U.S. House Approves Impediments to U.S.-Cuba Reconciliation

In early June the U.S. House of Representatives approved two appropriations bills that contain impediments to U.S.-Cuba reconciliation. Both of these sets of impediments are the handiwork of Cuban-American Congressman Mario Diaz-Balart (Rep., FL), a fierce opponent of such reconciliation and a member of the House Committee on Appropriations.

Commerce Department Appropriations Act, FY 2016[1]

On June 3, the House, by a vote of 242-183, approved the Commerce, Justice, Science Appropriations bill for FY 2016 (H.R. 2578) to fund the Department of Commerce, the Department of Justice, the National Aeronautics and Space Administration, the National Science Foundation and other related agencies. The bill contains $51.4 billon in total discretionary funding.

The Committee’s press release about this action said nothing about a provision that prohibits U.S. exports to the Cuban military. That is Section 540 (pp. 97-98 of the 98-page bill), which states as follows:

  • “(a) No funds made available in this Act may be used to facilitate, permit, license, or promote exports to the Cuban military or intelligence service or to any officer of the Cuban military or intelligence service, or an immediate family member thereof.
  • (b) This section does not apply to exports of goods permitted under the Trade Sanctions Reform and Export Enhancement Act of 2000 (22 U.S.C. 7201 et seq.).
  • (c) In this section—(1) the term ‘‘Cuban military or intelligence service’’ includes, but is not limited to, the Ministry of the Revolutionary Armed Forces, and the Ministry of the Interior, of Cuba, and any subsidiary of either such Ministry; and (2) the term ‘‘immediate family member’’ means a spouse, sibling, son, daughter, parent, grandparent, grandchild, aunt, uncle, niece, or nephew.”

Representative Sam Farr (Dem, CA) on June 3 made a motion to delete this provision, but it was defeated, 153-273. He argued that section 540 would apply so broadly with its definitions that it would constrain trade with Cuba. He said, “It hurts American businesses, and it hurts Cubans. Let’s stop living in the past.”

Section 540 and the defeated amendment were prominent in Congressman Diaz-Balart’s press release about the House’s passage of this bill. He said, “I strongly support . . . the provision that prohibits exports to the Cuban military. I firmly opposed the [defeated] amendment which would have stripped that common sense provision.”

The provision (Section 540), Diaz-Balart asserted, “ensures that exports to Cuba accomplish precisely that goal [of U.S. goods reaching the Cuban people].  Certainly the supporting of the Cuban people must not include channeling goods to the Cuban military and intelligence service that oppress them through arbitrary arrests, violence, intimidation, and unjust imprisonments.”

Moreover, according to Diaz-Balart, the Cuban military “engages in illegal weapons smuggling, subverts democratic institutions in Venezuela, and assists foreign terrorist organizations and other rogue regimes such as North Korea.  Furthermore, The Florida Congressman asserts, “several Members of the Cuban military remain under indictment for the murder of innocent U.S. citizens. Exports delivered to the Cuban military will do nothing to benefit the Cuban people, but can only directly fund the oppressive arm of the Castro dictatorship that remains a malevolent actor on the world stage.”

Diaz-Balart’s fellow Cuban-American Republican colleague from Florida, Ileana Ros-Lehtinen, another strong opponent of U.S.-Cuba reconciliation, issued a similar statement.

Another provision of the bill (Section 528) prohibits construction or modifying U.S. facilities to accommodate transferred Guantanamo detainees. A motion to delete this provision by Representative Jerry Nadler (Dem., NY) was defeated by a voice vote.

Transportation Department Appropriations Act, FY2016 [2]

The House on June 9, by a 216-210 vote, passed the FY 2016 appropriations bill for the Departments of Transportation, Housing and Urban Development and related agencies (H.R.2577). According to the House Appropriations Committee, it allocates $55.3 billion targeted at transportation, infrastructure and housing programs of national need and significance.

An earlier post quoted sections 193 and 414 of the bill that barred air or maritime travel to Cuba if they used property that had been expropriated without compensation by the Cuban government.[3]

During a June 4 debate on this bill the House defeated, 176-247, an amendment offered by Representative Barbara Lee (Dem., CA), to delete these two sections that adversely would affect the impact of the new regulations issued by the Department of Commerce this January to expand travel. Lee argued theses provisions were “wrong for diplomacy . . .[and] patently anti-business.”

Another supporter of this amendment was Representative Mark Sanford (Rep., SC), the author of a bill to expand U.S. travel to Cuba (H.R.664), who argued that travel to Cuba should not be equated with supporting the Castro regime.

This Cuba provision is also the work of Representative Diaz-Balart, who said on June 4 that the Obama administration was wrong to lift the travel restrictions, saying that the flights would land at an airport that was partly owned by American interests when it was seized by the Castro government.“What you are saying is, ‘It’s O.K. to do business on property that was stolen from Americans.’ ” However, he added, “supporting the Cuban people does not include . . . facilitating the unlawful use of stolen properties that were illegally confiscated from Americans.”[4]

Diaz-Balart’s fellow Cuban-American Republican colleague from Florida, Ileana Ros-Lehtinen issued a similar statement.

The White House has threatened to veto the bill, in part because of this Cuba-related provision.

Conclusion

The congressional Republicans apparently have decided to ignore the desires of a majority of the American people and of Cuban-Americans, as demonstrated by numerous public opinion polls, to have improved relations with Cuba and as discussed in posts on February 12 and 17. Instead, the congressional Republicans apparently have hitched their wagon to the hysterical voices of their Cuban-American members. I deplore this defiance of public opinion.

 

The congressional Republicans also apparently have forgotten the 1964 decision of the U.S. Supreme Court regarding Cuba’s expropriation of property, Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398 (1964). There the court decided that the judicially-created act of state doctrine prevented U.S. courts from adjudicating a claim that the Cuban expropriation violated international law. According to the Court, ”the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.”[5]

Important to that conclusion in Sabbatino was the Court’s opinion that at least in 1964, “There are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state’s power to expropriate the property of aliens. There is, of course, authority, in international judicial and arbitral decisions, in the expressions of national governments, and among commentators for the view that a taking is improper under international law if it is not for a public purpose, is discriminatory, or is without provision for prompt, adequate, and effective compensation.”

However, according to the Court in Sabbatino, “Communist countries, although they have in fact provided a degree of compensation after diplomatic efforts, commonly recognize no obligation on the part of the taking country. Certain representatives of the newly independent and underdeveloped countries have questioned whether rules of state responsibility toward aliens can bind nations that have not consented to them, and it is argued that the traditionally articulated standards governing expropriation of property reflect ‘imperialist’ interests, and are inappropriate to the circumstances of emergent states. The disagreement as to relevant international law standards reflects an even more basic divergence between the national interests of capital importing and capital exporting nations, and between the social ideologies of those countries that favor state control of a considerable portion of the means of production and those that adhere to a free enterprise system. It is difficult to imagine the courts of this country embarking on adjudication in an area which touches more sensitively the practical and ideological goals of the various members of the community of nations.”

I also deplore the congressional Republican tactic of attaching their out-of-touch Cuba prescriptions to appropriations bills and thereby risking partial government shutdowns if the President vetoes such measures.

The U.S. should be doing all it can to advance the cause of U.S.-Cuba reconciliation. Unfortunately the Republicans’ shrill rhetoric about the Cuban expropriation of U.S. property without compensation and its insertion of provisions on the subject into appropriations bills do nothing whatsoever to advance the Administration’s existing efforts to engage Cuba in negotiations about compensation for such expropriation and, if necessary, to litigate such U.S. claims before the Permanent Court of Arbitration.

In the meantime, supporters of U.S.-Cuba reconciliation should urge their Senators to seek to delete the previously mentioned Cuba provisions in these appropriations bills. Senators’ contact information is available on the Internet.

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[1] This section of the post is based upon the following: House Appropriations Comm., Press Release: House Passes Fiscal Year 2016 Commerce, Justice, Science Bill (June 3, 2015); H.R.2578: A Bill Making appropriations for the Departments of Commerce and Justice, Science, and Related Agencies for the fiscal year ending September 30, 2016, and for other purposes (May 27, 2015); House Appropriations Comm., Report on H.R.2578 (No. 114-130) (May 27, 2015); Library of Congress, THOMAS, H.Amdt.308 to H.R.2578 [Farr amendment] (June 3, 2015); Library of Congress, THOMAS, H.Amdt.306 to H.R.2578 [Nadler amendment]; Marcos & Shabad, House passes fourth ’16 appropriations bill, The Hill (June 3, 2015); Marcos, House votes to block exports to Cuban military, The Hill (June 3, 2015); Diaz-Balart, Press Release: U.S. Resources Must Not Be Funneled through Castro’s Regime’s Military and Intelligence Services (June 3, 2015); Ros-Lehtinen, Press Release: House of Reps. Overwhelmingly Votes to Oppose Farr Amendment and Supports Not Doing Business with the Cuban Military and Cuban Intelligence Service (June 3, 2015).

[2] This section of the post is based upon the following: House Appropriations Comm., Press Release: Fiscal Year 2016 Transportation, Housing and Urban Development Appropriations Bill Passes House (June 9, 2015); Library of Congress, THOMAS, H.R.2577; Library of Congress, THOMAS, H.Amdt.404 to H.R. 2577 [Lee amendment]; Marcos & Shabad, House passes funding for transportation, housing, The Hill (June 9, 2015); Assoc. Press, House GOP Measure Would Cut Amtrak by $242M, N.Y. Times (June 9, 2015); Assoc. Press, G.O.P.-Led House Votes to Keep Curbs on American Travel to Cuba, N.Y. Times (June 4, 2015);Taylor, Republican-Led House votes against easing travel to Cuba, Wash. Post (June 4, 2015); Marcos, House rejects easing Cuba travel restrictions, The Hill (June 4, 2015); Diaz-Balart, Press Release: Historic, Bipartisan Votes in House Reject President Obama’s Policy of Appeasement of the Castro Regime (June 4, 2015); Ros-Lehtinen, Press Release: House of Representatives Stands Up For U.S. Citizens and Defeats Lee Amendment That Would Have Condoned Cuban Trafficking in Confiscated American Property (June 4, 2015).

[3] There also are two pending stand-alone bills (S.1388 and H.R.2466) that would limit U.S.-Cuba reconciliation because of the unresolved U.S. claims for compensation for expropriated property, as discussed in a prior post.

[4] The June 9 Diaz-Balart press release on the House adoption of “the Diaz-Balart bill” was focused on the bill’s prioritization of “the nation’s infrastructure and housing needs.” It also reiterated his trumpeting of the bill’s provisions about Cuba: “The common sense provisions in the bill, which prohibit new flights to Cuba and deny licenses to marine vessels that use property confiscated from Americans, further core American values and safeguard the property rights of Americans.  We must not permit the exploitation of properties stolen by the Castro regime, which is expressly prohibited in U.S. law.”

 

[5] The opinion of the Court in Sabbatino was written by Mr. Justice John Marshall Harlan, II and was joined by Chief Justice Earl Warren and Justices Black, Douglas, Clark, Brennan, Stewart and Goldberg. Mr. Justice White dissented on the ground that the act of state doctrine should not apply and that the U.S. courts should resolve the case on the merits. The Supreme Court’s decision was criticized in Congress, which passed the so-called Second Hickenlooper Amendment (or Sabbatino Amendment) that provided that U.S. courts are not to apply the Act of State Doctrine as a bar against hearing cases of expropriation by a foreign sovereign unless the Executive requests that the courts consider the Act of State Doctrine because foreign policy interests may be damaged by judicial interference. The Amendment was retroactive and subsequently was found constitutional by the district court and the complaint in Sabbatino was dismissed.

 

 

 

 

 

 

 

 

 

 

Launching the United States Agricultural Coalition for Cuba 

On January 8th the United States Agricultural Coalition for Cuba, whose purpose is “to re-establish Cuba as a market for U.S. food and agriculture exports,” was publicly launched at the National Press Club in Washington, D.C.

The Agricultural Coalition’s Basics

usacc

To achieve this purpose, the Coalition’s mission is “to strive to turn Cuba from an enemy to an ally . . . by building trade relations with an honest appraisal of the past and a fresh look to the future.” This mission is based upon the beliefs that “the improvement of agricultural trade between the U.S. and Cuba is the foundation for building successful and enduring relations between the two countries” and that “an increased exchange of ideas, knowledge, capital and credit will benefit both countries.”

In implementing its mission, the Coalition will be “advancing a constructive dialogue in the [U.S.] on U.S.-Cuba relations . . . to end the long-standing embargo, . . . to build momentum that drives historical change . . . [and] to explain [to the public] the moral imperative of liberalizing trade between the two countries.”

Its website lists the following benefits for the U.S. of ending the U.S. embargo: enhancement of regional security and the global economy; improvement of U.S. travel, research and cultural and business relations; helping Cubans gain rights; assisting both countries in natural disaster preparedness, crop disease management and food security; improving both countries’ economies; and contributing to U.S. strength and Cuban sovereignty. There also is a similar list of benefits for Cuban citizens for ending the U.S. embargo. In addition, the website has comments about post-embargo and food security issues.

The 30-member Coalition is lead by Cargill Incorporated, a Minnesota company responsible for 25% of all U.S. grain exports, along with representatives of rice, wheat, barley, soybean, corn, oilseed, dry beans and canola growers and producers of dairy, beef, pork and poultry products; and other agricultural groups. (The complete list of the members is on the Coalition’s website.)

Devry Boughner Vorwerk, the Chair of the Coalition and Cargill’s Vice President of Corporate Affairs, said, “We will work with key stakeholders to build momentum that drives historical change.” The Vice Chair of the Coalition, Paul Johnson, is the Executive Director of the Illinois Cuba Working Group, which was created by a unanimous resolution of the state legislature, and an owner of a company that exports food products to the island; he also lived in Havana while working on a thesis on Cuba’s economic development.

The National Press Club Event

The launch of the Coalition featured remarks by U.S. Secretary of Agriculture Tom Vilsack; Democratic Missouri Governor Jay Nixon; U.S. Representatives Sam Farr (Dem., CA), Kevin Cramer (Rep., ND), and Rodney Davis (Rep., IL); and U.S. Senators Jerry Moran (Rep., KS) and Amy Klobuchar (Dem., MN). (A video of the launch program along with text of the remarks is available on C-Span-3.)

Vilsack

Secretary Vilsack noted that American agriculture had a good year in 2014, but that an opening with Cuba would allow the sector to do even better. He said the embargo “isolated us from the rest of the hemisphere, and isolated ordinary Cubans from the outside world.” The new presidential opening to Cuba “will make our products much more price competitive and they’ll expand choices for Cubans shopping in Cuban grocery stores. Cuba imports about 80 percent of its food, which means that there is significant economic potential for our producers. It’s a 1.7 billion dollar market.” Secretary Vilsack also pointed out that the “president had done what he can, but we still have legislative hurdles to cross. Congress has to act to remove all the U.S. trade barriers that make it hard for [U.S. agriculture] . . . to sell in Cuba.”[1]

Governor Jay Nixon
Governor Jay Nixon

Governor Nixon called the opening up of Cuba “a tremendous opportunity to strengthen our farms and our economy. The more Missouri goods we sell overseas, the more good jobs we create back at home—it’s really pretty simple. But right now, when it comes to Cuba, we are not on a level playing field, because of the sanctions.” He, therefore, called on members of Congress “to support our farmers, support the free market, and support this outstanding opportunity to strengthen our economy . . . . Now is the time for Congress to follow through and remove these financial restrictions. Lift the embargo and do away with the self-imposed barriers that are holding us back. In a competitive world we cannot ignore 11-million customers 90 miles from our country.”[2]

Representative Sam Farr
Representative            Sam Farr

Representative Farr said the President’s opening to Cuba “will be one of the great modern events of America. We will have torn down our iron wall.” But “it’s going to be very difficult” politically to do this in the U.S. Nor will it be easy politically for Cuba. But “Cuba is a well-educated country. Its people have a can-do attitude. They really like Americans.” Representative Farr also noted, “Every other country in this hemisphere has diplomatic and trade relations with Cuba.” They have chastised the U.S. for having this “archaic policy.” When President Obama goes to the Summit of the Americas in Panama this April “he’s going to be welcomed as a hero. Now we will be able to unify the hemisphere.”

On the other hand, Farr said, “The battle will be in Congress because of a really small minority of Cuban-Americans.” Therefore, congressional supporters of the Cuban opening are “going to start a new Cuba Working Group.” The American people and agricultural and business people need to “use their political voices to show” Congress that we need to go forward with Cuba trade and relations.

Representative Kevin Cramer
Representative Kevin Cramer

Representative Cramer remarked that the U.S. has “the opportunity to spread liberty, to spread democracy and to sell products. We can test it incrementally. We can open up little by little and provide assurance to those colleagues of ours in the House and Senate that might not be inclined to go all in. I have learned in my time in Congress that persuasion does not happen quickly. Almost nothing happens quickly.”

Representative Rodney Davis
Representative Rodney Davis

 

 

Representative Davis said he wants “to see communism lifted in Cuba so that the Cuban people can experience the same freedoms we experience here in the [U.S.].” Indeed, “increasing the trade we already have with the Cuban nation is going to allow America to invest in a Cuban economy that‘s going to free the Cuban citizens from the conditions that they live under now.” He also noted that for a long time he has supported “more normalized trade relations with the Cuban people.”

Senator Jerry Moran
Senator             Jerry Moran

Senator Moran stated that the U.S. is a “natural supplier to Cuba. The cost of transportation from Europe to Cuba is about $25 a ton” while the “cost from the [U.S.] is $6 or $7. We have to take advantage of that.” More importantly, “it’s something more noble than the trading relationship or the selling opportunity. It’s about changing the opportunity that Cubans have in relationship with the government. A growing economy and standard of living creates the opportunities for the Cuban people to make demands [on their government]. There is a noble calling of trying to make the world a better place for all citizens of the world. Common sense says we ought to do this and morality says we ought to. Let’s make the difference and the change. This is a Congress that has the ability to do that.”

Senator Amy Klobuchar
Senator                   Amy Klobuchar

Senator Klobuchar said America has “a historic opportunity right now to modernize our country’s relationship with Cuba – and it’s a moment we must seize. By increasing travel and commerce between our two countries, we can boost American exports to Cuba and create American jobs to produce the goods for 11 million new customers, while also helping to improve the quality of life for Cubans. I’m looking forward to working with our agriculture community and members of both parties to help build a practical and positive relationship between the people of Cuba and the United States.” She “hopes we can have a robust and substantive debate. Congress must avoid obstructive actions like blocking the confirmation of an ambassador to Cuba or the funding of activities regarding Cuba.”

Conclusion

As a supporter of the reconciliation of our two countries, I rejoice in the launching of this new coalition to end the embargo and to add their support for this reconciliation.

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[1] On the day of President Obama’s announcement of the breakthrough with Cuba (December 17th), Secretary Vilsack issued this statement: “Throughout history, agriculture has served as a bridge to foster cooperation, understanding and the exchange of ideas among people. I have no doubt that agriculture will continue to play that powerful role as we expand our relationship with the Cuban people in the coming years” He added, “Today’s announcement expands opportunity for U.S. farmers and ranchers to do business in Cuba. It removes technical barriers between U.S. and Cuban companies and creates a more efficient, less burdensome opportunity for Cuba to buy U.S. agricultural products. It also makes those products far more price competitive, which will expand choices for Cuban shoppers at the grocery store and create a new customer base for America’s farmers and ranchers.”

[2] Missouri’s Democratic Senator, Claire McCaskill, on the same day as the Press Club event, announced that she will be going to Cuba at the end of February to assess whether Cuba would be a suitable market for Missouri agriculture. Another Senator, John Boozman (Rep., AR), announced his support of the Coalition and expanding trade with Cuba.