U.S. Withdraws from U.N. Human Rights Council 

On June 19 U.S. Secretary of State Mike Pompeo and U.S. Ambassador to the U.N. Nikki Haley announced that the U.S. had “withdrawn” from its membership on the U.N. Human Rights Council.[1] The Council’s current President, Ambassador Vojislav Šuc (Slovenia) immediately responded to this news.

Secretary Pompeo’s Remarks

“The Trump administration is committed to protecting and promoting the God-given dignity and freedom of every human being. Every individual has rights that are inherent and inviolable. They are given by God, and not by government. Because of that, no government must take them away.”

“For decades, the United States has led global efforts to promote human rights, often through multilateral institutions. While we have seen improvements in certain human rights situations, for far too long we have waited while that progress comes too slowly or in some cases never comes. Too many commitments have gone unfulfilled.”

“President Trump .. . has called out institutions or countries who say one thing and do another. And that’s precisely the problem at the . . . Council. As President Trump said at the UN General Assembly: “It is a massive source of embarrassment to the United Nations that some governments with egregious human rights records sit on the . . . Council.” In short, the Council now “is a poor defender of human rights.”

It “has become an exercise in shameless hypocrisy – with many of the world’s worst human rights abuses going ignored, and some of the world’s most serious offenders sitting on the council itself.” Those members include “authoritarian governments with unambiguous and abhorrent human rights records, such as China, Cuba, and Venezuela.” In addition, the Council’s “bias against Israel is unconscionable. Since its creation, the council has adopted more resolutions condemning Israel than against the rest of the world combined.”

Moreover, the U.S. “will not take lectures form hypocritical bodies and institution as Americans selflessly give their blood and treasure to help the defenseless.”

 Ambassador Haley’s Remarks

The Ambassador recalled her speech to the Council in June 2017 that “declared our intent to remain a part of the . . . Council if essential reforms were achieved.. . . to make the council a serious advocate for human rights.”[2]

She then provided details on how the U.S. since then unsuccessfully has endeavored to obtain such reforms. Therefore, the U.S. “is officially withdrawing from the . . . Council.”

The details of the failure of reform included: (a) the U.N. General Assembly last Fall electing as a Council member the Democratic Republic of the Congo, which “is widely known to have one of the worst human rights records in the world;” (b) the Council would not hold “a meeting on the human rights conditions in Venezuela” because it is a Council member; (c) early this year the Council passed five resolutions against Israel; (d) the U.S. effort to reform the Council was blocked by “unfree countries,” including “Russia, China, Cuba, and Egypt;” and (e) “many members that share U.S. values “were unwilling to seriously challenge the status quo.”

In contrast, she said, under U.S. leadership the U.N. Security Council this past 12 months held its “first ever . . . session dedicated to the connection between human rights and peace and security” and another session on “Iranian human rights.” In addition, last year the U.S. organized “an event on Venezuela outside the Human Rights Council chambers in Geneva.” And the Ambassador herself has traveled “to UN refugee and internally displaced persons camps in Ethiopia, Congo, Turkey, and Jordan, and met with the victims of atrocities in those troubled regions.”

Council President Šuc’s Statement[3]

“While I recognize it is the prerogative of any member State to take such a decision [to withdraw], I wish to acknowledge that the United States has been a very active participant at the Council having engaged constructively on numerous issues aimed at improving the lives of rights holders around the globe, including the many issues which we are addressing in our current session. The Human Rights Council always stands to benefit from constructive engagement of its member States.”

“In times when the value and strength of multilateralism and human rights are being challenged on a daily basis, it is essential that we uphold a strong and vibrant Council recognizing it as a central part of the United Nations for the 21st century.”

“Over the past 12 years, the . . . Council has tackled numerous human rights situations and issues keeping them in sharp focus.  In many senses, the Council serves as an early warning system by sounding the alarm bells ahead of impending or worsening crises.  Its actions lead to meaningful results for the countless human rights victims worldwide, those the Council serves.”

“The . . . Council is the only intergovernmental body responding to human rights issues and situations worldwide, with the active participation of civil society.  It provides a unique setting to hear a wide range of views, including those which other organizations are unable or unwilling to discuss.”

Conclusion

I disagree with the U.S. decision to withdraw from its membership on the Council for several reasons.

First, the Human Rights Council does not have the power to order any Council member or any other U.N. member to do anything. Instead it is “responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and [making] recommendations on them. It has the ability to discuss all thematic human rights issues and situations that require its attention.” In short, it is a forum for discussion or debate on these issues, and the U.S. has an important voice to raise on these issues.

Second, there are 47 Council members, and although the U.S. correctly points out that some members have horrible human rights records, there is no claim that such countries constitute a majority of the Council. Moreover, no country in the world has a perfect record on these issues, including the U.S.

Third, all Council members, including the bad actors, are subject to Universal Periodic Review (UPR) every five years. A mere summary of the latest UPRs for the countries mentioned by Secretary Pompeo and Ambassador Haley shows that each of them received many recommendations for improving their human rights records, thereby negating or diminishing the notion advanced by these two U.S. officials that those with poor records escape censure by the Council.[4]

Fourth, the High Commissioner for Human Rights has the authority and responsibility to provide the Council with his or her assessment of human rights concerns in the world. The current High Commission did just that on June 18 (the day before the previously mentioned U.S. decision to withdraw from the Council).[5] In so doing he had critical comments about  seven of the nine countries identified by Pompeo and Haley as having bad human rights records (China, Democratic Republic of Congo, Ethiopia, Iran, Russia, Turkey and Venezuela).

Fifth, the High Commissioner had these critical fact-based criticisms of    Israel and the U.S., which both countries should be willing and able to evaluate on their merits:

  • “Israel continues to deny access to the Occupied Palestinian Territory by the Special Rapporteur on the Situation of human rights in the Palestinian territory occupied since 1967. This has been the case for three successive holders of the mandate. Access has also been denied to all of the Council’s previous Commissions of Inquiry, including on Gaza in 2014. I believe the Council’s advocacy of impartial monitoring and expert recommendations is entirely justified by the gravity of the situation, and I urge Israel to provide access to all human rights mechanisms – including the investigative body mandated last month – to enable impartial monitoring and advance accountability and justice.” (Emphasis in original.)
  • “In the United States, I am deeply concerned by recently adopted policies which punish children for their parents’ actions. In the past six weeks, nearly two thousand children have been forcibly separated from their parents. The American Association of Pediatrics has called this cruel practice ‘government-sanctioned child abuse’ which may cause ‘irreparable harm,’ with ‘lifelong consequences’. The thought that any State would seek to deter parents by inflicting such abuse on children is unconscionable. I call on the [U.S.] to immediately end the practice of forcible separation of these children, and I encourage the Government to at last ratify the Convention on the Rights of the Child, in order to ensure that the fundamental rights of all children, whatever their administrative status, will be at the center of all domestic laws and policies.” (Emphasis in original.) [6]

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[1]  U.S. State Dep’t, Remarks on the UN Human Rights Council (June 19, 2018). The Council is made up of 47 U.N. Member States, which are elected by the majority of members of the U.N. General Assembly through direct and secret ballot. The Council’s Members serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms. The U.S. is in its second consecutive term ending  January 1, 2019.

[2] Haley, Remarks at the United Nations Human Rights Council (June 6, 2017); Haley, Remarks at the Graduate Institute of Geneva on “A Place for Conscience: the Future of the United States in the Human Rights Council” (June 6, 2017).

[3] Human Rts. Council, Press Statement by the President of the Human Rights Council, Ambassador Vojislav Šuc (Slovenia) (June 19, 2018)

[4] Human Rights Council: Report of the Working Group on the UPR-China (252 paragraphs of recommendations) (Dec. 4, 2013);Report of the Working Group on the UPR-Cuba (292 paragraphs of recommendations) (July 8, 2013); Report of the Working Group on the UPR-Democratic Republic of Congo (229 paragraphs of recommendations) (July 7, 2014); Report of the Working Group on the UPR-Ethiopia (252 paragraphs of recommendations) (July 7, 2014); Report of the Working Group on the UPR-Iran (291 paragraphs of recommendations) (Dec. 22, 2014); Report of the Working Group on the UPR-Jordan (173 paragraphs of recommendations) (Jan. 6, 2014); Report of the Working Group on the UPR-Russian Federation (231 paragraphs of recommendations) (July 8, 2013);Report of the Working Group on the UPR-Turkey (278  paragraphs of recommendations) (April 13, 2015); Report of the Working Group on the UPR-Venezuela (274  paragraphs of recommendations) (Dec. 27, 2016).

[5]  U.N. Hum. Rts. Council, Opening statement and global update of human rights concerns by UN High Commissioner for Human Rights Zeid Ra’ad Hussein at 38th session of the Human Rights Council (June 18, 2018).

[6] After a firestorm of criticism by the public and politicians from both major political parties, President Trump on June 20 signed an executive order ending the policy of separating immigrant children from their immigrant parents. (Haberman & Shear, Trump Signs Executive Order to Keep Families Together, N.Y. Times (June 20, 2018).)

 

 

Cuba Religious Freedom in the Eyes of the U.S. Commission on International Religious Freedom   

On April 25, 2018, the U.S. Commission on International Religious Freedom released its annual report on the subject for 28 countries in the world. Of these the Commission concluded that Cuba and 11 other countries had engaged in or tolerated religious freedom violations during 2017 that were serious and “systematic,  or ongoing, or egregious.”[1]

Commission’s Key Findings About Cuba[2]

According to this report, “religious freedom conditions in Cuba remained poor” with the following Key Findings:

  • “The Cuban government engaged in harassment campaigns that included detentions and repeated interrogations targeting religious leaders and activists who advocate for religious freedom.”
  • “Officials threatened to confiscate numerous churches and interrogated religious leaders countrywide about the legal status of their religious properties.”
  • “The government continues to interfere in religious groups’ internal affairs and actively limits, controls, and monitors their religious practice, access to information, and communications through a restrictive system of laws and policies, surveillance, and harassment.”
  • “While the Cuban constitution guarantees freedom of religion or belief, this protection is limited by other constitutional and legal provisions. At the end of the reporting period, 55 religious communities were registered; only registered religious communities are legally permitted to receive foreign visitors, import religious materials, meet in approved houses of worship, and apply to travel abroad for religious purposes.”
  • “The Cuban Communist Party Office of Religious Affairs (ORA) answers only to the Party and so it has broad, largely unchecked power to control religious activity, including approving some religious ceremonies other than worship services, repair or construction of houses of worship, and importation of religious materials.”
  • “Authorities prevent human rights and pro-democracy activists from participating in religious activities, sometimes using force. Almost every Sunday in 2017, the government prevented members of Ladies in White from attending Mass.”
  • “In a positive development, officials verbally promised the Assemblies of God that the government would not confiscate 1,400 of their churches as it threatened to do in 2015 and 2016.”

Commission’s Recommendations About Cuba to U.S. Government[3]

The Commission also made the following recommendations about Cuba to the U.S. Government:

  1. “Publicly denounce violations of religious freedom and related human rights in Cuba.”
  2. “Press the Cuban government to:
  • “Stop harassment of religious leaders;
  • End the practice of violently preventing democracy and human rights activists from attending religious services;
  • End destruction of, threats to destroy, and threats to expropriate houses of worship;
  • Lift restrictions on religious communities buying property, building or repairing houses of worship, holding religious processions, importing religious materials, and admitting religious leaders;
  • Allow unregistered religious groups to operate freely and legally, and repeal government policies that restrict religious services in homes or other personal property;
  • Allow registered and unregistered religious groups to conduct religious education;
  • Cease interference with religious activities and religious communities’ internal affairs; and
  • Hold accountable police and other security personnel for actions that violate the human rights of religious practitioners, including the religious freedom of political prisoners.”
  1. “Increase opportunities for Cuban religious leaders from both registered and unregistered religious communities to travel to, exchange aid and materials with, and interact with coreligionists in the United States.”
  2. “Apply the Global Magnitsky Human Rights Accountability Act, Executive Order 13818, or other relevant targeted tools, to deny U.S. visas to and block the U.S. assets of specific officials and agencies identified as responsible for violations of the right to freedom of religion or belief, including considering responsible officials from the ORA for such measures.”
  3. “Use appropriated funds to advance internet freedom and widespread access to mass media, and protect Cuban activists by supporting the development and accessibility of new technologies and programs to counter censorship and to facilitate the free flow of information in and out of Cuba, as informed by the findings and recommendations of the Cuba Internet Task Force created pursuant to the National Security Presidential Memorandum, ‘Strengthening the Policy of the United States Toward Cuba.’”
  4. “Encourage international partners, including key Latin American and European countries and regional blocs, to ensure violations of freedom of religion or belief and related human rights are part of all formal and informal multilateral or bilateral discussions with Cuba.”

Conclusion

On May 29, the State Department will release its annual report on religious freedom in every other. country in the world.[4] Thereafter we will examine its comments on Cuba and then analyze and evaluate the two reports’ discussion of Cuba.

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[1] U.S. Comm’n Intl Religious Freedom, USCIRF Releases 2018 Annual Report, Recommends 16 Countries be Designated “Countries of Particular Concern,” (April 25, 2018). The other 11 countries in this category (Tier 2) were Afghanistan, Azerbaijan, Bahrain,  Egypt India, Indonesia, Iraq, Kazakhstan, Laos, Malaysia and Turkey. The Commission also recommended that the State Department designate the following 16 countries as “Countries of Particular Concern” (countries whose government engage in or tolerates particularly severe (or systematic, ongoing, and egregious) religious freedom violations: Burma, Central African Republic, China, Eritrea, Iran, Nigeria, North Korea, Pakistan, Russia, Saudi Arabia, Sudan, Syria, Tajikistan, Turkmenistan, Uzbekistan and Vietnam. The Commission is an unusual quasi-governmental body. See U.S. Commission on International Freedom: Structure and Composition, dwkcommentaries.com (May 29, 2013).

[2]  2018 Annual Report at 148-53.

[3]  Id.

[4]  U.S. State Dep’t, Secretary Pompeo To Release the 2017 International Religious Freedom Report (May 25, 2018).

 

New U.S. Annual Report on Human Rights Around the World

On April 20 the U.S. State Department released its 2017 Country Reports on Human Rights Practices.  Acting Secretary of State John J. Sullivan wrote the Preface to the Reports and made remarks upon their release while a Special Briefing on the Reports was conducted by Ambassador Michael G. Kozak, the head of the Department’s Bureau of Democracy, Human Rights and Labor.

These three introductions to the Reports will be discussed below, and a future post will review the report on Cuba.

Preface by Acting Secretary of State Sullivan[1]

“We are a nation founded on the belief that every person is endowed with inalienable rights. Promoting and defending these rights is central to who we are as a country.”

“The 2017 Country Reports on Human Rights Practices . . . document the status of human rights and worker rights in nearly 200 countries and territories. These reports are required by U.S. law and are used by a variety of actors, including the U.S. Congress, the Executive branch, and the Judicial branch as a factual resource for decision-making in matters ranging from assistance to asylum.”

“The 2017 U.S. National Security Strategy recognizes that corrupt and weak governance threatens global stability and U.S. interests. Some governments are unable to maintain security and meet the basic needs of their people, while others are simply unwilling. States that restrict freedoms of expression and peaceful assembly; that allow and commit violence against members of religious, ethnic, and other minority groups; or that undermine the fundamental dignity of persons are morally reprehensible and undermine our interests. The Governments of China, Russia, Iran, and North Korea, for example, violate the human rights of those within their borders on a daily basis and are forces of instability as a result.”

“Our foreign policy reflects who we are and promotes freedom as a matter of principle and interest. We seek to lead other nations by example in promoting just and effective governance based on the rule of law and respect for human rights. The United States will continue to support those around the world struggling for human dignity and liberty.”

Remarks by Acting Secretary of State  Sullivan[2]

The Acting Secretary noted that this was the 42nd year of such reports, which “are a natural outgrowth of our values as Americans. The founding documents of our country speak to unalienable rights, fundamental freedoms, and the rule of law – revolutionary concepts at the time of our founding that are now woven into the fabric of America and its interests both at home and abroad.”

“Promoting human rights and the idea that every person has inherent dignity is a core element of this administration’s foreign policy. It also strengthens U.S. national security by fostering greater peace, stability, and prosperity around the world. The Human Rights Reports are the most comprehensive and factual accounting of the global state of human rights. They help our government and others formulate policies and encourage both friends and foes to respect the dignity of all individuals without discrimination.”

“This year, we have sharpened the focus of the report to be more responsive to statutory reporting requirements and more focused on government action or inaction with regard to the promotion and protection of human rights. For example, each executive summary includes a paragraph to note the most egregious abuses that occurred in a particular country, including those against women, LGBTI persons, persons with disabilities, indigenous persons, and members of religious minorities.”

Sullivan then had comments about some countries “with the most egregious human rights records:” Syria, Burma, North Korea (DPRK), China, Iran, Turkey, Venezuela and Russia. He concluded by noted three countries with improvements: Uzbekistan, Liberia and Mexico.

Briefing by Ambassador Kozak[3]

Responding to a journalist’s question whether the U.S. issuance of this report could be regarded as hypocrisy because of U.S. human rights problems, the Ambassador said that this would be an unfounded charge. The report criticizes some country’s revoking licenses of media that criticize the government and even killing journalists; the U.S. does not do that. He also said the U.S. has laws to protect foreigners from being returned to countries where they are likely to face illegal persecution.

Nozak rejected the notion that the report was weakened by President Trump’s calling the U.S. press an enemy of the people and suggesting changing U.S. libel laws to protect politicians like him from unfounded reporting. In contrast he said independent journalists in Cuba “are routinely slapped around, they also get called names, “

This year’s report omitted a special section on women’s reproductive rights because it is not a term derived from an international treaty or from the U.S. statute requiring these annual reports; the latter refers to coerced family planning, coerced abortion or involuntary sterilization. In addition, the new U.S. report has a hyperlink to a WHO report on the subject.

Kozak rejected the notion that this report was undercut by President Trump’s meetings with leaders of countries with poor human rights records.

The U.S. as a matter of policy supports NGOs around the world  that are working to improve human rights.

For  North Korea, the U.S. is concerned about the nuclear issue and about human rights. The report “pretty starkly [discusses] the kinds of abuses, and over the last year or two, we’ve supported . . . a commission of inquiry on North Korea, we support NGOs that are working on North Korea and exposing the human rights abuses that occur in the camps there and so on. But some of the stories that are contained in the report are just overwhelming. There’s one about 11 people who were arrested for supposedly making a pornographic film and they were executed by shooting anti-artillery weapons at them, and then they brought out tanks and ran over the bodies, and this is supposed to be a civilized country.”

The Preface to the report calls China, Russia, Iran and North Korea as “forces of instability.”  This is not a defined term, but refers to situations where internal actions generate international problems like refugee flows and humanitarian crises.

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[1] U.S. State Dep’t, Preface to Country Reports on Human Rights Practices for 2017 (April 20, 2018).

[2] U.S. State Dep’t, Remarks on the Release of the 2017 Country Reports on Human Rights Practices (April 20, 2018).

[3] U.S. State Dep’t, Briefing on the Release of the 2017 Country Reports on Human Rights Practices (April 20, 2018).

U.N. Human Rights Council’s Sparring Over Cuban Human Rights

This September the U.N. Human Rights Council  in Geneva, Switzerland has encountered two items relating to Cuba: (a)  a Council reprimand of Cuba for its alleged punishing some of its citizens for cooperating with the U.N. on human rights and (b) Cuba’s human rights record.

The Council’s Reprimand

On September 20 the U.N. Human Rights Council reprimanded Cuba by putting it on a list of 29 states that have “punished people, through intimidation and reprisals, for cooperating with the UN on human rights.”  Such reprisals and intimidation include travel bans, asset-freezing, detention and torture.[1]

The  29 states on the list are Algeria, Bahrain, Burundi, China, Cuba, Egypt, Eritrea, Honduras, India, Iran, Israel, Mauritania, Mexico, Morocco, Myanmar, Oman, Pakistan, Rwanda, Saudi Arabia, South Sudan, Sri Lanka, Sudan, Tajikistan, Thailand, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan and Venezuela. (The nine in bold along with 38 other U.N. members are elected by the U.N. General Assembly to serve on the Council.)

The report said the  following about Cuba:

“On 18 October 2016, some mandate holders raised with the [Cuban] Government allegations of harassment and reprisals against human rights defenders and members of the Cubalex Legal Information Center for their cooperation with the United Nations in the field of human rights (see A/HRC/34/75, CUB 3/2016). The allegations were mainly in relation to advocates’ cooperation with the Human Rights Council, its special procedures and the universal periodic review mechanism, and took the form of stop and questioning at the airport and harassment by immigration agents. Additionally, on 23 September 2016, the offices of Cubalex Legal Information Center were raided (CUB 3/2016).” (Report, Section V.B.5.)[2]

The Council’s Assistant Secretary-General, Andrew Gilmour, said, “There is something grotesque and entirely contrary to the Charter and spirit of the United Nations, and particularly this Council, that people get punished, through intimidation and reprisals, for cooperating with the U.N. on human rights,”

Complaint about Cuba’s Human Rights

On September 19, under the Council’s Agenda Item 4: “Human Rights Situations Requiring Council Attention,” a U.S. diplomat expressed U.S.’ deep concern about the human rights situation in Syria, the Democratic Republic of Congo, Burundi, Sudan, Myanmar, South Sudan, Russia, Iran, Democratic Republic of Congo, (North Korea), China, DPRK (North Korea), Hong Kong, Belarus, Turkey, Venezuela and Cuba. (Emphasis added.)[3]

The diplomat’s statement about Cuba was very short: “We urge Cuba to release political prisoners and cease the harassment of civil society groups.” (Emphasis in original.)

The U.S. statement about Venezuela, Cuba’s closest ally, was longer. It said, “We condemn the Maduro regime’s repressive actions to violate human rights including by suppressing dissent and peaceful protests in Venezuela.  We call on it to dissolve the illegitimate Constituent Assembly and restore Venezuela’s democratic institutions; hold free, fair, and credible elections as soon as possible; and provide humanitarian assistance for the Venezuelan people.” (Emphasis in original.)

Cuba’s Response.

The same day (September 19), Cuba’s Permanent Representative to the Council, Ambassador Pedro L. Pedroso Cuesta, made the following longer response:[4]

  • “Is it politicization, double standards and selectivity, [all] bad practices, that will end up prevailing in the work of the Human Rights Council? Many of us hope not.”
  • “However, what we have heard in the debate of this theme, as well as in others last week, suggests that some promote that this is the way to go by this body.”
  • “Several countries continue to seek to stand as paradigms for the promotion and protection of human rights and use this and other agenda items to criticize other countries, while xenophobia, racism and intolerance increase in their own territories to a highly worrying level.”
  • “How can one think they are seriously concerned about human rights situations in countries of the South, when they promote wars and interventions against them, and then ignore or keep their hands off the suffering they caused with these actions to citizens whose rights are supposedly sought to improve?”
  • “Why do they oppose implementing the right to development and thereby improve the situation of millions of people living in poverty?”
  • “Cuba rejects manipulation for political ends and double standards in the treatment of human rights. The accusations against my country made by the [U.S.] representative, as well as unfounded, are inconsistent with the need to promote an objective, non-politicized and non-discriminatory debate on human rights issues.”
  • “I must also draw attention to the fact that such statement, centered on the alleged violations of others, aims at ignoring all human rights violations occurring in its territory, and the deep international concern caused by the language of exclusion that appears in that country.”
  • “We demand the cessation of the economic, commercial and financial blockade imposed on Cuba for more than 55 years. The measures of June 16 to reinvigorate this blockade are doomed to failure, and will not achieve their purpose of weakening the Revolution or bending the Cuban people.”
  • “We reiterate our solidarity with the Venezuelan Government and people and call for an end to all interference in the internal affairs of that country. We demand respect for the legitimate right of the Venezuelan people to continue building the social model that drives the Bolivarian Revolution.”
  • “Let us not let the failure of the defunct Commission on Human Rights repeat itself in the Council. It is our duty to work for cooperation and respectful dialogue to prevail, and politicization, selectivity and double standards disappear once and for all.”

As mentioned in a previous post, U.S. Vice President MIke Pence at the U.N. Security Council Meeting  on September 20 complained about Cuba and certain other countries being members of the U.N. Human Rights Council in light of what he said was its oppression and repression, a charge rejected by Cuba at that same meeting and by Cuba’s Foreign Minister at the General Assembly on September 22.   https://dwkcommentaries.com/2017/09/24/u-s-cuba-relations-discussed-in-u-n-proceedings/

Conclusion

These developments at the Council do not involve the potential imposition of sanctions of any kind on Cuba. Instead they are, I believe, verbal sparring on an international stage. (If I am missing some potential sanctions, please advise in a comment to this post.)

I have not seen any Cuban response to the Council’s reprimand. In any event, Cuba as soon as possible should end any harassment of Cubalex Legal Information Center and any of its officers and employees.

Any reforms of the Human Rights Council would seem to lie with the General Assembly, which I assume would only do so after significant study, analysis and voting, and I am unaware of any such study being proposed or conducted.

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[1] U.N. Human Rts. Council, Report of the Secretary-General: Cooperation with the United Nations, Its representatives and mechanisms in the field of human rights (# A/HRC/36/31, Sept. 15, 2017)(Advance unedited version); U.N. Human Rts Council, Oral presentation by the Assistant Secretary-General for Human Rights of the Report of the Secretary-General on cooperation with the UN, its representatives and mechanisms in the field of human rights (No. 36/31 Sept. 20, 2017); U.N. Human Rts Council, Report highlights rising reprisals against human rights defenders cooperating with the UN (Sept. 20, 2017); Reuters, Record Number of States Punishing Human Rights Activism: U.N., N.Y. Times (Sept. 20, 2017).

[2] See earlier post to dwkcommentaries: Cuban Police Search and Seize Property of Independent Legal Center (Oct. 7, 2016) (CUBALEX is the Center in question); More Cuban Arrests of Dissidents ( Dec. 2, 2016) (arrest of Alfredo Ferrer Tamayo, who is ‎affiliated with Cubalex).

[3] U.S. Mission Geneva, Statement by the United States of America (Sept. 19, 2017).

[4] Cuba rejects manipulation of human rights issue in Geneva, Granma (Sept. 21, 2017).

Bobby Kennedy’s Obsession with Combatting Communist Cuba  

A new biography of Bobby Kennedy documents his obsession with Communist Cuba while he served as U.S. Attorney General in the administration of his brother, President John F. Kennedy (1961-1963).[1]

Background

Bobby’s obsession was fueled by the anti-communism of his father, Joseph Patrick Kennedy, a successful Boston businessman, Ambassador to Great Britain for President Franklin D. Roosevelt and later financial contributor to the campaign war chests of U.S. Senator Joe McCarthy., the noted anti-communist. This in turn led to Bobby’s working for seven and a half months in 1953 as an aide to McCarthy and to a personal connection between the two men that lasted until McCarthy’s funeral in 1957. According to the biographer, “the early Bobby Kennedy embraced the overheated anticommunism of the 1950s and openly disdained liberals.” (Ch. 1.) [2]

The Bay of Pigs Invasion

Although Bobby “had played little part in planning or executing the [unsuccessful] Bay of Pigs raid” in April 1961, immediately thereafter he sought to do “whatever was needed to protect his brother’s [political] flank.” The President put him second-in-charge of the Cuba Study Group to determine what had gone wrong, and over six weeks Bobby and the three others on the committee focused on flawed tactics and slack bureaucracy, not the goals and ethics, of the invasion. Afterwards the President redoubled his engagement in the Cold War while not fully trusting his generals and spies. (Pp. 240-46.)

“Operation Mongoose”

As a result of that review, Bobby concluded that “that son of a bitch [Fidel] has to go” and became the de facto man in charge of the CIA’s “Operation Mongoose” to conduct a clandestine war against Fidel and Cuba. This Operation had 600 CIA agents and nearly 5,000 contract workers and a Miami station with its own polygraph teams, gas station and warehouse stocked with machine guns, caskets and other things plus a secret flotilla of yachts, fishing craft, speedboats and other vessels. It conducted paramilitary missions on the island, including the demolition of a Cuban railroad bridge. This Operation was based, says the biographer, on the flawed premises that the “Cuban problem [was] the top priority of the [U.S.] Government—all else is secondary—no time, money, effort or manpower is to be spared,” that “the Cuban population would rally to the anti-Castro cause” and that the U.S. secret army of Cuban exiles could “vanquish anybody.” (Pp. 247-52.)

The Operation planned and tried to execute plans to kill Fidel. Afterwards Richard Helms, then the CIA’s director of clandestine operations, observed that Bobby had stated, “Castro’s removal from office and a change in government in Cuba were then the primary foreign policy objectives” of the administration. (Id.)

The Cuban Missile Crisis

Fidel and the Soviet Union were aware of this supposed secret U.S. operation and convinced “Khrushchev he was doing the right thing by installing [Soviet] missiles” in Cuba in the summer of 1962. (P. 251.)

During the start of the Cuban missile crisis of October 1962, Bobby doubted whether an air strike on the missiles on the island would be enough and pondered whether it should be followed by an all-out invasion. He also suggested staging an incident at the U.S. base at Guantanamo Bay by sinking a U.S. ship akin to the sinking of the Maine that was the excuse for the U.S. entry into the Cuban war of independence in the late 19th century. (Pp. 263-66.)

After the President had decided on a blockade of the island, Bobby rallied support for that effort, but 10 days later he wondered whether it would be better to knock out the missiles with a U.S. air attack. (Pp. 264-66.)

Later the President and Bobby decided to accept Khrushchev’s demand for the U.S. to remove its missiles in Turkey in exchange for the Soviets’ removal of its missiles in Cuba while the U.S. part of this deal was kept secret. (Pp. 267-69.)

Aftermath

After the crisis was over, the U.S. eventually discovered that the threat from Cuba was greater than perceived at the time. The Soviets had more missiles with greater capability to take out short-range targets like Guantanamo Bay plus long-range ones like New York City. The Soviets also had 43,000 troops on the island, not the 10,000 the U.S. had thought. The Soviets also had on the island lightweight rocket launchers to repel any attacks with nuclear weapons. And the Soviet submarines in the region had nuclear-tipped torpedoes with authorizations to be used if war broke out. Moreover, Fidel at the time had encouraged Khrushchev to launch a preemptive nuclear strike on the U.S. in the event of an U.S. invasion of the island. (Pp. 272-73.)[3]

In any event, in April 1963 Bobby commissioned three studies: (1) possible U.S. responses to the death of Fidel or the shooting down of a U-2 spy plane; (2) a program to overthrow Fidel in 18 months; and (3) ways to “cause as much trouble as we can for Communist Cuba.” (Pp. 275-76.)[4]

Bobby subsequently wrote a memoir of the crisis that was intended for publication in 1968 as part of his campaign for the presidential nomination, but that did not happen because of his assassination that year. Instead it was posthumously published in 1969.[5] The biographer, Larry Tye, concludes that this memoir was untruthful in many details and was intended, for political purposes, as “a fundamentally self-serving account that casts him as the champion dove . . . rather than the unrelenting hawk he actually was through much of [the crisis].” The “biggest deceit’ of the book, again according to Nye, was “the failure to admit that the Soviet buildup [in Cuba] was a predictable response to [the] American aggression [of the previously mentioned Bay of Pigs invasion and Operation Mongoose].” (P. 239.)

Nevertheless, the biographer concludes that during the missile crisis Bobby “drew on his skills as an interrogator and listener to recognize the best ideas” offered by others and “ensured that the president heard the full spectrum of views” of those officials. In addition, Bobby was effective as an intermediary with the Soviet Ambassador. (P. 270.) Finally, the crisis helped to mature Bobby. He slowly saw “that a leader could be tough without being bellicose, [found] . . . his [own] voice on foreign affairs . . . and [stepped] out of his brother’s long shadow.” (P. 282.)

Conclusion

In the summer of 1960, through an internship from Grinnell College, I was an assistant to the Chair of the Democratic Party of Iowa and, therefore, was thrilled with John F. Kennedy’s election as president.[6]

Cuba, however, at that time was not high on my list of priorities and I was not knowledgeable about U.S.-Cuba issues. Thus, in April 1961 I have no memory of the Bay of Pigs debacle in the last semester of my senior year at Grinnell.

In October 1962 my ignorance of U.S.-Cuba issues continued during the start of my second year at Oxford University as the Cuban missile crisis unfolded. But I do recall listening to radio reports of these events and wondering whether they would lead to my being drafted and forced to return to the U.S. for military service. That, however, never happened.[7]

My interest in Cuba only began in 2001 when I was on the Cuba Task Force at Minneapolis’ Westminster Presbyterian Church to explore whether and how our church could be involved with Cuba. The result was our establishment in 2002 of partnerships with a Presbyterian-Reformed Church of Cuba in the city of Matanzas on the north coast of the island and with its national denomination. Thereafter I went on three mission trips to Cuba and started to learn about the history of U.S.-Cuba relations, to follow the current news on that subject and to become an advocate for normalization and reconciliation of our two peoples.[8]

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

[1] Larry Tye, Bobby Kennedy: The Making of a Liberal Icon, Ch. 6 (Random House, New York, 2016).

[2] There are seven blog posts about Joseph Welch, the attorney for the U.S. Army in the McCarthy-Army hearings of 1954, that are listed in Posts to dwkcommentarires—Topical: UNITED STATES (HISTORY).

[3] The Cuban missile crisis has been the subject of the following posts to dwkcommetaries.com: Fidel Castro and Nikita Khrushchev’s Messages During the Cuban Missile Crisis of 1962 (Sept. 5, 2016); Conflicting Opinions Regarding the Relative Strength of U.S. and Soviet Missiles, 1960-1962 (Nov. 2, 2016); Fidel Castro’s Disingenuous Criticism of President Obama Over Nuclear Weapons (Aug. 15, 2016).

[4] After Bobby’s 1964 resignation as Attorney General, there apparently also was a 1966 CIA operation to assassinate Fidel. (See Covert CIA 1966 Operation To Assassinate Fidel Castro?, dwkcommentaries.com (May 30, 2016).)

[5] Robert Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis (W.F. Norton & Co., New York, 1969).

[6] See these posts to dwkcommentaries.com: My Grinnell College Years (Aug. Aug. 27, 2011); Encounters with Candidates JFK and LBJ (Apr. 16, 2011).

[7] Another post to dwkcommentaries.com: My Oxford University Years (Aug. 30, 2011).

[8] My many posts about Cuba are collected in List of Posts to dwkcommentaries—Topical: CUBA.

 

Possible Amendments to the New Justice Against Sponsors of Terrorism Act (JASTA) 

As reported in a prior post, on September 28, the U.S. Congress overwhelmingly voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA) even though the Chair (Senator Bob Corker (Rep., TN)) and Ranking Member (Senator Benjamin Cardin (Dem., MD)) of the Senate Foreign Relations Committee and Senator Diane Feinstein expressed deep reservations about the wisdom of this law.

Immediately after the adoption of this law, Senator Corker and others expressed desires to change the new law.[1] Let us look at these concerns and efforts to amend JASTA.

Certain Senators’ Concerns

Senator Corker said he thought the issues could be addressed in the “lame-duck” /Senator session of Congress after the November election and that possible fixes included limiting the bill’s scope just to the Sept. 11 attacks, changing some of the technical definitions or thresholds in the bill and establishing a tribunal of experts who ‘could first determine if there was culpability there.’”

Without specifics Senate Majority Leader Mitch McConnell said there could be “potential consequences” of JASTA that are “worth further discussing.” House Speaker Paul Ryan said Congress might have to “fix” the legislation to protect U.S. troops in particular. Trent Lott, a former Republican Senate Majority Leader and now a lobbyist for the Saudis, said, “I do feel passionately this is a mistake for a variety of reasons, in terms of threats to troops, diplomats, sovereignty, there’s serious problems here. Hopefully we can find a way to change the tenor of this.”

 Saudi Arabia’s Reactions

On October 3 Saudi Arabia’s Cabinet released a statement criticizing the adoption of JASTA.[2] It said the new law was “a source of concern to the international community in which relations are based on the principle of equality and sovereign immunity, as this law came to weaken the immunity of the world guaranteed by the United Nations, its agencies and councils which were formed to preserve the legal sovereignty of all its member countries across the universe. Weakening this sovereign immunity will affect all countries, including the United States. [The cabinet] expressed hope that wisdom will prevail and that the U.S. Congress would take the necessary steps to avoid the bad and dangerous consequences that may result from the JASTA legislation.”

On October 20 U.S. Secretary of State John Kerry met with Saudi Arabia’s Foreign Minister Adel al-Jubeir. Afterwards the two of them held a joint announcement at the State Department.[3] With respect to JASTA, Kerry said:

  • We “did discuss [JASTA’s] very negative impact on the concept of sovereign immunity. And the interests of . . . [the U.S.] are at risk as a result of the law that was passed in Congress in the final days. And we discussed ways to try to fix this in a way that respects and honors the needs and rights of victims of 9/11 but at the same time does not expose American troops and American partners and American individuals who may be involved in another country to the potential of a lawsuit for those activities. Sovereign immunity is a longstanding, well-upheld standard of law, and unfortunately this legislation – unintentionally, I think – puts it at great risk and thereby puts our country at great risk. So we’re talking about ways to try to address that.”

Foreign Minister Adel al-Jubeir’s comments about JASTA were the following:

  • “I . . . want to add my voice to what the Secretary said about the importance of sovereign immunities. Sovereign immunities have been a cardinal principle of the international legal order that was established after the Treaty of Westphalia in the 1600s. The objective is to bring order to the international system. And where sovereign immunities are diluted, the international system becomes chaotic, and no country, and no government, is able to conduct its official business without having to worry about lawsuits. The United States, as the country with the biggest footprint in the world, of course has the most to lose by this, because you have operations all the way from Japan to South America to the Pacific, and I think that is why the vast majority of countries have come out vehemently and very strongly against . . . JASTA . . . for its dilution of sovereign immunities. And there have been a number of countries that are looking at reciprocal measures, and if this issue takes hold, we will have chaos in the international order, and this is something that no country in the world wants.”

However, neither gentleman provided details about so-called “fixes for JASTA.

Moreover, there already are “9/11 lawsuits” brought by 9,000 plaintiffs against Saudi Arabia consolidated in federal court in the Southern District of New York in Manhattan that had been dismissed, but will be resurrected under JASTA. Already there is talk about potential discovery and other pre-trial activity in the cases. This includes plaintiffs’ efforts to reinstate Saudi Arabia as a defendant. And on September 30 a new Sept. 11 lawsuit against Saudi Arabia was filed in U.S. District Court in Washington, D.C., on behalf of the widow and daughter of a Navy officer killed in the attack on the Pentagon.

However, Raj Bhala, a professor of international and comparative law at the University of Kansas Law School, opines that the “deck remains stacked against the plaintiffs” with their biggest challenge: persuading a court there is solid evidence of a direct Saudi government role in the 9/11 attacks.[4]

Other Reactions

On October 10 China’s Foreign Ministry said China opposes all forms of terrorism and supports the international community on anti-terrorism cooperation, but that such efforts should “respect international law and principles of international relations, including fundamental principles of nations’ sovereign equality.” Therefore, every country “should not put . . . [its] domestic laws above international law and should not link terrorism with any specific country, religion or ethnicity.” The Foreign Ministry also noted that China’s people and assets at home and around the world face a growing risk from terrorism, but it has a foreign policy of non-interference in other countries’ affairs.[5]

Many other countries oppose JASTA. France considers that laws such as JASTA would lead to a “legal chaos” at the international level. Russia has slammed the legislation as undermining international law. Turkey views JASTA as a law against the principle of individual criminal responsibility for crimes and expects it would be reversed shortly. Egypt’s Foreign Ministry warned that JASTA could have a dire effect on US international relations.[6]

Daniel Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, said JASTA was an example of “legislative fecklessness.” Immediately after the bill’s passage, Republican congressional leaders talked about the need to “fix” the bill and tried to blame President Obama for the problems by falsely claiming he had not made a strong case against the bill. But the president had vetoed the bill, publicly articulated the reasons for the veto and personally and through Administration officials had warned congressional leaders about the adverse implications of the bill. Thus, a “’stupid bill’ that adversely affects American national interests is now law.”[7]

A New York Times editorial, agreeing with Professor Drezner, said that the adoption of the bill over a presidential veto, was a new example of congressional “craven incompetence” and that JASTA should be repealed. A Wall Street Journal editorial also called for repeal.[8]

Conclusion

The only specific suggestions of ways to “fix” JASTA that I have seen are Senator Corker’s. The idea of creating a new tribunal presumably to assess whether a specific state has sponsored or aided and abetted acts of terrorism in the U.S. sounds too complicated, but there are not enough details about such an idea to have a detailed response. The same is the case for his other suggestion about changing some of the technical definitions or thresholds in the bill. The idea of limiting the law to 9/11, however, might be a way to see how such a law works out in practice before it is expanded to include any other situation as the law now stands.

Instead, I offer the following initial suggestions for amending JASTA on the assumption that repeal is not currently feasible:

  1. Assign exclusive jurisdiction over all civil actions under JASTA to the U.S. District Court for the District of Columbia and require or suggest that all such cases be assigned to a designated District Judge. That will assist the U.S. Departments of State and Justice, the White House and foreign governments in monitoring any such actions and eliminate the risk of inconsistent decisions at the District Court level and at the level of the federal courts of appeal. There is no reason to have any other federal courts involved in such cases and absolutely no reason to have any state courts so involved.
  2. Make the U.S. Government a necessary party to any such civil action.
  3. There should be limitations on permissible pre-trial discovery in such cases. Here is one way to do so. After answers to any complaint in any such civil action have been served and filed and before any other proceedings in the case, require the U.S. Government to provide its opinion as to whether the foreign state in any such case has sponsored or aided and abetted any acts of terrorism in the U.S. If the U.S. Government states that the foreign state has not sponsored or aided and abetted any act of terrorism in the U.S., then the civil action should be dismissed. If the U.S. Government states that the foreign state has so sponsored or aided and abetted, then the case should proceed to assess damages with appropriate discovery. If the U.S. Government states that it does not know whether the foreign state has so sponsored or aided and abetted, then the U.S. Government should propose a plan for discovery in the case to attempt to resolve that question as quickly and as inexpensively as possible with a prohibition of any discovery that is not included in such a plan.

Now we wait to see what bills will be introduced in Congress to amend JASTA.

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

[1] Reuters, U.S. Lawmakers May change Sept. 11 Law After Rejecting Veto, N.Y. times (Sept. 30, 2016); Peterson & Lee, Congress Looks to Narrow Bill Allowing Terror Victims to Sue Foreign Governments, W.S.J. (Sept. 30, 2016).

[2] Reuters, U.S. Sept. 11 Law Weakens International Relations, Saudi Cabinet Says, N.Y. Times (Oct. 3, 2016); Saudi Press Agency, Press Release regarding JASTA (Oct. 4, 2016); Hubbard, Angered by 9/11 Victims Law, Saudis Rethink U.S. Alliance, N.Y. Times (Sept. 29, 2016).

[3] U.S. State Dep’t, Remarks with Saudi Arabian Foreign Minister Adel al-Jubeir After Their Meeting (Oct. 20, 2016) Reuters, U.S. Urges Houthis to Keep Ceasefire, Discusses JASTA With Saudi, N.Y. Times (Oct. 20, 2016). No additional details about any proposed “fixes” to JASTA were provided in response to questions at the State Department’s October 21 Daily Press Briefing.

[4] Mazzetti, Claims of Saudi Role in 9/11 Appear Headed for Manhattan Court, N.Y. Times (Sept. 29, 2016); Bravin, Lawyers Move Quickly After Congress Enacts Bill Allowing Suits Against Saudi Arabia, W.S.J. (Sept. 30, 2016).

[5] Reuters, China Backs Sovereign Immunity After U.S. Sept. 11 Bill Becomes Law, N.Y. Times (Oct. 10, 2016).

[6] Fotouh, JASTA: Real threats and hidden opportunities, Egypt Daily News (Oct. 24, 2016).

[7] Drezner, The unbearable idiocy of Congress, Wash. Post (Sept. 30, 2016).

[8] Editorial, Congress Has Itself to Blame for 9/11 Bill, N.Y. Times (Sept. 30, 2016); Editorial, Instant Senate Remorse, W.S.J. (Sept. 30, 2016).

On Visit to Turkey, Vice President Biden Discusses Possible U.S. Extradition of Fethullah Gulen

As discussed in a prior post and two comments thereto, the United States and Turkey continue to be involved in discussions regarding Turkey’s request for the U.S. to extradite to Turkey a Muslim cleric, Fethullah Gulen, who now is living in the U.S.

The subject also came up with respect to U.S. Vice President Joe Biden’s August 24 visit to Turkey: first in the White House Press Secretary’s August 22 press briefing; second in Biden’s August 24 joint press conference with Turkey’s Premier Binali Yildirim; third in Biden’s August 24 joint press conference with Turkey’s President Recep Tayyip Erdogan; fourth at the White House Press Secretary’s August 24 press briefing; and fifth at the State Department’s August 24 Daily Press Briefing.

White House Press Briefing[1]

On August 22 White House Press Secretary Josh Ernest addressed Biden’s then upcoming visit to Turkey. He said that Biden will “indicate our continued, ongoing support for our allies in Turkey.  It’s a country that obviously is going through a lot.  This is a country that was subject to a failed coup attempt earlier this summer.  That is a coup attempt that was roundly and publicly condemned by the United States government.  And we continue to strongly support the democratic government of our allies in Turkey” and “the steps that Turkey has taken to make contributions to our counter-ISIL effort.”

As it relates to Mr. Gülen, the Press Secretary stated, Biden “will say what President Obama [already] has communicated directly to President Erdogan, which is that there is a treaty, an extradition treaty, that’s been on the books between the United States and Turkey for more than 30 years.  And the United States is committed to following the procedure and guidelines that are outlined in that treaty.” This includes “extensive coordination between officials at the Department of Justice and their Turkish counterparts.”  But extradition is “not a presidential decision.  There is a process that is codified in that treaty and in U.S. law. . . . But . . . [the decision] will be guided by the evidence and . . . by the rules and procedures that are codified in the extradition treaty and in United States law.”

Biden and Yildirim Press Conference[2]

BCiden+Premier

Upon his arrival in Ankara, Biden and Turkey’s Premier Yildirim held a joint press conference. To the right is a photograph of them.

Biden emphasized, “President Obama asked me to come to Turkey today in order to remind the world of the paramount importance that we place on the relationship between our nations as allies, as partners, and as friends. It is as an ally and a long-term friend of the Turkish people, that I’m here today to express in no uncertain terms the continuing, unwavering support of the United States for Turkey in the wake of last month’s attempted coup.”

“So on behalf of President Obama and the people of the United States, I want to once again, Mr. Prime Minister, extend to all the people of Turkey our condolences to the families and loved ones who were injured, but particularly those who lost a loved one.  We pay tribute to not only their bravery but their incredible resolve, their incredible commitment to their democracy, to ensuring that their country remains strong, vibrant and resilient, and democratic.”

“The . . . people of the United States of America abhor what happened, and under no circumstances would support anything remotely approaching the cowardly act of the treasonous members of your military who engaged in this behavior.  We did not have prior knowledge.  We did not support.  We immediately condemned.  And we continue, as we did before the coup, to stand shoulder to shoulder with not only the government of Turkey, but with the people of Turkey.”

“I understand the intense feeling your government and the people of Turkey have about [Mr. Gulen] . . . . We are cooperating with Turkish authorities.  Our legal experts are working right now with their Turkish counterparts on the production of and the evaluation of material and evidence that needs to be supplied to an American court to meet the requirements under our law and the extradition treaty to extradite Gulen. And we’re going to continue to do so as you continue to bring forward additional information.  We have . . . no interest whatsoever in protecting anyone who has done harm to an ally.  None.  But we need to meet the legal standard requirement under our law.”

“[U]nder American law:  No President of the United States has authority to extradite anyone on his own power.  That only an American court can do that.  Were a President to attempt to do that, it would be an impeachable offense.  But we have no reason to do anything other than cooperate with you and take every substantiating fact and make it available to the extent it exists to an American court.”

Premier Yildirim in his remarks welcomed the Vice President and recognized that “the relationship between Turkey and the United States has a very long history, a very deep-rooted history.   Therefore, from time to time, there might be incidents that tend to damage this relationship.  But on both sides, of course, we should never allow this to happen.”

“[T]his heinous coup attempt was, in our opinion, orchestrated and instructed by Fethullah Gulen.  And as per the treaties that we have between our two countries, the necessary steps should be taken with a view to his extradition to our country.  And we have taken the initial step in that process.  And you have had very frank remarks for the Turkish people and also for our government . . . of vital importance for a sound functioning of this process, and we are grateful to you for those remarks.”

“So having a [U.S.] technical team . . . here in Turkey, and talking to our judges and prosecutors here on the ground, is a clear sign from your side that you’re taking this very seriously, that you’re attaching great importance to this.  Therefore, I would like to once again thank you for being sensitive about the matter.”

“The process of extraditing the head of the terrorist organization that was behind the attempted coup, if it can be expedited and accelerated, and if we can have more cooperation in the process, I think the grief and grievances of the Turkish people, of the Turkish nation, will be remedied to a certain degree, and their overall sentiments about the issue will go back to being more positive.”

The Premier repeated this last thought in later responding to a journalist’s question: “I am sure that the healthy and sound functioning of the processes with regard to the extradition of the head of the terrorist organization will also, in a short amount of time, return or rectify the people’s perception back to their normal, positive situation.”

Biden and Erdogan Press Conference[3]

BidenErdogan

At the joint press conference after their private meeting, Biden opened by expressing his “personal condolences and the condolences of my country for the brutal, unconscionable attack in Turkey. . . .The attempted coup went to the heart of who your people are — principled, courageous and committed.  And for a people who have struggled so long to establish a true democracy, this was, from my perspective and the President’s perspective, the ultimate affront.  So my heart goes out to not just the government, but to the Turkish people.” He added, “the United States stands with our ally, Turkey.  We support the people of Turkey.  And our support is absolute and it is unwavering.” (Above is a photograph of the two men.)

“That’s why the United States.” Biden said, “is committed to doing everything we can to help [Turkey] through your justice [system] hold all those responsible for this coup attempt while adhering to the rule of law. . . . [O]ur American experts are on the ground, here in Ankara, meeting with your people, closely coordinating with our Turkish counterparts to evaluate and gather the material with regard to Turkish requests to extradite Gulen, in accordance with our bilateral extradition treaty.”

As “powerful as my country is, as powerful as Barack Obama is as President, he has no authority under our Constitution to extradite anyone.  Only a federal court can do that. . . . If the President were to take this into his own hands, . . . he would be impeached for violating the separation of powers.”

The U.S. has no “reason to protect Gulen or anyone else who, in fact, may have done something wrong. . . . [T]his case, like all others, is going to have to be assessed by an independent federal court along with evidence backing it up.  That’s what we’re working on together now.  And it takes time to work an extradition request, but there should be no doubt that we’ll continue to work closely with the Turkish government as this process unfolds.”

In response to a journalist’s question at the end of the press conference, Biden repeated these thoughts about extradition. “We are a nation of laws.  We are bound by a constitution. . . . The constitution and our laws require for someone to be extradited, that the court in the United States has to conclude with probable cause to be extradited.  Not only do we apply that standard as it relates to extradition; we apply that standard every day we do our country.”

Biden continued, “we have a team of our lawyers and experts who were here in Ankara yesterday, sitting down with your experts on the judiciary and your prosecutors, saying, give us the data we need in order to be able to bring these to a court of law that will say, yes, we must extradite [Mr. Gulen]. . . . What possible interest could the United States have in wanting to protect someone who, in fact, met the standard under our law of being deported?”

Until yesterday, the Vice President added, “[T]here has been no evidence presented about the coup.  When you go to an American court, you can’t go into a court and say, this is a bad guy, generally.  You have to say this is a guy or a woman who committed the following explicit crime.  That’s what we’re working with President [Erdogan] right now to gather the evidence that will establish in a court of law probable cause to believe he may have done this.  We are determined — we are determined to listen to every scrap of evidence that Turkey can provide or that we can find out about.”

“We will continue to abide by [our] system.  And God willing, there will be enough data and evidence to be able to meet the criteria that you all believe exists.  We have no reason to shelter someone who would attack an ally and try to overthrow a democracy.” (Emphasis added.)

President Erdogan thanked the Vice President for coming and saluted him with “all my most heartfelt emotions.”

Erdogan then stressed that the “leader of the FETO terrorist organization [Gulen] needs to be extradited to Turkey as soon as possible.  That is the first measure that needs to be taken.  There are references made to the verdicts to be issued by courts, and we have previously submitted all of the folders regarding the actions engaged in by these terrorists before July the 15th.  And right now, we are amassing certain documents pointing out to their involvement in this failed coup that took place on July the 15th.”

Under the U.S.-Turkey extradition treaty, Erdogan said, “those individuals should be taken into pretrial detention, they should be arrested, and throughout the trial they need to remain in custody.  This person [Gulen], however, is currently managing and directing the terrorist organization where he lives.  They are present in more than 170 countries around the world, and they are present through school associations and other sorts of educational institutions. . . . [He] is still providing interviews to media outlets in the United States.  Some journalists are being taken into the Pennsylvania residence, and he is still continuing his actions around the world, and he’s shaping his actions for the future using these outlets.  That’s why it is very important for him to be contained through pretrial detention, which is actually part of the bilateral extradition treaty that was signed between our two countries, which we should not ignore.  And that is something I especially feel that I need to remind you of.  And I’m confident that the United States will take the necessary measures to cater to our expectations in that regard.”

Another White House Press Briefing[4]

Biden’s “God willing” comment came up in a question at the Wednesday afternoon, August 24, White House press briefing. Josh Earnest responded that the “point that the Vice President was making is that this is not going to be a decision that is made by the executive branch.  The decision about the evidence that Turkey has compiled is one that will follow the guidelines of the extradition treaty, and will ultimately involve a federal judge who will have to render [his or her] . . . own judgment, [his or her] . . . own assessment of the situation consistent with U.S. law and consistent with the terms of the extradition treaty.”

The White House Press Secretary also said that the U.S. has “concerns about the Turkish government’s activity since the coup have been a reflection of our longstanding concerns about protection of human rights inside of Turkey.  Turkey is a valuable NATO ally, and we’re able to work effectively with them on a variety of issues in a way that advances the interests of both our countries.  But even in the midst of our progress in pursuit of those shared priorities, the President has periodically raised concerns directly with President Erdogan, particularly on issues like freedom of the press inside of Turkey.” Nevertheless, “since the coup, we’ve understood the significant concerns that have been raised in Turkey and the need for a thorough investigation to get to the bottom of what exactly happened.”

With respect to Mr. Gülen, “there is a well-established process, and both the United States and Turkey are engaged in that process.  That process is governed by an extradition treaty between the United States and Turkey that’s been on the books for 35 years or so. . . . [T]here is a rather high bar, a high evidentiary standard that’s required.  So considering that the coup took place — what was it — six or eight weeks ago, I think it’s understandable that Turkey wouldn’t be able to build such a robust case, if there is one to be presented, against Mr. Gülen in such a short period of time.”

In addition, “Turkey has longstanding concerns with Mr. Gülen’s activity and they have presented significant evidence to the United States, and Department of Justice officials are carefully reviewing that evidence.  In fact, Justice officials are in Turkey this week, meeting with their counterparts to discuss and review that evidence.  What we have said all along is that the terms of the treaty and the law on the books here will ultimately determine how this is resolved.”

State Department Daily Briefing[5]

The Department’s spokesman said “our legal experts are working right now with their Turkish counterparts to evaluate the material, the evidence that needs to be supplied to meet the standards for extradition under our treaty. . . . As we’ve said, Turkey has provided materials relating to Mr. Gulen. We continue to analyze those materials. Under our laws, extradition requests must be assessed by an independent federal court along with the evidence backing it up. . . . It always takes time to work through an extradition request. However, there should be no doubt that we will continue to work through this working with our Turkish counterparts.”

Conclusion

Vice President Biden, President Obama and other U.S. officials consistently and rightly have emphasized that Turkey’s requested extradition of Gulen will be handled in accordance with the U.S.-Turkey extradition treaty and U.S. law, which were explained in a prior post and which were illustrated in February 6 and August 22 posts about the ongoing proceedings for extradition of a former Salvadoran military officer to Spain for the criminal case regarding the 1989 murder of the Jesuit priests.[6]

Turkey’s refusal to make a public acknowledgement of this reality cannot be based on ignorance of its extradition treaty or U.S. law. Instead it has to be based in part on Erdogan’s wanting to appear to the Turkish people as a strong leader and fomenting Turkish public pressure for the extradition. Perhaps too it is based upon Erdogan’s apparently increasing belief in his own power to control everything.

In any event, at least one Turkish journal had a very negative reaction to Biden’s remarks in their country.[7] An editorial in Istanbul’s Daily Sabah stated, Biden “came all the way from the U.S. just to mention the importance of rule of law of his own definition.” He “parroted the same stale remarks Turkey has heard since July 15. . . . Unfortunately, Biden came and went without leaving a trace. His sly smile, insincere apology about not having come sooner and feeble remarks of friendship between the people will deservedly fall on deaf ears.”

The Daily Sabah editorial even claimed the U.S. was not abiding by Article 9 of the bilateral extradition by not detaining Gulen. That Article states, “The Contracting Parties shall take all necessary measures after the information and documents related to the request for extradition have been received, including a search for the person sought. When located the person sought shall be detained until the competent authorities of the Requested Party reach their decision. If the request for extradition is granted, the detention shall be continued until surrender.”[8]

Yes, the editorial accurately quotes Article 9, but that Article states the obligation to detain arises only “after the information and documents related to the request for extradition have been received” (here, by the U.S.). The published reports indicate that some information and documents regarding Gulen have been provided to the U.S. by Turkey, but it is unclear if Turkey has completed that process. Moreover, as indicated above, the U.S. is meeting with Turkish officials to aid them in providing the necessary materials for the application.

The editorial also fails to examine Article 10(1) of the treaty, which provides, “In cases of urgency, either Contracting Party may apply for the provisional arrest or detention of the person sought before the request for extradition has been submitted to the Requested Party through diplomatic channels. The request for provisional arrest or detention may be made either through diplomatic channels or directly between the Department of Justice of the United States and the Ministry of Justice of Turkey.” Article 10(2) then goes on to list what needs to be in such an application. Public information has not indicated that Turkey has availed itself of this remedy.

Relevant here, but unacknowledged by the Daily Sabah, is the U.S. Attorneys’ Manual that covers the procedures for detention or arrests of persons potentially subject to extradition in these situations.[9]

Therefore, the Daily Sabah editorial, in this blogger’s judgment, is not well founded.

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[1] Press Briefing by Press Secretary Josh Earnest, 8/22/16.

[2] White House, Remarks by Vice President Joe Biden and Turkish Prime Minister Binali Yildirim at a Press Availability (Aug. 25, 2016); Reuters, Biden Says U.S. Cooperating With Turkey on Evidence Against Gulen, N.Y. Times (Aug. 24, 2016); Assoc. Press, Biden Calls on Turkey to Be Patient in Gulen Case, N.Y. Times (Aug. 24, 2016); Kraychik, Biden Apologizes To Turkey For US Constitution, Daily Wire (Aug. 24, 2016).

[3] White House, Remarks by Vice President Biden and President Erdogan of Turkey in Pool Spray (Aug. 25, 2016); Reuters, Biden Tells Turkey’s Erdogan: Only a Federal Court Can Extradite Gulen, N.Y. Times (Aug. 24, 2016); Reuters, Turkey Must Control Its Own Border, U.S. Vice President Biden Says, N.Y. Times (Aug. 24, 2016); Reuters, Turkey’s Erdogan Says U.S. Agreements Require Coup Suspect Arrest, N.Y. Times (Aug. 24, 2016); Wayne & Sink, Biden Met by Snubs as He Seeks to Mollify Turkey’s Angry Erdogan, Bloomberg News (Aug. 24, 2016).

[4] Press Briefing by Press Secretary Josh Earnest, 8/24/16; Reuters, U.S. Reviewing Turkey’s Evidence on Coup Suspect Gulen: White House, N.Y. Times (Aug. 24, 2016).

[5] U.S. State Dep’t, Daily Press Briefing (Aug. 24, 2016).

[6] See also Assoc. Press, U.S., Turkey at an Impasse Over Extraditing Muslim Cleric, N.Y. Times (Aug. 25, 2016).

[7] Editorial, Biden wasted a trip, Turkey wasted time, Daily Sabah (Aug. 25, 2016). Daily Sabah also published two articles about the alleged Gülinist involvement in the recent attempted coup. One is a special report on the subject. The other asserts that a prosecutor who has been arrested for membership in the alleged Gülenist terror group says that it first started plans to topple President Erdoğan in 2011, instigated two coup attempts in 2013 and an attempted assassination of Erdoğan in the recent attempted coup. (Turkey coup attempt of Gülinist explained in special report, Daily Sabah (Aug. 24, 2016); Karaman, Güllenist prosecutor says group has sought to topple Erdoğan since 2011, Daily Sabah (Aug. 24, 2016).)

[8] U.S.-Turkey Extradition Treaty, 32 U.S.T. 3111.

[9] U.S. Attorneys’ Manual § 9-15.700.