A reporter asked me yesterday if I knew or had been tipped off about the December 17 announcement by the Obama Administration. She had read a December 16 post on this blog, the Cuba Policy Canard, where I discussed the very likely possibility that a significant Cuba announcement would happen, soon. Little did I know it would be a day later. As I told the reporter yesterday who asked me about the post, after more than twenty years in this town, one develops a sixth sense about things.
From the 1970s wood paneling in Raul Castro’s office, a smug President Obama at the White House, or the staged photo-op at a K Street law firm with the photo of el Che, one of the more significant foreign policy was Neville Chamberlain-esque (video link). All that was needed for the full Monty was a meeting between Obama and Castro, which, still may happen.
By hook or by crook, more political crook than hook, long-time supporters of the Castro Communist regime won a significant moral victory that the regime has wanted for decades: recognition. It is huge political win, albeit a temporary one, for Communist Party leaders in Cuba as well as Cuba’s standing in the world with what used to be known as the Non-Aligned Movement.
As for us, it was clumsy, not very original, and, indeed, sets a dangerous precedent. The clumsy comes in at many points, but the most critical is that the President and his advisors know full well Congressional approval is needed to allow for the bag of potential goodies he has offered the Communist Party of Cuba. He has opted for more confrontation, not collaboration, as if the mid-term elections never happened.
Absolutely nothing the President announced this week was very original because it is just about exactly what the Communist Party of Cuba has been asking for, for decades. An easing of U.S. sanctions, or in this case a potential gutting of U.S. law, in exchange for nothing. As former ambassador John Bolton reminds us today, it is what the fair play for Cuba committees of the 1960s are all about; and Pres. Obama is ideologically enamored with this approach for his foreign-policy.
It is also reminiscent of the ‘Blame American First’ approach to foreign policy and national security that Jeane Kirkpatrick detailed in her historic speech at the 1984 Republican National Convention (embedded below).
As for dangerous, there are so many threads. If you’re a tyrant, a would be tin-horn dictator in the making, or a radical Islamist jihadist, or anyone of their ilk or who support these type of people, you have a potential negotiating partner in the United States. If you’re an American, be careful where you travel or work because the unconscionable swap of one U.S. citizen for several Cuban spies, reminiscent of the Bergdahl swap, just made the world a more dangerous place each and every one of us.
The Russians must be loving every minute of this, as must the members of the Bolivarian Axis, the North Koreans, the Iranian regime, and other in the hate America movement. Cuba needs an economic bailout, as well as a political bailout, and it has made a move to try to have Uncle Sam, backed by the American taxpayer, to do its bidding. If the President’s advisors, and a select group of nearsighted Republican Congressional staffers, fail to see this, then political malpractice must be the new norm in this town.
For a Constitutional scholar, this President sure seems to take issue with the concept of separation of powers and the rule of law. As was the case with executive action and immigration, so will he and his advisors try to do the same with U.S.-Cuba policy. After the sanctions were codified into law, a legal maneuver by the Congress to make sure its role in the easing of sanctions was not done away with via an Executive Order, or something like what we are witnessing today, the President’s legal options were limited. I guess the President, and his advisors, are opting for the imperial presidency and potentially unlawful approach to this conundrum.
Unlike most other current U.S. sanctions programs that contain what are called presidential waivers, the Cuba sanctions, based primarily on the Trading with the Enemy Act (TWEA), do not afford as much discretion to the president to ease sanctions if a president so determines it is in the U.S. national interest to do so. When Cuba sanctions were updated in the late 1990s, the Congress saw to it that the easing of sanctions would only happen if the Cuban government did certain things listed in statute. The President is not allowed to waive these provisions.
In the near term, there are two significant legal hurdles that must be overcome before any significant easing of sanctions can take place. One requires little if any Congressional input, Cuba’s delisting on the state sponsors of terror list, while the other, an express prohibition in U.S. law on indirect financing, requires a change in the law. In reality, there are many more legal issues here because the way current law reads, there are things that can only be done when Fidel and Raul Castro are out of the picture as well as other conditions that, at this juncture, will never happen under the current leadership in Havana.
So what is next? Frankly, I have no idea. We’re in uncharted political and legal waters, no matter how much advocates of this new approach say otherwise. Let’s see if the 114th Congress is up to the task of holding their feet to the fire. How this process is dealt with is just as important as the outcome because it impact beyond Havana, to just about every corner of the globe. And, most importantly, if done, will harm the Constitution and weaken the all so important separation of powers.
As for the Cuban opposition, those people that our law states we are supposed to help? Kicked in the gut. Betrayed.