[Congressional Record Volume 146, Number 18 (Thursday, February 24, 2000)]
[Senate]
[Pages S779-S782]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  COMMEMORATING THE FOURTH ANNIVERSARY OF THE BROTHERS TO THE RESCUE 
                               SHOOTDOWN

  Mr. MACK. Mr. President, I come to the floor today to commemorate 
four brave Americans. Theirs is a story of courage, it is a story of 
heroism, and it is a story of freedom.
  Four years ago today, on February 24, 1996, Fidel Castro sent Cuban 
MiG fighters into the Florida Straits and killed Carlos Costa, Armando 
Alejandre, Mario de la Pena, and Pablo Morales.
  These men were members of a humanitarian organization known as 
``Brothers to the Rescue.'' These volunteers search the Florida Straits 
for rafters. Too many Cubans die each year in their flight to freedom. 
The Brothers try to save lives.
  So my thoughts and prayers today are with the families of the brave 
and courageous humanitarians who lost their lives 4 years ago. I know 
this day must be especially difficult for the families--today reminds 
them of the terrible loss suffered, and today also

[[Page S780]]

marks another year passed without closure.
  People need to be able to put the past behind them and move on. But 
when the President and his administration give assurances and advice, 
and American families trust and obey this advice only to be dragged 
along and let down, the administration commits a great injustice.
  Think for a moment about Armando's sister or Mario's mother, or any 
other family member. Think for a moment, how you would feel if your 
brother or son was murdered while volunteering with a humanitarian 
organzation--killed by state-of-the-art fighter jets flown by the air 
force of one of the world's last totalitarian dictators? I know the 
pain for me would be unbearable.
  I join with the families today in remembering these brave men. I want 
to tell their story of freedom, their story of courage, and their story 
of heroism.
  Armando came to the United States from Cuba as a child. He so loved 
his life here, his freedom, that he joined the U.S. Marine Corps and 
volunteered for a tour in Vietnam. He volunteered to fight for his 
adopted home. He survived his tour only to be murdered by Fidel Castro. 
He was 45 years old. His wife of 21 years and his daughter have now 
lived with the struggle for justice for 4 years. They are in our 
thoughts today.
  Carlos, a Florida native, was 29 years old when the Cuban government 
shot him out of the sky. He was always interested in aviation and 
dreamed of one day overseeing the operations of a major airport. He 
received his college degree from Embry-Riddle Aeronautical University 
and worked for the Dade County Aviation Department. His parents and 
sister today are in our thoughts.
  Mario, a New Jersey native, was only 24 years old when Castro's MiG's 
took his life. He was in his last semester at Embry-Riddle, working 
toward his dream of becoming an airline pilot. His parents and brother 
are in our thoughts today.
  Pablo left Cuba on a raft in 1992, and the Brothers to the Rescue 
saved his life. Indebted to these heroic pilots, he joined them and 
began training to obtain his pilot's license. Pablo often talked of his 
family still in Cuba and how much he missed them. Since his death, 
there are reports that they have been persecuted and discriminated 
against. Our thoughts are with his family in Cuba today.
  Remember, as you think of these men this afternoon, what they were 
doing when they lost their lives--they were working to save the lives 
of others. This humanitarian effort must have so enraged Fidel Castro 
that he ordered the interception of these small, unarmed aircraft by 
his huge fighter jets to be blown from the sky with air-to-air 
missiles.
  Two days after their murder four days ago, the President so moved by 
this tragedy said on national television;

       I am asking that Congress pass legislation that will 
     provide immediate compensation to the families, something to 
     which they are entitled under international law, out of 
     Cuba's blocked assets here in the United States.

  Mr. President, I ask unanimous consent to have printed in the Record 
two items which detail this President's request for legislation. First, 
a transcript of ABC Breaking News February 26, 1996, with Peter 
Jennings; and second, the White House press release dated February 26, 
1996 in which the President requests this legislation from the 
Congress. I ask that this be printed immediately following my 
statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. MACK. Two months later the Congress passed the bill--the Anti-
Terrorism Act of 1996--and the President signed it in a large ceremony 
on the White House lawn.
  The Brothers' families wanted to understand the new rules before they 
chose to proceed with any civil suit. They met with officials from the 
U.S. State Department to clarify the meaning of the new law.
  In their meeting at the State Department, the families were told the 
U.S. Government encouraged them to file the civil lawsuit against the 
Cuban government.
  Mr. President, I ask unanimous consent that an affidavit by Maggie 
Khule which documents State Department support for the lawsuit be 
printed in the Record immediately following my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. MACK. Mr. President, they took the Cuban Government to court. It 
took a long time, but eventually they won. In December of 1997, almost 
2 years ago, a United States Federal court entered judgments against 
Cuba for the murders of their family members. Justice seemed to be won. 
The end appeared to be near. But the very same U.S. Government and the 
same Clinton administration that encouraged the families to postpone 
closure and pursue legal justice began to oppose them. They entered the 
lawsuit on the side of Fidel Castro.
  I quote from Maggie Khule's testimony of last October before the 
Senate Judiciary Committee, and Maggie Khule is the sister of Armando 
Alejandre:

       No words can possibly explain our shock when we went to 
     court and found U.S. attorneys sitting down at the same table 
     as Cuba's attorneys. How can you explain to a mother who has 
     lost her son, to a wife who has lost her husband, to a 
     daughter who has lost her father, that their own government 
     is taking the murderer's side? . . . The Clinton 
     administration has shut its doors to us. Secretary of State 
     Albright, for example, won't meet with us on any of our other 
     concerns because, to quote an aide, ``We are on the opposing 
     side of this civil action.'' Are we? We thought we were the 
     victims' families, victims ourselves. We thought we were 
     Americans entitled to protection from our own country. We 
     thought Cuba was the terrorist, the guilty party.

  Mr. President, I ask my colleagues to take a moment from their busy 
schedules today, on this fourth anniversary of the murder of four brave 
humanitarians, and think about the blight of terrorism and the cost it 
has extracted from too many families of our country.
  Think also this afternoon about what we ask to deter terrorism and 
promote justice. I want to read one more quote, this time from a 
Federal judge who heard the case brought by the families against Cuba. 
After observing this administration's change of position from support 
to opposition, he states the following in the March 1999 ruling:

       The court notes with great concern that the very President 
     who in 1996 decried this terrorist action by the Government 
     of Cuba now sends the Department of Justice to argue before 
     this court that Cuba's blocked assets ought not to be used to 
     compensate the families of the U.S. nationals murdered by 
     Cuba. The executive branch's approach to this situation has 
     been inconsistent at best. It apparently believes that 
     shielding a terrorist state's assets are more important than 
     compensating for the loss of American lives.

  Mr. President, I ask unanimous consent that this section of the 
court's decision be printed in the Record following my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 3.)
  Mr. MACK. Mr. President, the story of these four brothers, the 
Brothers to the Rescue, is a story of heroism and freedom. These men 
risked their lives for their own freedom as well as for the freedom of 
others, and their families have fought tirelessly for justice. I hope 
my colleagues will think about these courageous families. We must, 
indeed, honor them and their memories and the memories of their loved 
ones this afternoon.
  Mr. President, I yield the floor.

              Transcript From ABC News, February 26, 1996

                               Exhibit 1

       Announcer. This is a special report from ABC News.

                           *   *   *   *   *

       Pres. Bill Clinton. Good afternoon. Two days ago, in broad 
     daylight, and without justification, Cuban military aircraft 
     shot down two civilian planes in international airspace. 
     Search and rescue efforts by the Coast Guard, which began 
     immediately after we received word of the incident, have 
     failed to find any of the four individuals who were aboard 
     the airplanes.
       These small airplanes were unarmed, and clearly so. Cuban 
     authorities knew that. The planes posed no credible threat to 
     Cuba's security. Although the group that operated the planes 
     had entered Cuban airspace in the past on other flights, this 
     is no excuse for the attack and provides--let me emphasize--
     no legal basis under international law for the attack. We 
     must be clear, this shooting of civilian aircraft out of the 
     air was a flagrant violation of international law.
       Saturday's attack is further evidence that Havana has 
     become more desperate in its efforts to deny freedom to the 
     people of Cuba.

[[Page S781]]

       Also on Saturday, the Cuban Council, a broad group that 
     wants to bring democracy to Cuba, had planned a day of 
     peaceful discussion and debate. Instead, in the days leading 
     up to this gathering, scores of activists were arrested and 
     detained. Two have already been sentenced to long prison 
     terms. They join about 1,000 others in Cuba who are in jail 
     solely because of their desire for freedom.
       Now the downing of these planes demands a firm response 
     from both the United States and the international community.
       I am pleased that the European Union today strongly 
     condemned the action.
       Last night, on my instructions, Ambassador Albright 
     convened an emergency session of the United Nations Security 
     Council to condemn the Cuban action and to present the case 
     for sanctions on Cuba until it agrees to abide by its 
     obligation to respect civilian aircraft and until it 
     compensates the families of the victims.
       Today I am also ordering the following unilateral actions.
       First, I am asking that Congress pass legislation that will 
     provide immediate compensation to the families--something to 
     which they are entitled under international law--out of 
     Cuba's block assets here in the United States. If Congress 
     passes this legislation, we can provide the compensation 
     immediately.
       Second, I will move promptly to reach agreement with the 
     Congress on the pending Helms-Burton Cuba legislation so that 
     it will enhance the embargo in a way that advances the cause 
     of democracy in Cuba.
       Third, I have ordered that Radio Marti expand its reach. 
     All the people of Cuba must be able to learn the truth about 
     the regime in Havana, the isolation it has earned for itself 
     through its contempt for basic human rights and international 
     law.
       Fourth, I am ordering that additional restrictions be put 
     on travel in the United States by Cuban officials who reside 
     here and that visits by Cuban officials to our country be 
     further limited.
       Finally, all charter air travel from the United States to 
     Cuba will be suspended indefinitely.
       These deliberate actions are the right ones at this time. 
     They respond to Havana in a way that serves our goals of 
     accelerating the arrival of democracy in Cuba, but I am not 
     ruling out any further steps in the future, should they be 
     required.
       Saturday's attack, was an appalling reminder of the nature 
     of the Cuban regime--repressive, violent, scornful of 
     international law. In our time democracy has swept the globe, 
     from the Philippines exactly 10 years ago, to Central and 
     Eastern Europe, to South Africa, to Haiti, to all but one 
     nation in our hemisphere. I will do everything in my power to 
     see that this historic tide reaches the shores of Cuba.
       And let me close by extending, on behalf of our family and 
     our country, our deepest condolences to those in the families 
     of those who lost their lives.
       Thank you very much.
                                  ____


  [From The White House, Office of the Press Secretary, Feb. 26, 1996

                           Fact Sheet on Cuba

       The President has directed his Administration to take the 
     following steps immediately in response to the Cuban 
     Government's blatant violation of international law:
       Seek rapid international condemnation of Cuba's actions.
       The European Union today strongly condemned the Cuban 
     shootdown.
       The United States will seek United Nations Security Council 
     condemnation and press that sanctions be imposed until Cuba 
     provides compensation to the families of victims and abides 
     by international law.
       The United States will seek condemnation of Cuba by the 
     International Civil Aviation Organization and other relevant 
     international bodies.
       Move promptly to reach agreement with Congress on the 
     pending Helms-Burton Cuba legislation so that it will enhance 
     the effectiveness of the embargo in a way that advances the 
     cause of democracy in that country.
       Request the Congress to pass legislation authorizing 
     payment of compensation to the families of victims out of 
     Cuban blocked accounts in New York.
       Restrict the movement of Cuban diplomats in the U.S. and 
     tighten criteria for issuing visas to employees of the Cuban 
     government.
       Increase support for Radio Marti to overcome jamming by 
     Cuba.
       Indefinitely suspend all commercial charter flights to 
     Cuba.

                               Exhibit 2

   [In the U.S. District Court for the Southern District of Florida, 
 Southern Division, Civil Nos. 96-10126, 96-10127, 96-10128 Judge King]

Marlene Alejandre, et al., plaintiffs, v. The Republic of Cuba and The 
                      Cuban Air Force, defendants


                   declaration of margarita a. khuly

       Margarita A. Khuly, pursuant to 28 U.S.C. Sec. 1746, 
     declares the following under penalty of perjury:
       1. My name is Margarita Alejandre Khuly, my Social Security 
     No. 000-00-0000, and my address is 7501 SW 62, Miami-Dade 
     County, Florida 33143.
       2. My brother, Armando Alejandre, was murdered by the 
     government of Cuba on February 24, 1996. He and three other 
     men were shot down by the Cuban Air Force over international 
     waters while flying two small, unarmed civilian aircraft on a 
     humanitarian mission.
       3. On August 22, 1996, I attended a meeting at the United 
     States Department of State, Cuba Desk, to discuss issues 
     related to the shoot down. Also present were the following 
     relatives of the murdered men: Marlene Alejandre, Mario de la 
     Pena, Miriam de la Pena, Jorge Khuly, Mirta Mendez, Richard 
     Mendez and Nelson Morales.
       4. The meeting was chaired by Michael E. Ranneberger, 
     Coordinator, Office of Cuban Affairs, United States 
     Department of State. Others US government officials present 
     included Hal Eren, OFAC; Robert Malley, NSC; Lula Rodriguez, 
     State, and Susana Valdez, WH liaison.
       5. The issues discussed at this meeting included the 
     forthcoming humanitarian payments from the United States 
     government to each family of the four murder victims.
       6. The families had been asked to bring with them to this 
     meeting personal and financial institution information so 
     that the United States government would directly transfer the 
     humanitarian payments to individual bank accounts. A 
     handwritten handout requesting these facts and distributed at 
     the meeting was to be filled out and mailed to R. Richard 
     Newcomb, OFAC.
       7. Several concerns related to these humanitarian payments 
     were discussed at this meeting Very important was the one 
     dealing with limitations, if any, contingent upon acceptance 
     of the humanitarian payments.
       8. Miriam de la Pena specifically asked Mr. Ranneberger 
     that if accepting President Clinton's humanitarian payments 
     meant the families would then be restricted in seeking other 
     measures of justice, including legal and financial ones.
       9. Mr. Ranneberger replied that no, the payments were meant 
     to be a ``gesture'' on the President's part. He stated that 
     the US government did not want to offend the families, only 
     ease their pain, and that the payments in no way were meant 
     to put a value on the four murdered men's lives.
       10. Other family members then posed questions asking for 
     additional clarification on any conditions tied to the 
     humanitarian payments. it was specifically asked if any 
     signed releases were to be requested from the families upon 
     acceptance of the monies.
       11. Mr. Ranneberger reassured the families again by stating 
     that accepting the humanitarian payments did not make them 
     incur any obligations, legal or otherwise, and that they were 
     free to pursue any other avenues they desired in their search 
     for justice.
       12. The possibility of legal action against the government 
     of Cuba was brought up by the families and Mr. Ranneberger 
     said that the US government not only did not oppose this, but 
     encouraged them to seek justice through US and international 
     courts.
       13. Richard Mendez brought up the figure the US government 
     had advised the families they would be receiving and 
     commented that the amount was so small it was meaningless. 
     Mr. Ranneberger responded that this figure was intended as a 
     humanitarain gesture, not as compensation.
       I declare under penalty of perjury that the foregoing is 
     true and correct.
       Date: January 12, 1999.
                                        Margarita Alejandre Khuly.

                               Exhibit 3

[U.S. District Court, Southern District of Florida, Case Nos. 96-10126-
            Civ-King, 96-10127-Civ-King, 96-10128-Civ-King]

 Marlene Alejandre, Individually and as Personal Representative of the 
 Estate of Armando Alejandre, Deceased, plaintiff, v. the Republic of 
Cuba and the Cuban Air Force, defendants, v. AT&T Corporation, AT&T of 
     Puerto Rico, Inc., Global One Communications, L.L.C., Sprint 
 Corporation, Wiltel, Inc., Telefonica Larga Distancia de Puerto Rico, 
    Inc., MCI International, Inc., IDB Worldcom Services, Inc., MCI 
  Worldcom, Inc., Citigroup Inc. and its Subsidiaries, and the Chase 
Manhattan Corporation and its Subsidiaries, garnishees
                                  ____


   Mirta Mendez, as Personal Representative of the Estate of Carlos 
  Alberto Costa, Deceased, plaintiff, v. the Republic of Cuba and the 
Cuban Air Force, defendants, v. AT&T Corporation, AT&T of Puerto Rico, 
 Inc., Global One Communications, L.L.C., Sprint Corporation, Wiltel, 
      Inc., Telefonica Larga Distancia de Puerto Rico, Inc., MCI 
 International, Inc., IDB Worldcom Services, Inc., MCI Worldcom, Inc., 
     Citigroup Inc. and its Subsidiaries, and the Chase Manhattan 
Corporation and its Subsidiaries, garnishees.
                                  ____


Mario T. de la Pena and Miriam de la Pena, Individually and as Personal 
    Representatives of the Estate of Mario M. de la Pena, Deceased, 
plantiff, v. the Republic of Cuba and the Cuban Air Force, defendants, 
      v. AT&T Corporation, AT&T of Puerto Rico, Inc., Global One 
 Communications, L.L.C., Sprint Corporation, Wiltel, Inc., Telefonica 
  Larga Distancia de Puerto Rico, Inc., MCI International, Inc., IDB 
  Worldcom Services, Inc., MCI Worldcom, Inc., Citigroup Inc. and its 
Subsidiaries, and the Chase Manhattan Corporation and its Subsidiaries, 
garnishees.

                           *   *   *   *   *


[[Page S782]]


       The Court concludes that, contrary to the President's 
     intention in executing the waiver, Congress did not intend to 
     give the President the broad authority to waive the new 
     subsection (f)(1) when it gave him the power to waive ``the 
     requriements of this section.'' In so ruling, the Court gives 
     considerable weight to the fact that the larger part of the 
     available legislative history supports this interpretation. 
     Also persuasive is the fact that section 117 is the outgrowth 
     of the 1996 AEDPA amendments to the FSIA. Congress therein 
     expressly waived the jurisdictional immunity of terrorist 
     foreign states, and also their immunity from attachment or 
     execution. Congress later clarified the mechanism through 
     which the victims of an attack by a terrorist foreign state 
     may sue for compensatory and punitive damages. By enacting 
     section 117, Congress expanded the property subject to 
     attachment/execution, giving the victims a larger pool of 
     assets from which to satisfy any judgment in their favor. All 
     of these legislative enactments are guided by a single 
     purpose: to provide an executable judicial remedy to the 
     nationals of the United States attacked by a terrorist 
     foreign state. Had Congress intended to give the President 
     the authority single-handedly to impede achievement of this 
     goal, it could have done so more clearly in section 117(d). 
     Its failure unambiguously to do so favors a narrow reading, 
     both in light of legislative history and the fact that 
     Congress usually specifies the waiver authority it grants 
     with greater clarity. The President cannot simply express his 
     intention to execute a law a certain way if that action is 
     not allowed by the legislative authority to which it is made 
     pursuant.\16\ If the Government, the Garnishees, Non-Party 
     ETECSA, or any other individual or entity objects to this 
     Court's interpretation of this unclear legislative mandate, 
     it should turn to Congress and have that government branch 
     clearly enunciate a broad waiver authority in an amended 
     section 117(d). It is this Court's responsibility to 
     interpret the law as written; only Congress can re-write the 
     law.

                           *   *   *   *   *



                                footnote

     \16\ The Court notes with great concern that the very 
     President who in 1996 decried this terrorist action by the 
     Government of Cuba now sends the Department of Justice to 
     argue before this Court that Cuba's blocked assets ought not 
     be used to compensate the families of the U.S. nationals 
     murdered by Cuba. The Executive branch's approach to this 
     situation has been inconsistent at best. It now apparently 
     believes that shielding a terrorist foreign states' assets 
     are more important than compensating for the loss of American 
     lives.
  The PRESIDING OFFICER. Under the previous order, the Senator from New 
Mexico is recognized.

                          ____________________