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).

 

President Obama Issues Presidential Policy Directive—United States-Cuba Normalization        

On October 14, U.S. President Barack Obama issued a “Presidential Policy Directive on U.S.-Cuba Normalization,” which is a document that promulgates presidential decisions on national security matters.[1] This post will set forth the entire Directive, and a subsequent post will comment on various aspects of the Directive.

This Directive: (1) describes the U.S. vision for normalization with Cuba and how our policy aligns with U.S. national security interests; (2) assesses progress toward normalization; (3) describes the current and foreseen strategic landscape; (4) describes priority objectives for normalization; and (5) directs actions required to implement this PPD.

“Vision for U.S.-Cuba Normalization”

 President Obama’s “vision for U.S.-Cuba normalization reflects [his] Administration’s support for broad-based economic growth, stability, increased people-to-people ties, and respect for human rights and democratic values in the region. In the long-term, the United States seeks the following end-states:”

“1. Enhanced security of the United States and U.S. citizens at home and abroad. We seek to ensure U.S. citizens traveling to Cuba are safe and secure and the [U.S.] is protected from: those seeking to exploit increased connectivity for illicit ends, irregular migration, and natural or man-made hazards. Our policy advances bilateral cooperation in areas of mutual interest, including diplomatic, agricultural, public health, and environmental matters, as well as disaster preparedness and response, law enforcement, migration, and other security and defense topics. Our policy also supports increased cooperation with Cuba on regional initiatives on behalf of these interests.”

“2. A prosperous, stable Cuba that offers economic opportunities to its people. Increased travel and economic interconnectedness supports improved livelihoods for the Cuban people, deeper economic engagement between our two countries, as well as the development of a private sector that provides greater economic opportunities for the Cuban people. Efforts by the Cuban authorities to liberalize economic policy would aid these goals and further enable broader engagement with different sectors of the Cuban economy. United States policy helps U.S. businesses gain access to Cuban markets and encourages the sustainable growth of the Cuban economy. The U.S. private sector, scientific and medical researchers, agriculture industry, foundations, and other groups have new avenues for collaboration that can provide opportunities for Cuban entrepreneurs, scientists, farmers, and other professionals. At the same time, increased access to the internet is boosting Cubans’ connectivity to the wider world and expanding the ability of the Cuban people, especially youth, to exchange information and ideas. The [U.S.] is prepared to support Cuban government policies that promote social equality and independent economic activity.”

“3. Increased respect for individual rights in Cuba. Even as we pursue normalization, we recognize we will continue to have differences with the Cuban government. We will continue to speak out in support of human rights, including the rights to freedoms of expression, religion, association, and peaceful assembly as we do around the world. Our policy is designed to support Cubans’ ability to exercise their universal human rights and fundamental freedoms, with the expectation that greater commerce will give a broader segment of the Cuban people the information and resources they need to achieve a prosperous and sustainable future. In pursuit of these objectives, we are not seeking to impose regime change on Cuba; we are, instead, promoting values that we support around the world while respecting that it is up to the Cuban people to make their own choices about their future.”

“4. Integration of Cuba into international and regional systems. We seek Cuban government participation in regional and international fora, including but not limited to, those related to the Organization of American States (OAS) and Summit of the Americas to advance mutually held member objectives. We believe that a Cuba that subscribes to the purposes and standards of such fora will benefit, over time, from bringing its domestic economic and political practices in line with international norms and globally accepted standards. Our policy strengthens the U.S. position in international systems by removing an irritant from our relationships with our allies and partners and gaining support for a rules-based order.”

“Progress Toward U.S.-Cuba Normalization”

“Since the [U.S.] announced on December 17, 2014, that it would chart a new course with Cuba, we have re-established diplomatic relations and have made progress toward the normalization of our bilateral relationship. We opened our respective embassies, six U.S. cabinet secretaries visited Havana, four Cuban ministers visited the United States, and I became the first sitting U.S. President to visit Cuba since 1928. We established a Bilateral Commission to prioritize areas of engagement, and we concluded non-binding arrangements on environmental protection, marine sanctuaries, public health and biomedical research, agriculture, counternarcotics, trade and travel security, civil aviation, direct transportation of mail, and hydrography. We launched dialogues or discussions on law enforcement cooperation, regulatory issues, economic issues, claims, and internet and telecommunications policy.”

“Given Cuba’s proximity to the United States, increased engagement by U.S. citizens, companies, and the nongovernmental sector holds extraordinary promise for supporting our national interests. Bearing in mind the limits imposed by the Cuban Liberty and Democratic (LIBERTAD) Solidarity Act of 1996 (“Libertad Act”) and other relevant statutes, the Departments of the Treasury and Commerce implemented six packages of regulatory amendments to the Cuba sanctions program, easing restrictions on travel, trade, and financial transactions. [U.S.] individuals, firms, and nongovernmental organizations are availing themselves of these regulatory changes to visit Cuba, and authorized travel to Cuba increased by more than 75 percent from 2014 to 2015. Future U.S. citizen travel will be supported by scheduled air service, which began in August 2016, and the first U.S. cruise liner visited Cuban ports in May 2016. We also commenced direct transportation of mail between our two countries, and U.S. telecommunications firms established direct voice and roaming agreements with Cuba. For its part, the Cuban government has continued to pursue incremental economic reforms and launched more than 100 public Wi-Fi hotspots across the island.”

“These developments lay the foundation for long-term engagement with Cuba that advances U.S. interests. But we have a great deal more to do to build on that foundation based on a realistic assessment of the strategic landscape surrounding normalization.”

“Strategic Landscape”

“Cuba is experiencing several transitions in areas such as leadership, the economy, technological development, civil society, and regional and global integration. Cuba’s leaders recognize the need to transition to the next generation, but they prioritize gradual, incremental changes to ensure stability.”

“Cuba has important economic potential rooted in the dynamism of its people, as well as a sustained commitment in areas like education and health care. Yet the Cuban government faces significant economic challenges, including eliminating its dual-exchange-rate system, making its state-run enterprises more efficient and transparent, developing a financial system that provides expanded services to individuals and the private sector, and reducing its reliance on foreign subsidies. Cuba remains highly dependent on food and energy imports, yet must cope with limited sources of hard currency to pay for import needs. Significant emigration of working-age Cubans further exacerbates Cuba’s demographic problem of a rapidly aging population.”

“A series of statutes limits U.S. economic engagement with Cuba, precluding a complete lifting of restrictions on U.S. travel to Cuba, prohibiting United States Government export assistance and the provision of U.S. credit for Cuban purchases of agricultural commodities, and requiring that the embargo not be suspended or terminated unless the President determines that a transition or democratically elected government has come to power in Cuba.”

“Due to Cuba’s legal, political, and regulatory constraints, its economy is not generating adequate foreign exchange to purchase U.S. exports that could flow from the easing of the embargo. Even if the U.S. Congress were to lift the embargo, Cubans would not realize their potential without continued economic reform in Cuba. Cuban government regulations and opaque procurement practices hamper transactions with U.S. companies that would be permitted under U.S. law.”

“Normalization efforts have raised Cubans’ expectations for greater economic opportunities. With an estimated 1 in 4 working Cubans engaged in entrepreneurship, a dynamic, independent private sector is emerging. Expansion of the private sector has increased resources for individual Cubans and created nascent openings for Cuban entrepreneurs to engage with U.S. firms and nongovernmental organizations. We take note of the Cuban government’s limited, but meaningful steps to expand legal protections and opportunities for small- and medium-sized businesses, which, if expanded and sustained, will improve the investment climate.”

“Cuba is not a member of international financial institutions (IFIs), such as the International Monetary Fund, the World Bank, and the Inter-American Development Bank, which could provide expertise and potentially finance economic reforms and viable investment projects.”

“Although Cuba has reached agreement with several creditor nations on bilateral debt relief through restructuring and forgiveness, it remains in default to the United States Government on pre-Cuban revolution bilateral debts and does not participate in international capital markets. Cuba and the United States are both members of the World Trade Organization (WTO); however, neither country applies the agreement to the other because of the U.S. embargo toward Cuba.”

“Rapprochement has enabled us to increase our engagement with Cuba on regional issues such as the Colombia peace process and healthcare in Haiti, and has undermined an historic rallying point for regimes critical of the [U.S.]. Although Cuba has expressed no interest in participating in the OAS, it did attend the Summit of the Americas in 2015. We also welcome engagement between Cuba and other U.S. allies from around the world, including our European and Asian treaty allies. At the same time, we recognize that Cuba and the [U.S.] will continue to have differences on many regional and global issues.”

“U.S. engagement with the Cuban government will also be constrained by Cuba’s continued repression of civil and political liberties. We anticipate the Cuban government will continue to object to U.S. migration policies and operations, democracy programs, Radio and TV Marti, the U.S. presence at the Guantanamo Bay Naval Station, and the embargo. The [U.S.] Government has no intention to alter the existing lease treaty and other arrangements related to the Guantanamo Bay Naval Station, which enables the [U.S.] to enhance and preserve regional security.”

“In this strategic environment, the policies and actions the [U.S.] pursues to advance our vision for U.S.-Cuba normalization will significantly shape the future of bilateral and regional relations, as well as our shared security and prosperity.”

“U.S. Objectives for the Medium-Term U.S.-Cuba Relationship”

“To advance the four end-state goals associated with our strategic vision for U.S.-Cuba normalization, the [U.S.] will move concurrently on the following six priority objectives:

1. Government-to-Government Interaction

“We will continue high-level and technical engagement in areas of mutual interest, including agriculture, the economy and small businesses, transportation, science and technology, environment, climate, health, law enforcement, migration, national security, disaster preparedness and response, and counterterrorism. Through the Bilateral Commission, we will identify and prioritize areas of collaboration and engagement that advance our end-state goals. Stronger diplomatic ties will enable constructive engagement on bilateral differences, including our democracy and broadcasting programs, while protecting our interests and assets, such as the Guantanamo Bay Naval Station. We will utilize engagement to urge Cuba to make demonstrable progress on human rights and religious freedom. As the [U.S.] and Cuban governments build trust through more frequent engagement, we will increasingly conduct working-level interactions between Cuban ministries and U.S. agencies and departments that lessen the need for high-level conversations on routine matters. Given the lack of diplomatic relations over the past several decades, we will seek broad engagement across the Cuban government, including ministries and local officials. When appropriate and legally available, we will engage with Cuba to normalize trade relations fully.”

“2. Engagement and Connectivity

“The [U.S.] will continue to encourage people-to-people linkages through government and privately sponsored exchanges, including those involving educational, cultural, business, science, environment, technology, and sports. As permitted by law, we will continue to support the development of scheduled and chartered air service and maritime links, including ferries. An ongoing partnership with the Cuban-American community is of particular importance given Cuban-Americans’ strong family and socio-cultural ties, as well as their natural role as citizen-ambassadors. We will facilitate opportunities for Cuban-Americans to rebuild and create new bonds with family to support reconciliation. To facilitate Cuba’s goal of increasing its internet access from 5 percent to 50 percent of the population by 2020, we will seek the establishment of a bilateral working group to expand internet connectivity. We will seek opportunities that enable U.S. foundations and universities to establish linkages with Cuba.”

3. Expanded Commerce

“The [U.S.] Government will seek to expand opportunities for U.S. companies to engage with Cuba. The embargo is outdated and should be lifted. My Administration has repeatedly called upon the Congress to lift the embargo, and we will continue to work toward that goal. While the embargo remains in place, our role will be to pursue policies that enable authorized U.S. private sector engagement with Cuba’s emerging private sector and with state-owned enterprises that provide goods and services to the Cuban people. Law enforcement cooperation will ensure that authorized commerce and authorized travelers move rapidly between the [U.S.] and Cuba. Although we recognize the priority given to state-owned enterprises in the Cuban model, we seek to encourage reforms that align these entities with international norms, especially transparency.”

“[U.S.] regulatory changes have created space for the Cuban government to introduce comparable changes. In tandem with the Department of the Treasury’s regulatory change to expand Cuba’s access to the U.S. financial system and U.S. dollar transit accounts, the Cuban government announced in early 2016 plans to eliminate the 10 percent penalty on U.S. dollar conversion transactions, subject to improved access to the international banking system. We will sustain private and public efforts to explain our regulatory changes to U.S. firms and banks, Cuban entrepreneurs, and the Cuban government.”

4. Economic Reform

“While the Cuban government pursues its economic goals based on its national priorities, we will utilize our expanded cooperation to support further economic reforms by the Cuban government. Recent exchanges among financial service institutions and regulators have provided greater mutual understanding of our respective financial systems and economic priorities. We will undertake government-to-government dialogues to discuss options for macro- and microeconomic reform, with the goal of connecting the changes in U.S. policy with Cuban reforms in a manner that creates opportunity for U.S. firms and the Cuban people.”

“If and when the Congress lifts the embargo, my Administration will engage with the Congress and stakeholders on preparatory commercial and economic exchanges and dialogues. My Administration would then similarly engage the Congress on the substance and timing of a new bilateral commercial agreement to address remaining statutory trade requirements.”

5. Respect for Universal Human Rights, Fundamental Freedoms, and Democratic Values

We will not pursue regime change in Cuba. We will continue to make clear that the [U.S.] cannot impose a different model on Cuba because the future of Cuba is up to the Cuban people. We seek greater Cuban government respect for universal human rights and fundamental freedoms for every individual. Progress in this area will have a positive impact on the other objectives. We will encourage the Cuban government to respect human rights; support Cuba’s emerging, broad-based civil society; and encourage partners and nongovernmental actors to join us in advocating for reforms. While remaining committed to supporting democratic activists as we do around the world, we will also engage community leaders, bloggers, activists, and other social issue leaders who can contribute to Cuba’s internal dialogue on civic participation. We will continue to pursue engagements with civil society through the U.S. Embassy in Havana and during official [U.S.] Government visits to Cuba. We will seek to institutionalize a regular human rights dialogue with the Cuban government to advance progress on human rights. We will pursue democracy programming that is transparent and consistent with programming in other similarly situated societies around the world. We will utilize our increased ability to engage regional partners, both bilaterally and through regional bodies, to encourage respect for human rights in Cuba. We will consult with nongovernmental actors such as the Catholic Church and other religious institutions. Finally, we will work with the European Union and likeminded international organizations and countries to encourage the Cuban government to respect universal values.”

6. Cuban Integration into International and Regional Systems

“We will expand dialogue with Cuba in the organizations in which it already holds membership, such as the WTO and the World Customs Organization (WCO), and we will encourage Cuba to move toward rules-based engagement, subject to statutory requirements. We will encourage Cuba to bring its legal framework, particularly its commercial law, in line with international standards. We will encourage Cuba to meet WCO standards for supply chain security. To the extent permitted by and consistent with applicable law, we will facilitate integration into international bodies, including through the use of technical assistance programs. We will pursue cooperation with Cuba on regional and global issues (e.g., combating the Ebola outbreak and the Colombia peace process). Ending the embargo and satisfying other statutory requirements relating to trade will allow the [U.S.] to normalize trade relations with Cuba.”

“Policy Implementation”

1. Roles and Responsibilities

“To facilitate the effective implementation of this directive, departments and agencies will have the following roles and responsibilities, consistent with the relevant legal authorities and limits:”

The National Security Council (NSC) staff will provide ongoing policy coordination and oversight of the implementation of this PPD and the overall Cuba strategy as necessary.”

The Department of State will continue to be responsible for formulation of U.S. policy toward and coordination of relations with Cuba. This includes supporting the operations of Embassy Havana and ensuring it has adequate resources and staffing. Other responsibilities include the issuance of nonimmigrant and immigrant visas, refugee processing, promotion of educational and cultural exchanges, coordination of democracy programs, and political and economic reporting. State will continue to lead the U.S.-Cuba Bilateral Commission and coordinate a number of dialogues, such as the Law Enforcement Dialogue, annual migration talks, and meetings to resolve outstanding claims.”

“State will continue to co-lead efforts with the U.S. Agency for International Development to ensure democracy programming is transparent and consistent with programming in other similarly situated societies. State will coordinate efforts to advance science and technology cooperation with Cuba. State will support telecommunications and internet access growth in Cuba and provide foreign policy guidance to the Departments of Commerce and the Treasury on certain exports, financial transactions, and other license applications.”

The U.S. Mission to the United Nations (USUN), in coordination with State, will oversee multilateral issues involving Cuba at the [U.N.]. USUN will identify areas of possible collaboration with Cuba that could help foster a more collaborative relationship between the [U.S.] and Cuba at the [U.N.[. The USUN will also participate in discussions regarding the annual Cuban embargo resolution at the [U.N.], as our bilateral relationship continues to develop in a positive trajectory.”

The Department of the Treasury is responsible for implementation of the economic embargo restrictions and licensing policies. The Treasury will continue its outreach to help the public, businesses, and financial institutions understand the regulatory changes. The Treasury will continue to review and respond to public questions and feedback on regulations and public guidance that could be further clarified and to discuss with State any novel license requests that the Treasury receives from the public to determine whether such requests are consistent with the regulatory changes and existing law. The Treasury will make use of available channels for bilateral dialogue to understand Cuba’s economic and financial system and encourage reforms and will continue to engage in dialogue with the Cuban government about our regulatory changes.”

The Department of Commerce will continue to support the development of the Cuban private sector, entrepreneurship, commercial law development, and intellectual property rights as well as environmental protection and storm prediction. If statutory restrictions are lifted, Commerce will promote increased trade with Cuba by providing export assistance to U.S. companies. In the meantime, Commerce will continue a robust outreach effort to ensure that U.S. companies understand that U.S. regulatory changes provide new opportunities to obtain licenses or use license exceptions to increase authorized exports to Cuba, including to Cuban state-owned enterprises that provide goods and services to meet the needs of the Cuban people. Additionally, Commerce will continue to engage in dialogue with the Cuban government about our regulatory changes, as well as the need for simplification of the Cuban import process, transparency in Cuban business regulations, and other steps that will lead to full realization of the benefits of our regulatory changes.”

The Department of Defense (DOD) will continue to take steps to expand the defense relationship with Cuba where it will advance U.S. interests, with an initial focus on humanitarian assistance, disaster relief, and counternarcotics in the Caribbean. The DOD will support Cuba’s inclusion in the inter-American defense system and regional security and defense conferences, which will give Cuba a stake in hemispheric stability. The DOD will continue to make contingency preparations and support the capacity of the Department of Homeland Security and State to address mass migration and maritime migration issues pursuant to Executive Orders 12807 and 13276 and consistent with other applicable interagency guidance and strategy.”

The Department of Homeland Security (DHS) will engage, together with the Department of Justice, with the Cuban government to combat terrorism and transnational organized crime. In support of U.S. security and foreign policy objectives, DHS will develop protocols for investigative cooperation with Cuba in coordination with other departments and agencies. The DHS will strengthen the security and efficiency of cross-border supply chains and travel systems in support of people-to-people engagement and authorized U.S. trade with the Cuban private sector. The DHS will safeguard the integrity of the U.S. immigration system, to include the facilitation of lawful immigration and ensure protection of refugees. The Secretary of Homeland Security, the United States Government lead for a maritime migration or mass migration, with support from the Secretaries of State and Defense, will address a maritime migration or mass migration pursuant to Executive Orders 12807 and 13276 and consistent with applicable interagency guidance and strategy.”

The Department of Justice (DOJ) will engage, together with DHS, with the Cuban government to combat terrorism and transnational organized crime. The DOJ will work with Cuba to expand security and law enforcement cooperation, increase information sharing, and share best practices with Cuban counterparts. This work will build upon, and strengthen, current law enforcement cooperation with Cuba under the umbrella of the U.S.-Cuba Law Enforcement Dialogue and its various working groups, which focus on counterterrorism, counternarcotics, cybercrime, human trafficking, and other areas of criminal activity.”

The Small Business Administration (SBA) will continue to engage with the Cuban government, entrepreneurs, small businesses, and cooperative enterprises. The SBA will support exchanges with the Cuban government in areas of mutual interest, particularly on formalization of small businesses and to spur the growth of new enterprises.”

The Office of the United States Trade Representative will provide trade policy coordination in international fora and, consistent with statutory requirements and restrictions, prepare for negotiations to normalize and expand U.S.-Cuba trade.”

The Department of Agriculture (USDA) will work to increase U.S. food and agricultural exports to Cuba by building market opportunities, improving the competitive position of U.S. agriculture, and building Cuba’s food security and agricultural capacity, while protecting plant, animal, and human health. USDA will work with the Government of Cuba to advance cooperation outlined in the U.S.-Cuba agricultural memorandum of understanding signed in March 2016. The USDA will build the U.S.-Cuba trade and development relationship to the extent permitted by and consistent with applicable law.”

The Department of Health and Human Services (HHS), in accordance with the June 2016 memorandum of understanding between HHS and the Ministry of Public Health of the Republic of Cuba, will collaborate with Cuban counterparts in the areas of public health, research, and biomedical sciences, including collaboration to confront the Zika virus, dengue, chikungunya, and other arboviruses. The HHS will promote joint work, such as development of vaccines, treatments, and diagnostics; partner with Cuba to prevent, detect, and respond to infectious disease outbreaks; collaborate in the field of cancer control, treatment programs, and joint research; and exchange best practices related to access to healthcare.”

The United States Agency for International Development (USAID) will coordinate with departments and agencies the [U.S.] Government’s response to unplanned environmental occurrences, such as natural or manmade disasters. The USAID will co-lead efforts with State to ensure that democracy programming is transparent and consistent with programming in other similarly situated societies.”

The Department of Transportation (DOT) will continue to develop air and surface transportation links between the [U.S.] and Cuba in support of transportation providers, authorized travelers, and commerce, while providing required regulatory and safety oversight of transportation providers and systems.”

The Office of the Director of National Intelligence (DNI) will support broader [U.S.] Government efforts to normalize relations with Cuba, with Intelligence Community elements working to find opportunities for engagement on areas of common interest through which we could exchange information on mutual threats with Cuban counterparts.”

The Department of the Interior (DOI) will continue cooperation with Cuba on marine protected areas and continue to engage Cuban counterparts to finalize arrangements on wildlife conservation, terrestrial national protected areas, and seismic records.”

2. Congressional Outreach

Strong support in the Congress for U.S.-Cuba normalization would contribute to the speed and success of the aforementioned goals, particularly with respect to the embargo and adequate embassy staffing. We will seek to build support in the Congress to lift the embargo and other statutory constraints to enable expanded travel and commerce with Cuba and accelerate normalization. We will regularly engage with Members of Congress and staff on challenges and opportunities in Cuba, advocate for [U.S.] Government policies and sufficient staff and resources to implement the aforementioned goals and policy priorities, and encourage and facilitate congressional travel to the region.”

3. Monitoring and Oversight

“The Interagency Policy Committee (IPC), or its future equivalent, will have primary responsibility for coordinating and overseeing the implementation of this policy. The NSC staff will convene regular IPC and Deputies Committee meetings as necessary to monitor implementation and resolve obstacles to progress. The following departments and agencies will designate senior individuals responsible for managing policy implementation in their agency: State, the Treasury, Commerce, DOD (Office of the Secretary of Defense and Joint Staff), DHS, DOJ, USDA, HHS, DOT, USUN, the Office of the United States Trade Representative, USAID, SBA, and DNI.”

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[1] White House, Presidential Policy Directive—United States-Cuba Normalization (Oct. 14, 2016).

Long History of Racism in U.S. Laws Regarding United States Citizenship

To my great amazement, I recently have discovered that the United States has had a long history of racism in its statutes regarding U.S. citizenship. In the words of Blum and Haney-Lopez, “From this country’s inception [in 1789-1790], the laws regulating who was or could become a citizen were tainted by racial prejudice. Birthright citizenship, the automatic acquisition of citizenship by virtue of birth, was tied to race [from 1790] until 1940. Naturalized citizenship, the acquisition of citizenship by any means other than through birth, was conditioned on race [from 1790] until 1952.”[1]

The following is a brief summary of these laws.

Birthright Citizenship

“The U.S. Constitution as ratified did not define the citizenry, probably because it was assumed that [U.S. law included] the English common law rule of jus soli,” i.e., “citizenship accrues to ‘all’ born within a nation’s jurisdiction.”

The Supreme Court, however, in its now infamous 1857 decision in the Dred Scott case held that Scott, an enslaved Negro of the African race whose ancestors were brought to the U.S. and sold as slaves, and all other Blacks, free and enslaved, were not and never could be citizens because they were a “subordinate and inferior class of beings.” Therefore, Scott did not have standing to sue in federal court to claim a right to his freedom. (Scott v. Sanford, 60 U.S. 393 (1857).)

This was changed after the Civil War in the Civil Rights Act of 1866, 14 Stat. 27 (1866), which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” This was confirmed in Section 1 of the Fourteenth Amendment to the U.S. Constitution, adopted in 1868: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” https://www.law.cornell.edu/constitution/amendmentxiv

This statute and constitutional amendment, however, left two minorities in the cold on birthright citizenship.

The first group was children born in the U.S. to non-citizen parents. Their status was unclear until the U.S. Supreme Court in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), held that such children were birthright citizens of the U.S.

The second group was Native Americans who were born in the U.S. Here, the Supreme Court rendered a negative opinion in 1884 in Elk v. Wilkins, 112 U.S 94 (1884). It held that Native Americans owed allegiance to their tribes and thus did not acquire U.S. citizenship upon birth.

Thereafter Congress granted such citizenship in piecemeal fashion, tribe by tribe, until 1924, when it enacted the Indian Citizenship Act (Snyder Act), 43 Stat. 233 (1924), which stated “that all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”

This statute, however, left unclear whether it covered individuals born after its effective date. That issue was finally resolved in section 201(b) of the Nationality Act of 1940, which stated, “The following shall be nationals and citizens of the United States at birth . . . A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.”

Citizenship by Naturalization

Although the Constitution, as just noted, did not originally define the citizenry, it did make an explicit grant of authority to Congress to establish the criteria for granting citizenship after birth. That is found in Article I, Section 8 of the Constitution, which provides that Congress has the power “To establish an uniform Rule of Naturalization.” From the very start in 1789-1790 through 1952, Congress exercised this power in a manner that burdened naturalization laws with racial restrictions that tracked those in the law of birthright citizenship. This history can be seen in two periods: 1790-1870 and 1870-1952.

1790-1870

In 1790, only a few months after ratification of the Constitution, the very First Congress of the U.S. adopted the “Act to establish an uniform Rule of Naturalization,” 1 Stat. 103 (1790). It provided that naturalization was limited to immigrants who were “free white persons of good character.” (Emphasis added.) Although the statute did not define that term, it clearly excluded Native Americans, indentured servants, slaves, free blacks and Asians from this method of obtaining U.S. citizenship.

This sole requirement of being a “white person” for naturalization remained in the U.S. statutes until after the Civil War in 1870 when Congress adopted a statute that made it possible for naturalization for “aliens of African nativity and to persons of African descent.” This was contained in section 7 of An Act to amend the Naturalization Laws and to punish Crimes against the same, and for other purposes,” 16 Stat. 254 (1870).

In the 1870 congressional debate over this change, Senator Charles Sumner argued that racial barriers to naturalization should be struck altogether. However, racial prejudice against Native Americans and Asians forestalled the complete elimination of the racial prerequisites. For example, one senator argued against conferring “the rank, privileges, and immunities of citizenship upon the cruel savages [Native Americans] who destroyed [Minnesota’s] peaceful settlements and massacred the people with circumstances of atrocity too horrible to relate” in the U.S.-Dakota War of 1862.[2] Another senator wondered “’whether this door’ [of citizenship] shall now be thrown open to the Asiatic population,’ warning that to do so would spell for the Pacific coast ‘an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding or carrying it out.’”

1870-1952

Thus, as of 1870, being either “white” or “African nativity or descent” was a requirement for naturalization, and these options remained in U.S. law until 1952.

Other individuals, particularly those from Asia, were not eligible with this 1870 change in the law. Moreover, starting in 1882, Congress passed a series of laws that specifically excluded from naturalization individuals from China, Japan, India and the Philippines although the laws never specifically labeled them as “Asians” or “Orientals” or another supposed racial category. Thus, in 1922, the U.S. Supreme Court in Ozawa v. United States, 260 U.S. 178 (1922), held that a Japanese man was not “white” or Caucasian and thus ineligible for naturalization.

The next year in Thind v. United States, 261U.S. 204 (1923), the Court decided that an immigrant from India was not “Caucasian” and thus not eligible for naturalization. Important for the Court was the criterion of assimilability to separate the desirable immigrants from the undesirable ones: Asian Indians were distinguished from the swarthy European immigrants, who were deemed ‘readily amalgamated’ with the immigrants ‘already here.’

This limitation of naturalization to persons who were “white” or “African nativity or descent” eroded during World War II as a result of political pressures on the U.S. associated with its well-founded opposition to the horrendous racism of Nazism. In 1940 eligibility was extended to “descendants of races indigenous to the Western Hemisphere;” in 1943, to Chinese persons; and in 1946, to persons from the Philippines and India.

Thus, at the end of World War II, U.S. laws permitted naturalization for:

  • (1) white persons. persons of African nativity or descent, and persons of races indigenous to the continents of North or South America or adjacent islands and Filipino persons or persons of Filipino descent;
  • (2) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (1);
  • (3) Chinese persons or persons of Chinese descent; and persons of races indigenous to India; and
  • (4) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (3) or, either singly or in combination, as much as one-half blood of those classes and some additional blood of one of the classes specified in clause (1).

All of this complexity was eliminated in 1952 when Congress enacted the McCarran-Walter Act, 60 Stat. 163, 239 (1952), which states in section 311, “The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.”

Conclusion

 Although I was a history major at an excellent U.S. college, studied law for three years at a prominent U.S. law school, practiced law for 35 years, including some exposure to U.S. immigration law, and taught in another prominent law school for nine years, I am embarrassed to admit that until recently I was unaware of this history of racism in U.S. laws regarding U.S. citizenship beyond the post-Civil War changes regarding African-Americans.

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[1] Except for specific statutes cited and discussed, this account is primarily based upon Blum & Haney-Lopez, Racial Restrictions in the Law of Citizenship, Ch. 2. See also Braziel, History of Migration and Immigration Laws in the United States (Spring 2000).

[2] Prior posts to dwkcommentaries.com have discussed the U.S.-Dakota War of 1862: (1) The U.S.-Dakota War of 1862 (Nov. 3, 2012); (2) Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862 (May 21, 2013); ; (3) White Settler’s Contemporaneous Reaction to the U.S.-Dakota War of 1862 (Nov. 6, 2012); (4) U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862 (June 11, 2013); (5) President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians (June 24, 2013); (6) Commemoration of the 150th Anniversary of the U.S.-Dakota War of 1862 (Nov. 9. 2012); (7) Commemoration of the 150th Anniversary of the Hanging of the “Dakota 38” (Dec. 26, 2012); (8) Minneapolis and St. Paul Declare U.S.-Dakota War of 1862 “Genocide” (Jan 12, 2013); (9) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part I) (Nov. 18, 2012); (10) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part II) (Nov. 25, 2012); (11) Remembering the U.S.-Dakota War at Minneapolis’ Westminster Presbyterian Church (Part III) (Nov. 29, 2012); (12) Personal Reflections on the U.S.-Dakota War of 1862 (Dec. 10, 2012).