U.S. Ends Special Immigration Benefits for Cubans

On January 12, the U.S. announced that it is ending, effectively immediately, the “dry foot” immigration policy for Cubans and the Cuban Medical Professional Parole Policy. Below we will examine these cancelled policies, the U.S. announcement of the policy changes, Cuba’s announcement of the U.S. policy changes and reactions to the changes.

The Cancelled U.S. Policies[1]

The “dry feet” policy has allowed any Cuban who arrived on land (with “dry feet”) at a U.S. point of entry to come into the U.S. and, absent negative factors, qualify for U.S. permanent residency status after one year. This policy originated soon after the early years of the Cuban Revolution before the U.S. in 1967 had ratified the international treaty on refugees and before it had adopted in 1980 a statute implementing that treaty (the Refugee Act of 1980) and when the U.S. assumed that all Cubans arriving in the U.S. were fleeing persecution.

This policy originally included Cubans who were intercepted on the water by the U.S. Coast Guard. However, in response to the Cuban Government’s legitimate concerns about the personal safety of Cubans attempting to reach the U.S. on unsafe boats, the U.S. (Bill Clinton Administration) and Cuba on September 9, 1994, reached an agreement whereby the U.S. would return to Cuba its nationals who were intercepted at sea, i.e., who had “wet feet.”

The U.S. Cuban Medical Professional Parole Policy, which was adopted on August 11, 2006, allowed “Cuban medical personnel conscripted to study or work in a third country under the direction of the Cuban government to enter the U.S.” It was available to “health-care providers who are sent by the [Cuban government] to work or study in third countries and who . . . are often denied exit permission by the Cuban Government to come to the [U.S.] when they qualify under other established legal channels to migrate from Cuba. Doctors, nurses, paramedics, physical therapists, lab technicians and sports trainers are examples of groups that may qualify for the . . . program.”

U.S. Announcement of the Change[2]

 On January 12 President Obama announced that the U.S. “is ending the so-called “wet-foot/dry foot” policy, which was put in place more than twenty years ago and was designed for a different era.  Effective immediately, Cuban nationals who attempt to enter the [U.S.] illegally and do not qualify for humanitarian relief will be subject to removal, consistent with U.S. law and enforcement priorities.  By taking this step, we are treating Cuban migrants the same way we treat migrants from other countries. The Cuban government has agreed to accept the return of Cuban nationals who have been ordered removed, just as it has been accepting the return of migrants interdicted at sea.”

The President also said the U.S. is “ending the Cuban Medical Professional Parole Program. The [U.S.] and Cuba are working together to combat diseases that endanger the health and lives of our people. By providing preferential treatment to Cuban medical personnel, the medical parole program contradicts those efforts, and risks harming the Cuban people.  Cuban medical personnel will now be eligible to apply for asylum at U.S. embassies and consulates around the world, consistent with the procedures for all foreign nationals.”[3]

This termination follows months of negotiations with the Cuban government over the latter’s agreeing to accept returning Cubans.

Nearly simultaneously with the President, Jeh Johnson, the Secretary of the U.S. Department of Homeland Security (DHS), which includes the U.S. Immigration and Customs Enforcement (ICE), issued a statement: “To the extent permitted by the current laws of our two countries, the [U.S.] will now treat Cuban migrants in a manner consistent with how it treats others; unauthorized migrants can expect to be removed unless they qualify for humanitarian relief under our laws.”  The Department also released a Fact Sheet and the Joint Statement of the two governments about the change. Johnson pointed out that Cuba will take back citizens as long as less than four years have passed between the time the migrant left Cuba and the start of the U.S. deportation proceedings.

These changes do not affect U.S. law regarding “refugees” fleeing persecution in their home countries. Thus, if a Cuban fears “persecution” upon returning to the island, then the individual may apply for asylum in the U.S. as a “refugee” under international and U.S. law if the individual can establish that he or she has a “well-founded fear” of “persecution” in Cuba “due to” his or her “political opinion, race, religion, nationality or membership in a particular social group.” (Statutory words are in quotes.) They may do so in the U.S. or at an U.S. embassy or consulate in another country.[4]

Cuban Announcement of the Change[5]

Welcoming this change, the Cuban Government stated, “After nearly a year of negotiation and encouraged by the restoration of diplomatic relations on July 20, 2015, based on mutual respect and political will to strengthen these links and establish new understandings on various issues of common interest, [the two] governments were able to concretize this commitment that should contribute to the normalization of migration relations. . . .”

The U.S. “wet foot-dry foot” policy gave Cubans “preferential and unique treatment not received by citizens of other countries, so it was also an incitement to illegal departures. Its implementation and that of other policies led to migratory crises, kidnapping of ships and aircraft and the commission of crimes, such as trafficking in migrants, trafficking in persons, immigration fraud and the use of violence with a destabilizing extraterritorial impact on other countries of the region [that were] used [for] transit to arrive at American territory.”

This change will meant that the U.S., “consistent with its laws and international norms, shall return to the Republic of Cuba, and the Republic of Cuba, consistent with its Laws and international norms, will receive all Cuban citizens, who . . . are detected by the competent authorities of the [U.S.] when they tried to enter or stay irregularly in that country, violating its laws.”

The U.S. “Parole Program for Cuban Medical Professionals, which was part of the arsenal to deprive the country of doctors, nurses and other professionals of the sector, . . . and an attack against Cuba’s humanitarian and solidarity medical missions in Third World countries that need it so much. This policy prompted Cuban health personnel working in third countries to abandon their missions and emigrate to the [U.S.], becoming a reprehensible practice that damaged Cuba’s international medical cooperation programs.”

It “will also be necessary for the U.S. Congress to repeal the Cuban Adjustment Act of 1966.”

Unaffected are prior agreements “to prevent illegal departures by sea and to return to Cuba all persons who are intercepted in those acts or who enter the Guantánamo Naval Base. The Government of the United States will continue to guarantee regular migration from Cuba with a minimum of 20,000 people per year.”

“Both governments agreed to apply their migration laws in a non-selective manner and in accordance with their international obligations. They also undertook to prevent risky exits that endanger human life, to prevent irregular migration and to combat violence associated with such manifestations, such as trafficking and trafficking in persons.” In addition, “the parties will promote effective bilateral cooperation to prevent and prosecute those involved in trafficking in persons, as well as crimes associated with migratory movements, which endanger their national security, including the hijacking of aircraft and vessels.”

“In keeping with its international obligations and its legislation, the Government of the Republic of Cuba ratifies its commitment to guarantee regular, safe and orderly migration, as well as to fully comply with this new agreement for which the corresponding measures have been taken internally. It will continue to guarantee the right to travel and emigrate to Cuban citizens and to return to the country, in accordance with the requirements of immigration law.”

The Cuban Government also published the Joint Statement of the two governments as had DHS in the U.S.

At a press conference on January 12 Josefina Vidal, the Cuban Foreign Ministry official responsible for relations with the U.S., said that the joint “agreement recognizes the need to facilitate regular migration for the benefit of both countries, to prevent irregular migration and to prevent risky exits that endanger human life and to combat violence associated with this phenomenon and related offenses, such as trafficking in persons and trafficking in persons.”

Vidal was joined by Gustavo Machin, the Deputy Director of the United States Department of the Cuban Foreign Ministry, who summarized the joint agreement. He added that “Cuba will accept that persons who were included in the list of 2,746 Cuban citizens who migrated by the port of Mariel in 1980 [“the Mariel boat lift”] and were considered ineligible to remain in the [U.S.], . . and [those] who cannot now be returned will be replaced by other persons and returned to Cuba. Cuba will also consider receiving other Cuban citizens who are currently in the [U.S.], who violated [U.S.] laws and whom U.S. authorities have determined cannot remain in its territory.”

 Reactions to the Change[6] 

As to be expected, U.S. congressional response was mixed.

Senator Patrick Leahy (Dem, VT) said, “This is a welcome step in reforming an illogical and discriminatory policy that contrasted starkly with the treatment of deserving refugees from other countries.” Senator Jeff Flake (Rep., AZ) stated that eliminating the policy “is in our national interest. It is a win for taxpayers, border security, and our allies in the Western Hemisphere. It’s a move that brings our Cuba policy into the modern era while allowing the United States to continue its generous approach to those individuals and refugees with a legitimate claim for asylum.”

Representative Kathy Castor (Dem., FL) and co-author of a bill to end the embargo (H.R.-442), https://dwkcommentaries.com/2017/01/12/representatives-emmer-and-castor-introduce-bill-to-end-embargo-of-cuba/ said, ““The end of the “wet foot/dry foot” policy should be followed by congressional action to lift the outdated economic embargo and improve economic conditions for everyday Cubans. . . . I have witnessed how the ‘wet foot, dry foot’ policy created an uneven playing field for immigrants from other Caribbean nations who are also seeking the opportunity to pursue the American dream.    I have also seen Cubans who try to come here for short term visits to see family members negatively affected by ‘wet foot/dry foot.’  The change in policy today will help ensure that we can have safer and more orderly migration with all of our Caribbean neighbors.”

Senator Marco Rubio (Rep., FL) said that the incoming Trump administration should reverse the part of the executive order ending the medical parole system and that there should be assurances that Cubans “who arrive here to escape political persecution are not summarily returned to the regime [but] . . . are given a fair opportunity to apply for and receive political asylum.”

Representative Illeana Ros-Lehtinen, a Florida Republican who emigrated from Cuba as a child, decried the elimination of the medical parole programs, calling it a “foolhardy concession to a regime that sends its doctors to foreign nations in a modern-day indentured servitude.”

According the Senator Robert Menendez (Dem., NJ), “Today’s announcement will only serve to tighten the noose the Castro regime continues to have around the neck of its own people.” He added, “The Obama administration seeks to pursue engagement with the Castro regime at the cost of ignoring the present state of torture and oppression, and its systematic curtailment of freedom.”

A positive view of the change was taken by Peter Kornbluh, a co-author of “Back Channel to Cuba,” which recounts the secret negotiations between the United States and Cuban governments that forged the policy of engagement. He said, “The exceptionalism of the ‘wet foot, dry foot’ policy toward Cuba is a relic of the Cold War, and this decision by the administration is really its final effort to normalize an area of interaction between Cuba and the United States, migration, that is clearly in need of normalization.”

James Williams, the President of Engage Cuba, the leading coalition of private companies and organizations working to end the travel and trade embargo on Cuba, said these changes are “a logical, responsible, and important step towards further normalizing relations with Cuba. The ‘wet foot, dry foot’ policy has been an enduring problem that decades of hostility and isolation failed to solve. This change, which has long had strong bipartisan support, would not have been possible without the re-establishment of diplomatic relations with Cuba.”

Phil Peters, president of the Cuba Research Center, said that the number of Cubans entering the United States is actually much higher because tens of thousands more overstay their visitor visas and still others migrate legally. “This is a favor to Trump because it’s a tough measure to take, but it’s the right measure to take,” Mr. Peters said. “These are economic migrants coming here that, unlike any other nationality, get a big package of government benefits without any justification.”

Kevin Appleby of the Center for Migration Studies of New York praised the specific change, while questioning the broader rules covering asylum. “The good news is that it ensures equal treatment between Cubans and asylum-seekers from other nations,” he said. “The bad news is that our asylum system is broken and does not afford adequate due process and protection to those who need it.”

Support for this change of policy also was voiced by Pedro Freyre, the chair of the international practice group of the Washington, D.C. office of law firm Akerman LLP. He observed, “This partially closes Cuba’s escape valve and will put pressure on Cubans to move forward more rapidly with reforms.” For years, he said, the last resort for Cubans frustrated with the lack of opportunity on the island has been to hire a “lanchero,” or people smuggler and attempt to reach the U.S. “Now they will have to look inward to see what they can do to fix Cuba.” The same opinion was offered by Jorge Mas, president of the Cuban American National Foundation, who welcomed the change and said it would pressure the Cuban government to improve conditions on the island.

Average Cubans and opponents of the island’s communist leaders said they expected pressure for reform to increase with the elimination of a mechanism that siphoned off the island’s most dissatisfied citizens and turned them into sources of remittances supporting relatives who remained on the island. This point was emphasized by Benjamin Rhodes, White House Deputy National Security Advisor and a principal negotiator of the rapprochement, saying, “It’s important that Cuba continue to have a young, dynamic population that are clearly serving as agents of change.”

Last year thousands of Cubans who were seeking to reach the U.S. border with Mexico and to come into the U.S. with “dry feet” created major logistical and financial problems for Mexico, Guatemala, Honduras, El Salvador, Nicaragua, Costa Rica and Panama and to a lesser extent Colombia and Ecuador. This naturally upset the governments of those countries, especially when their citizens were not eligible for these U.S. immigration policies.

Therefore, these governments welcome the U.S. terminating the policies. El Salvador’s foreign ministry said, “There cannot be migrants of different categories.” Honduras said it would wait to see if the flow of Cubans actually declined.

Cubans who had left their homeland and were now trying to reach U.S. soil when the decision was announced lamented the policy change. “It has fallen on us like a bucket of water because were never thought that at this point and with so little time before Obama leaves office that his government would make this horrible decision,” said Eugenia Diaz Hernandez, a 55-year-old Cuban in Panama whose voyage with her daughter and granddaughter had taken her through Guyana, Brazil, Peru, Ecuador and Colombia. “We are adrift.” Another Cuban, Jose Enrique Manreza, who ran a soda warehouse in Havana, is now stranded in Mexico, after selling his house and belongings in Cuba to raise $10,000 for his journey to reach the U.S. “Imagine how I feel, after I spent six days and six nights running through rivers and jungles in the humidity.”

Conclusion

This policy change, in my opinion, was long overdue. I pray and hope that the incoming Trump Administration will not reverse this change.

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

[1] U.S. Dep’t of State, Cuban Medical Professional Parole Program (Jan. 26, 2009)  See generally posts listed in the “Cuba Migration to U.S.” and “Cuban Medical Personnel & U.S.” sections of List of Posts to dwkcommentaries.com—Topical: Cuba.

[2] White House, Statement by the President on Cuba Policy Changes (Jan. 12, 2017); Dep’t Homeland Security, Statement by Secretary Johnson on the Continued Normalization of Our Migration Relationship with Cuba (Jan. 12, 2017); Dep’t Homeland Security, Fact Sheet: Changes to Parole and Expedited Removal Policies Affecting Cuban Nationals (Jan. 12, 2017); Dep’t Homeland Security, Joint Statement [of U.S. and Cuba regarding changes in U.S. immigration policies] (Jan. 12, 2017); Reuters, Obama Administration Ends Special Immigration Policy for Cubans, N.Y. Times (Jan. 12, 2017); Assoc. Press, Obama Ends Visa-Free Path for Cubans Who Make It to U.S. Soil, N.Y. Times (Jan. 12, 2017); Caldwell & Pace (AP), Obama making change to Cuban immigration policy, Wash. Post (Jan. 12, 2017); DeYoung, Obama ending ‘wet-foot, dry foot’ policy allowing Cubans reaching U.S. soil to stay and receive residency, Wash. Post (Jan. 12, 2017); Davis & Robles, Obama Ends Exemption for Cubans Who Arrive Without Visas, N.Y. Times (Jan. 12, 2017); Lee, Schwartz & Córdoba, U.S. Ends ‘No-Visa’ Era for Cuban Emigrés, W.S. J. (Jan. 12, 2017).

[3] See posts listed in the “Cuban Medical Personnel & U.S.” section of List of Posts to dwkcommentaries.com—Topical: CUBA.

[4] Convention Relating to the Status of Refugees, Art. I (A); 8 U.S.C. §1101(a)(42)See generally the following dwkcommentaries.com blog posts: Refugee and Asylum Law: Modern Era (July 9, 2011); Refugee and Asylum Law: Office of U.N. High Commissioner for Refugees (July 10, 2011); Becoming a Pro Bono Asylum Lawyer (May 24, 2011);Teaching the International Human Rights Course (July 1, 2011).

[5] Cuba Foreign Ministry, Declaration of Revolutionary Government (Jan. 12, 2017); Cuba Foreign Ministry, Joint Declaration Cuba-United States (Jan. 12, 2017); Cuba ratifies its commitment to regular, safe and orderly migration, Granma (Jan. 12, 2017); Assoc. Press, Havana Hails End to Special US Immigration Policy for Cubans, N.Y. Times (Jan. 13, 2017).

[6] Flake Statement on Elimination of Wet Foot, Dry Foot Policy (Jan. 12, 2017); Menendez Statement on Latest Cuba Policy Changes (Jan. 12, 2017); Rubio Comments on Obama Administration Changes to Cuba Policy (Jan. 12, 2017);Castor, Statement on Ending “Wet Foot/DryFoot” (Jan. 12, 2017); Engage Cuba Statement on Administration ‘Wet Foot, Dry Foot’ Policy Announcement (Jan. 12, 2017);Ben Rhodes: ‘There is bipartisan support’ for Congress to repeal the Adjustment Act, Diario de Cuba (Jan. 13, 2017); Wheaton, Obama’s shift on Cuban immigrants could put Trump in a bind, Politico (Jan. 12, 2017); Reuters, Cubans on Road to U.S. Distraught About Newly Closed Border, N.Y. Times (Jan. 13, 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.

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

[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.

Enactment of the Justice Against Sponsors of Terrorism Act (JASTA) Over the Presidential Veto

As a previous post reported, from September 16, 2015, through September 9, 2016, the current Session of Congress considered and overwhelmingly adopted the Justice Against Terrorism Act (JASTA). Although neither chamber of Congress held hearings on JASTA this Session and voiced little opposition to the bill, objections to the bill were raised outside Congress, and on September 23, 2016, President Obama vetoed the bill, as was mentioned in a prior post. Thereafter Congress overrode the veto and JASTA became law, whose details were discussed in another previous post.

Now we will retreat in time and examine the president’s veto message and the congressional overriding of the veto. Another post will look at subsequent efforts to amend JASTA.

President Obama’s Veto Message

 On September 23, President Obama vetoed JASTA and returned the bill to Congress with a message stating the following reasons for the veto:[1]

  • “Enacting JASTA into law . . . would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks. As drafted, JASTA would allow private litigation against foreign governments in U.S. courts based on allegations that such foreign governments’ actions abroad made them responsible for terrorism-related injuries on U.S. soil. This legislation would permit litigation against countries that have neither been designated by the executive branch as state sponsors of terrorism nor taken direct actions in the United States to carry out an attack here. The JASTA would be detrimental to U.S. national interests more broadly, which is why I am returning it without my approval.”
  • “First, JASTA threatens to reduce the effectiveness of our response to indications that a foreign government has taken steps outside our borders to provide support for terrorism, by taking such matters out of the hands of national security and foreign policy professionals and placing them in the hands of private litigants and courts.”
  • “Any indication that a foreign government played a role in a terrorist attack on U.S. soil is a matter of deep concern and merits a forceful, unified Federal Government response that considers the wide range of important and effective tools available. One of these tools is designating the foreign government in question as a state sponsor of terrorism, which carries with it a litany of repercussions, including the foreign government being stripped of its sovereign immunity before U.S. courts in certain terrorism-related cases and subjected to a range of sanctions. Given these serious consequences, state sponsor of terrorism designations are made only after national security, foreign policy, and intelligence professionals carefully review all available information to determine whether a country meets the criteria that the Congress established.”
  • “In contrast, JASTA departs from longstanding standards and practice under our Foreign Sovereign Immunities Act and threatens to strip all foreign governments of immunity from judicial process in the United States based solely upon allegations by private litigants that a foreign government’s overseas conduct had some role or connection to a group or person that carried out a terrorist attack inside the United States. This would invite consequential decisions to be made based upon incomplete information and risk having different courts reaching different conclusions about the culpability of individual foreign governments and their role in terrorist activities directed against the United States — which is neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack.”
  • “Second, JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests. The United States has a larger international presence, by far, than any other country, and sovereign immunity principles protect our Nation and its Armed Forces, officials, and assistance professionals, from foreign court proceedings. These principles also protect U.S. Government assets from attempted seizure by private litigants abroad. Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.”
  • “Indeed, reciprocity plays a substantial role in foreign relations, and numerous other countries already have laws that allow for the adjustment of a foreign state’s immunities based on the treatment their governments receive in the courts of the other state. Enactment of JASTA could encourage foreign governments to act reciprocally and allow their domestic courts to exercise jurisdiction over the United States or U.S. officials — including our men and women in uniform — for allegedly causing injuries overseas via U.S. support to third parties. This could lead to suits against the United States or U.S. officials for actions taken by members of an armed group that received U.S. assistance, misuse of U.S. military equipment by foreign forces, or abuses committed by police units that received U.S. training, even if the allegations at issue ultimately would be without merit. And if any of these litigants were to win judgments — based on foreign domestic laws as applied by foreign courts — they would begin to look to the assets of the U.S. Government held abroad to satisfy those judgments, with potentially serious financial consequences for the United States.”
  • “Third, JASTA threatens to create complications in our relationships with even our closest partners. If JASTA were enacted, courts could potentially consider even minimal allegations accusing U.S. allies or partners of complicity in a particular terrorist attack in the United States to be sufficient to open the door to litigation and wide-ranging discovery against a foreign country — for example, the country where an individual who later committed a terrorist act traveled from or became radicalized. A number of our allies and partners have already contacted us with serious concerns about the bill. By exposing these allies and partners to this sort of litigation in U.S. courts, JASTA threatens to limit their cooperation on key national security issues, including counterterrorism initiatives, at a crucial time when we are trying to build coalitions, not create divisions.”
  • “The 9/11 attacks were the worst act of terrorism on U.S. soil, and they were met with an unprecedented U.S. Government response. The United States has taken robust and wide-ranging actions to provide justice for the victims of the 9/11 attacks and keep Americans safe, from providing financial compensation for victims and their families to conducting worldwide counterterrorism programs to bringing criminal charges against culpable individuals. I have continued and expanded upon these efforts, both to help victims of terrorism gain justice for the loss and suffering of their loved ones and to protect the United States from future attacks. The JASTA, however, does not contribute to these goals, does not enhance the safety of Americans from terrorist attacks, and undermines core U.S. interests.”

Reactions to the Veto

Immediately after President Obama’s veto of JASTA, both Republicans and Democrats in Congress vowed to override the veto under Article I, Section 7 of the U.S. Constitution requiring a vote of at least two-thirds of each chamber of the Congress to do so. On the sidelines both major presidential candidates (Donald Trump and Hillary Clinton) said that they would have signed the bill if they were president.

These vows were made despite the prior day’s testimony before a Senate committee by Secretary of Defense Ash Carter opposing the bill on the ground that it could be a problem for the U.S. if another country was “to behave reciprocally towards the U.S.” And the Republican Chair of the House Armed Services Committee, Representative Mac Thornberry of Texas, amplified the military’s concerns and urged Republicans to study the bill’s consequences while announcing his intent to opposes the override.[2]

Not surprisingly immediately after this veto, Senator John Cornyn stated, “It’s disappointing the President chose to veto legislation unanimously passed by Congress and overwhelmingly supported by the American people. Even more disappointing is the President’s refusal to listen to the families of the victims taken from us on September 11th, who should have the chance to hold those behind the deadliest terrorist attack in American history accountable. I look forward to the opportunity for Congress to override the President’s veto, provide these families with the chance to seek the justice they deserve, and send a clear message that we will not tolerate those who finance terrorism in the United States.”[3]

On September 27 President Obama sent a letter to Senators Mitch McConnell (Rep., TN), the Majority Leader, and Harry Reid (Dem. NV), Minority Leader. The President said he was “fully committed to assisting the families of the victims of terrorist attacks of Sept. 11,″ but that the consequences of an override could be “devastating” by putting military and other U.S. officials overseas at risk. The bill’s enactment, he warned, “would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks.[4]

On September 28 Senators Cornyn and Shumer jointly wrote an op-ed article in USA Today urging Congress to override the veto because JASTA “would provide a legal avenue for the families of the victims of the 9/11 attacks to seek justice in a court of law for the terrorist attacks that took the lives of their loved ones. And it would deter foreign entities from sponsoring terrorism in the future.” The article also rejected as untrue the argument by JASTA’s opponents “that the bill will subject U.S. diplomats and other government officials to a raft of potential lawsuits in foreign courts.”[5]

On the morning of September 28, the New York Times published an editorial opposing the threatened congressional override of the veto because “the bill complicates the United States’ relationship with Saudi Arabia and could expose the American government, citizens and corporations to lawsuits abroad. Moreover, legal experts like Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School doubt that the legislation would actually achieve its goal.”[6]

Moreover, the Times editorial asserted that the “European Union has warned that if the bill becomes law, other countries could adopt similar legislation defining their own exemptions to sovereign immunity. Because no country is more engaged in the world than the United States — with military bases, drone operations, intelligence missions and training programs — the Obama administration fears that Americans could be subject to legal actions abroad.”

Nevertheless, later that same day (September 28) Congress overwhelmingly voted to override the presidential veto. The only vote against the override in the Senate was by the Senate Minority Leader, Senator Harry Reid (Dem., NV). The vote in the House was 348 to override with only 59 opposed.[7] We will now look at the debate in both chambers.

U.S. Senate’s Overriding the Veto

In the Senate debate, Senators Richard Blumenthal (Dem., CT), John Cornyn (Rep., TX), Chuck Grassley (Rep., IA) and Chuck Schumer (Dem. NY) spoke in favor of overriding the veto and passing JASTA while Senators Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, Benjamin Cardin (Dem., DE), the Committee’s Ranking Member, and Diane Feinstein (Dem., CA) offered qualified endorsements of an override. [8]

Generally these Senators argued that U.S. victims of state-sponsored acts of terrorism needed the opportunity to assert their damage claims in U.S. courts against such sponsors and that JASTA would deter such sponsored terrorism. Senator Cornyn added that this “legislation has been pending since 2009, and we have worked through a number of Members’ concerns . . . in order to modify the legislation and build the consensus we now have achieved. . . . That means [JASTA] has been negotiated and hammered out over a long period of time.”[9]

Cornyn then offered this argument for rejection of the presidential veto message:

  • JASTA would not “create complications” with some of our close partners. It “only targets foreign governments that sponsor terrorist attacks on American soil. . . . The financing of terrorism in the [U.S.] is not behavior we should tolerate from any nation, allies included.”
  • Possible foreign laws like JASTA “applied reciprocally will open no . . . floodgates” of lawsuits against the U.S. or military members by foreign governments in foreign courts.
  • “JASTA is not a sweeping legislative overhaul that dramatically alters international law. It is an extension of law that has been on the [U.S.] books since 1976. . . . [For] 40 years our law has been replete with immunity exceptions that apply to conduct committed abroad. This bill just adds another exception.”

Senator Grassley, the Chair of the Senate Judiciary Committee, noted that this Committee unanimously supported overriding the veto of JASTA. He also said it was “highly unlikely” that passage of the bill would result in “the Saudis . . .pulling their money out of U.S. securities. . . . But even if they did, there would be plenty of buyers for those securities. But more importantly, . . . [such an argument would send the message;] if you want to influence U.S. legislation, make sure to buy up U.S. debt, and then threaten to sell that debt any time the U.S. Congress does something you don’t like. We absolutely cannot be intimidated or bend to that type of threat.”

Senator Corker commented that he had “tremendous concerns about the sovereign immunity procedures that could be set in place by other countries as a result of this vote” and that it could have adverse consequences for the U.S. “standing in the world.” He was troubled by “the concerns [of] . . . the head of our Joint Chiefs” and of the President. He also thought it would be better “to establish some type of tribunal, where experts could come in and really identify what actually happened on discretionary decisions that took place within the country of Saudi Arabia” with respect to the pending 9/11 claims.

As a result, Senator Corker prepared a bipartisan letter to the Senate sponsors of JASTA (Senators Cornyn and Schumer).[10] It expressed concern about “potential unintended consequences that may result from . . . [JASTA] for the national security and foreign policy of the United States. If other nations respond to this bill by weakening U.S. sovereign immunity protections, then the [U.S.] could face private lawsuits in foreign courts as a result of important military or intelligence activities. We would hope to work with you in a constructive manner to appropriately mitigate those unintended consequences.”

One of the signers of this letter and the Ranking Member of the Senate Foreign Relations Committee, Senator Benjamin Cardin (Dem., DE), recognized “that there are risk factors in terms of how other countries may respond to the enactment of JASTA. [11] As a nation with hundreds of thousands of troops that serve abroad, not to mention multiple foreign bases and facilities, the United States of America is a country that benefits from sovereign immunity principles that protect our country and our country’s interests, its Armed Forces, government officials, and litigation in foreign courts. Therefore, there is a concern of unintended consequences, including irresponsible applications to U.S. international activities by other countries. While I have faith and confidence in the American legal system, the same faith does not necessarily extend to the fairness of legal systems of other countries that may claim they are taking similar actions against America when they are not. So [as the Ranking Member of the Foreign Relations Committee, I will] follow closely how other countries respond and try to mitigate the risks of the [U.S.] abroad” and will “explore with my colleagues the possibility of whether we need or will need additional legislative action.”

Another signer of the letter, Senator Feinstein, expressed her “key concern relates to the exception to the immunity of foreign governments.”[12] “Proponents of this bill argue that the exception is narrow, that it applies only if a foreign nation, with ill intent, takes unlawful actions that cause an act of terrorism on our soil. But other nations that are strongly opposed to American actions abroad could respond by using the bill as an excuse to adopt laws that target our own government’s actions. A September 15 Washington Post editorial said it well: ‘It is not a far-fetched concern, given this country’s global use of intelligence agents, Special Operations forces and drones, all of which could be construed as state-sponsored `terrorism’ when convenient.’ Those of us on the Senate Intelligence Committee know that, if other countries respond to JASTA in this manner, it could jeopardize our government’s actions abroad. If that happens, it is likely that our government would be forced to defend against private lawsuits, which could pose a threat to our national security.” Therefore, she was interested in limiting JASTA to “the September 11 attacks” and to “those directly impacted by an attack–including individuals, their estates and property damage, rather than companies with only tangential connections.”

U.S. House of Representatives’ Overriding the Veto 

On the afternoon of September 28 the House voted to override the veto of JASTA by a vote of 348 (225 Republicans and 123 Democrats) to 77 (18 Republicans and 59 Democrats).[13]

The supporters of override were led by Representative Robert Goodlatte (Rep., VA), the Chair of the House Judiciary Committee, who asserted, “The changes JASTA makes to existing law are not dramatic, nor are they sweeping.. . .The President’s objections . . . have no basis under U.S. or international law.. . . Consistent with customary international law, JASTA, for terrorism cases, removes the current requirement that the entire tort occur within the United States and replaces it with a rule that only the physical injury or death must occur on U.S. soil.” Later in the debate he claimed (erroneously as explained in n.14) that his argument was supported by “Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties [which] would apply the territorial tort exception if the act or omission occurred in whole or in part in the territory of the state exercising jurisdiction.”[14]

Others who supported the override and who spoke during the debate were Representatives Peter King (Rep., NY), Sheila Jackson Lee (Dem., TX), Leonard Lance (Rep., NJ), David Donovan (Rep., NY), Carolyn Maloney (Dem., NY) and Jerrold Nadler (Dem. FL).

Leading the opposition to the override were Representative M. “Mac” Thornberry (Rep., TX), the Chair of the House Armed Services Committee, and Representative John Conyers (Dem., MI). Other opponents of override who spoke during the debate were Representatives Eddie Bernice Johnson (Dem., TX), David Jolly (Rep., FL), Betty McCollum (Dem., MN), Robert Scott (Dem., VA) and Earl Blumenauer (Dem., NY).

Thornberry expressed concern for the possible erosion of sovereign immunity, which is “one of the key protections that the military, diplomats, and intelligence community of the [U.S.] has around the world. Once that doctrine gets eroded, then there is less protection, and . . . the [U.S.], has more at stake in having our people protected than any other country because we have more people around the world than anyone else.” Thornberry also quoted from a letter to him from Joseph F. Dunford, Jr., General, U.S. Marine Corps. and Chairman of the Joint Chiefs of Staff: `Any legislation that risks reciprocal treatment by foreign governments would increase the vulnerability of U.S. Service members to foreign legal action while acting in an official capacity.” This letter and a letter urging defeat of the override from Secretary of Defense Ash Carter were inserted into the House record.

Conyers supported the President’s reasons for his veto. “First, the President stated that [the bill] could undermine the effectiveness of our Nation’s national security and counterterrorism efforts. For instance, other nations may become more reluctant to share sensitive intelligence in light of the greater risk that such information may be revealed in litigation.   Moreover, the President raised the concern that this legislation would effectively allow non-expert private litigants and courts, rather than national security and foreign policy experts, to determine key foreign and national security policy questions like which states are sponsors of terrorism.   Second, the President’s assertion that enactment of[the bill]may lead to retaliation by other countries against the [U.S.] given the breadth of our interests and the expansive reach of our global activities.   So while it seems likely at this juncture that [the bill] will be enacted over the President’s veto, I remain hopeful that we can continue to work toward the enactment of subsequent legislation to address the President’s concerns.”

Conyers also cited others who called for sustaining the President’s veto: Michael Mukasey, the former Attorney General under George W. Bush; Stephen Hadley, the former National Security Adviser for that President; Richard Clarke, the former White House counterterrorism adviser for Presidents Bill Clinton and George W. Bush; and Thomas Pickering, the former [U.S.] Ambassador to the United Nations.

Representative Scott said, “JASTA abrogates a core principle in international law–foreign sovereign immunity. There are already several exceptions to this immunity recognized by our Nation and others, but JASTA goes much further than any present exception or recognized practice of any national law…. One fundamental indication of fairness of legislation is not how it would work to our benefit, but what we would think if it were used against us. If the [U.S.] decides to allow our citizens to haul foreign nations into American courts, what would we think of other nations enacting legislation allowing their citizens to do the same thing to us? Obviously, we would not want to put our diplomats, military, and private companies at that risk.”

Scott also pointed out that “JASTA does not make clear how the evidence would be gathered to help build a credible case against a foreign nation. Would the plaintiffs be able to subpoena foreign officials? Or would the U.S. Department of State officials have to testify? Would . . . [the U.S.] be required to expose sensitive materials in order to help American citizens prove their case? Again, how would we feel about foreign judges and juries deciding whether or not the [U.S.] sponsored terrorism? There are also questions about how the judgment under JASTA would be enforced. The legislation does not address how a court would enforce the judgment. Could foreign assets be attached? How would this process work if other countries enacted similar legislation? Would U.S. assets all over the world be subject to attachment to satisfy the foreign jury verdicts?”

Jolly emphasized that “the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the CIA Director, and the Chairman of the House Armed Services Committee [Representative Thornberry] have all issued statements against this legislation.”

White House Reaction to the Overriding of the Veto

On the same day as this Senate vote and before the House voted on the same bill later that day, White House Press Secretary, Josh Earnest, said, “I would venture to say that this is the single-most embarrassing thing that the United States Senate has done possibly since 1983. You had at least one prominent Republican senator quoted today saying that . . . the members of the Senate Judiciary Committee were not quite sure what the bill actually did.  And to have members of the United States Senate only recently informed of the negative impact of this bill on our service members and our diplomats is, in itself, embarrassing.  For those senators then to move forward in overriding the President’s veto that would prevent those negative consequences is an abdication of their basic responsibilities as elected representatives of the American people.”[15]

Furthermore, said the Press Secretary, “these senators are going to have to answer their own conscience and their constituents as they account for their actions today.  You’ve got to give some credit to Harry Reid.  He showed some courage.  The same can’t be said for the other 96 members of the Senate who voted today.”

The same day President Obama on CNN said that a few lawmakers who backed the bill weren’t aware of its potential impact and that he wished Congress “had done what’s hard.” CIA Director John Brennan said he was concerned about how Saudi Arabia, a key U.S. ally in the Middle East, would interpret the bill. He said the Saudis provide significant amounts of information to the U.S. to help foil extremist plots. “It would be an absolute shame if this legislation, in any way, influenced the Saudi willingness to continue to be among our best counterterrorism partners,” Brennan said.[16]

On September 29, after the House had voted and JASTA became law, Press Secretary Earnest added, “I think what we’ve seen in the United States Congress is a pretty classic case of rapid-onset buyer’s remorse.  Within minutes of casting their vote to put that bill into law, you had members of the United States Senate — some 28 of them — write a letter expressing deep concern about the potential impact of the bill they just passed.  The suggestion on the part of some members of the Senate was that they didn’t know what they were voting for, that they didn’t understand the negative consequences of the bill. That’s a hard suggestion to take seriously when you had letters from President Bush’s attorney general and national security advisor warning about the consequences of the bill.  You had attorneys from our closest allies in Europe expressing their concerns about the impact of the bill.  You had a letter from some of America’s business leaders, including Chief Executive of GE, Jeffrey Immelt, warning about the potential economic consequences of the bill.  You had letters from the Director of the CIA, the Chairman of the Joint Chiefs of Staff, the Secretary of Defense and the Commander-in-Chief all warning about the potential impact of the bill.”[17]

Conclusion

As indicated above, certain Senators indicated their intent to pursue amendments to JASTA to remedy what they see as problems with the statute. This will be the subject of future posts.

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

[1] White House, Veto Message from the President—S.2040 (Sept. 23, 2016) Afterwards Josh Earnest, the White House Press Secretary, discussed whether there was congressional opposition to overriding the veto and criticism of the bill from Saudi Arabia and “a lot of other countries, including the European Union. White House, Press Briefing by Press Secretary Josh Earnest, 9/26/16; White House, Press Briefing by Press Secretary Josh Earnest, 9/27/16.

[2] Assoc. Press, Lawmakers Vow to Override Obama’s Veto of Sept. 11 bill, N.Y. Times (Sept. 24, 2016).

[3] Cornyn, Cornyn Statement on President’s Veto of JASTA (Sept. 23, 2016).

[4] Demirjian & Ellperin, Congress overrides Obama’s veto of 9/11 bill, Wash, Post (Sept, 28, 2016).

[5] Cornyn, Cornyn Op-Ed: give 9/11 Families a Legal Avenue (Sept. 28, 2016).

[6] Editorial, The Risks of Sueing the Saudis for 9/11, N.Y. Times (Sept. 28, 2016)

[7] Steinhauer, Mazzetti & Davis, Congress Votes to Override Obama Veto on 9/11 Victims Bill, N.Y. Times (Sept. 28, 2016); Eilpirin & Demirjian, Congress thwarts Obama on bill allowing 9/11 lawsuits against Saudi Arabia, Wash. Post (Sept. 28, 2016).

[8] Cong. Rec. S6166-73 (Sept. 28, 2016).

[9] The prior post about the initial passage of JASTA started with the 2015 introduction of the bill and did not attempt to cover earlier versions of the bill or the process referenced by Senator Cornyn. Comments about this earlier process would be much appreciated.

[10] This bipartisan letter was signed by 15 Democrat Senators (Bennet, Cardin, Carper, Coons, Feinstein, Heitkamp, Hirono, McCaskill, Merkley, Nelson, Reed, Schatz, Shaheen, Udall and Warner), 12 Republican Senators (Alexander, Coats, Corker, Cotton, Flake, Graham, McCain, Risch, Roberts, Rounds, Sullivan and Thune) and Independent Senator King.

[11] Cardin, Cardin Statement on JASTA Veto Vote (Sept. 28, 2016).

[12] Feinstein, Feinstein Statement on Justice Against Sponsors of Terrorism Act (Sept. 28, 2016).

[13] Cong. Record H6023-32 (Sept. 28, 2016).

[14] The United Nations Convention on Jurisdictional Immunities of States and Property is certainly relevant to the issue of international law on the subject. Representative Thornberry, however, failed to quote the entirety of Article 12 of this treaty and thereby reached an erroneous conclusion that it supports JASTA. That Article states, “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” The portion in bold was not quoted by Thornberry.  Moreover, this treaty is not yet in force because its Article 30 requires 30 states to become parties thereto, and to date only 21 states have done so, and the U.S. has neither signed nor ratified this treaty.

[15] White House, Press Gaggle by Press Secretary Josh Earnest en route Fort Lee, Virginia 9/28/16.

[16] Assoc. Press, Congress Rebukes Obama, Overrides Veto of 9/11 Legislation, N.Y. Times (Sept. 28, 2016); Reuters, Congress Rejects Obama Veto, Saudi Sept. 11 Bill Becomes Law, N.Y. Times (Sept, 28, 2016).

[17] White House, Press Briefing by Press Secretary Josh Earnest and Secretary of Education King (Sept. 29, 2016).

 

Presidential Nomination of U.S. Ambassador to Cuba

 

Jeffrey DeLaurentis
Jeffrey DeLaurentis

On September 27 U.S. President Barack Obama nominated Jeffrey DeLaurentis to be the U.S. Ambassador to Cuba. If the nomination is confirmed by the U.S. Senate, he would be the first to fill that position in over 50 years.[1]

President Obama said, “Jeff’s leadership has been vital throughout the normalization of relations between the United States and Cuba, and the appointment of an ambassador is a common sense step forward toward a more normal and productive relationship between our two countries.” He “is already working with Cuba on issues that advance U.S. national interests, such as law enforcement, counternarcotics, environmental protection, combatting trafficking in persons, expanding commercial and agricultural opportunities, and cooperation in science and health.  He engages broadly with the Cuban people and expresses the United States’ strong support for universal values and human rights in Cuba.”[2]

Moreover, according to Obama, “Having an ambassador will make it easier to advocate for our interests, and will deepen our understanding even when we know that we will continue to have differences with the Cuban government. He is exactly the type of person we want to represent the United States in Cuba, and we only hurt ourselves by not being represented by an ambassador.”

This nomination was supported by Senator Patrick Leahy (Dem., VT), who said, the nominee “is a career diplomat who is universally respected by his peers, and by Democrats and Republicans in Congress, for his intellect, his integrity, and his thoughtfulness. . . . We need an ambassador who knows Cuba, who is respected by the Cuban government, and who will stand up for U.S. interests and values. Jeff is that person.”[3]

Another supporter of the nomination, Senator Jeff Flake (Rep., AZ), Sen. expects great difficulty in obtaining Senate confirmation of the nominee. He said, “Given the fight we had to go through just to approve our Mexican ambassador (Roberta Alexander) just because of her ties to the Cuba negotiations, I can just imagine what might be coming here.”[4]

Indeed, the prospects of the Republican-controlled Senate’s confirmation of this nomination in the remaining months of the Obama presidency, however, are not promising. Senator Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, observed, “”The committee was notified of the nomination [on September 27] but has not yet received the appropriate paperwork to begin its work. However, it is highly unlikely that an ambassador to Cuba would be approved in the lame-duck [session ending on December 31, 2016].”[5]

For example, Senator Marco Rubio (Rep., FL) said the nomination should not advance. “Just like releasing all terrorists from Guantánamo and sending U.S. taxpayer dollars to the Iranian regime, rewarding the Castro government with a U.S. ambassador is another last-ditch legacy project for the president that needs to be stopped. This nomination should go nowhere until the Castro regime makes significant and irreversible progress in the areas of human rights and political freedom for the Cuban people, and until longstanding concerns about the Cuban regime’s theft of property and crimes against American citizens are addressed.”[6]

Rubio’s opposition was anticipated. Indeed, a key Obama aide, U.S. Deputy National Security Advisor, Benjamin Rhodes, said after the belated announcement of this nomination that the Administration did not want such opposition to an earlier nomination to distract the Administration from other U.S. priorities in pursuing normalization of affairs with Cuba, such as establishing diplomatic relations, ending the U.S. designation of Cuba as state sponsor of terrorism, the President’s March 2016 trip to the island and various bilateral meetings to work on various issues.[7]

In the meantime, Cuba welcomed the nomination while also complaining that President Obama has not done all he could do to loosen U.S. restrictions on trade with Cuba.[8]

Since August 2014 DeLaurentis has served as the Chargé d’Affaires of the U.S. Interests Section (and after July 2015 the U.S. Embassy) in Havana. He also served in the U.S. Interests Section in Havana as Consular Officer, 1991-93, and as Political-Economic Section Chief, 1999-2002. In his diplomatic career beginning in 1991 he has held many other important positions and holds the rank of ambassador.[9]

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

[1] Davis, Obama Nominates First Ambassador to Cuba in Over 50 Years, N.Y. Times (Sept, (7, 2016); Reuters, Obama Names U.S. Ambassador to Cuba, Setting Up Confirmation Fight, N.Y. Times (Sept. 27, 2016); Assoc. Press, Obama Names Career Diplomat as US Ambassador to Cuba, N.Y. Times (Sept. 27, 2016); White House, Presidential Nominations Sent to Senate (Sept. 28, 2016).

[2] White House, President Obama Announces Another Key Administration Post (Sept. 27, 2016).

[3] Leahy, Statement on the Nomination of Jeffrey DeLaurentis (Sept. 28, 2016)  Leahy’s statement also contains a lengthy rebuttal of the opposition to the nomination voiced by Senator Marco Rubio.

[4] Schwartz, Obama Nominates First U.S. Ambassador to Cuba in 50 Years, W.S.J. (Sept. 27, 2016).

[5] Reuters, U.S. Senator: ‘Unlikely’ Cuba Ambassador Will Be Approved This Year, N.Y. Times (Sept. 28, 2016).

[6] Rubio, Rubio: President Obama’s Nomination of Ambassador to Castro Regime Should Go Nowhere (Sept. 27, 2016).

[7] Ordoñez & Torres, Did Marco Rubio scare the White House away from nominating an ambassador to Cuba? InCubaToday (Sept. 28, 2016).

[8] Reuters, Cuba Ambassador Nomination but Says Obama Can Do More, N.Y. Times (Sept. 28, 2016)

[9] U.S. Embassy to Cuba, Biography of DeLaurentis.

Commemorating the First Anniversary of U.S.–Cuba Rapprochement

The first anniversary of U.S.-Cuba rapprochement, on December 17, 2015, was not marked by any ceremony in either country. Instead, public statements were issued by the White House, the U.S. State Department, the de facto U.S. Ambassador to Cuba, Jeffrey De Laurnetis. U.S. Senators and Representatives, Cuban officials and others. Nothing new or surprising was said in any of them.

White House[1]

On the anniversary date, President Obama released a statement on the subject. He said that during this year “we have taken important steps forward to normalize relations between our countries” that were detailed in the previously released FACT SHEET discussed below. The President continued, “We are advancing our shared interests and working together on complex issues that for too long defined—and divided—us. Meanwhile, the United States is in a stronger position to engage the people and governments of our hemisphere. Congress can support a better life for the Cuban people by lifting an embargo that is a legacy of a failed policy.” Nevertheless, “Change does not happen overnight, and normalization will be a long journey.”

The earlier White House FACT SHEET. listed the following eleven significant steps of normalization this past 12 months:

  • U.S. “removal of Cuba from the State Sponsors of Terrorism List;”
  • “re-establishment of diplomatic relations and opening of embassies; “
  • Secretary of State Kerry’s visit to Cuba;
  • the establishment of the U.S.-Cuba Bilateral Steering Commission, which has produced a working relationship to protect the environment and manage marine protected areas in Cuba, Florida and the Gulf of Mexico; an expansion of counternarcotics cooperation, increased cooperation to prevent smuggling; an understanding to re-establish direct postal services between the two countries; and commencement of discussions on property claims;
  • the commencement of talks to improve Cuban human rights;
  • cooperation on medical relief to Haiti;
  • easing of restrictions on U.S. citizens travel to Cuba, resulting in a 54% increase of such travel;
  • easing of U.S. restrictions on commerce with Cuba;
  • easing of U.S. restrictions on telecommunications and internet commerce with Cuba, resulting in several private business transactions to do just that;
  • discussions to increase cooperation regarding security of trade and travel flows;
  • U.S. support of Colombia-FARC peace talks monitored by Cuba; and
  • The Administration’s continued advocacy for congressional ending the U.S. embargo of Cuba.

Benjamin J. Rhodes, Mr. Obama’s deputy national security adviser for strategic communications, who participated in the secret talks that led to the rapprochement, said, “We went into this with no illusions that the Cubans were going to radically change their political system overnight, but our belief has been that greater engagement, greater people-to-people ties, greater commercial activity does open up space for the Cuban people. Part of what we are doing is raising people’s expectations, and that’s appropriate.”

Rhodes added, We reject this notion that our opening is a form of concession, because the opening is the whole point — we think it’s in our interest to have people traveling down to Cuba and doing business there. There’s a natural momentum to these things.”

President Obama himself last week stated that he hopes to visit Cuba during his last year in office, but only if enough progress has been made in bilateral relations, he is able to meet with political dissidents, and if he can possibly “nudge the Cuban government in a new direction.” In response, Josefina Vidal, an official in Cuba’s Foreign Ministry, said Obama would be welcome, but “Cuba has always said … it is not going to negotiate matters that are inherent to its internal system in exchange for an improvement in or the normalization of relations with the United States.” [2]

U.S. State Department [3]

The U.S. would like change to happen “more quickly” and to see “increased access information online.” In addition, the U.S. hopes that Cuba “will give their citizens more space so they can exercise freely their civil and political rights.”

The U.S. and Cuba “very soon” will start a pilot program for renewed direct mail service.

U.S.-Cuba negotiations on direct commercial flights between the two countries are near a successful conclusion “ very, very soon.” The discussions on damage claims have just started, but their resolution remains a “top [U.S.] priority for normalization.”

For progress on Cuban economic issues, the U.S. believes the April 2016 congress of the Communist Party of Cuba will be important.

“Safe, legal, and orderly [Cuban] migration remains a priority of the U.S.,” which has “done our best to comply” with accords with Cuba on that subject. But “the Administration at this point has no plans to alter our current migration policy toward Cuba and Cubans,” including the Cuban Adjustment Act.

The U.S. continues to encourage Cubans to go to the U.S. Embassy in Havana “for the several available avenues for legal migration to the U.S.” In addition, the U.S. is “encouraging governments in the region to find . . . coordinated and comprehensive solutions that focus on preventing the loss of life and ensuring that human rights of all migrants are respected and promoting orderly and humane migration policies.”

Jeffrey DeLaurentis[4]

Mr. DeLaurentis, via teleconference from Havana, said, “A year ago President Obama “made it clear that our aspiration for the Cuban people remains that they enjoy a peaceful, prosperous, and democratic society.”

“Over the course of the past year, we have made good progress and come a long way. Our two countries have engaged in historic dialogue on a wide range of issues. We have discussed concrete objectives on civil aviation, direct transportation of mail, the environment, regulatory changes, and counter-narcotics and have either reached understandings on those topics or continue to narrow our differences in ways that suggest we could soon conclude such understandings.”

“One of the President’s goals in announcing the new approach to Cuba was to promote increased authorized travel, commerce, and the flow of information to the Cuban people. In that regard, we have seen an increase in authorized travel by U.S. citizens by over 50 percent. Our regulatory changes help promote a Cuban private sector that now accounts for at least one in four Cuban workers. And Cuba recently signed roaming agreements with two U.S. companies that promote the flow of information. But more could be done on the Cuban side to take advantage of new openings.”

“A year ago, we had very limited engagement with the Cuban Government. Now we are in open conversation on issues that matter to the United States.” This includes working “together to combat transnational crime, protect our shared ecosystem, and create opportunities for the people in both nations to thrive.”

“However, we still have areas of disagreement. . . . such as property claims, fugitives, and human rights.. . . Still, the re-establishment of diplomatic relations and the opening of our embassy have given us a more effective platform through which to promote U.S. interests and values on those and all bilateral issues. It is worth recalling [that] Secretary Kerry noted during the flag-raising ceremony in August – normalization will not happen overnight.”

“The President last year called on the Cuban Government to unleash the potential of 11 million Cubans by ending unnecessary restrictions on their political, social, and economic activities. The Administration has taken a number of steps within the President’s authority to support a growing private sector in Cuba and strengthen people-to-people ties. The President has called on Congress to end the embargo.”

U.S. Senators and Representatives

Senators Patrick Leahy (Dem., VT) and Jeff Flake (Rep., AZ), both of whom have been to Cuba several times this past year, sent a letter to President Obama urging further loosening of U.S. travel, export and financial restrictions with Cuba. [5]

On the other hand, Cuban-American Representatives Ileana Ros-Lehtinen and Mario Diaz-Balart of Florida, both of whom have been persistent critics of normalization, offered objections to what they saw as failed policies.”[6]

Cuban Officials[7]

On December 17 Cuba’s Foreign Ministry released a statement that concluded, “To achieve normal relations between the two countries, the [U.S.] must remove, without any conditions, the economic, commercial and financial blockade which for decades the U.S. has maintained against Cuba. Nor can one speak of normalization, while the illegally occupied Guantanamo Naval Base and other policies of the past that are harmful to the sovereignty of Cuba are not removed.“

Earlier, Josefina Vidal Ferreiro, the Cuban Ministry of Foreign Relations’ Director General for the United States, said, “We can say that Cuba and the United States have made progress in their relations, with a marked difference from the preceding stage,” She noted progress in the political and diplomatic fields with the reestablishment of diplomatic relations, the reopening of embassies and the removal of the island from the U.S. list of countries sponsoring terrorism. She also highlighted the personal meetings between the leaders of Cuba and the U.S.

More specifically she said the two countries were close to concluding an agreement for civil aviation and had expanded or created cooperation in search and rescue; the fight against drug trafficking; migration; port maritime security, application and enforcement of the law; and health.

On the other hand, she commented, there is more to do. The U.S. needs to end the embargo, return Guantanamo Bay to Cuba, stop “subversive programs and illegal broadcasting” as well as abolish its special immigration policies regarding Cubans.

Vidal concluded that “even with the differences that exist between our countries, better links will only bring benefits to both countries and their peoples. We really believe that a model of civilized coexistence is the best contribution that we can leave the present and future generations of Cuba, the U.S. and the entire region.

Others

Everyone, supporters and critics of normalization, agrees that change has been slow and that much more needs to be done to facilitate a complete normalization. Nevertheless, as two experts on this relationship recognize, there has been progress.

Julia E. Sweig, a Cuba specialist and senior research fellow at the Lyndon Baines Johnson School of Public Affairs at the University of Texas at Austin, observed, “It was just pure fantasy to think, as it has been for the last 60 years, that the United States could directly shape the nature of the Cuban political system. It feels like we’re getting excited about tiny steps, but those tiny steps, against the backdrop of the thicket of laws and regulations that have produced a ‘no’ as the answer to any question, and now we’re figuring out how to get to ‘yes’ — that’s progress.”[8]

Scott D. Gilbert, a Washington-based lawyer who helped negotiate Cuba’s release last year of Alan Gross, said, “When you stand back and look at this against the backdrop of almost 60 years of complete adversity, complete lack of dialogue, absolute distrust, it’s been a remarkable year. But there is frustration and disappointment on both sides that more deals haven’t gotten done. It’s a process that still needs a lot of work.”[9]

Alan Gross himself stated, “Our relations will not be normalized for some years to come, will not be totally normalized. But I believe that both governments are working towards that, We need to be patient to see this relationship evolve.” He specifically wants to see the U.S. end its embargo of Cuba, which is “stupid” and a “complete and utter failure.”

Jeanne Lemkau, a clinical psychologist and professor emerita of family medicine, commented on her 12th trip to Cuba, this October, to the central and eastern part of the island. She saw a creative example of the Cuban entrepreneurial initiative: a young man peddling shoes from a carefully arranged display on the top of a jeep chassis, snuggly parked next to his house. In addition, she saw many people using laptops and mobile phones; homes freshly painted in lovely Caribbean colors, a luxury that was once far beyond the resources of most Cubans; beautifully renovated hotels; and recently cleaned streets.[10]

Conclusion

As a strong advocate for U.S.-Cuba reconciliation, I too have mixed feelings on this first anniversary. I am glad that one year ago both countries decided to pursue normalization, that the previously mentioned steps towards normalization have been taken and that the normalization process is continuing. On the other hand, I am especially disappointed that the U.S. has not yet ended its embargo of the island and its special immigration benefits for Cubans.

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

[1] White House, Statement of the President on the Anniversary of Cuba Policy Changes (Dec. 17, 2015); Obama, Statement by President Obama on the anniversary of the changes in policy toward Cuba, Granma (Dec. 17, 2015); White House, FACT SHEET: One-Year Anniversary of the President’s Policy of Engagement with Cuba (Dec. 16, 2015); Davis, Year After Cuba-U.S. Thaw, Obama Says Change Will Take Time, N.Y. Times (Dec. 16, 2015). Assoc. Press, Marking Anniversary, Obama Says Long Journey for US, Cuba, N.Y. Times (Dec. 17, 2015); Reuters, Obama Says U.S., Cuba Continue to Have Differences, N.Y. Times (Dec. 17, 2015).

[2] Reuters, Obama Says May Visit Cuba in 2016 if Citizens Enjoy More Freedoms, N.Y. Times (Dec. 14, 2015); Reuters, Cuba Says Obama Welcome to Visit but Not to Meddle, N.Y. Times (Dec. 17, 2015).http://www.nytimes.com/reuters/2015/12/17/world/americas/17reuters-cuba-usa.html

[3] U.S. State Dep’t, Background Briefing on the Progress Made Toward the Normalization of U.S.-Cuba Relations (Dec. 15, 2015).

[4] U.S. State Dep’t, Special Briefing by Jeffrey DeLaurentis on the One-Year Anniversary of the President’s Policy of Engagement with Cuba (Dec. 15, 2015).

[5] Flake, Flake, Leahy Urge President to Expand U.S. Engagement with Cuba on Anniversary of Renewed Relations (Dec. 16, 2015); Schwartz, Senators Urge Obama Administration to Further Loosen Cuba Rules, W.S.J. (Dec. 16, 2015).

[6] Ros-Lehtinen, One Year Later, Obama’s Cuba Policy Has Proven To Be A Sham and Cubans Are No Closer To Freedom and Democracy, Says Ros-Lehtinen (Dec. 16, 2015); Diaz-Balart, One Year Later: The Results of Obama’s Concessions to the Castros (Dec. 17, 2015).

[7] Cuba Foreign Ministry, Editorial: The lifting of the blockade is essential for a normal relationship (Dec. 17, 2015); Gomez, Josefina Vidal assures that Cuba and the U.S. have made progress, Granma (Dec. 17, 2015); Elizalde, Josefina Vidal: Significant progress has been recorded between Cuba and the US, CubaDebate (Dec. 16, 2015). Granma also published commentaries on the first anniversary by the Cuban Five, Gomez et al., A year in which freedom fits all, Granma (Dec. 17, 2015). Another article provided commentary on the embargo. Gomez, A year later, the blockade is still there, Granma (Dec. 17, 2015).

[8] Davis, One Year After Cuba-U.S. Thaw, Obama Says Change Will Take Time, N.Y. Times (Dec. 16, 2015).

[9] Assoc. Press, American Marks 1 Year Since Being Freed From Cuban Prison, N.Y. Times (Dec. 17, 2015).

[10] Lemkau, Observations of an ever-evolving Cuba, LAWG (Dec. 16, 2015).

 

 

Kerry’s Meeting with Cuban Dissidents Gets Rave Reviews

A prior post discussed preliminary information about U.S. Secretary of State John Kerry’s August 14 meeting with Cuban dissidents and others at the official Havana residence of the U.S. charge d’affaires. The other attendees included representatives of the Engage Cuba coalition for normalization; its members (the Center for Democracy in the Americas, #CubaNow, Procter & Gamble, the American Society of Travel Agents, Cuba Study Group, and the Washington Office on Latin America); notable members of Congress, including Senators Klobuchar, Flake, and Leahy; leaders of the American business community; and Cuban independent entrepreneurs.

Further information about that meeting has been added by Ernesto Londoño, the member of the New York Times Editorial Board who was the main force behind last year’s series of editorials urging normalization of U.S. ties with Cuba, and by Engage Cuba.[1]

YoaniSanchez

Londoño reports that Cuban dissidents are very pleased with such normalization and with the August 14 ceremonial opening of the U.S. Embassy in Havana. He referred first to the article in The Atlantic by Yoani Sanchez that was mentioned in the prior post.

This was confirmed in an email to him from Sanchez. With respect to the meeting with Kerry, she said “People hugged and greeted each other like they were at the baptism of a creature that had a rough, problematic gestation, and has finally come to life. It’s been many years since I’ve witnessed a moment like that, surrounded by so many happy people.” Moreover, Kerry ”left a “profound impression” on them, with his listening carefully to their concerns and brainstorming about ways to expand Internet access on the island.

Unknown

Another dissident at the meeting was José Daniel Ferrer, a former political prisoner who is head of the Patriotic Union for Cuba, the largest and most active opposition group on the island. He said he was heartened by the meeting with Mr. Kerry, whom he described as realistic and supportive. “His speech [at the meeting] was good and clear. Many of us are grateful for his remarks, including that the situation in Cuba would improve if we had a genuine democracy.”

In recent months, Cuban authorities have continued to harass, temporarily detain, and slander dissident leaders, Mr. Ferrer said. “Repression has increased, but not because the new policy is weak and paves the way for that, no,” he said. “Repression has increased because every day there’s more activism and courage and the regime fears it will lose control.”

Ferrer’s group has put videos on You Tube showing its leaders delivering aid packages to destitute Cubans and holding meetings. Others in the group are helping Cubans getting online at new Wi-Fi hot spots. Ferrer said, “There are many people who want to connect but have no idea how. We suggest sites based on their interests and we tell them about the unlimited possibilities the Internet brings.”

Engage Cuba said that they met Cuban entrepreneurs engaged in event planning, supplying promotional packaging, designing fashions and creating mobile apps. These interactions reinforced Engage Cuba’s efforts to identify opportunities to support these entrepreneurs by connecting them with counterparts in the U.S. and the coalition’s commitment to help unleash the potential of the Cuban economy by working with Congress to end the travel ban and lift the trade embargo. While we continue to work with Congress.

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

[1] Londoño, Cuban Dissidents Buoyed in a New Era, N.Y. Times (Aug, 24, 2015), ; Email, Engage Cuba to supporters, Living History: Cubans And Americans Embark On A Better Future (Aug. 24, 2015).

 

U.S. Secretary of State Speaks to the Cuban People

On August 14, 2015, the U.S. formally opened its Embassy in Havana, Cuba with the raising of the American flag and a program featuring remarks by U.S. Secretary of State John Kerry that were telecast and broadcast live throughout the island.[1] Thus, his message, in one sense, was directed to the Cuban people, and the words in bold in the following remarks were especially addressed to them.

John Kerry @ U.S. Embassy in Havana
John Kerry @ U.S. Embassy in Havana
Secretary & U.S. Flag at Havana Embassy
Kerry & U.S. Flag at Havana Embassy

Kerry’s Remarks

Kerry started by recognizing that “this is truly a memorable occasion – a day for pushing aside old barriers and exploring new possibilities” and that Presidents Obama and Castro had made “a courageous decision to stop being the prisoners of history and to focus on the opportunities of today and tomorrow.”

The U.S. needs to recognize that “U.S. policy is not the anvil on which Cuba’s future will be forged. Decades of good intentions aside, the policies of the past have not led to a democratic transition in Cuba. It would be equally unrealistic to expect normalizing relations to have, in a short term, a transformational impact. After all, Cuba’s future is for Cubans to shape. Responsibility for the nature and quality of governance and accountability rests, as it should, not with any outside entity; but solely within the citizens of this country.”

“But the leaders in Havana – and the Cuban people – should also know that the United States will always remain a champion of democratic principles and reforms. . . .[We] will continue to urge the Cuban Government to fulfill its obligations under the UN and inter-American human rights covenants – obligations shared by the United States and every other country in the Americas.”

“And indeed, we remain convinced the people of Cuba would be best served by genuine democracy, where people are free to choose their leaders, express their ideas, practice their faith; where the commitment to economic and social justice is realized more fully; where institutions are answerable to those they serve; and where civil society is independent and allowed to flourish.”

We “believe it’s helpful for the people of our nations to learn more about each other, to meet each other. That is why we are encouraged that travel from the United States to Cuba has already increased by 35 percent since January and is continuing to go up. We are encouraged that more and more U.S. companies are exploring commercial ventures here that would create opportunities for Cuba’s own rising number of entrepreneurs, and we are encouraged that U.S. firms are interested in helping Cuba expand its telecommunications and internet links, and that the government here recently pledged to create dozens of new and more affordable Wi-Fi hotspots.”

“The restoration of diplomatic ties will also make it easier for our governments to engage. After all, we are neighbors, and neighbors will always have much to discuss in such areas as civil aviation, migration policy, disaster preparedness, protecting marine environment, global climate change, and other tougher and more complicated issues. Having normal relations makes it easier for us to talk, and talk can deepen understanding even when we know full well we will not see eye to eye on everything.”

“We are all aware that . . . the overall U.S. embargo on trade with Cuba remains in place and can only be lifted by congressional action – a step that we strongly favor. For now, the President has taken steps to ease restrictions on remittances, on exports and imports to help Cuban private entrepreneurs, on telecommunications, on family travel, but we want to go further. The goal of all of these changes is to help Cubans connect to the world and to improve their lives. And just as we are doing our part, we urge the Cuban Government to make it less difficult for their citizens to start businesses, to engage in trade, access information online. The embargo has always been something of a two-way street – both sides need to remove restrictions that have been holding Cubans back.”

Kerry also thanked “leaders throughout the Americas who have long urged the United States and Cuba to restore normal ties [and] the Holy Father Pope Francis and the Vatican for supporting the start of a new chapter in relations between our countries.”

He then paid “tribute to the people of Cuba and to the Cuban American community in the United States. Jose Marti once said that ‘everything that divides men…is a sin against humanity.’ Clearly, the events of the past – the harsh words, the provocative and retaliatory actions, the human tragedies – all have been a source of deep division that has diminished our common humanity. There have been too many days of sacrifice and sorrow; too many decades of suspicion and fear. That is why I am heartened by the many on both sides of the Straits who . . . have endorsed this search for a better path.”

“We have begun to move down that path without any illusions about how difficult it may be. But we are each confident in our intentions, confident in the contacts that we have made, and pleased with the friendships that we have begun to forge. And we are certain that the time is now to reach out to one another, as two peoples who are no longer enemies or rivals, but neighbors – time to unfurl our flags, raise them up, and let the world know that we wish each other well.”

Conclusion

In attendance at the ceremony were Embassy staff, including Jeffrey DeLaurentis, the charge d’affaires; other U.S. federal government officials, including Assistant Secretary of State for Western Hemisphere Affairs, Roberta Jacobson, who led the U.S. delegation in recent negotiations with Cuba; other countries’ diplomats; U.S. Senators Patrick Leahy (Dem., VT), Barbara Boxer (Dem., CA), Amy Klobuchar (Dem., MN) and Jeff Flake (Rep., AZ); [2] U.S. Representatives Karen Bass (Dem., CA), Steve Cohen (Dem., TN), Barbara Lee (Dem., CA) and Jim McGovern (Dem., MA); [3] and James Williams, President of Engage Cuba, and Zane Kerby, President & CEO of American Society of Travel Agents.

Also in attendance was a Cuban delegation, including Josafina Vidal, who led the Cuban team in those negotiations; and Dr. José Ramón Cabañas Rodriguez, the new Cuban Ambassador to the U.S. [4]

Another highlight of the ceremony was the beautiful reading of a beautiful poem, “Matters of the Sea” or “Cosas del Mar,” by the Cuban-American poet, Richard Blanco. Afterwards Kerry walked around old Havana, met privately with Cuban Foreign Minister, Bruno Rodriguez Parrilla, participated in a joint press conference with Rodriguez and met with Cuban dissidents at the official Havana residence of the U.S. charge d’affaires These other events of the day will be discussed in subsequent posts.

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

[1] Gordon, Kerry Strikes Delicate Balance in Havana Trip for Embassy Flag-Raising, N.Y. Times (Aug. 14, 2015); Assoc. Press, A Festive Flag-Raising, Then Tough Talk on U.S.-Cuba Relations, N.Y. Times (Aug. 15, 2015);  DeYoung, In historic Cuba visit, Kerry presides over raising of U.S. flag over embassy in Havana, Wash. Post (Aug.14, 2015); Granma, Official reopening ceremony will take place today, Granma (Aug. 14, 2015); Parazza, Bécquer & Gomez, The challenge of building a future without forgetting the past, Granma (Aug. 15, 2015). A video of the ceremony also has been archived.

[2] Separate press releases celebrating the formal opening of the U.S. Embassy were issued by Senators Leahy, Boxer, Klobuchar and Flake. Back in the U.S. Senator Marco Rubio denounced the opening of the Embassy.

[3] Representatives Cohen, Lee and McGovern issued press releases welcoming the reopening of the Embassy in Havana.

[4]  Dr.Cabañas visited Minnesota last October and was mentioned in a prior post.