Lawyers: U.S. put Alan Gross in danger

The U.S. government violated its own security guidelines when it sent Alan Gross on the first of five trips to Cuba, then failed to protect him after he expressed concern about his safety, his lawyers said in documents filed in the U.S. Court of Appeals in Washington, D.C.

Cuban authorities arrested Gross on Dec. 3, 2009, and he was later convicted of crimes against the Cuban state.

When Gross turned 65 in May he told his lawyer he’d rather be dead than spend another birthday behind bars. A 49-page brief filed in court states:

Although Mr. Gross’s plight continues to receive national and international media attention, he remains imprisoned in Cuba more than four years after his arrest. Mr. Gross endures harsh conditions, and faces another decade of imprisonment. Mr. Gross’s health has deteriorated, his family has been torn apart, and his business and career have been destroyed.

On Friday, lawyers for Gross told a three-judge panel of the Court of Appeals that he and his wife should have the right to sue the U.S. government and collect damages.

U.S. District Court Judge James E. Boasberg rejected that argument in 2013.

Many private claims against the U.S. government never go forward because the government has what’s known as sovereign immunity.

The Federal Tort Claims Act, or FTCA, waives that immunity in certain cases.

Lawyers for the government say the FTCA doesn’t apply to the Gross case. They say he can’t make a claim against the U.S. government for harm he has suffered as a result of his jailing in a foreign country.

Gross’s lawyers – Scott D. Gilbert, Barry I. Buchman, Natalie A. Baughman and Emily P. Grim – disagree.

They say his project in Cuba was “organized, directed, funded, and overseen” by the U.S. government.

Gross was a subcontractor for DAI, a Maryland company that was carrying out a Cuba project on behalf of the U.S. Agency for International Development. DAI settled with Alan and Judy Gross for an undisclosed sum in 2013, but their lawsuit against the U.S. government was dismissed.

In their appeal, the couple’s lawyers accused the U.S. government of putting Alan Gross at risk. A court document states:

In failing to provide Mr. Gross with any education, training, or warnings, and in failing to supervise and control Mr. Gross’s travel to Cuba properly, the Government violated not only traditional common-law standards, but also express duties set forth in the Prime Contract and the Cuba Task Order. The Government also violated numerous government standards for ensuring the safety of participants on USAID-funded projects. Specifically, among other things, USAID must:
(1) educate USAID personnel regarding foreign threats, and (2) follow strict procedures for reporting by personnel who learn of, among other things, “attempted or actual espionage, subversion, sabotage, terrorism or extremist activities directed against USAID and its personnel, facilities, resources, and activities.” (See USAID counterintelligence guidelines).

The lawyers say Gross never had a security clearance in connection to his Cuba work and so he “never had access to the information that DAI and USAID possessed about potential risks.”

The court document stated:

To achieve the objectives in the Prime Contract, Mr. Gross, through his business, JBDC LLC, entered into a subcontract with DAI on February 10, 2009, for a project intended to increase internet access in Cuba.
Specifically, Mr. Gross proposed to train the Jewish community in Cuba on the use and maintenance of Information and Communication Technologies (“ICTs”) through, among other things, the use of mobile phones, wireless technologies, and personal computers.
Mr. Gross made five trips to Cuba in connection with the Cuba Project, each of which was approved by the Government.
After each trip, he wrote a memorandum to DAI, which was transmitted to USAID. Over the course of these trips, Mr. Gross expressed increasing levels of concern about the risks associated with the Cuba Project.
After his fourth trip, in particular, Mr. Gross expressed heightened concerns because Cuban customs officials had tried to seize some of his team’s equipment when they arrived at the airport in Havana.
Despite these concerns, Mr. Gross was encouraged to continue with the Cuba Project. Specifically, after Mr. Gross’s fourth trip, USAID approved certain “follow on” activities that expanded the scope of the Cuba Project.
Not only did USAID continually fail to provide Mr. Gross with any training, education, or warnings, but the Government also failed to cancel or delay Mr. Gross’s additional travel to Cuba or to call him back to the United States.
Mr. Gross then made a fifth trip to Cuba, during which he was arrested and detained.
Shortly after Mr. Gross’s arrest, his laptop was retrieved from his wife, Judy, at the Grosses’ home and “wipe[d]” for his “protection.”

Lawyers for the government say “the import and relevance of this reference are unclear.”

In any case, DAI wiped the laptop, not the U.S. government, they say. The lawyers write:

There is no mention of any involvement by the United States, its agencies, or its employees.

A 38-page brief filed by the government says DAI began talking to Gross about working in Cuba during the fall of 2008.

DAI was interested in a project to “design and implement new media initiatives” and “focus on increasing the communication and understanding of events on the ground in Cuba; [including] breaking down barriers to Cuban citizens’ access to information.”
In response to DAI’s Request for Proposal, Mr. Gross submitted a detailed proposal in November 2008 that contemplated training the Jewish community in Cuba on the use and maintenance of information and communication technologies.
Mr. Gross’s proposal contemplated that he would travel to Cuba to interface with members of the Cuban Jewish community on logistics, training, and implementation.

USAID approved Gross as DAI’s subcontractor, the brief said, and he went to work:

to develop a pilot project to “diminish portions of the information blockage by . . . establishing internet connections using multiple redundant devices in order to improve intra and intergroup communications channels” and “[e]nable target beneficiaries via training to use [information and communication technology] 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.”

The government brief is signed by U.S. Attorney Ronald C. Machen Jr., appointed by Barack

Obama on Dec. 24, 2009, just weeks after Gross landed in jail.

The document argues that Gross can’t sue the U.S. government for damages, but expresses concern for his well-being:

Mr. Gross’s imprisonment by the Cuban authorities is deplorable, and the United States has been and remains steadfastly committed to securing his immediate release. To that end, the United States Government continues to use every appropriate diplomatic channel to press for Cuba to release Mr. Gross unconditionally and allow him to return home to his family.

Court documents don’t indicate when the appeals court panel will rule in the case.
The three judges who heard the appeal include:

• Judith Ann Wilson Rogers, nominated by then-President Bill Clinton.
• Karen LeCraft Henderson, nominated by then-President George H. W. Bush.
• Brett M. Kavanaugh, former assistant and staff secretary to George W. Bush.