Fidel Castro and Che Guevara during the early days of the Cuban Revolution. The role of the intellectuals in Cuba was a major point of discussion during the early 1960s.
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Cuba and the United States: The Claims Game
By Robert Sandels
In 2005, the United States Agency for International Development
(USAID) awarded Creighton University a $750,000 contract to study how to collect on claims against the Cuban government for property
confiscations, most of which were carried out in 1959 and 1960.
The resulting report, issued in October, reinforces the suspicion that
the claims were never meant to be resolved but simply added to the
store of weapons useful for the giant Cuban makeover that is supposed to happen after the death of Fidel Castro.
The report is also likely to be soon forgotten. Even USAID appears not to take the study seriously since it cut the project from two years to one and halved its budget.
But no matter, the report is not worth the money. To begin with, it lists as its outside advisors five organizations of dubious acquaintance with objectivity on Cuban issues. They are, the US military (Southern Command) and four anti-Castro NGOs: the Cuban American Bar Association; the Association for the Study of the Cuban Economy; the Cuba Study Group; and the Cuba Transition Project, another recipient of USAID money.
One need look no further than the first paragraph of the report's executive summary to see that the Creighton scholars hurried to surrender their credibility by associating their proposals with the US campaign to overthrow the Cuban government.
The model they propose for adjudicating property claims is "a central feature in the U.S. Government's proactive planning for Cuba's transition to democracy," and "responds to the
requirement of the Cuban Liberty and Democratic Solidarity
[Helms-Burton] Act."[1] This legislative confection is, of course,
the imperial blueprint for eliminating the Cuban government and
imposing a US-dictated market economy.
No claimant left behind
In 1972, the Justice Department's Foreign Claims Settlement
Commission (FCSC) registered 5,911 claims for confiscated personal and business property with an estimated value $6 billion.[2] To register, all claimants must have been US citizens or businesses owned by US citizens at the time of the confiscations. The Creighton report follows general historical precedent by proposing that a settlement be negotiated through a bilateral claims tribunal.
Comprising a second category are claimants the FCSC refers to as
Cuban-Americans - those who were Cuban citizens at the time their
property was confiscated and therefore not covered by international
law on restitution. Their only option is to apply to the Cuban
government for redress.
However, even while recognizing that the United States has no jurisdiction over these claims, the Creighton scholars offer a non-legal justification for including them somewhere in their compensation scheme. "Politically and economically," says
the report, "their claims should not be ignored." Why not? Because
their influence over policymakers in Washington "brought about the
Libertad Act...achieved special immigration status for Cubans leaving
the island [Cuban Adjustment Act], sustained Radio Marti programming, and leveraged millions of dollars in federal money to support democracy programming for Cuba."[3]
For this group, the Creighton scholars propose that Cuba set up a special independent claims court within its judicial system. Curiously, they recommend that this independent court should consist of 12 judges appointed "in consultation with the United States," and that only six of the judges should be of the same nationality.[4]
Consequently, might such an independent Cuban court consist of six judges from Miami and six from Poland? Could such a court be independent or even legal within the Cuban judicial system if rules for its makeup were determined by a foreign power? Perhaps USAID should commission another study to find out.
No claimant left behind except Cuba
A third claimant category could be added. The Cuban government seeks compensation for damages inflicted on Cuban lives and property by decades of economic blockade, invasions, sabotage and terrorist acts carried out directly or indirectly by the United States. A Cuban court in 1999 assessed the damage at more than $181 billion.
The report does not suggest a model for addressing these claims except for specific property losses such as personal bank accounts frozen in the United States. "Other Cuban claims, including tort claims, should be undertaken within the domestic Cuban judicial system and treated as normal litigation."[5]
The scholars seem to forget that in 1996, the US Congress showed how citizens of one country could sue governments of another country by claiming they were victims of terrorism. In that year, President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act, which expanded "the circumstances under which foreign governments that support terrorism may be sued for resulting injuries, and increases the assistance and compensation available to the victims of terrorism."[6] The law blew a hole in the immunity nations generally have from such lawsuits under the Foreign Sovereignty Immunity Act of 1976.[7]
Claims & how not to resolve them
Cuba long ago settled the claims of Canada, France, Italy, Mexico,
Spain, Switzerland and the United Kingdom.
In 1960, Cuba offered to compensate US claimants through a bond issue funded with income from sugar sales to the United States, which were assured by yearly import quotas allotted to Cuba since 1934. President Dwight Eisenhower responded to the offer by suspending the sugar quota for the rest of his term, and his successor, John F. Kennedy, reduced it to zero in 1961.
The effect was to cut off the chief source of dollars Cuba
needed to back the bonds.[8] Thus, the claims issue persists nearly
50 years after most of the confiscations took place even though there
are well-established mechanisms in international law and common
practice to settle them.
There are historical precedents that could be followed without recourse to the foolish Creighton model. The United States could simply advise the Cuban government to ignore the claims just as the government of George Washington ignored the claims of dispossessed Tories and Loyalists after the War of Independence.
Or, the United States could negotiate a settlement as it did four
years after the Mexican oil expropriations of 1938. But Cuba is
different. The claims serve a political purpose by remaining
unresolved.
The US refusal to accept the Cuban offer was not based on a consideration of what was good for the claimants but rather on the usefulness of unresolved claims to help justify US Cuba policy and on the value of maintaining a permanent class of angry claimants in Miami who support that policy.
The claims competition game
The appointment in 2002 of Mauricio Tamargo as head of the FCSC
worried lawyers for some of the registered corporate claimants that
he might set up a special program to accept claims from the
Cuban-American category, greatly increasing competition for
compensation from the roughly $270 million in Cuban funds frozen in
the United States since 1963. That suspicion was based on Tamargo's history as a Bush appointee who had worked for 20 years on the staff of the reflexively anti-Castro Rep. Ileana Ros-Lehtinen (R-FL).
While Tamargo created no such program, he managed to increase the competition by opening a second round of certification in 2006 at the request of Secretary of State Condoleezza Rice, 34 years after all
claims were supposed to have been submitted.
Five more claims were certified, but the most important one, which apparently was the reason for Rice's intervention, was that of Starwood Hotels and Resorts Worldwide of White Plains, NY. Starwood's claim was based on confiscations in 1968 and 2003 of land and bank accounts in Havana previously owned by Radio Corporation of Cuba, a subsidiary of the International Telephone and Telegraph (ITT).
Starwood acquired ITT's interest in the assets in 1998. "It is extraordinary that a program would be created for a single company," said Robert Muse, an attorney for some of the corporate claimants.[9] But, the real threat to the registered claimants came not from Tamargo's FCSC but from Miami courtrooms.
The frozen-fund raiders
The Eisenhower, Kennedy and subsequent administrations effectively turned matters of sovereign state policy over to private citizens and civil courts in Miami. The Alien Tort Claims Act of 1789, revived in modern times primarily as a tool for redress in human rights cases abroad, was made available to plaintiffs in the United States who could convince a court that they were victimized by a foreign country.
The Anti Terrorism and Effective Death Penalty Act then
comes into play allowing plaintiffs to argue that their victimization
was the result of state-sponsored terrorism. These two laws were
successfully employed in the Brothers to the Rescue case.[10] In
1997, a Miami court awarded $187 million in compensatory and punitive damages to the families of two pilots of the Miami-based organization who were shot down by Cuban jet fighters the previous year over waters near Cuba.
The award was to be paid from the frozen funds, but the Clinton administration regarded control of the funds as the prerogative of the executive branch and opposed taping into them to satisfy court judgments.
Nevertheless, in 2001, he authorized a $93 million payout from the funds to compensate the families. This was in addition to $1.2 million in US taxpayer funds they were given in 1998.
Later in 2001, Congress legislated further access to the funds
by permitting claimants to collect on compensatory (but not punitive)
damage awards from the frozen funds in cases against countries the
United States declared "rogue states."
In another case, Ana Margarita Martinez won a judgment against Cuba under the Anti-Terrorism and Effective Death Penalty Act. Martinez was the wife of Cuban pilot Juan Pablo Roque, who defected in 1992 and joined the Brothers to the Rescue.
Just before the shootdown in 1996, he turned up on Cuban
television denouncing the Brothers as a terrorist organization. He
denied having been a Cuban agent, but the Martinez suit rested on the official Miami assumption that he was. Martinez based her suit on
allegations that Roque had married her under false pretenses, and
that the Cuban government was therefore an accessory to rape because at the time of the marriage Roque was allegedly working for Cuba.
Technically, she won the settlement as a victim of terrorism and the
court ratified the claim by declaring Roque a spy, a terrorist and an
accessory to murder. In 2001, Martinez was awarded $27 million. In
2003, her lawyers took possession of two Cuban-owned planes that had been hijacked and flown to Key West. Proceeds of $19,000 from the sale of the planes went to Martinez in partial payment of her award. In 2005, Bush authorized a further $198,000 payment from the frozen funds.
Cuba ordered to pay invaders
Various non-property claims arose from cases involving the deaths of US citizens taking part in attempts to overthrow the Cuban
government. In one such case, a Miami court in 2006 awarded $400
million in compensatory and punitive damages in a wrongful death suit against Cuba to the survivors of Robert Fuller, a US citizen who took part in an armed incursion into Cuba and was tried and executed in 1960.
The plaintiffs' brief said that Fuller had "ventured to Cuba in
an effort to protect his family's land, businesses and other
interests." [11] The expedition was actually ordered and outfitted in
Miami by Rolando Masferrer, generally regarded as a
counter-revolutionary terrorist. Fuller and two dozen others aboard
four boats took part in the "venture."
OfficeMax versus dead pilots' daughter
Another case involved CIA contract pilot Thomas Ray, shot down in his B-24 while assisting the US Bay of Pigs invasion force in 1961. He was tried and executed the same year. If there are any Cuban victims of his attack on the town of Central Australia in 1961, they might try suing his daughter Janet Ray Weininger, who won a judgment from a Miami court in 2004.
Using the legal legerdemain cited in various US tort cases against Cuba, they might consider themselves victims of terrorism and try suing the estates of Presidents Eisenhower and Kennedy.
OfficeMax Inc. tried to block payment to Weininger arguing
that its $267 million claim was the biggest one registered with the
FCSC and should be first in line to get at the frozen funds.
OfficeMax took over a claim from Boise Cascade for the loss of its
interest in the expropriated Cuban Electric Company.
The competition between OfficeMax and Janet Ray Weininger illustrates one of the problems caused by a succession of US administrations surrendering issues of sovereign prerogative to private interests for foreign policy advantage. None of the court awards in these cases was grounded in property claims, which casts doubt on the seriousness of the government's pledges to support the duly registered claimants.
The major legislative remedies Congress made available to plaintiffs
create a kind of closed system, a legal black hole from which nothing
can emerge, as illustrated by the logic of Helms-Burton. It prohibits
resumption of full economic and political relations between Cuba and the United States until the property claims are settled.[12] But
there is a catch: There can be no resolution of the claims until
relations are resumed. That requires the destruction of the Cuban
revolution, for the benefit of which the confiscations were ordered
in the first place.
Notes
[1] Executive Summary, Creighton report, Sec.I(A)(2), 09/13/07.
[2] There is also a private Miami-based Cuba Claims Registry
Assistance firm set up 1999. Its purpose is to connect potential
buyers of the claims with the claimants and to scare off potential
investors in the property. El Nuevo Herald, 08/04/99.
[3] Executive Summary, Creighton Report, I (A)(2).
[4] Ibid., Sec.I(D).
[5] Ibid., Sec.I(B).
[6] Anti-Terrorism and Effective Death Penalty Act, Title II
Sec.221.http://usinfo.state.gov/usa/infousa/laws/majorlaw/s735.htm.
[7] Congressional Research Service, Library of Congress, Suits
Against Terrorist States by Victims of Terrorism, 06/07/05.
http://64.233.167.104/search?q=cache:6dI8Ci8w2jcJ:fas.org/sgp/crs/terror/RL31258.pdf+weininger+v+castro&hl=en&ct=clnk&cd=1&gl=us.
[8] For a full history, see Cuba vs. Blockade,
http://www.cubavsbloqueo.cu/Default.aspx?tabid=271.
[9] The Miami Herald, 08/25/05.
[10] Citing the Alien Tort Act, Lawyers in Miami tried to sue
Venezuelan President Hugo Chavez alleging he caused the deaths of opposition demonstrators during the failed 2002 coup attempt.
Law.Com, 07/13/03.
[11] Estate of Robert Otis Fuller vs. The Republic of Cuba, Claim
Under the Foreign Sovereign Immunities Act 2002, In the Circuit of
the 11TH Judicial Circuit in and for Miami-Dade County, Florida,
Cuban Information Archives.
http://cuban-exile.com/doc_226-250/doc0245.html.
[12] "It is the sense of the Congress that the satisfactory
resolution of property claims by a Cuban Government recognized by the United States remains an essential condition for the full resumption of economic and diplomatic relations between the United States and Cuba." Helms-Burton Act, Sec.207 (d).
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