“I am not a dictator, and I do not think I will become one. I will not maintain power with a machine gun,” said Fidel Castro in an interview in January 1959, shortly after he ousted President Fulgencio Batista. With that declaration, Castro established Cuba as the first communist state in the Western Hemisphere. For over one-half century, the Castro Brothers, Fidel and his brother Raul, have run Communist Cuba with an iron fist and index fingers on the triggers of machine guns.
In October 1960, the U.S. imposed the first set of sanctions against Communist Cuba. On January 3, 1961, the US withdrew diplomatic recognition of the Castro’s government and closed its embassy in Havana. For over one-half century, the U.S. has imposed various economic sanctions against Cuba, including restrictions on travel and commerce, inflicting a crippling toll on Cuban society.
On December 17, 2014, fifty-three years later, President Barack Obama announced the United States will restore full diplomatic relations with Cuba. In a nationally televised statement from the White House, Obama said, “We will end an outdated approach that for decades has failed to advance our interests and instead we will begin to normalize relations between our two countries… These 50 years have shown that isolation has not worked. It’s time for a new approach… I do not believe we can keep doing the same thing for over five decades and expect a different result.”
I wondered why President Obama chose this particular moment to “normalize relations” with Cuba, especially as the proverbial “barbarians stand at the gate” rubbing their palms and licking their chops to take over the U.S. Senate. Obama had six years to “end the outdated approach and normalize relations” with Cuba when his party controlled the Senate. Is Obama merely grandstanding and showboating by announcing normalization of relations with Cuba to bring back luster to his faded presidency? Is he playing a game of in-your-face with the soon-to-be- Republican-controlled Congress? Is Obama drawing a line in the sand and telling the Republicans to get busy rowing up that famous creek without a paddle because he will be doing his own thing wiht Executive Orders for the next two years? Could Obama be using Cuba as a red herring to distract the power-drooling Republicans? Or could we be witnessing the dawn of an “Executive Presidency”? Is Obama trying to reinvent himself in his last two years in office as “Obama Invictus!”?
In 1936, the U.S. Supreme Court concluded (U.S. v. Curtiss-Wright) the U.S. president has broad powers to conduct foreign affairs. The Court held, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” The Court reasoned the president’s exclusive power to negotiate treaties and conduct warfare gave him significant and extraordinary powers to conduct foreign affairs. Following the 9/11 attacks, the U.S. Justice Department in confidential legal memos has emphatically reasserted this power claiming “the President [has] well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs.”
Last year, President Obama expressing his frustrations over the lack of Congressional cooperation on spending reductions said, “I am not a dictator… I am president, I am not king.” Does the fact that “the president is the sole organ of the nation in its external relations, and its sole representative with foreign nations” make him “a dictator, a king” in the field of foreign policy?
As a constitutional lawyer, I am intrigued by President Obama’s intended actions to normalize relations with Cuba. It seems he may be tiptoeing a minefield of constitutional and statutory controversies. How does he plan on navigating around six statutes that have straitjacketed and isolated Cuba for over one-half century including: the Trading with the Enemy Act of 1917 (which restricts trade with countries hostile to the United States); the 1933 Emergency Banking Relief Act (restricting any transactions in foreign exchange and banking between U.S. and Cuban financial institutions); the Foreign Assistance Act of 1961 (which authorizes the President to impose a total embargo on trade with Cuba); the Cuba Assets Control Regulations of 1963 (which broadly prohibits Cuba-travel related transactions); the Cuban Democracy Act of 1992 (which prohibits foreign-based subsidiaries of U.S. companies from trading with Cuba, travel to Cuba by U.S. citizens, and family remittances to Cuba); the Helms–Burton Act of 1996 (which restricts United States citizens from doing business in or with Cuba and mandates restrictions on giving public or private assistance to any successor government in Havana unless and until certain claims against the Cuban government are met); and the Trade Sanctions Reform and Export Enhancement Act of 2000 (which restricts exports to Cuba on a cash only sales paid in advance and financed by third country financial institutions and prohibits credit and debit transactions). Will President Obama disregard and ignore these laws and simply bypass them with his Executive Orders?
To establish full diplomatic relations with Cuba, President Obama will need to deal with the Senate which under Article 2, section 2 of the U.S. Constitution must give “advice and consent” to his ambassadorial nominee. He has about as much chance of getting his ambassadorial nominee approved by the Senate as has the proverbial man with a wooden leg escaping a forest fire. Last but not least, will Obama instruct his Secretary of State to remove Cuba from the list of “state sponsors of terrorism”. I would be tickled to know the legal justifications for removal of Cuba from the list! What’s good for the goose (Cuba) will have to be good for the ganders (Iran, Syria and North Korea [removed from list in 2008 during nuclear talks]).
Republican Florida Senator Marco Rubio, the prospective chairman of the Foreign Relations Committee’s Subcommittee on the Western Hemisphere, has vowed to derail any attempts at normalization of relations with Cuba. “I’m committed to doing everything I can to unravel as many of these changes as possible. This Congress is not going to lift the embargo.” Rubio, a Cuban-American, also said Cuban democracy activists “feel betrayed” by Obama. “He completely ignored them and threw them to the side in this whole process.”
First, I know exactly how Rubio feels. As an Ethiopian-American human rights advocate, I too feel betrayed by Obama. Though I wholeheartedly supported Obama in two elections to become the American commander-in-chief, I was deeply disappointed to find him the American diplocrat-in-chief. (I coined the word “diplocrisy” to describe the hypocrisy in American human rights diplomacy.) I trusted and believed Obama when he said, “Make no mistake: history is on the side of these brave Africans, and not with those who use coups or change Constitutions to stay in power.” But I did make a big mistake when I stood by Obama’s side!
Second, a big surprise for Rubio! This President is not only ready to lift the embargo, but is already doing so in various ways. It appears evident the President has decided to do an end-run on existing laws by immediately lifting restrictions on travel, commerce and financial activities with Cuba. New regulations are expected to be issued in the foreseeable future by the Treasury Department facilitating increased agricultural exports and banking. U.S. companies will be allowed, by Executive Order, to do business in Cuba and export previously prohibited machinery, equipment and other technologies. It is highly likely the State Department has already drafted the legal memos de-listing Cuba from the list of “state sponsors of terrorism”. The President is expected to authorize by Executive Order the establishment of an embassy in Havana, an act that does not require Congressional action or approval. Most likely, he will upgrade the U.S. Interest Section of the Embassy of Switzerland in Havana to a full-fledged embassy.
The Castro Brothers, the “African Brothers” and Brother Obama