Feds Cleared on Citizen’s Cuban Imprisonment

     (CN) – The Unites States cannot be held liable for Cuba’s arrest of an American contractor who now faces up to 15 years in prison, a federal judge ruled.
     Alan Gross was arrested in 2009 while visiting Cuba on a government project subcontracted to Development Alternatives Inc.
     The Maryland-based company had collaborated with the U.S. Agency for International Development on projects designed to promote democracy in Cuba.
     In February 2009, Development Alternatives selected Gross’ proposal for a project to increase Internet and “new media” access in Cuba. Gross’ mission was to increase access to the Internet and wireless technologies, particularly for Cuba’s small Jewish community. After traveling to Cuba four times in mid-2009, Gross warned Development Alternatives and the government agency that his work in Cuba defied the Cuban government’s censorship. Development Alternatives and the government allegedly ignored the risks, however, and extended the project.
     Cuban authorities arrested Gross in November 2009, on his fifth trip to Cuba. After holding him as a political prisoner and interrogating him extensively, the Cuban government charged Gross with “acts against the independence or territorial integrity of the state” in February 2011. Gross was convicted in March 2011 and sentenced to 15 years in jail. So far, diplomatic efforts for Gross’ release have failed.
     In a federal complaint last year, Gross and his wife Judith claimed that Development Alternatives and the United States failed to fully disclose the risks of Gross’ work in Cuba, protect him and train him properly. They also claimed the government ignored Gross’ memos warning of the riskiness of his covert work, and let him return to Cuba.
     After the Grosses settled with Development Alternatives, the government said it had immunity with regard to the remaining claims.
     U.S. District Judge James Boasberg agreed last week that the United States could not be sued for injuries suffered in a foreign country. Even though the government’s allegedly negligent oversight of the project occurred in the United States, the Grosses’ injuries stem from the Cuban imprisonment, the opinion states.
     Judith Gross failed to persuade Boasberg that her only claim, loss of consortium, originated in the United States. This claim likewise stems from injuries her husband suffered in Cuba, according to the ruling, which cites U.S. Supreme Court precedent.
     “Lawsuits about foreign injuries will often prove complicated and costly: evidence may be hard to collect and witnesses may be much more difficult to procure,” Boasberg wrote. “Documenting Gross’s damages here is made far trickier by the fact the Gross was injured in Cuba – instead of, say, Colorado. Obtaining the testimony of Cuban prison officials, for example, hardly seems a simple task. The foreign/domestic filter is imperfect, of course: suits over foreign injuries are sometimes simple, and suits over domestic injuries can be complicated by countless circumstances. Yet rational-basis scrutiny tolerates such imperfections. … Avoiding onerous litigation is a legitimate governmental purpose, and by foreclosing all litigation over injuries suffered abroad, the foreign-country exception [to the Federal Tort Claims Act] rationally advances that purpose.
     “As the background section of this opinion hopefully makes clear, the court is in no way condoning what happened to Gross or implying he is to blame. Sympathy with his plight, however, is not a basis on which to circumvent clear precedent concerning the FTCA.”
     Boasberg also rejected the couple’s contention that the equal protection clause of the 14th Amendment bars the government from applying the foreign-country exception to their claims.

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