Re-signing TWEA is a positive development

When it comes to the contentious history between the government of the United States and the Cuban Revolution, nothing is ever as it seems.

The latest example is the re-signing last week by President Obama of the Trading With the Enemy Act (TWEA), the legislative underpinning of the embargo and travel restrictions against Cuba since the early 1960s. The Act was originally legislated in 1917 against the German nation during World War I. The law gives the President the power to oversee or restrict any and all trade and travel between the United States and its enemies in times of war or perceived national security threat. Cuba remains the only country the Act still applies to.

The Act has to be renewed annually by the sitting President, and there was much speculation that Obama would not re-sign the authorization when it came up this September due to the process of normalization between the two nations that he initiated last December. Many Cuban watchers predicted Obama would end the Act’s application against Cuba as a demonstration of goodwill, particularly after Secretary of State John Kerry stated at last month’s flag raising ceremony during the reopening of the embassy in Havana that the US and Cuba were neither rivals nor enemies. When Obama did put his name again to the legislation on September 11, it seemed that America’s hostile strategy against the island nation was to continue unchanged.

The opposite, however, is true. Obama had to re-sign the Act in order to maintain and accelerate the normalization process with Cuba. The president’s signature was actually a demonstration of his commitment to his new Cuban policy. And that’s where the complexity of US-Cuba relations shows itself once again.

As remarked by a few Cuban experts, notably veteran sanctions lawyer Robert Muse, Obama had to sign the Act for another year to guarantee he would be able to sustain his authority to weaken the embargo and travel restrictions.

The Act gives the president the power to oversee or restrict any and all trade and travel between the United States and the country it is used against; to determine how forcefully those measures should be implemented. So while it may seem to indicate the US still considers itself to be at war with Cuba, or considers Cuba to be a national security threat, it is the flexibility the Act gives to the President that is the key here. Since the December announcement Obama has used his presidential authority to weaken the embargo and travel restrictions, made possible only under the provisions of the Act.

If he had not re-signed the Act, then all of the legislation that covers the embargo and travel restrictions would evolve completely under the control of Congress – where President Clinton placed it in 1996 when he signed the Helms-Burton Act. Congressional legislation does not provide any flexibility to alter or diminish the embargo – only the President can do it under the TWEA – and that authority supersedes congressional power. The president will no longer need to re-sign the Act once the anti-Cuba legislation in Congress is repealed. And that may take a few more years, if and when the Democrats once again take control of Congress.

Even more essential, failure to renew “the exercise of certain authorities” under TWEA could have led to the turning back of every move Obama has taken to weaken the embargo and travel restrictions. That could have resulted in the reversal of his allowing Cuban-Americans to visit the island without limitations, for more remittances to be sent back, to expand US travel under easier licensing provisions, and to encourage American businesses to start exploring relations with Cuba. Not signing would have put US-Cuba relations back 20 years.

In other words, Obama had to renew the embargo under TWEA, so he can keep the power to continue watering it down. That contradiction is yet another illustration of the complex relationship these two countries have had for the past 50 years. It is never as simple or straightforward as it looks when it comes to US-Cuban affairs.

While Obama not re-signing the TWEA might have been some symbolic gesture to the new relationship, it would have meant giving up his powers to weaken the embargo and move the normalization process ahead. The re-signing technically means the US considers Cuba to still be a national security threat — undoubtedly Cuba feels the same way about the US — and until normalization is complete that wariness on both sides of the Florida Straits will continue throughout the future negotiations.

A more revealing symbol of America’s new attitude towards Cuba may be apparent in a few weeks when the annual United Nations vote against the Cuban embargo comes up. For the past number of years only the United States and Israel voted in favor of keeping the embargo (along with one of the small Pacific islands). It will be interesting to see America’s position this October, as there is no political consequence to at least abstain from voting. It would be hard to imagine the United States, in the process of normalizing relations, would continue to show the rest of the world it really hasn’t changed its policy against Cuba. But when it comes to Cuba, don’t be surprised if the obvious position is not what it seems.

Keith Bolender is a freelance journalist author of Cuba Under Siege (Palgrave 2012); and Voices From the Other Side; An Oral History of Terrorism Against Cuba (Pluto Press 2010).

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