rescission – dwkcommentaries

Cuba Still “State Sponsor of Terrorism” in State Department Report for 2014

On June 19, 2015, the U.S. Department of State released its “Country Reports on Terrorism 2014.” Such annual reports are required by federal statute to cover the prior calendar year.[1]

Tina S. Kaidanow, U.S.Ambassador-at-Large and Coordinator for Counterterrorism, gave a special briefing on this report. She pointed out that “the number of terrorist attacks [worldwide] in 2014 increased 35 percent, and total fatalities increased 81 percent compared to 2013, largely due to activity in Iraq, Afghanistan and Nigeria. More than 60 percent of all attacks took place in five countries: Iraq, Pakistan, Afghanistan, India, and Nigeria. And 78 percent of all fatalities due to terrorist attacks also took place in five countries: Iraq, Nigeria, Afghanistan, Pakistan, and Syria. The increase in total fatalities was in part a result of certain attacks that were exceptionally lethal.”

The Ambassador then provided broader context by discussing the terrorism committed in 2014 by al-Qaida, ISIL, Boko Haram and the civil war in Syria and of the need for the U.S. to have partners “to disrupt terrorist plots and degrade terrorist capabilities . . . [and to] help counter the spread of violent extremist recruitment and address the conditions that make communities susceptible to violent extremism. We must do more to address the cycle of violent extremism and transform the very environment from which these terrorist movements emerge.”

The U.S. last year, the Ambassador emphasized, provided “ counterterrorism assistance . . . in the fields of rule of law and countering recruitment, . . . a wide array of expertise and programmatic support for our partners to help them identify and disrupt the financing of terrorism, strengthen aviation and border security, and sharpen their law enforcement and crisis response tools to respond to the terrorist threat.” In addition, the U.S. engaged “in robust diplomacy, expanding our partnerships, building bilateral and regional capabilities, and promoting holistic and rule-of-law based approaches to counter terrorism and violent extremism.”

The report’s chapter on “State Sponsors of Terrorism” noted that such a state has been determined by the Secretary of State “to have . . . [a] government [that] has repeatedly provided support for acts of international terrorism. Once a country is designated, it remains a State Sponsor of Terrorism until the designation is rescinded in accordance with statutory criteria.” For 2014 there were four such states: Cuba, Iran, Sudan and Syria. Here is what was said about Cuba for 2014:

“Cuba was designated as a State Sponsor of Terrorism in 1982. Though not within the timeframe covered by this report, on April 14, 2015, President Obama submitted to Congress the statutorily required report and certifications indicating the Administration’s intent to rescind Cuba’s State Sponsor of Terrorism designation, including the certification that Cuba has not provided any support for international terrorism during the previous six-months; and that Cuba has provided assurances that it will not support acts of international terrorism in the future. The required 45-day Congressional pre-notification period expired, and the Secretary of State made the final decision to rescind Cuba’s designation as a State Sponsor of Terrorism, effective on May 29, 2015.” [2]
“In recent years, Cuba has taken a number of steps to fully distance itself from international terrorism and has taken steps to strengthen its counterterrorism laws. In 2013, Cuba made a commitment to work with the Financial Action Task Force to address its anti-money laundering/counterterrorism finance (AML/CFT) deficiencies. Since that time, Cuba has made significant progress in establishing the framework necessary to meet international AML/CFT standards by, for example, adequately criminalizing money laundering and terrorist finance and establishing procedures to identify and freeze terrorist assets, among other legal and regulatory actions.”
“Throughout 2014, Cuba supported and hosted internationally recognized negotiations between the Revolutionary Armed Forces of Colombia (FARC) and Government of Colombia aimed at garnering a peace agreement. Safe passage of FARC members provided in the context of these talks has been coordinated with representative of the governments of Colombia, Venezuela, Chile, and Norway, as well as the International Committee of the Red Cross. There is no credible evidence that the Government of Cuba has provided specific material support, services, or resources, to members of the FARC, or the National Liberation Army (ELN), outside of facilitating the internationally recognized peace process between those organizations and the Government of Colombia.”
“The Government of Cuba does continue to allow approximately two dozen members of the Basque Fatherland and Liberty Organization (ETA) to remain in the country. The Cuban government provided assurances that it would never permit the ETA members living in Cuba to use Cuban territory for that organization’s activities against Spain or any other country. There is no available information that the Government of Cuba allowed any of these ETA members to plan, finance, lead, or commit acts of international terrorism while residing in Cuba.”
“The Government of Cuba does continue to harbor fugitives wanted to stand trial or to serve sentences in the [U.S.] for committing serious violations of U.S. criminal laws, and provides some of these individuals limited support such as housing, food ration books, and medical care. Although Cuba continues to refuse to return certain individuals that fled to Cuba in the past, it has been more cooperative with the [U.S.] in recent years. In 2014, the Government of Cuba engaged in talks with U.S. officials in reference to some of these fugitives still residing in Cuba.”

Conclusion

There is nothing surprising in the Report’s discussion of Cuba. The report is statutorily required to cover the prior calendar year, and Cuba’s designation of state sponsorship was not rescinded until May 29, 2015. Therefore, it had to be included in this report as such a sponsor, and the discussion is fully consistent with that subsequent rescission.

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[1] This post is based upon the following: U.S. State Dep’t, Country Reports on Terrorism 2014 (June 19, 2015); U.S. State Dep’t, Briefing at the Release of Country Reports on Terrorism 2014 (June 19, 2015); Gordon & Schmitt, Iran Still Aids Terrorism and Bolsters Syria’s President, State Department Finds, N.Y. Times (June 19, 2015).

[2] A prior post discussed the April 14, 2015, presidential notification of such rescission to the Congress and another post, the May 29, 2015, official rescission of Cuba as such a sponsor. Earlier posts covered the legal and political issues regarding such rescission and the U.S. already having conceded many reasons why Cuba had provided assurances that it will not support future acts of international terrorism.

Assessment of the Status of U.S.-Cuba Reconciliation

Three recent articles in Cuba’s state-controlled media offer the Cuban government’s assessment of the current status of U.S. reconciliation. The lead article was Cuban journalists’ interview of Josefina Vidal, Cuba’s lead diplomat for the negotiations with the U.S. This post will summarize these three articles [1] and then offer an evaluation of Cuba’s assessment.

Current Status of Negotiations

Several days after the failure of the countries to reach an agreement about re-establishing diplomatic relations, Vidal remained optimistic. In the five months since the December 17^th announcement of rapprochement and the mutual release of certain prisoners, she thought there had been progress in the process of normalization of relations. The removal of Cuba from the U.S. list of state sponsors of terrorism was to happen by the end of May, as it in fact did on May 29^th, and Cuba’s Interests Section in Washington, D.C. has obtained a U.S. banking relation that was necessary for the effective operation of the Section and of a future Cuban embassy. [2]

In addition, for about the last two years, she added, the countries have been discussing and progressing on “technical” matters, including collaboration on infectious diseases, narcotics trafficking, immigration (including the U.S. “wet foot/dry foot” policy under its Cuban Adjustment Act) and their respective enforcement of their own domestic laws with visitors from the other country.

Moreover, said Vidal, the Cuba-U.S. interactions “are respectful, they are professional. We are treating each other as equals, on a foundation of respect and total reciprocity.”

Also supportive of reconciliation of the two countries have been visits to Cuba by U.S. federal and state government officials and U.S. business groups. [3]

Re-establishment of Diplomatic Relations

Although the parties had not reached agreement on the details of re-establishing diplomatic relations at their negotiations in Washington, D.C. on May 21-22, Vidal suggested that progress had been made on these details, which conceivably could be resolved through direct communications without another negotiating session.

The remaining issues, she said, focused on the future “conduct of diplomats” and “the functioning of a diplomatic mission,” all under the U.N. Charter and the Vienna Convention on Diplomatic Relations, which both parties recognize as establishing or confirming the international law on the subjects. More specifically, Vidal said, “We must talk about the number of people, what kind of staff” the embassies will have or “what type of rank these officials [are] going to have” and “what privileges and immunities.” [4]

These comments by Vidal (and by Jacobson in the footnote) suggest that the provisions of the Vienna Convention provide flexibility and thus room for negotiation on the details of the functioning of the two countries’ embassies and diplomats. Indeed, that assumption is confirmed by the following relevant provisions of the Convention:

Under Article 7, “the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.” However, Article 11 provides “the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission” and also “may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category.”

With respect to diplomatic personnel’s travel and conduct, Article 26 states, “Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.” However, Article 41 provides, “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.” In addition, Article 41 states, “The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

Vidal’s concern about the “conduct of diplomats” and “the functioning of a diplomatic mission” was an allusion to Cuba’s objection to certain recent covert or secret or “discreet” programs by the U.S. Agency for International Development (USAID) allegedly to promote democracy and human rights in Cuba and to public seminars for Cuban journalists at the U.S. Interests Section in Havana that will be discussed below.

Future Issues for Discussion and Resolution

According to the Vidal interview, Cuba has presented to the U.S. the following “preliminary list” of other issues that need to be discussed and resolved for full normalization of relations: (a) the U.S. “lifting of the blockade [embargo];” (b) “the return of the territory illegally occupied by the Guantanamo Naval Base;” (c) “an end to illegal broadcasts by Radio and Televisión Marti;” (d) an “end to [U.S.] programs which were originally conceived to promote regime change” in Cuba and which for fiscal year 2016 have requests for funding of $20 million, especially in light of President Obama’s statement at the recent Summit of the Americas that the purpose of U.S. policy regarding Cuba was not regime change; [5] (e) “compensation for our country and our people for the damages caused by U.S. policy [primarily the embargo or blockade] over 50 years; ” and (f) restitution of Cuba’s frozen funds in the U.S.

The U.S., on the other hand, say the Cubans, has identified at least one issue for discussion in the second phase of negotiations: “compensation for the properties [of U.S. nationals] which were nationalized in Cuba at the beginning of the Revolution.” [6]

Moreover, Vidal said, the parties have not yet discussed how these issues would be discussed or resolved: “if a mechanism [such as commissions or groups] will be created;” or whether the issues would be discussed as a whole or separately.

According to the Gomez article in Granma, “the greatest challenge facing Cuba and the United States is establishing a relationship of civilized co-existence based on respect for their profound differences.”

Conclusion

The Obama Administration and this blogger concur in the need for the U.S. to end the embargo (or “blockade” in Cuba’s view), which requires action by the U.S. Congress. Prior posts have discussed pending bills in the Senate and House of Representatives to do just that and urged U.S. citizens to press both chambers to pass such bills. Another post recommended submitting Cuba’s claim for money damages ($1.2 trillion as of last October) from the embargo/blockade to the Permanent Court of Arbitration where the U.S. can mount counter-evidence and arguments.

With respect to Guantanamo Bay, as discussed in a prior post, Cuba’s continually saying that the U.S. is “illegally” occupying the territory does not make it so and I do not think the U.S. would ever agree to such a legal conclusion. If Cuba continues to assert that contention, as I expect that it will, then the parties should submit the dispute for resolution by the Permanent Court of Arbitration.

The New York Times editorial board and this blogger agree with Cuba’s contention that the U.S. improperly has mounted covert, secret or “discreet” and ill conceived USAID programs to promote regime change in Cuba and that the U.S. should cease any and all such programs. Instead, it should propose joint-programs to the Cuban government for enhancement of Cuban human rights and democracy, and if and only if the Cubans agree, then the programs could proceed. (These issues were discussed in posts of 4/4/14, 4/9, 4/9, 8/12, 8/13 and 8/14).

The U.S. claims for money damages for compensation for Cuba’s expropriation of property owned by U.S. nationals and interests will obviously be discussed, as stated above, and in the likely event that the parties will not agree to the amount of such compensation, that too should be submitted to the Permanent Court of Arbitration.

In this process of working on the many issues that have accumulated over the last 50-plus years, both sides must recognize, as I think they do, the need to build mutual trust during the initial stages of diplomatic relations and, if all goes well, to the possible future relaxation of any restrictions. It does not help the process for bystanders, like Senators Marco Rubio and Bob Menendez, to loft scathing and premature criticisms of the process and to attempt to create new legislative roadblocks and impediments to that process.

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[1] This post is based upon the following: Josefina Vidal discusses recent talks in Washington, Granma (May 26, 2015); Gómez, Seven key points, Granma (May 25, 2015); Cańedo, Cuba-United States after 17D [December 17], Cubadebate (May 25, 2015).

[2] Immediately after the May 21-22 negotiations in Washington, D.C., Assistant Secretary of State Roberta S. Jacobson, the U.S.’ lead diplomat, shared Vidal’s optimism. Jacobson said, “This round of talks was highly productive. . . . We have made significant progress in the last five months and are much closer to reestablishing relations and reopening embassies. . . . [W]e have gotten much closer than we were each time we talk. . . . I remain optimistic that we will conclude, but we still have a few things that need to be ironed out and we’re going to do that as quickly as possible.” On the other hand, according to Jacobson, “I’m also a realist about 54 years that we have to overcome.”

[3] These visits have included congressional trips in January, February (Senate and House), and May, and a visit by a major business delegation in March.

[4] Assistant Secretary Jacobson in her comments after the latest round of negotiations concurred that the Vienna Convention established the parameters for the functioning of the countries’ embassies and conceded that “there [is] a range of ways in which our embassies operate around the world in different countries. We expect that in Cuba, our embassy will operate within that range and so it won’t be unique. It won’t be anything that doesn’t exist elsewhere in the world. There are various circumstances in which embassies operate in somewhat restrictive environments. . . .[W]e have confidence that . . . our embassy will be able to function so that our officers can do their jobs as we expect them to do worldwide, but in highly varying locations around the world. So I have every expectation that it will fall within the range of other places where we operate.”

[5] Cuba correctly points out that USAID, on the one hand, proclaims on its public website that its Cuba programs “Provide humanitarian assistance (basic foodstuff, vitamins and personal hygiene supplies) to political prisoners and their families; Promote human rights and fundamental freedoms, as well as support for independent civil society by strengthening leadership skills and providing opportunities for community organizing; and Facilitate information flow to, from and within the island” and that through four named private “partners” it has spent and will spend a total of $14.2 million for these programs for the three fiscal years ending 9/30/15 and an additional $20 million in Fiscal Year 2016. USAID, on the other hand, has carried out these programs unilaterally, without the prior knowledge or consent, of the Cuban government. In addition, the U.S. Department of State at its Interests Section in Havana has hosted seminars for journalists and a Public Information Center with a lending library and Internet-enabled computers available to Cubans and others. Assistant Secretary Jacobson said at the May 22^nd press conference, “[W]e have continued to request funds from Congress for various activities in support of the Cuban people [and] that those programs have changed over time since they began in 1996” and they might be changed in the future.

[6] A prior post discussed the issue of Cuba’s compensating U.S. owners of property expropriated in the Cuban Revolution. Moreover, the U.S. already has identified at least the following additional issues for further discussion and negotiation: extradition of persons for crimes in their home country (2/24/15 post) and Cuban human rights and democracy (posts of 3/27, 3/28, 3/29, 3/30 and 4/1), and such discussions already have been commenced.

U.S. Rescinds Designation of Cuba as a “State Sponsor of Terrorism”

As anticipated, today, May 29, the U.S. officially rescinded its designation of Cuba as a “State Sponsor of Terrorism.”[1]

The official Department of State announcement noted that “on April 8, 2015, the Secretary of State completed the review of [that designation] and recommended [rescission] to the President” and that “on April 14, the President submitted to Congress the statutorily required report indicating the Administration’s intent to rescind . . . [the designation], including the certification that Cuba has not provided any support for international terrorism during the previous six-months; and that Cuba has provided assurances that it will not support acts of international terrorism in the future.”

The announcement further stated that the “45-day Congressional pre-notification period has expired [today, May 29], and the Secretary of State has made the final decision to rescind Cuba’s designation as a State Sponsor of Terrorism, effective today, May 29, 2015.”

In conclusion, the announcement said, “The rescission . . . reflects our assessment that Cuba meets the statutory criteria for rescission. While the United States has significant concerns and disagreements with a wide range of Cuba’s policies and actions, these fall outside the criteria relevant to the rescission.”

This decision is an important step in President Obama’s effort to normalize relations between the two countries.

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[1] This post is based on the following: Dep’t of State, Rescission of Cuba as a State Sponsor of Terrorism (May 29, 2015); Davis, U.S. Removes Cuba from State-Sponsored Terrorism List, N.Y. Times (May 29, 2015); Tharoor, After 33 Years, the U.S. drops Cuba from its list of state sponsors of terrorism. Here’s what it means, Wash. Post (May 29, 2015); Cuba removed from list of state sponsors of terrorism, Granma (May 29, 2015). Previous posts have examined legal and political issues relating to rescission, the president’s decision to rescind and congressional acceptance of rescission.

Senate Hearing on Expanding U.S. Agricultural Trade with Cuba

On April 21st the U.S. Senate Committee on Agriculture, Nutrition and Forestry held a hearing, “Opportunities and Challenges for Agriculture Trade with Cuba.”[1]

Chairman’s Opening Statement

The Committee Chair, U.S. Senator Pat Roberts (Rep., KS), opened the hearing by stating, “At the beginning of this Congress, I was hopeful that trade would be one area where we could work across the aisle to find agreement. I am still hopeful that is the case. . . . International trade of American agriculture products is critical…critical to the nation’s economy and critical to our Kansas farmers and ranchers. I have long fought to eliminate barriers to trade, and I believe that we should continue to work towards new market access opportunities for our agriculture products.”

“The United States and Cuba have a long history full of contention and instability. There is no shortage of opinion from members of Congress about the relationship between our two countries, both present and future. Some are concerned about human rights, others about socioeconomic ideology. But those concerns are not what this committee will focus on this morning. Today we are here to discuss the role of agriculture – opportunities and challenges – in Cuba.”

“This is not an issue that we are going to be able to fix overnight. It will take efforts in addition to bills in Congress to truly normalize trade with Cuba. The decisions that are made regarding increased trade with Cuba must be made carefully.”

“Four months ago the President announced a major shift in U.S. policy towards Cuba. It is my hope that in the future, the President will work with Congress to determine the best path forward. Foreign policy does not happen in a vacuum. We have to take a realistic approach and work out a step-by-step plan towards lifting the embargo. This is a goal that should include Congress.”

“Today we will hear from an impressive panel of experts, from the regulators responsible for writing our policies toward Cuba, to the producers who seek to grow the market for their products. I understand that, like myself, many of our witnesses here have traveled to Cuba to see first-hand what challenges and opportunities exist.”

“Agriculture has long been used as a tool – not a weapon – for peace and stability. It is my hope that Cuba will embrace the practices of free trade, enterprise and commerce, so that both countries will gain from increased relations.”

“Earlier this year, the U.S. Agriculture Coalition for Cuba was launched. They have shared a statement and additional information in support of our work today, [which was] entered into the record.”

Ranking Member’s Opening Statement

Senator Debbie Stabenow (Dem., MI), the Ranking Committee Member, said, “Improving trade with Cuba represents not only a great opportunity for America’s farmers, ranchers, and manufacturers, but a meaningful way to help rebuild trust between our nations. After more than 50 years of stalemate, it’s time for a new policy on Cuba.”

“When I visited Cuba earlier this year – just days after President eased some trade restrictions – I saw firsthand the eagerness of Cubans who want to develop a more effective relationship with the [U.S.] But we can only get there if we begin to take meaningful steps to soften many of the barriers that exist between us.”

“And America’s farmers and ranchers are uniquely positioned to lead the way. Consider this – in 2014, the U.S. exported just over $290 million in agricultural goods to Cuba. That’s a good start, but for a country only 90 miles off our coast, we can do much more. Cuba’s own import agency estimates that it will receive approximately $2.2 billion (in U.S. dollars) worth of food and agricultural products this year alone.”

“That type of economic potential deserves a chance to succeed – and is one reason why many of the largest producer groups, trade associations, and companies from within agriculture have come together to push for increased engagement.”

“Many on this Committee have pushed for increased engagement and have taken the opportunity to visit Cuba in recent months. I’d like to recognize Senators Leahy and Klobuchar, as well as Senator Boozman and Heitkamp, for their bipartisan leadership on this issue.”

“The commitment to democratic ideas and human rights we share as Americans are best realized through engagement. Our bedrock principles accompany every product farmers and ranchers send to Cuba.”

“Last week’s action by the President [in rescinding the designation of Cuba as a “state sponsor of terrorism”] is a step forward toward in normalizing our relationship and will test the commitment of the Cuban government to this process.”

“But even while we are making significant progress in rebuilding our relationship with Cuba – the policies governing trade between our countries are not yet designed to allow a steady flow of goods and services. We must find a path forward that allows U.S. financial institutions to safely and securely work with Cuban purchasers, including the extension of lines of credit. And we should work to authorize a greater range of goods, services, and supplies for export to Cuba. These measures not only make good business sense – they also will help build Cuba’s agricultural capacity and make the island a better trading partner in the long run.”

The Witnesses at the Hearing

The witnesses at the hearing were the following: (1) The Honorable Michael T. Scuse, Under Secretary, Farm and Foreign Agriculture Services, U.S. Department of Agriculture; (2) Mr. Matthew Borman, Deputy Assistant Secretary, Bureau of Industry and Security, U.S. Department of Commerce; (3) Mr. John Smith, Acting Director, Office of Foreign Assets Control, U.S. Department of the Treasury; (4) Mr. Michael V. Beall, President & CEO, National Cooperative Business Association; (5) Mr. Terry Harris, Senior Vice President, Marketing and Risk Management, Riceland Foods; (6) Mr. Ralph Kaehler, Farmer and Owner, K-LER Cattle Company, St. Charles , MN; (7) Mr. Doug Keesling, Fifth Generation Owner, Keesling Farms, Kansas Wheat, Chase , KS; and (8) Dr. C. Parr Rosson III, Professor & Department Head, Department of Agriculture Economics, Texas A&M University.

Witness Ralph Kaehler

Minnesota’s Senator Amy Klobuchar, who is a member of the Committee and the author of the Freedom to Export to Cuba Act (S.491) ending the U.S. embargo of Cuba, introduced Ralph Kaehler, whose family has been operating a livestock, row crop, and canning vegetable farm in Minnesota for nearly 130 years.

The Senator prefaced her introduction with this statement: “For too long, export and travel restrictions have prevented American farmers and ranchers from seeking opportunities in Cuba. That is why I have introduced bipartisan legislation to lift the trade embargo on Cuba, and this hearing allowed us to focus on how we can ensure that our farmers and ranchers benefit from normalized relations between our two countries.”

Mr. Kaehler testified that his farm was “an exhibitor in the First U.S./Cuba Food and Agriculture Exposition [in Havana] in 2002.” It “was the only one with live animals— affectionately known as the ‘Cuban Ark’ . . . to exhibit the diversity of U.S. livestock producers, and to introduce Cuba to the typical USA farm family.”

“Since then, the Kaehler Family has led over 10 trade delegations to Cuba. These missions have included producers from seven different states and a bipartisan mix of state lawmakers and officials. To date, some of the most successful exports to Cuba we have facilitated include shipments of livestock, dried distillers grains, powdered milk, animal milk replacer, and texturized calf feed.”

“Given the opportunity, U.S. farmers do well in Cuba. We have a significant advantage of shorter shipping over Europe, South America, Asia, and other major exporters. In addition, Cuba can take advantage of U.S. rail container service and sizing options, which also brings significant benefits to smaller privately owned businesses like ours. On top of all this, the U.S. produces a wide variety of affordable and safe food products that Cubans want to eat.”

“Unfortunately, some of the policies currently in place diminish the natural advantages American agriculture enjoys over its competitors. For instance, requirements for using third country banks for financing adds a lot of paperwork, time, and personalities to every transaction. Coupled with a restrictive cash‐in advance shipping policy . . . there is a very small margin for error before a shipper faces demurrage fees. As a family operation trying to build our business through exports, this self‐inflicted inefficiency can be tough to manage.”

Mr. Kaehler then made three specific recommendations to Congress. “First, . . . improve the trade financing rules for Cuba. . . . Second, . . . small firms like ours . . . need marketing support and assistance [from USDA] to help support our companies and figure out exactly what’s going on in markets abroad. . . . [Third,] I hope that Congress will expand the universe of people involved in U.S.‐Cuba trade by allowing a greater variety of goods and services to be traded.”

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[1] A quick examination of the official websites of the Committee’s 20 members reveals that seven have made statements favoring at least some aspects of U.S.-Cuba reconciliation (Boozman (Rep., AK), Brown (Dem., OH), Heitkamp (Dem., ND), Hoeven (Rep., ND), Klobuchar (Dem., MN), Leahy (Dem., VT) and Stabenow (Dem., MI)). Only two have negative statements about that reconciliation (Grassley (Rep., IA) and Perdue (Rep., GA)). The other eleven members‘ websites do not reveal any position on Cuba (Bennet (Dem., CO), Casey (Dem., PA), Cochran (Rep., MS), Donnelly (Dem., IN), Ernst (Rep., IA), Gillibrand (Dem., NY), McConnell (Rep., KY), Roberts (Rep., KS), Sasse (Rep., NE), Thune (Rep., SD) and Tillis (Rep., NC)). A more thorough examination of the records of the last 11 would probably uncover other indications of their positions on reconciliation with Cuba.

The Council of the Americas and the Americas Society: Other Supporters of U.S.-Cuba Reconciliation

The Council of the Americas (COA) [1] and the Americas Society (AS) [2] previously announced their support of the December 17^th announcement of the U.S.-Cuba rapprochement and of the more recent presidential rescission of the U.S. designation of Cuba as a “State Sponsor of Terrorism.”

On April 21^st COA and AS held their 45^th annual Washington Conference at the U.S. Department of State. The theme this year was “Integration & Innovation: The Americas Agenda.” One of its speakers was U.S. Secretary of State John Kerry.

Secretary Kerry quoted President Obama’s speech at the recent Summit of the Americas: the U.S. is engaged in “a new chapter of engagement in this region. I believed that our nations had to break free from the old arguments, the old grievances that had too often trapped us in the past, that we had a shared responsibility to look to the future and to think and act in fresh ways. [There is] . . . a new era of cooperation between our countries, as equal partners, based on mutual interest and mutual respect.” This commitment was being met, Kerry said, –“and not solely because of our new policy towards Cuba.”

Therefore, stated Kerry, “what we need is . . . a common agenda for the shared progress, a blueprint for the next steps that will help to ensure the democratic and economic promise in the region is actually fulfilled. That is why the [U.S.] is engaged throughout the Americas on priorities that our partner governments and its citizens themselves have identified as important. These priorities fall into three broad categories. They include the building blocks of shared prosperity – education, innovation, trade, investment. They include energy and environmental security. And they include reconciliation and strengthening democratic and inter-American institutions across the board.”

Kerry specifically addressed Cuba. He said, “In December, President Obama made the courageous decision to update our Cuba policy, which was doing far more to isolate [U.S.] from our friends in the hemisphere than it was to isolate Havana. In Panama, the President and I met for hours with our Cuban counterparts, the first such formal meetings since the 1950s. And we’re committed to moving forward on the path to normalized relations. This new course is based not on a leap of faith, but on a conviction that the best way to promote U.S. interests and values while also helping to bring greater freedom and opportunity to the Cuban people is exactly what we are doing.”

Kerry also said the “same principle applies to Venezuela. In Panama, President Obama spoke briefly with President Maduro, and a week earlier, State Department Counselor Tom Shannon was in Caracas at the invitation of the government. It is no secret that relations between our two countries have been severely strained in recent years. But I began my tenure as Secretary with a long conversation with the then-foreign minister of Venezuela in an effort to promote a more productive relationship, and the [U.S.] remains open to further addressing our differences and attempting to find areas of common ground.”

Another speaker at the Conference was New Jersey Governor Chris Christie, who said he is opposed to the new U.S. rapprochement with Cuba, describing the Castro government as a ”dictatorial family regime that denies freedoms to their people and is a sponsor of terrorism.” He spoke of the Cuban government’s asylum of Assata Shakur, who was convicted of murdering a New Jersey state trooper in 1973. Stating that he is not opposed on principle to welcoming Cuba back into the “family of civilized nations, there is still a ways to go for that to happen.”

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[1] The COA says it is, “the premier international business organization whose members share a common commitment to economic and social development, open markets, the rule of law, and democracy throughout the Western Hemisphere. The Council’s membership consists of leading international companies representing a broad spectrum of sectors, including banking and finance, consulting services, consumer products, energy and mining, manufacturing, media, technology, and transportation.”

[2] The COA is affiliated with the AS, which describes itself as “the premier forum dedicated to education, debate, and dialogue in the Americas. Its mission is to foster an understanding of the contemporary political, social, and economic issues confronting Latin America, the Caribbean, and Canada, and to increase public awareness and appreciation of the diverse cultural heritage of the Americas and the importance of the inter-American relationship.” The COA and AS have a Cuba Working Group, which includes “corporate leaders from the worlds of banking, financial services, energy, telecommunications, hospitality, pharmaceuticals, and law. Working group meetings look at the steps companies can take under current U.S. restrictions to pre-position themselves for future investment. This effort has produced a series of papers on regulations and laws affecting U.S. business activity under the U.S. embargo and in Cuba.”

Congressional Opponents of U.S.-Cuba Reconciliation Accept Terrorism Rescission

On April 23 U.S. Representative Ileana Ros-Lehtinen (Rep., FL), a Cuban-American, announced that congressional opponents of U.S.-Cuba reconciliation reluctantly had accepted President Obama’s decision to rescind the U.S. designation of Cuba as a “State Sponsor of Terrorism” that was the subject of a prior post. [1]

She said that she and 35 other representatives had been preparing to draft a resolution opposing the rescission before a joint decision was made not to go forward. The reason was their conclusion that a “joint resolution to repeal President Obama’s de-listing of Cuba from the state sponsor of terrorism list would not have the far-ranging implications that many had assumed it would.” Legally, Ros-Lehtinen said, Congress cannot prevent the White House from taking Cuba off the list because not all the statutes that govern designation of a country as a state sponsor of terrorism provide a way for Congress to block a de-listing.

The Congressional Research Service and the State Department, on the other hand, earlier had said a joint resolution by both houses could block the rescission, provided the resolution withstood a veto by Mr. Obama.

Several analysts had cast doubt on whether there was enough support in Congress to try to block Mr. Obama’s decision. Indeed, Christopher Sabatini, a scholar of U.S.-Cuba relations at Columbia University, suggested that the Republicans’ legal review provided cover for the possibility that the votes to oppose rescission were not there.

“This was the hard-liners’ white flag,” Mr. Sabatini said. “They had been planning to present a piece of legislation in the allotted 45 days to overturn the removal of Cuba from the list, but couldn’t get a majority. Rather than risk looking even more isolated, they abandoned it.”

Nevertheless, according to Ros-Lehtinen, she and the other 35 representatives “are concentrating our efforts on promoting legislation that will hold the Castro regime accountable for its nefarious activities. We plan to file broader legislation regarding Cuba that will help ensure that U.S. national security is protected and that our country continues to advocate for human rights on the island. Removing Cuba from the State Sponsor of Terrorism list does not truly lift significant sanctions as many sanctions remain codified in law.”

A week earlier just such a bill, the Cuban Human Rights Act of 2015 (H.R.1782) was introduced in the House by Rep. Chris Smith (Rep., NJ), the chair of the House global human rights subcommittee; the cosponsors (as of April 23) are Ileana Ros-Lehtinen (Rep.,FL), Mario Diaz-Balart (Rep., FL), Albio Sires (Dem.,NJ), Carlos Curbelo (Rep., FL), Leonard Lance (Rep., NJ),Tom MacArthur (Rep., NJ), Mark Meadows (Rep., NC), Rodney Frelinghuysen (Rep., NJ), Frank LoBiondo (Rep., NJ), Peter King (Rep., NY) and Dana Rohrsbacher (Rep., CA).

According to the official summary, H.R.1782 expresses the sense of Congress that the U.S.-Cuba relationship should not be changed, nor should any federal law or regulation be amended, until the government of Cuba ceases violating the human rights of the people of Cuba; the U.S. should overcome the jamming of radio and television signals of the Radio y Television Marti by the government of Cuba, and the Broadcasting Board of Governors should not cut staffing, funding, or broadcast hours for Radio y Television Marti; if certain human rights conditions are not met the U.S. Permanent Representative to the U.N. should oppose and encourage other U.N. members to oppose Cuba’s continued membership on the U.N. Human Rights Council; and the annual Stae Department trafficking-victims report to Congress should include an in-depth analysis of the facilitation of or involvement in severe forms of human trafficking by any official of the government of Cuba or of companies wholly or partially owned by the government of Cuba.

On the other hand, the summary says the bill may not be construed as: prohibiting the donation of food to nongovernmental organizations or individuals in Cuba; restricting the export of medicine or medical supplies to Cuba, or abrogating any requirement that such exports be verified in conformity with the Cuban Democracy Act of 1992 or any other applicable federal law; or prohibiting or restricting any other form of assistance specified in the Cuban Democracy Act of 1992, including telecommunications, mail, and support for democracy.

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[1] This post is based upon the following: Ros-Lehtinen, Press Release: Any Legislation Regarding Cuba Must Be Substantive and Have Significant Legal Effect (April 23, 2015); Archibold, Cuba Moves Closer to Exit U.S. Terror List, N.Y. Times (April 24, 2015); Whitefield, Republicans won’t challenge Cuba’s removal from terrorism list, Miami Herald (April 23, 2015); Whitefield, Cuba human rights bill introduced; State says Cuba will talk about return of fugitives, Miami Herald (April 15, 2015); Chris Smith, Press Release: Bill to Promote Cuban Human Rights introduced in House of Representatives, (April 15, 2015).

Additional Details About White House’s Announcement of U.S.-Cuba Reconciliation

On December 17, 2014, President Barack Obama in a nationally televised speech announced the historic agreement with Cuba to restore diplomatic relations as one part of a reconciliation with Cuba. That same day the White House website had (a) “FACT SHEET: Charting a New Course in Cuba;” (b) “Background Conference Call on Policy Changes in Cuba and Release of Alan Gross;” and (c) “Readout of the Vice President’s Calls to the Presidents of Colombia and Mexico on the Administration’s Cuba Policy Changes.”

After reviewing these documents, the post will conclude with observations on some of the points raised in these documents.

“FACT SHEET: Charting a New Course in Cuba”

The introduction to the FACT SHEET, among other things, said, “It is clear that decades of U.S. isolation of Cuba have failed to accomplish our enduring objective of promoting the emergence of a democratic, prosperous, and stable Cuba. . . . It does not serve America’s interests, or the Cuban people, to try to push Cuba toward collapse. We know from hard-learned experience that it is better to encourage and support reform than to impose policies that will render a country a failed state. With our actions today, we are calling on Cuba to unleash the potential of 11 million Cubans by ending unnecessary restrictions on their political, social, and economic activities.” (Emphasis added.)

The FACT SHEET then provided the following “Key Components of the Updated Policy Approach:”

“Establishing diplomatic relations with Cuba-

The President has instructed the Secretary of State to immediately initiate discussions with Cuba on the re-establishment of diplomatic relations with Cuba, which were severed in January 1961.
In the coming months, we will re-establish an embassy in Havana and carry out high-level exchanges and visits between our two governments as part of the normalization process. As an initial step, the Assistant Secretary of State for Western Hemisphere Affairs will lead the U.S. Delegation to the next round of U.S.-Cuba Migration Talks in January 2015, in Havana.
U.S. engagement will be critical when appropriate and will include continued strong support for improved human rights conditions and democratic reforms in Cuba and other measures aimed at fostering improved conditions for the Cuban people. (Emphasis added.)
The United States will work with Cuba on matters of mutual concern and that advance U.S. national interests, such as migration, counternarcotics, environmental protection, and trafficking in persons, among other issues.” (Emphasis added.)

“Adjusting regulations to more effectively empower the Cuban people-

The changes announced today will soon be implemented via amendments to regulations of the Departments of the Treasury and Commerce. Our new policy changes will further enhance our goal of empowering the Cuban population.
Our travel and remittance policies are helping Cubans by providing alternative sources of information and opportunities for self-employment and private property ownership, and by strengthening independent civil society.
These measures will further increase people-to-people contact; further support civil society in Cuba; and further enhance the free flow of information to, from, and among the Cuban people. Persons must comply with all provisions of the revised regulations; violations of the terms and conditions are enforceable under U.S. law.”

“Facilitating an expansion of travel under general licenses for the 12 existing categories of travel to Cuba authorized by law-

General licenses will be made available for all authorized travelers in the following existing categories: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines.
Travelers in the 12 categories of travel to Cuba authorized by law will be able to make arrangements through any service provider that complies with the U.S. Treasury’s Office of Foreign Assets Control (OFAC) regulations governing travel services to Cuba, and general licenses will authorize provision of such services.
The policy changes make it easier for Americans to provide business training for private Cuban businesses and small farmers and provide other support for the growth of Cuba’s nascent private sector. Additional options for promoting the growth of entrepreneurship and the private sector in Cuba will be explored.”

“Facilitating remittances to Cuba by U.S. persons–

Remittance levels will be raised from $500 to $2,000 per quarter for general donative remittances to Cuban nationals (except to certain officials of the government or the Communist party); and donative remittances for humanitarian projects, support for the Cuban people, and support for the development of private businesses in Cuba will no longer require a specific license.
Remittance forwarders will no longer require a specific license.”

“Authorizing expanded commercial sales/exports from the United States of certain goods and services-

The expansion will seek to empower the nascent Cuban private sector. Items that will be authorized for export include certain building materials for private residential construction, goods for use by private sector Cuban entrepreneurs, and agricultural equipment for small farmers. This change will make it easier for Cuban citizens to have access to certain lower-priced goods to improve their living standards and gain greater economic independence from the state.”

“Authorizing American citizens to import additional goods from Cuba-

Licensed U.S. travelers to Cuba will be authorized to import $400 worth of goods from Cuba, of which no more than $100 can consist of tobacco products and alcohol combined.”

“Facilitating authorized transactions between the United States and Cuba-

U.S. institutions will be permitted to open correspondent accounts at Cuban financial institutions to facilitate the processing of authorized transactions.
The regulatory definition of the statutory term “cash in advance” will be revised to specify that it means “cash before transfer of title”; this will provide more efficient financing of authorized trade with Cuba.
U.S. credit and debit cards will be permitted for use by travelers to Cuba.
These measures will improve the speed, efficiency, and oversight of authorized payments between the United States and Cuba.”

“Initiating new efforts to increase Cubans’ access to communications and their ability to communicate freely-

Cuba has an internet penetration of about five percent—one of the lowest rates in the world. The cost of telecommunications in Cuba is exorbitantly high, while the services offered are extremely limited.
The commercial export of certain items that will contribute to the ability of the Cuban people to communicate with people in the United States and the rest of the world will be authorized. This will include the commercial sale of certain consumer communications devices, related software, applications, hardware, and services, and items for the establishment and update of communications-related systems.
Telecommunications providers will be allowed to establish the necessary mechanisms, including infrastructure, in Cuba to provide commercial telecommunications and internet services, which will improve telecommunications between the United States and Cuba.”

“Updating the application of Cuba sanctions in third countries-

U.S.-owned or -controlled entities in third countries will be generally licensed to provide services to, and engage in financial transactions with, Cuban individuals in third countries. In addition, general licenses will unblock the accounts at U.S. banks of Cuban nationals who have relocated outside of Cuba; permit U.S. persons to participate in third-country professional meetings and conferences related to Cuba; and, allow foreign vessels to enter the United States after engaging in certain humanitarian trade with Cuba, among other measures.”

“Pursuing discussions with the Cuban and Mexican governments to discuss our unresolved maritime boundary in the Gulf of Mexico-

Previous agreements between the United States and Cuba delimit the maritime space between the two countries within 200 nautical miles from shore. The United States, Cuba, and Mexico have extended continental shelf in an area within the Gulf of Mexico where the three countries have not yet delimited any boundaries.
The United States is prepared to invite the governments of Cuba and Mexico to discuss shared maritime boundaries in the Gulf of Mexico”

“Initiating a review of Cuba’s designation as a State Sponsor of Terrorism-

The President has instructed the Secretary of State to immediately launch such a review, and provide a report to the President within six months regarding Cuba’s support for international terrorism. Cuba was placed on the list in 1982.”[1]

“Addressing Cuba’s participation in the 2015 Summit of the Americas in Panama-

President Obama will participate in the Summit of the Americas in Panama. Human rights and democracy will be key Summit themes. Cuban civil society must be allowed to participate along with civil society from other countries participating in the Summit, consistent with the region’s commitments under the Inter-American Democratic Charter. The United States welcomes a constructive dialogue among Summit governments on the Summit’s principles.” (Emphasis added.)

“Unwavering Commitment to Democracy, Human Rights, and Civil Society

A critical focus of our increased engagement will include continued strong support by the United States for improved human rights conditions and democratic reforms in Cuba. The promotion of democracy supports universal human rights by empowering civil society and a person’s right to speak freely, peacefully assemble, and associate, and by supporting the ability of people to freely determine their future. Our efforts are aimed at promoting the independence of the Cuban people so they do not need to rely on the Cuban state. (Emphasis added.)

The U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance, promote human rights and fundamental freedoms, and support the free flow of information in places where it is restricted and censored. The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba, and we will encourage reforms in our high level engagement with Cuban officials. (Emphasis added.)

The United States encourages all nations and organizations engaged in diplomatic dialogue with the Cuban government to take every opportunity both publicly and privately to support increased respect for human rights and fundamental freedoms in Cuba.

Ultimately, it will be the Cuban people who drive economic and political reforms. That is why President Obama took steps to increase the flow of resources and information to ordinary Cuban citizens in 2009, 2011, and today. The Cuban people deserve the support of the United States and of an entire region that has committed to promote and defend democracy through the Inter-American Democratic Charter.”

Background Conference Call

On December 17 two hours before President Obama’s speech to the nation, the White House conducted an hour-long “background” conference call with journalists and seven unnamed senior administration officials regarding these matters.

Among other things, one of the officials said the U.S. expects that “we’ll continue to have strong differences, particularly on issues related to democracy and human rights. The [U.S.] will continue to promote our values. We will continue to support civil society in Cuba. We’ll continue our democracy programming.” In President Obama’s December 16th telephone call with President Raúl Castro, Obama “made clear his intent . . . to continue our advocacy for human rights in Cuba.”

A State Department official stated the U.S. would not reduce its “emphasis on human rights, on democracy, on the importance of civil society. . . . In fact, our emphasis on human rights will be just as strong and we believe more effective under this policy. We will engage directly with the Cuban government on human rights.”

For example, the State Department official stated a U.S. diplomat in Havana “will be meeting with members of Cuban society and dissidents later today to walk them through the President’s initiatives of today, and to emphasize to them, as well, that their efforts on behalf of democracy and human rights in Cuba not only won’t be forgotten in these initiatives, but will, in fact, take center stage.”

In response to a question as to whether there were discussions with Cuba about “USAID programs that have been pretty controversial in Cuba,” an administration official said U.S. “democracy programming . . . did factor into the discussions [with Cuba]. The Cubans do not like our democracy programming. They consistently protest those initiatives. . . . [The U.S., however,] made clear that we’re going to continue our support for civil society for the advancement of our values in Cuba. [This] . . . was an issue of difference that we will continue to have with Cuba, and we fully expect them to raise those issues just as we will raise issues with the Cubans about democracy and human rights. However, we’re going to do that through a normal relationship. We’re going to do that through our embassy in Havana. We’re going to do that through contacts between our various agencies.”[2]

Vice President Biden’s Telephone Calls with Presidents of Colombia and Mexico

The White House reported that Vice President Joe Biden made telephone calls about the new initiatives with Cuba to President Juan Manuel Santos of Colombia and to President Enrique Pena Nieto of Mexico. After outlining the agreement, Biden told each of them that President Obama intended to attend the Summit of the Americas in Panama next April “as long as Cuban civil society is allowed to participate and human rights and democracy are on the agenda.” In the call to President Nieto, Biden said that the U.S. would initiate discussions with Cuba and Mexico about the unresolved maritime boundary of the Gulf of Mexico.

Conclusion

I concur in most of the FACT SHEET’s assertions about democracy and human rights that suggest that the U.S. will engage and work with the Cuban government to improve the Cuban people’s political, social and economic rights and that the U.S. no longer will seek to impose such rights or values on the Cuban people through covert or “discreet” programs. These statements are the following:

(i) “It does not serve America’s interests, or the Cuban people, to try to push Cuba toward collapse. We know from hard-learned experience that it is better to encourage and support reform than to impose policies that will render a country a failed state. With our actions today, we are calling on Cuba to unleash the potential of 11 million Cubans by ending unnecessary restrictions on their political, social, and economic activities.”
(ii) “U.S. engagement will be critical when appropriate and will include continued strong support for improved human rights conditions and democratic reforms in Cuba and other measures aimed at fostering improved conditions for the Cuban people.”
(iii) “A critical focus of our increased engagement will include continued strong support by the United States for improved human rights conditions and democratic reforms in Cuba. The promotion of democracy supports universal human rights by empowering civil society and a person’s right to speak freely, peacefully assemble, and associate, and by supporting the ability of people to freely determine their future. Our efforts are aimed at promoting the independence of the Cuban people so they do not need to rely on the Cuban state.”
(iv) The U.S. “will encourage [such] reforms in our high level engagement with Cuban officials.”

Other statements in the FACT SHEET, however, seems to undercut this benign interpretation: (i) “The U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance, promote human rights and fundamental freedoms, and support the free flow of information in places where it is restricted and censored. The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba. . . .” (ii) “The U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance, promote human rights and fundamental freedoms, and support the free flow of information in places where it is restricted and censored. The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba.” [3]

According to the FACT SHEET, “President Obama will participate in the Summit of the Americas in Panama. Human rights and democracy will be key Summit themes. Cuban civil society must be allowed to participate along with civil society from other countries participating in the Summit.” The account of the Vice President’s telephone calls, however, seems to add that President Obama intends to attend the Summit of the Americas in Panama next April “as long as Cuban civil society is allowed to participate and human rights and democracy are on the agenda.” I was surprised and disappointed to read that there was a precondition to Obama’s attending the summit: Cuba’s allowing members of its civil society to attend and participate in the Summit. While it may be a good idea to have civil society representatives from all countries, including Cuba, attend and participate, I think it unwise for the U.S. to provide Cuba with a veto on Obama’s attendance if it does not have such representatives there. I hope that this interpretation of the Vice President’s remarks is unfounded.

I am unaware of the details of the dispute about the maritime boundaries of the Gulf of Mexico, but assume that it relates to oil or other resources under the Caribbean.

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[1] Prior posts discussed the legal and political issues of rescinding the designation of Cuba as a “State Sponsor of Terrorism” and the U.S.’ previous concessions that Cuba has provided assurances that it will not commit future acts of terrorism.

[2] On December 20^th Secretary of State John Kerry, Secretary of Commerce Penny Pritzker and Treasury Secretary Jacob J. Lew co-authored an article in the Miami Herald. It said the U.S. would have “continued strong support for improved human-rights conditions and democratic reforms in Cuba” and would “continue to implement programs to promote positive change in Cuba.”

[3] The previous democracy/human rights programs of the U.S. Agency for International Development (USAID) and the Department of State will be part of a subsequent post about the recent controversy about Cuba’s cancellation of n “open-microphone” event and arrests of its organizers.

The U.S. Has Conceded Many Reasons Why Cuba Has Provided Assurances That It Will Not Support Future Acts of International Terrorism

As mentioned in a prior post, the U.S. since December 17, 2014, has been investigating whether it may rescind the Department of State’s designation of Cuba as a “State Sponsor of Terrorism” under provisions of Section 6 (j) (4) of the Export Administration Act (50 U.S.C. § 2405(j)(4)). That statute allows any president to make such a rescission by submitting to Congress, at least 45 days in advance, “a report justifying the rescission and certifying that (i) the government concerned has not provided any support for international terrorism during the preceding six-month period; and (ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.” (Emphasis added.)

Cuba has been put into the “State Sponsor” designation every year since 1982, and this blogger has read and reviewed all of the State Department annual terrorism reports that are available online (1996-2013). The five most recent reports (2009-2013) have been subjected to detailed analysis in blog posts with the conclusion that said designations of Cuba are absurd, ridiculous, stupid and cowardly. Those are the posts covering the reports for 2009, 2010, 2011, 2011 (supplement), 2012, 2013, 2013 (supplement).

One of the reasons why those designations are not justified is a collection of U.S. admissions in these very reports that in essence say that Cuba already “has provided assurances that it will not support acts of international terrorism in the future,” one of the statutory grounds for rescission of the designation. Here are at least some of those admissions, the details of which can be found in the previously mentioned blog posts:

In 2001 (after 9/11) Cuba “signed all 12 UN counterterrorism conventions as well as the Ibero-American declaration on terrorism.” After 9/11, “the Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates.”

“Cuba no longer supports armed struggle in Latin America and other parts of the world.”

“There was no evidence that Cuba had sponsored specific acts of terrorism,” and “no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.”

In 2010 the Government of Cuba was “aware of the border integrity and transnational security concerns posed by such transit and investigated third country migrant smuggling and related criminal activities. In November [2010], the [Cuban] government allowed representatives of the [U.S.] Transportation Security Administration to conduct a series of airport security visits throughout the island.”

In 2010 “the Cuban government continued to aggressively pursue persons suspected of terrorist acts in Cuba.”

In 2010 the Government of Cuba “maintained a public stance against terrorism and terrorist financing.”

There was “no evidence of terrorist-related money laundering or terrorist financing activities in Cuba” and “no evidence of direct financial support for terrorist organizations by Cuba.”

Cuba has adopted laws permitting the tracking, blocking, or seizing terrorist assets (Cuba’s Law 93 Against Acts of Terrorism and Instruction 19 of the Superintendent of the Cuban Central Bank).

After the multilateral “Financial Action Task Force (FATF) identified Cuba as “having strategic AML/CFT [Anti-Money Laundering/Combating the Financing of Terrorism] deficiencies,” Cuba in 2012 “became a member of the Financial Action Task Force of South America against Money Laundering [GAFISUD], a FATF-style regional body. With this action, Cuba has committed to adopting and implementing the FATF Recommendations.” Thereafter Cuba “officially engaged with the FATF and has also attended [the meetings of the relevant regional organizations] CFATF [Caribbean Financial Action Task Force] and GAFISUD.”

Although not mentioned in the U.S. reports, FATF in June 2014 said, “ Cuba has made significant progress to improve its AML/CFT regime.” Four months later (October 2014), “FATF welcomes Cuba’s significant progress in improving its AML/CFT regime and notes that Cuba has established the legal and regulatory framework to meet its commitments in its action plan. . . . Cuba therefore is no longer subject to the FATF’s monitoring process. . . . Cuba will work with GAFISUD to further strengthen its AML/CFT regime.”

Also not mentioned in the U.S. terrorism reports was the CIA’s judgment in August 2003 that ‘We have no credible evidence, however, that the Cuban government has engaged in or directly supported international terrorist operations in the past decade, although our information is insufficient to say beyond a doubt that no collaboration has occurred.”

In addition to these U.S. admissions, Cuba publicly has stated that its “territory has never been and never will be utilized to harbor terrorists of any origin, nor for the organization, financing or perpetration of acts of terrorism against any country in the world, including the [U.S.]. . . . The Cuban government unequivocally rejects and condemns any act of terrorism, anywhere, under any circumstances and whatever the alleged motivation might be.”

Although not mentioned in the U.S. reports, in 2002, the government of Cuba proposed to the U.S. the adoption of a bilateral agreement to confront terrorism, an offer that it reiterated in 2012, without having received any response from the U.S.

Conclusion

As a result, I am confident that the Department of State’s investigation will conclude that Cuba “has provided assurances that it will not support acts of international terrorism in the future,” one of the statutory grounds for rescission of the designation; that the other ground–Cuba “has not provided any support for international terrorism during the preceding six-month period”—will be satisfied; and that the President will decide, presumably this June, to rescind the designation effective 45 days thereafter.

Then the focus will shift first to Congress to see whether it will adopt a joint resolution against the rescission. If it does, presumably President Obama will veto the joint resolution. Then focus would return to Congress to see if there are the necessary two-thirds votes in each chamber to override the veto.

U. S. citizens supporting the U.S.-Cuba reconciliation should follow this issue closely and lobby their Senators and Representatives to oppose any measure to countermand a presidential decision for rescission.

Legal and Political Issues Regarding U.S. Rescinding Designation of Cuba as a “State Sponsor of Terrorism”

Under the December 17^th U.S.-Cuba agreements, the U.S. is obligated to review whether the U.S. should rescind its designation of Cuba as a “State Sponsor of Terrorism” under U.S. law. This review is to be completed with a report to the President within six months (or by June 17, 2015). The President already has instructed Secretary of State John Kerry to “immediately launch” that review.

Commentary by the Department of State

The same day Secretary of State Kerry announced that he already “had asked my team to initiate a review of Cuba’s designation as a State Sponsor of Terrorism.”

The next day, December 18^th, Assistant Secretary of State, Bureau of Western Hemisphere Affairs, Roberta S. Jacobson, held a press briefing on the many issues raised by the U.S.-Cuba rapproachment. She said the Bureau had “begun already – the process that we need to do under the law on the question of the state sponsor of terrorism listing, which has been in place since 1982.”

The Assistant Secretary added, “we’re not going to prejudge the outcome of the process we’ve just undertaken. . . . We’re going to undertake this review. We’re going to take it where the facts lead us on this. . . . At the end of that process, were Cuba to be removed from the list, there are a series of things that get taken off, some forms of sanction that get taken off. Although in Cuba’s case, I will say there are some overlapping . . . of things that may have been part of the state sponsor of terrorism list, and it may subsequently have been part of the Libertad Act or other legislation that deals with Cuba.”

In addition, she said,“[T]he law is fairly specific. . . . We have to review the record of Cuba over the last six months and ensure that they have not been participants or supported acts of international terrorism over the last six months. We have to look at whether they have renounced the use of terrorism. We have to look at their ratification of international instruments against terrorism. . . . I would have to look and check to see if there are other things that are in the law. . . . We then have to send any report that has conclusions on those subjects [to the President for his approval and transmittal] to the Congress, where it has to remain for 45 days. It’s an informing of Congress, not a request for approval or denial. It’s just an informing.”

Another point on the legislative process for the hypothetical recommended termination of such a designation was made at the November 17^th daily press briefing. The Departmental spokesperson said, “The relevant statutes also provide that . . . within 45 days after the receipt of the report from the President [deciding for rescission], the Congress would need to enact a joint resolution on the matter prohibiting this in order for it not to happen.” However, this statement is incomplete and, therefore, erroneous, as discussed below. While joint resolutions like bills have to be passed by both houses of Congress, they then have to be submitted to the president for signature or veto. In this hypothetical situation, any such joint resolution would be vetoed by the president.

The Merits of Past Designations of Cuba as a “State Sponsor“

This blog already has concluded that such designation is absurd, ridiculous, stupid and cowardly for 2009, 2010, 2011, 2011 (supplement), 2012, 2013, and 2013 (supplement). I believe that any rational person would come to the same conclusion as has the New York Times Editorial Board this October and December.

That, however, is not the end of the story.

Statute Regulating Rescission of a “State Sponsor” Designation

As Assistant Secretary Jacobson alluded to, under provisions of Section 6 (j) (4) of the Export Administration Act (50 U.S.C. § 2405(j)(4)) the following two alternative restrictions are imposed on any Administration’s rescission of any such designation.

First, the President may rescind such a designation by submitting, before the rescission takes effect, a report to Congress certifying that “(i) there has been a fundamental change in the leadership and policies of the government of the country concerned; [and] (ii) that government is not supporting acts of international terrorism; and (iii) that government has provided assurances that it will not support acts of international terrorism in the future.” This is not relevant for Cuba because there has not been “a fundamental change of leadership” in Cuba.

Second, and alternatively, the President may rescind such a designation by submitting to Congress, at least 45 days in advance, “a report justifying the rescission and certifying that (i) the government concerned has not provided any support for international terrorism during the preceding six-month period; and (ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.” Assistant Secretary Jacobson’s comments confirm that this is the relevant option for the Administration, and a future post will summarize concessions in the U.S.’ purported justifications for its prior designations that instead support the conclusion that Cuba ¨has provided assurances that it will not support acts of international terrorism in the future.¨

Such a report to Congress is merely an “informing” function, as the Assistant Secretary mentioned. But if Congress disagrees with the President’s decision to remove a country from the list, it could seek to block the rescission through a bill or a joint resolution.

Given the Republicans control of both houses of the Senate (54 of 100 with 44 Democrats and 2 Independents) and the House (247 to 188 Democrats) in the 114^th Congress (2015-2017) and the belligerent opposition of some Republicans like Senator Marco Rubio to the new U.S.-Cuba path to reconciliation, such a legislative attempt to block the removal, in my opinion, can be expected.

But any such attempt, by bill or joint resolution, has to be submitted to the president for approval or veto. Obama presumably would veto any such measure, thereby requiring under Article I, Section 7 of the Constitution each house of Congress to obtain a two-thirds vote to override the veto. The Republicans by themselves will not have enough votes to override. If the Republicans had total party unity in such an effort, they would need 13 Democratic Senators and 43 Democratic Representatives to join them to overturn such a presidential veto. I think it unlikely they could obtain those extra votes. Let us hope they are not able to obtain such a super majority. We should lobby the Democratic Senators and Representatives (and some Republicans, like Senator Flake of Arizona) not to do so.

Conclusion

Stay tuned for future developments on the issue of rescinding the U.S. designation of Cuba as a “State Sponsor of Terrorism.” Be ready to lobby senators and representatives to resist any efforts to countermand any rescission.