As tensions between the US government and Cuba’s leadership continue to escalate in tandem with continued talk of back-channel discussions between the two, we are receiving a confusing picture of the actual state of those relations. There is also even more confusion over possible developments in the near future, in what we can describe as the ongoing “war” being waged on Cuba by the Trump administration — a war in which a new front has recently been opened with two legal decisions taken in late May.

On May 20, coinciding with the anniversary of Cuba’s questionable independence in 1902, US federal prosecutors acted to unseal an April 23 indictment against Cuba’s former leader, Raúl Castro, following a Miami judge’s decision to allow them to do so. A day later, the US Supreme Court voted 8 to 1 to reaffirm a previous ruling against four major cruise lines whose ships have made stops in Cuba.

The ruling endorsed a $440 million claim by Havana Docks, a US company. Having built the docks back in 1905 with a ninety-nine-year lease that gave them the right to operate the port until it expired, the company had its property confiscated by the Cuban government in 1960.

An appeals court had previously rejected the claim, on the grounds that ninety-nine years had already passed since 1905. However, the Supreme Court has now overruled that judgement, arguing that “those who use property tainted by a past confiscation [are] liable to any United States national who owns a claim to that property.”

Helms-Burton

Although neither decision is likely to be acted upon speedily, for different reasons, they nonetheless both effectively reinforce the prolonged series of measures taken by Donald Trump since 2017 to tighten the US embargo. They have allowed those measures to take on a new and worrying meaning for Cuba’s government and people.

In both cases, the new threat arises from the pathbreaking decision by Trump in his first presidency to end a presidential waiver over the enactment of Title III in the Cuban Liberty and Democratic Solidarity Act — the piece of legislation commonly known as the Helms-Burton Act, after its main proposers. Successive US presidents had continued invoking the waiver from 1996 until Trump let it expire.

The context for all that was the episode for which Raúl Castro has now been indicted in Miami. Cuba’s defense forces shot down two planes piloted and owned by US citizens in Florida, killing all of those on board. Revealingly, both governments showed an unusual degree of caution at the time in dealing with this potentially dangerous act.

This was partly because the US authorities, knowing of the clear intention of the pilots to breach Cuban airspace, had warned them and their organization Hermanos al Rescate (“Brothers to the Rescue”) that they risked being targeted by Cuban defenses. This was a warning that they duly ignored, with the eventual result.

One outcome of the controversy, however, was a change in Bill Clinton’s approach to Cuba. Clinton had previously opposed the Helms-Burton Act, mostly because it aimed to extend the embargo’s reach to countries other than the United States. This risked jeopardizing relations with the rest of a world that was largely opposed to the embargo. Under pressure to punish Cuba and appease the powerful Cuban-American lobby, Clinton now decided to sign the Act into law.

However, he did so with a presidential waiver of Title III. This clause specifically allowed US citizens to take legal action against non-US entities for trading in property once owned by Cubans who were now based in the United States, with their assets having been confiscated by the Cuban government after the revolution of 1959. While the slightly emasculated law did nonetheless succeed in dissuading more enterprises outside the United States from engaging in commercial relations with Cuba, the rest of the world still tended to ignore it.

Repeated votes in the UN General Assembly after 1993 in support of an annual Cuban motion to condemn the US embargo effectively confirmed that it was illegal under international law. Successive US governments ignored such votes, with the brief exception of the Obama administration. Over the years, until Trump changed the rules of the game on Cuba, only the United States and Israel would vote against the annual Cuban motion. The rest of the world voted to condemn the embargo, with a handful of abstentions, usually by small states seeking US aid.

To the Rescue?

One interesting aspect to it all was the role of Hermanos al Rescate. The organization had been created in the mid-1990s by José Basulto, a veteran of anti-Castro activities and of the notorious Operation Mongoose strategy of sabotage and violence inside Cuba (in the course of which Basulto admitted firing on a Cuban hotel). Its aim was to identify and rescue Cuban “boat people” crossing the Florida Straits, which meant bringing them to US soil.

As Cuba suffered in the immediate post-Soviet economic crisis, a wave of illegal emigration to the United States began. This wave was tolerated by the Cuban authorities but feared by US immigration officials who worried about Florida being swamped, leading to a repeat of the effects of the 1980 Mariel exodus.

In 1994, there was a US-Cuban migration agreement, aiming to control the exodus by making a distinction between “wet-foot” migrants (those picked up at sea, who would be returned to Cuba) and “dry-foot” migrants. Under the 1966 Cuban Adjustment Law, those in the second category would be allowed to seek US residence and eventual citizenship after reaching dry land.

By early 1996, rumors were rife in Washington that Clinton was considering moves to ease relations with Cuba. This prompted Hermanos to end those thoughts by seeking to provoke a Cuban reaction through entering Cuban airspace. Indeed, any such plans were thereafter put on ice until Barack Obama decided famously in 2014 to raise the level of Cuba’s recognition by the United States. (In 1977, Jimmy Carter had taken a first step to eventual full recognition with “interest sections” being established at third-party embassies in the respective capitals of the two states.)

State of Preparedness

Where does this all leave Cuba? Raúl Castro was Cuba’s minister of defense in 1996 and head of the Revolutionary Armed Forces (FAR), whose officers presumably took the decision to shoot down the planes. We can see his indictment either as a first step toward enacting a Nicolás Maduro–style illegal incursion and seizure in order to bring him to US justice, or alternatively as a rhetorical raising of the temperature in what are already deeply damaged bilateral relations between Havana and Washington.

The probability is that US political and military circles still consider any attempt to repeat the Maduro action in Cuba to be much more difficult and politically risky than what unfolded in Venezuela. Quite simply, the Cuban FAR have always been ready to resist any external military action against Cuba.

This is a state of preparedness that includes training and arming nonmilitary citizens, through the FAR reserve forces, the national network of defense units (the street-level Committees for the Defence of the Revolution, CDR), and civilian militias. Moreover, the FAR remains loyal to Raúl Castro, in contrast with the unreliable role played by the Venezuelan military in the case of Maduro, a situation that led to Venezuela’s president relying on thirty-two Cuban troops to act as his bodyguard.

Moreover, Raúl still enjoys a high degree of popular respect for his historical legitimacy (as one of the three leaders of the 1953–58 rebellion) and for his association with the many economic reforms that he led from 1993 and then took further as president from 2008. Of course, any prediction about what could happen in US-Cuban relations has to be tempered by consideration of Trump’s fundamental unpredictability. We should therefore not rule out a Maduro-style attack, and Cubans certainly do not rule it out, fearing the consequences.

We must therefore pay real attention to the other legal decision by the US Supreme Court. This does seem to open the door to legal claims in the United States against foreign enterprises that trade in properties nationalized during the early years of the revolution.

Chilling Effect

One caveat we must enter here is that, under existing US law, individual claims can only be made by those who were already US citizens at the time of any confiscation. The majority of Cuban Americans seeking to take advantage of the Helms-Burton Law would not qualify.

However, the decision does now allow companies to make claims, as they were more clearly established as US entities at the time of confiscation. Hence there will be a ripple effect from the court decision, just as there was as soon as Trump ended the Title III waiver.

While many European and Canadian enterprises continued to trade with Cuba after Trump’s move, there was a visible reluctance among potential investors to engage with Cuba given the legal uncertainty. This was especially true as Joe Biden’s presidency did not follow Obama’s lead, as had been expected, and continued to operate the embargo just as Trump left it.

Biden also followed Trump’s lead by continuing to label Cuba as a state sponsor of terrorism. Even though most other governments reject this categorization, non-US banks and insurance companies have increasingly come to acknowledge it by refusing to engage in commercial and financial activities with Cuban entities, breaking EU and British freedom of trade laws with impunity. The effect has been disastrous for transactions by Cuba and individual Cubans with foreign entities, severely constricting any meaningful economic relations with the outside world.

Defining the Enemy

All of this forms part of the much wider picture of unremitting economic and political war against Cuba. The use of the term “war” might seem exaggerated given the lack of actual fighting, in contrast with Trump’s other war against Iran. However, it is always salutary to recall that when the US government formally codified the embargo in 1963 — it had previously been partial and limited — it did so under the rubric of the 1917 Trading with the Enemy Act. This move legally defined Cuba as an enemy of the United States.

The 1963 framework remains the legal instrument for any president in dealing with Cuba. However, it has now been overtaken by yet another effect of the 1996 Helms-Burton Act, which thenceforth requires a two-thirds vote of both houses of Congress to repeal it. This effectively gives the act a status equal to most treaties to which the United States is a party.

The point about Washington using the 1917 act as a mechanism is that it serves as a reminder of Cuba’s situation, formally at war with a power that considers it to be a threat. The principal weapon for the war has therefore been the embargo.

While Cuba had an effective and successful economic relationship with the Soviet-led bloc, chiefly between 1972 and 1990, the embargo tended to decline in importance. Greater recognition of and trade with Cuba on the part of other Latin American countries contributed to this. Cuba’s previous status of being under siege in the context of a war seemed to be fading into the past.

However, the collapse of the USSR had another effect in addition to the awful economic crisis that followed. In the secret protocol of the Cuban Missile Crisis agreement of 1962, the United States had undertaken not to invade Cuba. This created an unusual situation for Cuba over the next three decades: it enjoyed the ability to act abroad with a degree of impunity, challenging both superpowers by its active support for armed revolution in Latin America and armed anti-colonialism in Africa and Asia.

Washington gave that undertaking to the Soviet Union, not Cuba itself. After 1991, the Soviet Union no longer existed. That persuaded Cuba’s leaders of the real possibility of a different US policy, one of war rather than embargo, at a time when Cuba could least effectively defend itself. Ultimately, Clinton had no interest in waging war on Cuba and simply remained committed to the embargo. But the threat remained and has returned in spades under a different Washington regime.

Conjuring Up a Threat

The idea of Cuba as a threat has also resurfaced in US approaches to the country in ways that echo historical usages of the term. Going all the way back to the start of the nineteenth century, from Thomas Jefferson onward, US thoughts of taking control of the island were fueled by the fear of another power (usually Britain early on) taking some degree of control over an independent Cuba. In this scenario, the threat was the other power that might in future establish its influence on Cuban soil.

After the interregnum of US control — direct between 1902 and 1934, indirect from that point until 1959 — communism became the new bogeyman. The term “communism” as used by US officials referred both to an ideological threat that offered Latin Americans a popular alternative to the US-backed status quo and also to a strategic threat from the Soviet Union.

The United States thus began to impose sanctions in mid-1960 after the first Cuban–Soviet commercial exchange of sugar for oil. Thereafter it justified those sanctions by reference to the Soviet presence, real or imagined, and the threat arising from Cuba’s image of successful resistance, in addition to any support from Havana for “communist” revolution (which might or might not be led by communists).

Now, after his success with Maduro, Trump has reminded the whole of Latin America about the history of US imperialism, proudly donning the garb of James Monroe’s Doctrine and Teddy Roosevelt’s Corollary. He and Marco Rubio have also resurrected the notion of a threat from Cuba, more than two centuries after the United States first began taking an interest in the island. That supposed threat might offer precisely the justification that Trump could welcome as the pretext for an aggressive military intervention.

This article was originally published by Jacobin; please consider supporting the original publication, and read the original version at the link above.