Contrary to popular myth and public misunderstanding, if President Barack Obama wishes to change the U.S. policy toward Cuba, he has ample authority to do so. If he takes charge of Cuba policy, he can turn the embargo into an effective instrument of ”smart power” to achieve the United States’ policy objectives in Cuba.
Obama’s leadership is needed to change the dynamic between the United States and Cuba. The status quo is no longer an option. Not only has it failed to achieve its goals; it has tarnished our image in the hemisphere and throughout the world. Waiting for Congress to act will only further delay change. Fortunately, even in the case of Cuba, Congress has not materially impaired this country’s venerable constitutional arrangement under which the president has the ultimate authority to conduct our foreign affairs.
Again and again we hear that the embargo can’t be changed because the Helms-Burton law codified it. Nothing could be further from the truth. Whether you agree or disagree with the current commercial embargo, the president can effectively dismantle it by using his executive authority. Helms-Burton codified the embargo regulation, but those regulations provide that “all transactions are prohibited except as specifically authorized by the Secretary of the Treasury by means of regulations, rulings, instructions, and licenses.”
This means that the president’s power remains unfettered. He can instruct the secretary to extend, revise or modify embargo regulations. The proof of this statement is that President Bill Clinton issued new regulations for expanded travel and remittances in order to help individuals and grow civil society.
Obama will have to modify Office of Foreign Assets Control regulations to fulfill his campaign promise to increase Cuban-American travel and remittances. If he wants to reproduce the more open conditions in Cuba that led to the ”Cuban Spring” of 2002 and Oswaldo Payá’s Varela Project, he could reinstate people-to-people and educational travel. By a simple rule change, he could also speed the entry of life-saving medicines from Cuba, rather than subjecting them to delays from cumbersome OFAC licensing procedures.
Since 1992, U.S. law — the Cuban Democracy Act — has sought to expand access to ideas, knowledge and information by licensing telecommunications goods and services. Yet, in practice, regulations are so strictly interpreted that the United States in effect is imposing a communications embargo on Cuba. To lift it, the president can authorize a general license for the donation and sale of radios, televisions and computers. In addition, rather than helping Cuban state security keep Yoani Sánchez and others off the Internet, the Obama administration could make Internet technology readily available so that any barriers to communications would be clearly the fault of the Cuban government, and not ours.
Environmental concerns rate high with the Obama administration. So it might open bilateral discussions, exchange information and license the provision of scientific equipment to improve the health of the ocean and success of commercial fisheries.
The United States Geological Survey estimates that the North Cuba Basin holds 5.5 billion barrels of oil and 9.8 trillion cubic feet of natural gas reserves. If the president wishes, he can instruct the secretary of the treasury to license U.S. companies to explore, exploit and transport these resources that we and the region so badly need.
After a half-century of failed policy, there is enormous support in the Cuban-American community for initiatives that will improve the well being and independence of the Cuban people. What they didn’t know — but know now — is that there is no reason they can’t reach out to the Cuban people and still retain the embargo as symbol of their concern about the Cuban government’s failure to live up to international norms of human rights, democracy and transparency.