Center for Democracy in the Americas – Page 2

U.S. Announces Agreement To Restore Diplomatic Relations with Cuba

On July 1, 2015, the U.S. and Cuba announced an agreement to restore diplomatic relations. This post will discuss the U.S. announcement and reactions.[1] A subsequent post will do the same for the Cuban announcement and reactions.

U.S. Announcement

In the White House’s Rose Garden, President Obama announced the plans to reopen the embassies. Here is what he said:

“More than 54 years ago, at the height of the Cold War, the United States closed its embassy in Havana. Today, I can announce that the United States has agreed to formally re-establish diplomatic relations with the Republic of Cuba, and re-open embassies in our respective countries. This is a historic step forward in our efforts to normalize relations with the Cuban government and people, and begin a new chapter with our neighbors in the Americas.”
“When the United States shuttered our embassy in 1961, I don’t think anyone expected that it would be more than half a century before it re-opened. After all, our nations are separated by only 90 miles, and there are deep bonds of family and friendship between our people. But there have been very real, profound differences between our governments, and sometimes we allow ourselves to be trapped by a certain way of doing things.”
“For the United States, that meant clinging to a policy that was not working. Instead of supporting democracy and opportunity for the Cuban people, our efforts to isolate Cuba despite good intentions increasingly had the opposite effect -– cementing the status quo and isolating the United States from our neighbors in this hemisphere. The progress that we mark today is yet another demonstration that we don’t have to be imprisoned by the past. When something isn’t working, we can -– and will –- change.”
“Last December, I announced that the United States and Cuba had decided to take steps to normalize our relationship. As part of that effort, President Raul Castro and I directed our teams to negotiate the re-establishment of embassies. Since then, our State Department has worked hard with their Cuban counterparts to achieve that goal. And later this summer, Secretary Kerry will travel to Havana formally to proudly raise the American flag over our embassy once more.”
“This is not merely symbolic. With this change, we will be able to substantially increase our contacts with the Cuban people. We’ll have more personnel at our embassy. And our diplomats will have the ability to engage more broadly across the island. That will include the Cuban government, civil society, and ordinary Cubans who are reaching for a better life.”
“On issues of common interest –- like counterterrorism, disaster response, and development -– we will find new ways to cooperate with Cuba. And I’ve been clear that we will also continue to have some very serious differences. That will include America’s enduring support for universal values, like freedom of speech and assembly, and the ability to access information. And we will not hesitate to speak out when we see actions that contradict those values.”
“However, I strongly believe that the best way for America to support our values is through engagement. That’s why we’ve already taken steps to allow for greater travel, people-to-people and commercial ties between the United States and Cuba. And we will continue to do so going forward.”
“Since December, we’ve already seen enormous enthusiasm for this new approach. Leaders across the Americas have expressed support for our change in policy; you heard that expressed by President Dilma Rousseff of Brazil yesterday. Public opinion surveys in both our countries show broad support for this engagement. . . .
“Here in the United States, we’ve seen that same enthusiasm. There are Americans who want to travel to Cuba and American businesses [that] want to invest in Cuba. American colleges and universities . . . want to partner with Cuba. Above all, Americans who want to get to know their neighbors to the south. And through that engagement, we can also help the Cuban people improve their own lives.”
“Americans and Cubans alike are ready to move forward. I believe it’s time for Congress to do the same. I’ve called on Congress to take steps to lift the embargo that prevents Americans from travelling or doing business in Cuba. We’ve already seen members from both parties begin that work. After all, why should Washington stand in the way of our own people?”
“Yes, there are those who want to turn back the clock and double down on a policy of isolation. But it’s long past time for us to realize that this approach doesn’t work. It hasn’t worked for 50 years. It shuts America out of Cuba’s future, and it only makes life worse for the Cuban people.”
So I’d ask Congress to listen to the Cuban people. Listen to the American people. Listen to the words of a proud Cuban-American, Carlos Gutierrez, who recently came out against the policy of the past, saying, ‘I wonder if the Cubans who have to stand in line for the most basic necessities for hours in the hot Havana sun feel that this approach is helpful to them.’”
“Of course, nobody expects Cuba to be transformed overnight. But I believe that American engagement — through our embassy, our businesses, and most of all, through our people — is the best way to advance our interests and support for democracy and human rights. Time and again, America has demonstrated that part of our leadership in the world is our capacity to change. It’s what inspires the world to reach for something better.”
“A year ago, it might have seemed impossible that the United States would once again be raising our flag, the stars and stripes, over an embassy in Havana. This is what change looks like.”
“In January of 1961, the year I was born, when President Eisenhower announced the termination of our relations with Cuba, he said: It is my hope and my conviction that it is ‘in the not-too-distant future it will be possible for the historic friendship between us once again to find its reflection in normal relations of every sort.’ Well, it took a while, but I believe that time has come. And a better future lies ahead.”

The same day Secretary of State John Kerry from Vienna, Austria also discussed the plans, including his intent to travel to Havana for the opening of the embassy later this month. His statement included the following:

“Later this summer, as the President announced, I will travel to Cuba to personally take part in the formal reopening of our United States Embassy in Havana. This will mark the resumption of embassy operations after a period of 54 years. It will also be the first visit by a Secretary of State to Cuba since 1945. The reopening of our embassy . . . is an important step on the road to restoring fully normal relations between the United States and Cuba. Coming a quarter of a century after the end of the Cold War, it recognizes the reality of the changed circumstances, and it will serve to meet a number of practical needs.”
“The United States and Cuba continue to have sharp differences over democracy, human rights, and related issues, but we also have identified areas for cooperation that include law enforcement, safe transportation, emergency response, environmental protection, telecommunications, and migration. The resumption of full embassy activities will help us engage the Cuban Government more often and at a higher level, and it will also allow our diplomats to interact more frequently, and frankly more broadly and effectively, with the Cuban people. In addition, we will better be able to assist Americans who travel to the island nation in order to visit family members or for other purposes.”

In addition, the State Department conducted a special briefing by a senior official on this historic development. This individual said, “We’re confident that our embassy in Havana will be able to operate similar to other embassies operating in restrictive environments. We will be able to meet and exchange opinions with a variety of voices and views both within the government and outside. We’ll be able to engage a broad range of Cuban civil society and citizens.” The conditions for “access to diplomatic facilities, travel of diplomats, and the level of staffing . . . are acceptable for carrying out the core diplomatic functions necessary for implementing the President’s new policy direction on Cuba.” There were not any agreed “constrains or restrictions” on the exact types of programs or facilities that each of our embassies conducts.

According to the State Department spokesperson, there will be future discussions or negotiations with Cuba over human rights, telecommunications, health issues, fugitives, law enforcement, U.S. claims for property expropriation, Cuban claims for damages under the embargo and U.S. broadcasts to the island. Until there is a nomination and confirmation of an ambassador, Jeffrey DeLaurentis will be the charge d’affaires and will lead the embassy.

Also earlier the same day Cuba’s Foreign Ministry confirmed that the head of the US Interests Section in Cuba, Jeffrey DeLaurentis, had delivered to the Acting Foreign Minister, Marcelino Medina, a letter from President Obama to Army General Raul Castro confirming “the restoration of diplomatic relations and the opening of embassies in the respective countries” on or after July 20. Here is the text of that letter:

“I am pleased to confirm, after high-level talks between our two governments, and in accordance with international law and practice, that the United States of America and the Republic of Cuba decided to restore diplomatic relations and permanent diplomatic missions in our respective countries 20 July 2015. This is an important step forward in the normalization process, which started last December, with regard to relations between our two countries and peoples.”
“In making this decision, the United States are encouraged by the mutual intention to enter into friendly and cooperative relations between our two peoples and governments, consistent with the purposes and principles enshrined in the Charter of the United Nations, in particular those relating to equality sovereign states, the settlement of international disputes by peaceful means, respect for the territorial integrity and political independence of States, respect for the equal rights and self-determination of peoples, non-interference in internal affairs States as well as promoting and encouraging respect for human rights and fundamental freedoms for all.”
“The United States and Cuba are parties to the Vienna Convention on Diplomatic Relations, signed in Vienna on April 18, 1961, and the Vienna Convention on Consular Relations, signed in Vienna on April 24, 1963. I am pleased to confirm the understanding the United States that the above conventions apply to diplomatic and consular relations between our two countries.”

Although the U.S. can easily change the plaque on its building in Havana to one proclaiming that it is the Embassy of the United States of America, the State Department has said it needs $6.6 million to retrofit the building to make it suitable as an embassy. This may require a supplemental appropriation by Congress.

The U.S. will need an Ambassador to Cuba, and such an appointment needs to be confirmed by the U.S. Senate. In the meantime, as just noted, the U.S. has a capable career diplomat running the interests section, Jeffrey DeLaurentis, who will be in charge.

Reactions to the Announcement

The announcement of re-establishment of diplomatic relations drew widespread praise. Senator Jeff Flake (Rep., AZ) stated, “It’s long past time for U.S. policy toward Cuba to be associated with something other than five decades of failure. It is difficult to overstate the importance of resuming diplomatic relations ‎with Cuba, in furthering our own national interests, benefiting our relations in the region, and encouraging a positive future for the Cuban people. I am confident that this move will lead to increased travel and contact between U.S. citizens and everyday Cubans, to the benefit of both.” Senator Amy Klobuchar (Dem., MN), a co-sponsor of a bill to expand U.S. travel to Cuba and the author of a bill to lift the trade embargo, said, “This is the first step that must happen in order to lift the embargo.” Democratic Senators Patrick Leahy (VT) and Benjamin Cardin (MD) issued similar positive statements.

Engage Cuba, a bipartisan public policy organization dedicated to coalescing and mobilizing American businesses, non-profit groups and concerned citizens for the purpose of supporting the ongoing U.S.‐Cuba normalization process and enacting legislation to reform U.S. travel and trade restrictions with Cuba, issued a statement of support. It said, “We applaud this important step in bringing the U.S. and Cuba closer together, and urge Congress to hasten the day when American travelers and companies have the freedom to engage with one of our nearest neighbors. Opening embassies in Washington and Havana is an important step toward the day when Americans can make their own decisions on where they travel, and our businesses can compete with the rest of the world. We are making history by making it clear that America’s engagement isn’t a concession, it is a show of strength and the best way to promote our values and create opportunities for both Americans and the Cuban people.”

Moreover, said Engage Cuba, “A vast majority of the American people – and 97% of the Cuban people – support re-establishing diplomatic relations. Today is a great day for the American and Cuban people who seek a brighter future for their two countries. After 54 years of a failed Cold war policy, better days finally lie ahead.”

A similar supportive statement came from the Center for Democracy in the Americas (CDA), which is “devoted to changing U.S. policy toward the countries of the Americas by basing our relations on mutual respect, fostering dialogue with those governments and movements with which U.S. policy is at odds, and recognizing positive trends in democracy and governance” and which is a member of Engage Cuba. CDA stated, “”This is a moment we have been working toward for many years. The restoration of diplomatic relations between our countries is a major achievement that will help to heal decades of mistrust and will open opportunities for the U.S. and Cuba to collaborate on issues of mutual interest like immigration, environmental conservation, and regional trade. We applaud the tireless work of Cuban and U.S. diplomats, policymakers, academics, and activists who have helped make this possible. We are ready to work with all our allies to defend these positive steps initiated by President Obama and to move forward with removing the embargo once and for all.”

The day before this announcement, President Obama held a joint press conference at the White House with the visiting President of Brazil, Dilma Rousseff.[2] In his opening remarks, Obama said, “As President, I’ve pursued a new era of engagement with Latin America where our countries work together as equal partners, based on mutual interest and mutual respect. As we saw at the recent Summit of the Americas, the United States is more deeply engaged in the region than we’ve been in decades, and I believe the relationship between the United States and Latin America is as good as it’s ever been. We’re focused on the future — what we can accomplish together.”

After he had reviewed the many ways that Brazil and the U.S. cooperate, Obama commented, “And finally, we’re working together to uphold democracy and human rights across Latin America. I very much appreciate President Rousseff and Brazil’s strong support for our new opening toward Cuba. I updated Dilma on our progress, including our work to open embassies in Havana and Washington. And I believe that Brazil’s leadership in the region, as well as its own journey to democracy and a market economy can make it an important partner as we work to create more opportunities and prosperity for the Cuban people.”

In her response President Rousseff remarked about “the importance for Latin America of the recent decision made by President Obama and by President Raul Castro, even with the partnership with Pope Francis to the effect of opening up relations with — or resuming relations with Cuba, a very decisive milestone and point in time in U.S. relations with Latin America. It is really about putting an end to the lingering vestiges of the Cold War. And it ultimately elevates the level of the relations between the U.S. and the entire region. May I acknowledge the importance of that gesture to all of Latin America and also to world peace at large. It is an important example of relations to be followed.”

These thoughts were echoed in the subsequent Joint Communique by the two presidents: “President Rousseff praised President Obama’s policy changes towards Cuba, and the Leaders agreed that the latest Summit of the Americas (held in Panama, on April 10 and 11, 2015) demonstrated the region’s capacity to overcome the differences of the past through dialogue, thereby paving the way for the region as a whole to find solutions to the common challenges facing the countries of the Americas.”

As anticipated, however, Senator Marco Rubio (Rep., FL), a Cuban-American, immediately issued a press release condemning the agreement.[3] It said:

“Throughout this entire negotiation, as the Castro regime has stepped up its repression of the Cuban people, the Obama Administration has continued to look the other way and offer concession after concession. The administration’s reported plan to restore diplomatic relations is one such prized concession to the Castro regime. It remains unclear what, if anything, has been achieved since the President’s December 17th announcement in terms of securing the return of U.S. fugitives being harbored in Cuba, settling outstanding legal claims to U.S. citizens for properties confiscated by the regime, and in obtaining the unequivocal right of our diplomats to travel freely throughout Cuba and meet with any dissidents, and most importantly, securing greater political freedoms for the Cuban people. I intend to oppose the confirmation of an Ambassador to Cuba until these issues are addressed. It is time for our unilateral concessions to this odious regime to end.”

Conclusion

I am glad that my recent concern about the delay in announcing resumption of diplomatic relations has been alleviated. This is an important development in the reconciliation of our country with Cuba. Now all advocates for reconciliation need to notify their senators and representatives to oppose any of the measures put forward by Senator Rubio and others to try to block this important move.

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[1] This portion of the post is based upon the following: White House, Statement by the President on the Re-Establishment of Diplomatic Relations with Cuba (July 1, 2015); Letter from Barack Obama [to] Raúl Castro, Granma (July 1, 2015); Letters between Obama and Castro to restore diplomatic relations, el Pais (July 1, 2015); Kerry, Statement on Cuba (July 1, 2015); State Dep’t, Special Briefing on Re-Establishment of Diplomatic Relations with Cuba (July 1, 2015); Baker & Davis, U.S. and Cuba Reach an Agreement to Reopen Embassies, Officials Say, N.Y. Times (June 30, 2015); Schwartz, Córdoba & Lee, U.S., Cuba Reach Agreement to Establish Full Diplomatic Relations, W.S.J. (June 30, 2015); Center for Democracy in Americas, Press Release: CDA Applauds Announcement That U.S. And Cuba Will Reopen Embassies (June 30, 2015); Minister for Foreign Affairs will receive †he Head of †he Section of Interests of the United States, Granma (July 1, 2015); Ayuso, Cuba and the United States announced the reopening of embassies on Wednesday, El Pais (July 1, 2015); Flake, Re-Establishment of Diplomatic Relations with Cuba (June 30, 2015); Engage Cuba, Press Release: Statement from Engage Cuba on Announcement that U.S., and Cuban Embassies Will Re-open (July 1, 2015); Rubio, Rubio Comments On Obama Re-Establishing Diplomatic Relations With Cuba (July 1, 2015)

[2] This portion of the post is based upon the following: White House, Remarks by President Obama and President Rousseff of Brazil in Joint Press Conference (June 30, 2015); White House, Joint Communique by President Barack Obama and President Dilma Rousseff (June 30, 2015); Harris, Leader of Brazil Visits Amid Home Turbulence, N.Y. Times (June 30, 2015).

[3] Senator Rubio in a letter to Secretary Kerry in June “vowed to oppose the confirmation of any ambassador until issues like human rights, fugitive terrorists and billions of dollars of outstanding claims were resolved.” The Senator said it is “important that pro-democracy activities not be sacrificed in the name of ‘diplomacy’ just so that we can change the name of a building from ‘Interest Section’ to ‘Embassy,’ ” Similar negative press releases came from other Cuban-Americas in the Congress: Senator Robert Menendez (Dem., NJ) and Republican Representatives from Florida, Ileana Ros-Lehtinen and Mario Diaz-Balart.

U.S. Supreme Court Decision Bolsters Obama Administration’s Normalizing Relations with Cuba

On June 8, 2015, the U.S. Supreme Court, 6 to 3, decided that the U.S. President had the exclusive power in the U.S. Government to recognize foreign nations and governments. The Court, therefore, declared unconstitutional an Act of Congress that allowed U.S. citizens born in Jerusalem to have their U.S. passports identify Israel as their birthplace. (Zivotofsky v. Kerry, No. 13-628.)

This decision has major implications for the ongoing Obama Administration to normalize relations with Cuba with respect to existing law as well as current congressional Republican efforts to halt or hinder that normalization.

Zivotofsky v. Kerry

The Facts

Since the U.S. official recognition of the State of Israel in 1948, every U.S. president consistently has not acknowledged any country’s sovereignty over Jerusalem. Instead, the Executive Branch has maintained that “‘the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.’” Moreover, this issue of sovereignty is of great sensitivity in Arab-Israeli relations and negotiations. Therefore, the consistent policy and practice of the U.S. Department of State has been

to record the place of birth on a U.S. passport as the “country [having] present sovereignty over the actual area of birth” and to record the place of birth for citizens born in Jerusalem as “Jerusalem.”

In 2002, Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003,116 Stat. 1350. Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel,” and its subsection (d) allows U.S. citizens born in Jerusalem to list their place of birth as “Israel.”

When President George W. Bush signed the Act, he issued a statement declaring that section 214 would, “if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.” Therefore, since then the State Department has not changed the previously described policy and practice regarding U.S. passports, the statute would not be honored.

When the State Department rejected the request on behalf of U.S. citizen Menachem Binyamin Zivotofsky, who was born in Jerusalem, to have his passport designate Israel as his birthplace, his guardians sued to enforce Section 214. Thus, the issue for the Supreme Court was whether Section 214 was constitutional.[1]

The Opinion of the Court [2]

The opinion of the Court by Justice Anthony Kennedy acknowledged the international sensitivity of the issue. It said, “A delicate subject lies in the background of this case. That subject is Jerusalem. Questions touching upon the history of the ancient city and its present legal and international status are among the most difficult and complex in international affairs.” Moreover, “Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues in current international affairs.”

The opinion then started with key constitutional provisions regarding foreign affairs. The key was Article II, Section 3 of the U.S. Constitution, which directs that the President “shall receive Ambassadors and other public Ministers.” After consulting the writings of international legal scholars at the time of the drafting of the Constitution, the Court concluded that it is “a logical and proper inference, then, that a Clause directing the President alone to receive ambassadors would be understood to acknowledge his power to recognize other nations.” This conclusion also was supported by the President’s other constitutional powers to make treaties, by and with the Advice and Consent of two-thirds of two-thirds of the Senators present (Art. II, §2, cl. 2.) and the power to “nominate, and by and with the Advice and Consent of the Senate, . . . [to] appoint Ambassadors” as well as “other public Ministers and Consuls.”

These provisions and other considerations led the Court to conclude that “the text and structure of the Constitution grant the President the power to recognize foreign nations and governments” and that this power is exclusively the President’s. “Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These assurances cannot be equivocal.”

Nevertheless, the Court said in dicta, “many decisions affecting foreign relations—including decisions that may determine the course of our relations with recognized countries— require congressional action. Congress may ‘regulate Commerce with foreign Nations,’ ‘establish an uniform Rule of Naturalization,’ ‘define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,’ ‘declare War,’ ‘grant Letters of Marque and Reprisal,’ and ‘make Rules for the Government and Regulation of the land and naval Forces.’” (U. S. Const., Art. I, §8.) “In addition, the President cannot make a treaty or appoint an ambassador without the approval of the Senate.” (Art. II, §2, cl. 2.) “The President, furthermore, could not build an American Embassy abroad without congressional appropriation of the necessary funds.” (Art. I, §8, cl. 1.) (Emphasis added.) [3] Under basic separation-of-powers principles, it is for the Congress to enact the laws, including ‘all Laws which shall be necessary and proper for carrying into Execution’ the powers of the Federal Government.”(§8, cl. 18)

This point about congressional power was underscored by the Court when it said “it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. It is not for the President alone to determine the whole content of the Nation’s foreign policy.” (Citations omitted.)

Reactions to the Court’s Decision

The White House Press Secretary, Josh Earnest, released a statement embracing the decision as it “reaffirms the long-established authority of the President to recognize foreign states, their governments, and their territorial boundaries” and “upholds the President’s long-standing authority to make these sensitive recognition determinations as part of his conduct of diplomacy and foreign policy.”

Alan Morrison, the Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School and the author of an amicus brief in the case in support of the Zivotofsky family, saw possible implications of the case for the current conflicts over Cuba policy between President Obama and the Republican-controlled Congress. Morrison said, President Obama “might announce that he has recognized the Castro-led Cuban government, with no worry about an effort of Congress to override him.” Congress, on the other hand, “might decide to up the ante by . . . using the power of the purse, especially as part of a bill that the president must sign to keep the government from shutting down.”[4]

Indeed, the Center for Democracy in the Americas asserts that this decision invalidates a major portion of the Helms-Burton Act, which “arrogates to the Congress a lot of authority for determining when – and under what circumstances – the United States can resume normal relations [with Cuba]. The law says . . . [only] when the government in Cuba fits the definition of a government in transition or a democratically-elected government can the President recognize Cuba, trade with Cuba, negotiate with Cuba over Guantanamo, allow Cuba to enter the World Bank or other financial institutions, etc.”[5]

In addition, at least three pending bills in Congress would appear to be unconstitutional under this recent Supreme Court decision as they would impose congressional preconditions to a presidential normalization and re-establishment of diplomatic relations: H.R.1782 (Cuba ceasing to violate human rights of its citizens), H.R.2466 and S.1388 (Administration plan for resolving all U.S. claims for property expropriated by Cuba).[6]

There also is at least one pending bill that would bar use of appropriated funds to construct a U.S. Embassy in Havana or expand the present facility housing the U.S. Interests Section there; that is the Department of State’s Appropriations Act FY 2016 that is still before the House Appropriations Committee.[7] That certainly would inhibit the operation of such a facility, but the Court in dicta in Zivotofsky said, ““The President, furthermore, could not build an American Embassy abroad without congressional appropriation of the necessary funds.” (Emphasis added.) Thus, this pending bill would seem to be within Congress’ prerogative, but the Administration always could make a request for a supplemental appropriation to convert the building to an embassy.

There are many bills imposing restrictions on U.S. changes affecting the prison or detention facility at Guantanamo Bay Cuba that, in my opinion, unnecessarily would limit the Administration’s desire to close that facility as well as its discussions with Cuba about the lease of that territory to the U.S., but would not run afoul of the Zvotofsky decision. In the House they are H.R.240, H.R. 401, H.R.654, H.R.1689, H.R.1735, H.R.2029, H.R.2578 and H.R.2685; in the Senate, S.165, S.778 and S.1376.[8]

Other pending bills similarly would impede reconciliation, but would not be barred by the Zvotofsky case. They are H.R.2323 (maintain Ratio and TV Marti), H.R.2577 (ban travel to Cuba on or over expropriated U.S. property), H.R.2578 (no exports to Cuban military and intelligence personnel and their families) and Department of Treasury Appropriations Act FY 2016 pending in the House Appropriations Committee (no imports of expropriated property and no financial transactions with Cuban military personnel).

Conclusion

Maybe this legal discussion is beside the point.

There are reports that the U.S. and Cuba by early July will re-establish diplomatic relations, and on June 13, Senator Jeff Flake (Rep., AZ) predicted the opening of both a Cuban embassy in Washington and a U.S. embassy in Havana will occur in the very near future. “Nothing has been set, but it’s imminent,” he said. Flake’s comments were made just after a meeting in Havana with Cuba’s Foreign Minister Bruno Rodriguez Parrilla, Josafina Vidal, Cuba’s lead negotiator with the U.S., and Cuba’s First Vice President Miguel Diaz Canel. [9]

If this happens, any new legislation to impose preconditions to recognition would be moot and litigation over the constitutional issue would take years to resolve. In any event, however, the Zvotofsky decision bolsters the Obama Administration’s pursuit of normalization and reconciliation with Cuba.

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[1] The case originally was dismissed by the district court on the grounds that the petitioner lacked standing and that the case presented a nonjusticiable political question. The court of appeals affirmed on the political question ground while reversing on the standing ground. The Supreme Court granted certiorari, vacated the judgment and remanded for the circuit court to decide whether the statute was constitutional. Upon remand the circuit court decided that the statute was unconstitutional, which was affirmed by the Supreme Court in this recent decision..

[2] Mr. Justice Thomas filed a separate opinion, concurring in part and dissenting in part. Chief Justice Roberts filed a separate dissenting opinion, and he along with Mr. Justice Alito joined the dissenting opinion of Mr. Justice Scalia. Analysis of these opinions will be left to others. The opinion of the Court and these other opinions are briefly discussed in Liptak, Supreme Court Backs White House on Jerusalem Passport Dispute, N.Y. Times (June 8, 2015).

[3] On commentator saw the highlighted mention of congressional power to withhold funds for building an embassy as a reference to a possible future congressional refusal to appropriate funds to convert the U.S. Interests Section in Havana to a U.S. Embassy.

[4] Morrison, Symposium: President wins in Zivotofsky: Will there be another battle? SCOTUSblog (June 9, 2015).

[5] Center for Democracy in Americas, Is The Supreme Court Passport Decision A Threat to Helms-Burton? We think so (June 12, 2015).

[6] These bills are discussed in the May 26, 2015 post.

[7] This bill is discussed in the June 12, 2105 post.

[8] These and the subsequently mentioned bills are discussed in the posts of May 26 and 28 and June 2, 10 and 12.

[9] Reuters, Exclusive: U.S.-Cuba Deal Expected in Early July to Restore Ties, Reopen Embassies, N.Y. times (June 13, 2015); Assoc. Press, Republican Senator Sees US Embassy in Cuba coming Soon, N.Y. Times (June 13, 2015). Accompanying Senator Flake on this Cuba trip were Republican Senators Susan Collins (ME) and Pat Roberts (KS).

Continued Bad News about U.S. Policies Regarding Cuba

Bad news about U.S. policies regarding Cuba continues to accumulate. The U.S. refuses to budge from outdated hostility towards the island nation when the U.S., in my opinion, should be pursuing reconciliation with Cuba. One glimmer of hope for rationality on this subject was provided by William M. LeoGrande and Peter Kornbluh in The Nation magazine.

Bad News

First, on September 5, 2014, President Obama issued a terse memorandum to the U.S. Secretary of State to extend for another year or through September 14, 2015, the application of the U.S. Trading with the Enemy Act to Cuba for another year. This statute, which was enacted during World War I in 1917, gives the President authority to prohibit, limit or regulate trade with hostile countries in times of war. It is a statutory foundation on which the entire range of U.S. sanctions toward Cuba rests. In a statement for the Secretaries of State and of the Treasury, Obama labeled the move “in the national interests of the United States” without any explanation.

On September 8^th Cuba denounced this decision. Cuba said the main goal of the embargo or blockade is to cause “harm and suffering” to the Cuban people” despite the embargo’s having been denounced by the U.N. General Assembly on 22 consecutive occasions since 1992.

Second, as anticipated Cuba has announced that on October 28^th it will offer at the U.N. General Assembly a new resolution on the need to end the U.S. blockade against Cuba. A Cuban report in support of the resolution stresses the blockade has been described as a genocidal policy by the international community since it prevents the island from acquiring medicines, reagents, spare pieces for medical equipment and other inputs, forcing it to trade with distant markets, thus increasing the costs. The Cuban report also alleges that the embargo/blockade has caused $116.8 billion of damages to the island’s economy.

Once again, this resolution is expected to be overwhelming approved by the General Assembly.

Third, there was good news that Latin American leaders are insisting that Cuban representatives be present at the next Summit of the Americas in Panama in April 2015. Last month the Panamanian Foreign Minister visited Havana to issue such an invitation personally to Cuban President Raúl Castro. Such an invitation is supported by other Latin American countries. As Uruguay’s Foreign Minister, Luis Almago, recently said, “The Latin American countries without exception formulated in the last Summit held in Cartagena that Cuba should be part of the 2015 Summit. Panamá has welcomed this desire and I believe that the invitation sent to Cuba is good news for the inter-American family.”

The U.S., however, is opposed to Cuban attendance. A State Department representative recently made the following rather innocuous comment on the subject:

“Panama is the host country for the summit, and as the host country they will make the decisions on invitations to that summit. I think the invitations in a formal sense have not yet been made. . . [We] have said from the start that we look forward to a summit that can include a democratic Cuba at the table. We also have said that the summit process, ever since Quebec in 2001, has made a commitment to democracy, and we think that’s an important part of the summit process. But the decision about invitations is not ours to make, and obviously there’s been no invitations formally issued to the United States and other countries. And so there is no acceptance or rejection yet called for or made.”

More vigorous opposition was expressed by U.S. Senator Robert Menendez, a Cuban-American and the Chairman of the Senate Foreign Relations Committee. In a letter to the Panamanian President, Menendez expressed “dismay” over Panama’s intended invitation. According to Menendez, “Cuba’s participation would undermine the spirit and authority of the Summit of the Americas as a space to reaffirm the principles enshrined on the Charter of the United Nations, the Charter of the Organization of American States, and the Inter-American Democratic Charter, as well as commitments made at past Summits.”

After railing against Cuba as “the hemisphere’s most enduring dictatorship,” Menendez concluded his letter by saying such an invitation “sends the wrong message about the consolidation of democracy in the Americas, will dramatically weaken the democratic credentials of the premier meeting of heads of state in the hemisphere, and ultimately will undermine the validity of the Summits’ declarations.” This proclamation was coupled with perhaps an implied threat of adverse consequences for Panama from the U.S. should Panama proceed with the invitation; Menendez said, “I remain committed to strengthening the partnership between the U.S. and Panama.”[1]

Fourth, Alan Gross, a U.S. citizen, remains in poor health in a Cuban prison after his conviction for violating Cuban laws. In my opinion, it clearly is in the interest of both Cuba and the U.S.to have him released from that prison and returned to the U.S. before he dies and thereby creates another obstacle to improving relations between the two countries. Cuba, however, by all reports is trying to negotiate an exchange of Gross for at one or more of the three remaining “Cuban Five” in U.S. prison.

Frank Calzon, the Executive Director of the Center for a Free Cuba, however, has issued what, in my opinion, is a counterproductive suggestion. He says, “There . . . comes a time when something more [than negotiating through diplomatic channels] is needed. That time is now in Cuba. Only when U.S. government raises the stakes — the political and economic risks facing Cuba — will Alan Gross be allowed to come home, and only then will Havana have to think twice before taking another hostage.

Fifth, in 1976 then U.S. Secretary of State Henry Kissinger in the Gerald Ford Administration was in charge of a top-secret group of senior officials that developed plans to conduct, after the 1976 presidential election, air strikes on Cuban ports and military installations and to send Marine battalions to the United States Navy base at Guantánamo Bay to “clobber” the Cubans. The plan also included proposals for a military blockade of Cuba’s shores. Fortunately with Jimmy Carter’s victory in the 1976 election, this plan never was implemented,

Kissinger instigated this planning because he personally was infuriated that Fidel Castro in late 1975 had sent Cuban troops to newly independent Angola to help in its repelling attacks from South Africa and right-wing guerrillas and thereby ignored Kissinger’s behind-the-scenes effort to improve U.S. relations with Cuba.

These revelations are in documents, now available online, that recently were declassified by the Gerald R. Ford Presidential Library.

Glimmer of Hope

William M. LeoGrande (Professor of Government at American University’s School of Public Affairs) and Peter Kornbluh (Director of the National Security Archive’s Cuba and Chile Documentation Projects) have published a new book, Backchannel to Cuba: The Hidden History of Negotiations Between Washington and Havana, which I want to read. [2] This book forms the basis for their recent article in The Nation magazine, Six Lessons for Obama on How to Improve Relations with Cuba. Here are those lessons.

Even at moments of intense hostility, there have always been reasons and opportunities for dialogue.

Cuban leaders instinctively resist making concessions to US demands, but they are willing to take steps responsive to US concerns so long as those steps come at Havana’s initiative.

Cuban leaders have had a hard time distinguishing between U.S. gestures and concessions.

An incremental approach to normalizing relations has not worked. It is slow and easily disrupted by other events. “Incremental steps do not fundamentally change the relations and, therefore are easily reversed.” Every incremental step gives U.S. opponents of reconciliation the opportunity to obstruct the process. Instead, the “alternative is a bold stroke that fundamentally changes the relationship (even if it doesn’t resolve every issue) and leaves opponents facing a fait accompli. Nixon’s trip to China is the paradigmatic example.”

Domestic politics is always an issue on both sides.

Cuba wants to be treated as an equal, with respect for its national sovereignty.

Conclusion

Although I do not have the depth of knowledge of LeoGrande and Kornbluh I endorse their lessons as should be evident from this blog’s many posts on the subject of U.S.-Cuba relations.

Perhaps the bold stroke they mention as the way towards improved relations could be made by a third party—another country or an international organization or a nongovernmental organization—stepping forward with a public announcement of a desire and commitment to serve as a mediator to resolve the many issues between the two countries and inviting them to send representatives at a set time and place to discuss the procedures for such a mediation. Such an initiative, in my judgment, to have any chance of success would have to be by an entity that was neutral, that was respected by both sides and the world at large, that had the resources to be engaged in such a process for a long time and that would not be discouraged by any initial negative responses by either country. This blog made such a suggestion in 2011 and 2012.

Such a mediation would remove the desire of at least the U.S. to avoid taking the first step toward normalization. It also, in my opinion, would be in the national interest of both countries.

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[1] A rebuttal to the Menendez letter was issued by the Center for Democracy in the Americas.

[2] LeoGrande and Kornbluh have been interviewed about the book.

U.S. Stupidity and Cowardice in Continuing to Designate Cuba as a “State Sponsor of Terrorism”

On April 30, 2014, the U.S. Department of State issued its annual report on terrorism in the world: Country Reports on Terrorism 2013. A prior post reviewed the report as a whole.

We now examine this report’s designation of Cuba as a “State Sponsor of Terrorism” [“SST”], i.e., as a country that has “repeatedly provided support for acts of international terrorism.” This post’s analysis is also informed by the U.S.’s similar designations of Cuba in the annual reports on terrorism for 1996 through 2012. Earlier posts analyzed and criticized the reports about Cuba for 2009, 2010, 2011 and 2012.

State Department’s Rationale

The following is the complete asserted justification for the Department’s designation of Cuba for 2013:

“Cuba was designated as a State Sponsor of Terrorism in 1982.
Cuba has long provided safe haven to members of Basque Fatherland and Liberty (ETA) and the Revolutionary Armed Forces of Colombia (FARC). Reports continued to indicate that Cuba’s ties to ETA have become more distant, and that about eight of the two dozen ETA members in Cuba were relocated with the cooperation of the Spanish government. Throughout 2013, the Government of Cuba supported and hosted negotiations between the FARC and the Government of Colombia aimed at brokering a peace agreement between the two. The Government of Cuba has facilitated the travel of FARC representatives to Cuba to participate in these negotiations, in coordination with representatives of the Governments of Colombia, Venezuela, and Norway, as well as the Red Cross.
There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.
The Cuban government continued to harbor fugitives wanted in the United States. The Cuban government also provided support such as housing, food ration books, and medical care for these individuals.”

Rebuttal of State Department’s Rationale

On its face alone, this alleged justification proves the exact opposite: Cuba is not a state sponsor of terrorism. Nevertheless, a detailed rebuttal follows.

U.S. Admissions of the Weakness of Its Designation

First, the report itself admits, “There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.” This is consistent with past U.S. admissions that there was no evidence that Cuba had sponsored specific acts of terrorism (1996, 1997) and that there “was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups” (2011, 2012, 2013). Similar admissions were made in the U.S. reports for 2005, 2008, 2009 and 2010.

Second, earlier U.S. reports admitted that “Cuba no longer supports armed struggle in Latin America and other parts of the world” (1996, 1997, 1998, 2008, 2009) and that in 2001(after 9/11) Cuba “signed all 12 UN counterterrorism conventions as well as the Ibero-American declaration on terrorism” (2001, 2002, 2003).

Third, the latest report’s Western Hemisphere Overview says the FARC “committed the majority of terrorist attacks in the . , . Hemisphere in 2013.” There is no mention of Cuba in this overview. The same was said in the report for 2012.

Fourth, there is no mention of Cuba in the latest report’s “Strategic Assessment” that puts all of its discussion into a worldwide context.

Fifth, the latest report makes no allegations against Cuba regarding money laundering and terrorist financing, which was one of the purported bases for the SST designation for 2012. Thus, the U.S. apparently has recognized the weakness of such charges were evident to all, as discussed in this blogger’s post about the prior report and a related post about Cuba’s adoption of regulations on these financial topics.

All of this rebuttal so far is based only on what the State Department has said about this designation since 1996.

In addition, the Cuban government has taken the following actions that strengthen the rebuttal of the designation and that, to my knowledge, the U.S. has not disputed:

Cuba publicly has stated that Its “territory has never been and never will be utilized to harbor terrorists of any origin, nor for the organization, financing or perpetration of acts of terrorism against any country in the world, including the [U.S.]. . . . The Cuban government unequivocally rejects and condemns any act of terrorism, anywhere, under any circumstances and whatever the alleged motivation might be.”
In 2002, the government of Cuba proposed to the U.S. adoption of a bilateral agreement to confront terrorism, an offer which it reiterated in 2012, without having received any response from the U.S.
Cuban President Raul Castro on July 26, 2012 (the 59th anniversary of the Cuban Revolution) reiterated his country’s willingness to engage in negotiations with the U.S. as equals. He said no topic was off limits, including U.S. concerns about democracy, freedom of the press and human rights in Cuba so as long as the U.S. was prepared to hear Cuba’s own complaints. In response the U.S. repeated its prior position: before there could be meaningful talks, Cuba had to institute democratic reforms, respect human rights and release Alan Gross, an American detained in Cuba.

But let us go further.

Cuba As an Alleged Safe Haven for Terrorists

The only remaining asserted basis for the “SST” designation is Cuba’s alleged providing safe haven to individuals with two U.S.-designated Foreign Terrorist Organizations—ETA (an armed Basque nationalist and separatist group in Spain) and FARC (an armed Colombian rebel group)—and to certain fugitives from U.S. criminal proceedings.

Analysis shows that these charges do not support the SST designation.

a. ETA

Prior U.S. reports say there were only 20 to 24 ETA members in Cuba, and the latest report says “Cuba’s ties to ETA have become more distant, and . . . about eight of the two dozen ETA members in Cuba were relocated with the cooperation of the Spanish government.” Thus, there are only 12 to 16 ETA members remaining in Cuba, and by now they must be older people who have not participated in any terrorist activities in Spain for many years. They are “side-line sitters.”

Moreover, the 2011 and 2012 U.S. reports state that Cuba is “trying to distance itself” from the ETA members on the island and was not providing certain services to them.

Earlier U.S. reports also reflect the limited nature of the charges regarding ETA. Of the 20 to 24 members previously on the island, the U.S. said, some may be in Cuba in connection with peace negotiations with Spain (2009). In May 2003, the U.s. reported, Cuba publicly asserted that the “presence of ETA members in Cuba arose from a request for assistance by Spain and Panama and that the issue is a bilateral matter between Cuba and Spain” (2003). In March 2010, a U.S. report stated, Cuba had “allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members” (2010).

Moreover, in March 2011 the Spanish Ambassador to Cuba told former U.S. President Jimmy Carter that Spain was “not concerned about the presence of members of . . . ETA . . . in Cuba.” Indeed, the Spanish Ambassador maintained that this enhances his country’s ability to deal more effectively with ETA. In fact, the Ambassador added, some ETA members are there at the request of the Spanish government.

At least the last three U.S. reports say that Cuba is providing “safe haven” to the ETA members, but their separate chapters on the legitimate international problem of terrorist safe havens have no mention whatsoever of Cuba.

It also should be noted that there has been some movement towards an understanding to resolve the ETA challenges to the Spanish government. In September 2011 an international verification commission was established to help broker such a resolution, and the next month ETA announced a unilateral cease-fire. More recently, February 2014, that commission announced its corroboration of a partial disablement of ETA weapons. The Spanish government, on the other hand, publicly has refused to negotiate and instead has insisted that ETA admit defeat and surrender unconditionally. In addition, the government still enforces a criminal law against publicly glorifying terrorists or their actions with April 28^th arrests of 21 Spaniards for praising terrorist groups such as ETA and radical Islamists, for encouraging further attacks, and for making fun of victims on social networking sites.

In the meantime, Spain as a member of the European Union is participating in negotiations between the EU and Cuba to establish a Political Dialogue and Cooperation Agreement without any mention of ETA members being on the island. Recently the parties completed the first round of those negotiations with an understanding that the final agreement will have these four components: political dialogue and governance; cooperation and sectoral policies; the economy and trade; and management of the bilateral relationship. The subject of human rights will remain an issue in the chapter on the Political dialogue and governance.

In summary, I submit, any objective analysis shows that Cuba’s limited connection with a small number of ETA members is no legitimate reason for the U.S. SST designation.

b. FARC

Most of the reasons for the speciousness of the charges regarding ETA also apply to the charges regarding the Colombian group, FARC.

In addition, the 2008 U.S. report said in July of that year “former Cuban President Fidel Castro called on the FARC to release the hostages they were holding without preconditions. He has also condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians who had no role in the armed conflict.”

There is no indication in the State Department’s reports of the number of FARC members allegedly in Cuba, but for 2009 the U.S. reported that some may be on the island in connection with peace negotiations with Colombia (2009 report).

Moreover, in March 2011 the Colombian Ambassador to Cuba told former U.S. President Jimmy Carter that Colombia was “not concerned about the presence of members of FARC . . . in Cuba.” Indeed, the Ambassador maintained that this enhances their ability to deal more effectively with FARC.

Cuba’s limited connections with the FARC resulted in a September 2012 statement by Cuba’s Ministry of Foreign Relations about the then recently-announced peace talks between Colombia’s government and the FARC. It stated that Cuba “has a historical commitment to peace in Colombia and efforts to put an end to [her] . . . political, social and military conflicts.” To that end, the Cuban Government “has made constructive efforts to . . . search for a negotiated solution, always responding to a request from the parties involved and without the slightest influence in their respective positions.” The statement continued. For over a year, at the express request of the Government of Colombia and the FARC, “the Cuban government supported the . . . exploratory talks leading to a peace process,” and as a “guarantor” Cuba participated in these talks. “The Cuban government will continue to . . . [provide its] good offices in favor of this effort, to the extent that the Government of Colombia and the FARC . . . so request.” The Government of Colombia publicly stated its gratitude for Cuban facilitation of such negotiations.

As a result, the last two U.S. reports admit that Cuba has “supported and hosted negotiations between the FARC and the Government of Colombia aimed at brokering a peace agreement between the two sides.” In addition, Colombia’s president has said that support for such negotiations by Cuba and Venezuela has been crucial in helping the two sides to reach agreement on conducting the negotiations.

In May 2013, the two sides announced an agreement to distribute land to small farmers and undertake development projects that would improve rural education and infrastructure that will not take effect until a final peace agreement is reached.

In short, Cuban involvement with some FARC members is not a legitimate basis for the U.S. designation of Cuba as a SST .

c. U.S. fugitives

There apparently were or are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes, but, as the U.S. has admitted, since at least 2005 Cuba has not admitted any additional U.S. fugitives. In addition, the U.S. also had admitted that in a few instances Cuba has extradited such fugitives to the U.S. (2001, 2003, 2004, 2005, 2006, 2007, 2008, 2009).

One of the U.S. fugitives, William Potts, this year voluntarily returned to the U.S. after serving a 15-year Cuban sentence for the 1984 hijacking of a Piedmont Airlines passenger plane with 56 people aboard in the U.S. and forcing it to go to Cuba. On May 1, 2014, Potts appeared in a U.S. federal court and pled guilty to kidnapping (with a possible life sentence); under a plea agreement, the government dropped an air piracy charge (with a mandatory minimum sentence of 20 years). Potts is asking the court to give him credit for the 15 years he already served in a Cuba prison on the same charge. Sentencing is scheduled for July 11^th.

None of the other U.S. fugitives apparently is affiliated with any U.S.-designated terrorist organizations. The issue of whether or not they will be extradited to the U.S. is an appropriate issue for bilateral negotiations between the two countries.

In any event, the presence in Cuba of some fugitives from U.S. criminal charges is not a legitimate basis for the U.S. designating Cuba as a SST.

Conclusion

The U.S. designation of Cuba as a “State Sponsor of Terrorism” is absurd. This conclusion is shared, in less colorful language, at least by the U.S. Central Intelligence Agency, former President Jimmy Carter, the U.S. Council on Foreign Relations, the Center for Democracy in the Americas, the Center for International Policy, the Latin American Working Group, The Atlantic Magazine’s noted national correspondent (Jeffrey Goldberg) and a retired U.S. Army Brigadier General (John Adams).

Not surprisingly the Cuban government comes to the same conclusion. In response to the latest designation, it stated,” Cuba’s Foreign Ministry “energetically rejects the manipulation of a matter as sensitive as international terrorism by turning it into an instrument of policy against Cuba and it demands that our country be definitively excluded from this spurious, unilateral and arbitrary list.” Last year, it said “the only reason Cuba is kept on this list is . . . an attempt to justify the U.S. blockade of our country, as well as the adoption of new measures to limit our financial and commercial transactions, to strangle the Cuban economy and impose a regime which responds to U.S. interests.”

The U.S. itself also has damned the designation by faint praise. In a press briefing about the most recent terrorism report, a journalist pointed out some of the weaknesses of the stated rationale and asked when the U.S. would cancel the designation. The State Department spokesperson refused to speak directly about the purported rationale for the Cuban SST designation. Instead the spokesperson said, “there’s not a routine process by which you re-evaluate the state sponsors. . . . [and the annual terrorism reports just list those on the SST list. It is not]as if every year we look at those and re-evaluate them in some way based on the report.” [1] She added she knew of no plans to remove the SST designation for Cuba.

Whatever legitimate issues are raised by these U.S. reports, I submit, they are appropriate subjects, among many, for the bilateral negotiations that a prior post recommended should occur between the U.S. and Cuba to the end of reconciliation and restoration of normal relations.

In the meantime, this SST designation is ridiculous, absurd, stupid. It can only continue, in this outsider’s opinion, because of the Administration’s political cowardice in facing resistance to an elimination of this designation, especially from influential Cuban-Americans in Congress, especially Democratic Senator Robert Menendez, Chairman of the Senate Foreign Relations Committee,[2] and Republican Rep. Ros-Lehtinen, member of the House Foreign Affairs Committee.[3]

All U.S. citizens should protest this SST designation to President Obama, Secretary of State Kerry, Senator Menendez (and your own Senators), Representative Ros-Lehtinen (and your own Representative).

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[1] The State Department also posted this statement on its website. “While there are no statutory triggers for review of a State Sponsor of Terrorism designation, the State Department can review such designations at its discretion. With respect to criteria for rescission, there are two possible pathways to rescission of a State Sponsor of Terrorism designation, in accordance with the relevant statutory criteria. The first path requires the President to submit a report to Congress, before the proposed rescission would take effect, certifying that: (1) there has been a fundamental change in the leadership and policies of the government of the country concerned; (2) the government is not supporting acts of international terrorism; and (3) the government has provided assurances that it will not support acts of international terrorism in the future.The second path requires the President to submit a report to Congress, at least 45 days before the proposed rescission would take effect, justifying the rescission and certifying that: (1) the government concerned has not provided any support for international terrorism during the preceding six month period, and (2) the government concerned has provided assurances that it will not support acts of international terrorism in the future.

[2] In April 2014, Senator Menendez made a speech on the Senate floor endorsed Cuba’s SST designation while castigating Cuba on all sorts of issues.

[3] Responding to the latest designation, Rep. Ileana Ros-Lehtinen (R., Fla.), said Cuba “continues to pose a national security threat to the United States.” She added that recently “the Castro regime has been responsible for training the ‘colectivos’ in Venezuela that violate human rights and murder innocent civilians and Cuba was caught trying to ship military equipment to North Korea in violation of many United Nations Security Council resolutions [and the] tyranny in Havana is also guilty of harboring terrorists, providing safe haven for American fugitives, and building a sophisticated spy network that seeks to undermine our national security interests at every turn.”

Yet Another Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism”

On July 31, 2012, the U.S. Department of State issued its annual report on terrorism in the world: Country Reports on Terrorism 2011. A prior post reviewed the report as a whole.

We now examine this report‘s designation of Cuba as a “State Sponsor of Terrorism,” i.e., as a country that has “repeatedly provided support for acts of international terrorism.” This post’s analysis is also informed by the previous U.S. reports on terrorism for 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009 and 2010.[1] Earlier posts analyzed and criticized the reports for 2009 and 2010.

Preliminarily I note that the latest report says that 480 of the 10,283 terrorist attacks in 2011 occurred in the Western Hemisphere and that “the vast majority of . . . [these] were ascribed to the Revolutionary Armed Forces of Colombia (FARC).” There is no mention of Cuba in this statistical summary.

Nor is there any mention of Cuba in the latest report’s “Strategic Assessment” that puts all of its discussion into a worldwide context. Instead this section of the report highlights the death of Osama bin Laden and other top leaders of al-Qa’ida as putting its “network on a path of decline that will be difficult to reverse.” Others specifically mentioned in this Assessment were Iran, terrorists groups in South-Asia, the Kurdistan Workers Party in Turkey, anarchists in Greece and Italy, dissident Republican groups in Northern Ireland and Anders Behring Breivik (the Norwegian right-wing extremist who killed 77 people last July).

Cuba As an Alleged Safe Haven for Terrorists

The first stated basis for designating Cuba as a “State Sponsor of Terrorism” is its allegedly providing safe havens to individuals associated with two U.S.-designated Terrorist Organizations–Spain’s Basque Fatherland and Liberty (ETA) and the Revolutionary Armed Forces of Colombia (FARC)–and to certain fugitives from U.S. criminal proceedings. Here are direct quotations of the report on these points:

“Current and former members of . . . ETA continue to reside in Cuba. Three suspected ETA members were arrested in Venezuela and deported back to Cuba in September 2011 after sailing from Cuba. One of them, Jose Ignacio Echarte, is a fugitive from Spanish law and was also believed to have ties” to the FARC.

“Press reporting indicated that the Cuban government provided medical care and political assistance to the FARC.”

“The Cuban government continued to permit fugitives wanted in the United States to reside in Cuba and also provided support such as housing, food ration books, and medical care for these individuals.”

Before we examine some details about these charges, it must be said that the speciousness of this charge about ETA and FARC is shown by the latest U.S. terrorism report itself. It has a separate chapter on the legitimate international problem of terrorist safe havens as “ungoverned, under-governed, or ill-governed physical areas where terrorists are able to organize, plan, raise funds, communicate, recruit, train, transit, and operate in relative security because of inadequate governance capacity, political will, or both.” The report then identifies such havens in different parts of the world. For the Western Hemisphere, it discusses Colombia, Venezuela and the Tri-Border Area (where Argentina, Brazil and Paraguay come together). But there is no mention whatsoever of Cuba.

Earlier U.S. reports provide another reason for discounting these charges. They admit that “Cuba no longer supports armed struggle in Latin America and other parts of the world” (1996, 1997, 1998, 2008, 2009 reports) and that there was no evidence that Cuba had sponsored specific acts of terrorism (1996, 1997 reports). They also report that in 2001(after 9/11) Cuba “signed all 12 UN counterterrorism conventions as well as the Ibero-American declaration on terrorism” (2001, 2002, 2003 reports).

Let us now examine details about each of these specific assertions about alleged safe haven which have been made by the U.S. since at least 1996.

1. ETA

The weakness of the U.S. charge regarding ETA implicitly is admitted by the latest report itself when it states there “was no indication that the Cuban government provided weapons or paramilitary training for” ETA. Similar admissions were made in the U.S. reports for 2005 (“no information concerning terrorist activities of [ETA] on Cuban territory”); 2008 (“no evidence of . . . terrorist financing activities”); 2009 (“no evidence of direct financial support”); 2010 (“no evidence of direct financial or ongoing material support”).

In addition, the latest U.S. report adds that there is evidence”[suggesting ] that the Cuban government [in 2011] was trying to distance itself from ETA members living on the island by employing tactics such as not providing services including travel documents to some of them.”

Earlier U.S. reports also reflect the limited nature of this charge. There allegedly were only 20 ETA members living in Cuba (2001 report), some of whom may be there in connection with peace negotiations with Spain (2009 report). In May 2003, Cuba publicly asserted that the “presence of ETA members in Cuba arose from a request for assistance by Spain and Panama and that the issue is a bilateral matter between Cuba and Spain” (2003 report). In March 2010 Cuba “allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members” (2010 report).

Moreover, in March 2011 the Spanish Ambassador to Cuba told former U.S. President Jimmy Carter that Spain was “not concerned about the presence of members of . . . ETA . . . in Cuba.” Indeed, the Ambassador maintained that this enhances his country’s ability to deal more effectively with ETA. In fact, the Ambassador added, some ETA members are there at the request of the Spanish government.

2. FARC

Again the new U.S. report implicitly admits the weakness of its FARC allegations by the report’s stating there “was no indication that the Cuban government provided weapons or paramilitary training for” FARC. Similar admissions were made in the U.S. reports for 2005 (“no information concerning terrorist activities of [FARC] on Cuban territory”); 2008 (“no evidence of . . . terrorist financing activities”); 2009 (“no evidence of direct financial support”); 2010 (“no evidence of direct financial or ongoing material support”).

In addition, the 2008 report said in July of that year “former Cuban President Fidel Castro called on the FARC to release the hostages they were holding without preconditions. He has also condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians who had no role in the armed conflict.”

There is no indication in the reports of the number of FARC members allegedly in Cuba, but some may be there in connection with peace negotiations with Colombia (2009 report).

3. U.S. fugitives

There apparently were or are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes, but pursuant to a 2005 Cuban government statement, no additional U.S. fugitives have been permitted on the island. In a few instances Cuba has extradited such fugitives to the U.S. (2001, 2003, 2004, 2005, 2006, 2007, 2008, 2009 reports).

None of these fugitives apparently is affiliated with U.S.-designated terrorist organizations. The issue of whether or not they will be extradited to the U.S. is an appropriate issue for bilateral negotiations between the two countries. But, in my opinion, it is not a legitimate basis for designating Cuba as a “State Sponsor of Terrorism.”

Cuba’s Alleged Financial System Deficiencies

The other asserted ground in the latest U.S. report for the designation of Cuba as a “State Sponsor of Terrorism” is new.

This other ground is Cuba’s having been identified by the Financial Action Task Force (FATF) as “having strategic AML/CFT [Anti-Money Laundering/Combating the Financing of Terrorism] deficiencies. Despite sustained and consistent overtures, Cuba has refused to substantively engage directly with the FATF. It has not committed to FATF standards and it is not a member of a FATF-style regional body.”

According to its website, FATF “is an inter-governmental body established in 1989 by the Ministers of its Member jurisdictions. [Its] . . . objectives . . . are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system. The FATF is therefore a ‘policy-making body’ which works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas.” Thus, it apparently is a voluntary international organization, not one established by a multilateral treaty.

FATF currently has 34 member jurisdictions (or only about 18% of the U.N. member states) plus 2 regional organizations (the European Council and the Gulf Co-Operation Council) representing most major financial centers in all parts of the globe.

Starting in 1990,”FATF has developed a series of Recommendations that [it claims] are now recognised as the international standard for combating of money laundering and the financing of terrorism and proliferation of weapons of mass destruction. They form the basis for a co-ordinated response to these threats to the integrity of the financial system and help ensure a level playing field. First issued in 1990, the FATF Recommendations were revised in 1996, 2001 [additional measures regarding terrorist financing], 2003 and 2012 to ensure that they remain up to date and relevant, and they are intended to be of universal application.”

To this end, FATF promotes the global adoption and implementation of the FATF Recommendations.

In June 2012 FATF issued a Public Statement that identified Iran and the Democratic Republic of Korea [North Korea] as jurisdictions “subject to a FATF call on its members and other jurisdictions to apply counter-measures to protect the international financial system from the on-going and substantial money laundering and terrorist financing (ML/TF) risks emanating from [these] . . . jurisdictions.”

The June 2012 Statement also listed 18 other countries, including Cuba, as jurisdictions “with strategic AML/CFT deficiencies that have not made sufficient progress in addressing the deficiencies or have not committed to an action plan developed with the FATF to address the deficiencies. The FATF calls on its members to consider the risks arising from the deficiencies associated with each jurisdiction.”

The latest U.S. terrorism report made an important concession on this point by noting that in 2011 Cuba “did attend a [FATF] meeting on Money Laundering in South America meeting as a guest and prepared an informal document describing its anti-money laundering/counterterrorist financing system.” But this U.S. concession did not go far enough, for the June 2012 FATF Statement said, “Since February 2012 Cuba has officially engaged with the FATF and has also attended [the meetings of the relevant regional organizations] CFATF [Caribbean Financial Action Task Force] and GAFISUD [Financial Action Task Force on Money Laundering in Latin America] . . . . The FATF urges Cuba to continue its engagement with the FATF, and to work with the FATF to develop and agree on an action plan in order to implement an AML/CFT regime in line with international standards.”

I assume that the issues being addressed by the FATF are important ones for the international community and that its Recommendations are reasonable ones to address the real problems of money laundering and financing of terrorism. I also assume that the Cuban financial system is not as sophisticated as those in the U.S. and other international money centers and that it along with at least 17 other countries that are not “State Sponsors of Terrorism” is not in compliance with the FATF Recommendations.

But these facts, in my opinion, do not support designating Cuba as a “State Sponsor of Terrorism.” If it were, then the 17 other countries on the two FATF lists should be added to the U.S. list of “State Sponsors of Terrorism.” (Of the 20 countries on the two FATF lists, only Iran, Syria and Cuba are now U.S.-designated “State Sponsors.”)

Moreover, as noted above, the U.S. terrorism reports have indicated there was no evidence of Cuban financing of terrorism in the covered years. In addition, some of the reports reference Cuban laws permitting the tracking, blocking, or seizing terrorist assets (Cuba’s Law 93 Against Acts of Terrorism and Instruction 19 of the Superintendent of the Cuban Central Bank) (2005, 2006, 2007, 2008 reports). In addition, in its response to this latest U.S. report, Cuba has asserted that it “regularly provides precise, truthful information to the appropriate United Nations bodies charged with addressing these issues and others related to confronting terrorism.”

The whole FATF issue raised in the U.S. terrorism report, in my opinion, is a “red herring.”

Conclusion

In summary, the U.S. designation of Cuba as a “State Sponsor of Terrorism” is ridiculous. This conclusion is shared, in less colorful language, at least by the U.S. Central Intelligence Agency; the U.S. Council on Foreign Relations; the Center for International Policy; the Latin American Working Group; the Center for Democracy in the Americas; The Atlantic magazine’s national correspondent (Jeffrey Goldberg) and a retired U.S. Army Brigadier General (John Adams).

Not surprisingly the Cuban government comes to the same conclusion. It says “the only reason Cuba is kept on this list is exposed as an attempt to justify the U.S. blockade of our country, as well as the adoption of new measures to limit our financial and commercial transactions, to strangle the Cuban economy and impose a regime which responds to U.S. interests.”

Whatever legitimate issues are raised by these U.S. reports, I submit, are appropriate subjects, among many, for the bilateral negotiations that a prior post recommended should occur between the U.S. and Cuba to the end of reconciliation and restoration of normal relations. As Cuba pointed out after this U.S. report was released, Cuba repeatedly has proposed that the two countries “agree upon a bilateral program to confront terrorism,” but the U.S. government has not responded.

More generally, Cuban President Raul Castro on July 26, 2012 (the 59th anniversary of the Cuban Revolution) reiterated his country’s willingness to engage in negotiations with the U.S. as equals. He said no topic was off limits, including U.S. concerns about democracy, freedom of the press and human rights in Cuba so as long as the U.S. was prepared to hear Cuba’s own complaints. In response the U.S. repeated its prior position: before there could be meaningful talks, Cuba had to institute democratic reforms, respect human rights and release Alan Gross, an American detained in Cuba.

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[1] Cuba has been so designated since March 1982.The U.S. terrorism reports listed above are those that are accessible on the U.S. State Department’s website. I would appreciate detailed comments from anyone with knowledge about the reports for 1982-1995 although they are less relevant due to the passage of time.