Is it too early to consider President Barrack Obama the eleventh president to not get it? Is it too early to pronounce his Cuba policy a failure? Some think so because of the timid reforms he signed into law March 11. Others are expecting major policy changes at next month’s Summit of the Americas in Trinidad and Tobago, so what the new legislation says does not matter much. What seems clear is that the Obama administration wants to distance itself from Congress’ tentative stab at reform through amendments to the Omnibus Appropriations Act of 2009, by portraying it as leftover Bush business while keeping his foreign policy apparatus silent on the matter.
The Cuban portions of the spending bill were expected to make good on Obama’s campaign promise to lift the 2004 restrictions on travel by US citizens and residents to visit relatives in Cuba. The legislation does not do that but instead suspends enforcement.
Bush reduced allowed trips from once a year to once every three years, cut allowable travel expenditures while in Cuba and imposed new rules on gift packages, among other things. The gift rules were the stuff of late-night TV humor. Under those rules, it was illegal to send gift packages containing soap, fishing rods and underwear. Was the idea that unwashed Cubans unable to fish in their underwear would undermine communism in Cuba?
Some of these lunatic slices of foreign policy are now rectified in the Omnibus bill, which prevents the Treasury Department from using federal funds to enforce the 2004 family travel rules, restrictions on business travel to Cuba and a 2005 Bush rule forcing Cuba to pay cash in advance for food and medicine imports from the United States. All the Cuba portions of the bill expire when the spending bill itself expires at the end of the fiscal year in October. Non-enforcement of these rules does not void them.
Congress moves but not far
To put these changes into perspective, it should be noted that Congress often made more progressive efforts on these issues when it was under Republican control than it does today under Democratic leadership. In 2000, the House approved an amendment on travel more extensive than the current one when it voted to block the use of federal funds to prevent US citizens - not just those with relatives in Cuba - from traveling to the island. House Majority Whip Tom DeLay (R-TX) stripped the offending amendment from the bill.
If the current Congress had been equally serious about lifting these travel restrictions it might have considered dismantling the Treasury Department’s currency controls. When the Reagan administration renewed the government assault on travel in 1982, it successfully argued before the Supreme Court that its actions were justified due to the exigencies of the Cold War, in which Cuba was regarded as a player and an enemy. The court ruled in 1984, that there was "an adequate basis . to sustain the President’s decision to curtail, by restricting travel, the flow of hard currency to Cuba that could be used in support of Cuban adventurism."
Twenty five years later this seems a pathetically antique justification. There being no Cold War, it would seem plausible for Congress to argue that there is no longer a basis for such restrictions.
Geithner sets Cuba policy for now
Treasury Secretary Timothy Geithner is, for the moment, the lead actor on Cuba. That’s because the Office of Foreign Assets Control (OFAC) is under his jurisdiction. It is an administrative agency with great power to set policy by interpreting and managing the economic blockade (embargo) against Cuba. Only recently, OFAC announced punishment for a US branch of the French dairy company Lactalis for money transactions with the island. OFAC is run by Undersecretary for Terrorism and Financial Intelligence Stuart Levey, a Bush appointee whom Geithner has retained. OFAC began legal action against the company in the waning days of the Bush administration, but this is the first such enforcement action under Obama/Geithner/Levey.
Congress’ preference for minimalist reforms through the Omnibus bill was matched by the Obama administration’s preference for minimizing the minimal. Consistent with congressional wishes, OFAC issued generous guidelines on the politically safe issue of family travel but effectively "stripped" the trade-related portions of the bill in a way Tom DeLay would probably have approved.
To help congressional leaders achieve passage of the bill, Geithner wrote to Sens. Bill Nelson (D-FL) and Bob Menendez (D-NJ) on March 5 and 9, assuring them that the trade-related sections would be narrowly interpreted or even ignored. He promised to gum up business travel with bureaucratic impediments that he did not impose on licenses for family travel.
"Any business using the general [travel] license," Geithner wrote the senators, "would be required to provide both advance written notice outlining the purpose and scope of the planned travel, and, upon return, a report outlining the activities conducted, including the persons with whom they met, the expenses incurred, and business conducted in Cuba."
As for the cash-in-advance rule, Geithner assured the senators, "Treasury believes that this change likely will have no influence on current financing rules." He reminded the senators that the words "cash in advance" in the 2005 rule also appear in the original legislation permitting exports of food and medicine to Cuba (the Trade Sanctions Reform and Export Enhancement Act of 2000). Since the Omnibus bill did not "modify or negate the statutory requirement in the 2000 Act, exporters will still be required to receive payment in advance of shipment and will not be permitted to export to Cuba on credit other than through third-country banks."
This bit of Treasury Department casuistry effectively gutted the cash-in-advance section of the bill and is reflected in the subsequent OFAC guidelines issued March 11.
Administration pleads ignorance
A reporter asked White House Spokesman Robert Gibbs if Geithner’s letter did not amount to a signing statement to alter the intent of Congress, a practice so beloved by Bush and denounced by candidate Obama. Gibbs inarticulated this reply:
"Well, I mean, Jake, there’s obviously, as you know, there’s interpretations — interpretations of what different provisions in each bill mean and those interpretations obviously are active — it’s like a presidential signing statement, except it’s not the President and it’s not a signing statement."
Gibbs referred the questioner to the Treasury Department for help on divining the letter’s intent.
Over at the State Department, where foreign policy is supposed to be formulated, Acting Spokesman Robert Wood referred a reporter to Geithner on a similar question:
"QUESTION: And you don’t know specifically what this - what the cut in funding for Cuba to enforce Cuba restrictions does to the restrictions that are in place?"
"MR. WOOD: No, but I think with regard to the Cuba portion of that, I’d probably refer you to Treasury, because Treasury can give you more specifics with regard to, you know, what can and can’t happen under sanctions."
Press reports on the letter suggest that if the White House did not know what Geithner meant, Nelson and Martinez well understand him. Martinez said he interpreted the letter to mean, "the White House intends to reissue a regulation that will be very similar, requiring cash be paid before it the shipment goes."
Nor were many of the senators who voted for the bill in doubt about Geithner’s intent. Sen. Max Baucus (D-MT) and 14 colleagues, including some Republicans, wrote to Geithner on March 17, asking for clarification of his letter and describing it as "contrary to the intention" of the bill to end the Bush interpretation of regulations.
There is the appearance of congressional disingenuousness in all of this because of an obvious lack of serious purpose on the part of the bill’s architects. If the idea was to end family travel restrictions, why was the legislation put in a spending bill that expires in six months and that encourages trips to Cuba that would still be illegal? And if Sen. Baucus and friends wanted to end cash in advance, why did they not remove the requirement from the Trade Sanctions Reform and Export Enhancement Act of 2000, or do what a previous Congress tried to do in 2003 by allowing private funding for Cuban imports? The most direct way to permanently end these restrictions is to excise them from the Helms-Burton and other blockade legislation.
Indiana Sen. Richard Lugar - a Republican - issued a report in February prepared by the Republican minority staff of the Senate Committee on Foreign Relations that examines the failure of US Cuba policy and lays out a moderate plan for methodically dismantling the blockade.10
The murky history of the Cuba elements in the spending bill may only indicate that perhaps Cuba and the rest of Latin America are just not much of a priority right now and that at the April Summit of the Americas, Obama will propose deep policy changes. But for now, Obama seems to regard the Cuba reforms in the spending bill as Congress’ business. In Geithner’s March 9 letter reassuring senators that nothing really very bad was going to happen, he was careful to write this disclaimer: "As you know, the Obama Administration had nothing to do with these or any other provisions of that bill."
As to what Obama’s intentions are, all is not clear. No, wait. One thing is emerging with some clarity. Obama and his foreign policy team have played no noticeable role in setting an agenda on Cuba. Instead of reacting to specifics about the Omnibus bill’s limited and transitory policy tweaks, both Clinton and Geithner have implied that more serious changes are ahead as the administration reviews Cuba policy. Except for pro forma remarks at her confirmation hearings about promoting democracy in Cuba, Clinton has not entered the debate. This explains why Gibbs and Woods deflected questions about the Cuba issues and why on a number of questions posed about Latin America recently, administration spokespersons have been reticent or mute.
If by identifying the Omnibus bill with the era of the departed Bush, Obama signals that he wants to start afresh on Cuba policy, one has to ask how fresh can you be if your ideas about Cuba are based on the tired clichés of the past, such as this from one of Geithner’s letters:"We are currently reviewing United States policy toward Cuba to determine the best way to foster democratic change in Cuba and improve the lives of the Cuban people."
In his elusive search for bipartisanship, Obama may well consider the Lugar report, which has the distinction of challenging foreign policy stupidity head-on instead of making excuses for it. The report repeats many of the same questionable assumptions about Cuba and myths about US intentions that have sustained that failed policy for 47 years, but that should be no barrier to taking the report’s roadmap seriously.
Robert Sandels is a specialist on Latin America and a historian by training. He wrote this essay for CounterPunch and Cuba-L Direct.