Nicaragua: The Mischief of Senator Helms

— Chuck Kaufman and Lisa Zimmerman

WHILE THE HELMS-Burton Cuba embargo law has been widely criticized for granting retroactive U.S. citizenship rights to former Cubans (allowing them to sue for property lost 35 years ago—ed.), a little known but dangerous precedent already exists.

Retroactive citizenship rights were to Latin Americans by the passage of the HelmsGonzalez amendment to the 1994 Foreign Assistance Act.  That amendment was intended to force Nicaragua to return properties to former owners confiscated by the Sandinista government in the 1980s. That amendment now threatens resolution of Nicaragua’s vexing property problem.

On July 26 President Clinton issued a “national interest waiver” allowing U.S. aid for Nicaragua to continue to flow for another six months. Clinton’s waiver means that the issue of U.S. citizens’ property is put on hold until after Nicaragua’s presidential election.

If the Sandinista candidate Daniel Ortega is victorious, the FSLN will have the opportunity to complete the legal paperwork on land reform that it never got around to while in government. If, on the other hand, Arnold Aleman winds the presidency, property rights in Nicaragua will enter a new era of instability. Aleman is standard bearer for the Liberal Alliance, which represents the Miami Somocistas and other right-wing forces.

Sabotaging the Peace

In late November 1995, Nicaraguan President Violeta Chamorro signed a comprehensive property law legalizing the ownership of small homes and farms given to 200,000 rural and urban families through Sandinista land reform in the 1980s.

The law also legalized the properties Chamorro passed out to demobilized soldiers from both the contras and the army after 1990. Finally, it guaranteed compensation to previous owners whose property had been confiscated by the Sandinistas. Only the Somoza family itself is excluded from compensation.

The agreement defused an issue which all parties agreed is a significant obstacle to economic recovery and has the potential to destroy the relative peace. Yet the fact that Nicaraguans overcame such a great hurdle brought no rejoicing to the halls of Congress or the U.S. embassy in Managua.

In 1994 the Clinton State Department dropped its behind-the-scenes objections to Sen. Jesse Helms’ (R-NC) effort to make property claims of U.S. citizens the central issue to determine the level of Washington’s aid and cooperation with the Chamorro government. The U.S. Embassy even went so far as to run ads in Miami soliciting Nicaraguans-turned-U.S.-citizens to file claims.

Helms has successfully taken a law known as the Hickenlooper Amendment, which was passed in 1962 and then largely ignored, and built it into a potent weapon against land reform. Hickenlooper requires the U.S. government to cut off aid to countries that have expropriated the property of U.S. citizens.

Helms’ dubious contribution to legal theory is to extend that protection of U.S. law to people who were not U.S. citizens at the time their property was confiscated, but became citizens at a later date. Included among the naturalized claimants are former members of Somoza’s brutal National Guard and former business partners of the dictator who had completely decapitalized their properties.

Land Reform in Jeopardy

The Helms-Gonzalez amendment effectively eliminates the possibility of land reform in Latin America since confiscated property owners need only move to Miami for five years, become U.S. citizens, and have the entire legal, diplomatic, and economic weight of the United States government backing their efforts to reclaim property. (International law only recognizes a nation’s right to intervene on behalf of its own citizens.)

President Chamorro promised to respect the redistribution of land when she took office in 1990. In fact, her government carried out additional land reform, distributing land to former contras and demobilized army members.

More than 60% of Nicaragua’s rural families received land in the 1980s. If Helms’ policy succeeds, there is a real danger that land tenure in Nicaragua could revert to the high concentration of the Somoza-era.

At the time his U.S.backed dictatorship was overthrown in July 1979 Anastasio Somoza Debayle is estimated to have owned between 20-25% of the arable land of the country, leaving over half of the rural population either cultivating below subsistence level or landless.

The property conflict is made much more difficult by the failure of the Sandinista government to legally title the land that it redistributed. In hindsight, the decision to focus on more immediate issues such as defense against the U.S.-sponsored contra army was unfortunate.

After 1990, when former owners began trying to recover confiscated properties, ownership by those who now possess it was often legally difficult to prove. There were a number of evictions by judges who refused to recognize land reform documentation.

The Sandinista failure to complete paperwork is not alone responsible for clouded titles. Somoza, in a last ditch effort to stay in power, bombed his own cities and in the process destroyed many government offices and records including deeds, tax records, and surveys.

Nicaraguans whose properties were confiscated by the Sandinista government fall into three very different categories. First are the criminals who committed human rights or other crimes, second are the debtors who mortgaged their properties and took the money out of the country, and third are those we call the "abandonistas" who succumbed to red scare propaganda and fled the country.

Both natural and naturalized U.S. citizens fall into each category. What reasonable person would disagree that different standards should apply to Lt. Col. Bayardo Jiron who, as head of Somoza’s State Security, was directly responsible for the torture and summary executions in the prisons, and Beatriz Cardenal Fuentes whose four houses were only confiscated because she abandoned them and peasants made homeless by Somoza’s bombing moved in as squatters? Both Jiron and Cardenal are now U.S. citizens.

There are at least 21 former high ranking officers of Somoza’s brutal National Guard on the list published by Helms in 1994 of 751 "U.S. citizens" claiming property. The U.S. embassy in Managua knows of only about 560 U.S. citizens who have filed claims, so it is unclear where Helms got the other names.

According to U.S. Ambassador to Nicaragua John Maisto, Nicaragua has resolved more than 1,200 property cases filed by U.S. citizens. (Many are multiple claims by the same individual.) Maisto said 608 have been resolved in the last twelve months.

The great majority of U.S. citizens’ claims have been filed by individuals who were Nicaraguans at the time their property was confiscated and only later became naturalized U.S. citizens. Now some are even returning for office in Nicaragua’s October 20 national election.

The Criminals

The cases of the pilots of Somoza’s Air Force are instructive. Two of the ten Air Force pilots deserted and left the country rather than carry out orders to bomb civilian populations in the cities. Two other pilots who did bomb civilians, Col. Jose de la Luz Guerrero and Lt. Chester J. Delagneau, have since become U.S. citizens and both are trying to take back property that was confiscated.

De la Luz was born in France and had a distinctive French accent. Leonore Hupper, former Charge d’Affaires of the Nicaraguan embassy to the United States said, "We could hear him on our short-wave radio when Somoza would say ’drop more bombs’ we could hear him say ’Yes, my general.’"

However, as former Attorney General Ernesto Castillo pointed out, the Sandinistas never brought criminal charges against most of the Somoza era criminals. "We made a decision that we weren’t going to spend our time going around placing the blame," he said. "Here there were ten pilots. Two pilots left the county because they didn’t want to be criminals.  So, you can’t be mistaken."

Roger Cuadra Marenco, former Criminal Prosecutor of Leon and District Attorney of Chinandega, explained that not only Somoza was guilty of crimes. He explained, "Maybe people up there in the United States don’t know about Somoza. Somoza was a system, not just a person.  People can’t justify themselves by saying they are not Somoza. Those who were close to Somoza were part of the system."

Among the most barbarous of the dictatorship’s tactics were the "disappearances" of hundreds of peasants in the mountainous jungles of north central Nicaragua as documented by the Capuchin Fathers in the mid-1970s. Some of them were dropped out of helicopters.

At the time of the uprisings of five cities in 1978, the National Guard concentrated all of its force on each city in turn, bombing and shelling, and then rounding up and shooting any young men who had not fled. These were called "clean-up operations;" the victims numbered in the thousands.

The Debtors

There is a substantial overlap between the group of "criminals" who want properties returned and the "debtors." For example, Roberto Arguello Tefel was a Somocista, now deceased, who owned a financing business called CAPSA.

Arguello allegedly took all the money out of Nicaragua, including the money of his depositors. His son is now a member of Jesse Helms’ staff.

Capital flight turned into a flood in Nicaragua in 1977 when Somoza suffered a heart attack.  Leonore Hupper explained, "The people who had access to the banks got loans on their houses and their farms. Loans they never had before because they didn’t need them. They took all that money out of the country. It was impossible to collect on all those loans. They left the carcass here, that was about all."

Those unpaid loans, the majority of which were borrowed from foreign banks by the Somoza-controlled National Bank, are now part of Nicaragua’s foreign debt burden. Per capita that external debt is the largest in the world.

Hupper said, "It was a virtual looting. The people stole the money from the things that they mortgaged and they sent it out of the country. And they say the Sandinistas took everything when we left office!"

Hupper does acknowledge that the Sandinista government made a serious error in the way it handled the confiscations of debtors who had left the country. "We should have published in the newspapers notices which said, ’So and so you owe ten million cordobas. Pay the money by such and such a date or we will foreclose on your property for non-payment.’ That wouldn’t have been socialist or communist. That’s what you do in your country."

Many of the people on the Helms list now want their former properties back free and clear of debt.

The "Abondonistas"

The final class of U.S. citizens claiming return of property are those we call the "abandonistas." These are people who abandoned properties which would not have been taken from them had they remained in the country.

In most cases these properties, particularly houses and farms, were not actually confiscated until years after they were abandoned.  Confiscations of abandoned properties are the cases most commonly described as abuses. There is a consensus in Nicaragua that these former property owners should receive compensation.

Some abuses surely did occur, yet the vast majority of the confiscations of the "abandonistas" were not abuses. They were rather an attempt to bring order out of chaos.

There was a huge housing shortage following the overthrow of the dictatorship because of the bombings of the cities, and because most Nicaraguans had always lived in substandard housing. It was only to be expected that any vacant building would be taken over by the homeless, and that they would not necessarily take care of the property as well as the previous owner.

Besides, the cotton and coffee had to be harvested on abandoned farms, beans and corn had to be planted so people could eat, and in many cases, by the time the Sandinista government got around to actually confiscating abandoned houses, there was nothing left but a shell.

Former Attorney General Castillo cited the example of the milk processing plant in Managua. "The owners left and took their capital, but they weren’t Somocistas. The production plant remained and we had to have milk for the children, so we took the plant. But, if the owners hadn’t left we would not have taken their business."

U.S. and International Law

There is no precedent in U.S. or international law for retroactively extending the rights and privileges of citizenship. Several Supreme Court rulings have, in fact, denied the legitimacy of this principle of "retroactive rights."

The case of Knauer v. U.S., for example, establishes that naturalization does not deal with the past, but rather makes a promise for the future. In a similar case, Jean v. Nelson, the Supreme Court ruled that the rights of unadmitted aliens are not coextensive with those of citizens.

The privileges of citizenship begin on the date of naturalization and cannot be invoked with regard to previous incidents.

Furthermore, international law does not allow a country to interfere in another’s relations with its own citizens. This principle has been recognized by the U.S. Supreme Court in the case of De Sanchez v. Banco Central de Nicaragua.

Mrs. Josefina Navarro de Sanchez, the wife of Somoza’s Minister of Defense, brought suit in a U.S. court against Nicaragua’s Central Bank to collect on a check for $150,000 issued to her by the Bank shortly before the fall of the dictator.

The Sandinista government issued a stop-payment on the check and De Sanchez sued them in U.S. court. The Supreme Court ruled against De Sanchez, stating that because she is a Nicaraguan national, this breach of contract did not violate international law, thus Nicaragua’s actions were not subject to review by U.S. courts.

The Nicaraguan government has proven, if anything, too willing to resolve property claims. Revenue from the sale of the national telecommunications system has been designated to repay the former owners rather than to meet the many pressing needs of the effectively bankrupt country.

Property Rights and 1776

Few remember that property confiscations were widespread and vengeful following the American Revolution of 1776. Those who took up arms in defense of the British Crown, accepted protection from Loyalist forces, or fled the country during the revolution were viewed as having forfeited their property rights. There were a few cases in which the mere suspicion that an individual was a Tory provided the grounds for seizure.

It is estimated that the value of the property confiscated without due process or compensation exceeded $20 million, one-fifth of the total value of improved properties in the new nation.

The newly independent government argued that the return of properties could endanger the peace and perhaps the safety of the state. Likewise, the founding fathers felt no obligation to provide compensation for confiscated properties. George Mason best summed up the logic of the times when he asked, "If we are now to pay the debts of the British merchants, what have we been fighting for all this while?"

Ironically, North Carolina confiscated the highest percentage of total acreage of any state. What would be Senator Helms’ reaction if he were sued in British court by heirs of the Tories on whose land he squats?

ATC 64, September-October 1996