One year ago, the Trump administration announced the activation for the first time of a provision in the Helms-Burton Act of 1996 that allows U.S. nationals to sue companies that "traffic" in property expropriated by the Cuban government after the start of the Cuban Revolution. Congress enacted the provision, known as Title III, to allow "American citizens to recover damages from foreign investors who are profiting from their stolen property in Cuba." But Presidents Bill Clinton, George W. Bush and Barack Obama (and initially President Donald Trump) suspended application of Title III for more than 20 years from 1996 to 2019. Prior administrations (including the George W. Bush administration, in which I served as the legal adviser for the Department of State, where I was responsible for the implementation of the Helms-Burton Act) believed that activating Title III would produce a flood of complex lawsuits in U.S. courts and cause diplomatic friction with close allies.

In permitting Title III lawsuits for the first time, starting May 2, 2019, the Trump administration aimed to pressure foreign investors out of Cuba and thereby starve the regime of resources. The administration may also have expected to score political points by allowing Americans—especially Cuban Americans in Florida—to sue foreign companies in U.S. courts. But the actual result has been different: the majority of defendants in the lawsuits filed so far have been U.S. companies whose activities touch Cuba only in some minor way, rather than the Cuban companies or foreign companies that now own, lease or operate property in Cuba. Title III's activation, in short, has been a failure and should be reversed.

Congress passed the Helms-Burton Act, also known as the "Cuban Liberty and Democratic Solidarity (Libertad) Act," to increase the economic isolation of the Cuban government and encourage the ouster of Fidel Castro. In addition to Title III, the act codifies executive branch sanctions prohibiting U.S. companies from doing most business in Cuba. Title IV directs the secretary of state to deny U.S. visas to directors, officers and controlling shareholders of companies that traffic in confiscated property.