New York Times Recommends U.S.-Cuba Prisoner Exchange

U.S. citizen Alan Gross is being held in a Cuban prison after having been tried and convicted by a Cuban court for violating Cuban law while three Cuban citizens are being held in U.S. federal prisons after having been tried and convicted by U.S. federal courts for violating U.S. law. There has been much public and governmental desire in both countries to have their respective citizens released from prisons and returned to their home countries.[1]

On November 3, 2014, a New York Times editorial recommended that the two countries negotiate a prisoner exchange. The editorial first set forth the following lengthy summary of the two sets of prisoners:

  • “Under the direction of Development Alternatives Inc.,which had a contract with the United States Agency for International Development, Mr. Gross traveled to Havana five times in 2009, posing as a tourist, to smuggle communications equipment as part of an effort to provide more Cubans with Internet access. The Cuban government, which has long protested Washington’s covert pro-democracy initiatives on the island, tried and convicted Mr. Gross in 2011, sentencing him to 15 years in prison for acts against the integrity of the state.”
  • “While in prison, Gross has lost more than 100 pounds. He is losing vision in his right eye. His hips are failing. This June, Mr. Gross’s elderly mother died. After he turned 65 in May, Mr. Gross told his loved ones that this year would be his last in captivity, warning that he intends to kill himself if he is not released soon. His relatives and supporters regard that as a serious threat from a desperate, broken man.”
  • Five Cuban men (the so-called “Cuban five”) had “infiltrated Cuban exile groups in Florida” that had “dropped leaflets over the island urging Cubans to rise up against their government.” Four of them “were convicted of non-violent crimes,” and two of these four “have been released and returned home” while the other two of these four who “remain imprisoned are due for release relatively soon.”
  • The remaining U.S. prisoner and the one “who matters the most to the Cuban government, Gerardo Hernández, is serving two life sentences.” He was the leader of the Five and “was convicted of conspiracy to commit murder” in connection with the Cuban military’s shooting down of a civilian plane operated by one of the Cuban exile groups over the unmarked border between Cuban and international waters.
  • “A three-judge panel on the United States Court of Appeals for the 11th Circuit overturned the convictions [of all five Cubans] in August 2005, ruling that a ‘perfect storm’ of factors deprived the five defendants of a fair trial. The judges found that widespread hostility toward the Cuban government in Miami and pretrial publicity that vilified the [Cuban]spies made it impossible to impanel an impartial jury.”
  • “The full [11th Circuit] court later reversed the panel’s finding, reinstating the verdict. But the judges raised other concerns about the case that led to a reduction of three of the sentences.” One of the Circuit’s judges, “Phyllis Kravitch, wrote a dissenting opinion arguing that Mr. Hernández’s murder-conspiracy conviction was unfounded. Prosecutors, she argued, failed to establish that Mr. Hernández, who provided Havana with information about the flights, had entered into an agreement to shoot down the planes in international, as opposed to Cuban, airspace. Downing the planes over Cuban airspace, which the exiles had penetrated before, would not constitute murder under American law.”

The editorial then noted that early “in Mr. Gross’s detention, Cuban officials suggested they might be willing to free him if Washington put an end to initiatives designed to overthrow the Cuban government. After those talks sputtered, the Cuban position hardened and it has become clear to American officials that the only realistic deal to get Mr. Gross back would involve releasing [the remaining] three Cuban spies convicted of federal crimes in Miami in 2001.”

Thus, according to the editorial, the key issue now is whether the U.S. Government will agree to such a prisoner exchange, and the editorial argues that the U.S. should do so for the following reasons:

  1. Gross’ “arrest was the result of a reckless strategy in which U.S.A.I.D. has deployed private contractors to perform stealthy missions in a police state vehemently opposed to Washington’s pro-democracy crusade.”
  2. “If Alan Gross died in Cuban custody, the prospect of establishing a healthier relationship with Cuba would be set back for years.
  3. A “prisoner exchange could pave the way toward re-establishing formal diplomatic ties, positioning the United States to encourage positive change in Cuba through expanded trade, travel opportunities and greater contact between Americans and Cubans. Failing to act would maintain a 50-year cycle of mistrust and acts of sabotage by both sides.
  4. “In order to swap prisoners, President Obama would need to commute the [three Cuban] men’s sentences. Doing so would be justified considering the lengthy time they have served, the troubling questions about the fairness of their trial, and the potential diplomatic payoff in clearing the way toward a new bilateral relationship.”

“Officials at the White House are understandably anxious about the political fallout of a deal with Havana, given the criticism they faced in May [of 2014] after five Taliban prisoners were exchanged for [one] American soldier kidnapped in Afghanistan. The American government, sensibly, is averse to negotiating with terrorists or governments that hold United States citizens for ransom or political leverage. But in exceptional circumstances, it makes sense to do so. The Alan Gross case meets that [criterion].”

This editorial is the latest in what the Times itself states is an editorial series on “Cuba: A New Start.” The first editorial was titled “Obama Should End the Embargo on Cuba.” The next in the series actually was “Editorial Observer: Still Pondering U.S.-Cuba Relations, Fidel Castro Responds,” by Ernesto Londoño of the newspaper’s Editorial Board; it noted Fidel Castro’s favorable reaction to the first Times editorial. The second editorial, “Cuba’s Impressive Role on Ebola” (Oct. 19, 2014). The third editorial, “The Shifting Politics of Cuba Policy.” The fourth, also published on November 3rd with Ernesto Londoño’s byline, “Editorial, Alan Gross and the Cuban Five: A Timeline.[2]

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

[1] This blog previously has discussed the Alan Gross case and the Cuban Five case and urged a prisoner exchange: The U.S. Should Pursue Reconciliation with Cuba (May 21, 2011); Commutation and Release of Convicted Spies (Sept. 24, 2011); Roots of Hope for U.S.-Cuba Relations (Sept. 27, 2011); U.S. and Cuba Discuss Exchange of Prisoners (Oct. 14, 2011); Letter to President Obama Regarding Cuba (Aug. 17, 2012).

[2] This blog previously has commented on three of these editorials: New York Times Urges Normalization of U.S.-Cuba Relations (Oct. 13, 2014); New York Times Commends Cuba for Fighting Ebola in West Africa and Again Urges U.S.-Cuba Normalization (Oct. 19, 2014); New York Times Again Urges Normalization of U.S.-Cuba Relations (Oct. 26, 2014). Another post cited Londoño’s article about the U. N. General Assembly ‘s recent vote on the U.S. embargo: U.N. General Assembly Again Condemns U.S. Embargo of Cuba (Oct. 30, 2014). Londoño joined the Times’ Editorial Board in September 2014 after a distinguished career at the Washington Post and the Dallas Morning News. Mr. Londoño , who was born and raised in Bogotá, Colombia, moved to the U.S. in 1999 to study journalism and Latin American studies at the University of Miami.

 

 

U.N. General Assembly Again Condemns U.S. Embargo of Cuba

U.N. General Assembly Voting Results Screen
U.N. General Assembly   Voting Results Screen

On October 28, 2014, the U.N. General Assembly by a vote of 188 to 2 again condemned the U.S. embargo of Cuba. The two negative votes were cast by the U.S. and by Israel while three small Pacific nations abstained–Marshall Islands, Micronesia and Palau. All the other U.N. members supported the resolution. [1]

 The Resolution

The resolution [A/69/L.4] reiterated the General Assembly’s “call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution [‘the economic, commercial and financial embargo imposed by the [U.S.] against Cuba’ and the Helms-Burton Act], in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation.”

The resolution also “again urges States that have and continue to apply such laws and measures [i.e., the U.S.] to take the steps necessary to repeal or invalidate them as soon as possible in accordance with their legal regime.”

Cuba’s Statement Supporting the Resolution

Bruno Rodriguez Parrilla
Bruno Rodriguez Parrilla

Bruno Rodríguez Parrilla, the Cuban Minister for Foreign Affairs, introducing the resolution, said that in recent times “the economic, commercial and financial blockade imposed by the [U.S.] against Cuba had been tightened, and its extraterritorial implementation had also been strengthened through the imposition of unprecedented fines, totaling $11 billion against 38 banks . . . for carrying out transactions with Cuba and other countries.” In addition, Cuba’s “accumulated economic damages of the blockade totaled $1.1 trillion . . . [and] human damages were on the rise.”

Nevertheless, “Cuba had offered every possible form of assistance to the [U.S.] in the wake of disasters there, such as in the aftermath of the September 11, 2001 terrorist attacks. Cuba had never been a threat to the national security of the [U.S.].  Opinion polls showed that there was increasing support from all sectors of [U.S.] society for lifting the blockade.  Religious leaders had citied legitimate, indisputable ethical and humanitarian reasons.“

In addition, ”the blockade was harmful to . . . the [U.S.]. The ‘absurd and ridiculous’ inclusion of Cuba on the [U.S.] list of States that sponsored international terrorism redounded to the discredit of the [U.S.].  Cuba would never renounce its sovereignty or the path chosen by its people to build a more just, efficient, prosperous and sustainable socialism.”  Neither, he continued, would his Government “give up its quest for a different international order, nor cease in its struggle for ‘the equilibrium of the world.’”

Rodríguez also invited the U.S. government “to establish a mutually respectful relation, based on reciprocity. We can live and deal with each other in a civilized way, despite our differences.”

Other Countries’ Statements Supporting the Resolution [2]

The following Latin American countries voiced support for the resolution: Argentina (MERCOSUR [3]) (embargo was “morally unjustifiable” and violated “the spirit of multilateralism and was immoral, unjust and illegal”); Barbados (CARICOM [4]); Bolivia (Group of 77 [5] and China); Brazil (Group of 77 and CELAC [6]); Colombia; Costa Rica (CELAC)); Ecuador; El Salvador (Group of 77 and CARICOM); Mexico; Nicaragua; St. Vincent and the Grenadines (CARICOM, Non-Aligned Movement, [7] Group of 77 and CELAC); Uruguay; and Venezuela.

The African supporters of the resolution that spoke were Algeria (Non-Aligned Movement, Group of 77, Group of African States [8] and Organization of Islamic Cooperation [9]); Angola; Kenya (Group of 77, Non-Aligned Movement and African Group); Malawi (African Group); South Africa (Group of 77, Non-Aligned Movement and African Group); Sudan (Group of 77, Non-Aligned Movement and Organization of Islamic Cooperation); United Republic of Tanzania; Zambia (Non-Aligned Movement) and Zimbabwe (Non-Aligned Movement, Group of 77 and African Group).

From Asia and the Pacific were Belarus; China (Group of 77); Democratic People’s Republic of Korea (North Korea); Indonesia (Group of 77);  India (Group of 77 and Non-Aligned Movement); Iran (Non-Aligned Movement); Lao People’s Democratic Republic; Myanmar (Group of 77 and Non-Aligned Movement); Russian Federation; Solomon Islands; and Viet Nam (Non-Aligned Movement, Group of 77 and China).

Middle Eastern countries speaking in favor of the resolution were Egypt, Saudi Arabia (Organization of Islamic Cooperation); and Syria (Non-Aligned Movement, Group of 77 and China).

The sole European supporter of the resolution that spoke at the session was Italy (European Union [10]), which said the U.S.’ “extraterritorial legislation and unilateral administrative and judicial measures were negatively affecting European Union interests”).

U.S. Statement Opposing the Resolution

Although Israel voted against the resolution, it chose not to speak in support of its vote. Only the U.S. by Ambassador Ronald D. Godard, U.S. Senior Advisor for Western Hemisphere Affairs, tried to justify the negative vote.

Ronald D. Godard
Ronald D. Godard

Ambassador Godard said the U.S. “conducts its economic relationships with other countries in accordance with its national interests and its principles. Our sanctions toward Cuba are part of our overall effort to help the Cuban people freely exercise their human rights and fundamental freedoms, and determine their own future, consistent with the Universal Declaration of Human Rights and the democratic principles to which the United Nations itself is committed.”

Ambassador Godard also said, “the Cuban government uses this annual resolution in an attempt to shift blame for the island’s economic problems away from its own policy failures. The Cuban government now publicly recognizes that its economic woes are caused by the economic policies it has pursued for the last, past half-century. We note and welcome recent changes that reflect this acknowledgement, such as those that allow greater self-employment and liberalization of the real estate market. But the Cuban economy will not thrive until the Cuban government permits a free and fair labor market, fully empowers Cuban independent entrepreneurs, respects intellectual property rights, allows unfettered access to information via the Internet, opens its state monopolies to private competition and adopts the sound macro-economic policies that have contributed to the success of Cuba’s neighbors in Latin America.”

According to Ambassador Godard, the U.S. “remains a deep and abiding friend of the Cuban people. The Cuban people continue to receive as much as $2 billion per year in remittances and other private contributions from the [U.S.]. This support . . . was made possible . . . by U.S. policy choices. By the Cuban government’s own account, the [U.S.] is one of Cuba’s principal trading partners. In 2013, the [U.S.] exported approximately $359 million in agricultural products, medical devices, medicine and humanitarian items to Cuba. Far from restricting aid to the Cuban people, we are proud that the people of the [U.S.] and its companies are among the leading providers of humanitarian assistance to Cuba. All of this trade and assistance is conducted in conformity with our sanctions program, which is carefully calibrated to allow and encourage the provision of support to the Cuban people.”

Furthermore, the U.S. “places the highest priority on building and strengthening connections between the Cuban people and [our] people. U.S. travel, remittance, information exchange, humanitarian and people-to-people policies updated in 2009 and 2011 provide the Cuban people alternative sources of information, help them take advantage of limited opportunities for self-employment and private property and strengthen independent civil society. The hundreds of thousands of Americans who have sent remittances and traveled to the island, under categories of purposeful travel promoted by President Obama, remain the best ambassadors for our democratic ideals.”

Ambassador Godard continued, “[The U.S.] strongly supports the Cuban people’s desire to determine their own future, through the free flow of information to, from, and within Cuba. The right to receive and impart information and ideas through any media is set forth in Article 19 of the Universal Declaration of Human Rights. It is the Cuban government’s policies that continue to prevent enjoyment of this right. The Cuban government now claims to share our goal of helping the Cuban people access the Internet. Yet the Cuban government has failed to offer widespread access to the Internet through its high-speed cable with Venezuela.  Instead, it continues to impose barriers to information for the Cuban people while disingenuously blaming U.S. policy.”

“Moreover, the Cuban government continues to detain Alan Gross, a U.S. citizen who was sentenced to 15 years in prison for facilitating Internet access for Cuba’s small Jewish community. [[11]] The [U.S.] calls on Cuba to release Mr. Gross immediately, [[12]] allow unrestricted access to the Internet, and tear down the digital wall of censorship it has erected around the Cuban people.

 {T]his resolution only serves to distract from the real problems facing the Cuban people. . . . Though Cuba’s contributions to the fight against Ebola are laudable, they do not excuse or diminish the regime’s treatment of its own people. We encourage this world body to support the desires of the Cuban people to choose their own future. By doing so, it would truly advance the principles the United Nations Charter was founded upon, and the purposes for which the United Nations was created.”

Media Coverage of the Resolution and Debate

 U.S. media coverage of this important U.N. vote was almost non-existent. It was not mentioned in the “World” or “Americas” news sections of the New York Times, and only its “Opinion” section had a short article about the issue. It got no mention whatsoever in the Wall Street Journal. Not even the Miami Herald, which has a separate page for Cuba news, mentioned it. [13]

At 2:37 p.m. on October 28th the Associated Press published a release on the subject, and the Washington Post published it online while the StarTribune of Minneapolis/St. Paul picked it up the next day in its online, but not its print, edition.

Cuba’s state-owned newspaper, Granma, of course, headlined this vote while stating that the embargo has caused $1.1 trillion of damage to the Cuban economy and “incalculable human suffering.” Its article also emphasized that this was the 23rd consecutive such resolution with a table showing that the number of votes in favor of the resolutions has increased from 59 in 1992 to 188 in 2012-2014, that the largest number of votes against the resolutions was only 4 in 1993 and 2004-2007 and that the number of abstentions has decreased from 71 in 1992 to 1 in 2005-2007 and now 3 since 2010.

Conclusion

This overwhelming international opposition to the U.S. embargo in and of itself should be enough to cause the U.S. to end the embargo. Moreover, the embargo has not forced Cuba to come begging to the U.S. for anything that the U.S. wants. The U.S. policy is a failure. The New York Times recently called for abandonment of this policy as has this blog in urging reconciliation of the two countries, in an open letter to President Obama and in a rebuttal of the President’s asserted rationale for the embargo and other anti-Cuban policies.

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

[1] This post is based upon the sources embedded above and upon U.N. General Assembly Press Release [GA/11574], As General Assembly Demands End to Cuba Blockade for Twenty-Thjrd Consecutive Year, Country’s Foreign Minister Cites Losses Exceeding $1 Trillion (Oct. 28, 2014); Londoño, On Cuban Embargo, It’s the U.S. and Israel Against the World, Again, N.Y. Times (Oct. 29, 2014); Associated Press, UN General Assembly Condemns US Cuba Embargo (Oct. 28, 2014); U.S. Dep’t of State, Explanation of Vote by Ambassador Ronald D. Godard on the Cuba Resolution in the General Assembly Hall (Oct. 28, 2014). The General Assembly also has videos of the debate (A and B). A prior post reviewed the 2011 General Assembly’s adoption of a similar resolution against the embargo.

[2] Many of the cited statements supporting the resolution were issued on behalf of, or aligned with, larger groups of nations as noted above. In addition, prior to the October 28th session of the General Assembly, the U.N. Secretary General submitted a report containing statements against the embargo from 154 states and 27 U.N. agencies.

[3] MERCOSUR (Southern Common Market) is a customs union and trading bloc of five South American countries with five other associate members in the continent.

[4] CARICOM (Caribbean Community) is a group of 15 Caribbean countries with five associate members for economic cooperation.

[5] The Group of 77 was established in 1964 by 77 developing countries to promote their collective economic interests and South-South cooperation; now there are 134 members that have retained the original name for historical significance.

[6] CELAC (Community of Latin American and Caribbean States) is a group of 33 states in the region to deepen economic integration and combat the influence of the U.S.

[7] The Non-Aligned Movement is a group of 115 developing countries that are not aligned with or against any major power bloc. Its current focus is advocacy of solutions to global economic and other problems

[8] The African Group is a group of 54 African states that are U.N. Members.

[9] The Organization of Islamic Cooperation is a group of 57 states that seek to protect the interests of the Muslim world in the spirit of promoting peace and harmony in the world.

[10] The European Union is a group of 28 European states that have combined for a peaceful, united and prosperous Europe.

[11] The activities in Cuba by Mr. Gross are not so simple. A Cuban court in 2011 found him guilty of participating in a “subversive project of the U.S. government that aimed to destroy the revolution through the use of communications systems out of the control of authorities,” and sentenced him to 15 years in prison. According to his own lawsuit against the U.S. Government, and subsequent disclosures, Gross alleged the U.S. Agency for International Development (USAID) and its contractor, DAI, sent him on five semi-covert trips to Cuba without proper training, protection or even a clear sense of the Cuban laws that led to his detainment. The case highlighted the frequent haste and lack of attention to the risks of the USAID programs in Cuba under the Helms-Burton Act, which allowed for money to be set aside for “democracy building efforts” that might hasten the fall of Fidel and Raúl Castro.

[12] In discussions with the U.S., Cuba already has expressed a willingness to exchange Mr. Gross for one or more of the three of “the Cuban Five” who remain in U.S. prisons.

[13] Nor did I find any mention of the vote in London’s Guardian or Madrid’s El Pais.

 

New York Times Again Urges Normalization of U.S.-Cuba Relations

In its third editorial within the last two weeks, the New York Times on October 26th again called for normalization of U.S.-Cuba relations. This time the focus was what it perceived as shifting U.S. opinions on the subject. [1]

The starting point for the latest Times’ call for normalization was its assertion that “younger members of the [Cuban] diaspora have staked out views that are increasingly in favor of deepening engagement with the island.” In addition, “Several prominent Cuban-American businessmen who were once strong supporters of the embargo have changed their stance and become proponents of engagement. The pro-embargo lobby raises a fraction of the money it once did.”

“That evolution [in public opinion of Cuban-Americans] has allowed a growing number of seasoned politicians to call the embargo a failure and argue that ending America’s enmity with Cuba represents the best chance of encouraging positive change on the island.”

“Charlie Crist, the former governor of Florida who is in a tight race for his old job, recently said he was interested in traveling to Cuba, an idea he later scrapped, blaming a busy schedule. Mr. Crist, however, has emphatically said he has come to see the embargo as a relic that must be shelved. Hillary Rodham Clinton wrote in her memoirs, and repeated in a recent interview, that she now favors repealing the embargo, which she called a failure, because it has ‘propped up the Castros.’”

“In Florida, members of Congress have staked out positions on Cuba that once would have been considered political suicide. Representative Kathy Castor, a Democrat from Tampa, traveled to the island last year and made a strong appeal for an end to the sanctions, saying the United States was failing to capitalize on economic reforms underway on the island. She feels that far from hurting her politically, the stance has made her more popular among constituents, including Cuban-Americans, who want to play a role in the island’s future.”

“Even in Miami, where old-guard positions remain popular among older exiles, who are largely Republicans, there have been notable changes. In 2012, Joe Garcia became the first Cuban-American Democrat from Miami to be elected to the House. While he publicly supports the embargo, Mr. Garcia holds views significantly different from other South Florida members of Congress. For instance, he has called for clinical trials in the United States of a Cuban diabetes treatment that shows great promise. He also favors easing travel restrictions to the island.”

Another measure of this changing public opinion is “President Obama now [receiving] . . .more correspondence from lawmakers who favor expanded ties than from those who want to keep robust sanctions.”

As a result, “White House officials are deliberating over how much progress they might be able to make on President Obama’s longstanding interest in expanding ties with Cuba,” including his support for “repealing the embargo when he was running for the . . .[U.S.] Senate in 2004.”

The major political barrier to progress on the issues that require congressional action, like ending the embargo, is “a small but passionate group of Cuban-American lawmakers [who are] adamant about maintaining the status quo. The most vocal defenders of the embargo are Senator Robert Menendez, a Democrat from New Jersey; Senator Marco Rubio, a Republican from Florida; and Representative Ileana Ros-Lehtinen and Representative Mario Diaz-Balart, both Miami Republicans.

The most important of these opponents to changing U.S. policies regarding Cuba is Senator Menendez, the Chairman of the Senate Foreign Relations Committee, who could use that position to block Administration measures on other issues, including “confirmation of federal nominees in retaliation for further moves to ease the embargo.”

Menendez’ rhetoric about what he says are the evil ways of Cuba is intense. This April he “delivered a long, impassioned speech on the Senate floor, arguing that despite the myriad foreign policy crises in the world, Washington needed to focus on the abuses of ‘a Stalinist police state’ 90 miles away. He displayed photos of dissidents and warned that expanded travel by Americans to Cuba was enabling a despotic state.” Mr. Menendez’s loathing of the Cuban government has only increased because he believes the island’s intelligence service sought to destroy his career by planting a fabricated story in the media suggesting that he had patronized underage prostitutes in the Dominican Republic.”

The understandable personal reasons why some Cuban-Americans oppose normalization of U.S. relations with Cuba “should not continue to anchor American policy on a failed course that has strained Washington’s relationship with allies in the hemisphere, prevented robust trade with the island and offered the Cuban government a justification for its failures.”

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

[1] On October 13th the Times urged ending the U.S. designation of Cuba as a “State Sponsor of Terrorism,” stopping the U.S. embargo of Cuba and restoring normal diplomatic relations with the island. On October 19th the Times recommended U.S. collaboration with Cuba in combatting Ebola in West Africa as an important step towards normalization.

New York Times Commends Cuba for Fighting Ebola in West Africa and Again Urges U.S.-Cuba Normalization

In an October 19th editorial, titled “Cuba’s Impressive Role on Ebola,” the New York Times applauds Cuba for “having pledged to deploy hundreds of medical professionals to the front lines of the pandemic,” for already having 165 medical professionals on the ground in West Africa and for standing “to play the most robust role among nations seeking to contain the virus.” Cuba, therefore, “should be lauded and emulated.”

In contrast, says the Times, the U.S. and several other wealthy countries only have pledged funds to fight the disease. “It is a shame that Washington, the chief donor in the fight against Ebola, is diplomatically estranged from Havana, the boldest contributor” and that “American and Cuban officials are not equipped to coordinate global efforts at a high level.”

This most unfortunate situation “should serve as an urgent reminder to the Obama administration that the benefits of moving swiftly to restore diplomatic relations with Cuba far outweigh the drawbacks” as was argued in a prior Times editorial and emphasized in a recent post to this blog.

Under these circumstances, the U.S. should be ready, willing and able (a) to treat and transport any Cuban health workers in Africa who become infected; (b) to “commit to giving any sick Cuban access to the treatment center the Pentagon built in Monrovia [Liberia] and to assisting with evacuation.” The Obama Administration, however, has “callously declined to say what, if any, support they would give [the Cubans].”[1]

The Times also notes that Fidel Castro in an October 19th essay in the Cuban newspaper, Granma, said that Cuba “will gladly cooperate with U.S. personnel in this task [of combatting Ebola], not in search of peace between these two states which have been adversaries for so many years, but rather, in any event, for World Peace, and objective which can and should be attempted.” According to the Times, “[Fidel’s] absolutely right.” [2] His essay also commented on Cuba’s hosting on October 20th the Extraordinary Summit of the ALBA-TCP on Ebola as discussed in another article in Granma.

[1] The failure of the Obama Administration to embrace Cuba’s heroic contributions to the fight against Ebola unfortunately is consistent with the Administration’s pathetic pseudo-rebuttal of the many arguments for normalization of U.S.-Cuba relations as discussed in a prior post.

[2] In an another recent essay Castro impliedly endorsed the New York Times editorial calling for normalization of U.S.-Cuba relations while he quoted virtually all of the editorial itself without any disagreement (with one exception), even to the editorial’s criticism of the Cuban economy and its treatment of dissidents. See also Londoño, Still Pondering U.S.-Cuba Relations, Fidel Castro Responds, N.Y. Times (Oct. 14, 2014).

President Obama’s Response to This Blog’s Latest Post Urging Normalization of U.S.-Cuban Relations

On October 13th I posted an endorsement of the New York Times’ editorial urging normalization of U.S.-Cuban relations with an elaboration of why such normalization was in the economic interest of the U.S. The next day I sent an email with this blog post to President Barack Obama.

On October 16th I received the following email reply from the President:

  • “Thank you for writing.  Since the beginning of my Administration, I have tried to send a signal that the United States is open to a new relationship with Cuba.  However, the Cuban government must start opening up its country and allowing its people to determine their own destiny.”
  • “All of us who embrace core democratic values and principles seek a Cuba that fully respects the human rights and political and economic aspirations of all its citizens, and I am working to make that goal a reality.  To help reunite divided families, my Administration lifted all restrictions on family members traveling to Cuba.  To enhance contact with the Cuban people and support civil society, we adjusted the policies governing travel for religious, cultural, and educational purposes.  And to expand the economic independence of the Cuban people, I removed remittance restrictions so family members could more easily send money back to Cuba, and I eased the regulations on non‑family remittances.”
  • “We have made these and other changes to let the Cuban government know we are prepared to show flexibility and not stay stuck in an outdated Cold War mentality.  At the same time, we need to see signs from the Cuban government that it is prepared to lift its rigid restrictions on the freedoms of the Cuban people, such as releasing political prisoners, respecting freedom of expression and peaceful assembly, and otherwise adhering to recognized human rights norms.  As long as I am President, I will always be prepared to modify our Cuba policy, including our embargo, if such changes will further the cause of liberty in Cuba.”
  • “Again, thank you for sharing your thoughts.  Please know my Administration will remain steadfast in our outreach to the Cuban people, in providing humanitarian assistance, and in seeking to advance Cubans’ legitimate desire to freely determine their country’s future.”

This response obviously is a canned document. It does not address the blog’s specific arguments for ending the U.S. designation of Cuba as a “State Sponsor of Terrorism” or for ending the U.S. embargo of Cuba or for re-establishing normal relations with the island. Nor does it address the serious adverse economic consequences for the U.S. of continuing the obsolete, counterproductive and harmful policies regarding Cuba.

Yes, the Obama Administration has eased restrictions on U.S. citizens traveling there and remitting money to Cubans. But any U.S. concern about the civil rights of the Cuban people fails to recognize that positive changes have been happening on the island and that further progress on such issues can more effectively happen in respectful, bilateral negations between the two countries to resolve many problems that have arisen during this too-long period of hostility by the U.S. Moreover, the President’s attitude ignores the many problems of civil rights in the U.S., the recent USAID undercover efforts to promote regime change in Cuba and the universally condemned U.S. embargo of the island

As a result, the President and all of us should remember that when the scribes and Pharisees confronted Jesus with a woman who had been caught in the act of adultery and asked Jesus what he had to say when the law of Moses said stone her, Jesus responded, “Let anyone among you who is without sin be the first to throw a stone at her.” (John 8:3-7)

Likewise, the President and all of us should also remember these other words of Jesus (Matthew 7:1-5):

  • “Do not judge, so that you may not be judged.For with the judgment you make you will be judged, and the measure you give will be the measure you get.  Why do you see the speck in your neighbor’s eye, but do not notice the log in your own eye?  Or how can you say to your neighbor, ‘Let me take the speck out of your eye,’ while the log is in your own eye?  You hypocrite, first take the log out of your own eye, and then you will see clearly to take the speck out of your neighbor’s eye.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

New York Times Urges Normalization of U.S.- Cuba Relations

In an October 12th editorial the New York Times says, “For the first time in more than 50 years, shifting politics in the United States and changing policies in Cuba make it politically feasible to re-establish formal diplomatic relations and dismantle the senseless embargo.” Indeed, in the Times’ opinion, these changes in U.S. policy should be accompanied by ending the U.S. designation of Cuba as a “State Sponsor of Terrorism.”[1]

 Editorial’s Commentary on Cuba’s Current Conditions

The Times points out that Cuba has “taken significant steps to liberalize and diversify the island’s tightly controlled economy.” This includes “allowing citizens to take private-sector jobs and own property.” encouraging foreign investment, constructing a major deep-sea port in Mariel with Brazilian capital and negotiating a cooperation agreement with the European Union. Although the pace of reform may seem slow and inconsistent, these are significant changes.

On the other hand, the Times asserts that the Cuban “government still harasses and detains dissidents . . . [and has not explained] the suspicious circumstances surrounding the death of political activist Oswaldo Payá.” This is outweighed, however, by the Cuban government’s in recent years having “released political prisoners” and showing “slightly more tolerance for criticism of the [government’s leadership” while loosening travel restrictions “enabling prominent dissidents to travel abroad.”[1a]

Editorial’s Recommendations for U.S. Policy

End Designation of Cuba as a “State Sponsor of Terrorism.” The Times recommends that the U.S. “should remove Cuba from State Department’s list of nations that sponsor terrorist organizations . . . .   Cuba was put on the list in 1982 for backing terrorist groups in Latin America, which it no longer does. . . . [and Cuba now] is playing a constructive role in the conflict in Colombia by hosting peace talks between the government and guerrilla leaders.” [2]

End the Embargo. Just 16 days before the U.N. General Assembly is expected again to overwhelmingly approve Cuba’s resolution to condemn the embargo, the Times says the U.S should end its embargo of Cuba as it has become “clear to many American policy makers that the embargo was an utter failure.” In addition, now a slight majority of Cuban-Americans in Florida oppose the embargo.

“Fully ending the embargo will require Congress’s approval,” which may be difficult to obtain in this time of a dysfunctional Congress, but the Administration could “lift caps on remittances, allow Americans to finance private Cuban businesses and expand opportunities for travel to the island.”

Ending the embargo, according to the Times, “could also help American companies that are interested in developing the island’s telecommunications network but remain wary of the legal and political risks. Failing to engage with Cuba now will likely cede this market to competitors. The presidents of China and Russia traveled to Cuba in separate visits in July, and both leaders pledged to expand ties.”

In addition, ending the embargo would eliminate Cuba’s using the embargo as an excuse for the Cuban government’s shortcomings.[3]

Restoration of Diplomatic Relations. Says the Times, “Restoring diplomatic ties, which the White House can do without congressional approval, would allow the United States to expand and deepen cooperation in areas where the two nations already manage to work collaboratively — like managing migration flows, maritime patrolling and oil rig safety.[4] It would better position Washington to press the Cubans on democratic reforms, and could stem a new wave of migration to the United States driven by hopelessness.”

Closer ties could also bring a breakthrough on the case of an American development contractor, Alan Gross, who has been unjustly imprisoned by Cuba for nearly five years.[5] More broadly, it would create opportunities to empower ordinary Cubans, gradually eroding the government’s ability to control their lives.

In the opinion of the Times, Restoring relations would improve U.S. “relationships with governments in Latin America, and resolve an irritant that has stymied initiatives in the hemisphere.” The most current example of that irritant is “Latin American governments . . . [insisting] that Cuba, the Caribbean’s most populous island and one of the most educated societies in the hemisphere, be invited” to next year’s Summit of the Americas in Panama over U.S. opposition.

Moreover, “The [Cuban] government has said it would welcome renewed diplomatic relations with the United States and would not set preconditions” while a significant majority of Cuban-Americans favor restoring diplomatic ties, mirroring the views of other Americans.

Reactions to the Editorial 

I concur in all of the Times’ recommendations, but believe it understates the economic reasons for these changes in U.S. policy. Here is a fuller exposition of those economic reasons.

This month Dr. José Ramón Cabañas Rodriguez, the Chief of Mission, Cuban Interests Section, said that the U.S. was running the risk of becoming economically irrelevant to Cuba. Many foreign countries, especially China, and foreign companies are developing good commercial relationships with Cuba and its new private businesses with ordinary commercial terms, unlike the U.S. sales of food and agricultural products under an exemption to the U.S. Helms-Burton Law that requires Cuba to pay in advance and in cash for such products. This U.S. practice is not a good way to encourage future business. Moreover, the new Mariel port and its adjacent business park is attracting interest from companies all over the world, and if all the space in that park is committed to these foreign companies, there will be nothing left for U.S. companies.

The geographical setting of the new Mariel port is strategic in terms of trade, industry and services in Latin America and the Caribbean. On the northern cost of Cuba only 45 km west of Havana, it is located along the route of the main maritime transport flows in the western hemisphere. As the largest industrial port in the Caribbean, it will be equipped with state-of-the-art technology to handle cargo from the larger container ships that will begin to arrive when the expansion of the Panama Canal is completed in December 2015. Those larger ships can carry up to 12,500 containers, triple the capacity of the current ships, and the port’s warehouse capacity is 822,000 containers. Here are some photos of the development of this port.

Mariel PortMariel3

The Mariel project includes highways connecting the port with the rest of the country, a railway network, and communication infrastructure. In the adjacent special zone, currently under construction, there will be productive, trade, agricultural, port, logistical, training, recreational, tourist, real estate, and technological development and innovation activities in installations that include merchandise distribution centers and industrial parks.

The special zone is divided into eight sectors, to be developed in stages. The first involves telecommunications and a modern technology park where pharmaceutical and biotechnology firms will operate. Other sectors include renewable energies, agriculture and food, chemical, construction materials, logistics and rental equipment. For the last four sectors Cuba is currently studying the approval of 23 projects from Europe, Asia and the Americas.

The May 2014 visit to Cuba by a delegation from the U.S. Chamber of Commerce evidences U.S. businesses’ cognizance of these economic and commercial realities. The delegation’s head and the Chamber’s president, Thomas Donohue,  said in a speech in Havana, “For years, the US Chamber of Commerce has demanded that our government eliminate the commercial embargo on Cuba. It’s time for a new approach.” At the conclusion of the trip he said the delegation and Cuban officials had “talked about steps forward that might be taken by both countries” to improve U.S.-‪Cuba relations and that their meetings with President Raul Castro had been “positive.” In addition, the Chamber in congressional testimony has called for an end to the embargo and has supported proposed legislation to end the ban on U.S. citizens traveling to the island and easing restrictions on U.S. exports of farm and medical products.

Another sign of U.S. companies’ interest in Cuba is the visit to the island this past June by Google executives. They said they discussed increasing Cubans access to the Internet and Cuba’s need for improving its Internet technology.

These U.S. economic concerns were highlighted in February 2014 by U.S. Senator Patrick Leahy, who earlier had led a visit with four other Senators to Cuba. Leahy said, “Trade with Latin America is the fastest growing part of our international commerce.  Rather than isolate Cuba with outdated policies, we have isolated ourselves.  Our Latin, European and Canadian friends engage with Cuba all that time.  Meanwhile, U.S. companies are prohibited from any economic activity on the island.” Therefore, the Senator said, “It is time – past time – to modernize our policies and the frozen-in-time embargo on Americans’ travel and trade with Cuba that have accomplished nothing but to give the Cuban regime a scapegoat for the failures of the Cuban economy.  Change will come to Cuba, but our policies have delayed and impeded change.  It is time to elevate the voice of a crucial stakeholder:  the American people. Thanks to this [recent public opinion] poll, they are silent no longer. It is time to recognize that U.S. policy toward Cuba has been unsuccessful in achieving any of its objectives.”

Given the limited space for an individual editorial, the New York Times editorial does not discuss any of the other many issues that need to be addressed by the two countries in order to establish truly normal relations. Nor does it discuss how this normalization process can happen or be facilitated.

In contrast, this blog repeatedly has suggested both counties need a neutral third-party with the resources and commitment to act as mediator and has called for such a third-party to step forward to offer such services, rather than waiting for the U.S. or Cuba to make such a proposal unilaterally or for the two countries to agree to such a mediation. [6]

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

[1] Interestingly the online version of the editorial is titled “End the U.S. Embargo on Cuba” with a linked Spanish translation while the print version is titled “The Moment to Restore Ties to Cuba.”

[1a] This month Dr. José Ramón Cabañas Rodriguez, the Chief of Mission, Cuban Interests Section, emphasized that Cuba now has term limits on every governmental office, including president: two terms of five years each for a total limit of 10 years, and Raul Castro has announced that this applies to him and thus ends his term as president in 2018. Dr. Cabañas also emphasized that many younger people are taking over many governmental positions and that there has been a decentralization of power to municipalities.

[2] This blog has provided detailed criticism of the ridiculous, absurd, stupid and cowardly rationales provided by the U.S. for such designations in 2010, 2011, 2012 (with supplement), 2013 and 2014.

[3] This blog has provided criticisms of the embargo.

[4] This month Dr. José Ramón Cabañas Rodriguez also said that the U.S. and Cuba in recent years have had bilateral discussions regarding migration, drug trafficking, search and rescue in the Florida straits, stopping oil spills in the Caribbean, airline security measures, scientific exchanges and restoration of direct telephone and mail services. In addition, the U.S. has invited or permitted an invitation to Cuba to attend a Clean Oil Conference in San Antonio, Texas in December 2014.

[5] Although it certainly is debatable whether Mr. Gross was unjustly convicted in Cuban courts for violating Cuban law, I agree that it is in the U.S. national interest to have him released and returned to the U.S. Cuba, however, has argued that the three of the “Cuban Five” still in U.S. prisons should also be released and allowed to return to their homes. At a minimum, I believe that negotiations between the two countries could and should lead to at least a one-for-one exchange with the U.S. President commuting the sentence of one of the three Cubans to time served.

[6] This blog has called for normalization of Cuba-U.S. relations and has criticized the U.S. for insisting on preconditions for holding any talks with Cuba to improve relations. Another blog post was a public letter to President Obama recommending reconciliation with Cuba. In addition, this year a group of 50 prominent Americans issued a public letter to the President urging him to take executive action to expand U.S. involvement with Cuba. Another blog post criticized recent opposition to pursuing such reconciliation.

Spanish Court Issues Decision on Use of Universal Jurisdiction

On October 3, 2014, the 20 judges of the Criminal Chamber (Sala de lo Penal) of Spain’s National Court (Audiencia Nacional) issued an important ruling on Spain’s use of universal jurisdiction (UJ). In order to understand this decision, we first must look at UJ under customary international law and at Spain’s incorporation of this principle into its statutory law.

Customary International Law Regarding Universal Jurisdiction

Under customary international law and certain treaties, a nation state’s courts have UJ over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain’s Statutes Regarding Universal Jurisdiction

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court for certain crimes, including genocide; terrorism; and any other crimes under international treaties or conventions that should be prosecuted in Spain.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

The 2009 amendment also specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.

In March 2014, Spain’s legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Here are the principal provisions of the amendment that have been at issue in the October 3, 2014, decision by the Criminal Chamber of the National Court and in other recent judicial cases:

  • For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.
  • For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
  • Certain crimes were added for universal jurisdiction, including war crimes (crimes against persons or goods in armed conflict); torture and crimes against moral integrity; and crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence.[1]

The Criminal Chamber’s Decision Regarding Universal Jurisdiction

The October 3, 2014, Criminal Chamber’s decision concerned use of UJ in (i) the Jesuits Massacre Case; (ii) the Guatemala genocide case; (iii) the case against American service members for alleged murder of a Spanish cameraman in the Iraq war; (iv) the case against U.S. personnel for alleged torture of detainees at Guantanamo Bay; and (v) cases involving alleged Female Genital Mutilation (FGM).[2]

Jesuits Massacre Case.[3] The Chamber unanimously decided that Spain had UJ over the lower court’s criminal investigation of the November 1989 murders in El Salvador of the Spanish Jesuit priest, Ignacio Ellacuria, five fellow Jesuit priests and their cook and her daughter. Although the statutory amendment imposed limits on UJ for crimes against humanity, such charges could be considered in this case because they are related to the murder charges for which there is clear UJ.

The Chamber further explained that upon having asserted jurisdiction over a set of criminal facts that constitute the state terrorism crime, Spanish Judges have jurisdiction over all other crimes connected to the facts investigated, even if that crime is a crime against humanity.

The Chamber’s decision was a result of an appeal from a decision by Judge Eloy Velasco, who handled the Jesuits case and who previously had indicted 20 Salvadoran military officials for murder, terrorism, and crimes against humanity. Velasco rejected the crime against humanity claim and decided to continue only with the terrorism claim. The appeal was brought by the U.S.-based Center for Justice & Accountability and the Spanish Pro Human Rights Association.

Guatemala Genocide case.[4] The Chamber also decided that investigations in the Guatemala Genocide case involving claimed UJ could proceed for the moment, but the Chamber did so on procedural grounds without reaching the merits.

The Chamber’s decision was the result of an appeal from the May 2014 decision by Judge Santiago Pedraz Gomez of the National Court. He decided that the case could proceed for two reasons. First, the charges include terrorism—a crime that falls within Spanish extraterritorial jurisdiction whenever there are Spanish victims. Second, the charges of terrorism, genocide, and other atrocities are all based on the same facts. Under Spanish law, as in many European countries, a court’s jurisdiction extends to all criminal charges that arise from the same acts. Because the Court has jurisdiction over the terrorism offenses, Judge Pedraz announced that he will investigate the other connected crimes.

Judge Pedraz’s rationale appears to be the same as the Chamber’s in allowing the Jesuits case to proceed on the merits.

Case Against American Servicemembers for Alleged Murder of a Spanish Cameraman. The lower court has been investigating a case under UJ against American soldiers in the Iraq war for the alleged murder in 2003 of a Spanish cameraman. The Chamber also allowed it to proceed for a procedural error by the prosecution without a ruling on the merits.

The Chamber’s decision was the result of an appeal from a March 2014, decision by the lower court’s Judge Santiago Pedraz Gómez. He held that the amendment could not be applied to this case because, he said, the amendment contradicted Spain’s obligations under the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. The judge stated that the Geneva Convention obliges Spain to “prosecute the crime (search for people and make them appear) regardless of the perpetrators’ nationalities and wherever they may be.” Therefore, the court’s decision said, “The judge must refrain from applying . . . [the new statutory amendment]. The rule of law requires the existence of independent bodies to protect the rights and freedoms of citizens, by impartially applying standards that express the people’s will and control the activities of public authorities.”

Case Against American Personnel for Alleged Torture of Guantanamo Detainees.[5] Another lower court judge has been investigating under UJ the alleged torture by American personnel of Guantanamo detainees. The chamber also allowed it to proceed because of a procedural error by the prosecution without the Chamber addressing the merits.

This decision occurred in an appeal from the March 2014 lower court’s Judge Pablo Ruz’ order. He concluded that under the new amendment “torture and war crimes cannot be pursued . . . because the target of the procedure is not a Spaniard or a resident of Spain.” These restrictions, however, are trumped, held the judge, by international treaties ratified by Spain–the Geneva Conventions and the Convention Against Torture–which force signatory countries to pursue crimes.

Judge Ruz also pointed out that the new amendment stipulates that crimes cannot be pursued in Spain if they are already being investigated by an international court or by the country where they were committed. Therefore, Judge Ruz this March renewed his request to the U.S. Government for information about U.S. investigation of this case. This blogger is not aware of any U.S. response to date to this request.

FGM Cases. The Chamber also unanimously decided that UJ could be used for criminal investigations and prosecutions of alleged Female Genital Mutilation (FGM) where the victims or perpetrators have some connection to Spain. This decision was based, in part, upon Spain’s August 1, 2014, ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence, which requires Spain to prosecute such crimes. The case involved the FGM of a young woman in Gambia in 2005

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

[1] Other provisions of the original 1985 statute and the 2014 amendment are covered in a prior post.

[2]This post is based upon prior posts that are embedded above; the Spanish court’s announcement of the decision; Perez, The new universal justice can pursue ablation, El Pais (Oct. 3, 2014); Center for Justice & Accountability, Spanish National Court Upholds Spanish Jurisdiction To Investigate 1989 Massacre of Jesuit Priests in El Salvador (Oct. 3, 2014); Center for Justice & Accountability, Spain Presses Ahead with Guatemala Genocide Case Despite New Limits on Universal Jurisdiction (May 22, 2014). The text of the actual decision by the Criminal Chamber should become available online. Corrections or elaborations of this post by lawyers more knowledgeable about Spanish law are especially welcome.

[3] Some of the filings in the Jesuits case are available online.

[4] Some of the filings in the Guatemala case are available online.

[5] Many of the documents In the Guantanamo torture case are available online.