Cuba’s Return To State Sponsors Of Terrorism List Ricochets To Impact Negotiations For Certified Claimants, Embassy Staffing Levels- Trap Set By Trump Administration? Diplomats Bait?
/33 Years On. 6 Years Off. 64 Days On.
11 Terrorism Lawsuits And US$5.1 Billion In Judgements
Terrorism Lawsuits Again Permitted Against Government Of Cuba
If Cuba Doesn’t Defend Lawsuits, Default Judgements Can Exist In Perpetuity
New Marketing Effort To Sell Judgements- It’s Legal
U.S. Government Can File To Dismiss The Lawsuits
Injured U.S. Diplomats May Now Sue Government Of Cuba
Was This The Secret Strategy Of The Trump Administration?
Will Government Of Cuba Accept Additional U.S. Diplomats If Sued By U.S. Diplomats?
If Biden Administration Removes Cuba From Terrorism List, Attorneys Will Have 45 Days To File Lawsuits
Chairman Of U.S. Senate Committee On Foreign Relations Robert Menendez Will Have Input- And Perhaps Leverage
May There Be A Moment When Neither Current Government In Havana Or Future Government In Havana Will Have The Means Or Desire To Satisfy The Certified Claims And Judgements?
Original 1960 Value Of 5,913 Certified Claims US$1.9 Billion Plus 6% Annual Interest
Terrorism Judgements Come Ahead Of Certified Claimants
Terrorism Judgements Used 100% Of Funds Meant To Compensate Certified Claimants
Cuba Funds Frozen In U.S. To Repay Certified Claimants Used For Terrorist Judgements
When the Obama Administration removed the Republic of Cuba from the State Sponsors of Terrorism List on 29 May 2015, there was a certification to leadership of the United States Congress that “the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and ... has provided assurances that it will not support acts of international terrorism in the future.”
At the time of the removal from the State Sponsors of Terrorism List, the President of the Republic of Cuba was H.E. General Raul Castro (2008-2018). Presumably, the Obama Administration obtained a written or verbal assurance from President Castro.
Since 2019, H.E. Miguel Diaz-Canel has been President of the Republic of Cuba. Has or would the Biden Administration need obtain a written or verbal assurance from President Diaz-Canel prior to providing a certification to the United States Congress? Would President Diaz-Canel provide such certification?
The Biden Administration has four reviews underway relating to the Republic of Cuba: 1) comprehensive policy review led by the National Security Council (NSC) and United States Department of State with a focus upon what changes should be made to policies and regulations implemented during the Trump Administration (2017-2021) including whether to nominate a United States Ambassador to the Republic of Cuba 2) reviews led by the Central Intelligence Agency (CIA) and United States Department of State into the causes of injuries to United States government employees in 2016/2017 while they were in the Republic of Cuba 3) whether to suspend again Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as the “Libertad Act”) and 4) whether to remove the Republic of Cuba from the State Sponsors of Terrorism List maintained by the United States Department of State.
Impacting the Biden Administration timeline for conclusion of the reviews has among others included: 1) obtaining confirmation in the evenly-divided United States Senate for cabinet secretaries, sub-cabinet officials, agency officials, ambassadors, and judicial appointments 2) obtaining legislative approval for US$1.9 trillion in COVID-19-related funding 3) obtaining legislative approval for US$1+ trillion in infrastructure-related funding 4) approval of a budget 5) obtaining legislative approval for an increase to the national minimum wage and 6) obtaining political support for foreign policy initiatives.
Absent a crisis in the Republic of Cuba impacting directly the United States, there has been no demonstrated urgency for completing the four reviews.
On 28 February 2021, Thomson Reuters reported: “The Biden administration also appears to have little sense of urgency for major gestures toward Cuba despite hopes for a softer approach after Trump, often citing its support for Maduro, rolled back historic Obama-era détente with Havana. Some Biden advisers had suggested earlier that he could start by loosening up the flow of remittances from Cuban Americans and ease restrictions on family travel to the Communist-ruled island. But while acknowledging such changes could have a positive impact, the official said a Cuba policy shift was not currently among Biden’s top priorities, which include the coronavirus pandemic, economic recovery and rebuilding alliances abroad. “Frankly, first things first,” the official said. There has also been no sign of any immediate plans to rescind Cuba’s designation as a state sponsor of terrorism, though Biden officials have said Trump’s last-minute decision to return Havana to the U.S. blacklist is under review.”
On 3 March 2021, Thomson Reuters reported “Asked about the prospects for loosening up remittances and easing restrictions on family trips, the White House official said: “The best ambassadors are the American people, specifically the Cuban-American people maybe coming in with remittances and travel. A White House official dampened hopes for a quick Cuba policy shift in an interview with Reuters at the weekend, saying it was not currently among Biden’s top priorities,.…”
SSTL History (1982-2021)
The Reagan-Bush Administration (1981-1989) first added the Republic of Cuba to the State Sponsors of Terrorism List on 1 March 1982.
The Obama-Biden Administration (2009-2017) removed the Republic of Cuba from the State Sponsors of Terrorism List on 29 May 2015.
The Trump-Pence Administration (2017-2021) returned the Republic of Cuba to the State Sponsors of Terrorism List on 12 January 2021.
The Biden-Harris Administration (2021- ) is expected to remove the Republic of Cuba from the State Sponsors of Terrorism List. A forty-five-day advance notification to the United States Congress is required.
ANECDOTE: From 26 September 2002 to 30 September 2002, while the Republic of Cuba was on the State Sponsors of Terrorism List, the [George W.] Bush Administration authorized 923 representatives of United States-based companies participated in the U.S. Food & Agribusiness Exhibition held at the Palacio de Convenciones de la Habana (Pabexpo) in the city of Havana, Republic of Cuba, during which the Republic of Cuba contracted for to purchase US$91.9 million in agricultural commodities and food products from the United States. More than 154,000 pounds of cargo, including livestock, was transported using four aircraft from the United States to the Republic of Cuba for the exhibition. This was and remains the single-largest gathering of United States business representatives to visit the Republic of Cuba since 1959. More than 16,000 Republic of Cuba nationals visited the exhibition, which was held under licenses issued by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury.
While the Republic of Cuba was on the State Sponsor of Terrorism List from 1982 to 2015, plaintiffs won primarily in state courts eleven (11) lawsuits using the terrorism exception to the Foreign Sovereign Immunities Act (FSIA).
Total Compensatory Damages and Punitive Damages are US$4,420,592,158.37 plus annual interest for uncollected judgements with the State of Florida permitting 11% annual interest. According to the Washington DC-based Congressional Research Service (CRS), many of the judgements “involved conduct that occurred prior to Cuba’s terrorism designation, and all were obtained as default judgments without an entry of appearance by the Cuban government.”
Who Now Can Sue?
As of 12 January 2021, any individual subject to United States jurisdiction believing they have a personal claim against the government of the Republic of Cuba for acts of terrorism may file a lawsuit in a state court or federal court seeking damages from the government of the Republic of Cuba.
With the expectation the government of the Republic of Cuba will not appear to defend itself, as in previous lawsuits, almost any legal argument can result in a default judgement. With eleven of the previous lawsuits obtaining default judgements of US$4.2 billion, likely not a difficult decision to obtain legal counsel, pay court fees, file a lawsuit, and await the default judgement.
Among those who may file lawsuits could be some of the reported twenty-four (24) United States nationals injured during their posting to the Republic of Cuba in 2016/2017 remain employed by the United States government, including at the United States Department of State and Central Intelligence Agency (CIA). According to the heavily redacted 2018 report from the United States Department of State Accountability Review Board, the health impact for some were “so severe they may never be able to return to their previous jobs.”
To file a lawsuit, United States law requires a country to be included on the State Sponsors of Terrorism List when a terrorism-related action is taken, although there have been instances where lawsuits were filed, and judgements were rendered for actions attributed to the Republic of Cuba prior to its inclusion on the State Sponsors of Terrorism List. The United States Department of State could have sought to have courts void the judgements using the Foreign Sovereign Immunities Act (FSIA) in those instances where the Republic of Cuba was sued for terrorist acts while not on the State Sponsors of Terrorism List. The United States Department of State declined to do so.
Did Trump Administration Set A Trap For Biden Administration?
Perhaps, a trap by the Trump Administration was to use the return of the Republic of Cuba to the State Sponsors of Terrorism List as an enticement for some of the twenty-four injured individuals and/or their families to file lawsuits believing accurately that once lawsuits are filed the bipartisan political atmospherics would be challenging for the Biden Administration to remove the Republic of Cuba from the State Sponsors of Terrorism List. The message then from some Democrats and Republicans in the United States Congress to the Biden Administration- do not remove an opportunity for justice.
If some of the individuals are injured permanently might they and their families want compensation? Suing the United States Government is generally problematic. Suing the Republic of Cuba may provide justice, but not necessarily result in economic pain for the Republic of Cuba because collecting on a judgement is not an easy process.
Since the Republic of Cuba has maintained it did not cause the injuries and does not know who caused the injuries, it would unlikely present a defense in a lawsuit. The result would be a default judgement. If the lawsuit is filed in the State of Florida, the judgement would be subject to an 11% annual interest rate for what remains outstanding. Judgements are valid for twelve (12) years and may be renewed to endure- and may be transferred, sold, bartered, and inherited. The ultimate monetary ticking time bomb.
With a judgment, a plaintiff may seek throughout each of the fifty states and territories of the United States any asset to which the government of the Republic of Cuba has an interest- and then once identified, ask a relevant court to enforce the judgement.
The Biden Administration can seek to have FSIA lawsuits against the government of the Republic of Cuba dismissed by courts. One argument is such lawsuits are an interference and hindrance to the conduct of foreign policy by the executive branch.
Complicating legal and political matters further are the reports that United States nationals employed by the United States Government injured during their posting to the People’s Republic of China and to the Russian Federation have reported injuries similar to those reported in the Republic of Cuba. Neither the People’s Republic of China nor Russian Federation are on the State Sponsors of Terrorism List.
A Formidable Political Obstacle From New Jersey
There are impediments for a removal of the Republic of Cuba from the State Sponsors of Terrorism List. As previous occupants of The White House have done, the Trump Administration reinterpreted the United States statutory definition of “terrorism” which can add time for evaluation and complicates the evaluation process.
The chairman of the United States Senate Committee on Foreign Relations, The Honorable Robert Menendez (D- New Jersey) is of Cuban descent and all issues relating to the Republic of Cuba are personal- particularly the connectivity between a convicted murderer of a New Jersey State Police officer who escaped in 1979 from a correctional facility in New Jersey and resides in the Republic of Cuba.
In returning the Republic of Cuba to the State Sponsors of Terrorism List, the Trump Administration, like previous administrations, referenced Mrs. JoAnne Chesimard who remains since 2 May 2013 as the first woman to be on the FBI Most Wanted Terrorists List. There is a US$2 million reward. The Honorable Robert Mueller was Director of the Federal Bureau of Investigation (FBI) from 4 September 2001 to 4 September 2013. The Honorable Christopher Christie was Governor of the State of New Jersey from 19 January 2010 to 16 January 2018.
Connectivity With Kerry, Blinken And Sullivan
Senator Menendez was previously chairman of the United States Senate Committee on Foreign Relations from 1 February 2013 to 3 January 2015 during the Obama Administration (2009-2017) when Mrs. Chesimard was added to the FBI Most Wanted Terrorists List. The United States Secretary of State during the period 1 February 2013 to 20 January 2017 was The Honorable John Kerry (D- Massachusetts) who served as chairman of the United States Senate Committee on Foreign Relations from 6 January 2009 to 1 February 2013. The Honorable Antony Blinken, United States Secretary of State, was Assistant to the President and Deputy National Security Advisor from 20 January 2013 to 9 January 2015 and Assistant to the President and National Security Advisor to the Vice President from 20 January 2009 to 20 January 2013. The Honorable Jake Sullivan, Assistant to the President for National Security Affairs, served as Assistant to the President and National Security Advisor to the Vice President of the United States from 26 February 2013 to 1 August 2014. Mr. Sullivan was Director of Policy Planning at the United States Department of State from 4 February 2011 to 15 February 2013.
Terrorism Judgements Against The Republic Of Cuba
“Compensatory damages awarded to plaintiffs are designed to give justice to them after being wronged. There are two types of compensatory damages- general and actual. Actual damages are intended to provide funds to only replace what was lost. General compensatory damages awarded are more complex, as these compensatory damages do not represent a monetary expenditure. Punitive damages are designed to prevent others from being hurt by the same or similar actions.”
Cuba On The Of State Sponsors Of Terrorism List From Congressional Research Service (CRS)
The “state sponsors of terrorism list” is mandated under Section 6(j) of the Export Administration Act of 1979, as amended (P.L. 96-72; 50 U.S.C. app. 2405(j)), under which the Secretary of State makes a determination when a country “has repeatedly provided support for acts of international terrorism.”
Both Section 620A of the Foreign Assistance Act and Section 40 of the Arms Export Control Act have provisions similar to Section 6(j) of the Export Administration Act in which the Secretary of State may publish a determination that a country is supporting international terrorism. However, the only published determinations by the Secretary of State have been those under Section6(j) and constitute what is known as the “state sponsors of terrorism list.”
In addition to the terrorism list sanctions imposed by the Export Administration Act, Section 40A of the Arms Export Control Act (P.L. 90-629; 22 U.S.C. 2781) prohibits the sale or export of defense articles and defense services if the President determines and certifies to Congress, by May 15 of each year, that the country “is not cooperating fully with United States antiterrorism efforts.” This list has been issued annually since 1997, and currently includes Cuba.
Cuba was first added to the State Department’s list of states sponsoring international terrorism in 1982 [1 March 1982], pursuant to Section 6(j) of the Export Administration Act of 1979 (P.L. 96-72). At the time, numerous U.S. government reports and statements under the Reagan Administration alleged Cuba’s ties to international terrorism and its support for terrorist groups in Latin America. Cuba had a history of supporting revolutionary movements and governments in Latin America and Africa, but in 1992 Fidel Castro stressed that his country’s support for insurgents abroad was a thing of the past. Cuba’s policy change was in large part a result of Cuba’s diminishing resources following the breakup of the Soviet Union and the loss of billions of dollars in annual subsidies to Cuba.
While the Administration provided no explanation in the Federal Register notice as to why Cuba was added to the terrorism list, various U.S. government reports and statements under the Reagan Administration in 1981 and 1982 alleged Cuba’s ties to international terrorism. In addition, a 1998 State Department chronology on U.S.-Cuban relations and a 2003 State Department document provide further explanation of why Cuba originally was designated a state sponsor of terrorism. The Central Intelligence Agency’s Patterns of International Terrorism 1980, published in June 1981, stated: “Havana openly advocates armed revolution as the only means for leftist forces to gain power in Latin America, and the Cubans have played an important role in facilitating the movement of men and weapons into the region. Havana provides direct support in the form of training, arms, safe havens, and advice to a wide variety of guerrilla groups. Many of these groups engage in terrorist operations.”
In January 1982, President Reagan stated in his State of the Union address: “Toward those who would export terrorism and subversion in the Caribbean and elsewhere, especially Cuba and Libya, we will act with firmness.” In February 1982, the Department of State published a research paper on “Cuba’s Renewed Support for Violence in Latin America,” originally presented in December 1981 to the Subcommittee on Western Hemisphere Affairs of the Senate Foreign Relations Committee, which detailed Cuba’s support for armed insurgencies and terrorist activities in Latin America and the Caribbean.7 The State Department asserted in the paper that Cuba has “encouraged terrorism in the hope of provoking indiscriminate violence and repression, in order to weaken government legitimacy and attract new converts to armed struggle.”
The paper maintained that Cuba was most active in Central America, especially Nicaragua, where it wanted to exploit and control the revolution, and El Salvador and Guatemala, where it wanted to overthrow the governments.8 Cuba also was reported “to provide advice, safe haven, communications, training, and some financial support to several violent South American organizations.” This included training Colombian M-19 guerrillas, with the objective of establishing a “people’s army.” The State Department’s Patterns of International Terrorism: 1982stated that “both Cuba and the Soviet Union continue to provide financial and logistical support and training to leftist forces in the area [Central America] that conduct terrorist activity.” The report further stated: “In its efforts to promote armed revolution by leftist forces in Latin America, Cuba supports organizations and groups that use terrorism to undermine existing regimes. In cooperation with the Soviets, the Cubans have facilitated the movement of people and weapons into Central and South America and have directly provided funding, training, arms, safe haven, and advice toa wide variety of guerrilla groups, and individual terrorists.”
A 1998 State Department chronology of U.S.-Cuban relations from 1958 to 1998 notes that the United States added Cuba to the terrorist list in 1982 because of its support for the M-19 guerrilla group in Colombia. In January 1982, State Department officials asserted that Cuba was involved in providing arms to the M-19 in exchange for facilitating U.S.-bound drug smuggling. M-19 was responsible for hijacking a plane from Colombia in January 1982; the incident ended when the hijackers were given safe passage to Cuba. A 2003 State Department document broadened the explanation of why Cuba was designated a state sponsor of terrorism in 1982. Reflecting the rationale set forth in the documents from 1981 and1982 described above, the State Department maintains that Cuba was added to the list because of its support for terrorist groups in Latin America. It contends that Cuba was providing support for terrorist organizations at the time, including the Puerto Rican nationalist group known as the Armed Forces of National Liberation (FALN), the Farabundo Marti National Liberation Front (FMLN) in El Salvador, and the Sandinista National Liberation Front (FSLN) in Nicaragua. It also asserts that “Cuba helped transship Soviet arms to Nicaragua and El Salvador for use by terrorist organizations, trained anti-American insurgents elsewhere in Latin America, and supported insurgencies or war efforts in Angola and Ethiopia.”
Certified Claims Background
There are 8,821 claims of which 5,913 awards valued at US$1,902,202,284.95 were certified by the United States Foreign Claims Settlement Commission (USFCSC) and have not been resolved for nearing sixty years (some assets were officially confiscated in the 1960’s, some in the 1970’s and some in the 1990’s). The USFCSC permitted simple interest (not compound interest) of 6% per annum (approximately US$114,132,137.10); with the approximate current value of the 5,913 certified claims US$8.7 billion.
The first asset (along with 382 enterprises the same day) to be expropriated by the Republic of Cuba was an oil refinery on 6 August 1960 owned by White Plains, New York-based Texaco, Inc., now a subsidiary of San Ramon, California-based Chevron Corporation (USFCSC: CU-1331/CU-1332/CU-1333 valued at US$56,196,422.73).
From the certified claim filed by Texaco: “The Cuban corporation was intervened on June 29, 1960, pursuant to Resolution 188 of June 28, 1960, under Law 635 of 1959. Resolution 188 was promulgated by the Government of Cuba when the Cuban corporation assertedly refused to refine certain crude oil as assertedly provided under a 1938 law pertaining to combustible materials. Subsequently, this Cuban firm was listed as nationalized in Resolution 19 of August 6, 1960, pursuant to Cuban Law 851. The Commission finds, however, that the Cuban corporation was effectively intervened within the meaning of Title V of the Act by the Government of Cuba on June 29, 1960.”
The largest certified claim (Cuban Electric Company) valued at US$267,568,413.62 is controlled by Boca Raton, Florida-based Office Depot, Inc. The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International; the certified claim also includes land adjacent to the Jose Marti International Airport in Havana, Republic of Cuba. The third-largest certified claim valued at US$97,373,414.72 is controlled by New York, New York-based North American Sugar Industries, Inc. The smallest certified claim is by Sara W. Fishman in the amount of US$1.00 with reference to the Cuban-Venezuelan Oil Voting Trust.
The two (2) largest certified claims total US$449,377,207.76, representing 24% of the total value of the certified claims. Thirty (30) certified claimants hold 56% of the total value of the certified claims. This concentration of value creates an efficient pathway towards a settlement.
The ITT Corporation Agreement
In July 1997, then-New York City, New York-based ITT Corporation and then-Amsterdam, the Netherlands-based STET International Netherlands N.V. signed an agreement whereby STET International Netherlands N.V. would pay approximately US$25 million to ITT Corporation for a ten-year right (after which the agreement could be renewed and was renewed) to use assets (telephone facilities and telephone equipment) within the Republic of Cuba upon which ITT Corporation has a certified claim valued at approximately US$130.8 million. ETECSA, which is now wholly-owned by the government of the Republic of Cuba, was a joint venture controlled by the Ministry of Information and Communications of the Republic of Cuba within which Amsterdam, the Netherlands-based Telecom Italia International N.V. (formerly Stet International Netherlands N.V.), a subsidiary of Rome, Italy-based Telecom Italia S.p.A. was a shareholder. Telecom Italia S.p.A., was at one time a subsidiary of Ivrea, Italy-based Olivetti S.p.A. The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Marriott International.
Libertad Act
The Trump Administration has made operational Title III and further implemented Title IV of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).
Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.
Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims. One Canada-based company and one Spain-based company are currently known to be subject to this provision based upon a certified claim and non-certified claim.
Suspension History
Title III had been suspended every six months since the Libertad Act was enacted in 1996- by President William J. Clinton, President George W. Bush, President Barack H. Obama, and President Donald J. Trump.
On 16 January 2019, The Honorable Mike Pompeo, United States Secretary of State, reported a suspension for forty-five (45) days.
On 4 March 2019, Secretary Pompeo reported a suspension for thirty (30) days.
On 3 April 2019, Secretary Pompeo reported a further suspension for fourteen (14) days through 1 May 2019.
On 17 April 2019, the Trump Administration reported that it would no longer suspend Title III.
On 2 May 2019 certified claimants and non-certified claimants were permitted to file lawsuits in United States courts.