Cuba and U.S. Debate Cuba’s Treatment of José Daniel Ferrer

On March 11, the U.S. State Department released its latest annual report on human rights around the world. A previous post discussed some of the details of that criticism while another post looked at the limited positive comments in that report. Now we examine the report’s criticism of Cuba’s treatment of José Daniel Ferrer after a review of what previous posts have set forth on that subject followed by a review of more recent events.

Previous Posts’ Discussion of Ferrer[1]

As the leader of the Patriotic Union of Cuba (UNPACU), which has criticized the Cuban government for a long time, Ferrer has had many conflicts with the Cuban government. The most recent started on October 1, 2019, with his arrest and detention for allegedly kidnapping and beating a fellow Cuban (Sergio Garcia) and with an October 17th rejection of Ferrer’s plea for a writ of habeas corpus.

On October 18, 2019, the State Department publicly condemned this arrest and detention as part of an escalating “wave of repression against freedoms of speech, expression, and religion” and demanded his immediate release from detention.

On November 20, 2019, an editorial in Granma, the official newspaper of the Communist Party of Cuba, alleged that Ferrer was in detention because he was “a salaried agent of the United States, with a long history of provocative actions, disruption of public order, and violations of the law” and that the U.S. Embassy in Havana and Chargé d’ Affaires Mara Tekach had been “the fundamental . . . [instrument  for the] orientation, and financing of . . . Ferrer’s conduct, clearly interfering in Cuba’s internal affairs, openly inciting violence, promoting the disruption of order and contempt for the law by this citizen. . . .”[2]

That same day, UNPACU said this editorial was “a complete manipulation of the judicial process against” Ferrer by asserting “two fundamental lies, first, it locates the process of searching for freedom and universal rights of the Cuban people under the authorship of the United States Government, and, second, it states that . . .Ferrer is a salaried agent of the service of United States, with a violent trajectory.” [3]Instead, UNPACU stated the following:

  • The “demonstrations of popular discontent against the Cuban regime, which we can see daily thanks to the internet’s social networks, are a direct consequence of 60 years of communist government of the single party that deprives them of fundamental rights and freedoms to Cuban citizens. What translates into a permanent state of material and spiritual crisis, which from time to time reaches critical levels like the current one. It is worth asking the Cuban regime if the two 2.5 million citizens that they recognized who did not agree with the new constitution [and voted against it in the referendum], were also cared for, guided and financed by the United States Embassy in Cuba. The Chargé d’Affaires of the United States Embassy, ​​Mara Teckach.”
  • “Our organization receives help without imposition from various foreign institutions that promote values ​​such as democracy, freedom, the rule of law and the division between the powers of the State, without which it is impossible for a Government to guarantee and respect human rights. With the help we receive, we do not buy weapons, bombs, or terrorism. With that help we buy printers and sheets to print thousands of copies of the Universal Declaration of Human Rights and distribute them among the population.”
  • “With regard to the slander against José Daniel Ferrer, we can say that in his case and in that of the Patriotic Union of Cuba there is no record of activism during these years of activism against any member of the repressive bodies of the Cuban State.”
  • “During this time [60 days of unjust imprisonment of Ferrer and three of his colleagues] we have published several testimonies of people who demonstrate the pressure exerted by members of the Ministry of the Interior (MININT) against activists and neighbors of the community of Mármol, where the main headquarters of UNPACU is located, to raise false charges against him. We have even alerted the use by the State Security of agents that we have expelled from our ranks for being at their service, to make false accusations.”
  • “Other evidence of the political police maneuvers in the case is that the wife of the alleged accuser declared through a phone call that we made public, that her husband suffered a traffic accident and that the police were pressing him very insistently to who said that the injuries contracted in the accident had been caused by . . . [Ferrer].. Also, the sister of Roilán Zárraga Ferrer, one of the activists detained with José Daniel, publicly stated that his brother communicated to him on a recent visit to the Center for Criminal Instruction in Santiago de Cuba, where he is being held, that they are pressuring him to sign a false statement against José Daniel.”
  • “Among the serious violations that occurred in this case, the conditions of confinement of the detainees are of great concern, as well as the torture, cruel, degrading and inhuman treatment to which . . .Ferrer is being subjected, as confirmed by his wife on a recent visit to the Aguadores prison in Santiago de Cuba, after 34 days of being kept missing.”

The U.S. State Department on November 22 vehemently denied the Cuban government’s charges and said “these baseless accusations . . . [were] an attempt to distract the international community from its abysmal treatment of the Cuban people, especially the ongoing arbitrary detention of  . . Ferrer.”

Cuba, however, on November 26, returned to this attack on the U.S. and Ferrer in an open letter from Cuba’s Ambassador to the EU to the latter’s Parliament asserting that the U.S. and its diplomatic mission in Cuba have been “guiding, instigating and financing the violent and destabilizing behavior of Ferrer” while intending “to fabricate the image of [him as] a persecuted and mistreated” political dissident. The Cuban Ambassador also denied allegations of subsequent Cuban jail mistreatment of Ferrer as “lies . . . deliberately conceived and guided by the United States Government and its Embassy in Havana.”

The next day (November 27) on Cuban national television the Cuban government alleged that Ferrer that year had received $50,000 form the U.S. Government via the Miami-based Cuban-American National Foundation and showed a video of him banging his head against a metal table.

These Cuban allegations, however, did not persuade the EU Parliament, which on November 28 adopted a resolution condemning Ferrer’s arbitrary detention and torture and demanding his immediate release.

On January 30, 2020, Ferrer’s wife and children were permitted to visit him in prison, when he appeared to be very thin and told his wife that he had not been receiving any medical attention. In addition, the prison did not allow him to eat food and take medicines brought by his wife.

On February 24, Secretary Pompeo sent an open letter to Cuba Foreign Minister Bruno Edwardo Rodriguez Parrilla demanding the immediate release of Ferrer. This letter stated the following:

  • “Cuban human rights defender Jose Daniel Ferrer has endured more than 100 days of unjust imprisonment and repeatedly has been dragged, chained, beaten, and burned at the hands of the regime, which you represent.  The United States government joins a chorus of international voices demanding Ferrer’s immediate release.  The European Parliament, the United Nations, the Organization of American States, Amnesty International, and journalists and human rights organizations from countries across the globe have condemned your regime’s treatment of Ferrer and other human rights defenders like him.”
  • “This is not the first time your regime has targeted Ferrer.  He was imprisoned from 2003 until 2011 for advocating for democracy and respect for human rights in Cuba.”
  • “The current spurious charges against Ferrer follow a familiar pattern of harassment, violence, and arbitrary arrests against Cubans who seek only to advocate for democracy and the political and economic freedoms that would enable the Cuban people to create prosperity in Cuba.  It cannot be a crime to criticize policies that have set Cuba’s development tumbling backwards for the past 61 years.”
  • “The United States will never forget the brave Cubans who put their lives on the line for the sake of a free Cuba.  Until there is democracy and respect for human rights in Cuba and all political prisoners are freed, the United States will continue to hold the regime accountable for its abuses.  For the sake of the Cuban people and for the betterment of your nation, we urge you to free Jose Daniel Ferrer immediately.”
  • On February 26, 2020, Ferrer was put on trial in Santiago de Cuba for the alleged crimes of injury, deprivation of liberty to third parties and attack. According to the Cuban Prisoners Defenders (CPD), the court did not permit any of the witnesses at this 12-hour trial to utter the words “opponents, dissidents, political police, State Security, headquarters, UNPACU, regime, dictatorship, dictators and illegal.”

Secretary Pompeo’s Comments About the New U.S. Human Rights Report                 and Ferrer[4]

The Secretary’s comments upon the release of the report included the following:  “The name Jose Daniel Ferrer appears 17 times in this report.  He’s one of thousands of political prisoners who, over the years, have been dragged, chained, and beaten at the hands of the [Cuban] regime. Tomorrow (March 12) he will be sentenced by a Cuban court.” (Emphasis added.)

The New Report’s Discussion of Ferrer[5]

The Executive Summary of the report on Cuba stated the following:

  • “On February 24, the country adopted a new constitution in a coerced referendum marred by violent government repression against those that opposed the proposed constitution. On February 12, for example, 200 police and security agents raided the homes of leaders of the Patriotic Union of Cuba (UNPACU) [which is headed by José Daniel Ferrer] for openly campaigning against the draft constitution, detaining and reportedly beating UNPACU members. Other opponents reported that the government had blocked their email and texts to keep them from disseminating opposition campaign materials. Article 5 of the constitution enshrines one-party rule by the CCP, disallowing for additional political expression outside of that structure. Although the new constitution adds explicit protections of freedom and human rights, including habeas corpus, authorities did not respect them, nor did the courts enforce them.” (Emphases added.)

In addition, the report had the following references to the persecution of José Daniel Ferrer:

  • Authorities “detained UNPACU leader Jose Daniel Ferrer several times during the year. He was often held for several days at a time incommunicado or without being charged in court. Although uniformed security officials were present for his arrest, authorities denied having him in their custody (see also sections 1.d. and 2.d.). On October 1, police detained him for almost six weeks before allowing his family to see him and did not announce charges against him until November 15, 45 days after his disappearance. In the interim, authorities rejected writs of habeas corpus filed by his wife. As of December, Jose Daniel Ferrer remained in custody.” (Section 1.B) (Emphases added.)
  • “When authorities did allow Nelva Ismarays Ortega Tamayo, the wife of Jose Daniel Ferrer . . ., to visit him in prison, she found him emaciated with signs of repeated physical torture. He was reportedly unable to lift his arms and recounted daily psychological trauma inflicted at the instruction of his jailers.” (Section 1.C) (Emphasis added.)
  • “On August 27, authorities detained UNPACU leader Jose Daniel Ferrer in connection with a fabricated murder case from 2018. He was previously detained in August 2018 in Santiago de Cuba for 12 days and charged with attempted murder following a car accident in which he hit and injured an official in Palmarito del Cauto. There were reports the official intentionally jumped in front of the vehicle Ferrer was driving, resulting in minor injuries to the official. Despite reported coercion of witnesses, police could not obtain corroborating evidence against Ferrer, and the prosecution was forced eventually to release him. Police, however, continued to use the case as justification for detaining him.” (Emphases added.) Prison officials refused to consider pleas from Ferrer’s wife to consider his failing health or accept medicine she brought to the prison for him, and they banned her from further visits to the facility. On November 15, the government provided her a copy of the charges filed against Ferrer on October 7. As of December 3, Ferrer still had not received access to a lawyer, and a trial date had not been set. (Section 1.D) (Emphases added.)
  • “In connection with a planned march on September 8, several UNPACU activists were arbitrarily detained on September 7. On September 8, immediately after leaving his house with several supporters, Ferrer and other supporters were arrested (see section 2.b. for more information). On October 1, he was arrested again, this time on different charges that he was involved in a physical assault of an UNPACU member. The charges were likely fabricated, due to testimony from multiple individuals that the alleged victim left UNPACU headquarters unharmed and testimony from the alleged victim’s wife that the injuries were sustained in a motorcycle accident. A separate activist said she was threatened with prison if she did not sign a false statement implicating Ferrer in the alleged crime. (Section 1.D) (Emphases added.)
  • Ferrer was held incommunicado for 72 hours before authorities acknowledged he was in custody, and they denied his wife access to him. Several days later, she was finally allowed access to him and received permission to send him a change of clothes, but not medication to tend to his chronic medical condition. On October 18, after not seeing him for more than two weeks, she filed a writ of habeas corpus stating Ferrer’s family did not know his whereabouts or if he was still alive, and that they had not been informed of charges filed against him or been given the opportunity to provide a lawyer to represent him. The court ruled against the petition, claiming that charges were brought on October 3 and formally filed October 7, without stating his location or the charges against him.” (Section 1.D) (Emphases added.)
  • “On October 25, still without access to her husband for herself or her lawyers, and still without knowing the public charges, Ferrer’s wife and his three minor children demonstrated against her husband’s mistreatment in a public park in Santiago de Cuba; security officials arrested all individuals. On November 7, she was allowed a five-minute supervised visit with him–the first proof she had received in more than one month that Ferrer was still alive. He described extremely punishing treatment he received at the hands of his jailers, who chained him hand and feet, offered him only spoiled food and foul water, and held him with a known violent criminal who said he was offered privileges in exchange for beating Ferrer (which he did regularly).” (Section 1.D) (Emphases added.)
  • “Prison officials refused to consider pleas from Ferrer’s wife to consider his failing health or accept medicine she brought to the prison for him, and they banned her from further visits to the facility. On November 15, the government provided her a copy of the charges filed against Ferrer on October 7. As of December 3, Ferrer still had not received access to a lawyer, and a trial date had not been set.” (Section 1.D.) (Emphases added.)
  • On “September 6-7, the internet access of several UNPACU members was suspended ahead of a planned march, and on October 3, the government suspended the internet access of UNPACU national committee member Katherine Mojena Hernandez after she repeatedly tweeted about a government crackdown on the group. (Section 2.D) (Emphases added.)

Subsequent Developments[6]

Although, as Secretary Pompeo stated, Ferrer’s sentencing was scheduled for March 12, it did not happen, but was postponed to March 14. This delay prompted UNPACU to release the following statement on social media:

  • “The sentence against José Daniel Ferrer will not be issued by an impartial Court, but by the Cuban regime, which probably already has his sentence from the moment of his unjust arrest more than five months ago.”
  • “If there were in Cuba a system with guarantees for its citizens, both José Daniel Ferrer and the other three activists would have been acquitted on the day of the manipulated trial of which they were victims, because with evidence it was shown that all the accusations were part of an orchestrated theater by the political police. “
  • “The UNPACU dismisses the sentence that will be delivered, because it is the product of a perverse dictatorship that for fear and hatred represses and imprisons those who courageously oppose them peacefully, such as José Daniel Ferrer García.”

On March 14, there was still no sentencing. Thus, on March 17,  Ferrer’s teenage son went to the court to demand an explanation for the delay in the sentencing, but was told that the court would not receive anyone. Now it is March 19, and there still is no announcement of the sentencing, which, whenever it comes, will be the subject of a future post.

Conclusion

Given the hostile rhetoric and actions of the Trump Administration against Cuba, it seems exceedingly unlikely that the two parties could peaceably negotiate an end to this dispute over the charges against Ferrer. If there were some country or person who had the trust of both sides, perhaps that country or person could act as a mediator to try to resolve the conflict. Or the two countries could arbitrate this (along with many other) disputes before the Permanent Court of Arbitration at the Hague in the Netherlands.[7] Otherwise, this dispute just adds to the stack of such disputes.

An independent U.S. source (Cuba Money Project) quotes the previously mentioned UNPACU acknowledgement of receiving support from “various foreign institutions that promote values such as democracy, freedom, the rule of law and the separation of powers of state, without which it is impossible for a government to guarantee and respect human rights.” The Project then states that the Cuban American National Foundation on a 2016 U.S. federal tax form reported that it gave $99,431 to UNPACU.

In addition, this Project recently reported the following two other U.S.-financed efforts to promote democracy in Cuba:

  • First, the U.S. government-financed National Endowment for Democracy (NED) in 2019 managed Cuba projects worth $5,411,535.50 for organizations other than UNPACU and another $565,964.50 going to undisclosed organizations.[8]
  • Second, the U.S. Embassy in Havana has announced plans to award grants to Cuban NGOs, institutions and individuals to strengthen Cuba’s independent civil society’s “professional ties” with the U.S. Although there was no announcement of the total amount of such grants or the number of such grants, it did say that they would be at least $10,000 each.[9]

These U.S. programs that were uncovered by the Cuba Money Project provide support for the previously mentioned allegations of Granma’s November 2019 editorial. While the purpose of these U.S. programs sounds good to the ears of U.S. citizens, it is easy to understand why that is not so for the Cuban government.

Ideally the two governments should discuss, negotiate and agree on the details of any such programs. We were headed in that direction during the last 25 months of the Obama Administration.

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[1] Among the many posts about Ferrer, see these posts in dwkcommentaries.com: Secretary Pompeo Demands Release of Cuban Dissident  (Feb. 27, 2020)(and previous posts and comments cited in footnote 2); José Daniel Ferrer Tried for Common Crime in Cuba (Feb. 28, 2020).

[2] Cuba Accuses U.S. of Using Ferrer Case To Try to Discredit Cuba, dwkcommentareis.com (Nov. 21, 2019).

[3] Response of the Patriotic Union of Cuba to the article in the Granma newspaper about José Daniel Ferrer, unpacu.org/en (Nov. 20, 2019).

[4] State Dep’t, Secretary Michael R. Pompeo on the Release of the 2019 Country Reports on Human Rights Practices (Mar. 11, 2020); Jakes, Critics Hear Political Tone as Pompeo Calls Out Diplomatic Rivals Over Human Rights, N.Y. Times (Mar. 11, 2020).

[5] State Dep’t, 2019 Country Reports on Human Rights Practices: Cuba (Mar. 11, 2020).

[6] The regime postpones the sentence against José Daniel Ferrer, Diario de Cuba (Mar. 12, 2020); The authorities still do not reveal the sentence against José Daniel Ferrer, Diario de Cuba (Mar. 17, 2020).

[7] See Proposed Resolution of U.S.-Cuba Issues, dwkcommentaries.com (Jan. 31, 2019).

[8] Eaton, Dissident’s arrest triggers debate over funding, Cuba Money Project (Dec. 7, 2019); Eaton, NED kept secret more than a half million dollars in Cuba projects, Cuba Money Project (Jan. 2, 2020). The Cuba Money Project was started and is operated by Tracey Eaton, a U.S. journalist and former Havana bureau chief for the Dallas Morning News; it aims to report stories about U.S. government programs and projects related to Cuba.

[9] Eaton, Public diplomacy or interference?, Cuba Money Project (Feb. 1, 2020); U.S. Embassy in Cuba, Education & Culture: Annual Program Statement. (undated).

 

Cuba’s Perspective on This Week’s U.S.-Cuba Diplomatic Meetings in Havana

As mentioned in another post, the U.S. and Cuba will hold diplomatic meetings in Havana on January 21 and 22, 2014.

According to Granma, Cuba’s official and only newspaper, an unnamed source at Cuba’s Ministry of Foreign Affairs said that Cuba “is going to these meetings with the constructive spirit to sustain a respectful dialogue, based on sovereign equality and reciprocity, without undermining national independence and self-determination of the Cuban people.”

“We should not pretend that everything is solved in one meeting,” the source said. “Normalization is a much longer and complex process where you have to address issues of interest to both parties.”

Migration Issues

On January 21st, the focus will be migration, and the unnamed source said Cuba will report on “the progress of the measures taken in January 2013 to update the Cuban immigration policy and its impact on the flow of people between the two countries,” and the two countries will discuss ways to confront “illegal immigration, smuggling and document fraud.”

In addition, Cuba will express “its deep concern at the continuing [U.S.] policy of ‘wet foot/dry foot’ and the Cuban Adjustment Act, which is the main stimulus to illegal emigration.” Cuba also will complain about the U.S. policy “to grant parole [to] Cuban professionals and health technicians to abandon their mission in third countries.”

Normalization Issues

On January 22nd the focus will be the many issues surrounding the December 17th decision of the two countries to re-establish diplomatic relations. As previously mentioned, Assistant Secretary of State Roberta Jacobson will lead the U.S. delegation at this session.[1]

The unnamed Cuban source said there would be discussion about certain levels of existing coordination in dealing with illegal immigration, including border troops and the coastguard; drug interdiction; oil spills; and search and rescue in case of air and maritime accidents. They also “are beginning to talk about monitoring earthquakes.”

Cuba will “reiterate the proposal made last year by U.S. government to hold a respectful dialogue on the basis of reciprocity with regard to the exercise of human rights.” The source promised “a dialogue on a reciprocal basis and on an equal footing” regarding human rights. Cuba has “legitimate concerns about the exercise of human rights in the [U.S.],” including controversies over police shootings and killings of black men in Ferguson Missouri and New York City, which are “situations that do not happen in [Cuba].” The source says his country welcomes the U.S. to meet “with the recognized organizations that make up a vibrant civil society in Cuba: students, women, farmers, professionals, disabled, unions, among others.” [2]

According to this source, Cuba will emphasize “the restoration of diplomatic relations and the opening of embassies in both capitals should be based on the principles of international law enshrined in the United Nations Charter and the Vienna Conventions on Diplomatic Relations and Consular Relations.”

“Compliance with these documents, to which both countries are signatories, means mutual respect for political and economic system of each country and to avoid any interference in the internal affairs of our nations. These principles are essentially sovereign equality, the settlement of disputes by peaceful means, refrain from the threat or use of force against the territorial integrity or political independence of any state, as well as equal rights, self-determination of peoples and non-intervention in matters which are domestic jurisdiction of states.”

In this context, Cuba will raise the following issues:

  • Solving the inability of the Cuban Interests Section in Washington, D.C. to obtain banking services;
  • Ending the U.S. designation of Cuba as a “State Sponsor or Terrorism;”
  • Ending the U.S. blockade [or embargo] of Cuba and providing Cuba with “compensation for damages for a policy that has been in place for over 50 years.” (At the U.N. General Assembly meeting in October 2014, Cuba claimed that the damages were $1.1 trillion.)

These issues, the source admitted, obviously cannot be resolved at the one-day meeting this week.

Reactions

I agree that certain U.S. laws relating to Cubans’ ability to gain legal immigration status in the U.S. need to be changed if there is to be full normalization and reconciliation. This includes the so-called “wet foot/dry foot” policy whereby a Cuban who is on U.S. land is entitled to such legal status, but if a Cuban is apprehended by U.S. authorities on the high seas, he is not so entitled. So too the U.S. program for granting immigration parole to Cuban professional medical personnel needs to be ended, as recommended by a New York Times editorial and by this blogger last November. (Whether these changes may be done by the President’s executive order or whether it takes congressional action has not been investigated by this blogger.)

The U.S. repeatedly has insisted that issues of Cuban human rights and civil society need to be addressed, and the Cuban Foreign Ministry spokesperson said his country was prepared to do that so long as Cuba’s concerns about human rights in the U.S. are addressed. I agree that there should be mutuality in any such discussion.

I also agree that the restoration of normal diplomatic relations needs to be based on what should be the following noncontroversial principles of the U.N. Charter and the Vienna Conventions on Diplomatic and Consular Relations:

  • The U.N. Charter provides that it is “based on the principle of sovereign equality of all its members” (Art. 2(1)), that “[a]ll Members shall settle their disputes by peaceful means” (Art. 2(3)) and that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the [U.N.]” (Art. 2(4)).
  • The Vienna Convention on Diplomatic Relations provides that “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent” (Art. 2) and sets forth many details on the agreed-upon ways of implementing such relations. There are 190 states that are parties to this treaty, including Cuba and the U.S.
  • Similarly the Vienna Convention on Consular Relations says “The establishment of consular relations between States takes place by mutual consent” (Art. 2(1)) and provides many details on the agreed-upon ways of implementing such relations. There are 177 parties to this treaty, including Cuba and the U.S.

Other points of agreement with the Cuban spokesperson are enabling the Cuban Interests Section in Washington, D.C. to obtain banking services in the U.S.; ending the U.S. designation of Cuba as a “State Sponsor of Terrorism;”[3] and ending the U.S. embargo of Cuba.[4] As discussed in an earlier post, the U.S. already has started the process under U.S. law for rescinding the unjustified “State Sponsor of Terrorism” designation, and I anticipate that this summer there will be such a rescission. President Obama already has decided that the embargo should end, but that requires congressional action, and the process for doing just that has commenced and will not be politically easy to accomplish

The issue of compensation, if any, for Cuba for its alleged damages of $1.1 trillion from the embargo, however, is another matter.[5] This is but one of several damage claims that need to be resolved. Others include U.S. compensation to Cuba for the U.S. use of Guantanamo Bay for at least the last 56 years; [6] Cuba’s compensating U.S. interests for expropriation of their property after 1959; and Cuba’s paying a December 1997 default judgment by a U.S. district court for $197 million (plus interest) for the deaths of three of the four pilots in the February 1966 Cuban shooting down of a private “Brothers to the Rescue” plane over international waters.

One way to resolve these claims would be an agreement by the two countries to submit all of these disputes to the Permanent Court of Arbitration at the Hague in the Netherlands, which was established by a multilateral treaty, to which both Cuba and the U.S. are parties. Other ways would be the two countries creating a special claims commission to hear and resolve all of these claims or agreeing to settle all or some of the claims.

Resolving these competing claims, however, has to recognize the economic reality, in my judgment, that Cuba does not have the financial resources to pay any large amount of money. Therefore, compensating U.S. interests for expropriation of their property in Cuba, as I see it, would have to come out of any U.S. compensation of Cuba for its claims.

What do all of these points mean for the timing of full restoration of diplomatic relations? Cuba seems to be saying that ending the embargo and the “State Sponsor of Terrorism” designation have to happen first before restoring full diplomatic relations. In the best of all possible worlds from the U.S. perspective that would be sometime this summer. An agreement on how to resolve the damage claims would be another important accomplishment that should, in my judgment, lead to the restoration of diplomatic relations and perhaps that could happen this year, but the actual resolution of the damage claims would take several years to happen absent a settlement of the claims, which seems unlikely.

In the meantime, the parties could and should agree to a process for the restoring of diplomatic relations.

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[1] Today Senator Robert Menendez (Dem., NJ), a Cuban-American and the Ranking Member on the Senate Foreign Relations Committee, sent a letter to Jacobson, saying “it is imperative” that she demand “unconditional freedom of the [previously released] 53 political prisoners and demand an end to politically motivated arrests of peaceful democracy and human rights activists.” (Emphasis added.) Menendez also urged pressing “Cuba on a commitment to permit visits to all prisons and prisoners by the United Nations and the International Committee of the Red Cross and to begin to demand action on fugitives from U.S. justice and American citizen compensation claims for property nationalized by the Cuban government in past decades.” The U.S., according to Menendez, “must prioritize the interests of American citizens and businesses that have suffered at the hands of the Castro regime before providing additional economic and political concessions to a government that remains hostile to U.S. interests.”

[2] The Washington Post reports that on Friday Jacobson will host a breakfast meeting with Cuban civil society representatives, human rights activists and political dissidents before she returns to Washington.

[3] Prior posts have articulated the statutory process for rescission and why the Designation should be rescinded.

[4] Prior posts have stated why the embargo should be ended, a conclusion also endorsed by New York Times editorial in October 2014.

[5] From my experience as a litigator of business disputes, I anticipate that any such damage claim would be subjected to rigorous examination and rebuttal by the U.S., including the undoubted U.S. argument that all or some of the alleged damages were not caused by the embargo, but rather by Cuban economic ineptitude. Of course, the U.S. would probably argue that the major premise of Cuba’s claim—the illegality of the embargo—is invalid despite the U.N. General Assembly’s condemning the embargo by overwhelming margins for 23 consecutive years. (I have not examined the merits of this legal issue.)

[6] Cuba’s original February 23, 1903, and July 2, 1903, lease of Guantanamo Bay to the U.S. for a naval coaling station called for annual rent of $2,000 in gold coin, but this was changed to $4,085 in U.S. Dollars (the gold equivalent at the time) in a treaty of May 29, 1934. After the Cuban Revolution’s assuming power on January 1, 1959, the Cuban Government has refused to cash all of the U.S. annual checks for that amount except for one that was cashed by mistake. Although the fair market value of the lease for the last 56 years has not been determined, there could be no legitimate argument that it is not substantially in excess of $4,085. Other potential issues are (a) whether the original lease of 1903 and the 1934 amendment are subject to a claim that they are invalid because of alleged duress or undue influence by the U.S. when Cuba was a de facto U.S. protectorate; (b) whether the lease should be terminated with Cuba paying for the improvements made by the U.S.; or (c) whether there should be a new lease of this land to the U.S. under totally different conditions.