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tv   Key Capitol Hill Hearings  CSPAN  December 6, 2014 1:00am-3:01am EST

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from the center fs the citizen
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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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,
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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.
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>> 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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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 focus on this and it's my conclusion that the president could not make an -- do on his own authority an executive agreement which looks like a traditional bilateral tree because that exposes the united states' government the treasury to reciprocal liability for cuban


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