Saturday, November 24, 2012

Excerpts from suit by Alan and Judy Gross

Case 1:12-cv-01860-JEB Document 2 Filed 11/16/12
ALAN GROSS... and JUDITH GROSS, Plaintiffs, v.

COMPLAINT (excerpts)

since December 3, 2009. Mr. Gross is imprisoned in Cuba due to his work on a project that Defendant United States negligently directed, organized, and oversaw (pp 1-2)

Worse, Defendant DAI, with negligence, gross negligence and willful disregard for Plaintiffs’ rights, failed to take these basic remedial steps because doing so would have delayed or prevented DAI’s complete performance under part of a lucrative contract with Defendant United States, thereby depriving Defendant DAI of significant revenue. Indeed, upon information and belief, Defendant DAI’s business model depends upon obtaining and performing contracts with Defendant United States. Defendant DAI engaged in this behavior – putting profits before safety – (pp 2-3)

21. USAID’s “Cuba Democracy and Contingency Planning Program” (the “Cuba Program”) was developed pursuant to the Helms-Burton Act. 

22. USAID’s Cuba Program was “expressly designed to hasten Cuba’s peaceful transition to a democratic society.” Task Order No. DFD-I-03-00250-00 (“Cuba Task Order”) at B.1.1 One of its objectives is to “[d]evelop and . . . activate plans for launching a rapid-response programmatic platform that will meet USAID’s interest for having and coordinating an on-island presence.Id. (p 9)

66. The Subcontract stated that “[t]he pilot [project] will diminish portions of the information blockage by – on a limited test basis – establishing internet connections using multiple redundant devices in order to improve intra and intergroup communications channels. The pilot will . . . [e]nable target beneficiaries via training to use ICT devices to connect to the internet so that they can have regular and direct contact with each other and with JBDC, as well as enable access to a large volume [of] data and information not previously accessed . . . .” (p 18)

74. Upon information and belief, USAID, and the United States’ diplomatic mission in Cuba, were required to communicate with each other regularly regarding Mr. Gross’ trips to Cuba.

75. Upon information and belief, Mr. Gross was not provided with the same information that Defendants USAID and DAI possessed regarding the specific risks involved in performing this kind of project in Cuba. (p 19)

76. As discussed further below, Defendants DAI and United States breached their duty to protect Mr. Gross from specific risks that Defendants, based on their position, had the unique ability to know. Defendants also ignored Mr. Gross’ own expressions of concern about the Project, opting instead to continue an operation from which Defendant DAI stood to benefit financially and that Defendant United States was committed to ideologically. (p 20)

83. Instead, Defendant United States continued, without any adjustment, the Cuba ICT Project, using Mr. Gross as a pawn in its overall Cuban policy efforts. (P21)

91. A failure by Mr. Gross to complete the work would have jeopardized not only the millions of dollars owed to DAI by USAID on the Cuba Task Order, but, upon information and belief, also would have jeopardized other existing, and future, business generally between DAI and USAID. (p22)

102. In his fourth trip memorandum, Mr. Gross began his section on risk with the following sentence in bold lettering: “In no uncertain terms, this is very risky business.” To illustrate the risks involved, he described an incident during which Cuban customs officials attempted to seize some of his team’s equipment when they arrived at the airport in Havana. Fourth Trip Memo. at 5. He described efforts by Cuban authorities to detect or “sniff out” wireless networks and other unauthorized radio frequency use, especially outside of Havana. . He reiterated that the detection of these networks could result in arrests of his contacts there. (pp 23-24)

117. Notwithstanding the verdict by the Cuban court, Mr. Gross’ activities were entirely lawful under the laws of the United States. (p 26)

129. Mr. and Mrs. Gross likewise have suffered significant economic losses due to Mr. Gross’s wrongful arrest and continuing wrongful detention. (p 30)

139. Defendant United States’ breaches of its duties were a direct and proximate cause of Mr. Gross’ detention and imprisonment in Cuba and the injuries and damages suffered as a result. (p 32)

152. Defendant DAI’s breaches of its duties were a direct and proximate cause of Mr. Gross’ detention and imprisonment in Cuba and the injuries and damages suffered as a result. (p 34)

for full text of the Complaint, download from here

or go to

Thursday, November 8, 2012

Presidential Authority to Lift Most of Embargo

Use 'smart power' to help Cubans
Miami Herald Op Ed 2/24/09

Contrary to popular myth and public misunderstanding, if President Barack Obama wishes to change the U.S. policy toward Cuba, he has ample authority to do so. If he takes charge of Cuba policy, he can turn the embargo into an effective instrument of ''smart power'' to achieve the United States' policy objectives in Cuba.

Obama's leadership is needed to change the dynamic between the United States and Cuba. The status quo is no longer an option. Not only has it failed to achieve its goals; it has tarnished our image in the hemisphere and throughout the world. Waiting for Congress to act will only further delay change. Fortunately, even in the case of Cuba, Congress has not materially impaired this country's venerable constitutional arrangement under which the president has the ultimate authority to conduct our foreign affairs.

Executive authority

Again and again we hear that the embargo can't be changed because the Helms-Burton law codified it. Nothing could be further from the truth. Whether you agree or disagree with the current commercial embargo, the president can effectively dismantle it by using his executive authority. Helms-Burton codified the embargo regulation, but those regulations provide that ``all transactions are prohibited except as specifically authorized by the Secretary of the Treasury by means of regulations, rulings, instructions, and licenses.''

This means that the president's power remains unfettered. He can instruct the secretary to extend, revise or modify embargo regulations. The proof of this statement is that President Bill Clinton issued new regulations for expanded travel and remittances in order to help individuals and grow civil society.

Obama will have to modify Office of Foreign Assets Control regulations to fulfill his campaign promise to increase Cuban-American travel and remittances. If he wants to reproduce the more open conditions in Cuba that led to the ''Cuban Spring'' of 2002 and Oswaldo Payá's Varela Project, he could reinstate people-to-people and educational travel. By a simple rule change, he could also speed the entry of life-saving medicines from Cuba, rather than subjecting them to delays from cumbersome OFAC licensing procedures.

Since 1992, U.S. law -- the Cuban Democracy Act -- has sought to expand access to ideas, knowledge and information by licensing telecommunications goods and services. Yet, in practice, regulations are so strictly interpreted that the United States in effect is imposing a communications embargo on Cuba. To lift it, the president can authorize a general license for the donation and sale of radios, televisions and computers. In addition, rather than helping Cuban state security keep Yoani Sánchez and others off the Internet, the Obama administration could make Internet technology readily available so that any barriers to communications would be clearly the fault of the Cuban government, and not ours.

Environmental concerns rate high with the Obama administration. So it might open bilateral discussions, exchange information and license the provision of scientific equipment to improve the health of the ocean and success of commercial fisheries.

The United States Geological Survey estimates that the North Cuba Basin holds 5.5 billion barrels of oil and 9.8 trillion cubic feet of natural gas reserves. If the president wishes, he can instruct the secretary of the treasury to license U.S. companies to explore, exploit and transport these resources that we and the region so badly need.

Failed policy

After a half-century of failed policy, there is enormous support in the Cuban-American community for initiatives that will improve the well being and independence of the Cuban people. What they didn't know -- but know now -- is that there is no reason they can't reach out to the Cuban people and still retain the embargo as symbol of their concern about the Cuban government's failure to live up to international norms of human rights, democracy and transparency.

Vicki Huddleston is a visiting fellow at the Brookings Institution and former chief of the U.S. Interests Section in Havana. Carlos Pascual is vice president of the Brookings Institution. They are co-directors of the Brookings project on U.S. Policy Toward a Cuba in Transition.