Additional Reactions to End of U.S. Immigration Benefits for Cubans

There have been extensive White House comments as well as others’ reactions to the January 12 end of special U.S. immigration benefits for Cubans–“dry foot/wet foot” and the Cuban Medical Professional Parole Program—that was discussed in a prior post. Now we look at additional White House comments and the extensive reactions—positive and negative—regarding this change.

White House Comments[1]

There were two additional sets of White House comments about the change. On the early evening of January 12 and hours after the announcement of the change, Department of Homeland Security (DHS) Secretary Jeh Johnson, an unidentified senior DHS official and Benjamin Rhodes, Deputy National Security Advisor, conducted a lengthy conference call with the press on the subject. At the next day’s press briefing White House Press Secretary Josh Earnest made comments on the subject. Here is a summary of new points that were made at these events.

Press Conference Call

Johnson: “Going forward, if a Cuban migrants arrives here illegally, the Cuban government has agreed to accept that person back . . . if . . . the time [between] a Cuban migrant leaves Cuba . . . and the time that we commence a deportation proceeding against the individual is less than four years.”

The “reason for the four-year period is . . . a law in Cuba (enacted in response to the [U.S.] Cuban Adjustment Act) that essentially says that if a person has left Cuba, after two years they are considered to have effectively migrated from Cuba.  In the course of our negotiations, the Cuban government agreed [to change that period from two to four years].” In addition, Cuba has agreed to accept other Cubans “on a case-by-case basis.”

“Ultimately, we seek to get to a place fully consistent with the international law under which the Cubans will agree to accept everyone back who is ordered deported by our country.”

“This is the ending of a policy that was put in place 20 years ago.  This is not the enactment of a policy that can be repealed by a subsequent administration. So I wouldn’t characterize it as creating a policy that could be repealed [by the Trump administration].”

Rhodes: “What we’ve seen in recent years is a continued uptick in Cuban migrants coming to the [U.S.].  We attribute that to a variety of factors — one, that Cuba has liberalized its own exit policies with respect to Cubans leaving the country; two, the change in our policy — the normalization of relations that began on December 17, 2014 — I think created an expectation in Cuba that this change might take place and therefore people were motivated to migrate.  Also, though, the increase in resources available to the Cuban people, particularly through our remittance policies, also made it more possible for Cubans to travel.”

“There has been a steady increase to some 40,000 Cubans granted parole in fiscal year 2015; 54,000 roughly in fiscal year 2016.  And what we had also seen is a growing number of Cubans who had begun a journey to try to reach the United States who were in a variety of Central American countries . . . creating both humanitarian challenges and strains within those countries as large numbers of Cubans were essentially stuck there and then facing a very difficult and dangerous — journey to our southern border in some cases.”

“Ultimately . . . we’d like to see people be able to increase their economic prospects within Cuba.  That is why we have taken steps to open up a greater commercial and people-to-people relationship, and have encouraged the Cuban government to pursue economic reforms.  That, ultimately, is the best way to ensure opportunity for the Cuban people going forward.”

“The Cuban Adjustment Act is the legislative architecture around these policies.  That provides preferences including adjusted status, green card status, and certain benefits to Cubans who are paroled into the country. . . . We do believe it would be the appropriate step for Congress to repeal the Cuban Adjustment Act.”

“We did not want to speculate publicly about the likelihood of this change for fear of inviting even greater migration flows.”

“On the congressional point, while we did not have regular updates on what were very sensitive negotiations, we have over the course of the last year or so, frankly, heard from members of Congress, from both parties, who were expressing increasing concern about the migration flows.  In fact, in some cases, we were being urged to do something about it.  And we’ve also heard increasing interest and even pieces of legislation being introduced that seek to amend or repeal the Cuban Adjustment Act, whether it’s the benefits provided under the Cuban Adjustment Act or the act itself.  So this is an issue that we’ve discussed with members of Congress from both parties, and around this announcement of course we’re doing many notifications to those interested members. . . . It was clear to us that Congress was taking a greater interest in this issue, given the uptick in migration flows and the strain that was placing on certain communities.”

“[E]arly in the post-revolution history, it was very clear that the overwhelming number of Cubans who came to the [U.S.] and ended up doing incredible things here in the [U.S.] absolutely had to leave for political purposes, or very much were leaving for political purposes.  I think increasingly over time, the balance has tilted towards people leaving for more traditional reasons in terms of seeking economic opportunity and, frankly, having not just the benefits of “wet foot, dry foot” and the adjusted status, but also literal benefits under the Cuban Adjustment Act.  That’s not to say that they’re not still people who have political cause to leave Cuba.  And as we do with any other country, political asylum continues to be an option for those individuals.  But we have seen the balance shift to more similar reasons in terms of people pursuing economic opportunity.”

“[U]ltimately the best future for Cuba is one that is determined by the Cuban people, both in terms of their economic livelihoods and in terms of their political future. . . . [It is] important that Cuba continue to have a young, dynamic population that are clearly serving as agents of change and becoming entrepreneurs, and being more connected to the rest of the world. . . . [We] believe that this change is in service of creating more incentive for there to be the economic reforms that need to be pursued on the island in terms of opening up more space for the private sector, allowing foreign firms to hire Cubans, so that they can be responsive to the economic aspirations of their people. So in the long run, the best way for Cubans to have this opportunity is for them to be able to pursue it at home through an economy that has continued to pursue market-based reforms.”

We “believe very strongly, in this administration, of course, that our Cuba opening is the best way to incentivize that economic reform; that as more Americans travel, as more Americans do business, as there are greater commercial ties, that ultimately is going to create more opportunity for people in Cuba, as well as creating opportunities for Americans.  And so that’s very much the approach we’d like to see continued going forward, and ultimately the one that has the best opportunity to deliver results to the Cuban people.”

The “Cubans will be treated like everybody else.  People from anywhere can issue a claim of asylum; that does happen frequently. There’s not going to be a separate queue for Cubans.  So just like any other migrant who reaches our border, they have certain claims that they can pursue, but they’ll be treated as other individuals from other countries are.”

Press Briefing

At the January 13 press briefing, White House Press Secretary Josh Earnest made the following extensive comments about the change:

“This policy change was codified in an executive agreement between the U.S. government and the government in Cuba.  As even some of the incoming administration’s nominees have noted, there’s a tradition of subsequent Presidents observing and adhering to the executive agreements that were put in place by the previous President unless, of course, a specific decision is made to change the policy.”

“President-elect Trump . . . on January 20th . . . [will] be able to exercise all of the executive authority that are invested in the presidency at his discretion.  We believe that there is a strong case to be made about normalizing relations between our two countries, and this is just the latest step in that process to ensure that we are treating Cuban migrants the same way that we treat migrants from other countries.”

The “response to this announcement . . . is indicative of how public opinion is changing on these issues, including in the Cuban-American community.” There is “a growing majority of Americans who agree about the direction that the President [Obaama] has moved the relationship between the [U.S.] and Cuba.”

“[T]he migrants from Cuba will be treated in the same way that migrants from other countries are, which is to say legitimate claims for refugee status or for asylum will be subject to due process, which means that their claims will be evaluated.  And if they have legitimate claims for asylum, then that will be granted. But that will be adjudicated through the regular process . . . that migrants from other countries go through as well.”

“There was . . . a successful effort to brief the incoming administration shortly before this policy change was made public.”

It “takes time to negotiate these kinds of executive agreements, particularly with a country like Cuba that does not have a long history of negotiating these kinds of agreements with the United States.  For more than 50 years, the United States pursued a policy of diplomatic isolation with Cuba.  And so it’s only over the course of the last year or so that we’ve had the kind of diplomatic opening that will allow us to have these kinds of conversations.  So, negotiating these kinds of executive agreements takes time, but as soon as this agreement was completed, we announced it right away.”

Mr. Trump “certainly seems to be motivated by financial interests in some pretty important ways; he has over his professional career.  So I think he’ll find . . . [the economic argument for normalization] persuasive, particularly when you consider that there were reports that his company was negotiating with Cuba for exactly those kinds of agreements.  So he obviously recognizes the economic opportunity that’s there.  There’s more than a hundred flights every day between the [U.S.] and Cuba.  That’s cancelling a lot of flights if he wants to roll back this policy.  And I can’t imagine that the U.S. airline industry is going to be particularly pleased by that kind of development.”

“There are thousands of Americans that have an opportunity to travel to Cuba, and they’ve had an opportunity to enjoy their time there, learn a little bit more about the country, enhance ties between our two countries, and they’ve been able to return to the United States with all of the cigars and rum that they could pack into their suitcase if they choose to.  I don’t think those Americans are going to be particularly pleased to see that policy rolled back.”

For “more than 50 years, there was a policy of diplomatic isolation in place that had no material impact in improving the human rights situation in Cuba.  If anything, it got worse.  This policy has been in place for about a year.  And is there more that we would like to see the Cuban government do with regard to protecting human rights?  We absolutely would.  But our view is that the ability of the United States to advocate for those kinds of improvements is enhanced when we deepen the ties between our two countries.  When there are more Americans that are traveling to Cuba, when there is more communication going back and forth between Cuba and the United States, when there are more Cuban Americans that have an opportunity to visit family and send money to family in Cuba, all that is going to promote freedom.  That’s going to promote our values.”

“There has not been nearly as much an improvement in human rights in Cuba as we would like to see.  But the [normalization] policy has been in place for a little over [two years].”

We also have removed “an impediment to our relationship with countries throughout Latin America that have important relationships with Cuba.  For most of the last 50 years, those countries in Latin America didn’t apply that much pressure to Cuba about their human rights situation, and [instead] were focused on the [U.S.] and our failed policy of trying to isolate them.  Now that that impediment has been removed, it’s not just the [U.S.] that’s encouraging the Cuban government to improve their human rights situation, but you’ve got countries throughout the Western Hemisphere that are making the same argument.  So all we have done is to increase pressure on the Cuban government to improve the human rights situation there, and, at the same time, the American people have enjoyed a number of material benefits, including monetary benefits, that I do think will be persuasive to the incoming President as he determines what policy he believes is best with regard to the [U.S.] and Cuba.”

Positive Reactions[2]

 A New York Times editorial applauded the ending of this policy, which was “misguided for several reasons. It encouraged Cubans to embark on perilous, and often deadly, journeys on rafts across the Florida straits and across borders in South and Central America. It exacerbated Cuba’s brain drain, particularly after 2006 when Washington created a pathway for medical professionals abroad to defect by applying for visas at American embassies. And it unjustifiably gave Cubans preferential treatment while Haitians and Central Americans who were fleeing far more desperate circumstances were deported.”

This policy, says the Times, “has served as an escape valve, giving a way out to tens of thousands of Cubans who were frustrated by the island’s authoritarian government. Young Cubans have grown up regarding immigration to the [U.S.] as an option that has become a core part of the Cuban psyche.”

Now, the Times continues, there probably will be “pent-up dissatisfaction [that may] embolden more Cubans to press for economic changes and political freedoms as the era of rule by Raúl Castro draws to an end [in early 2018]. This would be hard and risky in a police state that stifles dissent by rewarding loyalists, punishing critics and sowing division among groups agitating for change. Eliécer Ávila, a prominent opposition leader, said, ““In the long run, I feel this will be beneficial by putting pressure on us to take responsibility for our homeland. The fundamental problem here is not the laws of other countries but the reality we live with.”

The Times concluded,  “should be clear to . . . [President-elect Trump’s] team that rolling back the recent progress would be foolish.”

A Washington Post editorial reached the same conclusion as the Times while emphasizing that the “dry foot/wet foot” policy “not only induced discontented Cubans to make a dangerous journey, but also relieved pressure on the regime to meet their legitimate demands at home. In recent years, the policy has also led to various scams, such as Medicare fraud perpetrated by Cubans who quickly settled in South Florida and then returned to the island with ill-gotten money.”

The incoming Trump administration was urged by the Washington Post “to treat [Cuban asylum] claims with the generosity they deserve while noting that the U.S. continuing “to set aside 20,000 immigrant visas per year to Cubans [was] an unusually high number properly reflective of Cuba’s unusually repressive system.”

Jon Anderson in the New Yorker points out that the change “should also help curtail a gruesome people-trafficking network that, over the past two years, has bled tens of thousands of Cubans of what little money they have in order to make it to the United States. Many of the migrants have sold their homes to obtain the cash to pay the traffickers who smuggle them through different countries before they reach the United States. One of the networks funnels people through a Mafia-controlled section of Colombia on an arduous and dangerous trek, sometimes lasting as much as three weeks, through the Darién jungle into Panama. Numerous Cubans, as well as other nationalities, have been robbed, raped, and killed along the way. In Mexico, an unavoidable part of any overland journey to the U.S. border from the south, Cubans fall prey to traffickers linked to the violent drug gangs there, at times with corrupt police involvement.”

Representative Albio Sires (Dem., NJ), a Cuban-American, said that “in recent years [some Cubans] used [the dry foot/wet foot policy] to reap economic rewards by sending money back to the island or even going back themselves to visit. While I am sympathetic to the plight of all the Cuban people, this program was designed for those asylees and refugees that were forced to flee. Money sent back to the island has no choice but to pass through the hands of the regime that for years has been using this program to fill their coffers.” He, however, questioned the timing of this change with an incoming president who has made many “hateful and disparaging remarks about refugees, minorities and immigrants.”

Negative Reactions[3]

Cuban-American representatives in Congress registered their typical negative reactions to U.S. normalization with Cuba: Ileana Ros-Lehtinen (Rep., FL); Carlos Curbello (Rep., FL); and Mario Diaz-Balart. Representative Curbello, however, admitted that the old wet-foot/dry-foot policy had been “grossly abused and exploited by many Cuban nationals, while also inadvertently bolstering the Cuban regime. A change to this policy was inevitable. I remain firmly committed to supporting the victims of persecution in Cuba while ending all abuses of America’s generosity.”

 A negative opinion also was registered by Carlos Eire, a Cuban-American who arrived in the early 1960’s as a “Peter Pan” kid and who now is an author and the T.L. Riggs Professor of History and Religious Studies at Yale University.He argues that many Cubans saw the December 17, 2014 announcement of rapprochement . . . [as] new support from the [U.S. that] could prolong the life of the Castro regime indefinitely and allow it to rule despotically; and . . . [as a sign] how Cubans would no longer continue to be viewed by the [U.S.] as an oppressed people.” The January 12 termination of ‘dry foot/wet foot’ “has completed . . . [Obama’s] utter betrayal of the Cuban people — a legacy move set in motion two years ago [and] has burdened Trump with a no-win situation with the potential to seriously tarnish or weaken his presidency right from the start.”

The U.S. Conference of Catholic Bishops on January 12 released a statement from the Chair of its Migration Committee, Bishop Joe Vasquez of Austin, Texas. Expressing disappointment over the “sudden policy change,” he said, “While we have welcomed normalizing relations with Cuba, the violation of basic human rights remains a reality for some Cubans and the Wet Foot/Dry Foot policy helped to afford them a way to seek refuge in the United States.”

The Bishop added, “Cuban Americans have been one of the most successful immigrant groups in U.S. history. The protections afforded them were a model of humane treatment.” This change “will make it more difficult for vulnerable populations in Cuba, such as asylum seekers, children, and trafficking victims, to seek protection. . . . My brother Bishops and I pledge to work with the outgoing and incoming administrations to ensure humane treatment for vulnerable populations, from Cuba and elsewhere, seeking refuge in the United States.”

The Cuban Observatory on Human Rights (OCDH), criticizing the change, said thatmany Cubans do not want or can not live in their own country” and that Cuba has not guaranteed “there will be no reprimand or violations of the human rights of” the Cubans the U.S. returns to the island.

Ramón Saúl Sánchez, leader of the Miami-based Democracy Movement, believes the change “will not stop the Cubans leaving the island, because in Cuba ‘there is a tyranny’ that will create more deaths (of rafters) in the Florida Straits.”

Jose Basulto, founder of Brothers to the Rescue: “Freedom is going to have to be sought now inside Cuba.” It is “sad” that Cubans have always bet on escaping from Cuba rather than fighting for freedom within their country.

Conclusion

This blogger remains persuaded that the “dry foot/wet foot policy is not justified, at least in recent years. Now many, if not most, Cubans wanting to come to the U.S. are motivated by an entirely understandable desire to improve their financial circumstances. That same desire exists in many people from many countries throughout the world. There is no special reason why Cubans should be preferred over all these other people.

As Secretary Johnson, Deputy National Security Advisor Rhodes and Press Secretary Earnest emphasized, if the Cubans are fleeing Cuban persecution for their political opinions, then they may and should submit an application, under U.S. and international law, for political asylum.

The U.S. parole program for Cuban medical personnel is also unjustified. Cuban students receive their medical education without any tuition. As a result, it is only reasonable to require such students, after receiving their medical degrees, to “give back” by serving on a Cuban foreign medical mission for which they are paid more than they would have earned in Cuba. Yes, the Cuban government is paid more for their services on such missions by foreign governments than the medical personnel are paid by the Cuban government, but that also is reasonable and appropriate. The contention that such service is illegal forced labor or semi-slavery is absurd.[4]

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[1] White House, On-the-Record Press Call [by Jeh Johnson and Benjamin Rhodes] on Cuba Policy Announcement (Jan. 12, 2017); White House, Press Briefing by Press Secretary Josh Earnest, 1/13/17.

[2] Editorial, Ending a Misguided Cuban Migration Policy, N.Y. Times (Jan. 13, 2017); Editorial, Obama’s latest step on Cuba actually seems necessary and proper, Wash. Post (Jan. 13, 2017); Anderson, Obama’s Last Big Cuba Move, New Yorker (Jan. 13, 2017); Congressman Sires Statement on the Administration’s Decision to End “Wet Foot, Dry Foot” (Jan. 12, 2017).

[3] Ros-Lehtinen Statement on Latest Obama Concession to Castro Regime: Elimination of Wet Foot/Dry Foot and Cuban Medical Professional Parole Program (Jan. 12, 2017); Diaz-Balart, Have You No Shame, President Obama? (Jan. 12, 2017); Curbelo Comments on DHS Announcement Regarding End of Wet-Foot Dry-Foot Policy (Jan. 12, 2917); Eire, Wet foot, dry foot, wrong foot, Wash. Post (Jan. 13, 2017); USCCB Migration Chairman Expresses Disappointment over Abrupt End of “Wet Foot/Dry Foot Policy—Policy Has Long Benefited Cuban Migrants and Refugees (Jan. 12, 2017); OCDH Position on the Elimination of the Policy of “Dry Feet/Wet Feet (Jan. 13, 2017);Reactions: Obama’s policies have been ‘a betrayal of Cubans,’ says Mario Díaz-Balart, Diario de Cuba (Jan. 13, 2017).

[4] See posts listed in the “Cuban Medical Personnel & U.S.” section of List of Posts to dwkcommentaries.com—Topical (CUBA).

U.S. Reactions to the Death of Fidel Castro

The November 25th death of Fidel Castro has prompted comments from President-Elect Donald Trump and his aides, the Obama Administration, U.S. Senators and Representatives, U.S. editorial boards and columnists and U.S. business interests and others. All of this has fueled speculation about the future Trump Administration’s policies regarding Cuba. These topics will be explored in this post along with this blogger’s observations.

President-Elect Trump and His Aides[1]

On Saturday morning after Castro’s death the previous night, Donald Trump tweeted, “Fidel Castro is dead!” Later that same day he issued this statement:”Though the tragedies, deaths and pain caused by Fidel Castro cannot be erased, our administration will do all it can to ensure the Cuban people can finally begin their journey toward prosperity and liberty. While Cuba remains a totalitarian island, it is my hope that today marks a move away from the horrors endured for too long, and toward a future in which the wonderful Cuban people finally live in the freedom they so richly deserve.”

Vice President-Elect Mike Pence on Saturday voiced a similar reaction in a tweet: “The tyrant Castro is dead. New hope dawns. We will stand with the oppressed Cuban people for a free and democratic Cuba. Viva Cuba Libre!”

On November 28, Trump issued another tweet on the subject. He said, “If Cuba is unwilling to make a better deal for the Cuban people, the Cuban/American people and the U.S. as a whole, I will terminate deal.”

These comments were corroborated by Trump’s top aides.

On Sunday, November 27, two of the aides said that Trump would demand the release of political prisoners held in Cuba and push the government to allow more religious and economic freedoms. Reince Priebus, the incoming White House chief of staff, said the president-elect “absolutely” would reverse Mr. Obama’s policies if he didn’t get what he wanted from Cuba. “We’re not going to have a unilateral deal coming from Cuba back to the [U.S.] without some changes in their government. Repression, open markets, freedom of religion, political prisoners—these things need to change in order to have open and free relationships, and that’s what president-elect Trump believes, and that’s where he’s going to head.” Similar comments were made the same day by Trump’s spokeswoman, Kellyanne Conway.

On Monday, November 28, Trump spokesman Jason Miller gave this more nuanced statement to reporters: “Clearly, Cuba is a very complex topic, and the president-elect is aware of the nuances and complexities regarding the challenges that the island and the Cuban people face. This has been an important issue, and it will continue to be one. Our priorities are the release of political prisoners, return of fugitives from American law, and also political and religious freedoms for all Cubans living in oppression.”

The Obama Administration[2]

President Barack Obama’s statement extended the U.S. “hand of friendship to the Cuban people” and stated that “history will record and judge the enormous impact of this singular figure on the people and world around him.” According to the President, Cubans “will recall the past and also look to the future. As they do, the Cuban people must know that they have a friend and partner” in America.

U.S. Secretary of State John Kerry issued a similar positive statement. He extended “our condolences to the Cuban people today as they mourn the passing of Fidel Castro. Over more than half a century, he played an outsized role in their lives, and he influenced the direction of regional, even global affairs. As our two countries continue to move forward on the process of normalization — restoring the economic, diplomatic and cultural ties severed by a troubled past — we do so in a spirit of friendship and with an earnest desire not to ignore history but to write a new and better future for our two peoples.”

On November 28 White House Press Secretary Josh Earnest responded to several questions about Cuba and Castro’s death. Here are a few of those responses:

  • For the U.S., “I wouldn’t expect any impact [of Castro’s death] on the kind of progress that we’re committed to making on our end to begin to normalize relations with Cuba.”
  • “[W]e have seen . . . greater freedom for American citizens to visit Cuba, to send money to family members in Cuba, to engage in business and seek business opportunities in Cuba.  It also enhanced the ability of the [U.S.] government to maintain an embassy in Cuba where U.S. officials can more effectively not just engage with government officials in Cuba but also those activists in civil society that are fighting for greater freedoms. . . . They also facilitate the kind of people-to-people ties that we believe will be more effective in bringing freedom and opportunity to the Cuban people, something that they have long sought and been denied by the Cuban government.  And after five decades of not seeing any results, the President believed it was time to see something different. . . . [We] clearly haven’t seen all the results that we would like to see, but we’re pleased with the progress.”
  • Castro “obviously is a towering figure who had a profound impact on the history of not just his country but the Western Hemisphere.  There certainly is no whitewashing the kinds of activities that he ordered and that his government presided over that go against the very values that . . . our country has long defended.”
  • “[T]here is no doubt that we would like to see the Cuban government do more [on human rights], but this policy has not even been in place for two years.  But we certainly have enjoyed more benefits than was enjoyed under the previous policy that was in place for more than 50 years and didn’t bring about the kinds of benefits or the kinds of progress that we would like to see.”
  • “[T]hose Cuban citizens that do work in industries, like cab drivers or working in restaurants, even Airbnb owners, are benefitting from the enhanced economic activity between Cuban citizens and American citizens who are visiting Cuba.  They are paid at a higher rate, and they’re enjoying more economic activity than they otherwise would because of this policy to normalize relations with Cuba. . . . [T]here is a growing entrepreneurial sector inside of Cuba that is benefitting from greater engagement with the United States.  That’s a good thing, and that is a benefit that is enjoyed by the Cuban people directly.”
  • “[T]here certainly is no denying the kind of violence that occurred in Cuba under the watch of the Castro regime.  There has been no effort to whitewash the history, either the history between the United States and Cuba or the history of what transpired in Cuba while Mr. Castro was leading the country.”
  • “That’s why upwards of 90 percent of the Cuban people actually support this policy and they welcome the greater engagement with the United States.  They welcome the increased remittances that are provided Cuban-Americans to family members in Cuba.  They welcome the increase in travel by American citizens to Cuba.  There’s a lot to offer.  And the Cuban people certainly benefit from that kind of greater engagement.  And that’s why the President has pursued this policy.”
  • The U.S. “relationship with countries throughout the Western Hemisphere, particularly in Latin America, is as strong as it’s been in generations. And all of that would be undone by the reinstitution of a policy that has failed after having been in place for more than five decades.”

The next day, November 28, Press Secretary Ernest announced that the U.S. will not send a formal delegation to Cuba to attend the Castro funeral but instead will dispatch a top White House aide and a principal Cuba-normalization negotiator, Benjamin J. Rhodes, to be joined by , the top U.S. diplomat in Cuba.

U.S. Senators and Representatives[3]

Senator Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, stated, Under Fidel Castro’s brutal and oppressive dictatorship, the Cuban people have suffered politically and economically for decades, and it is my hope that his passing might turn the page toward a better way of life for the many who have dreamed of a better future for their country. Subsequently after meeting with Mr. Trump about a possible appointment as Secretary of State, Corker said Mr. Trump’s “instincts on foreign policy are obviously very, very good.”

The Ranking Member of that committee, Senator Ben Cardin (Dem., MD), said, “The news of Fidel Castro’s death brings with it an opportunity to close the deep divisions that have been suffered by Cuban society and by Cuban Americans in the U.S.  For Castro’s purported goals of social and economic development to be attained, it is now time for a half-century of authoritarian rule to give way to the restoration of democracy and the reform of a system the has denied Cuba’s citizens their basic human rights and individuals freedoms. As the United States awaits a new Administration, we must continue our partnership with the Cuban people as they seek to build a more hopeful future for their country.”

Senator Marco Rubio of Florida, a Cuban-American and Republican presidential candidate this year, said in a statement: “Sadly, Fidel Castro’s death does not mean freedom for the Cuban people or justice for the democratic activists, religious leaders, and political opponents he and his brother have jailed and persecuted. The dictator has died, but the dictatorship has not…The future of Cuba ultimately remains in the hands of the Cuban people, and now more than ever Congress and the new administration must stand with them against their brutal rulers and support their struggle for freedom and basic human rights.” Senator Bob Menendez (Dem., N.J.), a Cuban-American who has opposed Mr. Obama’s policy, issued a similar statement.

Senator Jeff Flake (Rep., AZ), who has supported normalization and is the lead author of a Senate bill to end the embargo, merely said, “Fidel Castro’s death follows more than a half century of brutal repression and misery. The Cuban people deserve better in the years ahead.”

Minnesota’s Senator Amy Klobuchar (Dem.), the author of a Senate bill to end the U.S. embargo of the island, said the following: “Passing my bill with Republican Senator Jeff Flake to lift the trade embargo with Cuba would create jobs and increase exports for American farmers and businesses, and it could create unprecedented opportunity for the Cuban people. For far too long, U.S.-Cuba policy has been defined by the conflicts of the past instead of the realities of today and the possibilities for the future. The Cuban and American people are ahead of their governments in terms of wanting to see change. We need to seize this opportunity and lift the trade embargo.”

Minnesota’s other Senator, Al Franken (Dem.) said that, in the wake of Castro’s death, he hopes the Obama administration’s work to repair relations with the island nation is upheld by a new administration. “Over the past few years, we’ve made important strides to open up diplomatic relations with Cuba, and now I urge the country’s leadership to put a strong focus on improving human rights and democracy.”

On the House side, one of Minnesota’s Republican representative and an author of a bill to end the embargo, Tom Emmer, said that Congress should seize the opportunity to “assist in the transition to a democracy and market economy” in Cuba and denounced “isolation and exclusion.” He added, “The passing of Fidel Castro is yet another reminder that a new day is dawning in Cuba. As the remaining vestiges of the Cold War continue to fade, the United States has a chance to help usher in a new Cuba; a Cuba where every citizen has the rights, freedom and opportunity they deserve.”

The statement from the Speaker of the House, Paul Ryan (Rep., WI), stated, “Now that Fidel Castro is dead, the cruelty and oppression of his regime should die with him. Sadly, much work remains to secure the freedom of the Cuban people, and the United States must be fully committed to that work. Today let us reflect on the memory and sacrifices of all those who have suffered under the Castros.”

U.S. Editorial Boards and Columnists[4]

The New York Times’ editorial opposed any retreat from normalization. It said such a move would be “extremely shortsighted.” The new process of normalization, it says, “has helped establish conditions for ordinary Cubans to have greater autonomy in a society long run as a police state. It has also enabled Cuban-Americans to play a larger role in shaping the nation’s future, primarily by providing capital for the island’s nascent private sector. While the Cuban government and the Obama White House continue to have profound disagreements on issues such as human rights, the two governments have established a robust bilateral agenda that includes cooperation on environmental policy, maritime issues, migration, organized crime and responses to pandemics. These hard-won diplomatic achievements have benefited both sides.”

 If, on the other hand, said the Times, the normalization process is abandoned, U.S.-Cuba “cooperation is likely to wane. That would only embolden hard-liners in the Cuban regime who are leery of mending ties with the United States and are committed to maintaining Cuba as a repressive socialist bulwark. In Mr. Trump, they may find the ideal foil to stoke nationalism among Cubans who are fiercely protective of their nation’s sovereignty and right to self-determination.”

The editorial from the Washington Post, while criticizing some aspects of President Obama’s opening to Cuba, stated U.S. policy should “align itself with the hopes of ordinary Cubans and the legitimate demands of the island’s pro-democracy movements. That does not necessarily mean reversing the renewal of diplomatic relations and relaxed restrictions on the movement of people and goods; most Cubans still want that. But it should mean that official exchanges with the regime, and any concessions that benefit it, should be tied to tangible reforms that benefit the public: greater Internet access, expansion of space for private business and tolerance of critical speech and assembly by such groups as the Ladies in White.”

Conservative columnists and commentators welcomed Fidel’s death. George Will hoped, if not reasonably expected, “to have seen the last of charismatic totalitarians worshiped by political pilgrims from open societies. Experience suggests there will always be tyranny tourists in flight from what they consider the boring banality of bourgeois society and eager for the excitement of sojourns in ‘progressive’ despotisms that they are free to admire and then leave. Carlos Eire, a Cuban exile, author and the T.L. Riggs Professor of History and Religious Studies at Yale University, suggested a 13-point negative epitaph for Fidel’s tomb. The first point was: ”He turned Cuba into a colony of the Soviet Union and nearly caused a nuclear holocaust.” The last point was this: “He never apologized for any of his crimes and never stood trial for them.”

Another Washington Post columnist, Kathleen Parker, agreed that Fidel was a terrible dictator, but argued that Mr. Trump “should understand that Fidel Castro loved the embargo more than anyone because, as ever, he could blame the [U.S.] for his failures. For Trump to fall into this same trap [by keeping the embargo] would be a postmortem gift to Castro and breathe new life into a cruel legacy — the dictator’s final triumph over the [U.S.] and the several American presidents who could never quite bury him.”

U.S. Business Interests and Others[5]

Important interests that typically are regarded as important by Republicans are arguing against any retreats from the Obama Administration’s pursuit of normalization of Cuba relations

First, many U.S. companies are now deeply invested in Cuba under the current administration’s policy. These companies include major airlines, hotel operators and technology providers, while big U.S. phone carriers have signed roaming agreements on the island. “I think the American business community would be strongly opposed to rolling back President Obama’s changes, and strongly in favor of continuing the path toward normalization of economic and diplomatic relations,” said Jake Colvin, vice president of the National Foreign Trade Council.

Second, the U.S. farming industry is strongly supportive of normalization of U.S.-Cuba relations. For example, Kevin Paap, president of the Minnesota Farm Bureau, does not want the next administration to take any steps that would put U.S. farmers at a further disadvantage in the Cuban market. “Every other country in the world has diplomatic and trade relations with Cuba, and what we don’t want to do is lose that market share to the European Union, Brazil, Argentina.” Mr. Paap added that U.S. market share in Cuba has decreased in recent years as other countries are able to provide better financing.

But agricultural producers across the country, from rice producers in Louisiana to Northwest apple farmers to Kansas wheat growers have pushed for more, including lifting a ban prohibiting Cuba from buying American agricultural goods with U.S. credit.

Cuba’s wheat consumption is about 50 million barrels a year, said Daniel Heady, director of governmental affairs at the Kansas Association of Wheat Growers. Although not a huge market, “it’s right off the coast and it would be extremely easy for us to deliver our product.” “It is something that Kansas farmers are extremely interested in,” Heady said. “In a world of extremely depressed commodity prices, especially wheat, 50 million bushels looks extremely good right now.”

Republican governors from Texas, Arkansas and elsewhere have led trade delegations to Cuba, along with their state farm bureaus and chambers of commerce.

A U.S. journalist with extensive experience with Cuba, Nick Miroff, echoed these thoughts. He said, “A return to more hostile [U.S.-Cuba] relations . . . could also bring a new crackdown in Cuba and further slow the pace of Raúl Castro’s modest liberalization  measures at a time of stalling economic growth. Hard-liners in Cuba’s Communist Party would gladly take the country back to a simpler time, when the antagonism of the United States — not the failure of government policies — was to blame for the island’s problems, and the threat of attack, real or imagined, was used to justify authoritarian political control.’

Moreover, according to a Wall Street Journal report, any U.S. abandonment of normalization with Cuba “could drive a new wedge between Washington and Latin America . . . not only by leftist allies of Cuba like Venezuela and Bolivia but also by conservative governments in Brazil, Chile, Mexico and Colombia. It would also likely complicate regional cooperation on a range of issues, from immigration to security and anti-drug efforts.”

In Miami, many of the island’s exiles and their children and grandchildren took to the streets, banging pots and pans, waving American and Cuban flags, and celebrating in Spanish: “He’s dead! He’s dead!”

Meanwhile in faraway Minnesota, even though it has relatively few Cuban exiles, celebrated its Cuban connections. They range from festivals and restaurants in the Twin Cities that preserve and highlight Cuban culture. Its politicians in Washington, D.C. have been leaders in efforts to lift the trade embargo on Cuba, citing the potential for economic and political advancements and job growth. Christian communities in Minnesota also value their religious and moral obligations to Cubans. Cuba’s expanded Mariel Port could carry Minnesota-made goods. Other Minnesota-based companies, including Sun Country Airlines, Radisson Hotels and Cargill, could benefit from lifting the embargo.

Last year the Minnesota Orchestra took a historic trip to Cuba as the first U.S. orchestra to perform there since Obama began negotiations in 2014. Next June, some Orchestra members will perform in Cuba again along with Minnesota Youth Symphonies. They also will be joined by Cuban-American jazz musician, Ignacio “Nachito” Herrera, and his wife, who works as an attorney. Herrera grew up during the Cuban Revolution and credits Castro’s leadership for the career opportunities he and his wife have achieved. Indeed, Herrera met Castro in the 1980s while being recognized in a Classic World Piano competition. Castro was humble, Herrera said, and deeply curious about his accomplishments.

Concluding Observations

This blog consistently has applauded the U.S. pursuing normalization with Cuba. The death of Fidel Castro does not change that opinion and advocacy. Fundamentally I agree with President Obama that the 50-plus years of U.S. hostility towards Cuba has not worked—it has not persuaded or forced Cuba to change its ways and it has interfered with our having friendly relations with countries throughout the world, especially in Latin America.[6]

Indeed, the countries of the Western Hemisphere in their Summits of the Americas have made it clear to fellow member the U.S. that they would no longer reluctantly acquiesce in the U.S. desire to exclude Cuba from such Summits, and at the last such gathering in 2015, after the announcement of U.S.-Cuba normalization they praised both countries for this move.[7]

The broader world disapproval of the U.S. hostility towards Cuba is shown by the annual overwhelming approvals of resolutions condemning the U.S. embargo of the island by the U.N. General Assembly. Nor should the U.S. continue to ignore its very large contingent liability to Cuba for its alleged damages from the embargo. (The U.S., of course, disputes this contingent liability, but prudence for any nation or entity facing such a large contingent liability dictates cutting off that risk by stopping the behavior that allegedly triggers the risk.)[8]

Opponents of normalization usually point to Cuban deficiencies on human rights and democracy. But such opposition fails to recognize or admit that the U.S. does not have a perfect record on these issues, including this year’s U.S. election and efforts at voter suppression and the U.S. indirect election of the president and vice president via the Electoral College. Moreover, such opponents also fail to recognize or admit that at least some Cuban limits on dissent and demonstrations undoubtedly are triggered by their fear or suspicion that the U.S. via its so-called covert or undercover “democracy promotion” programs in Cuba is financing or otherwise supporting these efforts at regime change on the island. Finally as part of the efforts at normalization the U.S. and Cuba have been having respectful dialogues about human rights issues.[9]

Another issue sometimes raised by opponents of normalization is Cuba’s failure to provide financial compensation to U.S. persons for Cuba’s expropriation of their property in the early years of the Revolution. But such criticism fails to recognize that Cuba has paid compensation to persons from other countries for such expropriation, that it is in Cuba’s interest to do the same for U.S. persons, that the two countries have been respectfully discussing this issue as well, and there is no reason to expect that this issue cannot be resolved peacefully.[10]

Opponents of normalization also seem to believe or assume that only the U.S. and Cuba are involved in these issues. That, however, is not true. Perhaps precipitated by the December 2014 announcement that Cuba and the U.S. had agreed to seek normalization and reconciliation, other countries, especially the members of the European Union, have been accelerating their efforts to resolve differences with Cuba so that the U.S. will not beat them to gain competitive advantages with the island. China also is another competitor.[11]

Finally Cuba’s current major ally, Venezuela, obviously is near collapse and being forced to reduce its support of Cuba, thereby threatening Cuba’s stability and viability. The U.S. does not want to see Cuba become a failed state 90 miles away from the U.S. Such a situation is even more dire today according to Tom Friedman’s new book, Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations. He asserts at page 270 that it “may even be more difficult [for inhabitants of a failed state to reconstitute itself] in the age of accelerations. The lifelong learning opportunities you need to provide to your population, the infrastructure you need to take advantage of the global flows [of information], and the pace of innovation you need to maintain a growing economy have all become harder to achieve. . . . Catching up is going to be very, very difficult.”

For the U.S., once again, to act like an arrogant bully towards Cuba will not achieve any good result. All U.S. citizens interested in Cuba’s welfare and having good relations with the U.S. need to resist any efforts by the new Administration to undo the progress of the last two years.

=======================================================

[1] Assoc. Press, Trump Slams Recount Push as ‘a Scam,’ Says Election Is Over, N.Y. Times (Nov. 26, 2016); Reuters, Trump Says He Will do All He Can to Help Cuban People, N.Y. Times (Nov. 26, 2016); Assoc. Press, Vice-President-Elect Pence Says ‘New Hope Dawns’ for Cuba, N.Y. Times (Nov. 26, 2016); Assoc. Press, Trump Aides Say Cuban Government Will Have to Change, N.Y. Times (Nov. 27, 2016); Flaherty, Trump aides say Cuban government will have to change, StarTrib. (Nov. 27, 2016); Schwartz & Lee, Death of Fidel Castro May Pressure Donald Trump on Cuba Promises, W.S.J. (Nov. 27, 2016); Mazzei, Trump pledges to ‘terminate’ opening to Cuba absent ‘better deal,’ Miami Herald (Nov. 28, 2016); Cave, Ahmed & Davis, Donald Trump’s Threat to Close Door Reopens Old Wounds in Cuba, N.Y. Times (Nov. 28, 2016).

[2]   White House, Statement by the President on the Passing of Fidel Castro (Nov. 26, 2016); U.S. State Dep’t, Secretary Kerry: The Passing of Fidel Castro (Nov. 26, 2016); White House, Press Briefing by Press Secretary Josh Earnest, 11/28/16; White House, Press Briefing by Press Secretary Josh Earnest, 11/29/16; Harris, Obama to Send Aide to Fidel Castro’s Funeral, N.Y. Times (Nov. 29, 2016).

[3] Sen. For. Rel. Comm., Corker Statement on the Death of Fidel Castro (Nov. 26, 2016); Griffiths, Corker praises Trump as State Department speculation continues, Politico (Nov. 29, 2016; Sen. For. Rel. Comm, Cardin Statement on the Death of Fidel Castro (Nov. 26, 2016); Rubio, Rubio: History Will Remember Fidel Castro as an Evil, Murderous Dictator (Nov. 26, 2016); Menendez, Senator Menendez on Death of Fidel Castro (Nov. 26, 2016); Flake, Flake Statement on the Death of Fidel Castro (Nov. 26, 2016); Ryan, Statement on the Death of Fidel Castro (Nov. 26, 2016);The latest: US House Leader Urges Remembering Castro Cruelty, N.Y. Times (Nov. 26, 2016); Klobuchar, Klobuchar Statement on Passing of Fidel Castro (Nov. 26, 2016); Emmer, Emmer Statement on Death of Fidel Castro (Nov. 26, 2016).

[4] Editorial, Threatening Cuba Will Backfire, N.Y. Times (Nov. 29, 2016); Editorial,Editorial, Fidel Castro’s terrible legacy, Wash. Post (Nov. 26, 2016); Fidel Castro’s demise can’t guarantee freedom for the people of Cuba, Wash. Post (Nov. 28, 2016); Will, Fidel Castro and dead utopianism, Wash. Post (Nov. 26, 2016); Eire, Farewell to Cuba’s brutal Big Brother, Wash. Post (Nov. 26, 2016); Parker, Don’t give Fidel Castro the last laugh, Wash. Post (Nov. 29, 2016). Eire is the author of Learning To Die in Miami: Confessions of A Refugee Boy (2010) and Waiting for Snow in Havana (2003).

[5] DeYoung, Trump’s threat to terminate opening to Cuba may draw opposition from business, Republican states, Wash. Post (Nov. 29, 2016); Miroff, Cuba faces renewed tensions with U.S., but without Fidel Castro, its field marshal, Wash. Post (Nov. 28, 2016); Dube & Johnson, Donald Trump’s Line on Cuba Unsettles Latin America, W.S.J. (Nov. 28, 2016); Klobuchar, Minnesota Artists, Leaders Reflect on Castro’s Legacy (Nov. 26, 2016);  Miroff & Booth, In wake of Castro’s death, his legacy is debated, Wash. Post (Nov. 28, 2016).

[6] See List of Posts to dwkcommentaries—Topical: CUBA.

[7] Previous posts have discussed the Seventh Summit of the Americas in April 2015. https://dwkcommentaries.com/?s=Summit+of+the+Americas.

[8] Previous posts have discussed the U.N. General Assembly resolutions on the embargo in 2011, 2014, 2015 and 2016 and the suggested international arbitration to resolve the disputes about Cuba’s damage claims resulting from the embargo. (See posts listed in “U.S. Embargo of Cuba” section of List of Posts to dwkcommentaries—Topical: CUBA.

[9] See posts listed in “U.S. Democracy Promotion in Cuba,” “U.S. & Cuba Normalization, 2014-2015” and “U.S. & Cuba Normalization, 2015-2016” sections of List of Posts to dwkcommentaries—Topical: CUBA.

[10] See posts listed in “U.S. & Cuba Damage Claims” section of List of Posts to dwkcommentaries—Topical: CUBA.

[11] See list of posts in “Cuba & Other Countries” section of List of Posts to dwkcommentaries—Topical: CUBA.

Enactment of the Justice Against Sponsors of Terrorism Act (JASTA) Over the Presidential Veto

As a previous post reported, from September 16, 2015, through September 9, 2016, the current Session of Congress considered and overwhelmingly adopted the Justice Against Terrorism Act (JASTA). Although neither chamber of Congress held hearings on JASTA this Session and voiced little opposition to the bill, objections to the bill were raised outside Congress, and on September 23, 2016, President Obama vetoed the bill, as was mentioned in a prior post. Thereafter Congress overrode the veto and JASTA became law, whose details were discussed in another previous post.

Now we will retreat in time and examine the president’s veto message and the congressional overriding of the veto. Another post will look at subsequent efforts to amend JASTA.

President Obama’s Veto Message

 On September 23, President Obama vetoed JASTA and returned the bill to Congress with a message stating the following reasons for the veto:[1]

  • “Enacting JASTA into law . . . would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks. As drafted, JASTA would allow private litigation against foreign governments in U.S. courts based on allegations that such foreign governments’ actions abroad made them responsible for terrorism-related injuries on U.S. soil. This legislation would permit litigation against countries that have neither been designated by the executive branch as state sponsors of terrorism nor taken direct actions in the United States to carry out an attack here. The JASTA would be detrimental to U.S. national interests more broadly, which is why I am returning it without my approval.”
  • “First, JASTA threatens to reduce the effectiveness of our response to indications that a foreign government has taken steps outside our borders to provide support for terrorism, by taking such matters out of the hands of national security and foreign policy professionals and placing them in the hands of private litigants and courts.”
  • “Any indication that a foreign government played a role in a terrorist attack on U.S. soil is a matter of deep concern and merits a forceful, unified Federal Government response that considers the wide range of important and effective tools available. One of these tools is designating the foreign government in question as a state sponsor of terrorism, which carries with it a litany of repercussions, including the foreign government being stripped of its sovereign immunity before U.S. courts in certain terrorism-related cases and subjected to a range of sanctions. Given these serious consequences, state sponsor of terrorism designations are made only after national security, foreign policy, and intelligence professionals carefully review all available information to determine whether a country meets the criteria that the Congress established.”
  • “In contrast, JASTA departs from longstanding standards and practice under our Foreign Sovereign Immunities Act and threatens to strip all foreign governments of immunity from judicial process in the United States based solely upon allegations by private litigants that a foreign government’s overseas conduct had some role or connection to a group or person that carried out a terrorist attack inside the United States. This would invite consequential decisions to be made based upon incomplete information and risk having different courts reaching different conclusions about the culpability of individual foreign governments and their role in terrorist activities directed against the United States — which is neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack.”
  • “Second, JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests. The United States has a larger international presence, by far, than any other country, and sovereign immunity principles protect our Nation and its Armed Forces, officials, and assistance professionals, from foreign court proceedings. These principles also protect U.S. Government assets from attempted seizure by private litigants abroad. Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.”
  • “Indeed, reciprocity plays a substantial role in foreign relations, and numerous other countries already have laws that allow for the adjustment of a foreign state’s immunities based on the treatment their governments receive in the courts of the other state. Enactment of JASTA could encourage foreign governments to act reciprocally and allow their domestic courts to exercise jurisdiction over the United States or U.S. officials — including our men and women in uniform — for allegedly causing injuries overseas via U.S. support to third parties. This could lead to suits against the United States or U.S. officials for actions taken by members of an armed group that received U.S. assistance, misuse of U.S. military equipment by foreign forces, or abuses committed by police units that received U.S. training, even if the allegations at issue ultimately would be without merit. And if any of these litigants were to win judgments — based on foreign domestic laws as applied by foreign courts — they would begin to look to the assets of the U.S. Government held abroad to satisfy those judgments, with potentially serious financial consequences for the United States.”
  • “Third, JASTA threatens to create complications in our relationships with even our closest partners. If JASTA were enacted, courts could potentially consider even minimal allegations accusing U.S. allies or partners of complicity in a particular terrorist attack in the United States to be sufficient to open the door to litigation and wide-ranging discovery against a foreign country — for example, the country where an individual who later committed a terrorist act traveled from or became radicalized. A number of our allies and partners have already contacted us with serious concerns about the bill. By exposing these allies and partners to this sort of litigation in U.S. courts, JASTA threatens to limit their cooperation on key national security issues, including counterterrorism initiatives, at a crucial time when we are trying to build coalitions, not create divisions.”
  • “The 9/11 attacks were the worst act of terrorism on U.S. soil, and they were met with an unprecedented U.S. Government response. The United States has taken robust and wide-ranging actions to provide justice for the victims of the 9/11 attacks and keep Americans safe, from providing financial compensation for victims and their families to conducting worldwide counterterrorism programs to bringing criminal charges against culpable individuals. I have continued and expanded upon these efforts, both to help victims of terrorism gain justice for the loss and suffering of their loved ones and to protect the United States from future attacks. The JASTA, however, does not contribute to these goals, does not enhance the safety of Americans from terrorist attacks, and undermines core U.S. interests.”

Reactions to the Veto

Immediately after President Obama’s veto of JASTA, both Republicans and Democrats in Congress vowed to override the veto under Article I, Section 7 of the U.S. Constitution requiring a vote of at least two-thirds of each chamber of the Congress to do so. On the sidelines both major presidential candidates (Donald Trump and Hillary Clinton) said that they would have signed the bill if they were president.

These vows were made despite the prior day’s testimony before a Senate committee by Secretary of Defense Ash Carter opposing the bill on the ground that it could be a problem for the U.S. if another country was “to behave reciprocally towards the U.S.” And the Republican Chair of the House Armed Services Committee, Representative Mac Thornberry of Texas, amplified the military’s concerns and urged Republicans to study the bill’s consequences while announcing his intent to opposes the override.[2]

Not surprisingly immediately after this veto, Senator John Cornyn stated, “It’s disappointing the President chose to veto legislation unanimously passed by Congress and overwhelmingly supported by the American people. Even more disappointing is the President’s refusal to listen to the families of the victims taken from us on September 11th, who should have the chance to hold those behind the deadliest terrorist attack in American history accountable. I look forward to the opportunity for Congress to override the President’s veto, provide these families with the chance to seek the justice they deserve, and send a clear message that we will not tolerate those who finance terrorism in the United States.”[3]

On September 27 President Obama sent a letter to Senators Mitch McConnell (Rep., TN), the Majority Leader, and Harry Reid (Dem. NV), Minority Leader. The President said he was “fully committed to assisting the families of the victims of terrorist attacks of Sept. 11,″ but that the consequences of an override could be “devastating” by putting military and other U.S. officials overseas at risk. The bill’s enactment, he warned, “would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks.[4]

On September 28 Senators Cornyn and Shumer jointly wrote an op-ed article in USA Today urging Congress to override the veto because JASTA “would provide a legal avenue for the families of the victims of the 9/11 attacks to seek justice in a court of law for the terrorist attacks that took the lives of their loved ones. And it would deter foreign entities from sponsoring terrorism in the future.” The article also rejected as untrue the argument by JASTA’s opponents “that the bill will subject U.S. diplomats and other government officials to a raft of potential lawsuits in foreign courts.”[5]

On the morning of September 28, the New York Times published an editorial opposing the threatened congressional override of the veto because “the bill complicates the United States’ relationship with Saudi Arabia and could expose the American government, citizens and corporations to lawsuits abroad. Moreover, legal experts like Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School doubt that the legislation would actually achieve its goal.”[6]

Moreover, the Times editorial asserted that the “European Union has warned that if the bill becomes law, other countries could adopt similar legislation defining their own exemptions to sovereign immunity. Because no country is more engaged in the world than the United States — with military bases, drone operations, intelligence missions and training programs — the Obama administration fears that Americans could be subject to legal actions abroad.”

Nevertheless, later that same day (September 28) Congress overwhelmingly voted to override the presidential veto. The only vote against the override in the Senate was by the Senate Minority Leader, Senator Harry Reid (Dem., NV). The vote in the House was 348 to override with only 59 opposed.[7] We will now look at the debate in both chambers.

U.S. Senate’s Overriding the Veto

In the Senate debate, Senators Richard Blumenthal (Dem., CT), John Cornyn (Rep., TX), Chuck Grassley (Rep., IA) and Chuck Schumer (Dem. NY) spoke in favor of overriding the veto and passing JASTA while Senators Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, Benjamin Cardin (Dem., DE), the Committee’s Ranking Member, and Diane Feinstein (Dem., CA) offered qualified endorsements of an override. [8]

Generally these Senators argued that U.S. victims of state-sponsored acts of terrorism needed the opportunity to assert their damage claims in U.S. courts against such sponsors and that JASTA would deter such sponsored terrorism. Senator Cornyn added that this “legislation has been pending since 2009, and we have worked through a number of Members’ concerns . . . in order to modify the legislation and build the consensus we now have achieved. . . . That means [JASTA] has been negotiated and hammered out over a long period of time.”[9]

Cornyn then offered this argument for rejection of the presidential veto message:

  • JASTA would not “create complications” with some of our close partners. It “only targets foreign governments that sponsor terrorist attacks on American soil. . . . The financing of terrorism in the [U.S.] is not behavior we should tolerate from any nation, allies included.”
  • Possible foreign laws like JASTA “applied reciprocally will open no . . . floodgates” of lawsuits against the U.S. or military members by foreign governments in foreign courts.
  • “JASTA is not a sweeping legislative overhaul that dramatically alters international law. It is an extension of law that has been on the [U.S.] books since 1976. . . . [For] 40 years our law has been replete with immunity exceptions that apply to conduct committed abroad. This bill just adds another exception.”

Senator Grassley, the Chair of the Senate Judiciary Committee, noted that this Committee unanimously supported overriding the veto of JASTA. He also said it was “highly unlikely” that passage of the bill would result in “the Saudis . . .pulling their money out of U.S. securities. . . . But even if they did, there would be plenty of buyers for those securities. But more importantly, . . . [such an argument would send the message;] if you want to influence U.S. legislation, make sure to buy up U.S. debt, and then threaten to sell that debt any time the U.S. Congress does something you don’t like. We absolutely cannot be intimidated or bend to that type of threat.”

Senator Corker commented that he had “tremendous concerns about the sovereign immunity procedures that could be set in place by other countries as a result of this vote” and that it could have adverse consequences for the U.S. “standing in the world.” He was troubled by “the concerns [of] . . . the head of our Joint Chiefs” and of the President. He also thought it would be better “to establish some type of tribunal, where experts could come in and really identify what actually happened on discretionary decisions that took place within the country of Saudi Arabia” with respect to the pending 9/11 claims.

As a result, Senator Corker prepared a bipartisan letter to the Senate sponsors of JASTA (Senators Cornyn and Schumer).[10] It expressed concern about “potential unintended consequences that may result from . . . [JASTA] for the national security and foreign policy of the United States. If other nations respond to this bill by weakening U.S. sovereign immunity protections, then the [U.S.] could face private lawsuits in foreign courts as a result of important military or intelligence activities. We would hope to work with you in a constructive manner to appropriately mitigate those unintended consequences.”

One of the signers of this letter and the Ranking Member of the Senate Foreign Relations Committee, Senator Benjamin Cardin (Dem., DE), recognized “that there are risk factors in terms of how other countries may respond to the enactment of JASTA. [11] As a nation with hundreds of thousands of troops that serve abroad, not to mention multiple foreign bases and facilities, the United States of America is a country that benefits from sovereign immunity principles that protect our country and our country’s interests, its Armed Forces, government officials, and litigation in foreign courts. Therefore, there is a concern of unintended consequences, including irresponsible applications to U.S. international activities by other countries. While I have faith and confidence in the American legal system, the same faith does not necessarily extend to the fairness of legal systems of other countries that may claim they are taking similar actions against America when they are not. So [as the Ranking Member of the Foreign Relations Committee, I will] follow closely how other countries respond and try to mitigate the risks of the [U.S.] abroad” and will “explore with my colleagues the possibility of whether we need or will need additional legislative action.”

Another signer of the letter, Senator Feinstein, expressed her “key concern relates to the exception to the immunity of foreign governments.”[12] “Proponents of this bill argue that the exception is narrow, that it applies only if a foreign nation, with ill intent, takes unlawful actions that cause an act of terrorism on our soil. But other nations that are strongly opposed to American actions abroad could respond by using the bill as an excuse to adopt laws that target our own government’s actions. A September 15 Washington Post editorial said it well: ‘It is not a far-fetched concern, given this country’s global use of intelligence agents, Special Operations forces and drones, all of which could be construed as state-sponsored `terrorism’ when convenient.’ Those of us on the Senate Intelligence Committee know that, if other countries respond to JASTA in this manner, it could jeopardize our government’s actions abroad. If that happens, it is likely that our government would be forced to defend against private lawsuits, which could pose a threat to our national security.” Therefore, she was interested in limiting JASTA to “the September 11 attacks” and to “those directly impacted by an attack–including individuals, their estates and property damage, rather than companies with only tangential connections.”

U.S. House of Representatives’ Overriding the Veto 

On the afternoon of September 28 the House voted to override the veto of JASTA by a vote of 348 (225 Republicans and 123 Democrats) to 77 (18 Republicans and 59 Democrats).[13]

The supporters of override were led by Representative Robert Goodlatte (Rep., VA), the Chair of the House Judiciary Committee, who asserted, “The changes JASTA makes to existing law are not dramatic, nor are they sweeping.. . .The President’s objections . . . have no basis under U.S. or international law.. . . Consistent with customary international law, JASTA, for terrorism cases, removes the current requirement that the entire tort occur within the United States and replaces it with a rule that only the physical injury or death must occur on U.S. soil.” Later in the debate he claimed (erroneously as explained in n.14) that his argument was supported by “Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties [which] would apply the territorial tort exception if the act or omission occurred in whole or in part in the territory of the state exercising jurisdiction.”[14]

Others who supported the override and who spoke during the debate were Representatives Peter King (Rep., NY), Sheila Jackson Lee (Dem., TX), Leonard Lance (Rep., NJ), David Donovan (Rep., NY), Carolyn Maloney (Dem., NY) and Jerrold Nadler (Dem. FL).

Leading the opposition to the override were Representative M. “Mac” Thornberry (Rep., TX), the Chair of the House Armed Services Committee, and Representative John Conyers (Dem., MI). Other opponents of override who spoke during the debate were Representatives Eddie Bernice Johnson (Dem., TX), David Jolly (Rep., FL), Betty McCollum (Dem., MN), Robert Scott (Dem., VA) and Earl Blumenauer (Dem., NY).

Thornberry expressed concern for the possible erosion of sovereign immunity, which is “one of the key protections that the military, diplomats, and intelligence community of the [U.S.] has around the world. Once that doctrine gets eroded, then there is less protection, and . . . the [U.S.], has more at stake in having our people protected than any other country because we have more people around the world than anyone else.” Thornberry also quoted from a letter to him from Joseph F. Dunford, Jr., General, U.S. Marine Corps. and Chairman of the Joint Chiefs of Staff: `Any legislation that risks reciprocal treatment by foreign governments would increase the vulnerability of U.S. Service members to foreign legal action while acting in an official capacity.” This letter and a letter urging defeat of the override from Secretary of Defense Ash Carter were inserted into the House record.

Conyers supported the President’s reasons for his veto. “First, the President stated that [the bill] could undermine the effectiveness of our Nation’s national security and counterterrorism efforts. For instance, other nations may become more reluctant to share sensitive intelligence in light of the greater risk that such information may be revealed in litigation.   Moreover, the President raised the concern that this legislation would effectively allow non-expert private litigants and courts, rather than national security and foreign policy experts, to determine key foreign and national security policy questions like which states are sponsors of terrorism.   Second, the President’s assertion that enactment of[the bill]may lead to retaliation by other countries against the [U.S.] given the breadth of our interests and the expansive reach of our global activities.   So while it seems likely at this juncture that [the bill] will be enacted over the President’s veto, I remain hopeful that we can continue to work toward the enactment of subsequent legislation to address the President’s concerns.”

Conyers also cited others who called for sustaining the President’s veto: Michael Mukasey, the former Attorney General under George W. Bush; Stephen Hadley, the former National Security Adviser for that President; Richard Clarke, the former White House counterterrorism adviser for Presidents Bill Clinton and George W. Bush; and Thomas Pickering, the former [U.S.] Ambassador to the United Nations.

Representative Scott said, “JASTA abrogates a core principle in international law–foreign sovereign immunity. There are already several exceptions to this immunity recognized by our Nation and others, but JASTA goes much further than any present exception or recognized practice of any national law…. One fundamental indication of fairness of legislation is not how it would work to our benefit, but what we would think if it were used against us. If the [U.S.] decides to allow our citizens to haul foreign nations into American courts, what would we think of other nations enacting legislation allowing their citizens to do the same thing to us? Obviously, we would not want to put our diplomats, military, and private companies at that risk.”

Scott also pointed out that “JASTA does not make clear how the evidence would be gathered to help build a credible case against a foreign nation. Would the plaintiffs be able to subpoena foreign officials? Or would the U.S. Department of State officials have to testify? Would . . . [the U.S.] be required to expose sensitive materials in order to help American citizens prove their case? Again, how would we feel about foreign judges and juries deciding whether or not the [U.S.] sponsored terrorism? There are also questions about how the judgment under JASTA would be enforced. The legislation does not address how a court would enforce the judgment. Could foreign assets be attached? How would this process work if other countries enacted similar legislation? Would U.S. assets all over the world be subject to attachment to satisfy the foreign jury verdicts?”

Jolly emphasized that “the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the CIA Director, and the Chairman of the House Armed Services Committee [Representative Thornberry] have all issued statements against this legislation.”

White House Reaction to the Overriding of the Veto

On the same day as this Senate vote and before the House voted on the same bill later that day, White House Press Secretary, Josh Earnest, said, “I would venture to say that this is the single-most embarrassing thing that the United States Senate has done possibly since 1983. You had at least one prominent Republican senator quoted today saying that . . . the members of the Senate Judiciary Committee were not quite sure what the bill actually did.  And to have members of the United States Senate only recently informed of the negative impact of this bill on our service members and our diplomats is, in itself, embarrassing.  For those senators then to move forward in overriding the President’s veto that would prevent those negative consequences is an abdication of their basic responsibilities as elected representatives of the American people.”[15]

Furthermore, said the Press Secretary, “these senators are going to have to answer their own conscience and their constituents as they account for their actions today.  You’ve got to give some credit to Harry Reid.  He showed some courage.  The same can’t be said for the other 96 members of the Senate who voted today.”

The same day President Obama on CNN said that a few lawmakers who backed the bill weren’t aware of its potential impact and that he wished Congress “had done what’s hard.” CIA Director John Brennan said he was concerned about how Saudi Arabia, a key U.S. ally in the Middle East, would interpret the bill. He said the Saudis provide significant amounts of information to the U.S. to help foil extremist plots. “It would be an absolute shame if this legislation, in any way, influenced the Saudi willingness to continue to be among our best counterterrorism partners,” Brennan said.[16]

On September 29, after the House had voted and JASTA became law, Press Secretary Earnest added, “I think what we’ve seen in the United States Congress is a pretty classic case of rapid-onset buyer’s remorse.  Within minutes of casting their vote to put that bill into law, you had members of the United States Senate — some 28 of them — write a letter expressing deep concern about the potential impact of the bill they just passed.  The suggestion on the part of some members of the Senate was that they didn’t know what they were voting for, that they didn’t understand the negative consequences of the bill. That’s a hard suggestion to take seriously when you had letters from President Bush’s attorney general and national security advisor warning about the consequences of the bill.  You had attorneys from our closest allies in Europe expressing their concerns about the impact of the bill.  You had a letter from some of America’s business leaders, including Chief Executive of GE, Jeffrey Immelt, warning about the potential economic consequences of the bill.  You had letters from the Director of the CIA, the Chairman of the Joint Chiefs of Staff, the Secretary of Defense and the Commander-in-Chief all warning about the potential impact of the bill.”[17]

Conclusion

As indicated above, certain Senators indicated their intent to pursue amendments to JASTA to remedy what they see as problems with the statute. This will be the subject of future posts.

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[1] White House, Veto Message from the President—S.2040 (Sept. 23, 2016) Afterwards Josh Earnest, the White House Press Secretary, discussed whether there was congressional opposition to overriding the veto and criticism of the bill from Saudi Arabia and “a lot of other countries, including the European Union. White House, Press Briefing by Press Secretary Josh Earnest, 9/26/16; White House, Press Briefing by Press Secretary Josh Earnest, 9/27/16.

[2] Assoc. Press, Lawmakers Vow to Override Obama’s Veto of Sept. 11 bill, N.Y. Times (Sept. 24, 2016).

[3] Cornyn, Cornyn Statement on President’s Veto of JASTA (Sept. 23, 2016).

[4] Demirjian & Ellperin, Congress overrides Obama’s veto of 9/11 bill, Wash, Post (Sept, 28, 2016).

[5] Cornyn, Cornyn Op-Ed: give 9/11 Families a Legal Avenue (Sept. 28, 2016).

[6] Editorial, The Risks of Sueing the Saudis for 9/11, N.Y. Times (Sept. 28, 2016)

[7] Steinhauer, Mazzetti & Davis, Congress Votes to Override Obama Veto on 9/11 Victims Bill, N.Y. Times (Sept. 28, 2016); Eilpirin & Demirjian, Congress thwarts Obama on bill allowing 9/11 lawsuits against Saudi Arabia, Wash. Post (Sept. 28, 2016).

[8] Cong. Rec. S6166-73 (Sept. 28, 2016).

[9] The prior post about the initial passage of JASTA started with the 2015 introduction of the bill and did not attempt to cover earlier versions of the bill or the process referenced by Senator Cornyn. Comments about this earlier process would be much appreciated.

[10] This bipartisan letter was signed by 15 Democrat Senators (Bennet, Cardin, Carper, Coons, Feinstein, Heitkamp, Hirono, McCaskill, Merkley, Nelson, Reed, Schatz, Shaheen, Udall and Warner), 12 Republican Senators (Alexander, Coats, Corker, Cotton, Flake, Graham, McCain, Risch, Roberts, Rounds, Sullivan and Thune) and Independent Senator King.

[11] Cardin, Cardin Statement on JASTA Veto Vote (Sept. 28, 2016).

[12] Feinstein, Feinstein Statement on Justice Against Sponsors of Terrorism Act (Sept. 28, 2016).

[13] Cong. Record H6023-32 (Sept. 28, 2016).

[14] The United Nations Convention on Jurisdictional Immunities of States and Property is certainly relevant to the issue of international law on the subject. Representative Thornberry, however, failed to quote the entirety of Article 12 of this treaty and thereby reached an erroneous conclusion that it supports JASTA. That Article states, “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” The portion in bold was not quoted by Thornberry.  Moreover, this treaty is not yet in force because its Article 30 requires 30 states to become parties thereto, and to date only 21 states have done so, and the U.S. has neither signed nor ratified this treaty.

[15] White House, Press Gaggle by Press Secretary Josh Earnest en route Fort Lee, Virginia 9/28/16.

[16] Assoc. Press, Congress Rebukes Obama, Overrides Veto of 9/11 Legislation, N.Y. Times (Sept. 28, 2016); Reuters, Congress Rejects Obama Veto, Saudi Sept. 11 Bill Becomes Law, N.Y. Times (Sept, 28, 2016).

[17] White House, Press Briefing by Press Secretary Josh Earnest and Secretary of Education King (Sept. 29, 2016).

 

Pre-Veto Controversies Regarding the Justice Against Sponsors of Terrorism Act (JASTA)         

A prior post reviewed the Justice Against Sponsors of Terrorism Act (JASTA) (S.2040) that was passed by Congress on September 28, 2016, with sufficient votes to override President Obama’s veto of the bill. Now we look at the pre-veto legislative history of JASTA and controversies over the bill.

Legislative History

S.2040 was introduced in the U.S. Senate on September 16, 2015, by Senator John Cornyn (Rep., TX) with 12 Republican and 12 Democrat cosponsors. Without any hearings on the bill, the Senate Judiciary Committee on January 28, 2016, passed an amendment as a substitute for the original bill, and on February 3, 2016, the Committee Chair, Senator Charles Grassley (Rep., IA), reported the bill to the Senate without a written report.[1]

On May 17, 2016, the Senate unanimously passed the JASTA bill with limited debate.[2] On the Senate floor Senator Cornyn offered a substitute amendment and stated that the U.S. Code already had an exception to sovereign immunity for certain acts of terrorism [28 U.S.C. § 1605A], but “it does not extend to terrorist attacks on our homeland by countries and organizations that have not already been designated as state sponsors of terrorism. This [bill] makes some small changes in that legislation that first passed in 1976 to expand the scope of that [provision] to allow the families of the 9/11 tragedy to seek justice in our courts of law.” The bill has been limited to “injury in the United States.” The bill requires injuries caused by “acts of terrorism,” and excludes “acts of war.” Cornyn also discussed the secondary liability provision of the bill.[3]

Immediately following Cornyn that day, Senator Chuck Schumer (Dem., NY), a cosponsor of the bill, emphasized the bill’s provision allowing the Department of Justice to seek a stay of any lawsuit under this exception. Following the Senate’s passage of the bill, Senator Schumer issued a statement praising this action as correcting erroneous court decisions granting immunity to “foreign actors who finance and enable terrorism on a massive scale” and allowing “terrorism victims, like victims of the September 11th attacks [and of any other acts of terrorism on U.S. soil after 9/11] the opportunity to pursue [financial damage claims against] foreign states who sponsor terrorism in federal court.”[4]

On October 23, 2015, an identical companion bill (H.R.3815) was introduced in the U.S. House of Representatives by Representative Peter King (Rep., NY) with 31 Republican and 30 Democrat cosponsors. It was referred to the House Judiciary Committee, which did not hold any hearings on the bill. On September 9, 2016, the Senate companion bill (S.2040) was agreed to and passed by a voice vote in the House.[5]

 Pre-Veto Controversies Over JASTA

The Senate passage of JASTA, on May 17, 2016, was despite lobbying against the bill by Administration officials and warnings by the Saudi government that if the legislation passed, that country might begin selling off up to $750 billion in U.S. Treasury securities and other assets in the U.S. before they faced the danger of being frozen by American courts.[6]

In the midst of this congressional consideration of JASTA, on July 15, 2016, the Senate/House Select Intelligence Committee published the previously classified 28 pages regarding possible connections between Saudi Arabia and 9/11 from the Committee’s “Report on Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001.”

A journalist said that these 28 pages set forth “a wide-ranging catalog of meetings and suspicious coincidences. It details contacts between Saudi officials and some of the Sept. 11 hijackers, checks from Saudi royals to operatives in contact with the hijackers and the discovery of a telephone number in a Qaeda militant’s phone book that was traced to a corporation managing an Aspen, Colo., home of Prince Bandar bin Sultan, then the Saudi ambassador to Washington.” The 28-pages also said, ”It was not the task of this Joint Inquiry to conduct the kind of extensive investigation that would be required to determine the true significance of any such alleged connections to the Saudi Government. . . [But the Committee found no evidence that the] “Saudi government as an institution, or senior Saudi officials individually funded” Al Qaeda.[7]

Some former September 11 Commission staff members, however, pointed out that the wording in the group’s final report did not rule out the possibility that lower ranking Saudi officials had assisted the hijackers.

On the same day (July 15, 2016) of the release of the 28-pages of the Senate report, White House Press Secretary Josh Earnest said, “This information, even as it’s now publicly available, does not change the assessment of the U.S. government [as stated in these 28 pages] that there’s no evidence that the Saudi government as an institution, or senior Saudi officials individually funded al Qaeda. . . . And the 9/11 Commission was able to draw on the information that’s been declassified today as they wrote their report.  They were able to do follow-up interviews and to further investigate those leads.  Those leads didn’t really turn up anything as it relates to specific evidence about the Saudi government as an institution or senior Saudi officials individually funding al Qaeda.”[8]

Press Secretary Earnest also stated, “based on the analysis that’s been conducted by our lawyers here in the U.S. government, the way that this [proposed] law [JASTA] is written could open up U.S. companies and even potentially U.S. personnel to vulnerabilities when they’re engaged in actions or doing business or conducting official government work overseas. There is an important principle related to sovereign immunity.  And when you’re the most powerful country in the world, you’re invested in the idea of sovereign immunity, given how deeply the United States is involved in so many other countries.”

On September 9 (the same date as the House passage of JASTA) the New York Times reported that the Obama Administration had been lobbying against the bill for months and that according to Jack Goldsmith, a professor of law at Harvard and a former official in the Department of Justice under President George W. Bush, “Congress itself could have investigated lingering questions about 9/11, but instead is delegating those tasks to the unelected judiciary. The costs of the law will be borne by courts, which are an awkward place to ascertain Saudi responsibility for 9/11, and especially the president, who will have to deal with the diplomatic fallout with Saudi Arabia and other nations.”

The Times also quoted Pierre Lellouche, a member of the French Parliament, who said he would pursue legislation that would permit French citizens to sue the United States with cause. “I have sympathy with the notion of hitting those countries which actively support terrorism.” But the American bill “will cause a legal revolution in international law with major political consequences.” Even the Republican Chair of the Senate Foreign Relations Committee, Senator Bob Corker of Tennessee expressed some hesitancy over the bill. He said, “We were able to get some changes to make it less damaging to potential dangers over time. We as a nation have got more to lose on sovereignty issues than any other nation in the world. If the White House actually vetoes this, I think there will be whole levels of discussion.”[9]

Senator John Cornyn, the author of the bill, however, started a barrage of comments urging President Obama to sign the bill by saying on September 9, “the families of those lost in attacks like that on September 11th should have every means at their disposal to seek justice. . . . I hope the President will sign it into law.”  On the Senate floor on September 12 Cornyn said: “It’s important for us to send a message that that evil shall not prevail. . . . [The] victims [of 9/11] and their families still don’t have the ability to get justice from the people, including the governments, who helped fund those terrorist attacks. And that’s where the bill . . . [JASTA] comes into play because if this legislation is signed by the President, it will become the law of the land . . . to make sure that these families who are still grieving and still don’t have closure will be able to seek justice in a court of law against the people who killed their loved one on September 11th.” Cornyn on September 13 threatened an override of a presidential veto of the bill.[10]

President Obama, however, did not sign the bill into law. Instead, On September 23, he vetoed the bill as will be discussed in a subsequent post.

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[1] Library of Congress, THOMAS: S.2040 Justice Against Sponsors of Terrorism Act . Going back to 2009, earlier versions of this law were introduced, but I have not examined the history of those versions. If a reader of this post has done so, please elaborate in a comment to this post.

[2] Cong. Record S2845-48 (May 17, 2016); Mazzetti, Senate Passes Bill Exposing Saudi Arabia to 9/11 Legal Claims, N.Y. Times (May 17, 2016).

[3] U.S. Cong. Rec. S2845-2848 (May 17, 2016).

[4] Schumer, Schumer Announces Passage of Justice Against Sponsors of Terrorism Bill—Urges House to Quickly Pass Legislation Allowing American Families To Seek Justice After 9/11 Attacks (May 17, 2016); Schumer, Schumer Urges House To Swiftly Pass JASTA Bill; Law Would Allow Victims To Seek Justice for Terrorist Acts on U.S. Soil, Senator Says American Families Deserve Their Day in Court (Sept. 7, 2016).

[5] Cong. Record H5239-44 (Sept. 9, 2016); Library of Congress, THOMAS: H.R.3815 Justice Against Sponsors of Terrorism Act.

[6] See n.2 supra.

[7] Mazzetti, In 9/11 Document, View of a Saudi Effort to Thwart U.S. Action on Al Queda, N.Y. Times (July 15, 2016);    House/Senate Select Comm., 28 Pages of the 2002 Congressional Inquiry into the Sept. 2011 Attacks, N.Y. Times (July 15, 2016).

[8] White House, Press Briefing by Press Secretary Josh Earnest (July 15, 2016).

[9] Steinhauer, House Passes Bill Allowing 9/11 Lawsuits Against Saudi Arabia; White House Hints at Veto, N.Y. Times (Sept. 9, 2016).

[10] Cornyn, Cornyn Calls on President to sign 9/11 Victims Bill (Sept. 9, 2016);Cornyn, Cornyn: American People Support 9/11 Victims Bill (Sept. 12, 2016); Cornyn, Cornyn to White House: Don’t Keep 9/11 Families Waiting (Sept. 13, 2016); Cornyn, Cornyn Presses White House to Act on 9/11 Victims Bill (Sept. 19, 2016); Cornyn, Cornyn to White House: Stop Stalling on 9/11 Bill (Sept. 20, 2016).

 

 

On Visit to Turkey, Vice President Biden Discusses Possible U.S. Extradition of Fethullah Gulen

As discussed in a prior post and two comments thereto, the United States and Turkey continue to be involved in discussions regarding Turkey’s request for the U.S. to extradite to Turkey a Muslim cleric, Fethullah Gulen, who now is living in the U.S.

The subject also came up with respect to U.S. Vice President Joe Biden’s August 24 visit to Turkey: first in the White House Press Secretary’s August 22 press briefing; second in Biden’s August 24 joint press conference with Turkey’s Premier Binali Yildirim; third in Biden’s August 24 joint press conference with Turkey’s President Recep Tayyip Erdogan; fourth at the White House Press Secretary’s August 24 press briefing; and fifth at the State Department’s August 24 Daily Press Briefing.

White House Press Briefing[1]

On August 22 White House Press Secretary Josh Ernest addressed Biden’s then upcoming visit to Turkey. He said that Biden will “indicate our continued, ongoing support for our allies in Turkey.  It’s a country that obviously is going through a lot.  This is a country that was subject to a failed coup attempt earlier this summer.  That is a coup attempt that was roundly and publicly condemned by the United States government.  And we continue to strongly support the democratic government of our allies in Turkey” and “the steps that Turkey has taken to make contributions to our counter-ISIL effort.”

As it relates to Mr. Gülen, the Press Secretary stated, Biden “will say what President Obama [already] has communicated directly to President Erdogan, which is that there is a treaty, an extradition treaty, that’s been on the books between the United States and Turkey for more than 30 years.  And the United States is committed to following the procedure and guidelines that are outlined in that treaty.” This includes “extensive coordination between officials at the Department of Justice and their Turkish counterparts.”  But extradition is “not a presidential decision.  There is a process that is codified in that treaty and in U.S. law. . . . But . . . [the decision] will be guided by the evidence and . . . by the rules and procedures that are codified in the extradition treaty and in United States law.”

Biden and Yildirim Press Conference[2]

BCiden+Premier

Upon his arrival in Ankara, Biden and Turkey’s Premier Yildirim held a joint press conference. To the right is a photograph of them.

Biden emphasized, “President Obama asked me to come to Turkey today in order to remind the world of the paramount importance that we place on the relationship between our nations as allies, as partners, and as friends. It is as an ally and a long-term friend of the Turkish people, that I’m here today to express in no uncertain terms the continuing, unwavering support of the United States for Turkey in the wake of last month’s attempted coup.”

“So on behalf of President Obama and the people of the United States, I want to once again, Mr. Prime Minister, extend to all the people of Turkey our condolences to the families and loved ones who were injured, but particularly those who lost a loved one.  We pay tribute to not only their bravery but their incredible resolve, their incredible commitment to their democracy, to ensuring that their country remains strong, vibrant and resilient, and democratic.”

“The . . . people of the United States of America abhor what happened, and under no circumstances would support anything remotely approaching the cowardly act of the treasonous members of your military who engaged in this behavior.  We did not have prior knowledge.  We did not support.  We immediately condemned.  And we continue, as we did before the coup, to stand shoulder to shoulder with not only the government of Turkey, but with the people of Turkey.”

“I understand the intense feeling your government and the people of Turkey have about [Mr. Gulen] . . . . We are cooperating with Turkish authorities.  Our legal experts are working right now with their Turkish counterparts on the production of and the evaluation of material and evidence that needs to be supplied to an American court to meet the requirements under our law and the extradition treaty to extradite Gulen. And we’re going to continue to do so as you continue to bring forward additional information.  We have . . . no interest whatsoever in protecting anyone who has done harm to an ally.  None.  But we need to meet the legal standard requirement under our law.”

“[U]nder American law:  No President of the United States has authority to extradite anyone on his own power.  That only an American court can do that.  Were a President to attempt to do that, it would be an impeachable offense.  But we have no reason to do anything other than cooperate with you and take every substantiating fact and make it available to the extent it exists to an American court.”

Premier Yildirim in his remarks welcomed the Vice President and recognized that “the relationship between Turkey and the United States has a very long history, a very deep-rooted history.   Therefore, from time to time, there might be incidents that tend to damage this relationship.  But on both sides, of course, we should never allow this to happen.”

“[T]his heinous coup attempt was, in our opinion, orchestrated and instructed by Fethullah Gulen.  And as per the treaties that we have between our two countries, the necessary steps should be taken with a view to his extradition to our country.  And we have taken the initial step in that process.  And you have had very frank remarks for the Turkish people and also for our government . . . of vital importance for a sound functioning of this process, and we are grateful to you for those remarks.”

“So having a [U.S.] technical team . . . here in Turkey, and talking to our judges and prosecutors here on the ground, is a clear sign from your side that you’re taking this very seriously, that you’re attaching great importance to this.  Therefore, I would like to once again thank you for being sensitive about the matter.”

“The process of extraditing the head of the terrorist organization that was behind the attempted coup, if it can be expedited and accelerated, and if we can have more cooperation in the process, I think the grief and grievances of the Turkish people, of the Turkish nation, will be remedied to a certain degree, and their overall sentiments about the issue will go back to being more positive.”

The Premier repeated this last thought in later responding to a journalist’s question: “I am sure that the healthy and sound functioning of the processes with regard to the extradition of the head of the terrorist organization will also, in a short amount of time, return or rectify the people’s perception back to their normal, positive situation.”

Biden and Erdogan Press Conference[3]

BidenErdogan

At the joint press conference after their private meeting, Biden opened by expressing his “personal condolences and the condolences of my country for the brutal, unconscionable attack in Turkey. . . .The attempted coup went to the heart of who your people are — principled, courageous and committed.  And for a people who have struggled so long to establish a true democracy, this was, from my perspective and the President’s perspective, the ultimate affront.  So my heart goes out to not just the government, but to the Turkish people.” He added, “the United States stands with our ally, Turkey.  We support the people of Turkey.  And our support is absolute and it is unwavering.” (Above is a photograph of the two men.)

“That’s why the United States.” Biden said, “is committed to doing everything we can to help [Turkey] through your justice [system] hold all those responsible for this coup attempt while adhering to the rule of law. . . . [O]ur American experts are on the ground, here in Ankara, meeting with your people, closely coordinating with our Turkish counterparts to evaluate and gather the material with regard to Turkish requests to extradite Gulen, in accordance with our bilateral extradition treaty.”

As “powerful as my country is, as powerful as Barack Obama is as President, he has no authority under our Constitution to extradite anyone.  Only a federal court can do that. . . . If the President were to take this into his own hands, . . . he would be impeached for violating the separation of powers.”

The U.S. has no “reason to protect Gulen or anyone else who, in fact, may have done something wrong. . . . [T]his case, like all others, is going to have to be assessed by an independent federal court along with evidence backing it up.  That’s what we’re working on together now.  And it takes time to work an extradition request, but there should be no doubt that we’ll continue to work closely with the Turkish government as this process unfolds.”

In response to a journalist’s question at the end of the press conference, Biden repeated these thoughts about extradition. “We are a nation of laws.  We are bound by a constitution. . . . The constitution and our laws require for someone to be extradited, that the court in the United States has to conclude with probable cause to be extradited.  Not only do we apply that standard as it relates to extradition; we apply that standard every day we do our country.”

Biden continued, “we have a team of our lawyers and experts who were here in Ankara yesterday, sitting down with your experts on the judiciary and your prosecutors, saying, give us the data we need in order to be able to bring these to a court of law that will say, yes, we must extradite [Mr. Gulen]. . . . What possible interest could the United States have in wanting to protect someone who, in fact, met the standard under our law of being deported?”

Until yesterday, the Vice President added, “[T]here has been no evidence presented about the coup.  When you go to an American court, you can’t go into a court and say, this is a bad guy, generally.  You have to say this is a guy or a woman who committed the following explicit crime.  That’s what we’re working with President [Erdogan] right now to gather the evidence that will establish in a court of law probable cause to believe he may have done this.  We are determined — we are determined to listen to every scrap of evidence that Turkey can provide or that we can find out about.”

“We will continue to abide by [our] system.  And God willing, there will be enough data and evidence to be able to meet the criteria that you all believe exists.  We have no reason to shelter someone who would attack an ally and try to overthrow a democracy.” (Emphasis added.)

President Erdogan thanked the Vice President for coming and saluted him with “all my most heartfelt emotions.”

Erdogan then stressed that the “leader of the FETO terrorist organization [Gulen] needs to be extradited to Turkey as soon as possible.  That is the first measure that needs to be taken.  There are references made to the verdicts to be issued by courts, and we have previously submitted all of the folders regarding the actions engaged in by these terrorists before July the 15th.  And right now, we are amassing certain documents pointing out to their involvement in this failed coup that took place on July the 15th.”

Under the U.S.-Turkey extradition treaty, Erdogan said, “those individuals should be taken into pretrial detention, they should be arrested, and throughout the trial they need to remain in custody.  This person [Gulen], however, is currently managing and directing the terrorist organization where he lives.  They are present in more than 170 countries around the world, and they are present through school associations and other sorts of educational institutions. . . . [He] is still providing interviews to media outlets in the United States.  Some journalists are being taken into the Pennsylvania residence, and he is still continuing his actions around the world, and he’s shaping his actions for the future using these outlets.  That’s why it is very important for him to be contained through pretrial detention, which is actually part of the bilateral extradition treaty that was signed between our two countries, which we should not ignore.  And that is something I especially feel that I need to remind you of.  And I’m confident that the United States will take the necessary measures to cater to our expectations in that regard.”

Another White House Press Briefing[4]

Biden’s “God willing” comment came up in a question at the Wednesday afternoon, August 24, White House press briefing. Josh Earnest responded that the “point that the Vice President was making is that this is not going to be a decision that is made by the executive branch.  The decision about the evidence that Turkey has compiled is one that will follow the guidelines of the extradition treaty, and will ultimately involve a federal judge who will have to render [his or her] . . . own judgment, [his or her] . . . own assessment of the situation consistent with U.S. law and consistent with the terms of the extradition treaty.”

The White House Press Secretary also said that the U.S. has “concerns about the Turkish government’s activity since the coup have been a reflection of our longstanding concerns about protection of human rights inside of Turkey.  Turkey is a valuable NATO ally, and we’re able to work effectively with them on a variety of issues in a way that advances the interests of both our countries.  But even in the midst of our progress in pursuit of those shared priorities, the President has periodically raised concerns directly with President Erdogan, particularly on issues like freedom of the press inside of Turkey.” Nevertheless, “since the coup, we’ve understood the significant concerns that have been raised in Turkey and the need for a thorough investigation to get to the bottom of what exactly happened.”

With respect to Mr. Gülen, “there is a well-established process, and both the United States and Turkey are engaged in that process.  That process is governed by an extradition treaty between the United States and Turkey that’s been on the books for 35 years or so. . . . [T]here is a rather high bar, a high evidentiary standard that’s required.  So considering that the coup took place — what was it — six or eight weeks ago, I think it’s understandable that Turkey wouldn’t be able to build such a robust case, if there is one to be presented, against Mr. Gülen in such a short period of time.”

In addition, “Turkey has longstanding concerns with Mr. Gülen’s activity and they have presented significant evidence to the United States, and Department of Justice officials are carefully reviewing that evidence.  In fact, Justice officials are in Turkey this week, meeting with their counterparts to discuss and review that evidence.  What we have said all along is that the terms of the treaty and the law on the books here will ultimately determine how this is resolved.”

State Department Daily Briefing[5]

The Department’s spokesman said “our legal experts are working right now with their Turkish counterparts to evaluate the material, the evidence that needs to be supplied to meet the standards for extradition under our treaty. . . . As we’ve said, Turkey has provided materials relating to Mr. Gulen. We continue to analyze those materials. Under our laws, extradition requests must be assessed by an independent federal court along with the evidence backing it up. . . . It always takes time to work through an extradition request. However, there should be no doubt that we will continue to work through this working with our Turkish counterparts.”

Conclusion

Vice President Biden, President Obama and other U.S. officials consistently and rightly have emphasized that Turkey’s requested extradition of Gulen will be handled in accordance with the U.S.-Turkey extradition treaty and U.S. law, which were explained in a prior post and which were illustrated in February 6 and August 22 posts about the ongoing proceedings for extradition of a former Salvadoran military officer to Spain for the criminal case regarding the 1989 murder of the Jesuit priests.[6]

Turkey’s refusal to make a public acknowledgement of this reality cannot be based on ignorance of its extradition treaty or U.S. law. Instead it has to be based in part on Erdogan’s wanting to appear to the Turkish people as a strong leader and fomenting Turkish public pressure for the extradition. Perhaps too it is based upon Erdogan’s apparently increasing belief in his own power to control everything.

In any event, at least one Turkish journal had a very negative reaction to Biden’s remarks in their country.[7] An editorial in Istanbul’s Daily Sabah stated, Biden “came all the way from the U.S. just to mention the importance of rule of law of his own definition.” He “parroted the same stale remarks Turkey has heard since July 15. . . . Unfortunately, Biden came and went without leaving a trace. His sly smile, insincere apology about not having come sooner and feeble remarks of friendship between the people will deservedly fall on deaf ears.”

The Daily Sabah editorial even claimed the U.S. was not abiding by Article 9 of the bilateral extradition by not detaining Gulen. That Article states, “The Contracting Parties shall take all necessary measures after the information and documents related to the request for extradition have been received, including a search for the person sought. When located the person sought shall be detained until the competent authorities of the Requested Party reach their decision. If the request for extradition is granted, the detention shall be continued until surrender.”[8]

Yes, the editorial accurately quotes Article 9, but that Article states the obligation to detain arises only “after the information and documents related to the request for extradition have been received” (here, by the U.S.). The published reports indicate that some information and documents regarding Gulen have been provided to the U.S. by Turkey, but it is unclear if Turkey has completed that process. Moreover, as indicated above, the U.S. is meeting with Turkish officials to aid them in providing the necessary materials for the application.

The editorial also fails to examine Article 10(1) of the treaty, which provides, “In cases of urgency, either Contracting Party may apply for the provisional arrest or detention of the person sought before the request for extradition has been submitted to the Requested Party through diplomatic channels. The request for provisional arrest or detention may be made either through diplomatic channels or directly between the Department of Justice of the United States and the Ministry of Justice of Turkey.” Article 10(2) then goes on to list what needs to be in such an application. Public information has not indicated that Turkey has availed itself of this remedy.

Relevant here, but unacknowledged by the Daily Sabah, is the U.S. Attorneys’ Manual that covers the procedures for detention or arrests of persons potentially subject to extradition in these situations.[9]

Therefore, the Daily Sabah editorial, in this blogger’s judgment, is not well founded.

========================================================

[1] Press Briefing by Press Secretary Josh Earnest, 8/22/16.

[2] White House, Remarks by Vice President Joe Biden and Turkish Prime Minister Binali Yildirim at a Press Availability (Aug. 25, 2016); Reuters, Biden Says U.S. Cooperating With Turkey on Evidence Against Gulen, N.Y. Times (Aug. 24, 2016); Assoc. Press, Biden Calls on Turkey to Be Patient in Gulen Case, N.Y. Times (Aug. 24, 2016); Kraychik, Biden Apologizes To Turkey For US Constitution, Daily Wire (Aug. 24, 2016).

[3] White House, Remarks by Vice President Biden and President Erdogan of Turkey in Pool Spray (Aug. 25, 2016); Reuters, Biden Tells Turkey’s Erdogan: Only a Federal Court Can Extradite Gulen, N.Y. Times (Aug. 24, 2016); Reuters, Turkey Must Control Its Own Border, U.S. Vice President Biden Says, N.Y. Times (Aug. 24, 2016); Reuters, Turkey’s Erdogan Says U.S. Agreements Require Coup Suspect Arrest, N.Y. Times (Aug. 24, 2016); Wayne & Sink, Biden Met by Snubs as He Seeks to Mollify Turkey’s Angry Erdogan, Bloomberg News (Aug. 24, 2016).

[4] Press Briefing by Press Secretary Josh Earnest, 8/24/16; Reuters, U.S. Reviewing Turkey’s Evidence on Coup Suspect Gulen: White House, N.Y. Times (Aug. 24, 2016).

[5] U.S. State Dep’t, Daily Press Briefing (Aug. 24, 2016).

[6] See also Assoc. Press, U.S., Turkey at an Impasse Over Extraditing Muslim Cleric, N.Y. Times (Aug. 25, 2016).

[7] Editorial, Biden wasted a trip, Turkey wasted time, Daily Sabah (Aug. 25, 2016). Daily Sabah also published two articles about the alleged Gülinist involvement in the recent attempted coup. One is a special report on the subject. The other asserts that a prosecutor who has been arrested for membership in the alleged Gülenist terror group says that it first started plans to topple President Erdoğan in 2011, instigated two coup attempts in 2013 and an attempted assassination of Erdoğan in the recent attempted coup. (Turkey coup attempt of Gülinist explained in special report, Daily Sabah (Aug. 24, 2016); Karaman, Güllenist prosecutor says group has sought to topple Erdoğan since 2011, Daily Sabah (Aug. 24, 2016).)

[8] U.S.-Turkey Extradition Treaty, 32 U.S.T. 3111.

[9] U.S. Attorneys’ Manual § 9-15.700.

 

Other Reactions to Fidel Castro’s Commentary on President Obama’s Visit 

Fidel’s commentary on President Obama’s recent visit to Cuba, which was discussed in an earlier post, has received a lot of coverage in the international press, but most articles merely summarize what Fidel said with little analysis. Here are substantive reactions to Fidel’s commentary.

Sebastian Arcos’ Reaction

The Wall Street Journal offered an analysis by Sebastian A. Arcos, associate director of the Cuban Research Institute at Florida International University, who said Fidel is “essentially an old man ranting in the background, [his essay is} rambling, it’s incoherent. It’s definitely not on topic.” This is consistent to my reaction as stated in the prior post.[1]

Yoani Sanchez’s Reactions

My prior post also expressed disagreement with Fidel’s assertion that Cuba could produce all the food it needed. According to the Wall Street Journal, this assertion also was challenged by Yoani Sanchez, a dissident Cuban blogger, She points out that cash-strapped Cuba spends nearly $2 billion a year importing 80% of the food that its 11 million residents consume. Yoani also reported that Mr. Obama’s speech has been distributed extensively on the island, with high-resolution videos of the address on computer memory drives.

Christopher Sabatini’s Reactions

Another point of disagreement with Fidel, as noted in the prior post, was regarding his contention that the Cuban Revolution had swept away racial discrimination.

Also disagreeing with this Fidel contention is Christopher Sabatini, an adjunct professor at Columbia University’s School of International and Public Affairs and director of Global Americans, a research institute focused on the foreign policy of human rights and social inclusion. He says that Cuba’s purported racial utopia is a myth. Sabatini contends that according to a 2011 study “’black and mixed populations, on average, are concentrated in the worst housing conditions’ and tend to work in lower-paying, manual-labor jobs.” Moreover, racial “structural disparities have increased” with “blacks and mestizos occupy[ing] only 5 percent of the lucrative higher-end jobs (managers and technicians) in the tourism industry but are heavily represented in low-level jobs.” Yet another index of racial disparities was foreign remittances to Cubans “overwhelmingly go[ing] . . . to its non-black population.”[2]

Another myth about Cuba, says Sabatini, is the alleged greatness of the Cuban health system. Although there have been health-care advances in Cuba with Cuban life-expectancy the second-highest in Latin America at 79.1 years and although Cuba justifiably is proud of its medical education and sending its physicians to other countries, “advanced health care is flagging” in Cuba with “the health system used by average Cubans in crisis” and hospitals “generally poorly maintained and short of staff and medicines.”

I am not a physician and do not have personal knowledge on this issue, but on my first visit to Cuba in 2002 I visited a polyclinic in the city of Matanzas and observed poor, unsanitary conditions, and on every mission trip to Cuba members of my church always take large supplies of over-the-counter medicines that the church then dispenses as a de facto pharmacy. In addition, an Ecuadorian ophthalmologist and a retired emergency room physician have told me that they have had to solve medical problems created by poor care from visiting Cuban medical personnel, but I do not know if these are isolated or widespread instances.

 White House Reactions

On March 28 White House Press Secretary Josh Earnest made extensive comments about Fidel’s commentary and the President’s visit to Cuba. The Secretary said, “the fact that [Fidel Castro] . . . felt compelled to respond so forcefully to the President’s visit . . . is an indication of the significant impact of President Obama’s visit to Cuba.  We obviously were quite pleased with the reception that President Obama received from the Cuban people.  [We are] . . . also pleased with the kind of conversations that President Obama was able to have with other Cuban government officials.  There was an opportunity for us to discuss what additional steps can be taken to normalize relations between our two countries.”[3]

Earnest continued, “The President made clear time and time again, both in private meetings with President [Raúl] Castro, but also in public when he delivered a speech to the Cuban people, that the U.S. commitment to human rights is rock-solid, and that’s not going to change.  And we’re going to continue to be leading advocates — and President Obama is going to continue to be a leading advocate — for universal human rights, not just in the Western Hemisphere but around the world.”

“And the kind of engagement that President Obama was able to pursue in the context of his visit is the kind of engagement that would not have been possible had he not made the trip.  The President was able to go to Cuba and urge President [Raúl] Castro in person about the importance of human rights.  The President was able to stand before a news conference, the assembled global media, and make a forceful case for the Cuban government to better protect universal human rights.  That also created a venue where a couple of your colleagues were able to ask President [Raúl] Castro about this issue directly.

That’s the kind of thing that’s never happened before.  And there’s no denying that creates some additional pressure on the Cuban government.  And again, the fact that the former President [Fidel Castro] felt compelled to respond I think is an indication that the trip had its intended effect.“

Ernest also said the U.S. was “ constantly in a position to be urging the government of Cuba to do a better job of protecting the universal human rights of their people, but we’re also making a specific push to look out for those that we know are being targeted because of their political views.  So that is to say our call for greater respect for human rights on the island of Cuba is both a generalized call about respecting the basic human rights of the Cuban people, but it’s also a specific call about making sure that individuals who have been victimized or targeted or rounded up or tortured because of their political views are freed.”

“Those efforts are going to continue.  And importantly, the United States and our government is not the only one encouraging Cuba to take these important steps.”

“One of the benefits of this policy change that the President has announced is that, for a long time, our policy toward Cuba served as an impediment to our relations with other countries throughout the hemisphere.  And for a long time, we saw countries in the Western Hemisphere who were more focused on the U.S. policy toward Cuba than they were on the policy of the Cuban government toward its own people.  Now that impediment has been removed, and now we are seeing greater scrutiny applied toward the Cuban government and, frankly, tougher questions being raised about the way that the Cuban government treats its own people.  That’s a helpful thing.  And that added pressure will only be a good thing for the Cuban people in the long run.”

“The President did have an opportunity in the course of his conversations to make clear that the kind of work that’s currently being done in law enforcement channels to try to coordinate the return of some of these fugitives is a priority of his.  And he made that clear at the highest levels of the Cuban government.  And we’re going to continue to push for those kinds of issues to be resolved because they’re a genuine irritant in our relationship.”

In “every meeting that the President had with a Latin American leader in the first few years of his presidency, . . . that at some point, the discussion was actually consumed by the nonsensical U.S. policy toward Cuba.  And that was getting in the way of the ability of the United States to engage in the kinds of conversations that actually are helpful to our national security interests.  And in some cases, that actually has opened up and created space for the President to have a conversation with other world leaders about the human rights situation in Cuba, which, after all, is actually the whole point of this exercise and was the point of that policy.  And that’s why the President viewed it as a failed policy that had negative consequences for our relationship with other countries in Latin America — that too often they were talking about the embargo and not about the serious human rights situation inside of Cuba.”

Cuban Foreign Minister’s Reactions

On March 29 Cuban Foreign Minister Bruno Rodriguez said that ending the embargo (blockade) had to be the unilateral act of the U.S. It would not be the result of any negotiation with Cuba or any concessions by Cuba. He also said the U.S. still has the strategic objective of dominating Cuba economically and politically, but that Cuba would never give up the principles of the Revolution or its independence. This point was made, Rodriguez said, in the timely reflection of Fidel Castro with his extraordinary historical authority when he said Cuba does not need gifts from the U.S.[4]

Conclusion

In short, Fidel Castro overstates the case for the Cuban Revolution. Yes, it has made improvements in many aspects of Cuban life. But the Revolution did not create an utopia. Cuba is neither heaven nor hell. There is still room for improvement. The same is true of the U.S., as President Obama acknowledged in his speech to the Cuban people.

==========================================

[1] Vyas, Fidel Castro Lashes Out at Obama After Cuba Visit, W.S.J. (Mar. 28, 2016)

[2] Sabatini, 5 myths about Cuba, Wash. Post (Mar. 25, 2016),

[3] White House, Press Briefing by Press Secretary Josh earnest, 3/28/2016 Also on March 28, a U.S. Department of State spokesman said Fidel Castro “can speak for himself and his views of the troubled U.S.-Cuban history. . . . [The U.S.] believes “engagement’s the best way forward. . . . Nobody expected that the normalization process with Cuba was going to be linear or easy or quick. We all recognize there are still differences – human rights being one of them.”.

[4] Prensa Latina, End the blockade must be US unilateral act, Granma (Mar. 29, 2016).

Presidents Obama and Castro Speak and Meet at United Nations

Over the last week Cuban President Raúl Castro has made two speeches at the United Nations in New York City as has U.S. President Barack Obama. Afterwards the two of them with advisors held a private meeting at the U.N. with subsequent comments by their spokesmen. Here is a chronological account of these events.

President Castro’s September 26th Speech[1]

 

On September 26, President Raúl Castro 11131154waddressed the U.N. Summit on Sustainable Development, as shown in the photograph to the right. In his remarks he said, ”The reestablishment of diplomatic relations Between Cuba and the United States of America, the opening of embassies and the policy changes announced by President Barack Obama . . . constitute a major progress, which has elicited the broadest support of the international community.”

However, he added, “the economic, commercial and financial blockade [by the U.S.] against Cuba persists bringing damages and hardships on the Cuban people, and standing as the main obstacle to our country’s economic development, while affecting other nations due to its extraterritorial scope and hurting the interests of American citizens and companies. Such policy is rejected by 188 United Nations member states that demand its removal.”

More generally Castro condemned “the pervasive underdevelopment afflicting two-thirds of the world population” and the widening “gap between the North and the South” and “wealth polarization.”

Thus, he argued, “If we wish to make this a habitable world with peace and harmony among nations, with democracy and social justice, dignity and respect for the human rights of every person, we should adopt as soon as possible concrete commitments in terms of development assistance, and resolve the debt issue.” Such a commitment, he said, would require “a new international financial architecture, removal of the monopoly on technology and knowledge and changing the present international economic order.”

Nevertheless, according to President Castro, Cuba will continue to help other developing nations despite its limited capabilities and “shall never renounce its honor, human solidarity and social justice” that “are deeply rooted in our socialist society.”

President Obama’s September 27th Speech[2]

635789669053394239-AFP-544774880

On September 27, President Obama addressed the same U.N. Summit on Sustainable Development without touching on U.S.-Cuba relations. Instead he concentrated on the purpose of the Summit– sustainable development. (His photograph is to the left.)

He started by rejecting the notion that “our efforts to combat poverty and disease do not and cannot work, that there are some places beyond hope, that certain people and regions are condemned to an endless cycle of suffering.” Instead, he asserted, “the global hunger rate has already been slashed.  Tens of millions of more boys and girls are today in school.  Prevention and treatment of measles and malaria and tuberculosis have saved nearly 60 million lives.  HIV/AIDS infections and deaths have plummeted.  And more than one billion people have lifted themselves up from extreme poverty — one billion.”

Nevertheless, much remains to be done, according to Obama, and the nations at this Summit “commit ourselves to new Sustainable Development Goals, including our goal of ending extreme poverty in our world.  We do so understanding how difficult the task may be.  We suffer no illusions of the challenges ahead.  But we understand this is something that we must commit ourselves to.  Because in doing so, we recognize that our most basic bond — our common humanity — compels us to act.”

In this work, President Obama stated, the U.S. “will continue to be your partner.  Five years ago, I pledged here that America would remain the global leader in development, and the United States government, in fact, remains the single largest donor of development assistance, including in global health.  In times of crisis — from Ebola to Syria — we are the largest provider of humanitarian aid.  In times of disaster and crisis, the world can count on the friendship and generosity of the American people.”

Therefore, Obama said, he was “committing the United States to achieving the Sustainable Development Goals” and to “keep fighting for the education and housing and health care and jobs that reduce inequality and create opportunity here in the United States and around the world.” This effort will include other “governments, more institutions, more businesses, more philanthropies, more NGOs, more faith communities, more citizens.” Moreover, the “next chapter of development must also unleash economic growth — not just for a few at the top, but inclusive, sustainable growth that lifts up the fortunes of the many.”

President Obama concluded by noting these obstacles to achieving these goals: bad governance; corruption; inequality; “old attitudes, especially those that deny rights and opportunity to women;” failure to “recognize the incredible dynamism and opportunity of today’s Africa;” war; and climate change

President Obama’s September 28th Speech[3]

 In a wide-ranging speech on international affairs, President Obama commented on U.S. relations with Cuba. He said, “I also believe that to move forward in this new era, we have to be strong enough to acknowledge when what you’re doing is not working. For 50 years, the United States pursued a Cuba policy that failed to improve the lives of the Cuban people. We changed that. We continue to have differences with the Cuban government. We will continue to stand up for human rights. But we address these issues through diplomatic relations, and increased commerce, and people-to-people ties. As these contacts yield progress, I’m confident that our Congress will inevitably lift an embargo that should not be in place anymore. Change won’t come overnight to Cuba, but I’m confident that openness, not coercion, will support the reforms and better the life the Cuban people deserve, just as I believe that Cuba will find its success if it pursues cooperation with other nations.”

Later in the speech, Obama added these words: “Think of the Americans who lowered the flag over our embassy in Havana in 1961 — the year I was born — and returned this summer to raise that flag back up. (Applause.) One of these men said of the Cuban people, “We could do things for them, and they could do things for us. We loved them.” For 50 years, we ignored that fact.

These comments were in the context of the following more general discussion of international affairs by President Obama: “We, the nations of the world, cannot return to the old ways of conflict and coercion. We cannot look backwards. We live in an integrated world — one in which we all have a stake in each other’s success. We cannot turn those forces of integration. No nation in this Assembly can insulate itself from the threat of terrorism, or the risk of financial contagion; the flow of migrants, or the danger of a warming planet. The disorder we see is not driven solely by competition between nations or any single ideology. And if we cannot work together more effectively, we will all suffer the consequences.”

“No matter how powerful our military, how strong our economy, we understand the United States cannot solve the world’s problems alone.” So too, in words that could be aimed at Cuba and others, “repression cannot forge the social cohesion for nations to succeed. The history of the last two decades proves that in today’s world, dictatorships are unstable. The strongmen of today become the spark of revolution tomorrow. You can jail your opponents, but you can’t imprison ideas. You can try to control access to information, but you cannot turn a lie into truth. It is not a conspiracy of U.S.-backed NGOs that expose corruption and raise the expectations of people around the globe; it’s technology, social media, and the irreducible desire of people everywhere to make their own choices about how they are governed.”

In a similar vein, Obama said, “The strength of nations depends on the success of their people — their knowledge, their innovation, their imagination, their creativity, their drive, their opportunity — and that, in turn, depends upon individual rights and good governance and personal security.”

Finally, according to Obama, we must “defend the democratic principles that allow societies to succeed” with a recognition that “democracy is going to take different forms in different parts of the world. The very idea of a people governing themselves depends upon government giving expression to their unique culture, their unique history, their unique experiences. But some universal truths are self-evident. No person wants to be imprisoned for peaceful worship. No woman should ever be abused with impunity, or a girl barred from going to school. The freedom to peacefully petition those in power without fear of arbitrary laws — these are not ideas of one country or one culture. They are fundamental to human progress.”

“A government that suppresses peaceful dissent is not showing strength; it is showing weakness and it is showing fear. History shows that regimes who fear their own people will eventually crumble, but strong institutions built on the consent of the governed endure long after any one individual is gone.”

“That’s why our strongest leaders — from George Washington to Nelson Mandela — have elevated the importance of building strong, democratic institutions over a thirst for perpetual power. Leaders who amend constitutions to stay in office only acknowledge that they failed to build a successful country for their people — because none of us last forever. It tells us that power is something they cling to for its own sake, rather than for the betterment of those they purport to serve.”

“Democracy — inclusive democracy — makes countries stronger. When opposition parties can seek power peacefully through the ballot, a country draws upon new ideas. When a free media can inform the public, corruption and abuse are exposed and can be rooted out. When civil society thrives, communities can solve problems that governments cannot necessarily solve alone. When immigrants are welcomed, countries are more productive and more vibrant. When girls can go to school, and get a job, and pursue unlimited opportunity, that’s when a country realizes its full potential.”

President Castro’s September 28th Speech[4]

On September 28, Cuban President Raúl Castro in his address to the U.N. General Assembly essentially reiterated his comments of two days earlier about U.S.-Cuba relations with these words: ‘After 56 years, during which the Cuban people put up a heroic and selfless resistance, diplomatic relations have been reestablished between Cuba and the United States of America.”

“Now, a long and complex process begins toward normalization that will only be achieved with the end of the economic, commercial and financial blockade; the return to our country of the territory illegally occupied by the Guantanamo Naval Base; the suspension of radio and TV broadcasts, and subversion and destabilization attempts against the Island; and, when our people are compensated for the human and economic damages they continue to endure.”

“As long as the blockade remains in force, we will continue to introduce the Draft Resolution entitled ‘Necessity of Ending the Economic, Commercial and Financial Embargo imposed by the United States of America on Cuba.’ To the 188 governments and peoples who have backed our just demand, here, and in other international and regional forums, I reaffirm the eternal gratitude of the Cuban people and government for your continued support.” [5]

The rest of this Castro speech argued that the U.N. has failed in its 70 years of existence to fulfill the lofty purposes of its Charter. The speech also noted Cuba’s solidarity with its Caribbean brothers, African countries, the Bolivarian Republic of Venezuela, the Republic of Ecuador, the people of Puerto Rico, the Republic of Argentina, the Brazilian people and President Dilma Rouseff, the Syrian people and the Palestinian people. Castro also supported the nuclear agreement with the Islamic Republic of Iran.

On the other hand, Castro reaffirmed Cuba’s “rejection of the intention to expand the presence of NATO up to the Russian borders, as well as of the unilateral and unfair sanctions imposed on that nation” and Cuba’s condemnation of NATO and European countries’ efforts to destabilize countries of the Middle East and Africa that have led to the recent migrant crisis in Europe.

In conclusion, Castro said, “the international community can always count on Cuba to lift its sincere voice against injustice, inequality, underdevelopment, discrimination and manipulation; and for the establishment of a more equitable and fair international order, truly focused on human beings, their dignity and well-being.”

The Presidents’ Meeting[6]

Obama &Castro

The two presidents with their advisors held a 30-minute private meeting at the U.N. on Tuesday, September 29. The photograph at the left shows them shaking hands.

The U.S. delegation consisted of Secretary of State, John Kerry; National Security Adviser, Susan Rice; National Security Council Senior Director for Western Hemisphere Affairs, Mark Feierstein; and the U.S. Permanent Representative to the U.N., Samantha Power.

Cuba’s delegation was composed of the Foreign Minister, Bruno Rodriguez; Consultant, Alejandro Castro Espin (the son of President Raúl Castro); Vice President of Cuba’s Defense and Security Committee, Juan Francisco Arias Fernández; Cuba’s Director General of U.S. Affairs, Ministry of Foreign Affairs, Josefina Vidal; and Cuba’s Ambassador to the U.S., José Ramón Cabañas.

White House’s Comments on the Meeting[7]

On a September 29 flight from New York City to Washington, D.C., White House Press Secretary Josh Earnest, in response to a journalist’s question, said, “I know that the two leaders had an opportunity to discuss some of the regulatory changes that have been announced in the last couple of weeks on the part of the [U.S.]. The State Department is leading civil aviation coordination talks in Cuba right now.  And these are all additional steps that are moving toward more normal relations between our two countries.”

“The President, as he always does, . . . reaffirmed our commitment to seeing the Cuban government do a better job of not just respecting, but actually proactively protecting, the basic human rights of the Cuban people.”

We “continue to believe that deeper engagement and deeper people-to-people ties, deeper economic engagement between the [U.S.] and Cuba will have the effect of moving the government and the nation in a positive direction.”

Thereafter the White House released the following written statement about the meeting: “President Obama met today with President Raul Castro of Cuba to discuss recent advances in relations between the United States and Cuba, as well as additional steps each government can take to deepen bilateral cooperation. The two Presidents discussed the recent successful visit of Pope Francis to both countries.  President Obama highlighted U.S. regulatory changes that will allow more Americans to travel to and do business with Cuba, while helping to improve the lives of the Cuban people.  The President welcomed the progress made in establishing diplomatic relations, and underscored that continued reforms in Cuba would increase the impact of U.S. regulatory changes.  The President also highlighted steps the United States intends to take to improve ties between the American and Cuban peoples, and reiterated our support for human rights in Cuba.”

Cuban Foreign Minister’s Press Conference[8]

Soon after the presidential meeting, Cuban Foreign Minister Bruno Rodriguez held a press conference at the U.N. In his opening statement, he said that in a “respectful and constructive” atmosphere, the two presidents exchanged their views on the recent visit of Pope Francisco to Cuba and the United States, as well as issues on the bilateral agenda established between the two countries.

“The presidents agreed on the need to continue working on the set bilateral agenda, which includes areas of mutually beneficial bilateral cooperation and in third countries such as Haiti, the development of dialogue on issues of bilateral and multilateral interest and resolving outstanding issues between two states.”

President Castro affirmed Cuba’s desire to build a new relationship with the U.S. based on respect and sovereign equality, but reiterated that to have normal relations the U.S. had to lift the blockade, which is causing damage and hardship to the Cuban people and affects the interests of American citizens.

Castro also confirmed that Cuba on October 27 would introduce in the General Assembly a resolution condemning the embargo (blockade). Said the foreign Minister, the blockade is “a massive, flagrant and systematic violation of human rights of all Cubans and harms all Cuban families, even Cubans living outside Cuba.” Cuba fully expects this year’s resolution to once again have overwhelming support.

The Foreign Minister said the return of the territory illegally occupied by the Guantanamo Naval Base in Cuba is a high priority element in the process of normalization of relations between the U.S. and Cuba, as a vindication of Cuban people.

At another point he added that “we are very proud of the accomplishments of Cuba on human rights and that human rights are universal, not subject to political selectivity or manipulation of any kind. ” Cuba guarantees the full exercise of political rights and civil liberties, and economic, social and cultural rights. We have many concerns with the situation on human rights in the world, particularly in the U.S. and Western Europe, as illustrated by the current immigration refugee crisis. The pattern of racial discrimination and police brutality against African Americans in the [U.S.] is really serious.

Conclusion

Cuba reiterated its insistence on ending the U.S. embargo as an essential condition for normalization of relations, an objective shared by President Obama and this blog. [9] We now await the U.N. General Assembly’s debate and anticipated approval on October 27 of another resolution condemning the embargo and whether the U.S. will, for the first time, abstain on the vote.

Cuba continues to assert that the U.S. lease of Guantanamo Bay is illegal, but its saying so does not make it so. Previous blog posts have discussed this contention and do not find it persuasive and, therefore, suggested the two countries submit the dispute for resolution to the Permanent Court of Arbitration at The Hague in the Netherlands.[10]

The same means has been suggested in this blog for resolving the disputes about whether or not Cuba has been damaged by the embargo (blockade) and the amount of such alleged damages as well as the amount of damages to U.S. interests by Cuba’s expropriation of property in the early years of the Cuban Revolution.

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[1] Cuba Ministry Foreign Affairs, Raul Castro: Unacceptable levels of poverty and social inequality persist and even aggravate across the world (Sept. 26, 2015); Reuters, Cuba’s Castro Slams U.S. Trade Embargo at United Nations, N.Y. Times (Sept. 26, 2015); Reuters, U.S. Embargo ‘Main Obstacle’ to Cuba’s Development: Castro, N.Y. Times (Sept. 26, 2015) (video)

[2] White House, Remarks by President on Sustainable Development Goals (Sept. 27, 2015).

[3] Reuters, Quotes from President Obama’s U.N. Speech, N.Y. Times (Sept. 28, 2015); President Obama’s Speech to the United Nations General Assembly 2015, N.Y. Times (Sept. 28, 2015); White House, Remarks by President Obama to the United Nations General Assembly (Sept. 28, 2015).

[4] Raúl at the United Nations: The International community can always count on Cuba’s voice in the face of injustice, Granma (Sept. 28, 2015); Full text [of Castro’s speech], Granma (Sept. 28, 2015); Reuters, At U.N., Castro Says U.S. Must End Embargo to Have Normal Cuba Ties, N.Y. Times (Sept. 28, 2015); Assoc. Press, Raúl Castro Addresses General Assembly, N.Y. Times (Sept. 28, 2015) (video); Goldman, At the U.N., Raúl Castro of Cuba Calls for End to U.S. Embargo, N.Y. Times (Sept. 28, 2015).

[5] A prior post reviewed last year’s General Assembly’s condemnation of the embargo.

[6] Assoc. Press, U.S., Cuba Leaders Meet for 2nd Time in This Year, N.Y. Times (Sept. 29, 2015); Reuters, Obama, Castro Meet as They Work on Thawing U.S.-Cuba Ties, N.Y. Times (Sept. 29, 2015); Cuba and U.S. Presidents meet, Granma (Sept. 30, 2015)

[7] White House, Press Gaggle by Press Secretary Josh Earnest en route Washington, D.C., 9/29/15; White House, Readout of the President’s Meeting with Cuban President Raul Castro (Sept. 29, 2015).

[8] Reuters, Cuban Minister on Obama-Castro Meeting, N.Y. Times (Sept. 29, 2015) (video); Bruno Rodriguez: The blockade is a massive, flagrant and systematic violation of human rights, Granma (Sept. 30, 2015).

[9] This blog has discussed the initial bills to end the embargo in the House and Senate as well as later bills to do the same in the Senate and House.

[10] Resolution of U.S. and Cuba’s Damage Claims (April 4, 2015); Resolution of Issues Regarding U.S.-Lease of Guantanamo Bay (April 6, 2015); Does Cuba Have a Right to Terminate the U.S. Lease of Guantanamo Bay? (April 26, 2015).