Senator Robert Menendez – dwkcommentaries

Cuba’s Unchanged Status in U.S. State Department’s Annual Report on Human Trafficking

The U.S. Trafficking Victims Protection Act of 2000, among other things, establishes a definition of “human trafficking” and requires the Department of State to issue annual reports on such conduct in every country of the world.

The latest such report was issued on June 27, 2017.[1] Upon its issuance Secretary of State Rex Tillerson noted that the preamble to the Act states, “The purpose of this act is to combat trafficking in persons, a contemporary manifestation of slavery, whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect the victims. As the 21st century begins, the degrading institution of slavery continues throughout the world.” Other remarks were provided by Ivanka Trump, Advisor to the President; and Susan Coppedge, Ambassador-at-Large, Office to Monitor and Combat Trafficking in Persons.[2]

Background

“The Department places each country in this Report onto one of four tiers, as mandated by the TVPA. This placement is based not on the size of the country’s problem but on the extent of governments’ efforts to meet the TVPA’s minimum standards for the elimination of human trafficking.”

The top tier (Tier 1) consists of “governments [according to the Department’s judgment that] fully meet the [Act’s] . . . minimum standards.” However, that ranking “does not mean that a country has no human trafficking problem or that it is doing enough to address the problem. Rather, a Tier 1 ranking indicates that a government has acknowledged the existence of human trafficking, has made efforts to address the problem, and meets the TVPA’s minimum standards. Each year, governments need to demonstrate appreciable progress in combating trafficking to maintain a Tier 1 ranking. Indeed, Tier 1 represents a responsibility rather than a reprieve. A country is never finished with the job of fighting trafficking.” The latest report has 36 countries, including the U.S., in Tier 1.

Tier 2 consists of those countries “whose governments do not fully meet the TVPA’s minimum standards, but are making significant efforts to meet those standards.” For the latest report 80 countries were placed in Tier 2.

Tier 2 Watch List this year has 68 countries, including Cuba, “whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards AND: (a) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; (b) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or (c) the determination that a country is making significant efforts to bring itself into compliance with minimum standards was focused on commitments by the country to take additional future steps over the next year.”

Tier 3 this year has 23 “countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so. There also are 3 countries that are not ranked and instead labeled as Special Cases.

In 2015 there was criticism by some senators about that year’s upgrading of Cuba and Malaysia. Subsequently that same year the previously mentioned State Department Office agreed to brief the Senate Foreign Relations Committee prior to releasing future reports in an effort to prevent any inappropriate influence over the country rankings recommended by the TIP office. As a result on June 21, 2017, Ambassador Coppedge did just that.[3]

Report Regarding Cuba

“The Government of Cuba does not fully meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government demonstrated significant efforts during the reporting period by prosecuting and convicting sex traffickers; providing services to sex trafficking victims; releasing a written report on its antitrafficking efforts; and coordinating anti-trafficking efforts across government ministries. In addition, the government investigated indicators of trafficking exhibited by foreign labor brokers recruiting Cuban citizens. However, the government did not demonstrate increasing efforts compared to the previous reporting period. The penal code does not criminalize all forms of human trafficking. The government did not prohibit forced labor, report efforts to prevent forced labor domestically, or recognize forced labor as a possible issue affecting its nationals in medical missions abroad. Because the government has devoted sufficient resources to a written plan that, if implemented, would constitute significant efforts to meet the minimum standards, Cuba was granted a waiver per the Trafficking Victims Protection Act from an otherwise required downgrade to Tier 3. Therefore, Cuba is placed on Tier 2 Watch List for the third consecutive year.”

The Report then goes on to provide the State Department’s recommendations for Cuba; assessments of the island’s prosecution, protection and prevention of trafficking; and its Trafficking Profile.

Reactions[4]

On July 13, the Senate Foreign Relations Committee held a hearing on the 2017 report with testimony from Deputy Secretary of State John Sullivan, whose opening statement did not mention Cuba, and from Ambassador Coppedge. [5]

The statement on the new report from Senator Robert Menendez (Dem., NJ), a Cuban-American, merely referenced a bill he had introduced to reform the State Department’s process for publishing its annual TIP reports, and re-published his statement about the 2015 report that criticized its granting a waiver to downgrading Cuba.

Surprisingly Senator Marco Rubio (Rep., FL), another Cuban-American and a fierce critic of the “promotion” of Cuba to Tier 2 Watch List in 2015, issued a statement about the latest trafficking report that said nothing about Cuba’s continued placement in that category.

Earlier in 2017 Senator Menendez along with cosponsors Senators Rubio, Tim Kaine (Dem., VA), Cory Gardner (Rep., CO), Rob Portman (Rep., OH) and Christopher Coons (Dem., DE) introduced the Trafficking in Persons Report Integrity Act (S.377), which would reform the State Department’s annual trafficking reports. The press release by Rubio said the bill was prompted in part by “The past two TIP reports . . . [containing] unwarranted, politically-driven upgrades of countries with deplorable human trafficking records, like Cuba and Malaysia.”[6] However, as of August 15, 2017, no actions had been taken on the bill.

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[1] U.S. State Dep’t, Trafficking in Persons 2017 (June 2017).

[2] U.S. State Dep’t, Remarks at the 2017 Trafficking in Persons Report Launch Ceremony (June 27, 2017).

[3] Sen. Corker, Press Release: Corker Takes Part in State Department Launch of 2017 Trafficking in Persons Report (June 27, 2017).

[4] Menendez, Sen. Menendez Reacts to the 2017 TIP Report (June 27, 2017); Rubio, Rubio Statement on State Department’s Trafficking in Persons Report (June 27, 2017).

[5] Senate For. Relations Comm., Hearing to review the 2017 Trafficking in Persons Report (July 13, 2017); Sen. Corker, Press Release: Corker Opening Statement at Hearing on 2017 State Department Trafficking in Persons Report (July 13, 2017); Deputy Sec. State Sullivan, Opening Statement Before the Senate Foreign Relations Committee, on the 2017 Trafficking in Persons Report, July 13, 2017.

[6] Press Release, Rubio, Menendez Reintroduce Legislation to Reform State Department Human Trafficking Report (Feb. 14, 2017).

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.

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[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).

Secretary of State-Nominee Rex Tillerson Addresses U.S. Policies Regarding Cuba

In his opening statement at the January 11 Senate Foreign Relations Committee hearing on his nomination, Secretary of State Nominee Rex Tillerson made the following comments about U.S. policies regarding Cuba:[1]

“And we must adhere to standards of accountability. Our recent engagement with the government of Cuba was not accompanied by any significant concessions on human rights. We have not held them accountable for their conduct. Their leaders received much, while their people received little. That serves neither the interest of Cubans or Americans.”

Later in response to questions by Senator Marco Rubio (Rep., FL), a Cuban-American and a noted opponent of normalization, Tillerson said he would advise the president to veto any legislation codifying President Obama’s thaw with Cuba, at least until the Trump administration can conduct its own review of that policy. In addition, Tillerson said the current U.S. normalization policy has not benefited most Cubans.

Tillerson specifically added that he would also advise Trump to veto any measures to lift the Cuban embargo, and “examine carefully the criteria” under which Cuba was taken off the list of state sponsors of terrorism, to determine “whether or not that de-listing was appropriate.”

Tillerson did not commit to indefinitely maintaining the above positions, instead deferring to the results of the new administration’s forthcoming review to determine its long-term Cuba policy.

Tillerson underscored that the United States “cannot ignore the law” and must comply with measures such as the Helms-Burton Act, which codified the embargo in 1996, and stated that economic restrictions must remain in force until the Cuban government complies with certain conditions, among them that the Castro family leaves power. Any modification of that legal basis on the policy toward Cuba “should be done by Congress,” according to Tillerson, who committed to strictly enforcing the law.[2]

The obvious follow-up question that I believe was not asked is whether one of the objectives of the promised review of U.S. policies regarding the island will be recommending changes to relevant statutes.

Responding to a question by Senator Robert Menendez (Dem., NJ), a Cuban-American opposed to normalization, Tillerson said that advancing human rights and democracy in Cuba and returning to justice U.S. fugitives like Joanne Chesimard, convicted of aiding and abetting the murder of a New Jersey State Trooper, would be a condition of any further engagement with Cuba.

Conclusion

This hearing was bad news and good news for advocates of normalization like this blogger.

The good news is Tillerson’s prediction that the new administration will conduct a review of existing U.S. policies regarding Cuba before making any changes in them.As previoulsy stated, this review should include recommendations to Congress for changes in existing statutes on the subject.

The bad news is the series of suggestions that many of the normalization policies will be cancelled.

Although I agree that so far Cuba has not made significant concessions on human rights, I disagree with the implicit conclusion from this statement: the U.S. needs to demand Cuban concessions on human rights as a condition for the U.S. making any further economic “concessions” to the island. This is the policy that was followed for over 50 years before December 17, 2014, without the desired result.

I also disagree with his prospective recommendation of a veto of any legislation ending the U.S. embargo of Cuba. In addition, I reject his implication that the U.S. May 2015 rescission of its designation of Cuba as a “state sponsor of terrorism” was not justified. As explained in earlier posts, the embargo is unjustified and counterproductive for the U.S. while previous “terrorism” designations were ridiculous and unjustified and the rescission was fully consistent with the law and the facts and was implicitly endorsed by Congress’ failure to approve a joint resolution countermanding the rescission. [3]

Finally I disagree with Tillerson’s testimony that the Cuban “people have received little” from U.S.-Cuba engagement or normalization. As previously stated in various posts, the increased remittances from families and friends in the U.S. to others in Cuba, all made possible by the Obama Administration’s loosening of U.S. restrictions, have been a major source of funding for the expansion of family-owned businesses on the island. That expansion has helped to reduce the portion of the Cuban economy controlled by state-owned enterprises and has increased the income and well being of Cuban entrepreneurs and their employees, who are and will be a significant force for further modification of the Cuban economic and political system.[4]

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[1] Secretary of State Designate Rex Tillerson: Senate Confirmation Hearing Opening Statement (Jan. 11, 2017); Rex Tillerson Confirmation Hearing: Live Coverage, W.S.J. (Jan. 11, 2017); U.S. Senate For. Rel. Comm., Nomination Hearing for Secretary of State Nominee Rex Tillerson (Jan. 11, 2017) (video); Demirjian, Tillerson says Trump is prepping to review Obama’s Cuba policy, Wash, Post (Jan. 11, 2017); Menendez, Secretary of State Nom Rex Tillerson gives commitment to justice during Senate confirmation hearing (Jan. 11, 2017); Kasperowicz, Tillerson would recommend veto of bill ending Cuba embargo, Wash. Examiner (Jan. 11, 2017).

[2] Of greater interest to most of the media about this hearing was Rubio’s challenging questions to Tillerson about whether he favored sanctions against Russia and whether he thought Putin was a war criminal. (E.g., Sanger & Flegenheimer, In Rocky Hearing, Rex Tillerson Tries to Separate From Trump, N.Y. Times (Jan, 11, 2017).) Were such questions about Russia merely a Rubio ploy to solidify Tillerson’s opposition to Cuba normalization?

[3] See posts listed in the “U.S. Embargo of Cuba” and “Cuba State Sponsor of Terrorism?” sections of List of posts to dwkcommentaries–Topical: CUBA.

[4] See posts listed in the “Cuban Economy” section of List of posts to dwkcommentaries–Topical: CUBA.

Another U.N. Condemnation of the U.S. Embargo of Cuba

On October 26, the United Nations General Assembly voted, 191 to 0 (with two abstentions), to adopt a resolution proposed by Cuba to condemn the United States embargo of Cuba. For the first time in the 25-year history of the annual vote on such resolutions, the U.S, rather than opposing the text, cast an abstention, prompting Israel to do likewise.[1]

This post will examine the resolution’s text, its presentation by Cuba, its support by other countries and the arguments for abstention offered by the U.S. and Israel. This post will then conclude with a brief discussion of reaction to the abstention in the U.S. Prior posts discussed the similar General Assembly resolutions against the embargo that were adopted in 2011, 2014 and 2015.

The Actual Resolution

The actual resolution, “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba” (A/RES/71/5 and A/71/L.3) had two principal operative paragraphs.

It reiterated “its call upon all States to refrain from promulgating and applying laws and measures [like the U.S. embargo against Cuba] . . . in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation (¶ 2). It also urged “States that have and continue to apply such laws and measures to take the steps necessary to repeal or invalidate them as soon as possible in accordance with their legal regime (¶ 3).

The resolution’s preamble reaffirmed “the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments” and recited the previous General Assembly resolutions against the embargo. It then welcomed “the progress in the relations between the Governments of Cuba and the [U.S.] and, in that context, the visit of the President of the [U.S.], Barack Obama, to Cuba in March 2016” while also recognizing “the reiterated will of the President of the [U.S.] to work for the elimination of the economic, commercial and financial embargo against Cuba” and “the steps taken by the [U.S.] Administration towards modifying some aspects of the implementation of the embargo, which, although positive, are still limited in scope.”

Cuba’s Presentation of the Resolution

Speaking last in the debate, Cuba’s Foreign Minister Bruno Rodriguez Parrilla, presented arguments for adopting the resolution. Here are extracts of that speech:

“[T]here has been progress [between Cuba and the U.S. since December 2014] in the dialogue and cooperation on issues of common interest and a dozen agreements were signed [and] reciprocal benefits reported. Now just announced the vote of the US abstention on this draft resolution.”

“The [U.S.] president and other top officials have described [the embargo/blockade] as obsolete, useless to advance American’s interests, meaningless, unworkable, being a burden for [U.S.] citizens, . . . [harming] the Cuban people and [causing]. . . isolation to the [U.S.] and [have] called [for the embargo/blockade] to be lifted.”

“We recognize that executive measures [to reduce the scope of the embargo] adopted by the government of the [U.S.] are positive steps, but [have] very limited effect and scope. However, most of the executive regulations and laws establishing the blockade remain in force and are applied rigorously to this minute by U.S. government agencies.”

“Meanwhile, the U.S. Congress has not approved any of the 20 amendments or legislative initiatives, with bipartisan support, . . . [for] eliminating some restrictions of the blockade or even all of this policy. [Moreover,] there have been more than 50 legislative initiatives that threaten to reinforce key aspects of the blockade, preventing the President [from] approving new executive or implementing measures already adopted.”

“It cannot be underestimated in any way the powerful political and ethical message that [action by this Assembly] . . . sends to the peoples of the world. The truth always [finds] its way. Ends of justice prevail. The abstention vote announced surely is a positive step in the future of improved relations between the[U.S.] and Cuba. I appreciate the words and the efforts of Ambassador Samantha Power.”

“[There] are incalculable human damages caused by the blockade. [There is no] Cuban family or industry in the country that does not suffer its effects on health, education, food, services, prices of goods, wages and pensions.” For example, the “imposition of discriminatory and onerous conditions attached to the deterrent effects of the blockade restrict food purchases and the acquisition in the U.S. market for drugs, reagents, spare parts for medical equipment and instruments and others.”

“The [embargo/] blockade also [adversely] affects the interests of American citizens themselves, who could benefit from various services in Cuba, including health [services].”

“The [embargo/] blockade remains a massive, flagrant and systematic violation of human rights of all Cubans and qualifies as an act of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. It is an obstacle to cooperation [in] international humanitarian areas.”

“The blockade is the main obstacle to economic and social development of our people. It constitutes a flagrant violation to international law, the United Nations Charter and the Proclamation of Latin America and the Caribbean as a Zone of Peace. Its extraterritorial application adds further to its violation of international law nature of magnitude.”

“Other causes, in addition to [the blockade/embargo] . . . , determine our economic difficulties: the unjust international economic order; the global crisis; the historical distortions and structural weaknesses caused by underdevelopment; high dependence on energy and food imports; the effects of climate change and natural disasters; and also . . . our own mistakes.”

“Between April 2015 and March 2016, the direct economic damage to Cuba by the blockade amounted to $4.68 billion at current prices, calculated rigorously and prudently and conservatively. The damages accumulated over nearly six decades reach the figure of $753 billion, taking into account depreciation of gold. At current prices, [that is] equivalent to just over $125 billion.”

“On 16 April 2016 President Raul Castro Ruz said, ‘We are willing to develop a respectful dialogue and build a new relationship with the [U.S.], as that has never existed between the two countries, because we are convinced that this alone . . . [will provide] mutual benefits.’ And last September 17, he said ‘I reaffirm the will to sustain relations of civilized coexistence with the [U.S.], but Cuba will not give up one of its principles, or make concessions inherent in its sovereignty and independence.’”

“The government of the [U.S.] first proposed the annexation of Cuba and, failing that, to exercise their domination over it. The triumph of the Cuban Revolution . . . [prompted the U.S. adoption of the embargo whose purpose] was ‘to cause disappointment and discouragement through economic dissatisfaction and hardship … to deny Cuba money and supplies, in order to reduce nominal and real wages, with the aim of causing hunger, desperation and overthrow of government. ‘”

“The [new U.S.] Presidential Policy Directive [states] that the Government of the [U.S.] recognizes ‘the sovereignty and self-determination of Cuba’ and [the right of] the Cuban people to make their own decisions about their future.’” It also states “the U.S. will not seek a ‘change of regime in Cuba.’”[2]

But the Directive also says “’the [U.S.] will support the emerging civil society in Cuba and encourage partners and non-governmental actors to join us in advocating in favor of reforms. While the United States remain committed to supporting democratic activists, [we] also [will] participate with community leaders, bloggers, activists and other leaders on social issues that can contribute to the internal dialogue in Cuba on civic participation.’ The Directive goes on to say: “The [U.S.] will maintain our democracy programs and broadcasting, while we will protect our interests and values, such as Guantanamo Naval Base … The government of the United States has no intention of modifying the existing lease agreement and other related provisions.’”

The Directive also asserts that Cuba “remains indebted to the [U.S.] regarding bilateral debts before the Cuban Revolution.”

The U.S. needs to “recognize that change is a sovereign matter for Cubans alone and that Cuba is a truly independent country. It gained its independence by itself and has known and will know how to defend [its] greatest sacrifices and risks. We are proud of our history and our culture that are the most precious treasure. We never forget the past because it is the way never to return to it. And we decided our path to the future and we know that is long and difficult, but we will not deviate from it by ingenuity, by siren songs, or by mistake. No force in the world can force us to it. We will strive to build a sovereign, independent, socialist, democratic, prosperous and sustainable nation. We will not return to capitalism.”

Other Countries’ Statements of Support[3]

During the debate the following 40 countries expressed their support of the resolution:

Latin America: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Dominican Republic (for Commonwealth of Latin American and Caribbean States (CELAC)), Ecuador, El Salvador, Jamaica (for Caribbean Community (CARICOM)), Mexico, Nicaragua, Saint Vincent and Grenadines, Uruguay and Venezuela (for Non-Aligned Movement (NAM)).
Africa: Algeria, Angola, Libya, Mozambique, Namibia, Niger (for African States), South Africa, Sudan and Tonga.
Middle East: Egypt, Kuwait (for Organization of Islamic Conference (OIC)) and Syria.
Asia: Belarus, China, Democratic People’s Republic of Korea [North Korea], India, Indonesia, Iran, Lao People’s Democratic Republic, Malaysia, Myanmar, Russian Federation, Singapore (for Association of Southeast Asian Nations (ASEAN)), Thailand (for Group of 77 and China) and Viet Nam.
Europe: Slovakia (for European Union (EU)).

U.S. Abstention[4]

The U.S. Ambassador and Permanent Representative to the United Nations, Samantha Power, announced the U.S. abstention before the debate and voting on the resolution. Here are extracts of her speech about that vote.

“For more than 50 years, the [U.S.] had a policy aimed at isolating the government of Cuba. For roughly half of those years, U.N. Member States have voted overwhelmingly for a General Assembly resolution that condemns the U.S. embargo and calls for it to be ended. The [U.S.] has always voted against this resolution. Today the [U.S.] will abstain.”

“In December 2014, President Obama made clear his opposition to the embargo and called on our Congress to take action to lift it. Yet while the Obama Administration agrees that the U.S. embargo on Cuba should be lifted, . . . we don’t support the shift for the reason stated in this resolution. All actions of the [U.S.] with regard to Cuba have been and are fully in conformity with the U.N. Charter and international law, including applicable trade law and the customary law of the sea. We categorically reject the statements in the resolution that suggest otherwise.”

“But [today’s] resolution . . . is a perfect example of why the U.S. policy of isolation toward Cuba was not working – or worse, how it was actually undermining the very goals it set out to achieve. Instead of isolating Cuba, . . . our policy isolated the [U.S.], including right here at the [U.N.].”

“Under President Obama, we have adopted a new approach: rather than try to close off Cuba from the rest of the world, we want the world of opportunities and ideas open to the people of Cuba. After 50-plus years of pursuing the path of isolation, we have chosen to take the path of engagement. Because, as President Obama said in Havana, we recognize that the future of the island lies in the hands of the Cuban people.”[5]

“Abstaining on this resolution does not mean that the [U.S.] agrees with all of the policies and practices of the Cuban government. We do not. We are profoundly concerned by the serious human rights violations that the Cuban government continues to commit with impunity against its own people – including arbitrarily detaining those who criticize the government; threatening, intimidating, and, at times, physically assaulting citizens who take part in peaceful marches and meetings; and severely restricting the access that people on the island have to outside information.”

“We [,however,] recognize the areas in which the Cuban government has made significant progress in advancing the welfare of its people, from significantly reducing its child mortality rate, to ensuring that girls have the same access to primary and secondary school as boys.”

“But none of this should mean that we stay silent when the rights of Cuban people are violated, as Member States here at the [U.N.] have too often done. That is why the [U.S.] raised these concerns directly with the Cuban government during our [recent] historic dialogue on human rights . . ., which shows that, while our governments continue to disagree on fundamental questions of human rights, we have found a way to discuss these issues in a respectful and reciprocal manner.[6] We urge other Member States to speak up about these issues as well.”

“As President Obama made clear when he traveled to Havana, we believe that the Cuban people – like all people – are entitled to basic human rights, such as the right to speak their minds without fear, and the right to assemble, organize, and protest peacefully. Not because these reflect a U.S.-centric conception of rights, but rather because they are universal human rights – enshrined in the U.N. Charter and in the Universal Declaration of Human Rights – which all of our 193 Member States are supposed to respect and defend. Rights that are essential for the dignity of men, women, and children regardless of where they live or what kind of government they have.”

The U.S. concedes that it “has work to do in fulfilling these rights for our own citizens. And we know that at times in our history, U.S. leaders and citizens used the pretext of promoting democracy and human rights in the region to justify actions that have left a deep legacy of mistrust. We recognize that our history, in which there is so much that makes us proud, also gives us ample reason to be humble.”

“The [U.S.] believes that there is a great deal we can do together with Cuba to tackle global challenges. That includes here at the [U.N.], where the decades-long enmity between our nations has at best been a distraction – and at worst, an obstacle – to carrying out some of the most important work of this institution and helping the world’s most vulnerable people.”

U.S. Reactions[7]

Engage Cuba, a U.S. national coalition of private companies, organizations and state and local leaders working to lift the embargo, said, “Year after year, the international community has condemned our failed unilateral sanctions that have caused great economic hardship for the people of Cuba and continue to put American businesses at a competitive disadvantage. The fact that the Administration and Israel abstained from voting for the first time ever demonstrates the growing recognition that the U.S. embargo on Cuba is a failed, obsolete policy that has no place in today’s international affairs.”

Senator Marco Rubio (Rep., FL), on the other hand, blasted the abstention, saying the Obama administration had failed to honor and defend U.S. laws in an international forum. Similar negative reactions were registered by Senators Ted Cruz (Rep., FL) and Robert Menendez (Dem., NJ), Republican Representatives from Florida, Ileana Ros-Lehtinen and Mario Diaz-Balart, and the U.S.-Cuba Democracy PAC.

As an U.S. citizen-advocate for ending the embargo as soon as possible, I am pleased with the U.S. abstention and agree with Ambassador Power that this vote does not mean the U.S. agrees with the resolution’s stated reasons.

Moreover, too many in the U.S. believe the Cuban damages claim from the embargo is just a crazy Cuban dream, but I disagree. Given the amount of the claim, Cuba will not someday tell the U.S. to forget it. A prior post, therefore, suggested that the two countries agree to submit this and any other damage claims by both countries for resolution by an independent international arbitration panel such as those provided by the Permanent Court of Arbitration at the Hague in the Netherlands.

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[1] U.N. Press Release, U.S. abstains for first time in annual UN vote on ending embargo against Cuba (Oct. 26, 2016).

[2] A prior post replicated the Presidential Policy Directive while another post provided reactions thereto.

[3] U.N. Press Release, General Assembly Plenary (Oct. 26, 2016); The defeat of the blockade is the world’s largest moral and political victory for the people of Cuba against the empire, Granma (Oct. 26, 2016) (Venezuela’s statement); Today not only do we vote against the blockade, we voted for hope, Granma (Oct. 26, 2016) (Bolivia’s statement).

[4] Ambassador Power, Remarks at a UN General Assembly Meeting on the Cuban Embargo (Oct. 26, 2016). Israel, which also abstained, merely said that it welcomed the improved U.S.-Cuba relations and hoped it would lead to a new era in the region.

[5] A prior post reviewed President Obama’s eloquent speech in Havana to the Cuban people.

[6] A prior post reviewed the limited public information about the recent human rights dialogue.

[7] Ordońez, For 1^st time, U.S. changes its position on U.N. resolution blasting Cuba trade embargo, InCubaToday (Oct. 26, 2016); Engage Cuba, Press Release: Engage Cuba Praises First Ever Unanimous Passage of United Nations Resolution Condemning the Cuban Embargo (Oct. 26, 2016); Lederer & Lee, US abstains in UN vote on Cuba embargo for the first time, Wash. Post (Oct. 26, 2016); Rubio, Rubio: Obama Admin Ignoring U.S. Law on Cuba Embargo, Giving More Concessions to Castro Regime at U.N. (Oct. 26, 2016).

Senate Hearing on the 2016 Human Trafficking Report

On July 12, the U.S. Senate Committee on Foreign Relations held a hearing about the recently released State Department’s 2016 Human Trafficking Report. After opening statements by the Committee’s Chair, Senator Bob Corker (Rep., TN), and its Ranking Member, Senator Ben Cardin (Dem., MD), the only witness was Ambassador Susan Coppedge.

Senator Corker’s Opening Statement[1]

“The integrity of last year’s report was called into question because of controversy over how the Tier Rankings were made regarding certain countries.”

“This report and Tier Rankings are an improvement, and we thank you for your leadership in that regard and the way inter-departmentally people worked with each other. The decisions behind certain upgrades, such as Cyprus and the Philippines, and downgrades, such as Uzbekistan, Burma, and Luxembourg, are more balanced and strategic.”

“In the past, back and forth deliberations between the TIP office and the regional bureaus have been the rule. While less pronounced this year, that pattern still shows in how certain countries, such as India, Mexico and Malaysia, are ranked.”

“Each year, the TIP report makes recommendations for progress and turns these into tailored actions for our embassies. Rigorously applied TIP action plans should inform the tough calls on the Tier Rankings.”

“We encourage you to give a fair assessment of countries efforts to address trafficking this year, and we also hope you are candid with us in describing the challenges that still exist in certain countries.”

“This year’s report focuses especially on preventing modern slavery. This is important and needs to be part of substantially increasing international efforts to end modern slavery, which this committee unanimously supports and hopefully will come to fruition very quickly.”

Senator Cardin’s Opening Statement[2]

“Trafficking in persons is one of the great moral challenges of our time. It destroys people and corrodes communities. It distorts labor markets and undermines stability and the rule of law. Trafficking is fueled by greed, violence, and corruption. According to the International Labor Organization, there are at least 21 million victims of modern slavery in the world. Forced labor alone generates more than $150 billion in profits annually, making it one of the largest income sources for international criminals, second only to drug trafficking.”

Last year, we expressed significant concerns about the neutrality of the 2015 TIP report – primary among them, the decision to upgrade Cuba and Malaysia, from the Tier 3 designation to Tier 2 Watch List.” (Emphasis added.)

“After reviewing the 2016 TIP report, I believe it is a mixed bag. We saw some aggressive evaluations in the 2016 report; yet, we still see remnants of the exact problems we had last year — pending bilateral concerns impacting the quality of the report. Again despite little progress from Malaysia and Cuba, the State Department decided to keep both on Tier 2 Watch List this year after they were upgraded from Tier 3 in 2015. This was unnecessary and unwarranted. By contrast, for example, Uzbekistan was upgraded last year to the Tier 2 Watch List. But, as a result of continued government compelled forced labor by adults in the cotton harvest and aggressive harassment and detention of independent monitors, Uzbekistan was appropriately downgraded this year to Tier 3.”(Emphasis added.)

During the hearing Cardin later said that last year Cuba and Malaysia should not have been upgraded from Tier III to Tier II Watch List and should not have remained on that Watch List this year.

Ambassador Coppedge’s Testimony[3]

In her prepared testimony, Ambassador Coppedge stated, “Of the countries analyzed in the 2016 Report, 36 were placed on Tier 1, 78 on Tier 2, 44 on Tier 2 Watch List, and 27 on Tier 3. In all, there were 27 downgrades and 20 upgrades. No matter which tier a country is placed on, every nation can and should do more to combat human trafficking, which is why the Report offers recommendations for improvements for every country, even Tier 1 countries like the United States.”

In response to questions, the Ambassador described the process of ranking the countries, which involved collaboration among the people in U.S. embassies around the world and the TIP office at the State Department and arriving at consensus for such rankings for almost all countries. For the few instances of no consensus, the Secretary of State is presented optional rankings, and he or she chooses one of those options. She also testified that for the 2016 report there were no instances in which the Secretary rejected the consensus opinion and that there was only “a handful” of instances without a consensus view.

When Senator Menendez suggested possibly amending the governing statute to make the minimum standards stricter, the Ambassador disagreed. She said that the current statutory flexibility was desirable because of the number of issues and countries that were involved.

Most of the senatorial comments and questions focused on India and Malaysia with brief mention of Mauritania. In addition, the Ambassador summarized the reasons for this year’s downgrades of Burma, Haiti and Luxembourg.

Cuba was touched on by Senators Robert Menendez (Dem., NJ) and Marco Rubio (Rep., FL).[4] The Ambassador said she went to Cuba this past January and pressed officials about whether medical personnel on foreign missions were permitted to hold their own passports. She also noted, as stated in the report, that Cuba does not recognize forced labor as a problem, has no laws against that activity and no prosecutions or convictions in that area. Thus, on that issue it does not meet the U.S. statute’s “minimum standards.” Cuba, however, is making progress regarding sex trafficking, including law enforcement training, prosecutions and protection.

There also were cryptic comments about the Committee’s hearing regarding the prior year’s report and to a vigorous, closed hearing with last year’s witness, Deputy Secretary of State Anthony Blinken.[5] Senator Corker said in his opinion certain aspects of the 2015 report were driven by political considerations, rather than the TIP statute.

Immediately after the hearing Chairman Corker issued a press release.[6] It said that he had “noted improvements over last year’s report but argued for continued progress to strengthen the integrity of the Tier Rankings that will help support global efforts to fight human trafficking and end modern slavery.“ Corker “noted that more should be done to ensure recommendations from the TIP office about a country’s progress in combating trafficking are not overruled by political appointees within the State Department based upon other diplomatic considerations.”

Conclusion

Prior posts have reviewed the TIP’s reports assessments of Cuba’s record regarding human trafficking in 2015 and 2016 and mounted a vigorous and, in this blogger’s opinion, effective rebuttals of the contentions that Cuba was engaged in illegal forced labor with respect to its medical personnel on foreign missions.

As those prior posts indicate, these foreign medical missions spring from a Cuban objective of being in solidarity with people in need around the world while also building a community of international allies for the island and in more recent years being a major source of revenue for the Cuban government’s exports of services.

According to Granma, the newspaper of the Communist Party of Cuba, the country’s foreign medical missions started in 1960 when a Cuban medical brigade treated the victims of an earthquake in Chile, followed by the sending of another group in 1963, to provide health care in Algeria, then recently liberated from French colonial rule.

Through May 31, 2016, a total of 325,000 Cuban health personnel have provided medical services in 158 countries. There are currently 55,000 Cubans working in 67 countries, including more than 25,000 doctors. The Granma article provides a list of all the 158 countries with the number of Cuban medical personnel who have worked there.[7]

This year’s hearing did not examine those criticisms of the reports’ contention that Cuba was engaged in illegal forced labor on its foreign medical missions. Instead, the apparent assumption of all the senators at the hearings seemed to be that Cuba was so engaged. Nothing, however, was said at this hearing to criticize or invalidate this blogger’s contention that there is no such illegal forced labor by Cuba.

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[1] Corker Opening Statement at Hearing on “Review of the 2016 Trafficking in Persons Report,” (July 12, 2016).

[2] Cardin Remarks at Trafficking in Persons Report Hearing (July 12, 2016)

[3] Coppedge, Testimony: Review of the 2016 Trafficking in Persons Report (July 12, 2016); Senate Foreign Relations Comm., Hearing: Review of the 2016 Trafficking in Persons Report (July 12, 2016)(video).

[4] Senator Rubio’s subsequent press release contained a transcript of his interchange with Ambassador Coppedge. (Rubio, Press Release: Rubio Presses State Department On 2016 Trafficking in Persons Report (July 12, 2016).) Senator Menendez in his press release “criticized the apparent politicization of the U.S. Department of State’s annual [TIP] Report, noting that Cuba, Malaysia and other nations continue to enjoy favorable status despite failures to meet minimum legal standards prescribed by Congress.” Menendez also announced his intent to introduce a bill to change the process for preparing the TIP report. (Menendez: TIP Report Can’t Be a ‘Shell Game’ (July 12, 2016).)

[5] The Senate Committee’s closed hearing in 2015 with Deputy Secretary Blinken was touched on in a prior post.

[6] Corker: Continued Progress Needed to Strengthen Integrity of Human Trafficking Report (July 12, 2016).

[7] Barbosa, Cuba’s international health cooperation, Granma (July 15, 2016),

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

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

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

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

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

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

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

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

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

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

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

“RECOMMENDATIONS FOR CUBA”

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

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

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

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

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

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

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

Reactions to the Report

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

U.S. Upgrades Cuba in State Department’s Annual Report on Human Trafficking

On July 27 the U.S. Department of State released its 2015 Trafficking in Persons Report, which is “the U.S. Government’s principal diplomatic tool to engage foreign governments on human trafficking” and “ the world’s most comprehensive resource of governmental anti-human trafficking efforts.”

In this Report, the Department placed 187 countries into one of the following four tiers based on the extent of their governments’ efforts to comply with the “minimum standards for the elimination of trafficking” found in Section 108 of the Trafficking Victims Protection Act:

“TIER 1 [Thirty-one] countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards.
TIER 2 [Eighty-nine] countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards.
TIER 2 WATCH LIST [Forty-four] countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards AND: a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or c) The determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.
TIER 3 [Twenty-three] countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.”

At the Department’s release of this Report, Secretary of State John Kerry made comments. In part, he said, “the purpose of this document is not to scold and it’s not to name and shame. It is to enlighten and to energize, and most importantly, to empower people. . . . [We] want to bring to the public’s attention the full nature and scope of a $150 billion illicit trafficking industry. . . . We want to provide evidence and facts that will help people who are already striving to achieve reforms to alleviate suffering and to hold people accountable. We want to provide a strong incentive for governments at every level to do all that they can to prosecute trafficking and to shield at-risk populations.”

Additional comments and responses to journalists’ questions were provided at the launch of this Report by Sarah Sewell, Under Secretary of State for Civilian Security, Democracy and Human Rights. She pointed out that “in this year’s report, some 18 countries moved up in the tier rankings, some 18 countries moved down in the tier rankings” and quoted the above statutory definitions of the different rankings.

The Report’s Assessment of Cuba’s Record on Human Trafficking

In the 2015 Report Cuba was placed in the Tier 2 Watch List, which was an upgrade from the prior year’s report that had Cuba in Tier 3.[1] The new Report states that although “information on the scope of sex trafficking and forced labor in Cuba is limited, [c]hild sex trafficking and child sex tourism occur within Cuba. Cuban authorities report people from ages 13 to 20 are most vulnerable to human trafficking in Cuba. Traffickers also subject Cuban citizens to forced prostitution in South America and the Caribbean. . . . “

As a result, the Report concludes, “The Government of Cuba does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. For the second consecutive year, the government reported efforts to address sex trafficking, including the prosecution and conviction of 13 sex traffickers in 2013 and the provision of services to victims in those cases. The Cuban government reported at the beginning of 2015 that the Ministry of Labor and Social Security assumed the lead role in a committee responsible for combating gender and sexual violence, including sex trafficking. The penal code does not criminalize all forms of human trafficking, though the government reported continuing efforts to amend its criminal code, including bringing it into conformity with the requirements of the 2000 UN TIP Protocol, to which it acceded in July 2013. . . .”

In addition, the Report states the Cuban “government did not report any trafficking-specific shelters, but offered services to trafficking victims through centers for women and families harmed by violence. The Federation of Cuban Women, a government affiliated non-governmental organization, provided some outreach and education about human trafficking within the context of violence against women, but did not specifically address it as a crime involving sex trafficking and forced labor or affecting men and boys.”

The Report’s forced labor allegation is focused on Cuba’s “foreign medical missions, which employ more than 51,000 workers in over 67 countries and constitute a significant source of Cuban government income. Some participants in foreign medical missions as well as other sources allege that Cuban officials force or coerce participation in the program; [but] the Cuban government denies these allegations. Some Cubans participating in these work missions have stated the postings are voluntary and well paid compared to jobs within Cuba. There have also been claims that Cuban authorities coerced participants to remain in the program, including by allegedly withholding their passports, restricting their movement, or threatening to revoke their medical licenses or retaliate against their family members in Cuba if participants leave the program. There are also claims about substandard working and living conditions and the existence of ‘minders’ to monitor victims outside of work. Some medical professionals participating in the missions are in possession of their passports when they apply for and obtain special United States visa and immigration benefits, indicating passport retention is not a consistent practice across all work missions.”

Consistent with its denial that its foreign medical missions involve forced labor, the Cuban government “did not recognize forced labor as a problem within Cuba and did not report efforts to prevent forced labor.”

The Report goes on to make the following recommendations for Cuba: (1) “draft and pass a comprehensive anti-trafficking law that prohibits all forms of human trafficking, including an offense of forced labor;” (2) “vigorously investigate and prosecute sex trafficking and forced labor offenses;” (3) “schedule a visit and engage in robust discussions with the UN special rapporteur on trafficking in persons on all forms of human trafficking;” (4) “provide specialized training for managers in state owned or controlled enterprises in identifying and protecting victims of forced labor and implement policies to verify the absence of coercion in such enterprises;” (5) “train those responsible for enforcing the labor code to screen for trafficking indicators and educate workers about trafficking indicators and where to report trafficking-related violations;” (6) “strengthen efforts, in partnership with international organizations, to provide specialized victim identification and referral training for first responders; (7) establish formal policies and procedures to guide officials in the identification of all trafficking victims and their referral to appropriate services;” (8) “expand upon the Ministry of Labor and Social Security’s anti-trafficking responsibilities to include all forms of trafficking and male as well as female victims, and develop an action plan to address sex trafficking and forced labor for males and females;” and (9) “adopt policies that provide trafficking-specific, specialized assistance for male and female trafficking victims, including measures to ensure identified sex and labor trafficking victims are not punished for unlawful acts committed as a direct result of being subjected to sex trafficking or forced labor.”

Under Secretary Sewell, elaborating on this assessment of Cuba in response to a journalist’s question, said, “Cuba was upgraded to the Tier 2 Watch List because of the progress that the government’s made in addressing and prosecuting sex trafficking, as well as the commitments that the Cuban Government has made to become compliant with the minimum standards. As noted in other cases, a Tier 2 Watch List ranking does not mean that a country is free from problems or free from human trafficking.”

According to Sewell, the Cuban “government reported significant efforts to address sex trafficking, including the conviction of sex traffickers, the provision of services to sex trafficking victims, and continued efforts of the ministry of tourism to address sex tourism and the demand for commercial sex. We also recognize the commitments the government has made to reform its laws to become compliant with the UN Palermo Protocol, which is a significant step, as well as the Cuban Government’s willingness to welcome the UN special rapporteur to the island.”

Nevertheless, Sewell continued, the U.S. has “a number of concerns such as the failure to recognize forced labor as a problem or to act to combat it. And so this will be very much a topic in our dialogue with Cuban officials as we work over the next year to try to help Cuba make more concrete progress in the realm of human trafficking.”

Reactions to the Report’s Assessment of Cuba

News media immediately highlighted the Report’s upgrades of Malaysia and Cuba, and a New York Times editorial was most critical of the assessment of Malaysia. Some U.S. Senators and Representatives launched criticism of those assessments in particular. Prominent with respect to Cuba, as expected, was Senator Robert Menendez (Dem., NJ), who said that by upgrading Malaysia and Cuba the administration had “elevated politics over the most basic principles of human rights” and vowed to do all he could “from hearings to legislation to investigations” to challenge the moves.” Representative Chris Smith (Rep., NJ) was upset by the same upgrades as well as relatively lenient ratings for Vietnam and China and stated the report had “careened off into a new direction where the facts regarding each government’s actions in the fight against human trafficking are given almost no weight when put up against the president’s political agenda.” Similar criticism came from Senator Marco Rubio (Rep., FL). [2]

A Reuters investigation concluded that the State Department’s office responsible for the TIP reports was overruled by senior Department officials on 14 of the 18 upgrades, including Malaysia, Cuba, China, India, Uzbekistan and Mexico. The final decision on disputed rankings this year, said Reuters, was made in meetings attended by some of the State Department’s most senior diplomats, including Deputy Secretary of State Tony Blinken, Under Secretary of State for Political Affairs Wendy Sherman and Kerry’s Chief of Staff, Jonathan Finer.[3]

On July 29 the Chairman (Bob Corker (Rep., TN)) and the Ranking Member (Ben Cardin (Dem., MD)) of the Senate Foreign Relations Committee in a joint letter asked Secretary of State John Kerry for a briefing on the Report in order “to better understand” the basis for its upgrade of several countries, including Malaysia and Cuba. They added, “We recognize that U.S. policy and engagement on trafficking does not exist in a vacuum, and we appreciate the many varied and nuanced trade-offs that are necessary between competing policy issues. We also believe that it is critical that the impartial reliability of the TIP Report be safeguarded and maintained if it is to have utility on this critical issue in the future.” [4]

Senate Foreign Relations Committee Hearing

On August 6 that Committee held a hearing on this subject with Under Secretary Sewell as its sole witness.[5]

She testified that in “most cases, this assessment process [of different countries’ record on human trafficking] clearly places governments into one of the tiers; in other cases, further discussion among senior Department officials is required to clarify information and assess the totality of government efforts. This ultimately leads to the Secretary of State’s designation of Tier rankings for each country and approval of the TIP Report. Tier rankings do not assess the severity of human trafficking in a given country, but rather that government’s efforts in addressing human trafficking problems over the current reporting period compared to its own efforts in the prior year. Determinations about the direction and quality of that progress in a given country are guided by complex criteria outlined in the TVPA and described on pages 45 through 50 of the TIP Report.”[6]

More specifically for the six countries, including Cuba, that moved up to Tier 2 Watch List this year, Sewell testified, “the Department closely evaluated the efforts those governments had made during the reporting period as well as the commitments they made for next year. Our posts are working with host governments to encourage them to implement the recommendations outlined in this year’s Report, and the TIP Office is finalizing assistance programming strategy to help make those recommendations a reality. I am receiving reports from the field on the frank and focused dialogues Embassy personnel are having with host government officials on how to overcome the challenges they face to better combat this crime and protect their citizens.”

With only Chairman Corker, Ranking Member Cardin and Senator Menendez in attendance, most of the questions focused on the upgrade of Malaysia. Corker, for example, said, “The administration’s policies toward those countries trumped any real regard for humans being trafficked.” The Department, he continued, “threw the trafficking phase under the bus to ensure that . . . [the Administration was] successful with [the Trans-Pacific Partnership (TPP) that included Malaysia].” [7] Menendez added a few comments and questions about the Cuba upgrade.

Sewell declined to answer questions about internal Department discussions about these upgrades and instead repeatedly emphasized that the statutory framework for tier rankings created a complex set of factors to be analyzed and that a Tier 2 Watch List ranking did not indicate a country had a great record on trafficking.[8]

At the conclusion of the hearing, Chair Corker said it had been the “most heartless, lacking of substance” presentation and that he and the two other Senators in attendance had the strong impression that inappropriate political considerations had influenced some or all of the tier upgrades. As a result, the Committee would be asking for the Department to produce records about its internal consideration of the tier rankings. Senator Cardin also said he was interested in exploring whether Congress should amend the relevant statutes in light of what a further hearing might disclose.

After the hearing, a State Department spokesman said that the Department was waiting for the committee to submit a formal request, “but speaking generally, of course we try to be responsive to Congress.”

Conclusion

I agree that the annual T.I.P. reports are important tools in combatting trafficking in persons and that these reports should be free of political influence. On the other hand, I believe that the relevant statutes appropriately create a complex set of factors that require analysis in reaching conclusions about placing countries in the different tiers and that it is appropriate for senior Department officials to be involved in that process.

With respect to Cuba, for at least the following reasons I disagree with the Report’s assertion that Cuban medical personnel’s participation in foreign medical missions is illegal forced labor:

First, the Report admits that “information on the scope of . . . forced labor in Cuba is limited.”
Second, the Report admits that there is conflicting information and allegations on the foreign medical mission work. Coercion is alleged by “some participants” and “other sources.” On the other hand, the Cuban government denies these allegations, and other participants “have stated the postings are voluntary and well paid compared to jobs within Cuba.” The Report also concedes there is conflicting information on whether other means, including withholding Cuban passports, are used to coerce or force participants to remain in the program.
Third, there apparently has not been any fair adjudicative process to determine which of these conflicting sets of information is valid.
Fourth, the accusation of forced labor for such participants has been rejected in a study by Indiana State University’s Emeritus Professor of International Politics and Latin America, Dr. H. Michael Erisman. He says, although there may be “some cases where . . . [Cuban medical professionals] are pressured into accepting overseas assignments, . . . most evidence indicates that the overwhelming majority are motivated by philosophical and/or pragmatic considerations. In the first instance, one needs to understand that the Cuban medical profession . . . is permeated by norms which stress self-sacrifice and service to the community, both at home and abroad. At the core of this ethos is the principle, which is firmly entrenched in the curriculum of the island’s medical schools and reinforced throughout one’s career, that health care should not be seen as a business driven by a profit motive, but rather as a human right that medical personnel have an unconditional duty to protect. Such convictions often underlie participation in the medical aid brigades. There are, however, also some pragmatic factors that can come into play. Overseas service could . . . help to further one’s professional aspirations and for some assignments the total remuneration involved is more generous than what is available back in Cuba. . . . [T]hese are the considerations which apply to the vast majority of people” in such programs, not involuntary servitude.[9]
Fifth, the Report does not cite to the relevant legal definition of “forced labor” to assess this claim. Most pertinent is Article 2(2) of the Forced Labour Convention, 1930, which states, in part, ”the term forced or compulsory labour shall not include . . . any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country.” (Emphasis added.) [10] Cuba is a “fully self-governing country” and the participants in the foreign medical missions are Cuban “citizens,” and as Professor Erisman states, such participation is regarded as “part of the normal civic obligations” of such citizens with the appropriate medical qualifications.
Sixth, relevant to this issue, but not mentioned in the Report, is the fact that medical education in Cuba (at the Latin American School of Medicine) is free. As a result requiring medical graduates to pay the country back by such participation seems entirely appropriate and may indeed be a contractual or quasi-contractual obligation. Indeed, as Professor Erisman reports, Cuban medical professionals, especially doctors, may apply to leave Cuba after they have obtained their free medical education and thereafter provided three to five years of service in the country.

We now await the Committee’s formal request for Department documents, the production of such documents and additional hearings on the subject. In the meantime, as always, I welcome comments of correction or amplification.

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[1] A prior post examined in detail the prior human trafficking report about Cuba.

[2] Reuters, U.S. Softens View of Malaysia, Cuba in Human Trafficking Report, N.Y. Times (July 27, 2015); Reuters, Obama Administration Faces Criticism Over Human Trafficking Report, N.Y. Times (Aug. 3, 2015); Editorial: Obama Administration Ignores Malaysia’s Trafficking Record, N. Y. Times (July 31, 2015); Menendez, Press Release: Sen. Menendez on Human Trafficking Report Politicization (July 27, 2015); Rubio, Press Release: Rubio: State Department’s Human Trafficking Report Should Be Based on Reality Not Politics (July 27, 2015).

[3] Reuters, Special Report-U.S. State Department Watered Down Human Trafficking Report, N.Y. Times (Aug. 3, 2015).

[4] Reuters, Lawmakers Want State Briefing on Trafficking Report, N.Y. Times (July 29, 2015); U.S. Sen. Foreign Relations Comm., Press Release: Senators Cardin and Corker Request Briefing on State Department’s Trafficking in Person Report in Letter to Secretary Kerry (July 29, 2015); Reuters, Lawmakers to Demand Full Accounting on Human Trafficking Report, N.Y. Times (Aug. 4, 2015).

[5] Senate Foreign Relations Comm., Review of the 2015 Trafficking in Persons Report (Aug. 6, 2015); Hattem, Senators accuse State Dept. of picking politics over human trafficking, The Hill (Aug. 6, 2015); Reuters, Top Senator Demands State Department Documents on Human Trafficking Report, N.Y. Times (Aug. 6, 2015); Assoc. Press, Senators Demand Documents Over Malaysia Trafficking Upgrade, N.Y. Times (Aug. 6, 2015); Corker, Corker Fears Politicization of State Department’s 2015 Human Trafficking Report Over Questionable Upgrades (Aug. 2015); Cardin, Senator Cardin Statement Regarding 2015 Human Trafficking Report (Aug. 6, 2015).

[6] Sarah Sewell, Testimony to Senate Foreign Relations Committee (Aug. 6, 2015).

[7] Secretary of State Kerry, who was in Malaysia on the day of the hearing, categorically denied that politics had played any role in the ranking of Malaysia. “I personally signed off on it. And I had zero conversation with anybody in the administration about the Trans-Pacific Partnership relative to this decision — zero. The reason I made this decision was based on the recommendation of my team, because Malaysia has passed additional legislation in 2014, they’ve consulted with civil society, they drafted amendments to Malaysia’s anti-trafficking law in order to allow the country’s flawed victim protection regime to change.” (Assoc. Press, Kerry: Malaysia Trafficking Upgrade Not Due to Trade Talks, N.Y. Times (Aug. 6, 2015); Reuters, Kerry Says ‘Zero Communication’ on Trade Pact and Malaysian Trafficking Record, N.Y. Times (Aug. 6, 2015).

[8] The text of the U.S. statutes regarding trafficking in persons is set forth on a State Department web page and the Report contains a summary of “forced labor” without any mention of the exceptions to the definition discussed below.

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

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

Reactions to Reopening of U.S. and Cuba Embassies and Other Issues Regarding U.S.-Cuba Normalization

As discussed in an earlier post, on the morning of July 20, 2015, Cuba officially opened its Embassy in Washington, D.C., and the United States did likewise in Havana although the ceremonial opening of the latter will be on August 14 when Secretary of State John Kerry goes to Havana to preside over that event. Another post, that afternoon’s joint press conference at the U.S. Department of State by U.S. Secretary of State John Kerry and Cuba’s Foreign Minister Bruno Rodriguez; yet another post, recent comments about Cuba by the White House Press Secretary.

Now we look at the reactions to the significant issues raised by these events: (1) restoration of diplomatic relations; (2) future changes in Cuba; (3) future changes in Cuban human rights; (4) ending the U.S. embargo (or blockade) of Cuba; (5) altering or terminating Cuba’s lease of Guantanamo Bay to the U.S.; (6) ending U.S. Radio and TV Marti; (7) ending USAID and other covert U.S. “democracy” programs in Cuba; (8) Cuba’s returning U.S. fugitives; and (9) nominating and confirming the appointment of an U.S. ambassador to Cuba.

1. Restoration of U.S.-Cuba Diplomatic Relations?

There has been substantial U.S. approval of the restoration of diplomatic relations.

According to the Center for Democracy in the Americas (CDA), for instance, 12 public opinion polls conducted and released since January 1 show that “public support for the Cuba opening is strong, growing, and pervasive. Support for the new policy is bipartisan. It is significantly high among segments of voters — such as Hispanics — that candidates running for office increasingly care about. Most of all, the latest research shows that public support is rising. For example, support for ending the embargo was measured in July by the Chicago Council on Global Affairs at 67%, and earlier this year by Gallup at 59% and by the Associated Press at 60%.”[1]

Moreover, CDA sees “evidence that public support for America’s new Cuba policy is exerting its force on policymakers in the U.S. Congress.” It points to last week’s action of the Senate Appropriations Committee’s approving amendments eliminating House measures that would impede normalization in various ways[2] and to Republican legislators—Senator Dean Heller (NV) and Representative Bradley Byrne (AL)–who recently joined the ranks of supporters of normalization.

Despite the vigorous opposition to normalization repeatedly expressed by Cuban-Americans in Congress—Senators Marco Rubio (Rep., FL) and Robert Menendez (Dem., NJ) and Representatives Ileana Ros-Lehtinen (Rep., FL) and Mario Diaz-Balart (Rep., FL) [3]—there has been little organized opposition to normalization in the Cuban-American community, especially in Florida.[4]

This assessment has been confirmed by prominent Cubans in the U.S. and on the island. Pedro Freyre, a Cuban-born Miami lawyer with a national law firm representing several U.S. and foreign clients seeking to do business in Cuba and a former hardliner himself, said, “It’s over and done in Miami. It died with a whimper.” Indeed, he added that President Obama’s new policy was now widely accepted by South Florida’s 1.5 million Cuban exiles. Similar views were expressed in the Miami Herald by Mike Fernandez, a healthcare millionaire and Bush supporter, who said, “Cuban-Americans everywhere, but especially the diaspora in South Florida, have been awakening to the reality that Cuba’s isolation was and is not a sustainable strategy. It’s time to accept change. Let us not heed those relatively few voices who would go on continuing to trap our minds in hatred.” Carlos Alzugaray Treto, a former Cuban diplomat who is close to President Raúl Castro and his brother Fidel, put it best. He said, “The genie is out of the bottle. And once it’s out, you’re not going to be able to put it back in.”

Senator Amy Klobuchar (Dem., MN), who is the author of a bipartisan bill to lift the embargo, said this must be done for the U.S. to avoid losing investment opportunities that will come with loosening of travel restrictions to the island. She said, “Once millions of American tourists are going, they will need places to stay and they will need food to eat. … So when they come, they are going to be starting to sleep in Spanish hotels and eat German foods because those countries will be able to supply what they need in the tourism industry, not to mention the computers and Wi-Fi and everything else.”[5]

James Williams, the President of Engage Cuba, a major bipartisan group promoting this normalization, issued a statement on the reopening of embassies. He said, “we begin a new chapter of engagement between our two countries. American diplomats will now be much better equipped to engage with the Cuban people and civil society. They will be in a stronger position to elevate issues of concern, like human rights, as well as expanding on areas of cooperation with Cuba.” He pointed out that the “vast majority of the American people, and 97% of the Cuban people support opening relations. We applaud both governments for taking this important step to move forward beyond the Cold War policies of the past and call on Congress to play a constructive role at this historic moment of transition.”[6]

John Dinges, Associate Professor at Columbia University’s School of Journalism and an expert on U.S.-Cuba relations, said for the U.S. “the new relationship with Cuba removed a stumbling block in relations with the entire region, where the US attitude [was] considered irrational and stupid.”[7]

However, others argue that this change is misguided and erroneous. For example, Edward Gonzalez, professor emeritus of political science at U.C.L.A., stated that “in the face of potentially destabilizing change and high expectations at home, Cuban officials are tightening state controls in the short term.” Moreover, “given the regime’s totalitarian proclivity and apparatus, the state’s repression of dissidents and civil society, and its control over the lion’s share of the island’s economy, it is likely to continue into the distant future.” Therefore, he continues, the new U.S. engagement with Cuba “makes the [U.S.] complicit in propping up the regime both economically and politically, while leaving Cuban society even more isolated and defenseless vis-à-vis the all-powerful, coercive state.”[8]

Moreover, Senator Marco Rubio and former Florida Governor Jeb Bush, currently two of the many contenders for the Republican nomination for president in 2016, have said that if elected president in 2016, they would rescind the diplomatic relations. And Senator Tom Cotton (Rep., AK) has pledged to “work to maintain and increase sanctions on the regime, block the confirmation of a new ambassador, demand the extradition of U.S. fugitives from justice, and hold the Castro regime accountable.”[9]

Secretary of State John Kerry in his July 20 interviews,[10] responded to these threats to rescind the relations with Cuba. Kerry said that whoever is elected president in 2016, including Marco Rubio, will have “the ability to make a decision [on whether or not to rescind the re-establishment of diplomatic relations with Cuba]. Congress, obviously, has an ability to have an impact on that.” [11] But I think it would be a terrible mistake [to rescind such diplomatic relations]. The vast majority of the American people believe this is a very good thing to do. It doesn’t make sense. I mean, we had diplomatic relations with the Soviet Union. We had diplomatic relations with then-called Red China. We have to have relationships with countries to do business. And American citizens get hurt when we don’t do that.” Moreover, Kerry added, “I believe . . . President [Obama] has taken an irreversible step. I do not believe a next president, Republican or Democrat, will change it.”

Kerry continued, “Given the fact there are so many Cuban Americans, people who have family in Cuba, to not have a relationship where we can advocate for people, advocate for human rights, advocate for fairness, for elections, for democracy, for travel, for engagement, and all these things that make a difference in the quality of life of Cubans would be a terrible, terrible mistake. So I think, as time goes on, people will see the benefits that come from this policy.”

2. Future Changes in Cuba?

As Foreign Minister Rodriguez’s July 20 statement and Secretary Kerry’s statements made clear and as both governments previously had recognized, the opening of the embassies did not mean the process of normalization had been completed. Indeed, it has just started.

Secretary Kerry, in his interviews, observed, There are “key issues in the normalization process, and . . . [Minster Rodriguez and I] both said today that it will be long and complex. . . . [T]he measure of progress and success is really going to come from what happens in the next months as we go through this early diplomatic rekindling of a relationship. My suspicion is that there’s a possibility it could move faster than people think, simply because I think the Cuban people want it. And as we are there doing diplomacy, more present, able to engage, we actually can work at these kinds of issues more effectively than we’ve been able to for the last 50, 60 years.”

Kerry added that if Cuba is “willing to embrace it, we can bring them a tremendous leap in their economy. We could bring a better standard of living to their people. We can bring technology. We can bring various modern instruments of education, of health delivery, of communications. And I believe that over time things will change . . . at a pace that will be acceptable and, frankly, helpful to Cuba.” Kerry also said, the U.S. wants to see “a true, deep engagement [by Cuba], a willingness to work through these issues. There’s so much that we can cooperate on right now. We want to cooperate on law enforcement, . . . the environment, . . . our visas, . . . health, education, the rights of people, . . . hemispheric issues and interests like the war in Colombia or the relationship with Venezuela.”

Although not in direct response to the reopening of the embassies, Cuba’s President Raúl Castro in his July 15 speech to Cuba’s legislature (the National Assembly of People’s Power)[12] asserted, “We will continue the process of transformations in Cuban society at our own pace, which we have sovereignly chosen, with the majority support of the people, in the interest of constructing a prosperous and sustainable socialism, the essential guarantee of our independence.” (Emphases added.) He reiterated this theme near the end of his speech with these words: “Changing everything which must be changed is the sovereign and exclusive domain of Cubans. The Revolutionary Government is willing to advance in the normalization of relations, convinced that both countries can cooperate and coexist in a civilized manner, to our mutual benefit, beyond the differences we have and will have, thus contributing to peace, security, stability, development and equity in our continent and the world.” (Emphases added.)

A New York Times editorial said, “The full normalization of relations between the United States and Cuba will take years and will be an arduous process. Issues that will be hard to resolve include the disposition of American property the Cuban government seized in the 1960s, and the fate of the United States Navy base in Guantánamo Bay, which the Cuban government considers an illegally occupied territory.”[13]

Professor Dinges offered a similar assessment of the future. He said, “’normal’ relations are not compatible with the [U.S.] travel ban, with [the U.S.] economic embargo, with a recent history of semi-clandestine operations by the [USAID] to promote economic and social discontent. I hope to see in the near future gestures of friendship and rapprochement. For the [U.S.], it is important to dismantle the Guantanamo prison, and the minimization of military forces at the base. On behalf of Cuba, a gesture of detente toward the Miami Cubans would not cost anything and could have huge benefits. . . . There is distrust, there is a long history of [U.S.] aggression [against Cuba]. . . . [He believes future] “changes will be economically, technically, diplomatically. It would be illusory to expect radical changes in political structures in Cuba. Equally unrealistic to think that the US will stop talking about democracy and human rights.”

3. Future Changes in Cuban Human Rights?

Probably the leading U.S. desire for future changes in Cuba is with respect to human rights. For example, in one of his July 20 interviews, Kerry said Cuba does not “want [domestic] interference, but they know we’re not going to stop raising human rights issues. We made that very clear. . . . [W]e’re not giving up the DNA of the [U.S.], which is a deep commitment to human rights, to the values of democracy, freedom of speech, and so forth. So those . . . will be on the agenda. But on the other hand, the great step forward here is that neither of us . . . [is] taking one of our issues of contention and making it a showstopper. We want to engage, and when you get to that point, that’s what begins to break down the barriers.”

Kerry also told Andrea Mitchell, “There’s been a little bit of give . . . [by Cuba] with respect to some agreement on human rights. And I think that over time the elections discussion and the more pointed human rights issues are going to be very much part of the discussion. They are in every country where we have an embassy and an ambassador. We are fearless in our determination to walk in and talk to the authorities and give them a shared our sense of the problems that exist.”

According to the non-governmental Cuban Commission for Human Rights and National Reconciliation, there were 2,822 politically related detentions in the first six months of 2015, less than half the 5,904 registered in the same period last year. Many of those detained this year, however, report being treated more roughly, however.[14]

The previous source also reports, “more than 20 U.S. lawmakers have come to Cuba since February without meeting with opposition groups that once were an obligatory stop for congressional delegations.” This was apparently due to “Cuban officials . . . [having] made clear that if Congress members meet with dissidents, they will not get access to high-ranking officials such as First Vice President Miguel Diaz-Canel, the man expected to be the next president of Cuba” and to U.S. assessment that “talking with Cuban leaders is clearly the most promising way to promote reform on the island.”

On the issue of Cuban human rights, I submit that there is an enormous cognitive dissonance in the minds of U.S. opponents of normalization. Here are the reasons for that conclusion:

First, any objective student of history has to conclude that the U.S., especially since the start of the Cuban Revolution in 1959, has committed and threatened serious acts of hostility towards Cuba, including the embargo, the 1961 U.S.-supported invasion of Cuba’s Bay of Pigs, the 1962 threatened bombing of Cuba during the Cuban Missile Crisis, the embargo of the island and CIA attempts to assassinate Cuban President Fidel Castro. Moreover, U.S. hostility toward Cuba started at least in 1898 when it intervened in Cuba’s war of independence from Spain. Indeed, Foreign Minister Rodriguez’ July 20 speech referred to the late 19^th century warning by José Marti of the U.S. “excessive craving for domination [over Cuba].”
Second, Cuba, therefore, has good reason to be fearful of the much larger and more powerful U.S. and as a result to take steps to protect itself against such perceived threats by restricting dissent. What would you do if you were in the Cubans’ shoes? It, therefore, will take time for Cuba to develop a sense of trust of the U.S. and as a result modify its restrictions on free speech and assembly.
Third, the self-proclaimed advocates of Cuban human rights like Rubio and Jeb Bush do not appear to be aware of the first two points. In addition, they apparently do not appreciate that their very hostility towards Cuba and normalization, purportedly on the ground of promoting Cuban human rights, instead contributes to Cuban skepticism about the good intentions of the U.S. and to the prolonging of Cuba’s restrictions on free speech and other civil liberties.

4. Ending the U.S. Embargo of Cuba?

Ending the embargo or blockade, of course, is a key demand by Cuba, and President Obama has asked the Congress to do just that. As discussed in previous posts, various bills to end the embargo have been introduced in this Session of the Congress, and supporters of normalization or reconciliation of the two countries, like this blogger, urge the Congress to approve such bills as soon as possible.

Such congressional action is in the U.S. national interest because the embargo has failed for over 50 years to produce positive change in Cuba, the embargo clearly has harmed or damaged the island’s economy, and Cuba has insisted on its removal as a key requirement for full normalization of relations.

In addition, there are at least two additional reasons for ending the embargo that this blogger has not seen mentioned in all the public discussion of this issue.

First, last October at the U.N. General Assembly Cuba alleged that the damage to Cuba from the embargo or blockade totaled $1.1 trillion, and the longer the embargo remains in effect that number will only increase. For a U.S. business this would require at least a footnote to its balance sheet identifying this as a contingent liability and explaining whatever reasons the business has for challenging the claim or the alleged amount of the claim. The rational action for such a business would be to terminate the conduct allegedly causing the damage, especially when it is not producing some benefit to the business.
Second, because of the U.S.-Cuba rapprochement of last December, other countries, especially the European Union and its members, are accelerating their efforts to obtain beneficial trade arrangements with Cuba. In short, the longer the U.S. waits to end the embargo, the further behind the U.S. will be with respect to competitors from around the world seeking to do business with Cuba.

Wake up, Congress!

5. Altering or Terminating the Cuba-U.S. Lease of Guantanamo Bay?

As previously noted, Foreign Minister Rodriguez at the July 20 reopening of the Cuban Embassy and at the subsequent joint press conference with Secretary Kerry reiterated Cuba’s request or desire to have its lease of Guantanamo Bay to the U.S. terminated and the territory returned to Cuba. Although the Foreign Minister did not set forth any alleged legal basis for this claim, he did mention that the 1906 lease occurred during a period of U.S. military occupation of the island that “led to the usurpation of [this] piece of Cuban territory”and thereby suggested that the lease was unfairly or coercively obtained.

Interestingly Rodriguez did not mention a previous legal theory advanced by the Fidel Castro regime: that the lease purportedly runs in perpetuity and, therefore, is illegal under Cuban law. Nor did Rodriguez mention another theory for ending the lease: the U.S. operation of a prison/detention facility at Guantanamo that allegedly is not permitted by the lease and, therefore, the U.S. has breached the lease.[15]

At that same joint press conference, Secretary Kerry immediately rejected U.S. willingness to return Guantanamo to Cuba. However, there were caveats in his comment: he said, At this time, there is no discussion and no intention on our part at this moment to alter the existing lease“ and “I can’t tell you what the future will bring but for the moment that is not part of the discussion on our side.” (Emphasis added.) This was reiterated, with similar qualifications, on July 22 by National Security Advisor Susan Rice at a White House press conference.[16] She said, “We’ve been clear that we’re not, at this stage, at all interested in changing the nature of our understanding and arrangements on Guantanamo. And they may choose to raise it, but we’ve been equally clear that, for us, that’s not in the offing at the present.” (Emphasis added.) Do these caveats indicate an U.S. willingness in the future to discuss altering or even terminating the lease? I could understand a lease amendment increasing the amount of the rent and perhaps making administrative changes, but would be surprised if the U.S. would be willing to discuss termination of the lease and returning Guantanamo to Cuba.[17]

Although Cuba has not mentioned the U.S. operation of a detention facility at Guantanamo and the alleged U.S. torture of some of the detainees as a reason for Cuba’s desire to have the territory returned, it should be noted that President Obama has been trying to close that facility since the start of his first term.

On July 22, White House Press Secretary Josh Earnest confirmed “that the administration is, in fact, in the final stages of drafting a plan to safely and responsibly close the prison at Guantanamo Bay and to present that plan to Congress. That has been something that our national security officials have been working on for quite some time, primarily because it is a priority of the President. He believes it’s in our clear national security interest for us to close the prison at Guantanamo Bay.” Earnest also said the President has decided to veto a defense spending bill now being negotiated in Congress if it includes provisions that would make it harder to close the prison.[18]

A few more details about the plan to close the detention facility were offered on July 25 by Lisa Monaco, one of Obama’s top national security aides, who said that such a plan was nearing completion. It will call for the U.S. to step up the transfers of 52 detainees cleared for resettlement in other countries and for the transfer to U.S. “Supermax” or military prisons for trials or continued military detention of at least some of the other 64 detainees still at Guantanamo who are deemed too dangerous to release. Efforts will be made to reduce the size of the latter group through “periodic review boards” that have been used to clear others for transfer.[19]

6. Ending U.S. Radio and TV Marti?

Another Cuban request is for the U.S. to stop its radio and TV broadcasts aimed at Cuba (Radio and TV Marti), again mentioned on July 20 by Minister Rodriguez. On July 22 National Security Advisor Rice stated, apparently in response to this request, the U.S. ”will continue to say and do what we think is appropriate to advance our interests in human rights and democracy in Cuba. . . . we’re not going to change just because the Cuban government may wish that we did.”

7. Ending USAID and Other Covert U.S. “Democracy” Programs in Cuba?

Prior posts have discussed recent “discreet” or covert programs in Cuba operated by the U.S. Agency for International Development (USAID) through private contractors purportedly to promote democracy in Cuba and the latter’s objections to same. Rodriguez in his July 20 speech did not specifically mention such programs, but did so indirectly by objecting to the U.S. seeking “obsolete and unjust goals” (i.e., regime change) by “a mere change in the methods.”

These prior posts have expressed this blogger’s objections to such USAID programs. The New York Times has done the same.

8. Cuba Returning U.S. Fugitives?

Although not specifically mentioned last week by Secretary Kerry or Minister Rodriguez, the issue of Cuba’s returning U.S. fugitives remains a top priority for many in Congress and in the U.S. generally. On July 24 Representative Jerry McNerney (Dem., CA) raised the issue with respect to Charles Hill, who is the sole surviving member of a group who hijacked an airliner in 1971; Hill and two others were fleeing charges relating to the killing of a New Mexico state trooper. McNerney, who was on that hijacked airliner, wants Hill to be returned to the U.S.[20]

9. Nominating and Confirming U.S. Ambassador to Cuba?

With respect to congressional threats to not provide funds for the U.S. embassy in Cuba and to not confirm an ambassador to that country, Kerry observed, “it always matters when Congress is sort of stepping in the way of something being able to . . . be fully effected. . . . [W]hy are they going to do that? Are they going to do that because the [old] policy [purportedly] has been so successful? Are they going to do that because they can show so much change that’s taken place in the last 60 years that this is a crazy path? . . . [It] just doesn’t make sense to prevent our diplomats from carrying the message . . . [of human rights and democracy]. To not be able to meet with more people in Cuba to know what is going on is a huge cutoff of opportunity. So I just think it’s cutting off your nose to spite your face and it’s a shame.”

Kerry also said, “Well, it depends on whom, obviously, the next president is, and we don’t know that now. So you can’t bet on it that way. You have to do what you think is right. You have to do what’s appropriate and make the difference. Nobody can guard against every eventuality of the future. But I believe the President has taken an irreversible step. I do not believe a next president, Republican or Democrat, will change it.”

Conclusion

The time has come for all U.S. citizens to support full normalization of our relations with Cuba!

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[1] Center for Democracy in Americas, Flag Poles to Public Opinion Polls—Is Congress (Finally) Getting the Message (July 24, 2015)

[2] The Senate Committee on July 23 voted, 18 to 12, to lift the “decades-long ban on travel to Cuba . . . . to block enforcement of a law prohibiting banks and other U.S. businesses from financing sales of U.S. agricultural exports to Cuba. . . . [and] to lift restrictions on vessels that have shipped goods to Cuba from returning to the U.S. until six months have passed.” A journalist asserted, “The panel’s votes reflect growing sentiment, even among some GOP conservatives, to ease the five-decade-plus Cuba trade embargo and travel restrictions to the island, which have failed to move the Castro regime toward democracy.” (Assoc. Press, GOP-Controlled Senate Panel Votes to Life Cuba Travel Ban, N.Y. Times (July 24, 2015); Davis, Senate Panel Takes Small Step Toward Easing Travel Restrictions with Cuba, N.Y. Times (July 23, 2015); Shabad, GOP-led Senate panel votes to lift travel ban to Cuba, The Hill (July 23, 2015).) This move in the Senate Appropriations Committee is part of a Democratic Senators’ strategy of attacking House riders in appropriation bills that imperil U.S.-Cuba reconciliation. (Shabad, Dems show their hand in budget poker, The Hill (July 26, 2015),)

[3] Menendez, Menendez Statement on Cuban Embassy Opening (July 20, 2015; Ros-Lehtinen, Opening of Cuban Embassy in Washington, D.C. Harms Our National Security, Says Ros-Lehtinen (July 20, 2015); Diaz-Balart, Embassy in Washington, D.C. Will Represent the Castros, Not the Cuban People (July 20, 2015).

[4] Reuters, Cuban-American Resistance to Diplomatic Thaw Proves Tepid, N.Y.Times (July 21, 2015); Assoc. Press, Poll: Majority of Americans Favor Diplomatic Ties With Cuba, N.Y. Times (July 21, 2015); Reuters Video, Cubans enthusiastic about reopening of U.S. embassy in Havana, N.Y. Times (July 21, 2015).

[5] Klobuchar, News Release: Klobuchar: Opening of Cuban Embassy Marks Next Chapter in Relationship (July 20, 2015).

[6] Engage Cuba, Statement from Engage Cuba on Official Opening of U.S. and Cuba Embassies (July 20, 2015).

[7] Elizalde, John Dinges on Cuba-US relations: ‘I’m optimistic,’ CubaDebate (July 23, 2015)

[8] Gonzalez, Letter to Editor: Effects of Our Cuba Policy, N.Y. Times (July 24, 2015)

[9] Carney, GOPer doubles down on pledge to block Obama on Cuba, The Hill (July 20, 2015).

[10] Dep’t of State, [John Kerry] Interview with Steve Inskeep of National Public Radio (July 20, 2015); Dep’t of State, [John Kerry] Interview with Andrea Mitchell of NBC News (July 20, 2015).

[11] This blogger disagrees with Kerry’s saying Congress had a role in deciding to recognize a foreign government; such a congressional role appears to be unconstitutional in light of a recent U.S. Supreme Court decision that the president has the exclusive constitutional authority to recognize foreign governments.

[12] Speech presented by Army General Raúl Castro Ruz: ‘We will continue the process of transformations in Cuban society at our own pace, CubaDebate (July 15, 2015.

[13] Editorial, Formal Restoration of Diplomatic Ties with Cuba Is Just a Beginning, N.Y. Times (July 20, 2015). The Washington Post, on the other hand, continued its opposition to normalization with Cuba with an editorial that focused on the human rights problems in Cuba and urging our diplomats to concentrate on those issues. (Editorial, U.S. diplomats in Cuba would do well to focus on human rights, Wash. Post (July 20, 2015).) As Secretary Kerry emphasized in his remarks, the U.S. continues to concentrate on those issues.

[14] Assoc. Press, Cuban Dissidents Feel Sidelined as Focuses on State Ties, N.Y. Times (July 23, 2015).

[15] A prior post suggested that Cuba’s best argument for terminating the lease was the U.S. operation of the prison/detention facility. However, Dr. Michael Strauss, an expert on this lease, asserts that at least in 2002 Cuba offered to facilitate U.S. transportation of detainees to Guantanamo; such conduct should weaken, if not demolish, such an argument for Cuba. (Strauss, Cuba and State Responsibility for Human Rights at Guantanamo Bay, 37 So. Ill. Univ. L.J. 533, 546 (2013).)

[16] White House, Press Briefing by Press Secretary Josh Earnest, 7/22/15.

[17] A prior post discussed these issues about the Guantanamo lease and recommended that the parties submit any unresolved disputes about the lease to the Permanent Court of Arbitration at the Hague in the Netherlands.

[18] Assoc. Press, White House Finishing Up Latest Plan for Closing Guantanamo, N.Y. Times (July 22, 2015) Guantanamo, N.Y. Times (July 22, 2015).

[19] Reuters, Some Guantanamo Inmates Would Go to U.S. Under New Plan: Obama Aide, N.Y. Times (July 26, 2015)

[20] Hattem, House Dem demands fugitives in Cuba be returned to the U.S., The Hill (July 24, 2015). A prior post explored the issues regarding extradition under a U.S.-Cuba treaty on the subject and recommended submitting any unresolved disputes about extradition to the Permanent Court of Arbitration at the Hague.

President Barack Obama’s First-Term Record Regarding Cuba, 2009-2013

In light of President Barack Obama’s historic December 17, 2014, announcement of rapprochement with Cuba, it is interesting to examine Obama’s earlier statements about Cuba. Prior posts examined his campaign for the Democratic presidential nomination in 2007-2008 and his campaign for the presidency as the Democratic Party’s nominee in 2008. Now we discuss his first presidential term, 2009-2013.[1] Subsequent posts will look at his reelection campaign in 2012 and his second presidential term (up to the December 17, 2014, announcement), 2013-2014.

As we saw in a prior post, Barack Obama and Joe Biden won the November 4, 2008 election with 69.5 million votes (52.9% of the total) to John McCain and Sarah Palin’s 59.9 million votes (45.7%). In the key state of Florida, Obama-Biden had 51.0% of the popular vote against McCain-Palin’s 48.4%. The electoral votes were Obama and Biden, 365; McCain and Palin, 173. Soon thereafter several head of states congratulated Obama while also calling for the U.S. to end its sanctions against Cubs.

Obama’s First Term, 2009

President Obama's Oath of Office with Michelle Obama — President Obama’s Oath of Office with Michelle Obama

Obama was inaugurated as President on January 20, 2009. His Inaugural Address first mentioned that “we are in the midst of crisis. . . . Our nation is at war against a far-reaching network of violence and hatred. Our economy is badly weakened. . . . [T]he challenges we face are real, they are serious and they are many. They will not be met easily or in a short span of time. But know this America: They will be met.” There was no mention of Latin America or Cuba.[2]

On February 25, 2009, the Department of State released its 2008 Country Reports on Human Rights Practices; the chapter on Cuba described it as a “totalitarian state” that “continued to deny its citizens their basic human rights and committed numerous, serious abuses.”

In April 2009 Obama fulfilled the pledge he made in his acceptance of the Democratic Party’s presidential nomination by lifting travel and remittance restrictions for Cuban-Americans while also authorizing U.S. telecommunications companies to contract with Cuba for improved television, radio and telephone service and Internet access.

That same month (April 2009) Obama told a journalist, “Cuba has to take some steps, send some signals that when it comes to human rights, when it comes to political rights, when it comes to the ability of Cubans to travel.” In Obama’s opinion, the previously mentioned U.S. changes called for Cuba to “send signals that they’re interested in liberalizing.”

This U.S. desire or demand for Cuban reciprocity was not well received in Havana. Cuba’s President Raúl Castro declared, “The blockade [embargo] remains intact. . . . Cuba has not imposed any sanction on the [U.S.] or its citizens. Therefore, it is not Cuba that should make gestures.” Nevertheless, “We are willing to discuss everything with the [U.S.] government, on equal footing; but we are not willing to negotiate our sovereignty or our political and social system, our right to self-determination or our domestic affairs.”[3]

Later that same month (April 2009), Obama attended the Fifth Summit of the Americas. Latin American presidents applauded the previously mentioned U.S. changes while simultaneously pressing Obama on the need to reintegrate Cuba into the inter-American community. Obama responded by reiterating his commitment to engagement, “The [U.S.] seeks a new beginning with Cuba.”

Also in April 2009, the U.S. Department of State issued its Country Reports on Terrorism 2008. Again Cuba was listed as a state sponsor of terrorism.

The next month, May 2009, the U.S. proposed to Cuba that they resume bilateral consultations on migration. Cuba agreed, and the talks took place that July. Cuba presented a draft accord to curb people smuggling and indicated an interest in also discussing cooperation on counterterrorism, counter-narcotics operations and hurricane preparation. Although no such formal agreement was reached, both sides agreed it was a productive consultation.

In June 2009 at the General Assembly of the Organization of American States (OAS), Latin American members moved to repeal the 1962 resolution suspending Cuba’s OAS membership. Facing defeat on this proposal, the U.S. negotiated a compromise: repeal the suspension if Cuba accepts “the practice, purposes, and principles of the OAS,” impliedly including the commitment to democracy in the Santiago Declaration of 1991.

In August 2009 Bill Richardson, then the Governor of New Mexico, was in Cuba on a trade mission, and at a meeting with Cuban officials was led to believe that Cuba wanted to move forward with the U.S. although Richardson said Cuba needed to reciprocate with some gestures. Cuba’s Foreign Minister Rodriguez made it clear that Cuba would not make any concessions to win better relations with the U.S. and that the U.S. blockade (embargo) was unilateral and should be lifted unilaterally.

In September 2009 an U.S. Assistant Secretary of State was in Cuba for discussions about restoring direct mail service. Over five days, she met with Cuban officials in the Justice, Agriculture, Health and Interior ministries and academics at the University of Havana as well as bloggers and dissidents. Much to the consternation of Cuban authorities, one of the bloggers was Yoani Sánchez, now an international celebrity. Nevertheless, Cuba’s Assistant Foreign Minister (Bruno Rodriguez Parrilla, now the Minister of that agency) told the U.S. official that Cuba wanted to show her their desire “to move forward in our relationship,” requiring “confidence building” as a “way forward.”

By the Fall of 2009 the White House was frustrated by Cuba’s failure to respond to the U.S. relaxing of travel and remittance restrictions for Cuban-Americans. As a result, Obama asked Spain’s Prime Minister, José Luis Rodriguez Zapatero, to have Spain’s Foreign Minister carry a back-channel message to President Rául Castro that if Cuba did not take steps of liberalization, neither could Obama and that the U.S. understands things cannot change overnight, but in the future it will be clear that this was the moment when changes began.

Castro responded with a proposal for a secret channel of communication between the two countries to discuss Cuban steps that might address the U.S. concerns. The U.S., however, at this time rejected the idea for a secret channel. (As we will see below, in December 2012, such a secret channel was opened.)

On December 3, 2009, the process of normalization was thrown off track by Cuba’s arrest of U.S. citizen, Alan Gross, who was bringing communications and computer equipment to Cuba’s Jewish community as an employee of a contractor for the U.S. Agency for International Development (USAID). Two weeks later President Castro told Cuba’s National Assembly that the U.S. alleged desire for a new relationship was “a huge propaganda campaign staged to confuse the world. The Truth is that the instruments for the policy of aggression to Cuba remain intact and that the U.S. government does not renounce its efforts to destroy the Revolution.”

By the end of 2009, therefore, things looked bleak for further normalization. Moreover, the press of many other foreign policy challenges for the U.S. pushed Cuba far down the list of priorities for the Obama Administration.

Obama’s First Term, 2010.

The arrest and jailing of Alan Gross continued to disrupt the relations of the two countries in 2010. The U.S. denied that Gross had done anything wrong and that his release from a Cuban jail was necessary for any improvement in the relationship.

The Gross arrest, however, prompted the U.S. Senate Foreign Relations Committee to investigate USAID’s Cuba democracy programs in 2010 and to develop a plan to reorient the Cuba program toward supporting genuine links between the two countries. These changes in the program were briefed for Cuban diplomats, who said it would smooth the way for the release of Gross.

On March 11, 2010, the Department of State released its 2009 Country Reports on Human Rights Practices; the chapter on Cuba described it as a “totalitarian state” that “continued to deny its citizens their basic human rights, including the right to change their government, and committed numerous and serious abuses.”

In the meantime, Spain on its own initiative in May 2010 encouraged Rául Castro and Cardinal Jaime Ortega to discuss Cuba’s lifting the ban on public demonstrations by the Ladies in White, the female relatives of political prisoners, and to the release of political prisoners. In July 2010 this resulted in the government’s agreement to release 52 such prisoners, including everyone who had been arrested in 2003, and those who wished to go into exile would be welcomed by Spain. Eventually the government released 127 such prisoners.

In June 2010 Cardinal Ortega, with the consent of the Cuban government, went to Washington, D.C. to inform them of the then planned prisoner release. The Cuban government believed this prisoner release was a major concession and should “pressure U.S. political leaders to respond with other gestures of good will toward Cuba.” Ortega also told U.S. officials that Castro was ready to talk with the U.S. directly about every issue and that it would be a mistake for the U.S.to maintain the status quo until Cuba became a democracy. ”Everything should be step by step,” the Cardinal said. “It’s not realistic to begin at the end. This is a process. The most important thing is to take steps in the process.”

Obama, however, insisted that first Cuba had to release Alan Gross from prison before the U.S. could do more. Secretary of State Hilary Clinton called the Cuban prisoner release a “positive sign,” but Obama said nothing.

In August 2010 Bill Richardson returned to Cuba on another trade mission and met with officials to try to obtain Gross’ release from prison. Richardson felt encouraged, but did not obtain the release.

Also in August 2010 the Department of State issued its Country Reports on Terrorism 2009, which again listed Cuba as a “state sponsor of terrorism.”

To try to rescue the stalled discussions, an Assistant Secretary of State met with Cuba’s Foreign Minister at the U.N. in October 2010. Rodriguez opened the meeting with a lengthy recitation of Cuba’s historical grievances against the U.S. and refused to engage in discussions about the future. “It was a terrible meeting,” said the U.S. official.

Soon after this terrible meeting, Rodriguez met again with Bill Richardson at the U.N. The Foreign Minister wanted the U.S. to know that Gross was merely a symptom of the troubled relationship, not its heart. Rodriguez also wanted the U.S. to know that Cuba had asked its supporters to tone down their criticism of Obama during the debate on the resolution to condemn the U.S. blockade (embargo) and that Castro had decided to improve ties with the U.S., but that the U.S. had not reciprocated. In addition, Rodriguez stressed the need for the U.S. to make progress on the case of the Cuban Five in U.S. prison.

Also in October 2010, John Kerry, then Senator and the Chair of the Senate Foreign Relations Committee, met Rodriguez, Cuba’s Foreign Minister, to discuss the U.S. democracy programs and Alan Gross, and an informal deal for his release seemed to be on track. However, the Administration abandoned the proposed changes in the Cuba democracy programs after objections from New Jersey Senator Robert Menendez. The Obama Administration was unwilling to wage a political fight with Menendez. This resulted in the Cuban government concluding that the Administration could not be trusted.

Earlier in 2010 advocates for lifting U.S. restrictions on travel to Cuba launched a major campaign over opposition from Senator Menendez and others. During his June trip to Washington Cuba’s Cardinal Ortega urged members of Congress to allow freer travel in light of Pope John Paul II’s injunction that Cuba “open itself to the world and . . . the world open itself to Cuba.” The resistance from Menendez and Miami Congresswoman Debbie Wasserman Schultz, however, prevented any congressional action to eliminate or reduce restrictions on U.S. citizens traveling to Cuba. Apparent indifference from President Obama also contributed to nothing happening in Congress on this issue.

Instead, at Obama’s direction, the Administration worked on a more limited expansion of travel through new regulations on “people-to-people” educational travel, but in August-September 2010 opposition by Menendez and Wasserman Schultz forced the Administration to shelf the new regulations.

Obama’s First Term, 2011

In mid-January 2011, on a late Friday before a holiday weekend, the Administration finally released the new regulations on expanded “people-to-people” educational travel. Cuba’s Foreign Minister said these regulations were “positive,” but they had “a very limited scope and do not change the policy against Cuba.”

In March 2011 Jimmy Carter, former U.S. President, went to Cuba at the invitation of Rául Castro. Before Carter left, Cuban officials made it clear that Gross would not be granted freedom. Carter met with Cardinal Ortega to discuss the Roman Catholic Church’s dialogue with the government, with blogger Yoanni Sánchez, dissidents, former prisoners, relatives of the Cuban Five in U.S. prison and with Alan Gross. Foreign Minister Rodriguez stressed the importance of the Cuban Five case for Cuba. Over dinner with Rául Castro, Carter emphasized that Gross’ imprisonment was a serious obstacle to improving relations and urged his release on humanitarian grounds. Castro said there was no consensus in the Cuban government on the Gross case, but reiterated Cuba’s willingness to engage in wide-ranging talks with the U.S., “without preconditions,” and “on equal terms with full respect for our independence and sovereignty.” Any topic could be discussed. “We are ready.”

Before his departure, Carter said the U.S. should fully normalize relations with Cuba immediately; Cuba should allow full freedom of speech, assembly, travel; the U.S. embargo should be ended; Cuba should be removed from the terrorism list; the Cuban Five should be released from U.S. prison; and Alan Gross should be released from Cuban jail. Rául Castro, standing nearby, quipped, “I agree with everything President Carter said.”

Upon Carter’s return to the U.S., he had a cool meeting with Secretary of State Clinton, and the next day the Administration advised Congress it was requesting $20 million of funding for the democracy promotion programs in Cuba.

On April 8, 2011, the Department of State released its 2010 Country Reports on Human Rights Practices; the chapter on Cuba described it as a “totalitarian state” that “denied citizens the right to change their government. In addition, the following human rights abuses were reported: harassment, beatings, and threats against political opponents by government-organized mobs and state security officials acting with impunity; harsh and life-threatening prison conditions, including selective denial of medical care; arbitrary detention of human rights advocates and members of independent organizations; and selective prosecution and denial of fair trial.”

In August 2011 the Department of State released its Country Reports on Terrorism 2010, which again listed Cuba as a “state sponsor of terrorism.”

Obama’s First Term, 2012

On May 24, 2012, the Department of State released its 2011 Country Reports on Human Rights Practices; the 27-page chapter on Cuba described it as a “totalitarian state” whose “principal human rights abuses were: abridgement of the right of citizens to change their government; government threats, intimidation, mobs, harassment, and detentions to prevent citizens from assembling peacefully; and a significant increase in the number of short-term detentions, which in December rose to the highest monthly number in 30 years.”

In July 2012 the Department of State released its Country Reports on Terrorism 2011, which again listed Cuba as a “state sponsor of terrorism.”

During the latter part of 2012 Obama and Biden were engaged in their campaign for re-election against Republican nominees Mitt Romney and Paul Ryan, which will be covered in a subsequent post.

In the meantime, in September 2012 Bill Richardson made another trip to Cuba after Cuba’s Supreme Court had affirmed Alan Gross’ conviction. The State Department gave him a list of things the U.S. was prepared to do if Gross were pardoned and released from prison. Most were possibilities, rather than commitments. The others were commitments, but already had been announced by the U.S.

The Richardson trip got off to a bad start when he leaked word of it to CNN’s Wolf Blitzer, who reported that the Governor had been invited by the Cuban government to negotiate the release of Gross. To the Cubans, this looked like an attempt to force their hand. Later the Cuban Foreign Minister told Richardson “One, you won’t get Gross; two, you won’t see Rául; and three, you won’t even see Gross.” An angry Richardson held a press conference to announce that he would not leave Cuba until he saw Gross, who was a “hostage” held by the Cubans. An angry Cuban government responded that Gross’ release was never on the table, that Richardson was aware of that position, that his request to see Gross was impossible after Richardson’s slanderous statements and that Cuba was a sovereign country that did no accept blackmail, pressure or posturing.

At the time nothing of consequence regarding Cuba is believed to have happened during the two months after the November 2012 election, in which Obama and Biden won re-election.

However, over the last seven months, we have learned that in December 2012 after his re-election President Obama held a long meeting with aides in the White House situation room to establish priorities for the second term. According to Ben Rhodes, the Deputy National Security Advisor who played a central role in shaping Cuba policy and who participated in that meeting, the aides all knew that Obama always had thought that the decades-long U.S. policy of trying to isolate Cuba through the embargo and other measures made no sense, and at the end of the discussion, Obama instructed aides to make Cuba a priority and “see how far we could push the envelope.”[4]

Moreover, at this December 2012 meeting the President also concluded that “it would be a good fit to have someone who was known to be very close to the President [involved in such an effort on Cuba] because the Cubans are very wary of engagement and they want to know that the engagement is reaching the top. They felt like there [had] been several other efforts of engagement where it turned out to be kind of “Lucy with the football,” where they had conversations with the Americans, [but after] they reached a certain point . . . there was never follow through [by the U.S.]. We can debate whether it was the Cubans’ fault or not, but that was their perception. So . . . [the Cubans] wanted someone . . . [involved for the U.S.] who were very close to the President and . . . they wanted it to be discreet.” Hence, the President designated Mr. Rhodes to be in charge of this new effort to engage Cuba.

Thereafter, Mr. Rhodes sent a secret message to the Cuban government that the U.S. wanted “to initiate a dialogue about prisoners and other issues.”

Obama’s First Term, January 2013

Nothing of consequence regarding Cuba was believed to have happened during the rest of President Obama’s first term, which ended on January 20, 2013, although the exact dates of the secret discussions with Cuba in 2013 are not yet known.

Conclusion

After fulfilling a campaign pledge In April 2009 to lift travel and remittance restrictions for Cuban-Americans while also authorizing U.S. telecommunications companies to contract with Cuba for improved television, radio and telephone service and Internet access, President Obama’s desire to seek normalization with Cuba was thwarted by Cuba’s December 2009 arrest and subsequent conviction and imprisonment of Alan Gross. The rest of Obama’s first term regarding Cuba seemed, at the time, concentrated on unsuccessful efforts to obtain Gross’ release. Now, however, we know that at the end of the first term a new and secret effort to engage with Cuba was launched.

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[1] This post and the subsequent posts about Obama’s prior statements about Cuba are not based upon comprehensive research. The primary research tool was online searching of the New York Times for articles mentioning “Obama and Cuba” for the relevant time period although the details have been lost in the process of editing this post. Therefore, this blogger especially welcomes comments with corrections and additions. Ultimately after public release of many Obama Administration documents after the completion of his presidency, scholars will undertake a detailed examination of those documents and provide their assessments of his record regarding Cuba.

[2] Transcript: Barack Obama’s Inaugural Address (Jan. 20, 2009).

[3] At about the same time (April 2009), the U.S. Interests Section in Havana turned off its external streaming electronic news billboard, and Cuba replaced the black flags on poles outside the Section with Cuban flags.

[4] Reuters, How Obama Outmaneuvered Hardliners and Cut a Cuba Deal, N.Y. Times (Mar. 23, 2015); Rhodes, The Obama Doctrine: America’s Role in a Complicated World, Aspen Ideas Festival (June 29, 2015).

White House Press Secretary and Senate Majority Leader Offer Conflicting Comments About U.S.-Cuba Relations

On the afternoon of July 1, 2015, Josh Earnest, White House Press Secretary, held a press gaggle (an informal on-the-record briefing) en route to Nashville, Tennessee that involved many comments about U.S.-Cuba relations. The next day the U.S. Senate Majority Leader, Mitch McConnell, addressed the same subject with conflicting comments. [1]

White House Press Secretary

1. Congressional Repeal of the Embargo Against Cuba

With respect to prospects for congressional repeal of the U.S. embargo of Cuba, Earnest said, “I haven’t done any whip counts, but I do think that there is, at minimum, strong . . . bipartisan support in the [U.S.] Congress for lifting the embargo on Cuba. This is a policy that the President is encouraging Congress to pursue, and I think it’s worth noting how misplaced the opposition to doing so is.”

“We actually see, based on publicly available data about the preferences and views of the Cuban people, that the overwhelming majority of them strongly support normalizing relations with the [U.S.] and deepening their engagement with the [U.S.] And that takes a variety of forms. That’s everything from establishing an embassy there, which we’ve obviously taken steps to do, but it involves expanded commerce between our two countries; it involves more Americans traveling to Cuba; and it involves Cubans having more access to information.”

“This is something that the Cuban people are hungry for. And so all of those who claim to have the interests of the Cuban people at heart should be strongly supportive of a policy that the President has implemented that we know that the Cuban people overwhelmingly support.”

2.Conditions for U.S. Diplomats Travel in Cuba

After deferring to the State Department for details on the agreed-upon conditions for U.S. diplomats traveling in Cuba, Earnest did say, “We believe that sufficient progress was made in resolving some of those concerns to move forward with the opening of the [U.S.] embassy in Cuba.”

3. Response to Critics of Restoring Diplomatic Relations

With respect to critics of the restoration of diplomatic relations, Earnest said Senator Robert Menendez’s was wrong when he stated “that democracy and human rights take a backseat to a legacy initiative. . . . The fact is the President has been very clear since mid-December when this was originally announced about what the goal of this policy change actually is.”

“For more than 50 years, the U.S. policy toward Cuba was an effort to isolate Cuba in the hopes that that isolation would bring about better protections for human rights, for basic personal liberties related to freedom of expression, freedom of religion, freedom of assembly, freedom of speech. But yet, we saw very little change over the last [50-plus] years. And the President believed it was time for us to consider a new approach, and to try a new strategy for bringing about the kind of change that we would like to see in Cuba.”

“[T]hose who are concerned about ensuring that the rights and preferences of the Cuban people are protected and even advanced should be strongly supportive of the President’s policy, because the Cuban people are strongly supportive of the President’s policy. . . . Every available shred of evidence indicates that the overwhelming majority of the Cuban people actually do support this policy change and that the vast majority of the Cuban people actually do believe that it will allow their ambitions to be realized, and that by having greater engagement with the American people, having greater access to the U.S. government, having greater access to publicly available information — this is what the Cuban people believe is in their best interest.”

“The President believes that this also happens to be a policy that has important benefits for the [U.S.]. There are important economic opportunities for U.S. businesses on the island nation of Cuba. We have seen that the change in our policy toward Cuba has strengthened our relations with other countries in the Western Hemisphere. For a long time, we saw that the U.S. policy of isolation toward Cuba was actually an impediment to our ability to build strong relations with other nations in the Western Hemisphere, and we’ve actually seen that by removing that impediment, we’ve been able to deepen our ties with other countries in the Western Hemisphere and, as a consequence, actually increase international attention on the failures of the Cuban government to protect the basic human rights of the Cuban people.”

“The President believes strongly that this approach is clearly within the best interest of the United States, but also in the best interest of the Cuban people in allowing them to achieve their ambition of having a country that is integrated, that is free, where they can freely express their political views.”

4. Appointment of U.S. Ambassador to Cuba

“We haven’t laid out a timeline yet for when an announcement of an ambassadorial nomination would be made. But obviously that would be another step in normalizing our relations with Cuba, would be to appoint an ambassador to lead the U.S. Embassy in Havana…. I’m confident that will be a venue for robust debate about how the policy changes that the President announced back in December aren’t just clearly in the best interests of the American people, they’re clearly in the best interests of the Cuban people, as well.”

“For obvious reasons, it would be our strong preference that once an ambassador has been nominated, for that individual to be treated fairly by the [U.S.] Senate and confirmed in bipartisan fashion so that they can represent the interests of the United States on the island nation of Cuba.”

Senate Majority Leader

On July 2, U.S. Senator Mitch McConnell (Rep., KY), the Senate Majority Leader, gave a speech to a local chamber of commerce in his home state of Kentucky in which he made negative comments about President Obama’s rapprochement with Cuba and promised Senate resistance to that policy.

He called Cuba “a thuggish regime” that is “a haven for criminals” fleeing prosecution in the United States. “I’m having a hard time figuring out what we got out of this, you know? You would think that the normalization of relations with Cuba would be accompanied by some modification of their behavior. I don’t see any evidence at all that they are going to change their behavior. So I doubt if we’ll confirm an ambassador, they probably don’t need one.”

Moreover, McConnell noted that many of the restrictions placed on Cuba would require congressional legislation, “and we’re going to resist that.”

His negative views were echoed by some of his fellow Republican Senators, especially Cuban-Americans Marco Rubio (FL) and Ted Cruz (Tex.), by John Boehner (Rep., OH), the Speaker of the House of Representatives, and by Republican presidential candidates, especially Jeb Bush.

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[1] This post is based upon White House, Press Gaggle by Press Secretary Josh Earnest en route Nashville, TN, 7/1/15; Fran, Top Republican doubts Senate will confirm ambassador to Cuba, Wash. Post (July 2, 2015); Carney, Cruz: Cuba embassy a ‘slap in the face’ to Israel, The Hill (July 1, 2015).