More Details on Cuba’s Foreign Tourism

During the first quarter of 2018, 95,520 U.S. citizens visited Cuba, which was 40 percent fewer than came in the same quarter of 2017. This “is hurting this island’s access to hard cash and setting back the effort to reestablish ties between U.S. citizens and Cubans.“.[1]

The Cubans most adversely affect by this decline are ”the very Cubans the Trump administration has vowed to defend here — small-business owners looking to inject a dose of the free market into the economy.” They are “Airbnb hosts, the owners of small restaurants and art galleries, and tour operators.” Indeed, “unlike many European visitors to Cuba, the American newcomers largely eschewed the package tours that corralled tourists at big, beachfront hotels and assembly-line restaurants. Instead, the Americans spent more time exploring the colonial streets of Old Havana on their own” and patronizing the newer privately-owned businesses

Yes, there has been an increase in foreigners arriving on the island on cruise ships, 177,000 this quarter versus 38,000 in 2017’s first quarter, but they “spent relatively little money onshore.”[2]

Another positive development for Cuban tourism generally, but not the Cuban entrepreneurs, according to the Reuters article, are recent announcements of new hotels by foreign “hospitality companies including Spain’s Melia Hotels International and Iberostar Hotels & Resorts; Singapore’s Banyan Tree Holdings Ltd., Apollo Global Management LLC’s Diamond Resorts International Inc.;” and “Louvre Hotels SAS, a French subsidiary of China’s state-owned Jinn Jiang International Hotels Development Co, one of the world’s largest.”

The construction of such new hotels, however, is “generally carried out jointly with the Cuban Government and especially with the military , which controls a good part of the island’s tourism sector.” For example, “there are currently five new five-star hotels under construction in Havana, owned by the Gaviota Corporation -a military company-, and will be administered by foreign firms.”[3]

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[1] Faiola, In Cuba, the Great American tourism boom goes bust, Wash. Post (May 11, 2018); Drop in Foreign Tourists for Cuba, dwkcommentaries.com April 25, 2018).

[2] Reuters, Despite Hurricanes and Trump, Cuba Retains Charm for Foreign Tourism Firms, N.Y. Times (May 11, 2018).

[3] The Government and the military will continue to make cash with tourism, Diario de Cuba (May 11, 2018).

Update on Congressional Actions Regarding Cuba 

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

National Defense Authorization Act FY 2016[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

U.S. House Approves Impediments to U.S.-Cuba Reconciliation

In early June the U.S. House of Representatives approved two appropriations bills that contain impediments to U.S.-Cuba reconciliation. Both of these sets of impediments are the handiwork of Cuban-American Congressman Mario Diaz-Balart (Rep., FL), a fierce opponent of such reconciliation and a member of the House Committee on Appropriations.

Commerce Department Appropriations Act, FY 2016[1]

On June 3, the House, by a vote of 242-183, approved the Commerce, Justice, Science Appropriations bill for FY 2016 (H.R. 2578) to fund the Department of Commerce, the Department of Justice, the National Aeronautics and Space Administration, the National Science Foundation and other related agencies. The bill contains $51.4 billon in total discretionary funding.

The Committee’s press release about this action said nothing about a provision that prohibits U.S. exports to the Cuban military. That is Section 540 (pp. 97-98 of the 98-page bill), which states as follows:

  • “(a) No funds made available in this Act may be used to facilitate, permit, license, or promote exports to the Cuban military or intelligence service or to any officer of the Cuban military or intelligence service, or an immediate family member thereof.
  • (b) This section does not apply to exports of goods permitted under the Trade Sanctions Reform and Export Enhancement Act of 2000 (22 U.S.C. 7201 et seq.).
  • (c) In this section—(1) the term ‘‘Cuban military or intelligence service’’ includes, but is not limited to, the Ministry of the Revolutionary Armed Forces, and the Ministry of the Interior, of Cuba, and any subsidiary of either such Ministry; and (2) the term ‘‘immediate family member’’ means a spouse, sibling, son, daughter, parent, grandparent, grandchild, aunt, uncle, niece, or nephew.”

Representative Sam Farr (Dem, CA) on June 3 made a motion to delete this provision, but it was defeated, 153-273. He argued that section 540 would apply so broadly with its definitions that it would constrain trade with Cuba. He said, “It hurts American businesses, and it hurts Cubans. Let’s stop living in the past.”

Section 540 and the defeated amendment were prominent in Congressman Diaz-Balart’s press release about the House’s passage of this bill. He said, “I strongly support . . . the provision that prohibits exports to the Cuban military. I firmly opposed the [defeated] amendment which would have stripped that common sense provision.”

The provision (Section 540), Diaz-Balart asserted, “ensures that exports to Cuba accomplish precisely that goal [of U.S. goods reaching the Cuban people].  Certainly the supporting of the Cuban people must not include channeling goods to the Cuban military and intelligence service that oppress them through arbitrary arrests, violence, intimidation, and unjust imprisonments.”

Moreover, according to Diaz-Balart, the Cuban military “engages in illegal weapons smuggling, subverts democratic institutions in Venezuela, and assists foreign terrorist organizations and other rogue regimes such as North Korea.  Furthermore, The Florida Congressman asserts, “several Members of the Cuban military remain under indictment for the murder of innocent U.S. citizens. Exports delivered to the Cuban military will do nothing to benefit the Cuban people, but can only directly fund the oppressive arm of the Castro dictatorship that remains a malevolent actor on the world stage.”

Diaz-Balart’s fellow Cuban-American Republican colleague from Florida, Ileana Ros-Lehtinen, another strong opponent of U.S.-Cuba reconciliation, issued a similar statement.

Another provision of the bill (Section 528) prohibits construction or modifying U.S. facilities to accommodate transferred Guantanamo detainees. A motion to delete this provision by Representative Jerry Nadler (Dem., NY) was defeated by a voice vote.

Transportation Department Appropriations Act, FY2016 [2]

The House on June 9, by a 216-210 vote, passed the FY 2016 appropriations bill for the Departments of Transportation, Housing and Urban Development and related agencies (H.R.2577). According to the House Appropriations Committee, it allocates $55.3 billion targeted at transportation, infrastructure and housing programs of national need and significance.

An earlier post quoted sections 193 and 414 of the bill that barred air or maritime travel to Cuba if they used property that had been expropriated without compensation by the Cuban government.[3]

During a June 4 debate on this bill the House defeated, 176-247, an amendment offered by Representative Barbara Lee (Dem., CA), to delete these two sections that adversely would affect the impact of the new regulations issued by the Department of Commerce this January to expand travel. Lee argued theses provisions were “wrong for diplomacy . . .[and] patently anti-business.”

Another supporter of this amendment was Representative Mark Sanford (Rep., SC), the author of a bill to expand U.S. travel to Cuba (H.R.664), who argued that travel to Cuba should not be equated with supporting the Castro regime.

This Cuba provision is also the work of Representative Diaz-Balart, who said on June 4 that the Obama administration was wrong to lift the travel restrictions, saying that the flights would land at an airport that was partly owned by American interests when it was seized by the Castro government.“What you are saying is, ‘It’s O.K. to do business on property that was stolen from Americans.’ ” However, he added, “supporting the Cuban people does not include . . . facilitating the unlawful use of stolen properties that were illegally confiscated from Americans.”[4]

Diaz-Balart’s fellow Cuban-American Republican colleague from Florida, Ileana Ros-Lehtinen issued a similar statement.

The White House has threatened to veto the bill, in part because of this Cuba-related provision.

Conclusion

The congressional Republicans apparently have decided to ignore the desires of a majority of the American people and of Cuban-Americans, as demonstrated by numerous public opinion polls, to have improved relations with Cuba and as discussed in posts on February 12 and 17. Instead, the congressional Republicans apparently have hitched their wagon to the hysterical voices of their Cuban-American members. I deplore this defiance of public opinion.

 

The congressional Republicans also apparently have forgotten the 1964 decision of the U.S. Supreme Court regarding Cuba’s expropriation of property, Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398 (1964). There the court decided that the judicially-created act of state doctrine prevented U.S. courts from adjudicating a claim that the Cuban expropriation violated international law. According to the Court, ”the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.”[5]

Important to that conclusion in Sabbatino was the Court’s opinion that at least in 1964, “There are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state’s power to expropriate the property of aliens. There is, of course, authority, in international judicial and arbitral decisions, in the expressions of national governments, and among commentators for the view that a taking is improper under international law if it is not for a public purpose, is discriminatory, or is without provision for prompt, adequate, and effective compensation.”

However, according to the Court in Sabbatino, “Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. Certain representatives of the newly independent and underdeveloped countries have questioned whether rules of state responsibility toward aliens can bind nations that have not consented to them, and it is argued that the traditionally articulated standards governing expropriation of property reflect ‘imperialist’ interests, and are inappropriate to the circumstances of emergent states. The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations, and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations.”

I also deplore the congressional Republican tactic of attaching their out-of-touch Cuba prescriptions to appropriations bills and thereby risking partial government shutdowns if the President vetoes such measures.

The U.S. should be doing all it can to advance the cause of U.S.-Cuba reconciliation. Unfortunately the Republicans’ shrill rhetoric about the Cuban expropriation of U.S. property without compensation and its insertion of provisions on the subject into appropriations bills do nothing whatsoever to advance the Administration’s existing efforts to engage Cuba in negotiations about compensation for such expropriation and, if necessary, to litigate such U.S. claims before the Permanent Court of Arbitration.

In the meantime, supporters of U.S.-Cuba reconciliation should urge their Senators to seek to delete the previously mentioned Cuba provisions in these appropriations bills. Senators’ contact information is available on the Internet.

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[1] This section of the post is based upon the following: House Appropriations Comm., Press Release: House Passes Fiscal Year 2016 Commerce, Justice, Science Bill (June 3, 2015); H.R.2578: A Bill Making appropriations for the Departments of Commerce and Justice, Science, and Related Agencies for the fiscal year ending September 30, 2016, and for other purposes (May 27, 2015); House Appropriations Comm., Report on H.R.2578 (No. 114-130) (May 27, 2015); Library of Congress, THOMAS, H.Amdt.308 to H.R.2578 [Farr amendment] (June 3, 2015); Library of Congress, THOMAS, H.Amdt.306 to H.R.2578 [Nadler amendment]; Marcos & Shabad, House passes fourth ’16 appropriations bill, The Hill (June 3, 2015); Marcos, House votes to block exports to Cuban military, The Hill (June 3, 2015); Diaz-Balart, Press Release: U.S. Resources Must Not Be Funneled through Castro’s Regime’s Military and Intelligence Services (June 3, 2015); Ros-Lehtinen, Press Release: House of Reps. Overwhelmingly Votes to Oppose Farr Amendment and Supports Not Doing Business with the Cuban Military and Cuban Intelligence Service (June 3, 2015).

[2] This section of the post is based upon the following: House Appropriations Comm., Press Release: Fiscal Year 2016 Transportation, Housing and Urban Development Appropriations Bill Passes House (June 9, 2015); Library of Congress, THOMAS, H.R.2577; Library of Congress, THOMAS, H.Amdt.404 to H.R. 2577 [Lee amendment]; Marcos & Shabad, House passes funding for transportation, housing, The Hill (June 9, 2015); Assoc. Press, House GOP Measure Would Cut Amtrak by $242M, N.Y. Times (June 9, 2015); Assoc. Press, G.O.P.-Led House Votes to Keep Curbs on American Travel to Cuba, N.Y. Times (June 4, 2015);Taylor, Republican-Led House votes against easing travel to Cuba, Wash. Post (June 4, 2015); Marcos, House rejects easing Cuba travel restrictions, The Hill (June 4, 2015); Diaz-Balart, Press Release: Historic, Bipartisan Votes in House Reject President Obama’s Policy of Appeasement of the Castro Regime (June 4, 2015); Ros-Lehtinen, Press Release: House of Representatives Stands Up For U.S. Citizens and Defeats Lee Amendment That Would Have Condoned Cuban Trafficking in Confiscated American Property (June 4, 2015).

[3] There also are two pending stand-alone bills (S.1388 and H.R.2466) that would limit U.S.-Cuba reconciliation because of the unresolved U.S. claims for compensation for expropriated property, as discussed in a prior post.

[4] The June 9 Diaz-Balart press release on the House adoption of “the Diaz-Balart bill” was focused on the bill’s prioritization of “the nation’s infrastructure and housing needs.” It also reiterated his trumpeting of the bill’s provisions about Cuba: “The common sense provisions in the bill, which prohibit new flights to Cuba and deny licenses to marine vessels that use property confiscated from Americans, further core American values and safeguard the property rights of Americans.  We must not permit the exploitation of properties stolen by the Castro regime, which is expressly prohibited in U.S. law.”

 

[5] The opinion of the Court in Sabbatino was written by Mr. Justice John Marshall Harlan, II and was joined by Chief Justice Earl Warren and Justices Black, Douglas, Clark, Brennan, Stewart and Goldberg. Mr. Justice White dissented on the ground that the act of state doctrine should not apply and that the U.S. courts should resolve the case on the merits. The Supreme Court’s decision was criticized in Congress, which passed the so-called Second Hickenlooper Amendment (or Sabbatino Amendment) that provided that U.S. courts are not to apply the Act of State Doctrine as a bar against hearing cases of expropriation by a foreign sovereign unless the Executive requests that the courts consider the Act of State Doctrine because foreign policy interests may be damaged by judicial interference. The Amendment was retroactive and subsequently was found constitutional by the district court and the complaint in Sabbatino was dismissed.