Election Officials’ Dread About This Year’s U.S. Election 

U.S. “election officials are living with a palpable sense of dread . . . about how our vast, diverse system of voting will function [this year] amid a pandemic.” This is the judgment of informed observers of that system: Kevin Johnson, the Executive Director of Election Reformers Network, and Yuval Levin, Director of Social, Cultural and Constitutional Studies at the American Enterprise Institute. [1]

This dread arises from the obvious coming significant increases in “voting by mail and absentee balloting . . . in states unaccustomed to handling these processes at scale. It may be impossible to call many races, including the presidential contest, on election night. And daunting logistical challenges may well raise questions about the legitimacy of the outcome.”

Johnson and Levin say “there are two kinds of steps that responsible leaders could take now to at least contain the danger without falling into partisan combat.”

First, “simply to speak to the problem in public. Elected officials and candidates — as well as journalists, commentators, scholars and others — should talk frankly about the challenges of running an election during a public health crisis, prepare the public for the possibility that we will not have results on election night, and that this does not mean that the results will be tainted when we do get them. Election officials must be given the time they need to count every vote.”

Second, “Congress can take a simple step to provide those officials with that time, particularly when it comes to the presidential election. Election Day, Nov. 3, should not be changed. But electing our president involves a series of steps following that day, which take place on a schedule established by law, not by the Constitution, and which Congress can adjust for this year’s special circumstances.”

“The first significant date on that schedule marks the end of the “safe harbor” period established by federal law, during which states are assured their reported presidential election results will not be challenged in Congress. This year that deadline is Dec. 8. Six days later, on Dec. 14, the 538 members of the electoral college meet in their state capitals to vote. Those votes are not officially tallied by Congress until three weeks after that, on Jan. 6, and the inauguration follows on Jan. 20.”

“The specific calendar should be established by Congress, but [Johnson and Levin suggest,] it might be reasonable to have the electors meet on Jan. 2, after a safe-harbor deadline on New Year’s Eve. Even if the results remained unclear until well into December, state officials would have much more breathing room as transition preparations for both would-be presidents could commence.”

Otherwise, Johnson and Levin say, “it would be a disaster if the outcome of the presidential election turned on an incomplete recount in a state struggling with unprecedented public health and administrative challenges under a deadline.”

Conclusion

These recommendations should be followed by all American citizens and organizations, including the Congress.

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

[1]  Johnson & Levin, There are two easy steps to avoiding chaos in this election. We haven’t taken them yet, Wash. Post (July 10, 2020). See also these posts and comments from dwkcommentaries.com: Pandemic Journal (# 10): Wisconsin Primary Election (April 10, 2020); Comment: More Criticism of Republican Strategy of Limiting Voting (April 12, 2020; Comment: More Comments on Wisconsin Election (April 13, 2020); Comment: Surprising Results in Wisconsin Election (April 14, 2020); Comment: George F. Will’s Opinion on Voting By Mail (VBM) (April 15, 2020); Comment: Emerging Battles Over Changing State Election Laws (April 15, 2020); Comment: New York Times Editorial on Wisconsin Election (April 20, 2020; Comment: Thousands of Wisconsin Absentee Ballots Counted After Election Day (May 3, 2020); Pandemic Journal (# 18): Colorado’s Successful Voting by Mail (May 9, 2020); Will Upcoming U.S. Presidential Election Be Legitimate (July 5, 2020); Comment: Update on Litigation Regarding 2020 Election (July 8, 2020); Comment: Trump’s Rants Against Voting by Mail May Hurt Voters for Trump (July 8, 2020); Electoral College Electors Do Not Have Discretion To Vote Contrary to Their State’s Voters (July 6, 2020); Other Opinions About the U.S. Electoral College (July 10, 2020).

 

Request for U.S. Records in Salvadoran Trial Over 1981 El Mozote Massacre

On December 10-12,1981, during the Salvadoran Civil War, 978 men, women and children were massacred in the country’s northeastern village of El Mozote, the largest mass killing in Latin America’s modern history. Of those victims, 447 were age 12 and under while 4 were unborn infants in their mothers’ wombs.[1]

Eventually it had become clear that  “the Salvadoran military’s Atlacatl Battalion was responsible for the massacre. But details were vague. The commanders of the Battalion remained free. So do the former senior defense officials who allegedly issued orders to the battalion. In the 1990s, the country approved an amnesty that protected war criminals. That law was declared unconstitutional in 2016 by a Salvadoran court, thereby clearing the way for reopening a Salvadoran criminal trial over this massacre.

Early Stages of Salvadoran Trial Over the Massacre[2]

Since that year (2016) a Salvadoran court has been conducting a trial of 16 former Salvadoran military commanders, including a former minister of defense, over this massacre. They are charged with murder, torture, aggravated rape, forced disappearances, forced displacement, acts of terrorism, illegal detention, theft and damages. The evidence implicated the involvement of the Atlacatl Battalion, which had been U.S.-trained, in contradiction of the original Salvadoran and American accounts of the massacre.

U.S. Congressional Decision To Help Salvadoran Trial[3]

In 2019 in establishing the annual budget for international aid, the Congress directed the U.S. Government to cooperate with El Salvador’s investigation of the El Mozote massacre in the following language:

  • “The [House] Committee [on Appropriations] directs the Secretary of State to work with the relevant federal departments and agencies to, as appropriate, assist the judicial authorities of El Salvador in the investigation and prosecution of those responsible for the El Mozote massacre. [This includes] the identification of and provision of related documents, correspondence, reproductions of Salvadoran documents, and other similar materials from January 1981 to January 1983.”
  • The Senate version stated, “The Secretary of State… shall encourage the Salvadoran Armed Forces to cooperate with prosecutors and investigators, including providing access to archival documents.” The bill also included a mandate for the Department of State to update its report on the current status of the Salvadoran trial.

In response to the Senate’s direction, the State Department on February 5, 2020, sent a letter to the Vice Chairman of the Senate Committee, Senator Patrick Leahy, with a report on the Salvadoran government’s cooperation with the court’s investigation.[4]

Recent Developments in Salvadoran Case[5]

In January 2020, a retired Salvadoran air force general, Juan Rafael Bustillo, testified in the trial that that the Atlacatl Battalion had carried out the massacre, which was the first time a Salvadoran military official had admitted such responsibility. He said he had not taken part in this event, but that it had been conducted on orders by Colonel Domingo Monterrosa, the commander of that Battalion who died in a 1984 helicopter accident.

After that testimony, the Salvadoran judge, Jorge Guzman Urquilla, concluded that the court did not have an important set of evidence: “U.S. documents that might shed light on how the massacre was planned and executed.”

 Salvadoran Judge’s Letter to U.S.Government[6]

As a result, the judge on January 27, 2020, sent a letter to  U.S. Secretary of State Michael Pompeo with copies to Defense Secretary Mark Esper, the Director of the Defense Intelligence Agency (DIA) Robert P. Ashley, Jr. and CIA Director Gina Haspel. The judge’s letter requested “at minimum, any document in the possession of the Department of Defense, the Defense Intelligence Agency (DIA), the Central Intelligence Agency (CIA), and other defense or intelligence agencies” relating to the El Mazote massacre. The letter stated the following:

  • “I recognize and am thankful for Congress’ initiative in asking the State Department to look into information that the United States may have on this case. As a judge, I would hope that it would provide me with greater certainty and clarity on these heinous acts that are now part of our country’s history, something we are not proud of, but which the historical record will demand we adjudicate.”
  • “The El Mozote trial is nearing the end of its investigative phase and will soon move to sentencing. Though some expert military testimony is forthcoming, the main phases of the examination portion have been completed. Service members, including several soldiers and a general, have given their accounts of the relevant events, confirming that the massacre took place as well as the role played by various units of the [Salvadoran] Armed Forces. A lack of documents is the last big hurdle. Despite [Salvadoran] President Nayib Bukele’s assurances that he will collaborate, the [Salvadoran] Army has stuck to the position it’s taken since the investigation began in the 1990s: that no relevant documents exist.”
  • “Even if they no longer can be found in El Salvador, it’s still possible that there are copies or records of these files in the United States, a country that was closely involved with and aware of the [Salvadoran] Army’s operations in the 80s as part of its foreign policy agenda.” Though a good deal of documents were already declassified [by President Bill Clinton in 1983], the letter also asked for “any other document that was not declassified by President William Jefferson Clinton or subsequent presidents.”
  • The letter also asked for “any other document that was not declassified by President William Jefferson Clinton or subsequent presidents” and for files on “the operations of the Armed Forces of El Salvador in the Morazán area, including any information on military planning, operational planning, and war planning, and involving any of the military units that I have mentioned,” between 1981 and 1983.
  • The letter specifically solicited information on General José Guillermo García, General Rafael Flores Lima, and 14 others who were charged and remain alive; on Colonel Domingo Monterrosa, Mayor Armando Azmitia, and 14 others who were charged and are now dead; on the municipality of Arambala and the seven sites where the massacre took place; and on the four military units being held responsible: the Atlacatl Battalion, the Third Infantry Brigade of San Miguel, the Fourth Military Detachment in San Francisco Gotera, and the High Command of the Armed Forces.
  • The letter emphasized the need to “move forward with this case in an expeditious manner” and asks Pompeo for a response “within the period of time set forth by the law.”

A journalist for elfaro, a Salvadoran online newspaper, apparently added, “Among the [U.S.] files declassified in 1993, for example, are several diplomatic cables between San Salvador and Washington from January 1981, which make clear that then-U.S. Ambassador Deane Hinton was consistently transmitting details about the operation that would ultimately result in the massacre. ‘[I]t is not possible to prove or disprove excesses of violence against the civilian population of El Mozote. It is certain that the guerrilla forces…did nothing to remove them from the path of battle… Civilians did die during Operation Rescate, but no evidence could be found to confirm that government forces systematically massacred civilians in the operation zone, nor that the number of civilians killed even remotely approached the number being cited in other reports circulating internationally,’ read an initial cable from Hinton, from January 1981.”

The elfaro journalist also said, “Later, in another communication, [Hinton] . . .  offered a different account of what may have taken place: ‘The estimated population of El Mozote during the massacre was about 300 inhabitants. The Atlacatl Battalion conducted Operation Rescate from December 6 to 17 of 1981. The guerrilla knew of the operation since November 15. The civilians present during the operation and the battles with the guerrilla may have been killed.’” Following Clinton’s declassifications, several agencies have continued providing documents in response to petitions from human rights organizations.

Additional support for U.S. production of such documents comes from an analyst for the U.S. National Security Archive, Kate Doyle, who believes the U.S. has additional relevant documents about the Salvadoran civil war that could and should be declassified.[7]

U.S. Government’s Response to the Judge’s Letter

To date, Secretary Pompeo has not responded to the court’s letter; nor have the three others copied on that letter. The subject came up again at a March 11th Salvadoran court hearing in the case when the judge said, ““This information could be very valuable to us. It could clarify what happened.” A State Department spokesman, however, said, “We do not comment on the Secretary’s correspondence.”

Conclusion

 Given the congressional demand that the U.S. cooperate with the Salvadoran investigation of the El Mozote massacre and the U.S. support of human rights by its recent publication of the  latest annual report about human rights in every country in the world and Secretary Pompeo’s proud creation of the Commission on Unalienable Rights, there is no excuse for any further delay in providing an affirmative response to the Salvadoran judge’s letter and the requested documents.

This conclusion is buttressed by the following words in the March 11, 2020, State Department’s report about human rights in El Salvador:[8]

  • “In February [2019], in a renewed effort to shield the perpetrators of war crimes and human rights abuses committed during the country’s 1980-92 civil war, a group of influential legislators proposed a draft national reconciliation law. Despite Constitutional Court rulings in 2016 and 2018 that expressly prohibited a broad and unconditional amnesty, the proposed bill would have granted amnesty to several high-level officials who enjoyed immunity from prosecution due to their positions in the recent administration of President Salvador Sanchez Ceren. Victims’ rights groups, other civil society actors, and the international community successfully campaigned against the proposed bill, and President-elect Bukele stated his strong opposition to an amnesty bill and expressed his support for additional consultation with victims. On May 29, [2019] the Inter-American Court of Human Rights ordered the government to immediately suspend consideration of the proposed law. The proposed bill eventually lost support among legislators and failed to reach a floor vote.” (Section 2.E)
  • “Despite a June 2018 Constitutional Court order directing it to release military records related to the El Mozote killings and serious civil war crimes, the Ministry of Defense had not produced the requested documentation as of November 12 [2019]. On November 1, President Bukele stated that he was committed to the truth and that he would release the records. Previously, the Ministry of Defense claimed the El Mozote archive records were destroyed in an accidental warehouse fire. Civil society and victims’ groups continued to press for release of these archives.” (Section 2.E)
  • “On April 23, [2019] the judge in the El Mozote prosecution issued an order adding three new charges against the 16 remaining defendants: Torture, forced disappearance, and forced displacement. He also imposed several provisional measures on the defendants, including a prohibition on leaving the country or contacting victims, and a requirement that the defendants physically appear in court biweekly. The defendants appealed these rulings, which were affirmed by an intermediate appellate court. On February 14, [2019] the Legislative Assembly approved a transitory law establishing mechanisms designed to allow family members to be added to the El Mozote victims’ registry.” (Section 2.E)

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

[1] See generally list of posts in the “El Mozote Massacre” section of List of Posts to dwkcommentaries—Topical: EL SALVADORThe massacre of children and others at El Mozote, El Salvador Perspectives (Dec. 10, 2017); Posts about El Mozote. El Salvador Perspectives.

[2] Zabiah, El Mozote judge asks the United States for confidential documents on the massacre, elfaro (Mar. 5, 2020) (Zabiah #1).

[3] Zabiah # 1, supra; H. Rep., 116th Congress, 1st Sess., Rep. 116-78, State, Foreign Operations, and Related Programs Appropriations Bill, 2020 (May 20, 2019); H. Rep., Appropriations Committee Releases Fiscal Year 2020 State and Foreign Operations Funding Bill (May 5, 2019); H. Rep. Comm. on Appropriations. Public Witness Hearing: State, Foreign Operations, and Related Programs (Mar. 12, 2019).

[4] Letter, State Dep’t to Senator Leahy (enclosing three-page report) (Feb. 5, 2020)(hyperlinked to Zabiah #1, supra).

[5] Zabiah #1, supra; Zabiah, General Bustillo breaks the officers’ script and admits that ‘rudeness’ occurred in El Mozote, elfaro (Jan. 26, 2020); Schwartz, What the El Mozote Massacre Can Teach Us About Trump’s War on the Press, The Intercept (Jan. 28, 2020); El Salvador general admits army carried out El Mozote massacre, Aljazeera (Jan. 25, 2020); Pierce, It’s a Bull Market for Bashing the Press. Under Conservative Governments, It Often Has Been, Esquire (Jan.27, 2020); Renteria, Salvadoran general admits army carried out infamous 1981 massacre, Reuters (Jan. 24, 2020).

[6] Zabiah #1 , supra.

[7] Alvarado, “The attorney general can ask the United States for information about El Mazote,” elfaro (Mar. 23, 2018).

[8] State Dep’t, 2019 Country Reports on Human Rights Practices: El Salvador (Mar. 11, 2020).

Small Chance of Liberalized U.S. Rules for Agricultural Exports to Cuba  

The U.S.-China trade war initiated by the Trump Administration has had a significant negative impact on U.S. agricultural exports to that country. In response, some U.S. senators and representatives have been pressing for relaxation of U.S. restrictions on such exports to Cuba. These advocates include Senators Heidi Heitkamp (Dem., ND), Amy Klobuchar (Dem., MN) and Tine Smith (Dem., MN)  and Representatives Collin Peterson (Dem., MN) and Tom Emmer, (Rep., MN). [1]

In addition, a bipartisan group of over 60 agricultural associations, businesses and elected officials from 17 states have urged the two congressional agriculture committees to include in the pending farm bills a provision to remove restrictions on private financing of U.S. agricultural exports to the island. [2]

This week Cuba President Miguel Diaz-Canel in New York City for a meeting of the U.N. General Assembly met separately with a bipartisan and bicameral group of Members of the U.S. Congress, including Sen. Ron Wyden (Dem., OR), Rep. Karen Bass (Dem., CA), Rep. Kathy Castor (Dem., FL), Rep. Robin Kelly (Dem., IL) Rep. Gregory Meeks (Dem., NY) and Rep. Roger Marshall (Rep., KA). Rep. Marshall told AG NET that the U.S. “can and should be Cuba’s number one supplier of commodities like sorghum, soy, wheat, and corn.”

But legislation to expand such exports by allowing credit sales to Cuba did not make it into the pending farm bills in both houses of the Congress, and most observers and participants think chances are nil of such a provision being added. And Senator Heitkamp’s provision in the Senate bill to allow the U.S. Department of Agriculture to use federal funds to develop the Cuban market could easily be cut from the bill in a conference committee.

The reason has more to do with politics than economics, according to Ted Piccone, a specialist in Latin American issues at the Brookings Institution. “It basically comes down to domestic politics in Florida,” Piccone said.

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

[1] Spencer, Little appetite for effort to bolster ag trade with Cuba, StarTribune (Sept. 21, 2018).

[2] Engage Cuba, Agriculture Groups Support Farm Bill Cuba Provision that Would Save $690 Million (Sept. 5, 2018).

State Department’s Cuba Accountability Review Board Report

On August 30, the U.S. Secretary of State submitted a report to Congress about the Cuba Accountability Review Board’s (ARB) investigation and report regarding the State Department’s responses to medical problems of some U.S. diplomats in Cuba. [1]

The ARB’s 30 recommendations, all of which were accepted by the Department were grouped into the following six areas:

  • “Accountability: The ARB found the lack of a single designated senior-level Department official with responsibility for responding to the attacks resulted in insufficient communications with employees and impeded coordination within the Department and with other agencies. The ARB recommended elevating the overall responsibility for the Cuba response to the Deputy Secretary of State. In May, the Deputy Secretary – at the Secretary’s request – established the interagency Health Incidents Response Task Force to direct a multi-agency response to the unexplained health incidents that have affected U.S. government personnel and family members stationed overseas. The Department has committed to reviewing – and revising when necessary – procedures for ensuring continued senior-level leadership at all times, as well as validating and strengthening guidance for Chiefs of Mission (including Chargés), emphasizing their responsibility for the safety and security of personnel abroad. The Department is establishing a new position solely responsible for longer-term outreach and assistance to personnel affected by these incidents.”
  • “Interagency Coordination: The ARB found that interagency information sharing should be enhanced to improve understanding of the problem and more coordinated initial responses. The ARB noted the Department’s well-established and successful procedures for dealing with crisis situations and highlighted the benefit of reviewing its processes for communication and coordination with interagency partners, as well as reminding leaders of these processes. The Department agrees with these recommendations and will re-issue guidance outlining the various tools and processes Washington and posts abroad have available to prepare for and respond to crisis situations. The Department will reinforce the importance of proper and timely implementation of these procedures, and is committed to working with interagency partners to ensure coordination of efforts on the response to the incidents.”
  • Medical Issues: The ARB found the Department’s Bureau of Medical Services provided competent and professional response to an unprecedented situation, but they had insufficient resources to support the long-term care and follow-up needed for these types of incidents. To address the ARB’s recommendations, the Department, in coordination with other appropriate U.S. government agencies, is identifying and reviewing applicable legal authorities and resources for long-term medical follow-up and treatment for U.S government personnel and families impacted by the incidents in Cuba, and will seek legislative remedies where necessary. The Department is also working closely with the Department of Labor to allow for the proper adjudication of workers’ compensation claims from Department personnel. Additionally, the ARB recommended the Department make pre-departure and post-assignment medical screening a mandatory condition for assignment to, or temporary duty in, Havana. The Department is in the process of developing policy modifications to make such screenings mandatory. The ARB also recommended the Department engage the Centers for Disease Control and Prevention (CDC) to undertake a comprehensive medical and epidemiologic study of the symptoms and clinical findings related to the incidents in Cuba. The Department is working with the CDC to support such an analysis.”
  • Internal Communication and Information Sharing: The ARB made several recommendations to facilitate communication and information sharing in the case of any future incidents. The Department is implementing the ARB’s recommendations, with the goal of: clarifying responsibilities, providing centralized points of contact to coordinate efforts, establishing clear notification protocols, and ensuring as much transparency as possible to those affected, taking into account the privacy of the individuals involved as well as sensitive law enforcement and national security information.”
  • “Risk/Benefit Analysis: The ARB made several recommendations to ensure the Department enacts its already established processes to conduct formal risk/benefit analyses and ensure any actions balance Department priorities with risk management. The Department is implementing these recommendations, and taking steps to enhance broader awareness of these processes throughout the Department. For example, the Department has processes to conduct an analysis at least once annually of mitigation measures and residual risks associated with operating at high threat, high risk posts and at those posts on Authorized or Ordered Departure for 90 days or more due to security reasons. The Department will continue to implement this approach.”
  • “Diplomatic Security: The ARB found individual offices within the Bureau of Diplomatic Security (DS) responded to the Cuba incidents reports based on their respective areas of expertise, but that the overall response would have benefitted from the formulation and resourcing of a formal DS multi-disciplinary working group. The Department agreed, and DS formed a Health Incidents Response Working Group with members from all relevant DS offices reporting to the DS Assistant Secretary. This working group has increased communication among the various interagency investigative representatives, and ensured action items are addressed quickly and comprehensively. Additionally, to address future potential unexplained health-security incidents, the Department developed standardized formal guidance, leveraging existing crisis response processes, designed to ensure a consistent response from all agencies at post. All posts are reviewing and updating their emergency action plans to incorporate this guidance. The ARB also suggested the Department review its training programs for security personnel. DS is in the process of reviewing its training and briefing programs to ensure security officers have adequate knowledge of these types of incidents prior to going to post.

The report to Congress stated that the Department already had implemented half of the ARB’s 30 recommendations and is actively working to complete the rest.

“The ARB’s mandate was not to determine the cause of the unexplained health incidents.” (Emphasis added.)

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

[1] U.S. State Dep’t, Cuba Accountability Review Board (Aug. 30, 2018). The underlying developments for the ARB are discussed in the “U.S. Diplomats’ Medical Problems in Cuba” section of List of Posts to dwkcommentaries–Topical: CUBA.

 

U.S. Senator Jeff Flake Issues Another Challenge for All Americans

U.S. Senator Jeff Flake (Rep., AZ), now self-released from the pressures of running for re-election, has been speaking truth to the power of President Donald Trump. Last October he did so in a speech on the Senate floor and an op-ed article in the Washington Post followed by responses to the many letters he had received.[1] Then this January he did so again in another speech on the Senate floor condemning Trump’s tweets and “fake news” tirades.[2]

The latest was on May 23, 2018, at the Harvard Law School at the invitation of its law students.[3] Here is what he said.

Senator Flake’s Harvard Speech

I am . . . humbled by this moment in the life of our country. You see, you are set to inherit the world in just the nick of time.

I am also especially humbled given the fact that I come to you today from the political class. In utter seriousness, it is I who could benefit from listening to you today rather than speaking to you, as I am not so sure that there is much distilled wisdom to be imparted from Washington these days, given what has lately become the tawdriness of my profession. I am here today as representative of a co-equal branch of our federal government, which is failing its constitutional obligations to counteract the power of the president, and in so doing is dishonoring itself, at a critical moment in the life of our nation.

And so, with humility, let me suggest that perhaps it is best to consider what I have to say today as something of a cautionary tale –

  • about the rule of law and its fragility;
  • about our democratic norms and how hard-won and vulnerable they are;
  • about the independence of our system of justice, and how critically important it is to safeguard it from malign actors who would casually destroy that independence for their own purposes and without a thought to the consequences;
  • about the crucial predicate for all of these cherished American values: Truth. Empirical, objective truth;
  • and lastly, about the necessity to defend these values and these institutions that you will soon inherit, even if that means sometimes standing alone. Even if it means risking something important to you, maybe even your career. Because there are times when circumstances may call on you to risk your career in favor of your principles.

Not to be unpleasant, but I do bring news from our nation’s capital. First, the good news: Your national leadership is…not good. At all. Our presidency has been debased. By a figure who has a seemingly bottomless appetite for destruction and division. And only a passing familiarity with how the Constitution works.

And our Article I branch of government, the Congress (that’s me), is utterly supine in the face of the moral vandalism that flows from the White House daily. I do not think that the Founders could have anticipated that the beauty of their invention might someday founder on the rocks of reality television, and that the Congress would be such willing accomplices to this calamity. Our most ardent enemies, doing their worst (and they are doing their worst), couldn’t hurt us more than we are hurting ourselves.

Now, you might reasonably ask, where is the good news in that?

Well, simply put: We may have hit bottom.

(Oh, and that’s also the bad news. In a rare convergence, the good news and bad news are the same – Our leadership is not good, but it probably can’t get much worse.)

This is it, if you have been wondering what the bottom looks like. This is what it looks like when you stress-test all of the institutions that undergird our constitutional democracy, at the same time. You could say that we are witnesses to history, and if it were possible to divorce ourselves from the obvious tragedy of this debacle, I suppose that might even be interesting, from an academic perspective. The way some rare diseases are interesting to medical researchers.

But this is an experience we could and should have avoided. Getting to this state of distress did not occur naturally. Rather, this was thoroughly man-made. This disease of our polity is far too serious to not be recognized for what it is, the damage it threatens to do to our vital organs is far too great for us to carry on as if all is well. All is not well. We have a sickness of the spirit. To complete the medical metaphor, you might say that we are now in critical condition.

How did we arrive at a moment of such peril – wherein a president of the United States publicly threatens – on Fox & Friends, historians will note — to interfere in the administration of justice, and seems to think that the office confers on him the ability to decide who and what gets investigated, and who and what does not? And just this week, the President – offering an outlandish rationale, ordered an investigation into the investigation of the Russian attack on our electoral process – not to defend the country against further attacks, mind you, but to defend himself. Obviously, ordering investigations is not a legitimate use of presidential power.

I pick this egregious example of recent presidential conduct not because it is rare in terms of this president’s body of work, but because it so perfectly represents what we have tragically grown accustomed to in the past year and a half.  Who would have thought that we would ever see encouragement coming from the White House for chants at rallies calling for the jailing of a defeated political opponent. When you don’t even know that there are limits on presidential power, then you might not even care when you are abusing that power.

How did this happen to us? And what might we learn from it? How did we get swept up in this global resurgence of the authoritarian impulse, which now has democracies teetering on the brink, strongmen placing themselves above the law, and in our own country a leader who reveres some of the most loathsome enemies of democracy in our time?

Have we really grown tired of democracy? Are we watching its passing, cheered on by the America First crowd even as we cast aside global institutions that have fostered freedom, prosperity and peace for more than a half-century?

For just a moment, let us marvel at the miracle that is the rule of law. We have seldom been moved to pause for such an appreciation, as we have been too busy taking it for granted and assuming its inviolability – like gravity. But unlike Newton’s Laws, the rule of law was neither innate nor inevitable. What goes up must come down is a piece of cake compared to curbing the impulses of man and asking free people to abide rules and norms that form a country, and foster civilization.

It took centuries of war and sacrifice and social upheaval and more war and great civil rights struggles to establish the foundational notion that no one is either above the law or unworthy of the protections afforded by a robust legal system, a system that took us from feudal servility to a constitutional model that is the envy of the world. And will continue to be, with your help.

We trace the beginnings of this radical egalitarianism – of the awesome and leveling effect of the law – to the Glorious Revolution of 1688, which saw the death of the divine right of kings, as even the monarch from that point forward would be subject to the law – and the parliament even threw in a bill of rights for good measure.  

But we are now testing the durability of this idea that William III first had the good sense to agree to, an idea which was then forged and tempered over the ensuing centuries. And we are seeing its vulnerabilities. In other parts of the world where democracy’s roots are not so deep, we are seeing it being torn down with sickening ease and shocking speed. And worse, we are seeing the rise of simulated democracies, Potemkin democracies, democracies in appearance and affect only.

Rule of thumb: If the only acceptable outcome in a matter of law or justice is a result that is satisfactory to the leader, then you might live in a democracy that is in trouble. If the leader attacks the legitimacy of any institution that does not pay him obeisance – say, the independent judiciary, or the free press – then you might live in a democracy that is in trouble. Further to that point: when a figure in power reflexively calls any press that doesn’t suit him “fake news,” it is that person who should be the figure of suspicion, not the press.

It will be the work of your generation to make sure that this degradation of democracy does not continue – to see to it that our current flirtation with lawlessness and authoritarianism does not become a heritable trait to be passed down from this presidency.

The rule of law is an elemental value, a value that preceded and gave rise to our Constitution. It is not an ideology subject to the pendulum swings of politics, or something to be given a thumbs-up or thumbs-down in a call-in to your favorite morning show. It is the basis of our system of self-governance. America without the rule of law is no longer America.

I am a conservative Republican, a throwback from the days when those words actually meant something, before the collapse of our politics into the rank tribalism we currently endure. My sounding this alarm against a government that was elected under the Republican banner and that calls itself conservative makes me no less Republican or conservative. And opposing this president and much of what he stands for is not an act of apostasy – it is, rather, an act of fidelity. 

Because we forget this fact far too often, and it bears repeating a thousand times, especially in times such as these: Values transcend politics.

As a conservative Republican, I dare say that my idea of government may differ with the beliefs of many of you here today. I will be thoroughly presumptuous and assume that in terms of policy prescriptions, we disagree on much.

But I have long believed that the only lasting solutions to the problems before us must involve both sides. Lawmaking should never be an exercise in revenge, because vengeful people are myopic, self-interested, and not fit to lead. I believe that our government should include people who believe as I do, just as I believe it must include people who believe as my friend Tim Kaine does, or as my friend Cory Booker does, to name but two.

The greatness of our system is that it is designed to be difficult, in order to force compromise. And when you honor the system, and seek to govern in good faith, the system works.

Which brings us back to our current peril. It is a testament to our times – and to the inflection point that we face – that I am here today. For, setting aside the usual requirements of politics, and the usual ways that politics keeps score, the things that normally divide us seem trivial compared to the trials that have now been visited upon our democracy.

In the face of these challenges, we agree on something far more important than a legislative program, even more important than our thoughts on the proper role of government in the economy and in the lives of individuals: We agree on the need to safeguard the health and survival of constitutional democracy in America and the preservation of the American idea itself – at a time when the values underpinning our constitutional system and that extraordinary idea are under threat, from the top.

The values of the Enlightenment that led to the creation of this idea of America – this unique experiment in world history – are light years removed from the base, cruelly transactional brand of politics that in this moment some people mistakenly think is what it means to make America great.

To be clear, we did not become great – and will never be great – by indulging and encouraging our very worst impulses. It doesn’t matter how many red caps you sell.

The historian Jon Meacham, in his splendid new book, “The Soul of America,” reassures that history shows us that “we are frequently vulnerable to fear, bitterness, and strife.” The good news, he says, “is that we have come through such darkness before.”

Perhaps. But not with both nuclear weapons and Twitter. And certainly not with such an anomalous presidency as this one. But I take your point, Mr. Meacham, and am heartened by it.

We will get through this, of course. But at the moment, we are in it, and we must face it squarely. Because too much is at stake for us to turn away, to leave it to others to defend the things we hold most dear.

A culminating event such as the election of our current president scrambles normal binary notions of politics, and I am as disoriented as many of you are at this dealignment. We find that many of the day’s biggest issues simply don’t break down neatly to familiar ideas of left v. right, but rather more along these lines:

–Do you believe in democracy, or not?

–Are you faithful to your country, or to your party?

–Are you loyal to the law and the Constitution, or to a man?

–Do you reflexively ascribe the worst motives to your opponents, but somehow deny, excuse, or endorse every repulsive thing your compatriot says, does or tweets?

These questions have sent some of us wandering into the political wilderness.

Well, the wilderness suits me fine. In fact, I so love the way Washington has become that in recent years, during congressional recesses, I have taken to stranding myself on deserted islands in the middle of the ocean to detoxify all these feelings of love out of my system. I once spent a week alone, voluntarily marooned, on a tiny island called Jabonwod, a remote spit of sand and coconut trees in the central Pacific, about 7,000 miles from Washington.

As penance, and determined to test my survival skills, I brought no food or water, relying solely on what I could catch or collect. That, it turned out, was the easier part.  More difficult was dealing with the stultifying loneliness that set in on the first night and never left me. 

Now, I would not recommend such drastic measures to escape your situation, but I hope that should you be presented with the hard choice, you too will eschew comfort and set out into the wilderness rather than compromise your conscience.

I urge you to challenge all of your assumptions, regularly. Recognize the good in your opponents. Apologize every now and then. Admit to mistakes. Forgive, and ask for forgiveness. Listen more. Speak up more, for politics sometimes keeps us silent when we should speak.

And if you find yourself in a herd, crane your neck, look back there and check out your brand, ask yourself if it really suits you. From personal experience, I can say that it’s never too late to leave the herd.

When you peel off from the herd, your equilibrium returns. Food tastes better. You sleep very well. Your mind is your own again. You cease being captive to some bad impulses and even worse ideas. 

It can strain relationships, to be sure, and leave you eating alone in the senate dining room every now and then. But that’s okay. To revise and extend a remark the president himself may recognize: You might say that I like people whose minds weren’t captured. That one was for you, Senator McCain. We’re all pulling for you.

Politically speaking, I have not changed my beliefs much at all. But my goodness, how I have changed. How can we live through these abnormal times and not be changed?

Our country needs us now. Our country needs you.

We need each other, and it is a scoundrel who would prosper politically by turning us against each other.

From our time, let us send a message into the future that we did not fail democracy, but that we renewed it. That a patchwork of populist resentments and authoritarian whims that for a while succeeded in its cynical mission of discord had the ultimate effect of shaking us from our complacency, reminding us of who we are and of our responsibilities to each other. Of reawakening us to our obligations as citizens.

Let us be able to say in the future that we faced these forces that would threaten the institutions of our liberty and tear us apart and that we said: NO.

I leave you today with more good news and bad news. This time I will start with the bad news, which is: All of this is yours to fix. All of it.

And that of course is also the good news: All of this is yours to fix, and our country could not be more fortunate than to have people of your high character, strong principle and awesome talent soon taking the helm.

[It] is our obligation to assess the condition of our politics, then to mitigate and repair the damage.

It is the story of America, though, that we will be better for the hard lessons of this experience. We are much better and more decent than Washington shows us to be. We are a good people. And we are a deeply resourceful and resilient nation, and our greatness is based on no one man – no one man who “alone can fix it,” but rather on enduring ideas of self-governance and the rule of law that have been a model for the world for centuries. Ideas that can be mocked, but not marred.

[We] must gain the high ground, and survey the damage. And the thing about gaining the high ground is from up there you can see beyond the damage, too. You can see everything. Everything that is good and decent.

That is the job before us – to get through this, and beyond it. And you’re just the ones to take us there.

Conclusion

Thank you, Senator Flake, for your speech and your challenge to us all.

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[1] Senator Jeff Flake’s Courageous Defense of American Values and Democracy, dwkcommentaries.com (Nov. 6, 2017).

[2]  Senator Jeff Flake Condemns President Trump’s “Fake News” Tirades, dwkcommentaries.com (Jan. 20, 2018).

[3] Press Release, Flake Delivers Class Day Speech at Harvard Law School (May 23, 2018).

 

 

President Raúl Castro Affirms Importance of Cuba’s Private Sector       

President Raúl Castro

On July 14, Raúl Castro Ruz, Army General, First Secretary of the Communist Party of Cuba Central Committee and President of the Councils of State and Ministers, addressed a session of Cuba’s legislature (the National Assembly of People’s Power).[1]

He first noted that despite “difficult circumstances, encouraging, modest [economic] results have been achieved. The Gross Domestic Product grew by 1.1% in the first half of the year, which indicates a change in the economy’s direction as compared to last year. Contributing to this result were agriculture, tourism, and other exports of services, construction, sugar production, and the transportation and communications sectors.”

Castro then affirmed the importance of the private sector of the Cuban economy in these extensive remarks.

He reported that the Council of Ministers recently had authorized “the expansion of self-employment and the experiment with non-agricultural cooperatives . . . with the purpose of gradually freeing the state from responsibility for activities that are not strategic, creating jobs, supporting initiative, and contributing to the national economy’s efficiency in the interest of developing our socialism.”

This “past June, these forms of property management were recognized as among those operating within the Cuban economy, in an extraordinary session of Parliament dedicated to analyzing and approving programmatic documents for our Economic and Social Model.”

“We currently have more than half a million self-employed workers and more than 400 non-agricultural cooperatives, which confirms their validity as a source of employment, while contributing to an increase and greater variety of goods and services available, with an acceptable level of quality.”

On the other hand, there have been “violations of the legal regulations in effect, such as the utilization of raw materials and equipment of illicit origin, under-declaration of income to evade tax obligations, and insufficient state control at all levels.” To meet these problems, the Council of Ministers has adopted measures that soon will be announced.

The Council, however, has “not renounced the expansion and development of self-employment, or the continuation of the experiment with non-agricultural cooperatives. We are not going to draw back or stop, nor will we allow the non-state sector to be stigmatized or face prejudice, but it is imperative that laws be respected, progress consolidated, positive aspects – which are more than a few – generalized, and illegalities and other deviations from established policy resolutely confronted.”

The “pace and scope of the changes we need to make to our model must be conditioned by the capacity we have to do things well and rectify any misstep in a timely manner. This will only be possible if adequate prior preparation is ensured – which we haven’t done – training and comprehension of established regulations at every level, follow-up and guidance of the process – aspects marked by a fair dose of superficiality, and an excess of enthusiasm and desire to move more rapidly than we are truly capable of managing.”

“What is a state, especially a socialist state, doing administering a barbershop with one chair, or two or three, and with one administrator for a certain number of small barber shops – not many. I mention this example because it was one of the first steps we took.”

The errors of implementation of these changes are mainly “ours, we leaders who developed this policy. . . . This is the reality. Let’s not try to block the sun with a finger. Mistakes are mistakes. And they are our mistakes, and if we are going to consider hierarchies among us, in the first place, they are mine, because I was part of this decision. This is the reality.”

Conclusion

As has been noted in previous blog posts, the Cuban government and people have recognized that entrepreneurs in the private sector are playing increasingly important roles in the Cuban economy and society and that developing a mixed economy is not an easy project.[2]

This is why it is so important for the U.S. Congress to adopt bills confirming the freedom for Americans to travel to Cuba on individual person-to-person trips that are important customers for businesses owned by Cuban entrepreneurs.[3] 

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[1] Castro Ruz, We will continue to advance along the path freely chosen by our people, Granma (July 17, 2017) (official English translation of the original Spanish).

[2] See posts listed in the “Cuban Economy” section of List of Posts to dwkcommentaries—Topical: CUBA.

[3] See This Blogger’s Reactions to Trump Reversal of Some U.S.-Cuba Normalization Policies (June 23, 2017); Open Letter to U.S. Congress About U.S. Freedom To Travel to Cuba (July 16, 2017).

President Raúl Castro Says Cuba Can Work with the Trump Administration

 

On January 25 Cuba’s President, Raúl Castro, expressed “Cuba’s willingness to continue negotiating pending bilateral issues with the [U.S.], on the basis of equality, reciprocity and respect for the sovereignty and independence of our country, and to continue the respectful dialogue and cooperation on issues of common interest with the new government of President Donald Trump.”[1]

Castro continued, “Cuba and the [U.S.] can cooperate and coexist in a civilized manner, respecting differences and promoting all that benefits both countries and peoples, but it should not be expected that to do so Cuba will make concessions inherent to its sovereignty and independence.”

On the other hand, he said, “The [U.S.] economic, commercial and financial blockade persists, which causes considerable hardships and human damages that severely harm our economy and hamper development. Despite this, we continue immersed in the updating of our economic and social model and we will continue to fight to build a sovereign, independent, socialist, democratic, prosperous and sustainable nation.”

These comments were in the larger context of Castro’s speech at the summit of the Community of Latin American and Caribbean States (CELAC)[2] held in Bavaro, the Dominican Republic, when he said, “Never has it been more necessary to effectively advance along the path of unity, recognizing that we have many common interests. Working for ‘unity within diversity’ is an urgent need.”

“To achieve this, strict adherence to [the group’s previous proclamation] is required, in which we commit ourselves ‘to strict compliance with their obligation not to intervene, directly or indirectly, in the internal affairs of any other State,’ and to resolve differences in a peaceful manner, as well as to ‘fully respect the inalienable right of every State to choose its political, economic, social and cultural system.’”

“It would be desirable for the new [U.S.] government to opt for respect for the region, although it is a matter of concern that intentions have been declared that endanger our interests in the areas of trade, employment, migration and the environment, among others.”

Subsequently the Summit passed resolutions applauding the U.S. termination of its “dry foot/wet foot” immigration policy for Cuban migrants while also urging the U.S. Congress to repeal the Cuban Adjustment Act; condemning the U.S. embargo (blockade); and calling for the U.S. to return Guantanamo Bay to Cuba.[3]

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[1] Castro, Never has it been more necessary to effectively advance along the path of unity, Granma (Jan. 25, 2017); Reuters, Cuba’s Castro Warns Trump to Respect Country’s Sovereignty, N.Y. Times (Jan. 25, 2017); Assoc. Press, Castro: Cuba Can Work With Trump if Sovereignty Respected, N.Y. Times (Jan. 26, 2017).

[2] CELAC consists of 33 sovereign countries in the Americas representing roughly 600 million people and is seen as an alternative to the Organization of American States and U.S. influence in the region.

[3] Morales, Dialogue and political agreement on the basis of mutual trust, Granma (Jan. 26, 2017); Special Declaration on the need to end the economic, commercial and financial blockade of the United States of America against Cuba, Granma (Jan. 26, 2017); Special Declaration: Return to the Republic of Cuba of the territory that occupies the naval base of the United States of America in Guantánamo, Granma (Jan. 26, 2017).

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

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

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

Certain Senators’ Concerns

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

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

 Saudi Arabia’s Reactions

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

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

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

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

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

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

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

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

Other Reactions

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

Another U.N. Condemnation of the U.S. Embargo of Cuba

                                                                                       O

U.N. General Assembly
U.N. General Assembly

On October 26, the United Nations General Assembly voted, 191 to 0 (with two abstentions), to adopt a resolution proposed by Cuba to condemn the United States embargo of Cuba. For the first time in the 25-year history of the annual vote on such resolutions, the U.S, rather than opposing the text, cast an abstention, prompting Israel to do likewise.[1]

This post will examine the resolution’s text, its presentation by Cuba, its support by other countries and the arguments for abstention offered by the U.S. and Israel. This post will then conclude with a brief discussion of reaction to the abstention in the U.S. Prior posts discussed the similar General Assembly resolutions against the embargo that were adopted in 2011, 2014 and 2015.

The Actual Resolution

The actual resolution, “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba” (A/RES/71/5 and A/71/L.3) had two principal operative paragraphs.

It reiterated “its call upon all States to refrain from promulgating and applying laws and measures [like the U.S. embargo against Cuba] . . . in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation (¶ 2). It also urged “States that have and continue to apply such laws and measures to take the steps necessary to repeal or invalidate them as soon as possible in accordance with their legal regime (¶ 3).

The resolution’s preamble reaffirmed “the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many international legal instruments” and recited the previous General Assembly resolutions against the embargo. It then welcomed “the progress in the relations between the Governments of Cuba and the [U.S.] and, in that context, the visit of the President of the [U.S.], Barack Obama, to Cuba in March 2016” while also recognizing “the reiterated will of the President of the [U.S.] to work for the elimination of the economic, commercial and financial embargo against Cuba” and “the steps taken by the [U.S.] Administration towards modifying some aspects of the implementation of the embargo, which, although positive, are still limited in scope.”

Cuba’s Presentation of the Resolution

Bruno Rodriguez
Bruno Rodriguez

Speaking last in the debate, Cuba’s Foreign Minister Bruno Rodriguez Parrilla, presented arguments for adopting the resolution. Here are extracts of that speech:

“[T]here has been progress [between Cuba and the U.S. since December 2014] in the dialogue and cooperation on issues of common interest and a dozen agreements were signed [and] reciprocal benefits reported. Now just announced the vote of the US abstention on this draft resolution.”

“The [U.S.] president and other top officials have described [the embargo/blockade] as obsolete, useless to advance American’s interests, meaningless, unworkable, being a burden for [U.S.] citizens, . . . [harming] the Cuban people and [causing]. . . isolation to the [U.S.] and [have] called [for the embargo/blockade] to be lifted.”

“We recognize that executive measures [to reduce the scope of the embargo] adopted by the government of the [U.S.] are positive steps, but [have] very limited effect and scope. However, most of the executive regulations and laws establishing the blockade remain in force and are applied rigorously to this minute by U.S. government agencies.”

“Meanwhile, the U.S. Congress has not approved any of the 20 amendments or legislative initiatives, with bipartisan support, . . . [for] eliminating some restrictions of the blockade or even all of this policy. [Moreover,] there have been more than 50 legislative initiatives that threaten to reinforce key aspects of the blockade, preventing the President [from] approving new executive or implementing measures already adopted.”

“It cannot be underestimated in any way the powerful political and ethical message that [action by this Assembly] . . . sends to the peoples of the world. The truth always [finds] its way. Ends of justice prevail. The abstention vote announced surely is a positive step in the future of improved relations between the[U.S.] and Cuba. I appreciate the words and the efforts of Ambassador Samantha Power.”

“[There] are incalculable human damages caused by the blockade. [There is no] Cuban family or industry in the country that does not suffer its effects on health, education, food, services, prices of goods, wages and pensions.” For example, the “imposition of discriminatory and onerous conditions attached to the deterrent effects of the blockade restrict food purchases and the acquisition in the U.S. market for drugs, reagents, spare parts for medical equipment and instruments and others.”

“The [embargo/] blockade also [adversely] affects the interests of American citizens themselves, who could benefit from various services in Cuba, including health [services].”

“The [embargo/] blockade remains a massive, flagrant and systematic violation of human rights of all Cubans and qualifies as an act of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. It is an obstacle to cooperation [in] international humanitarian areas.”

“The blockade is the main obstacle to economic and social development of our people. It constitutes a flagrant violation to international law, the United Nations Charter and the Proclamation of Latin America and the Caribbean as a Zone of Peace. Its extraterritorial application adds further to its violation of international law nature of magnitude.”

“Other causes, in addition to [the blockade/embargo] . . . , determine our economic difficulties: the unjust international economic order; the global crisis; the historical distortions and structural weaknesses caused by underdevelopment; high dependence on energy and food imports; the effects of climate change and natural disasters; and also . . . our own mistakes.”

“Between April 2015 and March 2016, the direct economic damage to Cuba by the blockade amounted to $4.68 billion at current prices, calculated rigorously and prudently and conservatively. The damages accumulated over nearly six decades reach the figure of $753 billion, taking into account depreciation of gold. At current prices, [that is] equivalent to just over $125 billion.”

“On 16 April 2016 President Raul Castro Ruz said, ‘We are willing to develop a respectful dialogue and build a new relationship with the [U.S.], as that has never existed between the two countries, because we are convinced that this alone . . . [will provide] mutual benefits.’ And last September 17, he said ‘I reaffirm the will to sustain relations of civilized coexistence with the [U.S.], but Cuba will not give up one of its principles, or make concessions inherent in its sovereignty and independence.’”

“The government of the [U.S.] first proposed the annexation of Cuba and, failing that, to exercise their domination over it. The triumph of the Cuban Revolution . . . [prompted the U.S. adoption of the embargo whose purpose] was ‘to cause disappointment and discouragement through economic dissatisfaction and hardship … to deny Cuba money and supplies, in order to reduce nominal and real wages, with the aim of causing hunger, desperation and overthrow of government. ‘”

“The [new U.S.] Presidential Policy Directive [states] that the Government of the [U.S.] recognizes ‘the sovereignty and self-determination of Cuba’ and [the right of] the Cuban people to make their own decisions about their future.’” It also states “the U.S. will not seek a ‘change of regime in Cuba.’”[2]

But the Directive also says “’the [U.S.] will support the emerging civil society in Cuba and encourage partners and non-governmental actors to join us in advocating in favor of reforms. While the United States remain committed to supporting democratic activists, [we] also [will] participate with community leaders, bloggers, activists and other leaders on social issues that can contribute to the internal dialogue in Cuba on civic participation.’ The Directive goes on to say: “The [U.S.] will maintain our democracy programs and broadcasting, while we will protect our interests and values, such as Guantanamo Naval Base … The government of the United States has no intention of modifying the existing lease agreement and other related provisions.’”

The Directive also asserts that Cuba “remains indebted to the [U.S.] regarding bilateral debts before the Cuban Revolution.”

The U.S. needs to “recognize that change is a sovereign matter for Cubans alone and that Cuba is a truly independent country. It gained its independence by itself and has known and will know how to defend [its] greatest sacrifices and risks. We are proud of our history and our culture that are the most precious treasure. We never forget the past because it is the way never to return to it. And we decided our path to the future and we know that is long and difficult, but we will not deviate from it by ingenuity, by siren songs, or by mistake. No force in the world can force us to it. We will strive to build a sovereign, independent, socialist, democratic, prosperous and sustainable nation. We will not return to capitalism.”

Other Countries’ Statements of Support[3]

During the debate the following 40 countries expressed their support of the resolution:

  • Latin America: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Dominican Republic (for Commonwealth of Latin American and Caribbean States (CELAC)), Ecuador, El Salvador, Jamaica (for Caribbean Community (CARICOM)), Mexico, Nicaragua, Saint Vincent and Grenadines, Uruguay and Venezuela (for Non-Aligned Movement (NAM)).
  • Africa: Algeria, Angola, Libya, Mozambique, Namibia, Niger (for African States), South Africa, Sudan and Tonga.
  • Middle East: Egypt, Kuwait (for Organization of Islamic Conference (OIC)) and Syria.
  • Asia: Belarus, China, Democratic People’s Republic of Korea [North Korea], India, Indonesia, Iran, Lao People’s Democratic Republic, Malaysia, Myanmar, Russian Federation, Singapore (for Association of Southeast Asian Nations (ASEAN)), Thailand (for Group of 77 and China) and Viet Nam.
  • Europe: Slovakia (for European Union (EU)).

U.S. Abstention[4]

Samantha Power
Samantha Power

The U.S. Ambassador and Permanent Representative to the United Nations, Samantha Power, announced the U.S. abstention before the debate and voting on the resolution. Here are extracts of her speech about that vote.

“For more than 50 years, the [U.S.] had a policy aimed at isolating the government of Cuba. For roughly half of those years, U.N. Member States have voted overwhelmingly for a General Assembly resolution that condemns the U.S. embargo and calls for it to be ended. The [U.S.] has always voted against this resolution. Today the [U.S.] will abstain.”

“In December 2014, President Obama made clear his opposition to the embargo and called on our Congress to take action to lift it. Yet while the Obama Administration agrees that the U.S. embargo on Cuba should be lifted, . . . we don’t support the shift for the reason stated in this resolution. All actions of the [U.S.] with regard to Cuba have been and are fully in conformity with the U.N. Charter and international law, including applicable trade law and the customary law of the sea. We categorically reject the statements in the resolution that suggest otherwise.”

“But [today’s] resolution . . . is a perfect example of why the U.S. policy of isolation toward Cuba was not working – or worse, how it was actually undermining the very goals it set out to achieve. Instead of isolating Cuba, . . . our policy isolated the [U.S.], including right here at the [U.N.].”

“Under President Obama, we have adopted a new approach: rather than try to close off Cuba from the rest of the world, we want the world of opportunities and ideas open to the people of Cuba. After 50-plus years of pursuing the path of isolation, we have chosen to take the path of engagement. Because, as President Obama said in Havana, we recognize that the future of the island lies in the hands of the Cuban people.”[5]

“Abstaining on this resolution does not mean that the [U.S.] agrees with all of the policies and practices of the Cuban government. We do not. We are profoundly concerned by the serious human rights violations that the Cuban government continues to commit with impunity against its own people – including arbitrarily detaining those who criticize the government; threatening, intimidating, and, at times, physically assaulting citizens who take part in peaceful marches and meetings; and severely restricting the access that people on the island have to outside information.”

“We [,however,] recognize the areas in which the Cuban government has made significant progress in advancing the welfare of its people, from significantly reducing its child mortality rate, to ensuring that girls have the same access to primary and secondary school as boys.”

“But none of this should mean that we stay silent when the rights of Cuban people are violated, as Member States here at the [U.N.] have too often done. That is why the [U.S.] raised these concerns directly with the Cuban government during our [recent] historic dialogue on human rights . . ., which shows that, while our governments continue to disagree on fundamental questions of human rights, we have found a way to discuss these issues in a respectful and reciprocal manner.[6] We urge other Member States to speak up about these issues as well.”

“As President Obama made clear when he traveled to Havana, we believe that the Cuban people – like all people – are entitled to basic human rights, such as the right to speak their minds without fear, and the right to assemble, organize, and protest peacefully. Not because these reflect a U.S.-centric conception of rights, but rather because they are universal human rights – enshrined in the U.N. Charter and in the Universal Declaration of Human Rights – which all of our 193 Member States are supposed to respect and defend. Rights that are essential for the dignity of men, women, and children regardless of where they live or what kind of government they have.”

The U.S. concedes that it “has work to do in fulfilling these rights for our own citizens. And we know that at times in our history, U.S. leaders and citizens used the pretext of promoting democracy and human rights in the region to justify actions that have left a deep legacy of mistrust. We recognize that our history, in which there is so much that makes us proud, also gives us ample reason to be humble.”

“The [U.S.] believes that there is a great deal we can do together with Cuba to tackle global challenges. That includes here at the [U.N.], where the decades-long enmity between our nations has at best been a distraction – and at worst, an obstacle – to carrying out some of the most important work of this institution and helping the world’s most vulnerable people.”

U.S. Reactions[7]

Engage Cuba, a U.S. national coalition of private companies, organizations and state and local leaders working to lift the embargo, said, “Year after year, the international community has condemned our failed unilateral sanctions that have caused great economic hardship for the people of Cuba and continue to put American businesses at a competitive disadvantage. The fact that the Administration and Israel abstained from voting for the first time ever demonstrates the growing recognition that the U.S. embargo on Cuba is a failed, obsolete policy that has no place in today’s international affairs.”

Senator Marco Rubio (Rep., FL), on the other hand, blasted the abstention, saying the Obama administration had failed to honor and defend U.S. laws in an international forum. Similar negative reactions were registered by Senators Ted Cruz (Rep., FL) and Robert Menendez (Dem., NJ), Republican Representatives from Florida, Ileana Ros-Lehtinen and Mario Diaz-Balart, and the U.S.-Cuba Democracy PAC.

As an U.S. citizen-advocate for ending the embargo as soon as possible, I am pleased with the U.S. abstention and agree with Ambassador Power that this vote does not mean the U.S. agrees with the resolution’s stated reasons.

Moreover, too many in the U.S. believe the Cuban damages claim from the embargo is just a crazy Cuban dream, but I disagree. Given the amount of the claim, Cuba will not someday tell the U.S. to forget it. A prior post, therefore, suggested that the two countries agree to submit this and any other damage claims by both countries for resolution by an independent international arbitration panel such as those provided by the Permanent Court of Arbitration at the Hague in the Netherlands.

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[1] U.N. Press Release, U.S. abstains for first time in annual UN vote on ending embargo against Cuba (Oct. 26, 2016).

[2] A prior post replicated the Presidential Policy Directive while another post provided reactions thereto.

[3] U.N. Press Release, General Assembly Plenary (Oct. 26, 2016); The defeat of the blockade is the world’s largest moral and political victory for the people of Cuba against the empire, Granma (Oct. 26, 2016) (Venezuela’s statement); Today not only do we vote against the blockade, we voted for hope, Granma (Oct. 26, 2016) (Bolivia’s statement).

[4] Ambassador Power, Remarks at a UN General Assembly Meeting on the Cuban Embargo (Oct. 26, 2016).  Israel, which also abstained, merely said that it welcomed the improved U.S.-Cuba relations and hoped it would lead to a new era in the region.

[5] A prior post reviewed President Obama’s eloquent speech in Havana to the Cuban people.

[6] A prior post reviewed the limited public information about the recent human rights dialogue.

[7] Ordońez, For 1st time, U.S. changes its position on U.N. resolution blasting Cuba trade embargo, InCubaToday (Oct. 26, 2016); Engage Cuba, Press Release: Engage Cuba Praises First Ever Unanimous Passage of United Nations Resolution Condemning the Cuban Embargo (Oct. 26, 2016); Lederer & Lee, US abstains in UN vote on Cuba embargo for the first time, Wash. Post (Oct. 26, 2016); Rubio, Rubio: Obama Admin Ignoring U.S. Law on Cuba Embargo, Giving More Concessions to Castro Regime at U.N. (Oct. 26, 2016).

Enactment of the Justice Against Sponsors of Terrorism Act (JASTA) Over the Presidential Veto

As a previous post reported, from September 16, 2015, through September 9, 2016, the current Session of Congress considered and overwhelmingly adopted the Justice Against Terrorism Act (JASTA). Although neither chamber of Congress held hearings on JASTA this Session and voiced little opposition to the bill, objections to the bill were raised outside Congress, and on September 23, 2016, President Obama vetoed the bill, as was mentioned in a prior post. Thereafter Congress overrode the veto and JASTA became law, whose details were discussed in another previous post.

Now we will retreat in time and examine the president’s veto message and the congressional overriding of the veto. Another post will look at subsequent efforts to amend JASTA.

President Obama’s Veto Message

 On September 23, President Obama vetoed JASTA and returned the bill to Congress with a message stating the following reasons for the veto:[1]

  • “Enacting JASTA into law . . . would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks. As drafted, JASTA would allow private litigation against foreign governments in U.S. courts based on allegations that such foreign governments’ actions abroad made them responsible for terrorism-related injuries on U.S. soil. This legislation would permit litigation against countries that have neither been designated by the executive branch as state sponsors of terrorism nor taken direct actions in the United States to carry out an attack here. The JASTA would be detrimental to U.S. national interests more broadly, which is why I am returning it without my approval.”
  • “First, JASTA threatens to reduce the effectiveness of our response to indications that a foreign government has taken steps outside our borders to provide support for terrorism, by taking such matters out of the hands of national security and foreign policy professionals and placing them in the hands of private litigants and courts.”
  • “Any indication that a foreign government played a role in a terrorist attack on U.S. soil is a matter of deep concern and merits a forceful, unified Federal Government response that considers the wide range of important and effective tools available. One of these tools is designating the foreign government in question as a state sponsor of terrorism, which carries with it a litany of repercussions, including the foreign government being stripped of its sovereign immunity before U.S. courts in certain terrorism-related cases and subjected to a range of sanctions. Given these serious consequences, state sponsor of terrorism designations are made only after national security, foreign policy, and intelligence professionals carefully review all available information to determine whether a country meets the criteria that the Congress established.”
  • “In contrast, JASTA departs from longstanding standards and practice under our Foreign Sovereign Immunities Act and threatens to strip all foreign governments of immunity from judicial process in the United States based solely upon allegations by private litigants that a foreign government’s overseas conduct had some role or connection to a group or person that carried out a terrorist attack inside the United States. This would invite consequential decisions to be made based upon incomplete information and risk having different courts reaching different conclusions about the culpability of individual foreign governments and their role in terrorist activities directed against the United States — which is neither an effective nor a coordinated way for us to respond to indications that a foreign government might have been behind a terrorist attack.”
  • “Second, JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests. The United States has a larger international presence, by far, than any other country, and sovereign immunity principles protect our Nation and its Armed Forces, officials, and assistance professionals, from foreign court proceedings. These principles also protect U.S. Government assets from attempted seizure by private litigants abroad. Removing sovereign immunity in U.S. courts from foreign governments that are not designated as state sponsors of terrorism, based solely on allegations that such foreign governments’ actions abroad had a connection to terrorism-related injuries on U.S. soil, threatens to undermine these longstanding principles that protect the United States, our forces, and our personnel.”
  • “Indeed, reciprocity plays a substantial role in foreign relations, and numerous other countries already have laws that allow for the adjustment of a foreign state’s immunities based on the treatment their governments receive in the courts of the other state. Enactment of JASTA could encourage foreign governments to act reciprocally and allow their domestic courts to exercise jurisdiction over the United States or U.S. officials — including our men and women in uniform — for allegedly causing injuries overseas via U.S. support to third parties. This could lead to suits against the United States or U.S. officials for actions taken by members of an armed group that received U.S. assistance, misuse of U.S. military equipment by foreign forces, or abuses committed by police units that received U.S. training, even if the allegations at issue ultimately would be without merit. And if any of these litigants were to win judgments — based on foreign domestic laws as applied by foreign courts — they would begin to look to the assets of the U.S. Government held abroad to satisfy those judgments, with potentially serious financial consequences for the United States.”
  • “Third, JASTA threatens to create complications in our relationships with even our closest partners. If JASTA were enacted, courts could potentially consider even minimal allegations accusing U.S. allies or partners of complicity in a particular terrorist attack in the United States to be sufficient to open the door to litigation and wide-ranging discovery against a foreign country — for example, the country where an individual who later committed a terrorist act traveled from or became radicalized. A number of our allies and partners have already contacted us with serious concerns about the bill. By exposing these allies and partners to this sort of litigation in U.S. courts, JASTA threatens to limit their cooperation on key national security issues, including counterterrorism initiatives, at a crucial time when we are trying to build coalitions, not create divisions.”
  • “The 9/11 attacks were the worst act of terrorism on U.S. soil, and they were met with an unprecedented U.S. Government response. The United States has taken robust and wide-ranging actions to provide justice for the victims of the 9/11 attacks and keep Americans safe, from providing financial compensation for victims and their families to conducting worldwide counterterrorism programs to bringing criminal charges against culpable individuals. I have continued and expanded upon these efforts, both to help victims of terrorism gain justice for the loss and suffering of their loved ones and to protect the United States from future attacks. The JASTA, however, does not contribute to these goals, does not enhance the safety of Americans from terrorist attacks, and undermines core U.S. interests.”

Reactions to the Veto

Immediately after President Obama’s veto of JASTA, both Republicans and Democrats in Congress vowed to override the veto under Article I, Section 7 of the U.S. Constitution requiring a vote of at least two-thirds of each chamber of the Congress to do so. On the sidelines both major presidential candidates (Donald Trump and Hillary Clinton) said that they would have signed the bill if they were president.

These vows were made despite the prior day’s testimony before a Senate committee by Secretary of Defense Ash Carter opposing the bill on the ground that it could be a problem for the U.S. if another country was “to behave reciprocally towards the U.S.” And the Republican Chair of the House Armed Services Committee, Representative Mac Thornberry of Texas, amplified the military’s concerns and urged Republicans to study the bill’s consequences while announcing his intent to opposes the override.[2]

Not surprisingly immediately after this veto, Senator John Cornyn stated, “It’s disappointing the President chose to veto legislation unanimously passed by Congress and overwhelmingly supported by the American people. Even more disappointing is the President’s refusal to listen to the families of the victims taken from us on September 11th, who should have the chance to hold those behind the deadliest terrorist attack in American history accountable. I look forward to the opportunity for Congress to override the President’s veto, provide these families with the chance to seek the justice they deserve, and send a clear message that we will not tolerate those who finance terrorism in the United States.”[3]

On September 27 President Obama sent a letter to Senators Mitch McConnell (Rep., TN), the Majority Leader, and Harry Reid (Dem. NV), Minority Leader. The President said he was “fully committed to assisting the families of the victims of terrorist attacks of Sept. 11,″ but that the consequences of an override could be “devastating” by putting military and other U.S. officials overseas at risk. The bill’s enactment, he warned, “would neither protect Americans from terrorist attacks nor improve the effectiveness of our response to such attacks.[4]

On September 28 Senators Cornyn and Shumer jointly wrote an op-ed article in USA Today urging Congress to override the veto because JASTA “would provide a legal avenue for the families of the victims of the 9/11 attacks to seek justice in a court of law for the terrorist attacks that took the lives of their loved ones. And it would deter foreign entities from sponsoring terrorism in the future.” The article also rejected as untrue the argument by JASTA’s opponents “that the bill will subject U.S. diplomats and other government officials to a raft of potential lawsuits in foreign courts.”[5]

On the morning of September 28, the New York Times published an editorial opposing the threatened congressional override of the veto because “the bill complicates the United States’ relationship with Saudi Arabia and could expose the American government, citizens and corporations to lawsuits abroad. Moreover, legal experts like Stephen Vladeck of the University of Texas School of Law and Jack Goldsmith of Harvard Law School doubt that the legislation would actually achieve its goal.”[6]

Moreover, the Times editorial asserted that the “European Union has warned that if the bill becomes law, other countries could adopt similar legislation defining their own exemptions to sovereign immunity. Because no country is more engaged in the world than the United States — with military bases, drone operations, intelligence missions and training programs — the Obama administration fears that Americans could be subject to legal actions abroad.”

Nevertheless, later that same day (September 28) Congress overwhelmingly voted to override the presidential veto. The only vote against the override in the Senate was by the Senate Minority Leader, Senator Harry Reid (Dem., NV). The vote in the House was 348 to override with only 59 opposed.[7] We will now look at the debate in both chambers.

U.S. Senate’s Overriding the Veto

In the Senate debate, Senators Richard Blumenthal (Dem., CT), John Cornyn (Rep., TX), Chuck Grassley (Rep., IA) and Chuck Schumer (Dem. NY) spoke in favor of overriding the veto and passing JASTA while Senators Bob Corker (Rep., TN), the Chair of the Senate Foreign Relations Committee, Benjamin Cardin (Dem., DE), the Committee’s Ranking Member, and Diane Feinstein (Dem., CA) offered qualified endorsements of an override. [8]

Generally these Senators argued that U.S. victims of state-sponsored acts of terrorism needed the opportunity to assert their damage claims in U.S. courts against such sponsors and that JASTA would deter such sponsored terrorism. Senator Cornyn added that this “legislation has been pending since 2009, and we have worked through a number of Members’ concerns . . . in order to modify the legislation and build the consensus we now have achieved. . . . That means [JASTA] has been negotiated and hammered out over a long period of time.”[9]

Cornyn then offered this argument for rejection of the presidential veto message:

  • JASTA would not “create complications” with some of our close partners. It “only targets foreign governments that sponsor terrorist attacks on American soil. . . . The financing of terrorism in the [U.S.] is not behavior we should tolerate from any nation, allies included.”
  • Possible foreign laws like JASTA “applied reciprocally will open no . . . floodgates” of lawsuits against the U.S. or military members by foreign governments in foreign courts.
  • “JASTA is not a sweeping legislative overhaul that dramatically alters international law. It is an extension of law that has been on the [U.S.] books since 1976. . . . [For] 40 years our law has been replete with immunity exceptions that apply to conduct committed abroad. This bill just adds another exception.”

Senator Grassley, the Chair of the Senate Judiciary Committee, noted that this Committee unanimously supported overriding the veto of JASTA. He also said it was “highly unlikely” that passage of the bill would result in “the Saudis . . .pulling their money out of U.S. securities. . . . But even if they did, there would be plenty of buyers for those securities. But more importantly, . . . [such an argument would send the message;] if you want to influence U.S. legislation, make sure to buy up U.S. debt, and then threaten to sell that debt any time the U.S. Congress does something you don’t like. We absolutely cannot be intimidated or bend to that type of threat.”

Senator Corker commented that he had “tremendous concerns about the sovereign immunity procedures that could be set in place by other countries as a result of this vote” and that it could have adverse consequences for the U.S. “standing in the world.” He was troubled by “the concerns [of] . . . the head of our Joint Chiefs” and of the President. He also thought it would be better “to establish some type of tribunal, where experts could come in and really identify what actually happened on discretionary decisions that took place within the country of Saudi Arabia” with respect to the pending 9/11 claims.

As a result, Senator Corker prepared a bipartisan letter to the Senate sponsors of JASTA (Senators Cornyn and Schumer).[10] It expressed concern about “potential unintended consequences that may result from . . . [JASTA] for the national security and foreign policy of the United States. If other nations respond to this bill by weakening U.S. sovereign immunity protections, then the [U.S.] could face private lawsuits in foreign courts as a result of important military or intelligence activities. We would hope to work with you in a constructive manner to appropriately mitigate those unintended consequences.”

One of the signers of this letter and the Ranking Member of the Senate Foreign Relations Committee, Senator Benjamin Cardin (Dem., DE), recognized “that there are risk factors in terms of how other countries may respond to the enactment of JASTA. [11] As a nation with hundreds of thousands of troops that serve abroad, not to mention multiple foreign bases and facilities, the United States of America is a country that benefits from sovereign immunity principles that protect our country and our country’s interests, its Armed Forces, government officials, and litigation in foreign courts. Therefore, there is a concern of unintended consequences, including irresponsible applications to U.S. international activities by other countries. While I have faith and confidence in the American legal system, the same faith does not necessarily extend to the fairness of legal systems of other countries that may claim they are taking similar actions against America when they are not. So [as the Ranking Member of the Foreign Relations Committee, I will] follow closely how other countries respond and try to mitigate the risks of the [U.S.] abroad” and will “explore with my colleagues the possibility of whether we need or will need additional legislative action.”

Another signer of the letter, Senator Feinstein, expressed her “key concern relates to the exception to the immunity of foreign governments.”[12] “Proponents of this bill argue that the exception is narrow, that it applies only if a foreign nation, with ill intent, takes unlawful actions that cause an act of terrorism on our soil. But other nations that are strongly opposed to American actions abroad could respond by using the bill as an excuse to adopt laws that target our own government’s actions. A September 15 Washington Post editorial said it well: ‘It is not a far-fetched concern, given this country’s global use of intelligence agents, Special Operations forces and drones, all of which could be construed as state-sponsored `terrorism’ when convenient.’ Those of us on the Senate Intelligence Committee know that, if other countries respond to JASTA in this manner, it could jeopardize our government’s actions abroad. If that happens, it is likely that our government would be forced to defend against private lawsuits, which could pose a threat to our national security.” Therefore, she was interested in limiting JASTA to “the September 11 attacks” and to “those directly impacted by an attack–including individuals, their estates and property damage, rather than companies with only tangential connections.”

U.S. House of Representatives’ Overriding the Veto 

On the afternoon of September 28 the House voted to override the veto of JASTA by a vote of 348 (225 Republicans and 123 Democrats) to 77 (18 Republicans and 59 Democrats).[13]

The supporters of override were led by Representative Robert Goodlatte (Rep., VA), the Chair of the House Judiciary Committee, who asserted, “The changes JASTA makes to existing law are not dramatic, nor are they sweeping.. . .The President’s objections . . . have no basis under U.S. or international law.. . . Consistent with customary international law, JASTA, for terrorism cases, removes the current requirement that the entire tort occur within the United States and replaces it with a rule that only the physical injury or death must occur on U.S. soil.” Later in the debate he claimed (erroneously as explained in n.14) that his argument was supported by “Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Properties [which] would apply the territorial tort exception if the act or omission occurred in whole or in part in the territory of the state exercising jurisdiction.”[14]

Others who supported the override and who spoke during the debate were Representatives Peter King (Rep., NY), Sheila Jackson Lee (Dem., TX), Leonard Lance (Rep., NJ), David Donovan (Rep., NY), Carolyn Maloney (Dem., NY) and Jerrold Nadler (Dem. FL).

Leading the opposition to the override were Representative M. “Mac” Thornberry (Rep., TX), the Chair of the House Armed Services Committee, and Representative John Conyers (Dem., MI). Other opponents of override who spoke during the debate were Representatives Eddie Bernice Johnson (Dem., TX), David Jolly (Rep., FL), Betty McCollum (Dem., MN), Robert Scott (Dem., VA) and Earl Blumenauer (Dem., NY).

Thornberry expressed concern for the possible erosion of sovereign immunity, which is “one of the key protections that the military, diplomats, and intelligence community of the [U.S.] has around the world. Once that doctrine gets eroded, then there is less protection, and . . . the [U.S.], has more at stake in having our people protected than any other country because we have more people around the world than anyone else.” Thornberry also quoted from a letter to him from Joseph F. Dunford, Jr., General, U.S. Marine Corps. and Chairman of the Joint Chiefs of Staff: `Any legislation that risks reciprocal treatment by foreign governments would increase the vulnerability of U.S. Service members to foreign legal action while acting in an official capacity.” This letter and a letter urging defeat of the override from Secretary of Defense Ash Carter were inserted into the House record.

Conyers supported the President’s reasons for his veto. “First, the President stated that [the bill] could undermine the effectiveness of our Nation’s national security and counterterrorism efforts. For instance, other nations may become more reluctant to share sensitive intelligence in light of the greater risk that such information may be revealed in litigation.   Moreover, the President raised the concern that this legislation would effectively allow non-expert private litigants and courts, rather than national security and foreign policy experts, to determine key foreign and national security policy questions like which states are sponsors of terrorism.   Second, the President’s assertion that enactment of[the bill]may lead to retaliation by other countries against the [U.S.] given the breadth of our interests and the expansive reach of our global activities.   So while it seems likely at this juncture that [the bill] will be enacted over the President’s veto, I remain hopeful that we can continue to work toward the enactment of subsequent legislation to address the President’s concerns.”

Conyers also cited others who called for sustaining the President’s veto: Michael Mukasey, the former Attorney General under George W. Bush; Stephen Hadley, the former National Security Adviser for that President; Richard Clarke, the former White House counterterrorism adviser for Presidents Bill Clinton and George W. Bush; and Thomas Pickering, the former [U.S.] Ambassador to the United Nations.

Representative Scott said, “JASTA abrogates a core principle in international law–foreign sovereign immunity. There are already several exceptions to this immunity recognized by our Nation and others, but JASTA goes much further than any present exception or recognized practice of any national law…. One fundamental indication of fairness of legislation is not how it would work to our benefit, but what we would think if it were used against us. If the [U.S.] decides to allow our citizens to haul foreign nations into American courts, what would we think of other nations enacting legislation allowing their citizens to do the same thing to us? Obviously, we would not want to put our diplomats, military, and private companies at that risk.”

Scott also pointed out that “JASTA does not make clear how the evidence would be gathered to help build a credible case against a foreign nation. Would the plaintiffs be able to subpoena foreign officials? Or would the U.S. Department of State officials have to testify? Would . . . [the U.S.] be required to expose sensitive materials in order to help American citizens prove their case? Again, how would we feel about foreign judges and juries deciding whether or not the [U.S.] sponsored terrorism? There are also questions about how the judgment under JASTA would be enforced. The legislation does not address how a court would enforce the judgment. Could foreign assets be attached? How would this process work if other countries enacted similar legislation? Would U.S. assets all over the world be subject to attachment to satisfy the foreign jury verdicts?”

Jolly emphasized that “the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the CIA Director, and the Chairman of the House Armed Services Committee [Representative Thornberry] have all issued statements against this legislation.”

White House Reaction to the Overriding of the Veto

On the same day as this Senate vote and before the House voted on the same bill later that day, White House Press Secretary, Josh Earnest, said, “I would venture to say that this is the single-most embarrassing thing that the United States Senate has done possibly since 1983. You had at least one prominent Republican senator quoted today saying that . . . the members of the Senate Judiciary Committee were not quite sure what the bill actually did.  And to have members of the United States Senate only recently informed of the negative impact of this bill on our service members and our diplomats is, in itself, embarrassing.  For those senators then to move forward in overriding the President’s veto that would prevent those negative consequences is an abdication of their basic responsibilities as elected representatives of the American people.”[15]

Furthermore, said the Press Secretary, “these senators are going to have to answer their own conscience and their constituents as they account for their actions today.  You’ve got to give some credit to Harry Reid.  He showed some courage.  The same can’t be said for the other 96 members of the Senate who voted today.”

The same day President Obama on CNN said that a few lawmakers who backed the bill weren’t aware of its potential impact and that he wished Congress “had done what’s hard.” CIA Director John Brennan said he was concerned about how Saudi Arabia, a key U.S. ally in the Middle East, would interpret the bill. He said the Saudis provide significant amounts of information to the U.S. to help foil extremist plots. “It would be an absolute shame if this legislation, in any way, influenced the Saudi willingness to continue to be among our best counterterrorism partners,” Brennan said.[16]

On September 29, after the House had voted and JASTA became law, Press Secretary Earnest added, “I think what we’ve seen in the United States Congress is a pretty classic case of rapid-onset buyer’s remorse.  Within minutes of casting their vote to put that bill into law, you had members of the United States Senate — some 28 of them — write a letter expressing deep concern about the potential impact of the bill they just passed.  The suggestion on the part of some members of the Senate was that they didn’t know what they were voting for, that they didn’t understand the negative consequences of the bill. That’s a hard suggestion to take seriously when you had letters from President Bush’s attorney general and national security advisor warning about the consequences of the bill.  You had attorneys from our closest allies in Europe expressing their concerns about the impact of the bill.  You had a letter from some of America’s business leaders, including Chief Executive of GE, Jeffrey Immelt, warning about the potential economic consequences of the bill.  You had letters from the Director of the CIA, the Chairman of the Joint Chiefs of Staff, the Secretary of Defense and the Commander-in-Chief all warning about the potential impact of the bill.”[17]

Conclusion

As indicated above, certain Senators indicated their intent to pursue amendments to JASTA to remedy what they see as problems with the statute. This will be the subject of future posts.

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[1] White House, Veto Message from the President—S.2040 (Sept. 23, 2016) Afterwards Josh Earnest, the White House Press Secretary, discussed whether there was congressional opposition to overriding the veto and criticism of the bill from Saudi Arabia and “a lot of other countries, including the European Union. White House, Press Briefing by Press Secretary Josh Earnest, 9/26/16; White House, Press Briefing by Press Secretary Josh Earnest, 9/27/16.

[2] Assoc. Press, Lawmakers Vow to Override Obama’s Veto of Sept. 11 bill, N.Y. Times (Sept. 24, 2016).

[3] Cornyn, Cornyn Statement on President’s Veto of JASTA (Sept. 23, 2016).

[4] Demirjian & Ellperin, Congress overrides Obama’s veto of 9/11 bill, Wash, Post (Sept, 28, 2016).

[5] Cornyn, Cornyn Op-Ed: give 9/11 Families a Legal Avenue (Sept. 28, 2016).

[6] Editorial, The Risks of Sueing the Saudis for 9/11, N.Y. Times (Sept. 28, 2016)

[7] Steinhauer, Mazzetti & Davis, Congress Votes to Override Obama Veto on 9/11 Victims Bill, N.Y. Times (Sept. 28, 2016); Eilpirin & Demirjian, Congress thwarts Obama on bill allowing 9/11 lawsuits against Saudi Arabia, Wash. Post (Sept. 28, 2016).

[8] Cong. Rec. S6166-73 (Sept. 28, 2016).

[9] The prior post about the initial passage of JASTA started with the 2015 introduction of the bill and did not attempt to cover earlier versions of the bill or the process referenced by Senator Cornyn. Comments about this earlier process would be much appreciated.

[10] This bipartisan letter was signed by 15 Democrat Senators (Bennet, Cardin, Carper, Coons, Feinstein, Heitkamp, Hirono, McCaskill, Merkley, Nelson, Reed, Schatz, Shaheen, Udall and Warner), 12 Republican Senators (Alexander, Coats, Corker, Cotton, Flake, Graham, McCain, Risch, Roberts, Rounds, Sullivan and Thune) and Independent Senator King.

[11] Cardin, Cardin Statement on JASTA Veto Vote (Sept. 28, 2016).

[12] Feinstein, Feinstein Statement on Justice Against Sponsors of Terrorism Act (Sept. 28, 2016).

[13] Cong. Record H6023-32 (Sept. 28, 2016).

[14] The United Nations Convention on Jurisdictional Immunities of States and Property is certainly relevant to the issue of international law on the subject. Representative Thornberry, however, failed to quote the entirety of Article 12 of this treaty and thereby reached an erroneous conclusion that it supports JASTA. That Article states, “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” The portion in bold was not quoted by Thornberry.  Moreover, this treaty is not yet in force because its Article 30 requires 30 states to become parties thereto, and to date only 21 states have done so, and the U.S. has neither signed nor ratified this treaty.

[15] White House, Press Gaggle by Press Secretary Josh Earnest en route Fort Lee, Virginia 9/28/16.

[16] Assoc. Press, Congress Rebukes Obama, Overrides Veto of 9/11 Legislation, N.Y. Times (Sept. 28, 2016); Reuters, Congress Rejects Obama Veto, Saudi Sept. 11 Bill Becomes Law, N.Y. Times (Sept, 28, 2016).

[17] White House, Press Briefing by Press Secretary Josh Earnest and Secretary of Education King (Sept. 29, 2016).