Cuba policy in a second Obama term

Shadow Government/  José R. Cárdenas 

Critics of current U.S. policy towards Cuba have already begun speculating what unilateral changes may be in store for that contentious relationship during President Obama's second term. By winning the state of Florida -- home to the highest concentration of Cuban exiles -- despite implementing some initiatives in his first term that were opposed by Cuban Americans in Congress, President Obama, in their view, can be aggressive in further liberalizing policy without fear now of any political fallout (although widely reported exit polls that suggested up to 48 percent of Cuban Americans voted for Obama have been debunked by CapitolHillCubans.com).

Yet however the numbers play out in Florida, frankly it is no more than irrational exuberance to expect any significant change in U.S.-Cuba relations over the next four years -- that is, barring the deaths of both Fidel and Raul Castro.

In the first place, the Cuban American bloc remains solid in Congress. In the Senate, the formidable duo of Sens. Bob Menendez (D-NJ) and Marco Rubio (R-FL) has been augmented by Senator-Elect Ted Cruz (R-TX) to keep the administration honest on policy. In the House, anyone who believes newly elected Joe Garcia (D-FL) is going to carry the banner of appeasement is sorely mistaken. He favors family contact, not overturning the embargo.

Secondly, critics have convinced themselves that if it weren't for the Cuban American lobby, the U.S. would have long ago reached an accommodation with the Castro dictatorship. What they refuse to recognize is that the biggest impediment to any fundamental change in the relationship is the absolute unwillingness of the dictatorship to undertake significant reforms that would put pressure on U.S. policymakers to reciprocate with policy changes.

That said, to contemplate any serious re-evaluation of relations on the U.S. part as long as the regime systematically represses the Cuban people - to say nothing of the continued unjust incarceration of U.S. development worker Alan Gross -- and relentlessly continues to thwart U.S. interests in international fora is just self-delusion.

Moreover, even in the space the administration thinks it may have some flexibility on the issue -- expanded travel, supporting micro-enterprises, and increased agricultural sales -- there are complications. The 1996 Cuban Liberty & Democratic Solidarity Act (a.k.a., Helms-Burton) is still on the books and it states that anyone improperly using property illegally confiscated from U.S. citizens (including naturalized citizens of Cuban descent) can be sued in a U.S. court of law. While it is true that the "right of action" has been suspended by successive administrations, the law still holds that anyone using or accessing those properties is liable.

Will a U.S. administration sanction activity that might violate the letter and spirit of U.S. law? For example, what happens when a U.S. tour group traveling under a license as part of the administration's expanded travel program entertains itself at a venue illegally confiscated from its original owners? Or, what happens when a U.S. agricultural company sells its products to Cuba and has to utilize a port, a dock, or otherwise come into some contact with what U.S. law considers stolen property?

It matters little what anyone thinks about the matter; the law is the law. I'm not a lawyer, but one has to wonder how long U.S. law can recognize a wrong was committed against U.S. citizens without giving them the opportunity to redress it. No doubt some creative attorneys are thinking about the same thing.

So, advice to critics of U.S. policy towards Cuba is to re-cork the bubbly. Absent any significant change in Havana, including the earthly expiration of Fidel and Raul Castro, the Holy Grail of unilateral change in U.S. policy is unlikely to be forthcoming. Their energies should instead be directed towards convincing Cuban leaders to establish a concrete rationale as to why any U.S. administration would need to re-evaluate the relationship.