Tag: U.S. Central Intelligence Agency (CIA)

Why Is Donald Trump Disparaging the U.S. Intelligence Community?   

Last week I watched with dismay the discussion on the Charlie Rose Show about the ongoing fight between President-elect Donald Trump and the U.S. intelligence community. Rose and his guests (David Ignatius of the Washington Post, Michael Shear of the New York Times and Jeffrey Goldberg, the Editor of The Atlantic Magazine) kept trying to identify substantive (and erroneous) reasons for Trump’s denigration of the intelligence community and his apparent admiration of Russia and Vladimir Putin.

The real reason for Trump’s disparagement, in my judgment, however, is his fundamental character flaw that has been identified by Michael J. Morell, the acting director and deputy director of the Central Intelligence Agency from 2010 to 2013. In his January 6 New York Times article, Morell, wrote that Trump’s disparagement was damaging the intelligence community and would continue to do so. But it opened with this statement, “When I wrote in August 2016 . . . that Donald J. Trump’s character traits posed a national security threat, I didn’t imagine that the first manifestation of that dynamic could play out” with the CIA.[1]

Morell’s August 2016 article directly made the character flaw point.[2] He said, “the character traits [Mr. Trump] has exhibited during the primary season suggest he would be a poor, even dangerous, commander in chief.” Morell added, “These traits include his obvious need for self-aggrandizement, his overreaction to perceived slights, his tendency to make decisions based on intuition, his refusal to change his views based on new information, his routine carelessness with the facts, his unwillingness to listen to others and his lack of respect for the rule of law.”

These character flaws, according to Morell’s earlier article, were obviously seen by Mr. Putin who was “a career intelligence officer, trained to identify vulnerabilities in an individual and to exploit them. That is exactly what he did early in the primaries. Mr. Putin played upon Mr. Trump’s vulnerabilities by complimenting him. He responded just as Mr. Putin had calculated.”

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[1] Morell, Trump’s Dangerous Anti-C.I.A. Crusade, N.Y. Times (Jan. 6, 2017).

[2] Morell, I Ran the C.I.A. Now I’m Endorsing Hillary Clinton, N.Y. Times (Aug. 5, 2016).

Covert CIA 1966 Operation To Assassinate Fidel Castro?

According to a recent article in Granma, the official newspaper of the Communist Party of Cuba, May 29 was the 50th anniversary of an operation of the U.S. Central Intelligence Agency (CIA) to assassinate Fidel Castro, then the President of Cuba. Here is what the article asserts.[1]

Cuesta Valle
Cuesta Valle

On May 29, 1966, Antonio Cuesta Valle, leader of the counterrevolutionary organization Commandos L and a CIA agent, and five “terrorists,” left Marathon, Florida in a 23-foot long speedboat.

That night the speedboat anchored near the Monte Barreto area of the Miramar district of Havana, and several men in a rubber raft went ashore and assembled bazookas. A nearby Cuban anti-aircraft battery spotted the speedboat and fired flares. This caused two of the infiltrators to return to the speedboat while two others fled in an area near the Hotel Commodore.

Hotel Comodoro
Hotel Commodoro

The two infiltrators on land were surrounded and killed. Meanwhile two Cuban naval boats sunk the speedboat. As a result four of the enemy were killed. The other two—Cuesta and Zaldivar Cardenas–were captured and arrested and after trial sentenced to 30 years imprisonment. However, in 1978 they were released and returned to Florida.

During legal proceedings in Cuba, the two men revealed new details of CIA activities regarding Cuba; the characteristics of the speedboat’s mother bases in Miami and Puerto Rico; the different routes followed during their operations to smuggle arms and men into Cuba; the composition of infiltration teams; the methods used to hide weapons and explosives; and the modus operandi of the enemy during infiltrations and pirate attacks against Cuban targets.

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[1] Vázquez & Aguilera, Frustrated infiltration Monte Barreto, Granma (May 29, 2016).

Issues of Cuban Human Rights To Be Discussed by Cuba and United States (Part III)    

On March 26 Cuba announced that the U.S. and Cuba will commence negotiations regarding human rights on March 31 in Washington, D.C.; this was covered in a prior post.

Other earlier posts covered the recent speech on this subject by Cuban Foreign Minister Bruno Rodriguez Parrilla and the U.N. Human Rights Council’s most recent Universal Periodic Review (UPR) of Cuba. Now we look at the latest U.S. State Department report on Cuban human rights (the one issued in 2014 for 2013).

Preliminarily it must be noted that this U.S. report is rather stale and it is surprising that a similar report for 2014 has not yet been released. The report for 2013 was released on February 27, 2014, and the overall report was discussed in a March 4, 2014 post and its chapter on Cuba in another March 2014 post.

In addition, a post on March 10, 2014, reviewed the implications of that report for U.S. policy regarding Cuba. This blogger saw the report’s indicating Cuba’s glass of human rights was at least half full. Or as Rev. Raúl Suárez, a Baptist pastor and head of the Martin Luther King, Jr. Center in Havana, more eloquently put it in his February 2014 briefing for the U.S. Congress: “Cuba has many problems but Cuba isn’t hell . . . . We have many good things that have been achieved [but] . . . Cuba is not the Kingdom of God.” Suárez added, “God . . . wants us [Cubans and Americans] to live like brothers and sisters.” As a result, this blogger urged reconciliation of the two countries and mentioned many of the actions to that end that started on December 17, 2014.

In any event, here is another summary of the U.S. report on Cuba for 2013. It contains many criticisms of Cuban human rights, but it also has positive comments.

Negative comments.

“Cuba is an authoritarian state led by Raul Castro, who is president of the council of state and council of ministers, Communist Party (CP) first secretary, and commander in chief of security forces. The constitution recognizes the CP as the only legal party and “the superior leading force of society and of the state.” A CP candidacy commission preapproved all candidates for the February uncontested National Assembly elections, which were neither free nor fair. The national leadership that included members of the military maintained effective control over the security forces, which committed human rights abuses against civil rights activists and other citizens alike.”

“The principal human rights abuses were abridgement of the right of citizens to change the government and the use of government threats, extrajudicial physical violence, intimidation, mobs, harassment, and detentions to prevent free expression and peaceful assembly.”

“The following additional abuses continued: harsh prison conditions, arbitrary arrest, selective prosecution, and denial of fair trial. Authorities interfered with privacy, engaging in pervasive monitoring of private communications. The government did not respect freedom of speech and press, severely restricted internet access and maintained a monopoly on media outlets, circumscribed academic freedom, and maintained significant restrictions on the ability of religious groups to meet and worship. The government refused to recognize independent human rights groups or permit them to function legally. In addition, the government continued to prevent workers from forming independent unions and otherwise exercising their labor rights.”

“Most human rights abuses were official acts committed at the direction of the government. Impunity for the perpetrators remained widespread.”

“There were credible reports that members of the security forces intimidated and sometimes physically assaulted human rights and prodemocracy advocates, dissidents, and other detainees and prisoners both during detention and while imprisoned, and they did so with impunity. Some detainees and prisoners endured physical abuse, sometimes by other inmates with the acquiescence of guards, or long periods in isolation cells.”

“Arbitrary arrest and short-term detention continued to be a common method for the government to control independent public expression and political activity. Under the criminal procedure code, police have wide discretion to stop and question citizens, request their identification, and carry out arrests and searches. The law provides that police officials provide suspects with a signed ‘act of detention,’ noting the basis, date, and location of any detention in a police facility, and a registry of personal items seized during a police search. Police officials routinely conducted extrajudicial detentions, however, often accompanied by beatings. Arbitrary stops and searches were most common in urban areas and at government-controlled checkpoints located at the entrances to provinces and municipalities. Searches and seizures of property by police officials without providing any record or legal justification were also common practice.”

“Police and security officials continued to use short-term and sometimes violent detentions to prevent independent political activity or free assembly. Such detentions generally lasted from several hours to several days. An independent domestic monitoring group, the Cuban Commission on Human Rights and Reconciliation (CCDHRN), counted 4,540 short-term detentions through October, compared with 6,602 in 2012. Long-term imprisonment of peaceful opponents, while rare, did not cease entirely. During the year authorities charged, tried, and sentenced several members of the Santiago-based opposition group Union Patriotica de Cuba (UNPACU) to prison for months or years as punishment for their political activity.”

“In addition, the law allows up to a four-year detention of individuals before they commit an actual crime, with a subjective determination of ‘potential dangerousness,’ defined as the ‘special proclivity of a person to commit crimes, demonstrated by conduct in manifest contradiction of socialist norms.’ Mostly used as a tool to control “antisocial” behaviors such as substance abuse or prostitution, authorities also used it to silence peaceful political opponents. Authorities convicted Ivan Fernandez Depestre of dangerousness and sentenced him to three years’ imprisonment for participating in a peaceful public demonstration. While there was no definitive estimate of the number of persons serving sentences for ‘potential dangerousness,’ the CCDHRN estimated that more than 3,000 citizens were held on the charge.”

“The Ministry of Interior exercises control over police, internal security forces, and the prison system. The ministry’s National Revolutionary Police is the country’s primary law enforcement organization and was moderately effective in investigating common crimes. Specialized units of the ministry’s state security branch are responsible for monitoring, infiltrating, and suppressing independent political activity. The police support state security agents by carrying out house searches, arresting persons of interest to the ministry, and providing interrogation facilities.”

“Members of the security forces acted with impunity in committing numerous, serious civil rights and human rights abuses.”

“Many state-orchestrated ‘acts of repudiation’ directed against the domestic opposition group Damas de Blanco (‘Ladies in White‘) were organized to prevent them from meeting or marching peacefully. On July 14, state security agents and affiliated groups assaulted members of the group when they left a church in Matanzas after celebrating Catholic mass, fracturing the wrist of Sonia Alvarez Campillo and breaking the ribs of her husband, Felix Navarro Rodriguez.”

Positive Comments.

The U.S. conceded that the Cuban constitution “prohibits discrimination based on race, gender, disability or social status” and that Cuban law prohibits “ abusive treatment of detainees and prisoners,” “rape, including spousal rape” (and enforces that law); and “threats and violence, including those associated with domestic violence.” Cuban law, says the U.S., also “provides penalties for sexual harassment;” accords “men and women equal rights and responsibilities regarding marriage, divorce, raising children, maintaining the home and pursuing a career;” provides “equal pay for equal work;” grants “persons with disabilities the right to equal employment opportunities and equal pay for equal work;” and prohibits “unlawful imprisonment, coercion, and extortion” although it “does not appear explicitly to prohibit forced labor.”

The U.S. report further states in 2013 that the government had centers “providing family counseling service” and “treatment for child sexual abuse victims;” that the government “actively promoted racial integration and inclusiveness;” that the government or its agents had not committed any reported arbitrary or unlawful killings or politically motivated disappearances; that there were no reported anti-Semitic acts; that there was “no societal pattern of child abuse,” no known “patterns of abuse of [children with disabilities] in educational or mental health facilities” and no discrimination officially reported or permitted based on sexual orientation in employment, housing, statelessness, or access to education or health care.”

Conclusion

It is fair to conclude that many of what the U.S. saw as negative aspects of Cuban human rights in 2013 will be raised in its forthcoming talks on the subject with Cuba.

The U.S. should approach this subject with humility and remember the U.S. immense superiority in economies and military might and the long-standing U.S. actions of hostility towards Cuba, including the following:

  • the U.S. usurpation of Cuba’s war for independence from Spain in the late 19th Century (what we in the U.S. call the “Spanish-American War“);
  • the U.S.’ making Cuba a de facto protectorate in the early 20th Century;
  • the U.S. support for the invasion of Cuba’s Bay of Pigs in 1961;
  • the U.S. threats of military action against Cuba during the pressured Cuban missile crisis of 1962;
  • the CIA’s hatching several plots to assassinate Fidel Castro when he was Cuba’s President;
  • the U.S. conduct of an embargo of Cuba over the last 50-plus years;
  • the U.S. Government’s Commission on Assistance for a Free Cuba setting forth what amounted to a U.S. blueprint for taking over Cuba; and
  • the more recent U.S. Agency for International Development (USAID) covert or “discreet” programs to promote dissent, if not regime change, on the island.

This history and the vastly superior U.S. economic and military power provide Cuba with many legitimate reasons to be afraid of the U.S. It, therefore, is understandable why Cuba has harshly treated what we call “dissidents” and what Cuba fears are or could be supporters of a U.S. takeover. And we in the U.S. should know from our own history since 9/11 that societies and governments tend to clamp down on civil liberties when they fear outside interference or attacks.

 

 

Update on Spain’s Case Regarding the Murders of the Jesuits of El Salvador

Spain’s National Court (Audicencia Nacional) since November 2008 has been conducting a criminal case regarding the murders of six Jesuits priests and their housekeeper and her daughter in El Salvador on November 16, 1989. This lead in January 2009 to the Spanish equivalent of indictments of 14 former Salvadoran military officials and soldiers for murder, crimes against humanity and state terrorism. In May 2011 the court added six indictees and issued 20 international arrest warrants. Thereafter in November 2011 Spain issued requests for extradition of these men to Spain to face the charges. [1]

However, in August 2011 El Salvador’s Supreme Court refused to enforce the Interpol arrest warrants for 13 of the indictees who were living in that country and in May 2012 denied the requests for their extradition on the ground that the country’s constitution prohibited extradition of its citizens. Another indictee, Inocente Orlando Montano, had been living in the U.S. and now is in U.S. prison after pleading guilty to lying multiple times to U.S. immigration officials. (One indictee, former Colonel René Emilio Ponce, died during the prior proceedings.)

Just this October the Spanish court’s Criminal Chamber, en banc, decided that the court did have jurisdiction over all of the charges: murder, crimes against humanity and state terrorism.

Almudena Bernabeu
Almudena Bernabeu

Last week Almudena Bernabeu, CJA’s International Attorney and Transitional Justice Program Director and the lead private attorney for the prosecution in this case, was in El Salvador to discuss the case in connection with the twenty-fifth anniversary of these horrible crimes. [2]

First, she reported that the case is now at a standstill because none of the suspects is physically present in Spain.

Inocente Orlando Montano
Inocente Orlando Montano

Next year, however, she hopes this will change. In April of 2015, Senor Montano will complete his incarceration in the U.S. [3] By then the U.S. must decide whether it will honor Spain’s request to extradite Montano to Spain.

Although the U.S. is not legally required to consult with El Salvador on this issue, as a matter of inter-state courtesy the U.S. probably would do so, she said. Therefore, Bernabeu has conferred with officials of the Salvadoran government, who have confirmed that there is absolute willingness to collaborate with the Spanish process for the extradition of Mr. Montano from the U.S.  Thus, it is important to know that when the U.S. faces the decision whether to extradite Montano, the government of El Salvador has decided not to interfere.

Second, upon such an extradition and Montano’s arrival in Spain, the Spanish case would be re-activated to prepare the case for trial, presumably within 30 days.

Third, if, however, the U.S. deported Montano to El Salvador, the Salvadoran courts probably would refuse to extradite him in light of their prior refusal to extradite to Spain other indictees in the case who are Salvadoran citizens. In that event, the case in Spain could not proceed further.

Fourth, Bernabeu said she unsuccessfully has tried three times to have former Salvadoran President Alfredo Cristiani added as a defendant and indictee because she believes the evidence shows he ultimately was responsible for the crime committed by the military’s High Command and was an accessory to the killing. Indeed, she said that the testimony of two former Salvadoran military officials and documents, including declassified U.S. documents from the CIA, FBI and Department of Defense, show that Cristiani knew of the plan to kill the Jesuits before the murders happened. Whatever the reasons, the Spanish court has been reluctant to join a former foreign president as a defendant. [4]

Fifth, she said El Salvador’s General Amnesty Act of 1993 was a major problem for this case and others like it. This was so even though the Inter-American Commission on Human Rights in December 1999 decided in the Jesuits case that the Amnesty Law violated the American Convention on Human Rights and ordered El Salvador to declare it null and void and even though the Inter-American Court of Human Rights in December 2012 in another case (the El Mozote Massacre) ordered El Salvador to repeal the Amnesty Act. [5] That has not yet happened, but the Constitutional Chamber of El Salvador’s Supreme Court sometime soon is expected to rule on the constitutionality of that Act.

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[1] The Spanish court has jurisdiction over the case under Spain’s statute for universal jurisdiction over the most serious crimes of international concern. This statute is an implementation of the international legal principle of universal jurisdiction whereby a state has universal jurisdiction over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator.  A detailed summary of the Jesuits case along with some of the court documents and other materials is available on the website of the non-profit Center for Justice and Accountability (CJA) based in San Francisco, California. CJA, the sponsor of the case in Spain. It is an international human rights organization dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress. It uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.

[2] This account of Bernabeu’s comments is based upon Castillo, 25 Yrs After El Salvador Priest Killings, Groups Press for Justice, NBC News (Nov. 13, 2014); Labrador & Fatima, The government of El Salvador has decided not to hinder Montano’s extradition to Spain, El Faro (Nov. 14, 2014); Jaminez, Await Extradition of Montano, DiarioCoLatino (Nov. 15, 2014); Dalton, “Cristiani knew at time of slaughter of Jesuits in El Salvador,” El Pais (Nov. 17, 2014). El Faro also recently published (a) a collection of articles from other Salvadoran newspapers evidencing the right’s hatred of the Jesuits before their murders; (b) biographies of the murdered priests, their housekeeper and her daughter and the six Salvadoran military personnel who were prosecuted for the crime in El Salvador (with only two convicted and then subsequently released from prison on the basis of the General Amnesty law); (c) an article describing how that Salvadoran prosecution for this crime was impeded by their attorney general; (d) an archive of U.S. diplomatic cables and other documents about the crime; and (e) a hyperlinked collection of El Faro’s prior articles about the Jesuits case.

[3] The U.S. legal proceedings against Montano are discussed in prior posts and comments: Comment [to “Spain Requests Extradition” post]: Ex-Salvadoran Military Officer [Montano] Indicted for Alleged Violations of U.S. Immigration Laws (Feb. 12, 2012); Comment [to “Spain Requests Extradition” post]: Former Salvadoran Military Officer [Montano] Pleads Guilty to Lying to U.S. Immigration Officials (Sept. 15, 2012); Former Salvadoran Colonel Inocente Orlando Montano To Serve 21 Months in U.S. Prison (Sept. 5, 2013).

[4] On December 16, 2008, the U.S. Embassy in El Salvador sent a cable to the U.S. Secretary of State. It reported that earlier that month senior officials of the Salvadoran government went to Spain and met with its attorney prosecuting the Jesuits case and with other top-level Spanish government officials, who said they were embarrassed about the case’s seeking to add Alfredo Cristiani, El Salvador’s former president, as a defendant. The Spanish prosecutor also promised support and cooperation to the Salvadoran officials.

[5] Yet another post reviewed the decision in the El Mozote Massacre case by the Inter-American Court of Human Rights.

U.S. Stupidity and Cowardice in Continuing to Designate Cuba as a “State Sponsor of Terrorism”

On April 30, 2014, the U.S. Department of State issued its annual report on terrorism in the world: Country Reports on Terrorism 2013. A prior post reviewed the report as a whole.

We now examine this report’s designation of Cuba as a “State Sponsor of Terrorism” [“SST”], i.e., as a country that has “repeatedly provided support for acts of international terrorism.” This post’s analysis is also informed by the U.S.’s similar designations of Cuba in the annual reports on terrorism for 1996 through 2012. Earlier posts analyzed and criticized the reports about Cuba for 2009, 2010, 2011 and 2012.

State Department’s Rationale

The following is the complete asserted justification for the Department’s designation of Cuba for 2013:

  • “Cuba was designated as a State Sponsor of Terrorism in 1982.
  • Cuba has long provided safe haven to members of Basque Fatherland and Liberty (ETA) and the Revolutionary Armed Forces of Colombia (FARC).  Reports continued to indicate that Cuba’s ties to ETA have become more distant, and that about eight of the two dozen ETA members in Cuba were relocated with the cooperation of the Spanish government.  Throughout 2013, the Government of Cuba supported and hosted negotiations between the FARC and the Government of Colombia aimed at brokering a peace agreement between the two.  The Government of Cuba has facilitated the travel of FARC representatives to Cuba to participate in these negotiations, in coordination with representatives of the Governments of Colombia, Venezuela, and Norway, as well as the Red Cross.
  • There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.
  •  The Cuban government continued to harbor fugitives wanted in the United States.  The Cuban government also provided support such as housing, food ration books, and medical care for these individuals.”

Rebuttal of State Department’s Rationale

On its face alone, this alleged justification proves the exact opposite: Cuba is not a state sponsor of terrorism. Nevertheless, a detailed rebuttal follows.

U.S. Admissions of the Weakness of Its Designation

First, the report itself admits, “There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.” This is consistent with past U.S. admissions that there was no evidence that Cuba had sponsored specific acts of terrorism (1996, 1997) and that there “was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups” (2011, 2012, 2013). Similar admissions were made in the U.S. reports for 2005, 2008, 2009 and 2010.

Second, earlier U.S. reports admitted that “Cuba no longer supports armed struggle in Latin America and other parts of the world” (1996, 1997, 1998, 2008, 2009) and that in 2001(after 9/11) Cuba “signed all 12 UN counterterrorism conventions as well as the Ibero-American declaration on terrorism” (2001, 2002, 2003).

Third, the latest report’s Western Hemisphere Overview says the FARC  “committed the majority of terrorist attacks in the . , . Hemisphere in 2013.” There is no mention of Cuba in this overview. The same was said in the report for 2012.

Fourth, there is no mention of Cuba in the latest report’s “Strategic Assessment” that puts all of its discussion into a worldwide context.

Fifth, the latest report makes no allegations against Cuba regarding money laundering and terrorist financing, which was one of the purported bases for the SST designation for 2012. Thus, the U.S. apparently has recognized the weakness of such charges were evident to all, as discussed in this blogger’s post about the prior report and a related post about Cuba’s adoption of regulations on these financial topics.

All of this rebuttal so far is based only on what the State Department has said about this designation since 1996.

In addition, the Cuban government has taken the following actions that strengthen the rebuttal of the designation and that, to my knowledge, the U.S. has not disputed:

  • Cuba publicly has stated that Its “territory has never been and never will be utilized to harbor terrorists of any origin, nor for the organization, financing or perpetration of acts of terrorism against any country in the world, including the [U.S.]. . . . The Cuban government unequivocally rejects and condemns any act of terrorism, anywhere, under any circumstances and whatever the alleged motivation might be.”
  • In 2002, the government of Cuba proposed to the U.S. adoption of a bilateral agreement to confront terrorism, an offer which it reiterated in 2012, without having received any response from the U.S.
  • Cuban President Raul Castro on July 26, 2012 (the 59th anniversary of the Cuban Revolution) reiterated his country’s willingness to engage in negotiations with the U.S. as equals. He said no topic was off limits, including U.S. concerns about democracy, freedom of the press and human rights in Cuba so as long as the U.S. was prepared to hear Cuba’s own complaints. In response the U.S. repeated its prior position: before there could be meaningful talks, Cuba had to institute democratic reforms, respect human rights and release Alan Gross, an American detained in Cuba.

But let us go further.

Cuba As an Alleged Safe Haven for Terrorists

The only remaining asserted basis for the “SST” designation is Cuba’s alleged providing safe haven to individuals with two U.S.-designated Foreign Terrorist Organizations—ETA (an armed Basque nationalist and separatist group in Spain) and FARC (an armed Colombian rebel group)—and to certain fugitives from U.S. criminal proceedings.

Analysis shows that these charges do not support the SST designation.

            a. ETA

Prior U.S. reports say there were only 20 to 24 ETA members in Cuba, and the latest report says “Cuba’s ties to ETA have become more distant, and . . . about eight of the two dozen ETA members in Cuba were relocated with the cooperation of the Spanish government.” Thus, there are only 12 to 16 ETA members remaining in Cuba, and by now they must be older people who have not participated in any terrorist activities in Spain for many years. They are “side-line sitters.”

Moreover, the 2011 and 2012 U.S. reports state that Cuba is “trying to distance itself” from the ETA members on the island and was not providing certain services to them.

Earlier U.S. reports also reflect the limited nature of the charges regarding ETA. Of the 20 to 24 members previously on the island, the U.S. said, some may be in Cuba in connection with peace negotiations with Spain (2009). In May 2003, the U.s. reported, Cuba publicly asserted that the “presence of ETA members in Cuba arose from a request for assistance by Spain and Panama and that the issue is a bilateral matter between Cuba and Spain” (2003). In March 2010, a U.S. report stated, Cuba had “allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members” (2010).

Moreover, in March 2011 the Spanish Ambassador to Cuba told former U.S. President Jimmy Carter that Spain was “not concerned about the presence of members of . . . ETA . . . in Cuba.” Indeed, the Spanish Ambassador maintained that this enhances his country’s ability to deal more effectively with ETA. In fact, the Ambassador added, some ETA members are there at the request of the Spanish government.

At least the last three U.S. reports say that Cuba is providing “safe haven” to the ETA members, but their separate chapters on the legitimate international problem of terrorist safe havens have no mention whatsoever of Cuba.

It also should be noted that there has been some movement towards an understanding to resolve the ETA challenges to the Spanish government. In September 2011 an international verification commission was established to help broker such a resolution, and the next month ETA announced a unilateral cease-fire. More recently, February 2014, that commission announced its corroboration of a partial disablement of ETA weapons. The Spanish government, on the other hand, publicly has refused to negotiate and instead has insisted that ETA admit defeat and surrender unconditionally. In addition, the government still enforces a criminal law against publicly glorifying terrorists or their actions  with April 28th arrests of 21 Spaniards for praising terrorist groups such as ETA and radical Islamists, for encouraging further attacks, and for making fun of victims on social networking sites.

In the meantime, Spain as a member of the European Union is participating in negotiations between the EU and Cuba to establish a Political Dialogue and Cooperation Agreement without any mention of ETA members being on the island. Recently the parties completed the first round of those negotiations with an understanding that the final agreement will have these four components: political dialogue and governance; cooperation and sectoral policies; the economy and trade; and management of the bilateral relationship. The subject of human rights will remain an issue in the chapter on the Political dialogue and governance.

In summary, I submit, any objective analysis shows that Cuba’s limited connection with a small number of ETA members is no legitimate reason for the U.S. SST designation.

            b. FARC

Most of the reasons for the speciousness of the charges regarding ETA also apply to the charges regarding the Colombian group, FARC.

In addition, the 2008 U.S. report said in July of that year “former Cuban President Fidel Castro called on the FARC to release the hostages they were holding without preconditions. He has also condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians who had no role in the armed conflict.”

There is no indication in the State Department’s reports of the number of FARC members allegedly in Cuba, but for 2009 the U.S. reported that some may be on the island in connection with peace negotiations with Colombia (2009 report).

Moreover, in March 2011 the Colombian Ambassador to Cuba told former U.S. President Jimmy Carter that Colombia was “not concerned about the presence of members of FARC . . . in Cuba.” Indeed, the Ambassador maintained that this enhances their ability to deal more effectively with FARC.

Cuba’s limited connections with the FARC resulted in a September 2012 statement by Cuba’s Ministry of Foreign Relations about the then recently-announced peace talks between Colombia’s government and the FARC. It stated that Cuba “has a historical commitment to peace in Colombia and efforts to put an end to [her] . . . political, social and military conflicts.” To that end, the Cuban Government “has made constructive efforts to . . . search for a negotiated solution, always responding to a request from the parties involved and without the slightest influence in their respective positions.” The statement continued. For over a year, at the express request of the Government of Colombia and the FARC, “the Cuban government supported the . . . exploratory talks leading to a peace process,” and as a “guarantor” Cuba participated in these talks. “The Cuban government will continue to . . . [provide its] good offices in favor of this effort, to the extent that the Government of Colombia and the FARC . . . so request.” The Government of Colombia publicly stated its gratitude for Cuban facilitation of such negotiations.

As a result, the last two U.S. reports admit that Cuba has “supported and hosted negotiations between the FARC and the Government of Colombia aimed at brokering a peace agreement between the two sides.” In addition, Colombia’s president has said that support for such negotiations by Cuba and Venezuela has been crucial in helping the two sides to reach agreement on conducting the negotiations.

In May 2013, the two sides announced an agreement to distribute land to small farmers and undertake development projects that would improve rural education and infrastructure that will not take effect until a final peace agreement is reached.

In short, Cuban involvement with some FARC members is not a legitimate basis for the U.S. designation of Cuba as a SST .

            c. U.S. fugitives

There apparently were or are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes, but, as the U.S. has admitted, since at least 2005 Cuba has not admitted any additional U.S. fugitives. In addition, the U.S. also had admitted that in a few instances Cuba has extradited such fugitives to the U.S. (2001, 2003, 2004, 2005, 2006, 2007, 2008, 2009).

One of the U.S. fugitives, William Potts, this year voluntarily returned to the U.S. after serving a 15-year Cuban sentence for the 1984 hijacking of a Piedmont Airlines passenger plane with 56 people aboard in the U.S. and forcing it to go to Cuba. On May 1, 2014, Potts appeared in a U.S. federal court and pled guilty to kidnapping (with a possible life sentence); under a plea agreement, the government dropped an air piracy charge (with a mandatory minimum sentence of 20 years). Potts is asking the court to give him credit for the 15 years he already served in a Cuba prison on the same charge. Sentencing is scheduled for July 11th.

None of the other U.S. fugitives apparently is affiliated with any U.S.-designated terrorist organizations. The issue of whether or not they will be extradited to the U.S. is an appropriate issue for bilateral negotiations between the two countries.

In any event, the presence in Cuba of some fugitives from U.S. criminal charges is not a legitimate basis for the U.S. designating Cuba as a SST.

Conclusion

The U.S. designation of Cuba as a “State Sponsor of Terrorism” is absurd. This conclusion is shared, in less colorful language, at least by the U.S. Central Intelligence Agency, former President Jimmy Carter, the U.S. Council on Foreign Relations, the Center for Democracy in the Americas, the Center for International Policy, the Latin American Working Group, The Atlantic Magazine’s noted national correspondent (Jeffrey Goldberg) and a retired U.S. Army Brigadier General (John Adams).

Not surprisingly the Cuban government comes to the same conclusion. In response to the latest designation, it stated,” Cuba’s Foreign Ministry “energetically rejects the manipulation of a matter as sensitive as international terrorism by turning it into an instrument of policy against Cuba and it demands that our country be definitively excluded from this spurious, unilateral and arbitrary list.” Last year, it said “the only reason Cuba is kept on this list is . . . an attempt to justify the U.S. blockade of our country, as well as the adoption of new measures to limit our financial and commercial transactions, to strangle the Cuban economy and impose a regime which responds to U.S. interests.”

The U.S. itself also has damned the designation by faint praise. In a press briefing about the most recent terrorism report, a journalist pointed out some of the weaknesses of the stated rationale and asked when the U.S. would cancel the designation. The State Department spokesperson refused to speak directly about the purported rationale for the Cuban SST designation. Instead the spokesperson said, “there’s not a routine process by which you re-evaluate the state sponsors. . . . [and the annual terrorism reports just list those on the SST list. It is not]as if every year we look at those and re-evaluate them in some way based on the report.” [1] She added she knew of no plans to remove the SST designation for Cuba.

Whatever legitimate issues are raised by these U.S. reports, I submit, they are appropriate subjects, among many, for the bilateral negotiations that a prior post recommended should occur between the U.S. and Cuba to the end of reconciliation and restoration of normal relations.

In the meantime, this SST designation is ridiculous, absurd, stupid. It can only continue, in this outsider’s opinion, because of the Administration’s political cowardice in facing resistance to an elimination of this designation, especially from influential Cuban-Americans in Congress, especially Democratic Senator Robert Menendez, Chairman of the Senate Foreign Relations Committee,[2] and Republican Rep. Ros-Lehtinen, member of the House Foreign Affairs Committee.[3]

All U.S. citizens should protest this SST designation to President Obama, Secretary of State Kerry, Senator Menendez (and your own Senators), Representative Ros-Lehtinen (and your own Representative).

——————————————–

[1] The State Department also posted this statement on its website. “While there are no statutory triggers for review of a State Sponsor of Terrorism designation, the State Department can review such designations at its discretion. With respect to criteria for rescission, there are two possible pathways to rescission of a State Sponsor of Terrorism designation, in accordance with the relevant statutory criteria. The first path requires the President to submit a report to Congress, before the proposed rescission would take effect, certifying that: (1) there has been a fundamental change in the leadership and policies of the government of the country concerned; (2) the government is not supporting acts of international terrorism; and (3) the government has provided assurances that it will not support acts of international terrorism in the future.The second path requires the President to submit a report to Congress, at least 45 days before the proposed rescission would take effect, justifying the rescission and certifying that: (1) the government concerned has not provided any support for international terrorism during the preceding six month period, and (2) the government concerned has provided assurances that it will not support acts of international terrorism in the future.

[2] In April 2014, Senator Menendez made a speech on the Senate floor endorsed Cuba’s SST designation while castigating Cuba on all sorts of issues.

[3] Responding to the latest designation, Rep. Ileana Ros-Lehtinen (R., Fla.), said Cuba “continues to pose a national security threat to the United States.” She added that recently “the Castro regime has been responsible for training the ‘colectivos’ in Venezuela that violate human rights and murder innocent civilians and Cuba was caught trying to ship military equipment to North Korea in violation of many United Nations Security Council resolutions [and the] tyranny in Havana is also guilty of harboring terrorists, providing safe haven for American fugitives, and building a sophisticated spy network that seeks to undermine our national security interests at every turn.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

U.N. Human Rights Committee’s Concluding Observations on U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and the events leading up to the Committee’s evaluation. Another post looked at the Committee’s recent hearings regarding U.S. human rights.

Now we examine the Committee’s report of concluding observations that resulted from the hearings and all the evidence on that subject.

The Committee’s Concluding Observations[1]

After considering the written materials and the testimony and remarks at the hearing, on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America). Given the hostile nature of the Committee members’ comments during the hearing, it is not surprising that the report was very critical of the U.S.[2]

With respect to various topics, the Committee expressed its regrets or concerns about the U.S. record and then made the recommendations outlined below.

Applicability of the Covenant at national level.[3] The U.S. should: “(a) Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances . . . .(b) [I]dentify ways to give greater effect to the Covenant at federal, state and local levels, taking into account that the obligations under the Covenant are binding on the State party as a whole. . . . (c) [E]nsure that effective remedies are available for violations of the Covenant, including . . . proposing to the Congress implementing legislation to fill any legislative gaps. . . . [and considering] acceding to the Optional Protocol to the Covenant providing for an individual communication procedure. [4] (d) Strengthen and expand existing mechanisms mandated to monitor the implementation of human rights at federal, state, local and tribal levels . . . . (e) Reconsider its position regarding its reservations and declarations to the Covenant with a view to withdrawing them.”[5]

Accountability for past human rights violations. The U.S. should: “[E]nsure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, [6] are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. [7] The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.”

Racial disparities in the criminal justice system and Racial profiling. The U.S. should: “[R]obustly address racial disparities in the criminal justice system . . . [and] effectively combat and eliminate racial profiling by federal, state and local law enforcement officials . . . .”[8]

Death penalty. The U.S. should: “(a) take measures to effectively ensure that the death penalty is not imposed as a result of racial bias; (b) strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage; (c) ensure that retentionist states [those that maintain the death penalty] provide adequate compensation for the wrongfully convicted; (d) ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution; [9] (e) consider establishing a moratorium on the death penalty at the federal level and engage with retentionist states with a view to achieving a nationwide moratorium;” [f] Consider acceding to on the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty on or before July 11, 2116, the 25th anniversary of its entry into force.

Targeted killing using unmanned aerial vehicles (drones). The U.S. should: “revisit its position regarding legal justifications for the use of deadly force through drone attacks [and] . . . (a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.”

Gun violence. The U.S. should: “[T]ake all necessary measures to abide by its obligation to effectively protect the right to life. . . . [including] (a) continue its efforts to effectively curb gun violence, including through the continued pursuit of legislation requiring background checks for all private firearm transfers in order to prevent possession of arms by persons recognized as prohibited individuals under federal law . . . ; and (b) review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when using deadly force in self-defence.”

Excessive use of force by law enforcement officials. The U.S. should: “(a) step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers; (b) ensure that the new CBP [U.S. Customs and Border Protection] directive on use of deadly force is applied and enforced in practice; and (c) improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”

Legislation prohibiting torture. The U.S. should: “[E]nact legislation to explicitly prohibit torture, including mental torture, wherever committed and ensure that the law provides for penalties commensurate with the gravity of such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. . . . [and] ensure the availability of compensation to victims of torture.”[10]

Non-refoulment [ban on returning persecuted to persecutor]. The U.S. should: “[S]trictly apply the absolute prohibition against refoulement under articles 6 and 7 of the Covenant, [11] continue exercising the utmost care in evaluating diplomatic assurances, and refrain from relying on such assurances where it is not in a position to effectively monitor the treatment of such persons after their . . . return to other countries and take appropriate remedial action when assurances are not fulfilled.”

Trafficking and forced labour. The U.S. should: “[C]ontinue its efforts to combat trafficking in persons, inter alia by strengthening its preventive measures, increasing victim identification and systematically and vigorously investigating allegations of trafficking in persons, prosecuting and punishing those responsible and providing effective remedies to victims, including protection, rehabilitation and compensation. [T]ake all appropriate measures to prevent the criminalization of victims of sex trafficking, including child victims, to the extent that they have been compelled to engage in unlawful activities. [R]eview its laws and regulations to ensure full protection against forced labour for all categories of workers and ensure effective oversight of labour conditions in any temporary visa program. [R]einforce its training activities and provide training to law enforcement and border and immigration officials, . . . [and] other relevant agencies. . . .”

Immigrants. The U.S. should: “review its policies of mandatory detention and deportation of certain categories of immigrants in order to allow for individualized decisions, to take measures ensuring that affected persons have access to legal representation, and to identify ways to facilitate access of undocumented immigrants and immigrants residing lawfully in the U.S. for less than five years and their families to adequate health care, including reproductive health care services.”

Domestic violence. The U.S. should: “[S]trengthen measures to prevent and combat domestic violence, as well as to ensure that law enforcement personnel appropriately respond to acts of domestic violence. [E]nsure that cases of domestic violence are effectively investigated and that perpetrators are prosecuted and sanctioned. [E]nsure remedies for all victims of domestic violence, and take steps to improve the provision of emergency shelter, housing, child care, rehabilitative services and legal representation for women victims of domestic violence. [T]ake measures to assist tribal authorities in their efforts to address domestic violence against Native American women.”

Corporal punishment. The U.S. should: “Take practical steps, including through legislative measures where appropriate, to put an end to corporal punishment in all settings. [E]ncourage non-violent forms of discipline as alternatives to corporal punishment and . . . conduct public information campaigns to raise awareness about its harmful effects. [P]romote the use of alternatives to the application of criminal law to address disciplinary issues in schools.”

Non-consensual psychiatric treatment. The U.S. should: “[E]nsure that non-consensual use of psychiatric medication, electroshock and other restrictive and coercive practices in mental health services is generally prohibited. Non-consensual psychiatric treatment may only be applied, if at all, in exceptional cases as a measure of last resort where absolutely necessary for the benefit of the person concerned provided that he or she is unable to give consent, for the shortest possible time, without any long-term impact, and under independent review. . . . [P]romote psychiatric care aimed at preserving the dignity of patients, both adults and minors.”

Criminalization of homelessness. The U.S. should: “[E]ngage with state and local authorities to: (a) abolish criminalization of homelessness laws and policies at state and local levels; (b) ensure close cooperation between all relevant stakeholders . . . to intensify efforts to find solutions for the homeless in accordance with human rights standards; and (c) offer incentives for decriminalization and implementation of such solutions, including by providing continued financial support to local authorities implementing alternatives to criminalization and withdrawing funding for local authorities criminalizing the homeless.”

Conditions of detention and use of solitary confinement. The U.S. should: “[M]onitor conditions of detention in prisons, including private detention facilities, with a view to ensuring that persons deprived of their liberty be treated in accordance with the requirements of articles 7 and 10 of the Covenant [12] and the UN Standard Minimum Rules for the Treatment of Prisoners. . . . [I]mpose strict limits on the use of solitary confinement, both pretrial and following conviction, in the federal system, as well as nationwide, and abolish the practice in respect of anyone under the age of 18 and prisoners with serious mental illness. . . . [B]ring detention conditions of prisoners on death row in line with international standards.”

Detainees at Guantanamo Bay. The U.S. should: “[E]xpedite the transfer of detainees designated for transfer, including to Yemen, as well as the process of periodic review for Guantánamo detainees, and ensure either their trial or immediate release, and the closure of the Guantánamo facility. [E]nd the system of administrative detention without charge or trial and ensure that any criminal cases against detainees held in Guantánamo and military facilities in Afghanistan are dealt with within the criminal justice system rather than military commissions and that those detainees are afforded the fair trial guarantees enshrined in article 14 of the Covenant.” [13]

NSA surveillance. The U.S. should: “(a) take all necessary measures to ensure that its surveillance activities, both within and outside the [U.S.], conform to its obligations under the Covenant, including article 17; [14] in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance; (b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse; (c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses; (d) refrain from imposing mandatory retention of data by third parties;(e) ensure that affected persons have access to effective remedies in cases of abuse.”

Juvenile justice and life without parole sentences. The U.S. should: “prohibit and abolish all juvenile life without parole sentences irrespective of the crime committed, as well as all mandatory and non-homicide related sentences of life without parole. . . . [15] ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts. . . . [encourage] states that automatically exclude 16 and 17 year olds from juvenile court jurisdictions . . . to change their laws.”

Voting rights. The U.S. should: “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. [T]ake all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters resulting in de facto disenfranchisement. [P]rovide . . . full voting rights of residents of Washington, D.C.”

Rights of indigenous people. The U.S. should: “adopt measures to effectively protect sacred areas of indigenous peoples against desecration, contamination and destruction and ensure that consultations are held with the communities that might be adversely affected by State party’s development projects and exploitation of natural resources with a view to obtaining their free, prior and informed consent for the potential project activities.”

Other. The U.S. should: “widely disseminate the Covenant, the text of the . . . [recent U.S. report to the Committee], the written responses that . . . [the U.S.] has provided in response to the list of issues drawn up by the Committee and the present concluding observations so as to increase awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations . . . [in the U.S.] as well as the general public.” “[For] its fifth periodic report, . . . continue its practice of broadly consulting with civil society and non-governmental organizations. [P]rovide, within one year, relevant information on its implementation of the Committee’s recommendations regarding accountability for [past human rights violations, gun violence, detainees at Guantanamo Bay and NSA surveillance]. [Submit] its next periodic report . . . [on March 28, 2019 with] specific, up-to-date information on all . . . [the Committee’s] recommendations and on the Covenant as a whole.”

Conclusion

One of the overriding issues in the Committee’s review was the geographical coverage of the entire treaty, whether it applies to U.S. conduct outside the U.S. territory, but where it has jurisdiction. The proper conclusion to this issue, in this blogger’s opinion, is that it does so apply or does have extraterritorial application. This conclusion was succinctly stated by the Committee’s Chairperson, Sir Nigel Rodley, during the hearing as noted in a prior post.

Essentially the same conclusion was reached in an October 2010 memo by Harold Koh, then the U.S. State Department’s Principal Legal Adviser.[16] After what he described as an “exhaustive review,” he stated, “an interpretation of Article 2(1) [of the ICCPR] that is truer to the Covenant’s language, context, object and purpose, negotiating history, and subsequent understandings of other States Parties, as well as the interpretations of other international bodies, would provide that in fact, . . . [a] state incurs obligations to respect Covenant rights — is itself obligated not to violate those rights through its own actions or the actions of its agents– in those circumstances where a state exercises authority or effective control over the person or context at issue.”[17]

Civil society organizations in the U.S. lauded the Committee’s “scathing report” and characterized the review as an opportunity for the Obama Administration to meaningfully improve its human rights legacy. The Electronic Frontier Foundation, among other groups, welcomed the Committee’s explicit recognition of the extraterritorial nature of the State’s obligations and its specific recommendations regarding surveillance, and urged immediate implementation by the United States.

The U.S. press coverage of this important international critique of U.S. human rights was pathetic. I did not find any such coverage in the Washington Post and the Wall Street Journal, two respected national newspapers.

The New York Times, on the other hand, had limited coverage. Before the hearings, the Times published one article on the then likely U.S. rejection of the treaty’s having extraterritorial effect along with the actual text of the contrary opinion on that issue by Harold Koh. Later the Times had an article about the first day of the Committee’s hearings that was primarily about the U.S.’ actual rejection of the treaty’s extraterritoriality with two short paragraphs about other issues. Finally the Times had an exceedingly short article about the Committee’s report that touched only on a few of its issues (drone strikes; the virtual lack of any U.S. investigation and prosecutions for alleged unlawful killings; use of torture and authors of legal memoranda purportedly justifying torture in the so called “war on terror;” and the call for publication of the U.S. Senate’s investigation of the CIA’s secret rendition program (turning over suspects to other countries)).

Finally, the Committee’s critique can be taken as an agenda for change by U.S. human rights advocates. Such change will not happen quickly given the dysfunctionality of the U.S. political system and culture. As President Obama frequently says, change does not come easily.                                                                 —————————————————————–

[1] This summary of the Committee’s concluding observations is based upon the observations themselves plus extensive articles about them in the Guardian, Reuters, Human Rights Watch, Amnesty International, the American Civil Liberties Union and a very short New York Times article.

[2] Before making its criticisms, the Committee noted its “appreciation [for] the many [U.S.] efforts undertaken, and the progress made in protecting civil and political rights.” The Committee then welcomed the U.S. Supreme Court’s abolition of the death penalty for offenders who were under the age of 18 when the crimes were committed (Roper v. Simmons (2005)); the U.S. Supreme Court’s recognition of extraterritorial habeas corpus for aliens detained at Guantanamo Bay (Boumediene v. Bush (2008)); the expansion of rights for such detainees (Presidential Executive Orders 13491 and 13493); and the U.S. President’s support of the U.N. Declaration of the Rights of Indigenous Peoples.

[3] This issue concerned Article 2(1) of the ICCPR, which states, “Each State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis added.)

[4] The Optional Protocol to the ICCPR allows alleged victims of an alleged violation by a State Party of any of the rights set forth in the Covenant to submit a communication of complaint to the Committee, and after it has received a response from that State Party, the Committee shall submit ”its views” [akin to an advisory opinion] on the matter to the alleged victim and State Party.

[5] The U.S. reservations and understandings to its ratification of the treaty were covered in a prior post.

[6] “Persons in command positions” presumably include former President George W. Bush, Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld.

[7] “Those who provided legal pretexts” presumably include John Yoo, Alberto Gonzalez and four other lawyers who in the George W. Bush Administration were authors of legal memoranda justifying the so-called “enhanced interrogation” techniques. At least some of these memoranda are available online. The issue of their legal responsibility for such memoranda has been raised in at least three proceedings. First, under Spain’s previous version of its universal jurisdiction statute, a Spanish court opened a criminal investigation regarding these six lawyers, but later the case was stayed when the Spanish court asked the U.S. for information about any U.S. investigation of such allegations. Second, Mr. Yoo was sued in U.S. federal court for money damages and declaratory relief by an individual who had been arrested and detained for interrogation in a military brig in the U.S. for three and a half years, but the U.S. Court of Appeals for the Ninth Circuit in May 2012 held that Mr. Yoo was entitled to immunity and thus reversed the district court’s denial of Yoo’s dismissal motion. Third, in January 2010, the U.S. Department of Justice’s Office of Professional Responsibility concluded that Yoo and another lawyer had used flawed legal reasoning in these memoranda, but that this had not constituted professional misconduct This issue also has been raised in other contexts. In the midst of all this, Yoo continues vigorously to assert the validity of the memoranda and thus his innocence.

[8] One of the Committee’s concerns that prompted this recommendation was, in the Committee’s words, “surveillance of Muslims undertaken by . . . the New York Police Department (NYPD) in the absence of any suspicion of wrongdoing.” On April 15th (or nearly three weeks after the issuance of the Committee’s report), the NYPD announced that it was terminating this program. This decision was welcomed by Muslim Advocates and the Center for Constitutional Rights of New York City while lamenting that the NYPD did not say it was ending its broad surveillance practices.

[9] There is litigation in U.S. courts over lethal drugs used in executions under death penalty laws. In Oklahoma, for example, a state trial court on March 26, 2014, decided that a state law mandating secrecy for the identity of suppliers of such drugs was unconstitutional. On April 21st the Oklahoma Supreme Court stayed two executions so that the court could resolve “grave constitutional claims.” Since then there has been an unseemly intra-state squabble over whether that court had the power to stay the executions with the Oklahoma Governor vowing to conduct the executions as previously scheduled, a state legislator introducing a resolution to impeach the court’s judges who voted for the stay and the Supreme Court itself on April 23rd vacating the stay.

[10] The U.S. has a criminal torture statute, 18 U.S.C. sec. 2340A. It states, “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.” (Emphasis added.) Thus, this criminal statute does not apply if the torture occurs in the U.S. In addition, the U.S. has the Torture Victims Protection Act (TVPA) that provides for a civil action for money damages by an “individual” who has been subjected to “torture” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the torture. (Emphasis added.) Thus, this statute does not apply if the torture is committed by someone acting under U.S. law.

[11] The ICCPR’s Article 6 bans arbitrary deprivation of life and any derogation from the genocide treaty while its Article 7 bans torture or cruel, inhuman or degrading treatment or punishment.

[12] The ICCPR’s Article 7 bans “torture . . . [and] cruel, inhuman or degrading treatment or punishment while its Article 10 requires all inmates to be “treated with humanity and respect for the dignity of the human person,” separation of accused persons from convicts and juveniles from adults and in facilities whose aims shall be “reformation and social rehabilitation” of inmates.

[13] Article 14 of the ICCPR contains detailed provisions that in the U.S. would be regarded as constitutional criminal due process rights.

[14] Article 17 of the ICCPR says “[e]veryone has the right to the protection of law against . . . arbitrary or unlawful interference with his privacy, family, home or correspondence, . . . [and] unlawful attacks on his honour and reputation.”

[15] The Committee’s report recognized with satisfaction that the U.S. Supreme Court had decided under the U.S. Constitution’s Eighth Amendment’s ban on “cruel and unusual punishment” that (a) sentences of life without parole for juveniles for non-homicide crimes were not permitted (Graham v. Florida (2010)); and (b) mandatory sentences of life without parole for juveniles for homicide were not permitted (Miller v. Alabama (2012)).

[16] Koh is one of the U.S.’ preeminent international lawyers. He has taught at the Yale Law School since 1985 except for his years as the State Department’s Legal Adviser (2009-2013) and as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998-2001). He served as the Dean of the Yale Law School (2004-2009) and returned to Yale in 2013 as the Sterling Professor of International Law. He has received many awards and holds degrees from Harvard University (B.A. and J.D.) and the University of Oxford (B.A. and M.A.)

[17] The Koh memorandum also stated that the contrary 1995 opinion by the Department’s Legal Adviser was “not compelled by either the language or the negotiating history of the Covenant . . . [and] that the 1995 Interpretation is in fact in significant tension with the treaty’s language, context, and object and purpose, as well as with interpretations of importantU.S. allies, the Human Rights Committee and the ICJ [International Court of Justice], and developments in related bodies of law [and, therefore,] was no longer tenable.” Nevertheless, the U.S. continues to rely on the 1995 opinion for its resistance to extraterritorial application of the ICCPR. The Koh memorandum was published by the New York Times along with a discussion of the document a week prior to the Committee’s hearings, and it is safe to assume that copies of same were provided to all the Committee members before the hearings.

U.S.’ Secret Cuban Social Media Program Raises Questions about the Validity of Criticisms of Cuba by the U.S. Commission on International Religious Freedom

On April 3, 2014, the Associated Press (AP) reported that the U.S. Agency for International Aid (USAID) had been providing financial support from 2008 through 2012 for “a secret plan to build a social media project aimed at undermining Cuba’s communist government.” This “messaging network . . . [was designed to] reach hundreds of thousands of Cubans.” “To hide the network from the Cuban government, [there was a] byzantine system of front companies using a Cayman Islands bank account, and . . . [recruitment of] unsuspecting executives who would not be told of the company’s ties to the U.S. government.”

According to the AP, after an initial period of creating non-political messages for this social media program, the U.S. planed to “introduce political content aimed at inspiring Cubans to organize ‘smart mobs’ — mass gatherings called at a moment’s notice that might trigger a Cuban Spring, or, as one USAID document put it, “renegotiate the balance of power between the state and society.” In short, the social media program aimed to promote regime change in Cuba.

U.S. Government’s Responses to the AP Report

The U.S. Government responded to the AP article the same day by essentially confirming the existence of the social media program while playing word games over whether it was a covert operation and saying it was not aimed at changing the Cuba regime.

At an April 3rd press briefing, President Obama’s Press Secretary, Jay Carney, implicitly admitted the existence of this secret program while claiming it was not covert and was pursuant to congressionally authorized funding. He said, “suggestions that this was a covert program are wrong. . . . In implementing programs in non-permissive environments, of course the government has taken steps to be discreet.”

An USAID spokesman the same day said essentially the same thing. “Of course, [in] the implementation, . . the [U.S.]government [has] taken steps to be discreet in non-permissive environments . . . .  That’s how you protect the practitioners and the public. In hostile environments, we often take steps to protect the partners we’re working with on the ground. This is not unique to Cuba.”

USAID also issued an April 3rd statement that did not deny the AP’s report. Instead, the agency said, “It is longstanding U.S. policy to help Cubans increase their ability to communicate with each other and with the outside world. Working with resources provided by Congress for exactly this purpose, USAID is proud of its work in Cuba to provide basic humanitarian assistance, promote human rights and universal freedoms, and to help information flow more freely to the Cuban people.  All of our work in Cuba, including this project, was reviewed in detail in 2013 by the Government Accountability Office and found to be consistent with U.S. law and appropriate under oversight controls.”

USAID added, “It is also no secret that in hostile environments, governments take steps to protect the partners we are working with on the ground.” This was a backhanded way of admitting that the U.S. government’s involvement in this Cuban social media program was intentionally kept secret.

The U.S. State Department’s April 3rd briefing parroted these remarks. The spokesperson said, “there was nothing classified or covert about this program. Discreet does not equal covert.” She added, the funding was notified to Congress in a 2008 congressional notification titled “Outreach to New Sectors of Cuba Society” for the amount of $6,850,000 for a number of programs, including this one.” Moreover, the spokesperson alleged the U.S. was not “ somehow trying to foment unrest . . . [or] to advance a specific political agenda or point of view.” However, Senator Patrick Leahy has said he was not briefed on the program.

Yes, the U.S. Government Accountability Office investigated and last year issued a “clean bill of health” report on the U.S. “Cuba Democracy Assistance” programs, without mentioning the social media program. This report said that USAID and “Department of State .  . . provide democracy assistance for Cuba aimed at developing civil society and promoting freedom of information. Typical program beneficiaries include Cuban community leaders, independent journalists, women, youths, and marginalized groups.”[1]

Other U.S. Government Programs Directed at Cuba

The recent Cuban social media project must be seen in light of at least three other U.S. programs directed at and against Cuba.

First is the George W. Bush Administration’s creation in 2003 of the U.S. Commission for Assistance to a Free Cuba. It was directed it to report with recommendations for a comprehensive program to (i) “Bring about a peaceful, near-term end to the [Cuban] dictatorship;” (ii) “Establish democratic institutions, respect for human rights and the rule of law [in Cuba];” (iii) “Create the core institutions of a free economy [in Cuba];” (iv) “Modernize [Cuban] infrastructure;” and (v) “Meet [Cuban] basic needs in the areas of health, education, housing and human services.”

This Commission issued a report in May 2004 that stated “Religious organizations, including Catholic and certain authentically independent Protestant denominations, represent the fastest growing and potentially fastest growing alterative to the Cuban state in providing basic services and information to the Cuban people.” (P. 20; emphasis added.)

The rest of this report makes clear that the Commission believed that only evangelical Christian groups were authentically independent and should be used by the U.S. to build a free Cuba. According to this report, they had “the trust of the people and the means to organize through an existing social network of communications and distribution channels at all levels of society.”[i]

The report also called for the U.S. to avoid trying to use the Cuban Council of Churches, which the U.S. Commission believed had been “taken over by the Castro regime in the early 1960s and used as a means to control the Protestant churches.” (P. 64.) However, most of the clergy and laity of churches that belong to the Council, the Commission asserted, were “not sympathasizers of Castro and the communists and therefore should not be denied assistance or a role in Cuban religious affairs due to ‘guilt by association.” (P. 64)

The second other U.S. program directed against Cuba was the George W. Bush Administration’s 2005 creation of the position of Cuba Transition Coordinator in the State Department to implement the recommendations of the Commission for Assistance to a Free Cuba. Or in the words of then-Secretary of State, Condoleeza Rice, the position’s purpose was to “accelerate the demise of Castro’s tyranny.” In more practical terms, this position was charged with allocating millions of dollars in U.S. funding to Cuban dissidents and their U.S. supporters.

The third other program directed against Cuba is Radio y Televisión Martí, a radio and television broadcaster based in Miami, Florida that is financed by the U.S. Government (Broadcasting Board of Governors) and that transmits pro-democracy newscasts to Cuba.

U.S. Commission on International Religious Freedom Reports on Cuba

Another U.S. commission—the Commission on International Religious Freedom– in its annual reports consistently has been very critical of that freedom in Cuba.

This Commission has placed Cuba in its “Watch List,” now called its “Tier 2” list of countries “where religious persecution and other violations of religious freedom engaged in or tolerated by the governments are increasing” or is “on the threshold of . . . [‘Countries of Particular Concern’] status—because the  “violations engaged in or tolerated by the government are particularly severe and that at least one, but not all three, of the elements of [the governing statute’s] ‘systematic, ongoing, egregious’ standard is met (e.g., the violations are egregious but not systematic or ongoing).”

The Commission apparently based its very negative appraisal of Cuba in its most recent  report for 2012 (issued in 2013) on the following grounds with respect to the Cuban government:

  •  alleged arrests and mistreatment of evangelical pastors, especially Pentacostal pastor Reutilio Columbie;
  • alleged arrests of human rights/democracy activists, including the Ladies in White, which prevented them for attending mass; and
  • alleged harassment of Cuba’s Apostolic Reformation Movement and the Western Baptist Convention by allegedly making “short-term arrests of [their] leaders, confiscation, destruction or threats of destruction of church property; harassment and surveillance of church members and their relatives; fines of churches; and threats of losses of job, housing or educational opportunities….”

This Blog’s Prior Critiques of the Commission’s Assessment of Cuba

This blog has criticized the Commission’s reports on Cuban religious freedom for 2010, 2011 and 2012.

First, as the Commission reports themselves proclaim, there have been “improvements” or “[p]ostive developments” for the religious freedom of most of the religious organizations on the island. The most recent report states:

  • “Positive developments for the Catholic Church and major registered Protestant denominations, including Baptists, Pentecostals, Presbyterians, Episcopalians, and Methodists, continued over the last year. The State Department reports that religious communities were given greater freedom to discuss politically sensitive issues. Catholic and Protestant Sunday masses were held in more prisons throughout the island. Religious denominations continued to report increased opportunities to conduct some humanitarian and charity work, receive contributions from co-religionists outside Cuba, and obtain Bibles and other religious materials. Small, local processions continued to occur in the provinces in 2012. The government granted the Cuban Council of Churches time for periodic broadcasts early Sunday mornings, and Cuba’s Roman Catholic Cardinal read Christmas and Easter messages on state-run stations.”
  • “Relations between the Catholic Church and Cuban government continued to improve. March 2012 marked the 400th anniversary of the appearance of the Virgin de Caridad de Cobre (Our Lady of Charity), Cuba’s patron saint. Pope Benedict XVI travelled to Cuba March 26-29 to participate in the celebrations, at which time he met Fidel Castro and Cuban President Rául Castro. Throughout the year, a replica of the Our Lady of Charity statue toured the island drawing large crowds. Prior to the Pope’s visit, 13 individuals occupied the Church of Charity of Cobre in Central Havana seeking an audience with His Holiness. The government removed, but did not charge, the individuals at the request of the Church.”

Second, the Commission’s statements about positive developments cover, I submit, most of the religious organizations and believers in Cuba, whereas the organizations cited by the Commission for its harsh judgments are the distinct minority. That, of course, does not excuse the Cuban government from committing any of the alleged acts regarding these organizations and believers, if that in fact is the case.

Third, the Commission’s complaint about the treatment of “human rights/democracy activists,” if they are substantiated by evidence, are really complaints about violations of human rights other than religious freedom. Therefore, they do not really belong in the limited scope of the Commission’s mandate.

Fourth, the Commission apparently is unable to put itself in the shoes of the Cuban government, which for many years has had to contend with the super power of the North, which has consistently taken hostile actions against the island, including those of the “Cuba Democracy Assistance” program. The wise words of Matthew 7: 5 come to mind: “You hypocrite, first take the log out of your own eye, and then you will see clearly to take the speck out of your neighbor’s eye.”

Conclusion

This blogger concludes that the revelation yesterday of the U.S. secret social media program for Cuba as part of the U.S.’ so called “Cuba Democracy Assistance” programs should raise serious questions about the legitimacy of the conclusions on Cuban religious freedom coming from the U.S. Commission on International Religious Freedom.

Specifically, there should be an independent investigation of whether Cuba’s Apostolic Reformation Movement, its Western Baptist Convention and pastor Reutilio Columbie have received or are receiving any funding or other support from the U.S. Government, including USAID, the Central Intelligence Agency, the State Department and the Commission on International Religious Freedom itself. I hope that this is not the case.

More generally, such an investigation should determine whether the harshly negative views of the Commission on International Religious Freedom are being driven by the philosophy and objectives of the Cuba Assistance Programs. Again I hope this is not the case.

———————————–

[1] The Cuban government also reacted to the AP article by saying in Granma it “confirms the repeated complaints of the Cuban government. It shows once again that the U.S. government has not given up its subversive plans against Cuba, which aim to create situations of destabilization in the country to bring about change in our political system and which continues to devote multimillion dollar budgets each year. The U.S. government must respect international law and the purposes and principles of the Charter of the United Nations and, therefore, cease its illegal and covert actions against Cuba, which are rejected by the Cuban people and the international public opinion.”

 

 

 

 

U.S. Policy Implications of State Department’s Report on Cuban Human Rights

A prior post reviewed the U.S. State Department’s just-released 2013 Country Reports on Human Rights Practices while another post discussed its chapter on Cuba. Now we look at the implications of that report for U.S. policies regarding Cuba.

Some people assert that the negative aspects of Cuban human rights justify continuing U.S. hostility toward the island. They see the Cuban glass of human rights at least half empty. Notable among them is U.S. Representative Mario Díaz-Balart, a Cuban-American and a Republican Congressman from Miami, who remains a stalwart powerful defender of the embargo and other anti-Cuba policies of the U.S.

Others, including this blogger, reach the opposite conclusion based, in part, on the belief that the Cuban glass of human rights is half full.

Rev. Raul Suarez
Rev. Raul Suarez

As Rev. Raúl Suárez put it at the February 27th briefing for the U.S. Congress, “Cuba has many problems but Cuba isn’t hell . . . . We have many good things that have been achieved [but] . . . Cuba is not the Kingdom of God.” Suárez added, “God . . . wants us [Cubans and Americans] to live like brothers and sisters.”[1]

Indeed, the humility expressed by Rev. Suárez should lead the U.S. to the same conclusion. As U.S. Secretary of State John Kerry said last month on release of the Human Rights Reports, “from our own nation’s journey, we know that [human rights] is a work in progress. Slavery was written into our Constitution before it was written out. And we know that the struggle for equal rights, for women, for others – for LGBT community and others – is an ongoing struggle.” Secretary Kerry admitted that we  “know that we’re not perfect. We don’t speak with any arrogance whatsoever, but with a concern for the human condition.”

In evaluating Cuba’s mixed human rights record and deciding on U.S. policies regarding that country, that same humility should cause we in the U.S. to remember the U.S. immense superiority in economies and military might and the long-standing U.S. actions of hostility towards Cuba, including the following:

  • the U.S. usurpation of Cuba’s war for independence from Spain in the late 19th Century (what we in the U.S. call the “Spanish-American War“);
  • the U.S.’ making Cuba a de facto U.S. protectorate in the early 20th Century;
  • the U.S. support for the invasion of Cuba’s Bay of Pigs in 1961;
  • the U.S. threats of military action against Cuba during the pressured Cuban missile crisis of 1962;
  • the CIA’s hatching several plots to assassinate Fidel Castro when he was Cuba’s President;
  • the U.S. conduct of an embargo of Cuba over the last 50-plus years; and
  •  the U.S. Government’s Commission on Assistance for a Free Cuba setting forth what amounted to a U.S. blueprint for taking over Cuba.

This history provides Cuba with many legitimate reasons to be afraid of the U.S. It, therefore, is understandable why Cuba has harshly treated what we call “dissidents” and what Cuba fears are or could be supporters of a U.S. takeover.

And we in the U.S. should know from our own history since 9/11 that societies and governments tend to clamp down on civil liberties when they fear outside interference or attacks.

Cuba’s regrettable lapses on human rights, though perhaps understandable in context, should not be a reason for continued U.S. hostility toward the island.

Therefore, as a prior post argued, improving Cuban human rights should be one of many items on an agenda for a comprehensive, mutually respectful negotiation between the two countries. The objectives of such a negotiation, in my opinion, should be restoration of full diplomatic relations; ending the U.S. embargo against Cuba;[2] terminating the unjustified U.S. designation of Cuba as a “State Sponsor of Terrorism;” [3] terminating the one-sided U.S. lease of Guantanamo Bay; and compensating owners for expropriation of property on the island as part of the Cuban Revolution.[4]

Such a negotiation, in my opinion, is in the interest of the U.S. Cuba poses no threat to the U.S. Our businesses and farmers would benefit economically from open relations with Cuba. Normalizing our relations with the island would be seen by most people in the world, especially Latin America, as a sign that the U.S. is a mature, rational country.

These thoughts were echoed by the Cuban religious leaders who held a U.S. congressional briefing on February 27th. Joined by the President and CEO of Church World Service, [5] they reaffirmed their long-held opposition to the U.S. embargo of Cuba.

They also called “for the U.S. government to end the ban that prevents U.S. citizens from visiting Cuba and seeing the island for themselves; to take Cuba off the list of State Sponsors of Terrorism . . . ; and for the American government to open up trade and commerce in ways that support the small enterprises, cooperatives, and non-profits that are emerging on the island. Finally, the U.S. and Cuban governments ought to open a high level dialogue between our countries to normalize relations and discuss differences in ways that honor and respect the dignity of both nations.”

Before the commencement of such complicated negotiations, the U.S. President should commute the sentences of three of the Cuban Five to the 15-plus years they already have spent in U.S. jails and prisons and let them return to their home country. Similarly Cuba should commute the sentence of U.S. citizen Alan Gross to the time he already has spent in Cuban prison and allow him to return to the U.S.

Given the long period of hostility between the two countries and the apparent lack of movement toward negotiations, I believe that the assistance of a neutral third-party mediator would be helpful to both countries. Such a mediator, in my opinion, should be someone who is bilingual in English and Spanish with experience as an international mediator, who is in fact and perceived to be neutral and who has the time (and staff?) to make a major commitment to this process.

Such a mediator indeed could and should step forward and invite representatives of both countries to participate in mediated negotiations, rather than wait on them to agree on such a process.

——————————————

[1] Suárez is a Baptist pastor and the founder and director of the Martin Luther King, Jr. Center in Havana. When I visited the Center in 2007, Rev. Suárez told our group that he had founded the Center because he thought King’s philosophy of non-violence and social justice was relevant to Cuba, especially to Afro-Cubans. He also said that in 1984 he and other religious leaders met with then President Fidel Castro to protest the government’s endorsement of atheism (or scientific materialism) as limiting the space for churches, and after the collapse of the Soviet Union in 1989, Cuba abandoned that endorsement and provided more space for churches to participate in issues facing the island.

[2] Amnesty International, Human Rights Watch and former U.S. President Jimmy Carter also call for ending the U.S. embargo. So too does world opinion as evidenced by the U.N. General Assembly’s passing resolutions condemning the embargo for the last 22 years. The last such resolution in October 2013 was passed 188 to 2 with only the U.S. and Israel voting against it.  A prior post to this blog also has argued for ending the embargo and summarized the 2011 General Assembly resolution against the embargo.

[3] This blog has reviewed the State Department’s asserted rationale for the “State Sponsor of Terrorism” designation and called it ridiculous for 2010, 2011 and 2012 and absurd for 2013. This blog also noted Cuba’s adoption of legislation against money laundering and terrorism financing and thereby negating one of the purported reasons for the designation.

[4] In a letter to President Obama that was reproduced in this blog, I called for the U.S. to terminate the Guantanamo Bay lease and for Cuba to compensate property owners for expropriating their property. A comprehensive review of this lease is found in Michael J. Strauss’ The Leasing of Guantanamo Bay.

[5] Church World Service was founded in 1946 with this mission: “Feed the hungry, clothe the naked, heal the sick, comfort the aged, shelter the homeless.” It now has 37 Protestant member communions all over the world.

U.S. State Department’s Latest Report on Cuban Human Rights

U.S. Flag
U.S. Flag

The U.S. State Department’s just-released 2013 Country Reports on Human Rights Practices’ chapter on Cuba needs analysis.[1]

The Report’s Negative Comments about Cuban Human Rights

The Executive Summary of its chapter on Cuba has a strongly negative tone. It states the following:

  • “Cuba is an authoritarian state led by Raul Castro, who is president of the council of state and council of ministers, Communist Party (CP) first secretary, and commander in chief of security forces. The constitution recognizes the CP as the only legal party and ‘the superior leading force of society and of the state.’ A CP candidacy commission preapproved all candidates for the February uncontested National Assembly elections, which were neither free nor fair. The national leadership that included members of the military maintained effective control over the security forces, which committed human rights abuses against civil rights activists and other citizens alike.
  • In January the government largely dropped travel restrictions that prevented citizens from leaving the island, but these reforms were not universally applied, and authorities denied passport requests for certain opposition figures or harassed them upon their return to the country.
  • The principal human rights abuses were abridgement of the right of citizens to change the government and the use of government threats, extrajudicial physical violence, intimidation, mobs, harassment, and detentions to prevent free expression and peaceful assembly.
  • The following additional abuses continued: harsh prison conditions, arbitrary arrest, selective prosecution, and denial of fair trial. [2] Authorities interfered with privacy, engaging in pervasive monitoring of private communications. The government did not respect freedom of speech and press, severely restricted internet access and maintained a monopoly on media outlets, circumscribed academic freedom, and maintained significant restrictions on the ability of religious groups to meet and worship. The government refused to recognize independent human rights groups or permit them to function legally. In addition, the government continued to prevent workers from forming independent unions and otherwise exercising their labor rights.
  • Most human rights abuses were official acts committed at the direction of the government. Impunity for the perpetrators remained widespread.”

The Report’s Positive Comments about Cuban Human Rights

This Executive Summary paints a bleak picture of Cuban human rights, and I have no doubt that many of these points are legitimate. But I still believe that it overstates the negatives.

Indeed, the Executive Summary failed to acknowledge that the Report itself stated there were “no reports that the [Cuban] government or its agents committed arbitrary or unlawful killings . . . [or] politically motivated disappearances.”

In addition, the Report itself stated in Cuba that there was “no societal pattern of child abuse;” that the government operated family counseling centers; that the government “continued to carry out media campaigns” against domestic violence; that the government “actively promoted racial integration and inclusiveness;” that a government resolution “accords persons with disabilities the right to equal employment opportunities and equal pay for equal work;” and that there was no “discrimination officially reported or permitted based on sexual orientation” accentuated by President Castro’s daughter’s promotion of LGBT rights.

With respect to Cuba’s prisoners and pretrial detainees, the Report conceded that they “had access to visitors;” that many “were able to communicate information about their living conditions through telephone calls to human rights observers and reports to family members;” that they “could practice limited religious observance;” and that “the Catholic Church and the Cuban Council of Churches reported access to prisoners during the year, with services offered in prisons and detention centers in most if not all provinces.”

On Cuban religious freedom more generally, the Report merely incorporated by reference the section on Cuba in the Department’s most recent International Religious Freedom Report that this blog previously criticized as understating the extent of religious freedom on the island.[3]

Moreover, the new overall Human Rights Report admits that “religious groups reported greater latitude to express their opinions during sermons and at religious gatherings than in the past;” that “[r]eligious leaders in some cases criticized the government, its policies, and even the country’s leadership without reprisals;” that the “Catholic Church operated a cultural center in Havana that hosted debates featuring participants voicing different opinions about the country’s future, at which well-known dissidents were allowed to participate;” and that the “Catholic Church published two periodicals that sometimes included criticism of official social and economic policies . . . [and] a pastoral letter advocating for political and economic reforms and greater rights for citizens.”

The new overall Report also says that the “Catholic Church received permission to broadcast Christmas and Easter messages on state-run television stations . . . [while] the Council of Churches, the government-recognized Protestant umbrella organization, was authorized to host a monthly 20-minute radio broadcast;” that religious “groups reported the ability to gather in large numbers without registering or facing sanctions;” and that “[r]ecognized churches, [and] the Roman Catholic humanitarian organization Caritas . . . were . . . legally permitted to function outside the formal structure of the state, the [Communist Party], and government-organized organizations.” In addition, there were “no reports of anti-Semitic acts.”

Finally the Report concedes that the Cuban constitution and other laws prohibit abusive treatment of detainees and prisoners and provide alternative sentencing for nonviolent offenders and juveniles as well as rights to seek redress for improper prison conditions and treatment. Cuban law, the Report said, also specifies reasonable procedures for investigations and prosecutions of alleged crimes.

Conclusion

Cuba’s regrettable lapses on human rights, though perhaps understandable in context, should not be a reason for continued U.S. hostility toward the island. A subsequent post will examine what this blogger sees as the implications of this report for U.S. policies regarding Cuba.

[1] A prior post reviewed the Department’s overall summary of global human rights in 2013.

[2] The most recent annual report (May 2013) from Amnesty International makes similar allegations about Cuba as did Human Rights Watch’s April 2013 submission to the U.N. Human Rights Council regarding its Universal Periodic Review of Cuba.

[3] This blog criticized the prior reports on Cuban religious freedom by the State Department and by the U.S. Commission on International Religious Freedom. In addition, another post reviewed positive comments on religious freedom from religious leaders with direct experience on the island. Similar points were made on February 27th, 2014, by six Cuban Protestant Christian leaders at a congressional briefing hosted by U.S. Senator Jeff Flake (Republican of Arizona) and Representative Jim McGovern (Democrat of Massachusetts). In response, a strong supporter of current U.S. policies regarding Cuba launched an unwarranted ad hominem attack on these leaders.

 

U.S.’ Absurd Designation of Cuba as a “State Sponsor of Terrorism”

On May 30, 2013, the U.S. Department of State issued its annual report on terrorism in the world: Country Reports on Terrorism 2012. A prior post reviewed the report as a whole

We now examine this report’s designation of Cuba as a “State Sponsor of Terrorism,” i.e., as a country that has “repeatedly provided support for acts of international terrorism.” This post’s analysis is also informed by the U.S.’s similar designation of Cuba in the annual reports on terrorism for 1996 through 2011.[1] Earlier posts analyzed and criticized the reports for 2009, 2010 and 2011.

State Department’s Rationale

The following is the complete asserted justification for the Department’s designation of Cuba for 2012:

  • “Cuba was designated as a State Sponsor of Terrorism in 1982. Reports in 2012 suggested that the Cuban government was trying to distance itself from Basque Fatherland and Liberty (ETA) members living on the island by employing tactics such as not providing services including travel documents to some of them. The Government of Cuba continued to provide safe haven to approximately two dozen ETA members.
  • In past years, some members of the Revolutionary Armed Forces of Colombia (FARC) were allowed safe haven in Cuba and safe passage through Cuba. In November, the Government of Cuba began hosting peace talks between the FARC and Government of Colombia.
  • There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.
  • The Cuban government continued to harbor fugitives wanted in the United States. The Cuban government also provided support such as housing, food ration books, and medical care for these individuals.
  • The Financial Action Task Force (FATF) has identified Cuba as having strategic anti-money laundering/combating the financing of terrorism deficiencies. In 2012, Cuba became a member of the Financial Action Task Force of South America against Money Laundering, a FATF-style regional body. With this action, Cuba has committed to adopting and implementing the FATF Recommendations.”

Rebuttal of State Department’s Rationale

On its face this alleged justification proves the exact opposite: Cuba is not a state sponsor of terrorism.

Indeed, this and earlier U.S. reports admit that “Cuba no longer supports armed struggle in Latin America and other parts of the world” (1996, 1997, 1998, 2008, 2009), that there was no evidence that Cuba had sponsored specific acts of terrorism (1996, 1997) and that there “was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups” (2011, 2012). Similar admissions were made in the U.S. reports for 2005, 2008, 2009 and 2010. Some also reported that in 2001(after 9/11) Cuba “signed all 12 UN counterterrorism conventions as well as the Ibero-American declaration on terrorism” (2001, 2002, 2003).

I also note that the latest report in its Western Hemisphere Overview says that in “2012, the majority of terrorist attacks within the . , . Hemisphere were committed by the . . . [FARC]. The threat of a transnational terrorist attack remained low for most countries in the Western Hemisphere.” There is no mention of Cuba in this overview.

Nor is there any mention of Cuba in the latest report’s “Strategic Assessment” that puts all of its discussion into a worldwide context.

All of this rebuttal so far is based only on what the State Department has said about this designation since 1996.

In addition, the Cuban government has taken the following actions that strengthen the rebuttal of the designation and that, to my knowledge, the U.S. has not disputed:

  • First, Cuba publicly has stated that Its “territory has never been and never will be utilized to harbor terrorists of any origin, nor for the organization, financing or perpetration of acts of terrorism against any country in the world, including the [U.S.]. . . .  The Cuban government unequivocally rejects and condemns any act of terrorism, anywhere, under any circumstances and whatever the alleged motivation might be.”
  • Second, in 2002, the government of Cuba proposed to the U.S. the adoption of a bilateral agreement to confront terrorism, an offer which it reiterated in 2012, without having received any response from the U.S.
  • Third, Cuban President Raul Castro on July 26, 2012 (the 59th anniversary of the Cuban Revolution) reiterated his country’s willingness to engage in negotiations with the U.S. as equals. He said no topic was off limits, including U.S. concerns about democracy, freedom of the press and human rights in Cuba so as long as the U.S. was prepared to hear Cuba’s own complaints. In response the U.S. repeated its prior position: before there could be meaningful talks, Cuba had to institute democratic reforms, respect human rights and release Alan Gross, an American detained in Cuba.

But let us go further.

1. Cuba As an Alleged Safe Haven for Terrorists 

The first stated basis for designating Cuba as a “State Sponsor of Terrorism” is its allegedly providing safe havens to individuals associated with two U.S.-designated Foreign Terrorist Organizations–ETA and the FARC–and to certain fugitives from U.S. criminal proceedings.

                a. ETA

There are only 20 to 24 ETA members in Cuba, and by now they must be older people who have not participated in any terrorist activities in Spain for many years. They are “side-line sitters.”

Moreover, the 2011 and 2012 reports state that Cuba is “trying to distance itself” from the ETA members on the island and is not providing certain services to them.

Earlier U.S. reports also reflect the limited nature of this charge. Of the 20 to 24 members, some may be there in connection with peace negotiations with Spain (2009). In May 2003, Cuba publicly asserted that the “presence of ETA members in Cuba arose from a request for assistance by Spain and Panama and that the issue is a bilateral matter between Cuba and Spain” (2003). In March 2010 Cuba “allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members” (2010).

Moreover, in March 2011 the Spanish Ambassador to Cuba told former U.S. President Jimmy Carter that Spain was “not concerned about the presence of members of . . .  ETA . . . in Cuba.” Indeed, the Ambassador maintained that this enhances his country’s ability to deal more effectively with ETA.  In fact, the Ambassador added, some ETA members are there at the request of the Spanish government.

The last two U.S. reports say that Cuba is providing “safe haven” to the ETA members, but their separate chapters on the legitimate international problem of terrorist safe havens have  no mention whatsoever of Cuba.

                b. FARC

Most of the reasons for the speciousness of the charges regarding ETA also apply to the charges regarding the Colombian group, FARC.

In addition, the 2008 report said in July of that year “former Cuban President Fidel Castro called on the FARC to release the hostages they were holding without preconditions. He has also condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians who had no role in the armed conflict.”

There is no indication in the State Department’s reports of the number of FARC members allegedly in Cuba, but some may be there in connection with peace negotiations with Colombia (2009 report).

Moreover, in March 2011 the Colombian Ambassador to Cuba told former U.S. President Jimmy Carter that Colombia was “not concerned about the presence of members of FARC . . . in Cuba.” Indeed, the Ambassador maintained that this enhances their ability to deal more effectively with FARC.

The Cuban connection for Colombia and the FARC resulted in a September 2012 statement by Cuba’s Ministry of Foreign Relations about the then recently-announced peace talks between Colombia’s government and the FARC. It stated that Cuba “has a historical commitment to peace in Colombia and efforts to put an end to [her] . . . political, social and military conflicts.” To that end, the Cuban Government “has made constructive efforts to . . . search for a negotiated solution, always responding to a request from the parties involved and without the slightest influence in their respective positions.” The statement continued. For over a year, at the express request of the Government of Colombia and the FARC, “the Cuban government supported the . . . exploratory talks leading to a peace process,” and as a “guarantor” Cuba participated in these talks. “The Cuban government will continue to . . . [provide its] good offices in favor of this effort, to the extent that the Government of Colombia and the FARC . . . so request.”

As a result, as the latest State Department report admits, in November 2012 Cuba has been hosting peace negotiations in Havana between the Colombian government and the FARC seeking to end their long civil war. Colombia’s president said that support for such negotiations by Cuba and Venezuela has been crucial in helping the two sides to reach agreement on conducting the negotiations.

Late last month (May 2013), the two sides announced an agreement to distribute land to small farmers and undertake development projects that would improve rural education and infrastructure that will not take effect until a final peace agreement is reached.

                c. U.S. fugitives

There apparently were or are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes, but pursuant to a 2005 Cuban government statement, no additional U.S. fugitives have been permitted on the island. In a few instances Cuba has extradited such fugitives to the U.S. (2001, 2003, 2004, 2005, 2006, 2007, 2008, 2009).

One of the U.S. fugitives, William Potts, recently has asked to return and face trial in the U.S. In 1984, he  hijacked a Piedmont Airlines passenger plane with 56 people aboard in the U.S. and forced it to go to Cuba. There as a Black Panther and self-styled revolutionary, he dreamed of receiving military training in Cuba that he could use against the U.S. government. This did not happen. Instead he was tried and convicted in Cuba and served a  13.5 years in a Cuban prison plus 1.5 years of supervised release for the hijacking.

None of these fugitives apparently is affiliated with U.S.-designated foreign terrorist organizations. The issue of whether or not they will be extradited to the U.S. is an appropriate issue for bilateral negotiations between the two countries. But, in my opinion, it is not a legitimate basis for designating Cuba as a “State Sponsor of Terrorism.”

2. Cuba’s Alleged Financial System Deficiencies

The other asserted ground in the latest U.S. report for the designation of Cuba as a “State Sponsor of Terrorism” was new for 2011 and is reiterated (in modified form) for 2012. It is Cuba’s having been identified by the Financial Action Task Force (FATF) [2] as “having strategic AML/CFT [Anti-Money Laundering/Combating the Financing of Terrorism] deficiencies.”

Last year’s U.S. criticism of Cuba on this issue went on to say, “Despite sustained and consistent overtures, Cuba has refused to substantively engage directly with the FATF.  It has not committed to FATF standards and it is not a member of a FATF-style regional body.”

In 2012, however, Cuba joined such a regional body (the Financial Action Task Force on Money Laundering in South America (GAFISUD)), and  FATF recently said Cuba has “developed an action plan with the FATF” with “written high-level political commitment to address the identified deficiencies.”

The State Department’s recent report comes close to admitting this significant change in 2012. In short, the U.S. admits that Cuba is addressing its alleged financial system deficiencies.

Moreover, as of February 2013, Cuba is not on the FATF’s list of “bad guys” (my phrase).  The two at the bottom of that list are Iran and North Korea (Democratic People’s Republic of Korea), for which FATF calls for all states to apply counter-measures. The other 13 on this list are ones that have strategic AML/CFT deficiencies, but have not made sufficient progress in addressing the deficiencies or have not committed to an action plan developed with the FATF to address the deficiencies: Ecuador, Ethiopia, Indonesia, Kenya, Myanmar, Nigeria, Pakistan, Sao Tome and Principe, Syria, Tanzania, Turkey, Vietnam and Yemen.

But all of these facts about Cuba’s financial system, in my opinion, do not support designating Cuba as a “State Sponsor of Terrorism.” If it were, then 13 countries on the “bad guy” list should be added to the U.S. list of “State Sponsors of Terrorism.” (Of the 15 countries on the “bad guy” list, only Iran and Syria are now U.S.-designated “State Sponsors of Terrorism.”)

Moreover, as noted above, the U.S. terrorism reports have indicated there was no evidence of Cuban financing of terrorism in the covered years. In addition, some of the reports reference Cuban laws permitting the tracking, blocking, or seizing terrorist assets (Cuba’s Law 93 Against Acts of Terrorism and Instruction 19 of the Superintendent of the Cuban Central Bank) (2005, 2006, 2007, 2008). In addition, in its response to last year’s U.S. report, Cuba has asserted that it “regularly provides precise, truthful information to the appropriate United Nations bodies charged with addressing these issues and others related to confronting terrorism.”

The whole FATF issue raised in the U.S. terrorism report, in my opinion, is a “red herring.”

Conclusion 

In summary, the U.S. designation of Cuba as a “State Sponsor of Terrorism” is absurd. This conclusion is shared, in less colorful language, at least by the U.S. Central Intelligence Agency, the U.S. Council on Foreign Relations, the Center for Democracy in the Americas, the Center for International Policy, the Latin American Working Group, former President Jimmy Carter, The Atlantic magazine’s  noted national correspondent (Jeffrey Goldberg) and a retired U.S. Army Brigadier General (John Adams).

Not surprisingly the Cuban government comes to the same conclusion. It said last year, “the only reason Cuba is kept on this list is exposed as an attempt to justify the U.S. blockade of our country, as well as the adoption of new measures to limit our financial and commercial transactions, to strangle the Cuban economy and impose a regime which responds to U.S. interests.”

Whatever legitimate issues are raised by these U.S. reports, I submit, they are appropriate subjects, among many, for the bilateral negotiations that a prior post recommended should occur between the U.S. and Cuba to the end of reconciliation and restoration of normal relations.

[1] Cuba has been so designated since March 1982.The U.S. terrorism reports for 1996 through 2012 are those that are accessible on the U.S. State Department’s website. I would appreciate detailed comments from anyone with knowledge about the reports for 1982-1995 although they are less relevant due to the passage of time.

[2] FATF “is an inter-governmental body established in 1989 by the Ministers of its Member jurisdictions. [Its] . . . objectives . . .  are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system. The FATF is therefore a ‘policy-making body’ which works to generate the necessary political will to bring about national legislative and regulatory reforms in these areas.” In other words, it apparently is a voluntary international organization, not one established by a multilateral treaty. FATF currently has 34 member jurisdictions (or only about 18% of the U.N. member states) plus 2 regional organizations (the European Council and the Gulf Co-Operation Council) representing most major financial centers in all parts of the globe. Starting in 1990,”FATF has developed a series of Recommendations that [it claims] are now recognised as the international standard for combating of money laundering and the financing of terrorism and proliferation of weapons of mass destruction.”