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By Pepe Billete
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By Kyle Swenson
David Garten could scarcely believe the Treasury Department letter on the table before him. Dated October 17, 1997, it was written to inform the Vermont photographer of a $117,500 fine that had been levied against him for traveling to Cuba. The penalty seemed outrageous -- an astronomical sum for twelve trips, all but three of which he believed were legal under the terms of the U.S. embargo restrictions on travel to the island.
The letter, a "pre-penalty notice," came from the Office of Foreign Assets Control. More commonly known by its acronym, OFAC, the office, a part of the Treasury Department, enforces the embargoes the United States enacts against its antagonists. Some countries such as Burma and the Sudan are relatively new to the list. Others, like Libya, North Korea, and Cuba, are long-standing inclusions.
The second page bore the heading "Election of Proceedings," underlined and in bold type. Four options followed. The first involved asking for an agency hearing during which Garten would be able to present his side of the story to an administrative law judge who would review the evidence against him. The next three possibilities outlined various methods to negotiate or settle the fine: by post, by phone, or payment in full. After consulting with a lawyer in California who deals with embargo issues, the 44-year-old Garten decided on a hearing.
More than a month after he replied, a response came in the form of an "acknowledgment of hearing/discovery requests." The one-page missive informed Garten that OFAC would be willing to grant the hearing. But there was a snag: No procedures were in place to conduct it. Sorry. Nonetheless, the letter warned, he must resolve the matter if he ever wanted to obtain a license to return to Cuba.
"It was a total Catch-22," he says. "It felt like I had entered the ministry of doom."
In fact, Garten had entered the twilight zone of United States-Cuba travel restrictions. It is a regulatory world critics call arbitrary at best, discriminatory at worst.
During the past year, OFAC -- armed with new rules and seemingly reinvigorated by prosecutorial zeal -- has been aggressively pursuing those who violate the travel provisions of the embargo. The agency says more people are receiving letters that question their motives for travel to Cuba, warn them not to go on planned trips, or notify travelers of fines.
Those who do travel, both legally and illegally, to the island are experiencing increased concern and confusion. "They've started to step up enforcement of travel restrictions in a way that's unprecedented," says Gabor Rona, a lawyer with the Center for Constitutional Rights in New York, which is preparing a legal challenge to the embargo on constitutional grounds. "It's a ridiculous and unenforceable scheme that they are making even more ridiculous in an effort to make it better."
The U.S. embargo on travel to Cuba was implemented on February 8, 1963, when the Kennedy administration imposed a ban in response to the Cuban missile crisis. Authorization for the move came from the Trading with the Enemy Act of 1917. Not until 1977 did President Carter lift the ban, allowing all Americans to see the island without fear of penalty. But in 1982, during the Reagan years, the United States halted charter air links between Miami and Cuba and made it illegal for U.S. citizens to spend dollars in Cuba -- effectively creating a travel ban. The move was legally challenged, and in 1984 the Supreme Court upheld the regulations, deciding in a 5-4 ruling that national security interests outweighed opposition.
Opponents of the embargo had hoped that President Clinton would ease the restrictions, but in the aftermath of a new wave of refugees in 1994, the administration did just the opposite -- it tightened them even more. For the first time, it became illegal for Cuban Americans to visit family members except in the case of grave emergencies. The administration compelled U.S. researchers to obtain specific licenses for travel to the island. It also decreed that only journalists who were "regularly employed" could go.
In 1995 the administration loosened the rules somewhat and created more categories under which academics and researchers could get the special licenses. But in 1996, after Cuban fighter jets downed two planes belonging to the Miami-based exile group Brothers to the Rescue, killing the pilots, pressure built to tighten the screws again. A scant two weeks after the deaths, Clinton signed the Cuban Liberty and Democratic Solidarity Act, commonly known as the Helms-Burton Law after its sponsors, Sen. Jesse Helms and Rep. Dan Burton. Among other things, the act codified existing regulations, and though it did not specifically address travel to Cuba, the Clinton administration did, barring direct flights between the United States and the island.
Currently there are only three exceptions to the ban on travel. The first is called a general license and covers a variety of people: government authorities on official business; members of certain international organizations traveling for their work; full-time, accredited journalists; and individuals visiting close family members once per year for reasons of "extreme humanitarian need." All travelers who fall into the general license category can simply grab their bags and go. While on the island, they are not supposed to spend more than $100 per day.
Those who can't claim general license exemptions may apply for licenses under a broad and relatively vague classification the Treasury Department has created. It covers individuals who travel for professional research or who need to visit family members more than once per year, or whose reasons for travel are religious or educational, or who travel "to bring information in or out of the country," or those whose travel supports "civil society." If a proposed trip falls within one of these definitions, the Treasury Department will grant a specific license for that trip. The same spending limit of $100 per day applies to this group.
One final way to travel legally to Cuba is to be "fully hosted." Since it's only a violation for a U.S. citizen to spend money in Cuba, if someone not subject to the embargo covers all costs without reimbursement the trip is legitimate. In the past, travelers could claim to be fully hosted simply by producing a letter stating as much. Treasury officials and travel watchers say hundreds of people claimed to be fully hosted when in fact they were not. "The fully hosted [clause] has been abused for years, and everybody knows it," says John Kavulich, president of the U.S.-Cuba Trade and Economic Council.
So on March 20, in an effort to get tough on unauthorized travel, the Treasury Department changed the rules again. Travelers must now prove they didn't spend dollars in Cuba.
"This is about a presumption," says a senior Treasury official who declined to be named. "If you travel, you have to spend money. When someone pays for your trip, there are records for this."
Critics of the embargo scoff at what they call just another layer of rules that can't be enforced in any coherent way. "Conceptually, it is very difficult to prove that something didn't happen," says Rona. "It represents the frustration that [Treasury] has."
The thaw produced by the Pope's visit to Cuba in January spurred the Clinton administration to allow resumption of direct flights between Miami and Cuba. Paradoxically, that move came as Treasury itself has increased enforcement. Many observers consider it a concession to those who support tougher policies against the Castro government.
Supporters of the embargo argue that, even if enforcement is flawed, the United States must continue to apply pressure against Cuba; when Fidel Castro dies, they say, that pressure will pay off in leverage to force elections.
"Let's keep it in perspective," says Miami Congressman Lincoln Diaz-Balart. "[The embargo] should be complied with. But never lose perspective of what we are doing here -- we are denying them billions of dollars." With that in mind, the congressional delegations of South Florida and New Jersey -- from states with the largest number of Cuban Americans in the country -- relentlessly pressure the Treasury Department to enforce its rules. One congressional aide who works for a Cuban-American legislator says her boss performs a ritual every month: He calls Richard Newcomb, director of OFAC, into his office to demand that the agency do more to enforce the embargo. Aides in the offices of other pro-embargo legislators tell similar stories.
"We would like to see these people harassed a little bit," says Stephen Vermillion, an aide to Lincoln Diaz-Balart. Vermillion says the office wants more criminal prosecutions of those who violate the travel embargo; there has been only one criminal prosecution of a travel violation in the past five years.
Lawyers say the burden of proof required for a criminal conviction is usually too difficult for OFAC to meet. In a criminal case, the agency must prove that a defendant knew the exact provision of the law; in civil prosecution, the agency need only demonstrate that the law was, in fact, broken. From fiscal year 1994 to January 1998, OFAC has collected a total of nearly $1.6 million in civil penalties for embargo violations in 287 separate cases.
Trying to appease everyone has left a wake of frustration, anger, and confusion. Regulatory disarray caught the attention of the American Association for the Advancement of Science, one of the nation's oldest professional societies. Based in Washington, D.C., its membership comprises more than 143,000 scientists, engineers, educators, and policymakers worldwide. The association also publishes the prestigious journal Science. So it's not so surprising that, when presented with a labyrinthine quandary, analytical minds went to work. Last June the AAAS won the promise of a grant from the Ford Foundation to establish a Website in order to document the enforcement of travel restrictions to Cuba. The association has also had a Freedom of Information Act request pending for two years requesting information about all applications for licenses to Cuba by U.S. citizens for educational or scientific purposes.
The idea for the Website information clearinghouse arose after a series of incidents that left U.S. scholars struggling to make sense of the travel provisions of the embargo. In the past year alone, the Treasury Department has barred Cuban scientists from participation in U.S. conferences and has denied travel licenses to American academics. Some scholars received warning letters citing their possible participation in even organizing such trips. In March, for example, twenty Cuban professors and professionals were denied entry visas for a conference titled "Dialogue with Cuba" at the University of California, Berkeley, despite the appeals by 21 congresspersons made directly to Secretary of State Madeleine Albright.
"There is no specific policy that a scientist can use to find out if an application will be denied or accepted," says Elisa Munoz, who coordinates Cuba issues for the AAAS's Science and Human Rights Program. "It seems arbitrary who gets the licenses."
Munoz would get no argument from Clifford DuRand, a professor of philosophy at Morgan State University in Baltimore. DuRand is a coordinator for the annual Conference of North American and Cuban Philosophers and Social Scientists, which has been held in Havana for the past ten years. The conference is organized by a group sure to raise the hackles of any conservative --- the Radical Philosophy Association. In the conference's early years, DuRand says, he and other U.S. scholars would simply go to Cuba on a general license for academics. But in 1994, when Treasury tightened the rules, they had to apply for specific permission for each academic to attend. "Still, we never really had any trouble getting a license," he recalls.
Until this year, that is. In June, two months before the sixteen-day conference was scheduled to open, DuRand submitted the license applications for 62 academics from across the country (OFAC asks for a 30-day notice for license requests). He presented their applications under the category of "professional research or similar activities," as he always had. (Under this category, a professional with an "established interest" in a subject may attend professional meetings in Cuba where research on that topic is shared.) On a Friday, five days before the participants were scheduled to leave, OFAC denied all the license requests.
The agency said it decided this year to review the requests under a designation different from the one DuRand had selected. Since the conference involved Cuban scholars, it must be an international meeting, reasoned the Treasury official reviewing the applications. And as such, it did not fulfill the requirement of a meeting organized by an international institution or association that regularly sponsors conferences in other countries.
The group decided to fight back. Members deluged congressional offices with phone calls, and five days later -- the day of the scheduled flight to Havana -- OFAC relented and granted licenses to 58 of the academics. Those who had canceled their reservations were forced to pay more for last-minute flights. In Havana the academics and their Cuban colleagues released a joint statement condemning the embargo.
Other academics accuse the OFAC of employing scare tactics. John Gilderbloom is an associate professor of urban policy and economics at the University of Louisville. He helps organize research trips and conferences on urban planning, architecture, and sustainable development in Cuba. He is also an outspoken critic of the embargo. "I am a lecturer on capitalism, but they say if I give my lectures in Cuba, I am providing technical assistance," he says.
On February 23, Gilderbloom says, he received a letter from the agency, threatening him with possible prosecution if he didn't explain his alleged participation in organizing an international conference on the revitalization of inner cities, to be held in Havana in April. Such letters looking for information or warning of possible wrongdoing usually include a paragraph stating the maximum penalty for such a violation: ten years in prison and as much as $250,000 in fines for individuals.
In Gilderbloom's case, OFAC officials thought he may have run afoul of a recent rule change: U.S. academics cannot themselves organize international conferences held in Cuba (the provision they had used to deny DuRand his license). He denied helping to organize the conference, and the matter ended there, he says.
Still, Gilderbloom and other scholars chafe at having to apply for licenses to perform their research. And they point to incidents like that in 1993, when a scientist was asked, as part of her license application, to submit a copy of each of the 70 publications she had listed on her curriculum vitae. "It is ironic that bureaucrats are reviewing my work to decide whether I can go to Cuba," Gilderbloom says.
Lawyers who deal with OFAC say that despite Treasury's bluster, many of their clients pay only minimal fines; some pay no fines at all. Photographer David Garten -- who had a thirteenth trip planned to Cuba when he received his letter -- decided to settle rather than wait for an administrative hearing. He had felt sure he could travel to Cuba as a journalist, and indeed, at the time of his research he could. "The way I understood what the restrictions were, if you were engaged in news gathering while in Cuba, you were exempted," he says. After his first trip, he published photos in the L.A. Reader and, throughout the years, sold his work from Cuba to a variety of publications.
In late 1994 the Treasury Department toughened the rules by requiring journalists to be fully accredited, and working for a news organization, not merely involved in news gathering. While crossing the Canadian border coming back from his twelfth trip, he admitted to a U.S. Customs agent that he had been to Cuba; this admission started the process that led to the $117,500 fine. Garten enlisted the help of his congressman and the Virginia-based Reporters' Committee for Freedom of the Press. (Such support can be crucial in getting Treasury to blink, say lawyers.)
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.
Michael Larrow, the Bahamian travel agent, says that the Federal Express letter from the siblings arrived at his office with a strip of tape across it and a notice that it had been opened by U.S. Customs. It was not the first time he'd seen such mail intercepts, he claims.
Law enforcement officials can open Federal Express letters, which are considered packages; they may not open regular U.S. mail. Larrow insists that many people send him checks by mail with no problem and that the siblings erred by including a letter with a detailed itinerary. An informal survey of travel agencies in the Bahamas failed to turn up similar stories of packages or letters arriving opened.
Some lawyers involved in OFAC cases suspect the agency's strategy is to send out ever-increasing numbers of notices, collecting money when it can and writing off the ones who resist.
"If that is the case, then it's a procedural house of mirrors without any substance to it," says Rona. The situation, he adds, although ridiculous, is probably not illegal.