U.S. Authorizes U.S. Litigation Against Entities on Cuba Restricted List

On January 16, 2019, U.S. Secretary of State Mike Pompeo extended for 45 days the right to bring certain lawsuits in U.S. federal courts  by Americans who owned property in Cuba that was confiscated by its government. The stated reasons for this 45-day extension, instead of the long-standing practice of granting six-month extensions was to “permit us to conduct a careful review of the right to bring action under Title III [of the Helms-Burton or LIBERTAD Act] in light of the national interests of the United States and efforts to expedite a transition to democracy in Cuba and include factors such as the Cuban regime’s brutal oppression of human rights and fundamental freedoms and its indefensible support for increasingly authoritarian and corrupt regimes in Venezuela and Nicaragua.”  [1]

Secretary Pompeo’s New Statement [2]

On March 3, Secretary Pompeo issued another statement on this subject with two parts.

The first part granted “an additional suspension for 30 days through April 17, 2019, of the right to bring an action under Title III [of this federal statute as] necessary to the national interests of the United States and will expedite a transition to democracy in Cuba.” with the below exception. Beginning March 19, suspension shall not apply to:

The second part of this statement, however, contained an exception to this further suspension. Beginning March 19, this suspension will not apply to the “right to bring an action against a Cuban entity or sub-entity identified by name on the State Department’s List of Restricted Entities and Sub-entities Associated with Cuba (known as the Cuba Restricted List), as may be updated from time to time.” This exception protects, for now any foreign firm from such U.S. litigation.

The Cuba Restricted List [3]

This statement explained that the “Cuba Restricted List identifies entities and sub-entities under the control of Cuban military, intelligence, or security services. These security services are directly responsible for the repression of the Cuban people. We encourage any person doing business in Cuba to reconsider whether they are trafficking in confiscated property and abetting the Cuban dictatorship.”

The first such Restricted List was promulgated by the State Department in November 2017,, with a list of 180 entities and subentities that the Department had determined were owned or controlled by “the large military-run corporations that dominate the Cuban economy. These include GAESA and CIMEX, the holding companies that control most retail business on the island; Gaviota, the largest tourism company; and Habaguanex, the firm that runs Old Havana.

This list was amplified on November 14,  2018, with the addition of 26 subentities. According to the State Department, “direct financial transactions [by U.S. nationals] with these entities are generally prohibited because they would disproportionately benefit those entities or personnel at the expense of the Cuban people or private enterprise in Cuba.”

Cuba’s Reaction  [4]

Also on March 4 the Cuba’s foreign Ministry issued the following lengthy rejection of this U.S. move:

  • “The Ministry of Foreign Affairs rejects in the strongest terms the new escalation in the US aggressive behavior against Cuba.”
  • “Since its entry into force in 1996, the Helms-Burton Act has sought to universalize the economic blockade through brutal and illegal pressures exerted by the United States against third countries, their governments and companies.  It is intended to suffocate the Cuban economy and generate or increase shortages among the population with the purpose of imposing in Cuba a government that serves the interests of the US.”
  • “Given the illegitimate character of the goals they pursue, which are contrary to International Law, the Helms-Burton Act and the blockade arouse universal rejection, which has been reiterated for almost three decades at the most important regional and international fora.  The most recent example of that was the United Nations General Assembly meeting held on November 1, [2018] when said policy was rejected through 10 consecutive votes, thus leaving the US in complete isolation.”
  • “Title II of the Helms-Burton Act states that the overthrowing of the revolutionary government, the subsequent tutelage by a US intervenor and the ultimate establishment of a counterrevolutionary government subordinated to Washington would unequivocally pursue the return or compensation to former owners for all the properties they or their descendants might claim, regardless of whether or not they were US citizens at the moment when nationalizations took place or the fact that they abandoned them. During all that period, the economic blockade would continue to be fully implemented.”
  • “Consequently, Cubans would be forced to return, reimburse or pay to US claimants for the house where they live, the area on which their communities are built, the arable land  where they farm  their products, the school where their children are educated, the hospital or polyclinic where  they receive medical assistance, the place where their workplace is located or where they have a private business, and also for subsidized services such as electricity, water, and communications enjoyed by the population.”
  • “This is an aspiration that can only be conceived by the minds of those who identify Cuba s a colonial possession.  According to the Helms-Burton Act, the economic blockade would be lifted only when that ambition is fulfilled.”
  • “This law relies on two fundamental lies: the notion that nationalizations carried out soon after the triumph of the Revolutionary were illegitimate or inappropriate and that Cuba is a threat to the US national security.”
  • “Cuban nationalizations were carried out in accordance with the law, strictly abiding by the Constitution and in conformity with International Law. All nationalizations included processes of fair and appropriate compensation, something that the US government refused to consider.  Cuba reached and honored global compensation agreements with other nations which are today investing in Cuba, such as Spain, Switzerland, Canada, United Kingdom, Germany and France.”
  • The real threat against regional peace and security are the irresponsible declarations and actions of the US government as well as the destabilizing plans against Latin America and the Caribbean aimed at pursuing the stated purpose of imposing the Monroe Doctrine.”
  • [Cuba’s] Reaffirmation of   Cuban Dignity and Sovereignty Act of December 24, 1996, states that the Helms-Burton Act is illegal, inapplicable and has no legal value or effect whatsoever. It considers null and void any claim under that law by any natural or juridical person.”
  • “According to that [Cuban] law, claims for compensation for nationalized properties could be part of a process of negotiation on the based on equality, mutual respect between the governments of Cuba and the United States, and be “reviewed together with the indemnifications the Cuban State and people are entitled to as a result of the damages caused by the blockade and   aggressions of every sort, of which the US government is responsible”. It also makes it clear that those who resort to procedures or mechanisms under the Helms-Burton Act to the detriment of others shall be excluded from possible future negotiations.”
  • “The Cuban Government reiterates to all economic partners and foreign companies operating in Cuba that full guarantees will be granted to foreign investments and joint projects. Article 28 of the Cuban Constitution, which was ratified by an overwhelming majority on February 24, 2019, also recognizes those guarantees, which are also included in [Cuban] Law No. 118 on Foreign Investments of March 29, 2014.”
  • “Today’s [U.S.] decision imposes additional obstacles to our economic development and progress goals, but the United States will keep on failing to achieve its main purpose of submitting by force the sovereign will of Cubans and our determination to build socialism. The majority feelings of the peoples of Cuba and the United States in favor of improving relations and establishing a civilized and respectful coexistence shall prevail.”

Other Reactions

John Bolton, U.S. National Security Advisor commented the same day in the following tweet: “Cuba’s role in usurping democracy and fomenting repression in Venezuela is clear. That’s why the U.S. will continue to tighten financial restrictions on Cuba’s military and intel services. The region’s democracies should condemn the Cuba regime.”

Senator Marco Rubio (Rep., FL) had a similar tweet: “Today expect the United States to take the first in a series of steps to hold the regime in #Cuba accountable for its 60 years of crimes & illegality which includes its support for the murderous #MaduroCrimeFamily. Justice is coming. And more to come.”

Rubio also joined with U.S. Senator Rick Scott (Rep., FL) and U.S. Representative Mario Diaz-Balart (Rep., FL) in issuing the following lengthier statement supporting this Trump Administration move. [5]

Senator Rubio made the initial comments of the Press Release,“‘President Trump is sending a strong message that the United States will not sit idly by while the Cuban regime continues to support the Maduro crime family at the expense of the Venezuelan people,’ Rubio said. ‘For 60 years, the Cuban regime has forced millions into exile, destabilized neighboring countries, given safe harbor to fugitives from justice and to international terrorists, and made millions trafficking in stolen property. By beginning the process of implementing Title III of the Helms-Burton Libertad Act, the United States is holding the Cuban regime accountable for its crimes, including its support for the murderous Maduro crime family. Justice is coming — and it is just getting started.’”

Senator Scott added, “The Administration’s plan to fully and immediately implement Title III and IV of the Libertad Act signals to the international community that the United States is serious about its commitment to freedom and democracy in Cuba. Allowing American citizens to sue for stolen property in Cuba and denying foreign nationals involved in trafficking stolen property entry into the United States is a huge step toward cutting off the money supply to the Castro Regime. It is clear that where we see instability, chaos and violence in Latin America, we also see the fingerprints of the Castro regime and their money – and this action by the administration is an important step in stabilizing the entire region. President Trump’s strong action on the Libertad Act will further hold the Cuban regime accountable. I urge him to continue with the planned implementation this month so we can help begin a new day of freedom and democracy for Cuba and its people.”

Representative Diaz-Balart stated, “Today, the Trump Administration took another important step toward righting some of the wrongs perpetrated by a dictatorship that brutally oppresses its people and opposes U.S. interests at every opportunity. Shamefully, for nearly twenty-two years since the LIBERTAD Act’s enactment, unscrupulous businesses have ignored this important provision in U.S. law and have chosen to partner with tyrants. This is just the first action of many regarding the Administration’s actions on Title III. Justice for the victims of the Castro regime’s confiscations is long overdue. Years of consecutive extensions may have lulled some into a false sense of impunity. Yet now companies which willingly entangle themselves in partnerships with the anti-American, illegitimate, and oppressive regime in Cuba are on notice that they will be held responsible for their part in callously benefiting from the extensive losses suffered by victims of the regime. I will continue to work with the Administration, Senator Rubio, and my congressional colleagues to ensure the United States continues to pressure the Castro regime and move forward with the full implementation of Title III.”

 Conclusion

This U.S. announcement may have only symbolic significance.

First, according to the Associated Press, “virtually none of the businesses [on the State Department’s Cuba Restricted List has] . . . any links to the U.S. legal or financial systems, meaning the ability to sue [in the U.S.] is unlikely to have any effect on the Cuban economy or foreign businesses that work with the socialist government.” In lawyer’s language, any lawsuit in a U.S. court against an entity on the Cuba Restricted List should be subject to a very strong objection for lack of personal jurisdiction over the Cuban entity, meaning any such case very likely would be dismissed at the commencement of the case. [6]

Second, another potential defense to a U.S. lawsuit might be sovereign immunity.

Third, it would be insane for any U.S. claimant to sue any of the Cuban entities in a Cuban court, which would throw out any such case and perhaps impose some penalty on the claimant for bringing such a case.

Fourth, if any of the Cuban entities are present in other countries of the world, a lawsuit there by a U.S. claimant presumably would not be subject to a lack of personal jurisdiction defense, but other defenses might be available plus other countries’ possible hostility to the overall purposes of the Helms-Burton Act and U.S. policies towards Cuba.

Finally Cuba correctly observes that it recognizes that it has an international legal obligation to compensate foreign owners of expropriated property and that it has settled many (all?) such claims by non-U.S. persons. Moreover, under the U.S.-Cuba rapprochement in 2015-16 the two counties had discussions about the U.S. claims although the details have not been publicly released. A major impediment to such a negotiated settlement is Cuba’s lack of financial resources for such payments. Therefore, this blogger has suggested in another post that the only realistic result is for the two countries to reach an overall settlement, including Cuba’s claims against the U..S., which would have the net effect of the U.S. government’s paying the U.S. claims for expropriated property,   =================================

[1] Update on Trump Administration’s Threat To Allow U.S. Litigation Over Cuba’s Expropriated Property, dwkcommentaries.com (Jan. 30, 2019).

[2] State Dep’t, Secretary Enacts 30-Day Suspension of Title III (LIBERTAD Act) With an Exception (Mar. 3, 2019); Reuters, Foreign Partners Excluded From U.S. Lawsuits Against Cuban Firms: Official, N.Y. times (Mar. 4, 2019). 

[3] New Restrictions on U.S. Travel to Cuba and Transactions with Certain Cuban Entities, dwkcommentaries.com (Nov. 8, 2017);More Cuban Businesses Forbidden to U.S. Visitors, dwkcommentaries.com (Nov. 16, 2018).

[4] Cuba Foreign Ministry, Declaration of the Ministry of Foreign Affairs: Cuba Strongly Rejects New Aggressive Escalation by the United States (Mar. 4, 2019).

[5] Press Release: Rubio, Scott, & Diaz-Balart Commend Trump Administration’s Decision to Hold the Communist Cuban Regime Accountable for Crimes (Mar. 4, 2019).

[6] Assoc. Press, Trump Symbolically Tightens Embargo on Cuba, N.Y. Times (Mar. 4, 2019). See The Personal Jurisdiction Requirement for Civil Lawsuits in U.S. Courts, dwkcommentaries.com (Aug. 8, 2011).

Cuba’s Perspective on This Week’s U.S.-Cuba Diplomatic Meetings in Havana

As mentioned in another post, the U.S. and Cuba will hold diplomatic meetings in Havana on January 21 and 22, 2014.

According to Granma, Cuba’s official and only newspaper, an unnamed source at Cuba’s Ministry of Foreign Affairs said that Cuba “is going to these meetings with the constructive spirit to sustain a respectful dialogue, based on sovereign equality and reciprocity, without undermining national independence and self-determination of the Cuban people.”

“We should not pretend that everything is solved in one meeting,” the source said. “Normalization is a much longer and complex process where you have to address issues of interest to both parties.”

Migration Issues

On January 21st, the focus will be migration, and the unnamed source said Cuba will report on “the progress of the measures taken in January 2013 to update the Cuban immigration policy and its impact on the flow of people between the two countries,” and the two countries will discuss ways to confront “illegal immigration, smuggling and document fraud.”

In addition, Cuba will express “its deep concern at the continuing [U.S.] policy of ‘wet foot/dry foot’ and the Cuban Adjustment Act, which is the main stimulus to illegal emigration.” Cuba also will complain about the U.S. policy “to grant parole [to] Cuban professionals and health technicians to abandon their mission in third countries.”

Normalization Issues

On January 22nd the focus will be the many issues surrounding the December 17th decision of the two countries to re-establish diplomatic relations. As previously mentioned, Assistant Secretary of State Roberta Jacobson will lead the U.S. delegation at this session.[1]

The unnamed Cuban source said there would be discussion about certain levels of existing coordination in dealing with illegal immigration, including border troops and the coastguard; drug interdiction; oil spills; and search and rescue in case of air and maritime accidents. They also “are beginning to talk about monitoring earthquakes.”

Cuba will “reiterate the proposal made last year by U.S. government to hold a respectful dialogue on the basis of reciprocity with regard to the exercise of human rights.” The source promised “a dialogue on a reciprocal basis and on an equal footing” regarding human rights. Cuba has “legitimate concerns about the exercise of human rights in the [U.S.],” including controversies over police shootings and killings of black men in Ferguson Missouri and New York City, which are “situations that do not happen in [Cuba].” The source says his country welcomes the U.S. to meet “with the recognized organizations that make up a vibrant civil society in Cuba: students, women, farmers, professionals, disabled, unions, among others.” [2]

According to this source, Cuba will emphasize “the restoration of diplomatic relations and the opening of embassies in both capitals should be based on the principles of international law enshrined in the United Nations Charter and the Vienna Conventions on Diplomatic Relations and Consular Relations.”

“Compliance with these documents, to which both countries are signatories, means mutual respect for political and economic system of each country and to avoid any interference in the internal affairs of our nations. These principles are essentially sovereign equality, the settlement of disputes by peaceful means, refrain from the threat or use of force against the territorial integrity or political independence of any state, as well as equal rights, self-determination of peoples and non-intervention in matters which are domestic jurisdiction of states.”

In this context, Cuba will raise the following issues:

  • Solving the inability of the Cuban Interests Section in Washington, D.C. to obtain banking services;
  • Ending the U.S. designation of Cuba as a “State Sponsor or Terrorism;”
  • Ending the U.S. blockade [or embargo] of Cuba and providing Cuba with “compensation for damages for a policy that has been in place for over 50 years.” (At the U.N. General Assembly meeting in October 2014, Cuba claimed that the damages were $1.1 trillion.)

These issues, the source admitted, obviously cannot be resolved at the one-day meeting this week.

Reactions

I agree that certain U.S. laws relating to Cubans’ ability to gain legal immigration status in the U.S. need to be changed if there is to be full normalization and reconciliation. This includes the so-called “wet foot/dry foot” policy whereby a Cuban who is on U.S. land is entitled to such legal status, but if a Cuban is apprehended by U.S. authorities on the high seas, he is not so entitled. So too the U.S. program for granting immigration parole to Cuban professional medical personnel needs to be ended, as recommended by a New York Times editorial and by this blogger last November. (Whether these changes may be done by the President’s executive order or whether it takes congressional action has not been investigated by this blogger.)

The U.S. repeatedly has insisted that issues of Cuban human rights and civil society need to be addressed, and the Cuban Foreign Ministry spokesperson said his country was prepared to do that so long as Cuba’s concerns about human rights in the U.S. are addressed. I agree that there should be mutuality in any such discussion.

I also agree that the restoration of normal diplomatic relations needs to be based on what should be the following noncontroversial principles of the U.N. Charter and the Vienna Conventions on Diplomatic and Consular Relations:

  • The U.N. Charter provides that it is “based on the principle of sovereign equality of all its members” (Art. 2(1)), that “[a]ll Members shall settle their disputes by peaceful means” (Art. 2(3)) and that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the [U.N.]” (Art. 2(4)).
  • The Vienna Convention on Diplomatic Relations provides that “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent” (Art. 2) and sets forth many details on the agreed-upon ways of implementing such relations. There are 190 states that are parties to this treaty, including Cuba and the U.S.
  • Similarly the Vienna Convention on Consular Relations says “The establishment of consular relations between States takes place by mutual consent” (Art. 2(1)) and provides many details on the agreed-upon ways of implementing such relations. There are 177 parties to this treaty, including Cuba and the U.S.

Other points of agreement with the Cuban spokesperson are enabling the Cuban Interests Section in Washington, D.C. to obtain banking services in the U.S.; ending the U.S. designation of Cuba as a “State Sponsor of Terrorism;”[3] and ending the U.S. embargo of Cuba.[4] As discussed in an earlier post, the U.S. already has started the process under U.S. law for rescinding the unjustified “State Sponsor of Terrorism” designation, and I anticipate that this summer there will be such a rescission. President Obama already has decided that the embargo should end, but that requires congressional action, and the process for doing just that has commenced and will not be politically easy to accomplish

The issue of compensation, if any, for Cuba for its alleged damages of $1.1 trillion from the embargo, however, is another matter.[5] This is but one of several damage claims that need to be resolved. Others include U.S. compensation to Cuba for the U.S. use of Guantanamo Bay for at least the last 56 years; [6] Cuba’s compensating U.S. interests for expropriation of their property after 1959; and Cuba’s paying a December 1997 default judgment by a U.S. district court for $197 million (plus interest) for the deaths of three of the four pilots in the February 1966 Cuban shooting down of a private “Brothers to the Rescue” plane over international waters.

One way to resolve these claims would be an agreement by the two countries to submit all of these disputes to the Permanent Court of Arbitration at the Hague in the Netherlands, which was established by a multilateral treaty, to which both Cuba and the U.S. are parties. Other ways would be the two countries creating a special claims commission to hear and resolve all of these claims or agreeing to settle all or some of the claims.

Resolving these competing claims, however, has to recognize the economic reality, in my judgment, that Cuba does not have the financial resources to pay any large amount of money. Therefore, compensating U.S. interests for expropriation of their property in Cuba, as I see it, would have to come out of any U.S. compensation of Cuba for its claims.

What do all of these points mean for the timing of full restoration of diplomatic relations? Cuba seems to be saying that ending the embargo and the “State Sponsor of Terrorism” designation have to happen first before restoring full diplomatic relations. In the best of all possible worlds from the U.S. perspective that would be sometime this summer. An agreement on how to resolve the damage claims would be another important accomplishment that should, in my judgment, lead to the restoration of diplomatic relations and perhaps that could happen this year, but the actual resolution of the damage claims would take several years to happen absent a settlement of the claims, which seems unlikely.

In the meantime, the parties could and should agree to a process for the restoring of diplomatic relations.

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[1] Today Senator Robert Menendez (Dem., NJ), a Cuban-American and the Ranking Member on the Senate Foreign Relations Committee, sent a letter to Jacobson, saying “it is imperative” that she demand “unconditional freedom of the [previously released] 53 political prisoners and demand an end to politically motivated arrests of peaceful democracy and human rights activists.” (Emphasis added.) Menendez also urged pressing “Cuba on a commitment to permit visits to all prisons and prisoners by the United Nations and the International Committee of the Red Cross and to begin to demand action on fugitives from U.S. justice and American citizen compensation claims for property nationalized by the Cuban government in past decades.” The U.S., according to Menendez, “must prioritize the interests of American citizens and businesses that have suffered at the hands of the Castro regime before providing additional economic and political concessions to a government that remains hostile to U.S. interests.”

[2] The Washington Post reports that on Friday Jacobson will host a breakfast meeting with Cuban civil society representatives, human rights activists and political dissidents before she returns to Washington.

[3] Prior posts have articulated the statutory process for rescission and why the Designation should be rescinded.

[4] Prior posts have stated why the embargo should be ended, a conclusion also endorsed by New York Times editorial in October 2014.

[5] From my experience as a litigator of business disputes, I anticipate that any such damage claim would be subjected to rigorous examination and rebuttal by the U.S., including the undoubted U.S. argument that all or some of the alleged damages were not caused by the embargo, but rather by Cuban economic ineptitude. Of course, the U.S. would probably argue that the major premise of Cuba’s claim—the illegality of the embargo—is invalid despite the U.N. General Assembly’s condemning the embargo by overwhelming margins for 23 consecutive years. (I have not examined the merits of this legal issue.)

[6] Cuba’s original February 23, 1903, and July 2, 1903, lease of Guantanamo Bay to the U.S. for a naval coaling station called for annual rent of $2,000 in gold coin, but this was changed to $4,085 in U.S. Dollars (the gold equivalent at the time) in a treaty of May 29, 1934. After the Cuban Revolution’s assuming power on January 1, 1959, the Cuban Government has refused to cash all of the U.S. annual checks for that amount except for one that was cashed by mistake. Although the fair market value of the lease for the last 56 years has not been determined, there could be no legitimate argument that it is not substantially in excess of $4,085. Other potential issues are (a) whether the original lease of 1903 and the 1934 amendment are subject to a claim that they are invalid because of alleged duress or undue influence by the U.S. when Cuba was a de facto U.S. protectorate; (b) whether the lease should be terminated with Cuba paying for the improvements made by the U.S.; or (c) whether there should be a new lease of this land to the U.S. under totally different conditions.

Continued Bad News about U.S. Policies Regarding Cuba

Bad news about U.S. policies regarding Cuba continues to accumulate. The U.S. refuses to budge from outdated hostility towards the island nation when the U.S., in my opinion, should be pursuing reconciliation with Cuba. One glimmer of hope for rationality on this subject was provided by William M. LeoGrande and Peter Kornbluh in The Nation magazine.

Bad News

First, on September 5, 2014, President Obama issued a terse memorandum to the U.S. Secretary of State to extend for another year or through September 14, 2015, the application of the U.S. Trading with the Enemy Act to Cuba for another year. This statute, which was enacted during World War I in 1917, gives the President authority to prohibit, limit or regulate trade with hostile countries in times of war. It is a statutory foundation on which the entire range of U.S. sanctions toward Cuba rests. In a statement for the Secretaries of State and of the Treasury, Obama labeled the move “in the national interests of the United States” without any explanation.

On September 8th  Cuba denounced this decision. Cuba said the main goal of the embargo or blockade is to cause “harm and suffering” to the Cuban people” despite the embargo’s having been denounced by the U.N. General Assembly on 22 consecutive occasions since 1992.

Second, as anticipated Cuba has announced that on October 28th it will offer at the U.N. General Assembly a new resolution on the need to end the U.S. blockade against Cuba. A Cuban report in support of the resolution stresses the blockade has been described as a genocidal policy by the international community since it prevents the island from acquiring medicines, reagents, spare pieces for medical equipment and other inputs, forcing it to trade with distant markets, thus increasing the costs. The Cuban report also alleges that the embargo/blockade has caused $116.8 billion of damages to the island’s economy.

Once again, this resolution is expected to be overwhelming approved by the General Assembly.

Third, there was good news that Latin American leaders are insisting that Cuban representatives be present at the next Summit of the Americas in Panama in April 2015. Last month the Panamanian Foreign Minister visited Havana to issue such an invitation personally to Cuban President Raúl Castro. Such an invitation is supported by other Latin American countries. As Uruguay’s Foreign Minister, Luis Almago, recently said, “The Latin American countries without exception formulated in the last Summit held in Cartagena that Cuba should be part of the 2015 Summit. Panamá has welcomed this desire and I believe that the invitation sent to Cuba is good news for the inter-American family.”

The U.S., however, is opposed to Cuban attendance. A State Department representative recently made the following rather innocuous comment on the subject:

  • “Panama is the host country for the summit, and as the host country they will make the decisions on invitations to that summit.  I think the invitations in a formal sense have not yet been made. . . [We] have said from the start that we look forward to a summit that can include a democratic Cuba at the table.  We also have said that the summit process, ever since Quebec in 2001, has made a commitment to democracy, and we think that’s an important part of the summit process.  But the decision about invitations is not ours to make, and obviously there’s been no invitations formally issued to the United States and other countries.  And so there is no acceptance or rejection yet called for or made.”

More vigorous opposition was expressed by U.S. Senator Robert Menendez, a Cuban-American and the Chairman of the Senate Foreign Relations Committee. In a letter to the Panamanian President, Menendez expressed “dismay” over Panama’s intended invitation. According to Menendez, “Cuba’s participation would undermine the spirit and authority of the Summit of the Americas as a space to reaffirm the principles enshrined on the Charter of the United Nations, the Charter of the Organization of American States, and the Inter-American Democratic Charter, as well as commitments made at past Summits.”

After railing against Cuba as “the hemisphere’s most enduring dictatorship,” Menendez concluded his letter by saying such an invitation “sends the wrong message about the consolidation of democracy in the Americas, will dramatically weaken the democratic credentials of the premier meeting of heads of state in the hemisphere, and ultimately will undermine the validity of the Summits’ declarations.” This proclamation was coupled with perhaps an implied threat of adverse consequences for Panama from the U.S. should Panama proceed with the invitation; Menendez said, “I remain committed to strengthening the partnership between the U.S. and Panama.”[1]

Fourth, Alan Gross, a U.S. citizen, remains in poor health in a Cuban prison after his conviction for violating Cuban laws. In my opinion, it clearly is in the interest of both Cuba and the U.S.to have him released from that prison and returned to the U.S. before he dies and thereby creates another obstacle to improving relations between the two countries. Cuba, however, by all reports is trying to negotiate an exchange of Gross for at one or more of the three remaining “Cuban Five” in U.S. prison.

Frank Calzon, the Executive Director of the Center for a Free Cuba, however, has issued what, in my opinion, is a counterproductive suggestion. He says, “There . . . comes a time when something more [than negotiating through diplomatic channels] is needed. That time is now in Cuba. Only when U.S. government raises the stakes — the political and economic risks facing Cuba — will Alan Gross be allowed to come home, and only then will Havana have to think twice before taking another hostage.

Fifth, in 1976 then U.S. Secretary of State Henry Kissinger in the Gerald Ford Administration was in charge of a top-secret group of senior officials that developed plans to conduct, after the 1976 presidential election, air strikes on Cuban ports and military installations and to send Marine battalions to the United States Navy base at Guantánamo Bay to “clobber” the Cubans. The plan also included proposals for a military blockade of Cuba’s shores. Fortunately with Jimmy Carter’s victory in the 1976 election, this plan never was implemented,

Kissinger instigated this planning because he personally was infuriated that Fidel Castro in late 1975 had sent Cuban troops to newly independent Angola to help in its repelling attacks from South Africa and right-wing guerrillas and thereby ignored Kissinger’s behind-the-scenes effort to improve U.S. relations with Cuba.

These revelations are in documents, now available online, that recently were declassified by the Gerald R. Ford Presidential Library.

Glimmer of Hope

BackChannel book

William M. LeoGrande (Professor of Government at American University’s School of Public Affairs) and Peter Kornbluh (Director of the National Security Archive’s Cuba and Chile Documentation Projects) have published a new book, Backchannel to Cuba: The Hidden History of Negotiations Between Washington and Havana, which I want to read. [2] This book forms the basis for their recent article in The Nation magazine, Six Lessons for Obama on How to Improve Relations with Cuba. Here are those lessons.

  • Even at moments of intense hostility, there have always been reasons and opportunities for dialogue.
  • Cuban leaders instinctively resist making concessions to US demands, but they are willing to take steps responsive to US concerns so long as those steps come at Havana’s initiative.
  • Cuban leaders have had a hard time distinguishing between U.S. gestures and concessions.
  • An incremental approach to normalizing relations has not worked. It is slow and easily disrupted by other events. “Incremental steps do not fundamentally change the relations and, therefore are easily reversed.” Every incremental step gives U.S. opponents of reconciliation the opportunity to obstruct the process. Instead, the “alternative is a bold stroke that fundamentally changes the relationship (even if it doesn’t resolve every issue) and leaves opponents facing a fait accompli. Nixon’s trip to China is the paradigmatic example.”
  • Domestic politics is always an issue on both sides.
  • Cuba wants to be treated as an equal, with respect for its national sovereignty.

 Conclusion

Although I do not have the depth of knowledge of LeoGrande and Kornbluh I endorse their lessons as should be evident from this blog’s many posts on the subject of U.S.-Cuba relations.

Perhaps the bold stroke they mention as the way towards improved relations could be made by a third party—another country or an international organization or a nongovernmental organization—stepping forward with a public announcement of a desire and commitment to serve as a mediator to resolve the many issues between the two countries and inviting them to send representatives at a set time and place to discuss the procedures for such a mediation. Such an initiative, in my judgment, to have any chance of success would have to be by an entity that was neutral, that was respected by both sides and the world at large, that had the resources to be engaged in such a process for a long time and that would not be discouraged by any initial negative responses by either country. This blog made such a suggestion in 2011 and 2012.

Such a mediation would remove the desire of at least the U.S. to avoid taking the first step toward normalization. It also, in my opinion, would be in the national interest of both countries.

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[1] A rebuttal to the Menendez letter was issued by the Center for Democracy in the Americas.

[2] LeoGrande and Kornbluh have been interviewed about the book.