For American Imprisoned in Cuba, Suit Against U.S. Is Part of New Strategy
By DAMIEN CAVE
Published: November 28, 2012
MEXICO CITY — Alan Gross, a computer expert with extensive experience
overseas, went to Cuba in 2009 as part of a State Department program
delivering satellite Internet equipment to Jewish groups in Havana. He
was a longtime supporter of Jewish causes, and his wife, Judy, said he
fell in love with Cuba, praised the contractor that hired him and
enjoyed the work.
Then he was arrested. And now, after nearly three years behind bars in
Cuba, Mr. Gross, 63, is mostly angry, his wife says — and not just with
the Cuban authorities who prosecuted him.
In a lawsuit filed Nov. 16 in federal court in Washington, Mr. Gross
directs his ire at the United States and at the contractor, DAI,
accusing both of negligence for sending him on five semi-covert trips to
Cuba without proper training, protection or even a clear sense of Cuban law.
The case is part of an aggressive new strategy by the Gross family to
win his release. After reorganizing their legal team to include a human
rights lawyer, who has started a campaign to pressure Cuba partly
through the United Nations, the Grosses sued the United States
government for up to $60 million and made it clear that they do not
intend to stay silent about their growing sense of disappointment with
"Alan is a victim of 50 years of failed policy with Cuba," Mrs.Gross
said, adding, "I don't like to shame people, but if that's what it's
going to take, that's what we need to do,"
Scott Gilbert, one of the Gross family's lawyers, said the case could be
especially damaging for the State Department and DAI if the discovery
process produces more examples of unqualified and ill-prepared
contractors sent to Cuba. He said the suit would draw attention to the
American government's pro-democracy effort, which Mr. Gilbert described
as "flawed in conception" and "completely messed up" in execution.
Run chiefly by the United States Agency for International Development,
the program was authorized in 1996 by the Helms-Burton Act, which
tightened the Cuba trade embargo and allowed for money to be set aside
for "democracy building efforts."
Created to push Fidel and Raul Castro from power, the program has seen
its budgets range wildly — from $3.5 million in 2000 to $45 million in
2008 and $20 million a year under President Obama. Some of that spending
has been criticized. A government audit in 2006, for example, found that
several groups with democracy grants made dubious purchases, including
Nintendo Game Boys.
Cuba considers the effort an affront to its sovereignty. Collaboration
with the program has been illegal for years, prompting one group with
the democracy program to try to evade detection by hiding satellite
Internet equipment in boogie boards.
Mr. Gross acted more openly. His wife says he registered the equipment
he carried into Cuba with customs authorities, and was never told by his
employer that Cuban law did not allow what he was doing.. "You could say
Alan was naïve, and I'm sure he was in some way, but there was no
indication that it was this serious," Mrs. Gross said.
In a statement, DAI refused to comment on whether it had adequately
trained Mr. Gross. "As much as we would like to address the numerous
disagreements we have with the content of the complaint, the fact is
that doing so will not advance the cause of bringing Alan home, which
remains our highest priority," the company said in a statement. The
State Department also declined to comment.
Mr. Gross did appear to learn over time that he was engaged in sensitive
activities. After his first visit working with DAI in the spring of
2009, he wrote a memo that said the group he met with "has specific
concerns about government informants and the highest level of discretion
By his third trip in June, he had become more blunt, writing to DAI that
"this is very risky business in no uncertain terms." Detection of the
networks he set up, he said, could lead his Cuban contacts to be arrested.
The lawsuit argues that these memos should have been enough to lead to
additional training for Mr. Gross, or a new approach. Instead, the
complaint says, DAI and the American government "failed to take an
action to protect Mr. Gross."
On his next trip, he was arrested. On the Friday in December when he was
supposed to come home, Mrs. Gross had set the table for the Sabbath with
wine and candles. She discovered what had happened only after frantic
calls to the State Department, which confirmed Mr. Gross's detention.
She said she initially expected him a quick release. "I had faith in my
government and my State Department," she said. "Of course they are going
to do something about this right away. Of course they are going to get
him out right away. The idealism didn't last very long."
A petition that the Grosses' new lawyer, Jared Genser, filed in August
with the United Nations described his trial and imprisonment as a
violation of his human rights and an international treaty Cuba signed in
2008 guaranteeing freedom of expression in any medium.
Mr. Genser also told the United Nations that a growth on Mr. Gross's
shoulder could be cancerous and was being ignored by Cuban doctors, but
on Wednesday Cuba issued a statement declaring Mr. Gross's health was
"normal." The statement said a biopsy performed Nov. 24 showed that the
lesion "was not carcinogenic."
Mrs. Gross said that her husband is clearly a victim of "a brutal
Communist government" but that she and he have also become frustrated
with their own government's hard-line approach, in which American
officials say discussions are dead because they refuse to negotiate
certain issues — especially a possible pardon for the Cuban Five, Cuban
citizens who were convicted in the United States 2001 of spying on Cuban
Mrs. Gross said she understood that American officials are frustrated
with the Cubans and that "part of me thinks you don't reward a country
for holding a hostage" — the argument favored by Senator Robert
Menendez, a New Jersey Democrat, and other Cuban-American lawmakers.
But she said she had also come to realize that her husband might have
already been released if not for these same hard-liners in Congress.
Even after Mr. Gross was detained, Mr. Menendez and others successfully
resisted the Obama administration's attempts to reduce financing for the
Cuba pro-democracy programs, making negotiations harder.
What the Gross family now realizes, she said, is that her husband is "a
pawn of these very radical right-wing Cuba haters, for lack of a better
word, who don't want to see any changes happen, even to get Alan home."
In an interview, Mr. Menendez said the focus should be on Cuba, which
has "arrested an American who should not have arrested in the first
place." Asked if he would support any change in Cuba policy — including
cuts to the Cuba democracy program — if it meant getting Mr. Gross
released, he said no.
"I'm not into negotiating for someone who is clearly a hostage of the
Cuban regime," he said.
Mr. Genser said he was urging senior White House officials to ignore
such absolutist opposition to engagement with Cuba. Noting that former
President Bill Clinton negotiated the release of two American
journalists from North Korea in 2009, he called for another high-level
envoy to be sent to Havana as soon as possible.
"Alan Gross is a U.S. government contractor sent to do a job by the
United States," he said. "If we can negotiate the release of people in
Iran, Burma and North Korea, surely we can find a way to get someone
released from Cuba."