Squaring Cuba's Terror Designation in the Circle of the Law

Wednesday, March 18, 2015
By Mauricio Claver-Carone in World Affairs Journal:

Squaring Cuba's Terror Designation in the Circle of the Law

Cuba’s Castro regime has made it clear in recent weeks that “normalizing” relations with the United States hinges on removing the designation of that island nation from the US list of “state-sponsors of terrorism.” Iran, Sudan, and Syria are the only other nations currently on the list, which is compiled by the State Department.

Last December, as President Obama announced his intent to re-establish formal diplomatic relations with Cuba, he also publicly instructed Secretary of State John Kerry to review Cuba’s status. The review, the president added, should be “guided by the facts and the law.” In the weeks since, there have been reports of the White House pressuring the State Department and intelligence community to accelerate the review so that the president and his Cuban counterpart, Raúl Castro, Fidel’s brother, can shake hands at the April “Summit of the Americas,” in Panama City, Panama.

That provokes serious concerns about whether the review is, indeed, being “guided by the facts and the law” or has become the veneer covering additional concessions that the Obama administration agreed to during 18 month of secret negotiations with the Castro regime. We don’t know what those were. We do know that before taking Cuba off the list of state sponsors of terrorism, statutory criteria must be satisfied and that actions by the Castro regime make it unlikely they can be met.

Under Section 6(j) of the Export Administration Act (as currently re-authorized under the International Emergency Economic Powers Act of 1977), the president must submit a report to Congress, 45 days before terminating the designation, that certifies the Cuban government has not provided any support for international terrorism during the preceding six months and has made assurances to the United States that it will not support terrorist acts in the future.

To be based on “the law and the facts,” the following five facts about Castro’s regime must be reconciled with the law:

Cuba is providing sanctuary to US-designated “Foreign Terrorist Organizations.” It’s indisputable that Cuba currently provides sanctuary to terrorists from the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army of Colombia (ELN), and Spain’s Basque separatist group, ETA. If the Obama administration no longer believes FARC, ELN, and ETA are terrorist organizations, which would be mind-boggling, then the State Department must first review their designation as “Foreign Terrorist Organizations.” De-listing Cuba as a state-sponsor of terrorism while countenancing its harboring and abetting of terrorist organizations is disingenuous, a folly akin to placing the cart before the horse.

Cuba is harboring one of the FBI’s “Ten Most Wanted Terrorists.” Joanne Chesimard remains among the top ten on the FBI’s list of “Most Wanted Terrorists” for the execution-style murder of a New Jersey state trooper. Chesimard, who the Castro regime has reiterated will not be returned to face justice, is the only “Top Ten” terrorist to be openly living in a state-sponsor nation. Again, if the Obama administration no longer believes that Chesimard is a terrorist—also mind-boggling—it should first remove her from the FBI list.

Three senior Cuban military officers remain under a US murder indictment. In 2003, a US federal court indicted then-head of the Cuban Air Force, General Rubén Martínez Puente, and two MiG pilots, Lorenzo Alberto Pérez-Pérez and Francisco Pérez-Pérez, for the 1996 shoot-down of two civilian planes—killing four men—over international waters. Three were American citizens, and one a permanent resident. No similar indictment has been issued against any military officials of other nations deemed to be sponsors of terrorism. Emphasizing this challenge, last month Obama extended a national emergency declaration finding that “the Cuban government has not demonstrated that it will refrain from the use of excessive force against US vessels or aircraft that may engage in memorial activities or peaceful protest north of Cuba.”

Cuba provides material support to subversive and criminal elements in the region. Cuba was originally placed on the terrorism list in 1982 for its training and arming of subversive forces in Africa and the Americas. Today, thousands of Cuban soldiers and intelligence officials are stationed in Venezuela. Their presence and control of Venezuela’s military, police, and intelligence services is subverting democracy in that nation. Cuba has armed and trained violent paramilitary groups, known as colectivos, and remains involved in narcotics trafficking and other criminal activities. Last week’s executive order by Obama declaring Venezuela as a national security threat and sanctioning seven senior government officials—with well-known links to Cuba’s military and security services—for their nefarious activities underscores this menace.

Cuba has recently lied twice to the international community about smuggling weapons. In a report last year, United Nations officials confirmed Cuba’s attempt to smuggle 240 tons of heavy weaponry to North Korea, hidden under tons of sugar. Panamanian officials discovered the contraband, which the UN panel described as the largest and most egregious violation of international sanctions to date. The panel documented the Castro regime’s lack of cooperation, false statements, and strategy to conceal and deceive UN authorities. And just this month, a Chinese-flagged ship was intercepted in Colombia carrying an illegal cache of weapons destined for Cuba’s military. Thus, what credible “assurances” can the Castro regime give the United States—as required by law—that it will now refrain from rogue activities?

The Obama-Castro deal has been subject to a great deal of criticism for lifting trade and travel restrictions without extracting any political or economic reforms from Cuba’s dictatorship. American aid worker Alan Gross was allowed to return home, but Castro had seized him as a hostage to coerce US concessions. To sidestep clear legal impediments to remove Cuba from the US list of states sponsoring terrorism, however, goes beyond political embarrassment. It would be an irreparable blow to the credibility of the administration’s foreign-policy leadership.

Mauricio Claver-Carone is a director of the US-Cuba Democracy PAC and host of the foreign-policy show From Washington al Mundo on Sirius XM’s Channel 153. He is an attorney who formerly served with the US Department of the Treasury and has served on the full-time faculty of the Catholic University of America’s School of Law and adjunct faculty of the George Washington University’s National Law Center.