Communist Cuba owes U.S. taxpayers nearly $8 billion for stolen property. Cuba also owes a few billion more for looted art and antiquities as well as scores of human rights abuses for which there has not been an accounting.
As U.S. officials travel to Cuba to continue negotiations with the Cuban regime, interrelated but critically important issues such as property claims, rule of law, and human rights must be on the agenda.
Finally, it appears they might be. Next week in Washington, U.S. and Cuban officials will meet to discuss property claims. The Obama administration must make clear to Cuba’s hardline Communists that payment of certified claims is non-negotiable and, pursuant to U.S. law as well as policy, it must be met as one of several key conditions before economic sanctions are eased.
Ever since President Obama announced his appeasement policy on December 17, 2014, Cuba’s creditors have forgiven billions of dollars in sovereign debt, U.S. travel to the island has spiked, and investors are scouring the Caribbean gulag. In other words, Obama has made it easier for the regime to stay in power. Meanwhile he has failed to deliver on helping the Cuban people and until now has done nothing to address the issue of compensation for the largest-ever confiscation of privately held American property in a foreign land.
As a matter of Cuban law, the 1959 Communist takeover and theft of U.S. and other property was illegal. Indeed, the first official act of the Fidel regime was to cancel the Cuban constitution. For added drama, on that same day, it murdered close to 100 persons associated with the prior government. After destroying rule of law, it went after the Americans and the religious, principally the Catholics, by using property confiscations.
All Catholic and other religious schools were shuttered and the lands taken for the commons. Priests, nuns, and religious were arrested, some tortured and killed, and most expelled. Private property was used, and continues to be used, as a weapon.
A purge of American businesses and families was part of the Communist takeover. Over the years, some 8,000 businesses and families have filed claims with the U.S. government to seek justice for these unlawful, criminal acts. Of these claims, the 5,913 that were certified by an independent commission at the Department of Justice represent the largest ideologically driven confiscation of U.S. property in the Americas and, likely, the world. With interest, the claims are worth about $8 billion. Cuba can pay, of course; regime officials have been robbing the country blind for decades. However, for just as long they’ve been looking for a way out because paying these claims would, essentially, signal defeat.
Displacing people from their homes, properties, and businesses is a serious and illegal offense. As a matter of law, a government can use its eminent domain power for a legitimate public purpose so long as it pays compensation. But that is not what happened in Communist Cuba. The regime did it to terrorize and score political points. It was a scheme designed to create a Communist paradise in the Americas — a scheme that failed and, in the process, people died, human rights were abused, legacies and lives destroyed.
We cannot forgive and forget, as the Obama administration would prefer. As I share with clients and potential clients almost weekly, “Justice does not have a ‘sell-by’ date.” Rather than focusing on these and other matters of import to U.S. national interests, Obama officials keep dancing with the enemy. Meanwhile, ruling Communists officials are smiling all the way to the bank.
The solution, by the way, is quite simple. Pursuant to long-standing international law norms, when a nation-state takes property from a foreign national it either returns the property, offers restitution or, the usual course of action, it pays for what it stole. The United States created a statutory process after World War II that helps Americans collect on monies owed by rogue regimes such as Cuba. Under the International Claims Act, the quasi-judicial body at the Department of Justice that reviewed the Cuba claims “certified” 5,913 to be valued at $1.9 billion principal; tack on the interest due that figure increases to $8.0 billion. A claimant can take the payment or seek other compensation from Cuba such as restitution or, under certain conditions that may require U.S. government authorization, trade the claim for market access in a future Cuba.
American families holding certified claims have been waiting close to sixty years for justice and deserve a whole lot more from their government than “talking points foreign policy” that places Cuban interests ahead of U.S. national and security interests. Resolution of the property claims issue can, and must, move hand in hand with other issues of U.S. interest with respect to Cuba. There is a transition roadmap in place, a list of conditions that Cuba must meet before the U.S. will ease the economic embargo. Congress needs to step up and do right by these families as well as the people of Cuba. They must stop the Obama administration’s regulatory overreach, in some cases lawlessness, to undermine economic sanctions and, in essence, appease the regime.
The resolution of the U.S.-Cuba property claims is an essential part of normalized relations with Cuba, one that will impact well beyond Cuba. Done right, it will send a clear signal to dictators and would-be dictators that America stands by its taxpayers, no matter how long it takes. Sooner or later, you’ll pay. It will also help set the stage for a future transition government in Cuba that, rather than deal with endless legal challenges, will put this issue behind them. Indeed, a prompt and full compensation of U.S. taxpayers will signal to foreign investors that Cuba is serious about political change and committed to market systems to help rebuild the Communist-ravaged island.
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