Would the US free the 'Cuban Five' in exchange for Alan Gross?

Three years ago, Alan Gross was arrested and found guilty of crimes against the 'sovereignty and territorial integrity' of Cuba. Now, he wants the US and Cuba to sit down together and negotiate his release.

• A version of this post ran on the author's blog, thehavananote.com. The views expressed are the author's own.

With the Obama administration and Congressional Republican leaders’ current stalemate over the so-called fiscal cliff negotiations as the appropriate backdrop, an American government subcontractor serving a 15-year prison sentence in Cuba hopes to force the most infamously stalemated parties of all – the United States and Cuba - to the negotiating table.

Three years ago, as he completed his 5th trip of the year to the island, Alan P. Gross was arrested and after a lengthy investigation, found guilty of crimes against the "sovereignty and territorial integrity" of Cuba. Gross was hired on a $600,000 subcontract (his employer was USAID grantee DAI) to set up several wireless internet networks around the island which could be hidden from the Cuban government using an "alternative SIM card" often used by US intelligence agencies. Three years and more than 100 pounds (lost during his incarceration) later, Gross wants the US and Cuba to sit down together and negotiate a non-belligerency pact.

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Given the history between our two countries, such a pact would mark a true turning point, but it may be as hard to come by as ever. The State Department is refusing to move its own agenda forward with Cuba while Gross remains in prison. But having tied its hands thusly, State has also not taken any (visible) steps to secure his release. Though former Governor Richardson made a private trip to Havana more than a year ago to seek Gross's release, and says he suggested "a process" to remove Cuba from the US list of terrorist states, the Cubans rebuffed him, perhaps because they were unwilling to negotiate with someone who did not represent the US government, perhaps because he pushed too hard, too publicly – threatening not to leave until he saw Mr. Gross – and perhaps because Cuban officials were indignant about being offered, as a political trade, removal from a list on which they don't think they belong.

Of Mr. Gross’s activities, State officials have said little other than to claim that he was merely trying to connect the Jewish community across Cuba with better access to each other and to the world, and to insist on his immediate, unconditional release. The US government has sought to paint Gross as nothing more than a humanitarian aid worker who broke no Cuban laws. It’s hardly an invitation to a serious discussion with Cuban authorities holding Mr. Gross when it is clear that Gross did break Cuban laws (more than one), and that the US. government sent him there specifically to do so.

For its part, Cuba has not been much more cooperative. While Cuban officials have made very plain their position that Gross – and the US law that authorized his and other USAID activities on the island – violated Cuban sovereignty, they’ve dropped few and often contradictory clues as to whether Mr. Gross could hope for any early release. It could well be because there are dueling opinions in the highest ranks in Havana about whether to make a gesture which could go unanswered, or to extract something from the US for his return.

Several times, Cuban officials have suggested a reciprocal humanitarian gesture could be possible, and recently, there's increasing talk of swapping Gross for five Cuban intelligence agents, [known as "The Cuban Five'"]though the State Department has ruled out this possibility. Cuba says the five were investigating anti-Castro militants in South Florida and that after it invited the FBI to Cuba to review the evidence, the FBI then rounded up the Cuban agents instead of acting against the Cuban exile militants. The five were tried and convicted in Miami and given long prison terms more than a dozen years ago. 

The agents admit to being unregistered foreign agents in the US, which usually carries a shorter sentence, but they've denied other charges, including the leader of the group, Gerardo Hernandez, who was convicted of conspiracy to commit murder for what prosecutors argued was his foreknowledge of the Cuban government’s decision to shoot down 2 civilian aircraft. The aircraft belonged to a group called Brothers to the Rescue, which had repeatedly, purposely breached Cuban airspace and overflown the capital.

The Cuban government argues that the five didn’t get a fair trial in Miami but there’s not much the Obama administration can do about the case, other than to pardon some or all of the five, in order to win Alan Gross’s release. And while President Obama won a record share of Cuban American votes in the recent election, either because of or in spite of his less aggressive policy toward Cuba, it’s hard to see the administration going quite that far, particularly at at the beginning of a new term.

Where there’s a political will, there’s usually a way, but from the Gross family’s perspective, the administration just isn’t working to get Gross released.  Having waited three years for Washington to out-muscle Havana, or else for Havana to respond to pressures or entreaties, the Gross family is wielding the only leverage it has: the potential to embarrass and implicate others in his incarceration.  

The US government has so far dodged any discussion of how its own policies designed to knowingly violate Cuba’s sovereignty actually put its civilian implementers, like Gross, at risk. If, in suing the US government and its grantee, DAI, the Gross family can prove – or threaten to prove in embarrassing detail – negligence that helped land Gross in jail, it might motivate the US to quietly settle the suit and redouble its efforts ahead of an embarrassing trial. But as one former Senate investigator notes, in making this public case that the US government ill-prepared Gross for a seemingly covert mission, the Gross family is actually reinforcing the Cubans' case against him.

RELATED: Think you know Latin America? Take our geography quiz!

While no one knows for sure what Cuba wants in exchange for Gross's release (particularly if the US won't budge on the five), now is the time to go back to the negotiating table and find out, and consider options from there. Some insist the US must not negotiate with Cuba to secure Gross's release. But we should remember that Mr. Gross did in fact violate Cuban law, US laws and ethics have no authority in Cuba, and Gross himself is now asking the US government to negotiate for his release. Gross must eventually accept some responsibility for the choices he made, but at the same time, the US government had (or should have had) a far deeper understanding of the potential risks it would pay Gross to take on his trips, and should have at least prepared him for them.

Three years in, the Gross family has chosen a new strategy, by turning up the heat on the Cuban and the US governments. Time will tell whether this new strategy will pay off.  With the election behind it, and Secretary of State Hillary Clinton on her way out, might it be time for the Obama administration to change its strategy as well? If the US finally gets serious about making a deal with Cuba, such a deal could and ought to include the very program for which Gross was working. USAID’s work in Cuba, carried out in near total secrecy and without cooperation from the host country government, thus risking the safety of grantees and their contacts on the island, is also undermining the broader mission of the USAID organization, which is development, not diplomacy or intelligence. The USAID program in Cuba could be ended or cut back, given the reality that it is tainted by the regime change statute that authorized its existence. The administration can easily find other revenue streams (not linked to specific regime change laws or policies) through which to maintain humanitarian aid to political prisoners’ families, to champion human rights on the island, and to make a more constructive contribution to economic reform and prosperity on the island.

– Anya Landau French blogs for The Havana Note, a project of the "US-Cuba Policy Initiative,” directed by Ms. Landau French, at the New America Foundation/American Strategy Program.

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