Update on Trump Administration’s Threat To  Allow U.S. Litigation Over Cuba’s Expropriated Property

A prior post reported that the Trump Administration was considering not continuing the waiver of the right of certain owners of Cuban property that was expropriated in 1959-60 to bring litigation in U.S. federal courts.  Here are two updates.

First, Engage Cuba, an U.S. bipartisan coalition supporting normalization of U.S.-Cuba relations, published a strong objection to such a move.[1] Here are the reasons for its objection:

  • “There are 5,913 certified claims of seized American property in Cuba . . . [and] the State Department estimates that a flood of up to 200,000 claims if the suspension [of the right to sue] were ended.”
  • “Property claimants would be more successful in earning compensation through high-level diplomatic engagement, given that foreign companies are unlikely to cooperate.“
  • “Future attempts to encourage legal business with Cuba would be much more difficult . . . [and the authorization of U.S. litigation] would have a chilling effect on the broader effort to continue normalizing relations and could spill into other areas like travel, academic exchange, and research collaboration.”
  • “As U.S companies are not exempt from Title III suits, they could face a slew of lawsuits and would be extremely unlikely to expand operations in Cuba despite their past success on the island.”
  • “Companies based in Europe and Canada are among the top foreign investors in Cuba [and] Canada, the U.K. [and Mexico] all have laws prohibiting their companies from complying with Title III suits . . .[plus the] European Union . . . has indicated it will do [the same] . . . if the law goes into effect. The result could be a retaliatory measure that allows litigation against U.S. companies. These legal tensions could also spill over into other aspects of bilateral relationships with U.S. allies.”
  • “Thousands of U.S. lawsuits against Chinese companies could upset an already delicate trade relationship and provoke retaliation. Meanwhile, the U.S. has already left a vacuum in Cuba for adversarial influence, particularly from Russia and China. As business with U.S. companies becomes less viable for the Cubans, they will increasingly turn to our adversaries, who offer them favorable credit terms and invest in high-profile projects.”
  • U.S. “isolation rarely allows for improvements in human rights, and Cuba is no exception. Strained relations with our allies will only escalate this problem. Without a multilateral effort to hold the Cuban government accountable, the U.S. will have a harder time pushing Cuba toward greater freedom.”

Second, an anonymous Administration source said that it is very likely to act on this  proposal, but limit it to only the 6,000 existing claims and to exempt U.S. companies currently doing business in Cuba. Although this would reduce the harmful effects of such a change, it still is objectionable for the reasons advanced by Engage Cuba.

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[1]   Engage Cuba, Urgent: Trump Administration May Allow Lawsuits for Confiscated Property in Cuba (Jan.—2019).

 

 

 

 

 

 

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U.S.-Cuba Skirmishes at the Summit of the Americas

The confrontation of Presidents Donald Trump and Raúl Castro at the Summit of the Americas in Peru, as anticipated in a prior post, did not happen. Each of them cancelled his trip to the Summit. Instead Cuba sent its Foreign Minister, Bruno Rodriguez, while the U.S. sent Vice President Mike Pence, and the two of them exchanged verbal insults. The Secretary of the Organization of American States (OAS), Luis Almagro, also leveled criticism at Cuba.

OAS Secretary General[1]

On April 13, the OAS Secretary said the governments at the Summit “cannot allow the Cuban people to continue to be oppressed by an infamous dictatorship, a dictatorship that carries the weight of decades of human rights violations … tortures and executions. We have to be faithful to fundamental ethical values. Indifference in the face of dictatorship is to break the fundamental ethical values of policy.”

Cuba since 1962 has been suspended from the OAS. Nevertheless, “the resolutions of the OAS still apply to Cuba because it is still part of the Inter-American system. A suspension does not spare it from having to meet its responsibilities. That’s why we demand democracy for Cuba and the application of the Inter American Democratic Charter.”

The Secretary General also urged those at the Summit to “continue to put pressure on the regime. Let’s not recognize the [Cuban] rules for succession that the dictatorship wants to impose on its people.” This was an endorsement of the call earlier in the week by about 30 former heads of state and government from Spain and Latin America who urged the governments at the Lima summit to refuse to recognize the new Cuba government that is scheduled to be appointed April 18 or 19.

Almagro also condemned the Cuban delegation in Lima for an outburst of screams and slogans on Thursday that forced him and civil society activists to move a meeting to a closed-off hall. The Cuban delegates shouted “liar” at Almagro and “down with the worms” at the Cuban opposition activists in the room. “Today we had a very clear example of the levels of intolerance and how they want to silence the voice of dissidents in Cuba,” said the OAS secretary general. “They brought intolerance to our system, brought the voice of hatred, the voice that certainly tries to drown other voices. They have tried to dismantle our own democracy, the functioning of the Summit of the Americas. And that we cannot allow,” Almagro said. “And we cannot allow that in Cuba. It would not be ethical.”

Foreign Minster Rodriguez[2]

 On April 14, Cuba Foreign Minister Rodríguez addressed the Summit. “Our America, . . ., united by a common destiny in the search for its second and definitive independence, continues being sacked, intervened and vilified by the North American imperialism that invokes the Monroe Doctrine[3] for exercise of domination and hegemony over our peoples.”

“It is a story of wars of conquest, dispossession of territories, invasions and military occupations, coups d’état and imposition of bloody dictatorships that assassinated, disappeared and tortured in the name of freedom; of rapacious plundering of our resources.

Today there is the danger of a return to the use of force, the indiscriminate imposition of unilateral coercive measures and bloody military coups.”

He continued, “Our America, with its cultures and history, the territory, the population and its resources can develop and contribute to the balance of the world, but it is the region with the most unequal distribution of income on the planet.”

The richest 10 percent amass 71 percent of the wealth and, in two years, one percent of the population would have more than the remaining 99 percent. It lacks equitable access to education, health, employment, sanitation, electricity and drinking water.”

“We will only advance through regional integration and the development of unity within the diversity that led to the creation of CELAC [Community of Latin American and Caribbean States].”

“Recent events show that the OAS and its hysterical Secretary General are instruments of the United States.”

“Now, the objective is to reestablish imperialist domination, destroy national sovereignties with unconventional interventions, overthrow popular governments, reverse social conquests and restore, on a continental scale, wild neoliberalism. For this, the fight against corruption is used as a political weapon; prosecutors and judges act as ‘political parties’ and voters are prevented from voting for candidates with strong popular support, as is the case of the President, political prisoner, Luiz Inacio “Lula’ Da Silva whose freedom we demand.”

“It is hidden that corruption prevails among conservative politicians, parliamentarians and politicians and in electoral systems, in corrupt laws and political models, by nature, based on money, on corporate ‘special interests.’”

“People are manipulated from private monopolistic property on media and technological platforms. In electoral campaigns, there are no ethical limits: hate, division, selfishness, slander, racism, xenophobia and lies are promoted; neo-fascist tendencies proliferate and walls are promised, militarization of borders, massive deportations, even of children born in the territory itself.”

“In the hemisphere, massive, flagrant and systematic violations of civil and political human rights are increasing; and economic, social and cultural rights of hundreds of millions of human beings.”

What democracy and values ​​are spoken of here? Of those of President Lincoln or the “dream” of Martin Luther King , that would elevate the American people to whom indissoluble bonds unite us ?, Or of those of Cutting and of the supposed “anti-system” extremist conservative?

“Cuba will not accept threats or blackmail from the government of the United States. We do not want confrontation, but we will not negotiate anything of our internal affairs, nor will we yield a millimeter in our principles. In defense of independence, the Revolution and Socialism, the Cuban people have shed their blood, assumed extraordinary sacrifices and the greatest risks.”

“The progress made in recent years [2014-2016], based on absolute sovereign equality and mutual respect, which are now reversed; They showed tangible results and that civilized coexistence, within the deep differences between governments, is possible and beneficial for both.”

“The [U.S.] blockade [embargo] and financial persecution harden, cause deprivation to our people and violate human rights, but the isolation of the US government throughout the world, in American society itself and in Cuban emigration also grows with respect to that genocidal policy, obsolete and unsuccessful.”

“The international rejection of the occupation of our territory in Guantánamo by the Naval Base and the detention and torture center located in it increases equally. [The U.S.] suffers total discredit [of] the pretext to reduce the staff of the Embassies and affect the right to travel of Cubans and Americans.”

“Next April 19, in the year 150 of our independence fights, with the constitution of a new National Assembly of the Popular Power will culminate the general elections. Cubans and Cubans, especially the youngest, closely linked to the Party of the nation, founded by Martí and Fidel; together with Raúl, we will commemorate the victory against the mercenary aggression of Playa Girón [Bay of Pigs], firm, confident and optimistic.”

Vice President Pence[4]

 On April 14, as the last scheduled speaker at the Summit, Vice President Mike Pence touched on many issues. He said the following about Cuba.

A ”tired communist regime continues to impoverish its people and deny their most fundamental rights in Cuba.  The Castro regime has systematically sapped the wealth of a great nation and stolen the lives of a proud people.  Our administration has taken decisive action to stand with the Cuban people, and stand up to their oppressors.”

“No longer will the United States fund Cuba’s military, security and intelligence services — the core of that despotic regime.  And the United States will continue to support the Cuban people as they stand and call for freedom.”

“But Cuba’s dictatorship has not only beset its own people, as we all well know — with few exceptions in this room acknowledging that.  Cuba’s dictators have also sought to export their failed ideology across the wider region.  And as we speak, they are aiding and abetting the corrupt dictatorship in Venezuela.”

Earlier Vice President Pence met with  Rosa María Payá, daughter of the late Cuban dissident Oswaldo Payá, who told him about Cuba Decide, a movement that promotes political change in Cuba through peaceful mobilization and the holding of a binding plebiscite whereby the Cuban people would decide their political system. Payá said, “What the Cuban people want is freedom, what the Cuban people want is to decide on another system.” Pence told her that he admires “enormously the courage” that her father had, “his commitment to freedom in Cuba” and her “courage” with her current “important work. ‘We are with you for the freedom of the Cuban people,’

Reply by Cuba Foreign Minister[5]

Invoking the right of reply, Cuba Foreign Minister Rodríguez had these additional comments on April 14.

“The Vice President of the [U.S.] seems ill-informed, ignores reality, hides the truth. I want to ask Mr. Pence directly if the Monroe Doctrine guides his government or not, in his policy toward Latin America. I want to respond with words from Bolívar: ‘The United States seems destined by Providence to plague America with miseries in the name of freedom.’ I want to quote Marti: ‘What I did up to now, and I will do, is to prevent the United States from spreading through the Antilles and falling with that force more on the lands of America.’”

“I reject the insulting references to Cuba and Venezuela and the humiliating attitude for Latin America and the Caribbean that [the U.S.] has assumed. The moral vacuum of the government of the [U.S.] cannot be, it is not a reference for Latin America and the Caribbean.”

“In the last 100 years they bear the responsibility for the most brutal abuses against human rights and human dignity. All the despotic governments in the region, all without exception, have been imposed or have received support from the government of the [U.S.], including the most cruel military dictatorships. Shameful acts like Operation Condor[6] or the bloody coup d’état in Chile[7] are about the conscience of North American governments.”

“Mr. Pence’s country has been the first and the only one to use the nuclear weapon against innocent civilians. It is responsible for criminal wars and hundreds and hundreds of thousands of deaths, massacres of civilians, including children, women and the elderly, which they call collateral damage. It is responsible for acts of torture, disappearances, extrajudicial executions and kidnappings.”

“The government of the [U.S.] is the author of massive, flagrant and systematic violations of the human rights of its own African-American citizens, of Hispanics, of migrants and of minorities. It is a shame for humanity that in this country of extreme wealth there are tens and tens of millions of poor people. They have a differentiated racial pattern in their prisons and the application of the death penalty is where most judicial errors associated with the execution of people occur; It is where students are killed by guns, whose lives were sacrificed to the imperative of political lobbying, particularly in Florida”

“The government of the [U.S.] has received tens and tens of millions of dollars from the arms lobby, and a Miami senator [Marco Rubio] has received no less than 3 million for the same concept. Miami is where the political mafias are, where confessed international terrorists take refuge and is also the place of the famous electoral fraud of the year 2000.”

“Mr. Pence has not said, when he talks about corruption, that his country is the center of the laundering of financial assets of drug trafficking and the smuggling of arms to the south that destabilizes entire countries. The electoral system that has elected him and the legislature, in which he has served for a long time, is corrupt by nature, because it is supported in an unusually legal way in corporate financial contributions and the so-called Political Action Committees.”

“It is the [U.S.] government that imposes a fierce protectionism, which does not take into account that it will ruin industry, agriculture and employment throughout our region. It is where the political lobby has imposed the idea that climate change is an anti-American invention. It is the political and electoral system where there has been scandalous traffic with the private data of tens of millions of its citizens.”

“If [the U.S.] government were interested in the well-being, human rights and self-determination of Cubans, it could lift the blockade, collaborate with our international cooperation, instead of sabotaging it, and give funds to Cuban medical collaboration programs in the world and literacy programs.”

Mr. Pence “has referred insultingly to Cuba. I respond with the text of the Proclamation of Latin America and the Caribbean as a Zone of Peace, signed in Havana by the Heads of State of Latin America and the Caribbean in 2014, whose principles include the inalienable right of peoples and States to freely give their own political, economic, social and cultural system.”  I also respond with a paragraph of the historical document signed at the time of this event, at the José Martí International Airport in Havana, by His Holiness Pope Francis and by His Holiness Patriarch Kirill . . .:’Our fraternal encounter has taken place in Cuba, at the crossroads between North and South, East and West. From this island, symbol of the hopes of the New World and of the dramatic events of 20th century history … ‘”

“We are a few hours away from the 57th anniversary of the [Bay of Pigs] bombing of US planes at airports in Cuba, in which Cubans died in defense of our independence and sovereignty, in whose farewell to duel the socialist character of the Cuban Revolution was proclaimed, and It is surprising that, f[after] so many decades, Vice President Pence has come here to use the same language that led governments of that time to carry out this terrible event.”

“The events that have taken place in recent years [2014-2016] show that coexistence between the United States and Cuba is possible, productive and can be civilized. For that, do not wait for him, nor the delegation that now occupies the seat that he has just left, for Cuba to give up one millimeter of its principles, nor cease in its efforts to build socialism.”

Conclusion

Unfortunately these verbal skirmishes are to be expected in the Age of Trump at gatherings like the Summit. Now we all will see whether this week’s election of Cuba’s new President of the Council of State will lead to any changes in at least the rhetoric between the two countries. Also unfortunately most observers, including this blogger, do not anticipate any immediate changes.

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[1] Torres, OAS secretary general: ‘We cannot allow the Cuban people to continue to be oppressed,’ Miami Herald (April 13, 2018).

[2] Bruno Rodríguez at Summit of the Americas: “Cuba will not accept threats or blackmail from the United States, CubaDebate (April 14, 2018).

[3]  Then Secretary of State Rex Tillerson on February 1,  2018, in response to a professor’s question said that U.S. citizens had “forgotten about the importance of the Monroe Doctrine and what it meant to this hemisphere and maintaining those shared values. So I think it’s as relevant today as it was the day it was written.” (See Secretary Tillerson’s Provocative Comments About Latin America, dwkcommentaries.com (Feb. 7, 2018).)

[4] White House, Remarks by Vice President Pence at First Plenary Session of the Summit of the Americas (April 15, 2018); Mike Pence to Rosa María Payá: ‘We are with you for the freedom of the Cuba people,’ Diario de Cuba (April 14, 2018).

[5] Cuban foreign Minister: the US government cannot be a reference for Latin America, CubaDebate (April 15, 2018); The Cuban regime repeats its script in Lima: it says that “it will not negotiate anything or yield a millimeter, Diario de Cuba (April 14, 2018).

[6] Operation Condor was  campaign of political repression and state terror in Latin American countries involving intelligence operations and assassination of opponents, mainly civilians, originally planned by the CIA in 1968 and officially implemented in 1975 by the right-wing dictatorships of the Southern Cone region of South America.(Operation Condor, Wikipedia.)

[7] In 1973 Chili’s military deposed its President Salvador Allende and his government. In 2000 the U.S. Intelligence Community released a report that stated, “Although CIA did not instigate the coup that ended Allende’s government on 11 September 1973, it was aware of coup-plotting by the military, had ongoing intelligence collection relationships with some plotters, and—because CIA did not discourage the takeover and had sought to instigate a coup in 1970—probably appeared to condone it.” (1973 Chilean coup d’état, Wikipedia.)

 

U.S.-Cuba Relations Discussed in U.N. Proceedings

During the week of September 18-22, U.S.-Cuba relations was one of many topics of discussion at the U.N. General Assembly and the U.N. Security Council. Here are those details.

U.S. Statements

 As discussed in a prior post, on September 19, U.S. President Donald Trump delivered a lengthy speech to the General Assembly that, in part, criticized Cuba. He said,

  • The U.S. “ has stood against the corrupt and destabilizing regime in Cuba and embraced the enduring dream of the Cuban people to live in freedom.  My administration recently announced that we will not lift sanctions on the Cuban government until it makes fundamental reforms.”
  • “From the Soviet Union to Cuba to Venezuela, wherever true socialism or communism has been adopted, it has delivered anguish and devastation and failure.  Those who preach the tenets of these discredited ideologies only contribute to the continued suffering of the people who live under these cruel systems.”

The next day (September 20) U.S. Vice President Mike Pence appeared at the Security Council to support reform of the U.N. peacekeeping function and to vote in favor of a resolution to that effect that was adopted that day.[1] Here is a photograph of the Vice President and U.S. Ambassador Nikki Haley at the Council.

He also said the following about Cuba:[2]

  • To “keep the peace most effectively, this body must have the credibility to pursue peace by advancing the cause of human rights. It’s no coincidence that some of the most dangerous regimes in the world are also some of the worst abusers of human rights.”
  • “That was the purpose under which the U.N. Human Rights Council was formed. But the truth is, the Human Rights Council doesn’t deserve its name. As we look at the membership of the council today, we see nations that betray these timeless principles upon which this institution was founded. Today, the United Nations Human Rights Council actually attracts and welcomes many of the worst human rights violators in the world. A clear majority of the Human Rights Council’s members fail to meet even the most basic human rights standards. [One of them is Cuba,] an oppressive regime that has repressed its people and jailed political opponents for more than half a century.” (Emphasis added.)

The Vice President added that the Security Council “must reform the Human Rights Council’s membership and its operation. . . .   [The U.S. calls] on the Security Council and this entire body to immediately embrace reforms of the membership and practices of the Human Rights Council and end the [latter’s] blatant bias against our cherished ally Israel.”[3]

Cuba’s Response

The Cuban response to both of these U.S. statements was provided in a speech at the General Assembly on September 22 by Cuba’s Foreign Minister, Bruno Rodriguez Parrilla, as shown in the following photograph. [4]

The following are his lengthy comments about these speeches and other aspects of the U.S.-Cuba relationship:

  • The U.N.’s “2030 Agenda for Sustainable Development lacks the means for its implementation, due to the egoism and lack of political will of the [U.S.] and other industrialized countries.”
  • “What is the miraculous recipe that President Donald Trump recommends to us in the absence of the financial flows of the Marshall Plan? Who will contribute the resources for that? How can this be reconciled with the ‘America First’ idea advanced by Presidents Reagan and Trump?”
  • “President Trump ignores and distorts history and portrays a chimera as a goal to be pursued. The production and consumption patterns . . . of neoliberal capitalism are unsustainable and irrational and will inexorably lead to the destruction of the environment and the end of the human species.”
  • “Can anyone forget about the consequences of colonialism, slavery, neocolonialism and imperialism?”
  • “Could the several decades of bloody military dictatorships in Latin America be referred to as an example of a successful capitalism? Does anyone know of any recipe of neoliberal capitalism that has been better applied than those which destroyed the Latin American economies in the 1980s?”
  • “It is both indispensable and urgent for the [U.N.] to work in order to establish a new participatory, democratic, equitable and inclusive international economic order, as well as a new financial architecture that take into account the needs and peculiarities of developing countries and the asymmetries that exist in world trade and finances as a result of centuries of exploitation and plundering”
  • “Industrialized countries have the moral duty, the historical responsibility as well as sufficient financial and technological means for that.”
  • “Not even the rich will enjoy the announced prosperity if climate change is not stopped. Cuba regrets the decision taken by the government of the [U.S.], which has been historically the principal greenhouse-gas emitting government in the planet, to withdraw its country from the Paris Agreement.”
  • “The U.S. government has come here to tell us that, in addition to prosperity, the other two ‘beautiful pillars’ of international order are sovereignty and security.”
  • “We all share the common responsibility to preserve the existence of human beings in the face of a nuclear threat. An important contribution to the achievement of that goal was the historical adoption of the Treaty on the Prohibition of Nuclear Weapons . . . , which proscribe the use and the threat of use of those weapons that have the capacity to annihilate the human species. Obviously, the [U.S.] strongly opposed this treaty. It announced that it will invest 700 billion dollars in military expenditures and is developing an extremely aggressive nuclear and military doctrine based on the threat to use and the use of force.”
  • “NATO member States [act] against international peace and security and International Law by promoting military interventions and non-conventional wars against sovereign States.”
  • “The illegal imposition of unilateral coercive measures and the use of financial, legal, cultural and communicational instruments to destabilize governments as well as the denial of peoples’ right to self-determination have become customary.”
  • “The covert use of . . . [Information and Communications Technology] to attack other States increases, while several developed countries strongly oppose the adoption of international treaties that would regulate cooperation in order to achieve a safe cyberspace.”
  • “The U.S. President manipulates the concepts of sovereignty and security to his exclusive benefit and to the detriment of all others, including his allies. The attempt to resort to military threats and force to stop the irreversible world trend to multi-polarization and polycentrism will seriously jeopardize international peace and security, which should be defended and preserved through international mobilization.”
  • “The principles of sovereign equality, respect for the territorial integrity and non-interference in the internal affairs of States should be observed. The UN Charter and International Law admit no re-interpretation.”
  • “The [U.N.] reform should pursue the principal goal of responding to the pressing needs of peoples and the great disadvantaged majorities. Multilateralism should be protected and reinforced in the face of the imperialist interests of domination and hegemony.The democratization of the Security Council, both in terms of its composition and its working methods, is a most urgent task. The strengthening of the General Assembly and the recovery of the functions that have been usurped from it are indispensable.”
  • “The ‘patriotism’ invoked in the U.S. statement is a perversion of humanism, the love and loyalty to the homeland and of the enrichment and defense of national and universal culture. It embodies an exceptionalist and supremacist vision of ignorant intolerance in the face of diverse political, economic, social and cultural models.”
  • “In developed countries, the loss of legitimacy of political systems and parties worsens and electoral abstentionism is on the rise. Corruption, whether legal or illegal, has turned into metastasis. So is the extreme case of the so-called ‘special interests’ or corporate payments in exchange for benefits in the country that spends the highest amount of money in electoral campaigns and where, paradoxically, a candidate with the lowest number of popular votes can be elected or entitled to govern with a negligible support by voters.”
  • There has been an increasing and unheard-of use of science and technology to exercise hegemony, mutilate national cultures and manipulate human behavior, as is the case of the so-called ‘big data’ or psychometry, used for political and advertising purposes. Seven consortia keep a strict control of whatever is read, watched or heard in the planet. Technologies are being monopolized. The governance of digital networks is dictatorial and discriminatory and, despite appearances, the digital divide between rich and poor countries is increasing.”
  • “The opportunities and rights of youths, migrants and workers are curtailed and their human rights are openly and systematically violated”
  • On September 20, “U.S. Vice-President, Michael Pence, ridiculously ignoring the functions of the Security Council and attempting to establish new prerogatives, said that [the Security Council] should modify the composition and methods of the U.N. Human Rights Council, which ‘doesn’t deserve its name’ because ‘a clear majority of the Human Rights Council members fail to meet even the most basic human rights standards.’ I suppose he is not including, in this case, his own country, which will in fact deserve to be included because of its pattern of systematic violations of human rights, namely the use of torture, arbitrary detentions and imprisonment–as occurs at the Guantanamo Naval Base–, the assassination of African-Americans by law enforcement agents, the killing of innocent civilians perpetrated by its troops and the xenophobia and repression against immigrants –including minors– as well as its scarce adherence to international instruments.”
  • “On June 16, . . . President Trump announced the new Cuba policy of his administration, which is a setback in U.S.-Cuba bilateral relations and undermines the bases established two years ago to advance towards a new type of relation between our countries, characterized by respect and equality. The U.S. Government has decided to tighten the economic, commercial and financial blockade by imposing new obstacles to the already limited possibilities its business community had to trade with and invest in Cuba as well as additional restrictions on U.S. citizens willing to travel to our country.”
  • “Those decisions ignore the support from broad sectors in the U.S., including the majority of Cuban émigrés, to the lifting of the blockade and the normalization of relations. They only serve the interests of a group of Cuban origin, based in South Florida, which is an ever more isolated and minoritarian group that insists in harming Cuba and its people for having decided to defend, at all costs, the right to be free, independent and sovereign. Today we reiterate our condemnation of the measures aimed at tightening the blockade and reaffirm that any strategy intended to destroy the Revolution will fail.”
  • “Likewise, we reject the manipulation of the human rights issue against Cuba, which has a lot to be proud of and has no need to receive lessons from the [U.S.] or anyone.”
  • We “express our strongest condemnation of the disrespectful, offensive and interventionist statement against Cuba and the Cuban government, made [by President Trump]. We remind him that the [U.S.], where flagrant human rights violations are committed, which raise deep concern among the international community, has no moral authority to judge my country. We reaffirm that Cuba will never accept any preconditions or impositions, nor will it ever renounce any of its principles.”
  • “Regarding the alleged incidents that. . . have affected U.S. diplomatic officials in Havana we categorically affirm that the Cuban government rigorously and seriously abides by its obligations under the Vienna Convention on Diplomatic Relations in relation to the protection and the integrity of all diplomats without any exception, including those from the [U.S.] Cuba has never perpetrated nor will it ever perpetrate actions of this sort. Cuba has never allowed nor will it ever allow its territory to be used by third parties with that purpose. The Cuban authorities, based on the preliminary results of the priority investigation that is being carried out with a high technical component, following instructions from the top level of our government, has taken into account the data contributed by the U.S. authorities and so far has found no evidence whatsoever that could confirm the causes or the origin of the health disorders referred to by U.S. diplomats and their relatives. The investigation to clarify this issue continues, and in order to be able to arrive to a conclusion, it will be crucial to count on the cooperation of the U.S. authorities. It would be unfortunate if a matter of this nature is politicized.”
  • “As was expressed by the Cuban President Raul Castro Ruz, Cuba is willing to continue negotiating all pending bilateral issues with the United States, on the basis of equality and absolute respect for the sovereignty and independence of our country; and maintaining a respectful dialogue and cooperation in areas of common interest with the U.S. government.”
  • “Cuba and the [U.S.] can cooperate and coexist, respecting their differences and promoting everything that benefits both countries and peoples, but no one should expect Cuba to make concessions that affect its sovereignty and independence.”
  • “The Cuban people will not cease in their legitimate claim for the lifting and total elimination of the economic, commercial and financial blockade and will continue to denounce the strengthening of that policy. In November Cuba will once again present to the [U.N.] General Assembly [a resolution for ending the U.S. blockade of Cuba]. “

Conclusion

The above comments by President Trump and Vice President Pence, while not surprising from their administration, are a most unfortunate retreat from the efforts by President Obama and President Castro to normalize the two countries’ relations and abandon U.S. hostility towards the island.

The U.N. Human Rights Council was created by the U.N. General Assembly on March 15, 2006, by resolution 60/251. Therefore, it seems unlikely that the U.N. Security Council has any authority to make changes in the structure of the Human Rights Council, and Vice President Pence’s suggestion that this be done seems inappropriate unless it was intended as a call for the Security Council to recommend that this be done.

The lengthy comments by Cuba’s Foreign Minister Rodriguez are also not surprising with perhaps one exception. With respect to the medical problems of some U.S. diplomats stationed in Cuba, he said, “The investigation to clarify this issue continues, and in order to be able to arrive to a conclusion, it will be crucial to count on the cooperation of the U.S. authorities. It would be unfortunate if a matter of this nature is politicized.” All reports to date have indicated that the two countries are cooperating on investigating these issues, and the Foreign Minister’s comment seems to suggest that future U.S. cooperation was questionable. Is this so? If so, that would be most unfortunate and inadvisable for many reasons. The statement about  the possible U.S. politicization of this issue is also surprising unless it was an indirect reference to the letter to the Trump Administration by five Republican U.S. Senators led by Senator Marco Rubio (FL) that called for several U.S. actions against Cuba over this problem, including closure of the U.S. Embassy in Havana, as was discussed in an earlier post.

This coming November there will be a General Assembly debate and vote on Resolution A/72/50 42: Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba.[5] It is widely assumed that this will be adopted by an overwhelming margin; the similar resolution last year passed, 191-0 (with two abstentions by the U.S. and Israel), as discussed in a prior post.

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[1] U.N. Security Council, Resolution 2378 (2017).

[2] White House, Remarks by the Vice President to the UN Security Council (Sept. 20, 2017); Assoc. Press, Pence Applauds UN Resolution on Peacemaking Reform, N.Y. Times (Sept. 20, 2017); Reuters, Pence Tells U.N. That America First Does Not Mean America Alone, N.Y. Times (Sept. 20, 2017).

[3] The same day (September 20) the U.N. Human Rights Council in Geneva, Switzerland issued a reprimand of Cuba while U.S. and Cuba representatives traded comments on Cuban human rights. This will be discussed in a subsequent post.

[4] Rodriguez, Cuba will never accept any preconditions or impositions (+ Video), Granma (Sept. 22, 2017); Reuters, Cuba Urges U.S. Not to Politicise Allegations of Harmed Diplomats, N.Y. Times (Sept. 22, 2017); Assoc. Press, Cuban Official: Still No Clue on US Diplomat Health Issue, N.Y. [InformationTimes (Sept. 22, 2017).

[5] U.N., Report of the Secretary-General, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba, No. A/72/94  (July 26, 2017)

Developments Regarding U.S. Diplomats Serving in Cuba

On September 19, the U.S.-Cuba Bilateral Commission held its sixth meeting, this time in Washington, D.C. The official statements about the closed meeting do not reveal much of the substance of the discussion.[1]

One of the subjects of the meeting was the medical incidents involving U.S. diplomats in Cuba.

The U.S. statement about the meeting stated there was discussion regarding “the incidents affecting diplomatic personnel at the U.S. Embassy in Havana. The [U.S.] reiterated its deep concern for the safety and security of the U.S. Embassy community in Havana and the urgent need to identify the cause of these incidents and to ensure they cease.”[2]

According to Cuban Foreign Ministry, the Cuban delegation also addressed the alleged incidents. They “reiterated that Cuba is strictly complying with its obligations as regards the protection of diplomats, which has never . . . perpetrated actions of this nature, nor has it permitted its territory to be used by third parties for that purpose.” Finally, the Cuban delegation “emphasized that the Cuban authorities have a great interest in clarifying this matter and concluding the investigation that is underway, at the suggestion of the highest level of government, for which the cooperation of the American authorities is essential.”

In addition, the Cuban statement said its delegation “reiterated its rejection of the backwardness of bilateral relations, measures to intensify the blockade and interference in internal affairs; confrontational rhetoric and political manipulation of the human rights issue that was used as a pretext to justify them, as well as the constraints that seek to condition an improvement in bilateral ties to the realization of changes in our constitutional order.”  It also “referred to the consequences of this change in the [U.S.] policy for relations between the two countries, including the effects it causes to various sectors in the [U.S.].”. (Emphasis added.)

Nevertheless, the Cuban delegation reportedly reaffirmed “their willingness to continue a respectful dialogue with the US government, . . . to actively implement the bilateral agreements signed in the last two years.” They alsotransferred concrete actions proposals from several Cuban entities to advance cooperation in areas of mutual benefit such as environmental protection, law enforcement, health, agriculture, hydrography and geodesy, among others.” (Emphasis added.)

The U.S. statement also said the U.S. “reviewed the Administration’s priorities and areas for engagement in the interests of the [U.S.] and the Cuban people, including human rights; implementation of the Migration Accords; and protecting the national security and public health and safety of the [U.S.].”

This meeting occurred simultaneously with President Trump’s speech at the U.N. General Assembly that included brief comments about Cuba and that will be discussed in a subsequent post. However, at the Bilateral Commission meeting the Cuban delegation registered a “strong protest;” about what it termed the “disrespectful, intrusive and unacceptable . . . speech.”

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[1] U.S. State Dep’t, United States and Cuba Hold Sixth Bilateral Commission Meeting in Washington, D.C. (Sept. 20, 2017); Cuban Foreign Ministry, Held in Washington VI Meeting of the Bilateral Commission Cuba-United States (Sept. 19, 2017); Assoc. Press, Cuba Again Denies Role in ‘Health Attacks’ on US Diplomats, N.Y. Times (Sept. 19, 2017); Assoc. Press, US to Press Concerns Over Incidents in Meeting with Cubans, N.Y. Times (Sept. 18, 2017). The so-called “Bilateral Commission” sessions were started as part of the process of normalization between the two countries since December 17, 2014, and have been discussed in prior posts: U.S.-Cuba Bilateral Commission Sets Agenda for Future Discussion of Remaining Issues (Sept. 12, 2015); Results of Second Meeting of U.S.-Cuba Bilateral Commission (Nov. 11, 2015); United States-Cuba Bilateral Commission Meets To Review Normalization Status (May 18, 2016); U.S. and Cuba Hold Another Meeting of the Bilateral Commission (Sept. 30, 2016).

[2] CBS News reported that one of the Americans suffering from an incident was the Regional Security Officer, who was the head of security at the U.S. Embassy in Havana. It also said closure of the Embassy was unlikely although there could be reductions of personnel. (CBS News, Investigation continues into attacks on State Dept. officials in Havana (Sept. 18, 2017).

 

 

 

President Barack Obama’s Second-Term Record Regarding Cuba, 2013-2014

In light of President Barack Obama’s historic December 17th announcement of rapprochement with Cuba, It is interesting to examine Obama’s earlier statements and actions about Cuba. Prior posts examined his campaign for the Democratic Party’s presidential nomination in 2007-2008; his campaign for the the presidency as the Democratic Party’s nominee in 2008; his first presidential term, 2009-2013; and his presidential re-election campaign of 2012. Now we look at the first two years of his second presidential term, 2013-2014. [1]

In November 2012, as we have seen in a prior post, President Obama won reelection with 48% of the Cuban-American vote.

The next month (December 2012), as a prelude to his second term, Obama instructed aides to make Cuba a priority and “see how far we could push the envelope.” The President also concluded that “it would be a good fit to have someone who was known to be very close to the President [involved in such an effort on Cuba] because the Cubans are very wary of engagement and they want to know that the engagement is reaching the top. They felt like there [had] been several other efforts of engagement where it turned out . . . where they had conversations with the Americans, [but after] they reached a certain point . . . there was never follow through [by the U.S.]. . . . [In short, the Cubans] wanted someone . . . [involved for the U.S.] who were very close to the President and . . . they wanted it to be discreet.” Hence, the President designated Ben Rhodes, a Deputy National Security Advisor, to be in charge of this new effort to engage Cuba.

Thereafter, Mr. Rhodes sent a secret message to the Cuban government that the U.S. wanted “to initiate a dialogue about prisoners and other issues.” As we will see below, this created a fascinating contrast between the Administration’s public negative face on Cuba and its secret negotiations with the latter.

Obama’s Second Term, 2013

President Obama's Oath of Office, Jan. 2013
President Obama’s Oath of Office,    Jan. 2013
U.S. Capitol for President Obama's Inauguration, Jan. 2013
U.S. Capitol for President Obama’s Inauguration, Jan. 2013

 

 

 

 

 

On January 21, 2013, President Obama was inaugurated for his second term as President. Most of his Inaugural Address was focused on domestic concerns, but he did say, “We will show the courage to try and resolve our differences with other nations peacefully—not because we are naïve about the dangers we face, but because engagement can more durably lift suspicion and fear.” He made no reference to Cuba.

That same month, January 2013, we recently have come to know, Ricardo Zuniga, Obama’s top Latin American adviser, went to Miami and met with a representative of the anti-Castro Cuban American National Foundation and with young Cuban-Americans, the latter of whom helped confirm the waning influence of older Cuban exiles who have traditionally supported the half-century-old embargo. (Zuniga in 2001 as a State Department staffer contributed to its National Intelligence Estimate that officially concluded, for the first time, that the embargo of Cuba had been a failure.)

On April 19, 2013, the U.S. Department of State released its Country Reports on Human Rights Practices for 2012, and again it had a negative assessment of Cuba: it is “an authoritarian state” with the following “principal human rights abuses . . .: abridgement of the right of citizens to change the government; government threats, intimidation, mobs, harassment, and detentions to prevent free expression and peaceful assembly; and a record number of politically motivated and at times violent short-term detentions.”

By April 2013, however, we now know that the White House was ready to proceed with the Cubans by quietly proposing back-channel talks after learning that Havana would be receptive. Obama initially froze out the State Department on these developments in part due to concern that its “vested interests” would still be bent on perpetuating a confrontational approach. Even Secretary of State John Kerry was informed of the talks only after it appeared they might be fruitful.

On May 29, 2013, the plight of Alan Gross again emerged as a distracting element when a federal district court dismissed his lawsuit against the U.S. for $60 million alleging the government and its private contractor sent him on five semi-covert trips to Cuba without proper training, protection or even a clear sense of the Cuban laws that ultimately led to his arrest and detainment. Experts said the dismissal had been widely expected because of a rule barring lawsuits against the American government based on consequences suffered in foreign countries.[2]

The next day (May 30, 2013) the U.S. Department of State released its Country Reports on Terrorism 2012. Again Cuba was a designated “state sponsor of terrorism,” but the asserted grounds were very weak: there was no indication Cuba “provided weapons or paramilitary training to terrorist groups;” Cuba “has committed to adopting and implementing” anti-money laundering recommendations by an international group; but Cuba continued to provide support to certain U.S. fugitives.

In any event, the secret U.S.-Cuba negotiations started in June 2013 in Ottawa, Canada. The Cubans opened with harangues about the embargo and other perceived wrongs. Rhodes, age 37, responded, “Look I wasn’t even born when this policy was put in place. We want to hear and talk about the future.” The Cubans in these initial sessions also insisted on an exchange of the remaining three of “The Cuban Five” in U.S. prison for U.S. citizen, Alan Gross, in Cuban prison. Obama refused such a deal because Washington denied Gross was a spy and because Obama did not want a three-for-one trade. As a result by the end of 2013, the negotiations had stalled.

On December 3, 2013, Alan Gross’ imprisonment again surfaced as an important issue when his wife read a public letter from him to President Obama asking, “Why am I still here? With the utmost respect, Mr. President, I fear that my government, the very government I was serving when I began this nightmare, has abandoned me.” A White House spokesman responded by saying Mr. Obama had “personally engaged foreign leaders and other international figures to use their influence with Cuba” to free Mr. Gross.[3]

Barack Obama & Raul Castro
Barack Obama & Raul Castro

That same month, December 2013, something publicly happened that we now know had a positive effect on the secret U.S.-Cuba negotiations. At the funeral for Nelson Mandela in South Africa on December 15th, President Obama met and shook hands with President Raùl Castro, which at the time some in the U.S. criticized. Moments after the handshake Obama addressed the funeral gathering, talking about Mandela’s demonstrating the need for trust and reconciliation and forgiveness. Some at the time wondered whether his remarks might also apply to the apparently frozen diplomatic relationship between the U.S. and Cuba, but White House officials declined to offer any explanation of the handshake or confirm that there had been a discussion about whether to offer [an explanation].” [4]

Obama’s Second Term, 2014

In early January 2014 the U.S. and Cuba, with public notice, resumed negotiations from the prior July about migration, which the State Department said “does not represent any change in policy towards Cuba” and which journalists saw as “a signal of the longtime Cold War foes’ recent willingness to engage in areas of mutual interest but unlikely to be a harbinger of a major thaw in relations.” Afterwards Cuba said, “”The meeting took place in a respectful environment. An analysis was made of the status of compliance with the migration accords in force between both countries, including the actions taken by both parties to combat illegal migration and aliens smuggling.”[5]

At the January 2014 secret negotiation session in Toronto, said Mr. Rhodes, “the Cubans started [with just want[ing] their people back—the three Cubans who were imprisoned in the [U.S.] – [in exchange for their release of Alan Gross.] In response the U.S. proposed – to the Cubans’ surprise – Cuba’s releasing Rolando Sarraff, a spy for the U.S. who had been imprisoned in Cuba since 1995, and thereby enabling the U.S. to claim it was a true “spy swap” and giving it political cover. But the Cubans dis not immediately agree to release Sarraff, a cryptographer who Washington says helped it disrupt Cuban spy rings in the U.S.

At this January meeting Rhodes “started talking . . . about how we wanted to change the relationship. And then they started talking about some of the things that they were considering doing in terms of their own system.” However, “the idea of reestablishing diplomatic relations was not something that was . . . immediately attractive to them. . . . [T]hey’re very comfortable in a position of being an opposition to the[U.S.]. They have built the legitimacy in part [for] much of their approach around the fact that they’re resisting [purported] American aggression. So it was not a no-brainer by any stretch of the imagination for the Cubans to agree to a process of normalization and to an establishment of diplomatic relations.”

Nevertheless, according to Rhodes, the U.S. “came to the view of in the discussions . . . that if we were going to take these very difficult steps of having this prisoner exchange where we get a Cuban intelligence asset of ours and Alan Gross to be released [and] they would get these three Cubans, . . . we needed to broaden the scope of what we are talking about.” The two countries “would have one opportunity to make a big move together and . . . we should try to do as much as we could in that space. And that led to them taking certain confidence-building measures like the release of . . . political prisoners [on a list] that we provided to them, [and] that led to . . . this discussion of setting out a process of normalization . . . [and] to a discussion of establishing diplomatic relations and sending a signal to the world that essentially we are willing to leave the past behind.”

At the same time, according to Rhodes, the U.S. “made very clear in every meeting, we’re going to have differences with your political system. We are going to find much to criticize, we are going to continue [the U.S.] democracy program, we’re going to continue [to criticize] your human rights practices. It doesn’t mean we like everything you do, but we are going to get farther by engaging with this government and opening up Cuba so that there can be more business, more American travel, more engagement between the American and Cuban people. That holds out a lot greater promise to promote the things we care about than the alternative.”

Also at this secret January session in Toronto, the Cubans gratefully remarked that President Obama had treated President Castro with respect at the Mandela funeral the prior month by shaking Raúl’s hand and that no [prior U.S. president or other official had] done that before. Rhodes responded by saying “not only was it the appropriate thing to do–you see someone why would you snub them and not shake his hand. If the Cubans have the right to be any place, it’s certainly at the funeral of Nelson Mandela who[m] they helped in many ways.”

In early February 2014 reporters for Reuters concluded that U.S. relations with Cuba were “at their best in almost two decades, but President Barack Obama seems unwilling or unable to confront a well-organized anti-Cuba lobby and push for further progress.”[6] Reuters obviously did not know about the secret negotiations then going on.

On February 27, 2014, the U.S. Department of State released its Country Reports on Human Rights Practices for 2013, and again it had a negative assessment of Cuba: it is “an authoritarian state” with the following “principal human rights abuses: . . . abridgement of the right of citizens to change the government and the use of government threats, extrajudicial physical violence, intimidation, mobs, harassment, and detentions to prevent free expression and peaceful assembly.”

While the U.S. proposal for Cuba’s release of Sarraff was still on the table, but not yet accepted by Cuba, President Obama held a secret White House meeting in February 2014 with certain lawmakers, including Democratic Senators Patrick Leahy and Dick Durbin. Obama stressed his opposition to a straight Gross-Cuban Three trade and Durbin “raised the possibility of using the Vatican and the Pope as intermediaries.” Thereafter Senator Leahy confidentially persuaded two unnamed Roman Catholic cardinals to ask Pope Francis to raise Cuba and the prisoners when the Pontiff was scheduled to hold a private audience with Obama on March 27th.

President Obama & Pope Francis
President Obama & Pope Francis

That private papal audience did occur on March 27, and immediately afterwards, as discussed in a prior post, the Vatican reported that “during the cordial meetings [with President Obama], views were exchanged on some current international themes and it was hoped that, in areas of conflict, there would be respect for humanitarian and international law and a negotiated solution between the parties involved.” We now know that this was an allusion to their discussion about U.S.-Cuba relations.

Also immediately after that private audience President Obama made comments that in retrospect also alluded to their conversations about Cuba. The President said the Pope and he “had a wide-ranging discussion.“[W]e spent a lot of time talking about the challenges of conflict and how elusive peace is around the world. . . . [W]e also touched on regions like Latin America, where there’s been tremendous progress in many countries, but there’s been less progress in others. . . . [T]he theme that stitched our conversation together was a belief that in politics and in life the quality of empathy, the ability to stand in somebody else’s shoes and to care for someone even if they don’t look like you or talk like you or share your philosophy — that that’s critical.  It’s the lack of empathy that makes it very easy for us to plunge into wars.  It’s the lack of empathy that allows us to ignore the homeless on the streets.  And obviously central to my Christian faith is a belief in treating others as I’d have them treat me.  And . . . [what has] created so much love and excitement for His Holiness has been that he seems to live this, and shows that joy continuously.” The President added, “ I was extremely moved by his insights about the importance of us all having a moral perspective on world problems and not simply thinking in terms of our own narrow self-interests.”

Soon after the March Audience, Pope Francis secretly sent the two presidents letters, appealing to both to keep pushing for an agreement.

On April 2, 2014, Alan Gross’s name started to appear in the news again as he commenced a hunger strike in his Cuban prison “to object to mistruths, deceptions, and inaction by both governments, not only regarding their shared responsibility for my arbitrary detention, but also because of the lack of any reasonable or valid effort to resolve this shameful ordeal. Once again, I am calling on President Obama to get personally involved in ending this standoff so that I can return home to my wife and daughters.” Later that month he terminated his hunger strike, and his U.S. lawyer reported that Gross had lost most vision in his right eye, walks with a limp due to hip problems, has lost a tooth and is 110 pounds lighter than at the time of his arrest. Moreover, Gross says in another year he will be dead if he stays in the Cuban prison. Later in June he was threatening to commit suicide.[7]

On April 30, 2014, the U.S. Department of State released its Country Reports on Terrorism 2013. Again Cuba was a designated “state sponsor of terrorism,” but the asserted grounds were very weak: there was no indication Cuba “provided weapons or paramilitary training to terrorist groups;” Cuba continued to provide support to certain U.S. fugitives. Cuba’s Foreign Ministry retorted that it “energetically rejects the manipulation of a matter as sensitive as international terrorism by turning it into an instrument of policy against Cuba and it demands that our country be definitively excluded from this spurious, unilateral and arbitrary list.”[8]

Another public distraction emerged in April 2014 with the Associated Press reports of a  covert or “discreet” program of the U.S. Agency for International Development (USAID) that created in Cuba a social media effort to encourage communications among dissidents. Four months later the AP reported about other USAID programs in Cuba with similar aims. [9]

In June 2014 the Pope sent additional private letters to Obama and Castro calling on them to resolve the cases of Alan Gross and the three Cubans in U.S. prison and also encouraging the two countries to pursue a closer relationship. The letter from Pope Francis, U.S. officials said after December 17th, “gave us greater impetus and momentum for us to move forward. ” This appeal from the Pope was ‘very rare’ and unprecedented. The Pope, acted as a “guarantor” that both sides would live up to the terms of a secret deal.

As the Vatican put it in its press statement on December 17th, “In recent months, Pope Francis wrote letters to . . . [the two presidents] and invited them to resolve humanitarian questions of common interest, including the situation of certain prisoners, in order to initiate a new phase in relations between the two Parties.”

Francis’ involvement also provided Obama with potential political coverage against any future criticism by Cuban-American (and Roman Catholic) Senators Robert Menendez (Dem., NJ) and Marco Rubio (Rep., FL) and others.

In the meantime, the U.S. public stance towards Cuba remained unchanged. In early October 2014, Cuba publicly stated it had not received any indication the Obama administration might change U.S. policy toward Cuba despite increasing support within the United States for closer ties. We now know that this was a false report designed to conceal their ongoing secret negotiations.[10]

On October 28, 2014, the U.N. General Assembly again condemned the U.S. embargo of Cuba by a vote of 188 to the 2 negative votes cast by the U.S. and Israel. At this session Cuba asserted that the embargo had damaged its economy in the total amount of $1.1 trillion.

Also in October 2014 the New York Times began what became a series of editorials through mid-December 2014 that called for normalization of the two countries’ relations, commended Cuba for its medical teams in West Africa that were fighting Ebola, called for prisoner exchanges and criticized the USAID programs in Cuba, the U.S. special immigration status for Cuban medical personnel and the U.S. designation of Cuba as a “state sponsor of terrorism” while reiterating its advocacy of normalization. One wonders whether the Times had advance tips or inklings that the Obama Administration soon would be announcing a major shift in U.S. policies toward Cuba and whether the Times was preparing the country for the changes.

Behind the scenes in October 2014 (before the U.S. mid-term elections) the deal was secretly finalized in Rome, where the U.S. and Cuban teams met separately with Vatican officials, then all three teams together. According to the Vatican’s press statement on December 17th, “The Holy See received Delegations of the two countries in the Vatican last October and provided its good offices to facilitate a constructive dialogue on delicate matters, resulting in solutions acceptable to both Parties.”

In early December Rhodes and Zuniga secretly met the Cubans again at the Vatican to nail down logistics for the December 17 announcements of prisoner releases, easing of U.S. sanctions, normalization of U.S.-Cuba relations and Cuba’s freeing of 53 political prisoners.

Pressures for an announcement as soon as possible at the end of 2014 were several. The health of Alan Gross was reportedly declining in a Cuban prison, and President Obama and Secretary of State John Kerry legitimately believed that reconciliation would be destroyed if he died in that prison. Delaying the announcement also ran the risk of a leak of the existence of the secret negotiations that would upset, if not destroy, the reconciliation. Less immediate was the upcoming Summit of the Americas in April 2015 with the U.S. needing to have a positive position on host country Panama’s invitation to Cuba to attend the Summit.

In addition, U.S. domestic political considerations pointed towards a December announcement before the Republican-controlled 114th Congress opened in early January and as soon as possible (the next day) after the adjournment of the 113th so that there would be no resulting interference with the completion of the many items of unfinished business of the current Congress. December also is the traditional time for exercise of presidential clemency (pardons and commutation of sentences), the latter of which was used for the release of the remaining three of the Cuban Five on December 17th.

As noted in a prior post, President Obama as part of his December 17th announcement of rapprochement with Cuba acknowledged that “His Holiness Pope Francis” had supported these measures and thanked the Pope, “whose moral example shows us the importance of pursuing the world as it should be, rather than simply settling for the world as it is.” In particular, the President said, “His Holiness Pope Francis issued a personal appeal to me and to Cuban President Raul Castro urging us to resolve Alan [Gross]’s case and to address Cuba’s interest in the release of three Cuban agents who have been jailed in the United States for over 15 years.”

Similarly Cuban President Raúl Castro in his December 17th remarks to the Cuban people said, “I wish to thank and acknowledge the support of the Vatican, most particularly the support of Pope Francisco, in the efforts for improving relations between Cuba and the United States.”

Immediately after the December 17th announcements by Presidents Obama and Castro, Pope Francis publicly expressed his “his warm congratulations for the historic decision taken by the Governments of the United States of America and Cuba to establish diplomatic relations, with the aim of overcoming, in the interest of the citizens of both countries, the difficulties which have marked their recent history.” The Pontiff also said, “The Holy See will continue to assure its support for initiatives which both nations will undertake to strengthen their bilateral relations and promote the wellbeing of their respective citizens.”

This initiative with Cuba, recently said Rhodes, is an example of what he called “the Obama doctrine and our whole foreign policy. We have to reposition the United States to be able to lead in this century. . . . We have been trying steadily to reposition the [U.S.], to refocus on the Asia-Pacific through the TPP agreement to withdraw that resource allocation and put in place a more sustainable counterterrorism policy that doesn’t eliminate risk but manages it and aims to prevent attacks on the [U.S.].

Conclusion

The Obama Administration’s conducting 24-months of secret negotiations with the Cuban government without any leak is an amazing accomplishment. One example of this lack of outside knowledge is a 2014 book by Chuck Todd, NBC’s noted Washington political reporter who reportedly knows everything that is going on, that says, “There has been little effort to engage or open Cuba, even as the end of the Castro brothers’ regime approaches. In fact, Cuba’s a great example of Obama’s famous caution. While he has been unusually critical of American policy toward Cuba, he won’t use his executive power to make a change.”[11] Sorry, Chuck, you were so very wrong.

These negotiations were without preconditions, just as then candidate Obama had urged when he was campaigning for the Democratic Party’s presidential nomination in 2007-2008. Here too he was hit with charges that such a strategy was misguided and naive. But, I submit, it is the only rational strategy after 50-plus years of trying the opposite approach when, in my opinion, many of what we in the U.S. see as Cuban human rights violations are Cuba’s understandable defensive reactions to a long record of U.S. hostility and aggression against Cuba.

While all of this was going on, U.S. public opinion polls showed increasing support for normalization of U.S.-Cuba relations, and new groups supporting normalization or reconciliation were emerging. Especially in 2014, on the other hand, the Obama Administration was compelled to react to news about the USAID’s purported pursuit of Cuban democracy through various “discreet” or covert programs. Guantanamo Bay also kept in the news with disputes about detainee transfers and Obama’s continuing efforts to close its detention facility. Of course, strident cries objecting to any normalization or reconciliation continued to come from Senators Rubio, Cruz and Menendez and from Representatives Ileana Ros-Lehtinen and Mario Diaz-Balart.

After the December 17 announcement, as recounted in many subsequent posts, the two countries engaged in publicly announced negotiations on many subjects; the U.S. loosened regulations about U.S. trade with, and travel to, the island; the U.S. rescinded its designation of Cuba as a “state sponsor of terrorism;” many U.S. politicians and business officials traveled to Cuba to observe and discuss future prospects; and bills were introduced in Congress to end the U.S. embargo and restrictions on travel to the country while die-hards in that body offered measures to try to prevent or stall normalization and reconciliation. As everyone recognizes, however, the job of normalization is just starting.

As President Obama put it in his January 20, 2015, State of the Union Address to the Congress, the American people and the world,“I believe in a smarter kind of American leadership.  We lead best when we combine military power with strong diplomacy; when we leverage our power with coalition building; when we don’t let our fears blind us to the opportunities that this new century presents.  That’s exactly what we’re doing right now.  And around the globe, it is making a difference.”

“In Cuba, we are ending a policy that was long past its expiration date.  When what you’re doing doesn’t work for 50 years, it’s time to try something new. And our shift in Cuba policy has the potential to end a legacy of mistrust in our hemisphere.  It removes a phony excuse for restrictions in Cuba.  It stands up for democratic values, and extends the hand of friendship to the Cuban people.  And this year, Congress should begin the work of ending the embargo.”

“As His Holiness, Pope Francis, has said, diplomacy is the work of ‘small steps.’ These small steps have added up to new hope for the future in Cuba.  And after years in prison, we are overjoyed that Alan Gross is back where he belongs.  Welcome home, Alan [, who was in the public gallery with First Lady Michelle Obama].  We’re glad you’re here.”

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[1] Ultimately after public release of many Obama Administration documents after the completion of his presidency, scholars will undertake a detailed examination of those documents and provide their assessments of his record regarding Cuba. Now a preliminary assessment is possible based upon the following: William M. LeoGrande & Peter Kornbluh, Back Channel to Cuba: The Hidden History of Negotiations between Washington and Havana (Univ. North Carolina Press; Chapel Hill, NC; 2014);  President Barack Obama’s Inaugural Address (Jan. 21, 2013); Shear, Obama Reaches Out to Cuba’s Leader, but the Meaning May Elude Grasp, N.Y. Times (Dec. 10, 2013). Initial information about the secret negotiations is found in Reuters, How Obama Outmaneuvered Hardliners and Cut a Cuba Deal, N.Y. Times (Mar. 23, 2015) and Rhodes, The Obama Doctrine: America’s Role in a Complicated World, Aspen Ideas Festival (June 29, 2015).

[2] Cave, American Contractor Held in Cuba Loses a Lawsuit, N.Y. Times (May 29, 2013);

[3] Reuters, Contractor Jailed in Cuba Appeals to Obama to Press for Release, N.Y. Times (Dec. 3, 2013).\.

[4] Hauser, The Distraction of a Handshake in South Africa, N.Y. Times (Dec.10, 2013).

[5] Assoc. Press, U.S., Cuba to Hold Migration Talks in Havana, N.Y. Times (Jan. 8, 2014); Reuters, Cuba, U.S. Meet on Migration in Latest Sign of a Thaw (Jan. 9, 2014); Assoc. Press, US Official: Cuba Migration Talks Productive, N.Y. Times (Jan. 10, 2014).

[6] Reuters, U.S. Policy Change on Cuba Stalled by Obama, N.Y. Times (Feb. 6, 2014)

[7] Assoc. Press, American Imprisoned in Cuba Begins Hunger Strike, N.Y. Times (April 8, 2014); Assoc. Press, Lawyer: US Man Held in Cuba Seeks to Go Home Soon, N.Y. Times (April 23, 2014); Reuters, American Jailed in Cuba Plans Suicide, Lawyer Says, N.Y. Times (June 25, 2014).

[8] Reuters, Cuba Calls Terrorism Designation by U.S., Absurd, Manipulative, N.Y. Times (May 1, 2014).

[9] The USAID programs were discussed in posts on April 4, 9 and 9 and August 12, 13 and 14.

[10] Reuters, Havana Sees No Sign Obama Will Change U.S. Policy on Cuba, N.Y. Times (Oct. 8, 2014). A previous post criticized U.S. “stupidity” and “cowardice” in making this designation of Cuba as a “state sponsor of terrorism.”

[11] Chuck Todd, The Stranger: Obama in the White House at 484 (Little Brown & Co.; New York; 2014).

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

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

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

Zivotofsky v. Kerry

The Facts

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

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

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

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

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

The Opinion of the Court [2]

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

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

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

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

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

Reactions to the Court’s Decision

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

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

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

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

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

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

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

Conclusion

Maybe this legal discussion is beside the point.

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

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

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

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

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

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

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

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

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

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

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