Senator Ted Cruz – dwkcommentaries

Congressional Proposal for Extradition of U.S. Fugitives in Cuba

On December 13 U.S. Representative Peter King (Rep., NY) and eight cosponsors filed a proposed House resolution calling for the extradition of U.S. citizens in Cuba who are fugitives from the U.S. That proposal will be summarized and analyzed below.

Contents of the Proposed Resolution[1]

The preamble of the proposed resolution, which was referred to the House Committee on Foreign Affairs, recited that “more than 70 fugitives from the United States, charged with offenses ranging from hijacking to kidnapping to drug offenses to murder, are believed to be receiving safe harbor in Cuba,” including William Morales and Joanne Chesimard. It also mentioned that the U.S. and Cuba have a bilateral extradition treaty from 1905 and 1926 and that “it is imperative that Cuba abide by its extradition treaty with the United States and immediately extradite or render to the United States those legally indicted or convicted of serious criminal offenses in the United States.”

Therefore, the proposed resolution called for the following:

“the immediate extradition or rendering to the United States of convicted felon William Morales and all other fugitives from justice who are receiving safe harbor in Cuba in order to escape prosecution or confinement for criminal offenses committed in the United States;”
the U.S. urging “the international community to continue to press for the immediate extradition or rendering of all fugitives from justice that are receiving safe harbor in Cuba;” and
“the Secretary of State and the Attorney General to continue to press for the immediate extradition or rendering of all fugitives from United States justice so that they may be tried and, if convicted, serve out their sentences.”

Analysis of the Proposed Resolution

The resolution may make for good publicity for these representatives, but it is a waste of time because the terms of the U.S.-Cuba extradition treaty bar such extraditions, because the U.S. repeatedly has called for Cuba to make these extraditions and because Cuba repeatedly has denied such requests under the very terms of the extradition treaties recited in this resolution.

The Legalities of Extradition[2]

First, extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.

In the U.S., international extradition is treaty-based, meaning that the U.S. must have an extradition treaty with the requested country in order for the latter to consider the request for extradition. U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties. While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19^th Century.

For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.

In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:

An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.
A similarly widely adopted exception is where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).
U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.
Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals. The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.
Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.

Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties, however, this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.

U.S.-Cuba Extradition Treaties[3]

The issues posed by the new proposed House resolution are governed by the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice,” which entered into force on March 2, 1905. Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926 (44 Stat. 2392; TS 737).

The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.” However, under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty.”

The long list of crimes covered by Article II, as amended, includes the following: (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” (2) “Arson.” and (3) “Robbery, defined to be the act of feloniously and forcibly taking from the person of another money, goods, documents, or other property, by violence or putting him in fear; burglary; housebreaking and shopbreaking.”

Under Article VI of the original treaty, however, the requested country is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.)

The only limitation on this exception is in Article VI itself, which states, “An attempt against the life of the head of a foreign government or against that of any member of his family when such attempt comprises the act either of murder, assassination, or poisoning, shall not be considered a political offense or an act connected with such an offense.” (Emphasis added.)

Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) [3]

To have a better understanding of this treaty, it would be useful to see all documents regarding (a) the negotiation of the treaty in 1904-1905 and its amendment in 1926; and (c) previous U.S. and Cuban requests for extradition.

U.S. Fugitives In Cuba

According to U.S. Department of State annual reports purportedly justifying the previous designations of Cuba as a “State Sponsor of Terrorism,” there have been or still are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes. Pursuant to a 2005 Cuban government statement, however, these U.S. reports also say no additional U.S. fugitives have been permitted on the island and in a few instances Cuba has extradited such fugitives to the U.S.

However, a U.S. newspaper recently asserted, “The U.S. has no idea how many fugitives Cuba’s harboring,” And on January 23, 2015, U.S. Senator Marco Rubio (Rep., FL) and two other Republican Senators (David Vitter (LA) and Ted Cruz (TX)) asked the F.B.I. to submit a complete list of such fugitives with copies of their U.S. indictments, but a FBI response to this request has not been located.

In any event, one of the most notable U.S. fugitives still on the island is JoAnne Chesimard (a/k/a Assata Shakur), a political radical and former member of the Black Panther Party and the militant Black Liberation Army, who in 1979 broke out of a New Jersey state prison where she was serving a life sentence for assault, armed robbery and aiding and abetting the murder of a New Jersey state trooper. After hiding in the New York area, she fled to Cuba in 1984, where she was granted political asylum that same year and has lived ever since. According to her U.S. attorney, she “has maintained from the time she was arrested that she was a victim of a counter intelligence program by the FBI and that she was stopped on the New Jersey turnpike as result of her being targeted by FBI.” In May 2013 the FBI added her name to its “Most Wanted” list.

Cuba, however, before the December 2014 rapprochement had rejected U.S. requests for her extradition on the ground that Cuba had determined she was being sought on “political” grounds and, therefore, had decided to grant her asylum. In addition, there are also some indications that Chesimard/Shakur has been granted Cuban citizenship, which would provide Cuba with another reason under the treaty to deny a U.S. request for her extradition. It would be useful to know the details of all prior U.S. requests for her extradition.

After the announcement of rapprochement, the two countries have discussed various extradition issues, including at least some of the U.S. nationals in Cuba who are mentioned in the new proposed resolution in the House of Representatives, including Chesimard/Shakur.[4]

However, after a bilateral negotiation session in Washington, D.C. in February 2015 Josefina Vidal, Cuba’s lead diplomat for these negotiations, said the issue of extraditing people between Cuba and the U.S. had been discussed many times in the past and that the two countries had signed a treaty on the topic in 1906 which has a clause such that it would not apply in cases involving political activities. “Therefore, Cuba has legitimately given political asylum to a small group of U.S. citizens, because we have reason to believe that they deserve this and that is how far we’ve gone. And when one grants political asylum, then you cannot get into these types of discussions.” She added that after the Cuban Revolution of 1959 the U.S. had not honored the treaty when Cuba asked the U.S. to extradite “members of the Cuban dictatorship who were responsible for terrible crimes.”

In June 2016, the two countries held another negotiating session in Havana focused on counterterrorism cooperation Afterwards the State Department merely stated that the U.S. “continues to seek the return by Cuba of fugitives from US justice” and that the Department “brings out the cases of fugitives to the Cuban Government to be settled and will continue to do so at every appropriate opportunity.”

Conclusion

As a result, the new proposed Resolution does not deserve to be adopted, and if adopted, it will not have any practical effect.

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[1] H.Res. 664, Calling for the immediate extradition or rendering to the United States of convicted felons William Morales, Joanne Chesimard, and all other fugitives from justice who are receiving safe harbor in Cuba in order to escape prosecution or confinement for criminal offenses committed in the United States (115^th Cong. (Dec. 13, 2017). The co-sponsors are Representatives Leonard Lance (Rep., NJ), Bill Pascrell (Dem., NJ), Frank LoBiondo (Rep., NJ), Ron De Santis (Rep., FL), Albio Sires (Dem., NJ), Ileana Ros-Lehtinen (Rep., FL), Mario Diaz-Balart (Rep., FL) and Carlos Curbelo (Rep., FL).

[2] Extradition Has Become a Hot Topic for the United States, dwkcommentaries.com (July 26, 2016).

[3] Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015).

[4] Criticism of U.S.-Cuba Law Enforcement Agreement, dwkcommentaries.com (Jan. 21, 2017).

Additional Information About U.S. Reactions to the U.S.-Cuba Restoration of Diplomatic Relations

Granma, the official newspaper of the Communist Party of Cuba, published an article regarding U.S. reactions to the restoration of diplomatic relations between the U.S. and Cuba.[1]

It reported positive reactions from Democratic Senators Patrick Leahy, Chris Murphy, and Ben Cardin and from Republican Senator Jeff Flake and Republican Representative Bradley Byrne.

Others expressing support were Hillary Clinton, former Secretary of State and current candidate for president in 2016, and Wayne Smith, a former head of the U.S. Interests Section in Cuba.

Opposition, Granma reported, came from Republican Senators Marco Rubio and Ted Cruz; Republican Representatives John Boehner and Ileana Ros-Lehtinen; and Republican presidential candidate, Jeb Bush.

The article also included a reference to a public opinion survey taken May 27-June 17, 2015, by the Chicago Council on Global Affairs that showed that “Americans favor lifting the trade embargo on Cuba and believe the proposed changes in U.S.-Cuba relations will have mutual benefits.” More specifically, the survey demonstrated the following:

“Two in three Americans (67 percent) support the United States ending the trade embargo with Cuba.”
“Support for ending the embargo is bipartisan, with majorities of Democrats (79 percent), Republicans (59 percent) and Independents (63 percent) all in favor of lifting the ban on U.S. trade with Cuba.”
“A majority of Americans are very or somewhat confident that the proposed changes in U.S.-Cuba relations will have benefits for both countries. Majorities of Americans say the changes will help the Cuban economy (70 percent), help U.S. businesses (62 percent), improve living standards in Cuba (60 percent), improve the image of the United States in the world (57 percent), improve human rights in Cuba (54 percent) and improve political freedoms in Cuba (53 percent).”
“Majorities of all partisan groups are very or somewhat confident that the proposed changes in U.S.-Cuba relations will help the Cuban economy (78 percent of Democrats, 65 percent of Republicans, 70 percent of Independents).”
“Otherwise, Democrats and Independents are more confident than Republicans in the benefits. Majorities of both Democrats and Independents are confident that the changes will help U.S. businesses (75 percent of Democrats, 61 percent of Independents) and improve Cuban standards of living (71 percent of Democrats, 59 percent of Independents), while Republicans are divided (50 percent each). Democrats are also more confident than Republicans that the proposed changes in U.S.-Cuba relations will improve the image of the United States in the world (74 percent of Democrats, 45 percent of Republicans, 52 percent of Independents), improve human rights in Cuba (68 percent of Democrats, 38 percent of Republicans, 55 percent of Independents) and improve political freedoms in Cuba (65 percent of Democrats, 39 percent of Republicans, 53 percent of Independents).”

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[1] Positive reaction to reestablishment of diplomatic relations dominates within the U.S., Granma (July 2, 2015); Chicago Council on Global Affairs, As U.S., Cuba Make Embassy Announcements, Chicago Council Survey Shows Americans Support Ending Cuba Trade Embargo (July 1, 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).

Update on Congressional Actions Regarding Cuba

A June 12^th post reviewed the status of appropriations bills relating to Cuba in the U.S. House of Representatives. Now we look at what happened last week in Congress on these and other measures.

National Defense Authorization Act FY 2016[1]

On June 18, the Senate passed its version of the spending authorization for the Department of Defense for Fiscal Year 2016.

The White House threatened to veto the bill. The main bone of contention is the bill’s continuation of sequestration of funds and use of so-called budget gimmicks. The White House opposes also opposes the bill because it contains language that it claims would make it hard to shutter the U.S. prison facility in Guantánamo Bay, Cuba. It calls the process for winning congressional approval of closing Guantánamo “unnecessary and overly restrictive.”

The same day, however, Senator John McCain (Rep., AZ) said that Defense Secretary Aston Carter had pledged to come forward to Congress with a plan to close the Guantanamo prison facility. Even if the administration hands over a plan to close the facility, however, it’s unclear if it could get passed through Congress. McCain’s proposal divided Republicans on the Senate Armed Services Committee and he faces opposition from House lawmakers.

Now the Senate and House have to confer and negotiate a bill that can pass both chambers. One of the major challenges are the different provisions regarding the Guantanamo detention facility and detainees:

The Senate’s version of the bill provides the President with a path to close the prison in Guantanamo if Congress signs off on the plan.
The House version does not include an option for closing the prison, but instead would maintain restrictions on transferring prisoners. The House bill also adds additional certification requirements, bans detainees from being transferred to “combat zones” and blocks any transfers of prisoners to the United States including for medical purposes.

Intelligence Authorization Act, FY 2016 (H.R.2596)[2]

On June 16 the House passed, 247-178, the Intelligence Authorization Act FY 2016 (H.R.2596). It outlines policy for 16 federal intelligence agencies, including the CIA and .the National Reconnaissance Agency. After the vote, John Boehner (Rep., OH), the Speaker of the House, said, “This bill sustains and strengthens our capabilities to combat terrorism, cyberattacks, and the proliferation of weapons of mass destruction, while making every taxpayer dollar count.”

The bill’s sections 321 would ban the transfer of certain Guantanamo detainees to the U.S.; section 322 would ban the construction or modification of U.S. facilities to house certain Guantanamo detainees; and section 323 would ban transfer of Guantanamo detainees to combat zones. Sections 331 and 333 would require certain reports to Congress regarding such detainees.

Rep. Adam Schiff (Dem., CA), the top Democrat on the Intelligence Committee, criticized the bill’s banning the government from transferring such detainees to the U.S. or a recognized “combat zone.” Schiff said, “We are not safer because of Guantanamo’s existence. In fact, it makes us more vulnerable by drawing more recruits to the jihad.” Moreover, the definition of “combat zone,” Schiff added, is “so broad as to include allies and partners such as Jordan.” An amendment from Schiff to eliminate the new restrictions failed 176-246.

Before the vote, the White House said, “While there are areas of agreement with the committee, the administration strongly objects to several provisions of the bill,” and “If this bill were presented to the president, the President’s senior advisors would recommend to the president that he veto it.”

Financial Services and General Government Appropriations Act FY 2016[3]

On June 17 the House Appropriations Committee approved the Financial Services and General Government Appropriations Act FY 2016 on a straight party-line vote, 30 to 20.The Committee’s press release states the bill provides $20.2 billion in funding for “critical national programs to enforce U.S. laws , maintain a fair and efficient judicial system, and help small businesses grow” while reducing or eliminating lower-priority programs and cutting “poor-performing agencies—including an $838 million reduction to the Internal Revenue Service.”

One of the most controversial provisions of the bill was the temporary blocking of the newly implemented net neutrality rules, which was criticized by the White House without a threat of a veto.

As noted in a prior post, according to the Committee’s press release, the bill contains prohibitions on (a) “travel to Cuba for educational exchanges not involving academic study pursuant to a degree program;” (b) “importation of property confiscated by the Cuban Government;” and (c) “financial transactions with the Cuban military or intelligence service.” I, however, am still unable to find these provisions in the bill. I solicit comments identifying these provisions.

In the Committee Rep. Nita Lowey (Dem., NY), the top Democrat of the full committee, offered an amendment that would have removed what she called “20 veto-bait riders” or policy provisions, including these Cuba-related measures. The proposal was blocked on a party-line vote.

Freedom to Travel to Cuba Act of 2015 (S.299)[4]

A prior post discussed the Freedom to Travel to Cuba Act of 2015 that was introduced by Senator Jeff Flake (Rep., AZ). In addition, it now has 44 cosponsors: 36 Democrats, 6 Republicans and 2 Independents.

A recent New York Times editorial endorsed the lifting the ban on travel to Cuba. It said, “The ban — the only travel prohibition American citizens are currently subjected to — never made sense, and it’s particularly misguided in an era of broadening engagement between the United States and Cuba.” Now, “the trajectory is unmistakable. Public opinion polls show that a majority of Cubans on the island and Americans favor engagement. Congress should wait no longer to do its part.”

Cuban Military Transparency Act (S.1489)[5]

On June 3 Senator Marco Rubio (Rep., FL) introduced the Cuban Military Transparency Act (S.1489) with seven cosponsors (Robert Menendez (Dem., NJ), Orrin Hatch (Rep., UT), Tom Cotton (Rep., AR), Ted Cruz (Rep., TX), Cory Gardner (Rep., CO), David Vitter (Rep., LA), Mark Kirk (Rep., IL). It was referred to the Committee on Foreign Relations.

The bill would prohibit a U.S. person from engaging in any financial transaction with or transfer of funds to: the Ministry of the Revolutionary Armed Forces of Cuba or the Ministry of the Interior of Cuba (or any of their subdivisions); a senior member of such Ministries; any agency, instrumentality, or other entity that is more than 25% owned, or that is operated or controlled by, such a Ministry; or any individual or entity for the purpose of avoiding a prohibited financial transaction or transfer of funds that is for the benefit of that individual or entity. Excluded from these bans are the sale to Cuba of agricultural commodities, medicines, and medical devices; remittances to an immediate family member; or assistance in furtherance of democracy-building efforts for Cuba.

The bill would also require (a) the U.S. Attorney General to coordinate with the International Criminal Police Organization (INTERPOL) in order to pursue the location and arrest of U.S. fugitives in Cuba, including current and former members of the Cuban military and (b) the U.S. President to provide reports on the role of the Ministry of the Revolutionary Armed Forces and the Ministry of the Interior in Cuba and the return of property that has been confiscated by the Government of Cuba.

In his press release about the bill, Senator Rubio said, ““It is not in the interest of the United States or the people of Cuba for the U.S. to become a financier of the Castro regime’s brutality. The Cuban Military Transparency Act would prevent U.S. dollars from getting into the hands of the Cuban military and would demand accountability from the Obama Administration regarding fugitives of American justice in Cuba, the return of stolen and uncompensated property and the role of the Ministry of the Revolutionary Armed Forces and the Ministry of the Interior in Cuba.”

The Center for Democracy in the Americas opposes this bill. It admits “that in Cuba, a socialist state with a largely state-owned economy, the military is invested in state-owned businesses, and several of those . . . are dominant players in Cuba’s tourist industry. Given the military’s broad role in Cuba’s economy, any expenditure by U.S. travelers and businesses – including the cost of hotel rooms, telephone calls, airport taxes, the hotel occupancy tax, sales taxes on tourist purchases, resort fees – could be prohibited presumptively unless the traveler or company could persuade [the U.S. Treasury agency] they spent their money in Cuba some other way.” But “how could they prove the negative? Who in Cuba will hand out the forms that say “that hotel room” or “that painting” or “that serving of ropa vieja” didn’t come from an enterprise owned or controlled by Cuba’s military?”

Therefore, according to the Center for Democracy in the Americas, the true purpose of this bill is “to shame, harass, and try to stop every American from visiting Cuba or seeking to do business in Cuba, and to return U.S. policy to its pre-December 17, 2014 goal of starving the Cuban economy and the Cuban people along with it.”

Conclusion

These latest congressional developments reinforce the need for continued vigilance by supporters of U.S.-Cuba reconciliation to pay attention to what is happening in Congress and to continue to express their opinions on these issues to their representatives in that body and to the larger community.

I take pride in the strong support for such reconciliation in the State of Minnesota, so far away from Cuba. A recent article in MINNPOST explored this apparently strange phenomenon. Eric Schwartz, Dean of the Humphrey School of Public Affairs at the University of Minnesota and a non-native Minnesotan, believes there are three main reasons for this fact. First, two of Minnesota’s biggest industries — agriculture and medical devices — have massive potential exports to Cuba. Second, Minnesota’s lack of a large Cuban-American community and its distance from the island mean our lawmakers are not subject to the same pressures as representatives from states like Florida and New Jersey. Third, many of Minnesota’s federal legislators are reasonable people.

I concur in that opinion, but believe Schwartz has missed the fundamental reason for strong Minnesota support for this reconciliation. Many people in this State are interested in what goes on in the world and are actively engaged with the rest of the world through their churches like Minneapolis’ Westminster Presbyterian Church, the Center for Victims of Torture, Advocates for Human Rights, the Minnesota Cuba Committee and various programs at the University of Minnesota and through Minnesotans’ welcoming immigrants and refugees from around the world, especially from Somalia, Viet Nam and Laos, and through major multinational corporations headquartered here like Cargill, which is leading the U.S. Agricultural Coalition for Cuba,3M, Medtronic and General Mills.

I was pleased to read about the change of heart of a prominent Cuban-American Republican who was U.S. Secretary of Commerce in the George W. Bush Administration, Carlos Gutierrez. In an op-ed essay in the New York Times, he said,” it is now time for Republicans and the wider American business community to stop fixating on the past and embrace a new approach to Cuba.” He added, “Some of my fellow Cuban-Americans insist that continuing to squeeze Cuba economically will help the Cuban people because it will lead to democracy. I wonder if the Cubans who have to stand in line for the most basic necessities for hours in the hot Havana sun feel that this approach is helpful to them.”

Gutierrez concluded, “America must look to the future instead — and pursue this opportunity to assist Cubans in building a new economy. There is a lot of work to do, and progress will be slow. However, the business community and my fellow Cuban-Americans and Republicans should not ignore the possibilities ahead. The Cuban people need and deserve our help.”

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[1] Matishak, White House threatens to veto Senate’s defense spending bill, The Hill (June 18, 2015); Carney, McCain expects Pentagon plan on closing Guantanamo, The Hill (June 18, 2015);Carney, Five challenges for the defense bill (June 21, 2015).

[2] This section of the post is based upon Hattem, House passes intel bill over White House objections, The Hill (June 16, 2015).

[3] This section of the post is based upon the following: House Appropriations Comm., Press Release: Appropriations Committee Approves Fiscal Year 2016 Financial Services Bill (Jun 17, 2015); House Appropriations Comm., Financial Services Appropriations Act FY 2016 (June 9?, 2015); House Appropriations Comm., Report: Financial Services and General Government Appropriations Bill, 2016, No. 114- —( 2015);Trujillo, House panel advances rider to block Internet rules, The Hill (June 7, 2015); Trujillo, Obama administration knocks net neutrality riders in funding bill, The Hill (June 17, 2015) Shabad, Bill with $838M IRS cut advances in House, The Hill (June 17, 2015).

[4] Library of Congress THOMAS, S.299 Freedom to Travel to Cuba Act of 2015 (Cosponsors)

[5] This portion of the post is based upon the following: Library of Congress THOMAS, Cuban Military Transparency Act; Rubio, Press Release: Senators Introduce Bill To Deny Resources To Castro’s Military and Security Services (June 3, 2015); Center for Democracy in Americas, The Cuban Military Not So Transparent Act (June 19, 2015).