Normalizing Relations With Cuba -The Unfinished Agenda

Normalizing Relations With Cuba: The Unfinished Agenda
BY WILLIAM M. LEOGRANDE 1/30/15 AT 4:48 PM

On January 22, U.S. and Cuban diplomats concluded the first round of
talks to implement President Barack Obama's and President Raúl Castro's
decision to normalize bilateral relations. A second round of talks is
scheduled for February.

Much of the first round was devoted to the mechanics of re-establishing
full diplomatic relations and setting out the long agenda of other
issues the two sides want to discuss.

A number these are issues of mutual interest on which the United States
and Cuba have already built some level of cooperation over the
years—migration, counter-narcotics, counterterrorism, law enforcement,
Coast Guard search and rescue, disaster preparedness and environmental
protection, to name the most prominent.

But on many other issues, Cuba and the United States have sharply
different views and interests. As the two sides embark on what promises
to be a long series of meetings to carry the normalization process
forward, the guide below offers a capsule sketch of the issues in
conflict that will comprise the toughest part of the negotiating agenda.

The list is lop-sided, mostly involving programs and policies that are
vestiges of the old U.S. policy of hostility. For its part, Cuba doesn't
have any sanctions against the United States that it can offer as quid
pro quos. There are, however, a number of things that Washington will be
seeking from Havana.

Normalizing Diplomatic Relations

Presidents Obama and Castro have already agreed on this, and only an
exchange of diplomatic notes is required to formalize it. Obama's
nominee to be ambassador to Havana will need Senate confirmation, however.

Marco Rubio, R-Florida, has sworn to block the nominee and will probably
have the support of Bob Menendez, D-New Jersey, another member of the
Foreign Relations Committee.

But even if Rubio and Menendez keep the nomination bottled up, they
can't prevent Obama from re-establishing full diplomatic relations with
Cuba. Article II of the Constitution vests that power exclusively with
the president. For their part, Cuban diplomats have said that normal
diplomatic relations are incompatible with Cuba's inclusion on the list
of state sponsors of terrorism, so even the reestablishment of
diplomatic relations is not yet a done deal.

The Terrorism List

Obama has ordered Secretary of State John Kerry to review Cuba's
inclusion on the State Department's list of state sponsors of terrorism.
He will almost certainly conclude that Cuba should be removed, since
there is no reasonable basis for its designation.

But removing a country from the list requires notification of Congress,
which will give Republican critics another opportunity to blast Obama's
policy. Nevertheless, they won't have the votes to block Cuba's removal,
since they would need to override a presidential veto.

Removal of Cuba from the list is important symbolically, but it won't
have much practical effect. All the sanctions applied to countries on
the list are already included in the Cuban embargo. The financial
sanctions that have made it so difficult for Havana to conduct business
abroad will not end with removal from the list.

The Embargo

Obama punched a number of holes in the embargo, but the core of it
remains intact. U.S. companies cannot invest in Cuba, nor do business
with state enterprises except to sell food or medicine. Cuban businesses
cannot sell anything to the United States.

Obama relaxed regulations governing educational travel, but tourist
travel is still banned. To lift the embargo in its entirety will require
legislative changes to the Cuban Democracy Act (CDA), which prohibits
sales of goods to Cuba by the subsidiaries of U.S. corporations abroad;
the Cuban Liberty and Democratic Solidarity Act (Helms-Burton), which
wrote the embargo into law; and the Trade Sanctions Reform and Export
Enhancement Act, which bans tourist travel.

With Republicans in control of Congress, the embargo is not likely to go
away any time soon.

Property Claims

The U.S. Foreign Claims Settlement Commission ratified 5,911 property
claims by U.S. corporations and citizens for $1.85 billion in losses
suffered when Cuba nationalized all U.S. property on the island. With
accumulated interest, the total claims stand at over $7 billion today.

In addition, Cuban exiles who became naturalized U.S. citizens are
eligible for compensation for lost property under the Helms-Burton law.
The State Department estimates there could be as many as 200,000 such
claims, totaling "tens of billions of dollars."

Cuba acknowledges the legitimacy of U.S. claims, but rejects
compensation for Cubans who fled the island. Moreover, Cuba has asserted
counter-claims of $181 billion for the damage done by the U.S. embargo
and the CIA's secret war in the 1960s.

Cuba does not have the resources to pay even a fraction of U.S. claims,
let alone Cuban-American claims, and Washington would never agree to
Cuba's enormous counter-claim. A compromise could conceivably be built
around debt-equity swaps or giving claimants preferential terms for
future investments.

Cuban Membership in International Financial Institutions

The Helms Burton law requires the United States to vote against Cuban
membership in the International Monetary Fund (IMF) and the World Bank.
To become a member of the World Bank, a country must first join the IMF,
which requires approval by a supermajority of 85 percent of the vote by
existing members.

Since the United States holds 17 percent of the voting stock, U.S.
opposition effectively bars Cuba from both the IMF and the Bank.
Although Cuba has not applied for membership, the economic restructuring
underway would benefit significantly from IMF and Bank financial
support. Resolving this issue will require amending or repealing
Helms-Burton.

U.S. Democracy Promotion Programs

The United States continues to spend between $15 million and $20 million
annually on covert democracy promotion programs designed to strengthen
Cuban civil society and promote opposition. Cuba reportedly sought an
end to these programs during the secret negotiations, but Washington
refused.

These programs could be refocused to promote more authentic cultural and
educational exchanges that operate openly. Such a reform was
contemplated shortly after Alan Gross was arrested in 2009, but the
White House backed down in the face of congressional opposition.

The latest request for proposals from the Department of State suggests
that the programs' confrontational approach has not changed. That could
threaten progress toward normalization. "Our U.S. counterparts should
not plan on developing relations with Cuban society as if there were no
sovereign government in Cuba," Raúl Castro warned in a speech after the
talks concluded.

The Cuban Medical Professionals Parole Program

This program, designed during George W. Bush's presidency, offers Cuban
health workers serving abroad on humanitarian missions a fast track to
U.S. residency if they defect. Each year, more than a thousand Cubans
take advantage of it.

Cuba asked the United States to end the program to facilitate
cooperation rebuilding Haiti's health care system after the 2010
earthquake. Washington refused and cooperation fizzled. More recently,
Washington and Havana have been cooperating on the fight against Ebola,
but the Medical Professionals Parole Program remains an obstacle to
sustained U.S.-Cuban cooperation in the field of public health.

It doesn't make sense for Washington to praise Cuba's humanitarian
health programs on the one hand while trying to subvert them on the
other. Cuban diplomats raised this issue in the January talks, but as of
now, Washington has no plans to review the program.

TV and Radio Martí

The United States government still spends millions of dollars annually
broadcasting TV and Radio Martí to Cuba, even though the television
signal is effectively jammed and the radio has a diminishing audience.
Cuba objects to the broadcasts as a violation of international law.

A recent report by the State Department Inspector General found serious
management deficiencies and low employee morale at the stations. The
programs continue to be funded more as pork barrel legislation than as
effective instruments of foreign policy. Years ago, Cuba offered to
carry PBS and CNN news broadcasts on its domestic television if TV and
Radio Martí were halted. Could a similar deal be struck now?

The Cuban Adjustment Act

This 1966 law allows Cuban immigrants who are in the United States for a
year to "adjust" their status to that of legal permanent residents—a
privilege no other immigrant group enjoys. Since the 1990s, the Attorney
General has routinely paroled into the United States any Cuban who
reaches U.S. territory, making them eligible for residence under the act.

The Cuban government has long complained that this encourages illegal
departures from the island and human trafficking. The Attorney General
has the authority under the law to refuse to parole illegal Cuban
immigrants into the country, thereby denying them the benefits of the
Cuban Adjustment Act, but no president thus far has been willing to
change existing policy because the status quo enjoys broad support among
Cuban Americans.

The Obama administration does not intend to change the law or its
interpretation for fear of touching off a migration crisis.

Cuban Trademarks

A number of famous Cuban trademarks, including Havana Club rum and
Cohiba cigars, have been appropriated by U.S. companies after a 1998 law
prohibited Cuba from renewing its trademark rights. Cuba has sought to
safeguard its trademarks in the courts, without success.

As U.S.-Cuban trade expands, U.S. brands will want protection in the
Cuban market, an issue which has been largely moot until now. If there
is to be a cease-fire in the trademark war, it will have to be mutual.

Cuban Visitors to the United States

Since Cuba abolished the "tarjeta blanca" exit permit required to travel
abroad, Cuban visitors to the United States have jumped by almost 100
percent to 33,000 in the past year. But Cuban scholars coming to attend
professional meetings in the United States still run afoul of a 1985
presidential proclamation issued by Ronald Reagan that bars visas for
employees of the Cuban government or Communist Party. George W. Bush
invoked this proclamation to deny all Cuban academic visits as a matter
of policy.

The Obama administration has been more lenient, but it still denies
visas to prominent Cuban academics for no obvious reason, even though
the Immigration and Naturalization Act (INA) prohibits denials on
political grounds. Obama could solve this problem by simply withdrawing
the Reagan-era proclamation.

There are ample grounds in section 212(a) of the INA for denying visas
to applicants who may pose an actual threat to U.S. security because of
involvement in terrorism, crime, or intelligence activities.

Guantánamo Bay Naval Station

Established by the United States in 1903 following the Spanish-American
War, the base at Guantánamo has long been a thorn in the side of Cuban
nationalists. Cuba claims it as sovereign territory and wants the United
States out. Washington insists on the validity of a 1934 treaty leasing
the base to the United States in perpetuity.

Since the 1990s, U.S. military forces on the base and the local Cuban
military have had a cooperative working relationship that Raúl Castro
once described as a model for relations between the two governments.
Disposition of the base is low on the agenda of both governments, and
nothing is likely to change until Obama is able to close the detention
center.

Fugitives

The Obama administration has said that it will seek the extradition of
some 70 U.S. fugitives currently living in Cuba, including high profile
political exiles like Joanne Chesimard, a.k.a. Assata Shakur, who was
convicted of murdering a New Jersey state trooper.

Cuba has been willing to return common criminals who have sought shelter
on the island, but it has consistently refused to return anyone granted
political asylum. The Foreign Ministry reiterated that position shortly
after the two presidents announced the normalization of diplomatic
relations.

Moreover, Cuba has a long list of Cuban Americans guilty of violent
attacks on the island who Washington refuses to extradite, foremost
among them Luis Posada Carriles, mastermind of a series of hotel
bombings in Havana in the 1990s and the bombing of a Cuban civilian
airliner in 1976.

Law enforcement cooperation in pursuit of common criminals is likely to
improve, but on the issue of returning fugitives who have been given
political asylum, neither side is likely to give any ground.

Human Rights and Democracy

In his speech to the nation, Obama promised to continue the U.S.
commitment to democracy and human rights in Cuba. Speaking to the
National Assembly, Castro noted that Cuba had "profound differences"
with the United States on these issues but was nevertheless willing to
discuss them.

Havana continues to regard questions of democracy and human rights as
internal matters and sees foreign demands as infringements on its
national sovereignty. Nevertheless, Castro was willing to negotiate the
release of 53 political prisoners, expanded Internet access and
cooperation with the International Red Cross and UN as part of his
agreement with Obama.

Although there may be some glacial progress from conversations around
democracy and human rights, for the most part, the two sides will
continue to disagree.

The unfinished agenda of issues in conflict is long and daunting,
requiring tough negotiations, not only between Washington and Havana,
but between the White House and Capitol Hill. Many of these issues will
linger unresolved beyond the two years remaining in Obama's presidency.

But by changing the frame of U.S. policy from one of hostility and
regime change to one of engagement and coexistence, Obama has already
made more progress than all ten of his predecessors.

William M. LeoGrande is professor of Government at American University
and coauthor with Peter Kornbluh of the recent book, Back Channel to
Cuba: The Hidden History of Negotiations between Washington and Havana
(University of North Carolina Press, 2014).

Source: Normalizing Relations With Cuba: The Unfinished Agenda -
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