Obama's Announcement: Issues of Credibility, Geo-Political Vision and Executive Overreach

Wednesday, December 17, 2014
President Barack Obama has just announced a series of changes to Cuba policy, pursuant to a deal with dictator Raul Castro for the release American hostage, Alan Gross.

These policy changes are in addition to a prisoner exchange, in which three Cuban spies imprisoned in the United States have also been released.

(Please see our statement regarding the prisoner exchange here.)

These policy changes raise serious questions regarding the President's credibility and geo-political vision. They also represent an abuse of his executive authority under U.S. law.

As regards credibility --

Just last year, U.S. Secretary of State John Kerry testified before the House Foreign Affairs Committee:

"[The Castro regime] has been attempting to trade Alan Gross for the five spies that are in prison here in the US, and we've refused to do that because there's no equivalency."

Yet, that -- in fact -- is what the Obama Administration has done today.

As regards geo-political vision --

President Obama has placed democracy in the Western Hemisphere on the chopping bloc.

In his remarks at noon, Obama cited China and Vietnam as examples of why the United States should normalize relations with Cuba.

So what exactly is the model that Obama seeks for Cuba?

Is it the "China model" whereby U.S. business helps to build the most lucrative dictatorship in human history?

A "Vietnam model" of state capitalism under an iron-fisted rule?

"Burma model" whereby reforms achieved through pressure are rolled back as soon as sanctions are lifted?

Raul Castro, Nicolas Maduro and their puppets revel in such models. But none should have a place -- geographically or politically -- in the Western Hemisphere.

In this hemisphere, every nation (except Cuba) made a commitment to representative democracy in 2001.

Today's announcement sends a message to the Western Hemisphere's wanna-be authoritarians that the U.S. now (once again) views such models as acceptable in the Americas.

Globally, it has sent a blueprint to the other nations on the U.S.'s state-sponsors of terrorism list (Iran, Sudan and Syria) of how to have that designation removed -- take an American hostage.

As regards executive powers --

U.S. policy towards Cuba was codified into law under the Cuban Liberty and Democratic Solidarity Act of 1996, and the Trade Sanctions Reform Act of 2000.

The policy changes announced by the President are an overreach of his executive powers under the law.

For example, the Trade Sanctions Reform and Export Enhancement Act of 2000 (§910(b) of P.L. 106-387, Title IX), codified the ban on tourist activities, which are defined as any activity not expressly authorized in the 12 categories of travel set forth in the regulations. It further specified, "as such regulations were in effect on June 1, 2000."

Obama's announcement to issue a general license for all twelve categories of authorized travel exceed these regulations, as they were "in effect on June 1, 2000."

Moreover, the official legislative history of the law clarifies that the President has power to tighten economic sanctions, but not to ease them beyond the baseline set on March 1, 1996.

It reads:

"The conference substitute (subsection (102(h)) codifies the 'economic embargo of Cuba' as defined in section 4.  It is the intent of the committee of the 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 underway in Cuba).  It is not the intent of this section to prohibit executive branch agencies from amending existing regulations to tighten economic sanctions on Cuba or to implement the provisions of this act."

The banking and credit card portions of Obama's announcement exceed economic sanctions, as they were "in force on March 1, 1996."

Finally, under the Cuban Democracy Act of 1992, there is a direct prohibition on "investment in domestic telecommunications services." Moreover, that an "investment" in the domestic telecommunications network within Cuba "includes the contribution (including by donation) of funds or anything of value to or for, and the making of loans to or for, such network."

It remains to be seen whether the telecommunications portion of Obama's announcement abides by this direct prohibition.

These are issues that the U.S. Congress should carefully look into.