New U.S. Ambassador to the U.N., Nikki Haley, May Present a Challenge for Supporters of U.S.-Cuba Normalization

Nikki Haley, now the U.S. Ambassador to the U.N., has dropped hints that she may present a challenge to supporters of U.S.-Cuba normalization. The first was in her testimony regarding Cuba before the Senate Foreign Relations Committee.[1] The second was in her initial appearance at the U.N. on January 27.

Appearance Before Senate Foreign Relations Committee

On January 18, 2017, the Senate Foreign Relations Committee held Nikki Haley’s confirmation hearing, and at the hearing or thereafter in writing she provided the following testimony regarding Cuba.

  1. Question: “Do you agree that the U.S. should help support private entrepreneurs in Cuba with training or other assistance, so they can build businesses, market their products and services, and compete with state-owned enterprises?”

Answer: “Unfortunately, Cuba does not have private entrepreneurs and working independently is not a right but a privilege granted only to supporters of the regime.”

Analysis: “That’s just wrong, as the BBC and a million other reputable sources confirm.”

  1. Question: “Do you agree that after more than half a century the U.S. embargo against Cuba has failed to achieve any of its principal objectives?”

Answer: “We should be clear about a few things. The goal of the embargo was never to cause regime change, but rather to raise the costs of the Cuban government’s bad behavior.”

Analysis: “That was a whopper, as this Voice of America op-ed, and a vast historical record shows.”

  1. Question: “Will you continue the recent practice of abstaining to the UN General Resolution pertaining to the statutory U.S. embargo on Cuba?”

Answer: “No.”

Analysis: “Too bad. Ambassador Samantha Power’s speech when the U.S. abstained on the embargo resolution last year was a truly great moment.”

  1. Question: “Do you support continued diplomatic relations with Cuba?

Answer: She submitted an 85-word response that according to the CDA, didn’t directly answer the question.

On January 24, the Committee approved her nomination, 11-2 (with negative votes from Democratic Senators Coons (DE) and Udall (NM)).

Action by the Senate

The full Senate followed suit the same day, 96-4 (with negative votes from Coons and Udall plus Democrat Senator Heinrich (NM) and Independent Senator Sanders (VT)) .[2]

The Committee Chair, Senator Bob Corker (Rep., TN) supported the nomination with this statement: “Governor Haley is a fierce advocate for American interests. As South Carolina’s Governor, Nikki Haley is a proven leader. I believe she has the instincts that will help her achieve reform. Having run a state government, she has dealt with tough management and budgetary issues. I believe that experience will serve her well, and I strongly support her nomination.” He added, “I believe she knows the United Nations needs reform and change. We have a right to demand value for our money. I think our nominee has said she will demand that. . . . Experience shows that when we have strong U.S. leadership at the U.N. we can get results. As South Carolina’s Governor, Nikki Haley is a proven leader. . . . I believe she has the instincts that will help her achieve reform. Having run a state government, she has dealt with tough management and budgetary issues.”

The nomination also was supported by Senator Benjamin Cardin (Dem., MD), the Committee’s Ranking Member, who said, ““What Governor Haley lacks in foreign policy and international affairs experience, she makes up for in capability, intelligence, and a track record of building coalitions in South Carolina. Her nomination was surprising to many of my colleagues on both sides of the aisle, but I have been impressed by her forthrightness on core American values, her willingness to admit what she does not know, and her commitment to seeking the facts and speaking truth to power, whether within the Trump Administration or with an intransigent Russia and China in the Security Council.”

Ambassador Haley’s Initial Appearance at the U.N.

Ambassador Haley @ U.N.
Ambassador Haley @ U.N.

On January 27, only three days after her confirmation, she made her very first appearance at the U.N. General Assembly and delivered a blunt warning to every nation in the world. She said, “You’re going to see a change in the way we do business. Our goal with the administration is to show value at the U.N., and the way we’ll show value is to show our strength, show our voice, have the backs of our allies and make sure our allies have our back as well. For those who don’t have our back, we’re taking names; we will make points to respond to that accordingly.”[3]

Conclusion

First, her lack of knowledge regarding Cuba may not be surprising since her prior experience has been in state government, but it is a troubling sign that she may not be committed to normalization.

Second, her statement that she would not abstain on the forthcoming U.N. General Assembly resolution against the U.S. embargo (blockade) of Cuba is also troubling by itself. It is even more troubling when coupled with her recent statement at the U.N. that the U.S. would be taking the names of those countries that do not have the U.S.’ back and responding accordingly. That suggests that the U.S. may seek to take some kind of action against virtually every country in the world that supports that resolution.

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

[1] Ctr. Democracy in Americas, Cuba News Blast (Jan. 27, 2017).

[2] Press Release, Senate Foreign Relations Committee Approved Nomination of Nikki Haley to be U.S. Ambassador to the United Nations (Jan. 24, 2017); Press Release, Corker Votes to Confirm Nikki Haley as U.S. Ambassador to the United Nations (Jan. 24, 2017); Press Release, Corker Statement on Haley Vote (Jan. 24, 2017); Press Release, Cardin Statement on Haley Vote (Jan. 24, 2017); Assoc. Press, Senate Confirms Trump’s Nominee for US Ambassador to UN, N.Y. Times (Jan. 24, 2017); Carney, Senate confirms Trump’s UN ambassador, The Hill (Jan. 24, 2017).

[3] Sengupta, Nikki Haley Puts U.N. on Notice: U.S. Is ‘Taking Names,’ N.Y. Times (Jan. 27, 2017).

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

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

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

President Obama’s Veto Message

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

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

Reactions to the Veto

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

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

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

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

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

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

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

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

U.S. Senate’s Overriding the Veto

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

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

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

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

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

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

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

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

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

U.S. House of Representatives’ Overriding the Veto 

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

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

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

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

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

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

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

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

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

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

White House Reaction to the Overriding of the Veto

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

U.S. Senate Foreign Relations Committee Holds Hearing About Cuba

On May 20th the U.S. Senate Foreign Relations Committee held a hearing, “U.S.-Cuban Relations—The Way Forward.”[1]

 Chairman Corker’s Opening Statement

Senator Bob Corker
Senator Bob Corker

The Committee Chair, Bob Corker (Rep., TN) opened by stating that the hearing would focus “on the strategy behind the President’s significant shift in U.S. policy towards Cuba.” Even though this shift “has been welcomed in Latin America and the Caribbean . . . significant differences of opinion exist in the [U.S.] over the extent to which this change in policy will advance U.S. interests and improve circumstances for the Cuban people.”

Therefore, according to Corker, the strategic issue was “how our nation can best engage strategically with the region and beyond to help Cuba rejoin the mainstream of the Americas and offer its citizens the same rights and freedoms enjoyed by citizens of other countries in the region.”

Ranking Member Cardin’s Opening Statement

Senator Ben Cardin
Senator Ben Cardin

The Ranking Member of the Committee, Senator Ben Cardin (Dem., MD), stated, “The President’s action [on December 17th] brought with it a new opportunity to forge a bilateral relationship that will strengthen our efforts to advance and defend U.S. national interests, and will allow our government and our citizens to expand support for the Cuban people. Today’s hearing provides an important opportunity to review the advances achieved under the Administration’s new Cuba policy and to understand the strategy for moving forward.  Without a doubt, this is a complicated process and it will take time to achieve the progress we want to see.”

“[W]e all stand together in our aspirations to see the Cuban people have the opportunity to build a society where human rights and fundamental freedoms are respected, where democratic values and political pluralism are tolerated, and where individuals can work unobstructed to improve their living conditions. We also share concerns about critical issues, such as the Cuban government’s ongoing abuse of human rights and the presence of American fugitives in Cuba, especially those wanted for the murder of U.S. law enforcement officers.”

“But, the central question is: how can we best advance these aspirations while also addressing these concerns? It goes without saying that our previous policy did not achieve the progress that we wanted to see, and so a new approach is needed.”

“President Obama has laid out a new path based on the belief that principled engagement will bring more results. I think that this is the right path for the following reasons:

“First, for far too long, the Cuban government has used U.S. policy as an excuse to justify its shortcomings and the hardships the Cuban people face.  The Cuban government also has exploited U.S. policy for diplomatic gains, focusing international debate about what the U.S. should do, rather than about what Cuba needs to do to better provide for its citizens.”

“Second, despite differences we may have with a government, our foreign policy should always endeavor to support that country’s people to the greatest degree possible.  Our disagreements with the Cuban government are well known and many.  But, over time, we have allowed those disagreements to get in the way of developing a strategy that utilizes all of our resources to empower the people of Cuba.”

“I have no doubt that the dynamism of American society will make a positive contribution to empowering the Cuban people and provide them with the information they need to build the future of their country.”

“Third, the Administration’s new Cuba policy will provide the U.S., and especially our diplomats, with new tools to engage directly with the Cuban government to have principled and frank discussions about the issues we disagree about and how we might work together better on issues of common interest.”

Testimony of Assistant Secretary of State Jacobson

Assistant Secretary Roberta Jacobson
Assistant Secretary Roberta Jacobson

Roberta Jacobson, Assistant Secretary of State for Western Hemisphere Affairs, testified, “[W]e have begun to see the Administration’s new approach to Cuba providing space for other nations in the hemisphere and around the world to focus on promoting respect for human rights and fundamental freedoms in Cuba and elsewhere in the region. This was illustrated at the Summit of the Americas in Panama last April. Engagement by the President and the Secretary at the Summit re-invigorated our momentum on a variety of issues.”

“Our new approach has drawn greater attention to the potential for greater political and economic freedom for the Cuban people and the gap between Cuba and other countries in the Hemisphere. More Americans are travelling to Cuba, getting past the rhetoric, meeting Cubans, and building shared understanding between our people. We have seen practical cooperation in our official dialogues with Cuba on issues in our national interest like maritime and aviation safety, telecommunications, and environmental cooperation.

“Our future discussions on law enforcement cooperation, coupled with the ongoing migration talks, will expand the avenues available to seek the return of American fugitives from justice as well as the return of Cubans residing illegally in the United States. The same is true for future talks on human rights and settling American claims for expropriated properties. Most importantly, the President’s new approach makes clear that the United States can no longer be blamed as an obstacle to progress on things like access to information and connecting Cubans to the world.”

Nevertheless, “significant differences remain between our two governments. We continue to raise our concerns regarding democracy, human rights, and freedom of expression. And we will seek to engage with all Cubans to gain their perspectives on the best way forward for the country.”

“Our policy towards Cuba is based on a clear-eyed strategy that empowers the Cuban people to determine their own future by creating new economic opportunities and increasing their contact with the outside world. That is why we made it easier for Cuban-Americans to travel and send remittances to their families in Cuba, and opened new pathways for academic, religious, and people-to-people exchanges. These changes create powerful new connections between our two countries and help the nascent private sector in Cuba, which is already an agent of positive change on the island. The steps we have implemented build on this foundation by increasing authorized travel, authorized commerce, and the flow of information to, from, and within Cuba.”

“Our new approach emphasizes targeted forms of commerce that offer economic opportunity to independent Cuban entrepreneurs or, like expanded communications, benefit all Cubans. Comprehensive changes in our economic relationship will require Congressional action to lift the embargo. The President has urged Congress to begin that effort. In the meantime, we are using available policy tools to promote a prosperous, democratic, and stable Cuba.”

“In a short period of time, we have already started to see U.S. enterprises seizing the new opportunities. The regulatory changes we announced are intended to increase the financial and material resources available to the Cuban people and the emerging Cuban private sector. They also enable U.S. companies to offer expanded telecommunications and internet services in ways that could help Cuban civil society members advance their aspirations and collectively become more prosperous.”

“Regarding the Administration’s decision to rescind Cuba’s designation as a state sponsor of terrorism, as President Obama said, ‘throughout this process, our emphasis has been on the facts.’ . . . We will continue to have differences with the Cuban government, but our concerns over a wide range of Cuba’s policies and actions do not relate to any of the criteria relevant to that designation.”

“While progress has been made in our efforts to reestablish diplomatic relations, there is more to do to ensure a future U.S. Embassy will be able to function more like other diplomatic missions elsewhere in the world and foreign diplomatic missions in Cuba. Even today, under challenging circumstances, our diplomats do their very best to represent the interests and values of the United States, just as we do in hundreds of places around the world. Our engagement with the broadest range of Cubans will expand once we establish diplomatic relations with Cuba.”

Testimony of State Department Counselor Shannon

Counselor Thomas A. Shannon, Jr.
Counselor Thomas A. Shannon, Jr.

State Department Counselor Thomas A. Shannon, Jr. testified, “My purpose today is to address the regional context in which . . . [the U.S. Cuba] policy is unfolding, and to lay out some of the strategic dimensions of our diplomacy.”

“The decision to engage with Cuba and seek normalization of our bilateral relationship attempts to create a new terrain on which to pursue a future that meets our interests and corresponds to our values. Our commitment to democracy and human rights, and our desire and hope that the Cuban people will know the benefits of liberty and become the sovereigns of their own destiny, is no less for our action.”

“The President has been clear about the commitment in our Cuba policy to our enduring and fundamental principles of self-government and individual liberty. However, he has also been clear about our inability to effect significant change in Cuba acting alone across so many decades. Instead, he determined that our efforts would be more effective if we could position Cuba squarely within an inter-American system that recognizes democracy as a right that belongs to all the peoples of our Hemisphere, believes that democracy is essential to the political, economic, and social development of our peoples, and has the juridical instruments, treaties, and agreements to give shape, form, and weight to these commitments. It was our determination that this kind of environment would be the most propitious to support the only legitimate agent of peaceful and enduring political change in Cuba: the Cuban people.”

“The Americas, and specifically Latin America, has anticipated many of the events that are shaping our world. It is a region that has moved largely from authoritarian to democratic government, from closed to open economies, from exclusive to inclusive societies, from autarkical development to regional integration, and from isolation to globalization.”

“Latin America is the first developing region of the world to commit itself explicitly to democratic governance through the Inter-American Democratic Charter, the first to build a democratic model of development, and the first to establish regional structures to promote and protect human rights.”

“While creating a broad base of shared political values, Latin America has also constructed shared economic understandings and a commitment by many of the most successful countries in the Hemisphere to market economies and free trade. In the process, it has built sub-regional integration and political dialogue through organizations like the Common Market of the South, the Andean Community, the Union of South American Nations, and the Central American Integration System, all the while preserving larger hemispheric institutions, such as the Organization of American States and the Summit of the Americas process, that connect Latin America to the Caribbean and North America.”

“As Latin America advances into the 21st century, it is undergoing a second generation of change. Politically, it has consolidated democratic government and is strengthening democratic states and societies. This has opened up political institutions to new voices and actors, deepening the representativeness of many Latin American governments and challenging traditional elites and interests. In some countries, weak democratic institutions have not been able to contain the social energy unlocked by democratization, leading to populism and political polarization as groups struggle for control of the state. As troubling as this phenomenon can be, it does not define the democratization of the region but instead presents a challenge for the region to show how it can address such incidents through the organizations and institutional mechanisms it has created.”

“Economically, Latin America is building innovative integration mechanisms such as the Pacific Alliance, and reaching into Asia and North America to find new and important economic partners. We have FTAs with 12 countries in the Hemisphere, and the continued globalization of Latin America is driven not only by the regions abundant commodities, especially food and energy, but also by growing middle classes that have created attractive markets for manufactured goods and services.”

“The profound changes unleashed in Latin America show clearly that democracy and markets can deliver economic development and address longstanding social inequities such as poverty, inequality, and social exclusion. In effect, Latin America has used democracy and markets to launch peaceful social revolutions that are transforming many countries in important and long-lasting ways. Our ability to promote profound and dramatic change in Latin America is an example of what the United States can accomplish through diplomacy and engagement.”

“If we accomplished such a profound transformation in our Hemisphere through engagement, why not try the same approach with Cuba? And better yet, why not try it in partnership with countries and institutions that are now prepared to work with us because of the President’s new policy?”

“Cuba today finds itself part of a dynamic, vibrant region where transformative change has been the watchword for several decades. And it finds itself in a region where the momentum of that change will continue to reshape political, economic, and social landscapes. In such an environment, the Cuban people will find many models and partners from which to learn and choose. We should be one of those models and partners.”

Questioning Assistant Secretary Jacobson and Counselor Shannon

Of the 11 Committee members in attendance, six made comments and asked questions supportive of U.S.-Cuba reconciliation: Ben Cardin (Dem., MD), Barbara Boxer (Dem., CA), Tom Udall (Dem., NM), Tim Kaine (Dem., VA), Edward Markey (Dem., MA) and Jeff Flake (Rep., AZ).

With Chairman Corker being judiciously noncommittal in his comments, the other four in attendance were hostile to the reconciliation: Bob Menendez (Dem., NJ), Marco Rubio (Rep., FL), Ron Johnson (Rep., WI) and David Perdue (Rep., GA).

In response to Senator Corker’s opening question about whether to date the U.S. had obtained any changes in Cuba policies, Jacobson implicitly said none by emphasizing that the U.S. actions to increase the ability of U.S. nationals to travel to Cuba and to send remittances to Cubans were assisting the latters’ ability to form businesses and over time to be agents for change. The same was true, she said, of new U.S. policies to encourage U.S. businesses to export telecommunications equipment to the island. Shannon added that the new U.S. policies helped the U.S. with other countries in Latin America, especially within the Organization of the American States (OAS) and the Summit of the Americas.

Jacobson also mentioned the OAS and the United Nations as well as continued U.S. annual reports about human rights as means the U.S. would use to assess whether Cuba makes improvements in human rights. She also reiterated her point about U.S. travel and investment in Cuba as instruments for aiding such improvements, all in response to a question from Senator Rubio.

Rubio also pressed Jacobson to concede that the U.S. and Cuba had different notions of human rights. She did so with respect to free speech, peaceful assembly and elections, but she did not point out the U.S.-Cuba agreement on many theoretical issues of human rights as discussed in a prior post.

Another major Rubio argument was increased American travel to Cuba merely benefited the Cuban government and military, which owned, in whole or in part, hotels and car rental companies. The amount of such travel to Cuban bed and breakfasts in private homes was insignificant and, in any event, such private establishments had to pay big fees to the government for such businesses. Moreover, Rubio continued, many of these hotels and other properties had been owned by Americans and others and stolen by the Cuban government. Therefore, Rubio said, the U.S. should not be promoting such increased travel.

Senator Boxer responded to this argument by pointing out that the U.S. permits travel to Viet Nam, China and Russia where hotels and other businesses are owned by the state. She also pointed out that direct interactions between U.S. and Cuban citizens should encourage the latter to want more rights. In addition, Boxer said, the rapprochement was improving cooperation regarding Cuba for the U.S. from Europe and others in this Hemisphere. An example was Panama’s reaction to Cuban efforts to suppress free speech at the recent Summit of the Americas in that country.

However, I was surprised that no one responded to Rubio’s argument about hotels that had been stolen by the Cuban government. Indeed, there are substantial damage claims against the Cuban government for its uncompensated expropriation of property, and this is one of the claims the U.S. now is asserting against Cuba, and a prior post argued for submitting these and other damage claims by both countries to an international arbitration.

Senator Johnson focused on provisions of the Libertad Act (a/k/a the Helms-Burton Act) imposing preconditions on U.S. relaxing sanctions against Cuba, presumably as a predicate for an argument that President Obama’s easing of certain sanctions was unauthorized and, therefore, illegal. Jacobson pointed out, however, that other laws had exceptions to sanctions and provided authority to the President to do what he has done. Moreover, she said, the Administration had asked Congress to enact legislation repealing the U.S. embargo of the island, including the Libertad Act.

Senator Menendez, a Cuban-American and a vigorous opponent of the reconciliation, barely concealed his anger over the change in U.S. policies. Since December 17th, he argued, there has been no improvement in Cuban human rights, and in fact there has been a deterioration on this subject.

Senator Perdue reiterated Menendez’ argument about human rights and asserted that Cuba was still a state supporter of terrorism. It allegedly was helping Islamist terrorists, had shipped arms to North Korea that were intercepted in Panama and had another ship with explosives that on February 28, 2015, was intercepted by Colombia. Counselor Shannon pointed out that this Colombian government action was an example of the increased cooperation the U.S. now is obtaining from others in Latin America as a result of the new U.S. policies about Cuba.

Senator Kaine stated that there are roughly 600 bilateral relations in the Western Hemisphere and that the only one without normal diplomatic relations is U.S.-Cuba. In addition, there are no inter-state wars in the Hemisphere and the only civil war is in Colombia, which is the subject of peace negotiations now being held in, and aided by, Cuba. Counselor Shannon concurred, saying this was a remarkable achievement for the Hemisphere going along with its economic and democratic improvements.

 Conclusion

This hearing, in my opinion, did not really provide any new information about the issues or the positions of the participants, which probably why it was not covered in U.S. news media.[2]

The hearing and the lack of news coverage underscored the importance of U.S. citizens who support the reconciliation efforts to convey their opinions to their Senators and Representatives and of the formation and actions of groups like the U.S. Agricultural Coalition for Cuba and Engage Cuba Coalition.

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

[1] This post is based upon a video of the hearing and on the embedded citations to the opening statements of Senators Corker and Cardin, the testimony of Assistant Secretary Jacobson and Counselor Shannon and to some of the comments by Senators Rubio, Menendez and Perdue.

[2] This brief article is the only one found in a Google search: Gomez, Senators question wisdom of Obama’s Cuba policy, USA Today (May 20, 2015),