In 1996 in the midst of U.S. private aircraft flights near and over Cuba by Cuban-Americans opposed to the Cuban Revolution, two such planes were shot down by Cuban military planes, and three U.S. citizens and one U..S. resident were killed in the crash.
Now , on May 22, 2018, two Cuban-American politicians—U.S. Senator Marco Rubio (Rep., FL) and U.S. Representative Mario Diaz-Balart (Rep., FL)—have asked President Trump to have the U.S. Department of Justice investigate whether the U.S. could and should indict Raul Castro, Cuba’s former President, for the deaths of the four Americans.
After looking at this request, we will examine what happened in 1966 and in two U.S. criminal cases about this incident. We conclude with an evaluation of the merits of this request
Rubio and Diaz-Balart’s Letter to President Trump
The letter urged the President “to direct the Department of Justice to review whether Raúl Castro should be indicted for the illegal and heinous act of shooting down in international waters two American civilian aircraft flown by Brothers to the Rescue [“BTTR”] on February 24, 1996.”
BTTR, according to Rubio and Diaz-Balart,, was “a humanitarian organization that operated rescue missions to search for Cubans who fled the island by sea.The journey from Cuba is treacherous, and many have perished in the attempt.”
This letter continued, “On February 24, 1996, the Cuban Air Force—unprovoked and without warning—shot-down two unarmed Brothers to the Rescue [“BTTR”] planes in international waters, murdering three American citizens, Carlos Costa, Armando Alejandre, Jr., and Mario de la Peña, as well as one United States legal permanent resident, Pablo Morales.”
Thereafter, the letter says, “a U.S. federal court [in Miami] indicted the head of the Cuban Air Force, General Rubén Martínez Puente, and the two MiG pilots, Lorenzo Alberto Pérez-Pérez and Francisco Pérez-Pérez, on charges of murder.”
The letter also says, “a member of the WASP spy ring ultimately was convicted for conspiracy to commit murder for his role in planning the shoot-down, and was sentenced to life in federal prison. Shamefully, the previous administration, as part of its appeasement policy, commuted his sentence and let him return to a hero’s welcome in Cuba. However, the Cuban operative ultimately responsible, then-Minister of the Revolutionary Armed Forces Raúl Castro, was never indicted.”
The letter concludes, “Taking these bold actions would demonstrate to our adversaries that they cannot act with impunity against Americans, and that human rights abusers and criminals will be held accountable for their crimes. Most importantly, it would send a signal to the Cuban people that the United States will not permit their oppressors to operate without consequences.”
According to the trial evidence in one of the criminal cases mentioned by Rubio and Diaz-Balart, BTTR, an anti-Castro Cuban exile group in Miami, repeatedly and knowingly had violated Cuban airspace since 1994 with the following details:
In 1994 a BTTR flight flew near the Cuban coast with a television reporter who filmed Cuban military fighter jets circling, but not firing at the BTTR plane.
Later in 1994, another BTTR plane flew over Cuba near Guantanamo Bay and dropped BTTR bumper stickers, and again Cuba did not fire at the plane.
In 1995 BTTR announced that it would commit civil disobedience in Cuban waters, and in response the U.S. State Department issued a public warning that no one should violate Cuban waters and airspace. Nevertheless BTTR proceeded to send a boat into Cuban waters and a plane flew over Havana for 13 minutes dropping anti-Castro leaflets and religious medals. Again the Cuban military did not attack the BTTR plane.
Immediately afterwards the Cuban Government complained to the U.S. FAA and requested action to prevent violations of Cuban sovereignty and stated, “Any craft proceeding from the exterior that invades by force our sovereign waters could be sunk and any aircraft downed.” In response the U.S. State Department reiterated its warning that U.S. planes should not violate Cuban airspace and quoted the Cuban warning.
Nevertheless in January 1996 BTTR flew twice to Cuba and presumably over international waters dropped anti-Castro leaflets that landed in Havana. Again Cuba requested the U.S. to stop these flights.
On February 24, 1996, three light-civilian U.S. planes that were operated by BTTR flew from Miami to Havana. All three at one time were in international airspace close to Cuba’s territorial waters. One of them clearly flew into Cuban airspace, but was not shot down. The other two civilian planes were shot down by Cuban MIG fighters, killing three Cuban-American citizens and one non-U.S. citizen. Cuba defended its actions by contending that the planes were shot down within the territorial limits of Cuba whereas the U.S alleged that the downings had occurred over international airspace. According to one of the courts in the Cuban Five case, these two planes did not enter Cuban airspace and were shot down in international airspace, 4.8 and 9.5 miles (land miles or nautical miles?] from Cuban airspace.
The concept of national and international airspace is complicated. National airspace is the area or portion of the atmosphere above a country’s territory that is controlled by that country and above a country’s territorial waters, which generally is considered to be 12 nautical miles [or about 13.8 land miles] out from the coastline of the nation. All other airspace is known as ‘international airspace.’
In any event, the two planes that were shot down were at least very close to Cuban airspace after a history of such planes entering Cuban airspace and dropping leaflets and medals and potentially dropping bombs.
In September 1998 five Cuban men (“The Cuban Five”) were arrested in Miami and indicted for conspiracy to commit murder (of the four men killed on February 24, 1996); conspiracy to commit espionage; conspiracy to commit crimes against the U.S.; use of false identity and documentation; and being unregistered agents of a foreign government.
The Cuban Five, however, were not directly involved in any of the above BTTR incidents. They did not shoot down the private planes on February 24, 1996. They were not in any of the Cuban MIG fighter jets that were involved in that incident.
Instead, according to one of the court opinions in their criminal case, they were in the U.S. as agents of the Cuban Directorate of Intelligence and members of its Wasp Network that was organized for espionage in southern Florida. The Network was to gather and report information regarding operations of U.S. military facilities, U.S. political and law enforcement agencies and U.S. nongovernmental organizations supporting regime change in Cuba, including BTTR. To that end, the Five attempted to penetrate the Miami facility of the U.S. Military’s Southern Command while one of the Five obtained employment at the Key West U.S. Naval Air Station and reported information about the Station to the Cuban Government. Their mission also was to stop flights to Cuba by BTRR.
In November 2000, the trial of the Cuban Five started in federal court in Miami and ended in June 2001 with a jury verdict of the Cuban Five’s being guilty on all counts. As none of the Cuban Five had been directly involved in shooting down the airplane in 1996, the key legal issue on the conspiracy to commit murder charge was the U.S. legal principle of conspiracy. Under U.S. law (U.S.C. sec. 1117), “If two or more persons conspire to [murder], and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.” In simple terms, the overt act of shooting down the plane is attributed or imputed to all members of the conspiracy even though some were not directly involved in that act.
In December 2001 (three months after 9/11), the Miami federal court sentenced the Cuban Five to lengthy sentences. In later 2009, after extensive appellate proceedings, the district court reduced the sentence of Guerrero from life to 262 months, of Labanino from life to 30 years and of Gonzalez from 19 years to 18 years.
Two of the Cuban Five subsequently completed their sentences and were returned to Cuba in 2013 and 2014. On December 17, 2014, as part of the U.S.-Cuba agreement to pursue normalization of relations, President Obama commuted the sentences of the other three Cubans to time served and released and returned them to Cuba. They are Antonio Guerrero, 56, a U.S. citizen; Ramón Labañino, 51; and Gerardo Hernández, 49.
Criminal Case Against General Martinez Puente and the Cuban Pilots
On August 21, 2003, Cuban General Rueben Martinez Puente, the head in 1996 of the Revolutionary Air Force of the Republic of Cuba, and the two Cuban jet-fighter pilots who shot down the two planes operated by BTTR (Lorenzo Alberto Perez-Perez and Francisco Perez-Perez) were indicted by a federal grand jury in the U.S. District Court for the Southern District of Florida in Miami for conspiracy to kill the U.S. nationals in the February 1996 crash, four counts of murder and two counts of destruction of aircraft.
The three defendants in this case were and are Cuban citizens and apparently were in Cuba at the time of the indictment and have remained there. Thus, on Nov. 10, 2003, the district court entered an order transferring them to its Fugitive File “until such time as the defendants are apprehended.” That is the last entry in this case’s file.
For this blogger, the foregoing objective review of the evidence relating to the letter from Senator Rubio and Representative Diaz-Balart yields the following conclusions:
The BTTR was not “a humanitarian organization,” at least with respect to the private planes it had flown to Cuba.
The BTTR apparently did not “operate rescue missions to search for Cubans who fled the island by sea.”
Instead the BTTR, at least from 1994 through early 1996, operated to harass the government of Cuba by dropping anti-Castro leaflets over Cuba itself.
On February 24, 1996, the Cuban Air Force was provoked by the BTTR flights that day and previously.
Prior to July 24, 1996, the Cuban Government repeatedly sought the assistance of the U.S. Government to stop the BTTR flights to Cuba.
The U.S. Government, however, did not adequately attempt to stop BTTF flights to Cuba.
Yes, the U.S. in 2003 indicted the head of the Cuban Air Force and the two Cuban pilots of the jet fighter planes that shot down the two private planes flown by BTTR pilots on February 24, 1996, but nothing has happened in that case because the Cuban defendants have not been in the U.S.
Yes, the U.S. in 1998 indicted the Cuban Five for various crimes, even though they were not personally involved in the shooting down of the two BTTR planes on February 24, 1996, and they were convicted and sentenced to U.S. prison for long periods of time. By December 2014, two of them had completed their sentences, been released from U.S. prisons and returned to Cuba, and on December 17, 2014, the remaining three’s sentences were commuted to time served (16 years including pretrial detention) by President Obama and they also were released from U.S. prison and returned to Cuba while Cuba simultaneously released U.S. citizen Alan Gross and another man who had spied for the U.S. from a Cuban prison and returned them to the U.S.
The release of the remaining three of the Cuban Five on December 17, 2014, was part of the praiseworthy overall U.S.-Cuba agreement to embark on the path of normalization of relations. It was not, as the Rubio/Diaz-Balart letter states, part of the shameful “appeasement policy.”
There never has been any contention that Raúl Castro was involved in any way in the downing of the two BTTR planes in February 1996. Instead Rubio and Diaz-Balart allege that at the time Raúl was Minister of the Revolutionary Armed Forces and thus presumably in overall charge of everything involving the Cuban Air Force.
now nearly 87 years old and no longer Cuba’s President, Raúl Castro is still Secretary of the Communist Party of Cuba and has retired to Santiago de Cuba at the eastern end of the island. Presumably he will not be coming to the U.S. in the future, especially if he were to be indicted as Rubio and Diaz-Balart suggest.
In short, the suggestion that Castro be indicted is a cheap, unfounded political trick only designed to continue to stroke the egos of the Cuban-Americans in Florida who cannot forget and forgive the past. The U.S. should not waste time and money on such a wild-goose chase.
 Indictment, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL Aug, 22, 2003) Notice to Transfer to Fugitive Status, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL Nov. 10,, 2003); Criminal Docket, U.S. v. Martinez Puente, No. 03-20685 CR-Seitz (S.D. FL ) [searched on May 26, 2018].
Alma Gillermoprieto, a prominent journalist who has written extensively about Cuba and Latin America, in an article dated April 15, 2016, had interesting observations about Cuba, which subsequently have been confirmed by the Seventh Congress of the Communist Party of Cuba and other events. (Her photograph is to the right.)
She was in Cuba during President Obama’s visit and did not disagree with the U.S. media’s declaring “Obama the winner in the encounter” with Raúl Castro, an unsurprising conclusion since “Obama is as skilled at public relations as any U.S. politician, and the leader of a monolithic state hardly needs charm.” Obama and his speech to the Cuban people on live television, as discussed in an earlier post, made a significant impact on the Cuban people with the speech’s content as well as his persona—young, vigorous, handsome and African-American.
The Broken Cuban Economic System
Guillermoprieto noted that everyone in Cuba obviously was aware of the state of disrepair of nearly everything on the island. It prompted the “joke on everyone’s lips,” she reports, “that Obama should stay in Havana for a month, because in preparation for his three-day visit [in March] more had been done to fix up the place than in the previous half-century.” This was but one indication of the broken Cuban economic system.
For Raúl Castro and the other leaders of the Government and the Communist Party of Cuba, Guillermoprieto speculates, the question has been “How many mistakes can safely be corrected? When the house you live in is falling apart, how much can you tinker with the plumbing, the windows, the doorjambs, and the supporting walls before the whole edifice collapses around you?”
Raúl in his April 21 speech to the Party Congress admitted some of the major ways in which the Cuban economic house was falling apart. Economic growth [over the past five years], he said, was “not enough to ensure the creation of the productive and infrastructure conditions required to advance development and improve the population’s consumption.” Indeed, “wages and pensions are still unable to satisfy the basic needs of Cuban families.” (Emphasis added.)
A major problem, Castro admitted at the Congress, was insufficient agricultural production and hence rising prices for basic foodstuffs and the need to maintain consumer subsidies in the form of lower prices with ration books. Such price controls to lower prices on basic foods were instituted on April 22, and on May 3 additional price controls on foodstuffs were implemented.
Moreover, said Castro, “The state enterprise system, which constitutes the main management mode in the national economy, finds itself in at a disadvantage when compared to the growing non-state sector which benefits from working in monetary system with an exchange rate of one CUC to 25 CUP, while the state system operates on a basis of one CUC to one CUP. This serious distortion must be resolved as soon as possible and a single currency reestablished.” (Emphasis added.)
According to Castro, efforts to implement the economic reforms approved five years ago have been delayed due to “slow implementation of legal regulations and their assimilation.” The “main obstacle,” however, has been “out-dated mentalities, which give rise to an attitude of inertia or lack of confidence in the future. There also remain, as was to be expected, feelings of nostalgia for the less difficult times in the revolutionary process, when the Soviet Union and socialist camp existed.”(Emphasis added.)
Incorporating Private Enterprise in the Cuban System
Guillermoprieto further speculates that Raúl “may be trying to modernize Cuban socialism to the point where it is capitalist and open enough to accommodate the restless generations who are now under forty-five years of age . . . . Perhaps he has the sense that the revolution is finished, that there is no future in the old dogmas and failures, that sixty years of poverty and repression are enough, and that he has no real power to control the inevitable future. Perhaps he is simply trying to ensure, finger in the dike, that a newly capitalist Cuba does not slide into a morass of corruption and cynicism.”
At the subsequent Party Congress, Raúl clearly embraced private enterprise as necessary and welcome to Cuba. He said, “Cooperatives, self-employment and medium, small and micro private enterprise are not in their essence anti-socialist or counter-revolutionary.” With non-state employment increasing from 18.8% in 2010 to 29.2% of the economy in 2015, “just over half a million Cubans [now] are registered as self-employed; they provide services and generate much-needed production. An atmosphere that does not discriminate against or stigmatize duly authorized self-employment is being defined. . . . [We] favor the success of non-state forms of management.” (Emphasis added.)
Moreover, according to Raúl, “Recognizing the market in the functioning of the our socialist economy does not mean that the Party, government and mass organizations are no longer fulfilling their role in society. . . .The introduction of the rules of supply and demand is not at odds with the principle of planning. Both concepts can coexist and complement each other for the benefit of the country.” (Emphasis added.)
At the same time, Raúl made it clear that these welcome changes did not constitute an abandonment of the ideals of the Revolution, that state ownership of the means of production would still be the mainstay of the economy, that the changes did not constitute a restoration of capitalism, that the state would not permit concentrations of wealth and property and that Cuba needed to be wary of powerful external forces (i.e., the U.S.) seeking to take advantage of these changes.
Other signs of Cuba’s economic distress are the recent firing of an economist at the university of Havana and the upsurge of Cubans, especially younger people, leaving the island, as mentioned in a prior post.
Internal Cuban Opposition to Economic Reforms
Guillermoprieto notes that Raúl has internal opposition to rapid and significant changes to the economy and government, including brother Fidel in his rambling article in Granma after Obama’s visit that was discussed in a prior post. That article has opened the gates for other opposition, cleverly directed at Obama instead of Raúl.
Indeed, at the subsequent Party Congress, Foreign Secretary Bruno Rodriguez and one of the Cuban Five delivered speeches with harsh criticism of President Obama as the “pied piper’ attempting to lure Cubans down the path of capitalism. This too was discussed in an earlier post.
Guillermoprieto also quotes respected Cuban historian Rafael Rojas, now based in Mexico, about other opposition to Raúl coming from government ministries who believe “change must come more quickly.” A key problem for such rapid change that was recognized in Raúl’s recent report to the Party Congress was the need to eliminate as soon as possible the dual currency system (the CUC and the CUP), but the state’s subsidization of many prices in CUC makes that exceedingly difficult financially.
Inequality in Cuba
Guillermoprieto notes that there already is income and wealth inequality in Cuba growing out of its allowance of self-employment, i.e., private enterprise, in certain occupations over the last five years and the allowance of higher salaries or wages for medical doctors (now $67 per month) versus those employed in state-enterprises ($25 per month). The prospect is that there will be more inequality contrary to the ideals of the Revolution.
The recent allowance of higher salaries for Cuban physicians apparently was justified on the theory of a pyramid of workers with those with higher skills like doctors at the top of the pyramid earning higher salaries. Indeed, in Raúl’s speech to the Party Congress he complained about the inversion of the pyramid where lower-skilled workers like hotel bus boys and gas pump operators earn more through tips In hard currencies and illegal sales of gasoline than highly-skilled workers like physicians. This lamentable situation, said Castro, “does not allow work to be compensated in a fair manner, in accordance with its quantity, quality and complexity, or living standards to reflect citizens’ legal income.” This situation also generates “an unmotivated workforce and cadres, which also discourages employees from seeking out positions of greater responsibility.”
Guillermoprieto also reports that physicians who go on Cuba’s famous foreign medical missions are paid $500 per month ($300 while in the foreign country plus $200 deposited in a Cuban bank to encourage their return to the island). Because this is less than the Cuban government is paid for their services, she apparently regards this as unfair. I, however, draw the opposite conclusion while assuming her numbers are correct. The $500 per month is over seven times higher than the physician’s salary in Cuba and clearly is economically attractive to the physician. It totally negates the U.S. State Department contention that the Cuban doctors on foreign missions are engaged in illegal forced labor as discussed in a prior post.
I am grateful for Guillermoprieto’s sharing her observations about Cuba. She provides additional evidence of the brokenness of the Cuban economic system and the difficulties of reforming or restructuring that system to include the advantages of free enterprise while simultaneously controlling its disadvantages.
Alma Guillermoprieto, Wikipedia. In her memoir, Dancing with Cuba: A Memoir of the Revolution, she recounts moving in 1970 from New York City to Havana to teach at Cuba’s National School of Dance. For six months, she worked in mirrorless studios (it was considered more revolutionary); her poorly trained but ardent students worked without them but dreamt of greatness. Yet in the midst of chronic shortages and revolutionary upheaval, Guillermoprieto found in Cuba a people whose sense of purpose touched her forever.
 That earlier post pointed to a study by Indiana State University’s Emeritus Professor of International Politics and Latin America, Dr. H. Michael Erisman, who said, “most evidence indicates that the overwhelming majority [of Cuban doctors on foreign missions] are motivated by philosophical and/or pragmatic considerations. In the first instance, one needs to understand that the Cuban medical profession . . . is permeated by norms which stress self-sacrifice and service to the community, both at home and abroad. At the core of this ethos is the principle, which is firmly entrenched in the curriculum of the island’s medical schools and reinforced throughout one’s career, that health care should not be seen as a business driven by a profit motive, but rather as a human right that medical personnel have an unconditional duty to protect. Such convictions often underlie participation in the medical aid brigades. There are, however, also some pragmatic factors that can come into play. Overseas service could . . . help to further one’s professional aspirations and for some assignments the total remuneration involved is more generous than what is available back in Cuba. . . . [T]hese are the considerations which apply to the vast majority of people” in such programs, not involuntary servitude. Also relevant is the fact that Cuban medical education is free and in a quid-pro-quo the student agrees to serve in such missions upon becoming a doctor.
The final three days (April 17-19) of the Seventh Congress of the Communist Party of Cuba featured criticism of President Obama’s words during his March visit to Cuba, adoption of the Party’s Central Committee’s report, election of the Party’s leaders for the next five years, a concluding speech by Raúl Castro and a surprise appearance of Fidel Castro. These topics will be discussed in this post. Prior posts provided an overview of the Congress, Raúl Castro’s discussion of Cuba-U.S. relations and his discussion of socio-economic issues.
Criticism of President Obama
The most direct criticism of Obama came from Cuba’s Minister of Foreign Affairs, Bruno Rodriguez Parilla. He said, “Obama came to stand here and dazzle the non-state sector of the economy [the so-called cuentapropistas] as if he was not the defender of big corporations but the defender of those selling hot dogs and small businesses in the U.S.”
Moreover, according to the Foreign Minister, “In this visit, there was a deep attack on our ideas, our history, our culture and our symbols.” However, “Socialism and the Cuban Revolution are the guarantees that there can be a non-state sector that is not that of big North American companies. ”
The Foreign Minister also referred to Cuba’s constitutional referendum in the near future as “a battle” in a different context, with “a very heterogeneous society…in which there are changes in the perception of the enemy, which remains the enemy. And it is there, in the North.”
René González, one of the Cuban Five, said Obama was “the ‘Pied Piper’ . . . [who] came to play to our children and steal their hearts. He played the flute very well, because he has specialists who tell him how to play it.”
But Rene González also made an unusual call for the consideration of political reform in Cuba by saying the Party had focused excessively on the economy for 10 years. “Let the party [now] call for a broad public discussion that goes beyond concepts of economic development. Let’s arrive at the eighth party congress [in 2021] for the first time in human history with a consensus on that human aspiration that some call democracy, and that’s possible through socialism.”
Another member of the Cuban Five who was released from U.S. prison on December 17, 2014, Antonio Guerrero, dedicated a few verses from Cuban poet Cintio Vitier to Obama and his policy of rapprochement: “Don’t attempt with your delicacy to have me betray myself. Do not pretend you are going to believe in my situation.” According to a report in Juventud Rebelde, Guerrero turned to poetry, “as a resonant symbolic exercise against those who approach us today with fake softness.”
Adoption of the Central Committee Report
As reported in an earlier post, on April 16 Raúl Castro as the First Secretary of the Communist Party of Cuba, spent two hours reading the report of the Party’s Central Committee.
Two days later Miguel Diaz-Canel had the important, but boring, job of making a resolution for the Congress’ adoption of that report, which meant that he had to re-read that report. This included the report’s criticism of the Cuban governmental bureaucracy as having obsolete ways of thinking led both to inertia in enacting reforms and “a lack of confidence in the future. Along with other deficiencies, there’s a lack of readiness, high standards and control, and little foresight or initiative from sectors and bureaucrats in charge of making these goals a reality.”
That resolution was adopted unanimously by the 1,000 delegates to the Congress.
Election of Party Officials
Raúl Castro was re-elected as the Party’s First Secretary as was 85-year-old Machado Ventura as Second Secretary, who is known as the enforcer of Communist orthodoxy and an opponent of some of the biggest recent economic reforms. Raúl added that the “inexorable law of life” means that the Seventh Congress will be the last headed by the historical generation.
There had been speculation that Miguel Diaz-Canel might have replaced Machado Ventura as a clear sign that Diaz-Canel was the successor to Raúl as President. But Diaz-Canel was re-elected to the Political Bureau of the Party.
Raúl addressed the composition of the Party’s Political Bureau, noting that its 17 members include a four women, five Black or mixed-race members, two heads of mass organizations, five Council of State vice presidents, three Council of Ministers vice presidents, and four generals, including the First Secretary. Five new members were elected to this body.
The Central Committee was composed of 142 members, of which more than two-thirds were born after the triumph of the Revolution and the average age was 54.5 years, lower than in 2011. More than 98% of Central Committee members have university-level education, the representation of women has grown and now reaches 44 or 37% and blacks and mestizos with 35 or 92%
Fidel Castro’s Valedictory Remarks
I’ll be 90 years old soon [in August],” Castro said in his most extensive public appearance in years. “Soon I’ll be like all the others. The time will come for all of us, but the ideas of the Cuban Communists will remain as proof on this planet that if they are worked at with fervor and dignity, they can produce the material and cultural goods that human beings need, and we need to fight without a truce to obtain them.”
“This may be one of the last times I speak in this room,” Fidel Castro said. “We must tell our brothers in Latin America and the world that the Cuban people will be victorious.”
Raúl Castro’s Closing Speech
In a reprise of his two-hour speech on Saturday, Raúl Castro said the development of the national economy, with the struggle for peace and ideological firmness, was the main task of the Party. “This will be a revolution of the humble, by the humble and for the humble, as defined by comrade Fidel.”
I agree with other U.S. commentators that the harsh language against Obama at the Party’s Congress is a sign that the Cuban people had and still have a very positive opinion of President Obama, his speech to the Cuban people and his meeting with Cuban entrepreneurs. As Richard Feinberg, a former national security adviser to U.S. President Bill Clinton, put it, “The harsh rhetorical push-back by the ideological wing of the Communist Party suggests their heightened sense of vulnerability.”
“Clearly the Cubans are on the defensive after President Obama’s trip,” said Ted Piccone, a Cuba analyst at the Brookings Institution in Washington. Ted Henken, a Cuba analyst at Baruch College in New York, said Mr. Obama’s visit “was very effective in rattling” the regime. “Instead of taking Obama’s visit as a chance to open up and speed up the transition to a younger generation, they have circled the wagons.”
Carlos Alberto Pérez, who writes under the name La Chiringa de Cuba, said that he was not surprised by the party’s decision to keep President Castro and Mr. Machado in place. “The transition is planned for 2018 when Raúl steps down. Anyone who thought there would be a change now was dreaming.”
“Party leaders are trying to set up continuity in the context of reform — but it will be the type of reform managed by conservative politicians,” said Arturo Lopez-Levy, a lecturer at the University of Texas, Rio Grande Valley, and a former Cuban intelligence analyst. He added, “Generations do matter. Their formative experiences are different. The younger leaders will take up their posts at a time when the party is becoming more nationalist and less Communist. Younger militants also are less adverse to market mechanisms in the economy than their elders.”
A prior post covered the surprising December 17, 2014, announcement of U.S.-Cuba rapprochement while another post discussed the initial public information about the preceding secret U.S.-Cuba negotiations about normalization; yet another post integrated that information into previous public information about U.S.-Cuba relations in President Obama’s second presidential term, 2013-2014.
Now Peter Kornbluh and William LeoGrande. both leading scholars on the relationship between the two countries, have added the following additional details about such previous secret discussions:
Thereafter in 2010-2012 two top State Department officials—Cheryl Mills, the Chief of Staff for Secretary of State Hillary Clinton, and Julissa Reynoso, the Deputy Assistant Secretary of State for Western Hemisphere Affairs—had secret discussions with Cuban officials that initially focused on Cuba’s releasing U.S. citizen Alan Gross from a Cuban prison and the U.S.’ allowing the wives of two of the Cuban Five to visit their husbands in U.S. prisons.
By September 2011, the Cubans had explicitly proposed swapping the Cuban Five for Alan Gross, but the U.S. was not prepared to do so. Instead, as a show of good faith, the U.S. arranged for the wives of two of the Cuban Five to secretly visit their husbands in U.S. prisons while Cuba permitted Judy Gross regular visits with her husband in a military hospital in Havana.
In May 2012, Clinton received a memo from her team that stated: “We have to continue negotiating with the Cubans on the release of Alan Gross but cannot allow his situation to block an advance of bilateral relations…The Cubans are not going to budge. We either deal with the Cuban Five or cordon those two issues off.”
This May 2012 memo arrived soon after Clinton and President Obama had returned from that April’s Sixth Summit of the Americas where they had been chastised by heads of states furious over the U.S. stance on Cuba. Afterwards Clinton “recommended to President Obama that he take another look at our embargo. It wasn’t achieving its goals and it was holding back our broader agenda across Latin America.”
After his reelection in November 2012, President Obama approached Massachusetts Senator John Kerry about replacing Clinton as secretary of state and raising a new approach to Cuba. Kerry was receptive. As Chairman of the Senate Foreign Relations Committee, he had been a vocal critic of the USAID democracy promotion programs that financed Gross’ secret missions to Cuba and also had long opposed the US economic embargo of the island.
During the U.S.-Cuba secret discussions in Canada in 2013=2014 that were discussed in a prior post, The U.S. was not willing to talk about the USAID programs or the status of Guantánamo Bay. Cuba, on the other hand, was not willing to discuss human rights or U.S. fugitives living in their country.
In September 2013 Senator Dick Durbin (Dem., IL) suggested to National Security Advisor Susan Rice that the U.S. should see about getting Pope Francis involved in helping the two countries resolve their differences.
In February 2014, Senator Patrick Leahy had his staff collaborate with former White House counsel, Greg Craig, to draft a 10-page memo of options “to secure Mr. Gross’ release, and in so doing break the logjam and change the course of U.S. policy towards Cuba, which would be widely acclaimed as a major legacy achievement [for President Obama].” The document, dated February 7, laid out a course of action that would prove to be a close match with the final accord.
Apparently also in or about February 2014, Leahy sent a confidential message to Cuban Cardinal Jaime Ortega, asking him to encourage the Pope to help resolve the prisoner issue. Drawing on the close ties between Obama’s Chief of Staff, Denis McDonough, and Cardinal Theodore McCarrick of Washington, D.C., the White House also “got word to the Vatican that the president was eager to discuss” Cuba at the upcoming upcoming March private audience with the Pope.
In early March 2014, a small group of Cuba policy advocates, including representatives of a newly formed coalition for changing U.S. policies regarding Cuba, met with Cardinal Seán O’Malley in the rectory of the Cathedral of the Holy Cross in Boston. The advocates of change explained the recent trends, the conversations with President and others in the administration and Congress and indicated this was a historic moment, and a message from the Pope to President Obama would be significant in moving the process forward. A letter from Senator Leahy was given to Cardinal O’Malley urging him to focus the Pope’s attention on the “humanitarian issue” of the prisoner exchange.
During this same time period, Leahy personally delivered a similar message to Cardinal McCarrick and arranged for yet another to be sent to Cardinal Ortega in Havana. There now were three cardinals urging the Pope to put Cuba on the agenda with Obama.
At the private audience later that month (March 27), Obama told the Pope that the U.S. had something going with Cuba and that it would be useful if the Pope could play a role.” (Other details about the audience were provided in a prior post.) A few days later, Francis summoned Cardinal Ortega to enlist his help.
On May 1, 2014, Leahy, along with Senators Carl Levin (Dem., MI) and Dick Durbin (Dem., IL) and Representatives Chris Van Hollen (Dem., MD) and Jim McGovern (Dem., MA) met in the Oval Office with Obama, Vice President Joe Biden, and National Security Advisor Susan Rice. The legislators urged Obama to press for Gross’ release and replace the policy of hostility with one of engagement. “You said you were going to do this,” McGovern reminded the president. “Let’s just do it!” Obama had a non-committal response,”We’re working on it” and gave no hint of the back-channel diplomacy then well underway.
On May 19, 2014, the previously mentioned coalition released an open letter to Obama signed by 46 luminaries of the U.S. policy and business world, urging the president to engage with Cuba. The signatories included former diplomats and retired military officers—among them former U.N. Ambassador Thomas Pickering; Cuban-American business leaders like Andres Fanjul, co-owner of a Florida-based multinational sugar company; and John Negroponte, George W. Bush’s director of national intelligence. The same day, not coincidentally, the conservative US Chamber of Commerce announced that its president, Tom Donohue, would lead a delegation to Cuba to “develop a better understanding of the country’s current economic environment and the state of its private sector.”
During the summer of 2014 the Pope wrote forceful, confidential letters to Obama and Raúl Castro, imploring the two leaders“to resolve humanitarian questions of common interest, including the situation of certain prisoners, in order to initiate a new phase in relations.”
To safeguard his communications, the Pope sent both letters via papal courier to Havana—with instructions to Cardinal Ortega to personally deliver the message into the two presidents’ hands. After delivering the Pope’s letter to Raúl Castro, Ortega then sent his top aide to Washington to advance his clandestine diplomatic mission to deliver the other letter to Obama. But arranging a secret face-to-face meeting with President Obama was easier said than done. Alerted to the problem, Cardinal McCarrick conferred with White House officials, who enlisted his help as a secret back-channel go-between. In early August, McCarrick traveled to Cuba carrying a note from Obama that asked Ortega to entrust McCarrick with delivering the Pope’s letter to the White House. But Ortega’s papal instructions were to deliver the message himself. McCarrick, therefore, left Cuba empty-handed.
Back in Washington, McCarrick worked with McDonough at the White House to arrange a secret meeting for Ortega with the President. On the morning of August 18, Ortega gave a talk at Georgetown University—providing a cover story for his presence in Washington—and then quietly went to the White House. (To make sure the meeting did not leak, U.S. officials kept Ortega’s name off the White House visitor logs.) Meeting with the President on the patio adjacent to the Rose Garden, Ortega finally completed his mission of delivering the Pope’s sensitive communication, in which he offered to “help in any way.”
In October 2014, at the Pope’s invitation, the two sides met at the Vatican and hammered out their final agreement on the prisoner exchange and restoring diplomatic relations. The U.S. representatives, Rhodes and Zuniga, also noted Obama’s intention to ease regulations on travel and trade, and to allow US telecom companies to help Cuban state enterprises expand internet access. They acknowledged these initiatives were aimed at fostering greater openness in Cuba. Cuban officials said that while they had no intentionof changing their political system to suit the United States, they had reviewed the Americans’ list of prisoners jailed for political activities and would release 53 of them as a goodwill gesture. The Pope agreed to act as guarantor of the final accord.
On October 12, the New York Times published an editorial calling for ending the U.S. embargo of Cuba and for a new relationship between the two countries; it turned out to be the first of a series of editorials on various aspects of the relationship. These editorials were the work of Ernesto Londoño, a new member of the Editorial Board and a native of Colombia. He talked to administration officials, Senator Leahy’s office, and the new coalition, but recently said, “There was really no collusion or formal cooperation in what they were doing and what we were doing. The Times simply saw an opportunity to push the policy it advocated forward. We figured it was worthwhile to give it a shot.”
On November 6, 2014, Obama’s National Security Council met to sign off on the details. Later that month, the negotiating teams convened one last time in Canada to arrange the logistics of the prisoner exchange.
These additional details about the over two years of previously secret negotiations should be merged with the earlier post about President Obama’s Second Term Record Regarding Cuba, 2013-2014. Together they demonstrate the diplomatic skill of that Administration in achieving this historic breakthrough that will benefit both countries.
 Previous posts covered the other Times editorials that commended Cuba’s foreign medical missions (Oct. 19), recommended normalization (Oct. 26) and prisoner exchanges (Nov. 3) and criticized USAID programs on the island (Nov. 10), the U.S. Cuban medical parole program (Nov. 17) and the U.S. designation of Cuba as a “state sponsor of terrorism” (Dec. 15).
In light of President Barack Obama’s historic December 17th announcement of rapprochement with Cuba, It is interesting to examine Obama’s earlier statements and actions about Cuba. Prior posts examined his campaign for the Democratic Party’s presidential nomination in 2007-2008; his campaign for the the presidency as the Democratic Party’s nominee in 2008; his first presidential term, 2009-2013; and his presidential re-election campaign of 2012. Now we look at the first two years of his second presidential term, 2013-2014. 
In November 2012, as we have seen in a prior post, President Obama won reelection with 48% of the Cuban-American vote.
The next month (December 2012), as a prelude to his second term, Obama instructed aides to make Cuba a priority and “see how far we could push the envelope.” The President also concluded that “it would be a good fit to have someone who was known to be very close to the President [involved in such an effort on Cuba] because the Cubans are very wary of engagement and they want to know that the engagement is reaching the top. They felt like there [had] been several other efforts of engagement where it turned out . . . where they had conversations with the Americans, [but after] they reached a certain point . . . there was never follow through [by the U.S.]. . . . [In short, the Cubans] wanted someone . . . [involved for the U.S.] who were very close to the President and . . . they wanted it to be discreet.” Hence, the President designated Ben Rhodes, a Deputy National Security Advisor, to be in charge of this new effort to engage Cuba.
Thereafter, Mr. Rhodes sent a secret message to the Cuban government that the U.S. wanted “to initiate a dialogue about prisoners and other issues.” As we will see below, this created a fascinating contrast between the Administration’s public negative face on Cuba and its secret negotiations with the latter.
Obama’s Second Term, 2013
On January 21, 2013, President Obama was inaugurated for his second term as President. Most of his Inaugural Address was focused on domestic concerns, but he did say, “We will show the courage to try and resolve our differences with other nations peacefully—not because we are naïve about the dangers we face, but because engagement can more durably lift suspicion and fear.” He made no reference to Cuba.
That same month, January 2013, we recently have come to know, Ricardo Zuniga, Obama’s top Latin American adviser, went to Miami and met with a representative of the anti-Castro Cuban American National Foundation and with young Cuban-Americans, the latter of whom helped confirm the waning influence of older Cuban exiles who have traditionally supported the half-century-old embargo. (Zuniga in 2001 as a State Department staffer contributed to its National Intelligence Estimate that officially concluded, for the first time, that the embargo of Cuba had been a failure.)
On April 19, 2013, the U.S. Department of State released its Country Reports on Human Rights Practices for 2012, and again it had a negative assessment of Cuba: it is “an authoritarian state” with the following “principal human rights abuses . . .: abridgement of the right of citizens to change the government; government threats, intimidation, mobs, harassment, and detentions to prevent free expression and peaceful assembly; and a record number of politically motivated and at times violent short-term detentions.”
By April 2013, however, we now know that the White House was ready to proceed with the Cubans by quietly proposing back-channel talks after learning that Havana would be receptive. Obama initially froze out the State Department on these developments in part due to concern that its “vested interests” would still be bent on perpetuating a confrontational approach. Even Secretary of State John Kerry was informed of the talks only after it appeared they might be fruitful.
On May 29, 2013, the plight of Alan Gross again emerged as a distracting element when a federal district court dismissed his lawsuit against the U.S. for $60 million alleging the government and its private contractor sent him on five semi-covert trips to Cuba without proper training, protection or even a clear sense of the Cuban laws that ultimately led to his arrest and detainment. Experts said the dismissal had been widely expected because of a rule barring lawsuits against the American government based on consequences suffered in foreign countries.
The next day (May 30, 2013) the U.S. Department of State released its Country Reports on Terrorism 2012. Again Cuba was a designated “state sponsor of terrorism,” but the asserted grounds were very weak: there was no indication Cuba “provided weapons or paramilitary training to terrorist groups;” Cuba “has committed to adopting and implementing” anti-money laundering recommendations by an international group; but Cuba continued to provide support to certain U.S. fugitives.
In any event, the secret U.S.-Cuba negotiations started in June 2013 in Ottawa, Canada. The Cubans opened with harangues about the embargo and other perceived wrongs. Rhodes, age 37, responded, “Look I wasn’t even born when this policy was put in place. We want to hear and talk about the future.” The Cubans in these initial sessions also insisted on an exchange of the remaining three of “The Cuban Five” in U.S. prison for U.S. citizen, Alan Gross, in Cuban prison. Obama refused such a deal because Washington denied Gross was a spy and because Obama did not want a three-for-one trade. As a result by the end of 2013, the negotiations had stalled.
On December 3, 2013, Alan Gross’ imprisonment again surfaced as an important issue when his wife read a public letter from him to President Obama asking, “Why am I still here? With the utmost respect, Mr. President, I fear that my government, the very government I was serving when I began this nightmare, has abandoned me.” A White House spokesman responded by saying Mr. Obama had “personally engaged foreign leaders and other international figures to use their influence with Cuba” to free Mr. Gross.
That same month, December 2013, something publicly happened that we now know had a positive effect on the secret U.S.-Cuba negotiations. At the funeral for Nelson Mandela in South Africa on December 15th, President Obama met and shook hands with President Raùl Castro, which at the time some in the U.S. criticized. Moments after the handshake Obama addressed the funeral gathering, talking about Mandela’s demonstrating the need for trust and reconciliation and forgiveness. Some at the time wondered whether his remarks might also apply to the apparently frozen diplomatic relationship between the U.S. and Cuba, but White House officials declined to offer any explanation of the handshake or confirm that there had been a discussion about whether to offer [an explanation].” 
Obama’s Second Term, 2014
In early January 2014 the U.S. and Cuba, with public notice, resumed negotiations from the prior July about migration, which the State Department said “does not represent any change in policy towards Cuba” and which journalists saw as “a signal of the longtime Cold War foes’ recent willingness to engage in areas of mutual interest but unlikely to be a harbinger of a major thaw in relations.” Afterwards Cuba said, “”The meeting took place in a respectful environment. An analysis was made of the status of compliance with the migration accords in force between both countries, including the actions taken by both parties to combat illegal migration and aliens smuggling.”
At the January 2014 secret negotiation session in Toronto, said Mr. Rhodes, “the Cubans started [with just want[ing] their people back—the three Cubans who were imprisoned in the [U.S.] – [in exchange for their release of Alan Gross.] In response the U.S. proposed – to the Cubans’ surprise – Cuba’s releasing Rolando Sarraff, a spy for the U.S. who had been imprisoned in Cuba since 1995, and thereby enabling the U.S. to claim it was a true “spy swap” and giving it political cover. But the Cubans dis not immediately agree to release Sarraff, a cryptographer who Washington says helped it disrupt Cuban spy rings in the U.S.
At this January meeting Rhodes “started talking . . . about how we wanted to change the relationship. And then they started talking about some of the things that they were considering doing in terms of their own system.” However, “the idea of reestablishing diplomatic relations was not something that was . . . immediately attractive to them. . . . [T]hey’re very comfortable in a position of being an opposition to the[U.S.]. They have built the legitimacy in part [for] much of their approach around the fact that they’re resisting [purported] American aggression. So it was not a no-brainer by any stretch of the imagination for the Cubans to agree to a process of normalization and to an establishment of diplomatic relations.”
Nevertheless, according to Rhodes, the U.S. “came to the view of in the discussions . . . that if we were going to take these very difficult steps of having this prisoner exchange where we get a Cuban intelligence asset of ours and Alan Gross to be released [and] they would get these three Cubans, . . . we needed to broaden the scope of what we are talking about.” The two countries “would have one opportunity to make a big move together and . . . we should try to do as much as we could in that space. And that led to them taking certain confidence-building measures like the release of . . . political prisoners [on a list] that we provided to them, [and] that led to . . . this discussion of setting out a process of normalization . . . [and] to a discussion of establishing diplomatic relations and sending a signal to the world that essentially we are willing to leave the past behind.”
At the same time, according to Rhodes, the U.S. “made very clear in every meeting, we’re going to have differences with your political system. We are going to find much to criticize, we are going to continue [the U.S.] democracy program, we’re going to continue [to criticize] your human rights practices. It doesn’t mean we like everything you do, but we are going to get farther by engaging with this government and opening up Cuba so that there can be more business, more American travel, more engagement between the American and Cuban people. That holds out a lot greater promise to promote the things we care about than the alternative.”
Also at this secret January session in Toronto, the Cubans gratefully remarked that President Obama had treated President Castro with respect at the Mandela funeral the prior month by shaking Raúl’s hand and that no [prior U.S. president or other official had] done that before. Rhodes responded by saying “not only was it the appropriate thing to do–you see someone why would you snub them and not shake his hand. If the Cubans have the right to be any place, it’s certainly at the funeral of Nelson Mandela who[m] they helped in many ways.”
In early February 2014 reporters for Reuters concluded that U.S. relations with Cuba were “at their best in almost two decades, but President Barack Obama seems unwilling or unable to confront a well-organized anti-Cuba lobby and push for further progress.” Reuters obviously did not know about the secret negotiations then going on.
On February 27, 2014, the U.S. Department of State released its Country Reports on Human Rights Practices for 2013, and again it had a negative assessment of Cuba: it is “an authoritarian state” with the following “principal human rights abuses: . . . abridgement of the right of citizens to change the government and the use of government threats, extrajudicial physical violence, intimidation, mobs, harassment, and detentions to prevent free expression and peaceful assembly.”
While the U.S. proposal for Cuba’s release of Sarraff was still on the table, but not yet accepted by Cuba, President Obama held a secret White House meeting in February 2014 with certain lawmakers, including Democratic Senators Patrick Leahy and Dick Durbin. Obama stressed his opposition to a straight Gross-Cuban Three trade and Durbin “raised the possibility of using the Vatican and the Pope as intermediaries.” Thereafter Senator Leahy confidentially persuaded two unnamed Roman Catholic cardinals to ask Pope Francis to raise Cuba and the prisoners when the Pontiff was scheduled to hold a private audience with Obama on March 27th.
That private papal audience did occur on March 27, and immediately afterwards, as discussed in a prior post, the Vatican reported that “during the cordial meetings [with President Obama], views were exchanged on some current international themes and it was hoped that, in areas of conflict, there would be respect for humanitarian and international law and a negotiated solution between the parties involved.” We now know that this was an allusion to their discussion about U.S.-Cuba relations.
Also immediately after that private audience President Obama made comments that in retrospect also alluded to their conversations about Cuba. The President said the Pope and he “had a wide-ranging discussion.“[W]e spent a lot of time talking about the challenges of conflict and how elusive peace is around the world. . . . [W]e also touched on regions like Latin America, where there’s been tremendous progress in many countries, but there’s been less progress in others. . . . [T]he theme that stitched our conversation together was a belief that in politics and in life the quality of empathy, the ability to stand in somebody else’s shoes and to care for someone even if they don’t look like you or talk like you or share your philosophy — that that’s critical. It’s the lack of empathy that makes it very easy for us to plunge into wars. It’s the lack of empathy that allows us to ignore the homeless on the streets. And obviously central to my Christian faith is a belief in treating others as I’d have them treat me. And . . . [what has] created so much love and excitement for His Holiness has been that he seems to live this, and shows that joy continuously.” The President added, “ I was extremely moved by his insights about the importance of us all having a moral perspective on world problems and not simply thinking in terms of our own narrow self-interests.”
Soon after the March Audience, Pope Francis secretly sent the two presidents letters, appealing to both to keep pushing for an agreement.
On April 2, 2014, Alan Gross’s name started to appear in the news again as he commenced a hunger strike in his Cuban prison “to object to mistruths, deceptions, and inaction by both governments, not only regarding their shared responsibility for my arbitrary detention, but also because of the lack of any reasonable or valid effort to resolve this shameful ordeal. Once again, I am calling on President Obama to get personally involved in ending this standoff so that I can return home to my wife and daughters.” Later that month he terminated his hunger strike, and his U.S. lawyer reported that Gross had lost most vision in his right eye, walks with a limp due to hip problems, has lost a tooth and is 110 pounds lighter than at the time of his arrest. Moreover, Gross says in another year he will be dead if he stays in the Cuban prison. Later in June he was threatening to commit suicide.
On April 30, 2014, the U.S. Department of State released its Country Reports on Terrorism 2013. Again Cuba was a designated “state sponsor of terrorism,” but the asserted grounds were very weak: there was no indication Cuba “provided weapons or paramilitary training to terrorist groups;” Cuba continued to provide support to certain U.S. fugitives. Cuba’s Foreign Ministry retorted that it “energetically rejects the manipulation of a matter as sensitive as international terrorism by turning it into an instrument of policy against Cuba and it demands that our country be definitively excluded from this spurious, unilateral and arbitrary list.”
Another public distraction emerged in April 2014 with the Associated Press reports of a covert or “discreet” program of the U.S. Agency for International Development (USAID) that created in Cuba a social media effort to encourage communications among dissidents. Four months later the AP reported about other USAID programs in Cuba with similar aims. 
In June 2014 the Pope sent additional private letters to Obama and Castro calling on them to resolve the cases of Alan Gross and the three Cubans in U.S. prison and also encouraging the two countries to pursue a closer relationship. The letter from Pope Francis, U.S. officials said after December 17th, “gave us greater impetus and momentum for us to move forward. ” This appeal from the Pope was ‘very rare’ and unprecedented. The Pope, acted as a “guarantor” that both sides would live up to the terms of a secret deal.
As the Vatican put it in its press statement on December 17th, “In recent months, Pope Francis wrote letters to . . . [the two presidents] and invited them to resolve humanitarian questions of common interest, including the situation of certain prisoners, in order to initiate a new phase in relations between the two Parties.”
Francis’ involvement also provided Obama with potential political coverage against any future criticism by Cuban-American (and Roman Catholic) Senators Robert Menendez (Dem., NJ) and Marco Rubio (Rep., FL) and others.
In the meantime, the U.S. public stance towards Cuba remained unchanged. In early October 2014, Cuba publicly stated it had not received any indication the Obama administration might change U.S. policy toward Cuba despite increasing support within the United States for closer ties. We now know that this was a false report designed to conceal their ongoing secret negotiations.
On October 28, 2014, the U.N. General Assembly again condemned the U.S. embargo of Cuba by a vote of 188 to the 2 negative votes cast by the U.S. and Israel. At this session Cuba asserted that the embargo had damaged its economy in the total amount of $1.1 trillion.
Also in October 2014 the New York Times began what became a series of editorials through mid-December 2014 that called for normalization of the two countries’ relations, commended Cuba for its medical teams in West Africa that were fighting Ebola, called for prisoner exchanges and criticized the USAID programs in Cuba, the U.S. special immigration status for Cuban medical personnel and the U.S. designation of Cuba as a “state sponsor of terrorism” while reiterating its advocacy of normalization. One wonders whether the Times had advance tips or inklings that the Obama Administration soon would be announcing a major shift in U.S. policies toward Cuba and whether the Times was preparing the country for the changes.
Behind the scenes in October 2014 (before the U.S. mid-term elections) the deal was secretly finalized in Rome, where the U.S. and Cuban teams met separately with Vatican officials, then all three teams together. According to the Vatican’s press statement on December 17th, “The Holy See received Delegations of the two countries in the Vatican last October and provided its good offices to facilitate a constructive dialogue on delicate matters, resulting in solutions acceptable to both Parties.”
In early December Rhodes and Zuniga secretly met the Cubans again at the Vatican to nail down logistics for the December 17 announcements of prisoner releases, easing of U.S. sanctions, normalization of U.S.-Cuba relations and Cuba’s freeing of 53 political prisoners.
Pressures for an announcement as soon as possible at the end of 2014 were several. The health of Alan Gross was reportedly declining in a Cuban prison, and President Obama and Secretary of State John Kerry legitimately believed that reconciliation would be destroyed if he died in that prison. Delaying the announcement also ran the risk of a leak of the existence of the secret negotiations that would upset, if not destroy, the reconciliation. Less immediate was the upcoming Summit of the Americas in April 2015 with the U.S. needing to have a positive position on host country Panama’s invitation to Cuba to attend the Summit.
In addition, U.S. domestic political considerations pointed towards a December announcement before the Republican-controlled 114th Congress opened in early January and as soon as possible (the next day) after the adjournment of the 113th so that there would be no resulting interference with the completion of the many items of unfinished business of the current Congress. December also is the traditional time for exercise of presidential clemency (pardons and commutation of sentences), the latter of which was used for the release of the remaining three of the Cuban Five on December 17th.
As noted in a prior post, President Obama as part of his December 17th announcement of rapprochement with Cuba acknowledged that “His Holiness Pope Francis” had supported these measures and thanked the Pope, “whose moral example shows us the importance of pursuing the world as it should be, rather than simply settling for the world as it is.” In particular, the President said, “His Holiness Pope Francis issued a personal appeal to me and to Cuban President Raul Castro urging us to resolve Alan [Gross]’s case and to address Cuba’s interest in the release of three Cuban agents who have been jailed in the United States for over 15 years.”
Similarly Cuban President Raúl Castro in his December 17thremarks to the Cuban people said, “I wish to thank and acknowledge the support of the Vatican, most particularly the support of Pope Francisco, in the efforts for improving relations between Cuba and the United States.”
Immediately after the December 17th announcements by Presidents Obama and Castro, Pope Francis publicly expressed his “his warm congratulations for the historic decision taken by the Governments of the United States of America and Cuba to establish diplomatic relations, with the aim of overcoming, in the interest of the citizens of both countries, the difficulties which have marked their recent history.” The Pontiff also said, “The Holy See will continue to assure its support for initiatives which both nations will undertake to strengthen their bilateral relations and promote the wellbeing of their respective citizens.”
This initiative with Cuba, recently said Rhodes, is an example of what he called “the Obama doctrine and our whole foreign policy. We have to reposition the United States to be able to lead in this century. . . . We have been trying steadily to reposition the [U.S.], to refocus on the Asia-Pacific through the TPP agreement to withdraw that resource allocation and put in place a more sustainable counterterrorism policy that doesn’t eliminate risk but manages it and aims to prevent attacks on the [U.S.].
The Obama Administration’s conducting 24-months of secret negotiations with the Cuban government without any leak is an amazing accomplishment. One example of this lack of outside knowledge is a 2014 book by Chuck Todd, NBC’s noted Washington political reporter who reportedly knows everything that is going on, that says, “There has been little effort to engage or open Cuba, even as the end of the Castro brothers’ regime approaches. In fact, Cuba’s a great example of Obama’s famous caution. While he has been unusually critical of American policy toward Cuba, he won’t use his executive power to make a change.” Sorry, Chuck, you were so very wrong.
These negotiations were without preconditions, just as then candidate Obama had urged when he was campaigning for the Democratic Party’s presidential nomination in 2007-2008. Here too he was hit with charges that such a strategy was misguided and naive. But, I submit, it is the only rational strategy after 50-plus years of trying the opposite approach when, in my opinion, many of what we in the U.S. see as Cuban human rights violations are Cuba’s understandable defensive reactions to a long record of U.S. hostility and aggression against Cuba.
While all of this was going on, U.S. public opinion polls showed increasing support for normalization of U.S.-Cuba relations, and new groups supporting normalization or reconciliation were emerging. Especially in 2014, on the other hand, the Obama Administration was compelled to react to news about the USAID’s purported pursuit of Cuban democracy through various “discreet” or covert programs. Guantanamo Bay also kept in the news with disputes about detainee transfers and Obama’s continuing efforts to close its detention facility. Of course, strident cries objecting to any normalization or reconciliation continued to come from Senators Rubio, Cruz and Menendez and from Representatives Ileana Ros-Lehtinen and Mario Diaz-Balart.
After the December 17 announcement, as recounted in many subsequent posts, the two countries engaged in publicly announced negotiations on many subjects; the U.S. loosened regulations about U.S. trade with, and travel to, the island; the U.S. rescinded its designation of Cuba as a “state sponsor of terrorism;” many U.S. politicians and business officials traveled to Cuba to observe and discuss future prospects; and bills were introduced in Congress to end the U.S. embargo and restrictions on travel to the country while die-hards in that body offered measures to try to prevent or stall normalization and reconciliation. As everyone recognizes, however, the job of normalization is just starting.
As President Obama put it in his January 20, 2015, State of the Union Address to the Congress, the American people and the world,“I believe in a smarter kind of American leadership. We lead best when we combine military power with strong diplomacy; when we leverage our power with coalition building; when we don’t let our fears blind us to the opportunities that this new century presents. That’s exactly what we’re doing right now. And around the globe, it is making a difference.”
“In Cuba, we are ending a policy that was long past its expiration date. When what you’re doing doesn’t work for 50 years, it’s time to try something new. And our shift in Cuba policy has the potential to end a legacy of mistrust in our hemisphere. It removes a phony excuse for restrictions in Cuba. It stands up for democratic values, and extends the hand of friendship to the Cuban people. And this year, Congress should begin the work of ending the embargo.”
“As His Holiness, Pope Francis, has said, diplomacy is the work of ‘small steps.’ These small steps have added up to new hope for the future in Cuba. And after years in prison, we are overjoyed that Alan Gross is back where he belongs. Welcome home, Alan [, who was in the public gallery with First Lady Michelle Obama]. We’re glad you’re here.”
The United States has damage claims against Cuba and visa versa. This post will review those claims and propose a method for resolving them.
Cuba’s Expropriation of Property of U.S. Nationals. 
According to a U.S. Government report, “in 1959 and 1960 . . . the Government of Cuba after the Castro regime came into power . . . effectively seized and took into state ownership most of the property in that country owned by the [U.S.] and its nationals, with the exception of the United States Naval Base at Guantanamo Bay. No provision was made by the Cuban Government for the payment of compensation for such property as required under the generally accepted rules of international law.” (Cuba, however, has paid similar claims by Canada, France, Spain and Switzerland.) 
In response, a federal statute, the Cuba Claims Act, was enacted in 1964 to amend the International Claims Settlement Act of 1949 to grant the Foreign Claims Settlement Commission of the United States (FCSC), a quasi-judicial, independent agency within the U.S. Department of Justice, jurisdiction to receive and determine in accordance, with applicable substantive law, including international law, the amount and validity of certain claims by U.S. nationals of the against the Government of Cuba.
The covered claims for this purpose were those arising since January 1, 1959, for (a) “losses resulting from the nationalization expropriation, intervention or other taking of, or special measures directed against, property including any rights or interests therein owned wholly or partially, directly or indirectly at the time by nationals of the [U.S.];” (b) debts for merchandise furnished or services rendered by U.S. nationals; and (c) disability or death of U.S. nationals resulting from actions taken by, or under the authority of, the Government of Cuba since January 1, 1959.
The statute, however, did not provide for the payment of claims against the Government of Cuba, but only for the Commission to determine the validity and amounts of such claims. After its determinations, the Commission certified its findings to the Secretary of State for possible use in future negotiations with the Government of Cuba.
In signing the statute on October 16, 1964, President Lyndon Johnson said: “The Castro regime has appropriated over $1 billion worth of property of [U.S.] nationals in total disregard for their rights. These unlawful seizures violated every standard by which the nationals of the free world conduct their affairs. I am confident that the Cuban people will not always be compelled to suffer under Communist rule-that one day they will achieve freedom and democracy. I am also confident that it will be possible to settle claims of American nationals whose property has been wrongfully taken from them.”
The Commission had two programs for such claims against the Cuban government, resulting in the total submission of 8,821 claims and the Commission’s determinations that 5,913 were valid with a total principal value of $1,902,202,285 (or $1.9 billion) plus 6% per annum from the date of the loss. Although 90% of these claims were filed by individuals, the largest ones are by corporations: Cuba Electric (owned by Americans), $ 268 million; IT&T, $131 million; and Exxon, $71 million.
Recent commentaries suggest that with interest the claims now total nearly $7 billion. 
Default Judgment Against Cuba for Deaths of U.S. Pilots Over International Waters
A prior post about “The Cuban Five” mentioned that Cuban military planes in 1996 shot down two U.S. private planes over international waters near Cuba and killed three of their pilots and that a U.S. federal court entered a default judgment of $187 million against the Government of Cuba for their deaths. That judgment plus interest remains unpaid.
Any and all other claims for damages by the U.S. against Cuba should also be included and resolved as part of any dispute-resolution procedure.
Alleged Damages from U.S. Embargo (Blockade) of Cuba 
At the October 2014 session of the U.N. General Assembly, Cuba offered a resolution condemning the U.S. embargo (blockade), which overwhelmingly was approved. Speaking for the resolution, Cuba’s Foreign Minister, Bruno Gonzalez Parrilla, alleged that Cuba was damaged by the embargo and that the damages totaled $1.1 trillion.
The U.S. diplomat at the session obviously disagreed. The diplomat argued that Cuba’s economic difficulties were due to its own policies and that it would not thrive until it committed itself to a free and fair market, allowed unfettered access to information, opened its state-run monopolies and adopted sound economic policies.
Unpaid Rent for Use of Guantanamo Bay.
A prior post mentioned that Cuba for the last 56 years has not cashed the U.S. checks for the annual rent of $4,085 for Guantanamo Bay. This amounts to at least $228,760 for those years plus interest. If Cuba alleges that the annual unpaid rent should be a higher figure, then the total claim obviously would be higher.
If there are any other damage claims by Cuba against the U.S., then it is fair to believe they will be asserted.
These claims, in my opinion, will not be resolved in negotiations between the two countries. I, therefore, suggest that the parties agree to submit all of their damage claims against each other for resolution to the Permanent Court of Arbitration at the Hague in the Netherlands under its Arbitration Rules 2012 before a panel of three or five arbitrators. A prior post made this recommendation for the expropriation claims,
My experience as a lawyer who handled business disputes in U.S. courts and in international arbitrations leads me to believe that arbitration is the appropriate way to resolve these claims by the two governments. The Permanent Court of Arbitration was established in the late 19th century to resolve disputes between governments. It would be a third-party, neutral administrator of the proceedings and the arbitrators who would be selected would also be neutral. Finally it has an existing set of arbitration rules and procedures.
A 2007 study commissioned by the U.S. Agency for International Development (USAID) proposed a treaty or a U.S. presidential executive order to establish a bilateral arbitration tribunal that would be empowered to issue an award compelling Cuba to pay money or to provide tax benefits or other incentives for new investment. This proposal like the one just proposed by this blogger advocates having a neutral third-party decide the outcome of these claims, but it adds the necessity of preparing and agreeing to the composition and rules of a new ad hoc tribunal. 
Everyone recognizes that Cuba does not have the financial resources to pay any large claim like the one for expropriation of U.S. nationals’ property in 1959-1960 so any substantial monetary recovery would have to come from a determination that the U.S. was liable to Cuba for damages for the embargo. Otherwise, there would have to be some settlement of the larger expropriation claims with tax or other incentives for entering into new business ventures on the island.
 This section of the post is based upon the Commission’s website’s description of the agency, an overview of the two Cuba programs, a final report on the first program, copies of what it terms “lead decisions” in the programs, decisions on all the claims and a spreadsheet listing all of those claims and their amounts.
A prior post referred to the secret U.S.-Cuba negotiations that resulted in the December 17, 2014, announcements by presidents Obama and Castro that the two countries were embarking on a process of re-establishing diplomatic relations and resolving many issues that have accumulated over the last 50 years. Another post described the involvement of Pope Francis in these negotiations.
Now Reuters reports the following new details about these subjects.
Originally the breakthrough was thought to be the result of such secret negotiations over the prior 18 months (or since June 2013). Now, says Reuters, the process really began in December 2012 when President Obama after reelection with 48% of the Cuban-American vote instructed aides to make Cuba a priority and “see how far we could push the envelope,” according to Ben Rhodes, a Deputy National Security Advisor who played a central role in shaping Cuba policy.
The next month, January 2013, Ricardo Zuniga, Obama’s top Latin American adviser, went to Miami and met with a representative of the anti-Castro Cuban American National Foundation and with young Cuban-Americans, the latter of whom helped confirm the waning influence of older Cuban exiles who have traditionally supported the half-century-old embargo.
By April 2013, the White House was ready to proceed with the Cubans by quietly proposing back-channel talks after getting notice that Havana would be receptive. Obama initially froze out the State Department on these developments in part due to concern that its “vested interests” would still be bent on perpetuating a confrontational approach. Even Secretary of State John Kerry was informed of the talks only after it appeared they might be fruitful.
In any event, the secret negotiations started in June 2013 in Ottawa, Canada. The Cubans opened with harangues about the embargo and other perceived wrongs. Rhodes, age 37, responded, “Look I wasn’t even born when this policy was put in place … We want to hear and talk about the future.”
The Cubans in these initial sessions also insisted on an exchange of the remaining three of “The Cuban Five” in U.S. prison for U.S. citizen, Alan Gross, in Cuban prison. Obama refused such a deal because Washington denied Gross was a spy and because Obama did not want a three-for-one trade. As a result by the end of 2013, the negotiations had stalled.
At a January 2014 negotiating session in Toronto, however, the U.S. proposed – to the Cubans’ surprise – Cuba’s releasing Rolando Sarraff, a spy for the U.S. who had been imprisoned in Cuba since 1995, and thereby enabling the U.S. to claim it was a true “spy swap” and giving it political cover. But the Cubans dis not immediately agree to release Sarraff, a cryptographer who Washington says helped it disrupt Cuban spy rings in the U.S.
While the Sarraff proposal was still on the table, but not yet accepted by Cuba, President Obama held a White House meeting in February 2014 with certain lawmakers, including Democratic Senators Patrick Leahy and Dick Durbin. Obama stressed his opposition to a straight Gross-Cuban Three trade, and Durbin “raised the possibility of using the Vatican and the Pope as intermediaries.”
Thereafter Senator Leahy persuaded two unnamed Roman Catholic cardinals to ask Pope Francis to raise Cuba and the prisoners when he was scheduled to hold a private audience with Obama in March.
At that private audience, as reported in a prior post, Francis and Obama did discuss the U.S.-Cuba situation, and the Pope in June sent letters to Obama and Castro urging reconciliation and the prisoner exchange. Francis’ involvement also provided Obama with political coverage against future criticism by Cuban-American Senators Robert Menendez (Dem., NJ) and Marco Rubio (Rep., FL) and others.
In October 2014 (before the U.S. mid-term elections) the deal was finalized in Rome, where the U.S. and Cuban teams met separately with Vatican officials, then all three teams together.
In early December Rhodes and Zuniga met the Cubans again to nail down logistics for the December 17 announcements of prisoner releases, easing of U.S. sanctions, normalization of U.S.-Cuba relations and Cuba’s freeing of 53 political prisoners.
Strobel, Spetalnick & Adams, How Obama Outmaneuvered Hardliners and cut a Cuba Deal, Reuters (Mar. 23, 2015),
Reuters, , N.Y. Times (Mar. 23, 2015), How Obama Outmaneuvered Hardliners and Cut a Cuba Deal