Judge David Tatel Honored by Chicago Lawyers’ Committee for Civil Rights 

At its 50th Anniversary Gala on October 24, the Chicago Lawyers’ Committee for Civil Rights granted its Legal Champion Award to Judge David S. Tatel. Here we will review the Gala Co-Chair’s introduction of the Judge, the latter’s response and the Judge’s recent opinion for the U.S. Court of Appeals for the D.C. Circuit upholding a House of Representatives committee’s subpoena to an accounting firm for certain financial records of Donald Trump and some of his companies. This post will conclude with some personal remarks by this blogger.

Co-Chair’s Introduction of Judge Tatel

 Nate Eimer, a Chicago attorney and Co-Chair of the Gala, introduced the Judge with these remarks, “Fifty years ago, [David Tatel,] a brilliant, dedicated, courageous University of Chicago of Law graduate working as an associate at Sidley & Austin decided to leave the firm and join the newly formed Chicago Lawyers’ Committee for Civil Rights Under Law as its founding Executive Director.”

“[Before then, David Tatel already had begun] his life of dedicated service to the cause of civil rights immediately upon his arrival at Sidley doing pro bono work for the Chicago Urban League. [And in] his first year as Executive Director of the Lawyers’ Committee [Mr.] Tatel initiated almost 50 projects to advance civil rights in the areas of education, housing, community economic development, employment, and police accountability.”

“In that first year the Committee’s efforts led to the federal investigation and indictment of those responsible for the murder of Black Panthers Fred Hampton and Mark Clark.  Another effort, reminiscent of the recent school closings in Chicago, was the Committee’s member firms’ successful representation of a group of parents on the South Side whose cooperative school was abruptly closed by the City of Chicago.”

“On leaving the Chicago Lawyers’ Committee, . . . [Mr. Tatel] moved to Washington DC where he joined Sidley’s DC office and then served as the  Executive Director of the National Lawyers’ Committee for Civil Rights and later as the Director of the Office for Civil Rights of HEW.”

“In 1994, . . .[David] Tatel was nominated by President Bill Clinton to assume the seat held by Justice Ruth Bader Ginsburg on the United States Court of Appeals for the D. C. Circuit.  This is Judge Tatel’s 25th year on the bench.  His recent opinion in Trump v. Mazar – which upheld the House Oversight Committee’s subpoena for records relating to President, candidate, and private citizen Trump’s financial records – was widely recognized as ‘meticulous and scholarly.’”

The printed Gala program added these words about the Judge’s background: “Judge Tatel earned his undergraduate degree from the University of Michigan and his J.D. degree from the University of Chicago. [After HEW, he returned to private practice in 1979 to join]. . .  Hogan & Hartson, where he founded and headed the firm’s education practice until his appointment by President Clinton to the D.C. Circuit. Judge Tatel currently co-chairs the National Academy of Sciences’ Committee on Science, Technology and Law, and serves on the boards of Associated Universities , Inc. and the Federal Judicial Center. Judge Tatel is a member of the American Philosophical Society and the American Academy of Arts and Sciences. Judge Tatel and his wife, Edith, have four children and eight grandchildren.”

 Judge Tatel’s Acceptance Speech

For me, serving as the Chicago Lawyers’ Committee’s first executive director was one of the most formative experiences of my career. I was only twenty-seven years old, yet through the Lawyers’ Committee, I met and worked with some of the most dedicated and gifted members of the Chicago bar. Two of those lawyers, Dick Babcock, of Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, now part of McGuire Woods, and Bill Haddad, of Bell, Boyd, Lloyd, Haddad & Burns, now part of K&L Gates, were the true founders of the Chicago Lawyers’ Committee. It was they who took the baton from the National Committee and laid the foundation for the success you celebrate today.”

“Like the founders of the National Lawyers’ Committee six years earlier, Babcock and Haddad were not civil rights lawyers—far from it. Bill was a tax lawyer and Dick specialized in municipal zoning, but they were community leaders, ‘lawyer-statesmen,’ as it were, committed to the Constitution and the rule of law.”

“Joined by twelve other lawyers, all senior partners in the city’s major law firms, Babcock and Haddad formed the Chicago Lawyers’ Committee to bring the skills, energy, and prestige of the legal profession to bear on the serious civil rights problems facing this city—problems dramatically highlighted just one year earlier during the devastating riots that swept through the south and west sides in the wake of the assassination of Dr. Martin Luther King, Jr.”

“The Committee began its work in a small office on the 19th floor of the old Monadnock Building at 53 West Jackson—just me, a secretary, and a used Xerox machine. Member firms quickly took on representations involving education, employment, housing, and community development.”

“And then, on a dark, cold December morning just a few months after the Committee opened its doors, fourteen heavily-armed police officers assigned to a special unit of the Cook County State’s Attorney raided an apartment at 2337 West Monroe. When the raid was over, two leaders of the Black Panther Party lay dead, cut down in a hail of bullets. The State’s Attorney called the raid ‘a fierce gun battle’ and congratulated his officers on their ‘bravery and restraint in the face of the vicious Black Panther attack,’ yet a subsequent investigation found that the apartment’s occupants had fired but two shots. In response, Dick Babcock, Bill Haddad, and ten other members of the Lawyers’ Committee sent a telegram to the Attorney General of the United States calling for the appointment of a special grand jury. They warned that the incident had ‘exacerbated to a critically dangerous level the already tense relations between the black community and the police.’ The telegram concluded with these simple but powerful words that Dick added in his own handwriting just before calling Western Union: ‘None of us is accustomed to petitioning government. That we now do is a measure of the depth of our concern.’”

“In calling for a federal investigation, these prominent attorneys were fulfilling the vision President John F. Kennedy articulated in June 1963 when he called on the nation’s lawyers to play a more active role in the fight for racial equality. Deeply troubled about the South’s violent response to the civil rights movement, especially the assassination of Medgar Evers and the firehosing of demonstrators in Birmingham, and having just federalized the Alabama National Guard to enforce court-ordered desegregation at the University of Alabama, the president told 250 leaders of the bar assembled in the East Room that lawyers have a special responsibility to ensure that civil rights issues are resolved ‘in the courts, not the streets.’ Thus was born the Lawyers’ Committee for Civil Rights Under Law.”

“Like the lawyers who heeded Kennedy’s call, Babcock, Haddad, and the others who signed the telegram to the Attorney General were acting in the very best tradition of the legal profession. Even though they were committing their names and reputations to defending an organization whose tactics they and most Chicagoans deplored, they demanded, as lawyers and officers of the court, that the city confront the Black Panther Party through the legal system, and that it hold accountable those officials who had taken the law into their own hands. The lawyers who signed the telegram to the Attorney General, like the 250 lawyers listening to President Kennedy in the East Room, were Democrats and Republicans, liberals and conservatives. But they had no disagreement about the fundamental proposition that in a nation based on the rule of law, civil rights conflicts must be resolved through the legal process.”

“This bipartisan commitment to the rule of law is the key to the Lawyers’ Committee for Civil Rights Under Law. It is what makes the Lawyers’ Committee unique, and now more than ever, it is this precious bipartisan commitment to civil rights that the Chicago Lawyers’ Committee must seek to preserve.”

Judge Tatel’s Opinion in Trump v. Mazars USA LLP [1]

On October 11, just two weeks before this award, Judge Tatel wrote the 2-1 opinion for a panel of the D.C. Circuit upholding the subpoena by the House Committee on Oversight and Reform to the accounting firm Mazars, USA LLP for “records related to work performed for President Trump and several of his business entities both before and after he took office.” The opinion started with its conclusion that was explicated in the balance of the opinion: “the Committee possesses authority both under the House Rules and the Constitution to issue the subpoena, and Mazars must comply.” The opinion then cited many Supreme Court cases and other authorities in the following five sections:

1. The current Congress on January 3, 2019, debated and adopted “a set of rules to govern its proceedings.” It established the previously mentioned Committee, which was charged with “review[ing] and study[ing] on a continuing basis the operation of Government activities at all levels” and which was authorized to “conduct investigations” “at any time . . . of any matter,” “without regard to” other standing committees’ jurisdictions. To “carry[] out . . . [these] functions and duties” the . . . Committee may “require by subpoena or otherwise . . . the production of such . . . documents as it considers necessary.”

The opinion then reviewed the background for this subpoena, including the Ethics in Government Act of 1978 and the district court’s opinion in this case that had upheld this subpoena.

2. Next Judge Tatel’s opinion reviewed the history of legislative subpoenas, starting with the English Parliament and U.S. congressional subpoenas before discussing U.S. Supreme Court cases regarding the latter (as well as the D.C. Circuit’s opinion in a case over a Senate subpoena to President Nixon). These authorities established the following governing principles: (a) the committee must have been delegated the power to conduct investigations; (b) the congressional power to investigate is broad; Congress, however, may not “usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights” or “conduct itself as a law enforcement agency;” (c) “Congress may investigate only those topics on which it could legislate;” and (d) “congressional committees may subpoena only information ’calculated to’ ‘materially aid[]’ their investigations.”                                                      3. The opinion then reviewed the “public record,” including “several pieces of legislation related to the Committee’s inquiry,” regarding this subpoena and concluded that it “reveals legitimate legislative pursuits, not an impermissible law-enforcement purpose.” Moreover, “this subpoena is a valid exercise of the legislative oversight authority because it seeks information important to determining the fitness of legislation to address potential problems within the Executive Branch and the electoral system; it does not seek to determine the President’s fitness for office.” In short, “the categories of information sought are ‘reasonably relevant’ to the Committee’s legitimate legislative inquiry.”                 4. Next the opinion rejected Mazars’ contention that the full House had not authorized the Committee to issue this subpoena. After all, Mazars had not challenged “the most natural reading of the House Rules [that] the full chamber has authorized the Committee to issue the challenged subpoena” and “the House Rules have no effect whatsoever on the balance between Congress and the President.”                                                                                                                            5.Finally, “the constitutional questions raised here are neither “’[g]rave’” nor “’serious and difficult.’” “We therefore have no cause to invoke the canon of constitutional avoidance.” “It is Mazars, a third-party, that will retrieve and organize the relevant information; the subpoena seeks non-confidential records in which the President has asserted no proprietary or evidentiary protections; and it is Mazars, not the President, [that] risks contempt through non-compliance.”

Conclusion

 This blogger is a University of Chicago Law School classmate and friend of Judge Tatel and at our 50th reunion in May 2016, presented our classmates with a booklet containing his biography and a selected list of 10 of his most significant cases as of that date.[2]

In 1957 David was diagnosed with retinitis pigmentosa, a genetic disorder causing loss of vision, which happened for him around 1973. I continue to be amazed at his ability to overcome this disorder and do this difficult and important legal work with such intelligence, diligence and grace. Thank you, Judge Tatel!

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[1] Trump v. Mazars and Committee on Oversight & Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Oct. 11, 2019).   The dissenting opinion of Circuit Judge Neomi Rao is not discussed in this post.

[2] See these posts to dwkcommentaries.com mentioning Judge Tatel: My Years at the University of Chicago Law School (Dec. 27, 2011); The D.C. Circuit’s Decision Upholding the Validity of the Voting Rights Act of 2006 (March 11, 2013); Judging on the U.S. Court of Appeals for the D.C. Circuit (April 11, 2013); Federal Appellate Court Allows Lawsuit by Guantanamo Detainees (March 1, 2014).

 

Cuban Reactions to New U.S. Anti-Cuba Measures

Naturally the Cuban government and its officials condemned the new U.S. measures. Other Cubans voiced various opinions on this subject.

Cuban Government[1]

“Today, the 17th of April, we celebrate another anniversary of the start of the military aggression at the Bay of Pigs (Playa Girón) in 1961. The decisive response of the Cuban people in defense of the Revolution and socialism resulted in the first military defeat of imperialism in the Americas, in just 72 hours. Oddly enough, it is the date chosen by the current government of the United States to announce the adoption of new aggressive measures against Cuba and to reinforce the application of the Monroe Doctrine.”

“The Revolutionary Government rejects in the most energetic of terms the decision to permit hereinafter that action is taken in US courts against Cuban and foreign entities outside the jurisdiction of the United States, and that of intensifying the impediments for entry into the United States of the executives of companies that legally invest in Cuba and their relatives in properties that were nationalized.  These are actions envisaged in the Helms-Burton Act that were rejected a long time ago by the international community, that the Cuban nation has repudiated from the time when they were enacted and applied in 1996, and whose fundamental aim is to impose colonial protection over our country. Cuba also repudiates the decision to return to limiting the remittances which Cuban residents in the US send to their families and next of kin, to restrict even further travel by American citizens to Cuba and to apply additional financial penalties.”

“It energetically rejects the references that in Cuba attacks have been produced against American diplomats. They would like to justify their actions, as usual, using lies and blackmail. On last 10 April, General of the Army Raúl Castro declared: ‘Cuba is blamed for all evils, using lies in the worst style of Hitlerian propaganda.’To cover up and justify the evident failure of the sinister coup d’ét maneuver of designating, from Washington, a usurper “president” for Venezuela, the government of the United States resorts to slander.”

“It accuses Cuba of being responsible for the soundness and steadfastness shown by the Bolivarian and Chavista government, the people of that country and the civilian-military union which defends the sovereignty of their nation. It brazenly lies when it declares that Cuba keeps thousands of troops and security forces in Venezuela, influencing and determining what is happening in that sister country.”

“It has the cynicism of blaming Cuba for the economic and social situation besetting Venezuela after years of brutal economic penalties, conceived and applied by the United States and a number of allies, precisely to economically suffocate the population and to cause its suffering. Washington has gone to the extremes of pressuring the governments of third countries to attempt to persuade Cuba to withdraw this presumed and unlikely military and security support and even for it to stop providing backing and solidarity to Venezuela. The current US government is known, in its own country and internationally, for its unscrupulous tendency of using lies as a resort in domestic and foreign policy matters.   This is a habit coinciding with the old practices of imperialism.”

“Still fresh in our minds are the images of President George W. Bush, with the support of the current National Security Advisor John Bolton, lying shamelessly about the supposed weapons of mass destruction in Iraq, a fallacious argument that served as an excuse to invade that country in the Middle East.”

“History also records the blowing up of the battleship “Maine” in Havana and the self-provoked incident in the Gulf of Tonkin, episodes that served as excuses to unleash wars of pillage in Cuba and Vietnam. We should not forget that the United States used fake Cuban insignia painted on the planes that carried out the bombing runs as a prelude to the aggression at the Bay of Pigs, in order to cover up the fact that they were really American planes”

“It must remain clear that US slander rests upon complete and deliberate lies. Its intelligence services possess more than enough proof, surely more than any other State, to know that Cuba has no troops nor does it participate in any operations of a military or security nature in Venezuela, even though it is a sovereign right of two independent countries to decide how they shall cooperate in the sector of defense, something that does not correspond to the United States to question. That accuser keeps over 250,000 soldiers on 800 military bases abroad, some of these in the American hemisphere.”

“Their government also knows that, as Cuba has publicly and repeatedly declared, the nearly 20,000 Cuban collaborators, over 60 % of them women, are in that Latin American nation to fulfill the same tasks that approximately another 11,000 Cuban professionals are fulfilling in 83 nations:   contributing to provide basic social services, fundamentally in the area of health, a fact that is acknowledged by the international community. It must remain absolutely clear that steadfast solidarity with the sister Bolivarian Republic of Venezuela is Cuba’s right as a sovereign State and it is also a right that forms part of the tradition and essential principles of the foreign policy of the Cuban Revolution.”

“No threats of reprisals against Cuba, no ultimatum or blackmail by the current US government is going to divert the internationalist conduct of the Cuban nation, despite the devastating human and economic damages caused our people by the genocidal blockade.”

“It behooves us to remember that Mafioso threats and ultimatums were already being used in the past when Cuba’s internationalist efforts were supporting the liberation movements in Africa while the US was backing the scurrilous regime of apartheid. They would have liked Cuba to renounce its commitments of solidarity with the peoples of Africa in exchange for promises of pardon, as if the Revolution had anything whatsoever that needed to be pardoned by imperialism.”

“At that time, Cuba rejected blackmail, as it rejects it today, with utmost disdain.”

“Last April 10th, General of the Army Raúl Castro recalled: ‘In 60 years of facing aggression and threats, we Cubans have demonstrated the iron-clad will to resist and overcome the most difficult of circumstances. Despite its immense power, imperialism does not have the capacity to crush the dignity of a united people, who are proud of their history, and of the freedom they have attained by the strength of so much sacrifice.’”

“The Government of Cuba calls on all members of the international community and on the citizens of the United States to stop the irrational escalation and the policy of hostility and aggression of the government of Donald Trump. With complete justification, year after year the Member States of the United Nations have called practically unanimously for the end to this economic war.  The peoples and governments of our region must see to it that, for the benefit of all, the principles of the Proclamation of Latin America and the Caribbean as a Zone of Peace prevail.”

“Last April 13th, the President of the Councils of State and Ministers Miguel Díaz-Canel Bermúdez declared: ‘Cuba continues to trust in its strength, its dignity and also in the strength and dignity of other independent and sovereign nations.  But it also continues to believe in the American people, in the Land of Lincoln, that they should be ashamed of those who act on the fringes of universal law on behalf of the entire American nation.’ Once again, Cuba repudiates the lies and threats, and reiterates that its sovereignty, independence and commitment to the cause of the peoples of Latin America and the Caribbean are not negotiable.”

“Two days away from commemorating the 58th anniversary of the Playa Girón Victory, a historical point in national geography where the mercenary forces sent by imperialism tasted the dust of defeat, the Cuban Revolution reiterates its firm determination to face up to and prevail over the escalated aggression of the United States.”

Cuban Government Officials[2]

Cuban President Miguel Diaz-Canel responded defiantly with these tweets: ‘Cubans do not surrender, nor do we accept laws about our destinies that are outside the Constitution. In Cuba we Cubans will not change the attitude towards those who hold the sword against us.’ He added,  ‘No one will rip the (Fatherland) away from us, neither by seduction nor by force, We Cubans do not surrender.’’”

In another tweet, Diaz-Canel said,  ‘Title III is not worse than the I and II, which are in the portfolio of actions against all the people of Cuba, Cubans do not give up.”

Also initially responding with tweets was Cuba Foreign Minister Bruno Rodriguez. He “called it an attack on international law, Cuban sovereignty and countries that would do business with the island: Aggressive escalation by US against Cuba will fail. Like at Giron, we will be victorious.’”

On state television, Rodriguez said, ‘”We will always be willing to have a dialogue based on absolute respect, but if the U.S. government has chosen a confrontational path we will not hesitate to defend the gains of the revolution at any cost.’” According to Rodríguez, ‘These decisions of Washington are an aggressive escalation of the US against Cuba that ‘will fail.’”

In another tweet, he also repudiated the ‘aggressive discourse, calumnies and measures to intensify the blockade announced by the US National Security Adviser [Bolton that] constitute a new aggression against the people of Cuba, the American people, Cuban emigration and sovereign states.’”

.”’But now there are nefarious interests in the government of that country, an increasingly monopoly, more McCarthyist policy against Our America and against our people, based on true slander.’”

“’We, of course, will not give up one bit of our principles. We will continue our solidarity support to the sister Bolivarian Republic of Venezuela and we will follow the course that our people, now in a free and universal referendum, has confirmed towards an increasingly just, advanced, increasingly inclusive Cuban socialism and the foreign policy of the Revolution Cubans will continue to be the same, as the Constitution confirms. Our principles are unchangeable and invariable.’”

  Other Cubans[3]

The most cogent opinion on these issues was provided by Rafael Rojas, who is one of Cuba’s most distinguished historians with many publications and the holder of university positions around the world. He wrote the following 10 objections to what he calls “the Bolton Doctrine” in Madrid’s El Pais.

  • “1. In the conflict between the United States, Cuba, Nicaragua and Venezuela, the symbolic dimension weighs heavily. From Washington, Havana, Caracas, Managua and, of course, Miami, these differences are assumed as inertias or continuations of the Cold War. But in most of the world this is not the case: the conflict between communism and anti-communism is marginal on the planetary level. To have announced the new policy in Miami, on the anniversary of the failed Bay of Pigs invasion of 1961, is to persist in that local, archaic entanglement that favors Manichaeism and the binary visions of contemporary politics.”
  • “ The announcement of the new measures from Miami, by Bolton, reinforces a double and harmful subordination: that of the policy towards Venezuela, Nicaragua and Cuba to the sphere of the “national security” of the United States and that of the Washington agenda for those countries to the electoral cycles in the state of Florida.”
  • “ The sanctions against the three regimes adopt a totally unilateral sense at a time when various global institutions and diplomatic initiatives (OAS, UN, Lima Group, International Contact Group of the European Union, Prosur, Uruguayan and Mexican chanceries) try to arrange multilateral actions to face the Venezuelan and Nicaraguan crisis.”
  • “ During the last two decades, the US Department of State has maintained a differentiated policy for Venezuela, Cuba and Nicaragua. It is evident that these regimes act coordinated in a permanent strategy of promoting authoritarian alternatives to democracy in the hemisphere, but, at the same time, the differences between the three political systems, the peculiarities of their respective relations with civil society and society are indisputable [as are] the opposition and nuances of its international commitments and Government priorities.”
  • “The definition of these regimes as “troika of tyrannies” is not only a theoretical simplification, that almost the whole of Latin America and the European Union, plus the UN, China and India, Africa and the Middle East do not share, but an incentive to the deployment of a greater diplomatic and military collaboration of those governments among themselves and with their allies in the world, especially Russia and Iran.”
  • “The application of Titles III and IV of the Helms-Burton Act, passed in 1996, had been postponed by all the governments of the United States until now: the second by Bill Clinton, the two by George W. Bush and the two of Barack Obama [and the two??? by Trump]. The reason was always a mixture of recognition of the global unpopularity of the embargo against Cuba and the complications that could arise in relations with Europe, Canada, Latin America and Asia, in case of demands to companies from those regions that operated in Cuba with confiscated properties. The thousands of cases of Cuban-American citizens that will be presented before the US justice system, in addition to being complicated and burdensome, will generate costs at the international level, as already observed with the European Union’s appeal to the World Trade Organization (WTO).”
  • “Restrictions on American tourist trips and remittances from Cuban-Americans from the United States will not only affect the income of Miguel Diaz Canel’s government: they will also damage the small market sphere that attempts to articulate within the island. The new policy towards Cuba returns to the old paradox of the republican right to promote capitalism, closing the external ways by which capitalism can reproduce itself.”
  • “The sanctions against the Central Bank of Venezuela continue the punitive strategy undertaken so far by the Trump administration against the financial networks of the Government of Nicolás Maduro. Who announces that measure in Miami is the same one that recently proposed the sending of 5,000 soldiers to the border between Colombia and Venezuela and the same government that already openly complains about the inability of its ally, President Ivan Duque [Colombia’s current president], to reduce drug trafficking.”
  • “ The measures against the Government of Daniel Ortega also try to affect the sources of income of the Sandinista State, through the freezing of funds from the Corporate Bank of Nicaragua and the official investment and export agency, ProNicaragua, headed by the son of the presidential couple, Laureano Ortega Murillo. So far, this type of personalized sanctions has not yielded results in Cuba or Venezuela, in terms of promoting greater economic and political openness. Daniel Ortega, a leader so discredited by the Latin American left, gains prestige with the Bolton doctrine.”
  • “ The purpose of the unilateral US offensive against Venezuela, Cuba and Nicaragua is not, apparently, a flexibilization but a breakdown of those regimes. But for that to happen, unlikely scenarios would have to occur: a military uprising in Venezuela, a coup in Nicaragua or a popular uprising in Cuba. In a possible conjuncture of simultaneous economic asphyxia in the three countries should not rule out a greater cohesion against the external enemy, despite the greater or lesser wear and tear of their respective leaders. Not even the collapse of one of those regimes would necessarily mean the collapse of the other two.”

Another article critical of the new U.S. measures in tones similar to those  expressed by the Cuban government and its officials appears in Granma, the official newspaper of the Communist Party of Cuba.

On the other hand, some Cubans disagreed with the Cuban government’s lengthy and vitriolic attacks on the new U.S. measures. These articles were an editorial in Diario de Cuba and one of its articles by Elias Amor; this Internet periodical is published in Madrid, Spain and says that “the  views expressed are not those of any government, nor of any corporate entity other than K&M Productions, LLC, of Boston, Massachusetts.”

A surprising opinion on the new U.S. policies was voiced by Antonio Rodiles, a member of the Cuban opposition, when saying he supported the new U.S. restrictions. “”Pressure is needed. In what other way will it be possible to stop a regime like this? I do not see another Possibility.”

Conclusion[4]

 The lengthy declaration by the Cuban Government was to be expected. Criticism of the official position of the Cuban Government on these issues from  Dario de Cuba was also to be expected as it always publishing such pieces and makes one wonder whether it secretly is funded by the U.S. government.

Most persuasive are the 10 reasons advanced by respected historian Rafael Rojas. I agree that the speech by John Bolton seems erroneously anchored in the views of the Cold War, which has been over for some time; that the new measures seem derived from U.S. political concerns about the state of Florida in national politics; that the new measures totally ignore multilateral efforts to solve the many issues in Cuba, Venezuela and Nicaragua; that the new U.S. measures encourage these three countries to seek help from Russia and Iran; that the previous U.S. waiver of enforcement of provisions of the Hale-Burton Act were based on realistic assessments that the related U.S. embargo of Cuba was rejected by virtually every country in the world whereas enforcement of those provisions of the Act would generate costs at the international level, including tension with U.S. allies; that the restriction of U.S. remittances and travel to Cuba will harm emerging Cuban free enterprise; and that the true purpose of these new U.S. measures does not appear to encourage actions consistent with U.S. interests, but instead to cause a breakdown of their regimes.

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[1] Cuba Foreign Ministry, Declaration of the Revolutionary Government of Cuba: The Cuban revolution reiterates its firm determination to face the escalation in aggression by the United States (April 18, 2019).

[2] Solomon, Reichmann & Lee (AP), Trump Cracks Down on Cuba, Nicaragua and Venezuela, Wash. Post (April 17, 2019); DeYoung, Trump administration announces new measures against Cuba, Wash. Post (April 17, 2019); Reuters, Trump’s Cuba Hawks Try to Squeeze Havana Over Venezuela Role, N.Y. Times ( April 17, 2019).

[3] Rojas, Ten Objections to the Bolton doctrine, El Pais (April 18, 2019); Capote, Let’s talk Cuban about the Helms-Burton, Granma (April 17, 2019); Editorial, The Helms-Burton Act and the responsibility of the Cuban regime, Diario de Cuba (April 18, 2019); Amor, Will the Cubans be impoverished by the Helms-Burton Law?, Diario de Cuba (April 20, 2019).

[4] As always corrections and opinions about this post are welcome. Are there any other significant Cuban statements on these new U.S. measures? If so, add them in comments to this post.

Professor LeoGrande’s Argument Against U.S. Litigation Over Cuban Expropriated Property

Senator Patrick Leahy in his lengthy February 15 speech on the Senate floor, which was repeated in a prior post, had appended to his remarks an article about Cuba by a noted U.S. expert on the country, Professor William L. LeoGrande of American University. Here is the text of that article, “President Trump Risks Alienating Allies Over Cuban American Property Claims” from OnCubaNews (2/13/19).

“The Trump administration is seriously considering whether to allow Title III of the Cuban Liberty and Democratic Solidarity Act (Helms-Burton) to go into effect in March, according to National Security Adviser John Bolton. On January 16, Secretary of State Mike Pompeo announced that he was suspending Title III for just 45 days instead of the usual six months while the administration reviews whether its implementation would promote democracy in Cuba. He warned foreign companies doing business on the island that they had better ‘reconsider whether they are trafficking in confiscated property and abetting this dictatorship.’”

“Title III allows U.S. nationals to file suit in U.S. courts against anyone ‘trafficking’ in their confiscated property in Cuba—that is, anyone profiting from it. If President Trump allows Title III to go fully into effect, he will open the door to as many as 200,000 law suits by U.S. nationals, most of them Cuban Americans, whose property was taken by the Cuban government after 1959. U.S. courts would be swamped, the ability of U.S. companies to do business on the island would be crippled, and allies abroad might retaliate for U.S. suits brought against their companies in Cuba. Once the suits have been filed, there will be no way to undo the resulting legal chaos and the tangle of resulting litigation could take years to unwind.”

“The U.S. Foreign Claims Settlement Commission has certified 5,913 claims of U.S. nationals whose property was seized. These are the claims that Cuba recognizes and that the United States and Cuba had begun to discuss during the Obama administration. But Title III takes the unusual position of allowing naturalized Cuban Americans who lost property to also file suit against alleged traffickers. Normally, international law recognizes the sovereign right of governments to dispose of the property of their own citizens. According to the Department of State, by including Cuban Americans who were not U.S. citizens when their property was taken, Title III creates the potential for an estimated 75,000-200,000 claims worth ‘tens of billions of dollars.’”

“Back in 1996, when the law was being debated in Congress, angry opposition from U.S. allies Canada, Mexico, and the European Union, whose companies doing business in Cuba would be the targets of Title III law suits, led President Bill Clinton to insist on a presidential waiver provision in Title III. As a result, the president has the authority to suspend for six months the right to file Title III law suits, and he can renew that suspension indefinitely. Every six months since the Cuban Liberty and Democratic Solidarity Act was passed, successive presidents, Democrat and Republican alike, have continued the suspension of Title III.”

“U.S. allies have denounced Title III’s extraterritorial reach. Mexico, Canada, the United Kingdom, and the European Union all passed laws prohibiting compliance with it. The European Union also filed a complaint with the World Trade Organization, which it did not pursue after President Clinton suspended Title III. In fact, the principal justification both President Clinton and President George W. Bush offered for continuing the suspension was the need to maintain cooperation with European allies.”

“If President Trump does not renew the suspension, all these old wounds with allies will be reopened as U.S. claimants try to haul foreign companies into U.S. courts for doing business in Cuba. We already have enough tough issues on our agenda with Mexico, Canada, and Europe without adding another one. At this very moment, Washington is trying to muster their support in dealing with the Venezuelan crisis, support that could be endangered if the administration picks a fight with them over Title III.”

“U.S. businesses would not be exempt from potential liability. A Cuban American family in Miami claims to have owned the land on which José Martí International Airport was built, so any U.S. carrier using the air field could conceivably be sued under Title III. Another family that owned the Port of Santiago could file suit against U.S. cruise ships docking there.”

“Moreover, it would be almost impossible for a U.S. or foreign company to know in advance whether a proposed business opportunity in Cuba might become the subject of Title III litigation. “This will effectively end for decades any attempt to restore trade between the U.S. and Cuba,” attorney Robert Muse told the Tampa Bay Times.”

“When President Trump announced new sanctions on Cuba back in June 2017, senior administration officials said they were designed “to not disrupt existing business” that U.S. companies were doing in Cuba. If the president fails to continue the suspension of Title III, business relations will be disrupted far more severely and irreparably than they would be by any regulatory change.”

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

Leahy, Statement of Senator Leahy On the Freedom To Export To Cuba Act (Feb. 15, 2019); LeoGrande, Trump and Cuban-American property claims, OnCubaNews (Feb. 11, 2019). See also President Trump Considering Another Hostile Action Against Cuba, dwkcommentaries.com (Jan. 18, 2019); Update on Trump Administration’s Threat To Allow U.S. Litigation Over Cuba’s Expropriated Property, dwkcommentaries.com (Jan. 30, 2019).

Senator Leahy’s Senate Floor Speech To End Embargo of Cuba

As mentioned in a prior post, on February 7, Senator Amy Klobuchar (Dem., MN) introduced the Freedom To Export to Cuba Act (S.428) with cosponsors Patrick Leahy (Dem., VT) and Michael Enzi (Rep., WY)./

On February 15, Senator Leahy delivered a lengthy and persuasive speech on the Senate floor supporting this bill and ending the embargo. Here is the text of that speech.

After commending Senator Amy Klobuchar (Dem., MN) for introducing this bill and urging other Senators to support the bill,, Senator Leahy said, “This bill is about ending the anachronistic prohibitions in U.S. law that for decades have limited U.S. engagement with Cuba, including preventing American companies from exporting their products to Cuba.  The fact that legislation to do so is even necessary is illustrative of the absurdity of the situation in which we find ourselves.  Companies from Europe, Russia, China, Mexico, and every other country can sell their products to Cuba, which is just 90 miles from our coast, but American manufacturers and retailers are largely shut out of the Cuban market. . . . This bill would enable American companies to compete, which every believer in a free market should support.”

“It is also important for Senators to know that punitive actions by the Trump Administration last year to further restrict the right of Americans to travel to Cuba have had devastating consequences for Cuba’s fledgling private sector – the very people the White House and supporters of the restrictions profess to want to help.  The fact that they have said nothing about the harm they are causing Cuba’s struggling entrepreneurs demonstrates that they care more about continuing their failed policy of sanctions, regardless of who they hurt, than about helping the Cuban people or about protecting the right of Americans to travel freely.” 

“The latest ill-conceived attempt by the White House to punish Cuba would permit Title III of the Helms-Burton Act to go into effect.  This would allow, among others, individuals who were Cuban citizens when their property in Cuba was expropriated half a century ago to sue in U.S. courts any Cuban, foreign, and even American company whose business in Cuba today uses that property.  That could be an airport, port, warehouse, hotel, restaurant, you name it.  Virtually every American and foreign company investing in Cuba would suddenly be liable for treble damages.”

“The purpose, as the law’s authors made clear when it was enacted 23 years ago, is to harm Cuba’s economy by making it completely inhospitable for foreign investment.”

“As my friend in the House, Representative Jim McGovern (Dem., MA), has pointed out –

  • ‘It’s no mystery why Presidents Clinton, Bush, Obama, and Trump blocked Title III from going into effect every six months for the past 23 years.’
  • ‘It is hypocritical – it penalizes companies for doing what American companies do all over the world.’
  • It is contrary to international law, which recognizes the right of expropriation and requires compensation.’
  • ‘It is an extraterritorial sanction that guarantees a response from our trading partners, like Canada, Spain and the EU, including complaints at the World Trade Organization.’
  • ‘And if you care about agriculture, be warned: It will open a new front in the trade war, with all the repercussions that can bring.’
  • ‘It will allow Cuba to claim victim status and rally international support.’
  • ‘It will clog our courts with lawsuits.’
  • ‘It will make it impossible to negotiate compensation for U.S. claims in Cuba, and, in the end, hurt the very Americans who seek compensation for the property they lost.’
  • ‘It will divide us from friends and allies who are now working for a peaceful solution in Venezuela.’
  • ‘And it will guarantee that new investment in Cuba will come from the Russians, Chinese and others who are hostile to the United States, and whose state-owned companies can’t be sued in U.S. courts.’

“I agree with my friend in the other body [Rep. McGovern].  What the White House is considering would trigger an avalanche of unintended consequences that would bring U.S. commerce with Cuba to a halt, harm relations with our allies in this hemisphere and beyond, and make resolving property claims more difficult.  I ask unanimous consent that a piece by William LeoGrande on Title III of the Helms-Burton Act published in the February 13, 2019 issue of OnCubaNews be printed in the Record following my remarks.” [This article will be published in a separate post to this blog.]

Like “many issues, Members of Congress have strong feelings pro and con about U.S. relations with Cuba.  It is no secret that, after more than half a century of a policy of isolation that has achieved none of its objectives and primarily hurt the Cuban people, I, like Senators Klobuchar and Enzi and many others in this body, favor closer relations.”

“Conversely, there are those in Congress and the Trump Administration who believe strongly that we should ratchet up the pressure on the Cuban government in an attempt to achieve those elusive goals.”

“I have often spoken publicly about the lack of political freedom and civil liberties in Cuba.  But I also think it is important to try to be objective:  to criticize when called for and to acknowledge positive changes when they occur.”

“I recognize that those who favor maintaining the failed economic embargo have a longstanding, visceral antagonism and resentment toward the Cuban government.  While they rarely, if ever, mention the corrupt and brutal Batista regime that enjoyed unqualified U.S. support until it was overthrown in 1959, they have legitimate reasons to criticize the mistreatment of the Cuban people by the current government and its support for the corrupt and repressive Maduro regime in Venezuela.”

“But they too should acknowledge that threatening and bullying Cuba has not worked.  In fact it has made the situation worse, and provided an excuse for the Cuban government to blame its own failures on us.  They should also acknowledge positive changes in Cuba, but they never do.  Not ever.  It is almost as if they are psychologically, ideologically, or emotionally incapable of saying one positive thing about the Cuban government, no matter what positive things it does.”   

“Perhaps they are afraid that if they did, they would alienate their donors in the Cuban-American community.  Of course, we know that Cuban-Americans are divided about the U.S. embargo.  Some are hardcore believers in the embargo, and they always will be.  But at least as many – and increasing numbers – oppose the embargo, especially those who were born after the Cuban revolution.” 

“I wonder what the pro-embargo isolationists would say if the Cuban government were to stop harassing and abusing dissidents who favor a more democratic system.  Would those who oppose the embargo say anything positive?” 

“What if the Cuban government decided to embrace a free market economy and let private businesses flourish?  Would those who oppose the embargo say anything positive?”

“I doubt it.  I doubt it because no matter what positive reforms occur in Cuba, they will continue to defend the embargo until Cuba is a full-fledged democracy and those who currently hold power either die or are voted out of office.” 

“We all want Cuba to become a democracy, where civil and political rights are respected, and the sooner the better.  But those same defenders of the embargo support billions of dollars in U.S. aid – and weapons sales – to countries that are led by authoritarian, brutal, and corrupt dictatorships and monarchies, some of which have held power for decades or generations.”    

“How do the pro-embargo diehards reconcile that?  They don’t and they can’t.”

“The fact is, Cuba is changing.  Not nearly as fast as we and the Cuban people would like, but it is changing in ways that few would have predicted not very long ago.”

“Last year, Raul Castro’s hand-picked successor, Miguel Diaz-Canel, became President and he promised a government more accessible and responsive to the people’s needs.  How he delivers on that promise remains to be seen.”   

“Since 2010, after the Cuban government recognized that the Internet is essential if Cuba wants to be part of the modern world, Internet access has exploded.  The government has opened hundreds of public Wi-Fi hot spots and cyber cafes in the past five years, and home Internet access became legal and available in 2017.  Today, almost half of the Cuban people have personal cell phones that were illegal just a decade ago.”

“As others have pointed out, these changes have encouraged new forms of communication, networking and organizing via social media.”

“But change does not come easily in Cuba, as it does not in many countries.  Last July, the government announced onerous new regulations on the private sector, covering a wide range of issues:  food safety, labor contracts, procurement, taxation, limits on the size of private businesses.  The new rules were an attempt by hardliners to crack down on the private sector, which was criticized for black marketeering.”

“But private entrepreneurs resisted, and they challenged the regulations as contradictory to the government’s own plans that recognizes the private sector as important to economic growth and employment. They appealed to government officials and spoke publicly about the harm the new rules would have on their businesses.”

“When the final regulations were issued, several that had caused the most resentment were dropped.  According to the Minister of Labor and Social Security, the decision to revise the rules was due to ‘the opinion and experiences of those directly involved.’”

“The government also retreated on a new law – Decree 349 – requiring artists, musicians and performers to register with the state and pay a large commission on their earnings from private engagements, and it banned work with objectionable content and empowered inspectors to shut down any offensive exhibition or performance.  Clearly, an attempt to further limit free expression.”

“Since the 1980s, Cuban artists have had more freedom to be critical of the government than other social sectors, and so it was not surprising that Decree 349 ignited widespread protests.  After social media was used to mobilize opposition within the Cuban arts community and among artists abroad, the government agreed not to enforce the law until implementing regulations are drafted in consultation with the arts community.”

“According to one observer, ‘during [the latter half of last year], nearly 8.9 million Cubans debated the draft of a new constitution in their workplaces, neighborhoods and schools.  Communist Party members were told not to argue with even the most radical proposals for amendments, and the ensuing debates were freewheeling, often lasting past their scheduled time.  Among the main topics: whether the president and state governors should be directly elected by voters; whether the concentration of wealth and property should be allowed; whether term limits and age limits for leaders were a good idea; and whether the Communist Party should be subordinated to the constitution and hence the law.”  Not long ago it would have been unthinkable to openly debate these issues, especially as part of a constitutional reform process.”

“One article that attracted intense debate recognized same-sex marriage, and was promoted by Raul Castro’s daughter, a long-time activist for LGBTQ rights. The proposal sparked strong opposition from evangelical churches supported by the Catholic Church.  Gay rights advocates countered with campaigns of their own.  The chance of a significant ‘no’ vote on the entire constitutional reform led the government to drop the provision from the final draft of the constitution with a pledge to consider it later.”

“This surge in mobilization by well-organized constituencies utilizing social media to resist government policy, from burdensome private sector regulations to gay marriage, is unprecedented in Cuba.  The government’s willingness to not only tolerate these organized challenges but to change policies in response to them, is significant. “   

“As has been noted, none of these issues dealt with the rigid structure of the Cuban system.  Cuba remains a one party state, in which those who challenge the system are treated as criminals.  But the precedent of organized interest groups mounting successful campaigns to challenge and change government policy is now established, which is positive.” 

“None of the longstanding critics of the Cuban government in the U.S. Congress or the Cuban-American community [has] acknowledged any of this, nor are they likely too.  For them, anything less than a wholesale change of government in Cuba is unworthy of mention, even though they apply a very different standard – a double standard – to other authoritarian governments.  In fact, they would ridicule anyone who regards such changes as positive or worthy of recognition.”

“As we know from our own experience, political reform is difficult.  Our own Electoral College, an anachronism designed to protect a slave-holding minority, remains in effect more than two centuries later.  Five times, in the world’s oldest democracy, it has prevented the winner of the most popular votes from being elected president.”  

“The Cuban people want to live better and they want a lot less government control over their lives.  Armed with cell phones and the Internet they are going to make increasing demands of their government.  This is happening at a time when Venezuela’s economy is collapsing and the survival of the Maduro regime, Cuba’s closest ally in the hemisphere, is in question.  Not surprisingly, the Cuban government is trying to limit the pace of change and to secure other benefactors.  It is turning increasingly to Russia, Algeria, Iran and other countries that welcome the chance to challenge U.S. influence in this hemisphere.” 

“This is a time for the United States to be actively and visibly engaged in Cuba, for Americans to be traveling to Cuba, for expanding educational, cultural, and professional exchanges between the U.S. and Cuba, and for American companies to be competing in Cuba.  It is not a time to return to a failed policy of threats and ultimatums, driven by domestic politics rather than by what is in our national interests.”

“That is why I am cosponsoring the Freedom to Export to Cuba Act.  And it is why I intend to support other bipartisan legislation to replace our failed Cuba policy with one that serves America’s interests, not the interests of a shrinking minority, and not the interests of Russia and other countries that are reaping the economic benefits of our self-defeating policy of isolation.”

Reaction

I concur in the rationale and conclusion of this speech: end the U.S. embargo of Cuba.

While I believe there is valid documentation of the Senator’s assertion that Cuba has limits on free speech and assembly, he views this in isolation from Cuba’s situation. Cuba is a small country facing the vastly larger and more powerful  U.S., which for many years has had various hostile policies and actions against Cuba, including secret and undercover so-called “democracy promotion” programs on the island. In that context, it should be easy to understand why Cuba is concerned about dissidents and free speech and assembly.  Accordingly reliable U.S. assertions about the abolition of so called “democracy promotion” programs on the island should be a precondition to improving Cuban freedoms of speech and assembly.

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

Senator Leahy,  Statement of Senator Leahy On the Freedom To Export to Cuba Act (Feb. 15, 2019). 

State Department Creates Cuba Internet Task  Force and Suspends Enforcement of Statutory Liability for Trafficking in Certain Cuban Expropriated Property 

This week the U.S. State Department has taken two actions regarding Cuba: (1) creation of the Cuba Internet Task Force and (2) granting another six-month extension of the right of U.S. persons to sue traffickers in U.S. property that was expropriated by the Cuban government.

U.S.’ Cuba Internet Task Force.

On January 23, the U.S. Department of State issued a terse announcement that it “is convening a Cuba Internet Task Force composed of U.S. government and non-governmental representatives to promote the free and unregulated flow of information in Cuba. The task force will examine the technological challenges and opportunities for expanding internet access and independent media in Cuba.” The announcement also stated that the first public meeting of the Task force would be on February 7.[1]

This action was pursuant to President Trump’s June 16, 2017’s National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba that he dramatically signed at a public meeting in the Little Havana district of Miami, Florida. The purpose of that document was to announce various policies “to promote a stable, prosperous, and free country for the Cuban people. . . . [to] channel funds toward the Cuban people and away from a regime that has failed to meet the most basic requirements of a free and just society [and to condemn abuses by the Cuban regime]. . . . [The] Administration will continue to evaluate its policies so as to improve human rights, encourage the rule of law, foster free markets and free enterprise, and promote democracy in Cuba.” (Section 1)[2]

More specifically Section 2 (d) of that Presidential Memorandum stated that the U.S. was to “Amplify efforts to support the Cuban people through the expansion of internet services, free press, free enterprise, free association, and lawful travel.”

The creation of the Task Force was criticized by Michael Bustamante, an assistant professor of Latin American history at Florida International University. He said, “By casting the issue of internet access in an explicitly political frame, it will only create greater obstacles for those U.S. telecom companies that have made inroads toward partnerships with the Cuban side. Measures like these strengthen the hand of those in Cuba for whom the prospect (and reality) of external meddling justifies maximum caution with respect to internal reform.”

Cuba immediately registered strong objections to the creation of this Task Force with good reason.[3]

Granma, the official newspaper of the Communist Party of Cuba, said, “In the past phrases like promoting “’freedom of speech’ and ‘expanding access to the internet in Cuba’ have been used by Washington as a pretext for schemes to destabilize the country using new technologies.”

One of Granma’s journalists, Sergio Gómez, declared, “If the administration of President Donald Trump intends to use new technologies to impose changes in the internal order of Cuba, he chose very old roads that have already demonstrated their ineffectiveness, without mentioning the obvious fact that they violate the laws of the affected country. even those of the United States.” Moreover, the “terrain chosen for the new aggression, Internet, clearly demonstrates what the true objectives of Washington are when it demands ‘ree access’  to the network in the countries that oppose it, while in its territory it maintains a tracking system and accumulation of data about what citizens do on the web.”

Gómez also asserted that the U.S. “shows a clear pattern of the use of social networks and the internet with objectives geopolitical and domination. All part of a doctrine of unconventional war designed to destabilize nations without the direct use of military forces, which has taken root after the failures in the conflicts in Iraq and Afghanistan.”

In another article, Gómez added details about Cuba’s expanded Internet access apparently to reject the implicit premise of the U.S. announcement that Cuba was continuing to suffer from lack of such access. Gomez said, “Cuba, by sovereign decision and to the extent of its economic possibilities, is increasing the access of its citizens to the network of networks. According to information provided by specialist Rosa Miriam Alizada, ‘2017 will be remembered as the boom in the expansion of access to the network in our country, with 40% of Cubans connected to the Internet, 37% more than in 2010, and for the naturalization of the internet connection in urban spaces from one end of the island to the other.’”

Another Cuban journalist with a Doctorate in Political Science from the University of Havana, Randy Alfonso Falcón, reported this was not the first time the U.S. had attempted to use the Internet regarding Cuba. On February 14, 2006, then Secretary of State Condoleezza Rice created the Global Internet Freedom Task Force for “maximizing freedom of expression and free flow of information and ideas, especially in Cuba, Iran and China. The author also asserts that this general strategy was continued in the Obama administration.

Therefore, Falcón believes, “In the face of US action In the Cuban digital public space, our response cannot be merely defensive. We must look forward with a scientifically based vision that mobilizes responses and alternatives from Cuba to the extraordinary ideological and cultural confrontation that arises. Take by assault, from the knowledge, the tools of the new colonizers, build ours and endow them with symbols and emancipating essences.”

Suspension of Right To Sue Over Trafficking in Expropriated Property[4]

On January 24, the day after the creation of the Task Force, the State Department announced that once again it was suspending for six months the right to bring a legal action under Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (a/k/a the Helms-Burton Law).

That Title III in section 302 states, “any person that . . . traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages.”

Since its adoption in 1996, however, Title III has been suspended for consecutive six-month periods by orders of Presidents Bill Clinton, George W. Bush, Barack Obama and now Donald Trump. These suspensions have been made to avoid risking the alienation of U.S. setting legal precedents that contradict other principles of U.S. or international law and opening the door to a potential flood of claims.

John Kavulich, president of the United States-Cuba Economic and Trade Council, said last year that this clause could be “used as a surgical tool to pressure” governments and foreign companies to encourage the Government of Cuba to resolve the 5,913 certified claims that there is in the United States ,” for a total amount of $1.9 billion (with interest).

As previous posts have explained, Cuba recognizes its obligation under international law to pay reasonable compensation for expropriation of property owned by foreigners and in fact has done so for claimants from other countries. Thus, Cuba has conceded the major premise of any I.S. claim for damages for expropriation. In addition, this blog has suggested that the dispute over compensation for expropriation of property owned by Americans be submitted for resolution by an international arbitration tribunal. Presumably the only issue that might be disputed is the value of the property at the time of the expropriation and the amount of interest thereon.[5]

Conclusion

U.S. citizens who support U.S.-Cuba normalization now must see who is appointed to the Cuba Internet Task Force and what it proposes to do. For this blogger, the Task force is based on the erroneous premise that the U.S. may and should unilaterally decide what Internet facilities and access another country should have and unilaterally provide such facilities and technology.  Instead, the U.S. should seek to negotiate bilateral agreements with other countries to cooperate on such issues.

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

[1] U.S. State Dep’t, Creation of the Cuba Internet Task Force (Jan. 23, 2018); Reuters, State Department creates Cuba Internet Task Force (Jan.23, 2018); Torres, Trump administration wants to expand internet access in Cuba, Miami Herald (Ja. 23, 2018).

[2] President Trump Announces Reversal of Some U.S.-Cuba Normalization Policies, dwkcommentaries.com (June 19, 2017).   Surprisingly this Presidential Memorandum is no longer available on the White House website.

[3] Washington creates Internet Task Force to promote subversion in Cuba, Granma (Jan. 24, 2018); Gomez, The United States takes up failed policies towards Cuba, Granma (Jan. 23, 2018); Gomez, United States creates a new Task Force on the Internet for subversion in Cuba, Granma (Jan. 24, 2018).  See also posts cited in the “U.S. Democracy Promotion in Cuba” section of List of Posts to the List of Posts to dwkcommentaries.com—Topical: CUBA.

[4]  U.S. State Dep’t, United States Determination of Six Months’ Suspension Under Title III of Libertad (Jan. 24, 2018); Provision that allows Cuban Americans to sue for confiscated property in Cuba is suspended, Miami Herald (Jan. 24, 2018); Trump suspends for another six months the clause of the Helms Burton that allows expropriation lawsuits, Diario de Cuba (Jan. 24, 2018); Falcón, The US strategy for Cuba in the digital public space, CubaDebate (Jan, 24, 208).

[5]  See Resolution of U.S. and Cuba’s Damage Claims, dwkcommentaries.com (April 6, 2015); Resolving U.S. and Cuba Damage Claims, dwkcommentaries.com (Dec. 13, 2015).

 

 

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

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

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

President Obama’s Veto Message

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

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

Reactions to the Veto

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

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

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

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

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

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

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

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

U.S. Senate’s Overriding the Veto

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

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

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

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

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

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

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

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

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

U.S. House of Representatives’ Overriding the Veto 

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

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

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

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

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

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

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

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

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

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

White House Reaction to the Overriding of the Veto

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Ta-Nehisi Coates’ Unsatisfactory “Case for Reparations”

840The June 2014 issue of The Atlantic devotes 20 black-bordered pages to “The Case for Reparations” as the lead and cover article by Ta-Nehisi Coates, its national correspondent.

This is a serious subject by an author who has been obtaining some prominence or notoriety this year occasioned by his best-selling book, “Between the World and Me,” which was discussed in a previous post.

Moreover, on September 28, 2015, the MacArthur Foundation awarded one of its prestigious Fellows or “genius” grants to Coates and asserted that he “brings personal reflection and historical scholarship to bear on America’s most contested issues . . . without shallow polemic and in a measured style.” In “The Case for Reparations,” according to the Foundation, “Coates grapples with the rationalizations for slavery and their persistence in twentieth-century policies like Jim Crow and redlining . . . [and] compellingly argues for remuneration for the economic impact on African Americans denied the ability to accumulate wealth or social status for generations. [The article is] deeply felt and intensely researched.”

I, therefore, was expecting a serious discussion of this important issue.

Instead, I was profoundly disappointed in the analysis as well as the quality of the research and writing of this article and strongly disagree with MacArthur’s glowing commentary on the article.

Coates’ Discussion of Reparations

Coates mentions that certain scholars have discussed how reparations might be implemented. One, he says, suggested multiplying the number of African Americans in the population by the difference between white and black per capita income and then presumably paying that difference to each African American each year for a decade or two. Another, Coates reports, proposed a program of job training and public works for all poor people. (P. 69) But Coates does not endorse either one.

Instead Coates hides in generalizations. He says reparations means “the full acceptance of our collective biography and its consequences” and “a revolution of American consciousness, a reconciling of our self-image as the great democratizer with the facts of our history” (p.70).

On the last page of the article (p. 71) Coates becomes more specific by advocating congressional adoption of a bill for a federal study of the issue of reparations that has been offered by Representative John Conyers (Dem., MI) for the last 25 years. Without examining the details of the bill or the arguments advanced for the bill by Conyers, Coates states, “No one can know what would come out of such a [study and] debate. Perhaps no number can fully capture the multi-century plunder of back people in America. Perhaps the number is so large that it can’t be imagined, let alone calculated and dispensed. But I believe that wrestling with these questions matters as much as—if not more than—the specific answers that might be produced. An America that asks what it owes its most vulnerable citizens is improved and humane.”

This is not, as MacArthur suggests, a compelling argument “for remuneration for the economic impact on African Americans denied the ability to accumulate wealth or social status for generations.”

The Conyers’ Bill

An examination of the Conyers bill itself does not buttress the claimed genius of the Coates article. In the current session of Congress this bill is H.R.40: The Commission to Study Reparation Proposals for African Americans Act. A quick examination of the Library of Congress THOMAS website reveals that the bill (in sections 4, 5 and 7) would establish a commission of seven members (three to be appointed by the U.S. President, three by the Speaker of the House of Representatives and one by the president pro tempore of the U.S. Senate) to hold hearings and issue a report of its findings and recommendations.

The key to the bill is section 2(a), which would make the following factual findings that Coates takes most of 20 pages to elucidate:

“(1) approximately 4,000,000 Africans and their descendants were enslaved in the United States and colonies that became the United States from 1619 to 1865;

(2) the institution of slavery was constitutionally and statutorily sanctioned by the Government of the United States from 1789 through 1865;

(3) the slavery that flourished in the United States constituted an immoral and inhumane deprivation of Africans’ life, liberty, African citizenship rights, and cultural heritage, and denied them the fruits of their own labor; and

(4) sufficient inquiry has not been made into the effects of the institution of slavery on living African-Americans and society in the United States.”

Section 2(b) of the bill  then states the commission would examine and report on these factual predicates plus the “de facto discrimination against freed slaves and their descendants from the end of the Civil War to the present, including economic, political, and social discrimination.” With such factual determinations the commission would be charged to “recommend appropriate ways to educate the American public of the Commission’s findings” and “appropriate remedies.”

Representative Conyers’ website  contains a discussion of the bill that at least alludes to the following challenging sub-issues that would face such a commission and that are not examined by Coates: “whether an apology is owed, whether compensation is warranted and, if so, in what form and who should be eligible.”

Resolution for Rectification of Misdeeds Against African-Americans

More importantly, Coates’ article does not mention a resolution (H.Res.194) adopted in 2008 by the U.S. House of Representatives that has lengthy factual preambles about the evils of slavery and Jim Crow. [1] The House in H.Res.194 more importantly also:

  1. “acknowledges that slavery is incompatible with the basic founding principles recognized in the Declaration of Independence that all men are created equal;”
  2. “acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow;”
  3. “apologizes to African Americans on behalf of the people of the United States, for the wrongs committed against them and  their ancestors who suffered under slavery and  Jim Crow; and”
  4. “expresses its commitment to rectify the lingering consequences of the misdeeds committed against African Americans under slavery and Jim Crow and to stop the occurrence of human rights violations in the future.”

Yes, this is only a resolution by only one chamber of the Congress, but it is closer to the result apparently being advocated by Coates than the Conyers’ bill.

U.S. Presidential Statements About Slavery

H.Res.194 in a preamble asserts that “on July 8, 2003, during a trip to Goree Island, Senegal, a former slave port, President George W. Bush acknowledged slavery’s continuing legacy in American life and the need to confront that legacy when he stated that slavery `was . . . one of the greatest crimes of history . . . The racial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times. But however long the journey, our destiny is set: liberty and justice for all.”[2]

In another preamble H.Res.194 asserts, “President Bill Clinton also acknowledged the deep-seated problems caused by the continuing legacy of racism against African-Americans that began with slavery when he initiated a national dialogue about race.”

Neither of these presidential statements is mentioned by Coates, both of which support his opinion favoring reparations.

Caribbean States’ Reparations Claims

Apparently at least 14 states in the Caribbean are preparing claims for reparations for slavery against their former colonial rulers: Great Britain, France, Spain, Portugal and the Netherlands. Britain’s Prime Minister Cameron recently rejected that reparations idea.[3]

Again there is no mention of these claims by Coates even though they lend credence to his advocacy of similar reparations in the U.S.[4]

Litigation Over Contracts for Deed

Coates leads the article with a lengthy discussion of problems faced by blacks on the west side of Chicago in the 1960’s in financing purchases of homes and as a result being forced to do so on contracts for deed with unscrupulous sellers (pp. 56-59). Coates then enthusiastically endorses these black purchasers’ bringing a federal lawsuit against the sellers for reparations (or money damages). On the next page (p.60), however, Coates tells the reader, without any citation of source, that in 1976 the black plaintiffs lost a jury trial supposedly due to anti-black prejudice of the jury and even later in the article (p.67) he says that as a result of the lawsuit some of the plaintiffs were allowed to own their homes outright while others obtained regular mortgages.

Coates, however, fails to mention that according to a secondary source from the University of Illinois-Chicago, the west-side case went to trial in the Spring of 1976, and in November 1979, the jury decided that the sellers had taken advantage of the buyers for higher profits, but that the sellers were so ruthless they would have cheated anyone, not only blacks, and, therefore, the jury rejected the racial discrimination claim, and the plaintiffs’ lawyers decided not to appeal this decision.

That same secondary source reports that a related case from the south side of Chicago went to trial in 1972 before a federal district judge with a jury. At the close of the evidence, the court directed a verdict against the plaintiffs saying that they had not proved a prima facie case of discrimination. On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed and remanded for a new trial. That new trial occurred in 1979, without a jury, before a district judge who decided in favor of the defendants, and the Seventh Circuit affirmed.

Clyde Ross was prominently mentioned at the start of the Coates’ article about the housing discrimination that led to the above litigation, and after the publishing of the Coates article, Ross said in an interview, “I don’t know why we would even discuss [reparations] . . .when that would never happen. It involves taking money, property, from other people, from the people with power and wealth. How could that ever come to be? In theory, yes it is a good idea, but it’s better to be practical. I support equality under the law. I just want to be able to pay off a mortgage knowing that I am getting the same deal as the white guy. That’s all I ask.”

Coates also did not uncover in his research the successful Minnesota lawsuit in the 1920’s by a black couple against white landlords who after accepting contract-for-deed payments for 25 years denied the couple possession of the Minneapolis house on the false assertion that their payments were only rent. The couple’s attorney, by the way, was Lena Olive Smith, the state’s first black female lawyer who became the leader of the city’s NAACP branch in the 1930s.

Conclusion

I am not a scholar of race relations in the U.S. or of reparations generally or in the U.S. specifically. The above discussion of facts that apparently were not discovered by Coates was based upon this blogger’s perfunctory Internet searching.

The Coates article also is difficult to read because of the lack of an introduction and conclusion and of any headings or subdivisions amidst the parade of often densely packed paragraphs that do not follow in a logical order.[5]

This blogger as a retired lawyer might be seen as engaging in an inappropriate  lawyerly criticism of the Coates’ article. But Coates presumably is advocating for others to embrace the conclusion that reparations are a necessary response to a major societal problem. As an advocate, he should write to be more persuasive.

This blogger as a white American is supportive of civil and human rights generally and is willing to consider a well-written and documented case for U.S. reparations for slavery and Jim Crow. Unfortunately the Coates article does not do that. It needs additional research and a major rewrite. (As always, I invite others’ comments of agreement or disagreement.)

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

[1] U.S. House of Reps., 110th Cong., 2nd Sess.,  H.Res.194 (July 29, 2008)..As February 23, 2007, was the bicentennial of the British Parliament’s abolition of slave trading, the 110th U.S. Congress (2007-2009) had 150 bills and resolutions that mentioned the word “slavery,” but this blog has not “drilled down” to determine their details.

[2] President Bush Speaks at Goree Island in Sengal (July 8, 2003)

[3] E.g., Search for “slavery,” Guardian; Bilefsky, David Cameron Grapples with Issue of Slavery Reparations in Jamaica, N.Y. Times (Sept. 30, 2015); Assoc. Press, Cameron Provides Caribbean Aid, Rejects Slavery Reparations, N.Y. Times (Sept. 30, 2015); Room for Debate: Are Trans-Atlantic Slave Trade Reparations Due?, N.Y. Times (Oct. 8, 2015).

[4] Coates does mention Massachusetts’ granting a 1783 petition for reparations by a black freewoman; 17th and 18th century Quakers’ granting reparations; the 1987 formation of a National Coalition of Blacks for Reparations in America; the 1993 NAACP’s endorsement of reparations; a lawsuit for reparations brought by Harvard Law School Professor Charles Ogletree, Jr. (without mentioning its details or outcome); and Germany’s reparations to Israel for the Holocaust (pp. 61, 70-71).

[5] The online version of the article added headings I through X, but most of them are quotations from sources in the sections, requiring the reader to dive into the sections to discover their significance. Another post discusses Coates’ “The Black Family in the Age of Mass Incarceration,” The Atlantic (Oct. 2015), which also has chapter headings, most of which do not help the reader.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

More about Coates:

 

Brooks: http://www.nytimes.com/2015/07/21/opinion/david-brookss-letter-to-ta-nehisi-coates-about-race.html

 

Ltrs re column: http://www.nytimes.com/2015/07/21/opinion/david-brookss-letter-to-ta-nehisi-coates-about-race.html

 

http://www.salon.com/2015/07/17/david_brooks_scolds_ta_nehisi_coates_i_think_you_distort_history/

 

http://crooksandliars.com/2015/07/dont-be-fooled-all-forelock-tugging-david

 

http://talkingpointsmemo.com/livewire/david-brooks-nyt-ta-nehisi-coates

 

http://talkingpointsmemo.com/cafe/ta-nehisi-coates-david-brooks-american-dream

 

http://jezebel.com/listening-to-ta-nehisi-coates-whilst-snuggled-deep-with-1718506352

 

http://www.alternet.org/media/david-brooks-relies-ignorant-white-privilege-attack-ta-nehisi-coates-new-book

 

http://townhall.com/columnists/marknuckols/2015/07/17/tanehisi-coates-cheers-deaths-of-911-rescuers-david-brooks-apologizes-for-being-white-n2026881

 

http://aaihs.org/ta-nehisi-coates-david-brooks-and-the-master-narrative-of-american-history/

 

http://www.citypaper.com/arts/books/bcp-072915-books-coates-gunnery-20150724-story.html

 

https://www.thewrap.com/new-york-times-columnist-david-brooks-blasted-for-white-privilege-letter-to-ta-nehisi-coates/

 

http://flavorwire.com/528823/the-american-dream-david-brooks-loves-so-much-is-rich-white-americas-greatest-tool-of-social-control