Senate Passes Bill To Expand Agricultural Exports to Cuba  

On June 28, the U.S. Senate passed, 86-11, the Agriculture and Nutrition Act of 2018 (H.R.2) that relates, in part,  to U.S. agricultural exports to Cuba.[1]

After an amendment introduced by Senators Heitkamp (Dem., ND) and Boozman (Rep., AR) to allow for the U.S. Department of Agriculture (USDA) to conduct foreign market development programs in Cuba passed the Senate Agriculture Committee by unanimous consent on June 13, Senator Rubio (Rep., FL) expressed his opposition to the provision and a willingness to delay consideration of the full bill.[2]

Rubio first introduced an amendment on June 26 to deny export promotion until Cuba holds “free and fair elections for a new government,” but by June 27,  he had changed his approach. Speaking on the Senate floor, he said, “I am not going to object to the ability of American farmers to market our products to a market… But while you are there… you can promote it, but you just can’t spend any of these taxpayer dollars at any of the facilities or businesses controlled or owned by the Cuban military.”

Ultimately, after negotiation between Senators Rubio, Menendez (Dem., NJ) and Cruz (Rep., TX), on one side, and Senators Flake (Rep., AZ), Heitkamp, and Boozman on the other, the bill passed the Senate with the USDA export promotion provision intact, and a modifying provision that states financial transactions must adhere to restrictions set out in current regulations, including a prohibition on “transactions with entities owned, controlled, or operated by or on behalf of military intelligence or security services of Cuba.” Most U.S. entities are already barred from engaging in transactions with the businesses on this list.[3]

The bill on June 21 had passed the House, 213-211. The Senate and House versions will now go to a conference committee to try to iron out the differences.[4]

Obviously Rubio’s efforts to impose his anti-Cuba positions on everything failed this time although he publicly will never admit to such a defeat. Instead he proclaims his qualification to promotion of trade with Cuba as a victory.

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[1] Carney, Senate passes mammoth farm bill, The Hill (June 28, 2018).

[2] Ctr. Democracy in Americas, Cuba Central News Brief: 06/29/2018.

[3] Rubio Supports Farm Bill with Important Provisions for Florida Citrus and Agriculture (June 28, 2018).

[4] Library of Congress: Thomas, H.R.2-Agriculture and Nutrition Act of 2018.

Senator Jeff Flake’s Courageous Defense of American Values and Democracy

On October 24  U.S. Senator Jeff Flake (Rep., AZ) gave a moving speech on the floor of the U.S. Senate rejecting President Trump’s character and actions and announcing the senator’s decision to not seek re-election in 2018.  He simultaneously extended his thoughts in the Washington Post, which commended him for his words and actions. I immediately sent him a letter thanking him for his speech and for his advocacy of U.S.-Cuba normalization, and on November 6 Senator Flake made a public response to the many letters he has received about his speech. Here is a summary of these events.

Senator Flake’s Speech[1]

The Senator said, “I rise today with no small measure of regret. Regret, because of the state of our disunion, regret because of the disrepair and destructiveness of our politics, regret because of the indecency of our discourse, regret because of the coarseness of our leadership, regret for the compromise of our moral authority, and by our – all of our – complicity in this alarming and dangerous state of affairs. It is time for our complicity and our accommodation of the unacceptable to end.” Below is a photograph of Senator Flake giving his speech.

“We must never regard as ‘normal’ the regular and casual undermining of our democratic norms and ideals. We must never meekly accept the daily sundering of our country – the personal attacks, the threats against principles, freedoms, and institutions, the flagrant disregard for truth or decency, the reckless provocations, most often for the pettiest and most personal reasons, reasons having nothing whatsoever to do with the fortunes of the people that we have all been elected to serve.”

“Reckless, outrageous, and undignified behavior has become excused and countenanced as ‘telling it like it is,’ when it is actually just reckless, outrageous, and undignified. And when such behavior emanates from the top of our government, it is something else: It is dangerous to a democracy. Such behavior does not project strength – because our strength comes from our values. It instead projects a corruption of the spirit, and weakness.”

If I have been critical, it is not because I relish criticizing the behavior of the president of the United States.  If I have been critical, it is because I believe that it is my obligation to do so, as a matter of duty and conscience. The notion that one should stay silent as the norms and values that keep America strong are undermined and as the alliances and agreements that ensure the stability of the entire world are routinely threatened by the level of thought that goes into 140 characters – the notion that one should say and do nothing in the face of such mercurial behavior is ahistoric and, I believe, profoundly misguided.”

“The principles that underlie our politics, the values of our founding, are too vital to our identity and to our survival to allow them to be compromised by the requirements of politics. Because politics can make us silent when we should speak, and silence can equal complicity. I have children and grandchildren to answer to, and so, Mr. President, I will not be complicit.”

Senator Flake’s Washington Post Article[2]

The same day as his speech, Senator Flake wrote an op-ed article in the Washington Post. He opened with a reference to one of my heroes, Joseph Welch, and his famous 1954 rhetorical question to Senator Joseph McCarthy who was attacking a young colleague of Welch: ““You’ve done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?”[3]

In so doing, said Flake, “Someone had finally spoken up and said: Enough. . . . Welch reawakened the conscience of the country. The moment was a shock to the system, a powerful dose of cure for an American democracy that was questioning its values during a time of global tumult and threat. We had temporarily forgotten who we were supposed to be.”

Flake continued, “We face just such a time now. We have again forgotten who we are supposed to be. There is a sickness in our system — and it is contagious.”

“Nine months of this administration is enough for us to stop pretending that this is somehow normal, and that we are on the verge of some sort of pivot to governing, to stability. Nine months is more than enough for us to say, loudly and clearly: Enough.”

“The outcome of this is in our hands. We can no longer remain silent, merely observing this train wreck, passively, as if waiting for someone else to do something. The longer we wait, the greater the damage, the harsher the judgment of history.”

“It’s time we all say: Enough.”

 Washington Post’s Editorial[4]

The Washington Post immediately published an editorial that said the speech “was profoundly eloquent in its diagnosis of the degradation that President Trump has brought to American politics. It was also profoundly depressing. If Republicans can be honest only after they have taken themselves out of the political arena — or if by being honest they disqualify themselves from future service — then their party and therefore the nation are in even graver trouble than we knew.”

My Thank You Letter

“As a fellow U.S. citizen, I thank you for your speech yesterday on the Senate Floor. You spoke the truth about the serious challenges facing our country by the character and conduct of Donald Trump as president. You correctly pointed out that you did not want to be complicit in that conduct by remaining silent although with your recent book and other comments you hardly have remained silent.”

“I also thank you for your strong support of U.S.-Cuba reconciliation and normalization, and I know you have visited the island many times. As a member of Minneapolis’ Westminster Presbyterian Church, I personally have been involved over the last 15 years with our partnership with a small Presbyterian-Reformed Church in the city of Matanzas and have been on three of our mission trips to the island and have welcomed Cubans visiting our church. This has led to my writing extensively on this subject and advocating such reconciliation and normalization on my blog.”

“As you well know, in recent months U.S.-Cuba relations have been troubled by medical problems experienced by some U.S. diplomats who had been stationed In Havana, about which I have written blog posts. I am amazed that after many months of investigations by the U.S. (and Cuba) the U.S. continues to assert that it does not know who or how these medical problems were created. I also am amazed that I have not discovered anyone who is wondering whether they were created by a secret and malfunctioning U.S. program or device. Perhaps this is something you could question in the Senate.”

Senator Flake’s Response to Letters[5]

“By the electronic bushel, in thousands of calls and letters, reactions have poured into my office.] Some wrote just to say thanks. From Arizona, from all over the country and from abroad. From all across the political map, too.”

This was a “deeply personal outpouring, the scale of which has stunned and humbled me. . . . I can say that reading these letters has been one of the most humbling experiences of my public life. . . . I am humbled because until now I didn’t fully grasp the level of anxiety and real pain that exists across the country due to the state of our national leadership.”

“These writers despair not just for the chaos emanating from the White House, but for the moral vandalism that has been set loose in our culture, as well as the seeming disregard for the institutions of American democracy. The damage to our democracy seems to come daily now, most recently with the president’s venting late last week that if he had his way, he would hijack the American justice system to conduct political prosecutions — a practice that only happens in the very worst places on earth. And as this behavior continues, it is not just our politics being disfigured, but the American sense of well-being and time-honored notions of the common good.”

 “I have been powerfully reminded that we have all been raised with fidelity to a very large idea, the American idea. When that idea comes under threat, and it seems as if the center might not hold, it is not just our politics that suffers. When a leader wreaks havoc with our democratic norms, it is not just political Washington that is dragged through the muck. When that happens, it is deeply upsetting to people everywhere, almost existentially so, and we all suffer.”

“These extraordinary and patriotic voices, calling me and themselves to action in defense of the things we hold dear, remind me that to have a vital democracy, there can be no bystanders.” I now “realize that to stand up and speak out is sometimes the most conservative thing a citizen can do.”

Conclusion

I urge my fellow U.S. citizens to join in the commendation of Senator Flake for his outspoken defense of true American values and to call for the resignation or removal of Donald Trump from office under the provisions of the U.S. Constitution.

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[1]   U.S. Senate, Flake Announces Senate Future ( Oct. 24, 2017); Full Transcript: Jeff Flake’s Speech on the Senate Floor, N.Y. Times (Oct. 24, 2017).

[2]  Flake, Enough, Wash. Post, (Oct. 24, 2017).

[3] An inverse historical example for Senator Flake’s criticisms of President Trump is President Eisenhower’s behind-the-scenes campaign to destroy his fellow Republican, Senator Joseph McCarthy, which  is the subject of David A. Nichols’ Ike and McCarthy: Dwight Eisenhower’s Secret Campaign Against Joseph McCarthy (Simon & Schuster 2017).

[4] Editorial, Jeff Flake’s Diagnosis is right. But it’s not enough, Wash. Post (Oct. 24, 2017)

[5] Jeff Flake: In a Democracy, There Can Be No Bystanders, N.Y. Times (Nov. 6, 2017).

The Improper Use of Senate Rule XIX To Stop Senator Warren from Speaking

As has been widely reported, the U.S. Senate Majority Leader, Senator Mitch McConnell (Rep., KY), on February 7 asserted an objection to the remarks of Senator Elizabeth Warren (Dem., MA) and the objection was sustained by the presiding officer, Senator Steve Dawes (Rep., MT), and by the entire Senate, 49-43. As a result, Senator Warren was prevented from making any further remarks.

This occurred during the Senate’s consideration of whether to confirm the nomination of Jeff Sessions to be Attorney General when Senator Warren was reading a 1986 letter from Coretta Scott King, the widow of Rev. Martin Luther King, Jr., complaining about Session as a U.S. attorney for allegedly “using the awesome power of his office to chill the free exercise of the vote by black Americans.”

The asserted basis for the objection by McConnell was Senate Rule XIX, which states, “No Senator, in debate, shall “directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”

This Rule rarely has been used since its adoption in 1902 after a fist-fight on the Senate floor between two senators over whether the Senate would approve a U.S. treaty to annex the Philippines. Its use by McConnell has been criticized widely as impolitic and sexual discrimination as the Rule has not been used to stop male senators from doing the same thing the next day and from previously making many derogatory remarks on the floor about other senators.

The Rule, closely and properly read, does not apply to this situation for at least two reasons.

First, the Rule refers to “conduct or motive unworthy or unbecoming a Senator,” and here Warren was referring to Sessions’ conduct as a U.S. attorney before he became a senator.

Second, and more importantly, the matter under consideration was whether the Senate should confirm Sessions to be the next Attorney General and, therefore, whether he had the skills, background and character to hold this important office. Hence, his entire life was relevant on at least the character issue, and the opinion of an important U.S. citizen (Mrs. King) on his conduct as a U.S. attorney around 1986 is directly relevant to the issue of confirmation. Indeed, so is the senatorial record of  any senator who is undergoing Senate review as a cabinet nominee like Senator Sessions.

As a result, Senator McConnell should apologize to Senator Warren and the entire U.S. Senate for this improper use of Rule XIX.

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U.S. Senate, Rule XIX; Berman, A Brief History of the Senate Rule That Silenced Elizabeth Warren, Atlantic Magazine (Feb. 8, 2017);; Flegenheimer, Republican Senators Vote to Formerly Silence Elizabeth Warren, N.Y. Times (Feb. 7, 2017); Lichtblau & Flegenheimer, Jeff Sessions Confirmed as Attorney General, Capping Legal Battle, N.Y. Times (Feb. 8, 2017).

Senate Confirms Nomination of Rex Tillerson as Secretary of State

On January 23 the Senate Foreign Relations Committee by a straight party-line vote, 11 to 10, approved the nomination of Rex Tillerson to be Secretary of State. [1]  On February 1 the full Senate did the same, 56 to 43, which was the largest negative vote for confirmation for this position in the Senate’s history. [2]

Senate Foreign Relations Committee

Senator Bob Corker (Rep., TN), the Chair of the Committee, said the following:[3]=

  • “I personally have no doubt that Rex Tillerson is well-qualified. He’s managed the world’s eighth largest company by revenue with over 75,000 employees. Diplomacy has been a critical component of his positions in the past, and he has shown himself to be an exceptionally able and successful negotiator who has maintained deep relationships around the world.”
  • “The other absolute standard we apply to each of these nominees who come before us is to ensure they have no conflicts of interest related to their position.”
  • “The non-partisan director of the Office of Government Ethics (OGE) recently stated that Mr. Tillerson is making ‘a clean break’ from Exxon and is free of these conflicts. He has even gone so far to say that Mr. Tillerson’s ethics agreement ‘serves as a sterling model for what we would like to see from other nominees. He clearly recognizes that public service sometimes comes at a cost.’”
  • “I believe inquiries into Mr. Tillerson’s nomination have been fair and exhaustive. His hearing lasted over eight hours, and he’s responded to over 1,000 questions for the record. I’m proud of the bipartisan process, which is in keeping of the tradition of this committee that we pursued this, regarding his nomination, and I think that while our opinions and votes today may differ, that the process has been very sound.”

Senator Benjamin Cardin (Dem., RI), voting against confirming this nomination, said the following:[4]

  • “I believe Mr. Tillerson’s demonstrated business orientation and his responses to questions during the confirmation hearing could compromise his ability as Secretary of State to forcefully promote the values and ideals that have defined our country and our leading role in the world for more than 200 years. I will therefore not be supporting his nomination with my vote in Committee or on the Senate floor.”
  • “The United States plays a unique and exceptional role in world affairs.  Our values are our interests, as I said at Mr. Tillerson’s hearing. And our leadership in supporting democracy, universal human rights, unencumbered civil society, and unabridged press and religious freedoms is indispensable if these ideas and ideals are to be real and tangible in the world.”
  • “Mr. Tillerson equivocated on these self-evident truths under direct questioning, repeatedly prioritizing narrow business interests ahead of these core national security interests.  The power of the Secretary of State to call out wrong, to name and shame, and to fight each day on behalf of the American people and freedom-seeking people the world over is an enduring symbol to the oppressed and the vulnerable that the United States has their back.”
  • “Mr. Tillerson was unwilling to characterize Russia and Syria’s atrocities as war crimes, or Philippine President Duterte’s extrajudicial killings as gross human rights violations. And he was not willing to dismiss with unqualified clarity a registry for any ethnic or religious group of Americans.”
  • “I also believe Mr. Tillerson misled the Committee regarding his knowledge of ExxonMobil’s [well documented] lobbying on U.S. sanctions [against “some of the worst human rights abusers in the world such as Sudan, Syria, and Iran”]. Additionally, ExxonMobil’s stance on U.S. sanctions against Russia for their illegal invasion and annexation of Crimea, Ukraine in 2014 was well known at the time . . . . This is why it is particularly concerning that Mr. Tillerson indicated during questioning that he was not willing to recuse himself from matters relevant to ExxonMobil for the entire duration of his term.”
  • “While I was pleased that Mr. Tillerson said that he would support the laws I have written to hold accountable human rights abusers globally and in Russia specifically, and that America should have a seat at the table when discussing climate change with the international community, merely being willing to uphold the law or being willing to participate in global diplomacy are simply the necessary prerequisites for the job, not sufficient cause for confirmation.”
  • “On Russia more broadly, I am concerned as to whether Mr. Tillerson would counsel President Trump to keep current sanctions in place. . . . He showed little interest in advancing the new Russia sanctions legislation I’ve introduced with Senator McCain and colleagues on both sides of the aisle. Russia attacked us through cyber warfare and has committed even greater atrocities in Ukraine, Syria, and Eastern Europe. They must be held accountable and our bipartisan legislation is an important tool to do so.”
  • “Strangely, he was quick to caution about easing sanctions on Cuba because it would benefit a repressive regime, but seemed indifferent to doing business with Russia knowing that that business helped finance their ongoing violations of international norms.”
  • “Finally, America deserves a Secretary of State who will take advantage of every smart power tool in America’s diplomatic arsenal before recommending the use of force. I was therefore disturbed when Mr. Tillerson signaled during the hearing he would have recommended using force sooner when asked about real-world scenarios. The Secretary of State must be the consistent voice in any Administration that ensures the President has exhausted all diplomatic efforts before we put our brave men and women in uniform in harm’s way.”

Senate Debate and Vote

During the debate, supporters stressed Tillerson’s qualifications and the importance of confirming the president’s choice or this important position.

The affirmative vote of 56 was recorded by all 52 Republican senators plus three Democrats (Heitkamp (ND), Manchin (WV) and Warner (VA)) and Independent King (ME).

The negative vote of 43 was registered by  the other 42 Democrat senators and Independent Sanders (VT).

Conclusion

In the meantime, there have been at least four major developments linked to the future role of the State Department and its new Secretary.

First, a White House post, “America First Foreign Policy,” has no specific references to Cuba. But it does have this helpful general statement: In “pursuing a foreign policy based on American interests, we will embrace diplomacy. The world must know that we do not go abroad in search of enemies, that we are always happy when old enemies become friends, and when old friends become allies.”

Second, the White House has informed at least 13 career Foreign Service officers in charge of the State Department’s bureaus responsible for policy, security and other matters that they will not be retained in those positions. A Department spokesman said, “These positions are political appointments, and require the president to nominate and the Senate to confirm them in these roles. They are not career appointments, but of limited term.” However, as Nicholas Burns, former under secretary of state for political affairs during the George W. Bush administration and a longtime diplomat, said, “Normally the outgoing person would stay in the job until his or her successor is confirmed. What you don’t want to have is a vacuum without senior leadership.”[5]

Third, the Trump Administration on January 27 issued an executive order banning admission into the U.S. of all refugees worldwide and all immigrants from seven states with majority-Muslim populations while simultaneously welcoming Christian immigrants from those same countries. This immediately prompted lawsuits in federal courts across the country with a federal court in Seattle on February 3 issuing a temporary restraining order against implementation of the executive order and the U.S. Court of Appeals for the Ninth Circuit the next morning denying the Government’s motion to stay the lower court’s order.[6]

Fourth, in another immediate reaction to that executive order, over 900 State Department diplomats prepared and submitted a dissent cable objecting to that same executive order because of its impact on “green card holders, visa holders, visa seekers, the young, the old, and the sick.” [7]

On the periphery perhaps of the above turmoil is whether the Trump Administration will abandon or alter the Obama Administration’s pursuit of normalisation of relations with Cuba. As noted in a prior post, the Administration recently stated it has commenced an overall review of U.S. policies regarding Cuba, which in the abstract sounds like a reasonable thing to do. Previous statements by President Trump and Mr. Tillerson, however, suggest that a significant retreat is on its way, a development that would be very troubling to this blogger and other supporters of normalisation.[8]

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[1] Flegenheimer, Mike Pompeo Is Confirmed to Lead C.I.A., as Rex Tillerson Advances, N.Y. Times (Jan. 23, 2017); Schor, Senate panel approves Tillerson nomination, Politico (Jan. 23, 2017); Cama, Senate panel votes to confirm Tillerson, The Hill (Jan. 23, 2017); Demirjian & Sullivan, Tillerson approved by Senate panel as secretary of state, Wash. Post (Jan. 23, 2017).

[2] Harris, Rex Tillerson Is Confirmed as Secretary of State Amid Record Opposition, N.Y. Times (Feb. 1, 2017); Assoc Press, Senate Confirms Tillerson To Be   Secretary of State, Wash. Post (Feb. 1, 2017); Assoc. Press, Senate roll vote for Rex Tillerson for Secretary of State, Wash. Post (Feb., 1, 2017).

[3] Corker, Senate Foreign Relations Committee Approves Nomination of Rex Tillerson to Be Secretary of State (Jan. 23, 2017).

[4]Cardin, Cardin Statement on Tillerson Vote (Jan. 23, 2016).

[5] Gearan, Trump administration choosing to replace several senior State Department officials, Wash. Post (Jan. 26, 2017); Schwartz, Facing Replacement, Top State Department Officials Resign, W.S.J. (Jan. 26, 2017).

[6] E.g., Full Executive Order Text: Trump’s Action Limiting Refugees Into the U.S., N.Y. Times (Jan. 27, 2017); Ländler, Appeals Court Rejects Request to Immediately Restore Travel Ban, N.Y. Times (Feb. 4, 2017).

[7] Reuters, Trump’s Early Moves Spark Alarm, Resistance, N.Y. Times (Feb. 1, 2017); Biddle, New Memo from State Department Dissent Chanel Describes Anguish of Spurned Refugees, The Intercept (Jan. 31, 2017).

[8] These posts to dwkcommentaries.com have discussed preliminary indicators for the future of U.S.-Cuba relations: The Future of U.S.-Cuba Normalization Under the Trump Administration (Dec. 22, 2016); Secretary of State Nominee Rex Tillerson Addresses U.S. Policies Regarding Cuba (Jan. 12, 2017); Rex Tillerson, Secretary of State Nominee, Provides Written Responses Regarding Cuba to Senate Foreign Relations Committee (Jan. 23, 2017).

New U.S. Ambassador to the U.N., Nikki Haley, May Present a Challenge for Supporters of U.S.-Cuba Normalization

Nikki Haley, now the U.S. Ambassador to the U.N., has dropped hints that she may present a challenge to supporters of U.S.-Cuba normalization. The first was in her testimony regarding Cuba before the Senate Foreign Relations Committee.[1] The second was in her initial appearance at the U.N. on January 27.

Appearance Before Senate Foreign Relations Committee

On January 18, 2017, the Senate Foreign Relations Committee held Nikki Haley’s confirmation hearing, and at the hearing or thereafter in writing she provided the following testimony regarding Cuba.

  1. Question: “Do you agree that the U.S. should help support private entrepreneurs in Cuba with training or other assistance, so they can build businesses, market their products and services, and compete with state-owned enterprises?”

Answer: “Unfortunately, Cuba does not have private entrepreneurs and working independently is not a right but a privilege granted only to supporters of the regime.”

Analysis: “That’s just wrong, as the BBC and a million other reputable sources confirm.”

  1. Question: “Do you agree that after more than half a century the U.S. embargo against Cuba has failed to achieve any of its principal objectives?”

Answer: “We should be clear about a few things. The goal of the embargo was never to cause regime change, but rather to raise the costs of the Cuban government’s bad behavior.”

Analysis: “That was a whopper, as this Voice of America op-ed, and a vast historical record shows.”

  1. Question: “Will you continue the recent practice of abstaining to the UN General Resolution pertaining to the statutory U.S. embargo on Cuba?”

Answer: “No.”

Analysis: “Too bad. Ambassador Samantha Power’s speech when the U.S. abstained on the embargo resolution last year was a truly great moment.”

  1. Question: “Do you support continued diplomatic relations with Cuba?

Answer: She submitted an 85-word response that according to the CDA, didn’t directly answer the question.

On January 24, the Committee approved her nomination, 11-2 (with negative votes from Democratic Senators Coons (DE) and Udall (NM)).

Action by the Senate

The full Senate followed suit the same day, 96-4 (with negative votes from Coons and Udall plus Democrat Senator Heinrich (NM) and Independent Senator Sanders (VT)) .[2]

The Committee Chair, Senator Bob Corker (Rep., TN) supported the nomination with this statement: “Governor Haley is a fierce advocate for American interests. As South Carolina’s Governor, Nikki Haley is a proven leader. I believe she has the instincts that will help her achieve reform. Having run a state government, she has dealt with tough management and budgetary issues. I believe that experience will serve her well, and I strongly support her nomination.” He added, “I believe she knows the United Nations needs reform and change. We have a right to demand value for our money. I think our nominee has said she will demand that. . . . Experience shows that when we have strong U.S. leadership at the U.N. we can get results. As South Carolina’s Governor, Nikki Haley is a proven leader. . . . I believe she has the instincts that will help her achieve reform. Having run a state government, she has dealt with tough management and budgetary issues.”

The nomination also was supported by Senator Benjamin Cardin (Dem., MD), the Committee’s Ranking Member, who said, ““What Governor Haley lacks in foreign policy and international affairs experience, she makes up for in capability, intelligence, and a track record of building coalitions in South Carolina. Her nomination was surprising to many of my colleagues on both sides of the aisle, but I have been impressed by her forthrightness on core American values, her willingness to admit what she does not know, and her commitment to seeking the facts and speaking truth to power, whether within the Trump Administration or with an intransigent Russia and China in the Security Council.”

Ambassador Haley’s Initial Appearance at the U.N.

Ambassador Haley @ U.N.
Ambassador Haley @ U.N.

On January 27, only three days after her confirmation, she made her very first appearance at the U.N. General Assembly and delivered a blunt warning to every nation in the world. She said, “You’re going to see a change in the way we do business. Our goal with the administration is to show value at the U.N., and the way we’ll show value is to show our strength, show our voice, have the backs of our allies and make sure our allies have our back as well. For those who don’t have our back, we’re taking names; we will make points to respond to that accordingly.”[3]

Conclusion

First, her lack of knowledge regarding Cuba may not be surprising since her prior experience has been in state government, but it is a troubling sign that she may not be committed to normalization.

Second, her statement that she would not abstain on the forthcoming U.N. General Assembly resolution against the U.S. embargo (blockade) of Cuba is also troubling by itself. It is even more troubling when coupled with her recent statement at the U.N. that the U.S. would be taking the names of those countries that do not have the U.S.’ back and responding accordingly. That suggests that the U.S. may seek to take some kind of action against virtually every country in the world that supports that resolution.

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[1] Ctr. Democracy in Americas, Cuba News Blast (Jan. 27, 2017).

[2] Press Release, Senate Foreign Relations Committee Approved Nomination of Nikki Haley to be U.S. Ambassador to the United Nations (Jan. 24, 2017); Press Release, Corker Votes to Confirm Nikki Haley as U.S. Ambassador to the United Nations (Jan. 24, 2017); Press Release, Corker Statement on Haley Vote (Jan. 24, 2017); Press Release, Cardin Statement on Haley Vote (Jan. 24, 2017); Assoc. Press, Senate Confirms Trump’s Nominee for US Ambassador to UN, N.Y. Times (Jan. 24, 2017); Carney, Senate confirms Trump’s UN ambassador, The Hill (Jan. 24, 2017).

[3] Sengupta, Nikki Haley Puts U.N. on Notice: U.S. Is ‘Taking Names,’ N.Y. Times (Jan. 27, 2017).

U.S. and Cuba Sign Additional Agreements

This week the U.S. and Cuba have signed four additional agreements.[1]

On January 16 the two countries in Havana signed the U.S.-Cuba Law Enforcement Memorandum of Understanding (MOU) that was discussed in a prior post.

On January 18 in Havana, the U.S. and Cuba signed a Memorandum of Understanding to strengthen cooperation in the field of maritime and aeronautical search and rescue by enhancing effectiveness and efficiency in assisting persons in distress and to act in furtherance of obligations under international law. A Cuban official noted that the accord is particularly important to conducting joint and continued efforts to find and protect people in danger, that the two countries have been collaborating on search and rescue efforts for over 20 years and that in 2014 they had established procedural and operational frameworks for emergency cases. Jeffrey DeLaurentis, the Chargé d’Affaires of the U.S. Embassy, highlighted the importance of perfecting such efforts given the increase in authorized trade and the flow of travelers between both countries.

On January 18 the U.S. and Cuba joined with Mexico at the State Department in Washington, D.C. to sign a treaty to set territorial limits in contested Gulf of Mexico waters. The treaty covers the Eastern Gap of the Gulf of Mexico, an area believed to be rich in oil and gas deposits. The three countries’ overlapping claims in the Eastern Gap had created what is known as a “Doughnut Hole.” Trilateral discussions begun in mid-2016 on the maritime territorial issue were concluded by the end of the year. Because it is a treaty, for the U.S. it must be ratified by the U.S. Senate.

On January 19 in Havana the two countries signed a memorandum of understanding to help prevent the introduction and spread of quarantine pests, animal and plant disease agents through the exchange of scientific information, best practices for the prevention and control of plagues and emerging diseases, collaborative scientific projects, including the use of technology, research and surveillance, and the holding of events on specific aspects of animal and plant health. This MOU provides a specific framework for the cooperation in the field of animal and plant health, complementing the provisions of the MOU on cooperation in the field of agriculture and other related areas that was signed on March 21, 2016.

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[1] U.S. State Dep’t, United States and Cuba Sign Search and Rescue Agreement (Jan. 18, 2017); U.S. State Dep’t, United States and Cuba Sign Maritime Boundary Treaty (Jan. 18, 2017); Reuters, United States and Cuba Complete Deals as Trump Era Set to Begin, N.Y. Times (Jan. 18, 2017); Reuters, US, Mexico, Cuba Ready to Sign ‘Doughnut Hole” Deal in Gulf Waters, N.Y. Times (Jan. 18, 2017), DeYoung, U.S.-Cuba sign torrent of agreements under the inauguration wire, Wash. Post (Jan. 18, 2017); Hernandez, Cuba and U.S. sign search and rescue agreement, Granma (Jan. 18, 2017); Cuba Foreign Ministry, Cuba and United States Signed Treaty on the Delimitation of the Continental Shelf in the Eastern Polygon of the Gulf of Mexico (Jan. 18, 2017); Cuba Foreign Ministry, Cuba and the United States sign Memorandum of understanding in the field of animal and plant health (Jan. 20, 2017).

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

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

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

Certain Senators’ Concerns

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

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

 Saudi Arabia’s Reactions

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

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

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

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

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

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

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

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

Other Reactions

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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