By Nicolas J Gutierrez, Jr.*
It was a meticulously choreographed and highly charged historic moment. The stage of the largest grand ballroom of Coral Gables’ majestic Biltmore Hotel was bedecked with the distinctive blue and yellow banner of Assault Brigade 2506 on the 58th anniversary of that unit’s valiant but unsuccessful landing at Cuba’s Playa Girón, back on April 17th, 1961. At its podium, stood U.S. National Security Adviser John Bolton addressing a crowd of well over three hundred largely sympathetic Cuban-Americans, as well as dozens of federal, state (including Florida’s Governor Ron DeSantis) and local elected officials, and media outlets. In his characteristic resolute and measured tone, Bolton confirmed that morning’s earlier announcement by Secretary of State Mike Pompeo that, for the first time in the twenty-three years since the passage of the Cuban Liberty & Democratic Solidarity (LIBERTAD) Act of 1996 (more commonly referred to as the Helms-Burton law), the Trump Administration was now fully implementing its Title III right-of-action provision against foreign traffickers on stolen American properties on the island, effective on May 2nd, 2019, both indefinitely and without any exceptions whatsoever, signaling a seismic shift in fundamental U.S. policy toward Havana.
In addition to the new policy on Title III, and in stark contrast to the record of past U.S. Administrations, Bolton went on to commit to a full and vigorous enforcement of the visa revocation and territorial exclusion mandate of Title IV, against the principals, controlling shareholders, and corporate officers of these same foreign traffickers, together with those of their spouses, minor dependent children and agents. Over the past nearly two and a half decades, Title IV, a non-Presidentially suspendable governmental obligation (as opposed to a formerly suspendable private right-of-action like Title III) has merely been minimally and selectively enforced.
Bolton proceeded to announce that the Obama Administration’s policy of unlimited remittances to Cuba was also reversed, restricting these significant transfers back to $1,000.00 per quarter per person and solely to family members, more or less in line with what they were during George W. Bush’s Presidency. Similarly, lawful travel to Cuba is now largely restricted to family visits, with “veiled” tourism being dramatically curtailed under the formerly expansive (and quite arguably abusive) cultural/educational category. With regard specifically to these new restrictions on travel, the White House, State and Treasury Departments have yet to sort through the corresponding details, in order to establish the policy’s actual parameters, but already a devastating impact on the already dwindling passenger counts on American cruise ships to Cuba would seem to be a pretty sure bet.
Bolton went on to specify that, going forward, all government-to-government communications between the U.S. and Cuba will be funneled through a specific Presidential appointee, with a view towards strictly curbing any unauthorized initiatives between these two bureaucracies. This measure comes in response to the free-wheeling secret negotiations conducted by Ben Rhodes and Ricardo Zuñiga of the National Security Council and State Department under the Obama Administration respectively, during which (unbeknownst even to the relevant Congressional committees) their Cuban counterparts were furtively provided with “secure communications equipment” of the sort that are typically not shared even with close U.S. allies. As the Trump Administration has learned thus far in its repeated attempts to implement new regulations against American businesses’ commercial dealings with the myriad entities controlled by Cuba’s Revolutionary Armed Forces and Interior Ministry, the State Department remains riddled with Obama-era political appointees and careerists sympathetic to a much more conciliatory policy towards the Castro dictatorship.
Reportedly, under this new policy, the first such official “gatekeeper” will be Timothy Zuñiga-Brown, the Coordinator of the State Department’s Office of Cuban Affairs since autumn of 2018. Zuñiga-Brown, who is the highest-ranking State Department official whose portfolio includes only Cuba, regularly consults with the National Security Council’s Senior Director of Western Hemisphere Affairs, Mauricio Claver-Carone.
Finally, with regard to the other two Western Hemisphere pillars of what has now come to be known as Bolton’s “Troika of Tyranny”, the National Security Adviser outlined additional sanctions against these two dictatorial regimes. These included the blacklisting of any shipping companies transferring the Maduro military’s highly subsidized petroleum to its Cuban sponsor/ally, in defiance of the official prohibition declared by Venezuela’s internationally recognized democratically elected President, Juán Guaidó (whose brother was actually among the speech’s audience at the Biltmore). Additionally, Nicaragua’s Bancorp controlled by its recycled brutal communist dictator, Daniel Ortega, and also closely tied to Maduro, was also singled out for additional financial restrictions, actually causing it to subsequently shut down and dissolve.
The logical next step on the wish list of the proponents of this new policy, which many have described as being marked by a return to moral clarity with regard to Washington’s dealings with Havana, is to return the Cuban regime to the U.S.’s list of state sponsors of terrorism. Cuba first appeared on this list since its inception back in 1982, where it remained until President Obama removed it during his abortive initiative to normalize bilateral relations in 2015. Raul Castro’s virtual micromanagement of Nicolás Maduro’s systematic repression against the Venezuelan people, which has been largely carried out by his close confidante, General Ramiro Valdés Menéndez (the Vice-President of Cuba’s all-powerful Council of State), as well as its direction of Daniel Ortega’s enduring repression in Nicaragua, provide more than ample justification for restoring Cuba’s seniority on this terror list. Its return to this list would again substantially discourage the minimal foreign investment that it continues to seek to attract with much fanfare but little results, particularly to its “Mariel Special Economic Development Zone”. Restrictions on even indirect foreign banking transactions tangentially involving the international U.S. financial system and Cuba would increase dramatically. The Treasury Department’s Office of Foreign Assets Control (OFAC) would thus potentially be able to continue collecting additional multi-billion-dollar fines versus largely European banks. Furthermore, U.S. plaintiffs could once again sue Cuba for non-property human rights violations under the Antiterrorism and Effective Death Penalty Act of 1996, under which several sizeable default judgments have been obtained against the Cuban government and even partially collected on.
Another highly rumored next step for the Trump Administration’s revised Cuba policy would be to require all American companies currently licensed to do business in Cuba to respect international labor rights by contracting directly with their Cuban employees, thereby preventing the regime from siphoning off more than ninety percent of their wages, as a means to secure otherwise scarce hard currency. This move would have widespread repercussions, impacting U.S. cruise ships, hoteliers, airlines, agribusiness, pharmaceutical and telecommunication companies.
Another important test for the seriousness of the Trump policy change will be to see if the OFAC retroactively reverses the January 2016 Obama Administration decision to allow the regime’s Cubaexport to obtain a license to renew its expired Havana Club trademark registration before the United States Patent and Trademark Office. Years after the Revolution forcibly expropriated the Arechabala family’s renowned Havana Club trademark, along with its sugar mill, distillery and other properties, Cubaexport has joint ventured with the French spirits conglomerate, Pernod Ricard, in order to peddle this stolen mark worldwide. It would be completely incongruent and inconsistent with the Trump team’s marked shift on Titles III and IV for it to let this decision stand. Moreover, a failure to reverse this misguided Obama policy would be a costly missed opportunity to protect U.S. intellectual property rights, by blocking Cuba’s attempt to ratify its confiscation within our national jurisdiction in league with its foreign business partner.
International reaction to the new U.S.-Cuba policy thus far seems to simply be a re-packaging of our allies’ previous arguments against the “extra-territoriality” of Helms-Burton’s Titles III and IV, as a direct affront to European sovereignty. Amidst its brandishing of its various blocking and “claw-back” provisions against Title III plaintiffs and its threats to bring the U.S. again back before the World Trade Organization (WTO), the European Union (EU) is essentially (and ironically) defending the right of a relatively small number of its less scrupulous nationals to carry out in Cuba what is strictly prohibited in their home countries. To wit, European domestic law, and most notably the Spanish Civil Code, imposes severe civil and criminal penalties on the knowing and willful dealing in stolen property. Back in 1998 when the EU first sued the United States at the WTO, this action was voluntarily dismissed in a settlement resulting in the E.U.-U.S. Accords. This settlement was never ratified by the U.S. Senate, as is Constitutionally required to create binding treaty obligations. Nor is it at all clear how such a thorny dispute, involving not so much trade as foreign policy, would eventually be decided by the WTO.
Indeed, the Cuban regime seemed to be fully expecting Title III’s full implementation long before Ambassador Bolton’s April 17th announcement. Once again pointedly overshadowing his hand-picked President Miguel Díaz-Canel, Raul Castro recently emerged from semi-retirement in Oriente province to warn darkly of a new “special period” to be occasioned by these new U.S. sanctions. In a related note, General Guillermo García Frías touted the necessity of new protein-rich sources for the Cuban populace’s diet, including (without limitation) ostrich, jutía (Cuba’s version of our opossum) and farm-raised crocodile meat. Cuba’s Foreign Ministry’s Director of U.S. Affairs, Carlos Fernández de Cossío, also warned in exaggerated and even apocalyptic terms about this development. Ricardo Alarcón de Quesada, Cuba’s former President of its rubber-stamp Assembly of Popular Power, who fell from official grace (and completely from public view) to something akin to house arrest (commonly referred to on the island derisively as the “pajama plan”), emerged from anonymity to state that Title III’s implementation signified “the end of the Cuban Revolution”.
Despite dire warnings regarding the imminent collapse of the American judicial system from being potentially swamped by hundreds of thousands of Title III lawsuits by Cuban-American plaintiffs, the actual numbers are much more likely to range merely from dozens to hundreds, due to the very exacting requirements established for such actions. That is to say, Title III plaintiffs must: (i) prove lawful ownership of the property at issue; (ii) have acquired such ownership of the claim as a U.S. national prior to the law’s enactment on March 12th, 1996; (iii) show that such property has a fair market value of at least $50,000.00, is non-residential in nature, and is not being utilized by ordinary Cubans or an accredited diplomatic delegation; (iv) identify a foreign entity trafficking in such property; (v) demonstrate that such foreign trafficker has significant assets in the U.S.’s jurisdiction; and (vi) finally (and more practically) have the financial wherewithal to be able to fund such a lawsuit, with the special filing fee alone costing $6,548.00 (or 16.37 times higher than the standard federal court filing fee of $400.00 in the U.S. Southern District of Florida), and legal counsel having to be procured either on an hourly or contingency basis (or some more creative combination thereof).
In conclusion, an unmistakable message has been sent throughout the world that U.S. policy has effectively been changed, in order to stand solidly on the side of protecting the victims of property takings in Cuba from their ongoing exploitation by foreign traffickers doing business with the usurper Cuban regime. While individual litigation results of the actions filed commencing next may vary, the most likely outcome is that these lawsuits (coupled with the related threat of Title IV visa revocations) may well act as leverage resulting in an elevated number of settlements, through which traffickers would pay a negotiated amount to the claimants for their consent to use these properties, while the Castro regime is still in power and the ultimate resolution of these expropriations has yet to be finally adjudicated.
At any rate, the corresponding cost and risk of investing with Cuba’s regime should nudge some current and any new potential investors to strongly consider doing so in other Caribbean venues, where some semblance of democracy and the rule of law already exist. As European and other nationals begin to be held accountable by the U.S. judiciary for trafficking with knowledge in stolen U.S. properties, the era of “business as usual” with regard to an open season for trafficking in the stolen properties of American citizens and others in Cuba has come to a screeching halt, providing hope for the Cuban people that the rule of law shall one day be restored on their long-suffering island.
* Mr. Gutierrez is a Senior Research Fellow at the Cuban Studies Institute, and currently serves as President of the National Association of Sugar Mill Owners of Cuba. In this latter representative capacity, he was actively involved in the initial passage of the Cuban Liberty & Democratic Solidarity (LIBERTAD) Act of 1996 (more commonly known as the Helms-Burton law) and continues to be fully engaged in its subsequent implementation and enforcement.
