More Reasons To Believe There Is a Dim Future for U.S.-Cuba Normalization   

Tomorrow the new Republican-controlled Congress convenes with the presidential inauguration of Donald Trump coming on January 20, and on their agendas is “unraveling some of the most significant policy prescriptions put forward by the Obama administration.”[1]

Most of this speculation about upcoming changes in national policies does not include cancelling Obama’s policy of normalization of relations with Cuba. But as prior posts have indicated, President-Elect Trump’s most recent statements have criticized that policy as have Vice President-Elect Mike Pence and some of the appointees to the transition team and the new administration, especially Reince Priebus, the new White House Chief of Staff; Cuban-American Mauricio Claver-Carone, a transition team member for the Department of the Treasury; Mike Pompeo, a Congressman from Kansas and the nominee for Director of the CIA; and General Michael Flynn, the proposed White House National Security Advisor. [2]

In addition, three more Cuban-Americans have been appointed to the transition team, two of whom have been opposed to such normalization. They are (1) Yleem Poblete, who has been assigned to the transition team for the National Security Council; (2) John Barsa, who will work with the Homeland Security team; and (3) Carlos E. Díaz-Rosillo, who will work on policy implementation. [3] Here is a preliminary examination of these appointees.

Yleem Poblete.

For nearly two decades Yleem Poblete has advised members of Congress on a wide variety of global issues as a member and director of the staff of the House Foreign Affairs Committee. She also co-leads a consulting group, The Poblete Analysis Group, with her husband, also a Cuban-American, Jason Poblete. She also has served as an assistant professor and researcher for the director of the Institute of Inter-American Studies at the University of Miami.[4]

She and her husband have written articles critical of President Obama’s pursuit of normalization with Cuba. They argued that Cuba was a ‘state sponsor of terrorism,” a designation rescinded by the State Department in May 2015; that the re-opening of the Cuban Embassy in Washington, D.C. increased the risk of Cuban spying on the U.S.; and that Cuba was a “pariah state [that] has earned every punitive measure imposed by the U.S.;” it “helped create and grow the Western Hemisphere drugs for arms network;” its “[h]ostile acts carried out by Havana’s spy recruits in the U.S. government are linked to American deaths;” it “also continues to collaborate with fellow rogues such as Iran;” it “harbors terrorists, as well as murderers and other dangerous fugitives of U.S. justice.”[5]

After the death of Fidel Castro last November she tweeted, “Lost in talk of #castrodeath is #cuba regime murder of Americans, safe haven 4 terrorists & US fugitives, #Iran ties, arms to #NorthKorea.”

John Barsa

Barsa was the first director of the Department of Homeland Security Public Liaison Office, where he worked with the Department’s Secretaries Tom Ridge and Michael Chertoff. Barsa also has experience with high-tech companies and was an assistant to Florida Republican Congressman, Lincoln Diaz-Balart, a Cuban-American known for his opposition to normalization. After Fidel Castro’s death, Barsa said, ““The contrast between Obama’s and Trump’s statements on the death of Fidel Castro is refreshing. MAKE CUBA GREAT AGAIN.” Barsa is a graduate in International Relations from the International University of Florida.[6]

Diaz-Rosillo.

According to his Harvard University biography, Diaz-Rosillo is a lecturer on government at Harvard University; Allston Burr Assistant Dean of Harvard College, Dunster House; and director of transfer advising at Harvard College. His research focuses on the American presidency, campaigns and elections, political leadership, public policy, and comparative chief executive politics. His work examines the different instruments of power that chief executives have at their disposal to affect policy. He holds undergraduate degrees summa cum laude in international relations (BA) and civil engineering (BSCE) from Tufts University, as well as graduate degrees in public policy (MPP) and government (AM, PhD) from Harvard University.[7]

Internet research did not uncover any statements by him about Cuba.

Conclusion

As a prior post stated, there regrettably are grounds for believing there is a dim future for continuation of normalization of U.S.-Cuba relations. Those of us in the U.S. who believe that this is an erroneous move need to continue to advocate for normalization and to share that opinion with our Senators and Representatives, the Trump Administration and our fellow U.S. citizens.

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[1] E.g., Steinhauer, With New Congress Poised to Convene, Obama’s Policies Are in Peril, N.Y. Times (Jan. 1, 2017).

[2] U.S. Reactions to Death of Fidel Castro, dwkcommentaries.com (Nov. 30, 2016); The Future of U.S.-Cuba Normalization Under the Trump Administration, dwkcommentaries.com (Dec. 22, 2016).

[3] People of the Year: DIARIO DE CUBA names the most noteworthy persons of the year, Diario de Cuba (Dec. 27, 2016).

[4] Cuban-American Trump Transition Team to National Security Council, News Marti (Dec. 1, 2016); Dr. Yleem Poblete, The Poblete Analysis Group.

[5] Poblete & Poblete, Yes, Cuba is a State Sponsor of Terrorism, Nat’l Review (Jan. 6, 2015); Poblete & Poblete, The U.S.-Cuba Deal Heightens the Spy Threat, W.S.J. (Jan 12, 2015) 2015); Poblete & Poblete, U.S. Cuba policy: Myth v. reality, The Hill (Jan. 26, 2015).

[6] A [fourth] Cuban American . . . joins Trump’s transition team, Diario de Cuba (Dec. 6, 2016); Secretary—John Barsa, Republican National Hispanic Assembly of Virginia; Prieto, The Mark of the Zorro; Cuban Americans in Trump’s Team, OnCuba (Dec. 15, 2016).

[7] Harvard University, Carlos E. Diaz-Rosillo, PhD.

 

 

Additional Details About White House’s Announcement of U.S.-Cuba Reconciliation

White House
White House

On December 17, 2014, President Barack Obama in a nationally televised speech announced the historic agreement with Cuba to restore diplomatic relations as one part of a reconciliation with Cuba. That same day the White House website had (a) “FACT SHEET: Charting a New Course in Cuba;” (b) “Background Conference Call on Policy Changes in Cuba and Release of Alan Gross;” and (c) “Readout of the Vice President’s Calls to the Presidents of Colombia and Mexico on the Administration’s Cuba Policy Changes.”

After reviewing these documents, the post will conclude with observations on some of the points raised in these documents.

“FACT SHEET: Charting a New Course in Cuba”

The introduction to the FACT SHEET, among other things, said, “It is clear that decades of U.S. isolation of Cuba have failed to accomplish our enduring objective of promoting the emergence of a democratic, prosperous, and stable Cuba. . . . It does not serve America’s interests, or the Cuban people, to try to push Cuba toward collapse.  We know from hard-learned experience that it is better to encourage and support reform than to impose policies that will render a country a failed state.  With our actions today, we are calling on Cuba to unleash the potential of 11 million Cubans by ending unnecessary restrictions on their political, social, and economic activities.” (Emphasis added.)

The FACT SHEET then provided the following “Key Components of the Updated Policy Approach:”

“Establishing diplomatic relations with Cuba-

  • The President has instructed the Secretary of State to immediately initiate discussions with Cuba on the re-establishment of diplomatic relations with Cuba, which were severed in January 1961.
  • In the coming months, we will re-establish an embassy in Havana and carry out high-level exchanges and visits between our two governments as part of the normalization process.  As an initial step, the Assistant Secretary of State for Western Hemisphere Affairs will lead the U.S. Delegation to the next round of U.S.-Cuba Migration Talks in January 2015, in Havana.
  • U.S. engagement will be critical when appropriate and will include continued strong support for improved human rights conditions and democratic reforms in Cuba and other measures aimed at fostering improved conditions for the Cuban people. (Emphasis added.)
  • The United States will work with Cuba on matters of mutual concern and that advance U.S. national interests, such as migration, counternarcotics, environmental protection, and trafficking in persons, among other issues.” (Emphasis added.)

“Adjusting regulations to more effectively empower the Cuban people-

  • The changes announced today will soon be implemented via amendments to regulations of the Departments of the Treasury and Commerce.   Our new policy changes will further enhance our goal of empowering the Cuban population.
  • Our travel and remittance policies are helping Cubans by providing alternative sources of information and opportunities for self-employment and private property ownership, and by strengthening independent civil society. 
  • These measures will further increase people-to-people contact; further support civil society in Cuba; and further enhance the free flow of information to, from, and among the Cuban people.  Persons must comply with all provisions of the revised regulations; violations of the terms and conditions are enforceable under U.S. law.”

“Facilitating an expansion of travel under general licenses for the 12 existing categories of travel to Cuba authorized by law-

  • General licenses will be made available for all authorized travelers in the following existing categories: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines. 
  • Travelers in the 12 categories of travel to Cuba authorized by law will be able to make arrangements through any service provider that complies with the U.S. Treasury’s Office of Foreign Assets Control (OFAC) regulations governing travel services to Cuba, and general licenses will authorize provision of such services. 
  • The policy changes make it easier for Americans to provide business training for private Cuban businesses and small farmers and provide other support for the growth of Cuba’s nascent private sector.  Additional options for promoting the growth of entrepreneurship and the private sector in Cuba will be explored.”

Facilitating remittances to Cuba by U.S. persons

  • Remittance levels will be raised from $500 to $2,000 per quarter for general donative remittances to Cuban nationals (except to certain officials of the government or the Communist party); and donative remittances for humanitarian projects, support for the Cuban people, and support for the development of private businesses in Cuba will no longer require a specific license.
  • Remittance forwarders will no longer require a specific license.”

“Authorizing expanded commercial sales/exports from the United States of certain goods and services-

  • The expansion will seek to empower the nascent Cuban private sector.  Items that will be authorized for export include certain building materials for private residential construction, goods for use by private sector Cuban entrepreneurs, and agricultural equipment for small farmers.  This change will make it easier for Cuban citizens to have access to certain lower-priced goods to improve their living standards and gain greater economic independence from the state.”

“Authorizing American citizens to import additional goods from Cuba-

  • Licensed U.S. travelers to Cuba will be authorized to import $400 worth of goods from Cuba, of which no more than $100 can consist of tobacco products and alcohol combined.”

Facilitating authorized transactions between the United States and Cuba-

  • U.S. institutions will be permitted to open correspondent accounts at Cuban financial institutions to facilitate the processing of authorized transactions.
  • The regulatory definition of the statutory term “cash in advance” will be revised to specify that it means “cash before transfer of title”; this will provide more efficient financing of authorized trade with Cuba.
  • U.S. credit and debit cards will be permitted for use by travelers to Cuba.
  • These measures will improve the speed, efficiency, and oversight of authorized payments between the United States and Cuba.”

“Initiating new efforts to increase Cubans’ access to communications and their ability to communicate freely-

  • Cuba has an internet penetration of about five percent—one of the lowest rates in the world.  The cost of telecommunications in Cuba is exorbitantly high, while the services offered are extremely limited.
  • The commercial export of certain items that will contribute to the ability of the Cuban people to communicate with people in the United States and the rest of the world will be authorized.  This will include the commercial sale of certain consumer communications devices, related software, applications, hardware, and services, and items for the establishment and update of communications-related systems.
  •  Telecommunications providers will be allowed to establish the necessary mechanisms, including infrastructure, in Cuba to provide commercial telecommunications and internet services, which will improve telecommunications between the United States and Cuba.”

“Updating the application of Cuba sanctions in third countries-

  • U.S.-owned or -controlled entities in third countries will be generally licensed to provide services to, and engage in financial transactions with, Cuban individuals in third countries.  In addition, general licenses will unblock the accounts at U.S. banks of Cuban nationals who have relocated outside of Cuba; permit U.S. persons to participate in third-country professional meetings and conferences related to Cuba; and, allow foreign vessels to enter the United States after engaging in certain humanitarian trade with Cuba, among other measures.”

“Pursuing discussions with the Cuban and Mexican governments to discuss our unresolved maritime boundary in the Gulf of Mexico-

  • Previous agreements between the United States and Cuba delimit the maritime space between the two countries within 200 nautical miles from shore.  The United States, Cuba, and Mexico have extended continental shelf in an area within the Gulf of Mexico where the three countries have not yet delimited any boundaries.
  • The United States is prepared to invite the governments of Cuba and Mexico to discuss shared maritime boundaries in the Gulf of Mexico”

“Initiating a review of Cuba’s designation as a State Sponsor of Terrorism-

  • The President has instructed the Secretary of State to immediately launch such a review, and provide a report to the President within six months regarding Cuba’s support for international terrorism.  Cuba was placed on the list in 1982.”[1]

“Addressing Cuba’s participation in the 2015 Summit of the Americas in Panama-

  • President Obama will participate in the Summit of the Americas in Panama.  Human rights and democracy will be key Summit themes.  Cuban civil society must be allowed to participate along with civil society from other countries participating in the Summit, consistent with the region’s commitments under the Inter-American Democratic Charter.  The United States welcomes a constructive dialogue among Summit governments on the Summit’s principles.” (Emphasis added.)

“Unwavering Commitment to Democracy, Human Rights, and Civil Society

A critical focus of our increased engagement will include continued strong support by the United States for improved human rights conditions and democratic reforms in Cuba.  The promotion of democracy supports universal human rights by empowering civil society and a person’s right to speak freely, peacefully assemble, and associate, and by supporting the ability of people to freely determine their future.   Our efforts are aimed at promoting the independence of the Cuban people so they do not need to rely on the Cuban state. (Emphasis added.)

The U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance, promote human rights and fundamental freedoms, and support the free flow of information in places where it is restricted and censored.  The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba, and we will encourage reforms in our high level engagement with Cuban officials. (Emphasis added.)

The United States encourages all nations and organizations engaged in diplomatic dialogue with the Cuban government to take every opportunity both publicly and privately to support increased respect for human rights and fundamental freedoms in Cuba. 

Ultimately, it will be the Cuban people who drive economic and political reforms.  That is why President Obama took steps to increase the flow of resources and information to ordinary Cuban citizens in 2009, 2011, and today.  The Cuban people deserve the support of the United States and of an entire region that has committed to promote and defend democracy through the Inter-American Democratic Charter.”

Background Conference Call 

On December 17 two hours before President Obama’s speech to the nation, the White House conducted an hour-long “background” conference call with journalists and seven unnamed senior administration officials regarding these matters.

Among other things, one of the officials said the U.S. expects that “we’ll continue to have strong differences, particularly on issues related to democracy and human rights.  The [U.S.] will continue to promote our values.  We will continue to support civil society in Cuba.  We’ll continue our democracy programming.” In President Obama’s December 16th telephone call with President Raúl Castro, Obama “made clear his intent . . . to continue our advocacy for human rights in Cuba.”

A State Department official stated the U.S. would not reduce its “emphasis on human rights, on democracy, on the importance of civil society. . . . In fact, our emphasis on human rights will be just as strong and we believe more effective under this policy.  We will engage directly with the Cuban government on human rights.”

For example, the State Department official stated a U.S. diplomat in Havana “will be meeting with members of Cuban society and dissidents later today to walk them through the President’s initiatives of today, and to emphasize to them, as well, that their efforts on behalf of democracy and human rights in Cuba not only won’t be forgotten in these initiatives, but will, in fact, take center stage.”

In response to a question as to whether there were discussions with Cuba about “USAID programs that have been pretty controversial in Cuba,” an administration official said U.S. “democracy programming . . . did factor into the discussions [with Cuba].  The Cubans do not like our democracy programming.  They consistently protest those initiatives. . . . [The U.S., however,] made clear that we’re going to continue our support for civil society for the advancement of our values in Cuba.  [This] . . . was an issue of difference that we will continue to have with Cuba, and we fully expect them to raise those issues just as we will raise issues with the Cubans about democracy and human rights.  However, we’re going to do that through a normal relationship.  We’re going to do that through our embassy in Havana.  We’re going to do that through contacts between our various agencies.”[2]

Vice President Biden’s Telephone Calls with Presidents of Colombia and Mexico

The White House reported that Vice President Joe Biden made telephone calls about the new initiatives with Cuba  to President Juan Manuel Santos of Colombia and to President Enrique Pena Nieto of Mexico. After outlining the agreement, Biden told each of them that President Obama intended to attend the Summit of the Americas in Panama next April “as long as Cuban civil society is allowed to participate and human rights and democracy are on the agenda.” In the call to President Nieto, Biden said that the U.S. would initiate discussions with Cuba and Mexico about the unresolved maritime boundary of the Gulf of Mexico.

Conclusion

I concur in most of the FACT SHEET’s assertions about democracy and human rights that suggest that the U.S. will engage and work with the Cuban government to improve the Cuban people’s political, social and economic rights and that the U.S. no longer will seek to impose such rights or values on the Cuban people through covert or “discreet” programs. These statements are the following:

  • (i)  “It does not serve America’s interests, or the Cuban people, to try to push Cuba toward collapse.  We know from hard-learned experience that it is better to encourage and support reform than to impose policies that will render a country a failed state.  With our actions today, we are calling on Cuba to unleash the potential of 11 million Cubans by ending unnecessary restrictions on their political, social, and economic activities.”
  • (ii)  “U.S. engagement will be critical when appropriate and will include continued strong support for improved human rights conditions and democratic reforms in Cuba and other measures aimed at fostering improved conditions for the Cuban people.”
  • (iii) “A critical focus of our increased engagement will include continued strong support by the United States for improved human rights conditions and democratic reforms in Cuba.  The promotion of democracy supports universal human rights by empowering civil society and a person’s right to speak freely, peacefully assemble, and associate, and by supporting the ability of people to freely determine their future.   Our efforts are aimed at promoting the independence of the Cuban people so they do not need to rely on the Cuban state.”
  • (iv) The U.S. “will encourage [such] reforms in our high level engagement with Cuban officials.”

Other statements in the FACT SHEET, however, seems to undercut this benign interpretation: (i) “The U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance, promote human rights and fundamental freedoms, and support the free flow of information in places where it is restricted and censored.  The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba. . . .” (ii) “The U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance, promote human rights and fundamental freedoms, and support the free flow of information in places where it is restricted and censored.  The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba.” [3]

According to the FACT SHEET, “President Obama will participate in the Summit of the Americas in Panama.  Human rights and democracy will be key Summit themes.  Cuban civil society must be allowed to participate along with civil society from other countries participating in the Summit.” The account of the Vice President’s telephone calls, however, seems to add that President Obama intends to attend the Summit of the Americas in Panama next April “as long as Cuban civil society is allowed to participate and human rights and democracy are on the agenda.” I was surprised and disappointed to read that there was a precondition to Obama’s attending the summit: Cuba’s allowing members of its civil society to attend and participate in the Summit. While it may be a good idea to have civil society representatives from all countries, including Cuba, attend and participate, I think it unwise for the U.S. to provide Cuba with a veto on Obama’s attendance if it does not have such representatives there. I hope that this interpretation of the Vice President’s remarks is unfounded.

I am unaware of the details of the dispute about the maritime boundaries of the Gulf of Mexico, but assume that it relates to oil or other resources under the Caribbean.

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[1] Prior posts discussed the legal and political issues of rescinding the designation of Cuba as a “State Sponsor of Terrorism” and the U.S.’ previous concessions that Cuba has provided assurances that it will not commit future acts of terrorism.

[2] On December 20th Secretary of State John Kerry, Secretary of Commerce Penny Pritzker and Treasury Secretary Jacob J. Lew co-authored an article in the Miami Herald. It said the U.S. would have “continued strong support for improved human-rights conditions and democratic reforms in Cuba” and would “continue to implement programs to promote positive change in Cuba.”

[3] The previous democracy/human rights programs of the U.S. Agency for International Development (USAID) and the Department of State will be part of a subsequent post about the recent controversy about Cuba’s cancellation of n “open-microphone” event and arrests of its organizers.

The U.S. Has Conceded Many Reasons Why Cuba Has Provided Assurances That It Will Not Support Future Acts of International Terrorism

As mentioned in a prior post, the U.S. since December 17, 2014, has been investigating whether it may rescind the Department of State’s designation of Cuba as a “State Sponsor of Terrorism” under provisions of Section 6 (j) (4) of the Export Administration Act (50 U.S.C. § 2405(j)(4)). That statute allows any president to make such a rescission by submitting to Congress, at least 45 days in advance, “a report justifying the rescission and certifying that (i) the government concerned has not provided any support for international terrorism during the preceding six-month period; and (ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.” (Emphasis added.)

Cuba has been put into the “State Sponsor” designation every year since 1982, and this blogger has read and reviewed all of the State Department annual terrorism reports that are available online (1996-2013). The five most recent reports (2009-2013) have been subjected to detailed analysis in blog posts with the conclusion that said designations of Cuba are absurd, ridiculous, stupid and cowardly. Those are the posts covering the reports for 2009201020112011 (supplement)2012,  2013, 2013 (supplement).

One of the reasons why those designations are not justified is a collection of U.S. admissions in these very reports that in essence say that Cuba already “has provided assurances that it will not support acts of international terrorism in the future,” one of the statutory grounds for rescission of the designation. Here are at least some of those admissions, the details of which can be found in the previously mentioned blog posts:

  • In 2001 (after 9/11) Cuba “signed all 12 UN counterterrorism conventions as well as the Ibero-American declaration on terrorism.” After 9/11, “the Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates.”
  • “Cuba no longer supports armed struggle in Latin America and other parts of the world.”
  • “There was no evidence that Cuba had sponsored specific acts of terrorism,” and “no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.”
  • In 2010 the Government of Cuba was “aware of the border integrity and transnational security concerns posed by such transit and investigated third country migrant smuggling and related criminal activities. In November [2010], the [Cuban] government allowed representatives of the [U.S.] Transportation Security Administration to conduct a series of airport security visits throughout the island.”
  • In 2010 “the Cuban government continued to aggressively pursue persons suspected of terrorist acts in Cuba.”
  • In 2010 the Government of Cuba “maintained a public stance against terrorism and terrorist financing.”
  • There was “no evidence of terrorist-related money laundering or terrorist financing activities in Cuba” and “no evidence of direct financial support for terrorist organizations by Cuba.”
  • Cuba has adopted laws permitting the tracking, blocking, or seizing terrorist assets (Cuba’s Law 93 Against Acts of Terrorism and Instruction 19 of the Superintendent of the Cuban Central Bank).
  • After the multilateral “Financial Action Task Force (FATF) identified Cuba as “having strategic AML/CFT [Anti-Money Laundering/Combating the Financing of Terrorism] deficiencies,” Cuba in 2012 “became a member of the Financial Action Task Force of South America against Money Laundering [GAFISUD], a FATF-style regional body. With this action, Cuba has committed to adopting and implementing the FATF Recommendations.” Thereafter Cuba “officially engaged with the FATF and has also attended [the meetings of the relevant regional organizations] CFATF [Caribbean Financial Action Task Force] and GAFISUD.”

Although not mentioned in the U.S. reports, FATF in June 2014 said, “ Cuba has made significant progress to improve its AML/CFT regime.” Four months later (October 2014), “FATF welcomes Cuba’s significant progress in improving its AML/CFT regime and notes that Cuba has established the legal and regulatory framework to meet its commitments in its action plan. . . . Cuba therefore is no longer subject to the FATF’s monitoring process. . . . Cuba will work with GAFISUD to further strengthen its AML/CFT regime.”

Also not mentioned in the U.S. terrorism reports was the CIA’s judgment in August 2003 that ‘We have no credible evidence, however, that the Cuban government has engaged in or directly supported international terrorist operations in the past decade, although our information is insufficient to say beyond a doubt that no collaboration has occurred.”

In addition to these U.S. admissions, Cuba publicly has stated that its “territory has never been and never will be utilized to harbor terrorists of any origin, nor for the organization, financing or perpetration of acts of terrorism against any country in the world, including the [U.S.]. . . .  The Cuban government unequivocally rejects and condemns any act of terrorism, anywhere, under any circumstances and whatever the alleged motivation might be.”

Although not mentioned in the U.S. reports, in 2002, the government of Cuba proposed to the U.S. the adoption of a bilateral agreement to confront terrorism, an offer that it reiterated in 2012, without having received any response from the U.S.

 Conclusion

As a result, I am confident that the Department of State’s investigation will conclude that Cuba “has provided assurances that it will not support acts of international terrorism in the future,” one of the statutory grounds for rescission of the designation; that the other ground–Cuba “has not provided any support for international terrorism during the preceding six-month period”—will be satisfied; and that the President will decide, presumably this June, to rescind the designation effective 45 days thereafter.

Then the focus will shift first to Congress to see whether it will adopt a joint resolution against the rescission. If it does, presumably President Obama will veto the joint resolution. Then focus would return to Congress to see if there are the necessary two-thirds votes in each chamber to override the veto.

U. S. citizens supporting the U.S.-Cuba reconciliation should follow this issue closely and lobby their Senators and Representatives to oppose any measure to countermand a presidential decision for rescission.

Legal and Political Issues Regarding U.S. Rescinding Designation of Cuba as a “State Sponsor of Terrorism”

Under the December 17th U.S.-Cuba agreements, the U.S. is obligated to review whether the U.S. should rescind its designation of Cuba as a “State Sponsor of Terrorism” under U.S. law. This review is to be completed with a report to the President within six months (or by June 17, 2015). The President already has instructed Secretary of State John Kerry to “immediately launch” that review.

 Commentary by the Department of State

Secretary of State            John Kerry
Secretary of State John Kerry
Assist. Sec. State Roberta Jacobson
Assist. Sec. State    Roberta Jacobson

The same day Secretary of State Kerry announced that he already “had asked my team to initiate a review of Cuba’s designation as a State Sponsor of Terrorism.”

The next day, December 18th, Assistant Secretary of State, Bureau of Western Hemisphere Affairs, Roberta S. Jacobson, held a press briefing on the many issues raised by the U.S.-Cuba rapproachment. She said the Bureau had “begun already – the process that we need to do under the law on the question of the state sponsor of terrorism listing, which has been in place since 1982.”

The Assistant Secretary added, “we’re not going to prejudge the outcome of the process we’ve just undertaken. . . . We’re going to undertake this review. We’re going to take it where the facts lead us on this. . . . At the end of that process, were Cuba to be removed from the list, there are a series of things that get taken off, some forms of sanction that get taken off. Although in Cuba’s case, I will say there are some overlapping . . . of things that may have been part of the state sponsor of terrorism list, and it may subsequently have been part of the Libertad Act or other legislation that deals with Cuba.”

In addition, she said,“[T]he law is fairly specific. . . . We have to review the record of Cuba over the last six months and ensure that they have not been participants or supported acts of international terrorism over the last six months. We have to look at whether they have renounced the use of terrorism. We have to look at their ratification of international instruments against terrorism. . . . I would have to look and check to see if there are other things that are in the law. . . . We then have to send any report that has conclusions on those subjects [to the President for his approval and transmittal] to the Congress, where it has to remain for 45 days. It’s an informing of Congress, not a request for approval or denial. It’s just an informing.”

Another point on the legislative process for the hypothetical recommended termination of such a designation was made at the November 17th daily press briefing. The Departmental spokesperson said, “The relevant statutes also provide that . . . within 45 days after the receipt of the report from the President [deciding for rescission], the Congress would need to enact a joint resolution on the matter prohibiting this in order for it not to happen.” However, this statement is incomplete and, therefore, erroneous, as discussed below.  While joint resolutions like bills have to be passed by both houses of Congress, they then have to be submitted to the president for signature or veto. In this hypothetical situation, any such joint resolution would be vetoed by the president.

The Merits of Past Designations of Cuba as a “State Sponsor

This blog already has concluded that such designation is absurd, ridiculous, stupid and cowardly for 2009, 2010, 2011, 2011 (supplement), 2012,  2013, and 2013 (supplement). I believe that any rational person would come to the same conclusion as has the New York Times Editorial Board this October and December.

That, however, is not the end of the story.

Statute Regulating Rescission of a “State Sponsor” Designation

As Assistant Secretary Jacobson alluded to, under provisions of Section 6 (j) (4) of the Export Administration Act (50 U.S.C. § 2405(j)(4)) the following two alternative restrictions are imposed on any Administration’s rescission of any such designation.

First, the President may rescind such a designation by submitting, before the rescission takes effect, a report to Congress certifying that “(i) there has been a fundamental change in the leadership and policies of the government of the country concerned; [and] (ii) that government is not supporting acts of international terrorism; and (iii) that government has provided assurances that it will not support acts of international terrorism in the future.” This is not relevant for Cuba because there has not been “a fundamental change of leadership” in Cuba.

Second, and alternatively, the President may rescind such a designation by submitting to Congress, at least 45 days in advance, “a report justifying the rescission and certifying that (i) the government concerned has not provided any support for international terrorism during the preceding six-month period; and (ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.” Assistant Secretary Jacobson’s comments confirm that this is the relevant option for the Administration, and a future post will summarize concessions in the U.S.’ purported justifications for its prior designations that instead support the conclusion that Cuba ¨has provided assurances that it will not support acts of  international terrorism in the future.¨

Such a report to Congress is merely an “informing” function, as the Assistant Secretary mentioned. But if Congress disagrees with the President’s decision to remove a country from the list, it could seek to block the rescission through a bill or a joint resolution.

Given the Republicans control of both houses of the Senate (54 of 100 with 44 Democrats and 2 Independents) and the House (247 to 188 Democrats) in the 114th Congress (2015-2017) and the belligerent opposition of some Republicans like Senator Marco Rubio to the new U.S.-Cuba path to reconciliation, such a legislative attempt to block the removal, in my opinion, can be expected.

But any such attempt, by bill or joint resolution, has to be submitted to the president for approval or veto. Obama presumably would veto any such measure, thereby requiring under Article I, Section 7 of the Constitution each house of Congress to obtain a two-thirds vote to override the veto. The Republicans by themselves will not have enough votes to override. If the Republicans had total party unity in such an effort, they would need 13 Democratic Senators and 43 Democratic Representatives to join them to overturn such a presidential veto. I think it unlikely they could obtain those extra votes. Let us hope they are not able to obtain such a super majority. We should lobby the Democratic Senators and Representatives (and some Republicans, like Senator Flake of Arizona) not to do so.

Conclusion

Stay tuned for future developments on the issue of rescinding the U.S. designation of Cuba as a “State Sponsor of Terrorism.” Be ready to lobby senators and representatives to resist any efforts to countermand any rescission.

Report for dwkcommentaries–-2014

This blog, which started on April 4, 2011, reports the following activity through December 31, 2014:

YEAR POSTS COMMENTS

(by dwkcommentaries)

VIEWS
2011 190   26  9,189
2012 179 170 51,164
2013   86 708 49,082
2014 138   47 58,602
TOTAL 593 951 168,037

The busiest day for 2014 was December 11 with 321 views; for all time, 361 on December 13, 2012. For 2014 as a whole the viewers came from 183 countries with most from the U.S.A. followed by the Canada and the United Kingdom. This blog has 516 followers (Facebook, 324; direct, 154; Tumblr, 14; and commentators, 24).

The following were the most popular posts in 2014:

As indicated in detail in the Pages section on the right side of the home page, the posts and comments for 2011-2014 fall into the categories as stated in the following alphabetical Lists of Posts to dwkcommentaries-Topical:

  • Cuba [history and politics]
  • Education [my post-secondary education]
  • El Salvador [history and politics]
  • Law (Criminal Justice)
  • Law (International Criminal Court)
  • Law (Refugee & Asylum)
  • Law (Treaties)
  • Law (U.S. Alien Tort Statute)
  • Law (U.S. Torture Victims Protection Act)
  • Lawyering [my practice of law]
  • Miscellaneous
  • Personal [my personal background]
  • Religion [predominantly Christianity]
  • United States (History)
  • United States (Politics)

The blogger would appreciate receiving substantive comments on his posts, including corrections and disagreements.

U.S. and Cuba Embark on Reconciliation

December 17, 2014, was a historic day in the relations between the United States of America and Cuba. The day started with Cuba’s release of Alan Gross, a U.S. citizen, from a Cuban prison and his return to his home in the U.S. and of the similar release and return to the U.S. of an unnamed U.S. spy . Nearly simultaneously the U.S. released three Cuban spies from its prison..

President Obama’s Speech

President Barack Obama
President Barack Obama

At noon (EST) President Obama delivered a televised speech to the nation and the world about the U.S, and Cuba embarking on a new path of reconciliation. He opened with the bold proclamation,”Today the United States of America is changing its relationship with the people of Cuba.  After noting the prisoner exchanges, he said:

First. he had instructed Secretary of State John Kerry “to immediately begin discussions with Cuba to reestablish diplomatic relations” with an embassy in Havana. “Where we can advance shared interests, we will. . . . Where we disagree, we will raise those differences openly–as we will continue to do on issues related to democracy and human rights in Cuba.”

Second, the President had “instructed Secretary Kerry to review Cuba’s designation as a State Sponsor of Terrorism . . . to be guided by the facts and the law.”

Third, we are taking steps to increase travel, commerce, and the flow of information to and from Cuba.”

Fourth, the U.S. is “significantly increasing the amount of money that can be sent to Cuba, and removing limits on remittances that support humanitarian projects, the Cuban people, and the emerging Cuban private sector.” The U.S. is also facilitating “authorized transactions [with Cuba], . . including U.S. financial institutions opening accounts with their Cuban counterparts and increased U.S. exports as well as  “increased telecommunications connections” with Cuba.

Fifth, the U.S. embargo against Cuba requires congressional action, and the President looks forward to  “engaging Congress in an honest and serious debate about lifting the embargo.”

Sixth, the President also acknowledged that Cuba was releasing “a substantial number of prisoners” who had been jailed for political reasons, was increasing internet access to its citizens and its engagement with international institutions.

Nevertheless, the President acknowledged that there would not be “a transformation of Cuban society overnight.” He was convinced, however, “that through a policy of engagement we can more effectively stand up for our values and help the cuban people help themselves.”

Obama near the end of his speech said, “To the Cuban people, America extends a hand of friendship.” The U.S. “wants to be a partner in making the lives of ordinary Cubans little bit easier, more free, more prosperous.”

Cuban President Raul Castro’s Speech

President Raúl Castro
President Raúl Castro

Nearly simultaneously Cuban President Raúl Castro made a televised speech to his country about the new path for Cuba and the U.S.  After acknowledging the prisoner exchange and the release of some Cuban political dissidents from prison, he said the countries had “agreed to the restoration of diplomatic relations.” Unfortunately the U.S. embargo will not be ended immediately, but will be modified until Congress can enact a repeal.

The two countries will take mutual steps “to improve bilateral climate and move toward normalization of ties . . . based on the principles of international law and the [U.N.] Charter.” Cuba has also reaffirmed its willingness to discuss all issues of democracy, human rights and foreign policy. Cuba has urged the U.S. “to remove obstacles that prevent or restrict th e links between our peoples, families and citizens . . ., in particular those relating to travel, direct mail and telecommunications.”

“Progress in sustained exchanges show that it is possible to find solutions to many problems. . . . [W]e must learn the art of living, in a civilized manner, with our differences.”

Conclusion

These historic agreements raise many issues that will be discussed in subsequent posts.

 

 

New York Times Reiterates Call for Ending U.S. Designation of Cuba as a “State Sponsor of Terrorism”

On December 15th a New York Times editorial, “Cuba’s Economy at a Crossroads,” called for the U.S. to end its designation of Cuba as a “State Sponsor of Terrorism.” This recommendation first was made on October 11th in the Times’ initial editorial in its series “Cuba: A New Start.”

Summary of the Editorial

Now, however, ending the designation is seen as a way the U.S. could assist a struggling Cuban economy. Surprisingly this editorial does not mention ending the U.S. embargo of the island as another, and more important, way the Cuban economy could be aided by the U.S. Instead the Times makes a vague suggestion of the U.S.’ “relaxing sanctions through executive authority and working with the growing number of lawmakers who want to expand business with Cuba.”

Most of the editorial is devoted to discussing the many problems of the Cuban economy.

The 1959 Cuban Revolution’s “[c]ommunism brought an ever more anemic and backward economy, one propped up largely by Moscow. But after the Soviet Union collapsed in 1991, so did Cuba’s economy.” After that collapse, Cuba found Venezuela as a “new benefactor” that provided “heavily subsidized oil” to the island, but now that country’s “worsening economic and political crisis” threatens that subsidy.

Low wages and poor prospects have forced many Cubans to leave the island “in recent years in search of a better life.” This could be accelerated by the elimination of the country’s two-currency system, which the government plans to do.

“The country’s birthrate is declining, while its elderly are living longer.” Couple these facts with the exodus of working-age citizens presents Cuba with an enormous demographic challenge.

“The agricultural sector remains stymied by outdated technology and byzantine policies. A foreign investment law Cuba’s National Assembly approved in March has yet to deliver a single deal.”

Cuba’s leaders have adopted various measures to reform the economy, but the “pace [of economic reform] has been halting, with plenty of backtracking from the government’s old guard.”

Yet these reforms have created a “small but growing entrepreneurial class.” All of them “struggle with the [Cuban] bureaucracy, since they are unable to import legally items as basic as mattresses and pillows. Bringing items from the United States is onerous and complicated by American sanctions.” Changes in U.S. policies could make “it easier for Americans to provide start up-capital for independent small businesses. Doing that would empower Cuban-Americans to play a more robust role in the island’s economic transformation. More significantly, it would gradually erode the Cuban government’s ability to blame Washington for the shortcomings of an economy that is failing its citizens largely as a result of its own policies.”

Continuing U.S. antagonism, on the other hand, “is only helping the old guard.”

Reactions

I concur in the Times’ call for ending the U.S. designation of Cuba as a “State Sponsor of Terrorism.” It is an unfounded, stupid, absurd action that is only counter-productive as has been argued in posts in 2010, 2011, 2012 (with supplement), 2013 and 2014.

But I do not see ending this policy as the linchpin for the U.S.’ helping the Cuban economy. Instead it is ending the embargo, which the Times on October 11th recommended, but which is not mentioned in the latest editorial.

Moreover, I think the latest editorial understates the troubled state of the Cuban economy even though a prior post expressed optimism about Cuba’s attracting $8.0 billion of foreign investment for the Mariel port’s industrial park now under construction. Further reflection raises the following points that question that optimism:

  • First, the Cuban economy by itself is obviously unable to afford to purchase the many commodities that presumably will be unloaded from the new super-container ships that will be able to cross the expanded Panama Canal.
  • Second, for the commodities to go elsewhere will require the unloading of the super-container ships at Mariel and then reloading those commodities in smaller container vessels to go to the major countries on the northern and eastern sides of the South American continent: Venezuela, Brazil, Argentina, Uruguay and Paraguay. How big are those markets?
  • Third, presumably the major Latin American countries with coasts on the Pacific Ocean like Mexico, El Salvador, Costa Rica, Colombia, Ecuador, Peru and Chile will not be markets for commodities transshipped from Mariel.
  • Fourth, unless there is U.S.-Cuba reconciliation, the largest potential market for such transshipment, the U.S., presumably would not be importing commodities from the Mariel port.

Similar skepticism about Cuba’s ability to attract foreign investment for other reasons have been voiced by foreign investment experts. The Inter-American Dialogue, which is the leading U.S. center for policy analysis, exchange, and communication on Western Hemisphere affairs, has provided the following four such skeptics.

Matthew Aho, consultant in the corporate practice group of Akerman Senterfitt in New York, said, “While the [Cuban] rhetorical message was positive: ‘Cuba is open for business,’ little has changed to improve Cuba’s general investment climate, and foreign companies there report few changes to their dealings with Cuban counterparts. In fact, many businesses say the same bottlenecks, delays and idiosyncrasies that have long frustrated investors have been exacerbated recently by growing wariness among major banks to handle legitimate Cuba-related transactions.” He added, “While Cuba clearly has potential, most mainstream investors will steer clear until the Cubans define clearer rules of the road and improve their track record with new and existing partners.”

According to José R. Cárdenas, director of Visión Américas in Washington, “Eight billion dollars is a wildly exaggerated figure that Cuba has no chance of ever realizing. [Foreign investors] demand such things as transparency, legal guarantees and predictability, which the Cuban government is incapable of providing. Witness the widely publicized ordeals of Canadian businessman Cy Tokmakjian and Englishman Stephen Purvis, among others, who wound up in incarcerated in Cuba’s Kafkaesque legal system for unclear reasons. There may as well be a ring of flashing red lights surrounding the island warning foreign investors of the exorbitant risks to doing business in Cuba. . . . Any progressing economy needs the freedom to innovate, take risks and guarantee that one will reap the benefits of their efforts. Cuba, like China, cannot ultimately offer such conditions. As long as the primacy of the Communist Party remains the Cuban lodestar, the country will continue to head into an uncertain future.”

Scott J. Morgenstern, associate professor and director of the Center for Latin American Studies at the University of Pittsburgh also was skeptical. He said, “Cuba must create new opportunities for private employment. Thus, while the reforms are making some investment possible, investors will not find wide-open markets and streamlined bureaucratic procedures. In many areas, there are severe limits concerning where people can invest and the types of businesses they can open. Currency convertibility will also be a critical issue for any business; currently there are two currencies, only one of which is convertible. Foreigners, formally, are only allowed to use the convertible currency, and the official exchange rates distort the currency values. Reforms are promised, but the uncertainty will likely discourage some investors. One other important concern for investors is the size of the Cuban domestic market. The country is attracting several million tourists per year, and many Cubans do receive financial support from abroad, but purchasing power is still limited.”

Carlos A. Saladrigas, chairman of the Cuba Study Group and Regis HR Group offered these comments. “Cuba’s economic reforms so far have been too little, too late and too timid to result in significant economic performance . . . . [Cuba’s] continuing economic mismanagement, the numerous distortions in Cuba’s economic and political systems, a stubborn ideology, an obtuse and weighty bureaucracy and the fears of change harbored by Cuba’s leaders all play even more heavily in keeping Cuba’s economy from reaching its full potential. Cuban leaders continue to expect ‘silver bullet solutions’ to their economic woes. The port of Mariel is a perfect example. Pinning hopes of an economic recovery on mega-projects or a few foreign investments take attention away from the core distortions and inefficiencies plaguing the entire domestic economy. Fear of change and ideological rigidity can be clearly seen in Cuba’s eight-month-old foreign investment law. Since the law was passed, Cuban authorities still don’t have any significant major investment projects to report. The foreign investment law was a great missed opportunity to really send a message to the world, and specifically to the United States, that Cuba is ready for business. Such a message would have added great momentum to the anti-embargo movement, which is building momentum in the United States and in Miami. Yet, they chose more of the same, leaving arbitrariness, lack of clarity and burdensome regulations.”

Similar skeptical opinions about the Cuban efforts to develop the Mariel port were expressed by Richard Feinberg, the Brookings Institution’s Nonresident Senior Fellow, Foreign Policy, Latin American Initiative. He said, “the industrial sites are not yet fully leveled nor are they hooked up to basic infrastructure! But the problems run much deeper: previous Cuban efforts to launch free trade zones floundered on the requirement of hiring expensive labor through government employment agencies, and the continuing closure of the most logical export market, the nearby [U.S.]. Cuba’s newly revised foreign investment laws appear to allow investors greater flexibility in setting wage scales, but this potentially promising reform, and its impact on labor costs, remains to be fully tested in practice.”

Finally, Miguel Coyula, a retired Cuban government official on a trip to Washington before returning home to the island, stated ““Mariel is the most promoted place in Cuba, with special development zones for investors. But soon it’ll be a year after the opening of Mariel, and there is absolutely nothing. Even the container terminal in Havana was moved to Mariel to give it a sense of activity, but no one will invest there. For one thing, potential foreign investors in Mariel don’t like the fact that they can’t hire employees on their own, but instead must pay a government employment agency in dollars for that labor. The agency, in turn, pays workers in Cuban pesos. That’s because the Castro government wants to avoid creating a class of highly paid Cubans who work for foreign companies, ‘but inequalities are there whether you like it or not.’”