Update on Congressional Actions Regarding Cuba 

A June 12th post reviewed the status of appropriations bills relating to Cuba in the U.S. House of Representatives. Now we look at what happened last week in Congress on these and other measures.

National Defense Authorization Act FY 2016[1]

On June 18, the Senate passed its version of the spending authorization for the Department of Defense for Fiscal Year 2016.

The White House threatened to veto the bill. The main bone of contention is the bill’s continuation of sequestration of funds and use of so-called budget gimmicks. The White House opposes also opposes the bill because it contains language that it claims would make it hard to shutter the U.S. prison facility in Guantánamo Bay, Cuba. It calls the process for winning congressional approval of closing Guantánamo “unnecessary and overly restrictive.”

The same day, however, Senator John McCain (Rep., AZ) said that Defense Secretary Aston Carter had pledged to come forward to Congress with a plan to close the Guantanamo prison facility. Even if the administration hands over a plan to close the facility, however, it’s unclear if it could get passed through Congress. McCain’s proposal divided Republicans on the Senate Armed Services Committee and he faces opposition from House lawmakers.

Now the Senate and House have to confer and negotiate a bill that can pass both chambers. One of the major challenges are the different provisions regarding the Guantanamo detention facility and detainees:

  • The Senate’s version of the bill provides the President with a path to close the prison in Guantanamo if Congress signs off on the plan.
  • The House version does not include an option for closing the prison, but instead would maintain restrictions on transferring prisoners. The House bill also adds additional certification requirements, bans detainees from being transferred to “combat zones” and blocks any transfers of prisoners to the United States including for medical purposes.

Intelligence Authorization Act, FY 2016 (H.R.2596)[2]

On June 16 the House passed, 247-178, the Intelligence Authorization Act FY 2016 (H.R.2596). It outlines policy for 16 federal intelligence agencies, including the CIA and .the National Reconnaissance Agency. After the vote, John Boehner (Rep., OH), the Speaker of the House, said, “This bill sustains and strengthens our capabilities to combat terrorism, cyberattacks, and the proliferation of weapons of mass destruction, while making every taxpayer dollar count.”

The bill’s sections 321 would ban the transfer of certain Guantanamo detainees to the U.S.; section 322 would ban the construction or modification of U.S. facilities to house certain Guantanamo detainees; and section 323 would ban transfer of Guantanamo detainees to combat zones. Sections 331 and 333 would require certain reports to Congress regarding such detainees.

Rep. Adam Schiff (Dem., CA), the top Democrat on the Intelligence Committee, criticized the bill’s banning the government from transferring such detainees to the U.S. or a recognized “combat zone.” Schiff said, “We are not safer because of Guantanamo’s existence. In fact, it makes us more vulnerable by drawing more recruits to the jihad.” Moreover, the definition of “combat zone,” Schiff added, is “so broad as to include allies and partners such as Jordan.” An amendment from Schiff to eliminate the new restrictions failed 176-246.

Before the vote, the White House said, “While there are areas of agreement with the committee, the administration strongly objects to several provisions of the bill,” and “If this bill were presented to the president, the President’s senior advisors would recommend to the president that he veto it.”

Financial Services and General Government Appropriations Act FY 2016[3]

On June 17 the House Appropriations Committee approved the Financial Services and General Government Appropriations Act FY 2016 on a straight party-line vote, 30 to 20.The Committee’s press release states the bill provides $20.2 billion in funding for “critical national programs to enforce U.S. laws , maintain a fair and efficient judicial system, and help small businesses grow” while reducing or eliminating lower-priority programs and cutting “poor-performing agencies—including an $838 million reduction to the Internal Revenue Service.”

One of the most controversial provisions of the bill was the temporary blocking of the newly implemented net neutrality rules, which was criticized by the White House without a threat of a veto.

As noted in a prior post, according to the Committee’s press release, the bill contains prohibitions on (a) “travel to Cuba for educational exchanges not involving academic study pursuant to a degree program;” (b) “importation of property confiscated by the Cuban Government;” and (c) “financial transactions with the Cuban military or intelligence service.” I, however, am still unable to find these provisions in the bill. I solicit comments identifying these provisions.

In the Committee Rep. Nita Lowey (Dem., NY), the top Democrat of the full committee, offered an amendment that would have removed what she called “20 veto-bait riders” or policy provisions, including these Cuba-related measures. The proposal was blocked on a party-line vote.

Freedom to Travel to Cuba Act of 2015 (S.299)[4]

A prior post discussed the Freedom to Travel to Cuba Act of 2015 that was introduced by Senator Jeff Flake (Rep., AZ). In addition, it now has 44 cosponsors: 36 Democrats, 6 Republicans and 2 Independents.

A recent New York Times editorial endorsed the lifting the ban on travel to Cuba. It said, “The ban — the only travel prohibition American citizens are currently subjected to — never made sense, and it’s particularly misguided in an era of broadening engagement between the United States and Cuba.” Now, “the trajectory is unmistakable. Public opinion polls show that a majority of Cubans on the island and Americans favor engagement. Congress should wait no longer to do its part.”

Cuban Military Transparency Act (S.1489)[5]

On June 3 Senator Marco Rubio (Rep., FL) introduced the Cuban Military Transparency Act (S.1489) with seven cosponsors (Robert Menendez (Dem., NJ), Orrin Hatch (Rep., UT), Tom Cotton (Rep., AR), Ted Cruz (Rep., TX), Cory Gardner (Rep., CO), David Vitter (Rep., LA), Mark Kirk (Rep., IL). It was referred to the Committee on Foreign Relations.

The bill would prohibit a U.S. person from engaging in any financial transaction with or transfer of funds to: the Ministry of the Revolutionary Armed Forces of Cuba or the Ministry of the Interior of Cuba (or any of their subdivisions); a senior member of such Ministries; any agency, instrumentality, or other entity that is more than 25% owned, or that is operated or controlled by, such a Ministry; or any individual or entity for the purpose of avoiding a prohibited financial transaction or transfer of funds that is for the benefit of that individual or entity. Excluded from these bans are the sale to Cuba of agricultural commodities, medicines, and medical devices; remittances to an immediate family member; or assistance in furtherance of democracy-building efforts for Cuba.

The bill would also require (a) the U.S. Attorney General to coordinate with the International Criminal Police Organization (INTERPOL) in order to pursue the location and arrest of U.S. fugitives in Cuba, including current and former members of the Cuban military and (b) the U.S. President to provide reports on the role of the Ministry of the Revolutionary Armed Forces and the Ministry of the Interior in Cuba and the return of property that has been confiscated by the Government of Cuba.

In his press release about the bill, Senator Rubio said, ““It is not in the interest of the United States or the people of Cuba for the U.S. to become a financier of the Castro regime’s brutality. The Cuban Military Transparency Act would prevent U.S. dollars from getting into the hands of the Cuban military and would demand accountability from the Obama Administration regarding fugitives of American justice in Cuba, the return of stolen and uncompensated property and the role of the Ministry of the Revolutionary Armed Forces and the Ministry of the Interior in Cuba.”

The Center for Democracy in the Americas opposes this bill. It admits “that in Cuba, a socialist state with a largely state-owned economy, the military is invested in state-owned businesses, and several of those . . . are dominant players in Cuba’s tourist industry. Given the military’s broad role in Cuba’s economy, any expenditure by U.S. travelers and businesses – including the cost of hotel rooms, telephone calls, airport taxes, the hotel occupancy tax, sales taxes on tourist purchases, resort fees – could be prohibited presumptively unless the traveler or company could persuade [the U.S. Treasury agency] they spent their money in Cuba some other way.” But “how could they prove the negative? Who in Cuba will hand out the forms that say “that hotel room” or “that painting” or “that serving of ropa vieja” didn’t come from an enterprise owned or controlled by Cuba’s military?”

Therefore, according to the Center for Democracy in the Americas, the true purpose of this bill is “to shame, harass, and try to stop every American from visiting Cuba or seeking to do business in Cuba, and to return U.S. policy to its pre-December 17, 2014 goal of starving the Cuban economy and the Cuban people along with it.”

Conclusion

These latest congressional developments reinforce the need for continued vigilance by supporters of U.S.-Cuba reconciliation to pay attention to what is happening in Congress and to continue to express their opinions on these issues to their representatives in that body and to the larger community.

I take pride in the strong support for such reconciliation in the State of Minnesota, so far away from Cuba. A recent article in MINNPOST explored this apparently strange phenomenon. Eric Schwartz, Dean of the Humphrey School of Public Affairs at the University of Minnesota and a non-native Minnesotan, believes there are three main reasons for this fact. First, two of Minnesota’s biggest industries — agriculture and medical devices — have massive potential exports to Cuba. Second, Minnesota’s lack of a large Cuban-American community and its distance from the island mean our lawmakers are not subject to the same pressures as representatives from states like Florida and New Jersey. Third, many of Minnesota’s federal legislators are reasonable people.

I concur in that opinion, but believe Schwartz has missed the fundamental reason for strong Minnesota support for this reconciliation. Many people in this State are interested in what goes on in the world and are actively engaged with the rest of the world through their churches like Minneapolis’ Westminster Presbyterian Church, the Center for Victims of Torture, Advocates for Human Rights, the Minnesota Cuba Committee and various programs at the University of Minnesota and through Minnesotans’ welcoming immigrants and refugees from around the world, especially from Somalia, Viet Nam and Laos, and through major multinational corporations headquartered here like Cargill, which is leading the U.S. Agricultural Coalition for Cuba,3M, Medtronic and General Mills.

I was pleased to read about the change of heart of a prominent Cuban-American Republican who was U.S. Secretary of Commerce in the George W. Bush Administration, Carlos Gutierrez. In an op-ed essay in the New York Times, he said,” it is now time for Republicans and the wider American business community to stop fixating on the past and embrace a new approach to Cuba.” He added, “Some of my fellow Cuban-Americans insist that continuing to squeeze Cuba economically will help the Cuban people because it will lead to democracy. 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.”

Gutierrez concluded, “America must look to the future instead — and pursue this opportunity to assist Cubans in building a new economy. There is a lot of work to do, and progress will be slow. However, the business community and my fellow Cuban-Americans and Republicans should not ignore the possibilities ahead. The Cuban people need and deserve our help.”

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[1] Matishak, White House threatens to veto Senate’s defense spending bill, The Hill (June 18, 2015); Carney, McCain expects Pentagon plan on closing Guantanamo, The Hill (June 18, 2015);Carney, Five challenges for the defense bill (June 21, 2015).

[2] This section of the post is based upon Hattem, House passes intel bill over White House objections, The Hill (June 16, 2015).

[3] This section of the post is based upon the following: House Appropriations Comm., Press Release: Appropriations Committee Approves Fiscal Year 2016 Financial Services Bill (Jun 17, 2015); House Appropriations Comm., Financial Services Appropriations Act FY 2016 (June 9?, 2015); House Appropriations Comm., Report: Financial Services and General Government Appropriations Bill, 2016, No. 114- —( 2015);Trujillo, House panel advances rider to block Internet rules, The Hill (June 7, 2015); Trujillo, Obama administration knocks net neutrality riders in funding bill, The Hill (June 17, 2015)  Shabad, Bill with $838M IRS cut advances in House, The Hill (June 17, 2015).

[4] Library of Congress THOMAS, S.299 Freedom to Travel to Cuba Act of 2015 (Cosponsors)

[5] This portion of the post is based upon the following: Library of Congress THOMAS, Cuban Military Transparency Act; Rubio, Press Release: Senators Introduce Bill To Deny Resources To Castro’s Military and Security Services (June 3, 2015); Center for Democracy in Americas, The Cuban Military Not So Transparent Act (June 19, 2015).

A World of Refugees

As discussed in a prior post, a “refugee” under international law is “any person who owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The principal U.N. agency concerned with such refugees is the Office of the United Nations High Commissioner for Refugees (UNHCR), which was established by a December 1950 resolution of the U.N. General Assembly. Its purpose is to safeguard and protect the rights and well-being of refugees and the right to seek asylum. Over time its mandate has broadened to include internally displaced people (IDP) and stateless people. Every year it publishes detailed statistics on all of these people of concern to UNHCR.

For 2010 there were 33,924,000 people of concern to UNHCR in the following categories:

Category Number
Refugees 10,550,000
Asylum-seekers       837,000
IDP’s 17,621,000
Other   4,916,000
TOTAL 33,924,000

Nearly 80 % of these people were hosted in developing countries, including some of the poorest countries in the world while the U.S. had 271,000. The major sources of these people in 2010 were the following countries:

Country Number
Afghanistan   4,404,000
Colombia   4,128,000
Iraq   3,387,000
Democratic Repub. Congo   2,719,000
Somalia   2,257,000
Pakistan   2,199,000
Sudan   2,185,000
Other 12,645,000
TOTAL 33,924,000

The overall statistics for 2011 should be published by UNHCR in June 2012. Just recently it published its report on one part of this new set of statistics–asylum applications in 2011 in 44 industrialized countries, including the U.S. The total of new applications was 441,300, which was 20 % more than in 2010 (368,000). The 2011 level is the highest since 2003 when 505,000 asylum applications were lodged in the industrialized countries.  With an estimated 74,000 asylum applications, the U.S. was the largest single recipient of new asylum claims among the 44 industrialized countries. France was second with 51,900, followed by Germany (45,700), Italy (34,100), and Sweden (29,600).

There are many ways one may make U.S.-tax deductible financial contributions to organizations that help these people. These organizations include the following:

  • USA for UNHCR, which supports UNHCR’s humanitarian work to assist refugees around the world;
  • U.S. Committee for Refugees and Immigrants, which seeks to protect the rights and address the needs of persons in forced or voluntary migration worldwide by advancing fair and humane public policy, facilitating and providing direct professional services, and promoting the full participation of migrants in community life;
  • International Rescue Committee, which was founded at the request of Albert Einstein to offer care and assistance to refugees forced to flee from war or disaster;
  • American Refugee Committee (Minneapolis, Minnesota), which works to provide opportunities and expertise to refugees, displaced people and host communities around the world;
  • Center for Victims of Torture (Minneapolis, Minnesota), which helps torture-survivors from around the world heal and rebuild their lives;
  • Advocates for Human Rights (Minneapolis, Minnesota), which, among other things, provides pro bono attorneys for asylum-seekers;
  • Immigrant Law Center of [St. Paul] Minnesota, which provides quality immigration legal services, law-related education, and advocacy to meet the steadily increasing needs of Minnesota’s immigrant and refugee communities;

Becoming a Pro Bono Asylum Lawyer

Because U.S. immigration law was in the background of the Sanctuary Movement case in which I was involved in the mid-1980’s,[1] I sought to obtain some knowledge of this area of law by taking a training course in asylum law from a Minneapolis NGO–Advocates for Human Rights.[2]

I learned that there is a legitimate claim for asylum under U.S. and international law if an alien establishes that he or she is a “refugee,” i.e., he or she has been persecuted or has a “well-founded fear of [future] persecution [in his or her home country] on account of race, religion, nationality, membership in a particular social group or political opinion.”[3]

I then volunteered to be a pro bono (no legal fees) lawyer for Jorge, a young Salvadoran asylum seeker, and started to learn about his country. He had participated in demonstrations against his government at the national university in San Salvador and feared he would be persecuted for his political opinions by the government if he returned to his country. With the aid of an experienced immigration lawyer, I tried his case before an immigration judge who denied his application, which was typical for the time. We immediately filed an appeal to the Board of Immigration Appeals, and under the law at that time he had legal permission to remain and work in the U.S. while the appeal was pending.

In 1988 I volunteered to take another pro bono Salvadoran asylum case. My client had a middle class background. He had held a position in the Salvadoran government and had publicly protested about corruption in her military forces. As a consequence, he was imprisoned and severely tortured in El Salvador, and one of the reasons he came to Minnesota was to receive treatment at our Center for the Treatment of Victims of Torture.[4] He had been persecuted, and he and members of his family feared future persecution by the Salvadoran military for their political opinions. He and his family members subsequently were granted asylum.

I was now on my way to becoming a pro bono asylum lawyer.

Thereafter I was a lawyer for successful asylum applicants from Somalia, Afghanistan, Burma and Colombia. (Later, in 2002, I became an Adjunct Professor at the University of Minnesota Law School, where I taught refugee and asylum law as part of an international human rights course.)

The asylum work enabled me to get to know, and to help, interesting, brave people. I also learned a lot about conditions in these countries. In the process, I was weaned away from accepting what our government said about conditions in other countries at face value and from avoiding making my own judgments about those questions because there was no way that I could know as much as our government knew. As an asylum lawyer I had to investigate conditions in these other countries and come to my own conclusions on such issues and then advocate for individuals as to why they had well-founded fears of persecution (death, physical harm, imprisonment) due to their political opinions or other grounds protected by refugee law.

Moreover, the Sanctuary Movement case and my pro bono asylum work liberated me from the narrow vision and focus of a practicing lawyer concentrating on the laborious development of detailed factual records and legal analysis and arguments in the succession of individual cases. In this prior life I had little time and inclination to be concerned about, or interested in, broader concepts of law or the plight of people around the world who lack a trustworthy legal system to protect them from assassinations, “disappearances,” torture or even mere injustice. To the extent I thought about such things at all, I regarded international human rights as touchy-feely mush that did not qualify for the important “real world” things that corporate lawyers like myself were concerned about.

I also was liberated from the notion that was fostered by the life of a corporate litigator in our secular society that churches and religious people rarely had major impact on our lives in the U.S.

As a result, I often refer to this experience as El Salvador’s liberation of an American lawyer.[5]


[1]  See Post: The Sanctuary Movement Case (May 22, 2011).

[2]  Advocates for Human Rights, http://www.theadvocatesforhumanrights.org/. See Post: Two Women “Shakers” Rock Minneapolis Dinner (May 20, 2011).

[3]  E.g., David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 15 (4th ed. 2009); Convention [Treaty] Relating to the Status of Refugees, 189 U.N.T.S. 137; Protocol of 1967 Relating to the Status of Refugees, 606 U.N.T.S. 267; U.N. High Commissioner for Refugees, http://www.unhcr.org/cgi-bin/texis/vtx/home; Refugee Act of 1980, 8 U.S.C. § 1101 (a)(42).

[4]  Center for Victims of Torture, http://www.cvt.org/index.php.

[5]  Krohnke, And Then There Was Light, Minnesota’s Journal of Law & Politics, at 10 (Jan. 1992); Krohnke, The Liberation of a Corporate Lawyer, LXXXI Am. Oxonian 146 (1994).