Will Immigration Blowback Affect the Chances for Cuba Reforms?

November 21, 2014

We couldn’t watch the President’s immigration reform speech last night without wondering what we could learn from his action – and the overreaction to it. What will happen if Mr. Obama also uses his executive power to make decisive changes in Cuba policy?

Here’s our take.

Get ready for a flood of bogus questions about presidential power. Immigration opponents hit hard at whether President Obama even had the authority to implement the reform program he announced last night. But these arguments were met with slam dunk responses firmly grounded in Supreme Court findings, and the fact that every president since Eisenhower — including Ronald Reagan and George W. Bush —  has used his presidential power to defer the deportations of immigrants a total of 39 times in the intervening 60 years.

The President retains broad authority to change policy toward Cuba. The World War I-era Trading with the Enemy Act, the law on which the Cuba embargo is based, is applied by a discretionary act of the President on an annual basis.  While Congress codified elements of our sanctions policy under Helms-Burton, legal analyses by authorities including Bob Muse (writing here in Americas Quarterly), Hogan Lovells, and others make clear the President and his appointees, such as the Treasury Secretary, can make big changes in the policy based on powers they already have.

For example, President George W. Bush exercised that power by curtailing mercilessly travel by Cuban-Americans to visit their families on the island, putting a damper on legal U.S. farm exports to feed the Cuban people, and authorizing the program to lure Cuban doctors from their foreign postings.

President Obama has also taken executive action on Cuba before. In 2009, he restored the right of the diaspora community to travel to Cuba and provide financial support to their families, and in 2011 he reopened people-to-people travel. Presidents do have the power to act.

There will be phony suggestions about upstaging the Congress. After six years of gridlock that blocked legislation on immigration reform, critics blasted the administration for fouling the chances for a bipartisan law to emerge from Congress.  However, as John Cassidy wrote in the New Yorker, the President is being traditional, not radical, in authorizing changes in the enforcement of immigration laws. As Thomas Mann writes for Brookings, “The cost of such unrelenting opposition and gridlock is that policymaking initiative and power inevitably flow elsewhere – to the executive and the courts.”

Time and again, an aggressive faction within Congress has tried repeatedly to repeal, resist, and delay actions taken within the discretion of the President – such as revising the rules for travels and remittances – or by blocking his nominees for Cuba-related and non-Cuba related foreign policy jobs.  Until the overdue debate begins on repealing Helms-Burton, the President knows that any far-sighted action he takes to modernize Cuba policy he will be taking alone.

He knows and we know what he can and should do: expand travel and remittances from the U.S. to Cuba, stop punishing foreign companies for doing legal business with Cuba’s government, remove Cuba from the list of state sponsors of terror, expand bilateral engagement in areas like the environment, and take the steps required to free Alan Gross.

In his masterful article in Americas Quarterly, “U.S. Presidential Action on Cuba: The New Normalization?,” Robert Muse, a sanctions law specialist, lays out the legal basis for ending most of the counter-productive punishments inflicted on Cuba’s people by our government.  Mr. Obama’s power to act is not in doubt.

Will he do it?  To date the president has made modest but useful changes in the policy. There are ample reasons – substantive and political – for him to do more.  But Cuba has never been a high priority for his administration, and, after the upheavals prompted by the deal that freed Sgt. Bergdahl and his immigration speech, we can imagine that gun-shy White House advisers will counsel Mr. Obama not to do anything big on Cuba now.

Nevertheless, the climate around Cuba reforms has changed for the better this year, and we are also heartened by what Senator Marco Rubio said after his exchange with Tony Blinken at his confirmation hearing: “I am very concerned that President Obama’s nominee to be John Kerry’s deputy at the Department of State passed up several opportunities today to categorically rule out the possibility of unilateral changes to U.S. policy towards Cuba.”

We hope the President goes bold and acts soon.  We don’t expect a nationwide address – or that the networks would cover it if he did (they aired “The Biggest Loser,” “Big Bang Theory,” “Grey’s Anatomy,” and “Bones” instead of his immigration speech).

But bold action by President Obama would enable U.S.-Cuba relations to move forward, he’d get great coverage in the history books, and it’s exactly the right thing for him to do.

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If you shut your eyes tightly, nothing is changing in Cuba or here (so open them).

September 20, 2013

A controlling premise of U.S. policy is that Cuba must change – by which its Cold War-era authors meant giving up every feature of its governing and economic systems – before our country will even contemplate normalizing relations with Cuba.

So far, this approach doesn’t seem to be working.  But, hey, as the current crop of Cold Warriors seem to think: ‘just give it time.  We’ve only been at it for six decades.’

As written, these policies make it extremely difficult for U.S. residents to visit Cuba legally, nearly impossible to engage with Cuba economically, and pose enormous obstacles for our government in dealing with Cuba’s government diplomatically.

Consequently, they have a vested interest in persuading anyone (U.S. policymakers) and everyone (the rest of us) that Cuba is the same country in 2013 as it was more than fifty years ago when sanctions were first slapped on.

But the notion that Cuba hasn’t changed and isn’t changing is the hardliner’s illusion, not ours.  Nearly every day, changes are taking place on the island and even here – in Miami and Washington – where people are seeing this issue differently and behaving differently, too.

Just take a look at what we’re reporting this week:

Cuban Music Icon Rodríguez Challenges State Censorship

HAVANA — The best known musician in Cuba and a staunch supporter of the island’s communist revolution, Silvio Rodríguez, has challenged state censorship by inviting a recently sanctioned colleague to join him at two concerts this weekend on the Caribbean island.

Cuba’s Bishops Call for Political Freedom and New Relations With U.S.

HAVANA –The Roman Catholic Church in Cuba has issued a rare pastoral letter calling for political reform in tandem with social and economic changes already underway. Additionally, the letter praised the recent reforms of President Raúl Castro and called on the U.S. to end decades-old economic embargo on the island.

NPR affiliate apologizes and re-invites Cuba book author

MIAMI — The Miami affiliate of National Public Radio has apologized for canceling an interview with the author of a book that criticizes the Miami trial of five Cuban spies, and has re-invited him to appear on a news show.

U.S. and Cuba talk about resuming direct mail service

HAVANA – The United States and Cuba concluded on Monday their second round of talks aimed at re-establishing direct mail service between the two countries after a 50-year ban, but left for later the most sensitive issue – Cuban planes landing on U.S. soil.

These are just the headlines from this week.  Regular readers will remember what we have reported in the past: when Cuba’s government legalized cell phones, dropped prohibitions on Cubans selling their cars and homes, stopped denying Cubans entry into hotels, opened up jobs for Cubans in the private sector to earn their own living away from the state payroll, legalized travel for so that most Cubans can leave and return to Cuba, sold off some state-owned businesses, freed political prisoners, shuttered the Ministry of Sugar, and opened media channels to complaints by citizens about government inefficiency and corruption in the health sector, and the list goes on.

These are real changes and it’s very hard to connect any of them to trade sanctions, travel restrictions, Radio or TV Martí, or the “democracy promotion” (regime change) programs responsible for the arrest and lengthy prison sentence being served by Alan Gross, as much as the Cold Warriors might try.

This is not to say that everything is perfect, or that Cuba has become the multiparty democracy as specified under The Cuban Democracy Act of 1992 or the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996.

What it does mean, however, is that when you hear their mantra “nothing has changed,” the Cold Warriors who repeat it are only admitting what the rest of us know – their policy has never worked and that time has passed them by.

Now that you’ve opened your eyes and read the headlines, we invite you to read the news.

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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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