Raúl Castro Discusses Cuba-U.S. Relations in Report to Seventh Congress of the Communist Party of Cuba 

The major event of the first day (April 16) of the four-day Seventh Congress of the Communist Party of Cuba was the two-hour, live televised address by Raúl Castro, the First Secretary of its Central Committee (and also President and General of the Army).[1] Most of this address concerned the country’s internal socio-economic and other issues, which will be covered in a subsequent post, while a prior post provided an overview of the Congress. This post will focus on his discussion of Cuba-U.S. relations. Here is what he had to say on that subject near the end of the speech along with this blogger’s reactions.

Castro’s Remarks

“Fifteen months have transpired since we announced, simultaneously with President Barack Obama, the decision to reestablish diplomatic relations between Cuba and the United States, on the basis of sovereign equality, non-interference in domestic affairs, and absolute respect for our independence. Hours before this speech, Fidel’s promise to the Cuban people was kept, with the completion of the return to the homeland of the Cuban Five.”

“We have reached this point thanks to the heroic resistance and sacrifice of the Cuban people, and their loyalty to the Revolution’s ideals and principles, supported by decisive international solidarity, made clear in multiple events and international organizations, in particular the overwhelming votes in the United Nations General Assembly against the blockade.”

“The political map of Our America had changed, given the advance of political forces on the left and popular movements, which contributed to progress in regional integration, symbolized by the constituting of the Community of Latin American and Caribbean States (CELAC), in December of 2011.”

“All of this placed the [U.S.] in an untenable situation of isolation within the hemisphere, and put the so-called inter-American system in crisis, as was made evident by the demand to end the blockade and opposition to the exclusion of Cuba from the 6th Summit of the Americas in Cartagena, in 2012.”

“On the other hand, changes have been occurring in U.S. society, and in the Cuban émigré community, in favor of the modification of the [U.S.’] policy toward Cuba.”

“In April of last year, we attended the 7th Summit of the Americas in Panama, with our heads held high. . . .”

“Throughout the period . . . since December of 2014, concrete results have been achieved in the dialogue and in cooperation between Cuba and the [U.S.] Nevertheless, the economic, commercial and financial blockade, imposed more than half a century ago, remains in force, with unquestionably intimidating, extraterritorial effects, although we recognize the position taken by President Obama and high-ranking administration officials against the blockade, and their repeated appeals to Congress in the interest of eliminating it.”

“The measures announced prior to [President Obama’s] visit to Havana, to introduce some modifications in the blockade’s implementation, on the basis of his executive powers, are positive but insufficient.”

“As we expressed in the meeting between the two Presidents with the press, to advance toward normalization of relations, it is imperative to eliminate the blockade, which causes our population hardship and constitutes the principal obstacle to economic development of the country; and return the territory illegally occupied by the Guantánamo Naval Base against the will of the Cuban government and people.”

“Likewise, [U.S.] programs directed toward changing the political, economic and social system, which we have chosen sovereignly, must be ended, along with other damaging policies still in effect.”

U.S. immigration “policy continues to be used as a weapon against the Revolution. The Cuban Adjustment Law, the “wet foot-dry foot” policy, and the Parole program for Cuban medical professionals remain in effect, to encourage illegal and unsafe emigration, and seeking to deprive us of qualified personnel.”[2]

“These practices do not reflect the stated change of policy toward Cuba, and generate difficulties for third countries.”

“There are more than a few U.S. government officials who upon recognizing the failure of their policy toward Cuba, make no attempt to disguise their affirmations that the goals remain the same, only the means are being modified.”

“We are willing to carry out a respectful dialogue and construct a new type of relationship with the [U.S.], one which has never existed between the two countries, because we are convinced that this alone could produce mutual benefits.”

“However, it is imperative to reiterate that no one should assume that to achieve this Cuba must renounce the Revolution’s principles, or make concessions to the detriment of its sovereignty and independence, or forego the defense of its ideals or the exercise of its foreign policy – committed to just causes, the defense of self-determination, and our traditional support to sister countries.”

“As the Constitution of the Republic stipulates, ‘Economic, diplomatic or political relations with any other state can never be negotiated under aggression, threats, or coercion by a foreign power.’”

“The road to normalization of bilateral ties is long and complex, and we will advance to the extent we are capable of putting into practice the art of civilized coexistence, or in other words, accept and respect our differences which are, and will be, profound; not making them the center of our relations, but rather concentrating on what brings us closer and not what separates us, promoting what is beneficial to both countries.”

“Relations with the [U.S.] have historically represented a challenge for Cuba, given their permanent pretension of exercising domination over our nation, and the determination of Cubans to be free and independent, regardless of the dangers to be faced, or the price we would have to pay.”

“The people’s unity with the Party, its profound patriotism and political culture, which have allowed us to confront the policy of aggression and hostility, will serve as a shield to defeat any attempt to undermine the revolutionary spirit of Cubans. This will be a challenge, especially for the youngest, who the Party recognizes as the continuators of the Revolution’s work and of the patriotic convictions of their grandparents and parents.”

Castro then launched into a defense of its Latin American allies against an unnamed foe (the U.S.):

  • “Latin America and the Caribbean find themselves experiencing the effects of a strong, articulated counteroffensive, on the part of imperialism and oligarchies, against revolutionary and progressive governments, in a difficult context marked by the deceleration of the economy, which has negatively impacted the continuity of policies directed toward development and social inclusion, and the conquests won by popular sectors.”
  • “This reactionary attack uses methods and technologies specific to the new doctrine of unconventional war, especially in the area of communications and culture, without ruling out attempts at destabilization and coups.”
  • “This policy is principally directed toward the sister Bolivarian Republic of Venezuela, and has been intensified in recent months in Bolivia, Ecuador, and Brazil, as well as Nicaragua and El Salvador.”
  • “Recent setbacks for governments of the left in the hemisphere are being used to announce the end of a progressive historical cycle, opening the way for the return of neoliberalism and demoralization of political forces and parties, social movements and working classes, which we must confront with more unity and increased articulation of revolutionary action.”
  • “We hold the firm conviction that the Venezuelan people will defend the legacy of our beloved compañero Hugo Chávez Frías, and prevent the dismantling of the accomplishments achieved. To the Bolivarian and Chavista Revolution, to President Maduro and his government, and to the civic-military union of the Venezuelan people, we reiterate our solidarity, our commitment, and energetic rejection of efforts to isolate Venezuela while dialoging with Cuba.”
  • “We demand that the sovereignty and independence of states be respected, and that interference in domestic affairs cease. At the same time, we reaffirm our firm support to all revolutionary and progressive governments, headed by prestigious leaders, whose economic and social policies have led to justice, dignity, sovereignty, and tangible benefits for the great majority, in the world’s most unequal region.”
  • “Also being renewed are efforts by the [U.S.] and their allies to undermine unity and the process of regional integration, frustrate the advance of CELAC, ALBA, UNASUR, and others, through a supposed reform of the inter-American system, in particular the OAS, attempting to promote the leading role of other schemes more compatible with their hegemonic interests.”
  • “We will never forget that the OAS – the Organization of American States – founded by the [U.S.]during the second half of the past century, at the beginning of the Cold War, has only served interests which contradict those of Our America. This organization, rightly described as the “Ministry of colonies” of the [U.S.] by the Foreign Minister of Dignity, compañero Raúl Roa García, was the one that sanctioned Cuba, and was ready to offer support and recognition to a puppet government, if the mercenary invasion at Playa Girón [Bay of Pigs] had been successful. The list of actions it took against the nascent Cuban Revolution, and other revolutionary and progressive governments, is interminable.”

Cuba’s diatribe against the U.S. was broadened to include the rest of the world with this statement by Castro: “Increasingly more serious are threats to international peace and security, as a result of U.S. imperialism’s attempts to impose its hegemonic position in the face of changes in the world’s equilibrium, and of the philosophy of usurpation and control of strategic natural resources, made evident by the increasingly offensive and aggressive military doctrine of NATO; the proliferation of non-conventional wars under the pretext of fighting “international terrorism;” the sharpening of differences with Russia and China; and the danger of a war in the Middle East of incalculable dimensions.”

Earlier in the address, Castro sought to rebut U.S. complaints about Cuban human rights with these words: Cuba is a party to 44 international treaties on human rights while the U.S. is only party to 18.[3] Moreover, “equal pay for equal work, whether for a man or woman, is a human right [in Cuba]. In other countries, including the [U.S., it is not, women earn less and thus dozens of supposed human rights can be cited. Free medical care in Cuba is a human right. In many other countries, this is not a human right, it is a business. In our country, education is free, in how many countries of the world is education free? It’s a business, too. That is, we will discuss this issue of human rights with anyone and anywhere whatsoever, and we will recognize those who are in the right.”

Raúl then made a joke about political rights. “When they say to me that in Cuba there is only one party. And I answer them, ‘Yes, like you, you have a single party,’ and the North Americans answer me: “No, we have two.” And as if I did not know, they tell me their names, ‘Democratic and Republican.’ ‘Correct, that’s right, it’s the same as if we were to have two parties in Cuba, Fidel would head one and I the other.’”

Conclusion

Given the prior public positions of the Cuban government, Castro did not say anything new on the subject of Cuba-U.S. relations. As expressed in many earlier posts, I agree that the U.S. should end its embargo of Cuba, its special immigration policies regarding Cubans and its covert or “discreet” programs purportedly promoting democracy in Cuba.

I also recognize that Cuba repeatedly has alleged that the U.S. occupation of Guantanamo Bay is illegal, but saying so does not make it so, and this blog has suggested that the dispute on this issue is unlikely to be resolved in discussions and negotiations, but instead should be submitted for resolution to an independent court like the International Court of Arbitration at the Hague along with any damage claims asserted by Cuba with respect to the embargo.

Another point of disagreement with Castro is his assertion that the U.S. goal of Cuban regime change is the same, but that the means have changed. Yes, the U.S. vigorously advocates for the right of Cubans to elect their leaders by popular vote, for the right of Cubans to protest and demonstrate against the government and to express their opinions without arrest and arbitrary detention and for the empowerment of Cubans to engage in self-employment and business. If they had such rights, that might lead to changes in the Cuban economy and government, but those changes would be chosen by the Cuban people, not imposed upon them by the U.S.

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[1] Congress documents will be submitted to a broad discussion, Granma (April 16, 2016); 7th Party Congress underway, Granma (April 16, 2016); Raúl Castro, Central Report to 7th Congress of Communist Party of Cuba, Granma (April 16, 2016) (text in original Spanish); Raúl Castro, Central Report to 7th Congress of Communist Party of Cuba,  Granma (April 17, 2016) (text in English translation); Burnett, Raúl Castro Urges Cubans to Remain Alert to U.S. Efforts to Alter Communist System, N.Y. Times (April 16, 2016); Reuters, Castro Hardens Rhetoric, Warns Cubans to Be Alert to U.S. Intentions, N.Y. Times (April 16, 2016); Assoc. Press, Raul Castro Presents Grim Picture of Cuban Reforms, N.Y. Times (April 16, 2016); Torres, Raúl Castro proposes age limits on key jobs in CCP, Miami Herald (April 16, 2016);Raúl Castro derides US democracy in speech to Cuban Communist Party, Guardian (April 16, 2016); Editorial, Rhetoric and reality in Cuba, El Pais (April 17, 2016).

[2] Earlier in the speech Castro said, “Illegal and disorderly emigration of youth and specialists from various sectors is encouraged under the Cuban Adjustment Act, the “wet foot-dry foot” policy and the Parole Program, that is, permission to reside in the United States, granted with absolute speed, for our doctors, who provide services abroad.”

[3] Castro did not list the human rights treaties in question, and this blogger has not attempted to verify the assertion that Cuba was a party to 44 such treaties. Prior posts have pointed out that the U.S. is a party to 16 major such treaties while signing, but not ratifying 9 others and not signing and ratifying 7 others: Multilateral Human Rights Treaties Ratified by the U.S. (Feb. 9, 2013); Multilateral Treaties Signed, But Not Ratified by the U.S. (Feb. 12, 2013); Multilateral Human Rights Treaties That Have Not Been Signed and Ratified by the U.S. (Feb. 16, 2013)

U.N. Human Rights Committee’s Review of U.S. Human Rights

In March 2014, the United Nations’ Human Rights Committee (the Committee) made a very negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights.

Before we examine the Committee’s hearings that resulted in that very negative evaluation in subsequent posts, we will look at the background of the ICCPR and the events leading up to the Committee’s hearings and evaluation.

Background of the ICCPR

As discussed in a prior post, the ICCPR was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated.

The ICCPR (in terms reminiscent of the U.S. Bill of Rights) establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The ICCPR forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.

The ICCPR’s Part IV established the Human Rights Committee, and its Article 41 provides that periodically the States Parties to the treaty shall “submit reports on the measures they have adopted which give effect to the rights recognized . . . [in the treaty] and on the progress made in the enjoyment of those rights” and that the Committee “shall study [such] . . . reports . . . . [and make] such general comments as it may consider appropriate.”[1]

Under Articles 28 and 29 of the treaty, its states parties elect the 18 Committee members to four-year terms from “nationals of the States Parties . . . who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience, . . . [and] who shall be elected and shall serve in their personal capacity.”

The Committee, under Article 31, “may not include more than one national of the same State” and “consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.”

As discussed in a prior post, the Covenant went into force on March 23, 1976, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty. On October 5, 1977, the U.S. signed the treaty, but it was not until nearly 15 years later (June 8, 1992), that the U.S. ratified this treaty (with reservations) and became a state party thereto. Now there are 168 states parties to the treaty.

Events Leading Up to the Committee’s Evaluation 

1. U.S. Report. On December 30, 2011, the U.S. submitted to the Committee its 188-page Fourth periodic report.[2]

The report opened with these words of President Obama,“By no means is America perfect. But it is our commitment to certain universal values which allows us to correct our imperfections, to improve constantly, and to grow stronger over time. . . .”

The report then marched through the U.S. implementation of each of the 27 Articles of the ICCPR.

In conclusion, the U.S. report discussed the Committee’s Concluding Observations on the prior U.S. report that the U.S. “acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction, but outside its territory, as well as its applicability in time of war.” The U.S., however, reiterated its position that the Covenant does not so apply.

With respect to the Committee’s prior request that the U.S. “consider in good faith the interpretation of the Covenant provided by the Committee,” the U.S. continued to reject the Committee’s interpretation on applicability, but said it “appreciates its ongoing dialogue with the Committee with respect to the interpretation and application of the Covenant, considers the Committee’s views in good faith, and looks forward to further discussions of these issues when it presents this report to the Committee.”

2. Committee’s List of Issues. On April 29, 2013, after reviewing the U.S. report and Common Core Document, the Committee issued its six-page, 27-paragraph List of Issues, which asked the U.S. to respond to the following:

  • U.S. constitutional and legal framework: clarify U.S. position on applicability of Covenant for individuals under its jurisdiction, but outside its territory; measures to ensure state and local authorities comply with the Covenant; whether a national human rights institution will be established; and whether the U.S. will withdraw its reservations to the Covenant.
  • Non-discrimination and equal rights of men and women: describe efforts to address racial disparities in criminal justice system and to eliminate all kinds of racial profiling against Arabs, Muslims and South Asians; provide information on imposition of criminal penalties on street people and on obstacles to undocumented migrants’ accessing health services and higher education institutions.
  • Right to life: provide information on various issues regarding the death penalty and victims of gun violence; and clarify how drone attacks allegedly comply with the Covenant and whether senior officers and lower-ranking soldiers have been investigated and punished for unlawful killings in armed conflict.
  • Prohibition of torture and cruel, inhuman or degrading treatment or punishment and treatment of detainees: provide information on independent investigations of treatment of detainees, whether U.S. regards so-called “enhanced interrogation” to violate the Covenant, why the U.S. has not adopted a statute prohibiting torture within its territory, whether the U.S. systematically evaluates “diplomatic assurances” before transfers of detainees, addressing claims of police brutality and excessive use of force, regulation of electro-muscular-disruption devices, prohibition and prevention of corporal punishment of children and application of criminal law to minors, non-consensual use of medication in psychiatric and research institutions, solitary confinement, separation of juvenile from adults detainees, rights of detainees in Guantanamo Bay, Afghanistan and Iraq, rights of immigrant detainees and prevention of domestic violence.
  • Elimination of slavery and servitude: provide information on combatting human trafficking and protection of children from sexual exploitation.
  • Right to privacy: provide information on NSA surveillance.
  • Freedom of assembly and association: clarify why certain workers are excluded from right to organize in trade unions.
  • Freedom of movement, marriage, family and protection of minors: clarify whether all cases of individuals serving life sentences without parole for offenses committed as a minor have been reviewed and if U.S. will abolish such sentences; and provide information on children held at Guantanamo Bay, Afghanistan and Iraq.
  • Right to take part in conduct of public affairs: provide information on voting rights of citizens who have completed their sentences for felony convictions, states’ measures to impose legal or de facto disenfranchisement of voters and efforts to provide residents of District of Columbia right to vote and elect representatives to U.S. Senate and House of Representatives.
  • Rights of minorities: provide information on protection of indigenous sacred sites and their rights to be consulted and consent to matters affecting their interests.

3. U.S. Replies. On July 5, 2013, the U.S. submitted its 28-page Replies to the List of Issues. It said the U.S. responded “with great pleasure” and was “pleased to participate in this process.” The U.S., it said, “in the spirit of cooperation, provided as much information as possible in response to the questions posed by the Committee.”

The U.S., however, maintained its position that the treaty did not have extraterritoriality, i.e., it did not apply to U.S. conduct outside the U.S. It did provide some additional information, but did not retract any of its previous positions that prompted the Committee’s List of Issues.

4. Civil Society Organizations’ Submissions. Sometime prior to October 2013, 138 reports about the status of U.S. human rights were submitted to the Committee by civil society organizations, including Amnesty International, Human Rights Watch, the American Civil Liberties Union, Physicians for Human Rights and Minnesota-based Advocates for Human Rights.

5. Postponement. The Committee’s review of the U.S was scheduled for October 2013, but was postponed until March 2014, pursuant to a U.S. request due to the then ongoing U.S. government shutdown.[3]

6. U.S. Delegation. On March 7, 2014, the U.S. submitted to the Committee the list of members of the U.S. delegation for the upcoming session. The U.S. Representative was Mary McLeod, Principal Deputy Legal Adviser, Office of the Legal Advisor, Department of State. She was to be aided by 27 Advisers from the Departments of State, Justice, Defense, Homeland Security, Health and Human Services and Interior; the U.S. Mission to the U.N.; the Attorney General of the State of Mississippi; the Mayor’s Office of Salt Lake City, Utah; and a Private Sector Adviser (a private attorney from Los Angeles, California).

Conclusion

On March 13 and 14, 2014, the Committee held hearings in Geneva, Switzerland on the U.S. report and other information, and on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America) that was very critical of the U.S. compliance with the ICCPR.[4]

These subjects will be discussed in subsequent posts.

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[1] The nation states creating and joining this treaty chose to not grant the Committee the power to order the states to do anything. Instead, the Committee only may make recommendations as observations.

[2] The report was supplemented the same date by the 85-page U.S. Common Core Document that contained general information (U.S. demographic, economic, social and cultural characteristics) and legal information (U.S. constitutional, political and legal structure; general framework for the protection and promotion of human rights; and information on non-discrimination and equality and effective remedies).

The U.S.’ fourth periodic report and Common Core Document were preceded by the first U.S. report to the Committee on July 29, 1994 (with the Committee’s concluding observations on October 3, 1995) and the U.S.’ combined second and third reports on November 28, 2005 (with the Committee’s concluding observations on September 15 and December 18, 2006).

[3] The civil society organizations submitted to the Committee an additional 41 reports before the March 2014 Committee session.

[4] The Committee’s procedure and report are similar to, but separate from, the Universal Periodic Review (UPR) of U.S. human rights that is conducted by a separate U.N. organization, the Human Rights Council, as discussed in a prior post.

Inter-American Commission on Human Rights Decides Guantanamo Bay Detainee’s Case Against U.S. Is Admissible on the Merits

On March 30, 2012, the Inter-American Commission on Human Rights (“IACHR” or “Commission”) decided that a case against the U.S. was admissible for determination on the merits.

The case was brought by Djamel Ameziane, who left his home country of Algeria in the early 1990s to avoid a bloody civil war. Thereafter he lived in Austria and Canada for many years until Canada denied his asylum  application. Fearing deportation to Algeria, he fled to Afghanistan just before the U.S. invasion in October 2001. Like many others, he then went to Pakistan to escape the war. There he was picked up and sold to U.S. forces for a bounty. In early 2002 Ameziane was transferred to the U.S. detention facility at Guantanamo Bay, Cuba, where he has been held ever since without any charges being filed against him. Documents about his hearings at Guantanamo Bay are available on the web.)

In February 2005 he filed a habeas corpus petition with the U.S. District Court in Washington, D.C. There were some preliminary pre-trial and appellate skirmishes, but the case has been stayed or postponed indefinitely by court order.

Thus being left without an effective remedy in U.S. federal court, Ameziane on August 6, 2008, filed with the IACHR a petition and a request for precautionary measures (akin to a preliminary injunction) against the U.S.

Two weeks later, the Commission issued its Urgent Precautionary Measures that required the U.S. immediately to do the following:1.

  1. “[T]ake all measures necessary to ensure that . . . Ameziane is not subjected to cruel, inhuman or degrading treatment or torture during the course of interrogations or at any other time, including but not limited to all corporal punishment and punishment that may be prejudicial to [his] physical or mental health;
  2. [T]ake all measures necessary to ensure that . . . Ameziane receives prompt and effective medical attention for physical and psychological ailments and that such medical attention is not made contingent upon any condition;
  3.  [T]ake all measures necessary to ensure that, prior to any potential transfer or release, . . .    Ameziane is provided an adequate, individualized examination of his circumstances through a fair and transparent process before a competent, independent and impartial decision maker; and
  4.  [T]ake all measures necessary to ensure that . . . Ameziane is not transferred or removed to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture or other mistreatment, and that diplomatic assurances are not being used to circumvent the United States’ non-refoulement obligations.”

In October 2010 the Commission held a hearing in the case. Evidence was provided about Ameziane’s lack of effective remedies in U.S. courts, his continuing need to be protected from forcible transfer to Algeria and his plea for resettlement in a safe third country.

Eighteen months later the Commission issued its previously mentioned decision that the case was admissible for proceedings on the merits. Thereafter Ameziane’s attorneys immediately renewed their request that the IACHR facilitate a dialogue between the U.S. and other countries belonging to the Organization of American States toward the safe resettlement of men such as Ameziane, as indefinite detention at Guantánamo will not end unless the international community offers safe homes for the men who cannot return to their countries of nationality for fear of torture or persecution. The attorneys also asked the U.S. Government to direct the U.S. Department of Defense to certify Ameziane for transfer, or, if necessary, authorize a “national security waiver” of the transfer restrictions for him. (Under the National Defense Authorization Act for FY2012, he needs a certification or waiver before he can be released.)

Now we wait to see what happens in this case.

Ameziane’s attorneys are from the Center for Constitutional Rights, which is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.

U.S. Second Report to U.N. Committee Against Torture

As previously noted, States Parties to the multilateral treaty against torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) are obligated to submit periodical reports to the Committee Against Torture  (CAT) “on the measures they have taken” to implement the treaty. We also have examined the U.S. initial report to CAT (First Report).[1]

In CAT’s comments on the First Report, it requested the U.S. to submit its second report on or before November 19, 2001. The U.S. did not do so. Instead, the U.S. belatedly submitted its second report (the Second Report) on May 6, 2005.[2]

It is important to remember that the Second Report came after 9/11 and during the U.S.’ so called “war on terror.” It was also after there was world-wide publicity and criticism of the U.S. about horrible abuses of prisoners by U.S. personnel at the Abu Ghraib prison in Iraq, U.S. transfer of detainees to other countries (so called “rendition”) where torture was known to occur and the U.S. use of its base at Guantanamo Bay, Cuba for detention of men arrested in the “war on terrorism.” As we will see below, this led to an intensive examination and criticism of the U.S. by CAT.

We will examine the Second Report (85-pages plus annexes, including two sworn statements about transfers of detainees from Guantanamo Bay), CAT’s hearings regarding that report, CAT’s responsive comments and the U.S. reaction to those comments.

1. U.S. Second Report to CAT

The report started with positive general statements. The U.S. “is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the [U.S.].”[3]

Moreover, “All components of the [U.S.] Government are obligated to act in compliance with the law, including all [U.S.] constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment.The U.S. . . . does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.”

The report also said the U.S. “is aware of allegations that detainees held in U.S. custody pursuant to the global war on terrorism have been subject to torture or other mistreatment. The President of the United States [George W. Bush, however,] . . . has clearly stated that torture is prohibited. When allegations of torture or other unlawful treatment arise, they are investigated and, if substantiated, prosecuted.”

The report further stated that the U.S. recognizes “its obligation not to expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. . . . [A]llegations that it has transferred individuals to third countries where they have been tortured [are contrary to U.S. policies and procedures].”

After the submission of the Second Report and before the hearings, CAT in February 2006 provided the U.S. with a document containing 59 very detailed questions or issues that it wanted addressed before or at the hearings. The document demonstrated the Committee’s awareness of what was happening in the U.S. “war on terrorism” and of internal U.S. documents that had entered the public domain.[4] On April 28th the U.S. submitted its written responses to these issues.[5]

2. Committee’s Hearings Regarding  the U.S. Second Report

There were two parts to the Committee’s hearing regarding the U.S. in Geneva, Switzerland. The initial hearing took place on May 5, 2006.[6] The second, on May 8th.[7]

These hearings were the first time since 9/11 that the U.S. had answered questions from an international body about alleged U.S. abuses in the so-called war on terrorism. The seriousness of the occasion was underscored by the U.S.’ sending a delegation of 26 officials from the Departments of State, Defense, Justice and Homeland Security. It was headed by Barry Lowenkron (Assistant Secretary of State for Bureau of Democracy, Human Rights and Labor) and John Bellinger (Legal Advisor to the State Department) with high-level support from Thomas Monheim, (Associate Deputy Attorney General) and Charles Stimson (Deputy Assistant Secretary of Defense for Detainee Affairs).

a. May 5, 2006 Hearing

The initial hearing was opened by Mr. Lowenkron. He emphasized the U.S. commitment to uphold its obligations to eradicate torture and prevent cruel, inhuman or degrading treatment or punishment. Abuses, like those at Abu Ghraib in Iraq, sickened American people and were inexcusable and indefensible. The U.S. is taking steps to hold accountable those who were involved. The U.S. values transparency and openness. For example, the International Committee of the Red Cross, a European governmental group and over 1,000 journalists have visited the U.S. facility at Guantanamo Bay, and some have made positive statements about the facility.

These comments were reiterated by Mr. Bellinger, who emphasized U.S. efforts to help torture victims recover. The Torture Convention, he argued, was not intended to apply to armed conflicts which are governed by humanitarian law. There were many allegations about U.S. mistreatment of detainees, but he urged the Committee to remember they were only allegations, not proof, and to keep a sense of perspective and proportion regarding these claims. Bellinger then summarized the U.S.’ written responses to the Committee’s list of issues.

Mr. Monheim discussed the role of the Department of Justice’s Civil Rights Division in enforcing federal civil rights statutes and U.S. legal protections for victims of torture. Mr. Stimson spoke about the U.S. treatment of detainees in Afghanistan, Iraq and Guantanamo Bay.

After these presentations, several Committee members appeared skeptical about aspects of the U.S. presentation. Fernando Marino Menendez of Spain, the Committee’s Rapporteur for the U.S., raised several concerns. He said the International Court of Justice and the Committee believed that the Convention was applicable in times of armed conflict contrary to the U.S. position; that the U.S. failure to disclose information about intelligence services could be a violation of victims’ rights; that the U.S. had failed to adopt the Convention’s definition of “torture” and instead improperly had adopted a different definition; and international tribunals and opinion had concluded that forced disappearances constituted torture contrary to the U.S. position. Menendez also expressed skepticism of the U.S. assertions that its interrogation practices complied with the treaty, that the abuses were not systematic and that the U.S. complied with the treaty with respect to transfer of detainees to other countries.

The Committee’s Alternate Rapporteur for the U.S., Guibril Camara of Senegal, emphasized that the Committee’s interpretation of the treaty trumped that of the U.S., and he questioned the legitimacy of the U.S. reservations to its ratification of the treaty.

Other members of the Committee reiterated some of these concerns and added others as well.

b. May 8, 2006 Hearing

The U.S. delegation returned on May 8th to respond to the oral questions raised at the initial hearing. These responses focused on legal issues regarding U.S. implementation of the treaty; U.S. treatment of detainees and accountability for abuses; and monitoring and oversight of U.S. intelligence activities.

Immediately after the conclusion of the hearings, the U.S. delegation released a written “Departure Statement.” It emphasized that (1) all U.S. officials are prohibited from engaging in torture and cruel, inhuman or degrading treatment or punishment at all times and in all places; (2) the U.S. deplores its personnel’s occasional violations of these bans and will investigate and hold perpetrators accountable; (3) the U.S. does not transfer people to countries where it is more likely than not that they would be tortured; and (4) the U.S. is able to recognize its failures and make things better and comply with the torture treaty. The statement also mentioned that while in Geneva, members of the delegation also met with the U.N. High Commissioner for Human Rights, the International Committee of the Red Cross and several human rights NGOs.[8]

3.   Committee’s Conclusions and Recommendations Regarding the U.S. Second Report

On July 25, 2006, the Committee issued its conclusions and recommendations regarding the U.S. Second Report. CAT complimented the U.S. for its exhaustive written responses to the Committee’s list of issues and to the questions raised at the hearing and for the presence of the large and high-level U.S. delegation at the hearing. CAT also welcomed the U.S. commitment to prohibition of torture and improper transfer of detainees to other countries. Finally CAT was pleased with new U.S. legislation on treatment of prisoners and detainees.[9]

The U.S.’ major effort to persuade the Committee that the U.S. was in full compliance with the Convention Against Torture, however, was unsuccessful. The Committee’s report recorded a lengthy list of concerns and recommendations. Although polite, diplomatic language was used, it was a stinging rebuke of the U.S. According to the Committee, the U.S. should:

  • (a) enact a federal crime of torture consistent with Article 1 of the treaty;
  • (b) ensure that acts of psychological torture, prohibited by CAT, are not limited to “prolonged mental harm” as set out in U.S. “understandings, ” but constitute a wider category of acts, which cause severe mental suffering, irrespective of their prolongation or its duration and withdraw its reservation to article. 16 (prevention of cruel, inhuman or degrading treatment);
  • (c) investigate, prosecute and punish perpetrators under the U.S. extraterritorial torture statute;
  • (d) recognize and ensure that CAT applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and that CAT’s provisions are without prejudice to provisions of any other international instrument;
  • (e) recognize and ensure that CAT’s provisions apply to, and are fully enjoyed  by, all persons under the de facto effective control of its authorities, of whichever type, wherever located in the world as opposed to the regrettable U.S. view that they applied only to its de jure territory;
  • (f) register all persons it detains in any territory under its jurisdiction;
  • (g) ensure that no one is detained in any secret detention facility under its de facto effective control because doing so is a per se violation of the treaty; the U.S. “no comment” policy regarding such facilities is regrettable;
  • (h) adopt all necessary measures to prohibit and prevent enforced disappearance in any territory under its jurisdiction, and prosecute and punish perpetrators because such practices are per se violations of the treaty; the U.S. view that such practices do not constitute torture is regrettable;
  • (i) adopt clear legal provisions to implement the principle of absolute prohibition of torture in its domestic law without any possible derogation, ensure that perpetrators of acts of torture are prosecuted and punished appropriately, ensure that any interrogation rules, instructions oR methods do not derogate from the principle of absolute prohibition of torture and that no doctrine under domestic law impedes the full criminal responsibility of perpetrators of acts of   torture, and promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to                    acts of torture committed by their subordinates;
  • (j) apply the non-refoulement guarantee to all detainees in its custody, cease the rendition of suspects, in particular by its intelligence agencies, to States where they face a real risk of torture, and ensure that suspects have the possibility to challenge decisions of refoulement; the Committee is concerned that the U.S. does not consider its non-refoulement obligation to extend to its detainees outside its territory;
  • (k) with respect to refoulement only rely on “diplomatic assurances” from States which do not systematically violate the Convention’s provisions, and after a thorough examination of the merits of each individual case, establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review, and effective post-return monitoring arrangements, and provide detailed information to the Committee on all cases since 9/11/01 where assurances have been provided;
  • (l) cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured because detaining people indefinitely without charges constitutes a per se violation of the treaty;
  • (m) ensure that education and training of all law-enforcement or military personnel, are conducted on a regular basis, in particular for personnel involved in the interrogation of suspects;  training to include interrogation rules, instructions and methods, and specific training on how to identify signs of torture and cruel, inhuman or degrading treatment; such personnel should also be instructed to report such incidents; regularly evaluate such training and education and ensure regular and independent monitoring of their conduct;
  • (n) rescind any interrogation technique, including methods involving sexual humiliation, “waterboarding”, “short shackling” and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control;
  • (o) promptly, thoroughly and impartially investigate all allegations of acts of torture or cruel, inhuman or degrading treatment or punishment by law-enforcement personnel and bring perpetrators to       justice, and provide the Committee with information on the ongoing investigations and prosecution relating to Chicago Police Department;
  • (p) eradicate all forms of torture and ill-treatment of detainees by its military or civilian personnel, in any territory under its jurisdiction, and promptly and thoroughly investigate such acts, prosecute all those responsible for such acts, and ensure they are appropriately punished, in accordance with the seriousness of the crime;
  • (q) ensure that independent, prompt and thorough procedures to review the circumstances of detention and the status of detainees are available to all detainees;
  • (r) ensure that mechanisms to obtain full redress, compensation and rehabilitation are accessible to all victims of acts of torture or abuse, including sexual violence, perpetrated by its officials;
  • (s) amend the U.S. Prison Litigation Reform Act to eliminate the requirement that there can be no lawsuit for mental or emotional injury suffered while in custody without a prior showing of physical injury;
  • (t) ensure that the ban on use of statements induced by torture are fulfilled in all circumstances, including in the context of military commissions, and establish  an independent mechanism to guarantee the rights of all detainees in its custody;
  • (u) review and revise its execution methods, in particular lethal injection, in order to prevent severe pain and suffering;
  • (v) design and implement appropriate measures to prevent all sexual violence in all it detention centers, and ensure that all allegations of violence in detention centers are investigated promptly and independently, perpetrators are prosecuted and appropriately sentenced and victims can seek redress, including appropriate compensation;
  • (w) ensure that detained children are kept in facilities separate from those for adults in conformity with international standards, and address the question of sentences of life imprisonment of children, as these could constitute cruel, inhuman or degrading treatment or punishment;
  • (x) review the use of electroshock devices, strictly regulate their use, restricting it to substitution for lethal weapons, and eliminate the use of these devices to restrain persons in custody;
  • (y) review the regime imposed on detainees in “supermaximum prisons,” in particular the practice of prolonged isolation;
  • (z) ensure that reports of brutality and ill-treatment of members of vulnerable groups by its law-enforcement personnel are independently, promptly and thoroughly investigated and that perpetrators are prosecuted and appropriately punished;
  • (aa) invite the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, in full conformity with the terms of reference for fact-finding missions by U.N. special procedures, to visit Guantánamo Bay and any other detention facility under its de facto control;
  • (bb) reconsider its intent not to join the International Criminal Court;
  • (cc) withdraw all U.S. reservations, declarations and understandings lodged at the time of ratification of CAT;
  • (dd) make declaration under article 22, thereby recognizing the competence of the Committee to receive and consider individual communications, and ratify Optional Protocol to CAT;
  • (ee) provide detailed statistical data, disaggregated by sex, ethnicity and conduct, on complaints related to torture and ill-treatment allegedly committed by law-enforcement officials, investigations, prosecutions, penalties and disciplinary action relating to such complaints, etc.

Indeed, journalists saw the Committee’s report as “a rebuke of Bush administration counter-terrorism policies.” Human Rights Watch said it was a “strong and thorough critique” and “a complete repudiation of virtually every legal theory that the Bush administration has offered for its controversial detention and interrogation policies.” [10]                   

4. U.S. Reaction to the Committee’s Conclusions and Recommendations

Immediately after the release of the Committee’s report, U.S. officials were very critical of the Committee and its report. Mr. Bellinger was reported as saying that the report was “skewed and reaches well beyond the scope and mandate of the Committee,” and he reiterated the U.S. argument that in any war, a belligerent nation holds captured combatants without charges indefinitely until the war is over. Bellinger even said the Committee had not provided a fair hearing.[11]

Pursuant to CAT’s request, within one year after the issuance of its conclusions and recommendation, the U.S. on July 25, 2007, submitted its follow-up report to the Committee regarding some of its conclusions and recommendations.[12] Here is what the U.S. said:

  • The treaty has no provision regarding the registration of prisoners and, therefore, the recommendation to do so was not required; U.S. personnel, however, “generally maintain appropriate records” on detainees;
  • The U.S. determines whether it is more likely than not that a person would be tortured in another country before transferring him, not whether there is a “real risk” of that occurring, and the treaty does not give such individuals a right to challenge the transfer;
  • There is no basis in the treaty to recommend that the Guantanamo Bay facility be closed or that every detainee there have a right to judicial review of their detention;
  • The law of war, not CAT, applies to detention of enemy combatants in the war on terrorism; and
  • Juveniles are not regularly and generally held in federal and state prisons with adult prisoners. The U.S. is not a party to the Convention on the Rights of the Child and is not subject to any of its provisions.

Conclusion

CAT also requested the U.S. to submit its next periodical report on or before November 19, 2011.[13] The U.S., however, did not do so. Once again we see that CAT does not have power to order the U.S. or any other State Party to do anything or to impose sanctions on the party when it does not do what CAT politely had requested.


[1] Convention Against Torture, Art. 19(1); Post: The Multilateral Treaty Against Torture (Nov. 29, 2011); Post: U.S. Ratification of the Multilateral Treaty Against Torture (Dec. 1, 2011); Post: U.S. First Report to the Committee Against Torture (Dec. 5, 2011).

[2] Post: U.S. First Report to the Committee Against Torture (Oct. 15, 1999); U.S. Dep’t of State, Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005), http://www.state.gov/g/drl/rls/45738.htm.

[3]  Id. The second report also contained responses to CAT’s concerns and recommendations to the first U.S. report. In connection with the second report, the U.S. in October 2005 also provided CAT with supplemental responses that are contained in a U.S. Department of State website, http://www.state.gov/g/drl/hr/treaties/index.htm.

[4] CAT, List of issues to be considered during the examination of the second periodic report of the UNITED STATES OF AMERICA (Feb. 8, 2006), http://www.state.gov/g/drl/hr/treaties/index.htm.

[5] U.S. Dep’t of State, Response of the U.S.A. to List of issues to be considered during the examination of the second periodic report of the U.S.A. (April 28, 2006), http://www.state.gov/g/drl/hr/treaties/index.htm.

[6]  U.S. Dep’t of State, U.S. Treaty Reports, http://www.state.gove/g/drl/hr/treaties/index.htm: has posted the following documents at U.S. Dep’t of State, Opening Statement for U.S. Hearing at Committee Against Torture (May 5, 2006); U.S. Dep’t of State, Opening Remarks by John Bellinger (May 5, 2006); U.S. Dep’t of State, U.S. Delegation Oral Responses to CAT Committee Questions (May 5, 2006). See also U.N. Committee Against Torture, Summary Record of 703rd Meeting–Consideration of Second Periodic Report of the U.S.A. (May 5, 2006); Wright, U.S. Defends Rights Record Before U.N. Panel in Geneva, N.Y. Times (May 6, 2006).

[7] U.N. Committee Against Torture, Summary Record of 706th Meeting–Consideration of Second Periodic Report of the U.S.A. (May 8, 2006) (original in French);U.S. Dep’t of State, The United States’ Oral Responses to the Questions Asked by the Committee Against Torture (May 8, 2006); Wright, U.S. Defends Itself on Inmate Abuse, N.Y. Times (May 9, 2006).

[8] U.S. Dep’t of State, U.S. Delegation Departure Statement (May 9, 2006) (available on State Department website).

[9] Committee Against Torture, Conclusions and Recommendations Regarding U.S.A. (7/25/06), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e2d4f5b2dccc0a4cc12571ee00290ce0.

[10] Human Rights Watch, U.N. Torture Committee Critical of U.S. (May 19, 2006); Lynch & Brubaker, U.N. Urges Closure of Guantanamo Detention Facility, Wash. Post (May 19, 2006); Lynch, Military Prison’s Closure Is Urged, Wash. Post (May 20, 2006); Golden, U.S. Should Close Prison in Cuba, U.N. Panel Says, N.Y. Times (May 20, 2006); Human Rights Watch, United States: Committee Against Torture Denounces U.S. Practices (June 1, 2006).

[11]  Id.

[12] Id.; U.S. Dep’t of State, U.S. Response to Specific Recommendations Identified by CAT, (7/25/07), http://www.state.gov/g/drl/rls/100736.htm.

[13]  See n.9 supra.

 

The U.S. Should Pursue Reconciliation with Cuba

U.S. reconciliation with Cuba is in the U.S. national interest. Cuba poses no threat to the U.S. Reconciliation would help improve the lives of many Cubans now living on the margin. Reconciliation also would advance U.S. economic and other interests.

I will explain why I reach these conclusions. Then I will set forth what I see as the topics to be addressed in the necessary bilateral negotiations to reach the reconciliation goal along with a process to facilitate such negotiations.

Why U.S.-Cuba Reconciliation Is in the U.S. National Interest

First, Cuba poses no threat to the U.S.

Our population of 313.2 million is over 28 times larger than Cuba’s of 11.1 million. Our economy of         $ 14.62 trillion is 254 times as large as Cuba’s of $57.5 billion. Our annual defense expenditures of $593.6 billion is over 270  times larger than Cuba’s of $ 2.2 billion, and Cuba’s military equipment suffers from lack of replacement parts while we all know about U.S. military capabilities’ exceeding the rest of the world combined. And our land mass is over 88 times larger than Cuba’s (9,827,000 sq. km. vs. 111,000 sq. km.). (These comparisons are based on public statistics published by our CIA.) [1]

Yes, Cuba is one of four countries on the U.S. list of “state sponsors of terrorism,” but such designation is not justified.[2] Furthermore, there is absolutely no reason why the stated reasons for the U.S. designation of Cuba as a “state sponsor of terrorism” could not be successfully addressed in a good faith negotiation between the two countries.

Second, Cuba’s regrettable human rights violations are understandable and could be more successfully addressed in direct negotiations between the two countries.

Yes, Cuba has committed violations of human rights, as illustrated by the most recent U.S. State Department Human Rights Report on Cuba.[3] As a human rights advocate, I deplore these violations.

Yet given the long-standing U.S. hostility towards Cuba and the immense U.S. superiority in economies and militaries, it is understandable why Cuba has harshly treated what we call “dissidents.” Remember the U.S. usurpation of Cuba’s war for independence from Spain in the late 19th Century and our making Cuba a de facto U.S. protectorate in the early 20th Century. Remember too the U.S.-supported invasion of Cuba’s Bay of Pigs in 1961, and the Cuban missile crisis of 1963 and the CIA plots to kill Fidel Castro. The U.S. embargo of Cuba has now lasted for nearly 52 years. Most recently the U.S. Government’s Commission on Assistance for a Free Cuba set forth a U.S. blueprint for taking over Cuba.[4] In short, Cuba has many legitimate reasons to be afraid of the U.S.

And we should know from our own history since 9/11 that societies and governments tend to clamp down on civil liberties when they fear outside interference or attacks.

Cuba’s human rights record is often used as another justification for U.S. continued hostility towards Cuba and the maintenance of the embargo. Yet, I submit, this has been a failed strategy, and there is no reason to suspect that continuation of this hostility will bring about a change in Cuban human rights.

Instead, good faith negotiations between the two countries aimed at normalization of relations, I believe, hold more promise for improving human rights in Cuba.

Third, normalizing U.S. relations with Cuba would be in the economic interests of the U.S.

Prior to the recent global financial and economic turmoil, Cuba had the highest economic growth rate in Latin America. This was due in substantial part to increasing world prices for two of its exports, nickel and cobalt. Exploration for oil off the north coast of Cuba is now proceeding. Cuba needs to import many agricultural products. Foreign tourists (mainly Canadians and Europeans) enjoy Cuba’s beautiful beaches and resorts.

The global financial and economic turmoil has had a huge negative impact on the Cuban economy. The Cuban government wants to lay off 500,000 public employees (nearly 10 % of the total labor force), leaving them to try to support themselves as barbers, hairdressers and similar occupations. The government also wants to eliminate the food ration card system that provides limited quantities of basic foods at low, subsidized prices. Such changes increase the economic incentives for Cubans to leave the island and somehow get to the U.S.

Our economic embargo of the island deprives our own businesses and farmers from benefiting from trade with the island. In addition, our embargo provides economic opportunities for other countries, and increasingly China, to fill the void.

Fourth, normalizing relations with Cuba would be in the overall interest of the U.S.

The U.S. has many pressing real problems in the world, and Cuba is not one of them. Normalizing our relations with the island would be seen by most people in the world, especially Latin America, as a sign that the U.S. is a mature, rational country.[5]

Topics for U.S.-Cuba Negotiations

I am not a U.S. government employee and thus am not privy to all of our Government’s issues regarding Cuba. As a concerned and informed U.S. citizen, however, I believe that any U.S.-Cuban negotiations would include at least the following subjects:

1. re-establishment of full diplomatic relations;

2. termination of the United States’ embargo against Cuba;

3. termination of the United States’ restrictions on its citizens’ travel to Cuba;

4. compensation by Cuba for expropriated property of U.S. citizens and businesses;

5. emmigration and immigration of citizens between the two countries;

6. enhancement of human rights of Cuban citizens;

7. the status of Cuba’s lease of Guantanamo Bay to the United States; [6]

8. the continued U.S. imprisonment of the so-called Cuban Five;[7]

9. the continued Cuban imprisonment of U.S. citizen, Alan Gross;[8]

10. U.S. fugitives in Cuba;[9]

11. exploration and drilling for oil in the Caribbean Sea between the two countries;[10]  and

12. Cuba’s re-entry into the Organization of American States.

Process for U.S.-Cuban Negotiations

Given the long period of hostility between the two countries and the apparent lack of movement toward negotiations, I believe that the assistance of a neutral third-party mediator would be helpful to both countries. Such a mediator, in my opinion, should be someone who is bilingual in English and Spanish with experience as an international mediator, who is in fact and perceived to be neutral and who has the time (and staff?) to make a major commitment to this process.

Such a mediator indeed could step forward and invite representatives of both countries to participate in mediated negotiations, rather than wait on them to agree on such a process. As a private citizen I unsuccessfully have tried to interest two international organizations in doing just that.[11]

Conclusion

As a result of the above analysis, I strongly disagree with the stated position of the Obama Administration. On May 13, 2011, President Obama said (in Miami), “I would welcome real change from the Cuban government … For us to have the kind of normal relations we have with other countries, we’ve got to see significant changes from the Cuban government and we just have not seen that yet.”[12] He and Secretary of State Clinton previously have made similar statements.[13]

The Administration, in my opinion, is wrong on this policy for two reasons.

First, the U.S. should not insist on another country’s making certain internal changes before even talking about a whole range of issues that need to be resolved in a bilateral relationship. Indeed, this is exactly what the U.S. is advocating for Israel and the Palestinians.

Second, the Administration is wrong as a matter of fact about the changes that have been happening in Cuba over the last 18 months or so. The Cuban government has announced major changes in the economic structures–planning to fire 500,000 public employees and allowing greater private enterprise and economic freedom. Some workers are organizing unions. A small farmers group is calling for an end to the state’s food distribution monopoly. The government is cracking down on corruption. Cuba as a result of an agreement that was brokered by the Roman Catholic Bishop of Havana has released most, if not all, of its political prisoners.


[2]  See Post: The Ridiculous  U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011).

[3]  U.S. State Dep’t, 2010 Human Rights Report: Cuba (April 8, 2011),    http://www.state.gov/g/drl/rls/hrrpt/2010/wha/154501.htm.

[4]   U.S. Commission on Assistance for a Free Cuba, http://www.cafc.gov. The Commission apparently has been abandoned by the Obama Administration because it is not mentioned on the current U.S. State Department website.

[5]   E.g., Thompson & Romero,  Clinton Aims to Improve Ties with Latin America,, N.Y. Times (May 19, 2011), http://www.nytimes.com/2011/05/19/world/americas/19policy.html

[6]  From 1903 through 1933, the annual rent for the U.S. lease of Guantanamo was $2,000 (U.S. gold coins), an amount that was initially seen as generous to Cuba. From 1934 through 1971 it was $3,336 as a result of the U.S. going off the gold standard. In 1972 it was adjusted to $3,676 (due to revaluation of the U.S. Dollar to gold). In 1973, another adjustment for the same reason produced an annual rent of $4,085 which is still in effect today. Thus, for many more recent years the rent is seen as nominal. Moreover, starting in 1960 (soon after the Cuban Revolution took over the island), Cuba has refused to cash the annual rent checks. Thus, for over half a century the U.S. has not paid anything for leasing Guantanamo. (Michael Strauss, The leasing of Guantanamo Bay at 126-37 (Westport, Conn.: Praeger Security Int’l 2009); id. at 214-33 (text of the actual lease agreements).)

[7]  The “Cuban Five” are five Cubans in U.S. prisons after convictions for conspiracy to commit murder; conspiracy to commit espionage; conspiracy to commit crimes against the U.S.; use of false identity and documentation; and being unregistered agents of a foreign government. In Cuba, they are regarded as heroic patriots. A future post will discuss their case.

[8]  Gross is a U.S. citizen who was arrested in Havana in December 2009 and later convicted of illegally distributing in Cuba satellite communications equipment as a subcontractor of USAID.

[9]  E.g., Puerto Rican Nationalist: Not Guilty in Bank Heist, N.Y. Times (May 21, 2011),    http://www.nytimes.com/aponline/2011/05/20/us/AP-US-Puerto-Rico-Robbery.html?sq=CUBA&st=nyt&scp=3&pagewanted=print (Puerto Rican nationalist pleads not guilty in 1983 U.S. bank robbery; another suspect in the robbery is believed to be living in Cuba).

[10]  E.g., Howell, Oil Spill Panel’s Chairman Says His Push for Cuba Talks Irked Obama Admin, N.Y. Times (May 17, 2011); Reuters, Cuban Oil Rig Set to Cause Waves in Washington, N.Y. Times (May 17, 2011).

[11]  The two organizations were The Elders, an independent group of eminent global leaders focused on peace building (http://www.theelders.org/elders) and the Oslo Center for Peace and Human Rights (http://www.oslocenter.no/index.php?option=com_content&task=view&id=12&Itemid=29).

[12]  Reuters, Obama wants “real change” in Cuba before Normal Ties (May 13, 2011).

[13] Ariosto, Cuba to free five more prisoners, CNN, Oct. 21, 2010 (Obama said, “I think that any release of political prisoners, any economic liberalization that takes place in Cuba is positive, positive for Cuban people, but we’ve not yet seen the full results of these promises”); Oppenheimer, Obama unwilling to make new gestures to Cuba without action from Havana, Miami Herald (March 23, 2011)(Obama said, “The Cuban government made some gestures about releasing political prisoners and starting some market-based economies with small business opportunities. (But) we haven’t seen as much follow-through as we would like”); Secretary of State Clinton, Remarks at the 41st Washington Conference on the Americas, (May 11, 2011) (Secretary of State Clinton said the U.S. “could do more  [to improve relations with Cuba] if we saw evidence that there was an opportunity to do so coming from the Cuban side because we want to foster these deeper connections and we want to work for the time when Cuba will enjoy its own transition to democracy, when it can look at its neighbors throughout the hemisphere and the people in Cuba will feel that they, too, are having a chance to choose their leaders, choose their professions, create their businesses, and generally take advantage of what has been a tremendous, great sweep of progress everywhere but Cuba.”); Lopez, The “Low Point” in U.S.-Cuba Relations–One Year Later  Havana Note (May 2011).