The US sanctions policy toward Cuba has been eased through the combined effort of Congress and the Obama Administration. On March 11, 2009 President Obama signed the Omnibus Appropriations Act of 2009 (Spending Bill), which includes provisions to ease restrictions on trade and travel to Cuba, shortly after the Obama Administration announced that it would review the US policy toward Cuba. On January 12, 2009 Secretary of State Clinton not only affirmed President Barak Obama’s campaign promise to review the Cuba sanctions policy but also stated that the Obama Administration intends to lift travel and remittance restrictions of Cuban-Americans to Cuba.
Certain members of Congress were key to the passage of the Cuba provisions in the Spending Bill. On February 23, 2009 Sen. Richard Lugar (R-Ind.) issued a Minority Staff Report of the Senate Foreign Relations Committee on the US’ Cuba sanctions policy (Lugar Report). The Lugar Report stated that “we must recognize the ineffectiveness of our current policy and deal with the Cuban regime in a way that enhances U.S. interests.” Two days later, the House of Representatives passed the Spending Bill by a vote of 245-178. Sens. Robert Menendez (D-N.J.) and Bill Nelson (D-Fla.), who are stalwarts for the current Cuba policy, initially opposed the passage of the Spending Bill because of the provisions easing Cuba sanctions. These two Senators agreed to vote for the passage of the Spending Bill only after Secretary of the Treasury Geithner provided assurances to them that the provisions do not constitute a major reversal of the US policy towards Cuba. The Office of Foreign Assets Control (OFAC), which is housed in the Department of Treasury, administers US sanctions policies including the Cuba sanctions program.
The Spending Bill includes several changes with respect to the Cuba sanctions program. Most notably, family members would be permitted to visit Cuba once a year rather than the current policy of once every three years. Further, family members would be allowed to spend US$170 per day, up from the current restriction of US$50 per day, during their annual visit to Cuba. This bill also contains language that would amend the Trade Sanctions Reform Act of 2000 to permit persons to travel to Cuba to market and sell agricultural and medical products under a general license, which need not be obtained in advance, rather than pursuant to a specific license, which requires a case-by-case review. Secretary Geithner, however, explained to Sens. Menendez and Nelson that only a narrow class of businesses would be eligible for this new business-oriented general license and that travel would only be authorized for credible sales of food and medical products. Although Secretary Geithner assured Sens. Menendez and Nelson that the “payment of cash in advance” regulation would remain in place, the Spending Bill eases the current “payment of cash in advance” restriction for agricultural exports to Cuba by allowing the payments at the time of entry into Cuba or while in transit rather than before the export out of the United States.
To further the environment of change, on March 2, 2009 Cuba President Raul Castro took an unexpected step which confuses the delicate balance of signals between the United States and Cuba. He replaced Foreign Minister Felipe Perez Roque, the former chief of staff to Fidel Castro, with Bruno Rodriguez, who is a career diplomat who has served as the ambassador the United Nations, as Foreign Minister. This is the first time that the foreign ministerial position has gone to a career foreign officer and not a political appointee. While leaving him in the position of vice president of the Council of State, Raul Castro removed Carlos Lage as the secretary of the Council of Ministers and appointed instead a general who last served as chief of staff at the Defense Ministry. Further, Raul Castro has signaled that he is open to negotiations with the Obama Administration. Such actions by Cuba have created an environment for the United States to revisit its 47-year Cuba sanctions program.
The Cuba sanctions program is contained in the Cuban Assets Control Regulations, Title 31 Part 515 of the US Code of Regulations, under the authority of the Trading with the Enemy Act. Through enactment of the Cuban Democracy Act of 1992 and the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (also known as the Helms-Burton Act), Congress strengthened the existing network of Cuba sanctions. The Helms-Burton Act is sometimes misconstrued as limiting executive power in terms of changing Cuba policy. Although Congressional action is required to formally end the embargo, the Helms-Burton Act actually allows the executive branch wide discretion to make changes to Cuba policy through executive order.
President Obama has the authority to make significant changes to Cuba policy by means of regulations, rulings, instructions, licensing or otherwise. He could exercise his discretion and utilize this regulatory tool by permitting travel to Cuba by all eligible persons via a general license, which provides blanket approval for certain exceptions to a sanctions program, rather than requiring a specific license, which must be considered and approved on a case-bycase basis. Past presidents have shaped Cuba sanctions by changing these regulations to reflect various policy priorities of their administrations. For example, President Clinton eased some remittance restrictions, increased the travel scope, and expanded agricultural exports to Cuba through licensing requirement changes. President George W. Bush, however, reversed President Clinton’s easing of sanctions by restricting the licensing requirements during his eight years in office. This Congress has indicated that it is reluctant to spearhead reform regarding US policy towards Cuba and signaled that major changes in the Cuba sanctions policy should come from the executive branch. Through its control over licensing authority, the Obama Administration has the power to further ease the embargo against Cuba.