With less than two weeks left in Donald Trump’s presidency, Secretary of State Mike Pompeo’s decision to put Cuba back on the list of countries sponsoring international terrorism is a travesty, and a perfect example of how for the past four years U.S. foreign relations have been driven by President Trump’s domestic political calculations.
Declaring Cuba a sponsor of international terrorism puts the final brick back in the wall of Cold War-era hostility dividing Washington and Havana, a wall rebuilt by Trump to deprive President Barack Obama of one of his signature foreign policy achievements. It rewards conservative Cuban Americans who helped Trump carry Florida in his losing campaign for re-election. It further poisons the atmosphere of relations with Havana, making it harder for President-elect Joe Biden to follow through on his pledge to resume the Obama-Biden administration’s successful policy of engagement. And, like so many of Trump’s claims, it lacks any factual basis.
The terrorism list was established in 1979 by the Export Administration Act [50 USC App. 2405(j)], and countries designated as sponsoring international terrorism face a variety of trade and financial sanctions. Criteria for inclusion on the list have always had a strong political taint. Inclusion is reserved for adversarial states; friendly governments that sponsor terrorism never make it onto the list. Case in point: the Saudi government’s murder of Washington Post journalist Jamal Khashoggi in Turkey.
Cuba was added to the list in 1982 by President Ronald Reagan because of Havana’s support for the revolutionary movements fighting military dictatorships in Central America. It remained on the list until President Obama removed it in 2015. Over time, the rationale for keeping Cuba on the list evolved, as chronicled in the State Department’s annual Country Reports on Terrorism, becoming thinner and thinner which each passing year. When Cuba stopped supporting armed insurgencies after the end of the Cold War, the reasons cited for Cuba’s designation ceased to have any relationship to what the law defines as sponsoring international terrorism. President Bill Clinton considered removing Cuba from the list, but demurred for fear it would hurt his political fortunes among Cuban Americans in Florida.
President Obama removed Cuba from the list after a thorough review by the intelligence community concluded that Cuba was not, in fact, engaged in supporting terrorism. In 2020, as part of its program to impose new sanctions on Cuba every few months leading up to the 2020 presidential election, the Trump administration listed Cuba as “not cooperating” with U.S. counter-terrorism efforts — despite the fact that Cuba signed a counter-terrorism cooperation agreement with the Obama administration in 2017, an agreement the Trump administration has ignored.
Pompeo designated Cuba as sponsoring terrorism on January 11, citing the same reasons he cited for designating Cuba as non-cooperative a year earlier: that Cuba was providing sanctuary to leaders of the Colombian National Liberation Army (Ejército de Liberación Nacional, or ELN) and fugitives from U.S. justice. Pompeo threw in Cuba’s support for the government of Venezuela for good measure.
Pompeo’s rationale for Cuba’s designation is deeply disingenuous. The ELN leaders are in Havana because Cuba and Norway were facilitating negotiations between the ELN and the Colombian government, just as they had done to produce the 2016 peace accord between the government and Colombia’s other guerrilla group, the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, or FARC). When Ivan Duque, who opposed the peace accord, was elected president, he broke off the talks in response to an ELN bombing in Bogota, and then demanded that Cuba extradite the ELN negotiators. Cuba, backed by Norway, refused on the grounds that the agreement to convene the talks, which the Colombian government signed, provided for the safe return to Colombia of the ELN negotiators if the talks broke down — an agreement that Duque refused to recognize. If this makes Cuba a sponsor of terrorism, Norway is equally guilty. But designating Norway as a state sponsor of terrorism would reveal the absurdity of Trump administration’s position.
There are, as Pompeo said, several dozen U.S. fugitives in Cuba, the most prominent of whom sought asylum there after committing politically motivated crimes in the United States in the 1970s and 1980s. While one might reasonably argue that these fugitives are guilty of domestic terrorism, the law [22 USCA § 2656f(d)] defines international terrorism as “terrorism involving citizens or the territory of more than one country,” which does not apply in these cases. Moreover, the law defines giving sanctuary to international terrorists as allowing them to use the national territory “to carry out terrorist activities including training, fundraising, financing, and recruitment.” The aging fugitives in Cuba have done none of that, which is why President Obama was able to certify in 2015 that Cuba was no longer sponsoring international terrorism, despite the fact that these fugitives have been there for decades.
Trump’s designation of Cuba is a parting political gift to his Cuban American supporters, but a largely symbolic one. The sanctions suffered by countries on the terrorism list are less severe than the sanctions already imposed on Cuba by the economic embargo that has been in place since 1962.
That said, the designation will complicate President Biden’s plans to resume a constructive relationship with Havana. Cuban leaders are deeply offended by the accusation that they sponsor terrorism. They see it as profoundly hypocritical coming from a country that waged a covert war against them, training, arming, and giving sanctuary to exiles whose terrorist attacks over the years have killed or injured more than 5,000 Cubans.
Removing Cuba from the terrorism list is a necessary condition for rebuilding some degree of mutual confidence between Washington and Havana, but it will take time. Putting a country on the terrorism list requires nothing more than the Secretary of State’s signature. Taking a country off the list requires a presidential report and certification to Congress, which then has 45 days to reject the certification before it goes into effect. By law, President Biden will have to certify that Cuba has not engaged in supporting terrorism in the past six months and has given assurances that it will not do so in the future.
Soon after his inauguration, the president-elect should task the intelligence community with determining whether Cuba has supported terrorism in the past six months, based on the statutory definition of support for international terrorism, not on some ad hoc criteria adopted for political convenience. The flimsiness of the Trump administration’s rationale strongly suggests that Cuba’s record will prove to be clean. President Biden should then submit the required certification and report, and work with Congressional leaders to repel any attempt to reject it.
On the campaign trail, Biden promised to return to a policy of engagement with Cuba. He pledged to reverse Trump’s sanctions that have hurt Cuban families and restricted the right of U.S. residents to travel to Cuba. Moreover, he pledged to re-engage diplomatically with the Cuban government, resuming the dialogues that produced 22 bilateral agreements on issues of mutual interest during the last two years of the Obama administration. Trump refused to implement those agreements, so the United States has yet to realize their benefits. Quick action by President Biden to remove Cuba from the terrorism list will go a long way to restoring the atmosphere of trust and mutual respect that is essential to finishing the work of diplomatic bridge-building that President Obama began.