Required Reading For Officials At U.S. Department Of State And The White House: Two-Part How-To Guide For Removing Cuba From List Of State Sponsors Of Terrorism
/Global Americans
New York, New York
25 February 2021
Special Contributor
By Robert L. Muse
Part 1: A consequence of relisting Cuba as a State Sponsor of Terrorism
This article is the first in a two-part series on Cuba’s redesignation as a State Sponsor of Terrorism written by Robert L. Muse, a lawyer in private practice in Washington, D.C. who has written widely and testified on U.S. laws relating to Cuba before the U.S. Senate and House of Representatives; the Canadian House of Commons; the U.S. International Trade Commission; and the External Economic Relations Committee of the European Parliament (Brussels).
In the final week of his tenure, Secretary of State Mike Pompeo redesignated Cuba as a State Sponsor of Terrorism. Obviously, the list is punitive by design, so the designation of a particular nation is intended to have distinctly adverse economic consequences.
Despite adverse intentions, the economic sanctions that Cuba is subject to as a result of its designation sound worse than they actually are. This is because the U.S. embargo on Cuba already prohibits trade with the island nation. Whenever a decision is made to relax that embargo, the president also has the authority to rescind any restrictions imposed by Cuba’s inclusion on the terrorist list by simply revoking its designation, as President Barack Obama did in May 2015.
Outside of the economic ramifications, there is also a legal consequence from Cuba’s redesignation as a State Sponsor of Terrorism that will not be so easily remedied. Once on the list, a country is subject to lawsuits in U.S. courts that would otherwise be dismissed on the basis of sovereign immunity. It is the court judgments resulting from such suits that have long-term implications for U.S.–Cuba relations.
A country that is designated a State Sponsor of Terrorism may be sued under the Foreign Sovereign Immunities Act for “extra-judicial” killings and personal injuries if it was (i) designated as a sponsor of terrorism at the time of the killing or personal injury and (ii) the victim was a U.S. citizen at the time of death or injury. More than USD $4 billion has been awarded by Florida courts against Cuba as a result of lawsuits that plainly do not meet the subject matter jurisdictional requirements of the statute. Interest on those awards under Florida law is an astonishing 11 percent per year until satisfied, according to §55.03 of the Florida Code.
The cases began with Weiniger and McCarthy in 2006. The first involved the death of a man who bombed and strafed Cuba in a B-26 painted in Cuban Air Force colors. He had flown from a CIA-controlled airstrip in Guatemala to provide air cover for the Bay of Pigs invasion. McCarthy, who was charged with smuggling weapons into Cuba, was executed during the time of the Bay of Pigs. Both were killed in 1961—importantly, though, Cuba was first designated a State Sponsor of Terrorism in 1982.
As legally deficient jurisdictionally as the Weiniger and McCarthy cases were, they nevertheless emptied the bank accounts of the government of Cuba that had been frozen in New York since the early 1960s. They also demonstrated to contingency attorneys in Miami that Cuba’s designation on the terrorism list was enough to generate massive awards against Cuba in the Florida courts, even if the requirements of the Foreign Sovereign Immunities Act were not met. It is the lawyers’ hope that they collect their fees out of the attachment and seizures of Cuban-owned property that enters the United States.
Because the awards are without legal basis under controlling U.S. law, Cuba could simply refuse to pay them if they are raised by the U.S. in future claims negotiations. However, a refusal to pay the U.S. court awards will leave every agency or instrumentality of the Cuban government (and any private entity in a joint venture or contractual relationship with Cuba or one of its agencies) at risk of someday having any and all of its property that enters the U.S. attached in execution of those awards (e.g., Cubana Airline’s planes; ships; cigars from Cuba’s state tobacco monopoly; bank accounts set up to pay for U.S. exports, etc.). It is difficult to conceive of a larger obstacle to bilateral trade between the U.S. and Cuba.
This outcome was exacerbated in 2008 when the Foreign Sovereign Immunities Act was amended to add a new subsection that allows for the attachment and execution on any property of a foreign state with a §1605A judgment against it (i.e., a judgment against a “terrorist-sponsoring nation”), even if the government instrumentality that finds its assets in the U.S. attached had no connection to the events that were the basis for the court’s award, and even if there are other non-state joint or beneficial owners of that property. As a result, attorneys for families with judgments against Cuba have tried to seize telephone royalties Cuba owed U.S. telecommunications companies. They have also tried to seize money from U.S. airlines that fly to Cuba, claiming the money will be paid to the island as landing fees. Finally, they have tried to seize Cuban-owned trademarks for rum and cigars.
When Cuba was removed from the list by the Obama administration in 2015, eleven judgments had been entered against Cuba. A brief review of a few of the judgments against Cuba illustrates their infirmities. In April 2008, a jury awarded the representative of the estate of a man named Rafael Del Pino USD $230 million. Not long after, a judge awarded the family of a man named Aldo Sera USD $94.6 million. Both judgments were entered in Miami-Dade County Court.
In the first case, it was alleged, in a very confused and oddly phrased complaint (e.g., “At all times relevant hereto, Rafael Del Pino was executed by hanging”), that Del Pino, who had been “a friend of Fidel Castro and was involved in the Cuban Revolution,” was “executed” in 1979. According to Hugh Thomas’ history of Cuba, Del Pino acted as a paid informant for the Batista dictatorship, not as a friend to Castro. (His “involvement in the revolution” seems to have been informing Batista’s police agents of the location of an arms cache stored in a house in Mexico that was to be used in Castro’s Sierra Maestra campaign). According to one historical account, Del Pino left for the U.S. after the incident in Mexico. He returned to Cuba “in 1959 to lead an abortive expedition against Castro and to receive a thirty-year sentence.” Evidently, he died while in prison.
In the second case, Aldo Vera was the “former Chief of Police of Havana” whose relatives claimed he was murdered by “Cuban agents” in Puerto Rico in 1976. Before his death, he organized and ran a paramilitary group (the Fourth Republic) with the objective of violently overthrowing the Cuban government.
In 2007, USD $400 million was awarded to the family of a Cuban and U.S. dual national named Fuller, who was born and lived his entire life in Cuba, where his grandparents had immigrated. In 1960, he traveled to Florida to organize an “invasion of Cuba” by four Americans and twenty-three Cubans. He was apprehended and executed.
Another case in 2007 awarded a Cuban plaintiff named Jerez USD $200 million. He was imprisoned in 1964. It is unclear when he was released, but the judgment states that he moved to the United States in 1980 and was naturalized as a U.S. citizen by 1993.
Again, Cuba was not designated as a State Sponsor of Terrorism by the State Department until 1982. That means it was not susceptible to suit until three years after Del Pino died, six years after Vera’s death, and at least twenty years after the death and maltreatment alleged in the 2007 cases of Jerez and Fuller.
Seeing as the courts of Florida have continuously failed to require litigants to demonstrate that they qualify to sue Cuba, President Joe Biden must promptly remove Cuba from the list of terrorism-sponsoring nations if he is to avoid further damage to the prospects one day of normalized commercial relations with the country.
Robert L. Muse is a lawyer in private practice in Washington, D.C. He has written widely and testified on U.S. laws relating to Cuba before the U.S. Senate and House of Representatives; the Canadian House of Commons; the U.S. International Trade Commission; and the External Economic Relations Committee of the European Parliament (Brussels). He has spoken at many universities about U.S. law and policy regarding Cuba, including Columbia, Georgetown, Harvard, Fordham, and the Universities of California, Georgia, North Carolina, and Havana.
Global Americans
New York, New York
25 February 2021
Special Contributor
By Robert L. Muse
Part 2: The unlawful basis for Cuba’s designation as a State Sponsor of Terrorism
This article is the second in a two-part series on Cuba’s redesignation as a State Sponsor of Terrorism written by Robert L. Muse, a lawyer in private practice in Washington, D.C. who has written widely and testified on U.S. laws relating to Cuba before the U.S. Senate and House of Representatives; the Canadian House of Commons; the U.S. International Trade Commission; and the External Economic Relations Committee of the European Parliament (Brussels).
When former Secretary of State Mike Pompeo announced that he was redesignating Cuba as a State Sponsor of Terrorism in January, the reason he gave was that Cuba was “repeatedly providing support for acts of international terrorism in granting safe harbor to terrorists.”
The first basis for the designation was Cuba’s refusal to extradite members of the Ejército de Liberación Nacional (ELN) guerilla group to Colombia, where they are most wanted in connection with the bombing of a police station. However, title II, article 35 of the Constitution of Colombia, states, “extradition shall not be granted for a political crime,” as stipulated in Columbia’s extradition treaty with Cuba.
The second basis for designating Cuba was its refusal to extradite American fugitives to the United States. This prompts an obvious question: is the U.S. government required by law to designate a nation as a supporter of terrorism simply on the basis of whether or not it surrenders people wanted in the U.S. on criminal charges?
The answer is clear: of course not. Many countries have not signed extradition treaties with the U.S., leaving the U.S. unable to demand the return of American fugitives (the right of a foreign sovereign state to demand and obtain extradition of an accused criminal is created by treaty; in the absence of a treaty there is no duty to extradite). Among the sixty nations with which the U.S. does not have extradition treaties are Russia, Indonesia, the People’s Republic of China, Kuwait, Vietnam, and Ukraine. Nevertheless, none of those countries are on the State Department’s State Sponsors of Terrorism list.
Therefore, there is no requirement that countries that do not extradite fugitives to the U.S. must be listed as terrorism-sponsoring countries. Can this nonetheless be a valid reason for inclusion on the list? The answer, as a matter of U.S. law, is no.
The State Department’s legal authority to designate countries as State Sponsors of Terrorism is set out in three different laws. These laws establish the statutory standard for such designation, and it has to be that a country “repeatedly provided support for international terrorism.” See § 1754(c)(1)(A)(i) of the National Defense Authorization Act of 2019.
The U.S. defines “terrorism” as “premeditated, politically motivated violence perpetrated against noncombatant targets” (see 22 U.S.C. 265 6f(d)(2)). “International terrorism” is defined as “acts involving the citizens or the territory of more than one country” (see 22 U.S.C. 2656f(d)(1). Therefore, the criminal acts–even if terroristic–of an individual or group, if confined to a single country and aimed only at citizens of that country, would not qualify as “international terrorism.”
Indisputably, certain fugitives from U.S. justice are permitted to reside in Cuba. However, does this action on the part of Cuba definitionally constitute the “repeated provision of support for international terrorism?”
It does not unless two further elements can be demonstrated: (i) the fugitives in question must have committed “terrorist” acts, and (ii) those acts must have been “international” in character.
I have been unable to identify a single U.S. citizen currently residing in Cuba who meets the twofold criteria of having (i) committed a terrorist act; that (ii) was also international in nature.
Since none of the fugitives in Cuba are wanted in the U.S. for terroristic acts of an international character, Cuba’s inclusion on the State Department list of State Sponsors of Terror is invalid.
Political fugitives in Cuba: The legal dimension
On January 11, 2021, then-Secretary of State Pompeo said, “Cuba harbors several U.S. fugitives from justice wanted in or convicted of, charges of political violence.”
Besides, a similar comment appeared in a State Department report issued before former President Donald Trump took office. It stated:
“The salient feature of Cuba’s behavior in this arena, however, is its refusal to render to U.S. justice any fugitive whose crime is judged by Cuba to be political.”
These two comments call into question whether U.S. officials are aware that the extradition treaty between the U.S. and Cuba explicitly prohibits the extradition of persons whose crimes are of “political character” (see Treaty of Extradition between the United States and Cuba, signed April 6, 1904, which is still included in the State Department’s annual publication of Treaties in Force). I’ll return to this point in a moment. First, how many “political” fugitives of U.S. justice are actually in Cuba?
According to a report published several years ago by the Council on Foreign Relations, eight U.S. nationals reside in Cuba whose crimes may be deemed “political.” Joanne Chesimard, better known by her nom de guerre Assata Shakur, was named in Cuba’s redesignation list. And her case is worth examining in some detail.
Chesimard was a member of the Black Liberation Army (BLA), an offshoot of the Black Panther Party, and was convicted for the killing of a New Jersey state trooper in 1973. In 1979, she escaped from prison and has been in Cuba ever since.
According to a Cuban official, Chesimard’s case was investigated, and she was found to merit treatment as a political offender. According to Cuba’s penal code, “Cuba will not extradite foreigners persecuted for having fought against imperialism, colonialism, neo-colonialism, fascism or racism, or for defending democratic principles or the rights of working people.” As a result of this judgment, Cuba’s position is that Chesimard is not extraditable.
To make matters more complicated, Chesimard’s role in the killing of Trooper Werner Foerster is also the subject of intense controversy. In one version of the events, she is said to have shot the downed officer execution-style. In another version, it appears that unarmed Chesimard was shot herself while her hands were in the air, while Trooper Foerster was shot by one of Chesimard’s fellow black revolutionaries, who subsequently died at the scene from police bullets.
Regardless of the competing accounts of what happened, is Cuba legally justified in refusing to extradite her? As deplorable and reprehensible as her killing of New Jersey State Trooper Foerster may have been, the answer is yes.
The 1904 extradition treaty between the U.S. and Cuba, in Article VI, states: “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded to be of a political character…If any question shall arise as to whether a case comes within the provisions of this article, the decision of the authorities of the government on which the demand for surrender is made…shall be final.”
The political offense exception of the 1904 U.S.-Cuba extradition treaty is found in most bilateral extradition treaties. For example, until 1987 – when the U.S. and the United Kingdom amended their joint extradition treaty –, members of the Irish Republican Army (IRA) were routinely determined by U.S. courts to be exempt from extradition under the political offense exception of an earlier treaty.
It is worth exploring whether a U.S. court would find Chesimard exempt from extradition under the political offense exception of the 1904 treaty with Cuba. The facts of the case and relevant case law suggest it would.
The historical development of the political offense exception is grounded in the belief that individuals have a “right to resort to political activism to foster political change.” Violent political action is specifically covered by the exception because “A political offense… must involve an “uprising” or some other violent disturbance,” as was previously determined in the Garcia-Guillern v. the United States of America, 450 F.2d 1189 (5th Cir.) case.
During the 1986 debates in the U.S. Senate over amending the extradition treaty with the U.K. to exclude such crimes as murder, opponents of both parties argued that the elimination of the political offense exception for certain crimes ran counter to the United States’ venerable tradition of providing a haven for political refugees and freedom fighters. Drawing an analogy to the American Revolution, Senator Jesse Helms (R-NC) argued for the existence of a “right to rebel” that must be respected in all circumstances. For instance, the Senator said, “If this [amended extradition] treaty had been in effect in 1776…[its] language would have labeled the boys who fought at Lexington and Concord as terrorists. There is no question that the British authorities in 1776 would have considered the guerilla operations of the Americans to be murder and assault. Their offenses included the use of bombs, grenades, rockets, firearms, and incendiary devices, endangering persons, as may be demonstrated by reference to our National Anthem.”
On the other side of the aisle, Senator Chris Dodd (D-CT) concurred, saying: “The underlying proposition in this [extradition] agreement is that all acts of political violence are wanton crimes and acts of terrorism. It equates all political violence with terrorism, and that is a bogus proposition. It’s as bogus as equating political opposition to sedition or treason.”
U.S courts have historically required a crime to meet a twofold test for an action to be considered political, as demonstrated in the case Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986). First, the occurrence of an “uprising or other violent political activity” at the time of the offense should occur; and second, the offense must be “incidental to,” “in the course of” or “in furtherance of the uprising.”
Influenced by Marxist-Leninist philosophies and the writings of Frantz Fanon, the BLA saw revolutionary violence against the state as a necessary response to what they viewed as a racist, imperialist American regime.
Judging from the case law, there is a good chance that a U.S. court would find BLA to have been in a state of revolt against the U.S. government in 1973; and Chesimard’s violent attempt to avoid capture as having been “incidental” for the means of that revolt.
We can deplore Chesimard’s crime – assuming she indeed shot and killed Officer Werner – while simultaneously admitting that Cuba’s treatment of her as a political fugitive has a legal basis in the international law of treaties in general and, more particularly, in U.S. jurisprudence.
Cuba’s inclusion on the list of State Sponsors of Terror is pretextual
Even a casual reading of the former Secretary of State Pompeo’s announcement may lead one to conclude that there is no legal or factual basis for the designation of Cuba as a State Sponsor of Terrorism. Recalling previous statements, President Bill Clinton’s former special advisor to Cuba, Richard Nuccio, once said: “Frankly, I don’t know anyone in or outside of government who believes in private that Cuba belongs on the terrorist list. People who defend it know it is a political calculation. It keeps a certain part of the voting public in Florida happy, and it doesn’t cost anything.”
Up to the Obama administration, the political calculations referred to by Mr. Nuccio forced the State Department to annually defend its inclusion of Cuba on the list of countries that sponsor international terrorism. Mainly because no factual basis existed to keep Cuba on the list, and so the State Department was forced to resort to pretexts.
For example, one of the allegations used to designate Cuba in 2004 was that it “remained opposed to the U.S.-led coalition prosecuting the global war on terrorism and condemned many associated U.S. policies and actions throughout 2003.” The same could, of course, be said of France, Germany, and a majority of other countries. However, none were designated on the State Department’s list. It follows that the inclusion of Cuba on the terrorist list on such a basis can therefore be nothing but pretextual.
The allegation that Cuba “hosts dozens of fugitives from U.S. justice” is as much a pretext as other accusations advanced by the State Department. As I mentioned at the outset, even if true, Cuba’s conduct concerning fugitives is simply irrelevant for deciding whether or not it meets the explicit criteria for designation, which is, does it “provide support for international terrorism?”
If the U.S. is sincere in wishing to see political fugitives returned from Cuba, it must inform Cuba of its willingness to negotiate an amendment to the existing treaty that abolishes the political offense exception, as the U.S. did with the U.K. in 1987. Of course, however, none of this is required to remove Cuba from the list of State Sponsors of Terrorism—that entails nothing more than a few strokes of the presidential pen.
Robert L. Muse is a lawyer in private practice in Washington, D.C. He has written widely and testified on U.S. laws relating to Cuba before the U.S. Senate and House of Representatives; the Canadian House of Commons; the U.S. International Trade Commission; and the External Economic Relations Committee of the European Parliament (Brussels). He has spoken at many universities about U.S. law and policy regarding Cuba, including Columbia, Georgetown, Harvard, Fordham, and the Universities of California, Georgia, North Carolina, and Havana.
