The most senior U.S. delegation in decades will soon be in Havana to engage a declared enemy of the United States in discussions about “normalizing” relations. Covering much more subject matter than routine migration issues, these meetings stem in large measure from the December 17 return of spies to Cuba who are responsible for American deaths.
Obama sent three Cuban spies back to the island, trading them for the release of American Alan Gross. Mr. Gross had been held hostage for five years for the “crime” of teaching Jewish Cubans how to connect to the Internet. As part of this lopsided deal, the Obama administration also declared American policy a failure and offered a large basket of potential economic and diplomatic benefits.
This was a significant ideological and political victory for the Communist regime. And there are more rewards in the offing. Administration officials are reportedly considering removing Cuba from the U.S. list of state sponsors of terrorism — a request Raul Castro made in May 2014 and one that the Cuban regime has made many times in recent years. Under Section 6(j) of the Export Administration Act, a country’s designation as supporting acts of international terrorism may be rescinded in only two ways. Cuba is not ready to come off that list. Quite the opposite.
In the first instance, the President must certify to the Congress that there has been a fundamental change in the leadership and policies of the government in question, as was the case with Iraq after the removal of Saddam Hussein. There is no legitimate way that administration officials can make such a claim with respect to Cuba. Moreover, the criteria for determining such a systemic transformation is clearly defined in the LIBERTAD Act, known as the Helms-Burton law. For starters, as stated in the law, Fidel and Raul Castro cannot be part of the governing structure.
That leaves only the second option for removal from the list. To remove Cuba’s terrorism designation, the president would need to submit a report to Congress, 45 days prior to the proposed removal, certifying that 1) the regime has not provided any support for international terrorism during the preceding six months and 2) the government has provided assurances that it will not support acts of international terrorism in the future. Most would agree that Cuba fails on both counts.
Cuba has supported and provided safe haven to members of the Basque Fatherland and Liberty (ETA) and the Revolutionary Armed Forces of Colombia (FARC). Both are U.S.-designated Foreign Terrorist Organizations (FTOs). The Obama administration would therefore need to remove ETA and FARC from the FTO list, before removing Cuba from the state-sponsors-of-terrorism list. Both actions are untenable at this time. Unless Spain’s foreign-policy establishment is about to make a radical shift in thinking, ETA remains a terrorist organization and there are ETA sympathizers in Cuba who are wanted for terrible crimes against the Spanish people. As for FARC, despite the faux peace process in Havana the past few months, it continues to carry out violent acts in Colombia, has no plans to lay down arms anytime soon, and has links to al-Qaeda in the Lands of the Islamic Maghreb (AQIM).
The “April 2014 State Department Country Reports on Terrorism,” however, implied that the only role the Castro regime had with FARC was facilitating travel for the “peace talks” between these terrorists and the Colombian government. It further stated that the ETA presence in Cuba is diminished. It would appear that a kinder-and-gentler Cuba narrative is being written to accommodate a preconceived policy outcome.
Administration officials have reportedly spent the last two years creating a foundation for Obama’s Cuba announcement on December 17 — all the while denying any such activity when asked by Congress about related news reports. If this sounds familiar, it’s because it closely parallels the script used in the negotiations leading to the release of five Taliban leaders held at Guantanamo in exchange for Bowe Bergdahl.
The State Department terrorism report also makes references beyond ETA and FARC — most significantly that Cuba harbors several fugitives of U.S. justice. Terrorists, murderers, and other violent criminals are being protected, well fed, and supported by the Communist regime. Among these is a woman convicted of first-degree murder, Joanne Chesimard. Also known as Assata Shakur, she is on the FBI’s Most Wanted Terrorists list for executing a New Jersey State Police trooper. With the help of the Black Liberation Army, she broke out of prison and found refuge in Cuba. According to the FBI, Chesimard “continues to profess her radical anti-U.S. government ideology.” New Jersey governor Chris Christie said recently that he wants her back in New Jersey. He’ll be waiting a long time.
Basing the decision to remove Cuba from the state-sponsors-of-terrorism list solely on these above-referenced examples (there is probably a great deal more in classified form), the president would need to prove that for the six months prior to the proposed rescission, the Cuban dictatorship did not provide any assistance to terrorists and had unconditionally returned U.S. fugitives. But Communist-party officials have already stated publicly that Cuba considers Chesimard a political asylee and, as such, not to be released into U.S. custody.
The president would also have to accept as credible the “assurances” from the Havana regime that it would not provide support in the future for international terrorism — a difficult task given intelligence gaps highlighted in the State Department’s terrorism report. The pertinent section states: “There was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups,” but it provides no further data or analysis on these activities. It also fails to address the relationship and cooperation between Cuba and other state sponsors of terrorism such as Iran, or other entities listed on the FTO List.
And then there is the question of intelligence tainted and manipulated by Americans spying for the Cuban regime. One of the most notorious of these traitors, Ana Belen Montes, used her position at the Defense Intelligence Agency to provide Cuban handlers copious amounts of highly sensitive data, including military contingency plans, details of intelligence-gathering efforts, and profiles of a broad spectrum of U.S. officials.
Congress must therefore require a comprehensive appraisal of the range of Cuba’s activities against the U.S. and its interests and priorities before the White House can make any decision on whether Cuba will remain on the terrorism list. The review must cover no less than a 20-year period and include a fresh appraisal of all available raw data used in the Clinton-era Pentagon assessment spearheaded by Montes. The review should include detailed intelligence and analysis of unconventional threats and programs that have dual-use application, such as Cuba’s biotech capabilities.
The congressional national-security and judiciary committees must be given full access to all files pertaining to the WASP spy network, including data related to the 1996 Brothers to the Rescue shoot-down, as well as damage assessments for all Americans and non-Americans convicted of spying for the Cuban regime.
However, if President Obama chooses to proceed irrespective of the aforementioned conditions and determines that Cuba should be removed from the state-sponsors-of-terrorism list, Congress would have only 45 days from the submission date to evaluate the rescission proposal and act accordingly.
Members of the House and Senate must therefore be proactive in countering the executive action outlined on December 17 and in preventing further damage. Failure to do so would make Congress complicit in the administration’s acquiescence to Cuba’s Communist regime; it would undermine American interests and reinforce a message of weakness to other enemies of freedom and security.
— Yleem Poblete is former chief of staff of the House of Representatives’ Foreign Affairs Committee and a fellow at the Catholic University of America. Jason I. Poblete is an attorney in private practice and immediate past co-chairman of the National Security Committee of the ABA Section on International Law as well as a member of the Federalist Society. Both worked on U.S.-Cuba policy-related legislation and policy oversight during their time on the Hill.