Una tremenda corte

Imagine that there’s a public policy problem – call it The Problem – that is rooted in actions taken by the U.S. government toward some U.S. citizens 50 years ago.

Imagine that some of those U.S. citizens emigrated, and the foreign government where they reside is now interested in The Problem. The foreign government pays one of its universities to study The Problem. Its study team concludes that there is no basis in international law for devising a “bilateral system” to solve it. It belongs entirely within the U.S. legal system.

So, pursuant to the university’s recommendations, and notwithstanding the fact that there’s no law or treaty that obliges the United States to treat The Problem with any other government, the foreign government proposes that the United States agree:

• to create a special U.S. court to deal with The Problem, and nothing else;

• that the court will consist of twelve judges who will be chosen in consultation with the foreign government, that no more than half the judges on this American court will be Americans, and the rest will be foreign;

• that the United States agree to the foreign government’s ideas about the system of law and the administrative rules to follow;

• that the chief judge will decide where the court will be based, but that decision shall not preclude the court from holding sessions outside the United States;

• that once the judges are named, they can only be removed “with the concurrence of both governments,” and if a judge is removed, a new judge can only be placed on the court “with the concurrence of both governments.”

Can you imagine the United States agreeing to such a thing?

No?

Well, maybe you weren’t educated at Creighton University in Omaha, Nebraska.

Creighton, the alma mater of a former USAID Latin America administrator, got a $375,000 USAID grant to study possible solutions to property claims in Cuba – both those involving U.S. corporations and citizens, and those involving Cubans who later became U.S. nationals. Creighton’s study team consulted lawyers for some of the most prominent Cuban American claimants.

Creighton published its study last week. Creighton will sell it to you for $45.00, or you can get it from the Miami Herald’s website for free (pdf, full report of 280 pages, or 10-page summary).

The court described above is Creighton’s solution to claims of Cubans who later became U.S. nationals. Creighton made clear that because the claimants “were nationals of Cuba when their property was expropriated,” it’s a Cuban issue and there is no international law angle to it. That makes sense, since the properties are located in Cuba, they were owned by Cuban nationals, and the Cuban government took possession.

I don’t want to be too hard on Creighton – its study is thorough, giving a good description of Cuba claims issues and the way other countries have resolved similar issues. It also gives a realistic assessment of the situation in Cuba today: an “apparently orderly succession from Fidel to Raúl Castro” has “already played itself out,” and “the short-term scenario for the island suggests a continued consolidation of the succession.”

Creighton’s study seems to assume that large numbers of Cuban Americans will pursue claims; I think that assumption is dubious. Nonetheless, and notwithstanding the fact that there’s no legal basis for forcing Cuba to resolve these claims, the study argues that Cuban American claimants “should not be ignored.”

Its reasoning is purely political. Cuban Americans, the study says, brought about Helms-Burton, achieved a special immigration status for themselves, assure Radio Marti funding, and “leveraged millions of dollars in federal money to support democracy programming for Cuba.” If claims are not resolved, “their political and economic power could be turned against stabilizing a new government in Cuba, much to the detriment not only of the island, but also to potentially fruitful Cuba-U.S. relations. Thus, the positive aspects of including this group in a broader property claims settlement policy far outweigh the general lack of domestic or international legal justification for doing so.” Not a very flattering portrait of Cuban Americans.

Creighton offers its study as a mere “template” for the U.S. government to use in the future, and it offered a set of detailed potential solutions. And I certainly agree that one day, Cuba will have to address the issue of property claims, and it should do so. Creighton described an ideal solution, not a political or diplomatic strategy.

The problem is that this issue is so politically charged inside Cuba that to handle it the wrong way, or even to discuss it the wrong way, is to set back any chance of resolving it at all.

There are two main problems with Creighton’s proposals. First, unless someone in the Administration rejects them outright – fat chance – they will be viewed in Cuba as if they are those of the U.S. government. And the proposals now join a series of Administration statements that were are made as if Cuban history did not exist, and as if Cuban nationalism did not exist.

Cuba has big problems. Cubans know it, and they talk about them in lots of different ways. But if you are in such a conversation, and you introduce the idea of an American role in a solution, red flags go up, understandably, because the U.S. role in Cuba’s history has not always been benign. Cubans are not necessarily reassured if they know Cuban Americans are the driving force behind a U.S. proposal. And if you use language like Creighton’s – its description of the court to treat Cuban American claims reads like a court order – you have changed the subject completely. Cuban sovereignty, not friendly assistance, is now the subject at hand.

We can be assured that every lawyer in Cuba, and many more Cubans, will soon read about the Bush Administration’s proposals for a Cuban court, half of whose judges must be foreign nationals, and that must be free to come and hold sessions in Miami in order to address claims by Cubans who live there.

It’s easy to assume that because Cuba’s government invokes Cuban nationalism so much, that it is a phony sentiment. But in fact Cuban nationalism long preceded Fidel Castro, and it will long outlive him. A long list of American blunders in Cuba can be traced to a complete disregard of that political fact. Creighton’s scholars, with good intentions, have just published the latest.