Interview in Havana
By Francisco Aruca
On May 6, 2004 the Commission for Assistance to a Free Cuba, created by President Bush in 2003, submitted to the president a report with its recommendations for accelerating the downfall of the Cuban revolution. In an apparent electoral move to gain the backing of extreme rightist Cuban Americans in South Florida, Bush promised to implement several of its measures that target the Cuban family, particularly the right to travel to Cuba on family visits. One of the measures allows Cuban Americans only one trip every three years, instead of the previous annual visit. The new attacks against Cuba should be in force as of June 1.
Coincidentally the Cuban government hosted the 3rd. Conference The Nation and Emigration to discuss with Cubans who live abroad different matters of mutual interests, among them the new regulations that ease their travels to Cuba, with the objective o facilitating family relations and the ties with their country of birth. Over 500 Cubans who reside in 49 countries, among them 241 from the United States, attended the Conference on May 21 to 23, and met and discussed with top government officials on the issues on the agenda.
On Saturday, May 22, Ricardo Alarcón de Quesada, President of the Cuban National Assembly (parliament) gave a keynote address to the Conference in which he commented on the new measures and pointed out what seems to be a bungling error on the part of the Bush Administration.
The following interview with Mr. Alarcón de Quesada was broadcast on Tuesday May 25, by Francisco Aruca, director and host of Radio Progreso Alternativa, in his Miami program Babel's Guide.
Francisco Aruca (FA): In my opinion you may have lifted the lid from a Pandora's box, and have presented al the Conference what could be a very serious legal constitutional situation in reference to these measures. Would you comment on the issue?
Ricardo Alarcón (RA): I referred to one area of those measures that theoretically will be applied on June 1st. I am talking about the travel regulations. In order to fully understand we would have to go back to October 6, 2000. On that day, the Conference Report regarding the Agricultural Appropriations Bill was presented. Previously on both Houses -the House of Representatives and the Senate- an amendment had been voted regarding unilateral sanctions imposed by the US in terms of trade of foodstuff and medicine, with the aim of eliminating those unilateral sanctions. That included Cuba and other countries. At the end of a very complicated process the Conference Committee drastically changed the nature and the spirit of the original draft. Finally it authorized exports of American foodstuff to Cuba under very stringent conditions -cash payments, no credit and a number of other limitations.
But due to the efforts of some congresspeople, particularly Cuban Americans Rep. Lincoln Díaz-Balart and Rep. Ileana Ros-Lehtinen, working together with Tom DeLay and other House leaders, they managed to strengthen the embargo against Cuba, not just with the limits that they imposed on that restricted trade, but also because they codified the administrative regulations regarding travel to Cuba, which means that what until that moment had been executive privilege was transformed into law. I remember I watched Ms Ros-Lehtinen and Mr. Díaz-Balart on Miami TV claiming not just a victory, but a historic victory, the most important victory of their lives. Why? Because until that moment travel regulations was the only area regarding Cuba that remained in the hands of the executive. The Helms-Burton law took away from the administration the conduct of policy towards Cuba and converted it into a matter of law. That means that before restoring diplomatic relations, before having normal trade, exchanges, and so on, any administration will have to go to Congress and obtain a modification of the Helms- Burton law. But traveling was not covered by the law. I don't know the reason, perhaps they got so confident they forgot that area, and remember that during the 90s the Clinton Administration, the same president that signed into law the Helms-Burton bill, also created new areas for traveling, such as the people-to-people approach, which he believed was in the best interests of US policy, so as not to close down the doors between both countries, but to open them up, to facilitate travel and so on. In October 6, the Conference Committee discussed an agricultural bill that had a section 910 on travel to Cuba related matters. Essentially, section 910 stated that: first, it authorized travel for commercial sales of agricultural products. So they had to add a new license to the existing regulations. But then, immediately it came down to say that besides that new category and those existing categories for traveling to Cuba at that moment, there would be nothing more, no more traveling, no more categories. With that action they transformed what was until October 2000 an executive privilege into a law, froze it, transformed that area into "a stone", as President Clinton called it.
What happened on that day was the codification of the previous administrative regulations, specifically in relation with traveling to Cuba, making it impossible for any US administration to introduce any change in those regulations. Let me quote this little phrase from Section
910: "This Title shall take effect on the day of enactment of this Act, and shall apply thereafter in any fiscal year."
In other words, as Representative Ros-Lehtinen said, it was a necessary complement to Helms-Burton, to fill the gap they had left inadvertently in the law in relation to travel, because only traveling remained at an administrative level until October 2000.
FA: In your speech at the Conference at one point you quoted Senator Dodd, saying something like he predicted that those people would live to regret that action, precisely because they had taken away not only the power to make travel more flexible, but also the power to make tighter rules in relation to travel to Cuba. In other words, senators and congressmen from both parties said at the moment, "Hey, you are tying the hands even of the president who may want to toughen the traveling regulations to Cuba", just as Bush has done now.
RA: Let me quote the exact words of Senator Christopher Dodd. He said:
"With respect to the codification of existing travel restrictions on Americans wishing to travel to Cuba, I think this action is shameful and irresponsible. I predict the authors of this provision will live to regret deeply having taken away this and future administrations' discretion." It was the end of administrative discretion not for that fiscal year, but for any fiscal year.
FA: And not just for that president, but for any future president?
RA: For any future president. Dodd said that. But there were others. Senator Baucus from Montana, another Democrat, said: "To rub salt in the wounds, the Republican conferees agreed to codify into law the current administrative restrictions on travel to Cuba. That action removed the flexibility of this president and future presidents to liberalize or not to liberalize (the regulations)".
FA: It's crystal clear, then.
RA: Let's take the other side of the aisle, the Republicans. Congressman Sanford, who was a member of Congress at the time and at present is the Governor of South Carolina, was very active, as many other Republicans, in terms of ending the travel ban in general, for anybody. These were his
words: "By codifying the present travel restrictions, it prohibits this president or any future presidents from making changes to the current travel regulations."
FA: Of course, lawyers will have to examine this argument to see its legal merits, but basically the case you have made here in Havana is that the Bush Administration may have violated the law and may have, in a way, gone against the Constitution of the United States by implementing or trying too implement administrative measures that Congress has taken away from the president. Is that the case you are making?
RA: Definitely. Those quotes are from the session in Congress when the report of the Conference Committee was presented. At that moment the conferees explained the meaning of the bill, the intentionality. It was crystal clear that both sides saw it as taking a power away from the presidency. They were doing it on the eve of the election, which both sides believed they were going to win. A few weeks before the famous 2000 election. They were taking the authority away from the next president and the ones after that one, for they were making clear that it was not a one year legislation. It "shall apply to any fiscal year." From that moment on, no president of the US had any authority to eliminate or to reinforce, to liberalize or not the regulations on traveling to Cuba.
FA: And ignoring Congress this administration is trying to take that power back, although the law says, "You don't have it any more".
RA: I don't want to be rude, but technically speaking that's simply illegal. The administration is interfering in an area that is prohibited by law, a law that was welcomed by the same people that are now trying to deprive Cuban Americans from very fundamental rights Allow me to turn now to the October 8 Washington Post, when a very serious and respected journalist, Karen DeYoung, wrote an article on the issue. And she began her article quoting Representative Lincoln Díaz-Balart as saying that was "a tremendous victory". And Karen explains the "victory". She said: "The agreement also removes the president's ability to ease or tighten restrictions on American travel, freezing current regulatory bans on all but one annual Cuban American trip, and narrowing licensing of all others, and freezing them into law, despite the overwhelming House vote to do the opposite".
Remember that year the House voted precisely in favor of eliminating the travel ban altogether.
"'I think it's wrong', President Clinton said Friday. He also said that the situation had been frozen into 'a stone' and depriving the executive of any prerogative in that area."
FA: Mr. Alarcón, you have quoted from US Congressmen, you have quoted from The Washington Post. Do you have anything in relation to this issue that was reported in South Florida specifically?
A.: Well. I'm sure The Herald and El Nuevo Herald have plenty of statements from the Cuban American National Foundation, from Cuban American congresspeople, who were very talkative, because for them it was the most important victory in their careers, that action of taking authority away from the executive. But there was also more coverage, specially a Sun-Sentinel editorial on October 19. The editorial described what happened with these words: "The proposal also would take the power to set travel restrictions away from the president and give it to Congress". This is a very simple, straightforward way to describe it. Remember that piece of legislation was appended to an agricultural appropriations bill. It would have been extremely unadvisable for any politician, particularly in October in an election year, to oppose a bill that involves tens of billions of dollars for the farming community. That was part of the trick. But the Sun-Sentinel considered the importance of the issue of traveling, considered it so relevant that they even called on President Clinton to veto the bill. Allow me to quote the last part of the editorial. "President Clinton should be encouraged to stand tall against a bad idea, even if it means vetoing the Agricultural Spending Bill."
FA: It remains to be seen what lawyers and elected officials have to say about this, but in my opinion your arguments shed new light on this and other measures in relation to President Bush's policy on Cuba.
A. There are many fundamental issues involved. Of course, the most prominent one is the violation of human rights, of the individual family rights of Cubans, in Cuba and in the US. It's a violation also of the US Constitution. Cubans and Cuban Americans are discriminated against, and the US Constitutions prohibits any discrimination of US citizens or legal US residents. Cubans are the only ethnic group that has limits, even before this cruel attempt. Legally they have the possibility of visiting their country once a year, under a general license. And in addition Cubans could apply for specific licenses for coming to Cuba. That was codified by Congress on October, 2000. That is the legal situation. That legal situation, the current situation, is still a violation of their rights, because the federal government doesn't interfere in the relations of other ethnic communities -Irish Americans or Italian Americans, anybody. They can travel back and forth to and from their country of origin as they may wish, send remittances, whatever. Cubans have been discriminated against.
These measures that the administration wants to impose now against the law would make it even more cruel and more violating of the rights of those Cubans. But I think it's important to realize that apart from the importance that this issue has for us, for Cubans living over there or here, it is also a violation of other constitutional principles. It's a clear violation of the prerogatives of Congress. The foundation of the US Constitution is the so called "separation of powers". In exercising their power Congress passed a law in 2000 that took away any authority, any power from any president to introduce any change, any modifications on the travel to Cuba regulations. But if the president is able to impose his will he would be attacking the prerogatives of Congress and creating a very dangerous precedent that goes beyond the Cuba issue. Americans should be concerned about living in a country where law may mean nothing, where an administration such as the current one can ignore and violate what is clearly written into law and also attacking a fundamental principle such as the prerogatives of the legislative power. Could they get along with that -senators, congressmen, American public opinion?
FA: I believe your question is a very good way to end the interview. Now it's up to the readers to find an answer.