Watch Their Language! On listening to the Bipartisan Calls to End the Cuba Embargo

July 31, 2015

This morning, before an audience gathered at Florida International University, former Secretary of State Hillary Clinton said, “The Cuba embargo needs to go, once and for all. We should replace it with a smarter approach that empowers the Cuban private sector, Cuban civil society, and the Cuban-American community to spur progress and keep pressure on the regime.”

Earlier this week, Representative Tom Emmer wrote in an op-ed arguing that none of the aims of U.S. policy are achievable with the embargo still in place. The Minnesota Republican said ending trade restrictions would advance the goals of human rights, free expression, and open markets in Cuba. This week, Emmer did more than talk; he introduced legislation to repeal the embargo with Rep. Kathy Castor, a Florida Democrat.

What are we in the U.S. supposed to think when a Democratic candidate for President of the United States and a Republican elected to the Congress in 2014 use the same language to increase public support to end the embargo that was used for decades to defend sanctions?

Let’s start by recognizing that Secretary Clinton and Rep. Emmer are right to call for the trade embargo to end. Restrictions on trade and travel hurt Cubans economically and demonstrate disregard for their country’s sovereignty, which hurts our relations with Cuba and the nations of Latin America more broadly.

These policies have also prevented the people of our country from traveling freely, exchanging with Cuban citizens from whom we have much to learn, and deprive U.S. companies of opportunities for profit and job-creation by locking them out of the Cuban market.

Emmer framed his bill and Clinton framed her Cuba policy speech by defining repeal of the embargo as an expression of the U.S. national interest.

Then, by coincidence or design, Emmer and Clinton both used language most likely to win the most valuable new converts to their cause: those least likely to change their minds because they are angry at Cuba’s government or still hold out hope that after more than 50 years sanctions will finally begin to work.

Social science tells us that if you if you want someone to accept a new perspective make sure to present it to them in a context that doesn’t trigger a defensive, emotional reaction.

Instead, talk to them, as Tom Emmer does, in ways that connect the case for ending the embargo to their most cherished values. As he said to a reporter for USA Today:

“I understand there’s a lot of pain on both sides of this issue that goes back many decades, something that a kid from Minnesota is not going to necessarily be able to understand. But I believe this is in the best interests of the Cuban people. This isn’t about the Cuban government – it’s about people on the street looking for more opportunity and to improve their quality of life.”

The literature also says you can advance the argument further by providing information to people that they also assume to be true. This was undoubtedly why Secretary Clinton said that Cubans “want to buy our goods, read our books, surf our web, and learn from our people. They want to bring their country into the 21st century. That is the road toward democracy and dignity,” she said, “And we should walk it together.”

Their language advocating an end to the embargo must have been very effective, since it appeared to make supporters of the U.S. sanctions strategy very nervous – given their reactions.

Mauricio Claver-Carone, director of the U.S.-Cuba Democracy PAC, lectured Secretary Clinton that she’d gotten the politics wrong – she was energizing voters who disagree with her position, operating on the basis of manipulated, unreliable polls – and allowed herself to be “walked down a political plank.”

Florida Senator Marco Rubio called her position “a grave mistake” and an act of “appeasement.”

Jeb Bush said that Secretary Clinton is endorsing “a retreat in the struggle for democracy in Cuba,” and he called her speech “insulting to many residents of Miami.”

Of course, it depends what your definition of “many” is. A call to action “Join us to protest Hillary demanding the lifting of Cuban embargo” produced what Politico called “a relatively muted response from about two dozen participants.”

To us, this is storm and fury signifying little.

The hardliners know — as we do — that when conservatives unite behind a policy that’s consistent with their values, joined by businesses who believe the policy is good for their bottom lines, joined by foreign policy icons declaring the strategic interests of the U.S. will be realized by trading with Cuba rather than isolating it, joining the faith community, and joining experts and advocates who’ve been here all along – this is how great causes gather momentum.

In losing the battle for language, they are really losing the war on policy. Even if some of the rhetoric seems a little stale, the debate has actually shifted and the wind has already changed course.

Read the rest of this entry »


Flag Poles to Public Opinion Polls – Is Congress (Finally) Getting the Message?

July 24, 2015

Today, we ask when the pageantry of diplomacy and the immense, growing public support for the new U.S.-Cuba policy will translate into actions by Congress to realize the promise of engagement.

That day may be closer than you think.

On Monday, the United States and Cuba restored diplomatic relations, the State Department installed the Cuban flag along a row 190 others in its majestic entrance, and Cuban diplomats, led by Foreign Minister Bruno Rodríguez, raised the Cuban flag at a celebration marking the reopening of the Cuban embassy, capped by the singing of Cuba’s Bayamesa and our Star-Spangled Banner.

In an extraordinary year that has seen a surge in U.S. travel to Cuba, Cuba removed from the terror list, the Presidents of Cuba and the United States seated together at the Summit of the Americas, and U.S. Congressional and business delegations welcomed in Havana, Monday was truly a spectacular day.

All of this progress, along with the wise exercise of executive power that made it possible, is winning in the court of U.S. public opinion in ways that are really catching our attention.

We’ve examined 12 polls conducted and released since January 1st. Time and again, these surveys find that public support for the Cuba opening is strong, growing, and pervasive. Support for the new policy is bipartisan. It is significantly high among segments of voters — such as Hispanics — that candidates running for office increasingly care about. Most of all, the latest research shows that public support is rising.

For example, support for ending the embargo was measured in July by the Pew Research Center at 72% and CBS News at 58%, in June by the Chicago Council on Public Affairs at 67%, and earlier this year by Gallup at 59% the Associated Press at 60%.

In this divisive, partisan political climate, when policies associated with President Obama normally draw distinctly differently levels of support from Democrats and Republicans, the new policy is now attracting real bipartisan support. The Chicago Council on Public Affairs poll reports that 59% of Republicans now favor ending the embargo. The Pew Research Center poll shows that, since January, Republican support has jumped sixteen points from 40% to 56% for reestablishing diplomatic relations, and increased 12%, from 47% to 59%, for ending the trade embargo.

Univision, the Spanish-language television network, interviewed 1,400 Hispanic registered voters in June, and drilled down hard on the question of whether a decision by a presidential candidate to support normalization of relations would affect their vote; meaning, would that position make it more likely, less likely, or make no difference in their vote for president.

Eighty percent of respondents said a decision by a candidate to back normalization would either make it more likely to support that candidate (34%) or have no impact at all on their vote (46%). Among Hispanic Republicans, 70% reached the same conclusion. Among Hispanics of Cuban heritage, just 26% said it would make them vote against a pro-normalization candidate.

The lesson here is that voters are not of a mind to punish candidates who entertain new thinking about Cuba.

But there’s also evidence that support for the Cuba opening is growing. The CBS poll has support for ending the travel ban at 81%. The July Pew Research Center survey shows a ten point increase in national support for diplomatic relations and a six point jump in support for ending the embargo, compared to January of this year. AP has support for diplomatic relations at 71%.

Now we are starting to see evidence that public support for America’s new Cuba policy is exerting its force on policymakers in the U.S. Congress.

Below you will find a detailed report on three amendments approved by the Senate Appropriations Committee this week to end the ban on travel for all Americans, to ensure that U.S. farmers have greater access to credit to finance agriculture sales to Cuba, and to make it easier for cargo vessels to return to the U.S. after doing business in Cuban ports.

We can point to Senator Dean Heller (NV), a prior recipient of campaign cash from the hardliner-funded U.S.-Cuba Democracy PAC, who succeeded Senator John Ensign, author of the Cuba Transition Act, a regime change proposal. Mr. Heller, who visited Cuba at the end of June, just signed up as a cosponsor of the Freedom to Travel to Cuba Act of 2015.

We can cite Representative Bradley Byrne (AL-1) who visited Cuba with our organization, changed his position to support President Obama’s decision to remove Cuba from the terror list, and is now talking to businesses in his Mobile district about reopening trade with Cuba.

Then, there are the growing numbers of U.S. businesses – like JetBlue, AirBnB, Infor, and so many others – who are forcing the discussion of how much damage policymakers will allow the embargo to do before they start protecting the economic interests of our country.

Yes, there is a ton of work left for us to do. But we are encouraged that Congress is beginning to close the gap between public opinion and public policy, and starting to think about how the change in U.S.-Cuba relations can benefit more Americans and help Cubans lead more prosperous lives.

Read the rest of this entry »


A Banner Year for Change

July 17, 2015

Last Friday, the Confederate Flag was lowered on the State House grounds in Columbia, South Carolina.

Next Monday, the Cuban Flag will be hung in the State Department lobby and wave over the building in Washington that will once again serve as Cuba’s embassy.

Later this summer, the flag of the United States of America will be hoisted in Havana at the newly-reconstituted U.S. embassy by Secretary of State John Kerry.

In these weeks, flags – so often invoked as symbols of resilience or an unchanging national character – represent the capacity of nations and their people to grow and change.

It took a while. For sixteen years after President Eisenhower closed our embassy in Havana and severed diplomatic relations with Cuba, an aggressive U.S. policy to reverse the Cuban revolution was frozen in the amber of its own ineffectiveness.

President Jimmy Carter, who wrote in a National Security Directive issued in 1977, “I have concluded that we should attempt to achieve normalization of our relations with Cuba,” tried to see past the Cold War into a future where diplomacy would heal the breach between our countries opened by the Cold War.

Under his direction, an agreement between the U.S. and Cuba resulted in the opening of Interests Sections in their respective capitals, which Carter hoped would soon evolve into embassies, if the bilateral relationship could be righted under his leadership.

But neither the Cuban reality nor U.S. domestic politics would align with Carter’s hopeful vision, and so his dream of restoring full and formal diplomatic relations waited another thirty-seven years to be realized.

Those of us who came to work on the Cuba issue more recently should acknowledge the debt we owe public servants like President Carter and Ambassador Wayne Smith, and to the experts and activists who worked over the decades, and the people we once called “moderate” Cuban Americans – they are the mainstream now, but sacrificed much to get there – so we could all see this new day arrive.

Their spirits never flagged.

Thanks to them, we now see history as if it were on fast-forward; Presidents Obama and Castro restoring diplomatic relations, freeing prisoners, sitting together at the Summit of the Americas, and opening reciprocal opportunities for travel and trade. The people of Cuba and the United States are seeing the same changes we are, and like what they see.

We expect to see tough negotiations ahead over real differences on human rights and on U.S. programs that continue to press for regime change in Cuba. But we never expected to see the Cuban National Assembly live tweeting reactions to a Castro speech about forging a new kind of relationship with the United States.

History isn’t just on fast-forward; in 2015, it is moving at warp speed.

 

Read the rest of this entry »


Rubio, Cuba, and a tale of two speeches

July 10, 2015
 

On July 7th, Senator Marco Rubio delivered a speech said to be about reforming higher education and finding where the jobs of the future will be created. But, it was really about the failed ways of Washington and the character of strong leadership. In one key section he says:

We have learned, painfully, that the old ways no longer work – that Washington cannot pretend the world is as the same it was in the 80s, it cannot raise taxes like it did in the 90s, and it cannot grow government like it did in the 2000s. The race for the future will never be won by going backward.

Just one day later, Mr. Rubio published a column in the New York Times that turned the logic of his jobs speech on its head. He tore into President Obama for saying that the old way of our Cuba policy “hasn’t worked for 50 years,” for accepting that the world had changed since the Cold War, and for trying to help Cubans win their own race for the future by moving Washington away from policies aimed at destroying their country’s system.

The Rubio jobs speech got a respectful reception in the marketplace of ideas, e.g. “Florida senator and 2016 candidate casts himself as a ‘new president for a new age.'” But, in “Marco Rubio’s Embarrassing Defense of Cuban Embargo,” Jonathan Chait drenches his Times op-ed in ridicule.

Citing the evidence that the embargo hasn’t weakened the communist party’s grip on power, but rather has imposed huge and painful costs on the U.S. economy, the Cuban people, and U.S. diplomacy in the region, Chait examines Rubio’s attack on the Obama policy change and writes “The trouble with Rubio’s response is not so much that his response to this reasoning is weak so much as it is nonexistent.”

For the hardliners, this is a problem. In a moment when there are powerful forces at work reshaping the way our country, our people, and our public institutions think about and relate to Cuba, it is striking that one of the nation’s most prominent legislators and political leaders who supports the U.S. embargo cannot make a persuasive argument in that policy’s defense. The increasing anemia of pro-embargo arguments in the real policy arena is becoming increasingly evident.

As we report below, Senator Lindsey Graham of South Carolina promised in December that he’d use all the powers of his office to block funding for the U.S. embassy in Cuba. Yet this week he had to watch the State Department budget bill that he wrote be approved by his own Subcommittee and pass easily through the full Senate Appropriations Committee without any such restrictions. This happened simply because he couldn’t get the votes.

Long-time hardliners are pledging to block the appointment of a U.S. Ambassador to Cuba and hoping to use the State Department budget passed by the House to close the embassy in Cuba, but presidential candidate and former Florida governor Jeb Bush quietly separated himself from the maximalist position. The Guardian reported that when asked if he would allow a US embassy in Havana to open, Bush replied, “I haven’t given thought about undoing a work in progress.”

There are more defections to come. Think about Senators from the Midwest. Cuba spends about $1.7 billion every year importing foreign food to feed its people because it cannot meet their nutritional requirements with domestic production. Even though it’s legal for U.S. producers to sell into the Cuban market, U.S. restrictions on trade and financing have caused Cuba to meet it needs by importing food from our foreign competitors, with whom trade and obtaining credit is much easier.

If you sit in the U.S. Senate representing Kansas and you know that Cuba has not imported U.S. wheat for five years, how much longer can you expect your farmers to sit still for explanations about why legislation to eliminate trade barriers to Cuba hasn’t moved in the Senate?

How much longer must a Senator from Iowa explain to his or her constituents that the nation’s number one producer of corn, pork, and eggs can’t maximize sales to a market of 11 million people 90 miles off our shores because we have a policy that prefers that Cubans remain hungry or that their government buys food from China?

Sooner or later those Senators are going to get off the fence and join the American Farm Bureau Federation, the American Soybean Association, the National Association of Wheat Growers, the National Farmers Union, and other commodity groups who are supporting legislation to end the trade embargo of Cuba. Why? Because it’s good for the Cuban people and money in the pockets of their constituents and farmers. As Senator Rubio says, the race for the future will never be won by going backward.

Don’t be surprised if this logic someday moves to Florida. Twenty-nine states have lower unemployment rates than the Sunshine State. A big driver of job creation in Florida can be found in the leisure and hospitality industries. And yet, when Florida’s Representatives in Congress vote to stop new flights and ferries from serving the Cuban market they’re really voting to take jobs away from OrlandoTampa, and Miami.

And guess what? The Florida State Supreme Court has just ruled that when the Florida State Legislature created eight congressional districts through the use of illegal gerrymandering it operated with unconstitutional intent. Most of those districts are represented in Congress by Members of the Florida delegation who constantly vote to place restrictions on travel and trade with Cuba at the direct expense of their constituents’ jobs and basic right to travel freely. This can’t go on much longer.

We are witnessing a significant moment of Cuba policy reform. The old ways of doing things never worked before and won’t work now. In Rubio’s job speech, he offers a lesson about leadership in an era of profound change. Generations don’t overcome their challenges through resistance, but by adaptation:

Businesses integrating new technologies, workers learning new skills, and leaders leading in a new direction.

In Cuba policy, that new direction was charted on December 17, 2014.

 

Read the rest of this entry »


Reflecting on Carlos Gutierrez’s Cuba Conversion and Why He Was Rebuked

June 26, 2015

As U.S. Secretary of Commerce in the administration of President George W. Bush, Carlos Gutierrez supported policies to overthrow Cuba’s government and replace its political and economic systems with a framework forged in Washington.

A day after the speeches by President Obama and Castro on their decision to restore bilateral relations, Gutierrez told Time Magazine that the agreement was “lopsided,” and he warned the U.S. business community, “This could backfire in a really big way.”

After some hints and feints earlier this year, Gutierrez has fully and publicly made the transition from anti-Castro caterpillar to pro-engagement butterfly, in what the Miami New Times is calling “a startling turnaround for a Cuban American,” but which others describe as a betrayal.

Mr. Gutierrez published an essay in the New York Times this week, “A Republican Case for Obama’s Cuba Policy,” which follows the arc of his life from 1960 when his family left Cuba and with it all their possessions, to this moment when he can look back after having “achieved personal and professional success beyond anything I could have imagined.”

In December 2014, he found himself, as a Republican and Cuban American, thinking Obama was out-negotiated by a Cuban government determined to extend the revolution. Now, Secretary Gutierrez sees genuine progress in the plans to open new embassies and the bilateral talks on a host of issues, including the status of U.S. fugitives in Cuba.

He writes, “I never expected negotiations to get this far.”

Secretary Gutierrez now believes it is in the best interests of the Cuban people for President Obama’s new policies to succeed. In his op-ed, he urges support for the reforms that seek to help Cuba’s growing class of small-business owners and employees “obtain the tools, supplies, building materials and training in accounting, logistics and other areas” that they need “to chart their own course in life.”

Then, significantly, he turns to his “fellow Cuban-Americans [who] insist that continuing to squeeze Cuba economically will help the Cuban people because it will lead to democracy,” and asks “if the Cubans who have to stand in line for the most basic necessities for hours in the hot Havana sun feel that this approach is helpful to them.”

We think the Secretary’s turnabout and his direct challenge to the hardliners is a pretty big deal. His critics seem to think so, too.

Guillermo I. Martinez claimed the Secretary’s column “makes no sense,” and expressed his feelings of betrayal in writing, “I cannot imagine him saying that when he was working for a Republican president or when he was working for an American company.”

Taking the theme of defection to the next level, Capitol Hill Cubans published this piece saying that “The Obama Administration (and Castro’s D.C. lobbyists) weren’t the only ones thrilled by former U.S. Secretary of Commerce Carlos Gutierrez’s endorsement of the Obama Administration’s (give-everything-for-nothing) Cuba policy,” alleging that the piece had run in Granma, the state newspaper, because “Castro’s censors clearly found nothing objectionable in Gutierrez’s editorial.”

If this language of reproach is familiar, you might be thinking of the reaction to Alfonso Fanjul, the Cuban American sugar magnate, when he told the Washington Post he was open to investing in Cuba. Rep. Ileana Ros-Lehtinen responded by saying “it’s pathetic that a Cuban-American tycoon feels inspired to trample on the backs of those activists in order to give the communist thugs more money with which to repress.”

Or you might be reminded of Senator Marco Rubio’s refrain of betrayal after the White House commended Pope Francis for his instrumental role in the U.S.-Cuba negotiations. Rubio told a packed press conference he’d take it upon himself to “ask His Holiness to take up the cause of freedom and democracy” in Cuba, adding, “the people of Cuba deserve to have the same chances at Democracy as the people of Argentina have had, where he’s from.”

It was only a few days back, when Engage Cuba celebrated its broad coalition – studded with distinguished foreign policy experts, industry leaders, and Cuban American moderates – favoring repeal of the embargo and normalized relations, that Orlando Luis Pardo Lazo, the Cuban dissident and adjunct professor at Brown University, declared war. Literally:

“For pro-democracy activists both on and off the island, the war is no longer against the dynastic and despotic regime of Revolution Plaza, but against the indifferent and indecent establishment of the White House and State Department.”

What makes the brash become so rash when leaders have a change of heart? Social science tells us they are trying to discourage other leaders from changing their minds to stop members of their community from following suit.

Cass Sunstein, a constitutional scholar and public intellectual, has described how the information silos many of us live in make us resistant to changing our minds. He labels as the “the echo chamber effect,” the influence that MSNBC wields on the left and that Fox News exerts on the right. In those communities, groups tend reach the same judgments based on the same arguments, while a desire to get along with the larger group suppresses individuals who might otherwise think differently.

Even though people will dismiss accurate information because it would falsify their convictions (think climate change is real or the embargo hasn’t worked), Sunstein argues that “they may reconsider if the information comes from a source they cannot dismiss.”

That’s why the President and the Pope loom so large. It is also why, when a sugar baron or a former Commerce Secretary changes his mind, the hardliners act as if they are losing theirs. Read the rest of this entry »


The Cuban Military Not So Transparent Act

June 19, 2015

Legislation introduced earlier this month by Senator Marco Rubio (FL) – the Cuban Military Transparency Act – isn’t transparent at all.

Rather than revealing something about Cuba’s military, the legislation conceals the intent of its authors; namely, to shame, harass, and try to stop every American from visiting Cuba or seeking to do business in Cuba, and to return U.S. policy to its pre-December 17, 2014 goal of starving the Cuban economy and the Cuban people along with it.

Why are the seven Senate sponsors relying now on such desperate measures? A few numbers – 43, 36, and 620,000 – tell the story.

  • We can now count forty-three Republican and Democratic Senators who’ve stepped forward to sponsor The Freedom to Travel to Cuba Act, legislation to make it legal for all Americans to travel to Cuba. We congratulate Senators Barbara Mikulski (MD), Patty Murray (WA), and Pat Roberts (KS), the chairman of the Agriculture Committee, for being the most recent among them.
  • President Obama’s decision to streamline regulations on purposeful travel to Cuba has galvanized interest across the United States in visiting Cuba. From January 1 to May 9th in 2015, there has been a 36% increase by Americans to the island over the same period last year.
  • For Cuban Americans who can visit Cuba on an unlimited basis, thanks to regulatory changes by President Obama, travel to the island is rising substantially. According to the Havana Consulting Group, family travel visits could 620,000 in 2015, a record.

This surge in visitors makes a huge difference for Cubans employed in transportation, lodging, restaurants, the owners of restaurants and beds and breakfasts, and the artisans and translators who get payments in hard currency or work in the “tip economy.”

According to 14ymedio, the number of self-employed persons in Cuba exceeded 500,000 for the first time at the end of May 2015, with young people and women benefitting enormously.  Studies show that travel and tourism are big drivers of employment and economic growth. As state-owned enterprises like hotels struggle to accommodate increases in tourism, the private sector will, as one analyst reported, fill capacity gaps, especially in the areas of lodging and restaurants, accelerating change in the structure of Cuba’s economy.

The economic reforms under President Raúl Castro enable Cubans to work for businesses that profit from the increase in travel taking place under President Obama’s policy reforms. Many Cubans are earning more money, and interacting and exchanging more with U.S. travelers. This is a virtuous circle producing better lives for Cubans in ways that simply couldn’t happen under 50 years of isolation and sanctions.

Most of us look at this emerging picture and think, “what’s not to like?” In contrast, the Senate sponsors of the Cuban Military Transparency Act see the fifty years of diplomatic isolation and economic sanctions they’ve supported coming to an end. That is why they are acting so desperately.

So, what does their legislation really attempt to do? If enacted into law, it would prohibit a U.S. person from engaging in any financial transactions with Cuba’s Ministry of Defense and Interior Ministry, senior officials employed by them, or entities they own or control.

It’s not a secret that in Cuba, a socialist state with a largely state-owned economy, the military is invested in state-owned businesses, and several of those – as the Senate bill says – are dominant players in Cuba’s tourist industry.

Given the military’s broad role in Cuba’s economy, any expenditure by U.S. travelers and businesses – including the cost of hotel rooms, telephone calls, airport taxes, the hotel occupancy tax, sales taxes on tourist purchases, resort fees – could be prohibited presumptively unless the traveler or company could persuade OFAC they spent their money in Cuba some other way.

How could they prove the negative? Who in Cuba will hand out the forms that say “that hotel room” or “that painting” or “that serving of ropa vieja” didn’t come from an enterprise owned or controlled by Cuba’s military? Of course, the sponsors aren’t interested in compliance with their bill – they simply want to fill Americans with fear so that they don’t pack their bags and go, doing incalculable damage on Cuban families and their prospects for the future.

And let’s be clear: this legislation covers ETESCA, Cuba’s telecommunications company. Should it become law, it would prohibit Google and Facebook from doing business in Cuba. Millions of Cubans waiting for better connections to the Internet could thank the 7 Senate “transparency act” sponsors for that result as well.

If there were a truth-in-naming rule in the U.S. Congress, they could have given this enormously damaging legislation a much more fitting title:

  • The No-Freedom to Travel to Cuba Act;
  • The Stop Cuban Americans From Visiting their Families in Cuba Act;
  • The Smother Free Enterprise in Cuba Act; or even
  • The Keep Google and Facebook from Connecting Cubans to the Internet Act

But no such rule in Congress exists, as is transparently the case.

Read the rest of this entry »


Is The Supreme Court Passport Decision A Threat to Helms-Burton? We think so.

June 12, 2015

The Supreme Court’s decision this week in what is called the Jerusalem Passport Case poses a clear danger to the Helms-Burton law, and it will help to accelerate the unraveling of what has held together our nation’s counterproductive policies against Cuba.

The hardliners feared and predicted exactly this fallout from a decision by the Supreme Court that was adverse to their interests.

First, let’s start with a brief description of the case.

Although Israel considers Jerusalem to be its capital, Presidents of both parties since Harry Truman have maintained a neutral position on Jerusalem’s status pending a peace settlement. In 2002, Congress, as the Washington Post explained, “passed a law that, among other things, allows Jerusalem-born applicants for U.S. passports to record their place of birth as ‘Israel’ if they so request.” The intent was to nudge U.S. policy in the direction of Israel’s position on Jerusalem. President Bush, who signed the provision as part of a larger appropriation measure, nonetheless issued a public statement opposing it because it “impermissibly interferes with the President’s authority to conduct the Nation’s foreign affairs.”

SCOTUS Blog takes up the story here: “Shortly after his birth in Jerusalem in 2002, Menachem Zivotofsky’s parents applied for a U.S. passport for their infant son,” exercising their right under the Congressional passport provision “to ask the State Department to designate ‘Israel’ as Menachem’s place of birth.”

The State Department turned them down, citing the U.S. policy since 1948 “of not recognizing any country as having sovereignty over the holy city of Jerusalem. The Zivotofskys went to court to challenge that decision.”

For nearly 13 years, the case went up and down the judicial and appellate food chain. But the closer it got to the Supreme Court, the more anxious the cross-cutting coalition of pro-Israel and anti-Castro Members of Congress became.

What Senate and House supporters of the passport feared most was the possibility that the President could be given what their amicus brief called “carte blanche to treat as unconstitutional—and to refuse to comply with—any Act of Congress that it determines touches on recognition policy.”

In its 6-3 decision, however, the Supreme Court held the President has exclusive power to grant formal recognition to a foreign sovereign. Justice Anthony Kennedy, writing for the majority, said “The formal act of recognition is an executive power that Congress may not qualify.” In what could almost be construed as a reference to the Cuba negotiations, the Court writes, “The President is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition.”

At the same time, the Supreme Court left in place all the powers the Congress shares with the President on foreign policy – to declare war, regulate foreign commerce, fund the armed forces, the right to vote down ambassadors, the power to provide no funds for an embassy –the tools that the hardliners are using in the appropriations process right now to try and turn back the Cuba policy reforms ordered by President Obama after he announced our diplomatic breakthrough with President Castro.

But, time and again, the Court makes clear that “Recognition is a ‘formal acknowledgement’ that a particular entity possess the qualifications for statement’ or ‘that a particular regime is the effective government of a state’,” and that those powers belong to the President of the United States alone.

Now, go read Helms-Burton, the law signed by President Bill Clinton, which arrogates to the Congress a lot of authority for determining when – and under what circumstances – the United States can resume normal relations.

The law says the president cannot color outside the Congressional drawn lines. Only when the government in Cuba fits the definition of a government in transition or a democratically-elected government can the President recognize Cuba, trade with Cuba, negotiate with Cuba over Guantanamo, allow Cuba to enter the World Bank or other financial institutions, etc.

This is what Helms-Burton was also all about; placing conditions on the independent authority of the President and preventing him or her from engaging in diplomacy or normalizing relations with Cuba, until Cuba fit the definition that Congress wrote into the law. It was seizing for itself the recognition authority that the Supreme Court ruled this week is assigned to the President alone.

The whole architecture of the Cold War Cuba policy is coming apart. It has no public support to speak of. President Obama has used his executive power to liberalize travel and trade. Engagement is as popular in Florida as it is anywhere in the United States, and it is even more popular in Cuba. U.S. travel to the island is surging; businesses are chomping at the bit to make contacts and sign contracts. Members of Congress who marched in lock-stop with the hardliners are changing their minds. And now the law which was the backstop for all of this – and for all the people who said, the power lies with Congress and Congress ain’t budging – the passport case proved to be the sum of all their fears.

In fact, the President gets to decide which governments we recognize; a principle, the court tells us, dating back to the first presidential administration. “The debate,” the court writes, arose in 1793 after France had been torn by revolution. Once the Revolutionary Government was established, Secretary of State Jefferson and President Washington, without consulting Congress, authorized the American Ambassador to resume relations with the new regime.” When Citizen Genet was welcomed in Washington, France was recognized.

Yes the Senate through its confirmation power can stop the President from having a U.S. Ambassador in Cuba, but it cannot stop the Cuban Ambassador from being welcomed by the President.

If it worked for George Washington and Citizen Genet, it will work for Barack Obama and Jose Cabañas.

Read the rest of this entry »


Follow

Get every new post delivered to your Inbox.