Cuba’s Possession of U.S. Missile Threatens To Disrupt U.S.-Cuba Normalization

On January 7, 2016, it became publicly known through a Wall Street Journal article that since sometime in 2014 Cuba has had possession of an inert U.S. missile that was erroneously shipped to Cuba from Europe.[1] This post will discuss what is now known about this missile in Cuba and the reactions to this news.

Diversion of U.S. Missile to Cuba

Hellfire missile
Hellfire missile

The object is a dummy U.S. Hellfire missile without any explosives that is a laser-guided, air-to-surface weapon that weighs about 100 pounds and that can be deployed from an attack helicopter or an unmanned drone.

Its manufacturer, Lockheed Martin, in early 2014, with U.S. State Department authorization, shipped the missile from Orlando, Florida to Spain for a NATO training exercise for later return to the U.S. After the completion of the training exercise, it was packaged in Rota, Spain and sent on another freight-forwarder’s truck to Madrid, where it was sent by plane to Frankfurt, Germany. There it was supposed to have been shipped to Lockheed in Florida. Instead for unknown reasons it was shipped from Frankfurt to Paris on an Air France flight, and from Paris to Havana on another Air France flight. Upon its arrival in Cuba, a Cuban official noticed the labeling on the crate and seized it.

Around June 2014 Lockheed, after realizing the missile was missing and likely was in Cuba, notified the U.S. State Department. Thereafter the U.S. has been pressing the Cuban government for information about the missile and for Cuba to return it to the U.S., but Cuba has not responded.

During the summer of 2014, of course, the U.S. and Cuba were engaged in the final steps leading up to the December 17, 2014, announcement that the two countries were embarked upon normalization of relations. Since then, they have been taking various steps toward normalization.

The reason for the shipment to Cuba is unknown. Was it a stupid mistake by a freight forwarder or several of such companies? That I find difficult to believe. That seems to leave it being an intentional criminal or espionage act.

The U.S. is concerned that Cuba has or could give access to the missile to learn about its technology to Russia, China or North Korea. But an article by someone who apparently is technically sophisticated in such matters discounts such dire consequences because “there’s good reason to suspect that China and other large cyber powers might already have blueprints and more, thanks to the still-vague scope of several highly successful military cyber attacks;” because “the US sells thousands upon thousands of working Hellfires to ‘close military ‘allies’ like Iraq, Saudi Arabia, and Turkey;” and because “the fall of Iraq’s Mosul to forces from ISIS . . . led to about $700 million worth of working Hellfire missiles falling into the hands of terrorists.”[2]

 Criticism of the Obama Administration[3]

Unsurprisingly this news has prompted severe criticism of the Administration.

U.S. Senator Marco Rubio (Rep., FL), a Republican presidential candidate, voiced his criticism in a letter to Assistant Secretary of State for Western Hemisphere Affairs, Roberta Jacobson. Rubio opened with the seemingly incontrovertible statement, “Preventing the proliferation of sensitive U.S. technology is one of the most important duties carried out by the State Department.” Because Jacobson has been so deeply involved with normalization negotiations with Cuba, she was asked these questions:

  • “When was the State Department informed that a U.S. Hellfire missile had been sent to Cuba?
  • When were you personally first informed of this matter and by whom?
  • What has been done to obtain the missile’s return by the Cuban government?
  • What specific entity of the Cuban government is currently in possession of the missile?
  • Please provide a list of the specific occasions on which you or other U.S. Government officials have raised this issue with the Castro regime.
  • Why was the return of the missile not obtained as a result of the negotiations that led to President Obama’s December 17, 2014 announced change in U.S. policy toward Cuba?
  • Why was the return of the missile not a condition of removal of Cuba from the State Sponsors of Terrorism list?
  • Why was the return of the missile not a condition of establishment of embassies in Havana and Washington?
  • What members of Congress did you inform of this issue during your briefings and testimony regarding U.S. policy toward Cuba over the last 18 months?
  • Does the State Department know if the Cuban government shared the missile or its design with any foreign governments?”

The Rubio letter concluded, “Sensitive U.S. technology falling into the hands of such a regime [as Cuba’s] has significant implications for U.S. national security.  The fact that the administration, including you, have apparently tried to withhold this information from the congressional debate and public discussion over U.S.-Cuba policy is disgraceful.”

Also on Friday, Republican presidential candidate Jeb Bush tweeted: “Whether it’s Iran holding U.S. citizens hostage or Cuba holding a U.S. missile hostage, Obama always caves. I won’t.’’

Four other lawmakers critical of the Obama position toward Cuba also criticized the handling of the missile case. In a joint statement, Reps. Ileana Ros-Lehtinen (R., Fla.), Mario Diaz Balart (R., Fla.), Carlos Curbelo (R., Fla.) and Albio Sires (D., N.J.) said:

  • “Regardless of how Cuba came into possession of a U.S. Hellfire missile – which must be investigated – it is unconscionable that the Obama administration knew the Castros were in possession of this sensitive U.S. military technology since June 2014 and still moved forward with its policy to open up travel, trade, investment and diplomatic relations with the regime.”
  • “The fact that the Castro regime was able to acquire a U.S. Hellfire missile could be indicative of the lengths it is willing to go to undermine our national security and harm our interests. Congress must provide oversight to determine how the U.S. export control system failed to prevent this gross violation from occurring, and if Cuba’s espionage apparatus played a role in this Hellfire acquisition.”
  • “The Cuban regime rebuffed the President’s efforts to secure the return of the Hellfire missile even as the negotiations were ongoing, and yet the regime still got everything it could have wanted. It is no wonder that the Castro brothers feel ever more emboldened to continue on with the repression of the Cuban people, with intimidation and unlawful arrests at an alarmingly high rate.”
  • “This is a very serious breach and we are deeply concerned that the Castros have already shared the sensitive technology with the likes of Russia, North Korea or China. . . . We urge the Administration to start holding the Cuban regime accountable for its continued transgressions not only against its own people, but its continued disregard for international norms.”

Senator Ron Johnson (Rep., WI), the Chair of the Committee on Homeland Security and Government Affairs, sent a letter to the heads of the Pentagon and the State Department, asking for an explanation “why the U.S. military would forgo complete control, care, and custody of such cargo when transporting it abroad.’’ Mr. Johnson also asked the administration for details of any other lost shipments of sensitive technology over the past five years.

Administration’s Response to Criticism[4]

White House spokesman Josh Earnest said on January 8 that the administration takes the issue very seriously. “The Department of Defense and the State Department are, again, I think for obvious reasons, quite interested in getting to the bottom of exactly what happened.’’

The same day the U.S. State Department spokesman, John Kirby, said, “I am restricted under federal law and regulations from commenting on specific defense trade licensing cases and compliance matters. What I can say is that under the Arms Export Control Act the State Department licenses both permanent and temporary exports by U.S. companies of regulated defense articles. U.S. companies are responsible for documenting their proposed shipping logistics in the application of their export license as well as reporting any shipping deviations to the department as appropriate.”

Conclusion

Although I have been, and still am, a strong advocate for U.S.-Cuba reconciliation, I am very troubled by the news of this missile ending up in Cuban hands and of its diversion in mid-2014 apparently not affecting U.S. negotiation of normalization. Final assessment has to await Assistant Secretary Jacobson’s responses to Senator Rubio’s questions and other news about this situation. I pray that it does not disrupt or sabotage further progress towards normalization.

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[1] Barrett & Lubold, Missing U.S. Missile Shows Up in Cuba, W.S.J. (Jan. 7, 2016); Reuters, Inert U.S. Hellfire Missile Wrongly Shipped to Cuba in 2014:WSJ, N.Y. Times (Jan. 7, 2016); Assoc. Press, Dummy Hellfire Missile Mistakenly Shipped to Cuba, N.Y. Times (Jan. 8, 2016); Ayuso, The mystery of the US missile ended in Cuba, El Pais (Jan. 9, 2016).

[2] Templeton, It probably won’t matter Cuba got a dummy Hellfire missile—and that’s terrifying, ExtremeTech (Jan. 9, 2016).

[3] Barrett & Lubold, Republicans Criticize Obama Administration Over Missile Sent to Cuba, W.S.J. (Jan. 8, 2015); Missile that turned up in Cuba ignites backlash, Miami Herald (Jan. 8, 2016); Rubio, Rubio Demands Answers From Administration On U.S. Missile in Cuba’s Possession (Jan. 8, 2016); Ros-Lehtinen, Ros-Lehtinen, Diaz-Balart, Curbelo and Sires Make Joint Statement Regarding Unaccounted U.S. Hellfire Missile Acquired by the Castro Regime (Jan. 8, 2016)

[4] U.S. Dep’t of State, Daily Press Briefing (Jan. 8, 2016).

 

 

President Obama Rescinds U.S. Designation of Cuba as a “State Sponsor of Terrorism”

On April 14th President Barack Obama rescinded the U.S. designation of Cuba as a “State Sponsor of Terrorism” and so notified the Congress. This post will review that decision and its background. [1]

As discussed in a prior post, on December 17, 2014, President Obama asked Secretary of State John Kerry to undertake a review of whether the U.S. should rescind this designation while another post reviewed the statutory framework for this process: review and recommendation by the Department of State followed by a decision by the president and notification of such a decision to the Congress with such a decision to become effective 45 days after that notification. Yet another post set forth the reasons why this blogger believes that such past designations of Cuba have been unjustified, absurd, ridiculous.

 State Department’s Recommendation

Secretary of State’s Press Statement.

On April 14, 2015, Secretary Kerry publicly announced that the State Department had recommended that the President rescind the designation of Cuba as a “State Sponsor of Terrorism.” His press release stated that last week the “Department submitted a report to the White House recommending, based on the facts and the statutory standard, that President Obama rescind Cuba’s designation as a State Sponsor of Terrorism.”

“This recommendation,” the Statement continued, “reflects the Department’s assessment that Cuba meets the criteria established by Congress for rescission . . . . whether Cuba provided any support for international terrorism during the previous six months, and whether Cuba has provided assurances that it will not support acts of international terrorism in the future.” This conclusion was based, in part, upon “corroborative assurances received from the Government of Cuba.”

Nevertheless, according to the Secretary’s statement, “the United States has had, and continues to have, significant concerns and disagreements with a wide range of Cuba’s policies and actions, [but] these concerns and disagreements fall outside of the criteria for designation as a State Sponsor of Terrorism.”

Department’s Background Briefing.

At a special briefing on April 14th, a senior State Department official noted, “the Cubans have for a long time shown us many, many, many speeches by their leaders, both Fidel and Raul, in which they have rejected terrorism; many instances, in fact, of terrorist acts that they have decried publicly, I think the latest probably being the Charlie Hebdo incident in France. But certainly, there are lots of incidents that they can point to. And in terms of commitments for the future, they point to both statements by their leadership and ratifications of international treaties, and the assurances that they gave us.”

Another senior official stated, ”the assurances they provide were fairly wide-ranging and fairly high-level. . . . [T]hey addressed the key elements that we know in the past have been a factor. [T]hey also addressed the pledge or the assurances that they will no longer support acts of terrorism in the future.”

One of the officials in response to a journalist question said, “The statutes . . . provide that no rescission can be made if within 45 days after the receipt of the report from the President the Congress enacts a joint resolution on the issue prohibiting the rescission. The President, of course, can veto any such joint resolution and Congress then, of course, can further act to override the veto. . . . Congress has the right to act.”

 President Obama’s Decision

That same day (April 14) a White House press release stated the President had “submitted to Congress the statutorily required report and certifications indicating the Administration’s intent to rescind Cuba’s State Sponsor of Terrorism designation.”

This presidential decision was based upon the previously mentioned State Department recommendation that was based on its “careful review of Cuba’s record, which was informed by the Intelligence Community, as well as assurances provided by the Cuban government.”

This press release also stated, “As the President has said, we will continue to have differences with the Cuban government, but our concerns over a wide range of Cuba’s policies and actions fall outside the criteria that is relevant to whether to rescind Cuba’s designation as a State Sponsor of Terrorism.  That determination is based on the statutory standard – and the facts – and those facts have led the President to declare his intention to rescind Cuba’s State Sponsor of Terrorism designation.  More broadly, the [U.S.] will continue to support our interests and values through engagement with the Cuban government and people.”

  • The actual presidential message to Congress was even shorter. It stated, “Pursuant to the Constitution and the laws of the United States, and consistent with section 6(j)(4)(B) of the Export Administration Act of 1979, Public Law 96-72, as amended (50 U.S.C. App. 2405(j)), and as continued in effect by Executive Order 13222 of August 17, 2001, I hereby certify, with respect to the rescission of the determination of March 1,
    1982, regarding Cuba that:(i) the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and

    (ii) the Government of Cuba has provided assurances that it will not support acts of international terrorism in the future.

This certification shall also satisfy the provisions of section 620A(c)(2) of the Foreign Assistance Act of 1961, Public Law 87-195, as amended (22 U.S.C. 2371(c)), and section 40(f)(1)(B) of the Arms Export Control Act, PublicLaw 90-629, as amended (22 U.S.C. 2780(f)).”

Reactions to the Decision

Senators Patrick Leahy (Dem., VT), Dick Durbin (Dem., IL) and Benjamin Cardin (Dem., MD) were among those officials who offered immediate support of the decision. Geoff Thale of the Washington Office on Latin America, a private group that promotes democracy in the hemisphere, said: “Taking Cuba off the list of terrorist states is a sensible, and long-overdue step. Whatever U.S. and Cuban differences, the Cuban government has not been a supporter of terrorism.  Taking Cuba off the list will remove an unnecessary irritant in the relationship, and perhaps allow us to discuss the real differences we do have in a more serious way. It should help pave the way for normal diplomatic relations.” The same sentiment came from another U.S. NGO focusing on Latin America, the Latin American Working Group.

Josefina Vidal, Cuba’s top diplomat for U.S. Affairs, endorsed the decision. She said, “The Cuban government recognizes the just decision taken by the President of the [U.S.] to eliminate Cuba from a list on which it never should have been included, especially considering that our country has been the victim of hundreds of acts of terrorism that have cost 3,478 lives and disabled 2,099 Cuban citizens. As the Cuban government has reiterated on multiple occasions, Cuba rejects and condemns all acts of terrorism in all their forms and manifestations, as well as any action that is intended to instigate, support, finance or conceal terrorist acts.”

Not surprisingly long time Cuban-American opponents of the U.S.-Cuba rapprochement criticized this decision: U.S. Senators Marco Rubio (Rep., FL) and Robert Menendez (Dem., NJ) and Representatives Ileana Ros-Lehtine (Rep., FL) and Mario Diaz-Balart (Rep., FL).

Rubio’s opposition undercuts his just-announced presidential campaign assertion that the “time has come for our generation to lead the way toward a new American Century.” In contrast, he said, “too many of our leaders and their ideas are stuck in the twentieth century. They are busy looking backward. . . . They look for solutions in yesterday.” Sorry, Senator Rubio, your ideas and solutions for U.S.-Cuba relations “are stuck in the twentieth century . . . in yesterday.” Stop looking backward!

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[1] This post is based upon the sources which are hyperlinked in this post along with the following: Archibold & Davis, Obama Endorses Removing Cuba From Terrorism List, N.Y. Times (April 14, 2015); Reuters, Obama Tells Congress He Plans to Remove Cuba From Terrorism List, N.Y. Times (April 14, 2015), Reuters, Cuba Gave U.S. Assurances It Will Not Support Terrorism in Future: U.S. Officials, N.Y. Times (April 14, 2015); Assoc. Press, Obama to Remove Cuba From State Sponsor of Terror List, N.Y. Times (April 14, 2015); DeJong, Obama removes Cuba from the list of state sponsors of terrorism, Wash. Post (April 14, 2015); Tharoor, After 33 years, the U.S. dropped its claim that Cuba sponsors terrorism. Here’s what it means, Wash. Post (Apr. 14, 2015); Barack Obama announces intent to remove Cuba from list of state sponsors of terrorism, Granma (April 14, 2015); Wash. Office on Latin America, Press Release: White House Announces Cuba’s Removal from ‘State Sponsors of Terror List (April 14, 2015); Latin American Working Group, Statement about Cuba’s removal from list (April 14, 2015); Assoc. Press, Cubans Hail Removal From US List of State Terrorism Sponsors, N.Y. Times (April 15, 2015). The actual State Department recommendation could not be found on the Internet, but when it is so available, another blog post will review that document

 

 

 

 

 

 

 

 

Senator Klobuchar Introduces Bill To End Embargo of Cuba

Senator Amy Klobuchar
Senator Amy Klobuchar

On February 12, 2015, Minnesota’s U.S. Senator Amy Klobuchar introduced S.491: Freedom to Export to Cuba Act. Its five cosponsors are Senators Richard Durbin (Dem., IL). Mike Enzi (Rep., WY),  Jeff Flake (Rep., AZ), Patrick Leahy (Dem., VT) and Debbie Stabenow (Dem, MI). The bill was referred to the Senate’s   (a) Banking, Housing and Urban Affairs and (b) Foreign Relations Committees.

                        Comments on S.491

Senator Klobuchar’s press release said the bill would eliminate the legal barriers to Americans doing business in Cuba and thereby pave the way for new economic opportunities for American businesses and farmers by boosting U.S. exports and allowing Cubans greater access to American goods. The legislation repeals key provisions of previous laws that block Americans from doing business in Cuba, but does not repeal portions of law that address human rights or property claims against the Cuban government. [1]

This press release also stated, “It’s time to the turn the page on our Cuba policy. Fifty years of the embargo have not secured our interests in Cuba and have disadvantaged American businesses by restricting commerce with a market of 11 million people just 90 miles from our shores. There are many issues in our relationship with Cuba that must be addressed, but this legislation to lift the embargo will begin to open up new opportunities for American companies, boost job creation and exports, and help improve the quality of life for the Cuban people.” [2]

She subsequently told a Minnesota newspaper, “There’s been a sea change in terms of how people are thinking about Cuba. I think it’s really important to get people from the Midwest involved. Our interests are different than some of the other people traditionally involved in this issue. … We come at it from a production perspective, from the perspective of wanting to sell things there.” [3]

Klobuchar’s bill was endorsed by the United States Agricultural Coalition for Cuba. Its Chair, Devry Boughner Vorwerk of Cargill Incorporated, said, “We appreciate Sen. Klobuchar’s leadership to advance this bipartisan bill, modernize U.S. policy toward Cuba and boost opportunities for American agriculture. Ending the embargo will enable our agriculture sector to work in partnership with Cuba and the Cuban people, develop a meaningful trading relationship and create jobs across many sectors of our own economy.”

Internal Senate Political Concerns

As previously mentioned S.491 was referred to two committees: the Senate Banking, Housing and Urban Affairs Committee and the Foreign Relations Committee, each of which presents problems for successful passage of the bill. [4]

The Banking Committee has 12 Republican and 10 Democratic members. Its Chair is Richard Shelby (Rep., AL) while its Ranking Member is Sherrod Brown (Dem., OH). With two and maybe three exceptions, my initial impression is that the Republican majority will be opposed to the bill while the Democrats will support the bill. The two exceptions are Republican Jerry Moran (KS), who supports ending the embargo, and Democrat Robert Menendez (NJ), who opposes such action. The other possible exception is Republican Bob Corker (TN), who chairs the Senate Foreign Relations Committee and who issued a noncommittal statement about the December 17th rapprochement.[5]

The Foreign Relations Committee has 10 Republican and nine Democratic members. Its Chair is the previously mentioned Bob Corker (Rep., TN) and its Ranking Member is Robert Menendez (Dem., NJ). With three and maybe four exceptions, my initial impression is that the Republican majority, including Marco Rubio (FL), a Cuban-American who strongly and repeatedly opposes reconciliation, will oppose the bill while the Democratic minority will support the measure. The exceptions are Republicans Jeff Flake (AZ) and Rand Paul (KY), who have supported ending the embargo, and Democrat Menendez, a Cuban-American who vehemently opposes reconciliation with Cuba, including ending the embargo. The possible exception is Chair Corker, who has issued a noncommittal statement on the rapprochement. Thus, it is conceivable that there could be a 10-9  (or even a 11-8) vote approving the bill in committee. But if it does not also get out of the Banking Committee, that probably means very little.

These internal Senate political considerations prompted Klobuchar to acknowledge to the Minnesota newspaper that the Foreign Relations Committee’s obstacles for the bill “are clearly something to be reckoned with … but it doesn’t mean that two people [Senators Rubio and Menendez] can stop the whole thing.” She added that the legislation could come up through the Banking. Housing and Urban Affairs Committee or be passed in piecemeal fashion through other bills.

Minnesota Representative Collin Peterson, who is a cosponsor of a companion bill (H.R.403) in the House of Representatives, also talked to the Minnesota newspaper about the political difficulties of passing such measures. Indeed, he called the odds of lifting the embargo this year as “thin” due to the political sway of the older generation of Cuban-Americans in certain congressional districts.

Peterson thought the elimination of the embargo will “help [Minnesota farmers] a little bit” by increasing demand and, therefore, farm prices, “but it’s marginal in the whole scheme of things.”

Conclusion

I thank and congratulate Senator Klobuchar for introducing this important bill and the six other senators for cosponsoring the bill. 

I conclude by adding the following three reasons for ending the embargo that I have not seen elsewhere:

1. Without the embargo, the U.S. would not face the annual fall nearly unanimous condemnation of the embargo by the U.N. General Assembly.

2. The elimination of the embargo might assist the U.S. in combatting the increasing Chinese and Russian influence in Latin America.

3. Cuba repeatedly has claimed that the embargo has caused damage to its economy, and at last Fall’s U.N. General Assembly meeting Cuba asserted the total damages were $1.1 trillion. That obviously is a very large amount of money. I am confident that in any litigation or arbitration over such a claim the U.S. would mount a thorough critique and arguments to rebut the claim, including evidence and argument that any alleged damages were caused by Cuban ineptitude and that the major premise of the argument (the illegality of the embargo under international law) was unfounded. Nevertheless, as is true in any disputed claim like this, there can be no 100% guarantee that the claim will be rejected in its entirety. Thus, this damage claim must be recognized as a contingent liability of the U.S., and ending the embargo will minimize the amount of that liability.

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[1] On January 15th the Congressional Research Service issued CRS Report 4388: “Cuba Sanctions: Legislative Restrictions Limiting the Normalization of Relations” In a 15-page table it “lists the various provisions of laws comprising economic sanctions on Cuba, including key laws that are the statutory basis of the embargo, and provides —on the authority to lift or waive these restrictions.”

[2] Similar press releases were issued by Senators Durbin and Leahy.

[3]  Sherry, Sen. Klobuchar leads effort in U.S. Senate to life Cuba trade embargo, StarTribune (Feb. 13, 2015).

[4] The THOMAS legislative service of the Library of Congress late on February 12th said the bill was referred to both of these committees, but on February 13th it said it was only referred to the Banking Committee. Since the embargo clearly relates to foreign relations, I assume the latter THOMAS version is incorrect.

[5] Research-backed comments and corrections on the positions regarding Cuba by the members of these committees are solicited and welcome.

United States Government’s Reactions to U.S.-Cuba Reconciliation

After looking at international and Cuban reactions to the December 17th announcement of U.S.-Cuba reconciliation, we now examine the reactions by the U.S. Government’s Executive Branch and Congress. A subsequent post will look at the reactions of the American people.

I. Executive Branch.

Led by President Barack Obama, the Executive Branch engaged in 18 months of secret negotiations with Cuba that resulted in the December 17th announcement of an accord between the two countries involving immediate release of certain prisoners, promised liberalization of U.S. regulations regarding U.S. exports to the island and U.S. citizens travel to Cuba, promised U.S. review of its designation of Cuba as a “State Sponsor of Terrorism” and further negotiations for reestablishment of normal diplomatic relations and for resolution of a long list of issues or disputes.

The U.S. Department of State immediately commenced review of the “terrorism’ designation and the Treasury and Commerce Departments in January announced the new and more liberal regulations regarding exports and travel.

The U.S., represented by Assistant Secretary of State Roberta Jacobson, participated in the first round of further negotiations with Cuba in Havana in January, and the second round will be this month in Washington, D.C.

In addition, as we will see in the discussion of reactions in the U.S. House of Representatives, bills have been introduced to end the U.S. embargo of the island.

In short, the U.S. is doing everything it can to further the progress toward normalization of relations and reconciliation of the two countries.

II. U.S. Congress

The following analysis of the positions of senators and representatives on reconciliation obviously is incomplete since I was not able to conduct exhaustive research on all 100 senators and all 435 representatives. I also used my judgment to assign pending bills as favoring or opposing reconciliation and assumed, absent specific information to the contrary, that being a sponsor or cosponsor of a bill in one category would preclude that individual’s voting for some or all of the bills in the other category. Moreover, the named individual legislators may change their minds if and when any of these measures reach the chambers’ floors for votes. I earnestly entreat readers to provide comments with other information to correct or supplement this analysis.

A. U.S. Senate

Of the 100 Senators, 25 so far appear to support reconciliation while 27 do not. The other 48 Senators apparently have not yet taken positions on this major issue.

1. Favoring reconciliation

As of February 10, I was surprised to discover that the Senate does not have a bill to abolish the U.S. embargo of Cuba. Minnesota’s Senator Amy Klobuchar clearly has stated her intent to offer and support such a bill, but has not done so to date because she believes that the Senate first should vote on confirmation of an ambassador to Cuba, who has not yet been nominated by the President. Moreover, Cuba’s President Castro has made noises that abolishing the embargo should come before restoration of normal diplomatic relations. As a result, Klobuchar’s legislative strategy may have to be revised.

In any event, as of February 10, the Senate had only two measures on its agenda that are at least tangentially favorable to the recent U.S.-Cuba accord.

The first is S.299 (Freedom to Travel to Cuba Act of 2015) offered by Senator Jeff Flake (Rep., AZ) with 13 cosponsors [1]  It was referred to the Foreign Relations Committee.

The other is a proposed resolution (S.RES.26: Commending Pope Francis for his leadership in helping to secure the release of Alan Gross and for working with the Governments of the United States and Cuba to achieve a more positive relationship). It was offered by Senator Richard Durbin (Dem., IL) with 10 cosponsors, four of whom were not cosponsors of S.299 [2]  The proposed resolution was referred to the Foreign Relations Committee.

In addition to these 18 senators, the following seven (for a total of 25) can also be regarded as supporters of reconciliation based upon statements on their official websites or other comments or actions mentioned in the press: Tammy Baldwin (Dem., WI), Chris Coons (Dem., DE), Al Franken (Dem., MN), Chris Murphy (Dem., CT), Rand Paul (Rep., KY), Pat Roberts (Rep., KS) and Harry Reid (Dem., NV).

Thus, at least 25 Senators are on record apparently supporting reconciliation with Cuba

2. Opposing reconciliation

As of February 10, the Senate had on its agenda one substantive bill relating to Cuba that can be seen as indirectly opposed to reconciliation.

S.165 (Detaining Terrorists To Protect America Act of 2015) would extend and enhance prohibitions and limitations with respect to the transfer or release of individuals detained at the U.S. Naval Station, Guantanamo Bay, Cuba.This bill was referred to the Armed Services Committee. It was offered by Senator Kelly Ayotte (Rep., NH) with 26 Republican cosponsors [3] One of the cosponsors, however, is Senator Jerry Moran, who was a cosponsor of S.299 and who spoke in favor of ending the embargo at the launch of the United States Agricultural Coalition for Cuba. Thus, I believe that only 25 of these cosponsors can be counted in the anti-reconciliation camp.

At least one other Senator belongs in this camp. Senator Robert Menendez (Dem., NJ), who is a Cuban-American, is vehemently opposed to reconciliation as are the other two Cuban-American Senators–Ted Cruz (Rep., TX) and Marco Rubio (Rep., FL), both of  whom are cosponsors of S.165.

Thus, at least 27 Senators are on record apparently opposing reconciliation.

B. U.S. House of Representatives

There are at least 43 representatives favoring reconciliation while 52 do not. That leaves the other 340 representatives not accounted for.

1. Favoring reconciliation

As of February 10, the House had eight pending bills favorable to reconciliation with Cuba.

The following three seek to end the U.S. embargo of Cuba.

  • The leading one seems to be H.R.403 (Free Trade with Cuba Act) that was introduced by Representative Charles Rangel (Dem., NY) with 27 Democratic cosponsors [4] It has been referred for consideration to the House Foreign Affairs and six other committees.[5] The bill would end the embargo, and its  section 2 would have Congress find that “Cuba is no longer a threat to the [U.S.] or Western Hemisphere;” the U.S. ” is using economic, cultural, academic, and scientific engagement to support its policy of promoting democratic and human rights reforms [in other Communist regimes];” and the U.S. “can best support democratic change in Cuba by promoting trade and commerce, travel, communications, and cultural, academic, and scientific exchanges.”
  • The other two similar bills to end the embargo are H.R.274 (United States-Cuba Normalization Act, 2015) by Rep. Bobby Rush (Dem., IL) without any cosponsors, and H.R.735 (To lift the trade embargo on Cuba, and for other purposes) by Rep. Jose Serrano (Dem., NY) with Rep. Rangel as a cosponsor, both of whom are on the record as supporters of of H.R.403. These bills too were referred to the same seven committees for consideration.

 Rep. Rangel on February 2nd also introduced H.R.635 (Promoting American Agricultural and Medical Exports to Cuba Act of 2015) to facilitate the export of U.S. agricultural products to Cuba, to remove impediments to the export to Cuba of medical devices and medicines, to allow travel to Cuba by U.S. legal residents, to establish an agricultural export promotion program with respect to Cuba. With 25 of the same Democratic cosponsors, the bill was referred to the Foreign Affairs and four other committees.

There are two bills to expand U.S. residents ability to travel to Cuba. Rep. Rangel on February 2nd introduced H.R.634 (Export Freedom to Cuba Act of 2015) with 25 of the same Democratic cosponsors of H.R.403 plus John Garamendi (Dem., CA) and Mark Pocan (Dem., WI). It has provisions for freedom to travel to Cuba for U.S. citizens and legal residents.It was referred to the Foreign Affairs Committee. A similar bill to expand U.S. citizens travel to Cuba (H.R.664: Freedom to Travel to Cuba Act of 2015) was offered on February 2nd by Rep. Mark Sanford (Rep., SC) with 12 cosponsors.[6] It also was referred to the Foreign Affairs Committee.

A more limited travel bill was introduced by Representative Jose Serrano (Dem., NY). It is H.R.738: To waive certain prohibitions with respect to nationals of Cuba coming to the United States to play organized professional baseball. Its sole cosponsor is Representative Rangel and was referred to the Foreign Affairs Committee.

On January 27th Minnesota’s Representative Betty McCollum introduced H.R.570 (Stop Wasting Taxpayer Money on Cuba Broadcasting Act) to stop Radio Marti and Television Marti broadcasts to Cuba. McCollum was a cosponsor of H.R.403 while HR. 570 has no cosponsors. It was referred to the Foreign Affairs and Judiciary Committees.

I am proud to say that all five Democratic Representatives from Minnesota by offering or cosponsoring bills appear to be in favor of this reconciliation. In addition, two of Minnesota’s three Republican Representatives have made statements indicating at least receptivity to favoring the reconciliation, and this analysis counts them as undecided. [7]

Our newest Representative Tom Emmer said, “By all accounts the Cuban people are worse off today than when [the embargo] started. So clearly that’s not working. And I’m supportive of engaging in diplomacy, starting to re-engage in diplomatic relations with Cuba, to begin that process to hopefully someday getting to normalize that relationship. But it’s two separate things. One, it’s diplomacy, and down the road is normalization.” In addition, as a member of the House Foreign Affairs Committee, Emmer focused on three issues in questioning Administration witnesses: reparations for Cubans who have been persecuted by the Castro regime, payments for U.S. interests that lost property to the regime and safe harbor of U.S. fugitives within Cuba. Emmer also said or suggested if certain conditions are met he could support ending the embargo.

Another Minnesota Republican Representative, Rep. Erik Paulsen, said, “We should be looking at opportunities to open up trade between the United States and Cuba so we can export more American goods and services. However, the President should have engaged Congress before making concessions to the Cuban government.” (Id.) It may also be significant that his district includes the headquarters of Cargill Incorporated, the leader of the United States Agricultural Coalition for Cuba

Thus, there are at least 40 Representatives who appear to be in favor of this reconciliation with differing levels of commitment.

2. Opposing reconciliation

There are two pending bills, both relating to Guantanamo Bay, Cuba that can be seen as opposing reconciliation, as of February 10.

The first is H.R.654 (Naval Station Guantanamo Bay Protection Act). It was introduced by David Jolly (Rep., FL)  with 36 Republican cosponsors, none of whom is from Minnesota. [8] It was referred to the Foreign Affairs Committee.

The other bill (H.R.401: Detaining Terrorists to Protect America Act of 2015) which would prohibit the release or transfer of certain Guantanamo Bay detainees and the construction or modification of any other facility to house such detainees. It was offered by Representative Jackie Walkorski (Rep., IN) with 29 Republican cosponsors, of whom 17 were not cosponsors of H.R.654. [9] It was referred to the Armed Services Committee.

Accordingly there are at least 54 Representatives on the record against reconciliation. Three of them are Cuban-Americans (Carlos Curbello, Mario Diaz–Balart and Ileana Ros-Lehtinen) with the latter two being the most vocal in their persistent criticism of reconciliation. Another Cuban-American Representative (Albio Sires (Dem., NJ)) has not been an author or cosponsor of any of these bills, but his website includes a rejection of the President’s decisions to seek reconciliation with Cuba. [10]

III. Conclusion

As a supporter of reconciliation, I am anxious that this year both houses of Congress abolish the embargo and support other measures to promote that reconciliation. Therefore, I urge all supporters to say thank you to those legislators who already are on our side, to identify the “undecided” legislators and seek to persuade them to become supporters and to inform our fellow citizens of the important issues in this controversy and to seek to persuade them to be supporters.

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[1] The 13 cosponsors of S.299 are the following: John Boozman (Rep., AR), Barbara Boxer (Dem, CA), Thomas Carper (Dem., DE), Susan Collins (Rep., ME), Richard Durbin (Dem., IL) ), Michael Enzi (Rep., WY), Amy Klobuchar (Dem., MN), Patrick Leahy (Dem., VT), Jerry Moran (Rep., KS), Jack Reed (Dem., RI), Debbie Stabenow (Dem., MI), Tom Udall (Dem., NM) and Sheldon Whitehouse (Dem., RI). Senator Moran also spoke in favor of ending the embargo at the launch of the United States Agricultural Coalition for Cuba.

[2] The four cosponsors of S.RES.26 who were not cosponsors of S.299 are the following: Sherrod Brown (Dem., OH), Benjamin Cardin (Dem., MD), Tim Kaine (Dem., VA) and Barbara Mikulski (Dem., MD). 

[3] The 26 Republican cosponsors of S.165 are the following: John Barrasso (WY), Roy Blunt (MO), John Boozman (AR), Richard Burr (NC). John Cornyn (TX), Tom Cotton (AR), Ted Cruz (TX), Joni Ernst (IA), Deb Fischer (NE), Lindsey Graham (SC), Orrin Hatch (UT), James Inhofe (OK), Johnny Isakson (GA), Ron Johnson (WI), Mark Kirk (IL), James Lankford (OK), Mike Lee ((UT), John McCain (AZ), Jerry Moran (KS), Pat Roberts (KS), Mike Rounds (SD), Jeff Sessions (AL), Dan Sullivan (AK), Thom Tillis (NC), Pat Toomey (PA) and Roger Wicker (MS).

[4] The 27 Democratic Representative cosponsors of H.R.403 are Karen Bass (CA), William Clay (Mo), Steve Cohen (TN), John Conyers, Jr. (MI), Keith Ellison (MN), Sam Farr (CA), Chaka Fattah (PA), Raul Griaiva (AZ), Jared Huffman (CA), Sheila Jackson Lee (TX), Eddie Johnson (TX), Henry Johnson (GA), Barbara Lee (CA), Betty McCollum (MN), Jim McDermott (WA), Gregory Meeks (NY), Gwen Moore (WI), Rick Nolan (MN), Eleanor Holmes Norton (DC), Collin Peterson (MN), Jared Polis (CO), Janice Schakowsky (IL), Bennie Thompson (MS), Tim Walz (MN) and Maxine Waters (CA).

[5] A prior post listed the members of the seven House committees that have jurisdiction over different portions of the three bills to end the embargo.

[6] The 12 cosponsors of H.R.664 are Kathy Astor (Rep., FL), Jason Chaffetz (Rep., UT), Kevin Cramer (Rep., ND), Rosa DeLauro (Rep., CT), Sam Farr (Dem., CA), Barbara Lee (Dem., CA), Thomas Massie (Rep., KY), James McGovern (Dem., MA), Charles Rangel (Dem., NY), Chris Van Hollen, (Rep., MD), Nydia Velazquez (Dem., NY) and Peter Welch (Dem, VT).) Of this group, eight were not sponsors or cosponsors of H.R.403 (Chaffetz, Cramer, DeLauro, Massie, McGovern, Van Hollen, Velazquez and Welch). Cramer also announced his support for ending the embargo at the launch of the U.S. Agricultural Coalition for Cuba.

[7] Henry, Emmer on Cuba embargo: ‘Clearly that’s not working, MINNPOST (Feb. 6, 2015). The third Minnesota Republican Representative, John Kline, appeared to be less receptive to ending the embargo. He said he’s “not confident the Administration will follow through on its promises to hold the Castro dictatorship regime accountable, and I’m concerned about revisiting relations with Cuba until all Cubans enjoy a free democracy.”

[8] The 36 Republican cosponsors of H.R.654 are Gus Bilirakis (FL), Michael Burgess (TX), Bradley Byrne (AL), Jason Chaffetz (UT), Mike Coffman (CO), Carlos Curbello (FL), Rodney Davis (IL), Ron DeSantis (FL), Mario Diaz-Balert (FL), Bill Flores (TX), Trent Franks (AZ), Louie Gohmert (TX), Trey Gowdy (TN), Andy Harris (MD), Richard Hudson (NC), Duncan Hunter (CA), Darrell Issa (CA), Bill Johnson (OH), Jeff Miller (FL), Alexander Mooney (WV), Richard Nugent (FL), Gary Palmer (AL), Robert Pittenger (NC), Bill Posey (FL), Reid Ribble (WI), Ileana Ros-Lehtinen (FL), Keith Rothfus (PA), Matt Salmon (AZ), Austin Scott (GA), Marlin Stutzman (IN), Jackie Walorski (IN), Randy Weber (TX), Roger Williams (TX), Joe Wilson (SC), Ted Yoho (FL) and Ryan Zinke (MT). Diaz-Balert and Ros-Lehtinen are Cuban-Americans who have been and are most vocal in their criticism of reconciliation. Rodney Davis, however, spoke in favor of ending the embargo at the launch of the United States Agricultural Coalition for Cuba and should not be viewed as completely hostile to reconciliation.

[9] The 29 Republican cosponsors of H.R.401 are Andy Barr (KY), Susan Brooks (IN), Bradley Byrne (AL), Mike Coffman (CO), Paul Cook (CA), Ander Crenshaw (FL), Trent Franks (AZ), Andy Harris (MD), Jaime Herrera Beutier (WA), Duncan Hunter (CA), Darrell Issa (CA). Sam Johnson (TX), Doug Lamborn (CO), Robert Latta (OH), Luke Messer (IN), Mick Mulvaney (IN), Richard Nugent (FL), Steven Pearce (NM), Robert Pittenger (NC), Ted Poe (TX), Mike Pompeo (KS), Todd Rokita (IN), Aaron Schock (IL), Austin Scott (GA), Christopher Smith (NJ), Brad Wenstrup (OH), Joe Wilson (SC), Robert Wittman (VA) and Ryan Zinke (MT). Of these cosponsors, 16 (Barr, Brooks, Herrera, Sam Johnson, Lamborn, Latta, Messer, Mulvaney, Pearce, Poe, Pompeo, Rokita, Schock, Smith, Wenstrup and Wittman) were not cosponsors of H.R.654.

[10] Hook, Exile Haunts Cuba-American Lawmakers, W.S.J. (Dec. 20-21, 2014).

Rejection of Criticism of Cuba’s Cancellation of Open-Microphone Event in Havana’s Plaza de la Revolución and Arrests of Its Organizers

Tania Bruguera
  Tania Bruguera

On December 30th Cuban authorities cancelled an open-microphone event at Havana’s Plaza de la Revolución and detained or arrested its organizers. The principal detainee was Tania Bruguera, a Cuban citizen who lives on the island and in Miami, Florida and who is a performance artist. She intended to provide an open-microphone for any attendee to give a one-minute statement on his or her opinions and recommendations for Cuba’s future.

This cancellation and related arrests have provoked strong condemnation from the U.S. Department of State and major U.S. newspapers. Initially I was persuaded by such condemnations and worried that they would foster U.S. political resistance to recent U.S.-Cuba reconciliation. After further investigation, however, I have come to reject such harsh condemnations. In order to understand this conclusion, this post will examine what happened in Havana, the reactions from the State Department and western newspapers and then the reasons why I reject such condemnations.

Cuban Events Relating to the Open-Mike Performance[1]

Plaza_de_la_Revolution

Plaza3

On December 30th Cuban performance artist Tania Bruguera was planning to stage an open-microphone event, “Yo tambien exijo,” [I also demand],” in Havana’s Plaza de la Revolución, the huge public square usually reserved for large government-sponsored events.[2] (The photo on the top shows an empty Plaza while the other one has a large crowd in attendance.) She planned to give any attendee a one-minute platform to discuss his or her opinions about, and recommendations for, Cuba’s future. She told the U.S. National Public Radio that she wanted “people in the street [to] come and share . . . [their] doubts, [their] happiness – whatever [they] think right now about what is happening in Cuba, and what is the idea of Cuba that [they] want?”

Bruguera was proceeding with these plans even though her application for a permit had been denied and even though the Government’s National Fine Arts Council had told her that it would not be providing her with institutional support for the event as proposed because it “would negatively impact public opinion, in a key time of negotiation between the Cuban government and the government of the United States.”

On December 30th the Council issued a public statement documenting its decision not to support the event. It said, “Under current circumstances, it is unacceptable performing this purported performance in the symbolic space of the Plaza of the Revolution, especially considering the extensive media coverage and manipulation that has been in the media broadcasters counterrevolution.”

The Council, however, also stated that Bruguera had rejected its suggestions on conducting the event subject to the following conditions: (a) move the event to the National Museum of Fine Arts, a prestigious cultural institution in the field of visual arts; (b) the Museum would be freely open to diverse people of dissimilar social sectors; (c) the government would “reserve the right” to bar people whose “sole interest is to be provocative;” and (d) the performance would be limited to 90 minutes.

Just hours before the planned event, Cuban police detained, on public disorder charges, Bruguerea and at least three leading dissidents: Antonio Rodiles, the head of Citizens Demand for Another Cuba; Eliezer Avila, the leader of the opposition group Somos Mas; and Reinaldo Escobar, a senior editor of a dissident website 14medio.com. Escobar’s spouse, Blogger Yoani Sanchez, was also detained at her home by police. There were reports that up to 50 members of the political opposition were detained.

Ms. Bruguera was released the next afternoon along with most of the political dissidents. She then announced she would hold a news conference and public gathering on the Malecón, Havana’s coastal highway, at the memorial to the Maine, the American battleship that sank in Havana Harbor in 1898. Cuban agents, however, stopped her en route to the gathering and took her away for interrogation. She was told she could not leave Cuba “for two or three months” while the case was being processed. Again she was released.

However, on January 1, 2015, she was arrested again along with several dissidents when they went to a jail to demand the release of 15 additional dissidents who had been arrested on the day of the planned event. The next day (January 2) she was released.

Reactions to the Cancelation and Arrests

On December 30th, the U.S. Department of State issued a Press Statement saying the U.S. was “deeply concerned about the latest reports of detentions and arrests by Cuban authorities of peaceful civil society members and activists . . . [and] strongly condemn[ed] the Cuban government’s continued harassment and repeated use of arbitrary detention, at times with violence, to silence critics, disrupt peaceful assembly and freedom expression, and intimidate citizens.”

The Statement added, “Freedoms of expression and peaceful assembly are internationally recognized human rights, and the Cuban government’s lack of respect for these rights, as demonstrated by today’s detentions, is inconsistent with Hemispheric norms and commitments. We urge the Government of Cuba to end its practice of repressing these and other internationally protected freedoms and to respect the universal human rights of Cuban citizens.”

The Statement concluded that the U.S. has “always said we would continue to speak out about human rights, and as part of the process of normalization of diplomatic relations, the United States will continue to press the Cuban government to uphold its international obligations and to respect the rights of Cubans to peacefully assemble and express their ideas and opinions, just like their fellow members of civil society throughout the Americas are allowed to do.”

Also on December 30th Assistant Secretary of State Roberta Jacobson tweeted “Freedom of expression remains core of US policy on #Cuba; we support activists exercising those rights and condemn today’s detentions.”

These views were shared by the New York Times’ December 30th editorial, “Cuba Turns Off Critics’ Open Mike.” It said, “By stifling critical voices, the Cuban government is showing its unwillingness to tolerate basic freedoms most citizens in the hemisphere enjoy.”

The Times’ editorial continued, “This move, unfortunately, will amplify the criticisms of those who opposed Mr. Obama’s historic shift on Cuba policy. Heavy-handed tactics by the Castro government will give them ammunition next year, when Republicans will control both chambers of Congress, to stymie the Obama administration’s steps to ease the embargo through executive authority and dim the prospects of legislative change to pare back the web of sanctions Washington imposes on Cuba. That result would be a shame and, in the long run, self-defeating for Havana.”

The editorial on the same subject by the Washington Post, which earlier opposed the December 17th reconciliation, was in the same vein. It stated, “[T]he Castro regime has been left free to continue stifling dissent, while reaping the economic and political benefits of Mr. Obama’s ‘engagement.’ Raúl Castro declared in a speech shortly after the agreement was announced that the Communist political system would remain unchanged. Two weeks later, not one of the 53 political prisoners the White House said would be freed — about half of the total identified by human rights activists — has been reported released.”

The Washington Post editorial concluded, “Cubans who seek basic freedoms continue to be arrested, harassed and silenced, while the regime celebrates what it portrays as ‘victory’ over the United States. If support for the Cuban people and American values is supposed to be the point of this process, then it is off to a very poor start.”

People opposed to the resumption of relations with Cuba were quick to hold up the arrests as a sign that the Castro government had no intention of pursuing political change and would reap only economic benefits from Mr. Obama’s moves. For example, Senator Marco Rubio, Republican of Florida and a Cuban-American, tweeted, “Castro govt. arrests of activists in #Havana exposes the folly of new Obama #CubaPolicy.”

Rejection of the Condemnation

As a long-time member of the American Civil Liberties Union and as a pro bono attorney in one of its important free speech cases, I am a strong believer in the importance of free speech. Therefore, I initially concurred in the State Department and New York Times’ condemnation of Cuba’s cancellation of this event and related arrests, and I worried that this controversy might cause the U.S. to abandon the recently announced U.S.-Cuba reconciliation.

On the other hand, I was and continue to be troubled by the State Department and most of the articles about this event not mentioning the Cuban Fine Arts Council’s willingness to support the event in another location and with certain limits. This action by the Arts Council suggests at a minimum that the State Department and western media are over-reacting to these events and unfairly rushing to judgment.

These U.S. critics also forget that governmental authorities in the U.S. sometimes determine that it is not appropriate to stage a protest at a particular time and place. It just happened in my home state of Minnesota at the Mall of America (MOA) on a big shopping day (December 20th). Although MOA officials had told the organizers that it was against its policies for them to hold a “Black Lives Matter” protest at the Mall on that day,[3] they did so anyway as this video shows. After 2,000 to 3,000 protesters flooded a Mall rotunda and held “die-ins” in front of several nearby businesses, riot-gear-clad police officers arrested 25 for trespass, peacefully dispersed the crowd and tried to block people from re-entering the rotunda. Afterwards the local city attorney announced plans “to file additional charges against ‘ringleaders’ of the protest and to seek restitution for the costs of 250 police at the event and lost sales during the two to three hours when more than 75 stores in the mall were closed.” On January 5th some of the protesters spoke against such prosecution at a city council meeting. This story obviously is not yet over.

In addition, there is a report that raises the much more serious question of whether the event was an idea of Cubans acting by themselves. According to the Wall Street Journal, an opponent of reconciliation with Cuba, at the scheduled time for the event, “Cuban cellphones received mysterious messages from a Florida area code offering cheap beer to all those gathering on the plaza.” This was confirmed in an interview by U.S. National Public Radio with Marc Frank, a U.S. journalist who was one of about a dozen people at the Plaza at the time of the planned event. He said, “text messages were sent from somewhere in Miami to a lot of cell phones here, including mine, basically saying that there’s going to be an event at the Plaza de la Revolución, and there’d be free beer.” Frank added that “Tania is an artist, lives some in Cuba and mainly in Miami, . . . [but] she’s not really well-known in Cuba at all.”[4]

These messages about free beer in the Plaza from a Miami telephone number raise the question of whether the event was actually being planned by the U.S. Agency for International Development (USAID) or another U.S. government agency or by Cuban-Americans opposed to the reconciliation of the two countries.

As discussed in prior posts, USAID (U.S. Agency for International Development) had funded via a private contractor at least three covert (or as the agency prefers to say “discreet”) programs in Cuba to promote civil society and dissent or regime change, all without the prior knowledge or consent of the Cuban government. One was for U.S. citizen Alan Gross to take communications equipment to Cuba, for which he was arrested, convicted and imprisoned in Cuba for violating its laws.[5] Another such USAID program via a private contractor unsuccessfully tried to create a Cuban social media program Yet another used Central Americans to promote purported HIV informational efforts on the island. The final one that has been discovered so far by journalists again via a private contractor attempted to infiltrate the Cuban rap-artist community.

These USAID programs were sharply criticized in a November New York Times editorial, as discussed in an earlier post. The editorial said, ““Far from accomplishing . . . the goal [of instigating democratic reforms on the island], the initiatives have been largely counterproductive. The funds have been a magnet for charlatans, swindlers and good intentions gone awry. The stealthy programs have increased hostility between the two nations, provided Cuba with a trove of propaganda fodder and stymied opportunities to cooperate in areas of mutual interest.”

Instead, the Times’ November editorial argued, “The United States should strive to promote greater freedoms on the island of 11 million people and loosen the grip of one of the most repressive governments in the world. Instead of stealth efforts to overthrow the government, American policy makers should find ways to empower ordinary Cubans by expanding study-abroad programs, professional exchanges and investment in the new small businesses cropping up around the island. They should continue to promote Internet connectivity, but realize that accomplishing that goal on a large scale will require coordination with the Cuban government.” Moreover, “Washington should recognize that the most it can hope to accomplish is to positively influence Cuba’s evolution toward a more open society. That is more likely to come about through stronger diplomatic relations than subterfuge.”

Perhaps the Times forgot this editorial when it more recently lambasted the Cuban actions over the “open-microphone” event.

In any event, the U.S. government apparently has not learned the lesson outlined by the Times in October because the USAID website, which says it was last updated on December 16 (the day before the announcement of U.S.-Cuba reconciliation), still contains general information about its Cuba programs to “[p]romote human rights and fundamental freedoms.”

In addition, on December 22, 2014 (five days after that announcement), the U.S. Department of State’s Bureau of Democracy, Human Rights and Labor issued a Public Notice of its “Request for Statements of Interest: Program Fostering Civil, Political and Labor Rights in Cuba.” The Bureau’s prospective funding of $11 million would be used for typically funded proposals, the Bureau said, like “[o]rganizational assistance to Cuban civil society to improve management, strategic planning, sustainability, and collaboration of local civil society groups; [o]ff-island trainings, short-term fellowships, or engagement; [d]istribution of software that would be easily accessible in an open society; . . . [and] ]a]ssistance mechanisms designed to provide independent Cuban civil society with tools, opportunities, and trainings that civil society counterparts in open societies can access.”

Both the USAID and State Department statements read as if they are promoting programs in Cuba without the knowledge, cooperation or agreement of the Cuban government. This is contrary to President Obama’s statement in his nationally televised speech on December 17th, in which he said the U.S. would “raise those differences [with the Cuban government] directly . . .[such as] democracy and human rights in Cuba. But I believe we can do more to support the Cuban people and promote our values through engagement [with the Cuban government].” He added, “no Cubans should face harassment or arrest or beatings simply because they’re exercising a universal right to have their voices heard, and we will continue to support civil society there.”

Similar thoughts were expressed the same day in the White House’s FACT SHEET: Charting a New Course on Cuba.” It said, “We know from hard-learned experience that it is better to encourage and support reform than to impose policies that will render a country a failed state.” It also stated, “The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba, and we will encourage reforms in our high level engagement with Cuban officials.”

Although President Obama apparently was talking about encouraging the Cuban government to expand the Cuban people’s rights to express different opinions on what their government should do, a prior post shows some ambiguity in these statements that could allow the continuation of the USAID and State Department’s covert or “discreet” efforts to promote regime change.

If the open-microphone event, in fact, was orchestrated by USAID or some other U.S. government agency, it is Orwellian. Such programs purport to promote democracy and human rights with undemocratic and non-human rights means. Such programs are publicly mentioned—in very general terms—on U.S. government websites yet are conducted covertly or “discreetly” on the island. Such programs are hostile to a country with which the U.S. purportedly is attempting to build a normal and respectful diplomatic relationship. These programs also logically motivate Cuban authorities to be vigilant in reacting to events like the “open-microphone” one.

In other words it is horribly stupid and unwise to have such behind-the-back programs when the two countries are embarking on a long and complicated path for full reconciliation. As the New York Times said in November, the U.S. “should recognize that the most it can hope to accomplish is to positively influence Cuba’s evolution toward a more open society. That is more likely to come about through stronger diplomatic relations than subterfuge.”

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[1] This account of the planned event and the arrests by the Cuban government is based on articles in the New York Times, Washington Post, Wall Street JournalGuardian, Los Angeles Times,  National Public Radio, the Cuban Fine Arts Council and again the New York Times.

[2] The Plaza is the 31st largest public square in the world; it measures 72,000 square meters (774,936 square feet) and has been the site for crowds of 1 million for major speeches by Fidel Castro and for a mass celebrated by Pope John Paul II. The idea that the open-microphone event might create such a large crowd should have been seen as ridiculous by everyone, including the Cuban authorities, and a small gathering like the 12 or so that showed up on the 30th would have demonstrated the over-reaction of the those authorities in shutting it down and the State Department and western media in attacking the shut-down.

[3] Before the protest the local city (Bloomington) sent a letter to the protest organizers warning that the city would enforce the mall’s private-property rights under the authority of a Minnesota Supreme Court decision that held the MOA was a private entity with the right to exclude demonstrators.

[4] The Director of Security Operations at Telecommunications Company of Cuba reported that since December 21st Cuba had been receiving electronic messages calling for participation in an event with Tania Bruguera. These messages came from a platform “Wake Cuba,and these messages were similar to previous ones paid for by USAID.  Another Cuban source states that some Cuban email addresses were hacked and used to send emails to Cubans about this event.

[5] Gross on December 17th was released from Cuban prison and returned to the U.S.

113th Congress Takes Actions on International Religious Freedom

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

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

David N. Saperstein
David N. Saperstein

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

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

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

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

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

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

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

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

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

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

Reauthorization of the Commission on International Religious Freedom

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

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

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

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

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

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

Conclusion

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

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

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