On April 17, 2019, the 58th anniversary of the Bay of Pigs invasion, John Bolton, America’s National Security Advisor, announced what may turn out to be the death knell for Cuba’s socialist government. (By contrast, at the same time NPR recounted and gushed about the 60th anniversary of Fidel Castro’s appearance on The Ed Sullivan Show and his visit to New York and Harlem in April 1959.)
No matter the ultimate outcome of Bolton’s announcement, this policy change will create the mother of all litigation, securing full employment for lawyers throughout Europe and the Americas on multiple lawsuits of greater length and complexity than Charles Dickens’ fictional Jarndyce v. Jarndyce. Truth is stranger than fiction.
This saga began in January 1996, when José Basulto, head of Brothers to the Rescue, flew into Cuban airspace — twice — and dropped half a million anti-Castro leaflets over Havana. Basulto hated the regime. He was a Bay of Pigs veteran and had spent two years in Castro’s prisons. He had founded Brothers to the Rescue, a group of volunteer pilots, to scour the Florida Straits for wayward “rafts” (crafts often no more than inner tubes cobbled together with twine) overloaded with refugees escaping Cuba — the sort on which Elián Gonzales was found.
No matter the ultimate outcome of Bolton’s announcement, this policy change will create the mother of all litigation, securing full employment for lawyers throughout Europe and the Americas.
But this time his hate got the best of him. Fidel was not amused by the leaflets caper. He ordered the next incursion of Cuban airspace neutralized. The following month, on February 24, Brothers to the Rescue flew a routine search mission. While outside Cuban territorial waters — and without warning — a Cuban Air Force Mikoyan Mig-29UB shot down two of the Brothers’ unarmed Cessna Skymasters, killing 3 pilots. The third Cessna, piloted by Basulto, escaped.
While the Cuban pilot exulted, “We blew his balls off! He won’t give us any more fucking trouble,” the US populace, Congress, and President Clinton were outraged. Two Republican Congressmen, Senator Jesse Helms of North Carolina and Representative Dan Burton of Indiana had, two years previously, introduced legislation to tighten the screws on the Castro regime. But the Helms-Burton Act, as it came to be known, was tabled following Democrat filibusters in support of President Clinton’s efforts to improve relations with the island.
Following the downing of the two private planes on a humanitarian mission, Helms and Burton immediately reintroduced their bill. It was passed by both houses of Congress on March 6, only ten days after the cold-blooded murder.
Fidel was not amused by the leaflets caper.
Helms-Burton was the latest installment on a trade embargo first declared in October 1960 by the Eisenhower administration in retaliation for the nationalization without compensation of American-owned oil refineries on the island. The Cuban regime responded with the nationalization of all remaining American businesses and most American privately owned properties. Again, no compensation was offered for the seizures. Additionally, a number of US diplomats were expelled from Cuba. The US then severed diplomatic relations with the socialist regime.
Title III of the Helms-Burton Act authorized US nationals whose property in Cuba had been confiscated to file suit in US courts against persons who might be "trafficking" in that property. However, the act granted the president the authority to suspend the lawsuit provisions if it was necessary to the national interest of the United States and would expedite a transition to democracy in Cuba.
Private European companies, which had been investing in Cuba through joint ventures with the Cuban government, raised holy hell, creating a serious European Union trade dispute with the US. In response, President Clinton exercised the suspension authority through a nonbinding declaration of intention, approved in April 1997 in order to settle the brouhaha. That suspension has been renewed by every US president since.
And then along came Donald J. Trump. In June 2017, he impetuously declared, "Effective immediately, I am canceling the last administration's completely one-sided deal with Cuba."
The Cuban regime responded with the nationalization of all remaining American businesses and most American privately owned properties. No compensation was offered for the seizures.
But before making any changes, President Trump and Vice President Pence decided to meet with the members of the Cuban exile community in Little Havana, especially the Bay of Pigs Veterans Association. According to Carlos León, the second youngest member of the invasion Brigade 2506 and later to become the Association’s historian and Interim president (he was already this author’s cousin), Trump and Pence met with a select group of the veterans for four hours — much longer than the meeting had been scheduled for.
Very few of the veterans had supported Trump during the election but, according to Carlos, they found Trump and Pence to be good listeners and receptively involved in the give-and-take of the discussions. Most of the vets had supported most of Obama’s Cuba policies. They succeeded in tempering Trump’s proposed changes down to two minor initiatives all could agree upon.
The policy changes tightened US citizens’ travel to Cuba by more closely vetting the already approved travel categories — a step that in practice meant little, especially for the independent travelers flouting US regulations by departing from Mexico, Canada, and the Bahamas. And they sought to curtail American spending on the island to prevent proceeds from benefiting the Cuban military, government, and intelligence services. The latter basically made it illegal for US citizens to stay in government hotels, a change that benefitted the island’s burgeoning private B&B industry. The litigation suspension clause was not mentioned.
Proposed policy changes (even under the unconventional Trump administration) are usually discreetly floated, to test reaction. When Carlos heard about the change to Title III of Helms-Burton, he invited John Bolton to officially make the announcement at the Casa de la Brigada in Miami. Ambassador Bolton accepted and, on April 17, the 58th anniversary of the failed invasion, before the assembled surviving veterans of the Bay of Pigs, he opened the floodgates of litigation against entities profiting from the uncompensated stolen properties in Cuba by the Castro regime.
It’s not just today’s joint ventures that are in Helms-Burton’s crosshairs. Past joint ventures and foreign companies with management contracts are potentially liable.
I asked Carlos his impression of Bolton. “For such a giant mustache, I expected a big man. Instead, he’s surprisingly small [5’7”].”
“Coño, Carlos! I mean his character,” I groused.
“The man is a straight-up guy — listening, engaged and transparent,” he answered.
Foreign private company joint ventures with the Cuban government — which always retains a 51% interest — have roller-coastered since they were first proposed. The 1990s were their heyday, after the fall of the Soviet Union, when Cuba was desperate for cash. In the early 2000s, after Hugo Chávez was elected President of Venezuela and began subsidizing the Cuban economy, Cuba reverted to centralizing its economy, and foreign investment dried up. About 200 foreign joint ventures folded. In 2010, some 300 Spanish firms were begging for the payments they were due. As of 2011, about 250 joint ventures remained viable.
But it’s not just today’s joint ventures that are in Helms-Burton’s crosshairs. Past joint ventures and foreign companies with management contracts — any entities profiting in any way from expropriated properties — are potentially liable.
On May 2, Miami-based Carnival Cruise Line became the first US company sued for using property confiscated six decades ago by Cuba’s revolutionary government.
"There could be up to 200,000 uncertified claims . . . and that value could very easily be in the tens of billions of dollars.”
According to the Washington Post, “The actions, in federal court in Miami, were filed by two U.S. citizens whose parents owned commercial docks in Havana and in the southeastern Cuban city of Santiago. ‘The communist government,’ the claim said, ‘nationalized, expropriated, and seized ownership and control’ of the properties when their families fled the island in 1960.”
Kimberly Breier, assistant secretary of state for Western Hemisphere affairs, told reporters last month, “The most recent estimate we have from 1996, at the time that the law was enacted, [is] that there could be up to 200,000 uncertified claims . . . and that value could very easily be in the tens of billions of dollars.”
With Venezuela imploding and the specter of the liability of billions of dollars facing foreign investment in the island, Cuba faces a second “special period in Time of Peace” that will test the regime’s survival.