Justice nearer for Brothers fliers' kin

Published Sunday, October 25, 1998, in the Miami Herald

Justice nearer for Brothers fliers' kin

WHEN lawyers push through bills that defeat justice, you justly want to strangle them. But when lawyers push through bills that rectify a historic crime, you justly should want to praise them.

Rise today, then, in praise of Miami lawyers Frank Angones, Ronald Kleinman (based in Washington, D.C.), Roberto Martinez, and Aaron Podhurst. Their bipartisan allies in Congress, from Florida and New Jersey, put into the omnibus budget bill a law that bespeaks justice writ large.

Their bill could -- I stress could -- enable the families of three murdered Brothers to the Rescue fliers to collect from the Castro government some of the $187 million in damages that Senior U.S. District Judge James Lawrence King awarded them.

Short bill, long reach

This bill, its intent a marvel of obfuscation, takes up less than a page, a gram or so, of the 3,825-page, 40-pound budget bill. But its impact could hit Fidel Castro's government like a ton of bricks. Titled Section 117 of the Treasury and General Government Appropriations Act, 199, it allows this:

Anyone with a judgment under the Anti-Terrorism Act against a terrorist foreign state whose U.S. assets the U.S. government has blocked may seek to collect from those assets. Besides the Brothers' survivors, this bill's potential beneficiaries include the family of a young New Jersey woman killed in Israel by terrorists traced to Iran. A U.S. court awarded the family damages against Iran.

The bill mandates the U.S. secretaries of state and treasury to locate, identify, and seize any such assets.

This ability to collect applies only to blocked assets of the foreign state and its entities, not to assets of ``natural persons.'' This proviso avoids the obvious political, not to say moral, pitfalls of one group of Cuban Americans going after assets of other Cuban Americans. The assets targeted are those only of Cuba, Iran, and other terrorist regimes.

Finally, at State and Treasury Department insistence, Section 117 includes a proviso that the President may waive its requirements for national-security reasons. Last Wednesday, right after the Senate passed the omnibus bill, which the House had passed on Tuesday, President Clinton signed it into law.

President blocks enforcement

But the President also immediately signed Presidential Determination No. 99-1, waiving enforcement of Section 117. He heeded State's and Treasury's objections that allowing individuals to seize these foreign assets would impede the President's ability to use those assets as foreign-policy instruments.

The waiver notwithstanding, in essence Congress has given the families of three of the four murdered Brothers fliers an avenue to collect damages from Castro's government. In his forceful December 1997 ruling, Judge King held that government and its air force liable for actual and punitive damages. Cuban MiGs had shot down two unarmed Brothers planes in international airspace off Cuba on Feb. 24, 1996. Only the survivors of the three U.S.-citizen victims could sue in U.S. courts.

The principal blocked Cuban assets are millions of dollars due from AT&T to the Castro government for long-distance access to Cuba's telephone system. Those payments were blocked by the U.S. Treasury Department's Office of Foreign Assets Control from 1963, when the U.S. embargo was imposed, until 1992. (After 1992, the Torricelli Act allowed AT&T and other carriers to pay Cuba directly for long-distance hookups. Those funds aren't at issue.)

Only OFAC knows the present value of those AT&T payments, but it has refused to divulge their identity and location. But in January, OFAC's ``Terrorist Assets Report'' to Congress said that Cuba's blocked assets totaled $178.2 million at the end of 1997.

Last Friday Messrs. Martinez, Angones, and Podhurst filed with Judge King a motion requesting ``writs of execution'' against Cuban-government assets under OFAC's control. Their pleading argues that Presidential Determination No. 99-1 is overreaching.

``It would be absurd if the President could erase from our laws, through executive fiat, a law which Congress passed only a few hours earlier and which he signed only a few moments before the issuance of PD-99-1,'' their pleading says.

Will they succeed even in learning those assets' total, much less in winning them? That's more than an educated guess. It's a venture into uncharted legal waters -- or, a better metaphor, into uncharted legal airspace.

A judge as equalizer

They're battling intransigence on all sides. First, the Castro regime, denying any U.S. authority over its actions, refused to defend the lawsuit seeking damages for the Brothers' shootdown. Second, the U.S. State Department, Treasury Department, and now the President oppose them, too.

But the equalizer in this matter isn't the U.S. government's executive agencies. It's the justice system, here represented by Judge King.

Judge King's December 1997 ruling was a searing condemnation of the Cuban government and its air force. His judgment awarding the Brothers' survivors a breathtaking $187 million in damages -- more than they had dared hope for -- was abrim with outrage at the Castro regime's callous, even gleeful, disregard for international law and civilians' lives.

I wouldn't bet, yet if ever, on these survivors' (or their lawyers') chances of ever seeing a dime from Fidel Castro's blocked millions. But after hearing their motion on Friday, Judge King gave them their best shot yet: He signed the ``writ of execution'' that could begin to unblock AT&T's millions and eventually bring just compensation to the three murdered fliers' survivors.

You can write to me at 1 Herald Plaza, Miami, FL 33132, or by e-mail: jhampton@herald.com