New Restrictions on U.S. Travel to Cuba and Transactions with Certain Cuban Entities                                     

On November 8, the U.S. Treasury, Commerce and State departments released regulations imposing new restrictions on U.S. citizens travel to Cuba. Taking effect on November 9, they “are aimed at preventing U.S. trade and travelers from benefiting its military, intelligences and security arms of the Communist-ruled country.” In addition, they require U.S. travelers on “person-to-person” trips “to use a U.S.-based organization and be accompanied by a U.S. representative of the group.”[1]

This blog post will first provide a list of the Treasury Department’s 12 categories of general licenses for approved travel to Cuba, only two of which are directly affected by the new regulations. These two categories will be discussed followed by the new regulations ban on transactions with certain Cuban entities that affects all 12 categories.

Categories of Approved Travel[2]

“Travel-related transactions are permitted by [OFAC’s] general license for certain travel related to the following activities, subject to the criteria and conditions in each general license: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain authorized export transactions.”

Only the two categories in bold are affected by the new regulations—travel for “educational” reasons (organized and people-to-people) and “support for the Cuban people.”

Formal Educational Travel[3]

OFAC states, “Among other things, this general license authorizes, subject to conditions, faculty, staff, and students at U.S. academic institutions . . . to engage in certain educational activities, including study abroad programs, in Cuba, Cuban scholars to engage in certain educational activities in the United States, and certain activities to facilitate licensed educational programs. U.S. and Cuban universities may engage in academic exchanges and joint non- commercial academic research under the general license. This provision also authorizes persons subject to U.S. jurisdiction to provide standardized testing services and certain internet-based courses to Cuban nationals.

In addition, “educational exchanges, including study abroad programs, sponsored by Cuban or U.S. secondary schools involving secondary school students’ participation in a formal course of study or in a structured educational program offered by a secondary school or other academic institution, and led by a teacher or other secondary school official are authorized. Such exchanges must take place under the auspices of an organization that is a person subject to U.S. jurisdiction, and a person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization (including the leading teacher or secondary school official) must accompany each group traveling to Cuba. For a complete description of what this general license authorizes and the restrictions that apply, see 31 CFR § 515.565(a)(2)(vi). This authorization allows for participation of a reasonable number of adult chaperones to accompany the secondary school students to Cuba.”

“People-to-People” Educational Travel[4]

“OFAC is amending the general license for people-to-people educational activities in Cuba to remove the authorization for individual people-to-people educational travel. This general license now authorizes, subject to conditions, persons subject to U.S. jurisdiction to engage in certain educational exchanges in Cuba under the auspices of an organization that is a person subject to U.S. jurisdiction and sponsors such exchanges to promote people-to-people contact. Travelers utilizing this general license must ensure they maintain a full-time schedule of educational exchange activities intended to enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities, and that will result in meaningful interaction between the traveler and individuals in Cuba.”

“The predominant portion of the activities must not be with a prohibited official of the Government of Cuba, as defined in 31 CFR § 515.337, or a prohibited member of the Cuban Communist Party, as defined in 31 CFR § 515.338.”

“A person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization must accompany each people-to-people educational group traveling to Cuba to ensure that each traveler has a full-time schedule of educational exchange activities. Individuals traveling under the auspices of an organization that is a person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact may rely on the entity sponsoring the travel to satisfy his or her recordkeeping obligations with respect to the requirements described above. OFAC is amending this general license to exclude from the authorization direct financial transactions with entities and subentities identified on the State Department’s Cuba Restricted List.”

Support for the Cuban People” Travel[5]

“This general license authorizes, subject to conditions, travel-related transactions and other transactions that are intended to provide support for the Cuban people, which include activities of recognized human rights organizations; independent organizations designed to promote a rapid, peaceful transition to democracy; and individuals and non-governmental organizations that promote independent activity intended to strengthen civil society in Cuba. OFAC is amending this general license to require that each traveler utilizing this authorization engage in a full-time schedule of activities that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities and that result in meaningful interactions with individuals in Cuba. OFAC is also amending this general license to exclude from the authorization certain direct financial transactions with entities and subentities identified on the State Department’s Cuba Restricted List. The traveler’s schedule of activities must not include free time or recreation in excess of that consistent with a full-time schedule in Cuba. For a complete description of what this general license authorizes and the restrictions that apply, see 31 CFR § 515.574.”

“ Renting a room in a private Cuban residence (casa particular), eating at privately owned Cuban restaurants (paladares), and shopping at privately owned stores run by self-employed Cubans (cuentapropistas) are examples of authorized activities; however, in order to meet the requirement of a full-time schedule, a traveler must engage in additional authorized Support for the Cuban People activities.”

Ban on Transactions with Certain Cuban Entities[6]

The new regulations also ban U.S. travelers and businesses from transactions with “the large military-run corporations that dominate the Cuban economy. These include GAESA and CIMEX, the holding companies that control most retail business on the island; Gaviota, the largest tourism company; and Habaguanex, the firm that runs Old Havana.” The regulations include a list of forbidden hotels, including Havana’s “Manzana Kempinski, which opened with great fanfare this year as Cuba’s first hotel to meet the international five-star standard.”

This “Cuba Restricted List,” which will be maintained and updated by the State Department, has the following categories of organizations (and the number of entities in each category): Cuban Ministries (2) ; Cuban Holding Companies (including CIMEX,GAESA, Gavotte and Companies Touristic Habituate S.A.) (5) ; Hotels in Havana and Old Havana (27); Hotels in Santiago de Cuba (1); Hotels in Varadero (13); Hotels in Pinar del Rio (2); Hotels in Baracoa (7); Hotels in Cayos de Villa Clara (15); Hotels in Holguín (11); Hotels in Jardine’s del Rey (5); Hotels in Topes de Collates (3); Tourist Agencies (2); Marinas (5); Stores in Old Havana (10);  Entities Directly Serving the Defense and Security Sectors (38); Additional Subentries of CIMEX (16); Additional Subentities of GAESA (13); Additional Subentries of GAVIOTA (4); and Additional Subentries of HABAGUANEX (1).

Conclusion

All of these new regulations are meant to implement President Trump’s National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, which he signed on June 16, 2017, at an event in Miami Florida.[7]

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[1] U.S. Treasury Dep’t, Treasury, Commerce, and State Implement Changes to the Cuba Sanctions Rules (Nov. 8, 2017); U.S. Treasury Dep’t (Office of Foreign Assets Control), Frequently Asked Questions Related to Cuba (updated Nov. 8, 2017); Reuters, Trump Administration Tightens Sanctions Against Cuba, N.Y. Times (Nov. 8, 2018); Assoc. Press, US Takes Steps to Make It Harder for Americans to Visit Cuba, N.Y. times (Nov. 8, 2017); DeYoung, White House implements new Cuba policy restricting travel and trade, Wash. Post (Nov. 8, 2017).

[2] U.S. Treasury Dep’t (Office of Foreign Assets Control), Frequently Asked Questions Related to Cuba (updated Nov. 8, 2017).

[3] Id.

[4] Id.

[5] Id.

[6] U.S. State Dep’t, List of Restricted Entities and Subentities Associated With Cuba as of November 9, 2017 (Nov. 8, 2017); U.S. State Dep’t, Frequently Asked Questions on the Cuba Restricted List (Nov. 8, 2017).

[7]  White House, Trump’s National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (June 16, 2017). This Memorandum and the Miami event were discussed in a prior post.

 

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.

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[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.

U.S. Imprisonment of “The Cuban Five” and Their Recent Releases from U.S. Prison

On December 17th U.S. President Barack Obama commuted the sentences of three Cuban spies to time served and released and returned them to Cuba. They are Antonio Guerrero, 56, a U.S. citizen; Ramón Labañino, 51; and Gerardo Hernández, 49.

Antonio Guerero
Antonio Guerero
Ramón Labańino
Ramón Labańino
Gerardo Herńandez
Gerardo Herńandez

They were known as members of “the Cuban Five,”  a Cuban spy ring in South Florida in the 1990s that infiltrated Cuban-exile groups and U.S. military installations.[1] They, along with other members of the ring, tried to make themselves indispensable to the exile groups whose secrets they stole. One of the operatives worked at the Naval Air Station in Key West, while another worked undercover in Tampa.

Once their cover was blown and federal agents smashed the ring, they were arrested and jailed on September 2, 1998. Several of its members pleaded guilty to various charges, but the Cuban Five instead went to trial, starting in November 2000 and concluding in June 20001. They were convicted on all charges and sentenced in December 2001 to long prison terms although two of them after completion of their sentences were released from prison and returned to Cuba in 2013 and 2014.

Mr. Guerrero, who was born in South Florida and studied engineering in Ukraine, was originally sentenced to life plus 10 years, but later was re-sentenced to 21 years plus 10 months (262 months). Mr. Labañino is a native of Havana who studied economics at the University of Havana. Originally sentenced to life plus 18 years, he later was resentenced to 30 years.

Mr. Hernández was the only one of the group convicted of conspiracy to commit murder and sentenced to two life sentences plus 15 years. American investigators accused him of having previous knowledge of the Castro government’s plans in 1966 to shoot down two Cuba-exile organization private planes that regularly flew missions from the U.S. near Cuba, killing four anti-Castro volunteers.

A fuller understanding of the Cuban Five and the recent release of the three Cuban men from U.S. prison requires an examination of (a) the events that precipitated the downing of the two planes; (b) the actions of the Cuban Five relating to those events; (c) the long, complicated history of their criminal case in U.S. federal courts; and (d) reactions to the commutation of  the three men’s sentences and their release from U.S. prison and return to Cuba.

Precipitating Events

According to one of the judges in the latest 11th Circuit decision that is discussed below, the trial evidence established that Brothers to the Rescue (“BTTR”), an anti-Castro Cuban exile group in Miami, repeatedly and knowingly had violated Cuban airspace since 1994. Here are some of the details:[2]

  • In 1994 a BTTR flight flew near the Cuban coast with a television reporter who filmed Cuban military fighter jets circling, but not firing at the BTTR plane.
  • Later in 1994, another BTTR plane flew over Cuba near Guantanamo Bay and dropped BTTR bumper stickers, and again Cuba did not fire at the plane.
  • In 1995 BTTR announced that it would commit civil disobedience in Cuban waters, and in response the U.S. State Department issued a public warning that no one should violate Cuban waters and airspace. Nevertheless BTTR proceeded to send a boat into Cuban waters and a plane flew over Havana for 13 minutes dropping anti-Castro leaflets and religious medals. Again the Cuban military did not attack the BTTR plane. [3]
  • Immediately afterwards the Cuban Government complained to the U.S. FAA and requested action to prevent violations of Cuban sovereignty and stated, “Any craft proceeding from the exterior that invades by force our sovereign waters could be sunk and any aircraft downed.” In response the U.S. State Department reiterated its warning that U.S. planes should not violate Cuban airspace and quoted the Cuban warning.
  • Nevertheless in January 1996 BTTR flew twice to Cuba and presumably over international waters dropped anti-Castro leaflets that landed in Havana. Again Cuba requested the U.S. to stop these flights. [4]

On February 24, 1996, three light civilian U.S. planes that were operated by BTTR flew from Miami to Havana. All three at one time were in international airspace close to Cuba’s territorial waters. One of them clearly flew into Cuban airspace, but was not shot down. The other two civilian planes were shot down by Cuban MIG fighters, killing three Cuban-American citizens and one non-U.S. citizen. Cuba defended its actions by contending that the planes were shot down within the territorial limits of Cuba whereas the U.S alleged that the downings had occurred over international airspace.[5] According to one of the judges in the latest 11th Circuit opinion, these two planes did not enter Cuban airspace and were shot down in international airspace, 4.8 and 9.5 miles (land miles or nautical miles?] from Cuban airspace.[6]

The concept of national and international airspace is complicated. National airspace is the area or portion of the atmosphere above a country’s territory that is controlled by that country and above a country’s territorial waters, which generally are considered to be 12 nautical miles [or about 13.8 land miles] out from the coastline of the nation. All other airspace is known as ‘international airspace.’

In any event, the two planes that were shot down were at least very close to Cuban airspace after a history of such planes entering Cuban airspace and dropping leaflets and medals and potentially dropping bombs.

On December 17, 1997, a U.S. district court entered a default judgment against Cuba for $187 million for the deaths of three of the four pilots.[7]

The Cuban Five’s Actions

The Cuban Five were not directly involved in any of the above incidents. They did not shoot down the private plane on February 24, 1996. They were not in any of the Cuban MIG fighter jets that were involved in that incident.

Instead, according to the latest 11th Circuit opinion that is discussed below, the evidence at trial established that the Five were in the U.S. as agents of the Cuban Directorate of Intelligence and members of its Wasp Network that was organized for espionage in southern Florida. The Network was to gather and report information regarding operations of U.S. military facilities, U.S. political and law enforcement agencies and U.S. nongovernmental organizations supporting regime change in Cuba, including BTTR. To that end, the Five attempted to penetrate the Miami facility of the U.S. Military’s Southern Command while one of the Five obtained employment at the Key West U.S. Naval Air Station and reported information about the Station to the Cuban Government. [8]

The 11th Circuit also stated that the trial evidence established that the mission of one of the Wasp Network’s operations, known as Operation Escorpion, was to stop flights to Cuba by BTRR.

According to the Cuban Government, the Cuban Five are patriots and Heroes of the Cuban Revolution who were acting to save American and Cuban lives from terrorists operating in Miami and to defend Cuba from attacks from the U.S.

What Happened in the U.S. Criminal Process?

In September 1998, the Cuban Five were arrested in Miami. A federal grand jury in Miami indicted them on charges of conspiracy to commit murder (of the four pilots); conspiracy to commit espionage; conspiracy to commit crimes against the U.S.; use of false identity and documentation; and being unregistered agents of a foreign government. Each of them then spent 17 months in solitary confinement before trial.[9]

In November 2000, the trial of the Cuban Five started in federal court in Miami. During the course of pre-trial proceedings the defense made five unsuccessful motions to change venue to move the trial away from Miami because of intense public hostility towards the Cuban Five.

In June 2001 the trial ended in Miami federal court with a jury verdict holding the Cuban Five guilty on all counts.[10] As none of the Cuban Five had been directly involved in shooting down the airplane in 1996, the key legal issue on the conspiracy to commit murder of three men who died in the airplane’s crash was the U.S. legal principle of conspiracy. Under U.S. law (U.S.C. sec. 1117), “If two or more persons conspire to [murder], and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.” In simple terms, the overt act of shooting down the plane is attributed or imputed to all members of the conspiracy even though some were not directly involved in that act.

In December 2001 (three months after 9/11), the Miami federal court sentenced the Cuban Five to the previously mentioned sentences. [11] (At about the same time, the Cuban legislature declared that the Five were Heroes of the Revolution.)

In August 2005, a three-judge panel of the U.S. Circuit Court of Appeals for the Eleventh Circuit in Atlanta unanimously reversed the convictions on the ground that is was reversible error for the trial court to deny the motions for change of venue out of Miami.[12]

A year later, August 2006, however, the entire 11th Circuit en banc, 10 to 2, overturned the panel’s decision and affirmed the trial court’s denial of the motions for change of venue and for a new trial, but remanded the case to the previous three-judge panel of the 11th Circuit to decide the following other issues on appeal:[13]

  • alleged prosecutorial misconduct regarding the testimony of a government witness and during closing argument;
  • alleged improper use of the Classified Information Procedures Act;
  • alleged improper denial of a motion to suppress fruits of searches under the Foreign Intelligence Surveillance Act;
  • alleged Batson violations by the prosecution in striking prospective jurors on the basis of race;
  • alleged insufficiency of the evidence regarding the conspiracy to transmit national defense information to Cuba, alleged violations of the Foreign Services Registration Act, and conspiracy to commit murder;
  • alleged improper denial of a motion to dismiss Count 3 based on Foreign Sovereign Immunities Act jurisdictional grounds;
  • alleged improper denial of jury instructions regarding specific intent, necessity, and justification; and
  • alleged sentencing errors.

On June 4, 2008, that three-judge panel of the 11th Circuit resolved these issues in 99 pages of opinions. With one exception, the panel unanimously rejected all of the Five’s arguments on the merits.[14] The exception was the sufficiency of the evidence for the conviction of Hernandez for conspiracy to commit murder, where the decision to affirm the conviction was 2 to 1. The dissenter concluded that there was insufficient evidence for this charge because the Government had not proved beyond a reasonable doubt that he had agreed to have another agent shoot down a BTTR plane in international airspace, which is illegal, as opposed to shooting down a plane in Cuban airspace, which is legal. Another judge conceded that this issue was very close.[15]

The three-judge court also vacated the sentences of three of the Five and remanded the case forresentencing, presumably for shorter periods. The three are Labañino and Guerrero who had been sentenced to life imprisonment and Gonzalez who had received a 19 years sentence.[16]

On September 2, 2008, the 11th Circuit denied the Five’s petition for rehearing and rehearing en banc (the entire 11th Circuit). On June 15, 2009, the U.S. Supreme Court denied their petition for review (denial of certiorari).[17]

On October 13, 2009, the district court reduced the sentence of Guerrero, under an agreement between the defendant and the prosecution, from life to 262 months. On December 8, 2009, the district court reduced the sentence of Labañino from life to 30 years. On that same date (December 8, 2009), the sentence of Gonzalez was reduced from 19 years to 18 years.[18] Gonzalez subsequently completed his sentence and was returned to Cuba.

After their resentencing, the three Cubans released a statement reiterating their claims of innocence and affirming, ¨We did not give one inch in our principles, decorum and honor, always defending our innocence and the dignity of our homeland.¨in addition, they asserted that they continued to reject the U.S. government´s proposal for more lenient sentences in exchange for collaboration with the U.S.¨[19]

Reactions to the Release of the Three Cubans

When the three men  returned to Cuba on December 18th after their release from U.S. prison, they were welcomed home by Cuban President Raúl Castro. A Cuban reporter said of this celebration, “The Cuban sky, which they had so longed to see, offered the first welcome to our heroes, then the breeze, the feeling of freedom… hard for their eyes to believe what was unfolding before them, hard for their hearts to bear so much joy, to see the radiant, euphoric people opening their arms to their sons, and offering them a cup of coffee. Eleven million tears were shed as the news was announced, and the photos began to appear, with Raúl welcoming them to the homeland. Who didn’t feel goosebumps along with Elizabeth as she embraced [her husband] Ramón. Who was not moved as Gerardo gazed into [his wife] Adriana’s face, and who did not feel the warmth shared by Mirta and her son Tony [upon seeing her husband Antonio Guerrero]… And what an avalanche of emotions hearing the exclamations, including, “Para lo que sea”, (For whatever may be needed), offering an exemplary lesson of genuine patriotism. Outside, in the streets, a sea of human beings welcomed them home, every corner of the nation was full of joy. Feeling the country’s greatness, it is no lie that Cubans feel our hearts swelling.”

Afterwards the three had a joyous reunion with their previously released fellow Cuban Five members.

Members of the Cuban-exile community in Florida reportedly were most upset with the release of Hernandez.  Given his conviction for conspiracy to murder and his double life sentence plus 15 years, that reaction is understandable. On the other hand, he personally did not shoot down the two BTTR planes causing the death of their occupants and was not personally involved in any other way in that incident. In addition, as at least one U.S. judge observed, there was evidence that  Hernandez did not understand or agree that the Cuban air force would shoot down a BTTR plane in international air space, which is illegal, as opposed to shooting down such a plane if it entered Cuban air space, which is legal. Moreover, Cuba had protested the prior BTTR flights to the U.S. authorities and asked the U.S. to stop such flights. Finally Hernandez had been in U.S. jail and prison for over 16 years, which is a significant punishment. Therefore, it should be possible to understand that he is not as evil as suggested by his being labeled as a convicted murderer or as a convicted murder conspirator.

The other two–Guerrero and Labañino–after 16 years in jail and prison were nearing the end of their sentences, and the commutation of their sentences to time served seemed to be less controversial to the Cuban-exile community in Florida.  They already had served their sentences in substantial part.

For this blogger, I see the commutation of the sentences of Hernandez and the other two Cubans and their release from U.S. prison and  return to Cuba as the price that had to be paid by the U.S. in order to obtain Cuba’s simultaneous release of the U.S. spy from Cuban prison. He was Rolando Sarraff Trujillo, a Cuban who was a cryptologist in Cuba’s Directorate of Intelligence. He had provided U.S. officials with the codes being used by the Cuban Five and the other members of the Wasp Network that lead to their being arrested in 1998. (Mazzetti, Schmidt & Robles, Crucial Spy in Cuba Paid a Heavy Cold War Price, N.Y. Times (Dec. 18, 2014); Assoc. Press, Spy’s Parents Search for Son After Cuba-U.S. Deal, N.Y. Times (Dec. 18, 2014).) Supposedly unrelated was Cuba’s simultaneous release of U.S. citizen Alan Gross. Obtaining Cuba’s releases of these prisoners and achieving the overall U.S.-Cuba agreement to normalize diplomatic relations and to start resolving the many bilateral issues that have accumulated over the last fifty-plus years are significant. These benefits alone, in my judgment, justify the commutations and releases of the last three of the Cuban Five.

Moreover, the previous discussion of the precipitating circumstances to the downing of the two BTTR planes and the deaths of their four occupants should help us see the Cuban perspective. The island was being threatened by previous BTTR flights and had raised legitimate complaints to U.S. authorities about those flights, all to no avail. As a result, the Cuban government was left to its own devices to protect itself, including trying to obtain information about future BTTR flights with the Wasp Network investigations of the BTTR in Florida. Moreover, the exact location of the planes when they were shot down was disputed with the Cubans asserting it was in Cuban territorial air space, which was legal. These considerations, in my opinion, provide additional reasons justifying the U.S. commutations and releases.

As a retired lawyer whose practice involved extensive experience in litigating civil cases in U.S. federal courts, I have a general respect for those courts and the U.S. civil and criminal judicial procedures, and  the prior discussion of the Cuban Five´s case in those courts convinces me that the Five had competent and dedicated defense lawyers. I have not attempted a review of the extensive trial record in order to reach my own conclusions on the legitimacy of the many complaints raised about that trial by the Cuban Five support network, by the U.N. Working Group on Arbitrary Detentions and by the amicus curiae briefs submitted to the U.S. Supreme Court from Nobel laureates, international human rights groups and a former U.N. High Commissioner for Human Rights and President of Ireland, Mary Robinson. Nevertheless, the mere existence of those complaints and concerns, without investigating or conceding their merits, are other factors that support, in my judgment, the commutations and releases of the three Cubans by eliminating these international and domestic irritants.

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

[1] They are Antonio Guerrero Rodriguez, Fernando Gonzalez Llort (Rueben Campa), Gerardo Hernandez Nordelo (Manuel Viramontes), Ramón Labañino Salazar (Luis Medina) and Rene Gonzalez Sechweret. The “Cuban 5” website gives a lot of information about them and their case. http://www.thecuban5.org/who-are-the-cuban-5/

[2] Slip Opinions at 84-90, United States v. Campa, 529 F.3d 980 (11th Cir. June 4, 2008) (J. Kravitch, concurring and dissenting).

[3] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996.

[4] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996.

[5] Rohter, Exiles Say Cuba Downed 2 Planes and Clinton Expresses Outrage, N.Y. Times, Feb. 25, 1996; Rohter, Cuba Blames U.S. in Downing of Planes, N. Y. Times, Feb. 27, 1996; Crossette, U.S. Says Cubans Knew They Fired on Civilian Planes, N. Y. Times, Feb. 28, 1996; Crossette, Cuba, Citing Earlier Intrusions, Defends Downing of 2 Cessnas, N. Y. Times, March 7, 1996.

[6] Slip Opinions at 90, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008) (J. Kravitch, concurring and dissenting), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[7] Navarro, U.S. Judge Assesses Cuba $187 Million in Deaths of 4 Pilots, N. Y. Times, Dec. 18, 1997.

[8] Slip Opinions at 3-6, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[9] E.g., Cuban Five, http://en.wikipedia.org/wiki/Cuban_Five; The incredible story of five men imprisoned in the United States for fighting terrorism, Judtyicia/Justice.

[10] Id.; Atlanta and the Cuban Five: A Long March Towards Justice at 1-31 (Editora Politica: Havana, 2005)[“Atlanta“]; Fernandez, United States vs. The Cuban Five: a judicial cover-up at 1-134 (Editorial Capitan San Luis: Havana 2006)[“Fernandez“]; The Perfect Storm: The Case of the Cuban Five at 85-108 (Editora Politica: Havana, 2005) [“Storm“].

[11] Id.; Atlanta at 32-51; Fernandez at 135-82; Storm at 108-09, 149-63.

[12] United States v. Campa, 419 F.3d 1219 (11th Cir. 2005) (No. 01-17176), vacated & ordered to be heard en banc, 429 F.3d 1011 (11th Cir. 2005).

[13] United States v. Campa, 459 F.3d 1121, 1126 n.1 (11th Cir. 2006)

[14] Slip Opinions at 4, 6-63, 84, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[15] Slip Opinions at 83-99, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[16] Slip Opinions at 63-82, United States v. Campa, No. 01-17176 (11th Cir. June 4, 2008), http://www.ca11.uscourts.gov/opinions/ops/200117176.opn3.pdf.

[17] Campa v. United States, No. 08-987 (U.S. Sup. Ct. June 15, 2009).

[18] Anderson, Deal gives man accused in Cuban Five spy case reduced sentence, Miami Herald, Oct. 10, 2009; Urbina, Judge Reduces Sentence for One of Cuban Five, N.Y. Times, Oct. 13, 2009, ; Anderson, Cubans get reduced sentences for spying in US, Washington Post, Dec. 8, 2009; BBC News, US cuts Cuban spies’ jail terms, Dec. 12, 2009.

[19] Statement by Antonio, Rámon and Fernando: We will continue until the final victory, Granma (Dec. 9, 2009); The U. S. administration was forced to recognize that we did not endanger national security, Granma (Dec. 9, 2009).