New Cuba travel advisory

The State Department has downgraded its Cuba travel advisory, urging travelers to exercise “increased caution” and no longer recommending that Americans “reconsider” travel to the island.

In the advisory, the State Department continues to say that “attacks” against U.S. diplomats took place in Cuba even though officials have arrived at no explanation for the harms that befell our personnel. Diplomats at multiple posts in China reported similar symptoms, but no attacks have been alleged there.

A conviction in Havana with "due process" (Updated)

To its credit, the Trump Administration has maintained law enforcement cooperation with Cuba, holding regular dialogues and even building on some of the work of its predecessors. This fits with its border control/homeland security emphasis, and it surely rubs some of its political supporters the wrong way.

We now have details on the most notable instance of this cooperation, thanks to this Miami Herald story on the conviction of a defendant for a 2015 murder in Palm Beach. What is unusual is that while the crime took place here, and local prosecutors amassed evidence against the accused, the trial took place in a Cuban court, with Cuban prosecutors presenting evidence gathered in Palm Beach.

This is apparently due to the fact that the defendant, a Cuban national, was arrested in Cuba at the request of the United States through Interpol, but the Cuban government would not turn him over because of his Cuban nationality.

At some point, Cuba offered and the United States agreed to “transfer the prosecution” to Cuba, as the Herald puts it (on this part of the story, no details have emerged). A conviction was obtained in late May, and the convict is serving 20 years in a Cuban jail.

There has never been a case such as this, where U.S. authorities provided evidence that allowed Cuban prosecutors to bring a case in Cuban court for a crime committed outside Cuban territory – and in so doing, confiding in the Cuban judicial process to render a fair verdict.

To make it explicit, the Justice Department told the Herald something you would never expect from a Republican Administration: “The defendant was provided the procedural and due process rights afforded to criminal defendants under Cuban law, to include the right to counsel and cross-examination, and to review the evidence against him.”

The U.S.-Cuba Memorandum of Understanding on law enforcement, signed just days before President Obama left office, expresses a mutual intention to collaborate in the prosecution of a list of specific crimes and of “other transnational or serious crimes under jurisdiction of the Participants” (see Section III.1).

It’s hard to imagine a new, full-blown U.S.-Cuba extradition agreement that would replace the 1904 treaty that has never been abrogated, but has been a dead letter for six decades. In this case, with its very particular circumstances, the cooperation arrangements now in place yielded a result.

Which leads me to wonder if the Administration views this as a special action for this specific case, or if there is a policy decision that could lead to similar actions in the future. If it’s the latter, and if Cuba is on board, it could lead to trials of Medicare scammers who have fled to Cuba.

The State Department’s July 10 statement made a brief reference to this case, and I wrote about it here.

Update:

The Palm Beach Sherriff’s office issued a statement saying that county prosecutors traveled to Cuba to work with Cuban prosecutors, and one of its detectives testified at the Havana trial. It is the first time that “a Cuban citizen was put on trial in Cuba for a murder committed in the United States,” the statement says. 

And in another Florida case, this one involving vehicular manslaughter, a Cuban witness was allowed to provide video testimony from Cuba, where he exculpated the defendant and inculpated himself (Herald).

 
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“New bilateral cooperation” in law enforcement

Well this is interesting, and good news: The United States and Cuba held a fourth set of talks in Washington on law enforcement, after which the State Department’s statement mentioned “new bilateral cooperation that resulted in the conviction of a Cuban national who murdered an American citizen and who had fled prosecution in the United States.” Cuba’s statement was less specific, referring to cooperation that has enabled the “prevention of crime and the prosecution of violators of the law.”

For some time there has been discussion in Havana of a person who fled to Cuba after being accused of committing a murder in Miami. After talks between the two governments, the story goes, it was decided that the person would be tried in Havana; he was tried with evidence provided by U.S. authorities, and was convicted in May. I have found no confirmation of these details, nor any court documents. But with the U.S. statement, it seems that the story is starting to come out.

There are several points of interest here.

Law enforcement cooperation has been going on for decades, mainly involving drugs and alien smuggling cases. The Obama Administration brought greater structure and regularity to these contacts, and the Trump Administration has continued this process and built on it, noting that “new bilateral cooperation” made the conviction possible.

It would be good to get legal records or some official account of the legal process in Cuba to see how U.S. evidence was employed in the prosecution, and how the defense functioned. Also, is it possible under Cuban law for a Cuban to be tried in Cuba for a crime committed abroad, or was it necessary to bring charges for related crimes committed in Cuban territory?

There are many obstacles to establishing functioning extradition agreements between the United States and Cuba. Among these are U.S. distrust of Cuba’s court system, and U.S. reluctance to assume a commitment to send persons to a place where they will not get a fair trial. The obstacles are not going away soon, so extradition agreements remain a distant prospect. But in this case, the U.S. side is clearly pleased at a conviction obtained in a Cuban court. Will this be a precedent, and could it lead to action against Medicaid scammers and others who have fled charges in the United States?

In related news, deportations to Cuba are up under Trump, according to New Times.

Odds and ends

·      Student Emma Gonzalez is attacked for having a Cuban flag patch on her sleeve at the March for Our Lives. “Idiots” is the right word, from New Times.

·      Granma: a deal to bring Cuba’s diabetes drug Heberprot-P to the United States for clinical trials.

·      From Larry Press, interesting speculation on future steps in Internet development. In Granma, an outline of what is being done now (English here).

·      Granma: In Fort Lauderdale, a U.S.-Cuba dialogue on oil spill response.

·      Cuba’s likely next president calls on the press to, as this article paraphrases, “stand up to the imposition of a standardized culture that breaks with the historical memory of peoples and fractures identities, also as a method of domination.” Elsewhere, he calls for emphasis on learning English, “in spite of the opposition by some.”

The embassy decision: keep it small

So here’s Secretary Tillerson’s verdict: the U.S. Embassy in Havana will operate with a staffing level “similar to” the minimal presence we have now, and diplomats will not be accompanied by family. Right now there’s no political section, no economic section, no human rights officer, and a consulate that handles American citizen emergencies but issues no visas (except for health emergencies and officials). There is still no conclusion as to what happened; maybe things will change when investigations conclude. The travel warning remains intact. In the meantime, private sector engagement will continue – regular travelers, exchanges, business visits – while we wait for the government to sort things out.

Regarding the scientific article cited yesterday, here’s a worthwhile (and plain English) discussion by two of its authors.

The Havana health mystery, clear as mud

It’s no fault of reporters and investigators that as they generate more information on the Havana health mystery, we no greater understanding of what happened to U.S. diplomats, much less how it happened.

This ProPublica piece by Tim Golden goes far beyond any other journalistic account, describing the sequence of events in Havana, the U.S. Embassy’s reaction, and apparent disagreement between the FBI and the CIA. Golden reports on an aspect that until now has not been covered:  the experience of the Canadians in Havana, which affected fewer people and is apparently different than that of the Americans. His article makes clear that U.S. reluctance to collaborate with Cuban investigators is based on suspicion that Cuba may be the perpetrator. He also reports that the FBI consulted an insect expert at Barry University in Florida whose assessment was that the recordings made in Havana sounded “like cicadas,” which is kind of funny considering the snickering that greeted the same statement when Cuban investigators made it.

An article in the Journal of the American Medical Association (JAMA) gives the results of the authors’ review of the medical records, and basically describes patients with concussion-like symptoms but no concussion. Or, in their words, they “appeared to have sustained injury to widespread brain networks without an associated history of head trauma.” Neither the symptoms nor the circumstances were uniform across the 21 affected persons, and among those who reported sounds, they described different kinds of sounds, from high-pitched squeals to the repetitive thud you experience when driving fast with a car window slightly open. The authors discount the hypothesis of “mass psychogenic illness.” A summary in Science magazine is here.

Oddly, the article says that the diplomats were exposed to “an unknown energy source” without offering evidence that this is the case. In the podcast cited below, one of the authors avers that the “energy source” concept was merely their “best guess.”

An accompanying JAMA editorial is a somewhat easier-to-read guide to a case where a “unifying explanation for the symptoms…remains elusive.” The concussion analogy, it says, “may be unnecessary as many of the symptoms described also occur in other medical, neurological, or psychiatric conditions.” The “similarities among the 21 cases,” it argues, “merit consideration of a common medical, environmental, or psychological event as the potential cause.”

The Guardian sums up the science debate in this article and in this very useful 30-minute podcast, where one of the JAMA authors, a skeptical scientist, and a Cuban investigator are interviewed. Dr. Douglas Smith of the University of Pennsylvania, one of the JAMA authors, says that “almost all” of those affected reported hearing sounds, “a range of audible phenomena.” He adds that the authors “do not think that the audible phenomenon caused any kind of injury to the brain,” and the “audible phenomenon was more a side effect of something else.” If the psychogenic hypothesis interests you, you will want to listen to Dr. Robert Bartholomew, starting about 10 minutes in.

Meanwhile, the State Department has formed an “Accountability Review Board” to investigate the matter; these boards are established by regulation to conduct “thorough and independent review of security-related incidents” in diplomatic missions.

Good luck to them. But as the State Department leadership approaches a decision on the future posture of our Havana embassy, now with a skeleton staff and a chief of mission on a short-term assignment, it seems increasingly possible that the investigations may yield nothing that clarifies what happened, how it happened, or who if anyone was behind it.

The Havana health mystery

It’s enough to wake you from a long nap.

Two dozen U.S. diplomats and a handful of Canadians in Havana suffered a disparate set of symptoms centering on hearing and cognitive problems. Unnamed U.S. officials were soon speculating in the press about attacks by unseen, sophisticated devices beaming sound waves. Within weeks Senator Rubio was urging the Secretary of State to expel all of Cuba’s diplomats and to close its Washington embassy. Eventually the State Department pulled most U.S. diplomats out of Cuba and forced Cuba to do the same from Washington.

This is a doozy even in the context of U.S.-Cuba relations.

The single common characteristic of all the U.S. persons affected is that they all worked in the U.S. Embassy. Presumably the embassy building has been investigated for its environmental factors, acoustic and otherwise – but the parts of the U.S. investigation that have been most discussed in public have involved their homes and hotels where some were living temporarily, and where they are said to have experienced “unusual sounds or auditory sensations,” according to a State Department doctor.

The shorthand for what happened in Havana quickly became “sonic attacks,” even though there is no evidence of attacks, sonic or otherwise.

What we really have is a health mystery that has confounded U.S., Canadian, and Cuban investigators.

The FBI, after sending agents and their equipment four times to Havana, has concluded that there is no evidence of a sonic attack, according to AP. And experts in acoustics scratch their heads at the idea that there could exist a device that can direct sound waves of any kind – within, above, or below the audible spectrum – with the strength required to injure a targeted person without affecting anyone else nearby.

But you have to hand it to Senator Rubio and his allies: “Sonic attacks” is quite a branding triumph. Without having to argue the merits of having diplomatic relations with Cuba, they scored a substantial policy victory that has hobbled diplomatic relations. When he called for expulsion of all Cuba’s diplomats in a letter last September, Rubio alleged that U.S. diplomats had suffered “’acoustic’ attacks;” today he has retreated from that position and instead argues that whatever happened, Cuba surely knows and won’t say.

Secretary Tillerson agrees. He doesn’t argue that this is some kind of Operation Mongoose in reverse, but rather that “someone within the Cuban government can bring this to an end.”

The State Department also uses the term “attacks” consistently, such as in this testimony last week – which seems a little foolish when in the same breath the same officials testify that they don’t know what happened, how it happened, or who did it. (No Senator pressed the point.) A friend speculates that the repeated use of the term is a way to link the issue to the Vienna Convention’s requirement that governments “take all appropriate steps to prevent any attack” on the “person, freedom or dignity” of diplomats in their territory.

I don’t doubt that harms occurred, but it’s hard to put stock in any of the theories put forward so far. The sonic theory seems debunked. The idea that a third country carried out attacks on Cuban territory is hard to believe, not least because no one who advances it shows evidence or explains why a state would venture such a deeply hostile act against Cuba. Maybe there’s a rogue element of Cuban intelligence, but those who break with the system in Cuba tend to leave rather than risk their necks causing trouble at home. In his hearing, Senator Rubio was quite sure that no one from Miami could be involved. A CIA hand, recalling acts against our Moscow embassy years ago, guesses that it could have been a surveillance effort gone wrong. In last week’s hearing, the State Department mentioned the possibility of a virus.

We may never know.

This being a Cuba issue, politics has entered the picture, in some cases in ways that may make the investigation less effective.

·      Senator Rubio and the State Department claim that Cuba absolutely must know what happened. That’s a politically convenient thing to say, but it’s cheap and not credible. Cuban intelligence services are quite good, but neither they nor any foreign service bats 1,000. In recent history there have been terrorist attacks and drug operations carried out in Cuba without prior detection.

·      The removal of U.S. diplomats was for safety reasons and the Cubans were sent home for reasons of reciprocity. But the State Department calls it an expulsion and gave the Cuban Embassy a list of names of those ordered to leave. That sounds like a punitive action more fitting in a case where the Administration is assigning blame, something it has not done. It sounds even more like acquiescence to Senator Rubio, who from the first wanted Cuba’s diplomats expelled and its embassy closed.

·      The use of the word “attacks” in the absence of evidence sounds quite political too.

·      When it comes to the investigation, it is to be expected that U.S. agencies would not share every shred of evidence, every source and method. But Cuba is clearly investigating and its ability to do so is limited by an arm’s-length U.S. posture. For example, why is it not possible to give detailed medical information to Cuban investigators, with identities stripped to protect privacy? Why not assent to Cuba’s request for a meeting between its medical team and ours?

·      In the months that have passed, it is not clear that the two sides have worked out a system for immediate response in the event that a new incident is reported.

Meanwhile, there are costs.

Cuba’s consulate in Washington is barely staffed, slowing the processing of passports, visas, and legal documents. In Havana, the U.S. consulate is handling U.S. citizen emergencies and issuing visas only for diplomats and persons needing to travel due to acute health emergencies. Cuban applicants for immigrant visas have to travel to the U.S. consulate in Bogota, Colombia, where they are told to plan to spend two weeks. Applicants for non-immigrant visas may travel to any U.S. consulate to apply. (In each case, for 99 percent of Cuban applicants, these options are impossible.) The result is that travel in both directions is hampered, especially for Cubans wishing to travel to the United States. Academic and cultural exchanges are stopping. The United States will not meet its pledge, undertaken in the 1994 immigration accord, to issue 20,000 immigrant visas annually. In the face of a State Department travel warning (now slightly softened), Americans are continuing to travel to Cuba, but apparently in reduced numbers. Cuban private restaurants, bed-and-breakfasts, and other businesses that serve American travelers are suffering, as are entrepreneurs who supply them with goods and services.

As for the non-consular side of the U.S. Embassy, there are no staff in the political and economic sections, so there is extremely limited reporting capacity at a time when Cuba is about to go through a leadership transition and the uncertainty that will come with a government that, for the first time in 60 years, is not led by a Castro.

There is no clear way out.

In March, Secretary Tillerson will have to decide what to do with the Havana-based diplomats who were withdrawn, still formerly assigned to Havana but left to cool their heels in Washington.

He has said that he wants “assurances” from Cuba, but given that Cuba insists that it did not cause this problem and hasn’t discovered its cause, the only assurances it is likely to offer are that it will continue to investigate and to beef up protection. (Cuba’s foreign minister discusses the topic here, and this program describes Cuba’s investigation.)

The Secretary could send our diplomats back to Havana, but in the AP story cited above he said: “I’d be intentionally putting them back in harm’s way. Why in the world would I do that when I have no means whatsoever to protect them? I will push back on anybody who wants to force me to do that.”

Our diplomats’ labor union is less risk-averse. Contrary to what you would expect from a union, its president, Barbara Stephenson, said last September that danger is “our reality…We’ve got a mission to do…The answer can’t be we just pull the flag down and move American presence from the field.”

In sum, three factors have brought us to where we are: an unsolved health mystery, a Secretary of State who is admirably extremist about employee safety, and some actors leveraging all this to shut down diplomacy, consular services, and contacts. Formally speaking, U.S. policy may not have changed, but the diplomatic apparatus that allows it to work is partially mothballed. And the United States’ reduced presence in Havana has us flying blind, worse than when we had just an Interests Section. It is not clear that this last factor matters to Secretary Tillerson.

With the passage of time, is it too much to hope that our diplomatic presence could be restored and then altered only if evidence provides a reason to do so?

Recognition

The critics do have a point. Cuba got something today: recognition that the socialist government in office in Havana since 1959 is in fact the governing authority in Cuba.

One wonders how Fidel Castro feels about it.

He reacted to the December 17, 2014 announcements with the grumpiness to which his age entitles him, saying he is not against peaceful solutions even though he does not trust the United States. Nonetheless, he huffed, “The President of Cuba has taken the pertinent steps according to the prerogatives and powers granted him by the National Assembly and the Communist Party of Cuba.”

I also wonder if he thinks back to his April 1961 speech, when he couldn’t envision that “the imperialists” could ever change their spots:

“Because what the imperialists cannot forgive us is that we are here, what they cannot forgive us is the dignity, the integrity, the bravery, the ideological strength, the spirit of sacrifice and the revolutionary spirit of the Cuban people. That is what they cannot forgive us, that we are right under their nose and we made a socialist revolution right under the nose of the United States!”

I don’t know about forgiveness, but there they are, still right under our nose, and they have been recognized. So there.

But did we lose anything?

For those who think that the past policies were successful or productive, or the only morally correct posture toward our socialist neighbor, we have lost a great deal. Pass the smelling salts, please.

For the rest of us, it’s a rational path, it has nothing to do with approval, and it’s no more radical than Nixon’s relations with China or Reagan’s with the Soviet Union.

And let’s be clear that for decades, our policies have been tantamount to formal recognition anyway.

We have had a diplomatic mission in Havana since 1977, housed in our old embassy building. We, the imperialists, have more diplomats accredited there than any other country. We negotiated agreements on migration and other matters. We have collaborated on drug enforcement, search and rescue, transfers of prisoners, and other matters, with our diplomats dealing directly with each other.

This relationship carried on even during the George W. Bush Administration, and has long amounted to de facto recognition of the Cuban government.

Today it changes to full legal recognition. What matters more than that legal formality is the opportunity before us, and what both nations make of it.