The Will Adams Embargo
Will-Bob was cursing himself as he rustled through the flotsam of photo albums and manila files in his floating studio apartment, also known as Tigua, a 35-foot sailboat anchored a few hundred yards offshore in one of Marathon Key's harbors. He was trying to find pictures of his and Donna's surreal trip to Cuba four-and-a-half years ago and the subsequent torrent of Treasury Department notices threatening to sink his weary 63-year-old soul right down to the bottom of the deep blue, white, and red U.S. Cuba-policy sea, leaving him without a dime and possibly boatless.
If he just hadn't been so naive and played by the rules he wouldn't have Mr. Newcomb and those other nabobs of the federal bureaucracy trying to terrorize him every few months with letters accusing him of "trading with the enemy" and then demanding more money than he gets from Social Security in a year. And he wouldn't have needed to hire Wild Bill, who has counseled Will-Bob that while the feds might be able to intercept his monthly checks, at least they can't take the Tigua because it's his primary residence. But Will-Bob was not optimistic.
"I was stupid," he said, sitting in the cabin next to the wooden ladder that provides a vertical exit up to the deck. "I could take you to probably fifteen boats out here in the anchorage that go to Cuba all the time. There are two guys that I know of who have children over there. Wives and children. They go over all the time. There's a guy who works on my engine, a mechanic, and he takes his motorcycle over there on his boat and plays in Cuba for three or four months, and he never checks in and he never checks out. Because he's not stupid like I am."
Will-Bob did check in and out with U.S. authorities. And he was dumb enough to think that if he really didn't spend money in Cuba, Treasury Department officials would believe him. He finally found what he was looking for: a manila folder of documents containing a letter from Richard Newcomb, director of the Treasury Department's Office of Foreign Assets Control. "You'll see in that folder that Newcomb says, 'We assume that you spent money in Cuba.' And it doesn't matter if I did or didn't," Adams huffed. "The preponderance of guilt is on me. This is what pisses me off."
Until the Treasury Department letters started coming, his 25-year run in the Keys had been nearly idyllic, although in recent years eye problems and cancerlike spots on his sun-baked skin had begun to cloud his outlook. He never regretted his reincarnation as Will-Bob, who replaced his former self, Professor William Adams, a New Orleans native who taught French and comparative literature at Lamar University in Beaumont, Texas, in the early Seventies. In 1975, as part of a plan to recover from major heart surgery, the professor and his wife Donna set sail from Port Arthur in a 22-foot sailboat. It was supposed to be only a one-year return to his adventurous ways of the late Fifties and Sixties, when he joined the Navy, moved to Paris, and hitchhiked across the Soviet Union, among other escapades.
After they landed in the Florida Keys, that melting pot of Dixie defiance and Margaritaville complacence, they found they couldn't leave, except for a sailing trip to the Bahamas, Belize, or Mexico every now and then. The year of respite turned into two, and two to twenty-five. The 22-foot sloop turned into the bigger Tigua. The proclivity for imagination that led him to literature turned into appreciation for the farcical nature of life in this fabled strand of islands. "I don't know anybody's full name," Will-Bob confessed. "That's just the way it is down in the Keys." That goes for even his best friend, Dinghy Don. "He's the only one who's ever been arrested for drunk-driving a dinghy in the harbor." But since the feds got on Will-Bob's case, farce has been usurped by totalitarian nightmare.
Maybe he and Donna just shouldn't have been so damn hospitable to Canadian Jack, who showed up in the harbor with his big power boat one day, circa 1996. Maybe the folks at the Treasury Department's Office of Foreign Assets Control (OFAC) would have preferred them to act like paranoid Northeasterners. "One day he came out here and anchored," Adams recalled. Canadian Jack was on his way to Cuba with a motorcycle on board. "He's been going over there every year," Adams explained. "He takes his motorcycle off and rides around the island for a few months. So Donna and I helped him. We'd drive him to town. You know, take him to the store. I said, 'Use my dinghy if you need it.' So he did. And this went on for weeks and weeks."
Over the next two years, Canadian Jack again anchored while en route to Cuba. The Adamses had never been to the island, and in 1998 Jack proposed they sail down and join him. To express his gratitude for their past hospitality, he would take care of all the arrangements and expenses. So Donna and Will-Bob sailed to Cuba in June of that year.
Under federal law it is legal for U.S. citizens to travel to Cuba without a Treasury Department license as long as they don't spend a cent. The challenge, however, is proving that they didn't. How can you produce evidence of something that didn't happen? The conundrum is driving Adams asunder. "In a criminal suit the government has to prove I'm guilty. In a civil suit I have to prove that I'm innocent. Well, how in the hell am I going to do that? There's no fucking way I can prove I'm innocent. Excuse my French."
Worse, the Treasury Department never granted Adams a hearing. "No due process," he complained. In December 2001, Newcomb forwarded the case to the department's Financial Management Division for debt collection (under the Debt Collection Improvement Act of 1996).
After a year of frustrating phone-tag games with bureaucrats in Washington, D.C., Adams has now concluded that justice will not be sailing his way. But he is drawing a line in the sand: He's innocent, he doesn't have the money, he's not paying, and he's prepared to go to prison. "I said, screw it, you know? And if worst comes to worst," he continued, eyes getting moist, "I'm going to send Donna off, give her the few bucks that we have, and say, 'Come down and put 'em on, baby," Adams said serenely. And with that, he thrust two fists together for handcuffing by the imaginary law enforcement officers who had just boarded Tigua.
Their delightful sail to Cuba in the summer of 1998 was the calm before the storm. Before leaving for the island Adams and his wife informed the U.S. Coast Guard station in Key West of their plans to enter Cuban waters. Such notification is required under Presidential Proclamation 6867 (proclaimed by Clinton in March 1996), which established a "security zone" around the coast of South Florida. The purpose was to keep angry exiles out of high-seas confrontations with Cuban patrol boats after one of Castro's bloodthirsty MiG pilots pulverized two Cessnas and four Brothers to the Rescue members over the Florida Straits in February of that year.
When Coast Guard officers faxed Adams an application for a security zone permit, he noted a paradoxical Privacy Act Statement at the bottom, which read: "DISCLOSURE IS VOLUNTARY: If you do not provide the requested information ... you will not be issued a permit." So he sent it in. Will-Bob and Donna even drove down to Key West and bought a security zone permit for $25. The transaction would come back to bite him.
The sail took two days. "The weather was nice. Beautiful," he recollected. When they arrived at the buoy marking the channel into Hemingway Marina, Will-Bob radioed Canadian Jack. "And he said, 'Just hold up out there. I'll be out there in a minute in my dinghy.' So he came out in his rubber dinghy and said, 'I'll escort you in.' So he took us in and everything was cool and he says, 'You gotta check in with customs, immigration.' They were very nice. Unlike American immigration. And I said, 'How much is that going to cost me?' and he says, 'Don't worry, I've taken care of everything.'"
Canadian Jack insisted on taking them to Old Havana right away. "I said, 'Great. That's why I'm here," Adams recalled. "Old Havana is beautiful. It is spectacular."
They spent two weeks docked at Hemingway, sleeping on the Tigua, hanging out on Canadian Jack's boat, taking day trips into Havana, but never using any of their own money, Will-Bob stressed. "We'd ride with people who were going to town. We didn't use a taxi to go anywhere, because you had to spend money for a taxi," Adams emphasized. "We made damn sure we got a ride. If we didn't get a ride we didn't go to town. And then we'd get a ride back with some tourists." They ate from the ample supply of food they routinely keep on their boat whether they are traveling or at home in their Marathon Key harbor.
One day while watching TV on Canadian Jack's power boat (via a satellite system), they caught a report featuring Jack Nicholson, who happened to be visiting Cuba at the time. "So Jack Nicholson is there and he's on the goddam television, smoking a cigar, buying everyone drinks. He's saying, 'Why can't we smoke these cigars? Goddam!' And he's cursing. We all watched that and we all laughed and thought that was funny as hell. Little did I know that I was going to run into all this shit coming back."
Upon their return to Marathon, Will-Bob called a toll-free U.S. Customs number to check in, as he routinely did when coming back from trips to the Bahamas, Mexico, and other places. Thinking they were being extra-diligent, he and Donna again drove to Key West for processing by customs and immigration officers.
Almost a year had passed when a Treasury Department envelope arrived in Adams's P.O. box. The letter, dated May 28, 1999, was signed by David Harmon, chief of OFAC's enforcement division. He wanted the Adamses to know he had received information from the U.S. Customs Service in Key West about their June 1998 visit to Cuba. Because OFAC had no record of issuing him a license authorizing "travel-related transactions involving Cuba," Harmon wrote, the Adamses were now required to provide a detailed report about the trip.
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.
So what does a guy who plays by the rules do when he thinks his government is putting the screws to him? He writes to his congressmen.
Adams sent letters to U.S. Senators Bob Graham and Bill Nelson and to his House representative, Peter Deutsch, asking them for help. Each politician dutifully contacted OFAC and each received an identical reply from Newcomb. It informed the elected officials of the $10,000 Penalty Notice issued to the Adamses for violations under the Trading With the Enemy Act. It also acknowledged Will-Bob's request for an appeal. "The constituents have requested reconsideration of the Notice," Newcomb allowed. "Upon receipt of the previously requested taxpayer identification numbers, OFAC will reconsider the Notice."
Each politician forwarded Newcomb's note to Adams, offered little to no encouragement, and wished him well. "I hope you find this information helpful," Graham wrote, adding, "I hope you will always feel free to call on me." Nelson was slightly less optimistic. "I hope this explanation adequately addresses the concerns you raised," he stated. "I appreciate you giving me the opportunity to look into this issue. If I can assist you with any other matter, please do not hesitate to let me know." Deutsch offered no hopes at all. "Enclosed is a copy of the response I received, which is self-explanatory," he asserted. "I regret that circumstances preclude a more favorable reply."
Among those circumstances is a political reality in which these three Florida Democrats work hard to maintain the pro-embargo credentials that help win elections in the Sunshine State. Thus abandoned by his three most powerful public servants, Adams began to prepare for defeat. He wrote to OFAC and offered to work out a payment plan. "I want to get this affair settled, even though I am not guilty of any wrongdoing," he penned this year in an April 26 letter. "I was under the assumption, apparently my error, that in America, one is presumed innocent until proven guilty."
Believe it or not, the federal government does consider Adams -- and hundreds of other U.S. citizens in the same boat -- guilty. Just to make sure, New Times called OFAC's public information line in Washington to ask whether one was free to sail to Cuba as long as one didn't spend money. "Sure you can," boomed OFAC information specialist Jackie Hillian. "But it is your responsibility to explain to customs how you were able to travel to Cuba and not spend any money. Customs is going to forward the information to us." Hillian, paraphrasing current rules, said a satisfactory explanation would include a letter from the foreign national who hosted the guilty-until-proven-innocent traveler, as well as "copies of receipts of what was paid on your behalf and why." And if the host doesn't want his name disclosed because he is not subject to the jurisdiction of the United States, or the traveler wants to protect his host's privacy? Or, as Adams maintains, he doesn't know Canadian Jack's last name or how to find him five years later? "Then you're going to be fined," Hillian assured.
Some lawyers believe the travel ban is unconstitutional. Earlier this year U.S. Senators Byron Dorgan (D-N.D.) and Chris Dodd (D-Conn.) held subcommittee hearings on the matter. Among those who testified was Nancy Chang, a lawyer at the Center for Constitutional Rights in New York, which represents about 400 U.S. citizens whom the Bush administration has targeted for traveling to Cuba. The ban undermines civil liberties "without enhancing national security," she asserted to a Senate Foreign Relations Committee panel. For example, OFAC is violating the Fifth Amendment, which protects one from being deprived of liberty without due process. To make her point she quoted Justice William Douglas from a 1964 majority opinion: "Freedom of movement is the very essence of our free society.... Once the right to travel is curtailed, all other rights suffer." The ban also violates the First Amendment, she submitted, and quoted Douglas from a 1965 dissenting opinion: "The right to know, to converse with others, to consult with them, to observe social, physical, political, and other phenomena abroad as well as at home gives meaning and substance to freedom of expression and freedom of the press."
Chang noted that the U.S. Supreme Court has not considered the travel ban since 1984, when a five-to-four majority justified the restrictions on the basis of the Cuban government's close military ties to the Soviets. "The restrictions on travel to Cuba have long outlived their usefulness," she concluded. "The arbitrary and unfair manner in which they have been applied only serve to breed contempt and disrespect for the laws of this nation."
In addition to these arguments, there is an interesting technicality that Wild Bill could pursue for his client. The language that ensnared Adams -- i.e., that a person who travels to Cuba "shall be presumed to have engaged in travel-related transactions" -- was added to the regulations in May 1999 under the Clinton administration, nearly a year after the fateful sailboat trip. (Wild Bill, a.k.a. William Heffernan, did not respond to a request for comment.) Although Adams is not currently on Chang's roster, she thinks that his case could be worth litigating. "I think that there are serious questions raised by that presumption," Chang told New Times. "It's an unfair presumption. If the government seeks to enforce it, the Center for Constitutional Rights is prepared to challenge it in court."
Meanwhile Adams is left to ponder whether the political currents pushing Congress toward dismantling the embargo will ever overcome those flowing in the other direction. He was heartened this past July when the U.S. House voted 262 to 167 to stop funding the Treasury Department's travel ban enforcement operations. Also in July a House measure proposing to end the embargo altogether came closer than ever to passage, but still failed 226 to 204. But the Senate has taken no action on either.
Particularly annoying to Adams is that while OFAC is cracking down on someone who didn't spend a cent in Cuba, it is ignoring people who routinely pour money into the island, some of whom he knows personally. Under federal law, U.S. citizens and residents may send no more than $300 to a household in Cuba over a three-month period, provided that no member of that home is a senior-level official of the Cuban government or Communist Party. They may also send a one-time payment of $1000 to someone on the island to help that person emigrate. Cubans in the U.S. send at least a half-billion dollars to the island every year, according to Cuba economy specialists.
"I know a guy in Cuba that I knew in Miami," Adams related. "They threw him out of Miami because he had three DUIs. He spoke English as well as you and I. And he gets a check every month from his family. And I can't even go down there and buy a goddam beer."
Adams hasn't bothered to contact U.S. Rep. Ileana Ros-Lehtinen, who as of her re-election in November now represents Keys residents. The GOP-run state legislature drew them into her district and out of Deutsch's early last year. Oddly enough, though, she is probably in a better position to intervene than Graham, Nelson, and Deutsch. In 2001 President Bush named her former chief of staff, Mauricio Tamargo, chairman of the Foreign Claims Settlement Commission, a Justice Department office that works closely with the Treasury Department on monetary matters related to embargoes. But while Ros-Lehtinen is a fiery defender of the inalienable right of Cuban citizens to leave Cuba for the United States, she does not support a U.S. citizen's right to travel freely in the opposite direction. Adams, tired of "the typical blah, blah, blah" from elected officials, believes anti-Castro politics would trump any appeal he could make to her.
"Under Clinton they only hassled a couple hundred people. But George Bush decided, well, we gotta play the Cuban card," Adams surmised. "Don't misunderstand me. I'm not being prejudiced against the Cuban people. I'm just saying that they're playing their political card. Ileana's playing her political card and what's-his-face, Diaz-Balart, is playing his deal."
A Treasury Department letter dated September 30, 2002 ratcheted up the pressure on Adams. If he did not pay the $10,743 he now owed within the next 30 days, the notice warned, the department would target his federal payments. The letter listed a variety of sources from which OFAC could snatch funds, including income tax refunds, salaries, pensions, checks to victims of black lung disease, and Social Security, Will-Bob's only current source of cash.
"The boys are playing hardball now," Adams said, sounding resigned. "Excuse me, I don't know whether you're Republican or Democrat or Independent or what, but George Bush has decided he's really going to get tough. The problem is, it's all political. The Cubans in South Florida got Bush elected president, in Florida. They got Jeb elected governor in Florida. So they've gotta play baseball with the Cubans."
The next two years will give President Bush a chance to consider whether a policy that squashes freedom in the name of freedom could become a liability. In Congress, many of his fellow Republicans have already defected on the issue, as have many of those whose political clout led to the policy in the first place: Cuban Americans. Year after year Florida International University sociologist Lisandro Perez's biannual polls show that an increasingly large majority of Cuban Americans believe the embargo is a failed policy, even though, illogically, many simultaneously support it. As word of that trend spreads, more in Congress are likely to jump ship.
Not President Bush yet, though. As Nichols, the deputy assistant Treasury secretary, told New Times: "Our Cuba policy recognizes that a relationship of continuing hostility exists between Cuba and the United States. International human rights organizations recognize that Cuba violates internationally accepted standards of basic human rights." And, as if liberty to travel freely were not a human right, he continued: "The American people need to know that if they go to Cuba illegally they run the risk of being fined. We will enforce the law of the land."
If all else fails, Adams has an exit strategy. If he learns federal authorities are moving in to confiscate the Tigua, he is prepared to lift anchor and sail to Mexico. Then everyone involved in maintaining and enforcing a law intended to punish a regime that has produced enough refugees over the past 43 years to fill entire cities, can marvel at the creation of a new kind of refugee.
Until then, Will-Bob spends hours at the Marathon Public Library, surfing the Internet and studying the latest ebbs and flows of embargo support. "I wanted to play by the rules," he concluded. "Seriously. And I made a mistake. And now I advise people going to Cuba not to play by the rules. I tell them if you try to follow the rules like I did, they're going to nail your ass anyway."
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