Indicting Raúl Castro could set up US military action in Cuba
The federal government's moves to indict former Cuban President Raúl Castro will ramp up pressure for regime change in Cuba and could be a prelude to a U.S. military operation, just as the Trump administration sent troops into Venezuela in January to capture indicted Venezuelan President Nicolás Maduro .
But some legal experts say that while an indictment could signal the Trump administration plans to take Castro by force, it would be legally questionable, just as the Venezuela operation was . And by leaking the effort to seek charges against Castro for allegedly ordering humanitarian planes to be shot down in international airspace in 1996, U.S. officials haven't helped ensure a potential military operation is unexpected and covert.
"If I were the Cuban government, I would be very concerned, given everything Trump's been saying, that this was a fig leaf to cover an upcoming invasion," Mitchell Epner, a former federal prosecutor, told USA TODAY.
"I do think that they'll indict Raúl Castro and then snatch him or use that as a way to compel regime change there," Dave Aronberg, a former state attorney for Florida's Palm Beach County, said.
This file photo shows a group of U.S. sailors from the battleship Connecticut and a gun they captured at Cape Haitien during the U.S. occupation of Haiti in 1915.
President Donald Trump has been speaking for months about a "takeover" of the longtime communist country. The Trump administration's recent military strikes against Venezuela and Iran have heightened beliefs that the president might actually use force against the Caribbean island nation.
Florida Republican Gov. Ron DeSantis , a Trump ally, said he wants the United States to help bring regime change almost in the same breath as he praised the potential indictment, during public remarks May 15 .
"He should be indicted, and he should be held accountable, and the Cuban regime is outdated as well," DeSantis said.
The White House referred USA TODAY to the Department of Justice for questions about a potential indictment and what could come next. The DOJ didn't respond to a request for comment. Cuba's embassy in Washington, D.C. also didn't respond to a request for comment.
What would the charges be?
The sought-after charges reportedly date back to a 1996 incident, in which Castro allegedly ordered Cuban fighter jet pilots to shoot down two civilian planes that were working under a humanitarian group, Brothers to the Rescue. Four members of the group were killed, including three U.S. citizens and one man who was a U.S. resident from Cuba.
Cuba's Ministry of Foreign Affairs said in 1996 that the two planes, which took off from Florida, violated airspace over Cuban territorial waters . But the United Nations' International Civil Aviation Organization determined the planes were in international airspace and the attack was illegal.
Ten years later, el Nuevo Herald, a Spanish-language newspaper in Florida, obtained audio that purported to show Raúl Castro describing to Cuban reporters how he planned with military officers to shoot down the planes, according to the Miami Herald , which is owned by el Nuevo Herald's publisher.
Castro headed Cuba's armed forces at the time of the attack.
Why Maduro's capture heightens apprehensions
Maduro's capture in January heightens suspicions that the Trump administration could be planning a similar operation in Cuba because it provides a potential blueprint and may itself have been meant to weaken the Cuban regime.
Maduro, a socialist dictator, was a close ally of the Cuban government. After his capture, Venezuela stopped sending Cuba oil . Cuba's energy minister, Vicente de la O Levy, said on state media May 13 that the country's supply of fuel oil has now run out, according to widespread reports .
"Once Maduro was gone, it was only a matter of time until their energy supply dried up," Aronberg said.
Secretary of State Marco Rubio, who reportedly persuaded Trump to abandon negotiation efforts with Maduro, has been beating the drum on regime change in Cuba for decades.
An indictment against Castro could, in the eyes of some, provide cover for the United States to attempt to seize Castro.
When Trump announced the capture of Maduro in January, he described at length U.S. criminal charges against Maduro that had been pending for years, accusing him of conspiring to transport thousands of tons of cocaine into the United States.
Following Maduro's capture, four Republican members of Congress praised Trump in a letter for capturing him, and urged Trump to "consider indicting" Raúl Castro for the 1996 killings.
"The model of Maduro looms large here," Dave Aronberg said.
Maduro's capture isn't the first time the U.S. government has pointed to criminal charges as part of the basis for going into a country and seizing one of its leaders. The U.S. government seized Manuel Noriega, the former rule of Panama, in 1990 to face charges of drug trafficking and money laundering.
Whether those models offer a window into what the Trump administration will actually do, or are just a point of leverage in ongoing negotiations for policy changes in Cuba, is anyone's guess, according to Epner.
"Trying to divine the actual motivations of Donald Trump ... is a fool's errand," he said.
Legal questions about capturing Castro
Some legal advocates would likely challenge such military action in Cuba under both international law and the U.S. Constitution.
The United Nations Charter, which the U.S. Senate ratified in an 89-2 vote in 1945, only authorizes using military force without the U.N. Security Council's permission in self-defense, "if an armed attack occurs."
In addition, the U.S. Constitution gives Congress , not the president, the power to declare war, and some legal experts would likely say military action in Cuba is an act of war, especially if it is part of a regime-change effort.
But it's unclear if any of those objections would prevent a case against Castro from going forward in court.
"There's always been a tension in U.S. law about if the U.S. gets hold of somebody in an illegal manner, does the court have the ability to basically throw them back into the sea like a fish, or is that something beyond the power of the court," Epner said.
Maduro is arguing in court that the manner of his capture, which he says was illegal, should block the U.S. government from prosecuting him.
Epner said Castro could argue that any charges should be thrown out because the U.S. government engaged in unconstitutional "outrageous conduct" by seizing him under false pretenses – ostensibly about the 1996 plane incident, but really about pushing for regime change in Cuba.
However, Castro's potential legal defense would also be weaker than Maduro's in at least one respect, according to Aronberg. Maduro is able to argue that he is immune from charges because he was Venezuela's head of state. (Prosecutors may dispute that, saying he stole office after losing in Venezuela's elections, and so wasn't the legitimate leader.)
Castro, by contrast, has been out of office in Cuba for several years, even if he remains the patriarch of a politically powerful family.
"His defense lawyers would have a tough time getting him released because he has less of a legal claim to immunity," Aronberg said. "So he is in a more precarious position than Maduro."
This article originally appeared on USA TODAY: Indicting Raúl Castro could set up US military action in Cuba
