Trump Administration Set To Allow Individuals To Sue Foreign Companies Over Cuba

Really, this is all Bill Clinton’s fault.

The Helms-Burton Act was signed into law in 1996 and it, for the first time, codified the “Cuban Embargo” as a legislative act. Before that, the entire embargo was no more than a series of executive orders. But Bill Clinton signed the legislation in ’96.

Why? Weren’t we far removed from “Red Scares” by the mid-90s? Didn’t we know then that the economic embargo of the island had been totally ineffective at bringing down the Fidel Castro regime, and succeeded only in causing pain and hardship to poor people who had no ability to effect regime change in the Caribbean?

Sure, we knew all that by 1996, but let me tell you about this little place called “Florida.” There is a bloc of voters in Florida who are pretty much single-issue voters for whatever candidate promises to execute the most draconian policies against Castro’s Cuba. For my part, I don’t blame them. We’re talking about people who lost a lot — sometimes treasure, sometimes blood — when Castro came to power. If it happened to me or my family, I’d never forget it either.

But there was another way to go in 1996. While the Helms-Burton codification of the Cuban Embargo was kicking around Congress, Democrat Charlie Rangel submitted another bill to achieve the opposite effect: the “Free Trade with Cuba Act.” Rangel’s bill would have ended the embargo and opened a dialogue between the United States and Cuba.

Rangel’s bill did not pass, the Helms-Burton Act did, and Clinton signed it. This seems like a good time to mention that Bill Clinton won Florida by 6 points over Bob Dole in the 1996 presidential election. Could he have won Florida even if he opposed Helms-Burton? We’ll never know. What we do know is that even if Clinton had lost Florida in ’96, he still would have womped Dole. And we know that even an aggressively anti-Cuba stance couldn’t save Al Gore from Elian Gonzalez when Democrats needed Florida most.

In any event, Helms-Burton is why Barack Obama couldn’t just “end” the Cuban Embargo on his own authority when he attempted some Cuban rapprochement during his administration. Some presidents respect the, you know, law and stuff.

I just learned today that Helms-Burton did substantially more than codify the Cuban Embargo — it strengthened it and added a wrinkle I’d never heard of before. Apparently Title III of the Act allows U.S. individuals to sue companies that do business in Cuba involving land confiscated during the communist takeover. That includes foreign businesses, being hauled into American courts, for activities that take place not in America.

I didn’t know that part existed, because Helms-Burton allowed the president, at his or her discretion, to waive that provision, every six months. It turns out that every president has dutifully waived that part of the law, every six months, since 1996. Clinton, George W. Bush, and Obama, they all did it. Apparently, we have an “understanding” with our allies that this provision would never be used, because literally what company wants to get hauled into a foreign court for activities it does in a third country?

Now, Donald Trump is the president, and wouldn’t you know he has found yet another international norm that he can destroy. From NBC:

The Trump administration is expected to act as early as Monday to allow unprecedented lawsuits in American courts against some foreign companies doing business in Cuba, U.S. officials and others familiar with the move tell NBC News.

The move threatens to discourage more of the foreign investment in Cuba that provides the island’s economy with a key lifeline. It could also play into the Trump administration’s efforts to ostracize Venezuelan leader Nicolas Maduro, who is closely aligned with Cuba and whose country has been labeled by national security adviser John Bolton as part of a “Troika of Tyranny,” alongside Cuba and Nicaragua.

Because he’s Trump, and there is no deep political philosophy guiding his actions, there’s a chance that he could do this in a way that still protects our allies:

Trump administration officials have discussed several possibilities for whether to allow the law to go into effect fully or only partially, with the final decision being left to the very end. But the administration is likely to sign a “partial waiver” that protects U.S. businesses and those from allied nations from litigation, but allows lawsuits against businesses from “unfriendly” nations such as Russia and China, according to U.S. officials, congressional aides from both parties and other individuals briefed on the Trump administration’s deliberations…

Ambassador David O’Sullivan, the European Union’s envoy to the U.S., warned last month against violating what he said was an understanding between the U.S. and Europe that the Helms-Burton law wouldn’t be used to harm European interests in Cuba.

Who does this all help? Turns out, it’s a good time to be Airbnb in Cuba!

Another company that could be affected is Airbnb, whose operations in Cuba have been praised by Marco Rubio as helping average Cubans to benefit from tourism without sending revenue to the Cuban government. The law exempts residential property used solely for residential purposes from legal action, but it’s unclear how judges might apply that to those benefiting commercially from renting out their homes.

Of course, if Trump is doing it, it’s because he mainly thinks it will help him. Marco Rubio is on board and he knows that tossing red meat to the Cuban base in Florida is a good way to help Republicans win the state.

Like I said, all of this is really Bill Clinton’s fault. He could have vetoed Helms-Burton. He could have ended the executive orders that made up the Cuban Embargo. He could have started the difficult project of persuading voters that the Cuban Embargo had been a failure, and worked with Republicans who used to be about be about “free trade,” back before that party was overrun by protectionists.

Instead, he signed a bad law that helped him win reelection. Having secured reelection, in 1998 — with one foot out of the door and the other foot in Monica Lewinsky — Clinton actually signed legislation easing the embargo. Again, there’s no deep international ideology at work here, just a series of expediency calculations on how to bully an island nation for the people who want that, against how to seem “tough but fair” to the people who want that.

Now Donald Trump is acting within his own political expediency interests, and has somehow figured out a way to make everything worse.

Trump admin to let Americans sue some foreign firms doing business in Cuba [NBC News]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.