107. Memorandum From Attorney General Civiletti to
President Carter1
SUBJECT
- Hijacking of Cuban Vessels
Pursuant to your instructions I have discussed with the Secretary of State the issues presented by the hijacking of Cuban vessels by Cuban citizens to come to the United States and seek asylum.
[Page 231]It is understood that there have been only four such hijackings since January 1, 1975. However, since all have occurred during the past six months, there is basis for concern that the trend may be toward increased hijacking activity in the future.
It appears that most such hijackings are technically subject to federal prosecution under the kidnapping or interstate transportation of stolen property statutes. However, jurisdiction for prosecution would be difficult to establish if, as happened in one of the four hijackings, the vessel is towed into United States waters by the Coast Guard to save the vessel and individuals involved.
The primary difficulty confronted in seeking a judicial resolution to the hijacking problem centers on the fact that there is a very minimal likelihood of conviction. Absent unique factors which have not been present in the hijackings to date, these cases must be prosecuted in the Southern District of Florida, where we would face juries sympathetic to the defendant refugees. Indeed, where the hijacking has been accomplished without putting life in danger, the defendants may find trial judges sympathetic to a defense of duress or justification, based on alleged persecution in Cuba. The fact that the United States grants these hijackers refugee status as opposed to returning them to Cuba will doubtless be cited in support of claims of persecution.
Another practical problem with the prosecution of these cases is the fact that, in some instances, crew members defect to the United States once the vessel arrives in Florida. For example, in the most recent hijacking, three of the four crew members defected. Neither the families of the hijackers nor defecting crew members can safely be relied on to carry the Government’s burden of proof in a criminal prosecution.
Notwithstanding the serious difficulties which confront prosecution and the low prognosis for success, we are prepared to pursue cases in which the lives or safety of innocent persons have been placed in jeopardy. To that end, the most recent hijacking is presently under intensive FBI investigation. We understand that good-faith prosecution of hijackers, whether successful or not, would constitute a net plus in our efforts to retain the cooperation of the Government of Cuba in aircraft hijacking cases. As relates to future hijacking incidents, I recommend that we take the following steps:
1. Make a public announcement condemning forcible hijacking as a means of escaping Cuba, and stating that we intend to enforce U.S. law against hijackers who place the lives or safety of innocent people in jeopardy.
2. Conduct a thorough investigation in each future case, including requests to the Cuban Government for assistance in determining the facts. The Department of State and the Department of Justice will be on the alert for hijackings which, were it not for the special circumstances [Page 232] in Southern Florida, would present reasonable prospects for obtaining a conviction. We will bring such cases in an effort to demonstrate our intentions and to confirm that the hijacking of vessels to the United States from Cuba is contrary to U.S. law and policy.
3. The Cuban Government should be informed that:
(a) We are reiterating publicly our policy against forcible hijacking and our intent to enforce the law, particularly against hijackers who place the lives of innocent persons in danger.
(b) Cuba should be aware, however, that there are serious problems in attempting to prosecute Cuban citizens who hijack Cuban vessels, and the prognosis for conviction is not great. Further, in some instances, jurisdiction for prosecution may be lacking. Accordingly, in light of our mutual interest in creating a deterrent, we will wish to prosecute cases which we have a possibility of winning. It would be counterproductive to lose the initial cases.
(c) The Justice Department will continue to conduct an intensive investigation of all hijacking incidents for the purpose of determining which have appropriate potential for criminal prosecution.
(d) Where our criminal laws permit, the United States is determined to act in appropriate cases, particularly those in which human life is put in serious jeopardy by actions of the hijackers.
4. The Cuban Government should also be informed that it will continue to be the firm policy of the United States to ensure that Cuban property is promptly returned to its rightful owners and to expedite the return to Cuba of any and all individuals who desire to so return.
The Secretary of State joins me in making these recommendations and, if you agree, we will take the necessary steps to implement them, and will issue an appropriate release.2
Attorney General
- Source: Carter Library, National Security Affairs, Staff Material, Office, Unfiled Material, Box 128, Cuba. Confidential.↩
- See footnote 4, Document 113.↩