On June 25, 2015, the U.S. Department of State released its 2014 Country Reports on Human Rights Practices.
In introducing the report, U.S. Secretary of State John Kerry said, “The message at the heart of these reports is that countries do best when their citizens fully enjoy the rights and freedoms to which they are entitled. This is not just an expression of hope. This is a reality, and it is proven out in country after country around the world. After all, we live in a time when access to knowledge and openness to change are absolutely essential. And in such an era, no country can fulfill its potential if its people are held back, or more so if they are beaten down by repression.”
On the other hand, Kerry observed, “There is nothing sanctimonious in this. There is zero arrogance. And we couldn’t help but have humility when we have seen what we have seen in the last year in terms of racial discord and unrest. So we approach this with great self-awareness. But we also understand that when human rightsis the issue, every country, including the United States, has room to improve. And the path to global respect always begins at home.”
The U.S. cares, according to Kerry, “because respect for human rights provides the truest mirror that we have of ourselves, the most objective test of how we have come over the centuries, and how far we still have to go. It is a yardstick by which we can measure life itself. I realize that that is placing a lot of weight on what is, after all, just a report, but I think the description fits. And I hope it will inspire us – people here and around the world – between this year and next to take more steps, hopefully giant steps, in the direction of greater justice, wider decency, and peace.”
Following the Secretary’s remarks, Tom Malinowski, Assistant Secretary of State for Democracy, Human Rights and Labor, added comments. He said, “the Human Rights Reports demonstrate America’s commitment to human rights, and they’re a tool in their own right in the advancement of those rights. They cover 199 countries and entities. They strive to provide a comprehensive and factual review of conditions around the world. They are also the most widely read document that we put out at the State Department every single year. And I think that just reminds us that what America says about human rights around the world – just the words – matters greatly.”
Malinowski also addressed the section of the report on Cuba. He said, “But on Cuba . . ., one of our sayings here is that engagement is not the same thing as endorsement. . . . [It] should be crystal-clear, that our opening to Cuba . . . was designed because we felt that the new policy is better suited to promoting human rights in Cuba than the old policy. . . . [The] opening was associated very closely with the release of over 50 political prisoners in Cuba. The situation needs to get far better before any of us can say that we are where we want to be, but we feel that what we have done is to . . . take away the Cuban Government’s ability to say that the problems on the island are the fault of the United States and the embargo, and to put the focus where it belongs – on their actions and on their policies.”
Malinowski continued, “[We] did see a fairly dramatic decision by the Cuban Government to release the vast majority of political prisoners . . . [about whom] we had been raising concern . . . for some time. We have not yet seen a letup in the kind of day-to-day harassment that civil society activists face in Cuba. Short-term arrests, unfortunately, have continued. I am not particularly surprised about that. We, in fact, I think, expected that precisely because the Cuban Government would be nervous about the implications of the opening, that in the short term they might actually intensify a crackdown. We very firmly believe that in the long run . . . this is going to put us in a much stronger position to promote human rights and to stand by civil society on the island.”
The Report on Cuban Human Rights
The Executive Summary of the extensive report on Cuban human rights for 2014 stated, “Cuba is an authoritarian state led by Raul Castro, who is president of the council of state and council of ministers, Communist Party (CP) first secretary, and commander in chief of security forces. The constitution recognizes the CP as the only legal party and “the superior leading force of society and of the state.” A CP candidacy commission preapproved all candidates for the February 2013 uncontested National Assembly elections, which were neither free nor fair. The national leadership, including members of the military, maintained effective control over the security forces.”
“The principal human rights abuses included those involving the abridgement of the ability of citizens to change the government and the use of government threats, extrajudicial physical assault, intimidation, violent government-organized counter-protests against peaceful dissent, and harassment and detentions to prevent free expression and peaceful assembly.”
“The following additional abuses continued: short-term, arbitrary unlawful detentions and arrests, harsh prison conditions, selective prosecution, denial of fair trial, and travel restrictions. Authorities interfered with privacy, engaging in pervasive monitoring of private communications. The government did not respect freedom of speech and press, restricted internet access, maintained a monopoly on media outlets, circumscribed academic freedom, and maintained some restrictions on the ability of religious groups to meet and worship. The government refused to recognize independent human rights groups or permit them to function legally. In addition the government continued to prevent workers from forming independent unions and otherwise exercising their labor rights.”
“Most human rights abuses were committed by officials at the direction of the government. Impunity for the perpetrators remained widespread.”
More details are provided in the report itself under the following uniform structure:
1. Respect for the Integrity of the Person, Including Freedom from:
A. Arbitrary or Unlawful Deprivation of Life
C. Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment
D. Arbitrary Arrest or Detention
E. Denial of Fair Public Trial
F. Arbitrary Interference with Privacy, Family, Home, or Correspondence
2. Respect for Civil Liberties, Including:
A. Freedom of Speech and Press
B. Freedom of Peaceful Assembly and Association
C. Freedom of Religion
D. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons
3. Respect for Political Rights: The Right of Citizens to Change their Government
4. Corruption and Lack of Transparency in Government
5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
6. Discrimination, Societal Abuses, and Trafficking in Persons
7. Worker Rights
A.Freedom of Association and the Right to Collective Bargaining
B. Prohibition of Forced or Compulsory Labor
C. Prohibition of Child Labor and Minimum Age for Employment
D.Discrimination with Respect to Employment or Occupation
E. Acceptable Conditions of Work
This report again demonstrates the State Department’s extensive efforts to collect and report information about human rights conditions in 199 countries of the world, including Cuba. As an observer of such matters over the last years, I believe their reports to be trustworthy.
I, therefore, accept their criticism of Cuban human rights. On the other hand, I believe that everyone needs to understand the well-founded fear that Cuba has of the U.S. as a vastly larger and superior (in so many ways) country that has expressed and acted with hostility toward Cuba over the last 50-plus years. In that context, it is easier to understand, but not applaud, their human rights failures. In my opinion, if and when a sense of trust develops between the two countries as a result of the process of normalization, then I anticipate and hope that Cuba will gradually improve the human rights covered by this report.
 Cuban artist, Tania Bruguera, was arrested last December over a planned “open-mike” event in Havana’s Revolutionary Square. Since then she has been detained four more times and has been barred from leaving the country while facing charges of disturbing the public order, resisting arrest and inciting criminal behavior. Bruguera’s most recent arrests occurred in the middle of Cuba’s biggest art festival — the Havana Biennial — with many of the world’s leading gallery owners and collectors in town. (Miroff, Cuban artist pushed boundary between art and politics, and pays a price, Wash. Post (June 26, 2015).)
On December 30th Cuban authorities cancelled an open-microphone event at Havana’s Plaza de la Revolución and detained or arrested its organizers. The principal detainee was Tania Bruguera, a Cuban citizen who lives on the island and in Miami, Florida and who is a performance artist. She intended to provide an open-microphone for any attendee to give a one-minute statement on his or her opinions and recommendations for Cuba’s future.
This cancellation and related arrests have provoked strong condemnation from the U.S. Department of State and major U.S. newspapers. Initially I was persuaded by such condemnations and worried that they would foster U.S. political resistance to recent U.S.-Cuba reconciliation. After further investigation, however, I have come to reject such harsh condemnations. In order to understand this conclusion, this post will examine what happened in Havana, the reactions from the State Department and western newspapers and then the reasons why I reject such condemnations.
Cuban Events Relating to the Open-Mike Performance
On December 30th Cuban performance artist Tania Bruguera was planning to stage an open-microphone event, “Yo tambien exijo,” [I also demand],” in Havana’s Plaza de la Revolución, the huge public square usually reserved for large government-sponsored events. (The photo on the top shows an empty Plaza while the other one has a large crowd in attendance.) She planned to give any attendee a one-minute platform to discuss his or her opinions about, and recommendations for, Cuba’s future. She told the U.S. National Public Radio that she wanted “people in the street [to] come and share . . . [their] doubts, [their] happiness – whatever [they] think right now about what is happening in Cuba, and what is the idea of Cuba that [they] want?”
Bruguera was proceeding with these plans even though her application for a permit had been denied and even though the Government’s National Fine Arts Council had told her that it would not be providing her with institutional support for the event as proposed because it “would negatively impact public opinion, in a key time of negotiation between the Cuban government and the government of the United States.”
On December 30th the Council issued a public statement documenting its decision not to support the event. It said, “Under current circumstances, it is unacceptable performing this purported performance in the symbolic space of the Plaza of the Revolution, especially considering the extensive media coverage and manipulation that has been in the media broadcasters counterrevolution.”
The Council, however, also stated that Bruguera had rejected its suggestions on conducting the event subject to the following conditions: (a) move the event to the National Museum of Fine Arts, a prestigious cultural institution in the field of visual arts; (b) the Museum would be freely open to diverse people of dissimilar social sectors; (c) the government would “reserve the right” to bar people whose “sole interest is to be provocative;” and (d) the performance would be limited to 90 minutes.
Just hours before the planned event, Cuban police detained, on public disorder charges, Bruguerea and at least three leading dissidents: Antonio Rodiles, the head of Citizens Demand for Another Cuba; Eliezer Avila, the leader of the opposition group Somos Mas; and Reinaldo Escobar, a senior editor of a dissident website 14medio.com. Escobar’s spouse, Blogger Yoani Sanchez, was also detained at her home by police. There were reports that up to 50 members of the political opposition were detained.
Ms. Bruguera was released the next afternoon along with most of the political dissidents. She then announced she would hold a news conference and public gathering on the Malecón, Havana’s coastal highway, at the memorial to the Maine, the American battleship that sank in Havana Harbor in 1898. Cuban agents, however, stopped her en route to the gathering and took her away for interrogation. She was told she could not leave Cuba “for two or three months” while the case was being processed. Again she was released.
However, on January 1, 2015, she was arrested again along with several dissidents when they went to a jail to demand the release of 15 additional dissidents who had been arrested on the day of the planned event. The next day (January 2) she was released.
Reactions to the Cancelation and Arrests
On December 30th, the U.S. Department of State issued a Press Statement saying the U.S. was “deeply concerned about the latest reports of detentions and arrests by Cuban authorities of peaceful civil society members and activists . . . [and] strongly condemn[ed] the Cuban government’s continued harassment and repeated use of arbitrary detention, at times with violence, to silence critics, disrupt peaceful assembly and freedom expression, and intimidate citizens.”
The Statement added, “Freedoms of expression and peaceful assembly are internationally recognized human rights, and the Cuban government’s lack of respect for these rights, as demonstrated by today’s detentions, is inconsistent with Hemispheric norms and commitments. We urge the Government of Cuba to end its practice of repressing these and other internationally protected freedoms and to respect the universal human rights of Cuban citizens.”
The Statement concluded that the U.S. has “always said we would continue to speak out about human rights, and as part of the process of normalization of diplomatic relations, the United States will continue to press the Cuban government to uphold its international obligations and to respect the rights of Cubans to peacefully assemble and express their ideas and opinions, just like their fellow members of civil society throughout the Americas are allowed to do.”
Also on December 30th Assistant Secretary of State Roberta Jacobson tweeted “Freedom of expression remains core of US policy on #Cuba; we support activists exercising those rights and condemn today’s detentions.”
These views were shared by the New York Times’ December 30th editorial, “Cuba Turns Off Critics’ Open Mike.” It said, “By stifling critical voices, the Cuban government is showing its unwillingness to tolerate basic freedoms most citizens in the hemisphere enjoy.”
The Times’ editorial continued, “This move, unfortunately, will amplify the criticisms of those who opposed Mr. Obama’s historic shift on Cuba policy. Heavy-handed tactics by the Castro government will give them ammunition next year, when Republicans will control both chambers of Congress, to stymie the Obama administration’s steps to ease the embargo through executive authority and dim the prospects of legislative change to pare back the web of sanctions Washington imposes on Cuba. That result would be a shame and, in the long run, self-defeating for Havana.”
The editorial on the same subject by the Washington Post, which earlier opposed the December 17th reconciliation, was in the same vein. It stated, “[T]he Castro regime has been left free to continue stifling dissent, while reaping the economic and political benefits of Mr. Obama’s ‘engagement.’ Raúl Castro declared in a speech shortly after the agreement was announced that the Communist political system would remain unchanged. Two weeks later, not one of the 53 political prisoners the White House said would be freed — about half of the total identified by human rights activists — has been reported released.”
The Washington Post editorial concluded, “Cubans who seek basic freedoms continue to be arrested, harassed and silenced, while the regime celebrates what it portrays as ‘victory’ over the United States. If support for the Cuban people and American values is supposed to be the point of this process, then it is off to a very poor start.”
People opposed to the resumption of relations with Cuba were quick to hold up the arrests as a sign that the Castro government had no intention of pursuing political change and would reap only economic benefits from Mr. Obama’s moves. For example, Senator Marco Rubio, Republican of Florida and a Cuban-American, tweeted, “Castro govt. arrests of activists in #Havana exposes the folly of new Obama #CubaPolicy.”
Rejection of the Condemnation
As a long-time member of the American Civil Liberties Union and as a pro bono attorney in one of its important free speech cases, I am a strong believer in the importance of free speech. Therefore, I initially concurred in the State Department and New York Times’ condemnation of Cuba’s cancellation of this event and related arrests, and I worried that this controversy might cause the U.S. to abandon the recently announced U.S.-Cuba reconciliation.
On the other hand, I was and continue to be troubled by the State Department and most of the articles about this event not mentioning the Cuban Fine Arts Council’s willingness to support the event in another location and with certain limits. This action by the Arts Council suggests at a minimum that the State Department and western media are over-reacting to these events and unfairly rushing to judgment.
These U.S. critics also forget that governmental authorities in the U.S. sometimes determine that it is not appropriate to stage a protest at a particular time and place. It just happened in my home state of Minnesota at the Mall of America (MOA) on a big shopping day (December 20th). Although MOA officials had told the organizers that it was against its policies for them to hold a “Black Lives Matter” protest at the Mall on that day, they did so anyway as this video shows. After 2,000 to 3,000 protesters flooded a Mall rotunda and held “die-ins” in front of several nearby businesses, riot-gear-clad police officers arrested 25 for trespass, peacefully dispersed the crowd and tried to block people from re-entering the rotunda. Afterwards the local city attorney announced plans “to file additional charges against ‘ringleaders’ of the protest and to seek restitution for the costs of 250 police at the event and lost sales during the two to three hours when more than 75 stores in the mall were closed.” On January 5th some of the protesters spoke against such prosecution at a city council meeting. This story obviously is not yet over.
In addition, there is a report that raises the much more serious question of whether the event was an idea of Cubans acting by themselves. According to the Wall Street Journal, an opponent of reconciliation with Cuba, at the scheduled time for the event, “Cuban cellphones received mysterious messages from a Florida area code offering cheap beer to all those gathering on the plaza.” This was confirmed in an interview by U.S. National Public Radio with Marc Frank, a U.S. journalist who was one of about a dozen people at the Plaza at the time of the planned event. He said, “text messages were sent from somewhere in Miami to a lot of cell phones here, including mine, basically saying that there’s going to be an event at the Plaza de la Revolución, and there’d be free beer.” Frank added that “Tania is an artist, lives some in Cuba and mainly in Miami, . . . [but] she’s not really well-known in Cuba at all.”
These messages about free beer in the Plaza from a Miami telephone number raise the question of whether the event was actually being planned by the U.S. Agency for International Development (USAID) or another U.S. government agency or by Cuban-Americans opposed to the reconciliation of the two countries.
As discussed in prior posts, USAID (U.S. Agency for International Development) had funded via a private contractor at least three covert (or as the agency prefers to say “discreet”) programs in Cuba to promote civil society and dissent or regime change, all without the prior knowledge or consent of the Cuban government. One was for U.S. citizen Alan Gross to take communications equipment to Cuba, for which he was arrested, convicted and imprisoned in Cuba for violating its laws. Another such USAID program via a private contractor unsuccessfully tried to create a Cuban social media program Yet another used Central Americans to promote purported HIV informational efforts on the island. The final one that has been discovered so far by journalists again via a private contractor attempted to infiltrate the Cuban rap-artist community.
These USAID programs were sharply criticized in a November New York Timeseditorial, as discussed in an earlier post. The editorial said, ““Far from accomplishing . . . the goal [of instigating democratic reforms on the island], the initiatives have been largely counterproductive. The funds have been a magnet for charlatans, swindlers and good intentions gone awry. The stealthy programs have increased hostility between the two nations, provided Cuba with a trove of propaganda fodder and stymied opportunities to cooperate in areas of mutual interest.”
Instead, the Times’ November editorial argued, “The United States should strive to promote greater freedoms on the island of 11 million people and loosen the grip of one of the most repressive governments in the world. Instead of stealth efforts to overthrow the government, American policy makers should find ways to empower ordinary Cubans by expanding study-abroad programs, professional exchanges and investment in the new small businesses cropping up around the island. They should continue to promote Internet connectivity, but realize that accomplishing that goal on a large scale will require coordination with the Cuban government.” Moreover, “Washington should recognize that the most it can hope to accomplish is to positively influence Cuba’s evolution toward a more open society. That is more likely to come about through stronger diplomatic relations than subterfuge.”
Perhaps the Times forgot this editorial when it more recently lambasted the Cuban actions over the “open-microphone” event.
In any event, the U.S. government apparently has not learned the lesson outlined by the Times in October because the USAID website, which says it was last updated on December 16 (the day before the announcement of U.S.-Cuba reconciliation), still contains general information about its Cuba programs to “[p]romote human rights and fundamental freedoms.”
In addition, on December 22, 2014 (five days after that announcement), the U.S. Department of State’s Bureau of Democracy, Human Rights and Labor issued a Public Notice of its “Request for Statements of Interest: Program Fostering Civil, Political and Labor Rights in Cuba.” The Bureau’s prospective funding of $11 million would be used for typically funded proposals, the Bureau said, like “[o]rganizational assistance to Cuban civil society to improve management, strategic planning, sustainability, and collaboration of local civil society groups; [o]ff-island trainings, short-term fellowships, or engagement; [d]istribution of software that would be easily accessible in an open society; . . . [and] ]a]ssistance mechanisms designed to provide independent Cuban civil society with tools, opportunities, and trainings that civil society counterparts in open societies can access.”
Both the USAID and State Department statements read as if they are promoting programs in Cuba without the knowledge, cooperation or agreement of the Cuban government. This is contrary to President Obama’s statement in his nationally televised speech on December 17th, in which he said the U.S. would “raise those differences [with the Cuban government] directly . . .[such as] democracy and human rights in Cuba. But I believe we can do more to support the Cuban people and promote our values through engagement [with the Cuban government].” He added, “no Cubans should face harassment or arrest or beatings simply because they’re exercising a universal right to have their voices heard, and we will continue to support civil society there.”
Similar thoughts were expressed the same day in the White House’s FACT SHEET: Charting a New Course on Cuba.” It said, “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.” It also stated, “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.”
Although President Obama apparently was talking about encouraging the Cuban government to expand the Cuban people’s rights to express different opinions on what their government should do, a prior post shows some ambiguity in these statements that could allow the continuation of the USAID and State Department’s covert or “discreet” efforts to promote regime change.
If the open-microphone event, in fact, was orchestrated by USAID or some other U.S. government agency, it is Orwellian. Such programs purport to promote democracy and human rights with undemocratic and non-human rights means. Such programs are publicly mentioned—in very general terms—on U.S. government websites yet are conducted covertly or “discreetly” on the island. Such programs are hostile to a country with which the U.S. purportedly is attempting to build a normal and respectful diplomatic relationship. These programs also logically motivate Cuban authorities to be vigilant in reacting to events like the “open-microphone” one.
In other words it is horribly stupid and unwise to have such behind-the-back programs when the two countries are embarking on a long and complicated path for full reconciliation. As the New York Times said in November, the U.S. “should recognize that the most it can hope to accomplish is to positively influence Cuba’s evolution toward a more open society. That is more likely to come about through stronger diplomatic relations than subterfuge.”
 The Plaza is the 31st largest public square in the world; it measures 72,000 square meters (774,936 square feet) and has been the site for crowds of 1 million for major speeches by Fidel Castro and for a mass celebrated by Pope John Paul II. The idea that the open-microphone event might create such a large crowd should have been seen as ridiculous by everyone, including the Cuban authorities, and a small gathering like the 12 or so that showed up on the 30th would have demonstrated the over-reaction of the those authorities in shutting it down and the State Department and western media in attacking the shut-down.
 Before the protest the local city (Bloomington) sent a letter to the protest organizers warning that the city would enforce the mall’s private-property rights under the authority of a Minnesota Supreme Court decision that held the MOA was a private entity with the right to exclude demonstrators.
 The Director of Security Operations at Telecommunications Company of Cuba reported that since December 21st Cuba had been receiving electronic messages calling for participation in an event with Tania Bruguera. These messages came from a platform “Wake Cuba,” and these messages were similar to previous ones paid for by USAID. Another Cuban source states that some Cuban email addresses were hacked and used to send emails to Cubans about this event.
 Gross on December 17th was released from Cuban prison and returned to the U.S.