Objections to the U.S.’ Cuba Internet Task Force

The original post about the U.S. establishment of the Cuba Internet Task Force (CITF) set forth the objections from Granma, the official newspaper of the Communist Party of Cuba, and two Cuban journalists (Sergio Gomez and Randy Alfonso Falcón) and another post focused on the Cuban Government’s objections to the CITF.

Now other objections have been registered by Cuban and other sources

Cuban Objections

Cuban objections came from representatives of its independent media and more from journalists Sergio Gomez and Randy Alonso Falcon.

Cuban Independent Media [1]

The day before the CITF’s inaugural meeting, Reuters reported from Havana that there are now “a handful of web-based news outlets in recent years in Cuba in the wake of the expansion of internet and broader social and economic freedoms. . . .These new outlets have been tolerated as long as they are not ‘counter-revolutionary’” and “have been chipping away at a half-century state monopoly, offering independent reporting and winning prestigious journalism prizes.”

Several representatives of these independent media, according to Reuters, have expressed opposition to the CITF.

Elaine Díaz, 32, in 2015 founded Periodismo de Barrio which focuses on the environment. She said, “We are not just talking about something that heightens tension in the country’s political situation but . . . [the CITF] could also damage the credibility of the independent media.” She added that “her outlet would refuse any money that the Trump program might award because in Cuba, people who receive aid from the U.S. government are branded mercenaries. These media are called independent, and that means independent of Cuban authorities as well as any other government.”

José Jasán Nieves, 30, director of El Toque, an online platform that focuses on entrepreneurship and citizenship, offered this comment. The CITF was “damaging us by giving arguments to [Cubans opposed to the independent media] … who are trying to link us to the enemy to minimize our presence in Cuban society.” Trump’s new policies were damaging the normalization of relations initiated by the Obama Administration.

Miguel Alejandro Hayes, 22, who writes for the outlet La Joven Cuba (The Young Cuba), said, “Trump’s policy is aimed at destruction: toppling the Cuban government. We don’t agree with that,” as elaborated in its open letter complaining to the State Department.

Sergio Gomez [2]

Gomez provides two additional comments.

In the first he says, “Although the State Department tries to camouflage its . . . [CITF] as a philanthropic project to improve access to the network of networks in . . .  [Cuba], the list of participants in the first [CITF] meeting . . . betrays its true intentions.”

One participant, the Office of Cuba Broadcasting, “is the umbrella of Radio and TV Martí, two relics of the Cold War designed to issue enemy propaganda and carry out psychological operations against Cuba. Millions of dollars of American taxpayers have been wasted in the failed projects of this organization, [which has been] subjected to several audits for corruption scandals and embezzlement.”

Another participant, U.S. Agency for International Development (USAID), ”is the public arm of the CIA and financier of subversive projects against Cuba such as ZunZuneo and Commotion, whose disclosure by the press was a shame for the US authorities due to its ineffectiveness and violation of international laws.”

“If we take into account the history of those who make up . . .  [CITF], nothing good can be expected.”

The second offering from Gomez with Iramsy Peraza Forte as co-author states that “the U.S. has been using communications technologies to attack Cuba ever since the age of shortwave radios and the emergence of television.” Indeed, “From psychological warfare propagated by the mass media to unconventional warfare, which has been adapted to the internet age, Cuba has been a test site for U.S. schemes designed to overthrow governments which do not respond to its interests.”

They then provide a list starting from March 17, 1960, of 14 U.S. schemes  to do just that in Cuba before the CITF. Here are the ones specifically involving the Internet:

  • In 2004, the “Commission for Assistance to a Free Cuba . . .is created . . . to identify additional ways to hasten an overthrow of the ‘Cuban regime.’” It proposes  to ‘encourage willing third-country governments to create public access Internet facilities in their missions in Cuba” and to expand “‘the distribution of information and facilitate pro-democracy activities,” and “‘greater access to these types of equipment’ in order to do so.”
  • In 2006 the “Cuba Fund for a Democratic Future was created, providing 24 million USD worth of funding for anti-Cuban propaganda, including online initiatives.”
  • In February 2006 the State Department  “creates the Global Internet Freedom Task Force, specifically aimed at ‘maximizing freedom of expression and free flow of information and ideas’ in China, Iran and Cuba.”
  • In December 2009 “U.S. citizen Alan Phillip Gross [is] arrested [in Cuba] for bringing illegal communication devices into Cuba as part of a USAID program. In March 2011 Gross was [convicted and sentenced by a Cuban court for violating Cuban law] to 15 years imprisonment.” On December 17, 2014, Gross was released from prison and returned to the U.S. “following the announcement of a process of rapprochement between the two countries.”
  • In March 2011 Cuban officials discovered and stopped the U.S. “Operation Surf,” which “consisted of smuggling equipment and software into the country to install illegal antennas to access the internet.”
  • In April 2014 USAID financed the launch of ZunZuneo, which “was designed as a messaging network similar to Twitter through which thousands of Cubans [eventually] would receive “political content aimed at inspiring Cubans to organize mass demonstrations akin to ‘smart mobs’ to destabilize the country.”
  • Also in April 2014 the U.S. “Office of Cuba Broadcasting (OCB) which oversees Radio and TV Martí, launched a service similar to ZunZuneo.”
  • In September 2016 OCB “organized the ‘ . . . [for] independent” journalists from the island and digital innovators and activists who support the use of new technologies to bring about a regime change in Cuba.”

Randy Alonso Falcon [3]

In CubaDebate, Randy Alonso Falcon attacked the CITF premise that Cuba has subnormal access to the internet and information. He asserts, “there are more than 4 million Cubans who access the internet services through various means, among them tens of thousands of students, professors, health workers, journalists, scientists and other workers who receive free connectivity by virtue of their professional needs.”

Moreover, according to Falcon, “Cuba was the fastest growing country in social networks last year, according to the  Digital in 2017 Global Overview report . [It] highlights the growth of new users in the networks-with more than 2.7 million new users and 365% increase over the previous year-and the use of mobile phones to access social networks had 2.6 million new users and an increase of 385%.” Falcon also provides graphics to emphasize the rapid growth in Cuban access to the internet.

“Much remains to us to advance in the utilization of the new technologies, and especially in his better [means] to attain productivity and economic efficiency; but it will not be with Trump’s interventionist and subversive plans that we will achieve it. Political disposition, created talent, unity of action, culture and knowledge, will be our best weapons in that sovereign walk along the roads of the Internet. Without fear, with amplitude, with better contents and greater connectivity, but without naiveties.”

Other Objections [4]

Alan Gross, the previously mentioned U.S. citizen who was arrested, convicted and imprisoned in Cuba for illegally bringing communications equipment to the island, has objected to the CITF.  “My first response was ‘Are you kidding me?’ We are supposed to learn from our mistakes. I learned the hard way that it’s illegal to distribute anything in Cuba that’s funded in full or part by the U.S. government. Until the government of Cuba wants the kind of assistance United States is capable of providing, the United States shouldn’t be doing stuff there.” 

Cuba expert Ted Henken at Baruch College in New York, author of Freedom House’s annual report on Cuba, said, “”The solution proposed by the Trump administration is perhaps even worse than the disease. It will likely empower not the independent media or citizens but only the Cuban government to more easily justify the unjustifiable – more control and repression of independent media and unmediated access to information.”

Conclusion

The CITF is based upon the false and illegal premise that the U.S. unilaterally may and should decide what Internet services Cuba or any other country should have and then take unilateral steps to provide those services and equipment. Instead the U.S. should politely ask Cuba or any other country whether there was any way the U.S. could assist in improving their Internet service.

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[1] Reuters, Cuban Independent Media Say No Thanks to Trump Free Press Initiative, N.Y. Times (Feb. 6, 2018).

[2] Gomez, Operational Force on the Internet Against Cuba: the same as always with the same objectives, Granma (Feb. 7, 2018); Peraza Forte & Gomez, Internet wars: U.S. plans to  overthrow the Cuban Revolution with new technologies, Granma (Feb. 8, 2018). Many of the previous U.S. covert efforts to promote regime change in Cuba have been discussed in posts listed in the “U.S. Democracy Promotion in Cuba” section of List of Posts to dwkcommentaries–Topical: CUBA

[3] Falcon, US Special Group for the Internet meets to draw the digital guidelines of subversion (+Inforgraphics and Video), CubaDebate (Feb. 7, 2018).

[4] Reuters, Ex-Cuba Prisoner Gross Criticizes U.S. Plan to Foster Internet on Island, N.Y. Times (Feb. 4, 2018); Reuters, Trump Task Force on Expanding Cuba Internet Meets for First Time, N.Y. Times (Feb. 7, 2018). 

U.S.’ Cuba Internet Task Force Holds Inaugural Meeting  

On February 7, the U.S.’ Cuba Internet Task Force (CITF) held its inaugural meeting in Washington, D.C., published its Charter and launched its website. As discussed in a prior post, this group burst onto the scene on January 23 with a State Department announcement of its creation “to promote the free and unregulated flow of information in Cuba” and expand “internet access and independent media in Cuba.”

Now we examine the CITF’s membership, inaugural meeting, Charter and website.

CITF Membership[1]

The CITF is chaired by Deputy Assistant Secretary for Western Hemisphere Affairs John S. Creamer, a foreign service officer with a distinguished career of service in Latin America. Other members are officials of the Office of Cuba Broadcasting, which operates TV and Radio Marti; the Federal Communications Commission; the Department of Commerce’s National Telecommunications and Information Administration; the U.S. Agency for International Development; Freedom House; and the Information Technology Industry Council.

CITF Inaugural Meeting[2]

Chair Creamer said estimates show internet penetration in Cuba is between 5 percent and 40 percent, with the higher figure including those who only can access government-run internet. He said the $1 per hour cost for wi-fi is onerous considering the average salary of roughly $30 per month. For internet access at home, Cubans must pay $17 to $80 per month, depending on speed, for only 30 hours of connectivity, Creamer said. He also claimed that  Cuba’s government uses “filters and blocks websites in a bid to impede the Cuban people’s ability to criticize government institutions and policies.”

Tom Sullivan, chief of the FCC’s International Bureau, said there are no direct, undersea cables between the U.S. and Cuba, though he said there appear to be some U.S. satellites providing service in the island.

Apparently at the meeting, Andre Mendes, acting director of the Broadcasting Board of Governors’ Office of Cuba Broadcasting, declared, “Mr. Castro, tear down this firewall.”

The CITF decided to form two subcommittees: one to explore the role of media and freedom of information in Cuba, and the other to explore Internet access in Cuba. The subcommittees will provide the task force a preliminary report of recommendations within six months (by the end of August) based on input from relevant experts and stakeholders. The task force agreed to reconvene in October to review the preliminary reports, after which it will prepare a final report with recommendations for the Secretary of State and the President.

At the end of the meeting, the public was invited to make comments. Several Cuban dissidents lambasted Cuba’s government, drawing comparisons to World War II and to the governments of Syria and Iran. Others centered on a critique of the decades-old U.S. economic embargo and Trump’s policy toward Cuba. Some argued that any U.S. efforts would backfire, by undermining the perceived independence and credibility of burgeoning independent media in Cuba.

CITF Website[3]

In addition to repeating the information about the CITF’s  inaugural meeting and membership, the website has links to its Charter and Membership Balance Plan.

More importantly, it provides a form for submission of public comments. 

CITF Charter and Membership Balance Plan[4]

The Charter provides that the “Task Force will examine the technological challenges and opportunities for expanding internet access in Cuba, including through federal government support of programs and activities that encourage freedom of expression through independent media and internet freedom so that the Cuban people can enjoy the free and unregulated flow of information.”

According to the Membership Balance Plan, the CITF shall have no more than 12 members, of whom 10 shall be from relevant U.S. federal government departments and agencies. The other two shall be (a) a representative from an internet-related non-governmental organization and (b) a representative from an internet-related private-sector entity.

Conclusion

A subsequent post will examine reactions to the CITF and its inaugural meeting.

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[1] U.S. State Dep’t, Inaugural Meeting of the Cuba Internet Task Force (Feb. 7, 2018).

[2] Assoc. Press, ‘Tear Down This Firewall’—US Looks to Expand Cuba Internet, N.Y. Times (Feb. 7, 2018). 

[3] U.S. State Dep’t, Website: Cuba Internet Task Force.

[4] U.S. State Dep’t, Charter of the Cuba Internet Task Force (Dec. 4, 2017); U.S. State Dep’t, Membership Balance Plan, Cuba Internet Task Force (Nov. 1, 2017).

U.S. State Department’s 2015 Human Trafficking Report’s Objectivity About Cuba Is Still Unresolved

On July 27 the U.S. Department of State released its 2015 Trafficking in Persons Report, which upgraded Cuba from Tier 3 (a country that did “not fully comply with the [Trafficking in Persons Protection Act] minimum standards and [was] not making significant efforts to do so”) to Tier 2.Watch List (a country that did not fully comply with [that statute’s] minimum standards, but [was] making significant efforts to bring [itself] into compliance with those standards).[1] A prior post reviewed that report’s discussion of Cuba and expressed disagreement with its assertion that Cuban medical personnel’s participation in foreign medical missions was illegal forced labor.

Since then there has been congressional criticism and concern about that report’s upgrading of several countries, including Cuba, as seen in recent congressional hearings.

The most recent hearing was on November 4, before a House of Representatives subcommittee. Most of the hearing was devoted to the report’s upgrading of Malaysia, Uzbekistan and China.[2]

Alex Lee
Alex Lee

Cuba’s upgrade was the focus of the testimony at this hearing by Alex Lee, Deputy Assistant Secretary of State in the Bureau of Western Hemisphere Affairs. He testified that the shift in U.S.-Cuban relations did not influence the decision on Cuba. “It was completely separate,” he told the subcommittee.

Mark Lagon
Mark Lagon

This assessment of Cuba was challenged by the testimony at this hearing of Mark Lagon, the President of Freedom House. He stated that “Freedom House ranks Cuba as ‘Not Free’” and that the Department’s “grounds for an upgrade are deeply questionable.” Indeed, Lagon said, the Department’s report itself undercuts any rationale for an upgrade when it states: (a) “The penal code does not criminalize all forms of human trafficking on paper, not to speak of enforcement.” (b) “The Cuba regime did not even dissemble and claim any ‘efforts to prevent forced labor’ nor ‘any trafficking-specific shelters.” Moreover, according to Lagon, “It is far-fetched to suppose that there is no forced labor in state enterprises or for political prisoners in one of the world’s few remaining Marxist-Leninist states. Also, a burgeoning sex industry – welcoming sex tourism – fuels exploitation, despite steps the Report notes taken by Cuba to address sex trafficking.”

Rep. Chris Smith
Rep. Chris Smith

The attitude towards Cuba of this subcommittee’s chair, Christopher Smith (Rep., NJ), was revealed in his press release on July 27 (the date of the release of the 2015 TIP report), when he said, “For political reasons alone, President Obama has done a grave disservice to victims of human trafficking in Cuba . . . by upgrading the human trafficking tier rankings in those countries in the annual Trafficking in Persons report.” He added,  “It seems quite clear that . . . Cuba’s unchecked march to normalized relations have captured the Obama Administration’s ability to properly access the worst of the worst when it comes to fighting to protect trafficking victims and punish the thugs who mastermind this modern day slavery.  It is no coincidence that earlier this year the Obama Administration also removed Cuba from the national list of state sponsors of terrorism. One-by-one this Administration is overriding human rights and national security policies for another agenda.”

The same issue of the objectivity of the TIP Report was considered on September 17 by the U.S. Senate Committee on Foreign Relations at a closed briefing by Anthony Blinken, Deputy Secretary of State, entitled “State Department Processes in Establishing Tier Rankings for the 2015 Trafficking in Persons Report.”   As the briefing was closed, we do not know what happened although at another hearing on September 22 Chairman Bob Corker (Rep., TN) mentioned that after this briefing he had made a request to the State Department for three unspecified items of information about the 2015 report.

Susan Coppedge
Susan Coppedge

Related to the issue of the objectivity of the 2015 TIP Report was the September 22 hearing by the Senate Committee on Foreign Relations on the nomination of Susan Coppedge to be the Ambassador-at-Large and Director of the State Department’s Office to Monitor and Combat Trafficking in Persons.

Although her written and oral testimony did not touch on Cuba, she made certain commitments if she were confirmed by the Senate, that bear on the overall issue of the objectivity of such future reports. Those commitments included the following: (a) “to use this position passionately to advocate for the rights of individuals to be free from forced labor or sex trafficking, for victims of human trafficking to have access to comprehensive services, for survivors to be empowered to have a voice in policy, and for an end to the trafficking of human beings;” (b) “to uphold the integrity of the annual Trafficking in Persons (TIP) Report and its tier rankings, including by ensuring the facts from the field are accurately presented in the report;” and (c) “to maintain a close working relationship with Congress and with those federal agencies engaged in the fight against human trafficking.”

Senator Bob Corker
Senator Bob Corker

At the hearing all the members in attendance expressed support for the nomination, and afterwards Chairman Corker released a statement reiterating his strong support.[3]

Conclusion

The issue of the objectivity of the 2015 TIP Report regarding Cuba and certain other countries still has not been resolved, and I am confident that we will hear more about this issue from Congress.

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[1] The Tier 2 Watch List also requires that “a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or c) The determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.”

[2] U.S. House Committee on Foreign Affairs, Subcommittee Hearing: Demanding Accountability: Evaluating the 2015 “Trafficking in Persons Report” (Nov. 4, 2015); Lagon, Statement for Subcommittee Hearing (Nov. 4, 2015); Sagnip,, Author of U.S. Human Trafficking Laws Demands End to Politicized Tier Rankings in Trafficking Report (Nov. 4, 2015); Reuters, U.S. Says Human Trafficking Report Not Softened for Political Reasons, N.Y. Times (Nov. 4, 2015); Sagnip. Cuba and Malaysia Taken Off ‘Bad Actors’ Trafficking List for Political Reasons (July 27, 2015).

[3] Senate Comm. on Foreign Relations, Hearing on Nominations [Susan Coppedge] (Sept. 22, 2105); Senate Comm. Foreign Relations, Coppedge: Testimony (Sept. 22, 2015) Senate Comm. Foreign Relations, Corker Seeks TIP Report Integrity from Nominee to Combat Human Trafficking (Sept. 22, 2015).

 

 

 

 

Update on Proposed U.S. Legislation Opposing U.S.-Cuba Reconciliation  

A prior post reviewed the pending bills in this Session of Congress that support U.S.-Cuba reconciliation. Now we look at the 16 pending bills and resolutions opposing U.S.-Cuba reconciliation, all but two of which have had no substantive action taken by either chamber. Details on these measures are available on the Library of Congress’ THOMAS website.

Three of them—H.R.1782, S.1388 and H.R.2466—seek to impose preconditions for seeking normalization of diplomatic relations with Cuba and thereby attack a major premise of the Administration’s current efforts regarding Cuba: for over 50 years the U.S. has failed to obtain Cuban reforms through imposing preconditions and sanctions.

The other 13 pending measures are less threatening to the Administration’s ongoing efforts to normalize relations with Cuba.

Improved Cuban Human Rights as Precondition for Reconciliation

The major premise of the Administration’s new approach to Cuba is attacked by H.R.1782 “Cuba Human Rights Act of 2015” authored by Rep. Christopher Smith (Rep., NJ) with 12 cosponsors. Until Cuba ceases violating the human rights of its citizens, the bill, among other things, would prohibit any changes in the U.S. relationship with Cuba and require the U.S. to oppose Cuban membership on the U.N. Human Rights Council. The bill was referred to the House Committee on Foreign Affairs, which in turn referred it to its subcommittees on the Western Hemisphere and on Africa, Global Health, Global Human Rights and International Organizations. No substantive action on the bill has been taken by that Committee and said subcommittees.

Less intrusive on the Administration’s approach to Cuba on human rights is S.Res.152 “A resolution recognizing threats to freedom of the press and expression around the world and reaffirming freedom of the press as a priority in efforts of the United States Government to promote democracy and good governance.” It condemns actions around the world that suppress freedom of the press and reaffirms the centrality of freedom of the press to U.S. efforts to support democracy, mitigate conflict, and promote good governance. A preamble references a Freedom House report that ranked Cuba as one of the countries having the worst obstacles to access, limits on content, and violations of user rights among countries and territories rated by Freedom House as “Not Free.” More recently the Committee to Protect Journalists leveled another criticism of press freedom in Cuba. The resolution was offered by Senator Robert Casey, Jr. (Dem., PA) and was referred to the Senate Committee on Foreign Relations, which has not yet taken any action on the matter.

Plan for Resolving U.S. Claims for Expropriated Property as                          Precondition for Reconciliation

Two pending bills relate to Cuba’s expropriation of property of U.S. nationals without compensation in violation of international law. Resolution of U.S. claims for money damages for such acts clearly is an important subject for direct discussions with the Cuban government in the first instance. As discussed in a prior post, those claims are currently estimated to total at least $7.0 billion.

Although I am not privy to how the U.S. Government intends to proceed on such claims, that prior post anticipated an inability to resolve these claims through direct negotiations and, therefore, suggested that the U.S. submit such claims to the Permanent Court of Arbitration along with all other U.S. claims for money damages against the Cuban government and that Cuba similarly submit all of its claims for money damages against the U.S. government. Moreover, that prior post pointed out that any consideration of U.S. claims for money damages against the Cuban government has to recognize that Cuba does not have the financial resources to pay a large sum of money.

S.1388: “A bill to require the President to submit a plan for resolving all outstanding claims relating to property confiscated by the Government of Cuba before taking action to ease restrictions on travel to or trade with Cuba, and for other purposes.” This bill legitimately recognizes that such claims are important for the U.S. and need to be resolved, but in this blogger’s opinion, this bill unwisely makes a plan for resolution a precondition for proceeding with reconciliation. On the other hand, the bill does not require actual resolution of the claims as a precondition so maybe the bill is not as threatening to reconciliation as might first appear. The bill is authored by Senators Marco Rubio (Rep., FL) and David Vitter (Rep., LA) with 11 cosponsors. It was introduced on May 19th and referred to the Senate Committee on Banking, Housing and Urban Affairs, which has not taken any action on the bill. Senator Rubio, however, referred to this bill at a Senate Foreign Relations Committee hearing about Cuba on May 20th.

The companion bill in the House with the same title is H.R.2466 introduced on May 20th by Rep. Thomas Rooney (Rep., FL) with no cosponsors. It was referred to the House Committee on Foreign Affairs, which has not yet taken any action on the bill.

 Limits on Certain Trademarks Expropriated by Cuba

Cuba’s expropriation of property owned by U.S. nationals without compensation, in some instances, included trademarks. Therefore, such trademarks need to be included in the previously mentioned U.S. claims against Cuba.

This subject is addressed by S.757 “No Stolen Trademarks Honored in America Act, ” which would prohibit U.S. courts from recognizing, enforcing, or otherwise validating, under certain circumstances, any assertion of rights by a designated Cuban national of a mark, trade name, or commercial name that was used in connection with a business or assets that were confiscated by the Cuban government. The bill is authored by Senator Bill Nelson (Dem., FL) with 2 cosponsors and was referred to the Senate Committee on the Judiciary, which has not taken any action on the bill.

The companion bill with the same title in the House (H.R.1627) was authored by Rep. Darrell Issa (Rep., CA) with 10 cosponsors. It was referred to the House Committee on the Judiciary, which in turn referred the bill to its Subcommittee on Courts, Intellectual Property, and the Internet.  Neither that Committee nor the Subcommittee has taken any action on the bill.

These bills on trademarks are less troublesome, in this blogger’s opinion, and could provide an interim measure of relief until resolution of the U.S. claims for expropriated property.

 Seeking Extradition of U.S. Fugitives from Cuba

Two pending congressional measures relate to fugitives from U.S. justice in Cuba. The U.S.’ seeking Cuba’s extradition of them has been recognized by the Obama Administration as an important subject for negotiations with Cuba. Indeed, some such discussions already have occurred, and further discussions are to take place. However, as discussed in a prior post, existing extradition treaties between the U.S. and Cuba provide each country the right to not grant extradition if it determines that the offense in the other country is of a “political character,” and Cuba has invoked that provision to deny previous U.S. requests for extradition of some of the most notorious U.S. fugitives.

H.R.2189 “ Walter Patterson and Werner Foerster Justice and Extradition Act” was authored by Rep. Christopher Smith (Rep., NJ) with 3 cosponsors. It would require the president to submit an annual report to Congress regarding U.S. efforts to obtain extradition of fugitives from U.S. justice. One of the proposed findings of the bill states, “The refusal of Cuba to extradite or otherwise render Joanne Chesimard, an escaped convict who fled to Cuba after killing Werner Foerster, New Jersey State Trooper, is a deplorable example of a failure to extradite or otherwise render, and has caused ongoing suffering and stress to Mr. Foerster’s surviving family and friends.” The bill was referred to the House Committee on Foreign Affairs, which has not taken any action on the bill.

H.Res.181 “Calling for the immediate extradition or rendering to the United States of convicted felon William Morales and all other fugitives from justice who are receiving safe harbor in Cuba in order to escape prosecution or confinement for criminal offenses committed in the United States.” It was authored by Rep. Peter King (Rep., NY) with 15 cosponsors and was referred to the House Committee on Foreign Affairs, which in turn referred the bill to the Subcommittee on the Western Hemisphere. Neither body has taken any action on the proposed resolution.

The above bill (H.R. 2189) does not interfere with the Administration’s efforts to pursue reconciliation with Cuba as the bill implicitly recognizes that the U.S. may seek, but not compel, extradition. A prior post reported that the U.S. has made several requests over the years for the extradition of Joanne Chesimard (a/k/a Assata Shakur) and that Cuba had rejected such requests on the ground that her offenses in the U.S. were of a “political character.” Anticipating that Cuba would continue to reject such requests, the prior post recommended submitting disputes over extradition to the Permanent Court of Arbitration. The proposed resolution is merely a call by Congress for such extradition.

 Various Measures Regarding U.S. Naval Station, Guantanamo Bay, Cuba

As discussed in a prior post, the U.S. has leased Guantanamo Bay from Cuba since 1903, and since September 11, 2001, one of the U.S. uses of that territory has been to house, interrogate and make adjudications of detainees from other countries. Since President Obama took office in 2009, he has sought to end the use of Guantanamo Bay for such detentions. Moreover, Cuba has made it known that it wants to have the U.S. leave Guantanamo Bay and return the territory to Cuba. Another prior post examined whether Cuba had a legal right to terminate the lease and recommended submission of any unresolved conflicts over this territory to the Permanent Court of Arbitration.

There has been considerable congressional opposition to ending the detention facilities at Guantanamo Bay and to ending the lease and returning the territory to Cuba. This is seen in the following six pending measures in this Session of Congress.

  1. Ban on U.S. Abandoning Lease of Guantanamo Bay, Cuba. This is the intent of H.R.654 “Naval Station Guantanamo Bay Protection Act” authored by Rep. David Jolly (Rep., FL) with 56 cosponsors. It would bar the U.S. from modifying, terminating, abandoning, or transferring said lease. It was referred to the House Committee on Foreign Affairs, which has not taken any action on the bill. This bill would limit the Administration’s discretion in negotiations over Guantanamo with Cuba, including obtaining a new lease with significantly higher rental fees.
  2. Ban on Transferring Guantanamo Bay Detainees to Other U.S. Facilities. Senator Kelly Ayotte (Rep., NH) with 27 cosponsors submitted S.165: “Detaining Terrorists to Protect America Act of 2015.” It was referred to the Senate Committee on Armed Services, which on February 12th approved the bill with an amendment in the nature of a substitute that would prohibit (i) the construction or modification of any U.S. facility to house certain individuals detained in Guantanamo Bay, Cuba, as of October 1, 2009; (ii) the transfer or release of certain detainees at Guantanamo Bay to other U.S. facilities and foreign countries; and (iii) judicial review of certain claims by said detainees. On 23rd February it was placed on the Senate’s Legislative Calendar.
  3. The companion bill with the same title in the House (H.R.401) was authored by Rep. Jackie Walorski (Rep., IN) with 38 cosponsors. It was referred to the House Committee on Armed Services, which has not taken any action on the bill.

Neither of these bills about transfer of detainees would have direct adverse effects on U.S. reconciliation efforts although it could complicate any negotiations over Guantanamo with Cuba.

  1. Ban on Aid to Certain Countries That Accept Transfer of Guantanamo Bay Detainees. S.778: “Guantanamo Bay Recidivism Prevention Act of 2015” would prohibit certain assistance for five years to a foreign country if: (1) the country received an individual who was released or transferred from Guantanamo Bay on or after February 1, 2015; and (2) after the date of such release or transfer, the individual is included in a report of individuals confirmed or suspected of returning to terrorist activities. The bill is authored by Senator Tom Cotton (Rep., AR) with 4 cosponsors and was referred to the Senate Committee on Foreign Relations, which has not taken any action on the bill.
  1. The companion bill in the House (H.R.1689) “To prohibit the provision of certain foreign assistance to countries receiving certain detainees transferred from United States Naval Station, Guantanamo Bay, Cuba” was authored by Rep. Ron DeSantis (Rep., FL) with 6 cosponsors. It was referred to the House Committee on foreign Affairs, which has not taken any action on the bill. Neither of these bills about foreign assistance would adversely affect U.S. negotiations with Cuba.
  1. Fund for Constructing and Improving Guantanamo Bay Detention Facilities. S.Con.Res.11 establishes the congressional budget for the federal government for FY 2016. S.Amdt.664 to this Concurrent Resolution was offered by Senator Tom Cotton (Rep., AR) to establish a reserve fund for constructing or improving detention facilities at Guantanamo Bay. On March 27th this amendment was ruled out of order.

Continuation of Radio Marti and Television Marti.

H.R.2323 “United States International Communications Reform Act of 2015” would reform the U.S. government agencies responsible for international communications, but in section 124(b) would not affect Radio Marti and Television Marti. The bill was offered by Rep. Edward Royce (Rep., CA) with 14 cosponsors. It was referred to the House Committee on Foreign Affairs, which on May 21st reported it with amendments to the full House.

This bill could be a minor irritant on advancing reconciliation as Cuba consistently has objected to these services.

 Imposing Sanctions on North Korea.

This is the subject of H.R.204 “North Korea Sanctions and Diplomatic Nonrecognition Act of 2015,” which was authored by Rep. Ileana Ros-Lehtinen (Rep., FL) with 17 cosponsors and was referred to the House committees on Ways and Means and on Foreign Affairs, the latter of which referred the bill to its Subcommittee on Asia and the Pacific. No action on the bill has been taken by either committee or by the subcommittee.

This bill is mentioned here for two reasons. First, Rep. Ros-Lehtinen, a Cuban-American, is a vigorous opponent of U.S.-Cuba reconciliation and conceivably would find ways to use the bill to oppose U.S.-Cuba reconciliation. Second, the bill’s proposed findings refer to the U.S. Treasury Department and the U.N. Security Council’s imposition of sanctions on North Korean shipping companies for attempting to import a concealed shipment of arms and related material from Cuba and to the U.S. telling the Security Council that Cuba had participated in a “cynical, outrageous and illegal attempt” to circumvent U.N. sanctions and had made “false claims” about the shipment.

Conclusion

U.S. citizens who support U.S.-Cuba reconciliation should contact their Senators and representatives in Congress to urge them to oppose the above measures, especially those–H.R.1782, S.1388 and H.R.2466— that would impose preconditions for such reconciliation.

A subsequent post will examine pending authorization and appropriation measures that relate to Cuba.

 

 

 

 

 

 

 

 

 

 

 

 

 

Failed Efforts To Weaken the Inter-American Human Rights System Under the Guise of Reform

A prior post discussed the March 22, 2013, resolution by the General Assembly of the Organization of American States (OAS) that strengthened the Inter-American Human Rights System, especially the Inter-American Commission on Human Rights (“Commission”).

In so doing, the OAS rejected efforts to weaken the Commission under the guise of reform proposals that had been offered by Ecuador and other states that the Commission has criticized (Venezuela, Bolivia and Nicaragua).

We now examine the background to that surreptitious effort to weaken that System and the debate at the March 22nd General Assembly meeting

Background

1. Multilateral Treaties and Other Instruments Regarding the Right of Free Expression.

The right of free expression by the media and others is well established in international law.

The United Nation’s General Assembly’s Universal Declaration of Human Rights of 1948 in Article 19 states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In 1966 this was put into legally enforceable form in Article 19 of the International Covenant on Civil and Political Rights, which entered into force in 1976.

To like effect is the American Convention on Human Rights, which was adopted by the OAS in 1969 and which entered into force in 1978. Its Article 13(1) says, “Everyone has  the right to freedom of thought and expression . . . [including the] freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.” Article 13(3) goes on to say, “The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.”

Elaborating on this right is the Inter-American Declaration of Principles of Freedom of Expression of 2000.

2. Ecuador’s Hostility to Freedom of Expression.

Ecuadorian President Rafael Correa
Ecuadorian President Rafael Correa

Ecuador under the presidency of Rafael Correa since January 2007 has through policies and actions retaliated against journalists and media that have criticized him and his government. Correa has insulted and filed lawsuits against reporters and news outlets and promoted a series of legal measures to roll back press freedoms. His government has expropriated television channels, radio stations, newspapers and magazines.

Journalists in the country also have been subjected to physical threats and assaults with lackluster efforts by the government to investigate and prosecute those responsible.

3. The Commission and Civil Society’s Criticism of Ecuador’s Hostility to Freedom of Expression.

The Commission in 1997 created the Special Rapporteur for Freedom of Expression “to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system and in protecting, guaranteeing, and promoting other human rights.”

This Rapporteur has been in the forefront of criticizing Ecuador for these actions against journalists and the media. Since January 1, 2009 it has issued nine press releases expressing its concern over specific criminal prosecutions and imprisonments of journalists for libel for publication of articles about corruption of public officials and for specific physical threats and assaults on journalists.

In addition, since 2006 the annual reports of the Rapporteur have had sections specifically addressing Ecuador’s conduct in this area.

For example, the latest such report (for 2011) devotes 31 pages (78-108) for a detailed, footnoted review of Ecuador’s assaults and attacks on media and journalists; legal proceedings and arrests (the “Rapporteur is concerned about the consistent tendency of high-ranking public officials to rebuke, arrest, and prosecute citizens who criticize them at public events”); presidential broadcasts and government interruptions of news programs; disparaging statements by senior state authorities against media outlets and reporters critical of the government; constitutional amendment and legislative proposals to regulate the content of all media, establish the grounds for liability and the applicable sanctions and serve as an authority on enforcement; and cloture and regulation of communications media.

Such actions also have subjected the country to similar criticism by the U.N. Human Rights Council in its Universal Periodic Review of Ecuador in the summer of 2012. One of the Council’s closing recommendations in that Review was for Ecuador to reform its legislation regarding freedom of expression with a view to bringing it in conformity with international standards and those of the Inter-American Commission on Human Rights. In response Ecuador said that it could not agree to reform its legal framework in accordance with standards from the Commission, when it is the Inter-American Court of Human Rights, not the Commission, which has judicial competency over this matter. Nor could Ecuador, it said, eliminate laws that criminalize opinion since it had no such laws.

In addition, Ecuador has been severely chastised by the Committee to Protect Journalists, which put the country on its Risk List of the 10 countries in the world where press freedom suffered the most in 2012. Similar rebukes have come from Human Rights Watch, Freedom House and the Washington Post Editorial Board.

4. Ecuador’s Campaign for Its Proposed “Reforms” of the Commission.

In response to the Special Rapporteur’s persistent and documented criticism of Ecuador, the country developed a set of proposals to “reform” the Commission. Prominent in this package were reduction in funding (and hence the work) of the Special Rapporteur and elimination of his separate annual report.

Ricardo Patino
Ricardo Patino

In early 2013 Ecuador conducted a lobbying campaign in support of these proposals. Its Foreign Minister, Ricardo Patino, went on a tour of Mexico, Chile, Argentina, Brazil, Colombia, Dominican Republic, Haiti and Venezuela to promote them.  He also advocated them at a meeting of the Political Council of the Bolivarian Alliance for the Peoples of Our Americas (ALBA) [1] and at a March 11th meeting in Guayaquil, Ecuador of the 24 states that were parties to the American Convention on Human Rights.[2]

The latter event was opened by a long speech by Ecuadorian President Correa, who emphasized that the Commission should have its headquarters in a state that has ratified said Convention (not Washington, D.C.); that the Commission should have its own budget provided only by state parties to the Convention (without voluntary contributions by outsiders like the U.S., Canadian and European governments and NGO’s);  that the Commission should not be “autonomous” and instead be controlled by said states parties; the abolition of the Commission’s rules authorizing its issuance of precautionary measures; having the Commission focus on general promotion of human rights, not investigating and deciding on alleged violations of human rights; and elimination of the separate annual report of the Special Rapporteur for Free Expression and instead including such a report in a comprehensive report for all of the rapporteurships.

The Ecuador meeting resulted in the Declaration of Guayaquil whereby the 24 states parties agreed that at the March 22nd meeting of the OAS General Assembly they would support the following: a group of their foreign ministers would press the U.S., Canada and other non-parties to the Convention to ratify or accede to same; the Commission would be refocused on promotion of human rights through national systems; financing of the Commission would be increased by states parties and by “neutral” others; all rapporteurships would be treated equally; an analysis of the costs of the OAS Human Rights System would be obtained; the Commission’s headquarters would be moved to a state party; and annual conferences about reforming the System would be held.

Opposition to such proposals came forward from the U.N. High Commissioner for Human Rights, Navi Pillay, who urged the OAS members “to strengthen its exemplary human rights system, by promoting universal access for citizens . . ., respecting the Commission’s autonomy to progressively improve its policy and practices in response to the needs of victims and concerns of member states, and providing the necessary resources [to the System].” Similar concerns were voiced by Amnesty International, Human Rights Watch, the Committee to Protect Journalists, Freedom House, a group of 98 prominent Latin Americans and a coalition of 700 hemispheric human rights organizations.

Another opponent of Ecuador’s campaign was Cesar Gaviria Trujillo, a former president of Colombia and past secretary general of the OAS. He said that the so called “reforms” of the Commission put forward by Ecuador would “severely weaken the [C]omission and make it easier for governments to ignore basic rights and limit free speech.” They would “drastically curtail [the Commission’s] autonomy” and put a “financial stranglehold” on its operations, including a “devastating impact” on the Special Rapporteur for Freedom of Expression. [3]

The March 22nd OAS General Assembly Meeting

Jose Miguel Insulza, OAS Secretary General
Jose Miguel Insulza, OAS Secretary General

In opening remarks that day, the OAS Secretary General, Jose Miguel Insulza from Chile, stressed that the autonomy of the System needed to be maintained. He also said that strengthening some of the Commission’s rapporteurships “cannot mean that others are weakened” and that the Special Rapporteurship on Freedom of Expression should be strengthened “with a program of ample defense of [such] freedom . . . . ” This would include “issues relating to the curtailment of that freedom by public authorities . . .  as well as the threats and crimes to which journalists and the social media are increasingly subjected in our region and the obligation of states to protect them.”

William J. Burns, U.S. Deputy Secretary of State
William J. Burns, U.S. Deputy Secretary of State

Similar remarks were made by U.S. Deputy Secretary of State, William J. Burns. He noted that even though the U.S. was not a party to the American Convention on Human Rights, the U.S. still collaborates with the Commission when it challenges the U.S. on such issues as the death penalty, the human rights of migrants and children and the status of detainees at Guantanamo Bay, Cuba. He added, “We must be vigilant against efforts to weaken the Commission under the guise of reform. [Such efforts] . . . seek to undermine the Commission’s ability to hold governments accountable when they erode democratic checks and balances and concentrate power through illiberal manipulation of democratic processes.”

Ecuadorian Foreign Minister Patino in his remarks accused the opposition and the media of distorting his government’s proposals. He also accused the Commission of improperly assuming the power to issue precautionary measures. Its decisions were independent, he said, but the Commission was not autonomous. He rhetorically asked, the Commission is autonomous and independent of whom? Sotto voce, a Spanish journalist answered, “You,” causing laughter by those around the journalist.

The resolution adopted by acclamation at the midnight conclusion of the March 22nd meeting already has been discussed. It clearly did not adopt all of the items in Ecuador’s package.

This resolution emerged after a long day in which the U.S., Canada, Mexico, Colombia, Costa Rica, Panama and Chile lead the opposition to the proposals from Ecuador, Bolivia, Venezuela and Nicaragua. A Human Rights Watch observer said, “It was a resounding victory for the Commission, and a major defeat for the Venezuela-Ecuador bloc. It became evident that [the latter] . . . were totally isolated, without the support they were expecting from other countries.”

Towards the end of the meeting Ecuador and Bolivia threatened to withdraw from the Commission and leave the meeting. To avoid such a rupture, Argentina offered a face-saving amendment to the resolution about the OAS’ Permanent Council continuing the dialogue on the “core aspects for strengthening” the System, which Ecuador and the other ALBA countries ultimately accepted.

Conclusion

Afterwards Ecuador’s Foreign Minister tried to whitewash his country’s defeat by saying that the resolution accepted its proposal to continue the debate in the future. Before the next meeting of the OAS General Assembly in June 2014, the Foreign Minister said that there would be another meeting of the states parties to the American Convention like the one on March 11th in Guayaquil to discuss these issues. He also hinted at Ecuador’s possible withdrawal from the OAS Commission by saying there was an agreement being negotiated to create a Human Rights Commission of the Union of South American Nations (UNASUR).

Unless there are unexpected changes in regimes or policies in this Hemisphere over the next 14 months, I do not expect Ecuador and its allies will be successful at the June 2014 OAS meeting in gaining acceptance of its proposals to weaken the Inter-American Commission.[4] We will then see if this small group will leave that Commission and form its own, more limited, human rights system.


[1] ALBA is an alternative to the U.S.-sponsored Free Trade Area of the Americas. differing from the latter in that it advocates a socially-oriented trade block rather than one strictly based on the logic of deregulated profit maximization. The only members of ALBA are Ecuador, Bolivia, Venezuela, Nicaragua and three small Caribbean states (Antigua and Barbuda, Dominica and Saint Vincent and the Grenadines.

[2]  This campaign is discussed in press releases from Ecuador’s Foreign Minister.

[3] Such a limitation on financing undoubtedly would result in a reduction of such funding and thus on the work of the Commission.

[4]  I assume that Ecuador has another burden to overcome in attempting to win support for its “reform” proposals. Its credibility within the OAS, I suspect, has been adversely affected by its recent exaggerated, alarmist call for an OAS Consultative Meeting of Foreign Ministers over the alleged United Kingdom threat to invade Ecuador’s London Embassy because of its providing diplomatic asylum in that Embassy to Julian Assange.