Delisted in Havana

The U.S. State Department's recent recommendation that U.S. President Barack Obama take Cuba off the list of state sponsors of international terrorism removes a major roadblock to the re-establishment of diplomatic relations between Washington and Havana. If Obama acts on the recommendation on the eve of the Seventh Summit of the Americas convening in Panama this Friday, he will significantly strengthen Washington's diplomatic position in Latin America and create a positive atmosphere for his interactions with the hemisphere's other heads of state—including Cuban leader Raúl Castro.

To be sure, a decision to remove Cuba from the terrorist list will not end the domestic debate about whether Cuba belongs on the  list—or about Obama's broader opening to Cuba.  Congress has 45 days to review a president's determination before it goes into effect, and the Obama's conservative critics on the Hill will no doubt try to block Cuba's removal. They are not likely to succeed, however, since they would have to muster veto-proof majorities in both houses of Congress. But they will use the opportunity to redouble their criticism of Obama's Cuba policy in particular and his foreign policy in general.

Although the president's determination on Cuba seems straightforward—even obvious—the issues are complex. The law establishing the State Sponsors of Terrorism list, the Export Administration Act of 1979, at a minimum requires the president to certify that the country in question has not supported international terrorism in the past six months and has given assurances that it will not support it in the future. He would report that certification to Congress, and it would not become effective for 45 days, giving Congress an opportunity to try to overturn the finding. Meanwhile, the State Department will examine Cuba's recent behavior on the issues that were the basis for Cuba's inclusion on the list.

Cuba's original designation in 1982 was a politically motivated attempt by U.S. President Ronald Reagan to drum up support for his unpopular policies in Central America. Then, as now, the law governing the state sponsors list defines terrorism narrowly as "premeditated, politically motivated violence perpetrated against noncombatant targets." Prior to 1982, Washington distinguished between revolutionary movements and terrorist organizations. It did not list Cuba as a state sponsor of terrorism despite Havana's long-standing support for revolution. In the 1980s, however, while Havana was supporting revolutionary insurgents, especially in El Salvador, Washington, under the Reagan Doctrine, was backing counterrevolutionary ones. The administration called Cuba's allies "terrorists" and its own "freedom fighters." It never listed as terrorists the insurgent groups it supported in Afghanistan, Angola, and Nicaragua, despite their use of violence against noncombatants.

Over the years, as Cuba's support for revolutions abroad waned, the rationale for Cuba's inclusion on the state sponsors list shifted. Beginning in 1987, the annual reports acknowledged that the U.S. government was "unable to trace direct sponsorship of an international terrorist attack ... to Cuba." In the early 1990s, after Cuba formally ended its support for revolutionary movements abroad, the State Department reports added yet another rationale: Cuba's granting safe haven to members of the Basque ETA and Colombia Revolutionary Armed Forces of Colombia (FARC). The 1999 report acknowledged that Cuba remained on the list not because it was actively supporting insurgents but because it was "harboring past terrorists." This was not entirely consistent with the official definition of support for international terrorism, which specifies that giving "sanctuary" to terrorists means allowing them to "carry out terrorist activities" from a country’s national territory—something that Cuba has not allowed.

By 2014, the reasons cited for Cuba's listing had become remarkably weak. The latest report focuses exclusively on Cuba's harboring of ETA and FARC members and U.S. fugitives. It acknowledges that Cuba's links to the ETA have become "more distant" and that a number of ETA members have been relocated with the Spanish government's cooperation. The 2013 report also notes that Cuba has facilitated negotiations between the FARC and the Colombian government seeking to settle the hemisphere's longest guerrilla war.

The presence in Cuba of some 70 U.S. fugitives, especially those to whom Cuba has granted political asylum, has become a focal point of conservative opposition to taking Cuba off the state sponsors list. "Before Cuba is removed ... American fugitives must be brought back to face justice in the U.S.," Senator Robert Menendez (D-N.J.) wrote in a letter to Secretary of State John Kerry. Republican Senators David Vitter (La.), Marco Rubio (Fla.), and Ted Cruz (Tex.) sent a similar letter to Attorney General Eric Holder.

The U.S. fugitives living in Cuba were first mentioned in the State Department's 1988 report, which named William Morales and Joanne Chesimard. Morales, a Puerto Rican nationalist accused of conducting bombings in the United States, arrived in Cuba in 1988. Chesimard (a.k.a. Assata Shakur), a member of the Black Liberation Army convicted of killing a New Jersey state trooper, arrived in 1984.

The United States has every right to seek the extradition of U.S. fugitives from Cuba. However, since the U.S.-Cuban extradition treaty of 1904 is moribund and Cuba has granted Morales and Chesimard political asylum, they are not likely to be returned. Moreover, as Vidal noted, the United States has refused to extradite "dozens and dozens of Cuban citizens, some of them accused of horrible crimes, some accused of terrorism, murder and kidnapping." Foremost among them is Luis Posada Carriles, who orchestrated hotel bombings in Cuba in the 1990s and masterminded the 1976 bombing of a Cubana Airlines flight that killed all 73 passengers and crew.

That leaves the question of whether the U.S. fugitives remaining in Cuba are legitimate grounds for keeping Cuba on the terrorism list. Not if the legal basis of the list is taken seriously. The law defines "international terrorism" as "terrorism involving citizens or the territory of more than one country." Morales' and Chesimard's crimes may count as terrorism, but they do not fit the statutory definition of international terrorism, because they were crimes committed in the United States by U.S. citizens.

U.S. officials insist that the decision of whether to remove Cuba from the list of state sponsors of terrorism was made on the merits—"guided by the facts and the law," as Obama himself said on December 17. The case for Cuba's designation was never strong and has gotten weaker with every passing year. Cuba remained on the list for the same reason that the ineffectual policy of hostility toward Havana remained in place—no president had the political courage to change it.

Obama has crossed that Rubicon, opening the way for a policy based on the facts and the law rather than politics and ideology—not only regarding state sponsors of terrorism but also in overall U.S. relations with Cuba. With the terrorism list resolved, the reestablishment of normal diplomatic relations should follow quickly, along with progress on a wide range of issues of mutual interest that have been held up by this relic of the Cold War.