Secretary of State John Kerry’s Review of His Stewardship of U.S. Foreign Policy Regarding Cuba    

On January 5 Secretary of State John Kerry issued his lengthy “Cabinet Exit Memo” to President Obama. It reviewed his stewardship of American foreign policy over the last four years and defended U.S. efforts to combat climate change, the Iran nuclear deal, the need to confront hostile Russian actions and to welcome refugees and many other specific policies.[1]

U.S. Policies Regarding Cuba

Here is what he said about Cuba near the end of the memo.

“For over fifty years, our efforts to isolate Cuba failed to advance our objective of empowering Cubans to build an open and democratic country. In fact, it was often the United States – not Cuba – that was left isolated by this policy.”

“That’s why President Obama decided it was time for a new approach that would enhance our engagement with the Cuban people and better support their aspirations. Over the last two years, we have reestablished diplomatic relations with Cuba, reopened our Embassy in Havana, and advanced engagement efforts on a number of fronts. For the first time in fifty years, we have reestablished direct commercial flights and direct mail flights between the United States and Cuba. We have lifted the restrictions on certain Cuban products, opened doors for cooperation in mutually-beneficial areas such as marine protected areas and health, and facilitated an expansion of authorized travel to Cuba. We continue to support improved human rights and democratic reforms in Cuba and are confident that this new approach will be a more effective way to do so.”

“Going forward, if we want to deepen the connections that bind our nations and our peoples, it is critical for Congress to lift the embargo on Cuba, an outdated burden on the Cuban people that continues to impede U.S. interests. Over time, we believe greater engagement will serve the interests of both the American people and Cuban people, and provide a better foundation for growth and progress in the relationship between our countries.” (Emphasis added.)

“Our new relationship with Cuba has also removed an irritant in our relationships throughout the Western Hemisphere. Throughout this administration, we have worked to advance a Western Hemisphere that is prosperous, secure, democratic, and that plays a greater global role. . . . . And in the years ahead we should continue to forge partnerships throughout the Western Hemisphere rooted in mutual respect and shared values.”

Conclusion

Thank you, Secretary Kerry, for your many efforts to enhance U.S. engagement with the Cuban people and support their aspirations. Now it is up to U.S. citizens to strengthen our defense of those past efforts and to advocate for further engagement and normalization, including ending the U.S. embargo of the island.

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[1] U.S. State Dep’t, Exit Memo from Secretary Kerry to President Obama (Jan. 5, 2017); Morello, Secretary of State John Kerry’s exit memo is filled with policies that Trump could undo, Wash. Post (Jan. 5, 2017).

U.S. Reactions to the Death of Fidel Castro

The November 25th death of Fidel Castro has prompted comments from President-Elect Donald Trump and his aides, the Obama Administration, U.S. Senators and Representatives, U.S. editorial boards and columnists and U.S. business interests and others. All of this has fueled speculation about the future Trump Administration’s policies regarding Cuba. These topics will be explored in this post along with this blogger’s observations.

President-Elect Trump and His Aides[1]

On Saturday morning after Castro’s death the previous night, Donald Trump tweeted, “Fidel Castro is dead!” Later that same day he issued this statement:”Though the tragedies, deaths and pain caused by Fidel Castro cannot be erased, our administration will do all it can to ensure the Cuban people can finally begin their journey toward prosperity and liberty. While Cuba remains a totalitarian island, it is my hope that today marks a move away from the horrors endured for too long, and toward a future in which the wonderful Cuban people finally live in the freedom they so richly deserve.”

Vice President-Elect Mike Pence on Saturday voiced a similar reaction in a tweet: “The tyrant Castro is dead. New hope dawns. We will stand with the oppressed Cuban people for a free and democratic Cuba. Viva Cuba Libre!”

On November 28, Trump issued another tweet on the subject. He said, “If Cuba is unwilling to make a better deal for the Cuban people, the Cuban/American people and the U.S. as a whole, I will terminate deal.”

These comments were corroborated by Trump’s top aides.

On Sunday, November 27, two of the aides said that Trump would demand the release of political prisoners held in Cuba and push the government to allow more religious and economic freedoms. Reince Priebus, the incoming White House chief of staff, said the president-elect “absolutely” would reverse Mr. Obama’s policies if he didn’t get what he wanted from Cuba. “We’re not going to have a unilateral deal coming from Cuba back to the [U.S.] without some changes in their government. Repression, open markets, freedom of religion, political prisoners—these things need to change in order to have open and free relationships, and that’s what president-elect Trump believes, and that’s where he’s going to head.” Similar comments were made the same day by Trump’s spokeswoman, Kellyanne Conway.

On Monday, November 28, Trump spokesman Jason Miller gave this more nuanced statement to reporters: “Clearly, Cuba is a very complex topic, and the president-elect is aware of the nuances and complexities regarding the challenges that the island and the Cuban people face. This has been an important issue, and it will continue to be one. Our priorities are the release of political prisoners, return of fugitives from American law, and also political and religious freedoms for all Cubans living in oppression.”

The Obama Administration[2]

President Barack Obama’s statement extended the U.S. “hand of friendship to the Cuban people” and stated that “history will record and judge the enormous impact of this singular figure on the people and world around him.” According to the President, Cubans “will recall the past and also look to the future. As they do, the Cuban people must know that they have a friend and partner” in America.

U.S. Secretary of State John Kerry issued a similar positive statement. He extended “our condolences to the Cuban people today as they mourn the passing of Fidel Castro. Over more than half a century, he played an outsized role in their lives, and he influenced the direction of regional, even global affairs. As our two countries continue to move forward on the process of normalization — restoring the economic, diplomatic and cultural ties severed by a troubled past — we do so in a spirit of friendship and with an earnest desire not to ignore history but to write a new and better future for our two peoples.”

On November 28 White House Press Secretary Josh Earnest responded to several questions about Cuba and Castro’s death. Here are a few of those responses:

  • For the U.S., “I wouldn’t expect any impact [of Castro’s death] on the kind of progress that we’re committed to making on our end to begin to normalize relations with Cuba.”
  • “[W]e have seen . . . greater freedom for American citizens to visit Cuba, to send money to family members in Cuba, to engage in business and seek business opportunities in Cuba.  It also enhanced the ability of the [U.S.] government to maintain an embassy in Cuba where U.S. officials can more effectively not just engage with government officials in Cuba but also those activists in civil society that are fighting for greater freedoms. . . . They also facilitate the kind of people-to-people ties that we believe will be more effective in bringing freedom and opportunity to the Cuban people, something that they have long sought and been denied by the Cuban government.  And after five decades of not seeing any results, the President believed it was time to see something different. . . . [We] clearly haven’t seen all the results that we would like to see, but we’re pleased with the progress.”
  • Castro “obviously is a towering figure who had a profound impact on the history of not just his country but the Western Hemisphere.  There certainly is no whitewashing the kinds of activities that he ordered and that his government presided over that go against the very values that . . . our country has long defended.”
  • “[T]here is no doubt that we would like to see the Cuban government do more [on human rights], but this policy has not even been in place for two years.  But we certainly have enjoyed more benefits than was enjoyed under the previous policy that was in place for more than 50 years and didn’t bring about the kinds of benefits or the kinds of progress that we would like to see.”
  • “[T]hose Cuban citizens that do work in industries, like cab drivers or working in restaurants, even Airbnb owners, are benefitting from the enhanced economic activity between Cuban citizens and American citizens who are visiting Cuba.  They are paid at a higher rate, and they’re enjoying more economic activity than they otherwise would because of this policy to normalize relations with Cuba. . . . [T]here is a growing entrepreneurial sector inside of Cuba that is benefitting from greater engagement with the United States.  That’s a good thing, and that is a benefit that is enjoyed by the Cuban people directly.”
  • “[T]here certainly is no denying the kind of violence that occurred in Cuba under the watch of the Castro regime.  There has been no effort to whitewash the history, either the history between the United States and Cuba or the history of what transpired in Cuba while Mr. Castro was leading the country.”
  • “That’s why upwards of 90 percent of the Cuban people actually support this policy and they welcome the greater engagement with the United States.  They welcome the increased remittances that are provided Cuban-Americans to family members in Cuba.  They welcome the increase in travel by American citizens to Cuba.  There’s a lot to offer.  And the Cuban people certainly benefit from that kind of greater engagement.  And that’s why the President has pursued this policy.”
  • The U.S. “relationship with countries throughout the Western Hemisphere, particularly in Latin America, is as strong as it’s been in generations. And all of that would be undone by the reinstitution of a policy that has failed after having been in place for more than five decades.”

The next day, November 28, Press Secretary Ernest announced that the U.S. will not send a formal delegation to Cuba to attend the Castro funeral but instead will dispatch a top White House aide and a principal Cuba-normalization negotiator, Benjamin J. Rhodes, to be joined by , the top U.S. diplomat in Cuba.

U.S. Senators and Representatives[3]

Senator Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, stated, Under Fidel Castro’s brutal and oppressive dictatorship, the Cuban people have suffered politically and economically for decades, and it is my hope that his passing might turn the page toward a better way of life for the many who have dreamed of a better future for their country. Subsequently after meeting with Mr. Trump about a possible appointment as Secretary of State, Corker said Mr. Trump’s “instincts on foreign policy are obviously very, very good.”

The Ranking Member of that committee, Senator Ben Cardin (Dem., MD), said, “The news of Fidel Castro’s death brings with it an opportunity to close the deep divisions that have been suffered by Cuban society and by Cuban Americans in the U.S.  For Castro’s purported goals of social and economic development to be attained, it is now time for a half-century of authoritarian rule to give way to the restoration of democracy and the reform of a system the has denied Cuba’s citizens their basic human rights and individuals freedoms. As the United States awaits a new Administration, we must continue our partnership with the Cuban people as they seek to build a more hopeful future for their country.”

Senator Marco Rubio of Florida, a Cuban-American and Republican presidential candidate this year, said in a statement: “Sadly, Fidel Castro’s death does not mean freedom for the Cuban people or justice for the democratic activists, religious leaders, and political opponents he and his brother have jailed and persecuted. The dictator has died, but the dictatorship has not…The future of Cuba ultimately remains in the hands of the Cuban people, and now more than ever Congress and the new administration must stand with them against their brutal rulers and support their struggle for freedom and basic human rights.” Senator Bob Menendez (Dem., N.J.), a Cuban-American who has opposed Mr. Obama’s policy, issued a similar statement.

Senator Jeff Flake (Rep., AZ), who has supported normalization and is the lead author of a Senate bill to end the embargo, merely said, “Fidel Castro’s death follows more than a half century of brutal repression and misery. The Cuban people deserve better in the years ahead.”

Minnesota’s Senator Amy Klobuchar (Dem.), the author of a Senate bill to end the U.S. embargo of the island, said the following: “Passing my bill with Republican Senator Jeff Flake to lift the trade embargo with Cuba would create jobs and increase exports for American farmers and businesses, and it could create unprecedented opportunity for the Cuban people. For far too long, U.S.-Cuba policy has been defined by the conflicts of the past instead of the realities of today and the possibilities for the future. The Cuban and American people are ahead of their governments in terms of wanting to see change. We need to seize this opportunity and lift the trade embargo.”

Minnesota’s other Senator, Al Franken (Dem.) said that, in the wake of Castro’s death, he hopes the Obama administration’s work to repair relations with the island nation is upheld by a new administration. “Over the past few years, we’ve made important strides to open up diplomatic relations with Cuba, and now I urge the country’s leadership to put a strong focus on improving human rights and democracy.”

On the House side, one of Minnesota’s Republican representative and an author of a bill to end the embargo, Tom Emmer, said that Congress should seize the opportunity to “assist in the transition to a democracy and market economy” in Cuba and denounced “isolation and exclusion.” He added, “The passing of Fidel Castro is yet another reminder that a new day is dawning in Cuba. As the remaining vestiges of the Cold War continue to fade, the United States has a chance to help usher in a new Cuba; a Cuba where every citizen has the rights, freedom and opportunity they deserve.”

The statement from the Speaker of the House, Paul Ryan (Rep., WI), stated, “Now that Fidel Castro is dead, the cruelty and oppression of his regime should die with him. Sadly, much work remains to secure the freedom of the Cuban people, and the United States must be fully committed to that work. Today let us reflect on the memory and sacrifices of all those who have suffered under the Castros.”

U.S. Editorial Boards and Columnists[4]

The New York Times’ editorial opposed any retreat from normalization. It said such a move would be “extremely shortsighted.” The new process of normalization, it says, “has helped establish conditions for ordinary Cubans to have greater autonomy in a society long run as a police state. It has also enabled Cuban-Americans to play a larger role in shaping the nation’s future, primarily by providing capital for the island’s nascent private sector. While the Cuban government and the Obama White House continue to have profound disagreements on issues such as human rights, the two governments have established a robust bilateral agenda that includes cooperation on environmental policy, maritime issues, migration, organized crime and responses to pandemics. These hard-won diplomatic achievements have benefited both sides.”

 If, on the other hand, said the Times, the normalization process is abandoned, U.S.-Cuba “cooperation is likely to wane. That would only embolden hard-liners in the Cuban regime who are leery of mending ties with the United States and are committed to maintaining Cuba as a repressive socialist bulwark. In Mr. Trump, they may find the ideal foil to stoke nationalism among Cubans who are fiercely protective of their nation’s sovereignty and right to self-determination.”

The editorial from the Washington Post, while criticizing some aspects of President Obama’s opening to Cuba, stated U.S. policy should “align itself with the hopes of ordinary Cubans and the legitimate demands of the island’s pro-democracy movements. That does not necessarily mean reversing the renewal of diplomatic relations and relaxed restrictions on the movement of people and goods; most Cubans still want that. But it should mean that official exchanges with the regime, and any concessions that benefit it, should be tied to tangible reforms that benefit the public: greater Internet access, expansion of space for private business and tolerance of critical speech and assembly by such groups as the Ladies in White.”

Conservative columnists and commentators welcomed Fidel’s death. George Will hoped, if not reasonably expected, “to have seen the last of charismatic totalitarians worshiped by political pilgrims from open societies. Experience suggests there will always be tyranny tourists in flight from what they consider the boring banality of bourgeois society and eager for the excitement of sojourns in ‘progressive’ despotisms that they are free to admire and then leave. Carlos Eire, a Cuban exile, author and the T.L. Riggs Professor of History and Religious Studies at Yale University, suggested a 13-point negative epitaph for Fidel’s tomb. The first point was: ”He turned Cuba into a colony of the Soviet Union and nearly caused a nuclear holocaust.” The last point was this: “He never apologized for any of his crimes and never stood trial for them.”

Another Washington Post columnist, Kathleen Parker, agreed that Fidel was a terrible dictator, but argued that Mr. Trump “should understand that Fidel Castro loved the embargo more than anyone because, as ever, he could blame the [U.S.] for his failures. For Trump to fall into this same trap [by keeping the embargo] would be a postmortem gift to Castro and breathe new life into a cruel legacy — the dictator’s final triumph over the [U.S.] and the several American presidents who could never quite bury him.”

U.S. Business Interests and Others[5]

Important interests that typically are regarded as important by Republicans are arguing against any retreats from the Obama Administration’s pursuit of normalization of Cuba relations

First, many U.S. companies are now deeply invested in Cuba under the current administration’s policy. These companies include major airlines, hotel operators and technology providers, while big U.S. phone carriers have signed roaming agreements on the island. “I think the American business community would be strongly opposed to rolling back President Obama’s changes, and strongly in favor of continuing the path toward normalization of economic and diplomatic relations,” said Jake Colvin, vice president of the National Foreign Trade Council.

Second, the U.S. farming industry is strongly supportive of normalization of U.S.-Cuba relations. For example, Kevin Paap, president of the Minnesota Farm Bureau, does not want the next administration to take any steps that would put U.S. farmers at a further disadvantage in the Cuban market. “Every other country in the world has diplomatic and trade relations with Cuba, and what we don’t want to do is lose that market share to the European Union, Brazil, Argentina.” Mr. Paap added that U.S. market share in Cuba has decreased in recent years as other countries are able to provide better financing.

But agricultural producers across the country, from rice producers in Louisiana to Northwest apple farmers to Kansas wheat growers have pushed for more, including lifting a ban prohibiting Cuba from buying American agricultural goods with U.S. credit.

Cuba’s wheat consumption is about 50 million barrels a year, said Daniel Heady, director of governmental affairs at the Kansas Association of Wheat Growers. Although not a huge market, “it’s right off the coast and it would be extremely easy for us to deliver our product.” “It is something that Kansas farmers are extremely interested in,” Heady said. “In a world of extremely depressed commodity prices, especially wheat, 50 million bushels looks extremely good right now.”

Republican governors from Texas, Arkansas and elsewhere have led trade delegations to Cuba, along with their state farm bureaus and chambers of commerce.

A U.S. journalist with extensive experience with Cuba, Nick Miroff, echoed these thoughts. He said, “A return to more hostile [U.S.-Cuba] relations . . . could also bring a new crackdown in Cuba and further slow the pace of Raúl Castro’s modest liberalization  measures at a time of stalling economic growth. Hard-liners in Cuba’s Communist Party would gladly take the country back to a simpler time, when the antagonism of the United States — not the failure of government policies — was to blame for the island’s problems, and the threat of attack, real or imagined, was used to justify authoritarian political control.’

Moreover, according to a Wall Street Journal report, any U.S. abandonment of normalization with Cuba “could drive a new wedge between Washington and Latin America . . . not only by leftist allies of Cuba like Venezuela and Bolivia but also by conservative governments in Brazil, Chile, Mexico and Colombia. It would also likely complicate regional cooperation on a range of issues, from immigration to security and anti-drug efforts.”

In Miami, many of the island’s exiles and their children and grandchildren took to the streets, banging pots and pans, waving American and Cuban flags, and celebrating in Spanish: “He’s dead! He’s dead!”

Meanwhile in faraway Minnesota, even though it has relatively few Cuban exiles, celebrated its Cuban connections. They range from festivals and restaurants in the Twin Cities that preserve and highlight Cuban culture. Its politicians in Washington, D.C. have been leaders in efforts to lift the trade embargo on Cuba, citing the potential for economic and political advancements and job growth. Christian communities in Minnesota also value their religious and moral obligations to Cubans. Cuba’s expanded Mariel Port could carry Minnesota-made goods. Other Minnesota-based companies, including Sun Country Airlines, Radisson Hotels and Cargill, could benefit from lifting the embargo.

Last year the Minnesota Orchestra took a historic trip to Cuba as the first U.S. orchestra to perform there since Obama began negotiations in 2014. Next June, some Orchestra members will perform in Cuba again along with Minnesota Youth Symphonies. They also will be joined by Cuban-American jazz musician, Ignacio “Nachito” Herrera, and his wife, who works as an attorney. Herrera grew up during the Cuban Revolution and credits Castro’s leadership for the career opportunities he and his wife have achieved. Indeed, Herrera met Castro in the 1980s while being recognized in a Classic World Piano competition. Castro was humble, Herrera said, and deeply curious about his accomplishments.

Concluding Observations

This blog consistently has applauded the U.S. pursuing normalization with Cuba. The death of Fidel Castro does not change that opinion and advocacy. Fundamentally I agree with President Obama that the 50-plus years of U.S. hostility towards Cuba has not worked—it has not persuaded or forced Cuba to change its ways and it has interfered with our having friendly relations with countries throughout the world, especially in Latin America.[6]

Indeed, the countries of the Western Hemisphere in their Summits of the Americas have made it clear to fellow member the U.S. that they would no longer reluctantly acquiesce in the U.S. desire to exclude Cuba from such Summits, and at the last such gathering in 2015, after the announcement of U.S.-Cuba normalization they praised both countries for this move.[7]

The broader world disapproval of the U.S. hostility towards Cuba is shown by the annual overwhelming approvals of resolutions condemning the U.S. embargo of the island by the U.N. General Assembly. Nor should the U.S. continue to ignore its very large contingent liability to Cuba for its alleged damages from the embargo. (The U.S., of course, disputes this contingent liability, but prudence for any nation or entity facing such a large contingent liability dictates cutting off that risk by stopping the behavior that allegedly triggers the risk.)[8]

Opponents of normalization usually point to Cuban deficiencies on human rights and democracy. But such opposition fails to recognize or admit that the U.S. does not have a perfect record on these issues, including this year’s U.S. election and efforts at voter suppression and the U.S. indirect election of the president and vice president via the Electoral College. Moreover, such opponents also fail to recognize or admit that at least some Cuban limits on dissent and demonstrations undoubtedly are triggered by their fear or suspicion that the U.S. via its so-called covert or undercover “democracy promotion” programs in Cuba is financing or otherwise supporting these efforts at regime change on the island. Finally as part of the efforts at normalization the U.S. and Cuba have been having respectful dialogues about human rights issues.[9]

Another issue sometimes raised by opponents of normalization is Cuba’s failure to provide financial compensation to U.S. persons for Cuba’s expropriation of their property in the early years of the Revolution. But such criticism fails to recognize that Cuba has paid compensation to persons from other countries for such expropriation, that it is in Cuba’s interest to do the same for U.S. persons, that the two countries have been respectfully discussing this issue as well, and there is no reason to expect that this issue cannot be resolved peacefully.[10]

Opponents of normalization also seem to believe or assume that only the U.S. and Cuba are involved in these issues. That, however, is not true. Perhaps precipitated by the December 2014 announcement that Cuba and the U.S. had agreed to seek normalization and reconciliation, other countries, especially the members of the European Union, have been accelerating their efforts to resolve differences with Cuba so that the U.S. will not beat them to gain competitive advantages with the island. China also is another competitor.[11]

Finally Cuba’s current major ally, Venezuela, obviously is near collapse and being forced to reduce its support of Cuba, thereby threatening Cuba’s stability and viability. The U.S. does not want to see Cuba become a failed state 90 miles away from the U.S. Such a situation is even more dire today according to Tom Friedman’s new book, Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations. He asserts at page 270 that it “may even be more difficult [for inhabitants of a failed state to reconstitute itself] in the age of accelerations. The lifelong learning opportunities you need to provide to your population, the infrastructure you need to take advantage of the global flows [of information], and the pace of innovation you need to maintain a growing economy have all become harder to achieve. . . . Catching up is going to be very, very difficult.”

For the U.S., once again, to act like an arrogant bully towards Cuba will not achieve any good result. All U.S. citizens interested in Cuba’s welfare and having good relations with the U.S. need to resist any efforts by the new Administration to undo the progress of the last two years.

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[1] Assoc. Press, Trump Slams Recount Push as ‘a Scam,’ Says Election Is Over, N.Y. Times (Nov. 26, 2016); Reuters, Trump Says He Will do All He Can to Help Cuban People, N.Y. Times (Nov. 26, 2016); Assoc. Press, Vice-President-Elect Pence Says ‘New Hope Dawns’ for Cuba, N.Y. Times (Nov. 26, 2016); Assoc. Press, Trump Aides Say Cuban Government Will Have to Change, N.Y. Times (Nov. 27, 2016); Flaherty, Trump aides say Cuban government will have to change, StarTrib. (Nov. 27, 2016); Schwartz & Lee, Death of Fidel Castro May Pressure Donald Trump on Cuba Promises, W.S.J. (Nov. 27, 2016); Mazzei, Trump pledges to ‘terminate’ opening to Cuba absent ‘better deal,’ Miami Herald (Nov. 28, 2016); Cave, Ahmed & Davis, Donald Trump’s Threat to Close Door Reopens Old Wounds in Cuba, N.Y. Times (Nov. 28, 2016).

[2]   White House, Statement by the President on the Passing of Fidel Castro (Nov. 26, 2016); U.S. State Dep’t, Secretary Kerry: The Passing of Fidel Castro (Nov. 26, 2016); White House, Press Briefing by Press Secretary Josh Earnest, 11/28/16; White House, Press Briefing by Press Secretary Josh Earnest, 11/29/16; Harris, Obama to Send Aide to Fidel Castro’s Funeral, N.Y. Times (Nov. 29, 2016).

[3] Sen. For. Rel. Comm., Corker Statement on the Death of Fidel Castro (Nov. 26, 2016); Griffiths, Corker praises Trump as State Department speculation continues, Politico (Nov. 29, 2016; Sen. For. Rel. Comm, Cardin Statement on the Death of Fidel Castro (Nov. 26, 2016); Rubio, Rubio: History Will Remember Fidel Castro as an Evil, Murderous Dictator (Nov. 26, 2016); Menendez, Senator Menendez on Death of Fidel Castro (Nov. 26, 2016); Flake, Flake Statement on the Death of Fidel Castro (Nov. 26, 2016); Ryan, Statement on the Death of Fidel Castro (Nov. 26, 2016);The latest: US House Leader Urges Remembering Castro Cruelty, N.Y. Times (Nov. 26, 2016); Klobuchar, Klobuchar Statement on Passing of Fidel Castro (Nov. 26, 2016); Emmer, Emmer Statement on Death of Fidel Castro (Nov. 26, 2016).

[4] Editorial, Threatening Cuba Will Backfire, N.Y. Times (Nov. 29, 2016); Editorial,Editorial, Fidel Castro’s terrible legacy, Wash. Post (Nov. 26, 2016); Fidel Castro’s demise can’t guarantee freedom for the people of Cuba, Wash. Post (Nov. 28, 2016); Will, Fidel Castro and dead utopianism, Wash. Post (Nov. 26, 2016); Eire, Farewell to Cuba’s brutal Big Brother, Wash. Post (Nov. 26, 2016); Parker, Don’t give Fidel Castro the last laugh, Wash. Post (Nov. 29, 2016). Eire is the author of Learning To Die in Miami: Confessions of A Refugee Boy (2010) and Waiting for Snow in Havana (2003).

[5] DeYoung, Trump’s threat to terminate opening to Cuba may draw opposition from business, Republican states, Wash. Post (Nov. 29, 2016); Miroff, Cuba faces renewed tensions with U.S., but without Fidel Castro, its field marshal, Wash. Post (Nov. 28, 2016); Dube & Johnson, Donald Trump’s Line on Cuba Unsettles Latin America, W.S.J. (Nov. 28, 2016); Klobuchar, Minnesota Artists, Leaders Reflect on Castro’s Legacy (Nov. 26, 2016);  Miroff & Booth, In wake of Castro’s death, his legacy is debated, Wash. Post (Nov. 28, 2016).

[6] See List of Posts to dwkcommentaries—Topical: CUBA.

[7] Previous posts have discussed the Seventh Summit of the Americas in April 2015. https://dwkcommentaries.com/?s=Summit+of+the+Americas.

[8] Previous posts have discussed the U.N. General Assembly resolutions on the embargo in 2011, 2014, 2015 and 2016 and the suggested international arbitration to resolve the disputes about Cuba’s damage claims resulting from the embargo. (See posts listed in “U.S. Embargo of Cuba” section of List of Posts to dwkcommentaries—Topical: CUBA.

[9] See posts listed in “U.S. Democracy Promotion in Cuba,” “U.S. & Cuba Normalization, 2014-2015” and “U.S. & Cuba Normalization, 2015-2016” sections of List of Posts to dwkcommentaries—Topical: CUBA.

[10] See posts listed in “U.S. & Cuba Damage Claims” section of List of Posts to dwkcommentaries—Topical: CUBA.

[11] See list of posts in “Cuba & Other Countries” section of List of Posts to dwkcommentaries—Topical: CUBA.

Possible Amendments to the New Justice Against Sponsors of Terrorism Act (JASTA) 

As reported in a prior post, on September 28, the U.S. Congress overwhelmingly voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA) even though the Chair (Senator Bob Corker (Rep., TN)) and Ranking Member (Senator Benjamin Cardin (Dem., MD)) of the Senate Foreign Relations Committee and Senator Diane Feinstein expressed deep reservations about the wisdom of this law.

Immediately after the adoption of this law, Senator Corker and others expressed desires to change the new law.[1] Let us look at these concerns and efforts to amend JASTA.

Certain Senators’ Concerns

Senator Corker said he thought the issues could be addressed in the “lame-duck” /Senator session of Congress after the November election and that possible fixes included limiting the bill’s scope just to the Sept. 11 attacks, changing some of the technical definitions or thresholds in the bill and establishing a tribunal of experts who ‘could first determine if there was culpability there.’”

Without specifics Senate Majority Leader Mitch McConnell said there could be “potential consequences” of JASTA that are “worth further discussing.” House Speaker Paul Ryan said Congress might have to “fix” the legislation to protect U.S. troops in particular. Trent Lott, a former Republican Senate Majority Leader and now a lobbyist for the Saudis, said, “I do feel passionately this is a mistake for a variety of reasons, in terms of threats to troops, diplomats, sovereignty, there’s serious problems here. Hopefully we can find a way to change the tenor of this.”

 Saudi Arabia’s Reactions

On October 3 Saudi Arabia’s Cabinet released a statement criticizing the adoption of JASTA.[2] It said the new law was “a source of concern to the international community in which relations are based on the principle of equality and sovereign immunity, as this law came to weaken the immunity of the world guaranteed by the United Nations, its agencies and councils which were formed to preserve the legal sovereignty of all its member countries across the universe. Weakening this sovereign immunity will affect all countries, including the United States. [The cabinet] expressed hope that wisdom will prevail and that the U.S. Congress would take the necessary steps to avoid the bad and dangerous consequences that may result from the JASTA legislation.”

On October 20 U.S. Secretary of State John Kerry met with Saudi Arabia’s Foreign Minister Adel al-Jubeir. Afterwards the two of them held a joint announcement at the State Department.[3] With respect to JASTA, Kerry said:

  • We “did discuss [JASTA’s] very negative impact on the concept of sovereign immunity. And the interests of . . . [the U.S.] are at risk as a result of the law that was passed in Congress in the final days. And we discussed ways to try to fix this in a way that respects and honors the needs and rights of victims of 9/11 but at the same time does not expose American troops and American partners and American individuals who may be involved in another country to the potential of a lawsuit for those activities. Sovereign immunity is a longstanding, well-upheld standard of law, and unfortunately this legislation – unintentionally, I think – puts it at great risk and thereby puts our country at great risk. So we’re talking about ways to try to address that.”

Foreign Minister Adel al-Jubeir’s comments about JASTA were the following:

  • “I . . . want to add my voice to what the Secretary said about the importance of sovereign immunities. Sovereign immunities have been a cardinal principle of the international legal order that was established after the Treaty of Westphalia in the 1600s. The objective is to bring order to the international system. And where sovereign immunities are diluted, the international system becomes chaotic, and no country, and no government, is able to conduct its official business without having to worry about lawsuits. The United States, as the country with the biggest footprint in the world, of course has the most to lose by this, because you have operations all the way from Japan to South America to the Pacific, and I think that is why the vast majority of countries have come out vehemently and very strongly against . . . JASTA . . . for its dilution of sovereign immunities. And there have been a number of countries that are looking at reciprocal measures, and if this issue takes hold, we will have chaos in the international order, and this is something that no country in the world wants.”

However, neither gentleman provided details about so-called “fixes for JASTA.

Moreover, there already are “9/11 lawsuits” brought by 9,000 plaintiffs against Saudi Arabia consolidated in federal court in the Southern District of New York in Manhattan that had been dismissed, but will be resurrected under JASTA. Already there is talk about potential discovery and other pre-trial activity in the cases. This includes plaintiffs’ efforts to reinstate Saudi Arabia as a defendant. And on September 30 a new Sept. 11 lawsuit against Saudi Arabia was filed in U.S. District Court in Washington, D.C., on behalf of the widow and daughter of a Navy officer killed in the attack on the Pentagon.

However, Raj Bhala, a professor of international and comparative law at the University of Kansas Law School, opines that the “deck remains stacked against the plaintiffs” with their biggest challenge: persuading a court there is solid evidence of a direct Saudi government role in the 9/11 attacks.[4]

Other Reactions

On October 10 China’s Foreign Ministry said China opposes all forms of terrorism and supports the international community on anti-terrorism cooperation, but that such efforts should “respect international law and principles of international relations, including fundamental principles of nations’ sovereign equality.” Therefore, every country “should not put . . . [its] domestic laws above international law and should not link terrorism with any specific country, religion or ethnicity.” The Foreign Ministry also noted that China’s people and assets at home and around the world face a growing risk from terrorism, but it has a foreign policy of non-interference in other countries’ affairs.[5]

Many other countries oppose JASTA. France considers that laws such as JASTA would lead to a “legal chaos” at the international level. Russia has slammed the legislation as undermining international law. Turkey views JASTA as a law against the principle of individual criminal responsibility for crimes and expects it would be reversed shortly. Egypt’s Foreign Ministry warned that JASTA could have a dire effect on US international relations.[6]

Daniel Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, said JASTA was an example of “legislative fecklessness.” Immediately after the bill’s passage, Republican congressional leaders talked about the need to “fix” the bill and tried to blame President Obama for the problems by falsely claiming he had not made a strong case against the bill. But the president had vetoed the bill, publicly articulated the reasons for the veto and personally and through Administration officials had warned congressional leaders about the adverse implications of the bill. Thus, a “’stupid bill’ that adversely affects American national interests is now law.”[7]

A New York Times editorial, agreeing with Professor Drezner, said that the adoption of the bill over a presidential veto, was a new example of congressional “craven incompetence” and that JASTA should be repealed. A Wall Street Journal editorial also called for repeal.[8]

Conclusion

The only specific suggestions of ways to “fix” JASTA that I have seen are Senator Corker’s. The idea of creating a new tribunal presumably to assess whether a specific state has sponsored or aided and abetted acts of terrorism in the U.S. sounds too complicated, but there are not enough details about such an idea to have a detailed response. The same is the case for his other suggestion about changing some of the technical definitions or thresholds in the bill. The idea of limiting the law to 9/11, however, might be a way to see how such a law works out in practice before it is expanded to include any other situation as the law now stands.

Instead, I offer the following initial suggestions for amending JASTA on the assumption that repeal is not currently feasible:

  1. Assign exclusive jurisdiction over all civil actions under JASTA to the U.S. District Court for the District of Columbia and require or suggest that all such cases be assigned to a designated District Judge. That will assist the U.S. Departments of State and Justice, the White House and foreign governments in monitoring any such actions and eliminate the risk of inconsistent decisions at the District Court level and at the level of the federal courts of appeal. There is no reason to have any other federal courts involved in such cases and absolutely no reason to have any state courts so involved.
  2. Make the U.S. Government a necessary party to any such civil action.
  3. There should be limitations on permissible pre-trial discovery in such cases. Here is one way to do so. After answers to any complaint in any such civil action have been served and filed and before any other proceedings in the case, require the U.S. Government to provide its opinion as to whether the foreign state in any such case has sponsored or aided and abetted any acts of terrorism in the U.S. If the U.S. Government states that the foreign state has not sponsored or aided and abetted any act of terrorism in the U.S., then the civil action should be dismissed. If the U.S. Government states that the foreign state has so sponsored or aided and abetted, then the case should proceed to assess damages with appropriate discovery. If the U.S. Government states that it does not know whether the foreign state has so sponsored or aided and abetted, then the U.S. Government should propose a plan for discovery in the case to attempt to resolve that question as quickly and as inexpensively as possible with a prohibition of any discovery that is not included in such a plan.

Now we wait to see what bills will be introduced in Congress to amend JASTA.

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[1] Reuters, U.S. Lawmakers May change Sept. 11 Law After Rejecting Veto, N.Y. times (Sept. 30, 2016); Peterson & Lee, Congress Looks to Narrow Bill Allowing Terror Victims to Sue Foreign Governments, W.S.J. (Sept. 30, 2016).

[2] Reuters, U.S. Sept. 11 Law Weakens International Relations, Saudi Cabinet Says, N.Y. Times (Oct. 3, 2016); Saudi Press Agency, Press Release regarding JASTA (Oct. 4, 2016); Hubbard, Angered by 9/11 Victims Law, Saudis Rethink U.S. Alliance, N.Y. Times (Sept. 29, 2016).

[3] U.S. State Dep’t, Remarks with Saudi Arabian Foreign Minister Adel al-Jubeir After Their Meeting (Oct. 20, 2016) Reuters, U.S. Urges Houthis to Keep Ceasefire, Discusses JASTA With Saudi, N.Y. Times (Oct. 20, 2016). No additional details about any proposed “fixes” to JASTA were provided in response to questions at the State Department’s October 21 Daily Press Briefing.

[4] Mazzetti, Claims of Saudi Role in 9/11 Appear Headed for Manhattan Court, N.Y. Times (Sept. 29, 2016); Bravin, Lawyers Move Quickly After Congress Enacts Bill Allowing Suits Against Saudi Arabia, W.S.J. (Sept. 30, 2016).

[5] Reuters, China Backs Sovereign Immunity After U.S. Sept. 11 Bill Becomes Law, N.Y. Times (Oct. 10, 2016).

[6] Fotouh, JASTA: Real threats and hidden opportunities, Egypt Daily News (Oct. 24, 2016).

[7] Drezner, The unbearable idiocy of Congress, Wash. Post (Sept. 30, 2016).

[8] Editorial, Congress Has Itself to Blame for 9/11 Bill, N.Y. Times (Sept. 30, 2016); Editorial, Instant Senate Remorse, W.S.J. (Sept. 30, 2016).

An Impressionistic View of the Russian Federation

Jill Dougherty
Jill Dougherty

On October 17, Jill Doherty, a Russia expert and frequent traveler to that country, painted a verbal impressionistic portrait of today’s Russian Federation.

Russia today is weak militarily and economically, primarily due to low world prices for oil and gas and also to sanctions against Russia. This also makes Russia weak militarily with forced reductions in military budgets. Russia’s President, Vladimir Putin, who came to power in 1999, knows that, but is nonetheless determined to put Russia back on the world stage.

He has done so by injecting Russia into the Syrian conflict and Middle East affairs.[1] He has created conflicts on Russia’s perimeter with Georgia and Ukraine. He is pleased that Russia is at the center of the U.S. presidential campaign: “they may not love us, but they fear us.” He hates Hillary Clinton, whom he deems responsible for demonstrations against Russia’s parliamentary election in 2011. [The original version of this post erroneously said it was the 2012 Russian presidential election.] With respect to Trump, Putin flatters him and plays to his ego just as he did in Germany when he recruited people for the KGB.

Putin is galled by expressions of Western triumphalism over the USSR. He has a big sense of resentment against the West and quickly reacts to Western slights against Russia. Earlier this month Russia withdrew from a nuclear security agreement regarding plutonium with the U.S. Even more recently, U.S. Secretary of State John Kerry called for a war crimes investigation of Russia and Syria. Russia immediately responded by suspending talks with the U.S. over reducing violence in Syria, deploying sophisticated antiaircraft weapons in Syria and redeploying long-range ballistic missiles to Russia’s Baltic enclave of Kaliningrad.[2] Putin also talked about installing military bases in Cuba, but Doherty believes this is bluster to upset the U.S. in its pursuit of normalization with Cuba.

Russia now has an ability to criticize the West and its faith in liberal democracy. Russia sees Trump as saying just that while Europe is turning away migrants and falling apart. Robotics and artificial intelligence are increasing threats to jobs in the West. Putin believes that Russia provides a moral compass for the world with its socially conservative values.

Putin does not want to invade the Baltic states nor war with the U.S. Many Russians today, however, expect such a war in the near future. They talk about Russian military prowess, including nuclear weapons. They are buying emergency supplies of food and candles.

Russia’s relations with China are very important to Russia, which knows China could “eat its lunch.” China sees Russia as very weak, but an important source of energy for China. Russia also worries about China’s activities in central Asia.

When the Soviet Union collapsed in December 1991, Russia was very weak and chaotic with fears of a civil war with nuclear weapons. But the USSR did not dissolve in important ways. Thereafter Russia was challenged to create a new national identity. Yeltsin even had a commission to do just that, but it never completed the task. Putin, however, has done so. These are the main elements of that identity: Russian tsarism; Russian culture (the great composers, musicians, authors, playwrights and ballet dancers and choreographers); Russian bravery in the Great War for the Fatherland (World War II); the Russian Orthodox Church and its social conservatism; and modern technological accomplishments and talents.

Doherty’s mention of the contemporary importance of the Russian Orthodox Church reminded me of the 2014 Russian film, “The Leviathan,” which shows the Church’s complicity in a local government’s corruption and the absence of law; it won the Golden Globe Award for Best Foreign Language Film and was nominated for the Academy Award for Best Foreign Language Film.

Advice for next U.S. President? Do not expect to reset U.S.-Russia policies; Putin does not want that. Instead he looks for U.S. weaknesses and then reacts. He strives to be unpredictable. Do not insult or denigrate him or Russia. Try for disarmament and trade. Continue space cooperation and encourage scientific cooperation in the Arctic. Stop Russian aggression against former USSR countries. Help Ukraine economically. Putin’s presidential term ends in 2018, but it is very difficult to predict what will happen then.

Putin does not trust a lot of people and relies on a small circle of advisers. He is very popular with the people, especially the young people.

Putin had seen chaos before: he was from Leningrad, where during World War II his mother almost died of starvation, and his older brother died of dysentery at age three. After the war, Putin served the KGB in Germany and Russia and saw more chaos.

Doherty is a former thirty-year CNN Foreign Affairs Correspondent and former public policy scholar at the Kennan Institute. She holds a B.A. in Slavic languages from the University of Michigan and a M.A. from Georgetown University.

Her presentation at the University of Minnesota was sponsored by Global Minnesota, the University’s School of Journalism & Mass Communication and Minneapolis’ Museum of Russian Art.

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[1] E.g., Rosner, Israel Knows That Putin Is the Middle East’s New Sheriff, N.Y. Times (Oct. 17, 2016).

[2] E.g., Kramer, Vladimir Putin Exits Nuclear Security Pact, Citing ‘Hostile Acts’ by U.S., N.Y. Times (Oct. 3, 2016); Gordon & Sengupta, John Kerry Calls for War Crimes Investigation of Russia and Assad Government, N.Y. Times (Oct. 7, 2016); MacFarquhar, Behind Putin’s Combativeness, Some See Motives Other Than Syria,   N.Y. Times (Oct. 14, 2016); Sengupta, A Senior Russian Envoy’s Take on Relations with the United States: ‘Pretty Bad,’ N.Y. Times (Oct. 17, 2016).

 

U.S. Continues Its Absurd Special Immigration Benefits for Cubans  

This blog has frequently criticized the U.S. special immigration benefits for Cubans under the Cuban Adjustment Act and the wet foot/dry foot policy.[1]

On August 29 nine Latin American countries joined together to call for the U.S. to end these policies. Their joint letter was signed by the foreign ministers of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua, Panama and Peru, all of which recently have been affected by large numbers of Cubans transiting through their countries to reach the U.S.-Mexico border and gain admittance to the U.S. under these policies.[2]

The letter expressed their “deep concern” that U.S. policy toward Cuban migrants is creating a humanitarian crisis and encouraging “a disorderly, irregular and unsafe flow of Cubans. Cuban citizens risk their lives, on a daily basis, seeking to reach the United States. These people, often facing situations of extreme vulnerability, fall victim to mafias dedicated to people trafficking, sexual exploitation and collective assaults. This situation has generated a migratory crisis that is affecting our countries.”

The letter also requested a meeting on these issues with Secretary of State John Kerry.

The letter was announced on August 29 by Ecuador’s Foreign Minister Guillaume Long, saying, “The fact that nine foreign ministers have signed this letter shows the strength of the sentiment in Latin America that United States policy is creating a migration crisis in our region. It’s time for the U.S. to change its outdated immigration policies toward Cubans, because they are undermining regular and safe migration in our continent.” Long added that the decades-old policy also is a form of “terrible discrimination,” given that scores of migrants from other Latin American countries are forced to “hide and often live decades with the threat of deportation” if they are undocumented, while Cubans are given residence if they step foot on U.S. territory. This injustice must stop for the wellbeing of all.”

The prior week the Costa Rican Foreign Minister Manuel González told the McClatchy news organization that the issue has cost his country millions of dollars it doesn’t have and has raised complaints from Costa Ricans about spending resources on stranded foreigners when they were needed by the nation’s own citizens. “The difficulties between the U.S. and Cuba has a direct consequence on other countries in our region that serve as transit. And we are, in a way, paying the consequences of that bilateral relationship.”

Cuban migration indeed is a serious problem for these Latin American countries and for Cuba. More than 46,500 Cubans were admitted to the U.S. without visas during the first 10 months of the 2016 fiscal year compared with more than 43,000 in 2015 and just over 24,000 in 2014.

The continuation of this combined policy has been criticized by the New York Times editorial board. This “anachronistic policy is irrational, strains relations with America’s neighbors and endangers lives. It also has the effect of easing pressure on Cuba’s authoritarian government to make economic and political reforms by offering an incentive to those who are most dissatisfied with the status quo to take a dangerous way out.”[3]

A similar criticism was offered by a prominent writer on Latin American affairs, Andrés Oppenheimer. He said, “It’s time to revise the U.S. government’s special status for Cuban refugees. But it should be done as part of a new commitment by all countries in the region to grant asylum to Cuba’s political refugees, and to press Cuba to abide by international human rights laws. . . . It’s time for all sides to end Cuba policies that are relics of the Cold War. Washington should change its much-abused laws giving special status to all Cuban refugees, and Latin American countries should end their shameful silence on Cuba’s repressive dictatorship, which is at the root of Cuba’s main problems. These are new times that require new policies by all countries.”[4]

Nevertheless, on August 30, a U.S. State Department spokesman acknowledged receipt of the letter from nine Latin American countries and merely said, “the Cuban Adjustment Act remains in place and wet foot/dry foot remains U.S. policy regarding Cuban migration.” He also added these comments: “we are concerned for the safety of all migrants throughout the region, including migrants seeking to journey northward through South and Central America and Mexico. Irregular migration often involves dangerous journeys that illustrate the inherent risks and uncertainties of involvement with organized crime, including human smugglers and traffickers in attempts to reach the United States. We continue to encourage all countries to respect the human rights of migrants and asylum seekers, and to ensure that they are treated humanely. And we’re going to continue to, obviously, engage governments in the region on this issue going forward.”[5]

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[1] See posts listed in “Cuban Migration to U.S., 2015-2016” in List of Posts to dwkcommentaries—Topical: Cuba.

[2] Ordońez, Nine Latin nations band together to plead with U.S. over Cuba, InCubaToday (Aug. 29. 2016); Telesur, Nine Latin American Countries Slam US for creating migrant crisis, Global Research (Aug. 29, 2016); Assoc. Press, LatAm Diplomats Urge US to Change Policy on Cuban Migrants, N.Y. Times (Aug. 29, 2016).

[3] Editorial, Neighbors Question Cuba Migration Policy, N.Y. Times (Aug. 31, 2016).

[4] Oppenheimer, It’s time to change Cubans’ special immigration status, InCubaToday (Aug. 31, 2016).

[5] U.S. State Dep’t, Daily Press Briefing (Aug. 30, 2016).

Turkey Presses U.S. to Extradite Muslim Cleric in U.S.

In the wake of the July 15 failed coup in Turkey, its President Recep Tayyip Erdogan and others in his government have been pressing the United States as soon as possible to extradite Fethullah Gülen, a Muslim cleric now living in Pennsylvania. This request is based upon Turkey’s allegations that Gülen was the mastermind of the attempted coup.[1] The U.S., however, has not done so, stressing instead that the established U.S. legal procedures for extradition need to be followed. Turkey publicly has not accepted this response and repeatedly has criticized the U.S. for not extraditing Gülen.[2]

As explained in an earlier post, extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.  In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”[3]

Here then is a preliminary analysis of the U.S. legal issues governing any such extradition request by Turkey.

The U.S.-Turkey Extradition Treaty[4]

 The U.S. and Turkey do have such an extradition treaty that was signed in Ankara, Turkey on June 7, 1979, and entered into force on January 1, 1981.

Under Article 1 of the treaty each party has an obligation “to surrender to each other, in accordance with the provisions and conditions laid down in this Treaty, all persons who are found within the territory of the Requested Party [here, the U.S.] and who are being prosecuted for or have been charged with an offense, or convicted of an offense, or are sought by the other Party [here, Turkey] for the enforcement of a judicially pronounced penalty for an offense . . . .”

Here, Mr. Gülen apparently is found in the U.S. (the territory of the Requested Party) and is being prosecuted by Turkey (the Requesting Party). Thus, the preliminary condition of the treaty is satisfied.

Thus, the next issue is where did Mr. Gülen allegedly commit the offense. Since he apparently has not been in Turkey for many years, it would appear that whatever alleged offense he allegedly has committed was done “outside the territory of the Requesting Party” (Turkey).

That presents the next issue. Is Mr. Gülen still a citizen and thus a “national” of Turkey (the Requesting Party)? If he is, it would appear that Turkey “has jurisdiction, according to its laws, to try” him. Thus, the issue becomes whether the U.S. has an obligation to extradite him under other provisions of the treaty.

If, on the other hand, Mr. Gülen no longer is a national of Turkey, then the issue is whether “the laws of the Requested Party [the U.S.] provide for the punishment of such an offense committed in similar circumstances” and if so, whether the U.S. has an obligation to extradite him under other provisions of the treaty. Analysis of this issue would have to start with the particulars of the criminal charges under Turkish law, which so far are not readily available in public sources.

A potential treaty-based ground for the U.S. refusing to extradite Gülen is found in Article 3 (a), which states that extradition is not required, “If the offense for which extradition is requested is regarded by the Requested Party [here, the U.S.] to be of a political character or an offense connected with such an offense; or if the Requested Party concludes that the request for extradition has, in fact, been made to prosecute or punish the person sought for an offense of a political character or on account of his political opinions.” However, Article 3 (a) goes on to provide that “any offense committed or attempted against a Head of State or a Head of Government or against a member of their families shall not be deemed to be an offense of a political character.” Here, the public statements by the Turkish government certainly indicate that this exception might apply.

Another potential ground for a U.S. refusal to extradite is found in Article 3 (e): “If the offense for which extradition is requested has, according to the laws of the Requested Party [here, the U.S.], been committed in its territory and has been or will be submitted to its appropriate judicial authorities for prosecution.” (Emphasis added.) This obviously would require a U.S. prosecution, which has not yet happened and probably will not happen, in my opinion.

Yet another potential ground for a U.S. refusal to extradite Gülen is in Article 4(1): “Neither of the Contracting Parties shall be bound to extradite its own nationals.” This would require him to be a naturalized U.S. citizen, and the public information does not indicate if Gülen is such a citizen. There was a source that said he obtained a U.S. “green card” or permanent residency status in 2001, and the U.S. ambassador to Turkey in January 2015 said he believed that Gülen was not a U.S. citizen.[5]

Article 7 of the treaty has great details about the evidence that needs to be submitted, here by Turkey, to initiate a formal request for extradition. The public information to date indicates that Turkey has provided the U.S. with certain information and evidence, but whether it satisfies the requirements of Article 7 is not clear.

U.S. Obligations Under the Torture Treaty

As discussed in prior posts, the U.S. is a party to the multilateral Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and under Article 2(1) of that treaty the U.S. is obligated not “to extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture [as defined in Article 1 of that treaty].”

As indicated in a prior post, the final step in the U.S. process of determining whether an individual should be extradited includes the Secretary of State examining whether extradition would violate the U.S. obligations under the torture treaty.

With respect to Turkey this is a serious concern.

A. Concerns Raised by the U.S. State Department

The most recent U.S. State Department report on human rights around the world said this about Turkey and torture in 2015.[6] “The [Turkish] constitution and law prohibit torture and other cruel, inhuman, or degrading treatment, but there were reports that some government officials employed them. Human rights organizations continued to report allegations of torture and abuse, especially of persons who were in police custody but not in a place of detention, and during demonstrations and transfers to prison, where such practices were more difficult to document.”

“[Turkish] Prosecutors investigated allegations of abuse and torture by security forces during the year but rarely indicted accused offenders. The National Human Rights Institution (NHRI) is administratively responsible for investigating human rights violations, including allegations of torture, excessive use of force, or extrajudicial killings. Domestic human rights organizations claimed the NHRI’s failure to follow through in investigating potential human rights violations deterred victims of abuse from filing complaints. Authorities regularly allowed officers accused of abuse to remain on duty during their trial.”

“Human Rights Watch (HRW) alleged in a report published in September [2015] that [Turkish] police abused detainees in August and September while responding to perceived security threats in the Southeast. It documented three cases in which police severely beat detainees, forced men to remain in kneeling positions for hours, and threatened them with torture and execution. In another case police detained a boy who had a severe gunshot wound and for several hours denied him medical treatment.”

“[Turkish] Police in several parts of the country sometimes used disproportionate force to disrupt protests, often leading to injury.”

“Human rights groups alleged that although torture and mistreatment in police custody decreased following installation of closed-circuit cameras in 2012, police continued to abuse detainees outside police stations. On July 13, [2015] a media report included footage from security cameras showing police beating 24-year-old university student Tevfik Caner Ertay multiple times in 2013 during the Gezi Park protests before transporting him to a police station in the trunk of a police car. Ertay suffered multiple injuries, including a broken nose. Police perpetrators included some of the same officers later accused of killing fellow university student Ali Ismail Korkmaz.”

“Some human rights observers reported detainees often refrained from reporting torture and abuse because they feared retaliation or believed complaining to authorities would be futile. Human rights organizations documented cases of prison guards beating inmates and maintained those arrested for ordinary crimes were as likely to suffer torture and mistreatment as those arrested for political offenses, such as speaking out against the government.”

“Through the first nine months of the year [2015], the [Turkish] Ministry of Justice reported 98 investigations regarding allegations of torture, 26 of which resulted in indictments.”

“The HRA reported receiving hundreds of allegations of torture and excessive use of force, including 213 cases through September 21 [2015] that involved the alleged abuse of detainees. For example, on January 29, in Sirnak, police reportedly beat four citizens whom they had detained during raids of their homes.”

B. Concerns Raised by the U.N. Committee Against Torture

As explained in an earlier post, the multilateral treaty against torture created a Committee Against Torture, one of whose responsibilities is to review the records of the parties to the treaty. That Committee on June 4, 2016, did just that for Turkey by issuing 20 numbered paragraphs of “principal subjects of concern.”[7] Here are the key concerns for purposes of the pending extradition request.

“The Committee is concerned that, despite the fact that the State party has amended its law to the effect that torture is no longer subject to a statute of limitations, it has not received sufficient information on prosecutions for torture, including in the context of cases involving allegations of torture that have been the subject of decisions of the European Court of Human Rights. The Committee is also concerned that there is a significant disparity between the high number of allegations of torture reported by non-governmental organizations and the data provided by the State party in its periodic report . . ., suggesting that not all allegations of torture have been investigated during the reporting period. Further, while the State party has undertaken many investigations into allegations of ill-treatment and excessive use of force by its officials, these have resulted in relatively few cases of disciplinary sanctions, and in fines and imprisonment in only a small number of cases. The Committee regrets that the State party did not provide information requested by the Committee on the six cases in which officials received sentences of imprisonment for ill-treatment between 2011 and 2013, nor on any cases in which officials received sentences of imprisonment for ill-treatment in 2014 or 2015. The Committee further regrets that State party did not respond to the concern raised by Committee members that law enforcement authorities have on many cases brought ‘countercharges,’ such as ‘resisting’ or ‘insulting’ police officers, against those individuals lodging complains of torture, ill-treatment and other police brutality. The Committee further regrets, with reference to its previous recommendations . . . that the State party has not yet created an independent State body to investigate complaints of torture and ill-treatment against law enforcement officers.”

“The Committee is seriously concerned about numerous credible reports of law enforcement officials engaging in torture and ill-treatment of detainees while responding to perceived and alleged security threats in the south-eastern part of the country . . . in the context of the resurgence of violence between the Turkish security forces and the Kurdistan Workers’ Party (PKK) following the breakdown of the peace process in 2015 and terrorist attacks perpetrated by individuals linked to the so-called Islamic State in Iraq and the Levant (ISIL). The Committee is further concerned at the reported impunity enjoyed by the perpetrators of such acts.”

“In addition to the allegations of torture and ill-treatment of detainees noted above, the Committee is concerned at reports it has received concerning the commission of extrajudicial killings of civilians by the State party’s authorities in the course of carrying out counter-terrorism operations in the south-eastern part of the country. The Committee regrets that the State party did not respond to requests for information as to whether investigations are under way into widely reported cases, such as the alleged killing by police snipers of two unarmed women, . . . on 8 September 2015. The Committee also regrets the failure by the State party to ensure accountability for the perpetrators of killings in cases previously raised by the Committee, such as the killing by security forces of . . . in November 2004, which was the subject of a decision of the European Court of Human Rights. The Committee is further concerned at reports that family members of those killed in clashes between security forces and members of armed groups have been denied the ability to retrieve their bodies, which has the effect of impeding investigations into the circumstances surrounding those deaths.”

“The Committee is concerned that allegations of excessive use of force against demonstrators have increased dramatically during the period under review. The Committee notes with regret that the State party’s investigations into the conduct of officials in the context of the 2013 Gezi Park protests in Istanbul and Ankara have not resulted in any prosecutions, despite the allegations of excessive use of force noted by observers, including the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee also regrets that the State party did not provide any data on the specific sentences, if any, that police officers tried on charges of excessive use of force during the reporting period had received. It further expresses concern over the recent legislative amendments in the Domestic Security Package granting additional powers to the police, in particular the expanded power to use firearms against demonstrators.”

“Although the Criminal Code defines torture as a specific offence, the Committee notes that the definition set out in article 94 [of the Code] is incomplete inasmuch as it fails to mention the purpose of the act in question. There is also no specific mention of the act of torture carried out in order to intimidate, to coerce or to obtain information or a confession from a person other than the person who was tortured.”

“While taking note of the legal safeguards enshrined in Turkish legislation, the Committee is concerned at recent amendments to the Code of Criminal Procedure, which give the police greater powers to detain individuals without judicial oversight during police custody. Placing suspects under constant video surveillance in their cells is another matter of concern.”

“The Committee is concerned at the ‘almost complete lack of accountability for cases of enforced disappearance’ in the State party and its ‘palpable lack of interest [in] seriously investigating, prosecuting and adjudicating these cases’, as reported by the Working Group on Enforced or Involuntary Disappearances in its preliminary observations publicly . . . announced at the end of its visit to Turkey from 14 to 18 March 2016. . . .”

“The Committee regrets the lack of complete information on suicides and other sudden deaths in detention facilities during the period under review.”

“The Committee is concerned by the restrictive conditions of detention for persons sentenced to aggravated life imprisonment, a sentence that was established after the abolition of the death penalty in 2004.”

C. Human Rights NGOs and Others

 Especially after the failed coup, human rights NGOs have raised increasing concerns about human rights in Turkey. These concerns were heightened by the Turkish government’s July 20 declaration of a state of emergency for the next three months. This gives the government the power to impose rule by decrees that are published and rushed through parliament for approval the same day. The possibility of review by the Constitutional Court is curbed. Human Rights Watch expressed its alarm over this development: “A state of emergency imposed where there are clear signs that the government is ready to crack down more broadly – combined with far more scope for unchecked executive action – is an alarming prospect. It risks further undermining democracy by providing a legal – if not justifiable – basis for a crackdown on rights.”[8]

Amnesty International (AI) on July 18 (only three days after the attempted coup) said that several Turkish “government officials have suggested reinstating the death penalty as punishment for those found responsible for the failed coup, and . . . [AI] is now investigating reports that detainees in Ankara and Istanbul have been subjected to a series of abuses, including ill-treatment in custody and being denied access to lawyers.” Two days later AI stated, “We are witnessing a crackdown of exceptional proportions in Turkey,” including freedom of expression.[9]

On July 24 AI reported that it had “gathered credible evidence that detainees in Turkey are being subjected to beatings and torture, including rape, in official and unofficial detention centers in the country.” According to these accounts, “police held detainees in stress positions, denied them food, water and medical treatment, verbally abused and threatened them and subjected them to beatings and torture, including rape and sexual assault.”[10]

On August 2 President Erdogan in a public speech challenged AI’s research underlying its assertion that some detainees had been tortured. In response AI’s Secretary General stated, ““The serious human rights violations documented by an . . . [AI] team on the ground in Turkey are alarming. These findings are based on detailed interviews with lawyers, doctors, family members and an eyewitness to torture in a detention facility.”[11]

A Turkish bar group in the capital of Ankara has stated that some of its members have reported alleged abuses of their clients in detention while other lawyers and human rights organizations have made similar allegations.[12]

The Turkey-U.S. Dispute Over the Requested Extradition of Gülen

Turkey’s Foreign Ministry has to be aware of the terms of its extradition treaty with the U.S. and the latter’s procedures for handling extradition requests. Thus, Erdogran and his government’s strident complaints about the U.S. not immediately granting the request for Gülen has to be intended to show Turkish citizens the strength and resolve of the regime. There even have been rumors that the U.S. was behind the attempted coup.

In any event, “Usually deeply polarized, the two sides [of Turkey’s population] are largely united in their opposition to military coups and the . . . [extradition] of Fethullah Gülen, a Muslim cleric who lives in self-exile in Pennsylvania and has been accused by Turkey of orchestrating the failed uprising.” There even is widespread support for the “sweeping purge of suspected followers of Mr. Gülen from the state bureaucracy and other professions” and Mr. Erdogan’s asking “Turks to inform on those they believe are connected to Mr. Gülen.”

Istanbul

The unity was on vivid display at a recent Istanbul rally of at least two million Turks who put aside their political differences to express solidarity.”[13] (To the right is a photograph of that rally.)

 

The U.S., however, needs to continue to resist acquiescence in these strong-arm tactics and to insist on following U.S. law and procedures for such requests. Secretary of State Kerry and President Obama have done just that.[14] So too have State Department spokespeople at daily press briefings.[15] This is not easy since the U.S. has a strong national security interest in maintaining Turkey as an ally in the fight against ISIS/ISIL.

Tomorrow U.S. Vice President Joe Biden will be visiting Turkey to see President Erdogan. The Associated Press opines that Biden will have difficulties in persuading Turkey that the U.S. values Turkey as a key NATO ally amid worrying signs that Turkey is flirting with having closer ties with Russia and that the U.S. and Turkish approaches to the Syrian conflict may be diverging.[16]

Today, says the Associated Press, a U.S. Justice Department team is meeting with Turkish officials in Ankara to discuss U.S. technical requirements of Turkey’s extradition request. This includes firm evidence of Gülen’s involvement in the coup whereas senior officials in the Obama administration say Turkey’s extradition requests to date have been based on allegations of other crimes against Gülen, not evidence of involvement in the coup attempt. A Turkish professor of international relations said that Turkish “people have an expectation that Gülen should be returned to Turkey immediately. If the extradition request is refused or delayed I’m afraid that’s going to have serious repercussions.”

The Washington Post editorial board urges the Vice President “to reassure Mr. Erdogan once again that the two nations share vital interests, not the least of which are fighting the Islamic State and ending the conflagration that has consumed Syria.” The Vice President also “should make clear he understands how much Turkish civilians are suffering from terrorist attacks” and “convince Mr. Erdogan that the United States does not desire to destabilize Turkey.”[17]

The Washington Post editorial further urges Biden “to candidly tell his host that the United States did not instigate the coup and that it will not relinquish Mr. Gülen to a witchhunt. Mr. Erdogan may not want to hear it, but he also should be reminded that crushing the rule of law will dim Turkey’s prospects.”

In the midst of this high-stakes squabble between the two countries, Gülen wrote an article for the New York Times in which he stated, “During the attempted military coup in Turkey this month, I condemned it in the strongest terms. ‘Government should be won through a process of free and fair elections, not force.’ I said, ‘I pray to God for Turkey, for Turkish citizens, and for all those currently in Turkey that this situation is resolved peacefully and quickly.’” President Erdogan’s suggestion that I was the mastermind of the coup “run[s] afoul of everything I believe in, it is also irresponsible and wrong. My philosophy — inclusive and pluralist Islam, dedicated to service to human beings from every faith — is antithetical to armed rebellion.”[18]

Moreover, Gülen said, “Throughout my life, I have publicly and privately denounced military interventions in domestic politics. In fact, I have been advocating for democracy for decades. Having suffered through four military coups in four decades in Turkey — and having been subjected by those military regimes to harassment and wrongful imprisonment — I would never want my fellow citizens to endure such an ordeal again. If somebody who appears to be [my] . . . sympathizer has been involved in an attempted coup, he betrays my ideals.”

Gülen concluded his article with this plea to the U.S. government. The U.S. “must not accommodate an autocrat [Erdogan] who is turning a failed putsch into a slow-motion coup of his own against constitutional government.”

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[1] Reuters, Turkey to Ready Dossier for Gulen Extradition in 10 Days: Foreign Minister, N.Y. Times (July 23, 2016); Dugan, Turkey’s Failed Coup Puts Spotlight on a Rural Pennsylvania Town,W.S.J. (July 24, 2016); Fethullah Gullen Website, https://www.fgulen.com/en/Fethullah Güllen; Wikipedia. Fethullah Güllen; LaPorte, Watson & Tuysusz, Who is Fethullah Gulen, the man blamed for coup attempt in Turkey? CNN (July 16, 2016).

[2] E.g., Reuters, Turkey Says U.S. Could Extradite Cleric Gulen Quickly if Wants to, N.Y. Times (July 22, 2016); Assoc. Press, Turkey Criticizes U.S. Over Cleric Accused of Coup Plot, N.Y. Times (July 22, 2016); Kalin, The Coup Leader Must Be Held Accountable, N.Y. Times (July 24, 2016); Coker, Turkish Premier Demands U.S. Help with Gulen, W.S.J. (July 26, 2016).

[3] U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition.

[4] U.S.-Turkey Extradition Treaty, 32 U.S.T. 3111.

[5] Fathullah Gullen, Wikipedia; U.S. Embassy to Turkey, Transcript of Ambassador Bass’s Interview with Sabah Ankara Bureau Chief Okan Muderrisoglu and Daily Sabah Correspondent Alli Unal (Jan. 12, 2015).

[6] U.S. State Dep’t, Country Reports on Human Rights Practices for 2015 (updated 4/18/16 & 6/14/16).

[7] Comm Agst Torture, Concluding observations on Turkey (June 2, 2016).

[8] Human Rights Watch, Dispatches: Turkey’s State of Emergency (July 22, 2016); Yeginsu & Arango, Turkey Cracks Down on Journalists, Its Next Target After Crushing the Coup, N.Y. Times (July 25, 2016).

[9] Amnesty Int’l, Human rights in grave danger following coup attempt and subsequent crackdown in Turkey (July 18, 2016); Amnesty Int’l, Media purge threatens freedom of expression in Turkey (July 20, 2016); Amnesty Int’l, Turkey: Intensified crackdown on media increases atmosphere of fear (July 28, 2016).

[10] Amnesty Int’l, Turkey: Independent monitors must be allowed to access detainees amid torture allegations (July 24, 2016).

[11] Amnesty Int’l, Turkey: Response to President Erdogan’s speech challenging Amnesty International’s findings (Aug. 2, 2016).

[12] Morris, ‘Law is suspended’: Turkish lawyers report abuse of coup detainees, Wash. Post (July 24, 2016).

[13] Yeginsu, After Failed Coup, Turkey Settles Into a Rare Period of Unity, N.Y. Times (Aug. 23, 2016).

[14] Assoc. Press, Kerry to Turkey: Send Us Evidence, Not Allegations on Gulen, N.Y. Times (July 20, 2016); White House, Remarks by President Obama and President Peno Nieto of Mexico in Joint Press Conference (July 22, 2016).

[15] E.g., State Dep’t, Daily Press Briefing (July 21, 2016); State Dep’t, Daily Press Briefing (July 22, 2016).

[16] Assoc. Press, U.S., Biden Face Tough Task to Mend Relations with Turkey, N.Y. Times (Aug. 23, 2016).

[17] Editorial, Biden needs to give Turkey’s Erdogan tough advice, Wash. Post (Aug. 22, 2016).

[18] Gulen, Fethullah Gulen: I Condemn All Threats to Turkey’s Democracy, N.Y. Times (July 25, 2016).

 

 

 

 

U.S. Reasserts Upgrade of Cuba in Annual Report on Human Trafficking  

On June 30, 2016, the U.S. Department of State released its 2016 Trafficking in Persons Report, which is “the U.S. Government’s principal diplomatic tool to engage foreign governments on human trafficking” and “ the world’s most comprehensive resource of governmental anti-human trafficking efforts.”[1]

For this Report, “severe forms of trafficking in persons” is defined in the U.S. Trafficking in Persons Victims Act (TVPA) as:

  • “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age; or
  • “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”

In this Report, the Department placed 188 countries (including the United States) into the following four tiers plus “Special Cases” (Libya, Somalia and Yemen) based on the extent of their governments’ efforts to comply with the “minimum standards for the elimination of trafficking” found in Section 108 of the TVPA:

  • TIER 1 [36] “countries whose governments fully meet the . . . [TVPA’s] minimum standards.”
  • TIER 2 [78] “countries whose governments do not fully meet the TVPA’s minimum standards, but are making significant efforts to meet those standards.”
  • TIER 2 WATCH LIST [44] “countries whose governments do not fully meet the TVPA’s minimum standards, but are making significant efforts to meet those standards AND: a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year, including increased investigations, prosecution, and convictions of trafficking crimes; increased assistance to victims; and decreasing evidence of complicity in severe forms of trafficking by government and convictions of trafficking crimes; or c) The determination that a country is making significant efforts to meet the minimum standards was based on commitments by the country to take additional future steps over the next year.”
  • TIER 3 [27] “countries whose governments do not fully meet the minimum standards and are not making significant efforts to do so.”

Susan Coppedge, the U.S. Ambassador-at-Large to Monitor and Combat Trafficking in Persons, made remarks at the ceremony.[2] She said the Report was the U.S.’ “principal diagnostic tool to assess government efforts across what we call the three Ps: prosecution, protection and empowerment of victims, and preventing future trafficking crimes.” She also said there had been 27 downgrades in this Report compared with the prior report and 20 upgrades. In addition, she responded to journalists’ questions, but none was asked about Cuba.

The Report’s Assessment of Cuba’s Record on Human Trafficking [3]

In the 2016 Report Cuba was again placed in the Tier 2 Watch List with the following explanation.

“Cuba is a source and destination country for adults and children subjected to sex trafficking and forced labor. Child sex trafficking and child sex tourism occur within Cuba. Cuban authorities report people from ages 13 to 20 are most vulnerable to human trafficking in the country. Traffickers also subject Cuban citizens to sex trafficking and forced labor in South America and the Caribbean. The government indirectly acknowledged the presence of foreign national trafficking victims in Cuba. The government is the primary employer in the Cuban economy, including in foreign medical missions that employ more than 84,000 workers and constitute a significant source of Cuban government revenue. Some participants in foreign medical missions and other sources allege Cuban officials force or coerce participation in the program; however, the Cuban government and some participants say the program is voluntary and well paid compared to jobs within Cuba. The government uses some high school students in rural areas to harvest crops and does not pay them for their work but claims this work is not coerced.”

“The Government of Cuba does not fully meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Despite these measures, the government did not demonstrate overall increasing antitrafficking efforts compared to the previous reporting period; therefore Cuba is placed on Tier 2 Watch List for the second consecutive year. The government reported continued efforts to address sex trafficking, including the prosecution and conviction of 18 sex traffickers in 2014 (the most recent available data) and the provision of services to 13 victims in those cases. The government publicly released a written report on its anti-trafficking efforts in October 2015. Multiple ministries engaged in anti-trafficking efforts, including the Ministries of Justice, Information Science and Communication, Interior, Foreign Affairs, Education, Tourism, Labor and Social Security, Culture and Health, and the attorney general’s office. The penal code does not criminalize all forms of human trafficking, although the government reported its submission of some trafficking-related penal code amendments to the National Assembly for review during the reporting period. The Cuban government was more transparent in providing details of anti trafficking efforts and the government’s overseas medical missions program. However, the government did not prohibit forced labor, report efforts to prevent forced labor, or recognize forced labor as a possible issue affecting its nationals in medical missions abroad. The government provided funding for child protection centers and guidance centers for women and families, which serve all crime victims, including trafficking victims. These centers had the ability to screen cases, make referrals to law enforcement, assist with arranging cooperation with law enforcement up to prosecution, and provide victim services.”

RECOMMENDATIONS FOR CUBA

“Draft and enact a comprehensive anti-trafficking law that prohibits and sufficiently punishes all forms of human trafficking, including forced labor, sex trafficking of children ages 16 and 17, and the full range of trafficking “acts” (recruiting, transporting, transferring, harboring, or receiving persons); vigorously investigate and prosecute both sex trafficking and forced labor offenses; provide specialized training for managers in state-owned or controlled enterprises in identifying and protecting victims of forced labor; implement policies to prohibit force, fraud, or coercion in recruiting and retaining employees in such enterprises; train those responsible for enforcing the labor code to screen for trafficking indicators and educate workers about trafficking indicators and where to report trafficking-related violations; draft and adopt a comprehensive written national anti-trafficking action plan and dedicate resources to implement it in partnership with international organizations; provide specialized victim identification and referral training for first responders; establish formal policies and procedures to guide officials in the identification of all trafficking victims and their referral to appropriate services; adopt policies that provide trafficking-specific, specialized assistance for male and female trafficking victims, including measures to ensure identified sex and labor trafficking victims are not punished for unlawful acts committed as a direct result of being subjected to sex trafficking or forced labor; and schedule a visit and cooperate with the UN special rapporteur on trafficking in persons.”

PROSECUTION: The government sustained law enforcement efforts by prosecuting and convicting sex traffickers, but took no action to address forced labor. The penal code does not criminalize all forms of trafficking, in particular forced labor and sex trafficking of children ages 16 and 17. The government did not report any labor trafficking investigations, prosecutions, or convictions. In January 2016, the government reported it was in the process of amending the code, including submitting amendments to the National Assembly to raise the age of consent; it is unclear whether the government will make additional amendments to improve the legal framework to address trafficking. Cuba prohibits some forms of trafficking through several penal code provisions, including: article 302 (procuring and trafficking in persons); article 310.1 (corruption of minors younger than 16 for sexual purposes); article 312.1 (corruption of minors younger than 16 for begging); and article 316.1 (sale and trafficking of a child younger than 16). The penal code’s definition of sex trafficking conflates sex trafficking with prostitution and pimping. The law criminalizes inducement to or benefiting from prostitution, but treats force, coercion, and abuse of power or vulnerability as aggravating factors rather than an integral part of the crime. Legal provisions addressing “corruption of minors” criminalize many forms of child sex trafficking but define a child as an individual younger than 16 years of age; below the age set in international trafficking law, which is 18 years of age. Forced prostitution is illegal irrespective of the victim’s age, and the government has reportedly prosecuted individuals benefiting from child sex trafficking. Provisions for adult and child sex trafficking do not explicitly criminalize the acts of recruitment, transport, and receipt of persons for these purposes. In December 2013, the government amended article 346.1 of the criminal code to mandate sentences of five to 12 years’ imprisonment for various crimes, including for laundering funds obtained from trafficking in persons. Labor code article 116 prohibits entities from directly establishing labor relations with adolescents younger than age 17, even if adolescents may be authorized to join the work force.”

“In 2015, the government publicly presented official data on 147 prosecutions and convictions of sex traffickers during calendar year 2014, the most recent data available. Authorities reported 13 prosecutions and 18 convictions of sex traffickers, compared with 13 prosecutions and convictions in 2013. At least nine convictions in 2014 involved suspects accused of subjecting children to trafficking within Cuba, including the facilitation of child sex tourism in Cuba. The average sentence was seven years’ imprisonment. The government also identified a group of Cubans abroad recruiting and transporting women with false promises of employment and fraudulent work contracts in order to subject the victims to debt bondage and forced prostitution. The government has not sought extradition in this case, and therefore no prosecutions or convictions of suspected traffickers in Cuba have resulted. Students at the Ministry of Interior Academy and police assigned to tourist centers reportedly received specific anti-trafficking training and victim assistance. The government demonstrated its willingness to cooperate with other governments on investigations of possible traffickers. The government arranges for high school students in rural areas to harvest crops and allegedly forces or coerces participation in medical missions, but it denies such claims. The government did not report any investigations, prosecutions, or convictions of government officials complicit in human trafficking in 2014.”

PROTECTION: The government sustained efforts to protect sex trafficking victims, but did not make efforts to identify or protect victims of forced labor. Authorities identified 11 child sex trafficking victims and four adult sex trafficking victims in 2014; it did not identify any labor trafficking victims or male sex trafficking victims. Identified sex trafficking victims received government assistance; detailed information on assistance provided to the 15 identified victims was unavailable. Other government-organized NGOs, like the Federation of Cuban Women (FMC), the Prevention and Social Assistance Commission, and the Committees for the Defense of the Revolution contributed by identifying victims of trafficking to state authorities and providing victim services. Independent members of civil society expressed concern about the government’s anti-trafficking efforts and  limited information on the scope of sex trafficking and forced labor in Cuba given sparse independent monitoring by NGOs and international organizations. The government reportedly developed procedures to proactively identify sex trafficking victims, whereby first responders work with social workers to identify potential cases and refer them to law enforcement.”

“The government did not report having procedures to proactively identify victims of forced labor. Some participants in foreign medical missions and other sources allege Cuban officials force or coerce participation in the program; however, the government and other participants have stated the postings are voluntary. In support of their applications to receive immigration benefits from the United States, some Cubans working in missions abroad have stated Cuban authorities withheld their passports and restricted their movements. At the same time, some participants who left medical missions abroad have been able to obtain new passports from their embassies in neighboring countries. There have also been reports that Cuban authorities coerced participants to remain in the program by allegedly threatening to revoke their medical licenses or retaliate against their family members if participants leave the program. Reports of substandard working and living conditions and the presence of “minders” to monitor medical professionals outside of work also continued. Last year, Cuba reinstituted restrictions on travel for specialized doctors and some medical personnel, requiring them to obtain an exit permit from their superiors before leaving the island. On September 9, 2015, the government agreed to reinstitute medical personnel that left their positions while abroad. As of April 1, 2016, the Cuban authorities claimed that 274 medical professionals returned to Cuba and were rehired at the same salary and level of responsibility.”

“The FMC received funding from international organizations and operated centers for women and families nationwide to assist individuals harmed by violence, including victims of sex trafficking. These centers provided services such as psychological treatment, health care, skills training, and assistance in finding employment. The government reportedly developed a referral process to transfer trafficking victims to law enforcement custody, secure evidence for prosecutions, and provide victim services and follow-on care. Neither the government nor the government-organized NGOs operated shelters or provided services specifically for male trafficking victims. Police encouraged child sex trafficking victims younger than age 16 to assist in prosecutions of traffickers by gathering children’s testimony through psychologist-led videotaped interviewing, usually removing the need for children to appear in court. There were no reports of the government punishing sex trafficking victims for unlawful acts committed as a direct result of being subjected to human trafficking. The government indirectly acknowledged the existence of some foreign trafficking victims in Cuba.”

PREVENTION: The government sustained prevention efforts to combat sex trafficking; however, authorities did not make efforts to prevent or address the demand for forced labor. The attorney general’s office continued to operate a 24-hour telephone line for individuals needing legal assistance, including sex trafficking victims, and received calls related to potential trafficking cases in 2015 that led to investigations. State media continued to produce newspaper articles and television and radio programs to raise public awareness about sex trafficking. Authorities maintained an office within the Ministry of Tourism charged with monitoring Cuba’s image as a tourism destination, combating sex tourism, and addressing the demand for commercial sex acts. The Cuban government cooperated with foreign law enforcement in investigating foreign citizens suspected of sexual crimes against children, including child sex trafficking. Under Cuban law, authorities may deny entry to suspected sex tourists and expel known sex offenders, but reported no related convictions in 2014. The government did not report whether it provided anti-trafficking training for its diplomatic personnel. The government publicly released a written report on its anti-trafficking efforts in October 2015. In March 2015, authorities invited the UN special rapporteur on trafficking in persons to visit, but the visit had not been scheduled by the end of the reporting period. The government did not report specialized training for labor inspectors to screen for indicators of potential forced labor.”

Reactions to the Report

Senator Bob Corker (Rep., TN), the Chairman of the Senate Foreign Relations Committee, attended the State Department’s ceremony for launching the Report and afterwards stated, “ the committee will closely study the report to determine the integrity of the findings. . . . In order for the TIP report to be an effective tool for holding governments accountable, all judgments must be based on measurable progress on anti-trafficking efforts. Following what were clear flaws in last year’s TIP process, the committee will carefully examine the 2016 report and conduct public hearings [this July] to determine the integrity of the findings. Senator Ben Cardin, (Dem., MD), the committee’s Ranking Member, also issued a statement approving of the Report’s upgrading Thailand from Tier 3 to Tier 2 Watch List and the downgrading of Uzbekistan from Tier 2 Watch List to Tier 3. He also expressed continuing concern about Malaysia. Neither of them said anything about Cuba.”[4]

Two other members of the Senate Foreign Relations Committee, Senators Robert Menendez (Dem., NJ), and Marco Rubio (Rep., FL), also issued statements. Menendez criticized the rankings for Malaysia, Cuba and unnamed other countries that “do not match the facts on the ground” and stated his expectation that “Congress . . . [will] be aggressive in its oversight and thoroughly investigate the methodology used to justify this year’s rankings.  Further, I am convinced that new legislation to reform the ranking process is the only way to restore credibility to this broken system and I plan on introducing a bill to do just that.” Rubio asserted that last year’s upgrade of Cuba to Tier 2 Watch List, and by implication its maintenance of that position in this Report, “was not justified by the facts on the ground.” He also criticized China’s maintenance on the Tier 2 Watch List and Thailand’s upgrading to that List.[5]

Conclusion

 The comments of Senators Corker, Menendez and Rubio allude to the Senate committee’s criticism of the prior report’s upgrading of Cuba and Malaysia from Tier 3 to Tier 2 Watch List and to the Administration’s alleged political reasons for doing so, all of which was discussed in a prior post.

At the State Department’s recent ceremony to announce the release of the 2016 Report U.S. Secretary of State John Kerry anticipatorily tried to rebut similar criticisms against this Report. He said, “The tier rankings . . . reflect our department’s best assessment of a government’s efforts to eliminate human trafficking. They don’t take into account political and other factors. As I say, they’re based on . . . [established] criteria. And in addition to the rankings, the report outlines our specific concerns as well as the ways we can improve our efforts. This is not meant to be a dunning report; it is meant to be a demarcation, an encouragement process, a process of evaluation and work towards changing rankings.”[6]

We all will have to see what happens at the forthcoming February hearing to assess these criticisms.

In the meantime, we can, in my opinion, effectively rebut this Report’s half-hearted contention that Cuban medical professionals are engaged in forced labor when they work on the government’s foreign medical missions. Here are the bases for that conclusion:

  • First, the Report admits that there is conflicting information and allegations on the foreign medical mission work. Coercion is alleged by “some participants” and unnamed “other sources.” On the other hand, the Report admits, the Cuban government denies these allegations, and instead the Government and “some participants” assert the postings are “voluntary and well paid compared to jobs within Cuba.” The Report also concedes there is conflicting information on whether other means, including withholding Cuban passports, are used to coerce or force participants to remain in the program.
  • Second, there apparently has not been any fair adjudicative process to determine which of these conflicting sets of information is valid.
  • Third, the accusation of forced labor for such participants has been rejected in a study by Indiana State University’s Emeritus Professor of International Politics and Latin America, Dr. H. Michael Erisman. He says, although there may be “some cases where . . . [Cuban medical professionals] are pressured into accepting overseas assignments, . . . most evidence indicates that the overwhelming majority are motivated by philosophical and/or pragmatic considerations. In the first instance, one needs to understand that the Cuban medical profession . . . is permeated by norms which stress self-sacrifice and service to the community, both at home and abroad. At the core of this ethos is the principle, which is firmly entrenched in the curriculum of the island’s medical schools and reinforced throughout one’s career, that health care should not be seen as a business driven by a profit motive, but rather as a human right that medical personnel have an unconditional duty to protect. Such convictions often underlie participation in the medical aid brigades. There are, however, also some pragmatic factors that can come into play. Overseas service could . . . help to further one’s professional aspirations and for some assignments the total remuneration involved is more generous than what is available back in Cuba. . . . [T]hese are the considerations which apply to the vast majority of people” in such programs, not involuntary servitude.[7]
  • Fourth, According to Granma, Cuba’s Communist Party’s newspaper, “Internationalist medical aid has been a longstanding part of the Cuban people’s tradition of solidarity, since the beginning of the Revolution. As early as 1960 a brigade was sent to Chile following an earthquake there, and to Algeria in 1963, to support the new country recently liberated from colonialism.” The Granma article included the reflection of four Cuban doctors who have participated in such missions and who treasure the positive impact of those experiences on their professional and personal lives.[8]
  • Fifth, this Report does not cite to the relevant legal definition of “forced labor” to assess this claim. Most pertinent is Article 2(2) of the Forced Labour Convention, 1930, which states, in part, ”the term forced or compulsory labour shall not include . . .  any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country.” (Emphasis added.)[9]

Moreover, as a previous post noted, a respected international journalist, Alma Guillermoprieto, recently reported that Cuban medical doctors serving on the island now earn $67 per month, but $500 per month when serving on a foreign medical mission.

The $67 monthly salary for Cuban physicians in Cuba compared with the $24 or $27 monthly income of other Cubans is a result of Cuba’s adoption of a “pyramid” compensation system whereby highly trained workers like physicians earn more than lower-skilled workers like busboys. This system, however, is being undermined by lower-skilled workers like gas-station attendants and waiters earning additional income from stealing and illegally selling gasoline and from earning tips in hard currency at restaurants and hotels serving foreign tourists. Indeed, Raúl Castro in his speech at the April 2016 Congress of the Communist Party of Cuba called this the “inverted pyramid” problem that had to be solved.

Finally all of this discussion about Cuba’s foreign medical mission program is precipitated by the U.S. Cuban Medical Personnel Parole Program that allows such personnel to apply for parole into the U.S. For reasons previously provided, this program is unjustified and should be ended as soon as possible.[10]

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[1] U.S. State Dep’t, Trafficking in Persons Report 2016 (June 30, 2016).

[2] U. S. State Dep’t, Ambassador-at-Large to Monitor and Combat Trafficking in Persons Susan Coppedge on the 2016 Trafficking in Persons Report (June 30, 2016).

[3] U.S. State Dep’t, Trafficking in Persons Report 2016 : Country Narratives–Cuba, at 146-47 (June 30, 2016).

[4] Senator Corker, Corker: U.S. Must Lead Global Effort to End Human Trafficking and Modern Slavery (June 30, 2016). Senator Cardin, Cardin Statement on State Dept. Trafficking in Persons Report (June 30, 2016).

[5] Senator Menendez, Menendez Reacts to State Department 2016 Trafficking in Persons Report (June 30, 2016); Senator Rubio, Rubio Comments On State Department’s 2016 Trafficking in Persons Report (June 30, 2016).

[6] U.S. State Dep’t, [Secretary Kerry’s] Remarks at the 2016 Trafficking in Persons Report Ceremony (June 30, 2016).

[7] Erisman, Brain Drain Politics: the Cuban Medical Professional Parole Programme, Int’l J. Cuban Studies 269, 286-87 (2012).

[8] Ledn, Cuban doctors share their experiences in internationalist missions, Granma (Nov. 26, 2015).

[9] This and other parts of the definition of “forced or compulsory labour” were reaffirmed in Article 1(3) of the Protocol of 2014 to the Forced Labour Convention, 1930.

[10] New York Times Calls for End of U.S. Program for Special Immigration Relief for Cuban Medical Personnel, dwkcommentaries.com (Nov. 23, 2014); New York Times Calls for End to Special U.S. Immigration Programs for Cubans, dwkcommentaries.com (Dec. 21, 2015).