government of Cuba to cede a piece of national territory in perpetuity; b) for the same reason, the object and the reason are illegal; c) consent was wrested through irresistible and unjust moral violence.” (Book at 104, 171.)

Strauss, however, rejects the notion that the lease is perpetual. As noted in the prior post, the lease does not have a set termination date, unlike most U.S. leases (commercial and residential) and most leases “at the state level” (or “are otherwise open to termination by various means”). (Book at 106.) The absence of a termination date, however, does not mean that the lease is perpetual as most perpetual “leases [at the state level] . . . tend to explicitly [so] specify.” (Book at 107.)

Moreover, “the lease has had clearly stated conditions by which it can be ended.” The original 1903 lease was for “the time required for the purposes of [U.S.] coaling and naval stations.” And the 1934 treaty, reconfirming the lease, provided that it could be terminated by U.S. abandonment of Guantanamo Bay or by mutual agreement. (Book at 108, 215, 233.)

In addition, on two occasions after the Cuban Revolution, the U.S. has considered terminating the lease. One was in U.S. internal discussions about ways to resolve the Cuban Missile Crisis of 1962, but that idea was rejected internally and not publicly disclosed. (Book at 109-12.) The second was the idea’s incorporation in section 201 of the Helms-Burton (Libertad) Act of 1996 requiring the U.S. in order to provide assistance to a hoped-for free and independent Cuba to “be prepared to enter into negotiations . . . to return the [U.S.] Naval Base at Guantanamo to Cuba or to renegotiate the present agreement under mutually agreeable terms.” (Book at 112-14, 249-50.)

A second legal theory for Cuba’s termination of the lease is a fundamental change in circumstances (rebus sic stantibus) from the lease’s negotiation and signing in 1903 to today. This theory is covered by Article 62 of the Vienna Convention on the Law of Treaties and was discussed in the prior post. Strauss discusses the views on this issue by international legal scholars and notes the reluctance of international tribunals to invoke this ground. Another difficulty with this theory is the passage of time (over 112 years). As a result, Strauss does not see it as a winning approach for Cuba. (Book at 114-19.) Related to this theory is the 1970 argument by Cuba that the purpose of the lease had ceased to exist: the purpose of the 1903 lease (enable the U.S. to maintain Cuba’s independence and protect its people) was negated by the 1934 treaty’s emphasis on friendly relations between the two countries and that treaty’s purpose was negated by the hostile relations after the Cuban Revolution. (Book at 171.)

A third legal theory, also discussed in the prior post, would be the argument that the lease was procured by “the threat of force or use of force in violation of the principles of international law embodied in the [U.N.] Charter” under Article 52 of said Vienna Convention. That Convention, however, provides in Article 4 that it can be used only by states that are parties to the Convention and only after they became parties, and Cuba became such a party on September 9, 1998. Moreover, the U.N. was not in existence when the lease was signed in 1903. Nor, says Strauss, has “a new peremptory norm of general international law emerged” on this issue that could be a basis for a Cuban claim of a right to terminate the lease. (Book at 119-21.) This theory was put forward in 1970 as part of an argument advanced in a book by Cuba’s Foreign Ministry. (Book at 171.)

The fourth legal theory for a Cuban claim to a right to terminate would be based on alleged U.S. breach of the lease. This is covered by Article 60 of said Vienna Convention and is limited to a “material breach,” which for present purposes is “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” Strauss discussed two possible grounds for this theory:

  • The lease restricts U.S. use of Guantanamo Bay to a “coaling station” or a “naval station,” and Cuba would have to argue and prove that the U.S. has exceeded those uses. Strauss is skeptical of such a general argument because the U.S. consistently has opted for a broad interpretation of these limitations with Cuba’s tacit agreement and because it should be difficult to satisfy the definition of “material” breach. However, the U.S. use of Guantanamo as a facility for detention of alleged terrorists after 9/11 and the U.S.’ alleged violations of the human rights of such detainees would be a stronger claim reinforced by consistent Cuban objections to such uses and by the remote possibility that Cuba could be subject to liability for any human rights violations at the Base. (Book at 121-23, 144-55, 174; Cuba Responsibility.)
  • In Article III of the second part of the 1903 lease the U.S. “agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within [Guantanamo].” The U.S. has clearly breached this provision by having a McDonald’s Restaurant and a bowling alley on the site, but it is difficult to see such ventures as a “material breach” of the lease. A stronger argument for such a claim could be built on the U.S.’ more recently having private-contractor employees participate in the interrogation and alleged abuse of detainees. Such an argument also ties in with the assertion that the U.S.’ use of Guantanamo as a detention facility and its alleged abuse of detainees constitutes a material breach of the lease. But do such breaches affect the object and purpose of the lease and thus constitute a material breech? (Book at 123; Private Sector; Cuba Responsibility.)

The Amount of the Rent

The original 1903 lease called for annual rent of $2,000 in gold coin for Guantanamo Bay and Bahía Honda without a breakdown for the two territories. Because the Guantanamo Bay territory constituted 94.5% of the total territory, the rent hypothetically could be divided on that basis, resulting in annual rent for Guantanamo of $1,890. This amount, argues Strauss, was “considerably higher than what any other party would have paid in 1903 for renting the same territory.” In other words, the rent was a material element, not a token or trivial amount. (Book at 126.)

In 1916, however, the U.S. presumably abandoned Bahía Honda, and the rent remained at $2,000 in gold coin, which in Strauss’ judgment was still in excess of the fair market value of the Guantanamo territory. (Book at 127.)

In 1933, at the start of the Great Depression, the U.S. left the gold standard, and the next year (1934), the U.S. Dollar was devalued with “the value of old U.S. gold dollars being fixed at $1.693125 in legal U.S. currency. The annual rent of $2,000 in gold for Guantanamo Bay, when converted at this rate, became $3,386.25. This was the amount the [U.S.] began paying annually to Cuba, by U.S. government check, starting in 1934.” This change was made unilaterally by the U.S. without a signed agreement with Cuba, which acquiesced in the change. (Book at 127-30.)

Similar changes were made unilaterally by the U.S. in 1973 with an increase of the annual rental check to $3,676.50 (based upon a 1972 revision in the value of the old U.S. gold dollar) and in 1974 to $4,085 (based upon a 1973 revision in the value of the old U.S. gold dollar). (Book at 130-31.) [3]

As mentioned in a prior post, since 1974 the $4,085 figure has continued to be used by the U.S. for the annual rental checks that have not been cashed by Cuba since the Cuban Revolution take-over of the government in 1959 (except for the first one in 1959). (Book at 136-37).

As Strauss recognizes, the rental amount has never been adjusted to reflect ever changing fair market values of the territory. As a result, the annual rental for at least the half-century after the Cuban Revolution has become a token payment. (Book at 131-32.)

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[1] Strauss is Lecturer in International Relations at the Centre d’Etudes Diplomatiques et Stratégiques, Paris, specializing in territorial leases as phenomena of international relations and international law for resolving sovereignty disputes. Prior to entering academia, he was an international journalist and served as bureau chief for Agence France-Presse’s AFX News in Paris, Knight-Ridder Financial News in Madrid, and Dow Jones News Service in Geneva. He took his Ph.D. in International Relations and Diplomacy from the above Centre and his M.Sc. in Journalism from Columbia University, where he was an International Fellow in the School of International Affairs. He is the author of The Viability of International Leases in Resolving International Sovereignty Disputes: A Comparative Study.

[2] The Strauss article that was cited in the prior post is Cuba and State Responsibility for Human Rights at Guantanamo, 37 So. Ill. Univ. L.J. 533, 533-36 (2013) [hereafter “Cuba Responsibility”].  This post is based upon Strauss’ The Leasing of Guantanamo Bay (Praeger International 2009) [hereafter “the Book”] and U.S. Socialism in Cuba: Implications of Prohibiting the Private Sector at Guantanamo Bay, 24 Am. Soc’y for Study of Cuban Economy 129 (2014) [hereafter “Private Sector”]

[3] The earlier post erroneously asserted the $4,085 rental fee started in the mid-1930’s.

 

 

 

 

 

 

Resolution of Issues Regarding Cuba-U.S. Lease of Guantanamo Bay

Since the December 17, 2014, announcement of rapprochement, Cuba has voiced at least three demands or issues regarding its lease of Guantanamo Bay to the U.S. The most serious one is ending the lease and returning this territory to complete Cuban control. The second is the U.S.’ paying for use of the territory since the Cuban Revolution’s takeover of the island in 1959. The third is Cuba’s objection to the U.S.’ establishing and maintaining a prison for detainees after 9/11 and to the U.S.’ alleged mistreatment and torture of those detainees.

Understanding these issues requires an examination of (a) the Cuban war for independence, 1895-1898, and the Spanish-American War of 1898; (b) the terms of seven documents relating to the lease, all of which predate the Cuban Revolution; and (c) the position of the Revolutionary government toward these documents and the lease. [1] In conclusion, this post will discuss methods for resolving these issues.

Before all of that, here are maps and photographs of Guantanamo Bay.

Guant map1

guantanamo.bay

 

 

 

 

Gitmo look west

_245513_us_base_guantanamo300

 

 

 

The Cuban War for Independence and the Spanish-American War [2]

In 1895 Cubans started a revolt or war of independence from Spain, which responded with ferocity, launching its “reconcentrado” campaign that herded 300,000 Cubans into re-concentration camps. Spain’s tactics infuriated many Americans, who began to raise money and even fight on the side of the Cuban nationalists while American businesses with economic interests on the island were worried about the safety of their investments. U.S. President William McKinley wanted an end to the Cuban-Spanish conflict, but demanded that Spain act responsibly and humanely and that any settlement be acceptable to Cuban nationals.

In November 1897, an amicable resolution appeared possible when the Spanish granted the Cubans limited autonomy and closed the re-concentration camps. But after pro-Spanish demonstrators rioted in Havana in January 1898 to protest Spain’s more conciliatory policies, McKinley ordered the U.S. battleship Maine to Havana to protect American citizens and property and to demonstrate that the U.S. still valued Spain’s friendship.

With the Maine safely moored in Spanish waters, the Spanish-American relationship was jolted by the publication in a New York newspaper of a letter by the Spanish minister to the U.S. describing McKinley as “weak and a bidder for the admirations of the crowd” and revealing that the Spanish were not negotiating in good faith with the U.S. Americans saw the letter as an attack on both McKinley’s and the nation’s honor. The American public’s anger only intensified following an explosion on the Maine and its sinking on February 15, 1898, in Havana Harbor, killing 266 crew members. The Navy, on March 21, reported that an external explosion, presumably from a Spanish mine, had destroyed the ship.

With diplomatic initiatives exhausted and the American public wanting an end to the Cuban crisis, McKinley, in mid-April 1898, asked Congress for authority to intervene in Cuba, which it granted. Spain soon broke relations with the U.S., and the U.S. blockaded Cuba’s ports. On April 23, Spain declared war on the U.S. Two days later the U.S. did likewise with the Teller amendment committing the U.S. to the independence of Cuba once the war had ended, disclaiming “any disposition or intention to exercise sovereignty, jurisdiction or control over said island, except for the pacification thereof.”

What became known as the Spanish-American War lasted only a little over three months with U.S. victories in Cuba, Puerto Rico and the Philippines ending in a cease fire on August 12, 1898. Under the Paris Peace Treaty of December 10, 1898, the U.S. obtained Puerto Rico, Guam, and the Philippine Islands while Spain renounced its claim to Cuba, which remained under U.S. military occupation until 1902.

Thereafter, Cuba would be a de facto U.S. protectorate until 1934.

The Lease of Guantanamo Bay

The first five of the seven documents relating to the Guantanamo lease were created during the period that Cuba was a de facto protectorate of the U.S.

  1. Act of Congress (March 2, 1901). On this date, President McKinley signed an Act of Congress that included what was called “the Platt Amendment,” which authorized the U.S. President “to leave the government and control of the island of Cuba to its people so soon as a government shall have been established in said island under a constitution which, either as a part thereof or in an ordinance appended thereto, shall define the future relations of the United States with Cuba, [and shall include the following: provisions]:
  • “I. That the government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgement in or control over any portion of said island.”
  • “III. That the government of Cuba consents that the [U.S.] may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the treaty of Paris on the [U.S.], now to be assumed and undertaken by the government of Cuba.”
  • “”VII. That to enable the [U.S.] to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the government of Cuba will sell or lease to the [U.S.] lands necessary for coaling or naval stations at certain specified points to be agreed upon with the President of the United States.”
  1. Constitution of Cuba (May 20, 1902). On this date, the Constitution of the Republic of Cuba was promulgated, and Article VII of its Appendix provided: “To enable the [U.S.] to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Cuban Government will sell or lease to the [U.S.] the lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.”
  1. U.S.-Cuba Agreement (February 23, 1903). Pursuant to the just mentioned Cuban constitutional provision, on February 23, 1903, the U.S. and Cuba entered into the “Agreement . . . for the Lease of Lands for Coaling and Naval stations.” Its Article I stated that Cuba “hereby leases to the United States, for the time required for the purposes of coaling and naval stations, the following described areas of land and water [Guantanamo Bay and Bahia Honda] [3] situated in the Island of Cuba”

This Agreement’s Article II stated, “The grant of the foregoing Article shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.” (Emphasis added.)

This Agreement concluded in Article III, whereby the U.S. “recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the [U.S.] of said areas under the terms of this agreement the [U.S.] shall exercise complete jurisdiction and control over and within said areas.”

Unlike most leases, this agreement did not set forth a set period of time for the lease or the compensation or rent to be paid.

  1. Treaty between the United States of America and Cuba (May 22, 1903). This treaty in Article I states, “The Government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes, or otherwise, lodgment in or control over any portion of said island.”

Article III provides, “The Government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on the United States, now to be assumed and undertaken by the Government of Cuba.”

Article VII adds, “To enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.”

  1. Lease of Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda (July 2, 1903). This instrument details additional terms of the lease in seven articles. Its Article I specified the compensation that the U.S. would pay to Cuba for the leased territories: “the annual sum of two thousand dollars, in gold coin of the United States, as long as the former shall occupy and use said areas of land by virtue of said agreement.” Under Article II, the U.S. agreed “that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas.”

There still was no set period of time for the lease of the territory.

On November 12, 1903, Guantánamo Bay Outer Harbor passed into U.S. hands “without any formality” and was “effected in a quiet manner.”

  1. Treaty between United States of America and Cuba (May 29, 1934)By 1934 there had been changes in the overall relationship between the two countries. The U.S., pursuing President Franklin D. Roosevelt’s “good neighbor” policy, proposed to nullify the previously mentioned May 22, 1903, U.S.-Cuba Treaty. Cuba had become increasingly upset with the earlier treaty’s Platt Amendment granting the U.S. the right to intervene in Cuba, and Cuba welcomed the idea of nullifying the 1903 treaty. Negotiations to that end proceeded quickly; and a new Cuban-American Treaty of Relations was signed on May 29, 1934, and after rapid ratifications by both states it entered into force on June 9, 1934. This effectively ended the U.S. de facto protectorate of Cuba.

The 1934 treaty in Article II also stated: “All the acts effected in Cuba by the [U.S.] during its military occupation of the island, up to May 20,1902, the date on which the Republic of Cuba was established, have been ratified and held as valid; and all the rights legally acquired by virtue of those acts shall be maintained and protected.”

Article III added the following language with respect to the naval station at Guantánamo Bay: “The supplementary agreement in regard to naval or coaling station signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantánamo. So long as the United States of America shall not abandon the said naval station of Guantánamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territory it now has, with the limits that it has on the date of the signature of the present Treaty.”

The implication of Article III is that the U.S. at any time can walk away from the lease at Guantánamo (abandon the base), but the Cubans can never revoke the lease.

  1. Change in Amount of Rent (1938). Although the source document has not been located, secondary sources say the annual rent for Guantanamo was changed in 1938 to $4,085 (U.S. Dollars), which was the 1938 equivalent of $2,000 in U.S. gold coins. That term has never been changed. Indeed, the U.S. documents transmitting the annual rent checks in that amount for 2011, 2012 and 2013 merely refer to the July 2, 1903, Lease while stating the amount of $4,085 was “computed in the manner of which the government of Cuba has been advised in connection with previous rental payments.” [4]

Cuba’s Revolutionary Government’s Positions Regarding the Lease

Soon after the Cuban Revolution took over the government in January 1959, it started calling for the U.S. to get out of Guantanamo. Over time Cuba set out four different, and sometimes contradictory, legal arguments for invalidating the lease. Even though some international law experts thought Cuba had a good argument for such invalidation: rebus sic stantibus (fundamental change of circumstances), [5] Cuba never instituted legal proceedings to that end. In addition, while the U.S.S.R. still existed and was a major Cuban ally, the Soviets argued that the lease was an “unequal treaty,” but that legal theory was not embraced by the U.S. and most Western nations.

In addition, Cuba has refused to cash the annual U.S. checks for $4,085 made out to the “Treasurer General of the Republic” (a position that ceased to exist after the Revolution). One such check, however, was cashed in the early days of the Revolution, Cuba says, due to confusion. (Many years ago during a televised interview, Fidel Castro opened a desk drawer in his office to show the collection of uncashed checks.)

At least by 2004, Cuba accepted the lease as valid while asserting that control over Guantanamo “will eventually revert to Cuba because of the nature of the arrangement, ad defined by its domestic law, which prohibits perpetual leases. For example, in 2004, Cuba’s Foreign Ministry stated the arrangement “does not grant a perpetual right but a temporary one over that part of our territory, by which, in due course, as a just right of our people, the illegally occupied territory of Guantanamo should be returned by peaceful means to Cuba.” In short, said Cuba, the lease is valid, but U.S. occupation of the territory is illegal. This argument is ridiculous, in the opinion of this blogger, a retired U.S. lawyer.

There have been at least two U.S. responses to these Cuban arguments of invalidity of the lease. First, under the international legal principle of pacta sunt servanda (the contract is the law between the parties), the lease remained a valid agreement between the two states and Cuba has a legal obligation to adhere to agreements previously entered into despite a change in governments. [6] Second, the revolutionary government’s acceptance of at least one of the annual rent checks was an admission of the lease’s validity or a waiver of Cuba’s objections thereto.

Conclusion

As a retired U.S. lawyer, without doing any legal research, I see potential issues of lease invalidity due to (a) possible undue influence or coercion by the U.S. in establishing the terms of the original lease in 1903 and the modifications in 1934 and 1938; [7] and (b) the U.S. use of Guantanamo possibly exceeding the uses permitted by the lease. Any such claim, however, would be potentially subject, at least in a domestic legal dispute, to the affirmative defenses of waiver, estoppel, ratification, laches and statute of limitations. [8]

The argument for invalidity based on the U.S. use of Guantanamo has been rejected by Professor Strauss. He notes that the lease permits the use of Guantanamo as a “naval station,” which is a term created by the U.S. to allow its Navy to determine the range of activities that could occur at such a “station” and which has been used for fewer functions than a full naval base and more recently as a full naval base. As a result, says Strauss, the limitation on use is “largely meaningless in a practical sense.”

In any event, if Cuba now were to assert a right to terminate the lease, over U.S. objection, then I suggest that such a claim should be submitted to a panel of three arbitrators at the Permanent Court of Arbitration at the Hague under its existing Arbitration Rules. Presumably the U.S. in addition to resisting the claim would have a contingent counterclaim (in the event of an arbitration award of termination) for reimbursement for the value of U.S. improvements to the territory.

Such an arbitration proceeding should also include any Cuban claim for compensation for the U.S. use of Guantanamo for 66 years (1960-2015). If, however, such a claims is only for the $4,085 annual rent established in 1938 for a total of $269,610 (without interest), then the claim should be resolved quickly by the U.S. paying the amount of the claim. If, however, the claim is for a higher amount based upon some theory to void the $4,085 figure and instead use a larger amount of alleged fair market value, then presumably such a claim would be contested by the U.S. and a proper claim for arbitration.

Of course, at any time the two parties could negotiate a new lease of Guantanamo, presumably for a specific term of years, with a right of renewal, at a higher and annually adjustable rent. Such a new lease could also impose limits on U.S. use of the territory such as prohibition of the operation of a prison or detention facility.

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[1] An excellent overall discussion of the U.S. lease of Guantanamo is contained in Strauss, Cuba and State Responsibility for Human Rights at Guantanamo, 37 So. Ill. Univ. L.J. 533, 533-36 (2013).  See also Notes on Guantanamo Bay; Wikipedia, Guantanamo Bay Navy Base.

[2] This brief summary of the two wars is based on American President: William McKinley: Foreign Affairs, Miller Center, Univ. Virginia.

[3] Bahia Honda was never used by the U.S. and reverted to Cuban control.

[4] Boadle, Castro: Cuba not cashing US Guantanamo rent checks, Reuters (Aug. 17, 2007); Shiffer, Annual rent for Girmo Naval Base: $4,085, payable to Cuba, StarTribune (Oct. 10, 2014) (contains U.S. transmittal advices for rental checks for 2011, 2012 and 2013).

[5] The Vienna Convention on the Law of Treaties that entered into force on January 20, 1980, sets forth “the codification and progressive development of the law of treaties,” which are “international agreement[s] concluded between States in written form and governed by international law.” (Preamble & Art. 2(1)(a).) Its Article 62 recognizes a “fundamental change of circumstances” as a ground for “terminating or withdrawing from” a treaty and defines the conditions for such a ground. Cuba is a party to the treaty, and although the U.S. is not, the State Department has said that this Convention “is already generally recognized as the authoritative guide to current treaty law and practice.” (David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 127-28 (4th ed. LexisNexis 2009).)

[6] The Vienna Convention on the Law of Treaties notes that “the principles of free consent and of good faith and pacta sunt servanda are universally recognized” and its Article 26 under the heading “Pacta sunt servanda” states, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

[7] The Vienna Convention on the Law of Treaties in Article 52 provides, “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”

[8] The Vienna Convention on the Law of Treaties provides in Article 45 that a “State may no longer invoke [breach by the other party or fundamental change of circumstances] if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation . . .; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or its maintenance in force or in operation . . . .”