Author: Poblete Tamargo LLP

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Securing Freedom: The Release of Mark Swidan and Ongoing Efforts Against Wrongful Detention

The recent release of American citizen Mark Swidan from detention in the People’s Republic of China marks an important development in U.S. policy in the ongoing global effort to bring wrongfully detained U.S. nationals home.

Mr. Swidan had been held in China since 2012. After more than a decade in prison, he was freed as part of a negotiated prisoner exchange that also secured the release of other detained Americans.

Public attention to the case intensified in recent months. In a recorded statement published online and The Hill newspaper, actor Mel Gibson publicly thanked several individuals involved in the effort to secure Mr. Swidan’s freedom, including members of Congress and his legal team. Gibson specifically referenced Jason Poblete, founding partner of Poblete Tamargo LLP, for his work on the matter.

“And I want to thank these people, particularly by the members of the Texas Congress, in particular Ted Cruz. I also want to thank his lawyer, who was tirelessly employed in getting this man free, Jason Poblete, and of course, Elizabeth Vargas, who reported this story several times, and Alison Weiner,” said Mel Gibson. The acknowledgment reflects years of sustained advocacy and legal engagement in a case that required coordination across multiple administrations and branches of government.

Wrongful Detention as a Persistent Global Challenge

Mr. Swidan’s case underscores a broader reality: wrongful detention remains a geopolitical and humanitarian challenge facing American citizens abroad. These matters often involve:

  • Extended detention under opaque or disputed legal proceedings
  • Complex diplomatic negotiations
  • Sustained Congressional engagement
  • Coordinated legal and policy advocacy

According to U.S. government statements, the release followed diplomatic engagement aimed at resolving cases involving Americans held abroad.

The Human Dimension

Behind every wrongful detention case is a family enduring years of uncertainty. Detainees frequently face harsh conditions, limited access to due process, and prolonged isolation. Successful releases require patience, persistence, and strategic coordination among families, counsel, policymakers, and executive officials. Each return represents not only a diplomatic achievement but the restoration of an individual’s liberty and dignity.

PT Law Perspective

Poblete Tamargo LLP, through its legal defense fund, the Global Liberty Alliance and Legal Defense Fund, has long been engaged in high-stakes cross-border legal and policy matters involving wrongful detention, sanctions, and sovereign accountability. Cases like Mr. Swidan’s demonstrate that sustained legal advocacy and coordinated governmental action can produce results—even after many years.

We remain committed to supporting families and advancing strategies designed to secure the release of Americans detained abroad.

Disclaimer:
This blog post is provided for informational purposes only and does not constitute legal advice.

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New York Times: Iran Releases U.S. Resident Charged With Spying

“The announcement, after nearly a year of requests by top Lebanese officials for Mr. Zakka’s freedom, was billed in Iran and Lebanon as a gesture of good will from one nation to the other. It came at a time of crackling tension between the United States and Iran. Though leaders of both countries have said they do not want war, aggressive rhetoric on both sides, escalating American economic and military pressure, and mysterious attacks on  oil installations of American allies in the Persian Gulf have raised fears of an armed clash.

Mr. Zakka’s American lawyer, Jason Poblete, described his release as “excellent news” and said in an emailed statement that his client “looks forward to reuniting with family and friends.” Mr. Poblete also suggested in the statement that Mr. Zakka had come to know some of the Americans and other foreigners who have been imprisoned in Iran.“Nizar grew close to some of these men,” Mr. Poblete said. “They need help and want to come home.”

Read the New York Times story here (subscription required).

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GAO REPORT CALLS FOR A FEDERAL DATA PRIVACY LAW

The GAO report could be praised for three things. First, the GAO presents an excellent outline of the basics of data protection and the tension created between those seeking new and revolutionary innovation based on data collection, and those concerned for individual privacy. Secondly, the report notes the necessity for increased funding of the FTC so the agency can conduct more vigorous enforcement. Finally, the report concluded with the need for a federal data breach privacy law. Despite these good points, the GAO’s report falls short for two reasons. 

The first reason is that the report does not address the issue of pre-emption. Black’s Law Dictionary[ii] defines pre-emption as, “Doctrine adopted by the U.S. Supreme Court holding that certain matters are of such a national, as opposed to local, character that federal laws…take precedence over state laws. As such a state may not pass legislation inconsistent with the federal laws.” 

Pre-emption is a major obstacle that prevents the passage of a federal data breach law.[iii] Republican legislation on data breaches generally prefers pre-emption because a federal data breach law provides uniformity. Currently, state laws dealing with data privacy have different standards defining what is personal information, when to contact the appropriate authorities and so forth. What is problematic is that different state standards are in conflict with one other. A company such as Target would need to comply with 50 different standards, when there is a nationwide data breach on their systems.    

Democratic legislation on data breaches typically does not want pre-emption; instead they would prefer to have both federal and state jurisdictions working together or concurrently because of consumer protection. The problem with this is that a federal statute does not address the problem when a company has to deal with a breach. Under the Democratic approach, a company would need to have one additional layer of regulations to deal with on top of another layer.

The GAO needs to address the issue of pre-emption. Addressing the issue of pre-emption would have provided Congress with an understanding of the costs that companies have to incur because they need to comply with a patchwork of different state laws versus a uniform federal law. 

The second shortcoming in the GAO report is the failure to discuss the work done by Health & Human Services (HHS). HHS oversees the Health Information Portability And Accountability Act (HIPAA), the laws and regulations dealing with patients’ information. The Graham Leach Bliley Act, (GLBA), which covers banks and other financial institutions, is the other federal data privacy law that has a provision addressing data breaches. The FTC primarily oversees the enforcement of the GLBA. 

The GAO’s assessment of HHS’ work on HIPPA enforcement would have provided the Congress a point of reference when reviewing and developing the FTC’s role in data breach enforcement. The GAO needed to compare how the HHS and the FTC handle data breach enforcement. This information would have given the Congress a better understanding of how a federal data breach law would be enforced. There is a consensus that the FTC needs to be primary agency that will enforce the federal data breach law. Reviewing the HHS’ experiences in enforcing data privacy under HIPPA will give Congress a better understanding in providing the necessary funding to equip the FTC when the federal data breach legislation is passed. 

In closing, federal data privacy law is something that both consumers and businesses want and need. Recently, Intel issued its proposed version of a data breach law.[iv] Discussing pre-emption and providing a case study of the HHS’ handling of data breaches in the medical field could have made a good report a better one. Hopefully, the GAO will revisit this topic to address these two matters. If the GAO is able to do so, it may be able to provide clarity and break the logjam on the passage of much needed legislation. 

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Cuba Standard: As Title III Activation Looms, Lawyers Move Into Position

The following apeared in the April-May 2019 Edition of Cuba Standard Monthly (Vol. 27, No. 4-5). PobleteTamargo attorney Jason Poblete discusses Title III and the potential for lawsuits against those trafficking in stolen property.

“Any company engaging in transactions in Cuba, if the elements of the law are met, can be sued under Title III,” Poblete explains. 

He goes on to state, “In Cuba, the alleged trafficker has a choice to make: do business in Cuba or the United States — or find another way forward, such as pay the claim holder a ‘right to traffic’ fee.”

Read the full article by Mr. Vito Echevarria published in Cuba Standard below.

 

CubaStandard Title III 2019 by pobletetamargo on Scribd

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THE ILS GAZETTE: New Phase in US-Cuba Relations Adds New Layers of Complexity for Foreign Companies Doing Business in Cuba

To read The ILS Gazette go here. 

 

New Phase in US-Cuba Relations Adds New Layers of Complexity for Foreign Companies Doing Business in Cuba

By Arthur M. Freyre*

President Trump’s decision to end the waiver of Helms-Burton’s[1] Title III lawsuits has dramatically changed how foreign companies do business in Cuba. Individuals who have a claim or may have a potential claim against the Cuban government for stolen property can now file suit against foreign companies who are trafficking or trespassing on property they used to own but confiscated by Cuba without compensation. The waiver that has been in the law since the signing of the bill in 1996, ended on May 2nd and Title III will finally be implemented. This post provides a general overview on the Title III lawsuit process. Let’s answer three basic questions: “Who are the plaintiffs?” “What is property?” and “What is the trafficking?”

Prior to discussing the three questions, counsels should note that pursuant to 22 U.S.C. §6082 (a)(8), the Attorney General was supposed to have prepared and published in the Federal Register a concise summary of the Act sixty days after the date of enactment. Now that the waiver has been lifted, we anticipate that the Attorney General will prepare and publish the Title III summary. Besides being familiar with the statute, attorneys filing or defending Title III lawsuits need to be aware of certain required actions (i.e. notice to parties and the wind down period) prior to the filing of the lawsuit. 

The first question is “Who are the Plaintiffs?” Helms-Burton recognizes two groups of plaintiffs. The first group of plaintiffs is known as certified claimants. The second group of plaintiffs consists of individuals, or heirs of Cuban nationals, who are now U.S. citizens.  These are known as uncertified claimants. 

Certified claimants are individuals or corporations who were U.S. citizens when their property in Cuba was confiscated by the Castro revolution after 1959. These individuals provided evidence to the U.S. Foreign Claims Settlement Commission showing that the Cuban government confiscated their land without compensation. The Commission issued a certified claim to the claimant based on the property’s value. Prior to this implementation of Title III, certified claimants effectively had no access to federal court to file a lawsuit, except for a limited number of victims of terror with personal injury or wrongful death claims.

Uncertified claimants are persons whose families left Cuba after the 1959 communist takeover and whose property were also confiscated by the Cuban government. At the time of the taking, these property owners were not U.S. citizens, and were not eligible to present their matter before the U.S. Foreign Claims Settlement Commission when they arrived to the United States.  Subsequently, they or their sons or daughters became U.S. citizens.  Regarding this class of potential plaintiffs, Title III states that the federal courts may use the Commission as a special master to review the uncertified claim and make a finding on it’s validity and it’s value for the court to decide.

An additional question the courts may have to consider is the question of what is property? Pursuant to Title III, property is broadly defined to include intellectual property (i.e. trademarks, copyrights, patents, and so forth), real property (commercial and personal), and any item that may have a present, future, or contingent right, security, or other interest therein. 

The third and final question is what is defines as trafficking? Trafficking in a confiscated property involves a person who knowingly and intentionally, and without authorization of any U.S. national who holds a claim to the property, engages in or benefits from a wide range of transactions in Cuba that include or relate to a confiscated property. There are several exceptions to the trafficking definition. It is important to discuss this matter with counsel.

One final point regarding trafficking, 22 USC § 6082(b) states the required minimum threshold for damages in federal court is $50,000 value of the property at the time of the confiscation. This amount is exclusive of interest, costs, and attorney fees. 

Just because one believes that they might meet the minimal threshold of standing, there are other factors that one needs to consider. For instance, the Judicial Conference announced that there is an additional filing fee of $6,548.00 that one needs to pay the courts for the filing of a Title III action, Besides the filing fees, other costs may include service of process, and other fees and expenses we have not mentioned here regarding litigation.

In closing, companies doing business in Cuba should reassess their increased risk exposure during this time, as it may be significant. They need to make sure that they are not trafficking in stolen property. This was the case before May 2nd since there remains an economic embargo of Cuba. Counsel should read and understand Title III carefully and also review the economic sanctions regulations in conjunction with your Title III analysis. Failure to do this assessment may expose companies and individuals to potential lawsuits and liability. Reading and understanding Title III carefully is just as important for those who believe that they may have a Title III claim. Failure to comply with the notice provisions could lead to unnecessary expense and the dismissal of a Title III claim. 

*Arthur M. Freyre, Esq., is an attorney at the Law Offices of Poblete Tamargo LLP. His practice area includes federal regulatory law and public policy. Mr. Freyre would like to thank Mr. Mauricio Tamargo, Esq., former Chairman of the Foreign Claim Settlement Commission and Mr. Jason Poblete, Esq., an expert in U.S. economic sanctions and export control laws, for their assistance and input in this blog post.  

[1] The Cuban Liberty and Democratic Solidarity Act, 22 U.S.C. §§6021-6091.