home Cuba, Economic Sanctions, Export Controls, Trade Security & Related The U.S.-Cuba Policy Betrayal, Another ‘Neville Chamberlain’ Moment

The U.S.-Cuba Policy Betrayal, Another ‘Neville Chamberlain’ Moment

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.

  • Anonymous

    As the son of Cuban exiles, the recent announcements have provoked, not just thoughts of my own, but also people asking my opinion concerning the embargo and the state of US-Cuban relations. I am, by no means, an expert on politics, foreign policy, etc. so I would like to ask you some questions if I may.

    1. Why should the U.S. continue the embargo against Cuba when it currently has diplomatic and trade relations with other Communist countries (i.e. China and Vietnam)? Even during the Cold War, the United States maintained diplomatic relations with the Soviet Union.

    2. Do you honestly believe that Cuba, regardless of whether they remain Communist or transition to a democratic form of government, will ever repay or make restitution for the billions of dollars in U.S. claims?

    3. In the past, and to this day, the United States has maintained relations with countries/governments that have poor records in regards to human rights. What sets Cuba apart from these other governments? Why should Cuba be singled out?

    4. You mention that Cuba sponsors terrorism throughout Latin America. Hasn’t the United States done the same in the past, especially in Latin America, by supporting right-wing dictatorships and paramilitary groups? Growing up in Miami, I remember groups such as Cuban Power, Alpha 66, Omega 7 and CORU and it was common knowledge even then that they had help from the US Government. Because these groups claimed to support a free, democratic Cuba, did that justify their actions? Also, what are your views on Luis Posada Carriles?

    5. It is known that there are a growing number of Cubans and Cuban-Americans who feel that the time has come for a change in US-Cuba Relations. They feel that enough time has gone by with little or no results and that its time to let go of the past and look towards a new and better future. What do you have to say to these men and women?

  • Thank you Anonymous for your comments and questions. A few thoughts:

    1. At least until December 17th, the clearest answer to your question is contained in The Cuban Liberty and Democratic Solidarity Act, PL 104-114. The Cuban government knows what it needs to do to secure easing of the sanctions. As former Secretary of State Madeline Albright once said, the U.S. does not have “cookie cutter” diplomacy and what works in China, questionable by the way, does not mean it will work, or should be pursued, with respect to Cuba.

    1a.To political types in this town, and others in my party such as Senator Jeff Flake, Senator Rand Paul, or Rep. Jason Chaffitz, and many others, who argue that sanctions are not based on free markets and must never be used, the same can be said about agriculture subsidies, tax-payer funded bailouts for US companies via the tax code used when a foreign investment goes south, and many more non-free market policies currently in law that are used by the government to intervene in the market. Ideological purity tests cut both ways. Look at the voting record of some of these Members of Congress and you’ll find inconsistencies between what they preach and what they do. I’ve never quite understood why the dislike US-Cuba policy so much and, at times, those of us that support it.

    2. Cuba must repay the United States for the unlawful taking without compensation of various forms of property. It a pre-condition for the full normalization of relations and it has been the generally accepted practice under international law for quite some time. There is a question of how it will do so, but do so it must. There are many ways to deal with this issue, to address the money challenge including freezing Cuban assets, freezing assets belonging to regime leaders located in foreign bank accounts; when a transition happens, securing new loans from international lenders or direct settlement with claim holders using new resources; and much more. The most important point here, for now, is that the US taxpayer must not be forced to underwrite any of this,

    3. See my answer to question #1.

    4. The Communist Party of Cuba enjoys re-framing the state sponsor of terrorism debate with this canard. If they do it, it is in defense of the Motherland, if we do it, it is terrorism. As for Posada Carriles, I do not know enough about the case; however, if Venezuela and Cuba want him in jail, wax me suspicious about the allegations.

    5. To those folk who believe that the time has come for a change, and who really believe that US policy has not worked, be patient and take some time to closely review some of what I outline at #1 (take 20 minutes to read that particular law, especially the Findings Section and the Statement of Policy). There are leading dissidents and opposition leaders who would enjoy a tightening of the sanctions and more support for them, how US law is supposed to work. The sanctions these days, frankly since the Bush Administration (43) have been mostly window dressing because the laws and regulations have not been enforced as Congress intended. We should be in no hurry to ease or change policy, but rather apply the laws as Congress intended and, yes, squeeze the regime, freeze assets, use Title III of Helms-Burton to allow us access to the courts, and so much more. Finally, your question, for some reason, is always placed on us, what about focusing that energy on the regime?

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