American Civil Liberties Union

U.S. Commission on Unalienable Rights Is Launched

On July 8, 2019, the U.S. State Department launched its Commission on Unalienable Rights.[1]

Secretary of State Pompeo’s Remarks

At the launch Secretary of State Michael Pompeo said “the Trump administration has embarked on a foreign policy that takes seriously the founders’ ideas of individual liberty and constitutional government. Those principles have long played a prominent role in our country’s foreign policy, and rightly so. But as that great admirer of the American experiment Alex de Tocqueville noted, democracies have a tendency to lose sight of the big picture in the hurly-burly of everyday affairs. Every once in a while, we need to step back and reflect seriously on where we are, where we’ve been, and whether we’re headed in the right direction, and that’s why I’m pleased to announce today the formation of a Commission on Unalienable Rights.”

The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” (Emphasis added.)

“With the indispensable support of President Ronald Reagan, a human rights revolution toppled the totalitarian regimes of the former Soviet Union. Today the language of human rights has become the common vernacular for discussions of human freedom and dignity all around the world, and these are truly great achievements.”

“But we should never lose sight of the warnings of Vaclav Havel, a hero of the late-20th-century human rights movement, that words like ‘rights’ can be used for good or evil; ‘they can be rays of light in a realm of darkness … [but] they can also be lethal arrows.’ And as Rabbi Jonathan Sacks has observed, the evils of any time and place will be justified in whatever is the dominant discourse of that time and of that place. We must, therefore, be vigilant that human rights discourse not be corrupted or hijacked or used for dubious or malignant purposes.”

“It’s a sad commentary on our times that more than 70 years after the Universal Declaration of Human Rights, gross violations continue throughout the world, sometimes even in the name of human rights. International institutions designed and built to protect human rights have drifted from their original mission. As human rights claims have proliferated, some claims have come into tension with one another, provoking questions and clashes about which rights are entitled to gain respect. Nation-states and international institutions remain confused about their respective responsibilities concerning human rights.” (Emphasis added.)

“With that as background and with all of this in mind, the time is right for an informed review of the role of human rights in American foreign policy.” (Emphasis added,)

The Secretary hopes that the Commission “will revisit the most basic of questions: What does it mean to say or claim that something is, in fact, a human right? How do we know or how do we determine whether that claim that this or that is a human right, is it true, and therefore, ought it to be honored? How can there be human rights, rights we possess not as privileges we are granted or even earn, but simply by virtue of our humanity belong to us? Is it, in fact, true, as our Declaration of Independence asserts, that as human beings, we – all of us, every member of our human family – are endowed by our creator with certain unalienable rights? (Emphasis added.)

To put it another way, “the commission’s charge is to point the way toward that more perfect fidelity to our nation’s founding principles. . . .” (Emphasis added.)

Secretary Pompeo’s Prior Wall Street Journal Article[2]

The day before the Department’s launching of the Commission. Secretary Pompeo published an article about the Commission in the Wall Street Journal, in which he made the following comments beyond what he said at the official launch.

“America’s Founders defined unalienable rights as including ‘life, liberty, and the pursuit of happiness.’ They designed the Constitution to protect individual dignity and freedom. A moral foreign policy should be grounded in this conception of human rights.”

“Yet after the Cold War ended, many human-rights advocates turned their energy to new categories of rights. These rights often sound noble and just. But when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights granted by governments. Unalienable rights are by nature universal. Not everything good, or everything granted by a government, can be a universal right. Loose talk of ‘rights’ unmoors us from the principles of liberal democracy.” (Emphasis added.)

He hopes “that its work will generate a serious debate about human rights that extends across party lines and national borders.” It “will address basic questions: What are our fundamental freedoms? Why do we have them? Who or what grants these rights? How do we know if a claim of human rights is true? What happens when rights conflict? Should certain categories of rights be inextricably ‘linked’ to other rights?”

“The human-rights cause once united people from disparate nations and cultures in the effort to secure fundamental freedoms and fight evils like Nazism, communism and apartheid. We have lost that focus today. Rights claims are often aimed more at rewarding interest groups and dividing humanity into subgroups.” (Emphasis added.)

“Oppressive regimes like Iran and Cuba have taken advantage of this cacophonous call for ‘rights,’ even pretending to be avatars of freedom. No one believed the Soviet call for collective economic and civil rights was really about freedom. But after the Cold War ended, many human-rights advocates adopted the same approach, appealing to contrived rights for political advantage.” (Emphases added.)

“The commission’s work could also help reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions. Many have embraced and even accelerated the proliferation of rights claims—and all but abandoned serious efforts to protect fundamental freedoms.” (Emphasis added.)

“Human-rights advocacy has lost its bearings and become more of an industry than a moral compass. And ‘rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.” (Emphasis added.)

Announcement of Commission’s Chair

On July 8, the Secretary announced that the Chair of the Commission will be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, among many honors.

Professor Glendon acknowledged this appointment with the following remarks:

“Secretary, I am deeply grateful for the honor of chairing this new commission, and I wanted to thank you especially for giving a priority to human rights at this moment when basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators. At the same time, I understand that the mission that you have set us is a challenging one. You’ve asked us to work at the level of principle, not policy, and you’ve asked us to take our bearings from the distinctive rights tradition of the United States of America, a tradition that is grounded in the institutions without which rights would not be possible: constitutional government and the rule of law. I want to assure you, Mr. Secretary, that we will do our very best to carry out your marching orders and to do so in a way that will assist you in your difficult task of transmuting principle into policy.”

Announcement of Nine Other Commission Members

The Secretary also announced the appointment of the following nine additional members of the Commission. (The Commission’s Charter calls for 15 members so there may be an additional five members to be named later.)[3]

Russell Berman. He is the Walter A. Haas Professor in the Humanities at Stanford University, a Senior Fellow at the Hoover Institution and co-chair of its Working Group on Islamism and the International Order. Recently he has written about the reemergence of anti-Semitism and China’s “programmatic efforts to suppress the ethnic identity of the Uighur people” of Islamic faith.

Peter Berkowitz. He is the Ted and Dianne Taube Senior Fellow at the Hoover Institution and a member of its Military History/Contemporary Conflict Working Group and a member of the State Department’s Policy Planning Staff. He “studies and writes about, among other things, constitutional government, conservatism and progressivism in the United States, liberal education, national security and law, and Middle East politics.”

Paolo Carozza. He is Professor of Law and Political Science at the University of Notre Dame and Director of its Kellogg Institute for International Studies an interdisciplinary, university-wide body “focusing on the themes of democracy and human development.” His expertise is in the areas of comparative constitutional law, human rights, law and development and international law. From 2006 through 2010 he was a member of the Inter-American Commission on Human Rights, the principle international body for protecting human rights in the Western Hemisphere, and he also has served the Holy See in various capacities.

Hamza Yusuf Hanson. He is an American Islamic scholar, proponent of classical Islamic sciences and founder of Zaytuna College, a Muslim liberal arts college in Berkeley, California. According to The New Yorker Magazine, he is “perhaps the most influential Islamic scholar in the Western world.” He was born in the U.S. as Mark Hanson and grew up a practicing Greek Orthodox Christian, but at age 19 he read the Qur-an and converted to Islam.

Jacqueline C. Rivers. She is Lecturer on Sociology at Harvard University. She holds B.A. and Ph. D degrees with honors from Radcliffe College and Harvard and has served as Doctoral Fellow in the Multidisciplinary Program in Inequality and Social Policy of the Harvard’s J. F. Kennedy School of Government and a Graduate Research Fellow of the National Science Foundation. Rivers, an African-American, also is the Executive Director of the Seymour Institute on Black Church and Policy Studies, which seeks to create and promote a philosophical, political and theological framework for a pro-poor, pro-life, pro-family movement within the ecumenical Black Church both domestically and internationally.

Meir Soloveichik. He is an American Orthodox rabbi with a Ph.D. degree in religion from Princeton University. He has written extensively about Jewish thought and life, the relationship between Judaism and Christianity and the limits of interfaith dialogue. In 2012 he gave the opening invocation at the Republican National Convention.

Katrina Lantos Swett. She is the former chair of the U.S. Commission on International Religious Freedom and now the President of the Lantos Foundation for Human Rights, which is named in honor of her father, a Holocaust survivor and former Democratic Congressman. She is married to Richard Swett, former Ambassador to Denmark and former Congressman, and she converted to his faith, The Church of Jesus Christ of Latter-day Saints. She has been an unsuccessful Democratic candidate for the U.S. House of Representatives and Senate.

Christopher Tollefsen. He is the University of South Carolina’s College of Arts and Sciences Distinguished Philosophy Professor with specialization in moral philosophy, natural law ethics, practical ethics and bioethics. He has written many articles for “Public Discourse,” the journal of the Witherspoon Institute, which seeks to promote public understanding of the moral foundations of free societies. He also is a co-author of Embryo: A Defense of Human Life and the editor of John Paul II’s Contribution to Catholic Bioethics.

David Tse-Chien Pan. He is Professor of German at University of California, Irvine. His research has focused on the problem of aesthetic experience as a mediator of human history in order to understand how history develops through a process of recollection and interpretation that depends on judgment and takes the reception of works of art as its model.

Reactions

Secretary Pompeo’s Wall Street Journal article for the first time really sets forth what has been speculated as the Commission’s true mission: redefinition and narrowing of international human rights.

A senior State Department official, in a report by CBS News, made the same point, perhaps more diplomatically, when he said the Commission will act like a “study group, examining the concept of universal human rights, where those rights come from and the difference between inherent rights and those prescribed by governments. . . . Unalienable rights are granted to everyone, everywhere, at all times. It doesn’t matter if you’re straight or gay, or a man or a woman, or black, white, brown or purple.’”

However, this official said, topics like abortion and gay marriage will not be part of the panel’s agenda. ‘Women’s rights or gay rights or healthcare rights, those are domestic issues.’ At some point gay marriage might be considered one of those, but this is an issue that’s being worked out on a nation-state level.’”

The importance of this Commission from the Trump Administration’s standpoint is underscored by the impressive resumes of its Chairperson and its initial other members. Therefore, advocates for the existing body of international human rights law need to prepare to combat this onslaught.

Amnesty International USA immediately said there was no reason for such a review given the decades-old protections in place and that the use of the word “unalienable” might be a code word to narrow human rights to the Founders’ notions of the late 18^th century. Similar thoughts were expressed by the American Civil Liberties Union: “taxpayer resources would be better spent assessing the administration’s failure to meet basic human rights obligations, rather than redefining those rights.”

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[1] State Dep’t, Secretary of State Michael R. Pompeo Remarks to the Press (July 8, 2019); Sullivan & Wong, State Department Creates Advisory Panel on Human Rights, N.Y. Times (July 8, 2019); Reuters, Pompeo Launches Panel to Review Human Rights in U.S. Foreign Policy, N.Y. Times (July 8, 2019)(notes Trump Administration’s U.N. actions against sexual and reproductive health measures); Assoc. Press, Trump Administration Reviews Human Rights’ Role in US Policy, N.Y. Times (July 8, 2019). Previous posts to this blog have discussed this Commission: Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019).

[2] Pompeo, Unalienable Human Rights and U.S. foreign Policy, W.S.J. (July 7, 2019).

[3] Another source listed two possible additional members of the Commission: Kiron Skinner and F. Cartwright Weiland. Skinner is the Director of Policy Planning at the State Department and a former Research Fellow at Stanford University’s Hoover Institution and a professor at Carnegie Mellon University. Weiland is a current or former chief speechwriter for Senator John Cornyn and Republican Whip (Rep., TX) and/or Policy Analyst at Texas Conservative Coalition Research Institute. (Ruffini, Mike Pompeo unveils new “Unalienable Rights” commission amid concerns over progressive rollbacks, CBS News (July 8, 2019).)

“What Needs to Die?”

This was the title of the November 4 sermon by Executive Associate Pastor, Rev. Meghan K. Gage-Finn, at Minneapolis’ Westminster Presbyterian Church’s “Gathered at Five,” a casual, conversational worship service at 5:00 pm. The location: Westminster Hall in the church’s new addition. Below are photographs of Rev. Gage-Finn and the Hall.

Sermon

(This sermon commented on All Saints Day, which was celebrated in the regular morning worship service with Rev. Tim Hart-Andersen’s “What Endures?” sermon.)

“This morning in worship we celebrated All Saints’ Day, remembering the names and lives of those in our congregation who died in the last year. We paused to recall their faces, their voices, their service to Westminster and community. The celebration of All Saints’ Day in the church began in the 9th century, but today in our context it is less about honoring the Saints (with a “Capital S”) and more about giving glory to God for the ordinary, holy faithful ones of our time whom we remember and love. It is yet another chance to declare and rejoice that nothing in all of creation can separate us from God’s love, as we pray that God’s good purposes would be worked out in us, that we would be helped in our weaknesses as we await the redemption of all things.” (Emphasis added.)

“It is a day when we think and talk about death and when we name the courage and hope with which others have lived, and imagine how we might model our lives of faith in the same way.”

“[For someone with a conflicted relationship with one of our deceased, All Saints Day was a] reminder that the final death of that relationship in life opened up something, created space for something new to emerge and begin. It was almost as if the death made way for a waiting change that couldn’t otherwise take shape.”

“This [observation] has pushed me to wonder about what we hold onto or are trapped by in our lives, and what happens when we are released from these burdens. In the context of All Saints’ Day, it led me to the question of, ‘What needs to die?’” (Emphasis added.)

“[The Ruth and Naomi story in Isaiah shows] cultural and religious norms at play for [them], which both women push back against. Both have to let these die in a way Orpah cannot, and because of this a new way forward opens up for them. They embrace each other and find healing and genuine friendship. [1]

“Dutch priest and theologian Henri Nouwen observed, ‘The dance of life finds its beginnings in grief … Here a completely new way of living is revealed. It is the way in which pain can be embraced, not out of a desire to suffer, but in the knowledge that something new will be born in the pain.”[2]

“The women of the book of Ruth certainly didn’t desire to suffer, but in their journey of letting go, of letting expected structures and frameworks die, they found knowledge in the birth of something new.”

For about the past 8 years I have been involved in a progressive movement of the PC (USA) called NEXT Church, which . . . seeks to build the relational and connectional fabric of the denomination, by cultivating leaders and congregations to serve a dynamic church in a changing context. About 4 years ago I came onto the leadership board of NEXT, [which] . . . set a goal of having representation of 50% people of color around the table.”

“I was in the meeting when this was decided, and I am pretty sure we all thought we could say it, wave our magic white privilege wands, and sprinkle the same old Presbyterian power dust, and so it would be. We quickly found it was going to take more intentionality than that to build any type of appreciable change, and that, of course, bringing balance to the leadership board needed to be based on relationships. And in a denomination that is 95% white, nurturing lasting relationships between white people and people of color takes a whole lot more than wand waving, magic dust, and good intentions.”

“I can report that now, in 2018, we have achieved the goal set 3 ½ years ago, but we find ourselves as a leadership board in a very tenuous and precarious situation. We have called people of color from across the denomination and country, but what we haven’t done is change how we are organized, how we communicate, how we make decisions, how we raise money, and we haven’t brought about change to any other critical structural framework within the organization.”

“And that has created an environment where trust and welcome haven’t been properly established, openness and safety is lacking, blinders are on and assumptions are prevalent. Frankly, it feels like a mess, but we are doing our best to wade through it together.”

“We are reading as a board Robin Diangelo’s book White Fragility, and discussing it in small and large groups. Personally, Diangelo’s book casts a harsh light on things I have said and silences I have kept, decisions I have made and systems I have benefited from since before I was even born. I thought I had some understanding of my own privilege and whiteness, but I have so much work to do.”

“As for the state of our board community, it is complicated, but I hope it is akin to what happens when you clean out your closet or basement or garage, any place that has old, outdated pieces of you and your history, things you have carried around that weigh you down, or maybe you even look at them all the time, but you hardly even realize they are there. Letting go, letting things die in order to create space for newness of life — sometimes it has to get worse before it gets better.”

“It is All Saints’ Day, and death is, and can be all around us, if we would but recognize it.”

“I recently read Atul Gawande’s Being Mortal. [3] Gawande is a surgeon in Boston and professor at Harvard Medical School, an accomplished writer, and he also runs a non-profit organization that strives to make surgery safer across the globe. And for his work in public health, he is a MacArthur Fellowship winner. He is one of those people who causes you question if you are really making the most of the 24 hours you are given each day.”

Being Mortal explores the relationship we have with death, both as individuals as our bodies fail us, but also as a society, as generations age and needs change and death approaches. He speaks of the experience of one patient, Felix, who said to him, ‘Old age is a continuous series of losses.”[3]

“I think in NEXT Church right now the white folks are feeling the reality of that necessary series of losses- the way we are accustomed to doing things, the loss of hiding behind our cult of whiteness, the default of not sharing, the posture of being the experts in the room. And since so much of this is deeply ingrained and largely unconscious, letting it die means naming its life in us first. In some ways, maybe even these losses are what is hardest, or as Gawande reflects: ‘It is not death that the very old tell me they fear. It is what happens short of death—losing their hearing, their memory, their best friends, their way of life.’ For many of us, our way of life works really well for us and for people like us, at the cost of the way of life of so many others.”

“Luther Seminary Professor Karoline Lewis, in writing on All Saints Day, says, ‘We allow death to have its way and a say before it should. We allow death to determine a way of being in the world that has acquiesced to a matter of factness, an inevitability that truncates the power of the Kingdom of God, the presence of God, in our midst. And finally, we allow death to have more power than resurrection.”[4]

“The same could be said of racism and the other social evils and ills of our day– we let them have their way and say and we allow them to determine a way of being in the world that has acquiesced to a matter of factness, an inevitability that truncates the power of the Kingdom of God, the presence of God in our midst. We allow racism to have more power than resurrection.”

“[Gawande also says,]’Whenever serious sickness or injury strikes and your body or mind breaks down, the vital questions are the same: What is your understanding of the situation and its potential outcomes? What are your fears and what are your hopes? What are the trade-offs you are willing to make and not willing to make? And what is the course of action that best serves this understanding?’”

“So once we name the things that need to die–racism, anti-Semitism, sexism, classism, heteronormativity, the fracturing of our political bedrock, we must ask ourselves these same questions:

What is my understanding of the situation and its potential outcomes?
What are my fears and what are my hopes?
What are the trade-offs I am willing to make and not willing to make?
And what is the course of action that best serves this understanding ?” [5]

“Just as Gawande emphasizes the concept of being an active participant in mortality and the dying process, so too must we be active participants in bringing about the death of the social sicknesses and diseases which are killing our children, our communities, our siblings of color, separating us from the Good News of Jesus Christ in the world, and separating us from God’s beloved.”

“So I close by giving us space in silence to ask ourselves these questions–what needs to die and in that dying and rising, what are your fears and hopes? What is the course of action that best serves this dying and new life? What new creation might God work through that death? How can you make room for the power of the Kingdom of God, the power of resurrection life”

Closing Prayer

“This is the Good News we know–you are God with us and you are here. By the power of your Spirit, help us to name what needs to die, help us to grieve the losses, but push us to move forward in the hard work ahead, to change ourselves and the communities you have created, that we might be repairers for the world. In Christ’s name we pray, Amen”

Reflections

This sermon had a surprising and different slant than that of Rev. Tim Hart-Andersen’s sermon (What Endures?) at the morning service.

Rev. Gage-Finn focused on societal beliefs and actions that need to die: racism, anti-Semitism, sexism, classism, heteronormativity and the fracturing of our political bedrock. These beliefs and actions, she says, should prompt us to ask these questions:

“What is my understanding of the situation and its potential outcomes?
What are my fears and what are my hopes?
What are the trade-offs I am willing to make and not willing to make?
What is the course of action that best serves that understanding?

This concentration on societal and political problems, while understandable, can lead to reading and studying about the problems and to a sense of hopelessness. What can I do as one individual to combat such large problems? Instead, I suggest, we should focus on what can I do in my everyday life to combat these problems? And is there at least one of these problems where I can get more deeply involved by studying and getting active in a group that attacks the problem?

For me, blogging about law, politics, religion and history is one way to study and advocate for change on these and other issues. I also am active in various Westminster programs that address some of these issues.

And I make financial contributions to groups that concentrate on these issues, including the Equal Justice Initiative, a nonprofit law organization that has challenged mass incarceration, excessive punishment, imposition of death penalty, abuse of children, and discrimination against the poor and disabled; Advocates for Human Rights; Center for Victims of Torture; American Refugee Committee; immigrant Law Center; Amnesty International; Human Rights Watch; Center for Constitutional Rights; American Civil Liberties Union; and Center for Justice and Accountability. I urge others to add these groups to their charitable contributions.

In my everyday life, I seek to smile and greet people, regardless of race, I encounter while walking downtown.

The Isaiah passage also poses even more challenging personal questions: What am I trapped by in my life and what happens when I am released from these burdens?

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[1] Wines, Commentary on Ruth 1: 1-18, Preach this Week (Nov. 1, 2015).

[2] Henri J. Nouwen & Michael Ford. The Dance of Life: Weaving Sorrows and Blessings into One Joyful Step. (Notre Dame, IN: Ave Maria Press) 2005, p. 56.

[3] Atul Gawande, Being Mortal (New York: Picador) 2014, p. 55. [See also these posts to dwkcommentaries.com: Another Perspective on Dying (Oct. 6, 2014); Comment: Review of Dr. Atul Gawande’s “Being Mortal” (Oct. 7, 2014); Comment: Another Review of “Being Mortal” (Oct. 17, 2014); Comment: Yet Another Review of “Being Mortal” (Oct. 21, 2014); Comment: Interview of Dr. Gawande (Oct. 26, 2014); Comment: Dr. Gawande’s Conversation with Charlie Rose (Oct. 30, 2014).]

[4] Lewis, For All The Saints, Dear Working Preacher (Oct. 29, 2018).

[5] Gawande, p. 259.

Rejection of Criticism of Cuba’s Cancellation of Open-Microphone Event in Havana’s Plaza de la Revolución and Arrests of Its Organizers

On December 30^th Cuban authorities cancelled an open-microphone event at Havana’s Plaza de la Revolución and detained or arrested its organizers. The principal detainee was Tania Bruguera, a Cuban citizen who lives on the island and in Miami, Florida and who is a performance artist. She intended to provide an open-microphone for any attendee to give a one-minute statement on his or her opinions and recommendations for Cuba’s future.

This cancellation and related arrests have provoked strong condemnation from the U.S. Department of State and major U.S. newspapers. Initially I was persuaded by such condemnations and worried that they would foster U.S. political resistance to recent U.S.-Cuba reconciliation. After further investigation, however, I have come to reject such harsh condemnations. In order to understand this conclusion, this post will examine what happened in Havana, the reactions from the State Department and western newspapers and then the reasons why I reject such condemnations.

Cuban Events Relating to the Open-Mike Performance[1]

On December 30th Cuban performance artist Tania Bruguera was planning to stage an open-microphone event, “Yo tambien exijo,” [I also demand],” in Havana’s Plaza de la Revolución, the huge public square usually reserved for large government-sponsored events.[2] (The photo on the top shows an empty Plaza while the other one has a large crowd in attendance.) She planned to give any attendee a one-minute platform to discuss his or her opinions about, and recommendations for, Cuba’s future. She told the U.S. National Public Radio that she wanted “people in the street [to] come and share . . . [their] doubts, [their] happiness – whatever [they] think right now about what is happening in Cuba, and what is the idea of Cuba that [they] want?”

Bruguera was proceeding with these plans even though her application for a permit had been denied and even though the Government’s National Fine Arts Council had told her that it would not be providing her with institutional support for the event as proposed because it “would negatively impact public opinion, in a key time of negotiation between the Cuban government and the government of the United States.”

On December 30th the Council issued a public statement documenting its decision not to support the event. It said, “Under current circumstances, it is unacceptable performing this purported performance in the symbolic space of the Plaza of the Revolution, especially considering the extensive media coverage and manipulation that has been in the media broadcasters counterrevolution.”

The Council, however, also stated that Bruguera had rejected its suggestions on conducting the event subject to the following conditions: (a) move the event to the National Museum of Fine Arts, a prestigious cultural institution in the field of visual arts; (b) the Museum would be freely open to diverse people of dissimilar social sectors; (c) the government would “reserve the right” to bar people whose “sole interest is to be provocative;” and (d) the performance would be limited to 90 minutes.

Just hours before the planned event, Cuban police detained, on public disorder charges, Bruguerea and at least three leading dissidents: Antonio Rodiles, the head of Citizens Demand for Another Cuba; Eliezer Avila, the leader of the opposition group Somos Mas; and Reinaldo Escobar, a senior editor of a dissident website 14medio.com. Escobar’s spouse, Blogger Yoani Sanchez, was also detained at her home by police. There were reports that up to 50 members of the political opposition were detained.

Ms. Bruguera was released the next afternoon along with most of the political dissidents. She then announced she would hold a news conference and public gathering on the Malecón, Havana’s coastal highway, at the memorial to the Maine, the American battleship that sank in Havana Harbor in 1898. Cuban agents, however, stopped her en route to the gathering and took her away for interrogation. She was told she could not leave Cuba “for two or three months” while the case was being processed. Again she was released.

However, on January 1, 2015, she was arrested again along with several dissidents when they went to a jail to demand the release of 15 additional dissidents who had been arrested on the day of the planned event. The next day (January 2) she was released.

Reactions to the Cancelation and Arrests

On December 30th, the U.S. Department of State issued a Press Statement saying the U.S. was “deeply concerned about the latest reports of detentions and arrests by Cuban authorities of peaceful civil society members and activists . . . [and] strongly condemn[ed] the Cuban government’s continued harassment and repeated use of arbitrary detention, at times with violence, to silence critics, disrupt peaceful assembly and freedom expression, and intimidate citizens.”

The Statement added, “Freedoms of expression and peaceful assembly are internationally recognized human rights, and the Cuban government’s lack of respect for these rights, as demonstrated by today’s detentions, is inconsistent with Hemispheric norms and commitments. We urge the Government of Cuba to end its practice of repressing these and other internationally protected freedoms and to respect the universal human rights of Cuban citizens.”

The Statement concluded that the U.S. has “always said we would continue to speak out about human rights, and as part of the process of normalization of diplomatic relations, the United States will continue to press the Cuban government to uphold its international obligations and to respect the rights of Cubans to peacefully assemble and express their ideas and opinions, just like their fellow members of civil society throughout the Americas are allowed to do.”

Also on December 30^th Assistant Secretary of State Roberta Jacobson tweeted “Freedom of expression remains core of US policy on #Cuba; we support activists exercising those rights and condemn today’s detentions.”

These views were shared by the New York Times’ December 30^th editorial, “Cuba Turns Off Critics’ Open Mike.” It said, “By stifling critical voices, the Cuban government is showing its unwillingness to tolerate basic freedoms most citizens in the hemisphere enjoy.”

The Times’ editorial continued, “This move, unfortunately, will amplify the criticisms of those who opposed Mr. Obama’s historic shift on Cuba policy. Heavy-handed tactics by the Castro government will give them ammunition next year, when Republicans will control both chambers of Congress, to stymie the Obama administration’s steps to ease the embargo through executive authority and dim the prospects of legislative change to pare back the web of sanctions Washington imposes on Cuba. That result would be a shame and, in the long run, self-defeating for Havana.”

The editorial on the same subject by the Washington Post, which earlier opposed the December 17^th reconciliation, was in the same vein. It stated, “[T]he Castro regime has been left free to continue stifling dissent, while reaping the economic and political benefits of Mr. Obama’s ‘engagement.’ Raúl Castro declared in a speech shortly after the agreement was announced that the Communist political system would remain unchanged. Two weeks later, not one of the 53 political prisoners the White House said would be freed — about half of the total identified by human rights activists — has been reported released.”

The Washington Post editorial concluded, “Cubans who seek basic freedoms continue to be arrested, harassed and silenced, while the regime celebrates what it portrays as ‘victory’ over the United States. If support for the Cuban people and American values is supposed to be the point of this process, then it is off to a very poor start.”

People opposed to the resumption of relations with Cuba were quick to hold up the arrests as a sign that the Castro government had no intention of pursuing political change and would reap only economic benefits from Mr. Obama’s moves. For example, Senator Marco Rubio, Republican of Florida and a Cuban-American, tweeted, “Castro govt. arrests of activists in #Havana exposes the folly of new Obama #CubaPolicy.”

Rejection of the Condemnation

As a long-time member of the American Civil Liberties Union and as a pro bono attorney in one of its important free speech cases, I am a strong believer in the importance of free speech. Therefore, I initially concurred in the State Department and New York Times’ condemnation of Cuba’s cancellation of this event and related arrests, and I worried that this controversy might cause the U.S. to abandon the recently announced U.S.-Cuba reconciliation.

On the other hand, I was and continue to be troubled by the State Department and most of the articles about this event not mentioning the Cuban Fine Arts Council’s willingness to support the event in another location and with certain limits. This action by the Arts Council suggests at a minimum that the State Department and western media are over-reacting to these events and unfairly rushing to judgment.

These U.S. critics also forget that governmental authorities in the U.S. sometimes determine that it is not appropriate to stage a protest at a particular time and place. It just happened in my home state of Minnesota at the Mall of America (MOA) on a big shopping day (December 20^th). Although MOA officials had told the organizers that it was against its policies for them to hold a “Black Lives Matter” protest at the Mall on that day,[3] they did so anyway as this video shows. After 2,000 to 3,000 protesters flooded a Mall rotunda and held “die-ins” in front of several nearby businesses, riot-gear-clad police officers arrested 25 for trespass, peacefully dispersed the crowd and tried to block people from re-entering the rotunda. Afterwards the local city attorney announced plans “to file additional charges against ‘ringleaders’ of the protest and to seek restitution for the costs of 250 police at the event and lost sales during the two to three hours when more than 75 stores in the mall were closed.” On January 5^th some of the protesters spoke against such prosecution at a city council meeting. This story obviously is not yet over.

In addition, there is a report that raises the much more serious question of whether the event was an idea of Cubans acting by themselves. According to the Wall Street Journal, an opponent of reconciliation with Cuba, at the scheduled time for the event, “Cuban cellphones received mysterious messages from a Florida area code offering cheap beer to all those gathering on the plaza.” This was confirmed in an interview by U.S. National Public Radio with Marc Frank, a U.S. journalist who was one of about a dozen people at the Plaza at the time of the planned event. He said, “text messages were sent from somewhere in Miami to a lot of cell phones here, including mine, basically saying that there’s going to be an event at the Plaza de la Revolución, and there’d be free beer.” Frank added that “Tania is an artist, lives some in Cuba and mainly in Miami, . . . [but] she’s not really well-known in Cuba at all.”[4]

These messages about free beer in the Plaza from a Miami telephone number raise the question of whether the event was actually being planned by the U.S. Agency for International Development (USAID) or another U.S. government agency or by Cuban-Americans opposed to the reconciliation of the two countries.

As discussed in prior posts, USAID (U.S. Agency for International Development) had funded via a private contractor at least three covert (or as the agency prefers to say “discreet”) programs in Cuba to promote civil society and dissent or regime change, all without the prior knowledge or consent of the Cuban government. One was for U.S. citizen Alan Gross to take communications equipment to Cuba, for which he was arrested, convicted and imprisoned in Cuba for violating its laws.[5] Another such USAID program via a private contractor unsuccessfully tried to create a Cuban social media program Yet another used Central Americans to promote purported HIV informational efforts on the island. The final one that has been discovered so far by journalists again via a private contractor attempted to infiltrate the Cuban rap-artist community.

These USAID programs were sharply criticized in a November New York Times editorial, as discussed in an earlier post. The editorial said, ““Far from accomplishing . . . the goal [of instigating democratic reforms on the island], the initiatives have been largely counterproductive. The funds have been a magnet for charlatans, swindlers and good intentions gone awry. The stealthy programs have increased hostility between the two nations, provided Cuba with a trove of propaganda fodder and stymied opportunities to cooperate in areas of mutual interest.”

Instead, the Times’ November editorial argued, “The United States should strive to promote greater freedoms on the island of 11 million people and loosen the grip of one of the most repressive governments in the world. Instead of stealth efforts to overthrow the government, American policy makers should find ways to empower ordinary Cubans by expanding study-abroad programs, professional exchanges and investment in the new small businesses cropping up around the island. They should continue to promote Internet connectivity, but realize that accomplishing that goal on a large scale will require coordination with the Cuban government.” Moreover, “Washington should recognize that the most it can hope to accomplish is to positively influence Cuba’s evolution toward a more open society. That is more likely to come about through stronger diplomatic relations than subterfuge.”

Perhaps the Times forgot this editorial when it more recently lambasted the Cuban actions over the “open-microphone” event.

In any event, the U.S. government apparently has not learned the lesson outlined by the Times in October because the USAID website, which says it was last updated on December 16 (the day before the announcement of U.S.-Cuba reconciliation), still contains general information about its Cuba programs to “[p]romote human rights and fundamental freedoms.”

In addition, on December 22, 2014 (five days after that announcement), the U.S. Department of State’s Bureau of Democracy, Human Rights and Labor issued a Public Notice of its “Request for Statements of Interest: Program Fostering Civil, Political and Labor Rights in Cuba.” The Bureau’s prospective funding of $11 million would be used for typically funded proposals, the Bureau said, like “[o]rganizational assistance to Cuban civil society to improve management, strategic planning, sustainability, and collaboration of local civil society groups; [o]ff-island trainings, short-term fellowships, or engagement; [d]istribution of software that would be easily accessible in an open society; . . . [and] ]a]ssistance mechanisms designed to provide independent Cuban civil society with tools, opportunities, and trainings that civil society counterparts in open societies can access.”

Both the USAID and State Department statements read as if they are promoting programs in Cuba without the knowledge, cooperation or agreement of the Cuban government. This is contrary to President Obama’s statement in his nationally televised speech on December 17^th, in which he said the U.S. would “raise those differences [with the Cuban government] directly . . .[such as] democracy and human rights in Cuba. But I believe we can do more to support the Cuban people and promote our values through engagement [with the Cuban government].” He added, “no Cubans should face harassment or arrest or beatings simply because they’re exercising a universal right to have their voices heard, and we will continue to support civil society there.”

Similar thoughts were expressed the same day in the White House’s FACT SHEET: Charting a New Course on Cuba.” It said, “We know from hard-learned experience that it is better to encourage and support reform than to impose policies that will render a country a failed state.” It also stated, “The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba, and we will encourage reforms in our high level engagement with Cuban officials.”

Although President Obama apparently was talking about encouraging the Cuban government to expand the Cuban people’s rights to express different opinions on what their government should do, a prior post shows some ambiguity in these statements that could allow the continuation of the USAID and State Department’s covert or “discreet” efforts to promote regime change.

If the open-microphone event, in fact, was orchestrated by USAID or some other U.S. government agency, it is Orwellian. Such programs purport to promote democracy and human rights with undemocratic and non-human rights means. Such programs are publicly mentioned—in very general terms—on U.S. government websites yet are conducted covertly or “discreetly” on the island. Such programs are hostile to a country with which the U.S. purportedly is attempting to build a normal and respectful diplomatic relationship. These programs also logically motivate Cuban authorities to be vigilant in reacting to events like the “open-microphone” one.

In other words it is horribly stupid and unwise to have such behind-the-back programs when the two countries are embarking on a long and complicated path for full reconciliation. As the New York Times said in November, the U.S. “should recognize that the most it can hope to accomplish is to positively influence Cuba’s evolution toward a more open society. That is more likely to come about through stronger diplomatic relations than subterfuge.”

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[1] This account of the planned event and the arrests by the Cuban government is based on articles in the New York Times, Washington Post, Wall Street Journal, Guardian, Los Angeles Times, National Public Radio, the Cuban Fine Arts Council and again the New York Times.

[2] The Plaza is the 31^st largest public square in the world; it measures 72,000 square meters (774,936 square feet) and has been the site for crowds of 1 million for major speeches by Fidel Castro and for a mass celebrated by Pope John Paul II. The idea that the open-microphone event might create such a large crowd should have been seen as ridiculous by everyone, including the Cuban authorities, and a small gathering like the 12 or so that showed up on the 30th would have demonstrated the over-reaction of the those authorities in shutting it down and the State Department and western media in attacking the shut-down.

[3] Before the protest the local city (Bloomington) sent a letter to the protest organizers warning that the city would enforce the mall’s private-property rights under the authority of a Minnesota Supreme Court decision that held the MOA was a private entity with the right to exclude demonstrators.

[4] The Director of Security Operations at Telecommunications Company of Cuba reported that since December 21st Cuba had been receiving electronic messages calling for participation in an event with Tania Bruguera. These messages came from a platform “Wake Cuba,” and these messages were similar to previous ones paid for by USAID. Another Cuban source states that some Cuban email addresses were hacked and used to send emails to Cubans about this event.

[5] Gross on December 17^th was released from Cuban prison and returned to the U.S.

Minneapolis Police’s Pretextual Arrests of Political Dissidents in 1970

Early 1970 was a turbulent time in the U.S. We were still in the Viet Nam War in the Nixon Presidency. On February 18th a Chicago jury found the “Chicago Seven” guilty of conspiring to incite a riot at the 1968 Democratic National Convention. On March 6th a bomb being constructed by members of the Weathermen political dissenters group for use at an upcoming military dance exploded in Manhattan, killing three members of the group. On March 17th the U.S. Army charged Lieutenant Calley and other officers of suppressing information related to the 1968 My Lai massacre in Viet Nam. On April 29th the U.S. invaded Cambodia to hunt out the Viet Cong, sparking antiwar protests throughout the U.S. On May 4th four students at Kent State University in Ohio were killed and nine others wounded by Ohio National Guardsmen at a protest against the Cambodian incursion (only 10 days later (May 14th) two other students were killed and 12 injured at antiwar demonstrations at Jackson State University in Mississippi). On May 9th an estimated 100,000 marched on the Pentagon to protest the war and the killings at Kent State.[1]

These protests also touched Minnesota. On May 9th there was a large crowd that marched from the University of Minnesota (UM) campus in Minneapolis to the State Capitol Building in St. Paul. There also was a student strike at the UM.[2]

At the same time, a Minneapolis fundraiser was being planned by “People Against Missiles,” an ad hoc group, for Saturday night, May 9th, at the south Minneapolis home of Professor David Lykken, a noted UM behavioral geneticist and professor of psychology and psychiatry.[3] The fundraiser sought to raise money to send people to North Dakota to protest a proposed antiballistic missile installation. It was publicized by mailing postcards to people on local peace organizations’ mailing lists, by including notices in newsletters of several organizations and by distributing flyers primarily at the UM. The flyer stated that there would be “donations and cash bar.”[4]

Two days before the fundraiser, a Minneapolis policeman saw the flyer and took it to a meeting with the head of the Department’s Morals Squad. Since selling liquor without a license was a violation of a city ordinance, the Department head instructed two other policemen to “handle it in the usual manner,” which meant sending an officer to the gathering undercover and attempting to purchase some liquor.[5]

On the night of May 9th, 20 or so middle-aged adults attended the fundraiser. They were quiet, mainly engaging in small-group conversation about the antiballistic missile system, protesting the system, and current political issues, including the protest march earlier that day at the UM. Some had coffee and soda; others, beer. No one had wine or hard liquor. There was a basket for donations; another for “Donations, Beer 50 cents, Pop 25 cents.”[6]

Around 10:00 p.m. two police officers, under cover, came to the fundraiser. One of them had a beer and left a marked $5 bill in the basket and later 50 cents for another beer. He stayed for about an hour and engaged in conversation about the missile system and the activities of “People Against Missiles.”[7]

He and the other undercover policemen left the house for a nearby meeting with another officer of the Morals Squad and others from the Tactical Squad. They then made a plan for arresting the people at the professor’s home.[8]

Around midnight 10 to 20 uniformed officers descended on the house, arrested everyone and took them all (except the professor’s wife and their young son) downtown to Police headquarters where they were charged with being in a disorderly house and the professor with operating a disorderly house and selling liquor without a license; they also were fingerprinted, photographed and then released.[9]

One of the Police leaders conducted a search of the house and seized beer (and wine and hard liquor that was not available at the event) as well as every piece of paper in sight on the first floor of the house, including People Against Missiles and other anti-war literature.[10]

Later all of the criminal charges were dismissed by the local court, and another lawyer (Bill Kampf[11]) and I volunteered to be the pro bono (no fee) lawyers on behalf of the Minnesota Civil Liberties Union[12] for those who had been arrested in a lawsuit for damages against the policemen who were involved for violation of their constitutional rights. We did just that with a complaint by the 20 people who had been arrested against the 20 or so policemen and other officials who had been involved.[13] The case was filed in Minnesota’s federal court.[14]

During the course of pretrial discovery, I obtained what turned out to be critical evidence in the Police files. These documents indicated that immediately after the arrests the Police leader of the raid called the local office of the FBI to report the identity of the arrestees and the political nature of the seized documents. Some, for example, mentioned the Socialist Workers Party.[15]

Eventually Bill Kampf and I tried the case to the court without a jury. U.S. District Judge Philip Neville[16] conducted the trial and concluded that three of the policemen were liable to the 20 plaintiffs for $11,500 compensatory damages plus $7,500 punitive damages. As the court stated, these three policemen “instigated, planned, and directed the raid [with two of them] . . . actually effecting the arrests. They had first-hand knowledge of the true nature of the gathering . . . and were the only ones who effectively might have and should have prevented the raid. . . . Their decision . . . not only evidences bad judgment . . ., but more importantly displays a callous disregard for the constitutional rights of other who may have been of different political persuasion. Such activity . . . will not be tolerated. . . .”[17]

In concluding that the three policemen had violated the plaintiffs’ constitutional protection under the U.S. Constitution’s Fourth Amendment’s ban on unreasonable searches and seizures, the court stated, “the arrests . . . were improperly motivated, undertaken not in furtherance of good faith law enforcement but for the purpose of harassing those at the gathering because of their political beliefs.” Under all the circumstances, the “police could only have been motivated by a desire to harass the guests at the fundraiser, and/or attempt to set an example for others who might stage antiwar gatherings.” Important in that regard was the evidence of the lead Policeman’s immediately calling the FBI about the political documents that were seized.[18]

After the judgment was entered against the three policemen, the Minneapolis City Council voted to pay the judgment on behalf of the three, a decision that was upheld by the Minnesota Supreme Court in a taxpayer’s lawsuit.[19]

This case shows how the U.S. political passions of 1970 affected a city in the middle of the country. It also illustrates the importance of lawyers willing to defend civil liberties on a pro bono basis and of a strong, independent judiciary.

[1] Wikipedia, 1970, http://Wikipedia.org/wiki/1970.

[2] Lykken v. Vavreck, 366 F. Supp. 586, 588 (D. Minn. 1973. I found copyrighted photos of the large May 9th crowd in front of the Minnesota Capitol under the heading Minnesota State Capitol Demonstrations at http://www.flickr.com/photos/minnesotahistoricalsociety.

[3] Obituary, David Lykken, U of M psychology professor, StarTribune (Sept. 20, 2006).

[4]366 F. Supp at 587.

[5] Id. at 588.

[6] Id.

[7] Id. at 588-89.

[8] Id. at 589.

[9] Id.

[10] Id. at 590.

[11] Lerner, Attorney W. Kampf dies; was expert on bankruptcy, StarTribune (Sept. 18, 2005). As Bill and I worked on the case together, we became friends and often joked that we brought our different skills to make a good team. I was organized, methodical and persistent, and Bill was more instinctive and risk-taking.

[12] The Minnesota Civil Liberties Union was an affiliate of the American Civil Liberties Union and is now known as the American Civil Liberties Union of Minnesota, http://www.aclu-mn.org.

[13] 366 F. Supp. at 587, 590.

[14] See Post: Minnesota’s Federal Court (June 28, 2011).

[15] 366 F. Supp. at 590; Minnesota Historical Society, Socialist Workers Party: Minnesota Section (Box 2), http://www.mnhs.org/library/findaids/00632.xml; Minnesota Historical Society, Minnesota Civil Liberties Union (Box 23), http://www.mnhs.org/library/findaids/00497.xml.

[16] Judge Neville also was in charge of the consolidated pretrial proceedings in the private IBM antitrust cases. (See Post: The IBM Antitrust Litigation (July 30, 2011).)

[17] 366 F. Supp. at 599.

[18] Id. at 593.

[19] Douglas v. City of Minneapolis, 304 Minn. 259, 230 N.W.2d 577 (1975).