New Cuba Constitution Draft Recognizes Right to Private Property

Since Cuba’s election of a new president this past April, an official commission has been drafting a new constitution for the island nation. Recently, the commission presented the draft to the 7th Plenum of the Central Committee of the Party and the Council of State, in which each of its precepts was “deeply analyzed.” On July 21-23 the draft will be presented for approval to Cuba’s national assembly (the National Assembly of the People’s Power), and later this year to the people in a national referendum.[1]

On July 14, an official website of the Communist Party of  Cuba, published a summary of the current draft of the new constitution that said it recognized both a free market and private property. More specifically, it said the draft “ratifies constitutionally the importance of foreign investment for the economic development of the country, with due guarantees. Regarding private property on the land, a special regime is maintained, with limitations on its transmission and the preferential right of the State to its acquisition through its fair price.”

On the other hand, this summary reaffirmed that state enterprise and central planning are the pillars of the economy and that the Communist Party would remain as the dominant political force.

Cuba expert Luis Carlos Battista at the Washington-based Center for Democracy in the Americas cautioned that the acknowledgement of private property did not mean the government wanted to give private enterprise a greater role. Last week, he noted, the government published a set of regulations tightening control on the self-employed and hiking possible fines to include property confiscation.[2]

Other changes in the draft are the creation of the position of prime minister as the head of government, making the president the head of the national assembly with a limit of two consecutive five-year terms and creating a new presumption of innocence in the criminal justice system. It will maintain religious freedom.

In addition, the draft expressly calls for “the promotion of respect for international law and multipolarity among States; the repudiation of all forms of terrorism, particularly State terrorism; the rejection of the proliferation and use of nuclear weapons, of mass extermination or others with similar effects; the protection and conservation of the environment and the fight against climate change, as well as defends the democratization of cyberspace and condemns its use for subversive and destabilizing purposes of sovereign nations.”

The proposed new constitution, according to Cubadebate, was made necessary by “the experience of the years of the revolution [since 1959], the new directions drawn from the implementation of the guidelines for Economic and Social Policy approved by the Sixth Party Congress [in 2011], the objectives emanating from the First National Conference [of the Party in 2012], as well as the decisions adopted in the Seventh Party Congress [in 2016].”[3]

The commission is headed by Raúl Castro while one of its members is the new president, Miguel Diaz-Canel.

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[1]  Know the main aspects of the Draft of the new Constitution, Cubadebate (July 14, 2018); Reuters, Communist-Run Cuba to Recognize Private Property in New Constitution, N. Y. Times (July 14, 2018); Assoc. Press, Cuba to Reshape Government With New Constitution, N.Y. Times (July 14, 2018).

[2]  See these posts and comments on dwkcommentaries.com: Cuba announces New Regulations for Private Business (July 10, 2018); More Details on New Cuban Regulations on Private Business (July 11, 2018);  Comment: Yet More Details on New Cuban Regulations on Private Business, (July 13, 2018).

[3] See these posts to dwkcommentaries.com: Raúl Castro Discusses Cuba-U.S. Relations in Report to Seventh Congress of the Communist Party of Cuba (April 18, 2016); Raúl Castro Discusses Scio-Economic Issues in Report to Seventh Congress of the Communist Party of Cuba (April 19, 2016); Conclusion of Seventh Congress of Communist Party of Cuba (April 20, 2016).

Miami-Area Cuban-Americans Press for U.S. Indictment of Raúl Castro

As discussed in an earlier post, on May 22, 2018. two Cuban-American politicians—U.S. Senator Marco Rubio (Rep., FL) and U.S. Representative Mario Diaz-Balart (Rep., FL)–asked President Trump to have the U.S. Department of Justice investigate whether the U.S. could and should indict Raul Castro, Cuba’s former President, for the deaths of four Americans in Cuba’s 1996 shooting down close to Cuban air space of  two U.S. private planes engaged in the private mission of Brothers To The Rescue (“BTTR”).

Now, according to the Miami Herald, some Cuban exile groups and their political allies have begun to intensify a campaign for such an indictment. Such groups include Inspire American Foundation, the Assembly of Cuban Resistance (Asamblea de la Resistencia Cubana) and Directorio Democrático Cubano[1]

 Congressional Hearing on Possible Indictment[2]

One step in this direction was a June 20 hearing on “Holding Cuba Leaders Accountable” by the House Oversight Committee’s National Security Subcommittee, which is chaired by Representative Ron DeSantis (Rep., FL), who has been endorsed by President Trump for the Republican nomination for Florida governor and who has made free Cuba one of his major campaign causes.

Four of the witnesses were supportive of such an indictment:  Roger F. Noriega, a Visiting Fellow at the conservative American Enterprise Institute; Jason L. Poblete, a private-practice attorney in Alexandria, Virginia; and two relatives of two of the Americans killed in the 1996 plane crash (Ms. Ana Alejandre Ciereszko and Miriam de la Peńa). Disagreeing with this position was the other witness, William LeoGrande, an American University professor and a student of U.S.-Cuba relations.

After the hearing, Representative DeSantis said he supported such an indictment.[3]

Noriega Testimony[4]

Although Noriega did not directly endorse an indictment of Raúl Castro, he laid out what he thought were facts that would be a predicate for such an indictment: Fidel Castro admitted that he and Raúl orchestrated the attack on the two U.S. private planes and that Raúl personally ordered the attack.

Poblete Testimony[5]

 Attorney Poblete urged the Departments of Justice and State “to move swiftly by indicting Raúl Castro” for the shooting down of the BTTR planes in 1996. His other recommendations: (a) “declassify all records that can be declassified related to the [BTTR] Shoot down;” (b) indict “other international outlaws who have harmed American citizens;” (c) “create an Inter-Agency Task Force to track Down international outlaws in the Americas;” (d) “seek International cooperation to hold Cuban criminals accountable;” (e) “known violators of fundamental rights must not be allowed access to the [U.S.];” (f) “conduct and publish a bottom-up review of Obama and Bush Administration Cuba policy:” (g) consider establishing a Special International Criminal Tribunal for Cuba and the Americas for “atrocity crimes and other gross violations of human rights:” and (h) “take all reasonable steps to ensure the safety of American citizens posted at the U.S. Embassy in Havana” and “cooperate with defense teams representing victims.”

 LeoGrande Testimony[6]

 “With regard to seeking criminal indictments against Cuban officials for human rights abuses, even if there were legal grounds for securing such indictments, the accused could not be brought to trial because Cuban law prohibits the extradition of Cuban nationals. In 1982, four Cuban officials were indicted in Florida for narcotics trafficking, and the only effect of those indictments was to delay the establishment of counter-narcotic cooperation between the [U.S.] and Cuba until the late 1990s. In 2003, the two Cuban pilots responsible for shooting down the [BTTR]  planes were indicted in Florida, along with their commanding general, on a variety of charges, including murder. That case had not progressed either.”

“Pursuing human rights indictments today might be symbolically satisfying to some, but it would only serve to poison the atmosphere of bilateral relations and impede existing law enforcement cooperation, which has been improving. That would endanger our ability to secure the extradition of U.S. nationals who commit crimes here and then flee to Cuba, and our ability to pursue the prosecution in Cuba of Cuban nationals for crimes committed in the United States. These are areas in which there has been significant progress since 2014, progress that has continued despite the Trump administration’s decision to back away from the normalization of relations.”

“Cuba today is going through a process of change, both in its leadership and in its economy. The old generation that founded the regime is leaving the political stage—most are already gone. At the same time, Cuba is trying to move from the old Soviet-style economic system to some version of market socialism like Vietnam and China. Economic reform is providing Cubans greater economic freedom and, if it succeeds, it could raise their standard of living significantly. U.S. policy ought to facilitate that change, not impede it. Ultimately the people of Cuba will determine their nation’s future and decide issues of accountability. If the United States wants to have a positive influence on these developing changes, it has to be engaged, not sitting on the sidelines.”

“Whether your principal concern is human rights, or compensation for nationalized U.S. property, or the return of U.S. fugitives, or Cuba’s support for the failing regime in Venezuela, there is no chance of making progress on any of those issues with a policy of hostility that relies exclusively on sanctions—especially when no other country in the world observes those sanctions. The historical record is clear that sanctions only work when they are multilateral. Moreover, our current economic sanctions targeting the whole Cuban economy, rather than specific individuals, harms the living standards of ordinary Cubans. That is why the last three Popes, including John Paul II, who was no friend of communism, opposed the embargo.”

“Moreover, as we back away from engagement with Cuba, China and Russia are rushing in to fill the vacuum.”

After the hearing, LeoGrande said he had been contacted by a Democratic staff member to testify and was told his testimony should center on the value of engagement with Cuba. “I didn’t realize the sole purpose of the subcommittee hearing was to launch a campaign to indict Raúl Castro,” he said. “The hearing was political theater.”[7]

Conclusion

Nothing happened at this congressional hearing to change this blogger’s assessment of the issue of whether the U.S. should indict Raúl Castro for his alleged involvement in the 1996 crash of two private U.S. planes.[8] The U.S. should not do so for the following reasons:

  1. The BTTR was not “a humanitarian organization,” at least with respect to the private planes it had flown to Cuba.
  2. The BTTR did not “operate rescue missions to search for Cubans who fled the island by sea.”
  3. Instead the BTTR, at least from 1994 through early 1996, operated to harass the government of Cuba by dropping anti-Castro leaflets over Cuba itself.
  4. On February 24, 1996, the Cuban Air Force was provoked by the BTTR flights that day and previously.
  5. Prior to July 24, 1996, the Cuban Government repeatedly sought the assistance of the U.S. Government to stop the BTTR flights to Cuba.
  6. The U.S. Government, however, did not adequately attempt to stop BTTF flights to Cuba.
  7. Yes, the U.S. in 2003 indicted the head of the Cuban Air Force and the two Cuban pilots of the jet fighter planes that shot down the two private planes flown by BTTR pilots on February 24, 1996, but nothing has happened in that case because the Cuban defendants have not been in the U.S.
  8. Yes, the U.S. in 1998 indicted the Cuban Five for various crimes, even though they were not personally involved in the shooting down of the two BTTR planes on February 24, 1996, and they were convicted and sentenced to U.S. prison for long periods of time. By December 2014, two of them had completed their sentences, been released from U.S. prisons and returned to Cuba, and on December 17, 2014, the remaining three’s sentences were commuted to time served (16 years including pretrial detention) by President Obama and they also were released from U.S. prison and returned to Cuba while Cuba simultaneously released U.S. citizen Alan Gross and another man who had spied for the U.S. from a Cuban prison and returned them to the U.S.
  9. The release of the remaining three of the Cuban Five on December 17, 2014, was part of the praiseworthy overall U.S.-Cuba agreement to embark on the path of normalization of relations. It was not, as the Rubio/Diaz-Balart letter states, part of the shameful “appeasement policy.”[8]
  10. There never has been any contention that Raúl Castro was involved in any way in the downing of the two BTTR planes in February 1996. Instead Rubio and Diaz-Balart allege that at the time Raúl was Minister of the Revolutionary Armed Forces and thus presumably in overall charge of everything involving the Cuban Air Force.
  11. now nearly 87 years old and no longer Cuba’s President, Raúl Castro is still Secretary of the Communist Party of Cuba and has retired to Santiago de Cuba at the eastern end of the island. Presumably he will not be coming to the U.S. in the future, especially if he were to be indicted as Rubio and Diaz-Balart suggest.

In short, the suggestion that Castro be indicted is a cheap, unfounded political trick only designed to continue to stroke the egos of the Cuban-Americans in Florida who cannot forget and forgive the past. The U.S. should not waste time and money on such a wild-goose chase.

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[1]  Whitefield, Campaign intensifies to indict Raúl Castro for deadly 1996 shoot-down of exile planes, Miami Herald (June 27, 2018).

[2]   House Comm. on Oversight & Government Reform, Subcommittee on National Security, Hearing: Holding Cuban Leaders Accountable (June 20, 2018).

[3] After the hearing. Representative DeSantis announced that he supported an indictment of Raúl Castro. (Crabtree, DeSantis joins call for Trump to indict Raul Castro, FoxNews (June 25, 2018).

[4] Noriega, Time  to Confront Cuba’s International Crime Spree  (June 20, 2018)   In the George W. Bush Administration, Noriega was Assistant Secretary of State for Western Hemisphere Affairs and then Ambassador to the Organization of American States.

[5] Poblete, Prepared Remarks for House Committee on Oversight and Government Reform Subcommittee on National Security (June 20, 2018).

[6] LeoGrande, Testimony Before the Subcomm. on National Security, Comm. on Oversight and Government Reform (June 20, 2018).

[7]  Whitefield, Campaign intensifies to indict Raúl Castro for deadly 1996 shoot-down of exile planes, Miami Herald (June 27, 2018).

[8] Should U.S. Indict Raúl Castro for 1996 Downing of Cuban-American Planes?, dwkcommentaries.com (May 27, 2018).

 

U.S. Statement About Cuba at Organization of American States’ General Assembly     

At the June 4 meeting of the General Assembly of the Organization of American States (OAS), U.S. Secretary of State Mike Pompeo made remarks primarily addressing Venezuela. But he also made comments about Cuba.

Comments About Venezuela[1]

The Secretary of State said, “there is no greater challenge today than the full-scale dismantling of democracy and the heartbreaking humanitarian disaster in Venezuela. While the [U.S.] welcomes the release of the unjustly imprisoned Holt family, our policy towards Venezuela remains unchanged. The [U.S.] stands steadfast in support of the Venezuelan people and their efforts to return to democracy. The Maduro regime’s efforts . . .  to move towards unconstitutional government and its human rights abuses are now well known by all. All these actions have, among other ill consequences, resulted in an unconstitutional alteration of Venezuela’s constitutional order.”

“On more than one occasion, Venezuela has squandered opportunities to have the kind of dialogue that the [OAS] charter calls for. We seek only what all the nations of the OAS want for our people: a return to the constitutional order, free and fair elections with international observation, and the release of political prisoners. The regime’s refusal to take meaningful action on these issues has demonstrated unmistakable bad faith and exhausted options for dialogue under current conditions. Just two weeks ago, the Venezuelan Government staged sham elections that offered no real choice to Venezuelan people and its voters. Many of them responded sensibly by simply staying home.”

“For all of these reasons, Vice President Pence challenged member-states last month to do what the Democratic Charter asks of us when faced with an unconstitutional interruption in democratic order of a member-state: suspend Venezuela from this body. That suspension is not a goal unto itself. But it would show that the OAS backs up its words with action. And it would send a powerful signal to the Maduro regime: Only real elections will allow your government to be included in the family of nations.”

“In addition to suspension, I call on fellow member-states to apply additional pressure on the Maduro regime, including sanctions and further diplomatic isolation, until such time as it undertakes the actions necessary to return genuine democracy and provide people desperately needed access to international humanitarian aid.”

In response, Venezuela’s Foreign Minister Jorge Arreaza defiantly criticized the OAS as part of a “corporation” led by the U.S.  to undermine Venezuela’s sovereignty. He accused the U.S. of fostering violence that has accompanied protests and the deprivation caused by sanctions and mocked U.S. offers of humanitarian aid. “You impose economic sanctions, and then you offer your help to wash your hands.  The U.S. has been perpetrating a coup d’état against Venezuela for 20 years.”

Vowing not to buckle under to the pressure, Arreaza added, “We are free. We are sovereign. And no imperialist will intervene in our country and hinder our people from voting for their own authorities and having their own democracy. “We have moral authority. You do not have moral authority,” he said, citing U.S. invasions of Panama in 1989 and the Dominican Republic in 1965.

 Draft Resolution on the Situation in Venezuela[2]

The U.S. along with Argentina, Brazil, Canada, Chile, Mexico and Peru submitted a draft  Resolution on the Situation in Venezuela, which presumably will be voted upon at the June 5 session of the OAS General Assembly. After the preamble, it contains the following resolutions:

  1. “To declare that the electoral process as implemented in Venezuela, which concluded on May 20, 2018, lacks legitimacy, for not complying with international standards, for not having met the participation of all Venezuelan political actors, and for being carried out without the necessary guarantees for a free, fair, transparent and democratic process.”
  2. “To reaffirm that only through a national dialogue with the participation of all Venezuelan political actors and stakeholders can national reconciliation be achieved and the necessary conditions agreed upon for holding a new electoral process that truly reflects the will of the Venezuelan citizens and peacefully resolves the current crisis in that country.”
  3. “To reiterate that an unconstitutional alteration of the constitutional order of the Bolivarian Republic of Venezuela has occurred, as stated in [OAS] resolution CP/RES. 1078 (2108/17) of April 3, 2017.”
  4. “To urge the Government of Venezuela to take steps to guarantee the separation and independence of the constitutional branches of power and restore the full authority of the National Assembly, the rule of law, and the guarantees and liberties of the population.”
  5. “To urge the Government of Venezuela to allow the entry of humanitarian aid and to implement epidemiological surveillance measures in its country to prevent the aggravation of the humanitarian and public health crisis, particularly against the reappearance of diseases such as measles, malaria, and diphtheria”
  6. “To invite the member states to implement measures to address the humanitarian emergency in Venezuela, including supplying medicines, as well as considering contributions to the competent international organizations to strengthen the institutional capacities of the recipient countries.”
  7. “To instruct the Permanent Council to identify, in coordination with the relevant inter-American and international institutions, the appropriate measures to support the member states that are receiving an increasing number of Venezuelan migrants and refugees.”
  8. “To call upon the member and permanent observer states to implement, in accordance with their respective legal frameworks and applicable international law, the measures deemed appropriate at the political, economic, and financial levels to assist in the restoration of democratic order in Venezuela.”
  9. “To remain seized of the situation in Venezuela in order to support diplomatic actions and additional measures that facilitate the restoration of democratic institutions and social peace, and that promote full respect for human rights and full adherence to the rule of law, within the constitutional framework of Venezuela and in a manner consistent with its international obligations and commitments.”
  10. “To apply, in strict accordance with the letter and spirit of the Inter-American Democratic Charter, the mechanisms for the preservation and defense of representative democracy provided under its Articles 20 and 21.”

Comments About Cuba[3]

In  the Secretary of State’s June 4 address to the General Assembly, he had the following words about Cuba: “In Cuba today, we see an expectation that change is inevitable and that it can’t come quickly enough. Young Cubans born under a dictatorship are uninterested in hollow revolutionary slogans. They demand educational opportunities free from political constraints or a totalitarian regime’s repression. They want what youth everywhere else wants: opportunities to use their talents, to exercise their voice, achieve their potential, and build a bright future for themselves. As democratic societies, we must support young people in Cuba and elsewhere in the hemisphere in their hopes for democratic change.”

The day before the OAS General Assembly. Ambassador Carlos Trujillo, the U.S. Permanent Representative to the  OAS, appeared at a meeting organized by Freedom House and made these comments about Cuba. He “acknowledged that the Venezuelan case has stolen the role of other crises such as Cuba and Nicaragua, and . . . [suggested] that the organization should follow the same steps with Havana as with Caracas.” He also indicated that the agency must work to denounce “the crimes against humanity” that the Cuban Government has committed.

’’Why Cuba does not deserve the same as what we are demanding from the regime of (President of Venezuela, Nicolás] Maduro? Why Cuba is different? It is something that has to change, it has to change in the OAS.’”

According to Trujillo at this meeting, the countries of the Americas have to “accept that Cuba is ‘he mother of all evil’ in terms of the weakening of democracy on the continent and human rights violations.” Therefore, “If we talk about Venezuela and we talk about human rights abuses, we have to talk about Cuba.” This meant, he said, the OAS must  denounce “the crimes against humanity” that the Cuban Government has committed.”

These comments by Trujillo echo what he said in early May in a Univision program. Then he said “Raul Castro should be tried for his crimes against human rights”, visible through the history of Cuba, “I personally, and the US, are available to do everything possible so that the victims of Raúl Castro, of the Castro brothers, have the justice they deserve,”[4]

Conclusion

 The above comments by Ambassador Trujillo are completely undiplomatic and inappropriate. They should not have ben uttered, especially since apparently there is no resolution regarding Cuba to come before the OAS General Assembly. His words as a Cuban-American attorney from Miami reveal his lack of any prior diplomatic experience and his having been an Ambassador for only one month.[5]

Instead tomorrow we will see the voting on the above resolution about Venezuela.

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[1] U.S. State Dep’t, [Secretary of State] Remarks at the General Assembly of the Organization of American States (June 4, 2018); Lee, US renews call for OAS to suspend Venezuela, Wash. Post (June 4, 2018); Reuters, U.S. Calls on OAS to Suspend Venezuela From Organization, N.Y. Times  (June 4, 2018); Morello, Pompeo calls for kicking Venezuela out of OAS and more sanctions, Wash. Post (June 4, 2018).

[2] OAS Gen. Assembly, Draft Resolution on the Situation in Venezuela (June 4, 2018).

[3] U.S. State Dep’t, [Secretary of State] Remarks at the General Assembly of the Organization of American States (June 4, 2018).

[4] Carlos Trujillo: The members of the OAS have to ‘accept that Cuba is the mother of all evil,’ Diario de Cuba (June 4, 2018); Carlos Trujillo: ‘Raúl Castro must be tried for his crimes against human rights,’ Diario de Cuba (May 7, 2018).

[5] More Hostile Comments About Cuba from U.S. Vice President Mike Pence and U.S. Ambassador to the Organization of American States, dwkcommentaries.com (May 9, 2018).

A Pessimistic Assessment of Cuba’s Economic Future

Jorge G. Castañeda, the Foreign Minister of Mexico from 2000 to 2003,[1] has rendered a pessimistic assessment of Latin American socialism, especially in Venezuela and Cuba.[2]

He starts with the assertion that the recent “Cubana de Aviación airliner’s crash in Havana . . . [was an] illustration of the utter bankruptcy of the 21st century socialism.” Later in the article he says, like “the Cuban economy, the plane was old, poorly maintained, leased by the national airline because it was the only one it could afford, and the rest of Cubana de Aviación’s domestic fleet had already been grounded.” (A subsequent article reported that Cubana de Aviación has suspended all domestic flights until September.[3])

Cuba, he says, “paid a heavy price for the initial, and perhaps enduring, successes of its revolution: education, health and dignity. But from the very beginning — with the exception of a few years between the collapse of the Soviet Union and the end of its subsidies to Cuba in 1992 and the advent of Venezuelan support in 1999 — it always found someone to pay the bills. The next option was meant to be the United States. That no longer seems possible.”

Now, with a new president, Cuba “again faces enormous economic and social challenges. They stem from three problems with no solutions.”

“First, says Castañeda, is the fall of tourism from the United States and the new tough line on Cuba adopted by the Trump administration. Through March of this year, the number of visitors from the United States is down more than 40 percent compared with 2017. This is partly because of travel warnings over safety issued by Washington, partly because of new travel restrictions put in place by President Trump [[4]] and because after the initial boom of nostalgic tourism, Cuba is now competing for normal travelers with the rest of the Caribbean. Its beauty and charm do not easily outweigh other destinations’ far superior services and infrastructure, and lower prices. Today myriad start-up businesses — always thought to be too small and numerous to survive — that sprang up for United States visitors are failing as a result of falling tourism.” [5]

Second, according to Castańeda, “American sanctions and Cuban fear of economic reforms have rendered the push for greater foreign investment somewhat futile. After an initial rush of highly publicized announcements, some United States companies have proved reluctant to run risks, particularly given Mr. Trump’s hostility toward all things Obama, and his dependence on Florida for re-election.”

As a result, he continues, the Cuban “economy has stopped growing, scarcities have re-emerged and new opportunities for employment and hard-currency earnings are not appearing. If one adds to this the government’s decision to suspend new cuentapropista or private self-employment permits, it is no surprise to discover that economic prospects are dim.”

Third, “Venezuela is no longer able to subsidize Cuba’s transition to a Vietnam-style socialist economy the way it did before.” In short, Venezuela cannot now provide oil to Cuba at below-market prices and on credit and cannot pay for Cuban doctors, teachers and intelligence personnel, which has been a major source of Cuban export earnings.

Nevertheless, Venezuela is “Cuba’s only unconditional ally in the world.” Hence, the first foreign leader to visit Cuba’s new president, Miguel Diaz-Canel, was Venezuela’s president, Nicolás Maduro, and Diaz-Canel returned the favor by making his first foreign visit to Venezuela.[6]

Now the U.S. is pressing for increased hemispheric sanctions against Venezuela with U.S. Secretary of State Mike Pompeo on June 4 being expected to drop the next shoe in an address to the  General Assembly of the Organization of American States.[7] If any of those anticipated U.S. requests are met, this will increase the pressures on Cuba.

Conclusion

 In partial response to these issues, on June 2 Cuba started the process for revising its constitution with the agenda for an extraordinary session of its national legislature (the National Assembly of People’s Power) including approval of “the process to be followed in carrying out Constitutional Reform and the commission of deputies responsible for drafting and presenting the proposed Constitution of the Republic.”  This first step was the approval of a commission to prepare a draft of a revised constitution that will be headed by Raúl Castro, the former president, Diaz-Canel, the current president, and 31 others. Once the constitutional draft is ready, it is slated to be discussed first by the national legislature and then by the broader population, before being submitted to a referendum.[8]

One of the major anticipated challenges for drafting the new constitution will be validating private ownership of property and businesses while simultaneously upholding the “irrevocable nature of socialism.” Perhaps the selection of Castro as the chair of this constitutional commission is not as anti-economic reform as might appear to outsiders. After all Raúl first announced the need for a new constitution in 2011 after embarking on a series of reforms cautiously opening up the economy to foreign investment and the private sector in order to make Cuban socialism sustainable. And at the Communist Party’s Congress in 2016, Castro praised the innovations of the private sector and criticized the “outdated mentalities” and “inertia” of state-owned enterprises.[9]

Such a change will have to delete or modify a current constitutional clause forbidding Cubans from “obtaining income that comes from exploiting the work of others.” “According to Julio Perez, a political analyst and former news editor at state-run Radio Habana, said “Cuba has to make substantial changes to the constitution that endorse private property, self-employment and cooperatives as part of the Cuban economy.”

Simultaneously there are reports that the government is preparing decrees regarding norms for 2,386 Cooperatives of Credit and Services (CCS), 650 Cooperatives of Agricultural Production (CPA) and 1,084 Basic Units of Cooperative Production (UBPC) operating in the agricultural sector and producing 92% of the island’s food.[10]

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[1] Castañeda now is Associated Professor of Public Service, New York University (NYU) Wagner; Global Distinguished Professor of Politics and Latin American and Caribbean Studies, NYU Faculty of Arts and Science. He also is a former member of the  board of Human Rights Watch and a noted author.

[2] Castañeda, The Bankruptcy of 21st Century Socialism, N.Y. Times (June 2, 2018).

[3] Cubano de Aviación will maintain the suspension of domestic flights at least until September, Diario de Cuba (June 2, 2018).

[4] This blog has criticized the 2017 State Department’s urging Americans to reconsider traveling to Cuba because of the still unresolved medical problems experienced by some U.S. (and Canadian) diplomats in Havana and the U.S. cancellation of individual person-to-person travel to Cuba. (E.g., A New Travel Warning for Americans Traveling to Cuba, dwkcommentaries.com (Sept. 19, 2017); New U.S. Regulations Regarding U.S. Travel to Cuba and Transactions with Cuban Entitles, dwkcommentaries.com (Nov. 8, 2017).)

[5]  As this blog has reported, Cuba’s private sector was flourishing in 2015-2016, but has fallen into hard times as a result of new Cuban restrictions on such enterprises and the decline of American visitors, a result that should be contrary to the normal Republican promotion of entrepreneurship and of a potential challenge to Cuba’s socialism. (See., e.g., Why Is the Cuban Government Trying To Slow Down the Private Sector? dwkcommentaries.com (Aug. 3, 2017).)

[6] E.g., Cuba’s New Leader Praises Maduro in ‘Solidarity’ Visit to Venezuela, N.Y. Times (May 30, 2018); Why did Díaz-Canel make his first state visit as President to Venezuela?, Granma (June 1, 2018).

[7] U.S. State Dep’t, Secretary of State Pompeo to Lead U.S. Delegation to the Organization of American States General Assembly (June 1, 2018).

[8] Reuters, Cuba Set to Launch Constitutional Rewrite to Reflect Reforms, N.Y. Times (June 2, 2018); Raúl will lead the Commission in charge of the project of Constitution of the Republic (+ Video), Granma (June 2, 2018); Díaz-Canel: The new Constitution will take into account the principles of our political system, Granma (June 2, 2018); Deputies will continue meeting following extraordinary session, Granma (June 1, 2018); Romero, Constitutional Reform in Cuba: Priority for ANPP commissions, Cubadebate (June 2, 2018); Assoc. Press, Cuba Forms Commission to Update Soviet-Era Constitution, N.Y. Times (June 2, 2018); Reuters, Raul Castro Appointed to Head Rewrite of Cuba Constitution, N.Y. Times (June 2, 2018).

[9] Raúl Castro Discusses Socio-Economic Issues in Report to Seventh Congress of the Communist Party of Cuba, dwkcommentaries.com (April 19, 2016); President Raúl Castro Affirms Importance of Cuba’s Private Sector, dwkcommentaries.com (July 18, 2017).

[10] The government prepares laws for Cuban agricultural cooperatives, producers of 92% of food, Diario de Cuba (June 2, 2018).

Should U.S. Indict Raúl Castro for 1996 Downing of Cuban-American Planes?

In 1996 in the midst of U.S. private aircraft flights near and over Cuba by Cuban-Americans opposed to the Cuban Revolution, two such planes were shot down by Cuban military planes, and three U.S. citizens and one U..S. resident were killed in the crash.

Now , on May 22, 2018, two Cuban-American politicians—U.S. Senator Marco Rubio (Rep., FL) and U.S. Representative Mario Diaz-Balart (Rep., FL)—have asked President Trump to have the U.S. Department of Justice investigate whether the U.S. could and should indict Raul Castro, Cuba’s former President, for the deaths of the four Americans.

After looking at this request, we will examine what happened in 1966 and in two U.S. criminal cases about this incident. We conclude with an evaluation of the merits of this request

Rubio and Diaz-Balart’s Letter to President Trump[1]

The letter urged the President “to direct the Department of Justice to review whether Raúl Castro should be indicted for the illegal and heinous act of shooting down in international waters two American civilian aircraft flown by Brothers to the Rescue [“BTTR”] on February 24, 1996.”

BTTR, according to Rubio and Diaz-Balart,, was “a humanitarian organization that operated rescue missions to search for Cubans who fled the island by sea.The journey from Cuba is treacherous, and many have perished in the attempt.”

This letter continued, “On February 24, 1996, the Cuban Air Force—unprovoked and without warning—shot-down two unarmed Brothers to the Rescue [“BTTR”] planes in international waters, murdering three American citizens, Carlos Costa, Armando Alejandre, Jr., and Mario de la Peña, as well as one United States legal permanent resident, Pablo Morales.”

Thereafter, the letter says, “a U.S. federal court [in Miami] indicted the head of the Cuban Air Force, General Rubén Martínez Puente, and the two MiG pilots, Lorenzo Alberto Pérez-Pérez and Francisco Pérez-Pérez, on charges of murder.”

The letter also says, “a member of the WASP spy ring ultimately was convicted for conspiracy to commit murder for his role in planning the shoot-down, and was sentenced to life in federal prison.  Shamefully, the previous administration, as part of its appeasement policy, commuted his sentence and let him return to a hero’s welcome in Cuba.  However, the Cuban operative ultimately responsible, then-Minister of the Revolutionary Armed Forces Raúl Castro, was never indicted.”

The letter concludes, “Taking these bold actions would demonstrate to our adversaries that they cannot act with impunity against Americans, and that human rights abusers and criminals will be held accountable for their crimes.  Most importantly, it would send a signal to the Cuban people that the United States will not permit their oppressors to operate without consequences.”

Cuba’s Downing of Two U.S. Civilian Planes[2]

According to the trial evidence in one of the criminal cases mentioned by Rubio and Diaz-Balart, BTTR, an anti-Castro Cuban exile group in Miami, repeatedly and knowingly had violated Cuban airspace since 1994 with the following details:

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

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

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

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

Cuban Spy Network in U.S.[3]

In September 1998 five Cuban men (“The Cuban Five”) were arrested in Miami and indicted for conspiracy to commit murder (of the four men killed on February 24, 1996); conspiracy to commit espionage; conspiracy to commit crimes against the U.S.; use of false identity and documentation; and being unregistered agents of a foreign government.

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

Instead, according to one of the court opinions in their criminal case, they were in the U.S. as agents of the Cuban Directorate of Intelligence and members of its Wasp Network that was organized for espionage in southern Florida. The Network was to gather and report information regarding operations of U.S. military facilities, U.S. political and law enforcement agencies and U.S. nongovernmental organizations supporting regime change in Cuba, including BTTR. To that end, the Five attempted to penetrate the Miami facility of the U.S. Military’s Southern Command while one of the Five obtained employment at the Key West U.S. Naval Air Station and reported information about the Station to the Cuban Government. Their mission also was to stop flights to Cuba by BTRR.

In November 2000, the trial of the Cuban Five started in federal court in Miami and ended in June 2001 with a jury verdict of the Cuban Five’s being guilty on all counts. As none of the Cuban Five had been directly involved in shooting down the airplane in 1996, the key legal issue on the conspiracy to commit murder charge was the U.S. legal principle of conspiracy. Under U.S. law (U.S.C. sec. 1117), “If two or more persons conspire to [murder], and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.” In simple terms, the overt act of shooting down the plane is attributed or imputed to all members of the conspiracy even though some were not directly involved in that act.

In December 2001 (three months after 9/11), the Miami federal court sentenced the Cuban Five to lengthy sentences. In later 2009, after extensive appellate proceedings, the district court reduced the sentence of Guerrero from life to 262 months, of Labanino from life to 30 years and of Gonzalez from 19 years to 18 years.

Two of the Cuban Five  subsequently completed their sentences and were returned to Cuba in 2013 and 2014. On December 17, 2014, as part of the U.S.-Cuba agreement to pursue normalization of relations,  President Obama commuted the sentences of the other three Cubans to time served and released and returned them to Cuba. They are Antonio Guerrero, 56, a U.S. citizen; Ramón Labañino, 51; and Gerardo Hernández, 49.

Criminal Case Against General Martinez Puente and the Cuban Pilots[4]

On August 21, 2003, Cuban General Rueben Martinez Puente, the head in 1996 of the Revolutionary Air Force of the Republic of Cuba, and the two Cuban jet-fighter pilots who shot down the two planes operated by BTTR (Lorenzo Alberto Perez-Perez and Francisco Perez-Perez) were indicted by a federal grand jury in the U.S. District Court for the Southern District of Florida in Miami for conspiracy to kill the U.S. nationals in the February 1996 crash, four counts of murder and two counts of destruction of aircraft.

The three defendants in this case were and are Cuban citizens and apparently were in Cuba at the time of the indictment and have remained there. Thus, on Nov. 10, 2003, the district court entered an order transferring them to its Fugitive File “until such time as the defendants are apprehended.” That is the last entry in this case’s file.

Conclusion

For this blogger, the foregoing objective review of the evidence relating to the letter from Senator Rubio and Representative Diaz-Balart yields the following conclusions:

  1. The BTTR was not “a humanitarian organization,” at least with respect to the private planes it had flown to Cuba.
  2. The BTTR apparently did not “operate rescue missions to search for Cubans who fled the island by sea.”
  3. Instead the BTTR, at least from 1994 through early 1996, operated to harass the government of Cuba by dropping anti-Castro leaflets over Cuba itself.
  4. On February 24, 1996, the Cuban Air Force was provoked by the BTTR flights that day and previously.
  5. Prior to July 24, 1996, the Cuban Government repeatedly sought the assistance of the U.S. Government to stop the BTTR flights to Cuba.
  6. The U.S. Government, however, did not adequately attempt to stop BTTF flights to Cuba.
  7. Yes, the U.S. in 2003 indicted the head of the Cuban Air Force and the two Cuban pilots of the jet fighter planes that shot down the two private planes flown by BTTR pilots on February 24, 1996, but nothing has happened in that case because the Cuban defendants have not been in the U.S.
  8. Yes, the U.S. in 1998 indicted the Cuban Five for various crimes, even though they were not personally involved in the shooting down of the two BTTR planes on February 24, 1996, and they were convicted and sentenced to U.S. prison for long periods of time. By December 2014, two of them had completed their sentences, been released from U.S. prisons and returned to Cuba, and on December 17, 2014, the remaining three’s sentences were commuted to time served (16 years including pretrial detention) by President Obama and they also were released from U.S. prison and returned to Cuba while Cuba simultaneously released U.S. citizen Alan Gross and another man who had spied for the U.S. from a Cuban prison and returned them to the U.S.
  9. The release of the remaining three of the Cuban Five on December 17, 2014, was part of the praiseworthy overall U.S.-Cuba agreement to embark on the path of normalization of relations. It was not, as the Rubio/Diaz-Balart letter states, part of the shameful “appeasement policy.”[5]
  10. There never has been any contention that Raúl Castro was involved in any way in the downing of the two BTTR planes in February 1996. Instead Rubio and Diaz-Balart allege that at the time Raúl was Minister of the Revolutionary Armed Forces and thus presumably in overall charge of everything involving the Cuban Air Force.
  11. now nearly 87 years old and no longer Cuba’s President, Raúl Castro is still Secretary of the Communist Party of Cuba and has retired to Santiago de Cuba at the eastern end of the island. Presumably he will not be coming to the U.S. in the future, especially if he were to be indicted as Rubio and Diaz-Balart suggest.[6]

In short, the suggestion that Castro be indicted is a cheap, unfounded political trick only designed to continue to stroke the egos of the Cuban-Americans in Florida who cannot forget and forgive the past. The U.S. should not waste time and money on such a wild-goose chase.

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[1]  Press Release, Rubio, Diaz-Balart Call for DOJ to Consider Indicting Raúl Castro for Murder of American Citizens (May 22, 2018); Torres, Rubio, Diaz-Balart want investigation of Raúl Castro in 1996 shoot-down of exile plane, Miami Herald (May 22, 2018).

[2] The BTTR flights and the February 1996 crashes, as established by trial evidence, are covered in  U.S. Imprisonment of “The Cuban Five” and Their Releases from U.S. Prison, dwkcommentaries.com (Dec. 31, 2014).

[3] The extensive U.S. litigation in the criminal case against the Cuban Five is reviewed in U.S. Imprisonment of “The Cuban Five” and Their Releases from U.S. Prison, dwkcommentaries.com (Dec. 31, 2014); U.S. and Cuba Embark on Reconciliation, dwkcommentaries.com (Dec. 21, 2014).

[4] Indictment, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL Aug, 22, 2003) Notice to Transfer to Fugitive Status, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL Nov. 10,, 2003); Criminal Docket, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL ) [searched on May 26, 2018].

[5] U.S. and Cuba Embark on Reconciliation, dwkcommentaries.com (Dec. 21, 2014).

[6] The retirement of Raúl Castro: a luxurious estate in Santiago de Cuba, CiberCuba (May 2018).

 

 

 

 

U.S. Current Assessment of Cuban Human Rights

As discussed in a prior post, on April 20, the U.S. State Department released its annual report on the status of human rights in nearly 200 countries around the world. Here is the Executive  Summary of its report on human rights in Cuba in 2017.

Executive Summary

“Cuba is an authoritarian state led by Raul Castro, who is president of the Council of State and Council of Ministers, Communist Party (CP) first secretary, and commander in chief of security forces. The constitution recognizes the CP as the only legal party and the leading force of society and of the state. The government postponed October municipal elections due to recovery efforts related to Hurricane Irma but conducted them in November, although they were neither free nor fair. A CP candidacy commission prescreened all candidates, and the government actively worked to block non-CP approved candidates.”

“The national leadership, including members of the military, maintained effective control over the security forces.”

“The most significant human rights issues included torture of perceived political opponents; harsh and life-threatening prison conditions; politically motivated, sometimes violent, detentions and arrests; a complete absence of judicial independence; arbitrary arrest and detention that was politically motivated and sometimes violent; trial processes that effectively put the burden on the defendant to prove innocence; and political prisoners.”

“ There was arbitrary interference with privacy, including search-and-seizure operations in homes and monitoring and censoring private communications.”

“Freedom of expression was limited to expression that ‘conforms to the goals of socialist society’ with strict censorship punishing even distribution of the Universal Declaration of Human Rights. There were bans on importation of informational materials; strict control of all forms of media; restrictions on the internet, including severely limiting availability and site blocking; restrictions on academic freedom, including punishment for any deviation from the government line; criminalization of criticism of government leaders; and severe limitations on academic and cultural freedom, including on library access.”

“There were restrictions on rights of assembly to those that the government deemed to be “’against the existence and objectives of the socialist state;’ criminalization of gatherings of three or more not authorized by the government, and use of government-organized acts of repudiation in the form of mobs organized to assault and disperse those who assembled peacefully; denial of freedom of association, including refusal to recognize independent associations; restrictions on internal and external freedom of movement; restriction of participation in the political process to those approved by the government; official corruption; outlawing of independent trade unions; compulsory labor; and trafficking in persons.”

“Government officials, at the direction of their superiors, committed most human rights abuses. Impunity for the perpetrators remained widespread.”

Conclusion

I believe that a lot of what this Report says about Cuba is true. But it reflects a common failure of Americans to recognize and appreciate Cuba’s situation. As a relatively poor, small nation, Cuba has faced over the last 59 years a vastly larger, wealthier, stronger United States which has overtly and secretly attempted to impose or encourage regime change on the island. Under those circumstances, it should be easy for Americans to understand why Cuba has sought to control opposition.

 

 

 

 

 

 

Cuba’s Communist Party Admits Errors in Liberalization of Economy 

On March 25-26 the 142-member Central Committee of the Communist Party of Cuba met to discuss the status of economic reforms during President Raúl Castro’s 10-year mandate to open up the economy with greater roles for the private sector and foreign investment.[1] Below is a photograph of the Party’s First Secretary, Raúl Castro, and to his left Miguel Diaz-Canel, the expected next President of the Cuba Council of State.

From 2012 through 2015 the reforms were implemented swiftly with the number of self-employed worked more than tripling to 580,000.

But since then implementation has slowed in the due to the complexity of the process, mistakes in oversight and low engagement of the bureaucracy. Further reforms also were hampered by economic and financial limitations. The Central Committee recognized Cuba lacked a fiscal culture and accountancy tools to make a serious economic analysis as well as difficulties communicating the complex process. This included the absence of a culture of paying taxes.

Now the Party and the Government are reviewing studies on unification of Cuba’s dual currencies and different exchange rates and the National Economic and Social Development Plan through 2030. There will be the implementation of the country’s  self-employment policy after a training process that will include some 580,000 self-employed workers and more than 30,000 public officials.

Raúl Castro said that all Communists needed to confront problems without hesitation, right away; planning more carefully to direct resources to where they are truly needed; and not waiting for solutions from above, but rather contributing creative, rational ideas.

Related to these problems of implementing economic reforms, only this year did Cuba open its first wholesale market for beans, beer, sugar, cigars and other staples for 20 to 30 percent less than the retail prices in the country. It will be open to 35 worker-owned cooperatives in Havana.

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[1]  The Party Central Committee, meeting in its Fifth Plenum, analyzed important issues related to the updating of Cuba’s socio-economic model, Granma (Mar. 27, 2018); Reuters, Cuba’s Communist Party Admits Errors, Slowdown in Reforms, N.Y. Times (Mar. 27, 2018); Assoc. Press, Cuba opens wholesale market to sell basic staples, Wash. Post (Mar. 19, 2018);  Pėrez,  Cuba expanding wholesale markets? (Granma (Feb. 6, 2018). Issues about Cuba’s economy have been addressed in the posts listed in the “Cuban Economy” section of List of Posts to dwkcommentaries–Topical: CUBA.