[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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