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

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[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.

 

 

 

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 8th  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 28th 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

BackChannel book

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.

Why I Do Not Hope To Die at 75

Under the provocative title, “Why I Hope To Die at 75,” the 57-year-old Dr. Ezekiel Emanuel, the director of the Clinical Bioethics Department at the U.S. National Institutes of Health and head of the Department of Medical Ethics & Health Policy at the University of Pennsylvania, sets forth in The Atlantic Magazine what he claims to be his firm conclusion that he hopes to die in 18 years at age 75.

As a 75 year-old-man who was graduated from high school in 1957, the year Emanuel was born, I do not hope to die in the remaining months before I turn 76 or at any other set time.

Let us explore the reasons for these different conclusions.

Dr. Ezekiel Emanuel’s Reasons

According to Dr. Emmanuel, “[L]iving too long is . . . a loss. It renders many of us, if not disabled, then faltering and declining, a state that may not be worse than death but is nonetheless deprived. It robs us of our creativity and ability to contribute to work, society, the world. It transforms how people experience us, relate to us, and, most important, remember us. We are no longer remembered as vibrant and engaged but as feeble, ineffectual, even pathetic.” He then backs up this opinion with what he asserts as facts:

  • “We [in the U.S.] are growing old [in terms of increased life expectancy], and our older years are not of high quality.” Studies show, he says, that “increases in longevity seem to have been accompanied by increases in disability.” Another study found an “increase in the absolute number of years lost to disability [including mental disabilities like depression and dementia] as life expectancy rises.”[1]
  • Another medical researcher said, “health care hasn’t slowed the aging process so much as it has slowed the dying process.”
  • “[O]ur mental functioning deteriorates as we grow older: mental-processing speed, working and long-term memory, problem-solving and creativity.”
  • The “most dreadful of all possibilities: living with dementia and other acquired mental disabilities” while our society is expected to experience a “tsunami of dementia.”
  • As we age, we “accommodate our physical and mental limitations. Our expectations shrink. . . . [W]e choose ever more restricted activities and projects, to ensure we can fulfill them.”

He recognizes that “there is more to life than youthful passions focused on career and creating. There is [mentoring and] posterity: children and grandchildren and great-grandchildren.”

But these benefits of aging are outweighed for him by “the very real and oppressive financial and caregiving burdens” often imposed on other family members and by the psychological burdens on children unable to escape from the shadows of living parents.

Although Emanuel does not embrace euthanasia or suicide for himself, he has executed “a do-not-resuscitate order and a complete advance directive indicating no ventilators, dialysis, surgery, antibiotics, or any other medication. . . . In short, no life-sustaining interventions.” In addition, if and when he reaches age 75, he will seek to avoid any visit to a doctor and any regular preventive tests, screenings, or interventions. He says he “will accept only palliative—not curative—treatments if he is suffering pain or other disability.”

A desire to die at age 75, he says, “forces us to think about the end of our lives and engage with the deepest existential questions and ponder what we want to leave our children and grandchildren, our community, our fellow Americans, our world.”

He concludes with this caveat. “I retain the right to change my mind and offer a vigorous defense of living as long as possible. That, after all, would mean still being creative after 75.”

Responses to Emmanuel’s Reasons

I agree with Emmanuel that as we age we lose some of our physical and mental abilities and that executing a complete advance medical directive forbidding extreme life-sustaining interventions, as he and I have done, is a reasonable thing to do.

Otherwise I vigorously disagree with Emmanuel’s conclusion that a desire to die at age 75 is a reasonable conclusion and reject his argument that what others think of us or how they may remember us after we are gone is relevant to this issue. Apparently creativity is a central virtue for him, and its predictable decline as we age appear to be the major motivation for his stated desire to die at 75. Yes, creativity is important for many of us, but it is not the only virtue.

I also wonder why he does not contemplate retirement from actively working for a living as another stage of life with certain benefits. Nor does he really grapple with the facts, he briefly concedes, that many older people are happy with new interests like “bird watching, bicycle riding, pottery, and the like” and that “there is more to life than youthful passions focused on career and creating. There is posterity: children, grand children and great-grandchildren.” He also glosses over the fact that his own father (Dr. Benjamin M. Emmanuel), now about 87 years old, had a heart attack 10 years ago and since then has slowed down appreciably, but still says he is happy.

My Reasons for Not Wanting To Die at 75

At age 62 with some trepidation, I retired from the active practice of law. I wanted to escape the pressure of being a litigator who oftentimes was forced to be in professional relationships with opposing counsel who were disagreeable people. This produced stress that I wanted to eliminate as life-threatening. I also wanted to create time to do other things beside working while I was still in good health: travel, spend time with my grandchildren, learn new things and write. After my first 10 years of retirement I assessed my retirement and concluded that these years had been productive and enjoyable. That confirmed for me the wisdom of retiring when I did. These conclusions have been reconfirmed by my subsequent three additional years of retirement.

In this period I became actively involved in my church’s global partnerships and made three mission trips to Cuba and one to Cameroon and in the process made new international friends and learned a lot about the two countries. My involvement with Cuba prompted me to become an advocate for changing U.S. policies regarding the island. I could not have done this while still practicing law.

I also have reflected on my own life and affirmatively set about determining the many people and activities for which I was grateful. Yes, this could have been done while still working, but the pressures of working, I believe, would have meant postponing such reflections to another day that would never have come. This process of reflection, aided by worship at Minneapolis’ Westminster Presbyterian Church, has also enabled me to see certain of my activities as vocations in the Christian sense.

One of my activities in this first phase of retirement was being a part-time Adjunct Professor at the University of Minnesota Law School to co-teach international human rights law. In the process I learned a lot about this field of law and enjoyed interacting with law professors and students. I could not have done this while still practicing law.

At the end of 2010 I retired from law teaching in order to create time for sharing things I already had written and for research and writing on new topics that came along. In the spring of 2011 this desire lead to my creating and writing this blog. It is exciting to come across new things, like Emmanuel’s article that prompted this post. I frequently find that such things immediately start my composing an article in my head. Often this triggers a desire to do research, frequently using “Google” searches, but sometimes going to a library or sources of original documents. I enjoy this kind of puzzle and challenge as well as the writing.

In my retirement I also have thought about mortality, especially as friends, acquaintances and others my age die. But such thoughts are not depressing, but rather reminders that I too am mortal. Therefore, try to make the most of each day you have.

I do not worry about when I will die or wish that I will die at a particular age. Nor do I worry about what happens to me after death even though Christianity has a promise of eternal life.

Be happy! Enjoy life! Love one another!

This point was raised in an article entitled “Too Young to Die, Too Old to Worry” by Jason Karlawish, a professor of medicine, just after the publication of the Emmanuel essay, but without citation to same. Karlawish said, “Age seems to be a blunt criterion to decide when to stop” and “we desire not simply to pursue life, but happiness, and . . . medicine is important, but it’s not the only means to this happiness.”

Here are some of my blog posts that relate to the previous statement of reasons why I do not desire to die at 75.

Post # Date Title
19 04/22/11 Retiring from Lawyering
21 04/23/11 My First Ten Years of Retirement
226 03/15/12 Gratitude I
242 04/11/12 Gratitude II
243 04/13/12 Gratitude III
276 06/13/12 Gratitude Revisited
221 03/08/12 Intimations of Mortality
489 04/08/14 Mortality
492 04/11/14 Death Certificates’ Documentation of Mortality
466 02/06/14 My General Thoughts on Vocation
475 02/23/14 My Vocations

[1] Emmanuel makes no reference to the immediately preceding article in the magazine by Greg Easterbrook, What Happens When We All Live to 100?, The Atlantic at 61 (Oct. 2014) that discusses research into further increases in vibrant life span.

Tom Hayden: Will U.S.-Cuba Normalization Fail Again?

[This is a re-posting of an August 15, 2014, article in The Democracy Journal by Tom Hayden, political activist for social justice, author and Director of the Peace and Justice Resource Center. Article licensing information appears on tomhayden.com (http://tomhayden.com/), which granted permission for this re-posting. Many similar posts have been published on https://dwkcommentaries.com/tag/cuba/.%5D

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On May 12, President Obama held a confidential conversation in the White House with Uruguay’s president, Jose Mujica, the former Tupamaro guerrilla leader. The meeting was a fateful one. Did they discuss Uruguay’s becoming the first Marijuana Republic? Perhaps. Did they discuss the US-Cuba diplomatic impasse of 55 years? Most certainly, because three weeks later at an Organization of American States (OAS) meeting in Uruguay the delegates reaffirmed a decision to officially invite Cuba to a summit in Panama next May.

The Obama administration will have to accept Cuba’s recognition by the OAS this spring or sit sheepishly in isolation. Fifty years ago, the OAS voted 15-4 to terminate all diplomatic relations and trade with revolutionary Cuba. Uruguay was one of the four dissenters in those days, when the revolutionary Mujica was underground, and has not changed its position over time. One doesn’t need gray hairs to observe that the US policy towards Cuba is obsolete and counter-productive. Ten years ago, then state Senator Barack Obama called for diplomatic recognition. Hillary Clinton recently revealed her support for recognizing Cuba as secretary of state. Recent polls, even in Florida, show majorities in favor of normalization. Inner circles in both countries are trying to explore a rapprochement, wary of pitfalls and domestic critics.

The most important recent change in US policy is the lifting of the travel ban on Cuban-Americans visiting the island. As many as 500,000 travel back and forth every year, visiting family, sharing dialogue, spending millions in remittances. On the Cuba side, all agree that Raul Castro has opened significant space for private investment and entrepreneurs once condemned as counter-revolutionary. Businesslike bilateral talks are underway about issues of mutual interest, from currency exchanges to potential oil spills.

The biggest obstacle, from the Cuban view, is a persistent US program of covert “democracy promotion” – or, regime change – aimed at subverting the Cuban government by funding dissident networks in Cuba. “Stupid, stupid, stupid!”, is how US Sen. Patrick Leahy recently described the leaked revelations about a secret social media “Cuban twitter” program called ZunZuneo, after a Cuban hummingbird. One among fifty years of subversion projects, ZunZuneo was launched in 2009 after Obama spoke of building a new relationship. Its sponsor was the US Agency for International Development [AID], even after an AID contractor, Alan Gross, was arrested in Cuba for distributing communications equipment in violation of Cuban law.

Gross, now serving a 15 year sentence, is at the center of the heightened tensions now threatening normalization. Gross, 65, is widely reportedly in poor health and threatening to take his own life if he’s not released by next year. Should that occur, according to one top US official, it would end any hope of Cuba winning the return of one of its agents, Gerardo Hernandez, one of the Cuban Five who were captured in DATE while surveilling anti-Castro Cubans flying into Cuban airspace to drop propaganda materials. When two exile pilots were shot down by the Cubans after warnings conveyed directly to the US government, the Five were imprisoned on conspiracy and espionage charges. Two have served their time in federal prisons and returned to Cuba. Two others will finish their terms shortly, leaving Gerardo Hernandez facing a double life sentence.

Prisoner swaps have occurred before, for example in 1978-79 when President Jimmy Carter and Fidel Castro orchestrated the release of Puerto Rican nationalists who were imprisoned for shooting up the US House of Representatives in 1954. Although the releases were described as unrelated, the Puerto Ricans were pardoned and returned to their island while separately the US received a group of its agents held in Cuban prisons.

It would be logical therefore to swap Gross for Gerardo Hernandez, even if arranged separately, but nothing seems logical about the US-Cuban deadlock. According to interviews with participants, such a staged swap finally was being considered a few weeks ago – until the fiasco of the Obama administration’s trade of five Taliban officials for the return of the American POW, Pfc. Bowe Bergdahl. Republicans, some Democrats and the mainstream media complained that the five-for-one deal favored the Taliban, and then the issue became inflamed by hazy reports that Bergdahl had abandoned his Afghan base and was perhaps “anti-war.”

The Obama team was flat-footed in their response, failing to notify even their top Congressional allies. That  failure violated a legal requirement that Congress be informed thirty days before any such deal, an obstacle that most likely would have killed the swap. But Democratic leaders were furious at not even being informed of the move.

That’s why Alan Gross remains behind bars in Cuba with no deal for his release remotely possible. With the Gross matter unresolved, the entire process of normalization could go off track.

Many in Washington view the Cubans as too stubborn in the Gross case. But the Cubans have been burned by unfulfilled promises and miscommunications many times over the decades, and leaving Gerardo Hernandez behind is unacceptable to them – just as Obama argued that leaving Pfc. Bergdahl behind was out of the question.

The Cuban dilemma is that if anything should happen to Gross they will never see Gerardo back and a rapprochement could slip away. It may sound shocking to many Americans, but the death of Alan Gross in a Cuban prison would serve the interests of some in the anti-Castro Cuban lobby that is deeply threatened by the prospects of normalization. The death of Gross would serve the narrative that Castro’s Cuba operates a heartless gulag, ignoring the many proven examples of Cuban exile terrorism directed from Miami against Cuban civilians, like the 73 Cubans killed in an airline bombing in 1976. Cuban exiles have been a perfect examples of the “cancer on the presidency”, the metaphor once used by Nixon aide John Dean. They were the lead conspirators in the 1972 Watergate break-in, and the 1976 assassinations of Chilean diplomat Orlando Letelier and his American assistant Ronnie Moffett, on embassy row in Washington DC. Their violent attacks on Cuba from a Miami enclave are too numerous to document.

Cuba will make its own decision for its own reasons in the Gross case, and may have to make it soon. Since the Obama administration fears any appearance of a quid pro quo in the wake of the Bergdahl fiasco, should Cuba expect nothing in exchange for the release of Gross as a humanitarian gesture? That might depend on the initiative of the many in the US Congress who recognize that it’s long past time for a better relationship with Cuba. They could, for example, communicate private guarantees of White House action. They could try deleting the $20 million in federal funds for “democracy programs” in the wake of the ZunZuneo scandal. They could send a letter to Obama requesting Cuba’s removal from the list of four countries designated as “terrorist” states, which hampers Cuba’s access to financial capital. They could urge the president to lift the ban on Americans traveling to Cuba or spending US dollars there, thus undermining the current embargo. If they can’t do anything in response to a release of Gross, they could watch the prospect of normalization drift away.

Another recent crisis may shadow the US-Cuban process, revealing the complications of the impasse.. A long-planned improvement of relations between Russia, Cuba and Latin America is underway just at the moment when clouds of the Cold War are darkening the horizon over the Ukraine. Russia’s Vladimir Putin has just forgiven ninety percent of Cuba’s $30 billion debt owed to Russia for three decades, fueling the anti-communist suspicions of the Cuban Right. The arrangement is helpful to Cuba’s economy, long embargoed by the US, and adds a new counterweight against the US pressures on Cuba. If initial reports that Russia re-establishing a spy base on the island, that might chill the relationship further. Cuba, of course, has a sovereign right to accept a Russian base, especially as US regime change programs continue.

Whatever the spillover from the Bergdahl affair and the growing Russian-American conflict, however, nothing can stop the clock ticking towards 2015 when Obama has to decide whether to join the Organization of American States in restoring Cuba to equal membership. If that’s what the president’s confidential White House meeting with Uruguay’s Mujica in May was all about, the process of normalization may yet survive the remaining obstacles to resolution after five long decades.

Cuban Events in Minnesota

Although far from Cuba, Minnesota has a strong interest in the island: its relations with the U.S. and its politics, religions, history, arts and people. Here are upcoming events in the Twin Cities of Minneapolis and St. Paul demonstrating that interest:

Date Time Event & Place
Cuba: The Accidental Eden.” This small island’s varied landscape, its location in the heart of the Caribbean and its longstanding place at the center of Cold War politics have all combined to preserve some of the richest and most unusual natural environments of the hemisphere. For decades, Cuba’s wild landscapes lay untouched while its Caribbean neighbors poisoned or paved over their ecological riches. Now, Cuba’s priceless treasures are about to face an onslaught. Tourism is already on the rise and most experts predict tourism will double once the U.S. trade embargo ends. What will happen to Cuba’s stunning biodiversity – an island filled with amphibians, reptiles and the most biologically diverse freshwater fish in the region? (National Public Television’s Nature’s Episode # 2711 was shown on local public television station, tpt, on August 3 & 4, 2014, and is available online as a DVD.)
Race to Revolution.” Dr. Gerald Horne, the author of Race to Revolution, discusses his book’s thesis that the histories of Cuba and the U.S. are tightly intertwined and have been for at least two centuries, including the interconnections among slavery, Jim Crow, and revolution. Slavery was central to the economic and political trajectories of Cuba and the U.S., both in terms of each nation’s internal political and economic development and in the interactions between the two countries. This was a Sojourner Truth radio program that was broadcast on August 29th, but can be heard anytime for the next 90 days at www.kpfk.com.
Sept. 2 7:00-8:00 pm Cuban Missile Crisis: Three Men Go to War.” This film tells the inside story of the Cuban Missile Crisis, exploring how in October 1962 the earth teetered on the very brink of nuclear holocaust. The documentary brings to life the three central characters John F. Kennedy, Fidel Castro and Nikita Khrushchev, and explores how the world’s most powerful men fell into an abyss of their own making and what courage and luck it took to climb out again. tpt Channel 2.
Sept. 2 8;00-9:00 pm Fidel Castro Tapes.” This film takes viewers on a journey like none other. This program uses only news and documentary footage — past and present — to detail the life and times of one of the most controversial political figures of the 20th Century. There is no narration in this film and no interviews. Instead, The Fidel Castro Tapes relies solely on the words of journalists who covered the major events in Castro’s life to tell the story. It is a unique approach, one that gives the viewer a chance to experience the life and times of Cuba’s leader as if they were actually living through them. tpt Channel 2.
Oct. 5 7:30 pm A Night in Havana.” A special concert with pianist Nachito Herrera, a Cuban-American resident of the Twin Cities, and his Cuban Orchestra with a dance floor! Ordway Music Theater, 345 Washington Street, St. Paul; www.ordway.org; tel: 651-243-2825. Tickets start at $23, but $10 discount with promo code “NACHITO SPECIAL.”
Oct. 6 5:50-7:30 pm What Does the Future Hold for Cuba-U.S. Relations?” Cuba’s top diplomatic official in the U.S., Dr.José Ramón Cabañas Rodríguez, will speak about U.S.-Cuba relations, the impact of Cuba’s economic reforms and ongoing U.S. sanctions and the prognosis for normalized relations. Co-sponsored by the Minnesota International Center and the University of St. Thomas, the event will be at the University of St. Thomas, Thornton Auditorium, 1000 LaSalle Avenue, Minneapolis. MIC & corporate members, cosponsors & students, $5; others, $15. Advance registration requested online or by phone (612-625-1662).
Oct. 11 2:00 pm Reembarque (Reshipment).” Film about Haitians immigration to Cuba in the early 20th century and their life in Cuba by Cuban documentary filmmaker, Gloria Rolando. Discussion after the film by Rolando and Robert Byrd, program director of the Jerome Foundation’s Film and Video Program. Minneapolis Institute of Arts, Pillsbury Auditorium, 2400 Third Avenue South, Minneapolis. FREE.
Oct. 22 7:30 pm Creole Choir of Cuba. Experience the heart and soul of Cuba through irresistible melodies, poetic lyrics and impassioned vocal and percussive performance. With influences from both the Caribbean and West Africa, the Creole Choir of Cuba tells stories of survival, faith and tragic history, drawing you in with infectious music. Ordway Music Theater, 345 Washington Street, St. Paul; www.ordway.org; tel: 651-243-2825.

If you know of other Cuban events in Minnesota through the end of this year, please add a comment with the relevant information.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Creole–http://www.ordway.org/performances/14-15/creole-choir-of-cuba/

 

Film–http://new.artsmia.org/event/durades-dialogue-film-reembarquereshipment-with-gloria-rolando-and-robert-byrd/

Another USAID Effort To Promote Regime Change in Cuba: Other Reactions

On August 4th, the Associated Press (AP) reported that the United States Agency for International Development (USAID) had funded and implemented a program in 2010-2012 to attract young Cubans for purported civic programs on the island with the real purpose of recruiting them to anti-government activism.

Prior posts looked at the AP’s account of this program and the U.S. government’s reactions. Now we discuss the reactions of others.

A number of U.S. NGOs interested in U.S.-Cuba relations criticized the program. For example, the Latin American Working Group, one of the nation’s longest-standing coalitions of over 60 major religious, humanitarian, grassroots and policy organizations, said, “Programs like this greatly hamper efforts to restore relations between the United States and Cuba. The ‘Travelers Project’ not only delegitimizes global healthcare programs, but erodes trust in the U.S. Government both abroad and at home. This program has cost the United States a considerable amount of money and credibility and is a great setback to productive and respectful engagement with Cuba.”

According to Professor William L. LeoGrande, American University of Washington, D.C., “Cuba already has the best HIV/AIDS prevention program and the lowest incidence rate in Latin America. Or that everywhere else in the world, USAID’s laudable work on HIV/AIDS is conducted openly in partnership with the host government. The program in Cuba is obviously not about HIV/AIDS at all. That was just the cover story — “the perfect excuse,” as one of the program documents called it — for the real goal of recruiting “potential social change actors.”

LeoGrande added that the program was secret, covert and undercover under “the common sense meaning” of those words and that the USAID contrary position was absurd. Moreover, this and other USAID Cuba programs “have demonstrated a clear pattern of knowingly putting innocent people at serious legal risk in Cuba by involving them in subversive activity without their knowledge. That is morally reprehensible, indefensible, and sufficient reason by itself to de-fund these programs once and for all. . . . The other clear pattern these programs exhibit is comical incompetence.”

Similar criticisms were voiced by the following:

  • Pan-American Post: criticism of USAID’s use of HIV clinics as a front, confusing Cubans’ complaints with willingness to rebel against the government and providing minimal training for the people it secretly sent to Cuba;
  • Andrew Breiner of the ThinkProgress blog: U.S. using health programs in several foreign countries for ulterior purposes leads to distrust of health workers in foreign countries;
  • Phil Peters, President of the Cuba Research Center, condemns USAID’s lack of responsibility and disrespect for the Cuban citizens that are unknowingly swept into the agency’s poorly organized secret operations and USAID’s denial that the program was covert; and
  • Charles Kenny, Senior Fellow at the Center for Global Development said the use of an HIV workshop as a front for political subversion will “only make the distrust worse” in many of the places where the agency operates and potentially damage U.S.-Latin America cooperation in the face of global challenges such as the current Ebola outbreak.

Cuba’s Ministry of Foreign Relations understandingly objected to this USAID program. It said, the program “reconfirms that the [U.S.] government has not renounced its hostile, interventionist strategy in Cuba, meant to create destabilizing situations and provoke change in our political order, and to which millions of dollars are destined every year. The [U.S.] government must immediately end all subversive, illegal undercover operations in Cuba, which violate of our sovereignty and the express will of the Cuban people to perfect our economic and social model, and consolidate our democracy.”

A similar statement was released by the Bolivarian Alliance for the Peoples of Our America – Free Trade Agreement of the Peoples (ALBA-TCP), whose members are Antigua and Barbuda, Bolivia, Cuba, Dominica, Ecuador, Nicaragua, St. Vincent and the Grenadines, St. Lucia and Venezuela.

On the other hand, some of the Costa Rican and Venezuelan participants in the program denied that the purpose of the program was to foment a revolution against the Cuban government.

As of August 13th, no comment on this program has been made by Creative Associates International, the private contractor that operated the program for USAID. In fact, the company’s website does not mention Cuba at all.

Conclusion

One does not promote democracy and human rights by using antidemocratic and anti-human rights tactics like this USAID program. It is immoral and stupid.

In fact, programs like this reinforce Cuban limits on dissent. When a small and poor country like Cuba faces covert subversion programs and long-term hostility from its vastly superior, militarily and economically, neighbor to the north, that small country has to be vigilant in its own self-defense and self-preservation. If the U.S. really wanted to improve democracy and human rights in Cuba, the U.S. would enter into good-faith negotiations with Cuba to end the U.S. embargo of the island and resolve a multitude of other issues leading to reconciliation and restoration of normal diplomatic relations.[1]

Finally the U.S. assertion that this and other USAID Cuban programs are not secret, covert and undercover is nothing but Orwellian gobbledygook.

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[1] A prior post from 2011 argued for such reconciliation and another from 2012 did so in an open letter to President Obama.

Another USAID Effort To Promote Regime Change in Cuba: U.S. Government’s Reactions

As discussed in a prior post, on August 4th, the Associated Press (AP) reported that the United States Agency for International Development (USAID) had funded and implemented a program in 2010-2012 to attract young Cubans for purported civic programs on the island with the real purpose of recruiting them to anti-government activism.

Now we will look at the U.S. government’s responses to the article. Another post will discuss the reactions of others.

  1. USAID

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On August 4th, USAID issued a statement that admitted the existence of the program. It said that with congressional funding, the agency had conducted this program under the umbrella of “democracy programming in Cuba to empower Cubans to access more information and strengthen civil society.” This “is important to [USAID’s] mission to support universal values, end extreme poverty and promote resilient, democratic societies,” especially in countries like Cuba that do not enjoy the “right to speak freely, assemble and associate without fear, and freely elect political leaders.” Thus, said USAID, the AP article was correct in its assertion that the purpose of the program was “to empower citizens to ‘tackle a community or social problem, win a ‘small victory’ and ultimately realize that they could be the masters of their own destiny.’”

Yet USAID denied that the program was secret, covert or undercover. In countries like Cuba that are closed and hostile to the U.S., the USAID programs are conducted with ”discretion.”

In fact, the USAID statement continued, information about USAID’s Cuba programs, is available publicly at foreignassistance.gov. That website, however, does not provide any information about this specific program or any other such program in Cuba.

Instead, it says the State Department and USAID provides assistance to Cuba that “will support civil society initiatives that promote democracy, human rights and fundamental freedoms, particularly freedom of expression. Programs will provide humanitarian assistance to victims of political repression and their families; strengthen independent Cuban civil society; and promote the flow of uncensored information to, from, and within the island.” The website also provides the following aggregated information (in millions of dollars) about such programs for Cuba:

 

FY Appropriated      [1] Obligated [2] Spent [3]
2009 [$15.0] $13.5 $12.2
2010 $20.0 $ 8.9 $11.0
2011 $20.0 $ 9.6 $ 7.7
2012 $20.0 $ 8.3 $ 8.2
2013 $19.3 $ 9.0 $ 7.3
2014 $15.0 $ 1.8
2015 $20.0

The website also provides “disaggregated” data that shows an expenditure in 2013 of $171,700 to Creative Associates International for “Professional, administrative and support services.” There was no disclosure of the program mentioned above or of the Cuban social media program conducted for USAID by Creative Associates International that was discussed in prior posts.[4]

On August 7th USAID updated its own webpage titled “Cuba-Our Work.” It states, “USAID focuses on increasing the ability of Cubans to participate in civic affairs and improve human rights conditions on the island. By reaching out to the dissident community and beyond and engaging citizens to enhance local leadership skills, strengthen organizational capacity, facilitate outreach strategies, and support greater access to information and communication, the USAID program contributes to the development of independent civil society groups that can ultimately make significant contributions at the local and national levels.”

According to the “Cuba-Our Work” webpage, these programs focus on (a) humanitarian support to political prisoners and their families; (b) facilitating the free flow of information; and (c) Human rights and democracy promotion. The last of these three involves “USAID [support of] independent civic, social, and development activities by providing technical and material assistance to organize, train, and energize small groups of people within their communities. These efforts provide an opportunity for citizens to work together in a manner independent from the state. USAID also provides trainings on documenting human rights abuses according to international standards and raises awareness of such abuses within Cuba and around the world.”

That same webpage lists seven “current program partners:” Foundation for Human Rights in Cuba, Grupo de Apoyo a la Democracia, International Relief and Development, International Republican Institute, National Democratic Institute, New America Foundation and Pan-American Development Foundation. Note that Creative Associates International is not mentioned.

  1. State Department

USDeptStatesealOn August 4th a U.S. State Department spokesperson also defended the program that was the subject of the AP report. She said, “Congress . . . funds democracy program in Cuba to empower Cubans to access more information and strengthen civil society. This [HIV] workshop . . . enabled support for Cuban civil society while providing a secondary benefit of addressing the desires Cubans express for information and training about HIV prevention.” There also were “community cleanups, cultural activities, tree plantings.” Programs in countries like Cuba are operated in a discreet manner to help ensure the safety of those involved . . . . This was not a covert program. There are programs that are done discreetly in order to protect the safety of the people involved.”

  1. Senator Robert Menendez
Senator Robert Menendez
Senator Robert Menendez

Menendez (Democrat—NJ, a Cuban-American and Chair of the Senate Foreign Relations Committee) said, “I stand in full support of [USAID] and its efforts to empower Cuban civil society.  Initiatives that facilitate community education and organizing are an important step towards addressing the social, political and economic challenges facing Cubans today, and who are denied access to an independent media and basic civic interaction.  Moreover, I reaffirm that these programs are consistent with more than a half-century of effort by the [U.S.] Government to promote democracy, human rights and universal values around the world.”

Menendez also commended “the young activists from across Latin America who traveled to Cuba to engage their peers in broad discussions about shaping their future and the future of the country.  It is my sincere hope that Latin American governments will follow the examples set by these courageous activists and will stand in support of the Cuban people – both young and old.”

  1. Senator Patrick Leahy.
Senator Patrick Leahy
Senator Patrick Leahy

Leahy (Democrat-VT and chair of the Senate appropriations subcommittee that oversees USAID) said, “It is one thing to support nascent Cuban civil society organizations, if USAID’s role is disclosed in advance to participants and beneficiaries. It is quite another to concoct an HIV/AIDS workshop to promote a political agenda. If that is what happened here it is worse than irresponsible. It may have been good business for USAID’s contractor, but it tarnishes USAID’s long track record as a leader in global health.”

  1. Senator Jeff Flake

Unknown-2Flake (Republican-Arizona) said, “”These programs are in desperate need of adult supervision. If you are using an AIDS workshop as a front for something else, that’s … just wrong.”

  1. Congresswoman Ileana Ros-Lehtinen.
Rep. Ileana Ros-Lehtinen
Rep. Ileana Ros-Lehtinen

 

Ros-Lehtinen (Republican-FL and a Cuban-American) said, “USAID . . . [use of] measures to promote democracy in Cuba is no secret. We must continue to pressure the Castro regime and support the Cuban people, who are oppressed on a daily basis. I wish the press would dedicate more of their time to reporting the rampant human rights abuses in Cuba perpetrated by the Castro regime instead of manipulating the coverage of programs promoting freedom of expression and justice on the island.”

7. Congressman Mario Diaz-Balart.

Rep. Mario Diaz-Balart
Rep. Mario Diaz-Balart

Diaz-Balart (Republican-FL and a Cuban-American) said, “Efforts by the State Department and USAID to bring information to the Cuban people, and to find creative ways for the Cuban people to communicate with each other and with the outside world, are precisely the types of activities that the United States must vigorously pursue in closed societies. . . .Pro-democracy activities must be undertaken with discretion because the most innocuous acts are ‘crimes’ in totalitarian states. It is outrageous that the AP abandoned all pretense of objectivity and published an overtly biased hit piece against a program that enjoys broad bipartisan support.”

  1. Congresswoman Barbara Lee
Rep. Barbara Lee
Rep. Barbara Lee

Lee (Democrat-CA) said, “I am appalled by recent reports that the U.S. government orchestrated and funded clandestine democracy promotion efforts under the guise of public health and civic programs . . . . As co-chair of the Congressional HIV/AIDS Caucus, I am particularly concerned by the revelation that HIV-prevention programs were used as a cover. This blatant deception undermines U.S. credibility abroad and endangers U.S. government supported public health programs which have saved millions of lives in recent years around the world.

Lee also commented, “These most recent reports are particularly disturbing in light of USAID’s [Cuban social media program] fiasco first reported a few months ago. Such misguided and counterproductive programs have no place at USAID and stand to put more U.S. citizen lives at risk. Instead of this covert approach to democracy promotion; it’s long past time for American and Cuban officials to make a serious commitment to enter into open

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[1]  The foreignassistance.gov website reports that these are Appropriations for all agencies, including USAID. An USAID website says that $55.0 million was appropriated for all agencies’ Cuba programs for FY 2009-2011 and that USAID was responsible for $31.0 of those funds.

[2] The foreignassistance.gov website reports that USAID received all of the Obligated funds for these years.

[3] The foreignassistance.gov website reports that USAID spent all of the Spent funds for these years.

[4] Post, U.S. Secret Cuba Social Media Program Raises Questions about the Validity of Criticisms of Cuba by the U.S. Commission on International Religious Freedom (April 4, 2014); Post, U.S. Senate Hearing Discusses USAID’s Social Media Program for Cuba (April 9, 2014); Re-post of the Latin American Working Group, What Is Wrong with the White House’s Plan for Democracy in Cuba (April 9, 2014).