Bruce Zagaris authors new article on recent developments in U.S.-Cuba Relations

U.S. and Cuba Swap Alleged Spies, Agree to Remove Economic Sanctions, and Normalize Relations

By Bruce Zagaris

On December 17, 2014, the United States and Cuba exchanged prisoners and agreed to normalize relations, demonstrating how international enforcement cooperation remains in the forefront of the thaw in relations.

Cuba released U.S. citizen, Alan P. Gross, on “humanitarian grounds.”  Gross traveled on an American government plane to the U.S.[1]  In addition, Cuba also released Rolando Sarraf Trujillo, a non-American U.S. intelligence 'asset' (a Cuban native) along with Gross.   According to officials, the U.S. spy had been held for nearly 20 years and was responsible for some of the most important counterintelligence prosecutions that the United States has pursued in recent decades, including convicted Cuban spies Ana Belen Montes, the former Defense Intelligence Agency’s top Cuba analyst; Walter Kendall Myers, a former State Department official; and his wife Gwendolyn Myers – all part of a group known as the “Cuban Five”.[2]

The U.S. and Cuba negotiated the agreement during 18 months of secret talks hosted largely by Canada and encouraged by Pope Francis, who hosted a final meeting at the Vatican.  In a phone call Mr. Obama and Cuban President Raúl Castro agreed to give a new and positive start to relations and overlook decades of hostility.[3]  Secret talks and release of prisoners have long been a mechanism of cooperation for only fifty years starting with the use of James Donovan, who negotiated, inter alia, the release of the Bay of Pig prisoners.[4]

The U.S. released three of the so-called Cuban five, who were arrested for trying to infiltrate Cuban exile groups, including Brothers to the Rescue, the activist non-profit organization formed by Cuban exiles whose planes were shot down by the Cuban Air Force back in 1996.  The three Cuban agents belonged to the Red Avispa network, or the Wasp Network, in Florida.  Mr. Obama used his clemency power to commute their sentences and they were flown to Cuba. [5]

1.        Obama’s  Statement of Actions to Reduce Sanctions and Normalize Relations

In his remarks on the normalization of relations, President Obama said he was taking action “to cut loose the anchor of failed policies of the past, and to chart a new course in U.S. relations with Cuba that will engage and empower the Cuban people.”[6]

President Obama announced he is taking steps to improve travel and remittance policies that will further increase people-to-people contact, support civil society in Cuba, and enhance the free flow of information to, from, and among the Cuban people.

a.        Facilitating Travel to Cuba

To facilitate an expansion of travel to Cuba, President Obama will make available general licenses for all authorized travelers in 12 existing categories:  family visits; official business of the U.S. government, foreign governments, and certain intergovernmental organizations; journalistic activity; professional research and professional meetings; educational activities; religious activities; public performances, clinics, workshops, athletic and other competitions, and exhibitions; support for the Cuban people; humanitarian projects; activities of private foundations, research, or educational institutions; exportation, importation, or transmission of information or information materials; and certain export transactions that may be considered for authorization under existing regulations and guidelines.  

Travelers in the 12 categories of travel to Cuba authorized by law will be able to make arrangements through any service provider that complies with the U.S. Treasury’s Office of Foreign Assets Control (OFAC) regulations governing travel services to Cuba, and general licenses will authorize provision of such services.[7]

President Obama will also authorize expanded sales and exports of certain goods and services from the U.S.  to Cuba.  The expansion will seek to empower the Cuban private sector and facilitate Cuban citizens gaining access to certain lower-priced goods to improve their living standards and gain greater economic independence from the state.

On December 18, 2014, an Administration official said U.S. citizens may only travel to Cuba for eligible purposes, but they will no longer need a U.S. government license to do so. The Treasury Department will enforce the policy by investigating suspected violations after the fact.[8]

b.        Authorizing Imports from Cuba by U.S. Travelers

President Obama will also authorize U.S. citizens to import additional goods from Cuba.  Licensed U.S. travelers to Cuba will be authorized to import $400 worth of goods from Cuba, of which no more than $100 can consist of tobacco products and alcohol combined. 

c.         Facilitating Remittances to Cuba by U.S. Persons

Remittance levels will be raised from $500 to $2,000 per quarter for general donative remittances to Cuban nationals (except to certain officials of the government or the Community party); and donative remittances for humanitarian projects, support for the Cuban people, and support for the development of private businesses in Cuba will no longer need a specific license.  Remittance forwarders will no longer require a specific license.  The remittance changes will come in the form of amended regulations by OFAC (Office of Foreign Assets Control –Treasury Department) and Business and Industry Security (Commerce Department).

d.        Expanding Exports of Certain Goods

The U.S. will expand the items authorized for export to include certain building materials for private residential construction, goods for use by private sector Cuban entrepreneurs, and agricultural equipment for small farmers. The change is intended to facilitate access by Cuban citizens to certain lower-priced goods to improve their living standards and gain greater economic independence from the state.

e.         Facilitating Authorized Transactions between the U.S. and Cuba

To facilitate authorized transactions between the U.S. and Cuba, U.S. institutions will be allowed to open correspondent accounts at Cuban financial institutions to facilitate the processing of authorized transactions.  The regulatory definition of the statutory term “cash in advance” will be revised to specify that it means “cash before transfer of title.”  Hence, U.S. businesses will have more efficient financing of authorized trade with Cuba.  U.S. credit and debit cards will be allowed for use by travelers to Cuba.[9]

f.         Increasing Cubans’ Access to Communications and their Ability to Communicate Freely

Cuba has an internet penetration of about five percent.  To assist them, the U.S. will allow the commercial export of certain items that will enable the Cuban people to communicate with people in the U.S. and the rest of the world.  This will include the commercial sale of certain consumer communications devices, related software, applications, hardware and services, and items for the establishment and update of communications-related systems.

Telecommunications providers will be permitted to establish the necessary mechanisms, including infrastructure, in Cuba to provide commercial telecommunications and internet services, which will improve telecommunications between the U.S. and Cuba.

g.        Reviewing the Designation of Cuba as a State Sponsor of Terrorism

President Obama is initiating a review of Cuba’s designation as a state sponsor of terrorism.  President Obama has instructed Secretary of State John Kerry to immediately start such a review, and provide a report to the President within six months concerning Cuba’s support for international terrorism.  Cuba was placed on the list in 1982.[10]

h.        Amending Sanctions Regulations

The changes announced by President Obama will soon be implemented through amendments to regulations of the Departments of the Treasury and Commerce. At present OFAC primarily administers U.S. economic sanctions against Cuba pursuant to the Cuban Assets Control Regulations and other regulations.[11]  Until changed, the Cuban sanctions program requires that any commercial transaction between a U.S. person involving Cuba or a Cuban company or person anywhere in the world must be licensed by OFAC through a general or a specific license.  Until now, OFAC’s policy is to deny applications for specific licenses, except for many travel-related requests.  Hence, U.S. companies presently may not directly or indirectly export any good or provide any service to an end-user or customer in Cuba or any Cuban company or person anywhere in the world.  Additionally, U.S. companies and persons currently may not import anything of value from Cuba.[12]

The Cuban sanctions program covers all persons, including entities as well as individuals, subject to U.S. jurisdiction.  Hence, all U.S. citizens and permanent residents wherever located, all persons in the U.S., and all branches and subsidiaries of U.S. organizations throughout the world, as well as all persons engaging in transactions that involve property in or otherwise subject to the jurisdiction of the U.S.  The latter part of the jurisdiction definition covers the activities of non-U.S. persons and businesses where some part of a prohibited Cuba-related transaction, no matter how small, occurs in the U.S.  In addition, the U.S. is mostly by itself in sanctioning Cuba.  The largest U.S. trading partners, such as Canada and the EU members, do not sanction Cuba and have statutes, penalizing companies based in those jurisdictions if the companies comply with any part of the U.S. program.

Criminal penalties for violating the Cuban sanctions program are severe and range up to 10 years in prison, $1 million in corporate fines, and $250,000 in individual fines.  Civil penalties for violations of the sanctions program can be as high as $65,000 per violation.[13]

The Obama administration will update the application of Cuba sanctions in third countries.  U.S.-owned or –controlled entities in third countries will be generally licensed to provide services to, and engage in financial transactions with, Cuban individuals in third countries.  Additionally, general licenses will unblock the accounts at U.S. banks of Cuban nationals who have relocated outside of Cuba; allow U.S. persons to participate in third-country professional meetings and conferences related to Cuba; and, allow foreign vessels to enter the U.S. after engaging in certain humanitarian trade with Cuba, among other measures.[14]   The application of U.S. sanctions in third countries have led to action by third country governments to nullify the sanctions and punish U.S. persons enforcing them.[15]

President Obama will increase actions to support improved human rights conditions and democratic reforms in Cuba.  Already the U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance, promote human rights and fundamental freedoms, and support the free flow of information in places where it is restricted and censored.[16]

2.        The Gross Case and Release

In 2009, Mr. Gross visited Cuba to deliver satellite telephone equipment, which could mask connections to the Internet, when he was arrested.  Initially, Cuban authorities claimed Gross was a spy.  A Cuban court convicted him of importing the equipment without a permit as part of a subversive scheme to “destroy the revolution.”[17]  He was also convicted of “crimes against the state,” for which he was sentenced to 15 years and incarcerated at a military hospital.[18]

Although Gross was a contractor for the U.S. Agency for International Development, the project was illegal in Cuba.  His activities were at least semi-covert and he took efforts to conceal them.  He was furnishing a “Telco-in-a-bag” card, which was a “discreet” subscriber identification module (SIM).  In a September 2009 document, Gross said the card would “impede the ability [of Cuban government technicians] to track or detect” his equipment by “masking the signal so that its GPS location cannot be pinpointed to within 400km (about 250 miles).” [19]

As Mr. Gross’s health deteriorated, his case gained increasing prominence.  Gross became despondent and hinted of suicide.  His wife Judy Gross and other supporters pleaded for his release.

When Cuba raised the case of three of its spies serving federal prison time in Florida and the fact that they had been unjustly convicted, U.S. officials responded that the cases were not comparable and that Mr. Gross was not an intelligence agent.[20]

Mr. Gross was employed by Development Alternatives of Bethesda, Maryland.  He had traveled to more than 50 countries as an international development worker.  Development Alternatives had a $6 million contract with the U.S. Agency for International Development to distribute equipment which could circumvent Cuba’s Internet blockade.  In 2009, Mr. Gross had made four prior trips to Cuba.[21]

Gross was sent to Cuba to secretly distribute Internet equipment to Jewish community groups, part of a congressionally required program to encourage Cuban democracy.[22]

3.         Enforcement Cooperation as a Driver of Normalization of US-Cuban Relations

In the 54 years since the U.S. broke diplomatic relations, enforcement cooperation has been an important element of U.S.-Cuban relations.  For instance, in 1982, the U.S. put Cuba on the list of states that sponsor terrorism.  Periodically the U.S. has alleged that Cuba has facilitated and/or participated in trafficking of narcotic drugs.  When Cuban-U.S. relations deteriorated, Cuba did not take action to prevent unwanted migration to the U.S.

For instance, the Mariel boatlift was a mass emigration of Cubans who departed from Cuba's Mariel Harbor for the U.S. between April 15 and October 31, 1980.  A sharp downturn in the Cuban economy precipitated the boatlift, which led to internal tensions on the island and a bid by up to 10,000 Cubans to gain asylum in the Peruvian embassy.  During the Mariel boatlift approximately 124,000 undocumented Cuban migrants entered the United States by a flotilla of mostly US vessels in violation of US law. The Coast Guard interdicted vessels end route to Mariel Harbor, as well as provided search and rescue assistance to vessels bound for the United States.  Thereafter, the Cuban government announced that anyone who wanted to leave could do so, and an exodus by boat started shortly afterward. The exodus was organized by Cuban-Americans with the agreement of former Cuban President Fidel Castro.[23]

When Cuban-U.S. relations have improved, the U.S. and Cuba have cooperated on returning plane hijackers and other fugitive felons.  They have cooperated on narcotics trafficking,[24] illegal migration,[25] and with the Coast Guard.[26]

Enforcement cooperation will be high on the bilateral agenda in the short-term.  Obama has instructed U.S. Secretary of State John Kerry to immediately initiate discussions with Cuba about re-establishing diplomatic relations and starting the process of removing Cuba from the list of states that sponsor terrorism.[27]

Obama will send an assistant secretary of state to Havana early in 2015 for talks on Cuban-American migration and will end objections to Cuban participation in a summit meeting of the Organization of American States.  The U.S. will start working with Cuba on issues such as migration, counternarcotic, environmental protection, and human trafficking.[28]

Completely dismantling the economic sanctions against Cuba will require Congressional action since a number of them are required by the Helms-Burton Act, enacted in March 1996 during the Clinton Administration.   Persuading the Republican-led Congress to dismantle the law will be difficult, considering the hostile relations between the Congress and executive branch, especially due to Obama’s recent actions to help some illegal migrants in the U.S. Already Marco Rubio, a Republican from Florida and son of Cuban immigrants who may run for president in 2016, and Senator Robert Menendez, Democrat of New Jersey and chairman of the Foreign Relations Committee, criticized the announcement of normalizing relations.[29]

Nevertheless, as OFAC and the Department of Commerce issue new regulations in the coming weeks, U.S. export controls on Cuba will become more consistent with those of its largest trading partners, such as Canada and the EU members, facilitating commerce and investment in Cuba by multinational companies.

One enforcement issue going forward will be efforts by both countries to more effectively extradite fugitives from the other country.  The number of fugitives from the U.S. in Cuba is estimated at 70.[30]  JoAnne Chesimard, also known by her chosen name, Assata Shakur, symbolizes Cuba’s granting sanctuary to American political dissidents.  Shakur was a member of the Black Panther Party before joining the Black Liberation Army (BLA).  In 19[31]3, two state troopers stopped Shakur and two BLA members on the New Jersey Turnpike for a faulty taillight.  According to the FBI, Shakur and one of her associates opened fire, and a fire fight ensued.   Trooper Werner Foerster and one of the BLA members were killed. The other trooper and Shakur were wounded. 

New Jersey Attorney General John J. Hoffman said his office would work with federal authorities to try to return Shakur from Cuba.  Bernadette Meegan, Spokeswoman for the National Security Council, said the U.S. will continue to press for the return of U.S. fugitives in Cuba.[32]  New Jersey Gov. Chris Christie in a letter to Pres. Obama demanded the immediate return of Shakur “before any further consideration of restoration of diplomat relations with the Castro government.”[33]

Already U.S. law requires the President to “instruct all United States Government officials who engage in official contacts with the Cuban Government to raise on a regular basis the extradition of or rendering to the United States all persons residing in Cuba who are sought by the United States Department of Justice for crimes committed in the United States.”[34]

The use of third countries (i.e., Canada) has been a longstanding mechanism to help normalize relations. In the past, to maintain plausible deniability, U.S. presidents have used third countries, among them Mexico, Spain, Britain, and Brazil, as hosts and facilitators.  To limit the political risk of direct contact, both countries have developed creative clandestine methods of communications, using famous literary figures, journalists, politicians, businessmen, and even a former president of the U.S. as interlocutors.[35]

The U.S.-Cuban effort to normalize relations will help U.S. efforts to lead regional enforcement and other issues.  As the White House has stated, the U.S. stance against Cuba alienated the U.S. from regional and international partners.  [36] In April when Obama and Castro both attend the Summit of the Americas, the pressure in most bilateral relations will no longer focus on trying to force the U.S. to change its isolation of Cuba.[37]  The new policy will also weaken the position of anti-U.S. countries, such as Bolivia, Ecuador, and Venezuela.[38]   The Obama Administration hopes that in the future U.S. support for Cuba’s civil society and dissidents will become more effective, partly because other governments in the Western Hemisphere will no longer be able to treat Cuba as a victim of the U.S. government’s sanctions.[39]

trace affiliate link | Vans Shoes That Change Color in the Sun: UV Era Ink Stacked & More – Fitforhealth News