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This article is the first in a two-part series on Cuba’s redesignation as a State Sponsor of Terrorism written by Robert L. Muse, a lawyer in private practice in Washington, D.C. who has written widely and testified on U.S. laws relating to Cuba before the U.S. Senate and House of Representatives; the Canadian House of Commons; the U.S. International Trade Commission; and the External Economic Relations Committee of the European Parliament (Brussels).
Read the second article in the series: “Part 2: The unlawful basis for Cuba’s designation as a State Sponsor of Terrorism.“
In the final week of his tenure, Secretary of State Mike Pompeo redesignated Cuba as a State Sponsor of Terrorism. Obviously, the list is punitive by design, so the designation of a particular nation is intended to have distinctly adverse economic consequences.
Despite adverse intentions, the economic sanctions that Cuba is subject to as a result of its designation sound worse than they actually are. This is because the U.S. embargo on Cuba already prohibits trade with the island nation. Whenever a decision is made to relax that embargo, the president also has the authority to rescind any restrictions imposed by Cuba’s inclusion on the terrorist list by simply revoking its designation, as President Barack Obama did in May 2015.
Outside of the economic ramifications, there is also a legal consequence from Cuba’s redesignation as a State Sponsor of Terrorism that will not be so easily remedied. Once on the list, a country is subject to lawsuits in U.S. courts that would otherwise be dismissed on the basis of sovereign immunity. It is the court judgments, resulting from such suits, that have long-term implications for U.S.–Cuba relations.
A country that is designated a State Sponsor of Terrorism may be sued under the Foreign Sovereign Immunities Act for “extra-judicial” killings and personal injuries if it was (i) designated as a sponsor of terrorism at the time of the killing or personal injury and (ii) the victim was a U.S. citizen at the time of death or injury. More than USD $4 billion has been awarded by Florida courts against Cuba as a result of lawsuits that plainly do not meet the subject matter jurisdictional requirements of the statute. Interest on those awards under Florida law is an astonishing 11 percent per year until satisfied, according to §55.03 of the Florida Code.
The cases began with Weiniger and McCarthy in 2006. The first involved the death of a man who bombed and strafed Cuba in a B-26 painted in Cuban Air Force colors. He had flown from a CIA-controlled airstrip in Guatemala to provide air cover for the Bay of Pigs invasion. McCarthy, who was charged with smuggling weapons into Cuba, was executed during the time of the Bay of Pigs. Both were killed in 1961—importantly, though, Cuba was first designated a State Sponsor of Terrorism in 1982.
As legally deficient jurisdictionally as the Weiniger and McCarthy cases were, they nevertheless emptied the bank accounts of the government of Cuba that had been frozen in New York since the early 1960s. They also demonstrated to contingency attorneys in Miami that Cuba’s designation on the terrorism list was enough to generate massive awards against Cuba in the Florida courts, even if the requirements of the Foreign Sovereign Immunities Act were not met. It is the lawyers’ hope that they collect their fees out of the attachment and seizures of Cuban-owned property that enters the United States.
Because the awards are without legal basis under controlling U.S. law, Cuba could simply refuse to pay them if they are raised by the U.S. in future claims negotiations. However, a refusal to pay the U.S. court awards will leave every agency or instrumentality of the Cuban government (and any private entity in a joint venture or contractual relationship with Cuba or one of its agencies) at risk of someday having any and all of its property that enters the U.S. attached in execution of those awards (e.g., Cubana Airline’s planes; ships; cigars from Cuba’s state tobacco monopoly; bank accounts set up to pay for U.S. exports, etc.). It is difficult to conceive of a larger obstacle to bilateral trade between the U.S. and Cuba.
This outcome was exacerbated in 2008 when the Foreign Sovereign Immunities Act was amended to add a new subsection that allows for the attachment and execution on any property of a foreign state with a §1605A judgment against it (i.e., a judgment against a “terrorist-sponsoring nation”), even if the government instrumentality that finds its assets in the U.S. attached had no connection to the events that were the basis for the court’s award, and even if there are other non-state joint or beneficial owners of that property. As a result, attorneys for families with judgments against Cuba have tried to seize telephone royalties Cuba owed U.S. telecommunications companies. They have also tried to seize money from U.S. airlines that fly to Cuba, claiming the money will be paid to the island as landing fees. Finally, they have tried to seize Cuban-owned trademarks for rum and cigars.
When Cuba was removed from the list by the Obama administration in 2015, eleven judgments had been entered against Cuba. A brief review of a few of the judgments against Cuba illustrates their infirmities. In April 2008, a jury awarded the representative of the estate of a man named Rafael Del Pino USD $230 million. Not long after, a judge awarded the family of a man named Aldo Sera USD $94.6 million. Both judgments were entered in Miami-Dade County Court.
In the first case, it was alleged, in a very confused and oddly phrased complaint (e.g., “At all times relevant hereto, Rafael Del Pino was executed by hanging”), that Del Pino, who had been “a friend of Fidel Castro and was involved in the Cuban Revolution,” was “executed” in 1979. According to Hugh Thomas’ history of Cuba, Del Pino acted as a paid informant for the Batista dictatorship, not as a friend to Castro. (His “involvement in the revolution” seems to have been informing Batista’s police agents of the location of an arms cache stored in a house in Mexico that was to be used in Castro’s Sierra Maestra campaign). According to one historical account, Del Pino left for the U.S. after the incident in Mexico. He returned to Cuba “in 1959 to lead an abortive expedition against Castro and to receive a thirty-year sentence.” Evidently, he died while in prison.
In the second case, Aldo Vera was the “former Chief of Police of Havana” whose relatives claimed he was murdered by “Cuban agents” in Puerto Rico in 1976. Before his death, he organized and ran a paramilitary group (the Fourth Republic) with the objective of violently overthrowing the Cuban government.
In 2007, USD $400 million was awarded to the family of a Cuban and U.S. dual national named Fuller, who was born and lived his entire life in Cuba, where his grandparents had immigrated. In 1960, he traveled to Florida to organize an “invasion of Cuba” by four Americans and twenty-three Cubans. He was apprehended and executed.
Another case in 2007 awarded a Cuban plaintiff named Jerez USD $200 million. He was imprisoned in 1964. It is unclear when he was released, but the judgment states that he moved to the United States in 1980 and was naturalized as a U.S. citizen by 1993.
Again, Cuba was not designated as a State Sponsor of Terrorism by the State Department until 1982. That means it was not susceptible to suit until three years after Del Pino died, six years after Vera’s death, and at least twenty years after the death and maltreatment alleged in the 2007 cases of Jerez and Fuller.
Seeing as the courts of Florida have continuously failed to require litigants to demonstrate that they qualify to sue Cuba, President Joe Biden must promptly remove Cuba from the list of terrorism-sponsoring nations if he is to avoid further damage to the prospects one day of normalized commercial relations with the country.
Robert L. Muse is a lawyer in private practice in Washington, D.C. He has written widely and testified on U.S. laws relating to Cuba before the U.S. Senate and House of Representatives; the Canadian House of Commons; the U.S. International Trade Commission; and the External Economic Relations Committee of the European Parliament (Brussels). He has spoken at many universities about U.S. law and policy regarding Cuba, including Columbia, Georgetown, Harvard, Fordham, and the Universities of California, Georgia, North Carolina, and Havana.