Foreign Relations, 1977–1980, Volume XXIII, Mexico, Cuba, and the Caribbean

88. Briefing Memorandum From the Department of State Legal Adviser (Owen) to Secretary of State Vance¹

Washington, March 24, 1980

Cuba: Maritime Hijackings

This is in response to your request² for an update on the status of our efforts to deter additional maritime hijackings from Cuba by prosecuting offenders who reach the U.S.

We have raised with Phil Heymann of the Criminal Division the policy concerns which are posed by our failure to prosecute Cuban maritime hijackers. I have also informed him of the President’s interest in the matter. He asked that we state our concerns in writing as a prerequisite to conducting a review of the various legal and policy problems involved in prosecuting cases of this nature. I have accordingly transmitted the attached letter.³ We will press for an early meeting to identify the present obstacles to prosecution and alternative means of resolving them.

In addition to these efforts to develop a workable approach to the overall problem, we have continued to express to Justice our interest in the status of the most recent hijacking case which occurred February 24.⁴ We are told that after a very brief initial investigation of this case, the hijackers were released into the community by the federal authorities in Miami. Thereafter, Justice learned that the case may have involved an attempted murder,⁵ and at the beginning of March asked the U.S. Attorney’s office in Miami to request further investigation by the FBI. In mid-March we learned that the FBI in Miami was unaware of this request, and brought this to Justice’s attention. Justice has now informed us that they are sending a memorandum to FBI headquarters here ordering a thorough investigation and specifying the areas to be looked into. They anticipate the results of this investigation in two to three weeks.

In connection with this case, Justice has also begun research on several legal questions which will be relevant to the development of an overall policy in this area. Included is the problem of establishing U.S. jurisdiction on the basis of transportation in interstate or foreign commerce where the hijacked vessel is towed into U.S. waters by the Coast Guard rather than entering under the control of the hijackers. Also being addressed is the possibility of establishing venue outside of Miami (e.g., in Washington). This is a highly important issue because Justice regards the Miami environment as not conducive to successful prosecutions. (Miami juries can be expected to contain a high percentage of Cuban refugees who would be sympathetic to these hijackers.) Moreover, the threat of violence from extremist groups is such that extensive security measures would be required. Justice expects to have completed this research in 2–3 weeks.

We have considered the timing of a public statement designed to deter hijackings. We believe that to be most effective, such a statement should be coupled with concrete action (e.g., the initiation of a prosecution in the most recent case). However, if it is now impracticable to prosecute for past violations, a carefully worded statement of intention to prosecute future cases could be helpful if we are prepared to follow through.

1. Source: National Archives, RG 59, Central Foreign Policy File, P800057–0764. Confidential. Drafted by Kozak; cleared by Feldman and Frechette. A stamped “CV” indicates Vance saw the memorandum.
2. Not found.
3. In the attached letter to Heymann, March 24, Owens expressed the Department’s concern about armed hijackers from Cuba seeking asylum in the United States. (National Archives, RG 59, Central Foreign Policy File, P800057–0766)
4. In telegram 50655 to Havana, February 25, the Department reported that a Cuban fishing vessel was commandeered by hijackers and used to transport refugees to Florida. (National Archives, RG 59, Central Foreign Policy File, D800098–0558)
5. Justice has reason to believe that one of the hijackers discharged a pistol aimed at the master of the hijacked vessel; fortunately the gun was defective and exploded in the hijacker’s hand. [Footnote is in the original.]