By Michael E. Miller
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Adams was irked but sent one in ten days later. "We did not receive an invitation from a sponsor," he wrote in a letter dated June 11, 1999, "but rather, a Canadian boater." Said boater insisted on paying for everything. "He took care of all the details and paperwork.... While in the marina we were not plugged into electric or water. We only use twelve-volt power and the batteries are kept up by solar panels. As far as ship's stores we live twelve months a year on the boat and maintain at least six months of supplies on board. We also keep 80 gallons of water on board and enough diesel for many months. More than enough for a less-than-two-weeks visit." Adams noted that he and his wife had received clearance papers from the Coast Guard before leaving and had checked in with customs and the INS upon returning. "We did not have any Cuban products with us and the only persons aboard the vessel were myself and my wife," Adams concluded.
A half-year passed and the bureaucratic siege seemed to have vanished with the millennium. Twelve more months went by and the Adamses hadn't received another peep from Clinton's Treasury Department.
Then in May 2001, four months into the George W. Bush administration, another Treasury Department letter appeared in Adams's P.O. box. The heading read: Prepenalty Notice. It was signed by the OFAC director himself, Richard Newcomb.
OFAC had "reasonable cause to believe" that Adams and his wife had "engaged in certain prohibited transactions in which the Government of Cuba or a national thereof had an interest," Newcomb wrote in his 2001 letter. He disregarded Adams's June 1999 letter explaining how they managed not to spend money in Cuba. "While in Cuba," the bureaucrat continued, "you engaged in travel-related transactions including obtaining ground transportation, entertainment, incidentals, inward clearance, cruising permits, exit permits, and mooring or docking fees." Adding injury to insult, the OFAC director also informed the couple they were being fined $15,000 ($7500 each). The Adamses live on the $730 per month that Will receives in Social Security payments (including a disability supplement), or $8760 per year. This is called tightening the embargo.
OFAC issued a total of 697 such notices during 2001, according to Rob Nichols, Treasury's deputy assistant secretary for public affairs. That was up radically from previous years: 188 were issued in 2000, 120 in 1999, 72 in 1998, 78 in 1997, and 46 in 1996. Over the past several years, between 20,000 and 50,000 U.S. citizens have traveled to Cuba annually in defiance of the embargo.
OFAC rules allow the recipient of a Prepenalty Notice to appeal, but the request must be submitted in writing and received within 30 days. "You have a right to an agency hearing to present your case before a final penalty is imposed," an OFAC document titled Rights and Procedures -- Cuba Program states. "The hearing will be held in Washington, D.C."
Even though Adams knew he couldn't afford a plane ticket, he wanted to preserve his right to a hearing. "I called Newcomb several times and never got an answer," he recounted. "So I sent him a letter saying I request a hearing. That's my legal right to request a hearing. I said it would take me about three weeks to get there because I'm coming by bicycle. Because I don't have a car, you know? What the hell am I going to do?" His wife Donna owns a car, he admitted, but why should they have to travel to Washington for a hearing when OFAC has an office in Miami, he wondered.
Adams sent that letter via certified mail on May 19, 2001. Six months later, on November 16, OFAC issued him a notice now assessing only $10,000, which was due about a month later. Adams responded with another written request for a hearing. In late December 2001, Adams's case was forwarded to the Treasury Department's Financial Management Division.
In a letter dated April 22, 2002, Newcomb acknowledged the request for an appeal but included a requirement that made no sense to Adams. The OFAC director said his office would determine whether reconsideration of the penalty was appropriate once Adams provided his "taxpayer identification number/Social Security Number." Newcomb also noted that OFAC was required "to disclose that we intend to use such number for the purposes of collecting and reporting on any delinquent penalty." Paradoxically, Newcomb's letter left no room for the possibility of innocence. "A Penalty Notice was issued to you ... for having engaged in prohibited transactions," he wrote. So much for an appeal.
Adams was vexed. First, he didn't even know what a taxpayer identification number was. Second, after learning that since he's not a business owner his taxpayer ID is simply his Social Security number, he wondered how it was possible that a federal agency like OFAC didn't already have it. And third, he couldn't understand what his Social Security number had to do with his constitutional right to an appeal.
OFAC regulations do require one to submit a taxpayer ID number, but only after a penalty is assessed and the opportunity for an appeal is long gone. But Adams couldn't have had a hearing even if OFAC had granted him one, as required by the embargo law. That's because for ten years the Treasury Department hasn't had any administrative law judges, who would conduct such hearings, on staff.