Council of the Americas Inconvenienced by the Rule of Law

Thursday, February 21, 2013
Last month, U.S. President Barack Obama stated in an interview with New Republic:

"I continue to believe that whenever we can codify something through legislation, it is on firmer ground. It's not going to be reversed by a future president. It is something that will be long lasting and sturdier and more stable."

President Obama is right.

It is for this reason that -- in 1996 and 2000 -- the U.S. Congress codified clear conditions on human rights, democratic reform and the dismantling of the Castro regime's repressive apparatus before any trade and travel sanctions can be lifted.

The Council of the Americas' "Cuba Working Group" disagrees.

In a "white-paper" this week, the Council of the Americas urges the President to disregard codification and unilaterally change U.S. law.

According to its author,"[O]ur hands are tied by an antiquated law that’s being too strictly interpreted."

Wonder if he feels the same way about the U.S. Constitution?

Since 1996, State, Treasury and Congressional lawyers have all agreed on the codification of U.S. sanctions and the explicit limits placed on the Executive Branch's authority to suspend or terminate it without Congressional approval.

Why? Because the codification language is very clear.

Moreover, if any doubts remain, there is a pesky bit of American jurisprudence called legislative intent to confirm it.

(For non-lawyers, legislative intent is the design, plan or purpose that the legislature had in drafting, and enacting a particular statute.)

It states:

"It is the intent of the committee of conference that all economic sanctions in force on March 1, 1996, shall remain in effect until they are either suspended or terminated pursuant to the authorities provided in section 204 of this Act (requiring a Presidential determination that a democratic transition is under way in Cuba)."

And what are these sanctions?

"The committee of conference modified the definition of 'economic embargo of Cuba' to include all statutes or regulations relating to trade, travel, and transactions involving Cuban assets imposed under section 620(a) of the Foreign Assistance Act of 1961, section 5(b) of the Trading with the Enemy Act, the Cuban Democracy Act of 1992, section 902(c) of the Food Security Act of 1985, or any other provision of law. It is the intent of the committee that this definition be interpreted broadly, in part, in order to ensure that the suspension or termination of any economic sanctions on Cuba be pursuant only to the authority granted in section 204 of this Act."

And if you still have some doubt, ask the original conferees of the 1996 Cuban Liberty and Democratic Solidarity Act, who are still in Congress today -- namely, U.S. Senator Bob Menendez (D-NJ), U.S. Rep Peter King (R-NY) and U.S. Rep. Ileana Ros-Lehtinen (R-FL).

Not so, says the Council of the Americas.

Thus, their crackpot team of unnamed lawyers have assembled a whole new interpretation (17-years later) that incredulously gives the President the authority to create new travel categories and commercial exceptions -- thereby terminating existing prohibitions.

As a reminder to these legal phenoms, the last travel and commercial exception created (post-codification) was in 2000, when agriculture and medicine sales (and travel related to these sales) were authorized.

This was done through an Act of Congress -- the Trade Sanctions Reform and Export Enhancement Act (TSREEA). 


Because codification required it.

President Bill Clinton would have liked to do it himself at the time, but he did not have the legal authority to do so.

Bottom line: If the Council of the Americas or anyone else wants to change U.S. law, then persuade Congress to do so.

It's that simple.

We live in an open and democratic system that grants us that right.

But apparently that's too burdensome for them, as it requires too much discourse, debate and hard-work.

So instead -- why not just ask the President to twist and bend the law? 

That's something more worthy of a Chavez, Correa or Morales.

Whatever happened to the Council of the Americas "commitment" to the rule of law in the Western Hemisphere?

Is that also open to a new interpretation?

It seems that in the Council of the Americas' zealousness to change U.S. policy toward Cuba -- recall its founder David Rockefeller has wined and dined Cuban dictator Fidel Castro -- it has sadly lost its way.