The Many Skills of an Orchestra’s Music Director

A recent attendance of a rehearsal of the Minnesota Orchestra highlighted for this amateur music-lover the many skills required of an accomplished music director of  a major symphony orchestra. The Minnesota Orchestra’s Osmo Vanskä is such a music director [1] Below is his photograph while conducting.

First, he or she needs to have a thorough knowledge of the wealth of orchestral works in order to help plan an orchestra’s season.

Second, for a specific concert, the music director needs to be intimately familiar with the works on that concert’s program and retrieve or develop how he or she will interpret and conduct each piece, including facial and body movements.

Third, he or she must be able to communicate verbally (in English, for the Minnesota Orchestra) what he wants from each section of the Orchestra. This should be done with all humility and graciousness. At the rehearsal I attended, Vanskä said,”Thank you,” to the Orchestra at the completion of the rehearsal of one of the pieces for the upcoming concerts.

Fourth, at the performance of the pieces at a concert, he or she must be able to have a “stage presence” and bring all of this together for the audience’s enjoyment. When I have attended this orchestra’s concerts, I always have been amazed at Vanskä’s ability by facial and arm gestures and, I assume, by facial expressions I cannot see from the audience, to lead the orchestra in marvelous performances.

The work I heard for 75 minutes of the rehearsal was Tapiola (19 minutes concert performance time) by Jean Sibelius. This is a tone poem capturing the beauty, mystery and magic of the Scandinavian forest and portraying Tapio, the animating forest spirit mentioned throughout the Kalevala, a Finnish epic poem. In the score Sibelius added this preface: “Widespread they stand, the Northland’s dusky forests, Ancient, mysterious, brooding savage dreams; Within them dwells the forest’s mighty God, And wood-sprites in the gloom weave magic secrets.” [2]

It must be mentioned that Finnish-born Vanskä is“renowned internationally for his compelling interpretations of the standard, contemporary and Nordic repertoires and  has led the Orchestra on five major European tours, as well as an August 2018 visit to London’s BBC Proms, and on historic tours to Cuba in 2015 and South Africa in 2018.  In addition, he has led the Orchestra in its award-winning recordings of the complete Sibelius and Beethoven symphonies and the upcoming completion of the recording of the 10 symphonies of Mahler.

As someone who has been on three church mission trips to Cuba and is a close follower and commentator on the U.S. pursuit of normalizing relations with Cuba under President Obama and the unfortunate retreat from those policies by the Trump Administration, I especially was thrilled by the Orchestra’s trip to the island in 2015. [3]   I similarly was thrilled by the Orchestra’s trip to South Africa in 2018, especially after I had seen and heard Mandela at a special program in London’s Westminster Hall in 2001 and by also having visited Cape Town and Robben Island.[4]

Vanskä started his professional musical career as a clarinetist. I fondly recall his beautiful performance of Mozart’s Clarinet Concerto at a benefit concert for displaced Syrians that was organized by some of the Orchestra’s musicians.[5]

In December 2018, the Orchestra announced that Vanskä, now 65 years old,  will leave the Orchestra when his current contract expires in 2022. He said, “I feel at this moment, more than ever in my life, that the Minnesota Orchestra is my own orchestra. And that’s a great feeling. What we have achieved, especially since the lockout, is something very special.”[6]

I join the many Orchestra listeners and patrons in saying he will be sorely missed and difficult to replace.

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[1] Suggestions of other skills of music directors are invited from those who know more about orchestras.

[2] Minn. Orchestra, Program (April 25-27, 2019).

[3] See these posts to dwkcommentaries.com: List of Posts to dwkcommentaries—Topical: CUBAMinnesota Orchestra To Go to Cuba (February 13, 2015); Minnesota Orchestra Goes to Cuba This Week! (May 11, 2015); Minnesota Orchestra’s Trip to Cuba Garners National Recognition (Dec. 17, 2016).

[4]  See List of Posts to dwcommentaries—Topical—South Africa & Mandela. See also these posts to dwkcommentaries.com: Minnesota Orchestra Celebrates the Life of Nelson Mandela ((July 24, 2018); Minnesota Orchestra’s “Celebrating Mandela at 100” Concert (July 29, 2018); Inspirations for Minnesota Orchestra’s South African Tour (Aug. 14, 2018); Minnesota Orchestra’s Concert in South Africa (Cape Town), (Aug. 15, 2018); Minnesota Orchestra’s Other Activities in Cape Town, South Africa (Aug. 16, 2018); Minnesota Orchestra in South Africa (Durban), (Aug. 18, 2018); Minnesota Orchestra in South Africa (Pretoria), (Aug. 20, 2018); Minnesota Orchestra in South Africa (Soweto), (Aug. 24, 2018); Minnesota Singer’s Celebration of Minnesota Orchestra’s Concert in Soweto, (Aug. 29, 2018); Minnesota Orchestra in South Africa (Johannesburg), (Aug. 25, 2018). See also Celebrating the Rhodes Scholarships’ Centennial, (June 21,, 2003); Nelson Mandela Makes Connection with Cecil Rhodes (May 20, 2018). Minnesota Public Television  (tpt) has produced a television program about the Orchestra’s South African tour: Music for Mandela: Minnesota Orchestra in South Africa.The first showing of this program is May 5, 2019, 10:00 p.m. (CDT) on tpt’s Twin Cities station (Channel 2).

[5] Successful Benefit Concert for Displaced Syrians, dwkcommentaries.com (Jan. 7, 2016).

[6] Ross, Conductor Osmo Vanskä to exit Minnesota Orchestra when contract expires, StarTribune (Dec. 8, 2018).

 

Trump Erroneously Says U.S. Is “Full”   

President Donald Trump at an April 5 roundtable on the border at the U.S. Border Patrol station in Calexico, California addressed arriving Central Americans: “Can’t take you anymore. Can’t take you. Our country is full. Our area is full, the sector is full. Can’t take you anymore. I’m sorry.” Two days later he repeated this message in the following April 7 tweet:

  • “Mexico must apprehend all illegals and not let them make the long march up to the United States, or we will have no other choice than to Close the Border and/or institute Tariffs. Our Country is FULL” (Emphasis added.)  [1] 

Trump, however, was wrong in this assertion.[2]

U.S. Needs More Immigrants

 Immediately after the roundtable, U.S. Representative Rep. Pramila Jayapal (Dem., WA) rejected the contention that the U.S. was “full.” She said, “It’s just a ridiculous statement. We have agriculture industries across the country that desperately need workers. We have construction industries in California and in other places that desperately need workers, and immigration has always been not just a question of immigration policy, but who we are as a country.”

A More complete rejection of Trump’s assertion came in an article in the New York Times. It starts by saying this assertion “ runs counter to the consensus among demographers and economists.” This conclusion was documented by the following:

  • The U.S. is a country “where an aging population and declining birthrates among the native-born population are creating underpopulated cities and towns, vacant housing and troubled public finances. . . . Local officials in many of those places view a shrinking population and work force as an existential problem with few obvious solutions.”
  • “In smaller cities and rural areas, demographic decline is a fundamental fact of life. A recent study by the Economic Innovation Group found that 80 percent of American counties, with a combined population of 149 million, saw a decline in their number of prime working-age adults from 2007 to 2017.. . . Local officials in many of those places view a shrinking population and work force as an existential problem with few obvious solutions.” [3]
  • “Population growth in the United States has now hit its lowest level since 1937, partly because of a record-low fertility rate — the number of children born per woman.”
  • “The Congressional Budget Office foresees the American labor force rising by only 0.5 percent a year over the coming decade, about one-third as fast as from 1950 to 2007. That is a crucial reason that economic growth is forecast to remain well below its late 20th-century levels.”
  • “There are now 2.8 workers for every recipient of Social Security benefits, a rate on track to fall to 2.2 by 2035, according to the program’s trustees. Many state pension plans face even greater demography-induced strains.”
  • John Lettieri, president of the Economic Innovation Group, fears a “declining population, falling home prices and weak public finances will create a vicious cycle that the places losing population could find hard to escape.”

One of the solutions to this U.S. problem is creation of “a program of ‘heartland visas,’ in which skilled immigrants could obtain work visas to the United States on the condition they live in one of the counties facing demographic decline — with troubled countries themselves deciding whether to participate.”

Washington Post Editorial

A Washington Post editorial lambasted Trump for his “full” statement. It points out that only a month before these remarks, Trump said, “‘So we’re going to let a lot of people come in because we need workers. We have to have workers.’ And the day after his ‘full’ assertion, the Department of Homeland Security nearly doubled the number of guest worker visas it would issue this year. [4]

The Post editorial then recited the following facts about why the U.S. needs more immigrants:

  • The U.S. “faces a shrinking native-born labor force as baby boomers retire at a rate of 10,000 daily , unemployment reaches historically low levels, and immigration continues to dwindle from Mexico, a traditional source of cheap documented and undocumented employees. In March, the Labor Department reported there were 7.6 million unfilled jobs and just 6.5 million unemployed people, marking 12 straight months during which job openings have exceeded job seekers.”
  • “The labor shortage is sapping growth as well as state and municipal revenue. Small businesses and major corporations have sounded the alarm as the delivery of goods is delayed by a drastic shortage of truckers, and housing prices in some markets are driven up by an inadequate supply of construction workers.”
  • “The deficit is particularly acute in lower-wage jobs, as more and more Americans attend college and are reluctant to take positions in skilled trades and other jobs requiring manual labor. Home health aides who care for the sick and frail are in extremely short supply, as are workers in retail, restaurants and farms. The problem is exacerbated by a fertility rate — the number of children born per woman — that is the lowest since the 1930s. The impact of that decline until now has been partly offset by immigration.”

In short, the Post says, Trump’s “political strategy is a prescription for long-term economic anemia and declining competitiveness.”

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[1] Kim & Perry, ‘Our country is full . . . . So turn around, Trump warns migrants during border roundtable, Wash. Post  (April  5, 2019); Trump, Tweet (April 7, 2019).

[2] Irwin & Badger, Trump Says the U.S. Is ‘Full.’ Much of the Nation Has the Opposite Problem, N.Y. Times (April  9, 2019). This blog also frequently has discussed the U.S. need for more immigrants.  See, e.g., “America’s Farmers Need Immigrants” (March 22, 2019); Businesses Need More Immigrants (March 24, 2019); U.S. Construction Industry Needs More Immigrants (April 3, 2019).

[3] The Economic Innovation Group has published a report on the facts of U.S. population and its impact on economic growth with fascinating U.S. maps showing various population facts. (Economic Innovation Group, From Managing Decline to Building the Future: Could a Heartland Visa Help Struggling Regions?, at 9-10 (April 2019). )

[4] Editorial, The country isn’t ‘full’—and Trump knows it, Wash. Post (April 12, 2019).

 

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.”

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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.

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

Proposed Resolution of U.S.-Cuba Issues

The 60 years of U.S. hostility towards Cuba (with the two-year respite (2014-2016) under President Obama) have left many important unresolved issues.[1] Here is at least a partial list of those issues:

  1. U.S. ending embargo (blockade) of Cuba?
  2. U.S. response to Cuba’s claims for alleged damages from embargo & other acts?
  3. U.S. closing its detention facility at Guantanamo Bay?
  4. U.S. paying Cuba for use of Guantanamo Bay, 1960— ?
  5. U.S. returning Guantanamo Bay to Cuba or entering into new lease of territory?
  6. Cuba paying U.S. persons for expropriated property, 1959-60?
  7. U.S. ending unilateral “democracy promotion” activities in Cuba?
  8. Mutual extradition of the other’s criminal suspects & convicts?
  9. Cuba improving human rights?
  10. U.S. & Cuba resolving responsibility for medical problems of U.S. diplomats in Cuba, 2016-??
  11. U.S. ending or modifying U.S. ban on transactions with certain Cuban entities on the State Department’s “Cuba Restricted List”?
  12. U.S. possible restoration of parole for Cuban medical professionals?
  13. U.S. possible allowance of lawsuits for expropriated Cuban property?
  14. U.S. possible re-designation of Cuba as a “state sponsor of terrorism” due to Cuban military aid to Venezuela?
  15. U.S. possible adoption of other U.S. hostile acts against Cuba proposed by President Trump, National Security Advisor Bolton, Secretary of State Pompeo, Senator Rubio, et al.?

Many of these issues were discussed in the meetings of the two countries in 2015-17 although the substance of the discussions have not been publicly disclosed.

If I were President with a supportive Congress,  I would work for the following comprehensive bilateral resolution:of these issues:

  • U.S. ends embargo (blockade) of Cuba;
  • U.S. ends unilateral “democracy promotion” efforts in Cuba;
  • U.S. closes detention facility at Guantanamo Bay;
  • U.S. pays Cuba for its use of Guantanamo Bay, 1960 to date;
  • U.S. and Cuba enter into new lease of Guantanamo Bay at fair market value rental;
  • U.S. pays Cuba for alleged damages caused by U.S. embargo (blockade);
  • Cuba agrees to pay fair market value, with interest, to U.S. owners of expropriated property (potentially with funds provided by U.S. paying Cuba for past use of Guantanamo Bay; for future use of Guantanamo Bay under new lease; and for alleged damages caused by U.S. embargo (blockade));
  • U.S. abolishes Title III of Helms-Burton Act allowing U.S. owners of expropriated property to sue persons trafficking in property owned by U.S. persons that were expropriated by Cuba (1959-60);
  • U.S. agrees not to reintroduce parole for Cuban professional medical personnel;
  • U.S. agrees not to re-designate Cuba as “state sponsor of terrorism;”
  • U.S. and Cuba enter into new agreement on mutual extraditions;
  • U.S. and Cuba agree on bilateral ways to improve Cuban human rights and Internet access; and
  • U.S. and Cuba resolve issues regarding medical problems of US diplomats in Cuba (2016-??).

The proposal to have the U.S. use some or all of its payments to Cuba for Guantanamo usage and alleged Cuban damages from the embargo for the U.S. to pay for the U.S. claims for Cuba’s expropriations  is based on the painful realization that Cuba does not have the resources to pay for any significant portion of these U.S. claims.

Cuba repeatedly has asserted that the U.S. use of Guantanamo Bay is an illegal occupation and the property should be returned to Cuba. Because of the  U.S. argument to legally have occupied the territory under the 1903 lease and because of U.S. current national security concerns, however, the U.S. would not and should not agree to this Cuban proposal, especially since Cuba is developing closer relationships with Russia and China, which potentially could occupy Guantanamo to enhance their threats to the U.S.

Failure to reach agreement on any of these issues may well result in narrowing the issues, and any unresolved issues should be submitted to a binding international arbitration at the Permanent Court of Arbitration at the Hague in the Netherlands. Based on this blogger’s experience as a corporate litigator in U.S. courts, I note that many cases like the one proposed for arbitration of the Cuban and U.S. claims frequently are settled before they go to trial.

One example of narrowing the issues is Cuba’s recognition with other countries that it has an international legal obligation to pay for expropriated property, which is the major premise of the U.S. claims for expropriated property. That would leave important, subsidiary issues: are the claimants valid owners of the Cuban properties; what were the fair market values of the properties at the time of expropriation; and what is a fair rate of interest on the claims?

I invite anyone with other ideas for a comprehensive bilateral resolution of outstanding issues or objections to my proposed resolution to share them in reasoned comments to this post.

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[1] These issues are discussed in many posts listed in List of Posts to dwkcommentaries—Topical: CUBA.

Russia Is Identified as Suspect of Harming U.S. Diplomats in Cuba 

On September 11, 2018, NBC News exclusively reported that U.S.intelligence agencies have concluded that Russia is “the main suspect” for causing the medical problems of the 26 U.S. diplomats stationed in Cuba. In addition, NBC reports that “the victims [also] include multiple CIA officers, at least one member of the U.S. military, and representatives of other agencies.”[1]

This conclusion is reported to be “is backed up by evidence from communications intercepts, known in the spy world as signals intelligence.” This prompted the U.S. investigation to turn to “the Air Force and its directed energy research program at Kirtland Air Force Base in New Mexico, where the military has giant lasers and advanced laboratories to test high-power electromagnetic weapons, including microwaves. . .  Although the U.S. believes sophisticated microwaves or another type of electromagnetic weapon were likely used on the U.S. government workers, they are also exploring the possibility that one or more additional technologies were also used, possibly in conjunction with microwaves.”

NBC News further reports that although “the U.S. believes sophisticated microwaves or another type of electromagnetic weapon were likely used on the U.S. government workers, they are also exploring the possibility that one or more additional technologies were also used, possibly in conjunction with microwaves, officials and others involved in the government’s investigation say.”

On August 14, “the U.S. convened officials from the Energy Department, the National Institute of Health, the State Department and the Canadian government at the Sandia National Laboratories in Livermore, California, according to State Department medical officials. U.S. experts attending a neurotrauma conference in Toronto were linked in by videoconference as [University of Pennsylvania] physicians presented their most recent technical findings. But the summit ended with no new medical revelations”

“The strong U.S. suspicion that Russia is behind the incidents means that Cuba’s government is no longer considered the likely culprit. Still, officials did not rule out the possibility that the Cuban intelligence services may have offered the Russians some level of cooperation or tacit consent.”

Nevertheless, NBC News said the evidence “is not yet conclusive enough, however, for the U.S. to formally assign blame to Moscow.”

Indeed, on September 11, Heather Nauert, the State Department’s spokesperson, in response to a journalist’s question, said the following: [2]

  • “We have seen . . . a firestorm of reports out there today assigning blame to the Russian Government according to some unnamed U.S. Government officials. I would caution you all to be very skeptical of those officials’ statements right now. As you should be aware, the investigation continues into what has caused. . . – what we have called health attacks on our State Department employees who have been working in Cuba. There is no known cause, no known individual or group believed to be responsible at this time. We are looking into it. Our position has not changed. The investigation is ongoing. We have not assigned any blame and we continue to look into this, so I want to be very clear about this.”

Relevant to the NBC News report is the increase of Cuba-Russia cooperation on various matters in recent years. A noted U.S. expert on Cuba, Professor William LeoGrande, provided the following summary of the recent Cuba-Russia rapprochement:[3]

  • In 2000 “when Putin “succeeded Boris Yeltsin as Russian president,” Putin  “began rebuilding Russia’s global influence by repairing relations with traditional allies.” The first step was “Putin’s 2000 trip to Havana, which resulted in expanded trade deals. . . .”
  • “Raul Castro in 2009 visited Moscow during which the two governments signed 33 cooperative agreements, including $354 million in credits and aid for Havana.“
  • In July 2014, Putin visited the island again and agreed to forgive 90 percent of Cuba’s $32 billion in Soviet-era debt, with the remainder to be retired through debt-equity swaps linked to Russian investments.
  • When Raul Castro returned to Moscow in 2015, Russia had signed agreements to invest in airport construction, the development of the Mariel port and metallurgy and oil exploration, and had also agreed to lend Cuba 1.2 billion euros—about $1.36 billion at the time—to develop thermal energy plants.”
  • In September 2016, Russia announced a new package of commercial agreements in which it will finance $4 billion in development projects focusing on energy and infrastructure, and Cuba will begin exporting pharmaceuticals to Russia.

According to LeoGrande, “Both Havana and Moscow refer to their relationship as a ‘strategic partnership’ that has diplomatic and military components. Diplomatically, Cuba supports Moscow’s positions on Ukraine, Syria and NATO expansion. Militarily, Russia is refurbishing and replacing Cuba’s aging Soviet-era armaments. Russian naval vessels visit Cuban ports, and Russia reportedly wants to establish a new military base on the island.”

Conclusion

Interestingly as of the early morning of September 12, this blogger has not found any published reactions to the NBC News report from Russian or Cuban governments. Nor has there been other reporting or comments from U.S. officials or U.S. or international news organizations.

Be on the outlook for reactions to the NBC News report.

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

[1] NBC News, U.S. Officials suspect Russia in mystery ‘attacks’ on diplomats in Cuba, China (Sept. 11, 2018); Reuters, Russia the Main Suspect in U.S. Diplomats’ Illness in Cuba: NBC, N.Y. Times (sept, 11, 2018).

[2] U.S. State Dep’t, Department Press Briefing—September 11, 2018.

[3] Professor LeoGrande ‘s Comments on the Strengthening Cuba-Russian Relationship, dwkcommentaries (Jan. 3, 2018). See also Trump’s Hostility Towards Cuba Provides Opportunities for Russia, dwkcommentaries.com (Dec. 19, 2017).

Important Questions for Judge Kavanaugh’s Confirmation Hearing 

                                                                                                                                        Judge Brett Kavanaugh, President Trump’s nominee for the U.S. Supreme Court, is supposed to be an “originalist” or someone who bases judicial decisions on the “original” meaning of the U.S. Constitution and statutes. The logic of this philosophy is impeccable. The framers of the Constitution and its amendments and the Congress in statutes make the law and judges seek to ascertain their original intent and then apply the original intent to decide cases.

Thus, some of the important questions for his confirmation hearing revolve around this question: how do you attempt to determine what the original intent of constitutional words or phrases is?

Important guidance on this problem is provided by a recent decision by the U.S. District Court for the District of Maryland regarding the original meaning of the constitutional word “emolument” and by new searchable databases of various writings from the era of the framers of the Constitution.

The Meaning of the Constitutional Word “Emolument”[1]

On July 25, 2018, the U.S. District Court for the District of Maryland denied President Trump’s motion to dismiss the Amended Complaint alleging that his “actual or potential receipt, directly or indirectly, of payments by foreign, the federal, and state governments  (or any of their instrumentalities) in connection with his and the Trump Organization’s ownership of the Trump International Hotel in Washington, D.C.” violates the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.

The key issue for the court in its 52-page well-reasoned and well-written opinion denying the dismissal motion was the original meaning of the world “emolument” in these two constitutional clauses::

  • The Foreign Emoluments Clause. “And no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (U.S. Const., Art I, sec. 9, cl. 8 (emphasis added).)
  • The Domestic Emolument Clause. “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (U.S. Const., Art II, sec. 1, cl. 7 (emphasis added).)

After first reviewing the parties’ different interpretations of the text of these clauses, the court’s opinion began “with a strong presumption that the term ‘emolument’ should be interpreted broadly to mean ‘profit,’ ‘gain,’ or ‘advantage,’ essentially covering anything of value.” (P. 22.)

The court then turned to the “Original Public Meaning”  of the word since the Supreme Court has held that as the Constitution was “written to be understood by the voters at the time,” it is important to consider “the meaning of the term ‘emolument’ against the backdrop of what ordinary citizens at the time of the Nation’s founding would have understood it to mean.” (Id.) This analysis reinforced the court’s strong presumption from the text that the term had a broad meaning. Important in this regard for the court were the broad use of that term in the following (id. at 22-30):

  • An “article by Professor John Mikhail of Georgetown University Law Center in which, following exhaustive research, he concluded that “every English dictionary definition of ‘emolument’ from 1604 to 1806” includes Plaintiffs’ broader definition.”[2]
  • Drafters of state constitutions;
  • Blackstone’s Commentaries on the Laws of England; and
  • The Framers themselves.

Further support for the court’s conclusion was found in Interpretations of the term by the U.S. Office of Legal Counsel  and Comptroller of the United States.

 The Meaning of the Second Amendment’s Right To “Bear Arms”

The Second Amendment to the U.S. Constitution states the following: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Emphasis added.)

The U.S. Supreme Court in  District of Colombia v. Heller, 554 U.S. 570, 576-626 (2008) held, 5-4, that the Second Amendment to the U.S. Constitution protected “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The majority opinion in Heller by Associate Justice Antonin Scalia concluded that the phrase “bear arms” in that amendment “was not limited to the carrying of arms in a militia.” (Id. at 586.)

Disagreement with that conclusion has been voiced by Dennis Baron, Professor of English and Linguistics at the University of Illinois at Urbana-Champaign. The basis for this conclusion is the result of a search for the term “bear arms” in the following two new databases compiled by the Brigham Young University College of Law:[3]

  • The Corpus of Founding Era American English is composed of 96,615 texts with nearly 144 million words (as of 07/29/18) in documents used, 1760-1799, by ordinary people of the day, the Founders, and legal sources, including letters, diaries, newspapers, non-fiction books, fiction, sermons, speeches, debates, legal cases, and other legal materials.
  • The Corpus of Early Modern English, which is composed of 40,300 texts with nearly 1.3 billion words from 1475-1800.

The search of the first database yielded 281 instances of the phrase “bear arms” while the second search produced 1,572 instances. After eliminating about 350 duplicates, there were about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful did not refer to “war, soldiering or organized, armed action.” Therefore, Baron concludes, these databases confirm that the natural meaning of “bear arms” in the framers’ day was connected with militias or the military.

According to Baron, further support for this conclusion is found in the fact that the phrase “bear arms” “has never worked comfortably with the language of personal self-defense, hunting or target practice.” Here, Baron referred to this 1995 comment by historian Garry Wills: “One does not bear arms against a rabbit.”

And in 1840, said Baron, in an early right-to-bear-arms case, the Tennessee Supreme Court stated: “A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

Moreover, Baron pointed out that in the oral arguments  in the Heller case itself, U.S. Solicitor General Paul D. Clement, who was advocating for the invalidity of the District of Colombia gun law, initially said that “bear arms” was meant to carry them outside the home. But he was interrupted by Associate Justice David Souter, who said, “But wait a minute. You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?” Clement responded, “I would say that and so would [James] Madison and so would [Thomas] Jefferson.” But Souter was not persuaded and asked, “In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?” Clement finally retreated with this statement: “Well, I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.” Obviously the phrase is not modified in the Second Amendment.

New Databases of Written Materials from Framers’ Era

In addition to the previously mentioned databases compiled by the Brigham Young University College of Law, a similar project is being undertaken by a legal historian at the University of Chicago Law School, Alison LaCroix , and a linguist, Jason Merchant, the Lorna Puttkammer Straus Professor, Department of Linguistics and Humanities at the University of Chicago. Their project seeks to utilize the vast collection of historical texts available through Google Books to enable users to study in a more rigorous and sophisticated way how language and meaning have changed. This project, Professor LaCroix, said, “meets originalism on its own terms.”[4]

Questions for Judge Kavanaugh

Therefore, this blogger suggests that at the confirmation hearing, Judge Kavanaugh be asked at least the following questions:

  1. How do you attempt to determine the original meaning or intent of a word or phrase in the U.S. Constitution?
  2. What sources do you use in such attempts?
  3. Do you use computer databases of written materials from the framers’ era?
  4. If so, which ones? Why those? How many texts are in those databases?
  5. If not, why not?
  6. Have you ever used the BYU Law School’s Corpus of Founding Era American English?
  7. If not, why not?
  8. If yes, for what issue? Result?
  9. Have you ever used BYU Law School’s Corpus of Early Modern English?
  10. If not , why not?
  11. If yes, for what issue? Result?
  12. If you were confirmed to be an Associate Justice of the Supreme Court, would you be reluctant to overrule one of its own precedents that, in your judgment, erroneously interpreted the original intent or meaning of a constitutional word or phrase?
  13. If you had been on the Court in the 1950’s, for example, would you have been reluctant to overrule Plessy v. Ferguson?
  14. If you are confirmed, would you be reluctant to overrule the Supreme Court’s interpretation of the Second Amendment’s “bear arms” phrase in District of Columbia v. Heller?

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[1] Order, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018); Opinion, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018);  LaFraniere, In ruling against Trump, Judge Defines Anticorruption Clauses in Constitution for First Time, N.Y. Times (July 25, 2018); Racine, Frosh & Eisen, Trump’s Emoluments Trap, N.Y. Times (July 26, 2018); Marimow, O’Connell & Fahrenthold, Federal judge allows emoluments case against Trump to proceed, Wash. Post (July 25, 2018); Barbash, Trump’s ‘emoluments’ battle: How a scholar’s search of 200 years of dictionaries helped win a historic ruling, Wash. Post (July 27, 2018); Editorial, The framers worried about corruption. Their words may now haunt the president, Wash. Post (July 27, 2018). The judge in this case, Senior District Judge, Peter J. Messitte, holds a B.A. degree from Amherst College (1963) and a J.D. degree from the University of Chicago Law School (1966), where he was a classmate of this blogger. He was appointed to the District Court by President Clinton in 1993. In 2008 he took senior status, but carried a full caseload through 2011.

[2] Mikhail, Abstract: The Definition of ‘Emolument” in English Language and Legal Dictionaries, 1523-1806 (June 30, 2017).

[3] Baron, Antonin Scalia was wrong about the meaning of ‘bear arms,’  Wash. Post (May 21, 2018); Brigham Young University Law School, Corpus of Founding Era American English; Brigham Young University Law School, Corpus of Early Modern English; Baron, Guns and Grammar: the Linguistics of the Second Amendment.

[4]  Allen, Alison LaCroix Leads New Law and Linguistics Project, Univ. Chicago Law School News (Feb. 2, 2015).