tv Key Capitol Hill Hearings CSPAN December 5, 2014 7:00pm-9:01pm EST
vinyl to be digitized, to be saved, we began turning over the b-sides of the 45s. first off gospel music was not widely heard in the communities, if it was it would only be the hits but the b-sides would be even less. we discovered how many of the b-sides songs were directly related to the civil rights movement. since there are very few databases and none of them complete on all gospel music we didn't know the sheer number of songs that have very overt songs like "there ain't no segregation in heaven" singing that sort of song out loud was a risk. >> the texas ranger hall of fame set up in 1976 for rangers and
honors the rangers who gave their lives under heroic circumstances. we have paintings of all those rangers. they begin with steven f austin. he was very successful with his rangers. they fought not only managed to make the area reasonable safe from indian raids but when the texas war for independence broke out the rangers played a major role in texas gaining its independence by sending off the mexican army long enough to allow the colonist to build their own army and as a result texas became its own individual nation, the republic of texas for several years.
with events such as this while fostering a free press worldwide. for more information about the nation press club please visit our website at press.org. i'd like to welcome our speaker and those of you attending today's event. we have working journalists who are club members. if you hear applause, there's members of the public attending, so not a lack of journalistic objectivist. i would also like to welcome our cspan and radio audience and you can follow on twitter #pclunch. now time to introduce our guests and ask you to stand as your name is announced.
from the right. joseph martin, washington bureau chief and member of national press club. jo joshua higgins. kevin -- of e & e publishing. suzanne -- baker and mckenzy. marine wily -- chief finance officer. commissioner williams c austindorf. many rimsky chair of speaker committee and skipping over our speaker for a moment. rod cookrowe of energy wire and speaker committee member who organized today's event thank
you so much rod. phillip chief of staff to chairman mcfarland and guest of our speaker. -- kieren greenhouse margaret ryan. thank you all for being at the head table [ applause ] it's not often that a senior government official relinquishes the reigns of powers as readily as our speaker today. allison mcfarland is just in the third year of her job as the nation's top regulator of the nuclear power industry but leaving in a few weeks to return to her first love. with a doctorate in geology,
she's an expert in safe storage high level nuclear waste. that expertise helped her lead the commission to implement safe improvements at the nation's 100 reactors. this was to prevent the type of disaster that occurred in japan in 2011 when an earth quake and psnami shut down nuclear plant. we are interested in her concern bz nuclear power here and broad. ladies and gentlemen please join me in welcoming to the national press club, the chairman of the
nuclear regulatory commission, allison mcfarland. [ applause ] >> good afternoon. welcome. thank you for the kind introduction, i guess. [ laughter ] so i appreciate the invitation to be here and talk with you today and reflect on some of the issues that the nuclear regular lat to regulatory commission has on its plate and talk about some of the challenges we faced as well. before we go on i want to acknowledge some of the folks in the audience. we have, i'm really glad that commissioner austindorf and our cfo and my chief of staff as well. we have a couple nrc tables, i think there are three, over
there, there, and there. i want to acknowledge those two in particular because they are my current and former staff so thank you for coming. we also have assistant secretary pete lyons in the room. there he is. as well as the president and ceo of nei, marv fertel. we had all these folks so wanted to acknowledge all of them. so first let me review some of our accomplishments and then i'll take a while to look forward to upcoming issues for the commission. let me start with my first impression. when i first came to nrc in 2012 i was eager to work with my colleagues but was unsure of what i would face. the agency was going through a time in which relationships within the commission and between the commission and staff
were strained. it had also been just over a year since the fukushima accident and the staff was moving ahead with pertinent lessons. in addition weeks before my arrival d.c. court of appeals vacated and manded reactor sites known as waste confidence rule which would require nrc to suspend certain licensing actions. i should also mention at that time, the federal government was as a whole experiencing budget challenges -- i knew i was working through an environment in which there was way lot of work to do and limited resources with which to do it. i also had my own priorities and objectives and wanted to use the benefit of my knowledge and
prior experience to enhance and strengthen the important work at nrc. for my time on the blue ribbon commission on america's nuclear future which set a new strategy for the country's nuclear waste i seen the benefit of my engagement. i was determined with a commitment to open transparency. as a nuclear waste export i long believed everything spent fuel once removed from a reactor vessel doesn't receive the sfekt deserv respect it deserves and i decided to approach broadly. from the first day on the job, the staff impressed me with their commitment and sense of community. after visiting my first view reactors i was impressed by our resident inspectors and their
role at the facilities they regulate. i take great pride in the tremendous work the nrc staff has accomplished in two and half years. so now let me turn to fukushima. in the first few months in my tenure as chairman i had the opportunity to see firsthand the devastation wrought by a nuclear reactor accident, traveling through ville anages and weeds overtaking parking lots, i came to better understand the society cost of nuclear reactor accidents. the site itself has debris from hydrogen explosions still littering the ground. as a result i felt a push to change based on the lessons we learned in that accident.
given all that i'm pleased with the progress we've made. inspectors are working hard to meet requirements -- insuring they reactors can -- accurately measure water level and spent fuel pools and successfully operate containment vents during emergency conditions. plants have been requires additional equipment, staging it in earthquake and tornado proof building around the reactor sites. the site in tennessee awaits our review. this year two industry response centers opened their doors. the industry's objective is to be able to provide emergency equipment to a stricken reactor
within 24 hours. many plants already have in place ininstrumentation that measures water levels and spent fuel pools and are working on containment vent that's will operate that would exist during an accident. the nrc staff has also made significant progress in reviewing seismic hazard evaluations and working through significant mitigations to hazards at boiled water reactors. now let me talk about the back end of the fuel cycle. the staff completed the formal storage rule, the work prompted by the appeals court ruling, in just two years undeterred by a government shutdown, a particular significance to me, this rule making maximized
public engagement in ten states, receiving more than 33,000 public comments each of which were reed and considered. i believe it will be a model for future. you will recall i only gave partial approval to this rule in my own vote. i was concerned the staff hadn't adequately explored what would happen in a potential loss of "institutional control" that is a future where a future where no one is responsible for a safe remains in it's condition indefinitely. i feel we not use interim high level waste.
we must invig rate our focus on the permanent disposal of spent fuel. i should also mention yucca mountain. the d.c. circuit court of repeals ordered nrc to review their license application using the remaining waste fund money which amounted to about $13 million. we work in a timely and trans parent way. the work we're doing now represents only part of a lengthy and complicated liesening process which is currently not near completion. at the time the staff's mountain yucca work was suspended there were more than 300 contentions challenging the application. the safety report and environmental report that will be coming out in 2015 may trigger additional contentions. hearings must be conducted on
each contention and must be resolved by the liesening board before the nrc's review can be considered complete, only then would the commission make a final licensing decision. i want to emphasize that the department of energy and the administration have been clear that they are not currently pursuing a license application for yucca mountain and congress has not provided resources to do so. without a willing applicant the nrc cannot pursue the remaining licensing process. in any of the other technical areas i just discussed, i think there's a lot to learn from the international community. we engage in collaboration with partner regulators, assistance to new coming countries, helps
us to ensure nuclear safety security and practices are followed worldwide. i've advocated strongly by maintaining close relations with my counter parts at regulatory agencies around the world. the nrc works close with the international atomic agency which helps us to engage and advance our bilateral relationships with other countries. i also chair a program that oversees a framework of regulatory collaboration of new reactor designs. through this program regulator who's are or may soon license, are addressing resources like vendor over sights, quality assurance and digital instrumentation and control.
one important thing in my discussions is regulatory independence. it is essential they are taken without undue political pressure or influence. i've been fiercely protected. i recognize it doesn't relate to isolation. that's why i push to be more engaged with agencies like the department of energy and the state department. i've established productive and cooperative working relationships with my u.s. and government counter parts, we meet regularly to participate in various interagency activities, for example i chair a task force on radio active security. i also chair a forum of independent regulators.
these activities have enabled me to raise awareness across the government of who we are at the nrc who wie are and why we are o important. i'm proud of the progress we've made. we've asked the staff to provide training forum employees who regularly engage with the public and we also require professional fast ill tags for some of our public meetings. for the nrc to be an effective regulate i believe public trust is essential. in many cases the nrc achieved that trust but in some cases i think we have to work harder. for example when i came to nrc, public hearings around san
onofre had the potential to be highly contentious and was clear the public didn't trust the nrc, i'm happy to say we turned that around and have had many successful meetings in southern california. public engagement is equally important for industry, having an effective relationship with local community around a nuclear power plant is important. i encourage them to keep an open dialogue to the groups. some have risen very well to this challenge. other aspects of maintaining public trust in my view is assurance that an agency is using its resources wisely and appropriately. in the past few years management has had to confront the fact that the future was different
from what was previously anticipated. the predicted nuclear renaissance didn't the materialize in the united states and unplanned work resulted in resource limitations that had a real impact on the staff's ability to manage its ongoing work load. election dsequestion sequestion, the government shutdown also impacted the nrc during my tenure. in response to the situation, the commission worked with the staff to ensure its safety mission in the coming years regardless of what the future holds. now let me give you my perspective on what lies ahead at the nrc. fukushima, operating reactor performance, new reactors, deconditioning and the internal
role i'll be brief. let me start with fukushima. all told the post fukushima enhancement has had much has been done but our joint challenge is now to keep up the momentum, maintain our commitment and ensure that the lessons of fukushima are memorials in a sustainable way in our day to day work. the agency needs to continue to work through the remaining recommendations that the near term task force provided. the tier two and three priorities include important topics such as consideration of hydro gren mitigation and cone troll during an accident, the need to periodically review over time, and reactor designs that are different from the mark one and mark two boiling reactors that are already being dealt
with. i believe complacentancy is always a threat and the only way to avoid it is to keep the lessons learned from this tragic accident alive in our safety practices. i also believe the majority of power plants performing well, but we are seeing a few areas of concerns. some in the lower portion seem to remain low rather than addressing the issues quickly and regaining status. i have learned the value of good management. poor management is easy to spot. i believe solid leadership at top and not just attention to the bottom line is necessary to ensure consistent plant performance. in this regard i'm confident that the combination of a
reactor over sight process, a highly qualified workforce and commitment will protect. in po, which is how most of us talk about it, formed after three mile island accident, foster lessons learned across the industry. the staff and the industry are also incorporating post fukushima insights into the new reactor construction projects currently under way in george, south carolina and tennessee. i've seen the progress at two locations firsthand and i can aempt te
attest to the safety conscience i observed to the engineers building these large machines. one challenge is nuclear reactors haven't been krublgt constructed in the united states for quite some time, as a result, manufacturers have had to adjust to accommodate rigorous requirements. some parts of the industry still struggling with these issues. i believe we have a responsibility in preventing count counterfeit and fraudulent parts. bo . >> as these reactors are being constructed, others have closed and begun decommissioning, as i
mentioned. current currently flants follow plants make request exemptions. i believe regulations provide robust framework. i question whether exemptions are appropriate at a time when multiple plants have entered the demissioning process. i believe nrc needs regulation specific to the decommissioning of power plants and to structure public expect aceatioations of process. i've long believed an integrated approach to the nuclear fuel cycle with emphasis on the back end is essential in working with
all nuclear energy. some of my most important efforts have been focused on things like on site nuclear storage and spent fuel disposal. nrc doesn't make energy for the nation but nonetheless we are impacted by the decision of our energy policy makers. as congress continues to grapple with a path forward for nuclear waste management and disposal, nrc must continue to ensure radio active waste can be stored safely until permanent options become available. this raises a number of issues of particular significances to me. it is important to mention that fuel is typically designed to maximize performance in the reactors not in repository torii. considerations on the front end don't always account for how fuel may behalf decades after
it's used. another issue is fuel spent transportati transportation, removed from pools and may need to be repackaged before its ultimate disposal to account for the design of the diessposal site o damaged fuel or heat considerations. research integrity currently under way in the u.s. and else where will be critical in protecting public health and safety. also to note an integrate approach to the fuel cycle means we have to address the reality that current and projected spent fuel inventories will require more than one repository torii. in addition the administration is of rm considering deep bore holes for waste sites. since our first stacurrent stan
specifying to yucca mountain i believe it is necessary for rule making to create a standard. new countries are just beginning to consider nuclear power or nuclear application. i believe the assistance provided to these countries will remain important. nuclear power is offered as a source of prestige in some of these companies. have hard time keeping up with ambitious construction plans. need also build necessary skperlt east to ensure construction and operations are performed safely and securely. heightening my concern some companies are operating a build
own operate approach which a foreignentity constructs and operates the nuclear reactor. this is attractive to nations that are wishing to fast track their energy development. i firmly believe must be paired with safety over sights and accountability by committed and highly trained regulators. so what's next for me? beginning january 1st i will be professor of public policy at elliott school of international affairs and director for science of international science policy as you heard. the agency brings on -- twice which is why i've chosen to leave at this moment. i will be training a new padre of policy experts.
my experience at the nrc will certainly inform my vision for the center. i appreciate the interrelations between nuclear safety and often more frequently discussed security and safe guards issues and the need to treat the three holistically. it's been an honor to chair nrc for past two and half years. i'm grateful to president obama for nominating me. i appreciate the talented and hard working staff at nrc more than i can say. i'm confident as i leave and after i leave the nrc will maintain its well-deserved reputation as one of the best agencies in the federal government. i'm confident the commission will function effective after my departure and i wish my colleagues all the best.
their work will help the nrc to remain effective and trusted regulator. i'm grateful to speak with all of you today and i'm happy now to answer any of your questions. thank you. [ applause ] >> thank you so much professional mcfarland. do you think the united states nuclear energy industry will ever recover from fukushima and start growing again? what will make that happen? >> uh, well, i think that, uh, i w would separate that out. i wouldn't say the industry is suffering necessarily because of fukushima. i there are larger issues at play here, mostly economic issues. what would help that would be some price on carbon, my view. >> most u.s. nuclear facilities
are more than 40 years and want to extend their lives to 60 or even 80 years. how much confidence do you have that they can be extended to that extent and still operate safely. >> well, we've extended the licensed life of 74 reactors to 60 years. already. so that's in progress and we've seen a number of reactors go beyond their 40 year life. they have aging management programs in place and we regulate that closely. the issue of going from 60 to 80 years is an issue that is under consideration at the nrc now and will you have to ask my colleagues in the future where they are going with that. so. >> you said a new rule is needed for firming up rules foreclosing reactors, does that effort have
any effort at moving forward in your absence. >> i certainly hope so. >> how much confidence do you have in your foreign counter parts that they are maintaining the highest possible standards for their nuclear plants? >> well that's a broad question. you know, i have a lot of confidence in many of my countier parts as i said in my speech, we work very closely together. there's some great regulators out there operating very safely. there are others that need to probably improve a bit. and you know, there are more and more efforts in place these days to help them do that. there is something called the world association of nuclear operators. it's on the industry side. and it is stepping up its game a lot since the fukushima accident to bring everybody along.
there are a lot of acts of discussion within the international atomic energy agency how to improve as well. we are working hard at the nrc to try to ensure that we have a big reach out there and we help other countries that need the help. >> what effect do you think the china-u.s. agreement on climate change will have on the nuclear power industry. >> i'm going to pass on that one. i don't know. >> what role should a carbon tax play in a clean energy future? >> well, this is my view, but i think a carbon tax would be very it helpful in readjusting the situation for all those kinds of electricity producers and not when we have the transportation side as well.
to go forward, those who don't produce carbon, it will give them a boost and that includes the nuclear industry. >> can you talk about the fire and explosion at the wipp and for those of you either here and out in the cspan audience it stands for waste isolation pilot plan. can you talk about that, happened in february 2012 in new mexico and what this means for nrc knowledge of process of liesening facilities. >> i want to be clear doesn't regulate wipp, again it's not an
area of my expertise. there's some department of energy folks you can try to corner again later, sorry pete. [ laughter ] and dave. [ laughter ] but, i think there are lessons to be learned from wipp that are very, very important for us, nrc, to learn and examine in. i think we need to wait until more analysis is done on exactly what happened. we need to learn a number of lessons on how -- what best practices should be followed in disposing of waste. it can be disposed of safely but i think we need to take a step back and see what we learn. >> what lessons can be learned from the safety issues that the nrc has worked through with the
fort calhoun plant in omaha and what is the future of nrc over sight of that facility? >> well, we are -- we're still continuing our oversight of fort calhoun and continuing to work hard there. we've -- we've -- we've put in a lot of hours there and to ensure that they are going to be operating safely, they're operating now, and we're continuing our oversight and we will reduce our oversight once they have shown us they are ready for that. that's how we will go forward. >> you have opposed the yucca mountain site b-- what bothered you about yucca mountain. >> i have not looked in detail at yucca mountain since 2003 or so. i have not read the yucca license application.
i have not read a number of the nrc reports on yucca mountain so i don't have a view on yucca mountain right now. that was work i did long ago and right now i don't have a view. >> well this is a question you might have just answered but to be fair to the person who sent it in, what would you say to the new senate leadership if it makes a move to revive the yucca mountain sight? >> i think it is not just a technical issue, clearly, it's clearly a political and societial issue and those pieces need be resolved for any repository repository. clearly the political side has to be resolved as well as the tech nick aal side.
>> an nrc report in october issued said yucca mountain was safe. you had a problem -- >> can i see the question, it seems to tie together two separate things. it's tieing together yucca maunt mountains and the continued storage rule, which i view as totally separate. yes, the nrc issued volume three of the safety evaluation report in october. it has not issued some of the other volumes yet so it has not issued a complete safety evaluation report. but we'll be doing that by january as we promised. on the continued store age rule, yes i had a problem with part of it.
a's said in my speech, it had to do with the fact that i thought we should account for indefinitely storing these materials, the environmental impacts of that, if there are not some kind of instuitutional measures in place in perp iiper to make sure the material remains safe. so that was one of my problems. >> how could processing take for a gio logical sight and where should it be? >> you know ever since i started talking about nuclear waste disposal in 1996 everyone says where should you put it. i don't know we're blessed in this countries, lots of potential sites. the first part of the question, how long could the process take? who knows. i leave that up to you.
you're probably more expert on that then me. >> what happens to money in the nuclear waste fund that has been collected from american electricity consumers? >> it's still in the nuclear waste fund. congress has that. so i suggest you ask congress. >> why did you and nrc take the lead role on the federal government's interagency cyber security forum? >> well we have a lot of experience regulating cyber security issues. we've had regulations in place on cyber security since 2009. we've been dealing since the early 2000s, 2003-2004. so we have amongst other
government agencies, amongst the most experience on this issue so it seems natural for us to take the lead. >> what role does that effort play into your efforts to boost nuclear facility safety and security? >> well, it's important for nuclear facilities and nuclear reactors to be protected from all the kinds of hacks you read about. i'm sure you all read the paper today about the sat department's recent troubles. we don't want that kind of thing happening at a nuclear reactor or nuclear facility where there are grave implications. and so that is what we are trying to be protective of. >> some of the largest owners of nuclear plants are seeking millions of dollars in subsidies from electricity consumers in
states such as illinois, ohio, and new york, to continue operating their plants, do you support such subsidies and if so, why. >> we regulate nuclear power reactors, material. we don't get into the pricing plans, et cetera. so, we don't handle that bit. that's for the state publicul e public --ulate commission. >> what didn't you get done during your tenure. >> i don't know where to start. [ laughter ] i've been ambitious. i would have liked to have seen more done with the back end of the nuclear fuel cycle. i think there's a lot more work to be done there to make that front and center in people's minds. that's one piece of it.
i'd like to see more done with public engagements as well. so those are some areasful -- areas. but overall i think we accomplished quite a lot in two and half years. i think we have a lot to be proud of. >> what are some of the biggest challenges your successor will face? >> as i said, the agency isn't facing the future that five years ago people envisioned. five or seven years ago the nuclear industry was really expecting to expand and that's what the information we were getting from them. we expanded as well to prepare for license applications and that started to fall apart and as the recession hit, a number of other factors came into play. and so we have to ensure that we have the right agency for the time.
that means we need to have the right skill set, the right resources and manage them appropriately. and that's what we're in the process of figuring out. so the next chairman will have to continue making sure that that process gets complete and that the agency is really well equip to deal with the future. >> and following on, what advice would you give to your replacement? >> get a top-notch staff. [ laughter ] you can't do anything without a top-notch staff because you have way too much to do. and to rely a lot on the staff at the nrc. overall the staff are fantastic. they have a world of experience. and then are the ones who will help you get things done. >> did the white house influence your decision to step down? >> absolutely not.
you can ask them. they were probably as surprised as everybody else. >> what do you think regulations specific to decommissioning reactors should look like? what do you think should be changed? >> well, i think there are a number of issues that need to be dealt with. first of all, as i said, reactors that are decommissioning are regulated under operator reactor regulations. now when you take spent fuel out of the core of the reactor, you don't really need to have a guard force surrounding that core. you need to adjust the security, you may need to adjust the emergency planning. rules. so i think those issues are sort of first and foremost and that's where we're getting a lot of exemption requests from the plants that are currently decommissioning. i think there's a discussion
about the post shut down activities. post shut down decommissioning activities report, the psdar, i'm trying to get away from acronyms. that's another piece of advice for the next chairman get rid of the acronyms. this report is something the power plants provide us but we have nothing to approve or disapprove and i think we should consider whether we need that or not. i think there's a number of issues we need to think about and consider going forward. >> some people think that building small module are reactors are the future. does this technology pose any advantages for liesening them? >> well, we'll see. when we get some license applications. we're in the process of waiting for license applications. it sounds like the first ones will come in 2016, but again we'll see.
we had been expecting license applications this past year and the industry walked back a built on that. so we'll see what happens. i think there's promise in small modular reactors but again, the proof is in the pudding and i'll let these guys work through the details and they will find out if there's issues or not. >> a lot of questions about licensin licensing. as a variety of nuclear reaction designs move forward how will they aprofessionprove designs w not fit into the current framework. >> i think the question refers to generation four designs. not white water designs. and i think we are prepared to deal with those.
i don't see any coming any time soon. the small applications which are much closer to completion are still not on our plate and i don't expect these advanced designs will be on the nrc's claim for many years. but as we, working with the industry, understand that they're getting closer, that we can respond and be prepared to deal with them. >> what if anything can nrc do to move to heightened oversight. >> we're working closely with low performing plans and providing them a lot of feedback. again, i think this is something that the institute for nuclear power operations, inpo office is
focusing on as well. because they also don't want to see plans stuck at the low performing level for years and years and years. so we're working together to try to improve that. >> is the nrc staff ready to evaluate new technology like reactors, like sodium or lead. >> same answer. >> are there ways to safely reduce the cost of generating a nuclear plant to make them more competitive with natural gas and wind power? >> again i eregulregulate the p. i don't construct them or designing them or build them and i ollleave it to people who are
experts in that. >> as a geologist, do you think fracking is safe and why or why not? >> let me give you a related question. so you can maybe get it all together. how has the fracking boom affected the nuclear power industry? >> well, i'll the latter one first, i think a number of factors have affected the nuclear power industry economically. this is just my point of view, but i think that first of all, the demographics shift from the north to the south and west. that has been occurring for more than 10 years. has reduced demand in the midwest, the northern part of the country, the 2008 recession which has hung on in the upper midwest, persistently has also reduced demand and of course then the low price of natural
gas has not contributed to the rosy picture there for nuclear power plants so i think all of these factors have played a part. >> back to fukushima, which was an overriding issue when you came in and still is. what in -- to keep them safe from the catastrophic accident that occurred at fukushima and are you convinced that they will take appropriate action? >> the incentive that nuclear plant operators have is they
don't want to loses that asset and they don't want to deal with the aftermath. and i think they're all on board with that and they have been very responsive to the orders that we put out. i think we are ahead of quite a few countries in terms of getting that additional equipment on site at reactors in safe structures, we will be completed, that will be completed by 2016. and many plants will be done before then. so we at the nrc and the industry have worked really hard to try to make that happen. as i said, there's more to do, and we have to keep our focus on that. going forward, but i think we're in a good place right now. >> fracking producing huge quantities of waste. given how it is stored, how worrisome are the earthquakes
that you mentioned? >> well, that was fast. i thought we were here talking about nuclear, not fracking. i don't know, not being an expert on that. so i will leave that to actual experts on fracking. >> increasingly industry applications to staff include information published, but only available for fees or purchase. did those costs deny public review of information sources, staff use and review of applications and requests? is there a mechanism to make all documents used by staff in decision making available to the public? >> it depends on the particular situation, i don't think i can
be more specific than that. there's some material that is proprietary that we can't share. that's the way it is. so we make -- you know, compared to many other federal agencies, we make a lot of material available to the public. and i have been trying to push for making as much as possible. so i think under my tenure there you have seen that we have been as open as we can be. so we're trying. >> i anticipate your answer to this one, but i would like to ask it, because we keep our effort to ask as many as possible from the audience. regarding public information, do you require that -- be made available to the public and elected officials for review? >> again, there are materials that we can share and there are few materials that we cannot
share, we make as many materials as possible available to the public. >> do you worry that the nrc is becoming a satellite operation for senator harry reid? >> again, i believe that that is essential for the nuclear regulatory commission and other independent commissions to be just that, independent. to be free from political influence, and industry pressure. it's absolutely essential. whenever i travel overseas, whenever i give a speech, that is always a mainstay of what i say. because it doesn't work, there are some places, i'm not going to talking about them now, but some places where countries start stepping back on that.
but it's essential that we remain independent. >> is bill ostendorf your favorite commissioner? >> don't answer that. >> of course. i think i embarrassed him. i think it's the first time ever. >> just one question before we go into the finale. are you saying then that harry reid is too influential? >> i'm not saying anything, i'm just saying that the nrc needs to be independent and is independent, will remain that way. >> we are almost out of time. but before asking the last question, we have a couple of housekeeping matters to take care of. first of all, i would like to remind you about our upcoming lunches. and you're welcome to come back.
on this friday, dr. anthony faucci will focus on the ebola outbreak. on december 1, teresa sullivan, president of the university of virginia will discuss trends in higher education. and on december 5, garry beckman, commissioner of the national hockey league, ceo of monumental sports and entertainment will discuss the growth of the national hockey league and the 2015 winter classic. next i would like to present our guests with the traditional national press club mug. if i happen to walk by your office, i will check to see that you have it there. please accept it with our thanks. one last question. many dentists charge about $200
from the center fs the citizen strategy teej it and international studies, this is an hour and 20 minutes. >> i think we're going to get started, if everyone could take their seats, get their coffees or waters, bring them to their tables, we're going to get started here. welcome, everybody. welcome to csis, and thank you for weathering the cold weather
here in d.c. joining us today. today's event with my colleague, elizabeth nuhaus. before we get to senator blake's remarks, i just want to offer a brief explanation of what makes today's conference titled getting to normal, a legal pathway for u.s.-cuba policy reform, different from all cuba gatherings that take place here in d.c. as i look in the crowd, i see a lot of familiar faces, welcome to everybody. folks that have covered cuba for a long time, so i just want to sort of justify why on a rainy morning in washington, d.c. we're here to talk about cuba. let me start by telling you a bit about what this conference
is not shooting for. today's event will not focus on debating, if normalized relations should or should not be the goal of the bilateral relationship. to be clear, this conference will not be taking a position on that question. instead, our goal today will be to answer a question that is seldom asked, which is u if the president of the united states are interested in normalizing relations with cuba, how could this actually take place? legally, diplomatically, and practically. and there are a series of questions that follow from that broader theme. such as what would be the process? who needs to be involved? what are the legal steps and are there case studies around the world we could look to for guidance? in a lot of ways this conference is an outgrowth of a series of discussions among myself,
elizabeth and my good friend robert mews who has worked on cuba relations for decade. their political and legal knowledge and my own policy background together raised the questions we're hoping to answer in this debate. this conference developed at a fascinating time for the u.s. and cuba. most recently, panama, the host of the 2015 summit of the americas, invited cuba to participate for to the first time, despite objections by the white house. this might choose to be a decision forcing moment, pushing the administration to set a course for the final two years of the president's term. ultimately this could amount to an opportunity for a long bilateral relationship. but additional questions are still relevant.
the island still depends on venezuelan aid, that seems to be on increasingly shaky ground as the venezuelan economy further deteriorates and as most of you know, this is the 5-year anniversary of -- not to dig into those issues today, even though they do provide important context for this and any discussion of the bilateral relationship. so what we're here to offer is an exercise. one that i think is long overdue, an exploration of the what if, rather than a debate over the should we? i couldn't feel more strongly that this is the right moment to engage in this conversation. this morning's sessions will be thought provoking. my hope is that we all leave here with a more robust -- i
want to thank you all for being here at this conference today, and i would like to introduce our keynote speaker and give you all a sense of what will proceed today. jeff blake is here with us as our keynote speaker. senator flake has a long history on u.s.-cuba policy issues and he's a proponent of lifting the travel ban. the senator reminded me of the work he's been doing for many years and of the work i think we shared when i was working for senator luger on the foreign relations committee and those are pleasant memories, still it's like pushing a boulder up a hill. he recently participated in a roonlt -- without a doubt the senator has some valuable insights to share and i'm grateful that he was able to join us today.
senator flake has also graciously agreed to take some questions from the audience following his remarks. when that segment ends at 9:45, we'll have a quick break before beginning the panel discussion. unfortunately, our luncheon keynote speaker ambassador tom pickering is unable to be here today, he was called away to china on pressing business at the 11th hour, and to the presence, though, will be missed, but i think that we have a very good panel and a very interesting set of folks here as well, a cross section of all the folks that have done cuba over the years, so i know that the conversation and the questions will be very, very good. but in lieu of his remarks, we would like to use the luncheon to engage in a lively discussion of the morning's proceedings. i would like to thank you all for being here once again. i would like to remind you all that our proceedings are on the
record and we're live webcasting, i would like to welcome cspan as well and thank you for your coverage. and without any delay, senator flake, look forward to you. >> thank you, carl. i appreciate it. it's nice to be here at csis. i'm reminded that when i first came to washington in the late '80s as an intern in senator deaconcini's office. i have had to personal that from my rez my. but we were working on after can politics, and in particular, the agreement that was coming together in southern africa, by which libya could retain its independence and i relied a lot on the work of csis. i believe the staff that worked on it was sean mccormick, i have
always been impressed with the scholarship and the research that has gone on here. so it's great to be here this morning, it's never a bad time to review a policy that has failed to produce results for 50 years, but gain that, it's certainly a timely conference today given some recent developments. i have people often ask where my interest in cuba came from, i did mention that my early work in africa, cuba was always there somehow, the agreement for libyan independence to happen, as my wife and myself, we sent a year there the year that libya -- after an agreement for the cuban troops to leave an gola, so it seems to be an issue
that's followed me around wherever i have been in my career. but people ask, an arizona senator, why are you involved like this? i tell them, well, i took a poll among cube cuban americans in arizona, and both of them said go ahead, we like what you're doing. arizona doesn't have farm produce that we sell, there's not a lot of trader travel back and forth, but for me, it's always been an issue of freedom. americans should be able to travel anywhere they want, unless there's a compelling national security reason otherwise. there is none here, there hasn't been for a long, long time. several weeks ago senator tom udall and i traveled to havana. among other things we were interested in seeing the scope and the impact of the economic changes that the cuban government has been purr u suing. as you're no doubt aware, the
cubans have loosened restrict n restrictions on private enterprise, they have expangded the use of cooperatives and they have passed a new foreign investment law. but also as you're no doubt aware, expanding the private sector is a very positive development, one that looks to be more irreversible than changes in the past. the current regime is far from having seen the light on capitalism. i was reminded of this when i took a delegation down there in, i think, 2006. and since i was head of the delegation, you always have the con dun drum, when you have meetings, official meetings, you exchange a gift with the government, and there's a gift ban, and there's issues of what you can give or trade or whatever else so you don't want to take cuff links from the capitol or things like that. so i thought, well, i'll just
take care of that myself so i got a couple of books that i gave to government officials. one of them was milton free man's capitalism and freedom, adam smith's a wealth of nation. and desoto's myths of capital. i enjoyed the reaction that i received. but, you know, the cuban government certainly hasn't seen the light or hasn't realized that they're going have a full throated defense of capitalism, but they have taken measures that i think because of some other developments that i'll talk about in a minute, are far more irreversible. are likely to last and have a positive effect for the long-term. the country remains cash strapped, as carl mentioned, corresponde continued support from venezuela of these reforms i believe are based on a realistic assessment
of their precarious economic situation. now these economic arrangements have all the clunkiness that you would soeshassociate with a comt state trying to -- through the right mix of government control and state planning. but i can tell you after years of traveling to the island is that the level of tension and the legal of rhetoric are noticeably lower and that is a good thing. in previous trips back in 2002, '03, '06. the cuban intersection we have, we had a ticker in, like a stock ticker that just spewed out provocative messages to the cuban people and cubans responded by erecting hundreds
of flags right in front of it. the flag poles are gone, the ticker is gone and so are the flags and there hasn't been a protest or a demonstration there in quite a while. back home here, the suggestion is that the administration is ready to take further steps to modernize u.s. -- cuba policy. these rumors have reached a fever pitch, i for one as a republican want to be the first to say that the changes that the president has advanced with respect to lifting restrictions on cuban-american travel are a good thing. they are what's done and in my view have done a lot to advance the policy that we would all like to see with cuba. loosening restrictions on u.s. remittances has coincided well for cuban opportunities for cube bang entrepreneurs. i think this timely infusion of
funding has done more to transform the lives of many cubans. i have always felt that these programs, these hundreds of millions of dollars that we have spent have done more to create jobs in miami than freedom in cuba. this administration has taken further steps to create a context in which the two countries can at least interact, for example, resuming conversation on migration and rotating the chief of missions to the intersection, u.s. intersection there that has had previous experience in cuba. these are good things, here's hoping that the administration will do more. from my perspective, the changes we really need are some
leadership from congress, as carl said, i have long supported lifting the cuba embargo wholesa wholesale, i would do the whole thing, but i focus mostly on the travel ban. we formed the cuba study group, as soon as i got to congress in 2001, myself and bill de la hunt had a bipartisan group, for every democrat we added, weed aed a republican too. we were able to pass legislation twice that would prohibit enforcement for the travel plan. the only way we could get legislation to the floor at that time. we passed it out of the house, we passed in the senate, we just couldn't get the president to sign it. now the president will sign it, but it's difficult to pass. so we have a con dun drconundru
have the administration taking additional steps and when they do, they will certainly have my support and the support of other republicans in congress as well as a lot of democrats. at a minimum, there are things that could be done to increase the frequenciability -- we could expand people to people categories significantly, we can move the needle on internet access as well. i have always felt that we could do more, just allowing americans to travel, if we want cubans to have more access to internet, to have more access to electronic devices to which they can more easily access information, that we want them to access, that happens organically. it happens free of charge to the government when americans are free to travel to cuba, instead of us trying to do clumsy
programs, administered by usaid thatm@'qu really not only expos contractors to risk, but cheapen usaid's mission around the rest of the world. so i hope that we'll continue to work on the travel issue. it goes without saying that we need to pivot away from that quasi-covert programs like i mentioned, cuba twitter, this debacle gives the u.s. a black eye, all around the world. not just in cuba or the western hemisphere. i have always felt that we shouldn't let cuba write our foreign policy. we have had an issue with both republicans and democrats in the white house where we'll take the position that we will take measures like further lifting of the travel ban or loosening the economic embargo, when cuba
takes certain measures. i think that's the wrong calculus, that is based on the a1u6 assumption that the cuban government wants that to happen. i have never been convinced, at times they want it, at times they don't. and they seem to get spooked when we do make some changes to better relationships with cuban people and with the government. and so we shouldn't base our policy based on what we think the cubans want or don't want. we have to base our policy on what's good for our national security and what has a history of working elsewhere in the world. so we shouldn't put cuba in charge of our foreign policy. we ought to enact what we know is right. if the past has been any sort of pro log, we can't write the script for cuba, only the cuban people can. but we can have an influence and it's time to think about our influence in cuba and realize that it's changing, the economic
model, as we all know as every cuban realizes has been a failure of the private sector in cuba is now growing, and a new generation is in the wings. let me just close by saying that clearly the elephant in the room when it comes to what happens next in cuba, with respect to bilateral relations is a continued detention, of former usaid contractor allan grubs. senator udall and i had the opportunity to meet with the senator while we were in havana. he really wants to come home. after five years, he wants and needs to come home. and i sincerely hope that the administration is doing everything that we can to make that happen. again, i appreciate the chance to be here this morning, and i now look forward to being grilled by carl. so thank you for having me.
i'm going to try to grill you for about 10 minutes. you mentioned a little bit in your opening remarks that thing have changed, could you describe a little bit the environment when you were down there? what makes it so different? again, people talk about cuba and there's been moments where we have seen there's an opportunity and then that goes away, that being -- i mean really going further back, the brothers to the rescue, or the issue with allan groves, there's an open opportunity or willingness to do things differently in the united states. then it shuts. what's so different about the situation right now. >> i mentioned one of the differences is the level of rhetoric and tension between the two countries has bettered.
i don't think it was productive that period of time we had when the u.s. was in the business of trying to provoke the cubans at every step. it don't think it did them or us any good. that has lessened. but significantly the amount of private entrepreneur ship that is happening there is significant. you can characterize the government's approach in what they're trying to do, you can criticize the new investment law that i do and everybody does. those measures have their limits. but what is undeniable is that the private entrepreneurship largely because of the change in policy allowing cuban americans to travel freely to the island, some 400,000 trips a year, and lifting limits on remittances, allowing investments by family
members in enterprises there. you get the sense when you travel to cuba now, that unlike, you know, during the so-called special period where the government would face the decline of soviet subsidies and had to rely on private businesses, restaurants to give some level of economic growth. as soon as that, you know, the pressure lessened, then they pulled back. you get the sense today that that would be extremely difficult if not impossible for the government to do. is level of investment, the level of entrepreneurship and the taste that people now have of that is irreversible. i think that's the feeling u i get. >> from my experience in the senate and one of my colleagues here was my counterpart for years with senator biden, there's a knowledge or an understanding of cuba based on sort of the champions of one
side of the debate over the champions of another of the debate. and you seem to be a champion of the issues that have to do with reforming the policy, changing certain aspects of it. you mentioned u srkusaid and li the travel ban. because we have had folks in the house and the folks in the senate being on one side of the discussion, sort of keeping the issue where it is and not reforming it and justified by rationale that they don't want to reward the cuban government. are there other senators on the republican side in particular, that share your views on this issue? >> floor. and we saw that reflected in votes that we took, you know, six, eight years ago, u now there have been a lot of changes in congress, but the longer you go, just because of time, you
have more people just saying, all right, it's time. you know, 48 years wasn't long enough, but 52 is. just the passage of time has changed some calculation. and the discussion about what is a reward for the cubans and what is not, is changing, i think as well. i hope it is. i mentioned that our policy has been too based on what we think the cubans want or what we perceive is their interest and i think their interest changes. at some point, they're all ready to relax the travel ban. but i think sometimes if we threw open the gates and let americans travel, the cubans would certainly impose restrictions of their own because they want the rev nye and not the influence. and i thought if somebody's going limit my travel, it ought to be a communist, not my own
government. that's theirprerogative, that's their purview, not mine. i have always thought of a joke, but only half joking, i think the punishment for the regime would be allow spring break. they may wave the white flag after that. but we have to think in different ways about rewards and punishment, but the thought ought to be, what is in our national interest, what policies have been effective in other countries to change other governments. i do think there are those in congress who would like to make that -- when i talk to those who
are very opposed to what i have been talking about here, and very much want to punish the regime, there's agreement, i think, with everybody that internet access is a good thing for cubans and there are steps that can be taken that don't involve sending contractors down to clachb destinly set up programs. there are changes we could make that would let that happen organically, or evolve just given the course of events. i think there are ways that we can work across the aisle that way, not just across the aisle, but this is just a partisan thing, obviously. >> it seems like there could be a bipartisan element in this. >> and i think it would be welcome, i think the american public wants to see republicans and democrats working together on these difficult issues.
on the technology issue, did you feel there was -- was your idea met with opposition on technology and to the proliferation of technology? >> i think -- i mean the cuban government, first and foremost, everything is about control. they want to have as much control for as long as they can. the question is, you know, can they exercise that control and still give the cuban people what they want and expect. you ask in what ways things have changed. people always find ways to get around the restrictions that are there. the recent p phenomenon down there, it's something called to the packet.
to the spanish word for packet. where somebody will download basically a package of information, whether it's game of throwns or some mexican novellas or whatever else. and people will come to a central place under wi-fi and download that. let me tell you, virtually every cuban, it seems in havana have access to this somehow, the cuban government knows it, while it doesn't sanction it, it u allows it because it fills a gap that they aren't filling and as long as they don't assume that people are downloading political things or whatever else, then they simply let it go so i think that things that we can do to allow internet access, to allow u.s. cell phone countries to offer it.
sure the cuban government fears that, they want to restrict it. but you've come to a point where you can't anymore? just like on the travel issue, i think the cuban government obviously would like the revenue, but they try to decide who they will allow in. you just can't do that for very among. in the end, freedom works out. >> before i open it up for a couple of questions from the audience, just a quick question, on the travel bill, i'm assuming you're going to reintroduce it into the new congress? do you get a willingness from the administration that if you u're able to pass it through congress, that they would sign it, that the president would sign it. >> that's certainly my expectation and the administration has taken measures on its own to relax the travel ban and to increase opportunities for people to people contact and so it's my
assumption that they would be, that i don't want to speak for the administration. >> let me get some questions from the audience, let me first go here with ted. >> thank you. i have a specific question on a subject that didn't come up. on the state sponsored terrorism. and i'm wonder, if you want to look at that issue, and if you have any specific recommendations for the president who could take steps on his own to address that, how would that be received in congress? >> that's a tough one. whenever you try to go the other drekation, given the threats that are out there and the perceptions. but i felt for a long time that that list ought to mean something. and in this case, it doesn't.
the ---that is an impediment to certainly modernizing relations with cuba. and i don't think that for the reasons that we have those rules and regulations. i don't think that cuba belongs on that list. so i have advocated for a long time to lift it. >> gentleman over here. >> john mcauliffe for the fund for reconciliation and development. first to thank you for the struggles that you engaged in as a house member and wishing you luck and equal success in mobilizing your republican colleagues and democratic colleagues in the senate now. i want to press a bit on the travel. you referred to broadening licenses, do you mean to -- for people to people. do you mean that you see ofac
continuing to license but for broader categories or do you mean that there should be a general license for people to people and other purposeful travel that would allow all americans to have the same kind of liberty that cuban americans have? >> yes, i think it's -- it's particularly since the cuban government has relaxed restrictions of cubans abro bra. that's what -- they have largely lifted those restrictions. not completely. but largely. so i would advocate a general license for purposeful travel, just people to people contact. that's what would do the most, i think, given the president's limitations on what he can and
can't do. although i'm not sure there are any limitations on executive action these days. that's a discussion for another day. >> let me press you on that. i just have one question on that. i don't want u you to feel uncomfortable with me asking you this, u but the environment in congress, if the president takes more executive action, given the environment that has already been established with the reforms or the measures that he's taken on immigration, it just seems like it's going to be an uphill battle to do more of that because of that, would you agree with that? >> i would. i do think it becomes more difficult. >> any other questions? >> one here. >> thank you for coming this morning and thank you for all your efforts. speaking of immigration. the immigration, i.c.e. has report the largest number of
cubans who have been detained on the sea this year than in previous years. almost the beginning of another exodus of shorts. one of the -- i wonder if there's any discussions among your colleagues about ending the cuban adjustment act? >> i will say there's discussion, but no consensus in any way and i think we're a ways from that. but there are discussions. it's not just those who are a apprehended at sea, those who are crossing the southern border, a sfanignificant increa those are happening but no closer to a resolution on that. >> i have a tweeted question. and i think this is going to be our last question unless someone realally has a burning question to pose.
jill? >> one of our followers asked, what do you think is most likely to change in the short-term. not what should, but what could? >> i still think, through executive action, broadening of categories of a general license for -- i still think that's the most likely short-term change. obviously this is an issue that has sort of stagnated, that hasn't moved. there are different reasons for that, but having folks that are pushing the limit on both sides
of the aisle is always very important. so let me just say thank you for what you're doing. >> i have -- some who have been involved, the ambassador there, a lot longer than that. so i appreciate the good work of a lot of people in this room on this. >> thank you. >> thank you, sir. >> so we're going to have a short break, just so we can put up the chairs and table for to the next panel. it should be about ten minutes and then we'll start off with elizabeth and with robert. >> got it. great. good morning. first i want to thank carl and
senator flake for the terrific presentation and add a warm welcome to carl's on behalf of the center for international policy. we're lightdelighted to have yoe part in a very interesting program. though many of us indeed that u.s.-cuba relations should be normalized, we're not here to press for that or to make the case. but rather to show how it could be done if and when a u.s. president decides it is in the national interest. typically, foreign affairs are an executive function and congress mostly stays out of the process. but cuba is different. the passions it can work up in sk segments of this country are nothing short of extraordinary. thus in the mid 1990s, to an unprecedented degree, congress
began letting slating specifically around cuba. the elaborately name cuban liberty and sold dare act of 1996. those laws follow directly from the end of the cold war and the disappearance of soviet subsidies to the cuban economy. with the subsidies gone, the cuban economy went into free fall and it was widely predicted that civil discontent would soon sweep the government from power. this -- miamians remember neighbors with packed backed ready to return back to cuba. a prominent miami author wrote a book, castro's final hours in
1992. thus each of the laws passed by congress had as a principal feature, restrictions on cuban trade and investment. because the embargo already prohibited u.s. commerce with cuba, the new laws were aimed at third country activity and predictably were met with protests from the eu, canada and mexico. it was widely argued at the time that congress had usurped the president's authority to make cuba policy. this morning a panel of experts will examine some of those laws and indicate the extent to which they diminish a president's historical perspective to determine u.s.-cuba policy. and consider how far a president can go to normalize relations. robert muse, our first speaker
and the moderator, and the intellectual inspiration for this conference, is a lawyer whose work for the past 20 years has focused on u.s. laws regarding cuba. his work is notable, for among other things, showing that congress's attempts to strip the president of authority over the embargo, largely failed. that the codify indication provision that was meant the freeze the embargo in place, did only that, froze it in place. it thus left untouched the president's authority through rule making, licensing and other actions to determine u.s. policies relating to cuba and cubans. muse's expolitic indication of the lipts of -- bookings report of 2008. which urged the next u.s.
president who turned out to be obama to use his executive authority to allow constructive engagement in u.s. national interests. most notably, the restation of people to people travel. most recently an article muse wrote for america's quarrelly, copies which are available here, describes presidential authority to engage with cuba in such areas as basic trade. and to remove some of the u.s. policies that most aggrieve cuba, including it's continued presence on the state department's terrori department's -- third country transactions with cuba. today, robert muse has asked his
panel to climb a little higher and dig a little deeper and to consider what normalized relations would actually look like and how we could get there. u one day a president will decide to pursue normalization and may find useful the legal pathway laid out here. thank you. robert muse. >> thank you. as many of you know, elizabeth i think is the new director of the cip, center for international policies cuba program, succeeding wayne smith who's here this morning. but i'm pleased to tell you that wayne stays on as senior fellow, is it, wayne? we're glad to have you remain with us. this conference event had its
origins in hillary clinton saying not long ago that she favored normalized relations with cuba. it was one of the first times a nationally prominent political figure has used that word, normalization, her reasoning was that the current policy of embargo serves to in her verb, prop up u the government of cuba. and if we remove the embargo, then we remove this source of support for the government by cubans aggrieved at some of our policies. the paper i have left on your tables deals with to the first aspect of normalization of relations. i'm going to propose a three-stage continuum here, the first step is to remove, take down some of the most punitive measures to cuba. they include things like our
extra territorial application of our export laws. which prevented cuba in the last year or two from buying a european airbus because there was more than 10% u.s. content in that aircraft. it also meant that cuba had to go to great lengths and expense to find an oil exploratory rig that didn't have u.s. components above 10%. almost impossible. in the world of deep sea drill thing. so number one is the first stage is taking down the punitive elements of the embargo. stage two is what i'll call baseline normal, in terms of trade and specifically in terms of trade, it's really economy class. that's using the metaphor of air travel.
you take down the punitive aspects of our current policy and we have sort of let cuba out of the cargo hold. now we have put them into economy class, but it bears the grand title in trade terms, most favored nation, in fact it's baseline normal. in trade terms, as jake will discuss in a moment, first class con sisists of free trade agreements and other such modern trade protocols. but stage two is to get to baseline normal. and then stage three in which our last two speakers will discuss what -- stage three being best and brightest relations between nations, what do they look like? they're often characterized in the case of u.s. and canada with the free trade agreement, which also extends to mexico. they can take the form of
preferential voteisa treatment. best and brightest relations will be discussed by dan whittle in the field of environmental cooperation, and by christine farley who's present at oral argument in the supreme court will talk about best relations in the field of intellectual property protection and the current instrument that governs intellectual property protections is the 1929 interamerican convention, so we're in need of an overall there, since that document was ratified, we have cyber issues, domain names, a number of intellectual issues that are going to require new arrangements with cuba. so we'll start with mark feldman, and he's going to
provide shape to the constitutional legal dimension of presidential power to normalize relations with cuba. i'm not going to the do biographic introductions, you'll find that in the rear. but sufficient to say that mark was for some time our chief lawyer in the international affairs realm as acts legal advisor of the state department. he will be followed by jake colvin who's going to talk a little bit about trade, baseline trade and maybe a little bit further. matthew otto will delve into the very difficult issue of bank transactions involving cuba. you'll notice those of you who skimmeded my article, that it was two complicated for me so i left it for him. and gustava will talk about
international financial membership of cuba and as i say, we'll finish with dan whittle and christine farley. mark? >> thank you very much, robert. i'm very honored and pleased to be here. good morning to all. robert has asked me to discuss as briefly as i can what the president can do on his own authority under the constitution and standing legislation to improve our relations with cuba. as a teacher of foreign relations law, i know this to be a complex and fluid subject. i'm hoping to develop a paper that we can can circulate to you that will give you the ju jurisprudential background before moving to the bottom line
here, what we have done with cuba in the past and what we might do in the future. let me just say, this has been debated, presidents power has to constitutional power the conflict between the two of them for control of u.s. foreign policymaking dates back to the very earliest days of the republic. i think it was alexander hamilton and then john marshall and finally the supreme court in the '30s that said, while the congress reign supreme in domestic affairs, the president is the sole organ of the nation in dealing with foreign countries. and there is a line of cases that basically says when it comes to external matters, the president is king. but there's a more current line of cases, applied primarily to protect economic interests,
domestic economic interests like the property, civil liberties and state's rights. we're beginning with the famous steel seizure cases in the trumen administration. the court has said that the powers of the president are not fixed but fluctuate with the powers and the implementation, the execution of those powers by congress. so that means that when we talk about traditional areas of presidential power, and particularly in the cuban context, it casts a very long shadow and it will influence the debate. and if a case should ever come to the supreme court, that would certainly be something that would have -- would be of central concern.
just to recall some of the mar dramatic examples of things the presidents have done on their own authority. think about the ul ta and pakistan agreements which reshaped europe after world war ii. think about president truman's prok low mags on the continental shelf, unilaterally without congressional authorization extended u.s. jurisdiction, many, many miles off u.s. coast on international waters. in the context of cuba, i personally -- during my government service, participated in negotiation of executive agreements on a variety of sensitive subjects. perhaps the most interesting was the hodge from a policy point of view was the hijacking agreement which is nixon administration negotiated as an executive
agreement with castro. o i don't have time to go into that this morning, but if there's interest we could go into it later. i also participated in negotiating in the carter administration, modus-vendi with cuba which we did for one year as an executive agreement. and then we did something called a maritime boundary agreement which we submitted to the senate for advice and consent as a treaty, but knowing that was not likely to happen, we also made an executive agreement under what we considered the executive, the president's authority to make boundary agreements, provisional boundary agreements by executive authority alone. and that remains in force today on the basis of exchanges of
diplomatic notes every two years. so all of these things were done by executive agreement. i would say looking forward, coming to our agenda for this morning, the four areas most relevant where it's clear the constitutional practice and legal precedent say the president has primary authority are in the areas of recognition in diplomatic relations, international claims, maritime boundaries and law enforcement, all of these areas are potential avenues for some progress on relations with cuba. beginning with diplomatic relations, president eisenhower suspended diplomatic relations, closed the embassy way back on january 3, 1961.
but that action did not affect u.s. recognition of the communist regime in cuba. the united states has long before that date and to this very date -- the united states has consistently recognized the castro regime as the deinjury regime, the dejour government. same thing applies in iran where we have not had diplomatic relations since the seizure of the embassy back in 1979. the united states has always recognized the current regime as the dejour government of iran. the president under article 2, the president has plenary authority at least we in the executive branch always believed when it comes to matters of
recognition and the suspension and/or renewal of diplomatic relations. way back in 1933, fdr established unilaterally established relations with the soviet union and made a comprehensive claim settlement by executive agreement. jimmy carter did the same thing with china in 1979. a few years -- in the same general time frame he made an agreement, a claimed settlement agreement with the ayatollah in iran. so, it's my conclusion that it is a matter of executive discretion. the president could formalize our relations, replace the
interest section with an embassy, restore the embassy. now, the senate doesn't have to confirm a nominee for ambassador if there should be a problem there. the president can run the embassy has appointing -- the executive does need appropriate funds to run the embassy. can't say there's no congressional oversight of this matter. historically resumption of diplomatic relations with communist regimes has been linked with an executive agreement providing a comprehensive claims settlement because both countries typically want such linkage. the u.s. to obtain compensation for american claimants. the other government to terminate or avoid litigation in
u.s. courts. the pattern with the soviet union, with eastern europe, with china, was very limited compensation. maybe 30 cents on the dollar or less for american claimants, paid out of foreign assets, foreign government's assets frozen in the united states. these executive agreements based on the president's sole authority have been upheld by the supreme court as the supreme law of the land. now, congress in section 204 is it? it's 207. this is a very curious provision. sense of congress. it is the sense of congress that satisfactory resolution of property claims by a cuban government recognized by the
united states remains in essential condition for the full resumption of economic and diplomatic relations between the united states and cuba. do they wonder, do they not know that we already recognize the government in havana? i don't know. but this is sense of the congress. the congress has not made this -- it has not attempted to dictate as a matter of law this policy. maybe this is recognition on congress's part that this is a matter of presidential discretion under article 2 perhaps. we have a more fundamental problem, though, when it comes to negotiating a claims agreement with cuba. there isn't enough money.
the claims amount to billions of dollars. the frozen assets are very limited. it's hard to manage cuba appropriating money to pay american claimants. so is there another option? i think there could be if u.s. sanctions were relaxed and if the cubans were prepared to create the right opportunities for private investment. american entities with large claims against cuba might be able to recoup some of their losses through new investment. but absent a comprehensive claims settlement, the investors would have to worry about political risk both in the united states and in cuba. big problem. what could the president do with his own authority? robert asked me to