In the last days of the outgoing Trump administration, then Secretary of State Mike Pompeo added Cuba back onto the list of State Sponsors of Terrorism, after it had been removed from the list in 2015 by the Obama-Biden administration. Biden has the power to remove Cuba from the State Sponsor of Terrorism list and reverse many Trump-era sanctions through executive action. However, Biden has chosen to defend Trump’s aggressive policies and the State Department has even argued that the legal reasons for keeping Cuba on this list are legitimate. Lawyers throughout the country are sending a clear message to Biden and the State Department: The legal argument for keeping Cuba on this list doesn't hold up.
Dear President Biden,
The undersigned are lawyers who write collectively with concern at the continued placement of Cuba on the list of State Sponsors of Terror (“SSOT”), a designation that was made by the State Department during the last week of the Trump administration. Recently, a letter was sent to you by 18 former heads of state asking that the United States lift its embargo and that Cuba be removed from the SSOT list. In addition, petitions signed by hundreds of civil society organizations and thousands of citizens have requested the same. It is half-way into your presidency and there has been no outward gesture or recognition that Cuba’s placement on this list was ever merited, especially considering that it had been removed just a few years prior by the Obama-Biden administration. There is no legal or moral justification for Cuba to remain on the State Sponsors of Terrorism list.
The State Department has said that they are undertaking a review of the criteria used by the former Secretary of State Mike Pompeo, which justified Cuba’s placement by noting that Cuba refused to extradite members of the Ejército de Liberación Nacional (“ELN”) who had traveled to Cuba to participate in a formal peace dialogue with the Colombian government. Cuba cited its clear obligation as a guarantor country for peace negotiations that they had an obligation to guarantee the well-being and safety of those who participated in the negotiations, and extradition both violated that obligation and also compromised the possibility of future peace talks. In addition, the Colombian constitution prohibits extradition for political crimes, which was reflected in the extradition treaty between Colombia and Cuba. Colombian President Gustavo Petro has specifically requested that the United States remove Cuba from the SSOT list and has asked Cuba to resume its role as a guarantor country for peace dialogue yet again with the ELN. While the undersigned dispute the original rationale given for justifying Cuba’s addition to the SSOT list, even if it had, it clearly no longer does.
In addition, Secretary of State Pompeo’s formal statement said that Cuba harbors U.S. fugitives who are wanted for political violence for acts committed nearly 50 years ago. Those acts have been characterized as terrorism by the Trump administration in order to satisfy the statutory requirement for adding Cuba to the list. In order to meet the definition laid out by the three federal statutes that establish a country’s designation as a state sponsor of terror, an act must both meet the definition of “terrorism” and be international in character. Cuba meets neither of these.
Undoubtedly, this point of concern about fugitives was raised and resolved by the Obama administration when Cuba was removed from the SSOT list. Even if that were not the case, international law clearly prohibits extradition for acts of political violence. To the extent that the 1904 extradition treaty between Cuba and the United States remains in effect and continues to be honored by both parties, it contains a standard political offense exception. This exception is premised upon a concept familiar to the United States, which is that individuals have a “right to resort to political activism to foster political change.” Indeed, this is precisely the type of “activism” that the United States designates millions of dollars to each year for regime change in Cuba. Chris Dodd, the new Special Presidential Advisor for Latin America that you just appointed, has stated that it is a false premise to equate political violence with terrorism. In addition, Cuba’s penal code prohibits extradition for crimes of a political nature.
A review of policy practice by the United States also reveals that failure to extradite a U.S. citizen wanted to face criminal charges has not been used as justification for placing a country on the SSOT list, aside from Cuba. Policy - and electoral - concerns are what appear to have always kept Cuba on the SSOT list, rather than actually meeting the legal requirements to be on there. As former Special Advisor on Cuba affairs to President Clinton, Richard Nuccio, noted, “Frankly, I don’t know anyone in or outside of government who believes in private that Cuba belongs on the terrorist list. People who defend it know it is a political calculation. It keeps a certain part of the voting public in Florida happy, and it doesn’t cost anything.” Given the tremendous economic, social, humanitarian and commercial effect placement on the SSOT list has had for the Cuban people, maintaining it for such pretextual reasons continues to be a stain on U.S. foreign policy.
We respectfully urge the administration to immediately initiate a review and notification process to remove Cuba from the SSOT list.
*This initiative is in partnership with ACERE