Wise Use of Executive Authority Could Navigate Obama off the 404 page

April 25, 2014

Thanks to ZunZuneo, President Obama has tweeted his Cuba policy into an Error 404 page.

Just this week, ZunZuneo rattled Roots of Hope, a non-profit that professed distance from government-funded “democracy promotion” programs, when the Associated Press exposed the role played by some of its leaders in the Cuban Twitter project.

It rankled Costa Rica after the AP reported that a USAID manager stationed in San Jose played a role in supervising the project, dragging a staunch U.S. ally which respects Cuba’s sovereignty into the regime change row.

And it continued to roil press relations with the State Department, where Jen Psaki, the spokesperson, was still telling reporters that USAID had not yet finished reviewing the tweets ZunZuneo sent to Cubans to determine their political content three weeks after the scandal broke.

The 2012 election should have freed the president’s hand.  But, after the President vanquished former Gov. Romney – who famously said in Florida, “If I’m fortunate enough to become the next president, it is my expectation that Fidel Castro will finally be taken off this planet” – his Cuba policy is staggering under the weight of a really dumb program that he inherited from his predecessor.

How can the president navigate back?  He should use his authority to revive his Cuba policy in ways that demonstrate his leadership and understanding of the post-Cold War world.

Take Cuba off the State Sponsors of Terror List.  President Reagan listed Cuba for political reasons, and politics is the only justification for why it remains falsely accused and heavily penalized.

Even though the Department explains the list by saying, “the Secretary of State must determine that the government of such country has repeatedly provided support for acts of international terrorism,” the report it issued last year read like a concise statement for Cuba’s exoneration.

It said, Cuba distanced itself from Basque terrorists.  It changed from offering safe haven to some members of the FARC to hosting peace talks between it and Colombia’s government.  The report even said, “There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.”  The sole criticism it contained — that Cuba harbors fugitives wanted in the United States — is not a condition for including any country on the terror list.

Above politics, there are a number of compelling reasons – all in the U.S. national interest – for the President to remove Cuba from the terror list, and some urgency for him to take this step now.

Reconsider the sentences of the remaining members of the Cuban Five. This week, the New York Times endorsed a decision by the U.S. Department of Justice to reinvigorate the clemency power of the executive branch with this reminder:

“Throughout American history, presidents from Abraham Lincoln to Harry Truman to Gerald Ford have used the power of executive clemency to help bring an end to war, or to promote national healing in its aftermath.”

This brings us – and ought to bring the President – to the case of the Cuban Five, “now in their fifteenth year in prison for conducting espionage operations, mostly against exile groups with violent pasts,” as Peter Kornbluh explained in the Nation last year.

Although its negotiating position has shifted over the years, it has long been clear that the Cuban government will negotiate for the release of imprisoned U.S. contractor Alan Gross so long as its “humanitarian concerns” for these prisoners are also met.

Since his arrest in 2009, the U.S. government has fecklessly called for Mr. Gross’s unconditional release, despite his conviction in a Cuban court for activities our government knew were illegal before he was sent to Cuba under a USAID regime change program.

As recently as this month, Secretary of State John Kerry, in testimony before Congress, rejected a prisoner swap because it implies Cuba’s spies and Mr. Gross were engaged in equivalent activities (a debatable notion in itself).

Worse, it is the position of hardline Members of Congress that the U.S. should not negotiate with Cuba to obtain his release because Cuba is listed as a state-sponsor of terror (see above).

While his government offers pat explanations for what it won’t do to affect his release, Mr. Gross was plain-spoken in telling his attorney darkly, “His 65th birthday, which occurs on May 2, will be the last birthday that he celebrates in Havana.”

Deputy Attorney General James Cole, explaining the administration’s commutation policy, wrote, “It is important to remember that commutations are not pardons. They are not exonerations. They are not an expression of forgiveness.” He could have been writing the script for a Presidential determination to free the Cuban spies in exchange for Alan Gross.

The President will be hard to move on this exercise of his executive authority.  But, make no mistake; an action by the President to approve commutations for the remaining Cuban Five prisoners would not just enable Mr. Gross to celebrate his 66th birthday at home, but free his administration to pursue more effectively all of his Cuba policy goals.

The big enchilada is Helms-Burton. Our final point, though it might be hard to imagine, is that the President should be honing the argument for reclaiming the authority of his office to recognize Cuba, an authority that was seemingly taken away by passage of the Helms-Burton law.

On Monday, the U.S. Supreme Court announced it will consider a case that bears directly on this point. It concerns a law enacted by Congress that requires the State Department to treat Jerusalem as the capital of Israel for the purposes of issuing passports.  At stake is the larger constitutional principle of whether the President has the exclusive right to recognize the sovereignty of another country.

The U.S. Court of Appeals sides with presidential power and against the Congress in a decision it issued last year.   Its decision can be read in its entirety here.  But, the conclusion by the Court is unmistakable:

“Having reviewed the Constitution’s text and structure, Supreme Court precedent and longstanding post-ratification history, we conclude that the President exclusively holds the power to determine whether to recognize a foreign sovereign.”

Should the Supreme Court affirm the appellate court ruling, its decision will loosen the grip of Congress on the core issue of Cuba policy – whether the U.S. will shift its focus from overthrowing the Castro government to letting Cubans decide their own future by themselves.

Letting the Cubans lead, rather than forcing them to tweet, would be a proud moment for the President, unless he prefers hearing the tweet of the hummingbird that brought him to 404.

Interested in traveling to Cuba? Travel with CDA!

Since 2001, the Center for Democracy in the Americas (CDA) has been organizing delegations of travelers to visit Cuba to experience the island first-hand.

These trips, which we primarily offer to Members of Congress and various groups of policy experts, provide a truly unique experience, introducing travelers to our diverse range of contacts and friends, including artists, academics, entrepreneurs, musicians, journalists, and Cubans from all walks of life.

Right now, CDA is organizing a people-to-people delegation which will travel from June 1st to the 6th.  There are just a few spaces left, and we are hoping that readers of our news blast would like to fill them! If you are interested in seeing Cuba first-hand, please email Vivian Ramos at vivian@democracyinamericas.org ASAP.

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Double Talk at State and Doubling Down on USAID’s Regime Change Strategy

November 30, 2012

We report on a flurry of activity concerning the case of Alan Gross, just days before the third anniversary of his arrest in Cuba, an event marked at a press conference in Washington this morning by his wife Judy Gross, understandably disconsolate, with his lawyer, Jared Genser, by her side.

Together, they said the Obama administration had failed to pursue vigorous diplomacy sufficient to secure his release.  He feels “dumped and forgotten” by the U.S. government, Mrs. Gross said, like a soldier left to die.  The lawyer’s message to the U.S. government was also direct:  “You sent him there; you have an obligation to get him out.”

In fact, they laid blame at the feet of both governments for being obstacles to the settlement of his case.  They said the Cuban government, which publicly calls for direct negotiations to address his case and the captivity of the Cuban Five, was either unable or unwilling to talk.

But they also made a special point of noting that the Obama administration had actively sought and won the release of Americans imprisoned abroad, and said the administration should pick an envoy close to President Obama, with full White House support, to go to Cuba and negotiate Alan Gross’s release.

Significantly, they called his captivity an obstacle to improvements in U.S.-Cuba relations, and urged both parties to work for his release.  In saying so, they parted company with the most ardent embargo supporters, who warn the Obama administration not to negotiate for his release.

As Senator Bob Menendez said this week in an interview with the New York Times “I’m not into negotiating for someone who is clearly a hostage of the Cuban regime.” Judy Gross correctly diagnosed the hardliner’s position as a surefire recipe for continuing his captivity for years.  “He is a pawn of these very radical right-wing Cuba haters, for lack of a better word, who don’t want to see any changes happen, even to get Alan home.”

Mrs. Gross pled for her husband’s release on humanitarian grounds, and demanded access by doctors for an independent examination of a mass on his shoulder that the family believes could be cancerous.  For its part, the Cuban government released this week the results of a biopsy conducted October 24th, and an examination by a physician who is also ordained as a Rabbi, who concluded that the growth is not cancerous.

Two weeks ago, attorneys for the Gross family filed a law suit against the U.S. government and his employer, the USAID contractor DAI, seeking $60 million in damages.  In the complaint available here, they concede that his activities were “to promote (a) successful democratic transition” in Cuba and that when he was at risk of detection by Cuban authorities, USAID failed to comply with provisions of the “Counterintelligence Manual” to save him before his arrest.

Mr. Gross knew of the dangers associated with his activities in Cuba, writing in one of the trip reports filed with his employer under the USAID contract, “In no uncertain terms, this is very risky business.”

In light of these facts, it is hard to understand why his legal representatives still argue that all he was doing in Cuba was trying to improve Internet access for the Jewish community.  This benign explanation was long ago overtaken by the facts.

Even so, it is a position that remains front and center in the U.S. State Department’s talking points.  Victoria Nuland, the department’s Spokesperson, responded to a reporter who asked about the Gross case, by saying:

But again, just to remind that this is a guy who’s been incarcerated for no reason for three years and ought to come home.

Alan Gross was given a 15-year prison term simply for the supposed crime of helping the Jewish community of Cuba communicate with the outside world.

Old tropes die hard, especially when the U.S. government decides we can’t handle the truth.  This failure to concede why Mr. Gross was arrested and convicted not only contributes to the lack of movement in his case, but is especially alarming now that we know the Obama administration is doubling down on the program that led to his arrest.

As Tracey Eaton reports in Along the Malecón, the U.S. government “The U.S. government has hired a former CIA agent,” named Daniel Gabriel, “to create and manage a team of at least 10 journalists in Cuba.”  Gabriel’s Linked In profile concludes with this heartfelt endorsement:

“Dan is one of those dream clients you get once in a blue moon: totally risk tolerant, possessed of a voracious appetite for learning, and the drive to turn pontification into action.”

We could not think of a clearer case for why these programs need to end.

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