[Congressional Record Volume 165, Number 29 (Thursday, February 14, 2019)]
[Senate]
[Pages S1376-S1378]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE FREEDOM TO EXPORT TO CUBA ACT
Mr. LEAHY. Madam President, I want to commend Senator Klobuchar for
introducing the Freedom to Export to Cuba Act, of which I and Senator
Enzi are cosponsors. I urge other Senators to join us.
This bill is about ending the anachronistic prohibitions in U.S. law
that for decades have limited U.S. engagement with Cuba, including
preventing American companies from exporting their products to Cuba.
The fact that legislation to do so is even necessary is illustrative of
the absurdity of the situation in which we find ourselves. Companies
from Europe, Russia, China, Mexico, and every other country can sell
their products to Cuba, which is just 90 miles from our coast, but
American manufacturers and retailers are largely shut out of the Cuban
market.
For example, Cuba buys rice from Vietnam and powdered milk from New
Zealand, half a world away, not from Alabama, Vermont, or Michigan.
That makes no sense. This bill would enable American companies to
compete, which every believer in a free market should support.
It is also important for Senators to know that punitive actions by
the Trump administration last year to further restrict the right of
Americans to travel to Cuba have had devastating consequences for
Cuba's fledgling private sector, the very people the White House and
supporters of the restrictions profess to want to help. The fact that
they have said nothing about the harm they are causing Cuba's
struggling entrepreneurs demonstrates that they care more about
continuing their failed policy of sanctions, regardless of who they
hurt, than about helping the Cuban people or about protecting the right
of Americans to travel freely.
The latest ill-conceived attempt by the White House to punish Cuba
would permit Title III of the Helms-Burton Act to go into effect. This
would allow, among others, individuals who were Cuban citizens when
their property in Cuba was expropriated half a century ago to sue in
U.S. courts any Cuban, foreign, and even American company whose
business in Cuba today uses that property. That could be an airport,
port, warehouse, hotel, restaurant, you name it. Virtually every
American and foreign company investing in Cuba would suddenly be liable
for treble damages.
The purpose, as the law's authors made clear when it was enacted 23
years ago, is to harm Cuba's economy by making it completely
inhospitable for foreign investment.
As my friend in the House, Representative Jim McGovern, has pointed
out;
``It's no mystery why Presidents Clinton, Bush, Obama, and
Trump blocked Title III from going into effect every six
months for the past 23 years.
It is hypocritical--it penalizes companies for doing what
American companies do all over the world.
It is contrary to international law, which recognizes the
right of expropriation and requires compensation.
It is an extraterritorial sanction that guarantees a
response from our trading partners, like Canada, Spain and
the EU, including complaints at the World Trade Organization.
And if you care about agriculture, be warned: It will open
a new front in the trade war, with all the repercussions that
can bring.
It will allow Cuba to claim victim status and rally
international support.
It will clog our courts with lawsuits.
It will make it impossible to negotiate compensation for
U.S. claims in Cuba, and, in the end, hurt the very Americans
who seek compensation for the property they lost.
It will divide us from friends and allies who are now
working for a peaceful solution in Venezuela.
And it will guarantee that new investment in Cuba will come
from the Russians, Chinese and others who are hostile to the
United States, and whose state-owned companies can't be sued
in U.S. courts.''
I agree with my friend in the other body. What the White House is
considering would trigger an avalanche of unintended consequences that
would bring U.S. commerce with Cuba to a halt, harm relations with our
allies in this hemisphere and beyond, and make resolving property
claims more difficult. I ask unanimous consent that a piece by William
Leogrande on Title III of the Helms-Burton Act published in the
February 13, 2019 issue of OnCubaNews be printed in the Record
following my remarks.
Like many issues, Members of Congress have strong feelings pro and
con about U.S. relations with Cuba. It is no secret that, after more
than half a century of a policy of isolation that has achieved none of
its objectives and primarily hurt the Cuban people, I, like Senators
Klobuchar and Enzi and many others in this body, favor closer
relations.
Conversely, there are those in Congress and the Trump administration
who believe strongly that we should ratchet up the pressure on the
Cuban Government in an attempt to achieve those elusive goals.
I have often spoken publicly about the lack of political freedom and
civil liberties in Cuba, but I also think it is important to try to be
objective: to criticize when called for and to acknowledge positive
changes when they occur.
I recognize that those who favor maintaining the failed economic
embargo have a longstanding, visceral antagonism and resentment toward
the Cuban Government. While they rarely, if ever, mention the corrupt
and brutal Batista regime that enjoyed unqualified U.S. support until
it was overthrown in 1959, they have legitimate reasons to criticize
the mistreatment of the Cuban people by the current government and its
support for the corrupt and repressive Maduro regime in Venezuela.
But they too should acknowledge that threatening and bullying Cuba
has not worked. In fact, it has made the situation worse and provided
an excuse for the Cuban Government to blame its own failures on us.
They should also acknowledge positive changes in Cuba, but they never
do--not ever. It is almost as if they are psychologically,
ideologically, or emotionally incapable of saying one positive thing
about the Cuban Government, no matter what positive things it does.
Perhaps they are afraid that, if they did, they would alienate their
donors in the Cuban-American community. Of course, we know that Cuban-
Americans are divided about the U.S. embargo. Some are hardcore
believers in the embargo, and they always will be. But at least as
many--and increasing numbers--oppose the embargo, especially those who
were born after the Cuban revolution.
I wonder what the pro-embargo isolationists would say if the Cuban
Government were to stop harassing and abusing dissidents who favor a
more democratic system. Would those who oppose the embargo say anything
positive?
What if the Cuban Government decided to embrace a free market economy
and let private businesses flourish? Would those who oppose the embargo
say anything positive?
I doubt it. I doubt it because no matter what positive reforms occur
in Cuba, they will continue to defend the embargo until Cuba is a full-
fledged democracy and those who currently hold power either die or are
voted out of office.
We all want Cuba to become a democracy, where civil and political
rights are respected, and the sooner the better, but those same
defenders of the embargo support billions of dollars in U.S. aid--and
weapons sales--to countries that are led by authoritarian, brutal, and
corrupt dictatorships and monarchies, some of which have held power for
decades or generations.
[[Page S1377]]
How do the pro-embargo diehards reconcile that? They don't, and they
can't.
The fact is, Cuba is changing--not nearly as fast as we and the Cuban
people would like, but it is changing in ways that few would have
predicted not very long ago.
Last year, Raul Castro's hand-picked successor, Miguel Diaz-Canel,
became President, and he promised a government more accessible and
responsive to the people's needs. How he delivers on that promise
remains to be seen.
Since 2010, after the Cuban Government recognized that the internet
is essential if Cuba wants to be part of the modern world, internet
access has exploded. The government has opened hundreds of public Wi-Fi
hot spots and cyber cafes in the past 5 years, and home internet access
became legal and available in 2017. Today, almost half of the Cuban
people have personal cellphones that were illegal just a decade ago.
As others have pointed out, these changes have encouraged new forms
of communication, networking, and organizing via social media.
But change does not come easily in Cuba, as it does not in many
countries. Last July, the government announced onerous new regulations
on the private sector, covering a wide range of issues: food safety,
labor contracts, procurement, taxation, limits on the size of private
businesses. The new rules were an attempt by hardliners to crack down
on the private sector, which was criticized for black marketeering.
But private entrepreneurs resisted, and they challenged the
regulations as contradictory to the government's own plans that
recognizes the private sector as important to economic growth and
employment. They appealed to government officials and spoke publicly
about the harm the new rules would have on their businesses.
When the final regulations were issued, several that had caused the
most resentment were dropped. According to the Minister of Labor and
Social Security, the decision to revise the rules was due to ``the
opinion and experiences of those directly involved.''
The government also retreated on a new law--Decree 349--requiring
artists, musicians, and performers to register with the state and pay a
large commission on their earnings from private engagements, and it
banned work with objectionable content and empowered inspectors to shut
down any offensive exhibition or performance. Clearly, an attempt to
further limit free expression.
Since the 1980s, Cuban artists have had more freedom to be critical
of the government than other social sectors, and so it was not
surprising that Decree 349 ignited widespread protests. After social
media was used to mobilize opposition within the Cuban arts community
and among artists abroad, the government agreed not to enforce the law
until implementing regulations are drafted in consultation with the
arts community.
According to one observer, ``during [the latter half of last year],
nearly 8.9 million Cubans debated the draft of a new constitution in
their workplaces, neighborhoods and schools. Communist Party members
were told not to argue with even the most radical proposals for
amendments, and the ensuing debates were freewheeling, often lasting
past their scheduled time. Among the main topics: whether the president
and state governors should be directly elected by voters; whether the
concentration of wealth and property should be allowed; whether term
limits and age limits for leaders were a good idea; and whether the
Communist Party should be subordinated to the constitution and hence
the law.'' Not long ago it would have been unthinkable to openly debate
these issues, especially as part of a constitutional reform process.
One article that attracted intense debate recognized same-sex
marriage and was promoted by Raul Castro's daughter, a long-time
activist for LGBTQ rights. The proposal sparked strong opposition from
evangelical churches supported by the Catholic Church. Gay rights
advocates countered with campaigns of their own. The chance of a
significant ``no'' vote on the entire constitutional reform led the
government to drop the provision from the final draft of the
constitution with a pledge to consider it later.
This surge in mobilization by well-organized constituencies utilizing
social media to resist government policy, from burdensome private
sector regulations to gay marriage, is unprecedented in Cuba. The
government's willingness to not only tolerate these organized
challenges but to change policies in response to them is significant.
As has been noted, none of these issues dealt with the rigid
structure of the Cuban system. Cuba remains a one-party state, in which
those who challenge the system are treated as criminals, but the
precedent of organized interest groups mounting successful campaigns to
challenge and change government policy is now established, which is
positive.
None of the longstanding critics of the Cuban Government in the U.S.
Congress or the Cuban-American community have acknowledged any of this,
nor are they likely to. For them, anything less than a wholesale change
of government in Cuba is unworthy of mention, even though they apply a
very different standard--a double standard--to other authoritarian
governments. In fact, they would ridicule anyone who regards such
changes as positive or worthy of recognition.
As we know from our own experience, political reform is difficult.
Our own Electoral College, an anachronism designed to protect a slave-
holding minority, remains in effect more than two centuries later. Five
times, in the world's oldest democracy, it has prevented the winner of
the most popular votes from being elected President.
The Cuban people want to live better and they want a lot less
government control over their lives. Armed with cellphones and the
internet, they are going to make increasing demands of their
government. This is happening at a time when Venezuela's economy is
collapsing and the survival of the Maduro regime, Cuba's closest ally
in the hemisphere, is in question. Not surprisingly, the Cuban
Government is trying to limit the pace of change and to secure other
benefactors. It is turning increasingly to Russia, Algeria, Iran, and
other countries that welcome the chance to challenge U.S. influence in
this hemisphere.
This is a time for the United States to be actively and visibly
engaged in Cuba, for Americans to be traveling to Cuba, for expanding
educational, cultural, and professional exchanges between the U.S. and
Cuba, and for American companies to be competing in Cuba. It is not a
time to return to a failed policy of threats and ultimatums, driven by
domestic politics rather than by what is in our national interests.
That is why I am cosponsoring the Freedom to Export to Cuba Act, and
it is why I intend to support other bipartisan legislation to replace
our failed Cuba policy with one that serves America's interests, not
the interests of a shrinking minority, and not the interests of Russia
and other countries that are reaping the economic benefits of our self-
defeating policy of isolation.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From OnCubaNews, Feb. 13, 2019]
President Trump Risks Alienating Allies over Cuban American Property
Claims
(By William M. LeoGrande)
The Trump administration is seriously considering whether
to allow Title III of the Cuban Liberty and Democratic
Solidarity Act (Helms-Burton) to go into effect in March,
according to National Security Adviser John Bolton. On
January 16, Secretary of State Mike Pompeo announced that he
was suspending Title III for just 45 days instead of the
usual six months while the administration reviews whether its
implementation would promote democracy in Cuba. He warned
foreign companies doing business on the island that they had
better ``reconsider whether they are trafficking in
confiscated property and abetting this dictatorship.''
Title III allows U.S. nationals to file suit in U.S. courts
against anyone ``trafficking'' in their confiscated property
in Cuba--that is, anyone profiting from it. If President
Trump allows Title III to go fully into effect, he will open
the door to as many as 200,000 law suits by U.S. nationals,
most of them Cuban Americans, whose property was taken by the
Cuban government after 1959. U.S. courts would be swamped,
the ability of U.S. companies to do business on the island
would be crippled, and allies abroad might retaliate for U.S.
suits brought against their companies in Cuba. Once the suits
have been filed, there will be no way to undo the resulting
legal chaos and the tangle of resulting litigation could take
years to unwind.
The U.S. Foreign Claims Settlement Commission has certified
5,913 claims of U.S. nationals whose property was seized.
These are
[[Page S1378]]
the claims that Cuba recognizes and that the United States
and Cuba had begun to discuss during the Obama
administration. But Title III takes the unusual position of
allowing naturalized Cuban Americans who lost property to
also file suit against alleged traffickers. Normally,
international law recognizes the sovereign right of
governments to dispose of the property of their own citizens.
According to the Department of State, by including Cuban
Americans who were not U.S. citizens when their property was
taken, Title III creates the potential for an estimated
75,000-200,000 claims worth ``tens of billions of dollars.''
Back in 1996, when the law was being debated in Congress,
angry opposition from U.S. allies Canada, Mexico, and the
European Union, whose companies doing business in Cuba would
be the targets of Title III law suits, led President Bill
Clinton to insist on a presidential waiver provision in Title
III. As a result, the president has the authority to suspend
for six months the right to file Title III law suits, and he
can renew that suspension indefinitely. Every six months
since the Cuban Liberty and Democratic Solidarity Act was
passed, successive presidents, Democrat and Republican alike,
have continued the suspension of Title III.
U.S. allies have denounced Title III's extraterritorial
reach. Mexico, Canada, the United Kingdom, and the European
Union all passed laws prohibiting compliance with it. The
European Union also filed a complaint with the World Trade
Organization, which it did not pursue after President Clinton
suspended Title III. In fact, the principal justification
both President Clinton and President George W. Bush offered
for continuing the suspension was the need to maintain
cooperation with European allies.
If President Trump does not renew the suspension, all these
old wounds with allies will be reopened as U.S. claimants try
to haul foreign companies into U.S. courts for doing business
in Cuba. We already have enough tough issues on our agenda
with Mexico, Canada, and Europe without adding another one.
At this very moment, Washington is trying to muster their
support in dealing with the Venezuelan crisis, support that
could be endangered if the administration picks a fight with
them over Title III.
U.S. businesses would not be exempt from potential
liability. A Cuban American family in Miami claims to have
owned the land on which Jose Marti International Airport was
built, so any U.S. carrier using the air field could
conceivably be sued under Title III. Another family that
owned the Port of Santiago could file suit against U.S.
cruise ships docking there.
Moreover, it would be almost impossible for a U.S. or
foreign company to know in advance whether a proposed
business opportunity in Cuba might become the subject of
Title III litigation. ``This will effectively end for decades
any attempt to restore trade between the U.S. and Cuba,''
attorney Robert Muse told the Tampa Bay Times.
When President Trump announced new sanctions on Cuba back
in June 2017, senior administration officials said they were
designed ``to not disrupt existing business'' that U.S.
companies were doing in Cuba. If the president fails to
continue the suspension of Title III, business relations will
be disrupted far more severely and irreparably than they
would be by any regulatory change.
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