On July 2, 2001, U.S. Customs agents seized humanitarian aid destined for Cuba from members of "Let Cuba Live" at the Coburn Gore border crossing in Maine. They seized the aid - mostly medical supplies - claiming it violates the "Cuban Assets Control Regulations" (1) under the "Trading with the Enemy Act" (2) This article traces the origins and evolution of both the Trading with the Enemy Act (3) and the Cuban Assets Control Regulations to set a context in which "Let Cuba Live"'s civil disobedience may be judged fairly.
Congress passed the Trading with the Enemy Act on Oct. 6, 1917, six months after the US entered World War I. Although the Constitution gives the power to regulate commerce to Congress, Congress felt that the President needs the flexibility to regulate - and even Embargo - trade with the enemy in time of war. The Act delegates vast discretionary powers to the President ... with severe criminal sanctions for those who violate it.
In 1933, Congress amended the Trading with the Enemy Act by giving the President the same authority in a National Emergency as the President has during a war. To promulgate valid regulations under the Act, the country must be in either a War declared by Congress or a National Emergency declared by the President. At the height of World War II in 1942, President Roosevelt delegated his authority under the Trading with the Enemy Act to the Secretary of the Treasury (4).
On Dec 16, 1950, during the Korean "conflict," President Truman proclaimed such a National Emergency based upon Communist aggression. (5) Significantly, President Truman did not limit this Emergency to Korea: it covers Communist aggression around the world and lasts indefinitely. The Cold War had already begun and President Truman's 1950 Declaration conforms to the Cold War theory that America faced an international Communist conspiracy to take over the world for it says in pertinent part, "... world conquest by communist imperialism is the goal of the forces of aggression that have been loosed on the world." (6)
The Cuban Revolution occurred in 1959. On July 6, 1960, Congress amended the Sugar Act of 1948 by cutting off Cuba's sugar quota. Because Cuba's economy depended on that sugar trade, the Cuban Council of Ministers declared this attempt to strangle the Cuban Revolution an act of "aggression for political purposes" and adopted "Law No. 851" nationalizing US assets in Cuba. (7) A series of crises followed, including the CIA-led military invasion of Cuba at the Bay of Pigs in 1961 and the Cuban Missile Crisis of 1962 (which is the closest the world has ever come to total nuclear war). On Oct 15, 1962 - one day after US surveillance flights spotted Soviet missiles in Cuba - the Secretary of the Treasury delegated his authority under the Trading with the Enemy Act to the Office of Foreign Assets Control ("OFAC') (8). On July 8, 1963, OFAC both consolidated, and expanded upon, the various trade sanctions already imposed on Cuba by promulgating the "Cuban Assets Control Regulations. (9)" These regulations create a comprehensive Embargo against all transactions in which Cuba or a Cuban national has an interest. Violation of these regulations is punishable by up to 10 years in prison plus corporate fines up to $1,000,000 and individual fines up to $250,000. Significantly, the President did not declare a new National Emergency during the Cuban crises. Authority for the "Cuban Assets Control Regulations" rests on the 1950 Declaration that the international Communist conspiracy to take over the world puts America in a National Emergency. The Cuban Revolution was seen as just one part of Communist aggression around the world and there was no need to declare a National Emergency just for it.
Following the end of the Vietnam War and the Watergate revelations, a reform-minded Congress decided that the executive branch had abused its powers under the Trading with the Enemy Act. Two points specifically concerned Congress: First, Congress believed that the President had declared National Emergencies that were not "real emergencies"; and Second, Congress believed that the President had continued to exercise powers under "real emergencies" long after those emergencies had ended. Accordingly, in 1977 Congress amended the Trading with the Enemy Act by revoking all authority for the President to act in a "National Emergency." Thus, since 1977 the Act only empowers the President while the country is at war. The same Congress also enacted the "International Emergency Economic Powers Act. (10)" This law authorizes the President to act in a National Emergency but contains stringent procedural requirements to make sure the emergency is "real" and that the Presidential powers last only as long as the emergency lasts. However, to assure passage of these reforms and to avoid "controversy (11)," Congress decided to apply the reforms only to future emergencies. So Congress wrote a "grandfather" clause into the Trading with the Enemy Act when it passed the "International Emergency Economic Powers Act" exempting those Presidential powers already being exercised - such as those against Cuba - from complying with the new safeguards. Thus, although the Embargo against Cuba cannot meet the standards of current law, the "Cuban Assets Control Regulations" - which in turn depend on the continuing validity of President Truman's 1950 declaration of a National Emergency caused by world-wide Communist aggression - remain on the books because they are "grandfathered" from current law.
In 1989-1990, the Soviet Union dissolved and all the Communist governments in Eastern Europe disbanded. Whatever controversies there may be about who started the Cold War or why it ended, everyone recognizes that the Cold War is over. Even the staunchest conservatives recognize that the Cold War has ended: in fact, they insist that President Reagan's tough policies in the 1980s "won" the Cold War. But President Truman's 1950 Declaration that we are in the midst of a National Emergency caused by world-wide Communist aggression remains on the books because it has never been formally terminated.
After the Republicans gained control of both houses of Congress in 1994, they passed the "Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996," commonly known as "Helms-Burton." President Clinton, who initially threatened to veto the Act, signed it into law after Cuba, claiming a violation of its air space, shot down two Cessnas flown by the anti-Castro group, "Hermanos al Rescate." The main thrust of Helms-Burton is to punish our allies who trade with, or invest in, Cuba. It also codifies the Cuban Assets Control Regulations to prevent the Clinton Administration from unilaterally relaxing the Embargo. (12) Helms-Burton stands as a remarkable example of Congressional candor for two reasons. First, it admits that the goal of the legislation is to dictate the type of government Cuba must adopt. Article II spells out in minute detail exactly what type of government the Cubans must choose, with an emphasis on respecting private property ... especially the property of US citizens (13). Thus Helms-Burton shifts the rationale for the Embargo from the image of innocent America surrounded by an international Communist Conspiracy to the more honest image of tiny Cuba daring to adopt a social system that the great empire to the north disapproves. Second, Helms-Burton constitutes a frank recognition of how isolated US policy toward Cuba has become in world opinion. The law targets Canada, Mexico, Europe and anyone else "trafficking" in "confiscated property," which means not only engaging in any form of buying, selling or trading in former US assets (14) but also "engag[ing] in a commercial activity using or otherwise benefitting from confiscated property... (15)" The Helms-Burton Act's attempt to dictate to our allies with whom they may trade sets the stage for a major showdown between the U.S. and the European Union, averted so far only by repeated Presidential waivers of Title III (16). Helms-Burton stands for the proposition that since we cannot persuade our friends to join our Embargo we must beat them into submission. Curiously, however, Helms-Burton does not substitute itself as the statutory basis for the Embargo or add criminal sanctions to the Embargo. Instead, it cites to, and relies upon, the Trading with the Enemy Act as the legal basis for the Embargo and the source for criminal sanctions (17). This is why OFAC continues to cite the Trading with the Enemy Act, rather than Helms-Burton, as the legal authority for the Embargo (18). Thus the regulations (and especially the criminal sanctions) - grandfathered under the Trading with the Enemy Act - remain based on President Truman's 1950 Declaration of a National Emergency.
One might think that the courts would entertain a legal challenge to the "Cuban Assets Control Regulations" by recognizing that the validity of the National Emergency declared by President Truman in 1950, upon which the regulations depend, ended when the Cold War ended. After all, no one currently contends that we are in the midst of an emergency caused by an international Communist conspiracy to take over the world and it seems only logical that a judge would recognize this simple fact (19).
Unfortunately, the constitutional doctrine of the "separation of powers" prevents such a challenge to the 1950 Declaration. The courts have consistently recognized that the Constitution vests control over foreign affairs in the President. If a judge could review the propriety of a Presidential Declaration of a National Emergency, we could end up in a constitutional crisis in which one branch of government declares an emergency that another branch refuses to recognize. Respect for "separation of powers" requires judges - as a matter of judicial restraint - to refuse to review the propriety of a Declaration of National Emergency no matter how obsolete or absurd the Declaration becomes. Thus, while I doubt that there is a judge in the country who - if given the authority to rule on such a matter - would affirm that we are still in the midst of a National Emergency caused by world-wide Communist aggression, I know that there is no judge in the country who has the authority to make such a ruling. The question of whether a declared Emergency has ended must be answered by the political branches of our government: only the executive branch that declared the emergency, or the legislative branch that delegated the authority to the executive branch in the first place, can declare the Emergency over. (20)
Even a cursory knowledge of the last Presidential election exposes the problem the political branches face when it comes to ending the Embargo against Cuba. However much controversy there might be about who won Florida or how those votes were counted, no one doubts that Florida was the "swing state" that determined the election. Nor is there any doubt that a handful of votes decided Florida's outcome. Staunch anti-Castro reactionaries - many of whom were power brokers in the gambling or sugar interests under the Batista Regime - constitute a decisive block in Florida politics whose only goal is to strangle the Cuban Revolution in the hope of returning to power. Although there are some commercial and agricultural interests that would like to trade with Cuba, unlike the situation with China - whose massive markets spurred the dissolution of the Embargo against it in the early 1970s despite the strenuous objections of the anti-Communists in Taiwan - the value of trade with tiny Cuba is insufficient to overcome the political clout of the anti-Castro fanatics in Florida. Since there is no self-interested group with a sufficient stake in ending the Cuban Embargo - and since the Cuban Embargo is the only remnant still left from the old 1950 Cold War Declaration (21) - only humanitarians are left to oppose the continuation of the 1950 Declaration.. The end result is that the 1950 Declaration remains on the books because the courts cannot review it and the political branches are held hostage by a determined minority in a critical swing state. This stalemate illustrates why, when describing our legal system, lawyers always stress that our system "isn't perfect." Only within the context of this stalemate caused by imperfections in our system of government can "Let Cuba Live"'s civil disobedience be judged fairly.
What the Embargo represents to the members of "Let Cuba Live" has, so far, only been hinted at. After the Cold War, strict enforcement of the Embargo tended to relax as anti-Communism became obsolete. Thus, "Let Cuba Live" successfully made several unlicensed humanitarian trips to Cuba in the 1990s. They have seen Cuba's system of universal health care first-hand and have confirmed for themselves that Cuba has one of the most advanced health care systems in the world, marred only by the strangling effects of the Embargo. Unlike the situation in other impoverished Third World countries where corruption and the lack of a health care infrastructure often prevents humanitarian aid from accomplishing its goal, "Let Cuba Live" knows that its humanitarian aid actually reaches, and helps, its intended recipients. Further, due to their personal trips to Cuba, the victims of the Embargo are not abstract statistics but individual people with real names and faces. These Americans know that each day of the detention of their aid counts: some of their friends in Cuban clinics may die while the needed medical supplies sit in US government vaults. The continuing detention of the two anesthesiology machines "Let Cuba Live" was delivering to Cuba can only inflict further pain on those who need them so desperately.
"Let Cuba Live"'s experience with this last remnant from the Cold War turns the old historical saying on its head: while the legal claim that we are still in the midst of a National Emergency caused by an international Communist conspiracy to take over the world seems like a farce, its continuing impact on real human beings constitutes a tragedy that violates all norms of human decency. To the members of "Let Cuba Live", pouring their hearts out to the victims of the US Embargo is not enough; their consciences compel them to act concretely to help their fellow human beings ... despite regulations that remain on the books by political default.
Do you wonder then at "Let Cuba Live"'s fierce defiance of an Embargo that has lost all historical rationale but that continues to strangle people who pose no threat to us? The critical issue now is whether they must make their stand alone, or, whether others will step forward to help finally end this cruel and irrational embargo.
3. This article focuses on the TWEA because that is the statute OFAC cites as the statutory basis for the Cuban Assets Control Regulations, see e.g. note 18 infra. However, the reader should be aware that there are other statutes that restrict trade with Cuba, albeit without criminal sanctions, such as the "Foreign Assistance Act of 1961", 22 USCA §2370 , the "Cuban Democracy Act" 22 USCA §6001 et seq. and, of course, "Helms-Burton," which codifies the Regulations, see note 12, infra.
4. Exec Order No. 9193, 3 CFR 1174, 1175 (1942)
5. Presidential Proclamation No 2914, 64 Stat. A454
6. A copy of the Proclamation can be found at 50 USCA App page 7.
7. See Banco National de Cuba v Sabbatino 376 US 398, 401-402 (1964)
8. Treasury Dept Order No. 128 (Rev. 1, Oct. 15, 1962.)
11. See Regan v Wald 468 US 222, 239-240 (1984)
13. For instance, §206 (3) defines a democratic government as one that "is substantially moving toward a market-oriented economic system based on the right to own and enjoy property" §206 (6) says that to be democratic the government must have " ... made demonstrable progress in returning to United States citizens (and entities which are 50 percent or more beneficially owned by United States citizens) property taken by the Cuban Government from such citizens and entities on or after January 1, 1959, or providing full compensation for such property in accordance with international law standards and practice." §207 requires "Settlement of outstanding United States claims to confiscated property in Cuba." And all of Title III is entitled "PROTECTION OF PROPERTY RIGHTS OF UNITED STATES NATIONALS."
14. Remember that just before the Cuban Revolution, Americans owned "almost all the mines and cattle ranches in Cuba and half the nation's sugar production." The US also controlled the oil refineries, which President Eisenhower ordered not to process Cuban oil when Cuba traded sugar to the Soviet Union for oil. See Federal Courts as Weapons of Foreign Policy: the Case of the Helms-Burton Act 20 Hastings Int'l & Comp L Rev 747 (1997).
16. The EU has threatened to file a claim against the US in the WTO if the US fails to continue waiving Article III. The extent to which the EU will succeed is problematic. GATT, similar to NAFTA, has a "national security" exception. When the WTO failed to find a violation of the US Embargo against Nicaragua during the Reagan administration, Canada, most European countries, and the EU took the position that it is for each country to decide on its own what its national security requires and the WTO cannot second guess the merits of a national security claim.
18. For instance, OFAC's web page CUBA: What You Need to Know about the U.S. Embargo does not even mention Helms-Burton when it introduces the legal basis for the Embargo as, "The Cuban Assets Control Regulations, 15 CFR Part 515 (the "Regulations") were issued by the U.S. Government on 8 July1963 under the Trading With the Enemy Act in response to certain hostile actions by the Cuban government. They are still in force today and affect all U.S. citizens and permanent residents wherever they are located, all people and organizations physically in the United States, and all branches and subsidiaries of U.S. organizations throughout the world. The Regulations are administered by the U.S. Treasury Department's Office of Foreign Assets Control." Similarly, the June 29, 2001 letter from OFAC to Pastors for Peace, who ran a companion caravan to Cuba on the same day as Let Cuba Live ran its caravan, cites the Regulations as being based on the Trading with the Enemy Act and does not mention Helms-Burton.
19. Although the Regulations might survive under Helms-Burton, a formal ending of the 1950 Declaration and the role of the Trading with the Enemy Act in the Embargo could force Congress to resolve the principal ambiguity in Helms-Burton: did Congress intend merely to codify the old Embargo or did it intend to create a new Embargo with a different rationale?
20. Regan v Wald 468 US 222, 242-243 (1984)
21. The Declaration cannot be used to give the President any further powers since the Trading with the Enemy Act no longer applies to National Emergencies. The Cuban Assets Control Regulations are uniquely "grandfathered" and stand alone.