Passport to Paradox

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.

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Jacob Bernstein
Contact: Jacob Bernstein