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U.S.-Cuba litigation keeps D.C. attorney Robert Muse busy
CubaNews / December 2005

By Larry Luxner

If the United States established full diplomatic and trade ties with Cuba, Robert Muse would see about half his business dry up.

The Washington attorney has literally made a career out of the U.S.-Cuba debacle, doing everything from helping executives get Treasury Department travel licenses to delving into obscure, 45-year-old property claims against the Castro regime. Along the way, he’s also spoken at conferences and has written dozens of articles for legal journals.

“If someone wants to know what U.S. policy towards Cuba is, his first stop should be a law library,” Muse told CubaNews in a lenghty interview at his Washington law office.

“It’s not like foreign policies towards other countries. It’s now within presidential prerogative to decide whether to take a new direction with Cuba. I’ve seen close to 20 years worth of congressional laws that have explicity sought to eliminate presidential discretion in dealing with Cuba. Helms-Burton mandates that there can be no suspension or termination of the present embargo unless Cuba meets a set of enumerated requirements. As a result, lawyers figure prominently.”

Muse, 55, grew up in southern Arizona, lived in England and qualified there as a barrister. After earning his law degree from Georgetown University, he was admitted to the District of Columbia Bar in 1984. He worked for large law firms such as Patterson Belknap Webb & Tyler until 1991, “and I’ve been mercifully free of them since then.”

Muse has also been to Cuba eight or 10 times since 1989, when he began dealing with the ever-present claims issue.

“At that time, I was representing a company that has a large certified claim against Cuba for properties lost in 1960. Over the years, I’ve advised that company and others on rights and remedies under international law. This became acute in the early 1990s. There was a feeling there would be a rapid political change in Cuba — a naïve assumption in retrospect on the part of companies and the lawyers they employed.”

The attorney said he continues to represent several certified claimants. He’s also helped other clients in matters involving U.S. policy on Cuba, including Alcatel (France); Repsol and Telefónica (Spain); EMI (Great Britain), Oxfam (Belgium), Connecticut Public Broad-casting and the New York Botanical Garden.

Muse estimates there are a dozen or so lawyers, mainly in Washington, who do Cuba-related work — often helping U.S. companies with Office of Foreign Assets Control (OFAC) compliance issues — though he says “I don’t think anybody makes it full-time.” Other prominent lawyers include Michael Krinsky, a New York attorney who represents the Castro government in the Cohiba trademark dispute, and José Pertierra, an immigration lawyer who’s representing the Venezuelan government in its efforts to bring alleged terrorist Luís Posada Carriles to justice.

Muse, who spends about 50% of his time on Cuba issues, has a small staff, “just me and two guys who work for me.”

Among other things, he represents the Emergency Coalition to Defend Educational Travel on a pro bono basis. The group, housed at Washington’s Center for International Policy, is a consortium of universities that have been hurt by the Cuba travel ban. Former U.S. diplomat and outspoken White House critic Wayne Smith is also involved in this coalition.

“Congress has said there should be no restrictions on educational travel,” said Muse. “What the government did last year in telling universities who could teach their programs on Cuba, who could attend their programs and how long the courses had to be, is an intrusion into acacemic freedom. Congress should either take away from the Bush administration the power to regulate such academic programs in Cuba, or a court should step in and strike this down.”

Another lucrative area for Muse is advising non-U.S. companies that want to trade with or invest in Cuba, but are wary of violating the 1996 Helms-Burton Act.

“Foreign companies that are contemplating investing in Cuba, particularly if they have a subsidiary here, are fully subject to the embargo. So there’s a requirement for legal counseling on what is the scope and extent of Helms-Burton,” he said. “But foreign companies, as long as they remain foreign, are not subject to the embargo.”

A good example of this is the Haier Group, China’s fourth-largest appliance and electronics manufacturer. The company recently announced it would produce one million TV sets at a factory in Havana. Haier’s U.S. headquarters is in New York; it also operates a factory in Camden, S.C., where it produces refrigerators for Wal-Mart and other large U.S. retailers (see CubaNews, August 2005, page 12).

“No doubt, they’ll be seeking legal advice as to how to maintain a strict separation between their operations in South Carolina and whatever they’re doing in Cuba,” said Muse. “They would have to be careful that nothing manufactured in the United States ends up being shipped to Cuba.”

He added: “U.S. companies cannot be held liable for diversions of their products that have occurred without their knowelge by third-country nationals. As long as the U.S. company is able to show they acted in good faith and neither knew nor had reason to know the goods were being sent to Cuba, they can’t be held liable.”

On one of his more recent trips to the island, Muse accompanied a delegation from National Public Radio, counseling NPR on U.S. laws relating to Cuba and broadcasting. He’s also counseled various farm groups on the Trade Sanctions Reform and Export Enhancement Act, which allows food sales to Cuba on a cash-only basis.

Muse says he has “formal” relations with the Cuban Interests Section in Washington, usually involving OFAC licensing issues and the thorny issue of the U.S. Naval Base at Guantánamo Bay — now being used as a dumping ground for suspected terrorists.

“I think the U.S. has behaved badly over Guantánamo,” he told us. “To persist and occupy an important area of another country against that country’s will for no other reason than that you have the power to do so is not very admirable. We’re in direct violation of the lease and have been, openly, for many years. It’s just one more example of the U.S. government’s adolescent attempt to provoke Cuba — and I’m not sure the base has any strategic or tactical importance.”

But Muse is perhaps best known for his work on the Cuba claims issue, which has been languishing ever since Fidel Castro’s property expropriations in the early 1960s. Between 1966 and 1972, the U.S. Foreign Claims Settlement Commission (FCSC) received 8,816 claims, eventually certifying 5,911 claimants whose loss was fixed at around $1.85 billion. If interest were included at the annual rate of 6%, those claims would today be worth over $6.8 billion.

Yet earlier this year, one of the world’s largest hotel conglomerates convinced the U.S. Justice Department to inject new life into that long-dormant Cuba claims registry.

Starwood Hotels & Resorts Worldwide Inc. became the first U.S. entity since 1967 to filie a claim against Cuba with the FCSC. The claim stemmed from Starwood’s Sheraton division, which had inherited some of ITT Corp.’s claims in Cuba, including an obscure telephone company that owned 500 acres of land near Havana’s international airport. Starwood claims that this land, along with a few buildings, is worth $63 million today (see CubaNews, September 2005, page 2).

“Given the breadth of the expropriation decrees in Cuba from 1959 onward, it strikes me as very unlikely that any substantial U.S. property remained unexpropriated by 1967,” said Muse. “That’s why I’m surprised that this claim has surfaced from the old ITT.” Muse says “there’s no question that Star-wood lobbied the government to open the claims program, adding that “it’s very unusual to institute a claims program on behalf of one company.”

The problem, he explained, is that this could spawn a huge number of claims by Cuban-Americans, because in order to be eligible to file a claim, one must have been a U.S. citizen at the time of confiscation.

“Let’s say you’re a Cuban-American who came to the U.S. in 1980 and were naturalized 10 years later. Then your sole surviving parent dies in Cuba, willing her house to you. Cuban law recognizes private property, and its 1988 General Housing Law allows for the inheritance of residential properties. Because you’re unwilling to return to Cuba and live there, the Cuban government takes the house and gives it to a family in need of housing. Under U.S. claims law, you’ve had your property taken by the Cuban government and are therefore eligible to file a claim.”

This, he warned, will have two serious consequences.

“If these claims are filed, I think they’re going to complicate any eventual settlement with Cuba,” he said. “Also, I think the Cuban government will predictably take the position that what it does with properties owned by Cuban nationals within its own borders is a domestic affair, and that the U.S. is intruding into their sovereign area of jurisdiction.”

Muse pointed out that there’s never been a resumption of U.S. trade with an embargoed nation — China, East Germany, Vietnam are all examples — without first a settlement of outstanding property claims.

“Every major claim against Cuba resides in a corporate general counsel’s office. They’re all entitled to fair market value at the time of expropriation,” he said. “If we don’t settle the claims, it’ll be almost impossible to resume trade because of litigation and attempts to seize the property. But they will be settled.”

For now, Muse seems pessimistic about U.S.-Cuba relations, at least as long as George W. Bush is in the White House and Fidel Castro remains at the helm in Havana.

“I have watched a proliferation of laws directed against Cuba, and I can’t think of anything left that we can do to Cuba. I sometimes wonder if, in the mid-1990s, a rapproachement might have been possible. This now seems almost impossible under the current administration. It may be that [U.S.-Cuba] relations are now frozen until the death of the current head of state.”

As such, Muse thinks the State Depart-ment’s recent appointment of Caleb McCarry as its new “Cuba transition coordinator” (see our profile of McCarry in the October 2005 issue of CubaNews) is largely irrelevant.

“Events in Cuba will take their own course. If history teaches us anything, it teaches us that,” he told us. “The U.S. response to these events, the so-called ‘transition,’ will be dictated by the necessities of the day, and even the hour. There’ll be many competing interests, all attempting to influence policy in a very ad hoc and improvised manner. So I suspect that the position will turn out to be a rather hollow one. It’s just a political debt to the exiles.”

Muse added: “I’m happy to criticize the administration when I think it’s behaving unlawfully or stupidly, but I am not a lobbyist. That’s not my job. I deal in the law.”

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