A Single Standard of Justice

July 18, 2014

In the news summary that follows, you will find reports about a new investigation into the USAID Cuban Twitter scandal, the growing impact of the increasingly tight enforcement of U.S. sanctions against Cuba and other nations on banks and global commerce, and the resumption of peace talks in Havana between Colombia and the FARC.

But first, we wanted to acknowledge what is unfolding in and near “a large wheat field dotted with purple flowers and Queen Anne’s lace,” in the lyrical prose of Sabrina Tavernise, a reporter for the New York Times.  This is where wreckage from Malaysia Flight 17 and the remains of some of its 298 crewmember and passengers came to rest in Eastern Ukraine after it was shot down a little more than a day ago.

The victims included 80 children, three of whom were infants, a number of AIDS researchers and activists, the spokesman for the World Health Organization, and a graduate student from Indiana University, who was a chemist and a member of the IU rowing team.

The circumstances surrounding the shoot-down of this airliner are reminiscent of an earlier tragedy during the Cold War, when a Korean Airlines Flight was shot down in 1983 by Soviet fighter pilots. That resulted in the loss of 269 people, including a Member of the U.S. Congress.

Today, our memories were also stirred by a catastrophe that took place on October 6, 1976; not half a world away, but here in the Americas. Then, like now, the victims, 48 passengers and 25 crew members, were civilians; many were also young, including all 24 members of the Cuban Fencing Team, five Guyanese medical students, the wife of a diplomat and others.

Their Cubana de Aviacion Flight 455 had just taken off from Barbados when at least one bomb exploded and knocked the plane out of the sky.  This was, as Peter Kornbluh of the National Security Archives has often said, the first mid-air bombing of a civilian airliner in the Western Hemisphere.  All aboard – 57 Cubans, 11 Guyanese, and five North Koreans – were lost.

As we prepared this publication, the UN Security Council issued a statement calling for a “full, thorough and independent investigation” of the Malaysian airliner tragedy. Leaders from around the world called for an investigation and for accountability.

In the 38 years since the bombing of Flight 455, there has been no accountability for the loss of life; the families of the victims are not even mentioned in the news coverage of Malaysian Flight 17, as broadcast and print journalists recall similar incidents in the past.

Yet, Luis Posada Carriles, one of the two masterminds behind the bombing of the Air Cubana flight, continues to live and walk free in Miami, despite outstanding extradition requests from Cuba and Venezuela, which have yet to receive the response they merit from the U.S. government.

In some quarters, it will doubtless be controversial for us to remember that justice has still not been served in the case of Flight 455.

But our interest is in reforming Cuba policy to help the United States get past the double-standards that were deemed acceptable during the Cold War, but which are injurious to the national interest today, and adopt a single standard of justice in cases like this, now and into the future.  The dignity of the victims in these cases demands nothing less.

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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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