Passport to Paradox

The Cuban embargo is supposed to be getting tougher on travelers, but it's just getting weirder

David Garten's lawyer offered OFAC a settlement of $1000. The agency countered with $12,000, which worked out to be $1000 per trip. The attorney returned with an offer of $500 for each of three post-1996 trips (Garten mistakenly believed the rules had changed in 1996, not 1994), and within a week the offer was accepted. Days later, Garten received approval for his thirteenth trip.

The agency is usually quick to settle and is unlikely to levy fines unless proof drops into its lap, say lawyers familiar with the process. OFAC normally depends entirely on the accused to incriminate themselves, either by admitting they went to Cuba or by answering the formal requests for information. In reality, despite the help of Customs, the agency is overextended, given the rules its agents are expected to enforce. (Its six divisions -- licensing, enforcement, blocked assets, compliance, civil penalties, and international -- are staffed with just 55 people; the operating budget totals only $4.5 million.)

One way OFAC seems to get more bang for the buck is by enshrouding itself in secrecy. OFAC officials will rarely speak on the record. Typical of most law enforcement agencies, OFAC refuses to discuss individual cases. Often its staff won't even divulge public documents that are legally available and that can be found easily through other agencies. In addition, it is chary with statistics or even general information.

"OFAC has always been that way," says a former Customs official who is now practicing law. "You wonder, are they in their offices flipping coins or deciding cases based on the outcome of the baseball game?"

Gabor Rona, the New York-based lawyer for the Center for Constitutional Rights, has advised 40 clients involved in alleged embargo violations to request the administrative hearings, procedures for which are not yet in place. "The more work you threaten to make them do, the more leverage you have," he says. None of his clients has had to pay a fine. Rona hopes that if the hearings are ever held, they can be used to extract information about how the travel provisions are enforced.

"If we get answers, it may help our ability to prove what we suspect," he says, "that both the licensing and enforcement procedures are arbitrary and discriminatory."

A Treasury spokeswoman says that the agency has asked the federal Office of Personnel Management to supply an administrative law judge to preside over hearings. But a spokeswoman for the OPM, Mary Ann Maloney, says they have no record of the request.

In fact, relatively few of those who travel to Cuba illegally ever get caught. Around 100,000 U.S. citizens have traveled legally to the island, either through the general license waiver or specific licenses, according to the New York-based U.S.-Cuba Trade and Economic Council, whose purpose is to provide information for U.S. businesses on economic and political relations between the two countries. Most of the visitors are Cuban Americans going to see family members; they need not apply for licenses. Since 1994 the increase of authorized travel has been nine to eleven percent per year.

In addition, around 20,000 tourists will go to Cuba in violation of the embargo. The annual increase of unauthorized travelers is 22 percent, according to council figures. The OFAC relies on the U.S. Customs Service to catch these people. But there is only so much Customs can do, officials say. The bottom line? Unless agents find evidence in the form of cigars or mementos or someone admits to such trips, they can do little. "I would love to say [enforcement] is consistent and we [find violators] all the time, but sometimes we are overloaded," says Frank Mullin, officer in charge of Customs in Nassau, through which most Miami travelers pass. "OFAC is not the most serious violation we are looking for."

Mullin says his men are also somewhat lenient toward Cuban Americans. "We have a little more sympathy for the folks who have family there," he says. "If they take two trips instead of one a year, it's not the same as the guy from Ohio who comes down for vacation."

Rona criticizes the posture: "That's discrimination."
The U.S. Attorney's Office in Miami, which would ultimately prosecute violations of the embargo, echoes Customs. "On the list of things to prosecute, it's pretty low down," says spokesman Willy Fernandez.

But in the climate of stepped-up enforcement, Customs seems to be looking for new ways of catching more violators for Treasury. This certainly came as a surprise to two siblings who spoke to New Times on the condition of anonymity. The two Miami natives had both previously traveled to Cuba. "If you're from Miami, it's like a Jew going to Israel," explains the younger. The two had planned a 40th birthday party in Havana. They contacted a travel agent in Nassau they had used before. (Normally, those who go illegally pay for a trip from Miami to Nassau and are met at the airport by a travel agent. At the airport, they then pay for the flight from the Bahamas to Cuba.)

This time the travel agent asked them to send a deposit, and within days of sending the check and a note on the itinerary, they received a sternly worded warning letter from OFAC, advising them that they had never asked for a license and requesting information about their trip.

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