Uncertainty Over Future Cuban Policies of Trump Administration

Journalists at an April 4 Miami conference voiced the unanimous opinion that the future Cuban policies of the Trump Administration were uncertain.[1]

This is not a surprising opinion due to the failure of the Administration to appoint senior State Department officials under new Secretary of State Rex Tillerson, the proposed large reductions in the Department’s budget for the next fiscal year, the overall disarray within the Administration and its preoccupation with other issues. In short, Cuba is not high on the Administration’s list of priorities.

In the meantime, the U.S. Treasury Department’s Office of Foreign Assets Control apparently is continuing to grant licenses to U.S. companies to operate on the island and to contract with Cuban state enterprises.[2]

At least this uncertainty and continuation of OFAC licensing is better than a return to overt U.S. hostility towards Cuba as has been suggested by President Trump himself and by some of the people involved in the Trump transition and Administration.[3]

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[1] Hernandez, Panel: Relations between Cuba, U.S. remain uncertain under Trump, Miami Herald (Apr. 4, 2017).

[2] Torres, Trump administration continues to issue OFAC licenses authorizing business with Cuba, Miami Herald (April 4, 2017).

[3] See posts listed in “U.S. & Cuba in the Trump Administration, 2017-“ at the end of List of posts to dwkcommentaries—Topical: CUBA.

Delay in U.S. Extradition of Inocente Orlando Montano Morales to Spain for Trial in Murder of the Jesuit Priests in El Salvador

 

Previous posts have discussed U.S. proceedings for extradition to Spain of Inocente Orlando Montano Morales (“Montano”), a former Salvadoran military officer, for his alleged participation in the murder of six Jesuit priests in El Salvador in November 1989. Such extradition was approved in February 2016 by a U.S. Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina, and thereafter Montano challenged that decision by filing an application for a writ of habeas corpus in that court with a hearing in November 2016 on that application and the Government’s motion to dismiss the application.[1]

Four months later, on March 27, 2017, U.S. District Judge Terrence W. Boyle entered an order denying the Government’s dismissal motion without prejudice and requesting the parties to submit new briefs to address certain issues.[2]

Judge Boyle’s analysis started with the assertions that (a) Spain’s criminal case against Montano and others was based upon its law prohibiting “terrorist murder” in other countries of its nationals, five of whom were the murdered Jesuit priests; and (b) the bilateral extradition treaty between Spain and the U.S. required under these circumstances that U.S. law provided “for the punishment of such an offense committed in similar circumstances.”

Thus, for Judge Boyle, the issue to be addressed by the parties in subsequent briefs was whether the U.S. Constitution and law and international law provided for U.S. prosecution of such an offense under similar circumstances. The balance of the Judge’s Order suggests that he has serious doubts that this is so.

He starts with this legitimate premise: “Universal jurisdiction is an international law doctrine that recognizes a ‘narrow and unique exception’ to the general requirement that nations have a jurisdictional nexus before punishing extraterritorial conduct committed by non-nationals” (quoting an Eastern District of Virginia case that was affirmed by the Fourth Circuit, which has jurisdiction over Judge Boyle’s court). This “narrow and unique exception,” he implicitly says, is limited to offenses that “rise to the level of universal concern.”

International Law Issue

Judge Boyle then makes a questionable assertion, which he pins on the parties’ alleged previous arguments, that Spain’s charges for “terrorist acts involving the murder of five Jesuit priests” do not rise to the level of universal concern, such as piracy or genocide.” For this proposition the Judge cites section 404 of the Restatement (Third) of Foreign Relations Law [of the U.S.] (1987), which says, in part, that “offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps terrorism.” (Emphasis added; p. 3, n.2.) Two pages later the Judge cites United States v. Yousef, 327 F.3d 56, 107-08 (2d Cir. 2003), which apparently concluded that “terrorism . . . does not provide a basis for universal jurisdiction” although also observing that treatises like the previously cited Restatement are not primary sources of customary international law.

No independent legal research has been conducted on this issue, but it should be noted that the Restatement is a thirty-year-old secondary authority and that the Yousef case is 14 years old, is from another circuit court and thus is only persuasive authority at best and Judge Boyle merely says this case has been cited by Montano.

The complex Yousef case involved three defendant foreigners who appealed from judgments of conviction for multiple violations of U.S. law, including a conspiracy to bomb a Philippines Airline aircraft flying from the Philippines to Japan. The appellate court rejected the defense arguments that the U.S. had no jurisdiction for this charge because U.S. “law provides a separate and complete basis for jurisdiction over [this and other charges] . . . [U.S.] law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and, in fact, may conflict with both . . . [and because] customary international law does provide a substantial basis for jurisdiction by the [U.S.] over each of these counts, although not . . . under the universality principle.”

Indeed, the Second Circuit in Yousef held in 2003 that “customary international law currently does not provide for the prosecution of ‘terrorist’ acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism.” (Emphasis added.) The court also noted that those offenses supporting universal jurisdiction under customary international law — that is, piracy, war crimes, and crimes against humanity —. . . now have fairly precise definitions and that have achieved universal condemnation.” (Emphases added.)

Such definitions of “war crimes” and “crimes against humanity” are found in Articles 7 and 8 of the Rome Statute of the International Criminal Court, which has jurisdiction over “the most serious crimes of concern to the international community as a whole,” including crimes against humanity” and “war crimes.” Here are the relevant parts of that Statute:

  • One of the “crimes against humanity” is “murder” “when committed as part of a widespread or systematic attack directed against any civilian population” or “a course of conduct involving the multiple commission of [murder] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” Given the circumstances of the Salvadoran Civil War and the actions of the Salvadoran military, circa 1989, these conditions for this type of crime against humanity should be satisfied.
  • One of the “war crimes” is “willful killing” of “persons . . . protected under the provisions of the relevant Geneva Convention.” Here, that is the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War), which protects “Persons taking no active part in the hostilities” against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

Therefore, although not yet subjected to complete legal analysis, a respectable argument for this issue for extradition can and should be made.

U.S. Legal Issues

 Judge Boyle also raised two issues of U.S. law: (1) whether there was a U.S. law that would justify a U.S. criminal charge against Montano for his alleged participation in the killing of the Jesuit priests and (2) whether such a hypothetical U.S. charge would satisfy the U.S. constitutional requirement for “due process of law” under the Fifth Amendment.

I leave these issues to the subsequent briefs of the parties.

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[1] See posts listed in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2] Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D. N.C. Mar. 27, 2017).

Cubans Want Economic Growth and Opportunity

A rare and limited public opinion poll of Cubans showed strong support for increased economic opportunity and growth. The poll in Cuba was a national random route-sample of 840 Cubans who were 18 years and older that was conducted between October 3 and November 26, 2016 by NORC, a respected public-opinion organization, at the University of Chicago.[1]

Cuban Economic Issues[2]

Many Cubans feel stuck in the current economic climate. Overall, 46 percent say the current condition of the Cuban economy is poor or very poor while 35 percent say it is fair. Only 13 percent of Cubans describe the condition of the Cuban economy today as good or excellent. Moreover, few Cubans think the economy is going to improve anytime soon: 47 percent say the economy will stay about the same and 8 percent say it is going to get worse while 33% say the condition of the economy is going to get better over the next three years,

Cubans have a slightly more positive view of the state of their family’s finances, though few anticipate improvement in the coming years: 24% rate their finances as poor or very poor while 18% rate the current condition of their family’s finances as good or excellent. Nearly 6 in 10 expect their finances will stay the same in the future.

Looking ahead, Cubans would like to see the government focus on economic growth and maintaining stability over the next 10 years. Fully 95 percent of Cubans say having a high level of economic growth is an extremely or very important goal. Nearly as many (87 percent) say it is very or extremely important that Cuba prioritize maintaining stability over the next 10 years.

Roughly two-thirds of Cubans (65 percent) say there should be more private ownership of business and industry, while 29 percent say there should be more government ownership. Many Cubans have entrepreneurial goals; more than half (56 percent) say they would like to start their own business over the next five years. Sixty-eight percent see competition within the marketplace as positive because it stimulates people to work hard and develop new ideas. One-quarter say competition is harmful and brings out the worst in people.

Over half of Cubans say they would like to move away from Cuba if given the chance. Of those who would leave, nearly 7 in 10 say they would want to go to the United States.

Other Cuban Problems

Crime is seen as the most serious issue facing Cuba today, with 51 percent of Cubans reporting that it is an extremely or very serious problem. Another 4 in 10 say that poverty (41 percent), lack of internet access (41 percent), and corruption (38 percent) are each serious issues in Cuba.

In day-to-day life, many Cubans proceed with caution in placing trust in others and in expressing themselves publicly. Just 21% say they can always express themselves freely, while 76% say they must be careful in what they say sometimes.

Most Cubans get their news from state-owned television stations and newspapers, Cuban radio, and family or friends. Just 1 in 4 use foreign media sources. But, even controlling for other demographic and socioeconomic factors, those Cubans who access foreign media are more positive about the national economy and their personal financial situations, more likely to be critical of some aspects of Cuban society, and more likely to set aspirational goals such as traveling abroad, starting their own business, and buying a car or home.

Cuba-U.S. Relations

Fifty-five percent of Cubans overall say that Cuba-U.S. normalization of relations will be mostly good for Cuba, while 3 percent say it will be mostly bad. Another 26 percent say it will have no impact. Thirteen percent aren’t sure what the impact will be.

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[1] NORC, A Rare Look Inside Cuban Society: A New Survey of Cuban Public Opinion (Mar. 21, 2017); Ahmed, In a Rare Survey, Cubans Express a Hunger for ‘Economic Growth, N.Y. Times (Mar. 21, 2017); Assoc. Press, Rare Poll Finds Cuban Citizens Favor Better US Relations, N.Y. Times (Mar. 21, 2017); A poll concludes Cubans want better relations between Washington and Havana, Diario de Cuba (Mar. 21, 2017).

[2] See this blog’s posts listed in “Cuban Economy” in List of Posts to dwkcommentaries–Topical: CUBA.

 

 

U.S. First Congress: Overview, 1789-1791

The First Congress of the United States of America and thus the official commencement of the U.S. federal government under the U.S. Constitution began on March 4, 1789, and ended on March 4, 1791.[1]

This Congress’ First Session (March 4, 1789—September 29, 1989) and Second Session (January 4, 1790—August 12, 1790) took place at Federal Hall in New York City. The Third Session (December 6, 1790—March 3, 1791), at Congress Hall in Philadelphia. Below are drawings of those buildings:

Federal Hall
Federal Hall
Congress Hall
Congress Hall

 

 

 

 

 

 

At the start of the First Congress there were 22 senators and 59 representatives. After ratifications of the U.S. Constitution by North Carolina on November 21, 1789, and by Rhode Island on May 29, 1790, there were 26 senators and 64 representatives.

There were no standing committees of this Congress. Instead the Senate and House of Representatives acted as committees of the whole to consider individual bills. Thus, there are no committee reports regarding bills like those that exist today. Moreover, there are no transcripts of debates such as exist today in the Congressional Record. The record of the 94 separate pieces of legislation produced by the First Congress, however, is available in 204 pages of 1 U.S. Statutes.

In addition, the 1st Federal Congress Project at The George Washington University in Washington, D.C. serves as a research/education center for the First Congress and has collected, researched, edited and published the Documentary History of the First Federal Congress, l789-l791 (DHFFC). Fergus Bordewich,the author of The First Congress, acknowledged his indebtedness to this Project, which has “brought together virtually every known piece of writing composed by or about the members of the First Congress . . . as well as the best official records of their debates.” [2]

As Mr. Bordewich puts it in The First Congress, “Beginning less than two years after the conclusion of the Constitutional Convention and before all thirteen states had ratified that document, the First Congress was charged with creating a new government almost from scratch. No one, neither in Congress nor outside it, knew if it would or could succeed. How it did so is an epic story of political combat, vivid personalities, clashing idealisms, and extraordinary determination. It breathed life into the Constitution, established precedents that still guide the nation’s government, and set the stage for political battles that continue to be fought our across the political landscape of the twenty-first century.” (P. 1)

Subsequent posts will examine the First Congress’ adoption of the first congressional proposed amendments to the U.S. Constitution; the statute creating the federal courts (the Judiciary Act of 1789); the statutes creating the requirements for the first census (An Act providing for the enumeration of the Inhabitants of the United States, 1 Stat. 101 (1790)) and an individual’s becoming a U.S. citizen (the Naturalization Act of 1790); and debates regarding slavery.

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[1] Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster; New York, 2016); 1st United States Congress, Wikipedia; Federal Hall, Wikipedia; Toogood, U.S. Congress (1790-1800), Encyclopedia of Greater Philadelphia; 1 U.S. Stat. 23-225 (1845)  (the statutes of the First Congress).

[2] I have not done any original research regarding the First Congress other than examining the constitutional amendments it proposed and some of the statutes it enacted. Instead for the purpose of this and subsequent posts I have relied on Mr. Bordewich’s book, but I confess that it would be fascinating to examine the records at the 1st Federal Congress Project.

 

Trump Administration Reviewing U.S. Policies Regarding Cuba

At the February 3 White House press conference, Press Secretary Sean Spicer said the Trump Administration was engaged in “a full review of all U.S. policies toward Cuba” with a focus on its human rights policies as part of the Administration’s “ensuring human rights for all citizens throughout the world.”

Such a comprehensive review has been anticipated. So far, however, no details have emerged as to how those policies might be changed.

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White House, Press Briefing by Press Secretary, Sean Spicer, 2/3/07, No. 8; Reuters, Trump Administration Reviewing Cuba Policy: White HOuse, N.Y. Times (Feb. 3, 2017).

Cuban Entrepreneurs Express Frustration and Confidence

A recent study based on interviews of 80 Cuban entrepreneurs found seemingly contradictory results.[1]

There was frustration. As expressed by the Miami Herald, “Like entrepreneurs in any country, Cuban entrepreneurs want more access to resources and fewer bureaucratic obstacles to expand and reinvest in their businesses.”

There also was optimism. Said the author of the study, Cuban-born economist Carmelo Mesa Lago, there was a “very high level of reinvestment that the self-employed engage in. Most, including those renting apartments and houses, reinvest.” The study also found a “high degree of satisfaction expressed by those who have decided to start a private business in Cuba, which has allowed them to gain autonomy and live better than those who depend on state wages.”

With virtual unanimity, the entrepreneurs complained about “the level of state interference” or over-regulations plus high prices for supplies, the absence of a wholesale market and high taxes.

The study looked at four segments of the so-called “non-state sector” of the Cuban economy: (1) the self-employed; (2) farmers who use state-owned parcels; (3) corredores   (brokers) of home sales as well as buyers and sellers of private homes; and (4) workers of non-farm production and service cooperatives. Another sector–owners of private restaurants known as paladares—was not included because, says Lago, they do not want to attract attention to their business.

The study– oces del cambio en el sector no estatal cubano (Voices of Change in the Cuban Non-State Sector)—is published by the Ibero-American publishing house.

Conclusion

This study confirms the existence of a thriving non-state sector of the Cuban economy, contrary to the Senate testimony of the new U.S. Ambassador to the U.N., Nikki Haley, as mentioned in a recent post.

The study also confirms the unsurprising difficulties and challenges the Cuban government faces in creating a mixed economy. Indeed, as covered in an earlier post, Raúl Castro in his role as the leader of the Communist Party of Cuba at its Party Congress last year stressed those difficulties and challenges while also acknowledging the essential and important contributions of the non-state sector for the Cuban economy.

Finally the study confirms the need for the U.S. to support the further development and success of this sector by continuing and enhancing the U.S. normalizing of relations with Cuba, especially the enabling of U.S. remittances to those on the island and thereby constituting a major source of capital for this sector. This very point has been emphasized by Engage Cuba, a U.S. coalition, in its lobbying of the new Trump Administration.[2]

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[1] Gámez-Torres, Cuban entrepreneurs dream big, but the government gets in their way, Miami Herald (Jan. 26, 2017).

[2] U.S. and Cuba’s Efforts To Continue Normalization, dwkcommentaries.com (Dec. 9, 2016); Lobbying the Incoming Trump Administration To Continue Normalization with Cuba, dwkcommentaries.com (Jan. 18, 2017); Engage Cuba.

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).