URL: http://www.tbo.com/news/politics/cuba-ovations-may-require-obama-to-renew-enemy-status-20150908/
Cuba ovations may require Obama to renew ‘enemy’ status
By Paul Guzzo
Secretary of State John Kerry, and other dignitaries watch as U.S. Marines raise the U.S. flag over the newly reopened embassy in Havana, Cuba. Friday, Aug. 14, 2015. Kerry traveled to the Cuban capital to raise the U.S. flag and formally reopen the long-closed U.S. Embassy. Cuba and U.S. officially restored diplomatic relations July 20, as part of efforts to normalize ties between the former Cold War foes. (AP Photo/Pablo Martinez Monsivais, Pool) ORG XMIT: CUBM108
TAMPA — The debate over the changing U.S. policy toward Cuba takes an ironic twist this week.
Those who believe President Barack Obama is on the right path with his effort to normalize relations between the two countries might find themselves cheering if he declares Cuba is still an enemy and danger to national interests.
And those in favor of tightening restrictions on the Communist government may be upset to hear the president make the declaration.
Hanging in the balance for the Tampa area are its flights to Cuba, cultural exchange programs with the island nation and even the Cuban consulate that the Tampa City Council and chamber of commerce hope to land here.
The twist arises from the Trading with the Enemy Act, a law requiring annual renewal — this year, by Sept. 14.
Passed in 1917, the act grants the American president authority to restrict or oversee any trade between the U.S. and its enemies. The “oversee” clause enables the president to sign executive orders that supersede the U.S. travel and trade embargo against Cuba, codified by Congress in 1996 through the Helms-Burton Act.
Only one country remains on the list that’s part of the Trading with the Enemy Act — Cuba.
President Bill Clinton used the act in 1999 to create individual licenses that opened up travel to the island nation.
And is the tool Obama used for his recent executive orders expanding travel and trade and moving toward diplomatic relations with the opening of embassies in each country.
Some have argued that Obama must let the Trading with the Enemy Act act lapse as a gesture of friendship with the island nation and a statement to Congress that he no longer sees Cuba as a threat.
But some attorneys who specialize in relations with Cuba say that without the authority granted by the act, Obama has no authority to push normalization further and might lose the gains he’s already made.
Without it, the Helms-Burton Act holds sway again, not only codifying the embargo but freezing in place all federal regulations regarding Cuba at the time it was passed.
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If the Trading with the Enemy Act is renewed, Obama retains wide latitude to issue executive orders regarding relations with Cuba, said Robert Muse, a Washington, D.C.-based attorney who specializes in the Cuban embargo.
“I suspect the White House will reauthorize the Trading with the Enemy Act to keep that discretion in place,” Muse said. “Clearly Obama is in search of a Cuba legacy and that could stall if he loses the authority to continue relaxing elements of the embargo.”
By the end of 2015, charter flights to Cuba from Tampa International Airport are expected to exceed the 61,408 passengers ofrecorded in 2014, primarily because Obama’s orders expanding to 12 the number of reasons Americans can travel to Cuba, mainly in education and sports competition.
If U.S. policy reverts to 1996, only people with family living on the island nation could easily obtain a license to visit.
This could also put an end to the growing number cultural exchanges between Cuba and Tampa, including the performance by a top Cuban pop star at the Gasparilla Music Festival, the screening of Cuban-made films at the Gasparilla International Film Festival, and a concert in Havana by the Tampa oldies band The Rockers.
Each exchange was made possible by the easing of travel between the two nations.
Research collaborations also are threatened if Obama’s orders are rescinded, including work on coral reefs by the Florida Aquarium in Tampa and Havana’s National Aquarium.
Even the new embassies could be closed, also dashing chances of a consulate in Tampa.
Without the new executive orders, though, Tampa would have little need for a Cuban consulate — a place where people and companies could do business with the country.
Obama expanded trade opportunities to include construction supplies and telecommunications devices. Otherwise, under provisions of a 2000 act of Congress that used to hold sway, only food and medical supplies could be sold to Cuba.
“It is ironic,” said John Kavulich, president of U.S.-Cuba Trade and Economic Council. “The citizens of Cuba must remain designated as an enemy for President Obama to designate the citizens of Cuba as friends.”
Attorney Muse added this is a perfect illustration of the labyrinth of laws that have come to govern U.S. policy on Cuba.
“The Trading with the Enemy Act is like a door to a room that contains the Cuban Embargo sanctions,” said Antonio Martinez II, a New York-based attorney specializing in Latin America relations.
“Unless the president of the United States opens that door, he cannot use his executive authority to go inside that room and rearrange or change the furniture in that room.”
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Still, Martinez said there may be other options.
Congress, for example, could lift the Cuban embargo. If Obama decides against renewing the Trading with the Enemies Act, he shifts the pressure to Congress.
It could also be argued, Martinez said, that the Helms-Burton Act signed by Clinton in 1996 is unconstitutional because the president cannot cede his executive authority on foreign policy to another branch of government.
If the act lapses, and if Congress keeps the status quo in place, and if Obama continues to sign executive orders to strip away the embargo, the courts might have to decide whether Helms-Burton or Obama’s policies are constitutional.
This may be risky, attorney Muse said.
“Congress would not have the votes,” he said. “And the short answer to anyone who thinks Helms-Burton is unconstitutional — if it is, why has no one challenged or defeated it in court yet? It is almost 20 years old.”
Martinez suggested that this might be a factor of how volatile the issue was in the past.
“No one wanted to get involved with it,” he said. “I think now may be the time to test the theory, whether the president allows the Trading with the Enemy Act to lapse or not.”
North Korea had been sanctioned by the act since the Korean War, but President George W. Bush lifted it in 2008.
Other nations sanctioned by the act through the years have included China, Vietnam, Nazi Germany and its World War II allies.
It was the Trading with the Enemy Act that enabled President Dwight Eisenhower to impose the embargo against Cuba after the new Communist government began nationalizing U.S. businesses and property on the island.
In response to the Cuban Missile Crisis, President John Kennedy used the act to freeze all Cuban assets in the U.S.
In 1996, Cuba was accused of shooting down two U.S. planes flown by Brothers to the Rescue, a Miami-based organization that assisted and rescued raft refugees from the island. Three U.S. citizens and a U.S. resident died in the crash.
In retaliation, Congress passed and Clinton signed the Helms-Burton Act.
But the Trading with the Enemies Act allowed Clinton to introduce the individual people-to-people license process three years later.
“Nothing is absolutely clear on all of this,” Muse said, saying there is wiggle room on the issue. “But would it be wise to take that risk? Obama would lose his authority to modify the embargo as would his successor.”
pguzzo@tampatrib.com
(813) 259-7606
Cuba ovations may require Obama to renew ‘enemy’ status
