Can Obama Lift the Embargo on Cuba Without Congress in Effort to Normalize U.S.-Cuba Relations?

December 18, 2014


Robert Muse

a Washington, D.C.-based lawyer who is an expert in U.S. laws relating to Cuba. His recent piece published in Americas Quarterly is "U.S. Presidential Action on Cuba: The New Normalization?"

Michael Ratner

Ratner president emeritus of the Center for Constitutional Rights and co-author of the book Who Killed Che?: How the CIA Got Away with Murder with Michael Steven Smith.

Peter Kornbluh

directs the Cuba Documentation Project at the National Security Archive at George Washington University. He is the co-author of the book Back Channel to Cuba: The Hidden History of Negotiations between Washington and Havana.

We look at the details of the new normalized relations between the United States and Cuba, which include an easing of restrictions on banking, investment and travel, and discuss whether President Obama can lift the embargo on Cuba without congressional approval. We speak with Robert Muse, an expert on U.S. laws relating to Cuba and attorney based in Washington, D.C. His recent article published in Americas Quarterly is "U.S. Presidential Action on Cuba: The New Normalization?" We also speak with Michael Ratner about what will happen to the U.S. military prison in Guantánamo Bay, Cuba. Joining the discussion live from Havana is Peter Kornbluh, director of the Cuba Documentation Project at the National Security Archive at George Washington University.


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report, as we continue our roundtable discussion. Martin Garbus with us here, he’s on the Cuban Five legal team; Michael Ratner, president emeritus of the Center for Constitutional Rights; and in Havana, Cuba, we’re joined by Peter Kornbluh of the National Security Archives. And we are joined in Washington, D.C., by Robert Muse, who actually just came up from Havana yesterday, a lawyer based in D.C. who’s an expert in U.S. laws relating to Cuba. His recent piece published in the Americas Quarterly, "U.S. Presidential Action on Cuba: The New Normalization?"

So, tell us about hearing this news, Robert Muse.

ROBERT MUSE: I’m sorry, I’m having a little trouble hearing you. Could you repeat—

AMY GOODMAN: Oh, tell us about hearing the news—where were you?—about the announcement of the normalization.

ROBERT MUSE: I was having breakfast with Peter Kornbluh in the Hotel Nacional. And we were told that Alan Gross had been—

AMY GOODMAN: In Havana, Cuba.

ROBERT MUSE: That’s right, in Havana. And we learned, through—somebody came in with it, had picked up a news release that Alan Gross was being released. And then, we got—we had early access to the fact sheet coming out of the White House on what actually was going to be done.

And I want to compliment the Obama administration on going much larger and further than any of us expected it would go. There was a hope and an expectation that the Obama administration would do some things in the new year, but I must say, thanks to his national security team, they did go further—renewing diplomatic relations, a commitment to renew Cuba’s inclusion on the terrorist list, which will conclude in six months, and I think it’s pretty much understood that Cuba will be taken off.

The thing that most interests me is the embargo, the commercial embargo on Cuba, and how far the administration will go. It’s a little bit unclear. They talk about rule makings of both the Commerce Department and Treasury Department. But you can see the broad outline of what they’re doing, and it falls under the heading of adjusting the regulations to more effectively empower the Cuban people.

So, I think it’s worth being clear what is contemplated and what is not right now. First, investment in Cuba is still prohibited. They talk about donative remittances to Cuba. So you can give money to the small Cuban private sector to establish businesses, things of that sort, but you can’t really invest in Cuba. The U.S. commercial sector will be allowed to sell to Cuba, but in what appear to be quite limited ways right now—agricultural equipment, goods to the small Cuban private sector. That doesn’t seem to contemplate equipment or infrastructure development so much as perhaps items that could be sold by the emerging Cuban private sector. Building materials can be sold to Cubans for use in private construction. So, a lot of this is going to depend on how the rules are written, but it’s certainly encouraging what the president has done so far.

AMY GOODMAN: Can you talk—respond to Michael Ratner? Michael, you said you feel that the embargo could be lifted not by an act of Congress, but by the president himself?

MICHAEL RATNER: Well, I was saying that I’d be interested in hearing Peter’s view, but, yes, he can issue regulations, as Peter is talking about—

AMY GOODMAN: Robert Muse.

MICHAEL RATNER: —licenses, etc., that would allow a lot more goods, etc., and services, investments in Cuba, without actually getting Congress to move on the embargo. He’s only gone a certain distance on that so far. He could go a lot farther. And some examples, I gave you. For example, he could open up travel completely. He could do a number of other things by regulation and licensing. And so, Peter, who’s an expert on this—


MICHAEL RATNER: I’d be interested in—Bob, I’m sorry.


MARTIN GARBUS: It’s hard to—

AMY GOODMAN: Your response to that, Bob?

ROBERT MUSE: Well, Michael is correct that something missing is reciprocity in trade. Since 2000, the U.S.'s farmers have been able to sell agricultural commodities to Cuba. That's broadly defined. It includes everything from chewing gum to wine, can be sold to Cuba. But Cuba can’t sell anything to the United States yet. They have allowed U.S. travelers to Cuba to bring back $400 worth of Cuban goods as accompanied baggage. So they have to travel to Cuba, and they bring it back with them. And they can bring up to $100 worth of tobacco and alcohol—rum, of course, is what they’ll be bringing. But I would like to see the administration move very quickly to some reciprocity in agricultural sales. Cuba produces sugar. It has a number of agricultural potential for exports to the U.S.

I endorse completely what Michael said, that the president’s ability to lift the embargo through licensing and rule making is essentially unfettered. The Helms-Burton Act—and it would require a longer discussion—comes into it at the very end, but the principal role of Congress is going to be to tidy up all the loose ends of permanent trade status for Cuba, investment protection agreements and so on.

Something I would like to alert your viewers to is there’s going to be some pushback coming. We do have a Republican Congress now. I would expect to see a number of amendments inserted into appropriations bills that will try to limit presidential discretion in this area. And typically they’ll attach it to must-pass legislation, to put President Obama in a very difficult predicament. If he vetoes something he really wants, because it has some objectionable provision relating to Cuba, that’s the dilemma they would like to put the president in. And I think it’s going to require great vigilance to try to—from various sectors, including the U.S. business community, to try to prevent that happening.

AMY GOODMAN: Bob Muse, aren’t Republicans divided, though? I mean, there are the very vocal ones, like the Florida senator, Marco Rubio, who says he’s going to stand in the way of nominations, confirming nominations, etc. But you have, for example, politicians in places like Alabama that really want business, agricultural trade with Cuba, and the Chamber of Commerce, you know, the corporations that have felt that they are prevented from going to Cuba, like corporations from other countries around the world, you know, have a leg up on them.

ROBERT MUSE: It’s a good point. I think we should be clear that the pro-embargo elements in Congress has become much more bipartisan than it was, say, 10 or 15 years ago. Half the Black Congressional Caucus, which is uniformly Democrat, now vote in favor of the Obama—sorry, of the embargo. That’s been a product of very carefully targeted PAC contributions over time. So, there’ no—I say that we can expect this because the Congress is now Republican-controlled. That doesn’t mean a lot of Democrats don’t support the embargo. It just means that senior Democrats, like Pat Leahy, Dick Durbin, who traditionally took out these objectionable amendments in conference, legislative conference, won’t be empowered to do that anymore. But it’s a misapprehension to think that Democrats in Congress are uniformly in favor of lifting the embargo on Cuba.

AMY GOODMAN: It is interesting to also talk about the U.S. relationship with another part of Cuba. The U.S. has put, you know, Cuba on the U.S. terrorist list. But what about the U.S. property that’s actually Cuban property—Guantánamo? Michael, as we begin to wrap up this discussion, what happens with Guantánamo?

MICHAEL RATNER: Well, Guantánamo is there on what we call a bilateral lease, that it’s a lease between the United States and Cuba. It’s like $4,000 or 4000 pounds of gold or something, dollars in gold. Fidel doesn’t cash the checks, or now Raúl doesn’t, or the government doesn’t. And it takes both parties to break the lease. There should be a demand—there always has been—to return Guantánamo to Cuba. It’s part of the sovereign territory of Cuba. It’s also, of course, as we speak, a political and legal outrage—still over 139 people there, 70-some cleared for release, and it was essentially run as a torture chamber. It had a black site at Guantánamo. And so now you’re seeing this opening with Cuba, and yet you’re seeing the United States using this as essentially an offshore detention, interrogation and, at one time, torture facility. So, the demand should be here is to obviously close Guantánamo, for starters, and secondly, to ultimately return Guantánamo to Cuba.

AMY GOODMAN: Talking about global relations, the U.S. relations with Latin America, Peter Kornbluh, Raúl Castro is set to participate for the first time, the Cuban president, in next year’s Summit of the Americas in Panama. As we wrap up right now, let’s wrap up in Havana, Cuba, where you are, Peter, about the significance of this moment.

PETER KORNBLUH: Well, I think we’ve got to give a lot of credit to the Latin American nations—Panama, which is hosting the next Summit of the Americas in April, big countries like Brazil and Mexico and Argentina, who have been pushing the Obama administration for years now to normalize relations with Cuba. The Latin American countries basically said to the Obama administration, "We are going to boycott the next summit unless Cuba is included. You are going to be isolated, not Cuba." And so, Raúl Castro has been invited. He has accepted. As part of the package of changes of policy that President Obama announced yesterday, he said, "I am going to the summit." He said, "I’m going to bring some dissidence and voices of democracy with me, but," he says, "I am going." And so, for the first time, you have an opportunity, in 55 years, for the president of the United States and for the president of Cuba to sit around a table, discuss multilateral and bilateral relations.

AMY GOODMAN: And, Peter—Peter, we just have 20 seconds—

PETER KORNBLUH: Currently, yesterday’s announcement by both Cuba and the United—

AMY GOODMAN: —but I want to ask about the significance of the pope weighing in on this agreement.

PETER KORNBLUH: The pope was a secret intermediary, an interlocutor. In our book, Back Channel to Cuba, Bill LeoGrande and I write about all the intermediaries and interlocutors over these years. And clearly, back-channel diplomacy led to where we are today. But now we’re in a situation, a new era. It’s going to be open diplomacy, overt diplomacy and normal communications between Cuba and the United States, hopefully from now on.

AMY GOODMAN: Peter Kornbluh, I want to thank you for joining us from Havana, from the National Security Archives; Martin Garbus, on the Cuban Five legal team; Michael Ratner of the Center for Constitutional Rights. And thank you to Robert Muse, joining us from Washington, D.C.

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