U.N. Human Rights Council’s Final Consideration of Cuba’s Universal Periodic Review 

On September 21, 2018, the U.N. Human Rights Council held a meeting in its 39th regular session. An important item on the agenda was the final review of the latest Universal Periodic Reviews of the human rights records of three more states, including Cuba.[1]

Just before this session, the Council provided an Addendum to Cuba’s national report that listed its responses to the 339 recommendations that had been made by other U.N. Members and Stakeholders. Of these 339 recommendations,  Cuba had “supported” (accepted or noted) 309, and rejected 30 in the following categories[2]

Recommendations Rejections
Improve freedoms of assembly & association  13.0
End arbitrary detentions    4.0
Release prisoners of conscience    3.0
Recognize rights of political activists    2.0
Respect independent media    2.0
Allow independent monitoring of detention    1.5
Establish independent judiciary    1.5
Allow complaints to treaty bodies    1.0
Allow multiparty elections (U.S.)    1.0
End coercive labor    0.5
Increase laws against human trafficking    0.5
TOTAL 30.0

Cuba’s Ambassador, Pedro Pedrosa, made  introductory and concluding statements that included the following comments:

  • Cuba had rejected 30 of the recommendations because they were “politically skewed” and some reflected the “hegemonic ambitions of some [the U.S.] to undermine Cuban systems.” He also condemned the U.S. embargo (blockade) as a “massive, flagrant and systematic violation of human rights.”
  • For Cuba, ratification of an international treaty is a “very serious process” and is never made under pressure, again referring to the “hostile policies of the U.S. against the Cuban people.”
  • Cuba is against the death penalty and has not had an execution since 1923. However, it needs to keep the death penalty because of terrorism.
  • Cuba has a “system of independent courts to insure “ respect for human rights.
  • In 2017 Cuba welcomed two international human rights monitors (human trafficking and international solidarity).
  • Cuba calls for democracy and international governance of the Internet and the end of the digital divide and monopolies of these technologies.
  • Cuba is proud of the accomplishments of its Revolution and its contributions to the broadening of human rights.
  • Reforms in Cuba can only happen with true international and impartial cooperation.
  • The UPR process should not be a forum for attacks or proposals by foreign powers [U.S.].
  • Cuba rejects “rash” comments at this session by the World Evangelical Alliance and the Christianity Global Solidarity because they ignore the Cuban reality of religious freedom and right to change religion. Nevertheless, he invited these organizations to visit Cuba.
  • He also criticized the comments from Amnesty International and U.N. Watch.

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[1]  U.N. Hum. Rts. Council,  Documentation (39th Regular Session). Previous posts about the current (and other) Cuba UPRs are listed in the “Cuban Human Rights” section of  List of Posts to dwkcommentaries.com—Topical: CUBA.

[2]  U.N. Hum. Rts. Council, Report of the Working Group on the Universal Periodic Review: Cuba: Addendum (Sept. 18, 2018) (views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review).

 

 

113th Congress Takes Actions on International Religious Freedom

In its waning days the 113th Congress has taken at least three actions regarding international religious freedom.

 New U.S. Ambassador at Large for International Religious Freedom

David N. Saperstein
David N. Saperstein

On December 12th the U.S. Senate by a vote of 62 to 35 confirmed President Obama’s nomination of David N. Saperstein, a prominent Reform rabbi, to be Ambassador at Large for International Religious Freedom, in charge of countering religious persecution around the world.

Saperstein was a member of President Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships from 2010 to 2011. He also was a member of the U.S. Commission on International Religious Freedom (the Commission) from 1999 to 2001 and its Chair (1999-2000). For 40 years, Mr. Saperstein has been director of the Religious Action Center of Reform Judaism, lobbying on a wide range of civil rights and social justice issues.

At a confirmation hearing in September, Mr. Saperstein spoke out against religious discrimination in Burma, China, Iran, Iraq, Saudi Arabia and Syria, among other countries. “Even in Western Europe,” he said, “we are witnessing a steady increase in anti-Semitic discourse and violence against Jewish communities.”

The Senate Republican Policy Committee noted that Mr. Saperstein had criticized a ruling in June in which the Supreme Court said that some corporations could deny contraception coverage to their female workers on religious grounds. He expressed dismay at the ruling, which was hailed by conservatives as a victory for religious liberty, and he supported legislation to override the decision, in an effort to protect women’s health.

Amendment of the International Religious Freedom Act of 1998 [1]

On August 8, 2014, H.R. 4028 became Public Law No.: 113-154. It amended the “Findings” section (Section 2(a)(4)) of the 1998 statute to add three words (“desecration of cemeteries”) so that it reads as follows:

  • “The right to freedom of religion is under renewed and, in some cases, increasing assault in many countries around the world. More than one-half of the world’s population lives under regimes that severely restrict or prohibit the freedom of their citizens to study, believe, observe, and freely practice the religious faith of their choice. Religious believers and communities suffer both government-sponsored and government-tolerated violations of their rights to religious freedom. Among the many forms of such violations are state-sponsored slander campaigns, confiscations of property, desecration of cemeteries, surveillance by security police, including by special divisions of “religious police”, severe prohibitions against construction and repair of places of worship, denial of the right to assemble and relegation of religious communities to illegal status through arbitrary registration laws, prohibitions against the pursuit of education or public office, and prohibitions against publishing, distributing, or possessing religious literature and materials.” (Emphasis added.)

The author of this bill, Representative Grace Ming (Dem. NY), said during the House debate, “There are two related problems we seek to address through this legislation. One is the religiously motivated vandalism of cemeteries that occurs with alarming regularity. The second is the building and development over cemeteries in places where there are no communities remaining to protect and look out for the cemeteries.” She added that the bill “works to identify and preserve cemeteries, memorials, and buildings in foreign countries that are associated with the cultural heritage of Americans, and it does much work in areas of the former Soviet Union, where Jewish communities were destroyed by the Holocaust and where power subsequently passed to atheistic, communist regimes.”

Other bills in this Congress were offered to make other amendments to the statute, but they were not adopted, including a bill by Senator Marco Rubio (S. 2675) that would have imposed requirements and restrictions on presidential actions with respect to countries designated by the Commission as “of Particular Concern for Religious Freedom.” He introduced his bill the day after the State Department had issued its annual report on this freedom, and Rubio said, “While I welcome . . . [the Department’s] announcement updating CPC designations, this administration has failed to do so since 2011.” This proposed amendment “encourages the administration to take a firmer stance on religious freedom violators and codifies America’s commitment to advancing religious freedom as a key objective of U.S. foreign policy.”

In December 2014, too late for any legislative action this year, Reps. Joe Pitts (Rep., PA) and Anna Eshoo (Dem., CA) introduced H.R. 5878 (An Act to amend the International Religious Freedom Act of 1998 to further express United States foreign policy with respect to, and to strengthen United States advocacy on behalf of, freedom of religion or belief abroad and individuals persecuted in foreign countries on account of religion or belief, and for other purposes). It would add non-state actors like Boko Haram in Nigeria to the group of bodies the U.S. government can sanction for violating religious freedoms. The bill will be re-introduced in the next Session of Congress.

Reauthorization of the Commission on International Religious Freedom

On December 10thth the House adopted H.R. 5816 re-authorizing the Commission essentially for only another nine months (to September 30, 2015), and on December 15th the Senate added its approval of the bill.

This action reflected the inability of the two chambers to reach agreement on the terms of a lengthier reauthorization. In this context, I was surprised by a statement about this inability from Leonard L. Leo, the Executive Vice President of the Federalist Society for Law & Public Policy Studies and a former member of the Commission (2007-2009) and its Chair (2009-2012). He said that the Commission was formed in 1998 to be a watchdog on the State Department to ensure that it would promote religious freedom.

In July the House passed a reauthorization bill (H.R. 4653) that never passed the Senate. It would have extended the Commission through September 30, 2019, essentially another five years. It also would have (a) required training of foreign service officers on “the relationship between religious freedom and security, and the role of religious freedom in United States foreign policy;” (b) encouraged the Department of State to allow Commission members and staff to have “access to classified information;” and (c) allowed the Commission interns, fellows and volunteers to be paid compensation by “sponsoring private parties” so long as there was no conflict of interest.

During the House debate on this bill, Rep. Chris Smith (Rep., NJ), said that the original statute was passed by “a somewhat supportive Congress but highly reluctant [Bill Clinton] White House.” He lamented that eight countries designated as “Countries of Particular Concern” or CPCs by the Commission had not been similarly designated by the State Department and that the Obama Administration had not enacted sanctions for such designations of other countries.

During another House debate, the one on the previously mentioned “desecration of cemeteries” bill, the same Representative Smith said at a May 22, 2014, hearing he chaired, there had been evidence of “the lack of enforcement and the lack of due diligence on the part of the administration when it comes to the International Religious Freedom Act. Not since 2011 has there been a designation of what we call country of particular concern, CPC status, or the dishonorable status that it conveys ought to be done every year. . . . [despite the Commission’s pointing out] that there are eight [other] countries that ought to be so designated, followed by eight others, including Vietnam, that needed to be added to the list, making a total of 16 countries that are then liable to sanctions.”

In the other chamber Senator Richard Durbin (Dem., Illinois) offered a reauthorization bill (S. 2711) that was not adopted by either chamber. It would have extended the Commission through September 30, 2016, but also would have required annual rotation of its chair and vice chair based on political party affiliation and restricted service in such positions to one term. It also would have required the Ambassador at Large for International Religious Freedom to be notified in advance of all Commission meetings and allowed the Ambassador to attend all meetings as a nonvoting member. Finally it would have required (a) at least six commissioners to approve any commission statement and allow dissenting statements and separate staffs for the two major political parties; and (b) the Commission’s annual report to be issued after the issuance of the annual religious freedom reports by the Department of State.

Conclusion

Congressional criticism of the State Department and the President for their alleged failure to follow every recommendation of the Commission, in my judgment, is uncalled for. I also disagree with any proposed legislation like that of Senator Rubio’s that seeks to impose legislative constraints on the president based upon the Commission’s reports.

The basic reason for this judgment was expressed well by the Commission’s current Chair, Ms. Katrina Lantos Swett, when she acknowledged the Commission has limited authority when compared with the U.S. Department of State and implicitly the U.S. President. She said, “The State Department has a more difficult job than we do because they are balancing American security interests, American commercial interests, American cultural interests, American exchange interests, a whole range of diplomatic interests, and one of the things that they are putting into that mix is the defense of our fundamental values, human rights and religious freedom and other such things. Because of its much larger portfolio the State Department cannot be as single-minded as we are.”

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[1] Detailed information about bills in Congress can be obtained at www. Congress.gov. A prior post summarized the structure and members of the Commission while others posts have discussed the international law on this subject and some of the Commission’s annual reports. Although I believe that freedom of religion is important for every individual and for nation states, I believe that the Commission’s negative views on the status of that freedom in Cuba for 2011 and 2013 are unjustified.

United Nations’ Focus on Freedom of Religion or Belief

U.N. Human Rights Council
U.N. Human Rights Council

 

The United Nations’ Human Rights Council [1] has a Special Rapporteur on freedom of religion or belief. This official’s mandate is the following:

  • “to promote the adoption of measures at the national, regional and international levels to ensure the promotion and protection of the right to freedom of religion or belief;
  • to identify existing and emerging obstacles to the enjoyment of the right to freedom of religion or belief and present recommendations on ways and means to overcome such obstacles;
  • to continue her/his efforts to examine incidents and governmental actions that are incompatible with the provisions of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and to recommend remedial measures as appropriate; and
  • to continue to apply a gender perspective, inter alia, through the identification of gender-specific abuses, in the reporting process, including in information collection and in recommendations.”

In order to fulfill this mandate, the Special Rapporteur transmits urgent appeals and letters of allegation to States with regard to cases that represent infringements of, or impediments to, the exercise of the right to freedom of religion and belief; undertakes fact-finding country visits; and submits annual reports to the U.N. Human Rights Council and the U.N. General Assembly, on the activities, trends and methods of work.

This official also has issued the “Rapporteur’s Digest on freedom of religion or belief,” which includes excerpts of its reports from 1986 to 2011. The following is its table of contents:

I. Freedom of religion or belief

  • Freedom to adopt, change or renounce a religion or belief
  • Freedom from coercion
  • The right to manifest one’s religion or belief
  • a. Freedom to worship
  • b. Places of worship
  • c. Religious symbols
  • d. Observance of holidays and days of rest          
  • e. Appointing clergy
  • f. Teaching and disseminating materials (including missionary activity)
  • g. The right of parents to ensure the religious and moral education of their children
  • h. Registration
  • i. Communicate with individuals and communities on religious matters at the national and international level
  • j. Establish and maintain charitable and humanitarian institutions/solicit and receive funding
  • k. Conscientious objection

II. Discrimination

  • Discrimination on the basis of religion or belief/inter-religious discrimination/tolerance
  • State religion

III. Vulnerable groups

  • Women
  • Persons deprived of their liberty
  • Refugees
  • Children
  • Minorities
  • Migrant workers

IV. Intersection of freedom of religion or belief with other human rights

  • Freedom of expression including questions related to religious conflicts, religious intolerance and extremism
  • Right to life, right to liberty
  • Prohibition on torture and other cruel, inhuman or degrading treatment or punishment

V. Cross-cutting issues

  • Derogation
  • Limitation
  • Legislative issues
  • Defenders of freedom of religion or belief and non-governmental organizations

This position was created in 1986 by the U.N. Commission on Human Rights and in 2013 was continued by the Commission’s successor, the U.N. Human Rights Council.

Heiner Bielefeldt
Heiner Bielefeldt

The current Special Rapporteur is Mr. Heiner Bielefeldt, the Professor of Human Rights and Human Rights Politics at the University of Erlangen-Nürnberg, Germany. From 2003 to 2009, he was the Director of Germany’s National Human Rights Institution. Mr. Bielefeldt’s research interests include various interdisciplinary facets of human rights theory and practice, with a focus on freedom of religion or belief.

Last month (July 2014) the Special Rapporteur completed a visit to Vietnam and issued a statement about his visit. He said he had heard quite a number of allegations in that country of harassment, house arrests, imprisonment, destruction of houses of worship, beatings and pressuring people to join official religions and renounce their own. He said he could not make full assessment of individual cases, but concluded “there are serious violations of freedom of religion or belief taking place in this country.” (Assoc. Press, UN Official: Vietnam Violates Religious Freedom, N.Y. Times (July 31, 2014).[2]

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[1] The U.N. Human Rights Council was the subject of an earlier post.

[2] The U.S. Commission on International Religious Freedom recent report designated Vietnam as a “country of particular concern” (CPC) or one that has engaged in or tolerated “particularly severe” violations of religious freedom. The Commission also recommended that the State Department make the same designation, but the Department’s recent report did not do so even though it said, “Many requests by religious groups for registration [in Vietnam] remained unanswered or were denied . . . . Many unregistered religious groups reported abuses, with a particularly high number of reports coming from the Central and Northwest Highlands. These included allegations of beatings, arrests, detentions, and criminal convictions.”

The U.S. Commission on International Religious Freedom’s Annual Report 2014   

Comm'n Intl Religious Free                                                

On April 30, 2014, the quasi-independent U.S. Commission on International Religious Freedom released its Annual Report 2014, pursuant to the International Religious Freedom Act of 1988 (“the Act”).[1]

Introduction

The Commission relies upon this definition of the freedom in the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Similar provisions are found in several multilateral human rights treaties.[2] (P. 9.)

The Report stressed the importance of this freedom. It says this right “protects the freedom of religious communities, as groups, to engage in worship and other collective activities. It also protects every individual’s right to hold, or not to hold, any religion or belief, as well as the freedom to manifest such a religion or belief, subject only to the narrow limitations specified under international law.” (P. 9.)

This right is important, says the Commission, “because it enables people to follow what their conscience dictates. . . . People are entitled to religious freedom by virtue of their humanity.” Therefore, there can be no “coercion or compulsion in these matters.” (P. 2.)

Moreover, whenever this freedom is abused, “societal well-being would suffer” as well as democracy and other human rights and economic productivity. So too “peace and security may become more elusive.” In short, according to the commission, “the defense of religious freedom is both a humanitarian imperative and a practical necessity.” (P. 3.)

General Recommendations

The Commission recommended that the U.S. do the following with respect to this freedom:

  • develop and implement a religious freedom strategy;
  • demonstrate the importance of religious freedom , including the designation of “countries of particular concern ” identified by the Commission;
  • reinvigorate and create new tools under the Act;
  • expand training, programming and public diplomacy about the subject;
  • expand multilateral efforts on the subject; and
  • protect asylum-seekers from being returned to countries where they face persecution for religious reasons. (Pp. 7-8.)

“Countries of Particular Concern” (Tier 1 Countries)

Under its authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) (or “Tier 1 Countries”) those that have engaged in or tolerated “particularly severe” violations of religious freedom. (P. 5.)

The latest report recommends that the Secretary of State re-designate the following eight countries as Tier 1 countries: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzbekistan. In addition, the Report recommends that the following additional eight countries also be so designated by the State Department: Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan, Turkmenistan and Vietnam. (P. 5.)

Tier 2 Countries

The Commission also designates some countries as “Tier 2 Countries,” i.e., countries on the threshold of Tier 1 status, i.e., when their “violations . . . are particularly severe” and when at least one, but not all three, of the criteria for that status (“systematic, ongoing and egregious”) is met. (P. 5.)

The latest Report designated the following nine countries as Tier 2: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, Russia and Turkey.[3] (P. 5.)

Other Countries

The latest Report also discussed seven other countries (Bahrain, Bangladesh, Belarus, Central African Republic, Ethiopia, Kyrgyzstan and Sri Lanka) and one region (Western Europe) that it monitored during the year. (P. 5.)

Conclusion

Because of my personal interest in Cuba, including its religious freedom, a subsequent post will critique the Report regarding that country.

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[1] The Act § § 202, 205. The Report contains an account of the development of the Act and the 15-year history of its implementation. (Pp. 11-23.) A prior post examined the fascinating structure and composition of the Commission, and another post its report issued in 2013.

[2] See Post: International Law Regarding Freedom of Religion (Jan. 1, 2012).

[3] Previously the Commission called this group the “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.”

 

 

 

 

 

 

 

 

Cuban Religious Freedom (U.S. Commission on International Religious Freedom)

We have provided a general overview of the latest international religious freedom reports from the U.S. Department of State and from the U.S. Commission on International Religious Freedom, and another post analyzed the State Department’s report on that freedom in Cuba.[1] Now we contrast and compare the Commission’s shorter and less detailed report on that subject for Cuba.[2]

Positive Aspects of Religious Freedom in Cuba

The report had a few good things to say about religious freedom in Cuba.

First, it did not include Cuba in its list of “countries of particular concern” (CPC), i.e.,  those that have engaged in or tolerated “particularly severe” violations of religious freedom.

Second, it recognized that “[p]ositive developments for the Catholic Church and major registered Protestant denominations, including Baptists, Pentecostals, Presbyterians, Episcopalians, and Methodists, continued over the last year.” (Emphasis added.)

The Commission endorsed the State Department reports “that religious communities were given greater freedom to discuss politically sensitive issues. Catholic and Protestant Sunday masses were held in more prisons throughout the island. Religious denominations continued to report increased opportunities to conduct some humanitarian and charity work, receive contributions from co-religionists outside Cuba, and obtain Bibles and other religious materials. Small, local processions continued to occur in the provinces.”

The Commission also stated that the Cuban government granted the Cuban Council of Churches time for periodic broadcasts early Sunday mornings, and Cuba’s Roman Catholic Cardinal read Christmas and Easter messages on state-run stations. Relations between the Catholic Church and Cuban government continued to improve,” marked by Pope Benedict XVI’s visit to Cuba.

Negative Aspects of Religious Freedom in Cuba

The report also commented on what it saw as negative aspects of religious freedom in Cuba.

Some of the criticisms echo the State Department’s report regarding the Cuban government’s system for registering religious groups, limiting certain activities to such registered groups, restricting permits for construction or repair of religious buildings, limiting access to state media and denying permission for religious processions outside religious buildings. The Commission, however, fails to mention the Department’s qualifications that these purported restrictions of religious freedom are not enforced in practice.

The Commission mentions the Cuban government’s arrest and detention of human rights/democracy activists that prevented them from attending church services, as did the Department’s report. As noted in my prior post, however, these arrests and detentions, in my opinion, are blots on Cuba’s general human rights record, not that for its religious freedom.

Another negative, according to the Commission, are the alleged Cuban government’s arrests and beatings on four occasions of evangelical pastors and the alleged targeting of the Apostolic Reformation and Western Baptist communities. We, however, do not know all the facts of these alleged events, and even if true as stated by the Commission, they do not, in my opinion, justify the Commission’s overall evaluation of Cuban religious freedom.[3]

That overall evaluation includes Cuba as one of eight countries on the Commission’s “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.”

Cuba has been on this Watch List since 2004.[4] Its inclusion yet again, in my opinion, is due to sheer long-term blinders on U.S. perceptions of Cuba, not to an objective analysis of the facts.

Recommendations for U.S. Policy 

In accordance with its authorizing statute,[5] the Commission made the following recommendations for U.S. policy with respect to Cuban religious freedom:

  • press the Cuban government to “stop arrests and harassment of clergy and religious leaders;  cease interference with religious activities and the internal affairs of religious communities; allow unregistered religious groups to operate freely and legally; revise government policies that restrict religious services in homes or on other personal property; and hold accountable police and other security personnel for actions that violate the human rights of non-violent religious practitioners;”
  • “use appropriated funds to advance Internet freedom and protect Cuban activists from harassment and arrest by supporting the development of new technologies, while also immediately distributing proven and field-tested programs to counter censorship;”
  • “increase the number of visas issued to Cuban religious leaders from both registered and unregistered religious communities to travel to the United States to interact with co-religionists;” and
  • “encourage international partners, including key Latin American and European countries and regional blocks, to ensure that violations of freedom of religion or belief and related human rights are part of all formal and informal multilateral or bilateral discussions with Cuba.”

I note first that if Cuba properly were excluded from the Watch List, there would be no basis for the Commission’s making any recommendations with respect to Cuba.

With respect to the recommendations themselves, the first one seems like an excessive concern with formalities since in practice these restrictions are not enforced. Has the U.S. updated all of its statutes and regulations to conform them to what happens in the real world?

The third recommendation should be noncontroversial, and I agree the U.S. should grant tourist visas for Cuban religious representatives to visit the U.S.

I also have no problem with the fourth recommendation, but believe that most other countries and regional blocks would not see the alleged violations of freedom of religion or belief that the Commission sees.

The second recommendation, however, raises significant problems and is objectionable.

It is difficult to know exactly what is meant by recommending the U.S. use its funds to advance Internet freedom and protect Cuban activists, to develop new technologies and to distribute proven and field-tested programs to counter censorship.

To me, it sounds like a recommendation for surreptitious efforts at regime change. Remember that the U.S. in 1961 supported an armed invasion of Cuba at the Bay of Pigs, that the U.S. through the CIA had plots to assassinate Fidel Castro, that the U.S. for over 50 years has had an embargo of Cuba and that the George W. Bush Administration had a Commission on Assistance to a Free Cuba that produced a de facto U.S. plan for such a regime change.

Another, and more powerful, reason for being at least skeptical of this second recommendation is the case of Alan Gross, a U.S. citizen, who is now in Cuban prison after conviction in 2009 for–as the Cubans see it– being part of a “subversive project of the U.S. government that aimed to destroy the Revolution through the use of communication systems out of the control of authorities.” As an employee of an USAID contractor, Mr. Gross went to Cuba on multiple occasions purportedly to establish wireless networks and Internet connections for non-dissident Cuban Jewish communities and to deliver certain communications equipment to Cubans for that purpose.

In 2012 Mr. Gross and his wife sued USAID and the contractor for allegedly failing to give him better information and training for his dangerous work, and this month (May 2013) the Grosses and the contractor reached a settlement for dismissal of the case against the corporation in exchange for an undisclosed monetary payment by the contractor.

In short, this second recommendation is not designed to improve religious freedom in Cuba.

Conclusion

The State Department’s more balanced recent report on Cuban religious freedom, in my opinion, is better grounded in reality than the Commission’s. While I believe the U.S. should encourage and promote religious freedom around the world, including Cuba, the recommendations by the Commission are unjustified and counterproductive and evidence the same bias against Cuba that we see in other aspects of U.S. policy towards Cuba.[6]


[1] The prior post also reviewed the religious makeup of the Cuban people and many other details on the subject that will not be repeated here.

[2] Prior posts examined the Commission reports for Cuba for 2010 and 2011(comment to prior post). A subsequent post will discuss the unusual structure of the Commission.

[3] The Commission’s heavy emphasis on the relatively few alleged wrongs against evangelical pastors and its ignoring the positive developments in religious freedom for “registered” religious groups like the Roman Catholics, Baptists, Pentecostals, Presbyterians, Episcopalians and Methodists demonstrate a totally inappropriate and unjustified bias in a purported nonpartisan U.S. agency of our federal government. Such a bias is not new. It also was present in the George W. Bush Administration’s Commission for Assistance to a Free Cuba, which regarded unnamed evangelical Christian groups as the only “authentically independent” religious groups that could be used by the U.S. to build a “free” Cuba.  The Cuban Council of Churches, on the other hand, was seen by this U.S. commission as “taken over by the Castro regime in the early 1960s and used as a means to control the Protestant churches” and, therefore, was not to be used by the U.S.

[4]  The other seven countries on the Commission’s Watch List are Afghanistan, Azerbaijan, India, Indonesia, Kazakhstan, Laos and Russia.

[5]  That statute charges the Commission with the responsibility of “making  . . . policy recommendations to the President, the Secretary of State, and Congress with respect to [Cuban] religious freedom.” (International Religious Freedom Act of 1988, § 202(a)(2); id. § 202(b); id. § 202(c).

Proposals for Changing the U.S. Constitution

The New York Times in its “Room for Debate” feature invites knowledgeable outside contributors to discuss news events and other timely issues. The feature also solicits comments on the topic from readers.

The feature’s July 9th topic is suggestions for amending the U.S. Constitution. Ten professors of history and law started the conversation with their suggested constitutional changes.

Contributors’ Comments

Direct Election of President. Article II, Section 2 provides for election of the president by an electoral college. Alexander Keyssar, the Stirling professor of history and social policy at Harvard’s Kennedy School, suggests abolishing the electoral college and having the president (and vice president) directly elected by the national popular vote.

He says the “concerns that prompted the Founding Fathers to adopt [the current] . . .  system — a distrust of popular elections, worry that the people would be unfamiliar with national candidates, a desire to reinforce the great constitutional compromises between large states and small states, slave states and free states” are no longer valid.

In addition, Keyssar points out that we have learned about “shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril.”

As indicated below, I support this proposal.

Qualifications for Office of President. The Constitution’s Article II, Section 4 establishes the following qualifications for the presidency: “a natural born citizen,” at least 35 years old and a resident of the U.S. for at least 14 years. Akhil Reed Amar, a professor of law and political science at Yale University, proposes this be changed to make eligible “those American citizens who happen to have been born abroad to non-American parents — and who later choose to become ‘naturalized’ American citizens.” This would be consistent with the overall historical trend of increasing equality and with the current practice in the 50 states.

I am indifferent on this proposal.

Federal Judges Tenure. The Constitution in Article III, Section 1 now provides that federal judges hold office during “good behavior,” which in practice has meant for life absent voluntary retirement. Jamal Greene, a professor of law at Columbia Law School and a former clerk for U.S. Supreme Court Associate Justice John Paul Stevens, says “In a democracy, no one person should wield so much power for so long.” To solve this problem, Greene endorses a proposal by Professors Steven Calabresi and James Lindgren for Supreme Court appointments with non-renewable 18-years terms, with one new justice every odd-numbered year.

As indicated below, I support this proposal.

Re-emphasize that Treaties Are Part of the Supreme Law of the Land. Under Article VI, Section 2 of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be [part of] the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.” However, as pointed out by Jenny S. Martinez, the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law Schoolthe U.S. Supreme Court has held that certain treaties were not enforceable against the states. Therefore, she suggests that this provision be re-emphasized in some way.

I agree that treaties under the existing Constitution are part of the supreme law of the land and that they should bind states. There, however, is no specific proposed amendment to react to.

Changing the Process for Amending the Constitution. Article V of the Constitution provides two methods of amending the Constitution: (i) specific proposed amendments adopted by two-thirds of each chamber of Congress plus ratification by three-fourths or 38 of the states; or (ii) a call for a constitutional convention by two-thirds or 34 of the states, whose proposed amendments are ratified by three-fourths or 38 of the states. The latter method (constitutional convention), has never been used, and Michael Rappaport, the Darling Foundation professor of law at the University of San Diego and the director of its Center for the Study of Constitutional Originalism, believes that this non-use “means that Congress has a veto on all amendments and therefore no amendment that Congress opposes, including necessary reforms of Congress’s power, can be enacted.”

Therefore, Rappaport proposes that the Constitution be changed “to eliminate the possibility of a runaway convention.” The best way, he says is dispensing with “a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.”

Rappaport has a valid objection to the present constitutional scheme, and I could accept a proposal that would allow three-fourths of the states to propose specific amendments, but would still require a two-thirds vote by each house of the Congress to adopt an amendment.

Emphasize the 10th Amendment’s Limits on Federal Government’s Powers. Under Article I, Section 8 of the Constitution, the federal government has certain specified powers, and the Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

According to Elizabeth Price Foley, the holder of the Institute for Justice Chair in constitutional litigation at Florida International University College of Law, these principles are important for liberty. As the Supreme Court unanimously stated in Bond v. United States (2011), “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

She believes that the existing Constitution is sufficient on this point so long as it is followed by the courts, but is open to amendment to restore certain powers to the state and like Michael Rappaport endorses the suggestion that the states have the right to propose federal constitutional amendments.

Although as just stated, I support giving the states a right to propose specific amendments, I do not favor any amendments that seek to diminish the power of the federal government. In this age of globalization, it is unwise to emphasize states over the federal government.

Narrow Congress’  Power Over  Interstate Commerce Power. As discussed in prior posts before and after the June 28, 2012, Supreme Court decision regarding the Affordable Care Act, the power of Congress under Article I, Section 8(3) to “regulate commerce . . . among the several States” has been interpreted by the Court to encompass intrastate commerce that has a substantial effect on interstate commerce.

Consistent with the views of Professor Foley, Randy E. Barnett, the Carmack Waterhouse professor of legal theory at Georgetown Law Center and one of the attorneys challenging the constitutionality of the Affordable Care Act in the Supreme Court, has proposed the following amendment that he says essentially returns the clause to its original meaning:

  • “The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
I oppose this suggestion for the reasons stated in my prior posts.

Revising the First Amendment. The First Amendment to the Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .” Pauline Maier, the William Rand Kenan Jr. professor of American history at M.I.T, says that this language was a revision of a more expansive version prepared by James Madison. She, therefore, suggests returning to the following Madisonian version:

  • “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

This wording, like most of the first eight amendments, Msier believes, affirms basic rights in general terms, not as restrictions on the federal government. It also would undermine the Supreme Court’s decision about corporate speech in the Citizens United case.

I support this proposed amendment.

Delete the Second Amendment’s Right To Bear Arms. The Second Amendment to the Constitution provides that “the right of the people to keep and bear arms, shall not be infringed.” Melynda Price, an associate professor at the University of Kentucky College of Law, proposes the deletion of this right because of the amount of gun violence in the U.S.

I like the spirit of this proposal, but would have to evaluate specific language for such a change.

Clarify the Eighth Amendment’s Ban on “Cruel and Unusual Punishment.” The Eighth Amendment to the Constitution states, “cruel and unusual punishments [shall not be] inflicted.” Rachel E. Barkow, the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University, suggests this be clarified to “specifically state that excessive terms of incarceration are prohibited, just as it bans excessive [bail and] fines.” In addition, she says , it “should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge” and “insist that legislatures create a record showing that they considered empirical evidence about the law’s likely impact.”

I support this proposal.

Readers’ Comments

Readers are invited to add their comments, and I made the following suggested constitutional changes.

1. Outlaw Senate Filibuster. To require 60% of the Senators to agree in order to do almost anything is outrageous. It should only be 51% for most issues. Earlier I called the filibuster part of the abominable rules of the Senate; another post discussed revisions to the rule; and yet another post talked about additional attacks on the filibuster.

2. Change Weight of Senate Votes. Based on population, each Senator from Wyoming would have 1 vote, for example, but each Senator from California would have 66 votes. This approach would produce a total Senate vote of 1,094 based on the total U.S. population in 2010. The weightings would be changed every 10 years with the new census.

3. Change Term of House Representatives. Change the term from two years to four years to coincide with the presidential election.

4. Direct Election of President and Vice President. I agree with Professor Keyssar that the U.S. should institute direct election of the U.S. President by the national popular vote and abolish the electoral college.

5. Eliminate Life Tenure for Federal Judges. Impose a term limit on all federal judges, including Supreme Court Justices. One solution, perhaps by statute, would be to amend the current statute on judicial retirement (28 U.S.C. § 371) to make such retirement mandatory on reaching the current age and service requirements. I essentially concur in the comments of Professor Greene.

Many years ago I made other suggestions for constitutional changes in a virtual constitutional convention. More recently I have discussed what I regard as our antiquated or imbecilic Constitution.