U.S. Establishes Task force To Coordinate Response to Health Problems of U.S. Diplomats in Cuba and China 

On May 23, the U.S. State Department established the Health Incidents Response Task Force to coordinate a response to unexplained health problems affecting some diplomats stationed in Havana, Cuba and in China.[1]

As the Department’s press release stated, this group will “direct a multi-agency response to the unexplained health incidents that have affected a number of U.S. government personnel and family members stationed overseas” and coordinate “Department and interagency activities, including identification and treatment of affected personnel and family members, investigation and risk mitigation, messaging, and diplomatic outreach.” This Task Force “includes interagency partners, such as the Departments of Health and Human Services, Commerce, Justice, Defense and Energy, as well as other members of the foreign affairs community.”

As has been noted in previous posts, 24 U.S. personnel and family members who had served in Cuba have been “medically-confirmed as having symptoms and clinical findings similar to those noted following concussion or minor traumatic brain injury.[2] In addition, on May 16, 2018, “a U.S. government employee serving in China was medically-confirmed with similar findings.”

This Task Force, at least initially, ignores the recent request by an eminent Cuban scientist for the creation of a joint task force of Canadian, Cuban and U.S. scientists and medical personnel to conduct an investigation of these medical issues.[3]

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[1] U.S. State Dep’t, Establishment of the Health Incidents Response Task Force (June 5, 2018); Reuters, U.S. Sets Up Task force Over Unexplained Diplomatic Heath Incidents, N.Y. Times (June 5, 2018).

[2] Previous posts about the medical incidents of U.S. diplomats in Cuba may be found in the “U.S. Diplomats Medical Problems in Cuba, 2017-18” section of List of Posts to dwkcommentaries—Topical: CUBA.

[3] Cuban Scientist Calls for U.S., Canada and Cuba Joint Investigation of Medical Problems of U.S. and Canadian Diplomats in Cuba, dwkcommentaries.com (May 30, 2018).

 

 

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

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

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

White House Press Briefing[1]

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

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

Biden and Yildirim Press Conference[2]

BCiden+Premier

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

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

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

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

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

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

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

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

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

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

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

Biden and Erdogan Press Conference[3]

BidenErdogan

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

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

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

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

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

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

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

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

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

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

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

Another White House Press Briefing[4]

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

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

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

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

State Department Daily Briefing[5]

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Turkey Presses U.S. to Extradite Muslim Cleric in U.S.

In the wake of the July 15 failed coup in Turkey, its President Recep Tayyip Erdogan and others in his government have been pressing the United States as soon as possible to extradite Fethullah Gülen, a Muslim cleric now living in Pennsylvania. This request is based upon Turkey’s allegations that Gülen was the mastermind of the attempted coup.[1] The U.S., however, has not done so, stressing instead that the established U.S. legal procedures for extradition need to be followed. Turkey publicly has not accepted this response and repeatedly has criticized the U.S. for not extraditing Gülen.[2]

As explained in an earlier post, extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.  In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”[3]

Here then is a preliminary analysis of the U.S. legal issues governing any such extradition request by Turkey.

The U.S.-Turkey Extradition Treaty[4]

 The U.S. and Turkey do have such an extradition treaty that was signed in Ankara, Turkey on June 7, 1979, and entered into force on January 1, 1981.

Under Article 1 of the treaty each party has an obligation “to surrender to each other, in accordance with the provisions and conditions laid down in this Treaty, all persons who are found within the territory of the Requested Party [here, the U.S.] and who are being prosecuted for or have been charged with an offense, or convicted of an offense, or are sought by the other Party [here, Turkey] for the enforcement of a judicially pronounced penalty for an offense . . . .”

Here, Mr. Gülen apparently is found in the U.S. (the territory of the Requested Party) and is being prosecuted by Turkey (the Requesting Party). Thus, the preliminary condition of the treaty is satisfied.

Thus, the next issue is where did Mr. Gülen allegedly commit the offense. Since he apparently has not been in Turkey for many years, it would appear that whatever alleged offense he allegedly has committed was done “outside the territory of the Requesting Party” (Turkey).

That presents the next issue. Is Mr. Gülen still a citizen and thus a “national” of Turkey (the Requesting Party)? If he is, it would appear that Turkey “has jurisdiction, according to its laws, to try” him. Thus, the issue becomes whether the U.S. has an obligation to extradite him under other provisions of the treaty.

If, on the other hand, Mr. Gülen no longer is a national of Turkey, then the issue is whether “the laws of the Requested Party [the U.S.] provide for the punishment of such an offense committed in similar circumstances” and if so, whether the U.S. has an obligation to extradite him under other provisions of the treaty. Analysis of this issue would have to start with the particulars of the criminal charges under Turkish law, which so far are not readily available in public sources.

A potential treaty-based ground for the U.S. refusing to extradite Gülen is found in Article 3 (a), which states that extradition is not required, “If the offense for which extradition is requested is regarded by the Requested Party [here, the U.S.] to be of a political character or an offense connected with such an offense; or if the Requested Party concludes that the request for extradition has, in fact, been made to prosecute or punish the person sought for an offense of a political character or on account of his political opinions.” However, Article 3 (a) goes on to provide that “any offense committed or attempted against a Head of State or a Head of Government or against a member of their families shall not be deemed to be an offense of a political character.” Here, the public statements by the Turkish government certainly indicate that this exception might apply.

Another potential ground for a U.S. refusal to extradite is found in Article 3 (e): “If the offense for which extradition is requested has, according to the laws of the Requested Party [here, the U.S.], been committed in its territory and has been or will be submitted to its appropriate judicial authorities for prosecution.” (Emphasis added.) This obviously would require a U.S. prosecution, which has not yet happened and probably will not happen, in my opinion.

Yet another potential ground for a U.S. refusal to extradite Gülen is in Article 4(1): “Neither of the Contracting Parties shall be bound to extradite its own nationals.” This would require him to be a naturalized U.S. citizen, and the public information does not indicate if Gülen is such a citizen. There was a source that said he obtained a U.S. “green card” or permanent residency status in 2001, and the U.S. ambassador to Turkey in January 2015 said he believed that Gülen was not a U.S. citizen.[5]

Article 7 of the treaty has great details about the evidence that needs to be submitted, here by Turkey, to initiate a formal request for extradition. The public information to date indicates that Turkey has provided the U.S. with certain information and evidence, but whether it satisfies the requirements of Article 7 is not clear.

U.S. Obligations Under the Torture Treaty

As discussed in prior posts, the U.S. is a party to the multilateral Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and under Article 2(1) of that treaty the U.S. is obligated not “to extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture [as defined in Article 1 of that treaty].”

As indicated in a prior post, the final step in the U.S. process of determining whether an individual should be extradited includes the Secretary of State examining whether extradition would violate the U.S. obligations under the torture treaty.

With respect to Turkey this is a serious concern.

A. Concerns Raised by the U.S. State Department

The most recent U.S. State Department report on human rights around the world said this about Turkey and torture in 2015.[6] “The [Turkish] constitution and law prohibit torture and other cruel, inhuman, or degrading treatment, but there were reports that some government officials employed them. Human rights organizations continued to report allegations of torture and abuse, especially of persons who were in police custody but not in a place of detention, and during demonstrations and transfers to prison, where such practices were more difficult to document.”

“[Turkish] Prosecutors investigated allegations of abuse and torture by security forces during the year but rarely indicted accused offenders. The National Human Rights Institution (NHRI) is administratively responsible for investigating human rights violations, including allegations of torture, excessive use of force, or extrajudicial killings. Domestic human rights organizations claimed the NHRI’s failure to follow through in investigating potential human rights violations deterred victims of abuse from filing complaints. Authorities regularly allowed officers accused of abuse to remain on duty during their trial.”

“Human Rights Watch (HRW) alleged in a report published in September [2015] that [Turkish] police abused detainees in August and September while responding to perceived security threats in the Southeast. It documented three cases in which police severely beat detainees, forced men to remain in kneeling positions for hours, and threatened them with torture and execution. In another case police detained a boy who had a severe gunshot wound and for several hours denied him medical treatment.”

“[Turkish] Police in several parts of the country sometimes used disproportionate force to disrupt protests, often leading to injury.”

“Human rights groups alleged that although torture and mistreatment in police custody decreased following installation of closed-circuit cameras in 2012, police continued to abuse detainees outside police stations. On July 13, [2015] a media report included footage from security cameras showing police beating 24-year-old university student Tevfik Caner Ertay multiple times in 2013 during the Gezi Park protests before transporting him to a police station in the trunk of a police car. Ertay suffered multiple injuries, including a broken nose. Police perpetrators included some of the same officers later accused of killing fellow university student Ali Ismail Korkmaz.”

“Some human rights observers reported detainees often refrained from reporting torture and abuse because they feared retaliation or believed complaining to authorities would be futile. Human rights organizations documented cases of prison guards beating inmates and maintained those arrested for ordinary crimes were as likely to suffer torture and mistreatment as those arrested for political offenses, such as speaking out against the government.”

“Through the first nine months of the year [2015], the [Turkish] Ministry of Justice reported 98 investigations regarding allegations of torture, 26 of which resulted in indictments.”

“The HRA reported receiving hundreds of allegations of torture and excessive use of force, including 213 cases through September 21 [2015] that involved the alleged abuse of detainees. For example, on January 29, in Sirnak, police reportedly beat four citizens whom they had detained during raids of their homes.”

B. Concerns Raised by the U.N. Committee Against Torture

As explained in an earlier post, the multilateral treaty against torture created a Committee Against Torture, one of whose responsibilities is to review the records of the parties to the treaty. That Committee on June 4, 2016, did just that for Turkey by issuing 20 numbered paragraphs of “principal subjects of concern.”[7] Here are the key concerns for purposes of the pending extradition request.

“The Committee is concerned that, despite the fact that the State party has amended its law to the effect that torture is no longer subject to a statute of limitations, it has not received sufficient information on prosecutions for torture, including in the context of cases involving allegations of torture that have been the subject of decisions of the European Court of Human Rights. The Committee is also concerned that there is a significant disparity between the high number of allegations of torture reported by non-governmental organizations and the data provided by the State party in its periodic report . . ., suggesting that not all allegations of torture have been investigated during the reporting period. Further, while the State party has undertaken many investigations into allegations of ill-treatment and excessive use of force by its officials, these have resulted in relatively few cases of disciplinary sanctions, and in fines and imprisonment in only a small number of cases. The Committee regrets that the State party did not provide information requested by the Committee on the six cases in which officials received sentences of imprisonment for ill-treatment between 2011 and 2013, nor on any cases in which officials received sentences of imprisonment for ill-treatment in 2014 or 2015. The Committee further regrets that State party did not respond to the concern raised by Committee members that law enforcement authorities have on many cases brought ‘countercharges,’ such as ‘resisting’ or ‘insulting’ police officers, against those individuals lodging complains of torture, ill-treatment and other police brutality. The Committee further regrets, with reference to its previous recommendations . . . that the State party has not yet created an independent State body to investigate complaints of torture and ill-treatment against law enforcement officers.”

“The Committee is seriously concerned about numerous credible reports of law enforcement officials engaging in torture and ill-treatment of detainees while responding to perceived and alleged security threats in the south-eastern part of the country . . . in the context of the resurgence of violence between the Turkish security forces and the Kurdistan Workers’ Party (PKK) following the breakdown of the peace process in 2015 and terrorist attacks perpetrated by individuals linked to the so-called Islamic State in Iraq and the Levant (ISIL). The Committee is further concerned at the reported impunity enjoyed by the perpetrators of such acts.”

“In addition to the allegations of torture and ill-treatment of detainees noted above, the Committee is concerned at reports it has received concerning the commission of extrajudicial killings of civilians by the State party’s authorities in the course of carrying out counter-terrorism operations in the south-eastern part of the country. The Committee regrets that the State party did not respond to requests for information as to whether investigations are under way into widely reported cases, such as the alleged killing by police snipers of two unarmed women, . . . on 8 September 2015. The Committee also regrets the failure by the State party to ensure accountability for the perpetrators of killings in cases previously raised by the Committee, such as the killing by security forces of . . . in November 2004, which was the subject of a decision of the European Court of Human Rights. The Committee is further concerned at reports that family members of those killed in clashes between security forces and members of armed groups have been denied the ability to retrieve their bodies, which has the effect of impeding investigations into the circumstances surrounding those deaths.”

“The Committee is concerned that allegations of excessive use of force against demonstrators have increased dramatically during the period under review. The Committee notes with regret that the State party’s investigations into the conduct of officials in the context of the 2013 Gezi Park protests in Istanbul and Ankara have not resulted in any prosecutions, despite the allegations of excessive use of force noted by observers, including the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee also regrets that the State party did not provide any data on the specific sentences, if any, that police officers tried on charges of excessive use of force during the reporting period had received. It further expresses concern over the recent legislative amendments in the Domestic Security Package granting additional powers to the police, in particular the expanded power to use firearms against demonstrators.”

“Although the Criminal Code defines torture as a specific offence, the Committee notes that the definition set out in article 94 [of the Code] is incomplete inasmuch as it fails to mention the purpose of the act in question. There is also no specific mention of the act of torture carried out in order to intimidate, to coerce or to obtain information or a confession from a person other than the person who was tortured.”

“While taking note of the legal safeguards enshrined in Turkish legislation, the Committee is concerned at recent amendments to the Code of Criminal Procedure, which give the police greater powers to detain individuals without judicial oversight during police custody. Placing suspects under constant video surveillance in their cells is another matter of concern.”

“The Committee is concerned at the ‘almost complete lack of accountability for cases of enforced disappearance’ in the State party and its ‘palpable lack of interest [in] seriously investigating, prosecuting and adjudicating these cases’, as reported by the Working Group on Enforced or Involuntary Disappearances in its preliminary observations publicly . . . announced at the end of its visit to Turkey from 14 to 18 March 2016. . . .”

“The Committee regrets the lack of complete information on suicides and other sudden deaths in detention facilities during the period under review.”

“The Committee is concerned by the restrictive conditions of detention for persons sentenced to aggravated life imprisonment, a sentence that was established after the abolition of the death penalty in 2004.”

C. Human Rights NGOs and Others

 Especially after the failed coup, human rights NGOs have raised increasing concerns about human rights in Turkey. These concerns were heightened by the Turkish government’s July 20 declaration of a state of emergency for the next three months. This gives the government the power to impose rule by decrees that are published and rushed through parliament for approval the same day. The possibility of review by the Constitutional Court is curbed. Human Rights Watch expressed its alarm over this development: “A state of emergency imposed where there are clear signs that the government is ready to crack down more broadly – combined with far more scope for unchecked executive action – is an alarming prospect. It risks further undermining democracy by providing a legal – if not justifiable – basis for a crackdown on rights.”[8]

Amnesty International (AI) on July 18 (only three days after the attempted coup) said that several Turkish “government officials have suggested reinstating the death penalty as punishment for those found responsible for the failed coup, and . . . [AI] is now investigating reports that detainees in Ankara and Istanbul have been subjected to a series of abuses, including ill-treatment in custody and being denied access to lawyers.” Two days later AI stated, “We are witnessing a crackdown of exceptional proportions in Turkey,” including freedom of expression.[9]

On July 24 AI reported that it had “gathered credible evidence that detainees in Turkey are being subjected to beatings and torture, including rape, in official and unofficial detention centers in the country.” According to these accounts, “police held detainees in stress positions, denied them food, water and medical treatment, verbally abused and threatened them and subjected them to beatings and torture, including rape and sexual assault.”[10]

On August 2 President Erdogan in a public speech challenged AI’s research underlying its assertion that some detainees had been tortured. In response AI’s Secretary General stated, ““The serious human rights violations documented by an . . . [AI] team on the ground in Turkey are alarming. These findings are based on detailed interviews with lawyers, doctors, family members and an eyewitness to torture in a detention facility.”[11]

A Turkish bar group in the capital of Ankara has stated that some of its members have reported alleged abuses of their clients in detention while other lawyers and human rights organizations have made similar allegations.[12]

The Turkey-U.S. Dispute Over the Requested Extradition of Gülen

Turkey’s Foreign Ministry has to be aware of the terms of its extradition treaty with the U.S. and the latter’s procedures for handling extradition requests. Thus, Erdogran and his government’s strident complaints about the U.S. not immediately granting the request for Gülen has to be intended to show Turkish citizens the strength and resolve of the regime. There even have been rumors that the U.S. was behind the attempted coup.

In any event, “Usually deeply polarized, the two sides [of Turkey’s population] are largely united in their opposition to military coups and the . . . [extradition] of Fethullah Gülen, a Muslim cleric who lives in self-exile in Pennsylvania and has been accused by Turkey of orchestrating the failed uprising.” There even is widespread support for the “sweeping purge of suspected followers of Mr. Gülen from the state bureaucracy and other professions” and Mr. Erdogan’s asking “Turks to inform on those they believe are connected to Mr. Gülen.”

Istanbul

The unity was on vivid display at a recent Istanbul rally of at least two million Turks who put aside their political differences to express solidarity.”[13] (To the right is a photograph of that rally.)

 

The U.S., however, needs to continue to resist acquiescence in these strong-arm tactics and to insist on following U.S. law and procedures for such requests. Secretary of State Kerry and President Obama have done just that.[14] So too have State Department spokespeople at daily press briefings.[15] This is not easy since the U.S. has a strong national security interest in maintaining Turkey as an ally in the fight against ISIS/ISIL.

Tomorrow U.S. Vice President Joe Biden will be visiting Turkey to see President Erdogan. The Associated Press opines that Biden will have difficulties in persuading Turkey that the U.S. values Turkey as a key NATO ally amid worrying signs that Turkey is flirting with having closer ties with Russia and that the U.S. and Turkish approaches to the Syrian conflict may be diverging.[16]

Today, says the Associated Press, a U.S. Justice Department team is meeting with Turkish officials in Ankara to discuss U.S. technical requirements of Turkey’s extradition request. This includes firm evidence of Gülen’s involvement in the coup whereas senior officials in the Obama administration say Turkey’s extradition requests to date have been based on allegations of other crimes against Gülen, not evidence of involvement in the coup attempt. A Turkish professor of international relations said that Turkish “people have an expectation that Gülen should be returned to Turkey immediately. If the extradition request is refused or delayed I’m afraid that’s going to have serious repercussions.”

The Washington Post editorial board urges the Vice President “to reassure Mr. Erdogan once again that the two nations share vital interests, not the least of which are fighting the Islamic State and ending the conflagration that has consumed Syria.” The Vice President also “should make clear he understands how much Turkish civilians are suffering from terrorist attacks” and “convince Mr. Erdogan that the United States does not desire to destabilize Turkey.”[17]

The Washington Post editorial further urges Biden “to candidly tell his host that the United States did not instigate the coup and that it will not relinquish Mr. Gülen to a witchhunt. Mr. Erdogan may not want to hear it, but he also should be reminded that crushing the rule of law will dim Turkey’s prospects.”

In the midst of this high-stakes squabble between the two countries, Gülen wrote an article for the New York Times in which he stated, “During the attempted military coup in Turkey this month, I condemned it in the strongest terms. ‘Government should be won through a process of free and fair elections, not force.’ I said, ‘I pray to God for Turkey, for Turkish citizens, and for all those currently in Turkey that this situation is resolved peacefully and quickly.’” President Erdogan’s suggestion that I was the mastermind of the coup “run[s] afoul of everything I believe in, it is also irresponsible and wrong. My philosophy — inclusive and pluralist Islam, dedicated to service to human beings from every faith — is antithetical to armed rebellion.”[18]

Moreover, Gülen said, “Throughout my life, I have publicly and privately denounced military interventions in domestic politics. In fact, I have been advocating for democracy for decades. Having suffered through four military coups in four decades in Turkey — and having been subjected by those military regimes to harassment and wrongful imprisonment — I would never want my fellow citizens to endure such an ordeal again. If somebody who appears to be [my] . . . sympathizer has been involved in an attempted coup, he betrays my ideals.”

Gülen concluded his article with this plea to the U.S. government. The U.S. “must not accommodate an autocrat [Erdogan] who is turning a failed putsch into a slow-motion coup of his own against constitutional government.”

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

[1] Reuters, Turkey to Ready Dossier for Gulen Extradition in 10 Days: Foreign Minister, N.Y. Times (July 23, 2016); Dugan, Turkey’s Failed Coup Puts Spotlight on a Rural Pennsylvania Town,W.S.J. (July 24, 2016); Fethullah Gullen Website, https://www.fgulen.com/en/Fethullah Güllen; Wikipedia. Fethullah Güllen; LaPorte, Watson & Tuysusz, Who is Fethullah Gulen, the man blamed for coup attempt in Turkey? CNN (July 16, 2016).

[2] E.g., Reuters, Turkey Says U.S. Could Extradite Cleric Gulen Quickly if Wants to, N.Y. Times (July 22, 2016); Assoc. Press, Turkey Criticizes U.S. Over Cleric Accused of Coup Plot, N.Y. Times (July 22, 2016); Kalin, The Coup Leader Must Be Held Accountable, N.Y. Times (July 24, 2016); Coker, Turkish Premier Demands U.S. Help with Gulen, W.S.J. (July 26, 2016).

[3] U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition.

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

[5] Fathullah Gullen, Wikipedia; U.S. Embassy to Turkey, Transcript of Ambassador Bass’s Interview with Sabah Ankara Bureau Chief Okan Muderrisoglu and Daily Sabah Correspondent Alli Unal (Jan. 12, 2015).

[6] U.S. State Dep’t, Country Reports on Human Rights Practices for 2015 (updated 4/18/16 & 6/14/16).

[7] Comm Agst Torture, Concluding observations on Turkey (June 2, 2016).

[8] Human Rights Watch, Dispatches: Turkey’s State of Emergency (July 22, 2016); Yeginsu & Arango, Turkey Cracks Down on Journalists, Its Next Target After Crushing the Coup, N.Y. Times (July 25, 2016).

[9] Amnesty Int’l, Human rights in grave danger following coup attempt and subsequent crackdown in Turkey (July 18, 2016); Amnesty Int’l, Media purge threatens freedom of expression in Turkey (July 20, 2016); Amnesty Int’l, Turkey: Intensified crackdown on media increases atmosphere of fear (July 28, 2016).

[10] Amnesty Int’l, Turkey: Independent monitors must be allowed to access detainees amid torture allegations (July 24, 2016).

[11] Amnesty Int’l, Turkey: Response to President Erdogan’s speech challenging Amnesty International’s findings (Aug. 2, 2016).

[12] Morris, ‘Law is suspended’: Turkish lawyers report abuse of coup detainees, Wash. Post (July 24, 2016).

[13] Yeginsu, After Failed Coup, Turkey Settles Into a Rare Period of Unity, N.Y. Times (Aug. 23, 2016).

[14] Assoc. Press, Kerry to Turkey: Send Us Evidence, Not Allegations on Gulen, N.Y. Times (July 20, 2016); White House, Remarks by President Obama and President Peno Nieto of Mexico in Joint Press Conference (July 22, 2016).

[15] E.g., State Dep’t, Daily Press Briefing (July 21, 2016); State Dep’t, Daily Press Briefing (July 22, 2016).

[16] Assoc. Press, U.S., Biden Face Tough Task to Mend Relations with Turkey, N.Y. Times (Aug. 23, 2016).

[17] Editorial, Biden needs to give Turkey’s Erdogan tough advice, Wash. Post (Aug. 22, 2016).

[18] Gulen, Fethullah Gulen: I Condemn All Threats to Turkey’s Democracy, N.Y. Times (July 25, 2016).

 

 

 

 

Extradition Has Become a Hot Topic for the United States

Extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.  In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”[1]

That process is now a hot topic in the U.S. Most recently Turkey is pressing the U.S. to extradite Fethullah Gulen, a Muslim cleric living in Pennsylvania, to Turkey to face charges of being involved in the attempted coup in that country. Another pending request, this from Spain, seeks the U.S. extradition of Inocente Orlando Montano Morales, a former Salvadoran military officer living in the U.S., to face criminal charges involving the 1989 murders of Jesuit priests in El Salvador. Extradition also is one of the many unresolved issues in the process of normalizing U.S.-Cuba relations: will Cuba extradite certain U.S. fugitives and will the U.S. do likewise for certain Cuban fugitives.[2]

Therefore, a better understanding of international extradition is necessary to follow these developments. Such a primer can be found in a 2001 U.S. State Department report to Congress and a recent U.S. government brief in the previously mentioned Spanish case for extradition of the former Salvadoran military officer from the U.S.[3] Assuming those sources are fair summaries of the process, this post omits citations to statutes and cases other than  to note that extradition is the subject of 18 U.S. Code, Chapter 209.

U.S. Extradition Treaties

U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties.[4] While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19th Century.

For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.

In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:

  • An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.
  • A similarly widely adopted exception is that extradition is not required where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).
  • U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.
  • Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals.   The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.
  • Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.

Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.

Other limitations on the obligation to extradite, which vary to some extent from treaty to treaty, would relate to requests for extradition for extraterritorial offenses where the two countries’ laws differ on the reach of jurisdiction over such crimes. In such cases, the U.S. seeks the greatest possible flexibility in our treaties to permit extradition for offenses that have taken place in whole or in part outside the territory of the requesting party.

U.S. Practice Regarding Foreign Government Requests for Extradition

The U.S. practice regarding foreign government requests for extradition involves the Department of State, the Department of Justice, a U.S. attorney, a U.S. district court and the Secretary of State.

  1. U.S. Department of State

The extradition process in the U.S. starts when the Department of State receives a request for extradition from a foreign country. That Department initially determines whether the request is governed by a treaty between the U.S. and that country, and if there is such a treaty and the request conforms to the treaty, that Department will prepare a declaration authenticating the request and send it to the U.S. Department of Justice’s Office of International Affairs.

  1. U.S. Department of Justice[5]

The Justice Department’s Office of International Affairs examines the foreign country’s request to determine if it contains all of the necessary information. If it does, the request is sent to the U.S. Attorney for the district where the subject of the request is located. Thereafter the Office’s attorneys will assist, as needed, the U.S. Attorney.

  1. U.S. Attorney

The U.S. Attorney then prepares and files a complaint with the local U.S. district court seeking a warrant for the individual’s arrest and certification that he or she may be extradited. The U.S. Attorney also files briefs and appears at any hearings in the district court in the case.

  1. U.S. District Court

The complaint, of course, is served upon the subject of the proceeding, who has a right to be represented by counsel and to contest the complaint.

The court then conducts a hearing to determine if there is probable cause that the subject has violated one or more of the criminal laws of the country seeking extradition. This is not a criminal trial, but like a preliminary hearing in a criminal case to determine if the evidence is sufficient to sustain the charge under the treaty’s provisions.

At such a hearing, the Federal Rules of Civil Procedure, Criminal Procedure and Evidence do not apply. Thus, the evidence may consist of hearsay and unsworn statements, and the judicial officer does not weigh conflicting evidence and make factual determinations. Instead the officer only decides whether there is competent evidence to support the belief that the individual has committed the charged offense under the other country’s laws.

At this hearing, the individual has no right to submit a defense to the charges or evidence that merely contradicts the other country’s proof or poses conflicts of credibility.

If the court finds after the hearing that (a) there is a criminal charge pending in the other country against the individual; (b) the offense underlying the charge is encompassed by the relevant treaty; (c) the individual is the person sought by the foreign government; (d) the evidence supports a finding that the crime for which the individual is sought was committed; (e) the evidence supports a finding that the individual committed the crime; and (f) the treaty has no other basis for denying extradition; then the court issues a certification that the individual is subject to extradition.

Such a certification may be challenged only by the individual’s filing a petition for a writ of habeas corpus to the same district court.[6]

If there is no petition or it is denied, the court sends the certification to the Secretary of State.

  1. U.S. Secretary of State[7]

Under U.S. statutes, the Secretary of State is the U.S. official responsible for determining whether to surrender a fugitive to a requesting state. In making this decision, the Secretary may consider issues properly raised before the extradition court or a habeas court as well as any humanitarian or other considerations for or against surrender, including whether surrender may violate the United States’ obligations under the Convention Against Torture. The Secretary also will consider any written materials submitted by the fugitive, his or her counsel, or other interested parties.

If the Secretary decides to extradite, the Secretary issues and serves a warrant for the extradition, and the individual is extradited to the other country.

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[1] U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition;Memorandum in Support of Motion To Dismiss Application for Habeas Corpus at 2, Montano Morales v. Elks, No. 5-16-HC-2066-BO (E.D.N.C. April 26, 2016).

[2] Future posts will examine the requests from Spain and Turkey while an earlier post reviewed a district court’s issuance of the certification for extradition to Spain of the former Salvadoran military officer: Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?, dwkcommentaries.com (Feb. 6, 2016). Another post reviewed U.S. and Cuban extradition issues: Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015).

[3] See n.1.

[4] The U.S. currently has bilateral extradition treaties with 109 countries.

[5] Justice Dep’t, Office of International Affairs.

[6] A prior post erroneously stated that such a certification was subject to an ordinary appeal to the relevant U.S. court of appeals.

[7] State Dep’t, Extradition.

United States and Cuba Hold Second Law Enforcement Dialogue   

On May 17, in Havana U.S. and Cuba representatives held their Second Law Enforcement Dialogue. The U.S. delegation was led by John S. Creamer, Department of State, Deputy Assistant Secretary for Western Hemisphere Affairs; Bruce Schwartz, Department of Justice, Deputy Assistant Attorney General; and Alan Bersin, Department of Homeland Security, Assistant Secretary for International Affairs and Chief Diplomatic Officer. Cuba’s delegation, by its Ministers of Interior, Justice and Foreign Affairs as well as its Attorney General and Customs General.[1]

The Department of State said that “law enforcement is an area of mutual interest to both the U.S. and Cuba as we advance toward normalized relations. We anticipate that the dialogue will be productive, and an additional opportunity to reinforce the benefits of law enforcement cooperation. During the dialogue, the United States and Cuba will continue to discuss a wide range of areas of cooperation, including counterterrorism, counternarcotics, transnational crime, cybercrime, secure travel and trade, and fugitives.”

The framework for the dialogue was the Memorandum of Understanding between Homeland Security and the Ministry of Interior of Cuba, signed in May 2016. This MOU sets the basis of cooperation in exchanging risk information for travelers, cargo or conveyances in international transit; the continuation of periodic, mutual, and reciprocal assessments regarding air, sea, and port security; and the coordination of transportation security, screening of cargo, travelers and baggage, and the design of secure, efficient inspection facilities at ports and airports, among other things.[2]

The day before the Dialogue (May 16), the Department of Homeland Security Deputy Secretary Alejandro Mayorkas met with the U.S. and Cuban delegations in advance of the dialogue and to conduct bilateral meetings with his counterparts.

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

[1] Mayorkas returns to Cuba to activate dialog implementation of the Law, Marti (May 17, 2016); Department of Homeland Security, Statement by Press Secretary Marsha Catron on Deputy Secretary Mayorkas’ Upcoming Trip To Cuba (May 13, 2016).

[2] Written testimony of PLCY Assistant Secretary for Border, Immigration, and Trade Policy Seth Stodder, et al., for a House Committee on Homeland Security, Subcommittee on Transportation Security hearing titled “Flying Blind: What are the security risks of resuming U.S. Commercial Air Service to Cuba? (May 17, 2016).  I have not yet been able to find a copy of the actual MOU.

 

University Students Investigate Jim Crow-Era Killings

Students at Atlanta’s Emory University are investigating Jim Crow-era murders of blacks in Georgia. They then publish their results online. This is the focus of Emory’s “The Georgia Civil Rights Cold Cases Project.” Similar projects exist at least three other universities. Important federal legislation and actions by the U.S. Department of Justice provide important background for such efforts. These subjects will be explored in this post.

Emory’s Project[1]

The Project was started in 2011 as an interdisciplinary Civil Rights Cold Cases class examining incidents that occurred in Georgia. In January 2015, it launched a website, coldcases.emory.edu, that is the joint product of more than fifty students’ work during seven semesters of the course.

The Emory class is taught by Hank Klibanoff, the James M. Cox Jr. Professor of Journalism and the Pulitzer Prize–winning author of The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation, and by Brett Gadsden, Associate Professor of African American Studies.

Professor Gadsden said the class is run like “a research seminar, with intense focus on individuals’ lives and attention to the historical context in which these folks lived. These stories come alive for students. They aren’t just presenting cases or telling the stories of lowly black victims. They are really trying to understand what happened, what the circumstances were, what happened to the people, how they lived, how they died, who killed them, and why, but understanding these victims’ deaths as a part of the historical record.”

The students prepare both a ten-page academic paper on their topic of choice and a condensed article for publication on the website. Gadsden emphasizes that the students are “writing for the professors, for each other, and also for a public of both academics and non-academics. They are accountable to the descendants of the lost, and that comes with a special responsibility—one that the students embrace.”

The recent Wall Street Journal article about Emory’s project tells the moving story of the students’ investigation of the September 8, 1948, killing by two white men of Isaiah Nixon, a black man who had voted that same day in Georgia’s gubernatorial primary election. One of the white men was charged with murder, but was acquitted in a one-day trial by an all-white jury. Afterwards the accessory-to-murder charge against the other white man was dropped. The Emory students’ investigation led them to conclude that Nixon had been murdered because he had voted in that primary election.

The students also discovered Nixon’s grave in a Georgia cemetery and invited his daughter, Dorothy Nixon Williams, who at age 6 had witnessed the murder of her father, to visit the grave last week with them and her son. Now 73 years old, Dorothy said when seeing the grave, “Lord have mercy,” sobbing into her son’s shoulder. Professor Klibanoff commented, “Isaiah Nixon matters; his life matters and his death and disappearance from history matter. What matters more is his reappearance now and I think that is miraculous.” At the conclusion of the visit, Dorothy said her anger over her father’s murder “now is completely released.”

Other Similar Projects

Similar projects are being conducted by Northeastern University School of Law, Syracuse University College of Law and Louisiana State University.

Northeastern’s Civil Rights and Restorative Justice Project investigates “the role of state, local and federal law enforcement agencies and courts in protecting activists and their work. [The Project] examines the geo-politics that led to the large-scale breakdown of law enforcement, the wide-spread repression against the movement’s participants, and the reforms that have been initiated to rectify these abuses. The project engages teachers and students across the university and is directed by faculty from the School of Law and the College of Criminal Justice.” [2]

Syracuse’s Cold Case Justice Initiative was established in 2007 by Syracuse law professors Paula Johnson and Janis McDonald to investigate “racially motivated murders that occurred during the Civil Rights era and [to advocate] on behalf of the victims and their families to get justice for the crimes. The program works with law students to conduct research, identify victims and find new information that could assist law enforcement in resolving cases. The Initiative as of has identified [nearly 200] cases from the civil rights era they believe warranted further investigation by federal authorities.”[3]

Louisiana State University’s Manship School of Mass Communication started its Cold Case Project in 2010 to investigate Civil Rights-era hate murders in Louisiana and southern Mississippi. Since then nearly three-dozen students, comprised mainly of seniors and graduate students, have worked on such cases. Their “primary focus is to bring closure to African-American communities which have lingered decades without fully knowing what federal agents learned about the deaths of family members and friends.” Jay Shelledy, who is in charge of the Project, said FBI agents at the time did their best to solve these vicious killings, but were thwarted by intimidated witnesses, Klan-sympathizing local lawmen and white juries which refused to convict whites of murdering blacks.[4]

In February 2015 the LSU Project launched a searchable website detailing heretofore sealed FBI investigative findings in a dozen such murders. It contains more than 150,000 pages of FBI findings, resulting stories, photographs and letters from the U.S. Department of Justice to the victims’ next of kin. Many thousands of additional pages of FBI case files are pending release under FOIA requests; when released, they will be added to the digital database.

Background for These Projects

These projects have been stimulated and assisted by the U.S. Department of Justice and the Federal Bureau of Investigation (FBI). In 2006, the Department began its Cold Case Initiative—a comprehensive program to identify and investigate racially motivated murders committed decades ago. The effort was reinforced in 2008 with the passage of the Emmett Till Unsolved Civil Rights Crime Act that authorized the Department to investigate unsolved civil rights murders before 1970. This statute had been introduced in 2007 by Congressman John Lewis of Georgia and unanimously passed by both houses of Congress in 2008 and signed into law by President George W. Bush.[5]

As of May 2015, the Department reported to Congress that it had concluded 105 of 113 relevant cold cases involving 126 victims, but that “very few prosecutions have resulted from these exhaustive efforts.” (The single case that went to court involved Jimmie Lee Jackson, who was shot by Alabama State Trooper James Fowler after a civil rights protest in 1965. In 2010, at age 77, Fowler pleaded guilty to manslaughter and was sentenced to six months in prison.)[6]

This was due, said the report, for many reasons. Federal statutory law limits the Department’s ability to prosecute civil-rights era cases at the federal level. There is a five-year statute of limitations on federal criminal civil-rights charges that existed prior to 1994. The Fifth Amendment protects against double jeopardy, which prevents the re-trial of someone for an offense for which he or she was previously found not guilty. In addition, cold cases can be difficult to prosecute because “subjects die, witnesses die or can no longer be located, memories become clouded, evidence is destroyed or cannot be located.”

This statute is due to expire in 2017, and efforts are being made to lobby for its extension.

Conclusion

These projects are significant and inspiring. First, they complement and should be coordinated with the amazing justice advocacy of Bryan Stevenson at the Equal Justice Initiative that was discussed in a prior post. Second, these projects are excellent examples of a mode of teaching an important subject that should be included in this blogger’s reflections on modes of teaching and learning as set forth in another earlier post.

We all should give thanks to Emory, Northeastern, Syracuse and Louisiana State University for their leadership in this important work.

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[1] McWhirter, College Class Investigates Jim Crow-Era Killings, W.S. J. (Jan. 24, 2016),; Lameiras, Cold Cases Project helps student uncover history of civil rights era crimes, Emory Mag. (May 25, 2015); Emory Libraries, Georgia Civil Rights Cold Cases; Justice, Emory student research debuts on Georgia Civil Rights Cold Cases website (Jan. 7, 2015); Emory Univ., Special Topics Seminar: Cold Cases (description of seminar and tentative list of readings).

[2] Northeastern Univ. School of Law, Civil Rights and Restorative Justice Project. An earlier version of this post erroneously included Northwestern University College of Law’s important Wrongful Conviction Center, and I thank Professor Hank Klibanoff for pointing out this error.

[3] Joiner, Inside the Effort to Solve Civil Rights Crimes Before It’s Too Late, Time (Oct. 15, 2015).

[4] LSU Manship School of Mass Communication, Cold Case Project; Lemoine, Cold Case, LSU Gold (Fall 2011); LSU Manship School of Mass Communication, Cold Case Project website released (Feb. 25, 2015).

[5] U.S. Dep’t of Justice, Cold Case Initiative.

[6] U.S. Dep’t of Justice, Attorney General’s Sixth Annual Report to Congress Pursuant to the Emmett Till Unsolved Civil Rights Crime Act of 2007 (May 2015).

Resolving U.S. and Cuba Damage Claims

On December 8, the U.S. and Cuba held discussions in Havana about the two countries’ damage claims: (1) U.S. claims to recover damages for U.S. property interests that were expropriated by the Cuban government at the start of the Cuban Revolution in 1959.; (2) U.S. courts’ money judgments against Cuba; (3) Cuba’s claims for alleged damages resulting from the U.S. embargo of Cuba; and (4) Cuba’s alleged damage claims for Cubans personal injuries and deaths from U.S. hostile actions.

This post will briefly examine those claims, the recent U.S.-Cuba discussions on the subject and an analysis of the issues by Washington, D.C.’s Brookings Institution.

Summary of the Claims

  1. Cuba’s Expropriation of U.S. Property[1]

Some 5,913 U.S. corporations and individuals have $1.9 billion worth of claims (without interest) for factories, farms, homes and other assets that were nationalized in Cuba after Fidel Castro’s rebels came to power in 1959. These claims have been registered and validated by the U.S. Justice Department’s Foreign Claims Settlement Commission. They are now worth roughly $8 billion when including 6.0 percent annual interest. These claims (without interest) have been categorized by the Brookings Institution’s report discussed below:

Claimants Claims Amount ($USD)
Corporate 899 1,677,280,771
Individual 5,014 229,199,112
TOTAL 5,913 1,906,479,883

 

Nevertheless, the Brookings’ report identifies these potential issues with respect to the claims validated by the U.S. Commission: (1) Whether to recognize the Commission rulings as a legitimate procedure in which cuba did not participate; (2) Whether to accept or challenge its valuations of lost properties; (3)  Whether Cuba should recognize accumulated interest as awarded by the Commission on its certified claims or whether to negotiate an alternative benchmark interest rate or other formula for partial payments.

2. U.S. Court Judgments Against Cuba[2]

In U.S. courts various plaintiffs have sued the Cuban Government, which did not appear in the cases. As a result the courts entered default judgments against Cuba, now totaling $2 billion.

3. U.S. Embargo of Cuba[3]

In a 2015 report to the United Nations General Assembly, Cuba asserted that the accumulated economic damages from the U.S. economic sanctions had reached $121 billion. The annual report offers some estimates on sectoral damages but does not discuss methodology. An earlier 1992 Cuban statement detailed these estimated cumulative losses among others:: (a) $3.8 billion for losses in the tourist industry; (b) $400 million for losses in the nickel industry; (c) $375 million for the higher costs of freighters; (d) $200 million for the purchase of sugarcane crop equipment to substitute for U.S.-manufactured equipment; and (e) $120 million for the substitution of electric industry equipment

4. Cubans Killed or Injured by Alleged U.S. Hostilities[4]

The Cuban government claims that U.S. “acts of terrorism against Cuba have caused 3,478 deaths and 2,099 disabling injuries.” Examples of such alleged acts include (a) U.S.-supported hostilities in Cuba resulting in 549 deaths between 1959-1965; (b) the Bay of Pigs invasion resulting in 176 deaths and over 300 wounded of whom 50 were left incapacitated; (c) the explosion of the French vessel La Coubre on March 4, 1960 in Havana Harbor, resulting in 101 deaths including some French sailors; (d) the terrorist bombing of Cuban Airlines Flight 455 in 1976 killing all 73 persons on board including 57 Cubans; (e) the September 11, 1980 assassination of Cuban diplomat Félix García Rodriguez in New York City; (f) Numerous aggressions from the U.S. naval base in Guantanamo resulting in the deaths of Cuban citizens; and (g) suspicions that the U.S. employed biological warfare to spread fatal dengue fever in Cuba.

Recent U.S.-Cuba Discussions[5]

Immediately before the December 8 discussions, a U.S. State Department spokesperson said the U.S. expected this to be “a first step in what we expect to be a long and complex process, but the United States views the resolution of outstanding claims as a top priority for normalization.”

Afterwards a U.S official said that reaching a settlement of these claims was “a top priority” for the U.S. and that these talks were “fruitful” and would continue in 2016. This official also said that the U.S. had provided information on the additional $2 billion in judgments awarded to plaintiffs who had sued the Cuban government in U.S. courts, proceedings that ­Havana does not recognize.

Other than the above sketchy summary, very little has publicly emerged about the specifics of the talks. It sounds as if the discussions were akin to the pretrial discovery process in U.S. civil lawsuits when parties learn about each other’s evidence and arguments.

A Cuba legal expert, Pedro Freyre, said, “It’s the first time the two countries are going back to look at this history and try to sort out a system for fixing it.” The Cubans, he added, were “very tough, very clever” in such negotiations.

Brookings Institution’s Analysis[6]

Richard Feinberg
Richard Feinberg

On the same day as the U.S.-Cuba discussions (December 8), the Brookings Institution released a cogent report on the subject by Richard Feinberg, a nonresident senior fellow in Brookings’ Latin American Initiative. [7]

Introducing the report at a press conference, Feinberg said, “The convening of these talks in Havana [is] a major milestone in the process of gradual full normalization of relations between the United States and Cuba, especially important with regard to commercial relations. Property ownership and claims are at the strategic heart of the Cuban revolution, dating from the early 1960s and also a major cause, perhaps the major cause, of the conflict between the United States and the Cuban revolution. The seizure of U.S. properties was the proximate cause of the imposition of U.S. economic sanctions back in the early 1960s.” These talks are of “strategic importance in the bilateral relationship.”

Feinberg also emphasized that both the U.S. and Cuba “agree on the principle of compensation” for expropriation of property.” Indeed, he said, to do so is in Cuba’s national interest. It “wants to demonstrate [that] it is not a rogue nation . . . [that] it is a nation of laws” and it “wants to remove major irritants to its international diplomacy and commercial relations” and “to attract international investment.”

Another point made by Feinberg was Cuba was not so poor that it could not pay any compensation, especially if the payments were spread out over time, as seems likely.

In addition to setting forth information about the above claims, the report examined the following ways of resolving these claims.

  1. The Grand Bargain

The Report asserts that “a much more promising alternative approach” is “to take advantage of the very size and complexity of the conflicting claims and to make their resolution the centerpiece of a grand bargain that would resolve some of the other remaining points of tension between the two nations, and embrace an ambitious, forward-looking development strategy for Cuba.”

In such a grand bargain, “the settlement of U.S. claims could be wrapped in a package of economic opportunities for Cuba. Importantly, the United States could further relax its economic sanctions (amending or repealing Helms-Burton), providing more trade and investment opportunities – and the capacity for Cuba to earn the foreign exchange needed to service debt obligations. In turn, Cuba will have to accelerate and deepen its economic reforms, to offer a more attractive business environment for investors and exporters. Politically, the Cuban government could present a significant softening of the U.S. embargo as a victory, offsetting any concessions made in the claims negotiations. A comprehensive package might also be more attractive to the U.S. Congress; formal Congressional consent would enhance the measures’ legitimacy and durability and help to close off any court challenges, should some claimants be unsatisfied with the final settlement.”

“The [U.S.] strategic goals in a massive claims resolution process must be political: to heal the deep wounds of past conflicts, to lay foundations for peaceful coexistence and the non-violent resolution of disputes, to avoid jeopardizing fiscal balances and crippling debt burdens, to build investor confidence and international reputation, and to help render the Cuban economy more open and competitive. . . . In the interests of both Cuba and the United States, the twentieth-century trauma of massive property seizures should be transformed into a twenty-first century economic development opportunity.”

“Wrapping a claims settlement within a more sweeping diplomatic package could have large advantages. A robust accord could help overcome long-simmering bilateral animosities and reconcile the fractured Cuban family. Potentially embarrassing ‘concessions’ by either party could be masked by larger victories on more weighty or emotive issues. What to some might appear the unseemly materialism or inequity of property claims would be subsumed within a higher-toned humanitarian achievement. Having turned the page on a half-century long era of conflict, Cuban society could begin in earnest on a new path toward social peace and shared prosperity. The claims settlement, which would bolster investor confidence, could also be linked to a reformed economic development model for Cuba actively supported by the international community.”

2. Lump-Sum Settlement

Separate resolution of the damage claims could be done in a lump-sum settlement, whereby “the two governments negotiate a total amount of financial compensation that is transferred in a lump-sum or global indemnity to the plaintiff government which in turn assumes the responsibility to distribute the transferred monies among its national claimants.” Such a settlement would provide “greater efficiency in coping with large numbers of claims; enhanced consistency in the administration and adjudication of claims; promoting fairness among claimants in setting criteria for evaluating claims and distributing awards; and upholding professionalism and integrity in the national claims commission.” In addition, sometimes lump-sum arrangements “allow the two governments to address other matters, such as broader investment and trade relations.”

3. Two-Tier Resolution

Another way for separate resolution of the U.S. expropriation damage claims is what Brookings calls a two-tier solution, “whereby corporate claimants can choose either to seek creative bargains, or join individual claimants in a lump-sum settlement.”

The 5,014 individual claims validated by the U.S. Commission total about $229 million (without interest). Of these, only 39 amount to over $1 million each while only four were valued at over $5 million. A lump-sum cash settlement of these claims could be shared share equitably by all or with caps on those over a certain figure, such as $ 1 million.

The 899 corporate claims are heavily concentrated: the top 10 corporate claims are valued at nearly $1 billion while the top 50 at $1.5 billion. “The corporate claimants could be given the opportunity to be included in a lump-sum settlement—albeit possibly facing an equity hair-cut to limit the burden on Cuba and to ensure a minimum payment to the smaller claimants—or to ‘opt out’ of the general settlement and instead seek alternative remedies” in Cuba, such as a voucher for new investment; a right to operate a new business; a final project authorization for a new venture; a preferred acquisition right for a venture; Cuba sovereign bonds; and restoration of properties.

Conclusion

Although I hope that the Brookings’s “grand bargain” or more limited negotiated solution is reached, a Miami Herald article emphasizes the difficulties in reaching any settlement. First, some of the claims that were validated by the U.S. Foreign Claims Settlement Commission could be stricken from the list that the U.S. may negotiate if the claims have not always been owned by a U.S. citizen or business. Second, the U.S. government is not authorized to negotiate the previously mentioned U.S. courts’ default judgments against Cuba. As a result, U.S. attorneys for the plaintiffs in those cases could seek to seize any assets in the U.S. of the Cuban government such as a Cuban plane or ship to satisfy the outstanding judgments. Third, Cuba also has to fear that any payment of U.S. claimants for expropriated property will invite demands for similar payments by Cuban exiles around the world and by Spanish claimants after some Spanish courts have ruled that Spain’s 1986 settlement of such claims with Cuba is not binding on at least some Spanish claimants. Fourth, the time to complete such a settlement at the end of the Obama Administration is rapidly shrinking, and a new administration in January 2017 may not be as willing to do such a deal.[8]

I, therefore, reiterate the solution proposed in a prior post: an agreement by the two countries to submit all of their damage claims against each other for resolution to the Permanent Court of Arbitration at the Hague in the Netherlands under its Arbitration Rules 2012 before a panel of three or five arbitrators.[9]

My experience as a lawyer who handled business disputes in U.S. courts and in international arbitrations leads me to believe that arbitration is the appropriate way to resolve these claims by the two governments. The International Court of Arbitration was established in the late 19thcentury to resolve disputes between governments. It would be a third-party, neutral administrator of the proceedings and the arbitrators who would be selected would also be neutral. Finally it has an existing set of arbitration rules and procedures. Moreover, in the arbitration process, both sides would gain a better understanding of the opponent’s evidence and argument that could lead to a settlement before the arbitrators would be asked to render an award.

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[1] Brookings, Reconciling U.S. Property Claims in Cuba: Transforming Trauma into Opportunity (Dec. 2015); Resolution of U.S. and Cuba’s Damage Claims (April 6, 2015).

[2] Id.

[3] Id.; U.N. General Assembly Again Condemns U.S. Embargo of Cuba (Oct. 30, 2014).

[4] Brookings, Reconciling U.S. Property Claims in Cuba: Transforming Trauma into Opportunity (Dec. 2015).

[5] Robles, Cuba and U.S. to Discuss Settling Claims on Property, N.Y. times (Dec. 4, 2015); U.S. State Dep’t, Daily Press Briefing (Dec. 7, 2015); U.S. State Dep’t, Press Release: United States and Cuba Hold Claims Talks in Havana (Dec. 7, 2015); Reuters, U.S., Cuba to Negotiate Billions in Claims Against Each Other, N.Y. Times (Dec. 7, 2015); Assoc. Press, Cuba, US Begins Talks on Confiscated Property, Damages,, N.Y. Times (Dec. 8, 2015); Miroff, In major breakthrough, Cuba and U.S. discuss $1.9 billion in property claims, Wash. Post (Dec. 8, 2015); Schwartz, U.S., Cuba Hold First Talks on Rival Claims, W.S.J. (Dec. 8, 2015); Briefing on compensation held between the governments of Cuba and the United States, Granma (Dec. 9, 2015).

[6] Brookings, Reconciling U.S. Property Claims in Cuba: Transforming Trauma into Opportunity (Dec. 8, 2015); Feinberg, Reconciling U.S. Property Claims in Cuba (Dec. 2015); Brookings Institution, Cuba Media Roundtable (Dec. 8, 2015).

[7] Brookings is a non-governmental organization that “brings together more than 300 leading experts in government and academia from all over the world who provide the highest quality research, policy recommendations and analysis on a full range of public policy issues.” Feinberg is a professor of international political economy in the School of Global Policy and Strategy (formerly the School of International Relations and Pacific Studies) at the University of California, San Diego. Previously, Feinberg served as special assistant to President Clinton for National Security Affairs and senior director of the National Security Council’s Office of Inter-American Affairs; his other government positions include positions on the policy planning staff of the U.S. Department of State and in the Office of International Affairs in the U.S. Treasury Department.

[8] Torres & Garvin, Claim game: U.S., Cuba try to hash out differences over property, Miami Herald (Dec. 12, 2015).

[9] Resolution of U.S. and Cuba’s Damage Claims (April 15, 2015).