[Senate Hearing 107-361]
[From the U.S. Government Publishing Office]
S. Hrg. 107-361
RESTRICTIONS ON TRAVEL TO CUBA
=======================================================================
HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
SPECIAL HEARING
FEBRUARY 11, 2002--WASHINGTON, DC
__________
Printed for the use of the Committee on Appropriations
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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COMMITTEE ON APPROPRIATIONS
ROBERT C. BYRD, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii TED STEVENS, Alaska
ERNEST F. HOLLINGS, South Carolina THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania
TOM HARKIN, Iowa PETE V. DOMENICI, New Mexico
BARBARA A. MIKULSKI, Maryland CHRISTOPHER S. BOND, Missouri
HARRY REID, Nevada MITCH McCONNELL, Kentucky
HERB KOHL, Wisconsin CONRAD BURNS, Montana
PATTY MURRAY, Washington RICHARD C. SHELBY, Alabama
BYRON L. DORGAN, North Dakota JUDD GREGG, New Hampshire
DIANNE FEINSTEIN, California ROBERT F. BENNETT, Utah
RICHARD J. DURBIN, Illinois BEN NIGHTHORSE CAMPBELL, Colorado
TIM JOHNSON, South Dakota LARRY CRAIG, Idaho
MARY L. LANDRIEU, Louisiana KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island MIKE DeWINE, Ohio
Terrence E. Sauvain, Staff Director
Charles Kieffer, Deputy Staff Director
Steven J. Cortese, Minority Staff Director
Lisa Sutherland, Minority Deputy Staff Director
------
Subcommittee on Treasury and General Government
BYRON L. DORGAN, North Dakota, Chairman
BARBARA A. MIKULSKI, Maryland BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana RICHARD C. SHELBY, Alabama
JACK REED, Rhode Island MIKE DeWINE, Ohio
ROBERT C. BYRD, West Virginia TED STEVENS, Alaska
(ex officio) (ex officio)
Professional Staff
Chip Walgren
Nicole Rutberg
Pat Raymond (Minority)
Lula Edwards (Minority)
deg.C O N T E N T S
----------
Page
Opening statement of Senator Byron L. Dorgan..................... 1
Statement of Marilyn Meister..................................... 3
Prepared statement........................................... 5
Statement of Cevin Allen, Sammamish, Washington.................. 6
Prepared statement........................................... 8
Statement of John Harriman, Chicago, Illinois.................... 10
Prepared statement........................................... 12
Statement of John I. Gilderbloom, Ph.D., Professor, Department of
Urban and Public Affairs, College of Business and Public
Administration, University of Louisville....................... 13
Prepared statement........................................... 16
Biographical sketch.......................................... 21
Statement of Nancy Chang, Center for Constitutional Rights....... 22
Prepared statement........................................... 25
Statement of Richard Newcomb, Director, Office of Foreign Assets
Control, Department of the Treasury............................ 33
Prepared statement........................................... 40
Statement of James Carragher, Coordinator for Cuban Affairs,
Department of State............................................ 45
Prepared statement........................................... 45
Statement of Hon. Dennis DeConcini, former U.S. Senator from the
State of Arizona, on behalf of the Alliance for Responsible
Cuba Policy.................................................... 56
Prepared statement........................................... 58
Statement of Ambassador Dennis K. Hayes, Vice President, Cuban
American National Foundation................................... 60
Prepared statement........................................... 61
Prepared statement of Frank Calzon, Center for a Free Cuba....... 67
Prepared statement of Timothy H. Edgar, American Civil Liberties
Union.....................................................73
(iii)
RESTRICTIONS ON TRAVEL TO CUBA
----------
MONDAY, FEBRUARY 11, 2002
U.S. Senate,
Subcommittee on Treasury and
General Government,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:07 a.m., in room SD-192, Dirksen
Senate Office Building, Hon. Byron L. Dorgan (chairman)
presiding.
Present: Senator Dorgan.
opening statement of senator byron l. dorgan
Senator Dorgan. We will call the meeting to order. First of
all, let me welcome all of you to this hearing. This is a
hearing of the Subcommittee on Appropriations dealing with
Treasury and General Government. This hearing is to deal with a
subject that, of course, most of you know is fraught with
controversy, the subject of Cuba travel and especially, from
the perspective of the subcommittee, the enforcement of the
Cuban travel restrictions.
This subcommittee funds, an agency called the Office of
Foreign Assets Control. That office in the Treasury Department
is central to the issue of trying to track terrorists' assets,
among other things. The National Terrorist Assets Tracking
Center is housed within OFAC, the Office of Foreign Asset
Control. Working with the Financial Crimes Enforcement Network,
OFAC leads our Nation's war against global terrorist financing.
It does that with a relatively small budget. Indeed, the
President's budget this year proposes to increase OFAC's budget
by about $2 million in fiscal year 2003 over fiscal year 2002.
One of the reasons that we wanted to have a hearing on this
issue is to evaluate what has been happening with respect to
OFAC and its use of resources in enforcing the travel
restrictions, especially with respect to Cuba. We have had
numerous reports in the past year or so that the Office of
Foreign Assets Control has dramatically increased the number of
enforcement actions against U.S. citizens traveling to Cuba.
Particularly in the aftermath of September 11, one must
ask: What is the best use of assets at OFAC and at the Treasury
Department? Should it be focusing its resources on tracking the
U.S. assets of terrorists, thereby helping prevent future
attacks, or should it be using precious resources to enforce
the travel restrictions with respect to Cuba?
While this hearing is not about the policy of restrictions
on travel to Cuba, it is about the funding of OFAC and how much
is being devoted to enforcement of that policy. Let me say that
my feeling is that the travel restrictions with respect to Cuba
are ill-advised. I have no Truck for Fidel Castro. He is a
dictator and his mismanagement of the Cuban economy and human
rights violations have brought misery to the Cuban people. But
in an attempt to punish Fidel Castro, we are restricting the
freedom of the American people to travel. I do not think that
those restrictions hurt Fidel Castro. They certainly do
disadvantage the American citizen.
Despite the fact that I am philosophically opposed to these
restrictions and would love to see democracy in Cuba, I believe
that the best way to achieve progress in Cuba is very much the
way we achieved progress in the old Soviet Union and the way we
are striving to achieve progress, for example, in China, and
that is through more interaction and more involvement and more
travel and more education. People-to-people interaction worked
to bring down the Soviet government, to bring about significant
reforms in China, and I believe they can do the same in Cuba.
Let me just say, as a Senator from a farm State, I would
very much like to see family farmers in North Dakota be able to
travel to Cuba and sell their crops to Cuba without impediment.
This travel ban only hinders such sales.
I will cite one example of how these travel restrictions
can impede our agricultural sector and family farmers. In
January of this year, the Farm Foundation applied for a license
to send a delegation of 100 people to Cuba. They were turned
down. This is a nonprofit group based in Illinois. Two former
Agriculture Secretaries were going to join the delegation. The
current Agriculture Secretary and Deputy Secretary and Under
Secretary all served on the board of this Farm Foundation
before resigning to take their current positions. Yet these 100
people were denied the opportunity through this organization to
go to Cuba to talk about agricultural issues.
I do not know why OFAC did not approve the Farm
Foundation's request for a license. I am sure OFAC can describe
its reasons. But at the end of the day, this incident, in my
judgment, highlights the absurdity of this policy. It makes no
sense that a delegation looking to promote sales of American
farm products to Cuba has to apply for a license and then jump
through hoops just to be able to travel to that country, and in
this case, discover that the proposal to go is denied.
One of the interesting aspects of this issue is that on
July 13 of last year, President Bush announced that he had
asked the Treasury Department and the Office of Foreign Assets
Control to step up enforcement of Federal regulations governing
the embargo with, quote, ``a view towards preventing unlicensed
and excessive travel.'' I have a quote from the Associated
Press from that day which caught my attention. It quotes
President Bush as saying that the Treasury should provide more
money to its Office of Foreign Assets Control to hire
additional personnel to monitor travel to Cuba, trade, and the
limited amounts of money that Cuban Americans are allowed to
send home to their families.
I saw that in July of last year and wondered as a result of
that what was going to happen if OFAC beefed-up enforcement to
try to deal with this travel issue. What we have learned is
that there have been substantial increases in enforcement
activities. I have a chart that shows enforcement actions over
the last couple of years. It depicts a jump in fines levied for
travel to Cuba, from 188 in 2000, to 766 in 2001. So it appears
that something has changed and we will talk a little about that
today.
At the hearing today, the first panel will include
witnesses describing their experiences with respect to OFAC
activity and Justice Department activity. It will also include
some organizations that have faced licensing problems, as well
as non-government organizations. We will have a second panel
with Richard Newcomb, Director of OFAC and James Carragher,
Coordinator for Cuban Affairs at the Department of State, and a
third panel with former Senator Dennis DeConcini from Arizona
and Ambassador Dennis Hayes, Vice President, Cuban American
National Foundation. So that represents the agenda for the
hearing.
As I indicated when I started, I understand that this is an
issue of some controversy, but I think it is timely and
important for us to discuss what are the resources being
devoted to enforcement of travel restrictions to Cuba, how are
they being devoted to it, to what end do they enhance this
country's foreign policy, and to what end do they simply
restrict the freedom of the American people to travel.
Our first panel is a panel with four individuals who have
had some experience with this issue. They have all traveled to
Cuba under various circumstances that they will describe, and
have been the subject of enforcement actions by OFAC.
Marilyn Meister is someone who went on a bicycle trip
organized by a Canadian tour group. Cevin Allen was fined after
taking his parents' ashes to Cuba for burial. John Harriman was
fined after attending a board game competition in Cuba.
Let me begin by asking the witnesses to state their name
and where they are from. We will proceed with you, Ms. Meister.
Welcome to the committee and thank you for coming to
Washington, D.C., today.
STATEMENT OF MARILYN MEISTER
Ms. Meister. Thank you. Good morning, Senator. I am a
retired teacher from a small town in Wisconsin. I was born on a
farm in Wisconsin 75 years ago and I have always enjoyed being
active. Since retiring, I have become an avid traveler. I favor
trips that both include activities, such as hiking and biking,
and expose me to different cultures. I have gone on bike trips
in Cuba, France, Portugal, trekked in Nepal, hiked in the South
of France, Tuscany, England, Canada, and many States within the
United States and traveled independently in Costa Rica.
It has been an important and fulfilling part of these trips
to share my experiences with others. I have written travel
articles for publications, including senior citizen newspapers,
and have come to think of myself as a freelance travel writer.
An article I wrote about my trip to Cuba was published 2 years
ago.
The cultural lessons I learned from traveling and
interpersonal connections I have made are just as special to
me, if not more so, than the exhilarating physical challenges
of biking and hiking. This was certainly true of my trip to
Cuba.
I learned from a friend about a bike trip organized by a
Canadian group out of Toronto. The travel agency sent me quite
a bit of information and printed material and I also had some
phone conversations with them. All along, they assured me that
it was perfectly legal for Americans to travel to Cuba as long
as they did not go directly and they did not spend any money in
Cuba. I strictly adhered to both of these requirements. Their
brochure states, quote, ``Congress has passed a law which makes
it legal for U.S. citizens to travel to Cuba, although they
cannot spend any money there. So when you travel to Cuba, you
are fully hosted by our company and you do not spend any money
in Cuba. Our programs are fully escorted from the time you
arrive in Cuba and totally under our control. If you do need to
buy something in Cuba, our escort will do it for you,
maintaining the legality of your trip.''
The trip took place in February 2000. We biked through the
countryside of Western Cuba, which was extremely impressive. I
was deeply moved by the beauty and diversity of the scenery, as
well as the kindness and genuine warmth of the people.
I was excited to learn before the trip began that we would
be stopping at a small rural school in a very poor and humble
area. I decided to take some educationally-related materials
along as gifts, including some children's picture books,
crayons, and pens. The principal and children's grateful
reception of these items was overwhelming, and as an educator,
I found this encounter most gratifying. It was heartwarming to
see my counterparts make up for their limited resources with an
enthusiasm for learning and to see the positive effect of their
efforts on the children.
Cuba continued to be a welcoming place, and I like to think
that my presence there gave the Cubans my group encountered a
positive view of Americans. After a week of biking, sightseeing
in Havana, and gaining a wonderful impression of the Cuban
people, I flew back to Toronto. However, as soon as I stepped
off the plane, I was in for a series of surprises.
I was told that I would have to run in order to catch my
returning Air Canada flight to Chicago. I came dashing up to
the U.S. Customs desk in a hurry, hoping to pass through
customs quickly and make my flight. The Customs agent asked me
where I was coming from and I immediately answered, ``Cuba.'' I
understood my travel to have been legal and, of course, it
would not have occurred to me to tell her anything other than
the truth. To my surprise, this answer set the Customs agent
into a rage. She yelled as she searched my luggage and was
unable to find any purchases made in Cuba, as I had made none.
As she questioned me, I said no more than necessary to honestly
answer her questions, hoping she would soon calm down.
Unfortunately, I was mistaken.
The Customs agent continued to make me feel like the most
horrible of criminals. A representative from Air Canada
announced from the doorway that I needed to hurry as my flight
was about to leave. The Customs agent replied furiously, ``She
is not going anywhere.'' Then she went into a full-scale
tirade. She demanded that I remove my fanny pack and threw its
contents all over the counter. She snatched my passport from a
pile of my belongings strewn on the counter, shouted at me to
pick up my belongings, and left to make a photocopy of my
passport. When she returned, she handed me my passport and
warned with me with a touch of glee, ``You will be hearing from
the Treasury Department.''
I was quite chagrined to be treated in such an abrasive way
by a representative of my own government after a week of
seeking to be a laudable representative of my country while in
Cuba. Needless to say, I missed my flight and I was forced to
spend a lonely, cold, and tiring night in the Toronto airport.
When I finally returned to Chicago, my ordeal was far from
over. As the Customs agent had warned, within months, I
received my first enforcement letter from OFAC, called a
``Requirement to Furnish Information.'' A full year later, a
second notice arrived demanding a civil penalty of $7,500. With
the help of a pro bono legal counsel, I have requested a
hearing before an administrative law judge and have been
waiting for a hearing for almost a year.
In my opinion, the ban on tourist travel to Cuba is
senseless and misguided. The ban does not punish Fidel Castro,
it punishes ordinary Americans like myself who are losing out
on an invaluable opportunity to meet, exchange ideas with, and
learn from our counterparts in Cuba.
I call upon Congress to pass legislation this session that
will allow Americans to travel freely to Cuba. Thank you for
allowing me to speak with you about this matter.
prepared statement
Senator Dorgan. Ms. Meister, thank you very much. We will
have some questions following the presentations.
[The statement follows:]
Prepared Statement of Marilyn Meister
Good morning, Senators. I am a retired teacher from a small town in
Wisconsin. I was born on a farm in Wisconsin 75 years ago, and I have
always enjoyed being active.
Since retiring, I have become an avid traveler. I favor trips that
both include activities such as hiking and bicycling, and expose me to
different cultures. I have gone on bike trips in Cuba, France, and
Portugal, trekked in Nepal, hiked in the south of France, Tuscany,
England, Canada and many states within the United States, and traveled
independently in Costa Rica. It has been an important and fulfilling
part of these trips to share my experiences with others. I have written
travel articles for publications, including senior citizen newspapers,
and have come to think of myself as a freelance travel writer. An
article I wrote about my trip to Cuba was published 2 years ago. The
cultural lessons I learned from traveling, and inter-personal
connections I have made, are just as special to me, if not more so,
than the exhilarating physical challenges of biking and hiking. This
was certainly true of my trip to Cuba.
I learned from a friend about a bike trip organized by a Canadian
group out of Toronto. The travel agency sent me quite a bit of
information and printed material, and I also had some phone
conversations with them. All along, they assured me that it was
perfectly legal for Americans to travel to Cuba as long as they did not
go directly and they did not spend any money in Cuba. I strictly
adhered to both of these requirements. Their brochure states,
``Congress has passed a law which makes it legal for U.S. citizens to
travel to Cuba, although they cannot spend any money there. So when you
travel to Cuba you are full[y] hosted by our company, and you don't
spend any money in Cuba. Our programs are fully escorted from the time
you arrive in Cuba, and totally under our control. If you do need to
buy something in Cuba our escort will do it for you, maintaining the
legality of your trip.'' The trip took place in February 2000. We biked
through the countryside of western Cuba, which was extremely
impressive. I was deeply moved by the beauty and diversity of the
scenery as well as by the kindness and genuine warmth of the people.
I was excited to learn before the trip began that we would be
stopping at a small rural school in a very poor and humble area. I
decided to take some educationally-related materials along as gifts,
including some children's picture books, crayons, and pens. The
principal and children's grateful reception of these items was
overwhelming, and as an educator I found this encounter most
gratifying. It was heart-warming to see my counterparts make up for
their limited resources with an enthusiasm for learning, and to see the
positive effect of their efforts on the children.
Cuba continued to be a welcoming place, and I like to think that my
presence there gave the Cubans my group encountered a positive view of
Americans. After a week of biking, sightseeing in Havana, and gaining a
wonderful impression of the Cuban people, I flew back to Toronto.
However, as soon as I stepped off the plane, I was in for a series of
surprises. I was told that I would have to run in order to catch my
returning Air Canada flight home to Chicago. I came dashing up to the
U.S. customs desk in a hurry hoping to pass through customs quickly and
to make my flight. The customs agent asked me where I was coming from
and I immediately answered, ``Cuba.'' I understood my travel to have
been legal, and, of course, it would not have even occurred to me to
tell her anything other than the truth. To my surprise, this answer set
the customs agent into a rage. She yelled as she searched my luggage
and was unable to find any purchases made in Cuba as I had made none.
As she questioned me, I said no more than necessary to honestly answer
her questions, hoping that she would soon calm down. Unfortunately, I
was mistaken.
The customs agent continued to make me feel like the most horrible
of criminals. A representative from Air Canada announced from the
doorway that I needed to hurry as my flight was about to leave. The
customs agent replied furiously, ``She's not going anywhere!'' Then she
went into a full-scale tirade. She demanded that I remove my fanny
pack, and threw its contents all over the counter. She snatched my
passport from the pile of my belongings strewn on the counter, shouted
at me to pick up my belongings, and left to make a photocopy of my
passport. When she returned, she handed me my passport and warned me
with a touch of glee, ``You'll be hearing from the Treasury
Department.'' I was quite chagrined to be treated in such an abusive
way by a representative of my own government, after a week of seeking
to be a laudable representative of my country while in Cuba. Needless
to say, I missed my flight and I was forced to spend a lonely, cold,
and tiring night in the Toronto Airport.
When I was finally able to return to Chicago, my ordeal was far
from over. As the Customs official had warned, within three months, I
received my first enforcement letter from OFAC, called a Requirement to
Furnish Information. A full year later, a second notice arrived
demanding a civil penalty of $7,500. With the help of pro bono legal
counsel, I have requested a hearing before an administrative law judge
and have been waiting for a hearing for almost a year.
In my opinion, the ban on tourist travel to Cuba is senseless and
misguided. The ban does not punish Fidel Castro. It punishes ordinary
Americans like myself who are losing out on an invaluable opportunity
to meet, exchange ideas with, and learn from our counterparts in Cuba.
I call upon Congress to pass legislation this session that will allow
Americans to travel freely to Cuba.
Thank you for allowing me to speak with you about this matter.
Senator Dorgan. Mr. Allen, please proceed. Thank you very
much for being here.
STATEMENT OF CEVIN ALLEN, SAMMAMISH, WASHINGTON
Mr. Allen. Good morning, Senator Dorgan and members of the
subcommittee. My name is Cevin Allen and I reside in Sammamish,
Washington, which is about 20 miles outside of Seattle. I
currently work as a supervisor with the County Department of
Transit, where I have been employed for 25 years this June.
Thank you for inviting me to speak to you about a matter that
is of tremendous concern, not only to myself, but also to many
other Americans. Legislation legalizing travel to Cuba for
Americans is long overdue and we are looking to the Congress of
the United States to enact such corrective legislation this
session.
My interest in Cuba and love for the Cuban people reaches
back to my early childhood. I was born in Seattle, Washington,
in 1945 to Ralph and Mildred Allen, missionaries with the
Assembly of God Church. It is a Protestant Pentecostal church.
From 1948 until 1955, my parents and I, along with an older
brother, lived in Cuba. My parents were missionaries with the
church in Contramaestre. It was called Iglesia Evangelica
Pentecostal, which is Assembly of God. Contramaestre is located
in the south end of the island, near Santiago. While in Cuba,
my parents bought a piece of land, supervised the building of a
simple but beautiful church, and built its congregation.
After having spent my formative years in Cuba, making my
first impressions with Cubans, and learning Spanish as my first
language, I feel as though a part of me is Cuban. I have many
wonderful memories of my childhood in Cuba and a love for its
people. Even though we were Protestants in a Catholic land, we
were always warmly welcomed.
My family left in 1955, intending simply to renew our visas
in the United States, visit with family members, and then
return to Cuba. Unfortunately, we found ourselves unable to
return because Cuba was undergoing a revolution and the church
feared for our safety. After the revolution, we were saddened
to learn that the property on which our church sat had been
nationalized and the building had been converted into a
mattress factory. For the next 30 years, my parents maintained
close connections with the staff and members of its
congregation through letter correspondence.
In 1984, my parents and I were excited to learn that the
Cuban government was going to reinstate the nationalized
property back to a Protestant church. My mother, my partner,
and I visited Cuba that year after receiving permission to do
so from the Reagan administration. While there, we visited the
site of our church and were reunited with our Cuban friends and
co-religionists from some 30 years prior. Shortly thereafter,
my parents made a gesture of giving the property title back to
the church. My parents were delighted that the Cuban government
had agreed to reinstate the land as a place of worship.
In 1987, my parents were both killed in a house fire that
completely destroyed their home. I promised myself then that I
would bring their ashes to Cuba, a place they had always loved.
Ten years later, in 1997, November, my partner and I made a
brief journey to Cuba to give my parents' ashes a final resting
place. During the one full day we spent in Cuba, I scattered
part of their ashes on the grounds of the church in Havana and
another part at sea. I also brought along a Bible that my
parents had used while in Cuba that had miraculously survived
the fire and presented it to Reverend Jaime Rodriguez, a former
student of my parents, who now leads the largest Protestant
congregation in Havana. It was this trip that finally allowed
me to deal with the pain of losing my parents, to feel at peace
with their deaths, to fulfill my family duty to them and give
them a burial I knew they would have wanted, and to experience
a sense of closure.
Unfortunately, these positive feelings were soon countered
by my interaction with Customs agents on my return to the
United States via Nassau. Upon questioning, I immediately told
the agents about my travel to Cuba. This apparently angered the
agents, as they became belligerent and searched all of our bags
as if we were common criminals. The tension of the moment was
heightened by the fact that we had only a 50-minute layover in
Nassau and we literally had to run at a fast clip to make our
connecting flight once we were released by the Customs agents.
The reception I received from the Customs agents in Nassau
turned out to be only a small part of the much larger dark
shadow cast on my trip to Cuba by U.S. Government officials.
The greatest shock came 2 months later, when my partner and I
each received a notice from OFAC in January of 1998 demanding
that we pay a civil penalty of $7,500 each for traveling to
Cuba illegally. Taken together, OFAC was demanding the
outrageous sum of $15,000 from our household.
After speaking to OFAC agents on the phone and explaining
the circumstances surrounding our trip, OFAC agreed to reduce
the original sum of $15,000 to a joint penalty of $10,000--a
figure that I am sure you agree is still quite high.
Fortunately, my partner and I learned about the Center for
Constitutional Rights' Cuba Travel Docket and the Center agreed
to take on our case. Through the Center's vigorous legal
representation, we were able to reach a settlement with OFAC
for a reduced penalty of $700.
These experiences have left me with the firm conviction
that it is wrong for the United States Government to punish
Americans for traveling to Cuba. Americans are permitted to
travel freely to other socialist countries, including Russia,
the People's Republic of China, and Vietnam. Cuba is our next-
door neighbor and it is in the interest of the United States to
develop a good relationship with it. Toward this end, the
United States should encourage, rather than penalize,
friendship between the American people and the Cuban people.
Each group has much to learn from the other.
Prepared Statement
I commend the subcommittee for examining the ban on travel
to Cuba and hope that my story will shed some light on how the
ban represents bad domestic and bad foreign policy. I implore
Congress to put an end once and for all to this outdated ban
and to legalize travel to Cuba. Thank you.
Senator Dorgan. Mr. Allen, thank you very much.
[The statement follows:]
Prepared Statement of Cevin Allen
Good morning, Senator Dorgan and Members of the Subcommittee. My
name is Cevin Allen, and I reside in Sammamish, Washington, which is
about 20 miles outside of Seattle. I currently work as a supervisor
with the county department of transit, where I will have been employed
for twenty-five years this June. Thank you for inviting me to speak to
you about a matter that is of tremendous concern not only to myself,
but also to many other Americans. Legislation legalizing travel to Cuba
for Americans is long overdue, and we are looking to the Congress of
the United States to enact such corrective legislation this session.
My interest in Cuba and love for the Cuban people reaches back to
my early childhood. I was born in Seattle, Washington, in 1945, to
Ralph and Mildred Allen, missionaries with the Assemblies of God
Protestant-Pentecostal Church. From1948 until 1955, my parents and I,
along with my older brother, lived in Cuba. My parents were
missionaries with a Protestant Church in Contramaestre called Iglesia
Evangelica Pentecostal (Assembly of God). Contramaestre is located in
the south end of the island, near Santiago. While in Cuba, my parents
bought a piece of land, supervised the building of a simple but
beautiful church, and built its congregation.
After having spent my formative years in Cuba--making my first
friendships with Cubans, and learning Spanish as my first language--I
feel as though a part of me is Cuban. I have many wonderful memories of
my childhood in Cuba and a love for its people. Even though we were
Protestants in a Catholic land, we were always warmly welcomed.
My family left Cuba in 1955, intending simply to renew our visas in
the United States, visit with family members, and then return to Cuba.
Unfortunately, we found ourselves unable to return because Cuba was
undergoing a revolution, and the church feared for our safety. After
the revolution, we were saddened to learn that the property on which
our church sat had been nationalized and the building had been
converted into a mattress factory. For the next thirty years, my
parents maintained close connections with its staff and members of its
congregation through letter correspondence.
In 1984, my parents and I were excited to learn that the Cuban
government was going to reinstate the nationalized property back to a
Protestant church. My mother, my partner, and I visited Cuba that year
after receiving permission to do so from the Reagan administration.
While there, we visited the site of our church, and were reunited with
our Cuban friends and co-religionists from some thirty years prior.
Shortly thereafter, my parents made a gesture of giving the property
title to the church. My parents were delighted that the Cuban
government had agreed to reinstate the land as a place of worship.
In 1987, my parents were killed in a house fire that completely
destroyed their home. I promised myself then that I would bring their
ashes to Cuba, a place they had always loved. Ten years later, in
November of 1997, my partner and I made a brief journey to Cuba to give
my parents' ashes a final resting place. During the one full day we
spent in Cuba, I scattered part of their ashes on the grounds of the
church in Havana, and another part at sea. I also brought along the
Bible that my parents had used while in Cuba that had miraculously
survived the fire, and presented it to Reverend Jaime Rodriguez, a
former student of my parents who now leads the largest Protestant
congregation in Havana. It was this trip that finally allowed me to
deal with the pain of losing my parents, to feel at peace with their
deaths, to fulfill my family duty to them and give them a burial I knew
they would have wanted, and to experience a sense of closure.
Unfortunately, these positive feelings were soon countered by my
interaction with Customs agents on my return to the United States via
Nassau. Upon questioning, I immediately told the agents about my travel
to Cuba. This apparently angered the agents, as they became belligerent
and searched all of our bags as if we were common criminals. The
tension of the moment was heightened by the fact that we had only a
fifty-minute lay-over in Nassau and we literally had to run at a fast
clip to make our connecting flight once we were finally released by the
Customs agents.
The reception I received from the Customs agents in Nassau turned
out to be only a small part of a much larger dark shadow cast on my
trip to Cuba by U.S. government officials. The greatest shock came two
months later when my partner and I each received a notice from OFAC in
January of 1998 demanding that we pay a civil penalty of $7,500 each
for traveling to Cuba ``illegally.'' Taken together, OFAC was demanding
the outrageous sum of $15,000 from our household.
After speaking to OFAC agents on the phone and explaining the
circumstances surrounding our trip, OFAC agreed to reduce the original
sum of $15,000 to a joint penalty of $10,000-a figure that, I am sure
you will agree, is still extraordinarily high.
Fortunately, my partner and I learned about the Center for
Constitutional Rights' Cuba Travel Docket, and the Center agreed to
take on our case. Through the Center's vigorous legal representation,
we were able to reach a settlement with OFAC for a reduced joint
penalty of $700.
These experiences have left me with the firm conviction that it is
wrong for the United States government to punish Americans for
traveling to Cuba. Americans are permitted to travel freely to other
socialist countries, including Russia, the Peoples Republic of China,
and Vietnam. Cuba is our next-door neighbor, and it is in the interests
of the United States to develop a good relationship with it. Towards
this end, the United States should encourage, rather than penalize,
friendship between the American people and the Cuban people. Each group
has much to learn from the other.
I commend the Subcommittee for examining the ban on travel to Cuba
and hope that my story will shed some light on how the ban represents
bad domestic and bad foreign policy. I implore Congress to put an end
once and for all to this outdated ban and to legalize travel to Cuba.
Thank you.
Senator Dorgan. Next, we will hear from Mr. John Harriman.
Mr. Harriman, would you proceed?
STATEMENT OF JOHN HARRIMAN, CHICAGO, ILLINOIS
Mr. Harriman. Good morning. Good morning, Senator Dorgan
and members of the subcommittee. My name is John Harriman and I
am a 37-year-old software developer from Chicago, Illinois. For
the past 13 years, I have been an avid player of a board game
called ``Go,'' which is a centuries-old game that originated in
Asia and has recently begun to gain popularity in the United
States and other non-Asian countries.
It was my passion for this game that led to my one and only
visit to Cuba in January of 2001, to compete in an
international Go tournament, and it was this travel, or rather
the Treasury Department's imposition of a $7,500 civil penalty
based on this travel, that has led me to testify before you
today.
Go is often described as being similar to chess, but it is,
in the opinion of many, even more challenging. Two players face
each other across a board, one with a set of white stones and
the other with a set of black stones, each with a goal of
controlling the most territory over the board. It is a game
that requires careful deliberation and strategic thinking. The
intellectual challenges of the game reveal a great deal about
the player's personality and his resourcefulness under
pressure. Time after time, I have played opposite a complete
stranger with whom I did not share a common language, and by
the game's end, we were able to develop a bond of friendship.
In December of 2000, I read an article in the American Go
Journal describing an international Go tournament scheduled for
January 3 through 7, 2001, in Havana, Cuba. The article stated,
quote, ``According to U.S. law, amateur and semi-professional
sports teams are legally allowed to visit Cuba. This means that
Americans can legally participate in the 5-day international
tournament next January 3 through 7.''
I was immediately interested in participating in this
tournament, not only because of my longstanding interesting in
Cuba, but also because I was intrigued that such a small, non-
Asian country could maintain a Go community large enough to
sponsor an international tournament. Additionally, I am nearly
fluent in Spanish and welcomed the opportunity to immerse
myself in a Spanish-speaking culture. And, of course, there is
nothing like the challenge of an international tournament to
improve one's game.
Upon reading the article, I contacted Peter Schottwell, who
was mentioned in the article I read, and Roy Leard, the
President of the American Go Association. Both men assured me
that it would be legal for me to travel to Cuba as a
representative of the American Go Association at the
tournament. Relying on their assurances, I made plans to
attend. The President of the American Go Association provided
me with a letter designating me as a representative of the
Association to carry with me on the trip.
My experiences in Cuba exceeded my expectations. My Spanish
skills improved and I forged friendships with Cuban Go players
and their families, people whom I otherwise would not have had
the opportunity to meet. I also had the good fortune to compete
against players from a number of other foreign countries,
including Italy, Venezuela, Chile, Argentina, and Brazil.
During the course of my trip, I learned a great deal about
these tournament players and their respective cultures. On the
competition level, I also found satisfaction. I placed third in
the tournament out of 29.
Without a doubt, the highlight of my trip was a visit I
made to a Go academy, which is a part of the curriculum for
grade school children in Cuba. A Cuban participant in the
tournament was a teacher at a Go academy and he invited me and
another participant from Japan to visit his academy. I was
delighted to see a lively classroom full of 20 or so children
between the ages of 5 and 8 who were paired off and
enthusiastically playing games of Go.
During the course of the day, I observed and critiqued the
children's games, provided them with advice on technique, and
tried to instill them a desire to raise their skills to the
point where they would be able to compete in international Go
tournaments. It was already clear to me that some of the
children would soon exceed their own teachers in skill.
Regrettably, Cuba is quite isolated and it lacks good books
on Go technique. It also lacks access to the Internet over
which Go can be played at any time of day against players from
all over the world.
On the flight back to the United States on January 9, 2001,
I listed Cuba as a country that I had traveled to on a U.S.
Customs declaration card. Arriving at the airport in Memphis,
Tennessee, I was questioned by U.S. Customs officials about my
listing of Cuba on this form. I explained the purpose of my
trip and provided the Customs official with the letter that
designated me as a representative of the American Go
Association. After I had answered all their questions, the
officials thanked me for my cooperation and I made my
connecting flight to Chicago.
The wonderful memories of my trip to Cuba continued to
last. However, I received a letter from OFAC dated May 18,
2001, 4 months after my trip to Cuba. This letter, titled
``Pre-Penalty Notice,'' informed me that under the Trading with
the Enemies Act and Cuban Assets Control Regulations, OFAC
intended to issue a claim against me for a civil penalty in the
amount of $7,500. I was shocked and upset by this letter, both
at the suggestion that my travel to Cuba was not authorized and
by the fact that my government would impose a large fine on me
when I had done nothing more than participate in an
international Go tournament that had been attended by players
from around the world. With assistance of counsel, I requested
a hearing and my case remains unresolved.
Senators, I truly believe that people-to-people contact
promoted by events like the tournament I attended is an
invaluable tool for laying a common ground between differing
cultures. It is through such contact that mutual respect and
understanding can be based. I am strongly in favor of lifting
the travel ban to Cuba so that ordinary citizens like myself
can travel legally to Cuba, learn about our neighbors, and
convey a positive image of Americans and their life in the
United States. At the very least, as a result of my travel,
there is now a group of Cuban Go players and their families who
knew very little about Americans prior to January 2001 but who
now know at least one American who has shown himself to be not
so different from them in the ways that really count.
The great leaps in technology of the last few decades have
made the world seem like it is becoming a smaller and smaller
place. There is no stopping this trend, nor do I think there
should be. The events of the last year should teach us that
Americans cannot afford to remain isolated from the rest of the
world, nor can Americans afford to remain dismissive of other
cultures. I know that I have been greatly enriched by my visit
to Cuba and I strongly suspect that the same would hold true
for other Americans were they to have the good fortune to make
such a visit.
Prepared Statement
Respectfully, I urge Congress to end the ban on travel to
Cuba through legislation. Thank you once again for this
opportunity to speak to you today.
Senator Dorgan. Mr. Harriman, thank you very much.
[The statement follows:]
Prepared Statement of John Harriman
Good morning, Senator Dorgan and Members of the Subcommittee. My
name is John Harriman, and I am a 37-year-old software developer from
Chicago, Illinois. For the past 13 years, I have been an avid player of
a board game called Go, which is a centuries old game that originated
in Asia and that has recently begun to gain popularity in the United
States and other non-Asian countries. It was my passion for this game
that led to my one and only visit to Cuba in January of 2001, to
compete in an international Go tournament. And it was this travel, or
rather the Treasury Department's imposition of a $7,500 civil penalty
based on this travel, that has led me to testify before you today.
Go is often described as being similar to chess, but it is, in the
opinion of many, even more challenging. Two players face each other
across a board, one with a set of white stones, and the other with a
set of black stones, each with the goal of controlling the most
territory over the board. It is a game that requires careful
deliberation and strategic thinking. The intellectual challenges of the
game reveal a great deal about the player's personality and his
resourcefulness under pressure. Time after time, I have played opposite
a complete stranger with whom I did not share a common language and, by
game's end, we were able to develop a bond of friendship.
In December of 2000, I read an article in the American Go Journal
describing an International Go Tournament scheduled for January 3-7,
2001 in Havana, Cuba. The article stated, ``According to U.S. law,
amateur and semi-professional sports teams' are legally allowed to
visit Cuba. This means that Americans can legally participate in the 5-
day international tournament next Jan 3-7.'' \1\ I was immediately
interested in participating in this tournament, not only because of my
long-standing interest in Cuba, but also because I was intrigued that
such a small non-Asian country could maintain a Go community large
enough to sponsor an international tournament. Additionally, I am
nearly fluent in Spanish and welcomed the opportunity to immerse myself
in a Spanish-speaking culture. And of course, there is nothing like the
challenge of an international tournament to improve one's game.
---------------------------------------------------------------------------
\1\ American Go Journal, Fall 2000 Volume 34, Number 3, ``The
Travelling Go Board--Go in the land of Capablanca.''
---------------------------------------------------------------------------
Upon reading the article, I contacted Peter Shotwell, who was
mentioned in the article I had read, and Roy Laird, the President of
the American Go Association. Both men assured me that it would be legal
for me to travel to Cuba as a representative of the American Go
Association at the tournament. Relying on their assurances, I made
plans to attend. The President of the American Go Association provided
me with a letter designating me as a representative of the Association.
My experiences in Cuba exceeded my expectations. My Spanish skills
improved, and I forged friendships with Cuban Go players and their
families--people whom I otherwise would not have had the opportunity to
meet. I also had the good fortune to compete against players from a
number of other foreign countries, including Italy, Venezuela, Chile,
Argentina, and Brazil. During the course of my trip, I learned a great
deal about these tournament players and their respective cultures. On
the competition level, I also found satisfaction--I placed third in the
tournament out of 29.
Without a doubt, the highlight of my trip was a visit I made to a
``Go Academy,'' which is a part of the curriculum for grade school
children in Cuba. A Cuban participant in the tournament was a teacher
at a Go Academy, and he invited me and another participant from Japan
to visit his academy. I was delighted to see a lively classroom full of
twenty or so children between the ages of 5 and 8 who were paired off
and enthusiastically playing games of Go. During the course of the day,
I observed and critiqued the children's games, provided them with
advice on technique, and tried to instill in them a desire to raise
their skills to the point where they would be able to compete in
international Go tournaments. It was already clear to me that some of
the children would soon exceed their own teachers in skill.
Regrettably, Cuba is quite isolated and it lacks good books on Go
technique. It also lacks access to the Internet, over which Go can be
played at any time of day, against players from all over the world.
On the flight back to the U.S. on January 9, 2001, I listed Cuba as
a country that I had traveled to on a U.S. Customs declaration card.
Arriving at the airport in Memphis, Tennessee, I was questioned by U.S.
Customs officials about my listing of Cuba on this form. I explained
the purpose of my trip and provided the Customs official with the
letter designating me as a representative of the American Go
Association. After I had answered all of their questions, the officials
thanked me for my cooperation, and I made my connecting flight to
Chicago.
The wonderful memories of my trip to Cuba continue to last.
However, I received a letter from the Office of Foreign Assets Control,
or OFAC, dated May 18, 2001, four months after my trip to Cuba. This
letter, titled a ``Pre-Penalty Notice,'' informed me that under the
Trading with the Enemy Act and the Cuban Assets Control Regulations,
OFAC intended to issue a claim against me for a civil penalty in the
amount of $7,500. I was shocked and upset by this letter--both at the
suggestion that my travel to Cuba was not authorized, and by the fact
that my government would impose a large fine on me when I had done
nothing more than participate in an international Go tournament that
had been attended by players from around the world. With assistance of
counsel, I requested a hearing, and my case remains unresolved.
Senators, I truly believe that people-to-people contact, promoted
by events like the tournament I attended, is an invaluable tool for
laying a common ground between differing cultures. It is through such
contact that mutual respect and understanding can be based. I am
strongly in favor of lifting the travel ban to Cuba so that ordinary
citizens like myself can travel legally to Cuba, learn about our
neighbors, and convey a positive image of Americans and their life in
the United States. At the very least, as the result of my travel, there
is now a group of Cuban Go players and their families who knew very
little about Americans prior to January 2001, but who now know at least
one American who has shown himself to be not so different from them in
the ways that really count.
The great leaps in technology of the last few decades have made the
world seem like it is becoming a smaller and smaller place. There is no
stopping this trend, nor do I think there should be. The events of last
year should teach us that Americans cannot afford to remain isolated
from the rest of the world. Nor can Americans afford to remain
dismissive of other cultures. I know that I have been greatly enriched
by my visit to Cuba, and I strongly suspect that the same would hold
true for other Americans should they have the good fortune to make such
a visit.
Respectfully, I urge the Congress to end to the ban on travel to
Cuba through legislation. Thank you once again for this opportunity to
speak to you today.
Senator Dorgan. Next, we will hear from Dr. John
Gilderbloom of the Cuba Research and Education Programs. Dr.
Gilderbloom?
STATEMENT OF JOHN I. GILDERBLOOM, Ph.D., PROFESSOR,
DEPARTMENT OF URBAN AND PUBLIC AFFAIRS,
COLLEGE OF BUSINESS AND PUBLIC
ADMINISTRATION, UNIVERSITY OF LOUISVILLE
Mr. Gilderbloom. Thank you, Senator Dorgan. I am a
professor at the Department of Urban and Public Affairs in the
College of Business and Public Administration at the University
of Louisville and I teach courses on Cuba, research methods,
urban planning, historic preservation, comparative urbanism,
and housing. I have published 3 books, 21 refereed articles, 12
chapters in books, and articles in the Wall Street Journal, USA
Today, and Los Angeles Times.
Outside of my university duties, I work with the Cuba
Research and Education Programs, which brings several groups
for professional study for planning, architecture, economic
development, and sustainable communities. Participants are
eligible to get continuing education credit from the American
Institute of Architects, American Planning Association, and
other relevant organizations. In addition, graduate students,
professors, and journalists who sign up for our programs on
urbanism are also allowed to go on these programs if they
promise to disseminate the information as required by U.S.
Treasury laws, which we follow.
More people than not cannot go on these programs. It is not
open to everybody, and, in fact, over the last 9 months, we
have only taken 71 persons to Cuba, three groups, including
some very distinguished people who have worked in the Federal
Government, the State Government, as well as some established
journalists.
Our program has been featured on CNN, National Public
Television. A host of newspapers, magazines, and books have
lauded our Cuba program. I brief U.S. State Department
officials, the United States Interests Section, where we meet
regularly, and numerous Senators and their staff, and I
represent Kentucky in the nonpartisan Americans for
Humanitarian Trade with Cuba.
Last March, we wrote to Treasury requesting renewal of our
license for another 2 years. In June, they said that we would
not hear from them until December because they wanted to
evaluate our program and take a closer look at it.
When we contacted them December 1, when they said they
would have a decision made, they said they lost our original
correspondence from March. We immediately resubmitted the
information to them and we received another letter denying our
license renewal and stating that we should resubmit and provide
a summary of past activities and an agenda of the proposed
activities. We promptly did so, but much of what we provided,
of course, is included in this testimony today.
On January 31, we were told that our license application
had been denied again. Treasury gave us this vague explanation
that our programs do not have enough people-to-people
exchanges. We think the reasons for this denial are capricious
and arbitrary.
Although OFAC's stated reason for denying our license is
that our programs do not have enough people-to-people contact,
my Congressional representative was told by OFAC that they felt
we were more of a tourist-oriented organization rather than a
serious research and education program. OFAC also informed her
that they objected to our website, which has over 41,000 people
visiting it, with numerous Cubans also participating in it,
both here and in Cuba. They also expressed a distaste for the
restaurant reviews, which we provide as a service to
participants because of issues of food safety and we wanted to
promote small, private businesses that opened up as
restaurants.
The arbitrary nature of OFAC's decision is further
highlighted by the fact that one of our programs was copied
nearly word for word by another organization and institution.
They were granted a license 2 months previous to ours, while
our program was flatly denied. In addition, a participant or
student in one of my programs has adopted many of the same
features from my program and had no trouble securing a license
to lead groups.
Finally, in terms of people-to-people contact, we regularly
brought people, against the wishes of the Cuban government, to
the Catholic Church, to outreach organizations, to activists,
and particularly troubling, I think, for the Cuban government
was regular interests with the U.S. Interests Section. In fact,
of special interest is that, in fact, the strength of our
program is that the preservationists at the U.S. Treasury
Department actually attended one of our programs and went in
there and said they recommended the trip highly because of our
strength and positive nature. It is also interesting, too,
because we focus on 500 years of architecture, from pre-
Columbian all the way up to the Soviet style of architecture
and it gives people an idea of what housing looked like before
and after the revolution.
U.S. Treasury is not alone in their discontent with our
programs. As I mentioned earlier, the Cuban government was also
unhappy and, in fact, was considering not allowing us to go
anymore. They were concerned about articles I had posted in
Planning which are attached to this testimony, as well as a
forthcoming article in the Encyclopedia of 20 Century
Architecture. In fact, they have been quite critical of it, and
for those reasons of visiting people and organizations outside
of the Cuban government and our visits regularly to the
Catholic Church and to OFAC.
Unlikely many U.S.-licensed tour programs that are
uncritical of Cuba, we have attempted to provide a balanced
perspective with competing points of view because we want to
provide the most profound, interesting, and honest educational
experience. Like OFAC, the Cuban officials were upset by our
website, too, but for different reasons. The Cubans did not
like us promoting privately-owned businesses and enterprises
like restaurants, artists, and apartments that were for rent.
The Cuban government wants all participants supporting
government-owned restaurants, hotels, and stores. OFAC believed
our website to be promoting tourism, but we think it is more
like promoting small, privately-owned businesses and,
therefore, not supporting the government.
People we have taken to Cuba are professionals in respected
urban fields, professors, and students. They are the
ambassadors to America. They are the face that represents
America. In a time when the Cuban government continually
replays the worst of America, these Americans that we take are
the face of America and it goes against the Cuban media
development of that.
We would also like to say that our participants that come
on this trip are professionals. They are not there for the sun,
the rum, or the sex, but instead learn about a country that is
so alien to our own.
Alvarado Sanchez, widely regarded as a leading human rights
activist, has said on numerous occasions in Cuba, the more
American citizens in the streets of Cuban cities, the better
for the cause of a more open society. He says, ``So why does
the U.S. maintain travel controls?''
We have met continuously with the chief officer, both the
former and current, of the United States Interests Section, who
have praised our programs as being on the cutting edge. In
fact, they have already contacted OFAC, concerned about our
license being turned down, and they were pushed away and told,
``Mind your own business. We are taking care of this.''
We have done a lot of work in terms of outreach to the
Cuban people and we are very proud of this. OFAC needs to
follow the law and grant travel licenses to educational
research organizations like ours. But it is too late for our
organization. The denial of our license request has been
devastating. We have had to cancel all of our future programs
in March and May, and because these programs are a large source
of our modest budget, we have been forced to lay off the entire
staff and essentially mothball our office until we hear from
Treasury. OFAC has created economic ruin for a modest operation
which was to reach out in a people-to-people program. It is
likely it will never recover from their unfair and unjust
treatment of our organization.
Prepared Statement
Thank you for the opportunity to testify here today, and
attached is a much longer testimony.
Senator Dorgan. Thank you, Dr. Gilderbloom.
[The statement follows:]
Prepared Statement of John I. Gilderbloom, Ph.D.
In 1997, I was one of the first American planners/environmentalists
to speak to Cubans on our successful economic development programs
involving inner city Louisville. These programs included development of
family owned homes and businesses. My presentation was a big success
and got a lot of attention (please see appendix A). Since the collapse
of the Soviet Union, Cuba has allowed private ownership of hundreds of
different kinds of businesses. I was then asked to bring delegations of
American experts to Cuba to exchange ideas. The Cubans were not
interested in converting Americans to Socialism but learning how to run
private businesses. This modest beginning led way to us becoming one of
the most respected and acclaimed programs in Cuba.
I am a Professor in the Department of Urban and Public Affairs in
the College of Business and Public Administration at the University of
Louisville and teach graduate courses on Cuba, research methods, urban
planning, historic preservation, comparative urbanism, and housing.
Outside of my University duties, I work with Cuba Research and
Education Programs to bring several groups for a professional study of
planning, architecture, economic development, and sustainable
communities. We focus on both the achievements and mistakes the Cubans
have made in the fields we study. Participants are eligible for
continuing education credit from the American Institute of Architects,
American Planning Association, and other relevant organizations. In
addition, graduate students, professors, and journalists also sign up
for our programs and present the knowledge gained from the experience
in their schoolwork, teaching, and writing. All participants are
required to sign a letter stating they are professionals in these areas
and, moreover, promise there is a good likelihood of professional
dissemination in books, newspapers, journals, and/or professional
newsletters. On our website, we give the following statement regarding
who can go on our trips:
``The following persons would qualify for this program:
--A faculty or student at a higher education institution who can
state that they have an established interest in attending this
research and education program.
-- A journalist with established record of writing and who promises
to submit an article.
--If you are an architect, planner, ecologist, designer, government
official, developer, environmentalist, community activist, or
other related profession, you will need to write a one-page
statement of established interest for attending this research
and education program. This is a statement explaining how you
will disseminate the research and how it relates to your
particular field.''
Our program has been featured on CNN, national public television,
and a host of newspapers, magazines, and books on Cuba. I have briefed
U.S. State Department officials, the United States Interests Section,
and numerous Senators and their staffs. I represent Kentucky to the
non-partisan Americans for Humanitarian Trade with Cuba. Most recently,
syndicated columnist Neal Peirce quoted me and cited my organization
for our work in Cuba in his column. Our website (www.cubanow.org) has
had over 41,000 visitors. Officials at the United States Interests
Section have praised our program as representing the gold standard of
programs, noting that our program is following OFAC guidelines for
people to people contact, unlike many other groups. They have contacted
OFAC regarding the recent denial of our license. Both the current and
past Chief of the United States Interests Section have repeatedly
praised our ``people-to-people'' educational programs as important for
creating greater openness and dialogue in Cuba.
Last March, we wrote to Treasury requesting renewal of our license
for another 2 years. In June 2001, they told us that a decision
regarding our license would be made by December 1 of that year, and it
was in the queue. In November, we wrote to Treasury officials to remind
them that a decision was promised by December 1, 2001. When we
contacted them in mid-December inquiring about their decision, we were
told that they had lost our original correspondence from March. We
immediately resubmitted information to them. We received a letter dated
December 18, denying our license renewal and stating that we could
resubmit and provide ``A summary of past activities and an agenda for
the proposed activities.'' We promptly did so; much of what we provided
is included in this testimony. In early January, we received another
letter from Treasury informing us that they had received our revision.
On January 31, we were told our license application had been denied
again. Treasury gave us the vague explanation that our programs did not
have enough ``people-to-people exchanges.'' We think the reasons for
this denial are capricious and arbitrary. All that remains of our
organization is our website and my own research on Cuba, that includes
a forthcoming book--which is now in peril as well. In the past, OFAC
has seemed pleased with our programs; the sudden u-turn they have taken
is hard to understand since the law on travel to Cuba has not changed.
Although OFAC's stated reason for denying our license is that our
programs did not have enough people-to-people contact, my congressional
representative was told by OFAC that they felt we were more of a
tourist oriented than a serious educational and research program. OFAC
also informed her that they objected to our website; they believe it
gives the impression that anyone can go on our programs (not true) and
expressed distaste for the restaurant reviews we have posted as a
service to participants. We plan to follow OFAC's directive and remove
the restaurant guide, as well as several books to which they opposed,
from our website, although we believe these requests to be petty and
senseless.
The arbitrary nature of OFAC's decision is further highlighted by
the fact that one of our programs was copied nearly word-for-word by
another organization; they were granted a license while our program was
flatly denied! In addition, a participant in one of my programs has
adopted many of the same features from my program and had no trouble
securing a license to lead groups. Finally, in terms or people-to-
people contact, we regularly brought urbanists working outside of
government to the attention of participants, including Habitat for
Humanity and regular visits to the modest homes of the Cuban people.
Our organization, Cuban Research and Education Programs, is the
most prominent organization providing legitimate, for-credit,
professional education and research programs on Cuba for planners,
architects, environmentalists, urbanists, and other related fields. Our
programs have been running on a modest level for the past 5 years with
wide acclaim. All participants are required to sign a form stating they
are a professional in the field of urbanism and declare they have a
good chance of disseminating the information they have learned to
professional organizations. Very few other licensed programs make such
a requirement or simply ignore it. More often than not, we say no to
most people who call wanting to go on our licensed program. We will
direct them to either write their own customized license or to another
organization with less stringent requirements. Richard Stone of the
American Institute of Architects recently wrote the following to us:
``Thank you again for the superior tour you gave--Architects would
love your tour and your tour format--I collected 24.5 hours of
continuing education credit--I do want to take the same tour again
soon.'' Prominent engineer David Giuliani said in another testimonial:
``Visiting Cuba with you has been the most educationally intensive
period of my recent life.''
U.S. Treasury Preservationist, Martin Shore AIA, who headed the
office out of 1500 Pennsylvania Avenue and was a participant in our
program posted the following on our website: ``recommend the trip
highly.'' Numerous graduate students from schools around the country
have used their experiences on our programs to receive course credit.
Our programs are considered the best of their kind, with a focus on
architecture, planning, economic development, environmentalism, and
sustainability (please see Appendix B for an example of one of our
lectures in Cuba). Professionals have very limited choices in terms of
programs that provide continuing education credit. Our programs
represent the gold standard of research and education programs,
providing more opportunities for people-to-people contact than any
other, including visits with activists outside of Cuban government,
churches, and many places that have been ruled ``out of bounds'' by the
Cuban government. These educational and research adventures provide a
rare and unique opportunity for Americans to learn first-hand how
communism works in one of the world's last bastions of Socialism. They
also get to see some of the most significant historic architecture in
the world, including pre-Columbian, Spanish Colonial, Art Deco,
International, and the rather awful looking prefabricated Soviet/
Siberian style apartment blocks--a well-rounded lesson on urban form
and housing before and after the Socialist revolution.
conflicts with the cuban government
The U.S. Treasury is not alone in their discontent with our
programs; the Cuban government is also unhappy. The Cuban government
has a similar kind of licensing authority, under which groups must find
a government organization willing to sponsor them. Our permission from
the Cuban government to do educational and research programs has been
shaky because of our open criticism of their island country.
An article I wrote on Cuban architecture, design, and economic
development in the professional journal Planning (see appendix A),
while winning praise in the United States for being even handed, was
roundly denounced on the internet by top Cuban officials. One official
accused me of being part of the Miami exiled Cuban ``mafia''. Another
accused me of working for the CIA! I was later informed that the top
planning school in Cuba was barred from having any official contact
with me. We were forced to find a new sponsor-Cuban Institute for
Friendship with Americans-with whom we remained affiliated for 2 years.
They, too, were bothered by my willingness to criticize Cuba for its
problems with planning, economic development, and architecture. The
Institute was also upset because I insisted on taking participants to
places frowned upon by the Cuban government, such as the U.S. Interests
Section, a Catholic Church specializing in outreach efforts for people
with AIDS and drug problems, and a shanty town. They expressed
disapproval that I arranged meetings with former urban planning and
housing experts that no longer work with the Cuban government. We
suspect that the Cubans were strongly considering not giving us the
needed sponsorship for next year--but it looks like OFAC has taken care
of that task for them. Unlike many licensed U.S. tour programs that are
uncritical of Cuba, we have attempted to provide a balanced perspective
with competing points of view--because we want to provide the most
profound, interesting, and honest educational experience for the
professionals who sign up with us. The rave testimonials on our website
says it all.
Like OFAC, the Cuban officials were upset with our website--but for
different reasons. The Cubans did not like us promoting privately owned
businesses and enterprises like restaurants, artists, and apartments.
The Cuban government wants our participants supporting government owned
restaurants, hotels, and stores only. OFAC believed our website to be
promoting tourism, but we think of it as promoting small privately
owned businesses--and therefore not supporting the Cuban government.
conclusion
The Cold War is over. Today, thousands of Americans now visit China
and Russia. To a certain degree, these visits or exchanges have caused
China to move toward a third stream of economic development embracing
some forms of capitalism. The dramatic fall of Communist Russia is also
related to cultural exchanges with the West--rock n' roll, blue jeans,
and McDonald's brought about structural changes greater than any
military might. The people we have taken to Cuba are professionals in
respected urban fields, professors, students, and journalists, and
represent the best of America. They are the face of America that went
against a Cuban media creation of racist, greedy, and violent
Americans. They did not come to Cuba for sun, rum, and sex, but instead
to learn about a country that is so alien to our own. Our people-to-
people programs have helped create new bridges of understanding, hope,
and peace between the people of Cuba and the United States. Elizardo
Sanchez, widely regarded as the leading human rights activists, has
said on numerous occasions: ``The more American citizens in the streets
of Cuban cities, the better for the cause of a more open society. So
why does the U.S. maintain travel controls?''
With only limited media outlets that are controlled by the Cuban
government, Cubans think that incidents like the shooting at Columbine
occur nearly every week in the United States. Many Cubans believe that
Pulp Fiction--played over and over in Cuba--is an accurate portrayal of
our state of race relations. Both the former and current Chief Officer
of the United States Interests Section have praised our programs as
being one of the best in creating greater understanding and goodwill
between the people of Cuba and the United States. We believe the
embargo against food, health, and travel restrictions need to be
completely lifted; at the very minimum, however, OFAC needs to follow
the law and grant travel licenses to educational and research
organizations like ours. Groups like ours are a small step toward
helping to improve relations between our two countries.
For our organization, the denial of our license request has been
devastating. We have had to cancel programs scheduled for both March
and May. Because these programs are a large source of income for our
small organization, we have been forced to lay off the entire staff and
essentially mothball our office until we hear from Treasury. OFAC has
created economic ruin for our modest operation. It is likely we will
never recover from their unfair and unjust treatment of our
organization. Thank you for the opportunity to testify here today.
Attached is more information about our programs for the written record.
summary of our activities
Travel and Educational Exchange
By any measure, Cuban Research and Education programs provides the
highest quality educational programs in the areas of architecture,
planning, preservation, sustainable development, and environmental
development. We have at least one or two American professors that lead
each of our licensed programs, we meet with non-governmental groups and
individuals, and we spend more time on substantive educational
activities than any other programs. Some of the folks that currently
lead newly licensed programs were participants of mine in the past and
attempt to essentially duplicate our previous programs. Some of the
newly licensed programs focus on urban and design issues are simply
lacking the kind of expertise and breath that we provide.
In 1997, I attended the Fourth Biennial de Architechtura del
Caribe, along with hundreds of fellow academics, planners, and
architects. I was the only American present at the conference. At the
conference, I made a presentation that highlighted new urbanism and my
own experiences with sustainable development. I received requests for
encore lectures. The eagerness of the Cuban people to share
information, and their desire for quality interaction on a professional
level, led to the inception of my Cuban Research and Education
programs. In 1997, I organized a group of Americans to attend the
International Conference on Shelter and Revitalization of Old and
Historic Urban Centers, held in March of that year. The group was
comprised of diverse individuals, including planners, architects,
builders, and sociologists. The research and education programs have
been featured in nationally syndicated newspaper columns, and received
the 1999 ``Insider Award'' for excellence in educational travel from
Travel Holiday, a publication with more than 625,000 readers. The book,
Time Out: Havana and the Best of Cuba, called us the ``perhaps the best
educational option'' for travel to Cuba.
fostering people-to-people educational, professional, and
organizational exchange
Many of the contacts for our research and education programs are
recognized internationally. Ruben Bancroft, Ph.D., Dean of the School
of Architecture at the University of Havana, and an internationally
recognized architect, has been instrumental in forging a strong
relationship and providing program support. The research and education
programs resulted in Dr. Bancroft visiting the United States twice and
giving lectures on the great need to preserve Cuba's architectural
history through historic preservation. Mr. Sergio Garcia Gutierrez has
been an important resource for the programs. President of the Union of
Architects and Engineers, an organization with more than 10,000
members, Mr. Gutierrez awarded me with two certificates to recognize
the contribution the programs have made toward providing an information
exchange between Cubans and Americans. I was also awarded a ``Diploma''
by the Dean of Architecture at the University of Havana. The programs
have also enjoyed the support and participation of Eusebio Leal, Havana
Town Historian, Dr. Mario Cabello; the Cuban Minister of Housing, Mr.
Gregorio Alvarez Valdes; Director of International Relations, Ms.
Isabella Rigol; former Head of Conservation of Old Havana, Arg.
Salvador Gomila Gonzales; the Deputy Chairman of the National Housing
Institute; and Mr. Jose Choy, a leading architect in Cuba. Participants
also meet with leaders of the Committee for the Defense of the
Revolution and Cuban Institute for Friendship. Some of these
individuals work outside of Cuban government, and we have also worked
with several other non-government organizations in Cuba including
Habitat for Humanity. I have discussed planning and preservation on
Cuban television several times.
humanitarian outreach
Our Cuban research and education programs have institutionalized
the donation of medical supplies as an organizational goal. Cuban
hospitals and clinics suffer from a constant shortage of medical
supplies, inadequate facilities, and antiquated equipment. Each
individual traveling to Cuba is allowed to bring a maximum of 22 pounds
of medicine to donate. In the beginning, individuals were asked to
acquire their own medical supplies. I quickly realized that this method
would not produce the maximum amount of medical donations to Cuba. I
sought and fostered a relationship with Supplies Over Seas (SOS), a
local foundation whose mission is to provide free medical supplies and
assistance wherever it is needed. I am now an active SOS board member.
Currently, the research and education programs acquire and distribute
the medical supplies with assistance from SOS.
The programs have been responsible for delivering approximately
10,000 pounds of medical supplies to a hospitals and clinics throughout
Cuba. These medical supplies have an estimated value of more than
$200,000, under the assumption that each participant brought 10 pounds
of medicine each.
Recently, the programs made a large donation of clothing to a
private church that works with Cuban AIDS patients after receiving
information from the Cuban AIDS project. We believe that assisting
those in need is the most basic form of building relationships and
community between people and Nations.
information dissemination
As an active community member, I have had the opportunity to
discuss the importance of improved U.S.-Cuba relations and the research
and education programs with national leaders. On the local level, I
regularly correspond with Congresswoman Anne Northup (3rd District, R-
Ky) as a way to disseminate information and heighten awareness about
the potential for positive relations with Cuba. I have also met with
United States Senator Mitch McConnell (R-Ky) several times and had a
lengthy personal conversation with him regarding Cuba. I have met with
four other U.S. Senators to discuss Cuba--Senators Kerry, Chafee,
Leahu, and Rockefeller. Most recently, I participated in a day long
seminar on the economic impacts of the embargo with Congressional
leaders and staff. At a national level, I spoke to former Secretary of
State Madeline Albright during her visit to Louisville in spring 1998.
I addressed policy issues regarding Cuba at an open forum discussion
hosted by the University of Louisville. Internationally, I have
arranged meetings between research and education participants and the
United States Interest Section in Havana, Cuba. These meetings have
provided an informal setting for individuals to question the status of
U.S.-Cuba policy and progress regarding free travel and professional
exchange. Michael Kozak, Former Chief of the U.S. Interest Section,
complimented me for the variety of officials both within and outside
the government I have met with. Mr. Kozak stated that I had better and
friendlier contacts than does the entire U.S. Interest Section.
community outreach
Our organization has helped to foster relationships through
membership, advertisement, and listserv postings with important
international organizations that have an established interest in the
Cuban research and education programs. These organizations include the
National Trust for Historic Preservation, Society of Architectural
Historians, Urban and Community Sociology Section, Cuban Committee for
Democracy, Americans for Humanitarian Trade with Cuba, H-Urban, New
Urbanist, University and Community Partnerships, American Planning
Association, and Progressive Planners Network.
As a way to provide the maximum amount of people with up-to-date
information on research and education programs to Cuba, I have
developed an extensive web site, www.cubanow.org. This web site
provides a constant stream of new information through slide
presentations, essays, video presentations, and details about travel to
Cuba, and numerous links to relevant sites that will allow individuals
to better understand U.S.-Cuba policy and travel. The site has received
more than 41,000 hits from 52 countries. The website now averages about
150 hits a week. The number of hits have doubled in the past year. The
website is very popular among Cuban architects, planners, and
preservationists and government officials. This is the only website in
the world that provides a voice to the Cuban design community. These
community outreach efforts have achieved participation of a wide
variety of individuals from interrelated fields, including participants
from the U.S. Treasury Department, Council on Foreign Relations, U.S.
Department of Housing and Urban Development, and the Federal Aviation
Administration has traveled to Cuba with our organization as a direct
result of these outreach efforts.
I was also invited to speak at the Cuban National Heritage
Symposium at the Institute San Carlos in Key West, Florida, by the
preservation group Cuban National Heritage. I gave a slide show
presentation to illustrate the great need in Cuba for preservation
efforts. At this symposium, I interacted with a wide range of
individuals, including exile groups that offered another perspective on
the state of U.S.-Cuban relations.
speaking events
The Cuban Research and Education Program (Cubanow.org) promotes the
people-to-people public policy initiative to better U.S.-Cuban
relations through direct interaction between U.S. citizens and Cubans.
Our organization has made nearly 30 policy presentations to top Cuban
and United States officials in order to promote positive social change
at a grassroots level. Among the organizations for which we gave
presentations were the U.S. Treasury Department, National Security
Council, and State Department. Our organization has been invited to
speak at prominent universities such as MIT, Columbia, New York
University, University of Southern California, University of California
at Santa Barbara, Museum of Architecture in Southern California,
National Building Museum in Washington D.C., New School of Architecture
in San Diego, American Sociological Annual Conference, Skirball Center
in Los Angeles, University of Cincinnati, University of Louisville,
Parliamentarians National Conference, Professional Speakers Group,
Rotary Club, and Ohio State University. I was recently the keynote
speaker in Washington D.C. at the Restoration and Renovation Conference
before 6,000 participants. I feel that education and freedom go hand-
in-hand and that our programs generate attention in some of the most
basic and important public policy arenas. Our organization also feels
that these speaking events are the best arenas to dispel common
misconceptions about US-Cuban public policy and to encourage more
research into public policy issues.
Biographical Sketch of John I. Gilderbloom, Ph.D.
John I. Gilderbloom, Ph.D., Executive Director of the Cuban
Research and Education Programs, is a professor in the University of
Louisville's Department of Urban and Public Affairs graduate program in
the College of Business and Public Administration and the Director of
the Center for Sustainable Urban Neighborhoods (www.louisville.edu/org/
sun). He teaches courses on Cuba, Historic Preservation, Housing, Urban
Planning, and Revitalizing Inner Cities. Dr. Gilderbloom has won two
``teacher of the year'' awards and the Professional Speakers Bureau now
represents his popular lectures on Cuba. He has been profiled in the
New York Times, Atlanta Constitution Journal, and Planning Magazine.
Dr. Gilderbloom has written articles on a variety of public policy
issues for 22 academic journals and 18 chapters in books; he has also
written two books. He has written articles in the Wall Street Journal,
Washington Post, USA Today Magazine, and the Los Angeles Times. Most
recently, Dr. Gilderbloom served as a technical advisor for National
Geographic's recent special issue on Old Havana. He is currently
writing a book on Cuba and has published articles on Cuba recently in
Planning Magazine and the Encyclopedia of 20th Century Architecture.
Dr. Gilderbloom has been to Cuba approximately 25 times in the past
five years and is internationally recognized. He is a member of
Americans for Humanitarian Trade with Cuba Board of Directors, where he
sometimes volunteers as a spokesman. Dr. Gilderbloom recently earned an
honorary diploma, along with several other honors, from Cuba's Union of
National Architects and Engineers. He has provided testimony to
Congress on several occasions concerning Hispanics and housing.
Special note: My thanks to Teressa Jackson, Neal Pearce, Gayle
Kimball and Richard Louv for reading and editing this.
Senator Dorgan. We will now go to Nancy Chang, of the
Center for Constitutional Rights. Ms. Chang.
STATEMENT OF NANCY CHANG, CENTER FOR CONSTITUTIONAL
RIGHTS
Ms. Chang. Senator Dorgan, thank you for providing the
Center for Constitutional Rights with this opportunity to
discuss the pressing need for legislation ending governmental
restrictions on travel to Cuba.
Travel to Cuba to engage in tourist activities, which by
statute can never be licensed, and travel to Cuba without a
license to engage in those limited activities for which the law
permits the grant of a license constitute violations of the
Cuban Assets Control Regulations and the Trading with the Enemy
Act of 1917. Only travelers who are fully hosted while in Cuba
and successfully avoid spending so much as a penny of their own
money on prohibited travel-related transactions are exempted
from these restrictions.
Each violation of these travel restrictions can expose the
traveler to a criminal conviction, punishable by the fine of up
to $100,000 and by imprisonment for a term of up to 10 years.
In addition, each violation can expose the traveler to civil
enforcement by the Department of the Treasury's Office of
Foreign Assets Control, which is authorized to assess a penalty
of up to $55,000.
The severity of the restrictions on travel to Cuba
interferes with and effectively chills the exercise of two
fundamental rights protected by the United States Constitution.
First, the restrictions limit our freedom to travel, which is
part of the liberty of which a citizen cannot be deprived
without due process of law under the Fifth Amendment. The
Supreme Court has explained that this freedom of movement is
the very essence of our free society, setting us apart. Like
the right of assembly and the right of association, it makes
all other rights meaningful--knowing, studying, arguing,
exploring, conversing, observing, and even thinking. Once the
right to travel is curtailed, all other rights suffer, just as
when curfew or home detention is placed on a person.
Second, the restrictions limit our rights under the First
Amendment to express our views, to hear the speech of others,
to gather information, and to associate with others, rights
which are essential to a democratic society. During the Cold
War, the Supreme Court twice upheld governmental restrictions
on travel to Cuba, finding them to be justified by the
weightiest considerations of national security. The
geopolitical landscape has changed significantly since the
Supreme Court decided these cases and the Cuban Assets Control
Regulations, nevertheless, continue to infringe on our
fundamental rights.
Out of concern that the OFAC enforcement of the
restrictions was unfairly targeting Americans for punishment
that they did not deserve, in 1998, the Center for
Constitutional Rights established its Cuban Travel Project.
During the 4 years it has been in operation, it has advised
thousands of individuals and dozens of organizations from
across the United States on the laws and regulations governing
travel to Cuba. A bilingual pamphlet published by the Center,
``Advice for Travelers to Cuba,'' provides a user-friendly
introduction to this arcane area of the law and is in wide
circulation.
Currently, the Center represents more than 400 individuals
who have been targeted for OFAC enforcement actions. Each
client has received from OFAC a requirement to furnish
information, demanding a written response to a set of questions
about his or her travel activities, and/or a pre-penalty notice
alleging that he or she traveled to Cuba in violation of the
restrictions. In the case of the Center's 246 clients who have
received a pre-penalty notice, OFAC has demanded a civil
penalty that generally ranges from $7,500 to $17,500.
The Center's clients represent a cross-section of America
at its very best. Included among its ranks are doctors,
lawyers, educators from the elementary school level to the
university level, students in high school, college, and
graduate school, journalists, writers, artists, dancers, film
makers, urban planners, public health workers, social workers,
law enforcement officers, civil servants, entrepreneurs,
computer experts, and engineers. They range in their age from
their teens to their 80s and they are spread across 35 States
and the District of Columbia.
While their reasons for traveling to Cuba are varied, none
have engaged in activities that would, at least under any fair
and rational system of justice, be considered grounds for
imposing the criminal and civil penalties called for in the
Cuban Assets Control Regulations and the Trading with the Enemy
Act. The Center's clients provide a firm basis for
understanding the reasons why so many Americans travel to Cuba
without first obtaining a license to do so from OFAC.
First, most Americans are not aware of and do not
understand the complex laws and regulations that govern such
travel, and as a result, incorrectly believe their travel to be
legal. The regulations are obscure, replete with provisions
that are lacking in clarity, and furthermore, the restrictions
run counter to the basic values of an open society. Indeed,
travel to socialist States, including the former Soviet Union,
the People's Republic of China, Vietnam, and North Korea have
long been and continue to be permitted, with the sole exception
of travel to Cuba.
Perhaps it is for these reasons that Americans are quick to
believe advertisements falsely claiming that Americans may
travel to Cuba lawfully as long as they pay for their trip in
advance to a travel agency in a third country and spend no cash
in Cuba.
Ironically, those who honestly report their travel to the
Customs Service on their return to the United States are the
ones who are most likely to become the subject of an OFAC
enforcement action, while those who deliberately set out to
violate the rules are adept at evading detection, and, it
seems, nearly always succeed in their mission. In other words,
OFAC enforcement is directed at the least culpable travelers,
those who do not understand the travel regulations and believe
themselves to be in compliance with them and are truthful with
the Customs Service.
Second, Americans who are intent on visiting Cuba as
tourists are left no option but to violate the Cuban Assets
Control Regulations and expose themselves to the harsh
penalties. OFAC is barred by statute from granting a license
for travel to engage in any tourist activities.
Third, Americans who apply for a specific license to travel
to Cuba in order to engage in one of the limited activities for
which licenses may be granted have consistently encountered
roadblocks that prevent them from obtaining a license on a
timely basis. From all outward appearances, OFAC is engaged in
a deliberate strategy of discouraging the filing of license
applications and of constructively denying those applications
that are filed through agency inaction and delay.
OFAC has failed to publish any rules or procedures
specifying what information a successful license application
must provide, much less what standards are applied in reviewing
these applications. The absence of uniform written standards,
coupled with the absence of any requirement that OFAC
demonstrate to Congress or to the public that it is exercising
its discretion in a fair and even-handed manner promotes the
inconsistent and irrational treatment of applications that we
have witnessed.
Fourth, Americans who travel on a general license or whose
travel is fully hosted are not required to apply for a license
in advance of their trip from OFAC and, therefore, lack
documentation that their travel is lawful. On their return to
the United States, these individuals are frequently subjected
to harassment, even detention and confiscation of goods
purchased in Cuba by untrained Customs officials who rigidly
adhere to the false believe that travel to Cuba is illegal
unless the traveler is able to produce a copy of a specific
license from OFAC authorizing this travel. Some of these
individuals have even been subjected by OFAC to enforcement
actions.
Enforcement of the restrictions on travel to Cuba are being
stepped up at a time when government resources are urgently
needed to fight terrorism. In July 2001, in response to
widespread complaints of a Bush administration crackdown on
Americans traveling to Cuba, a spokesperson for the Department
of Treasury finally acknowledged that a higher incidence of
penalty cases is being issued. The Department of Treasury
reported that while OFAC had issued only 188 enforcement
letters in all of 2000, it had issued 766 such letters in 2001.
The Center was recently informed by OFAC officials that
administrative law judges will soon be conducting the hearings
that have been requested by individuals who have been charged
with violating the regulations. During the 10 years since the
Cuban Democracy Act of 1992, the agency has been required to
provide individuals with an administrative law judge hearing
upon request. However, since that time, the Department of
Treasury has not had any judges on staff. As of December 2001,
the backlog of requested hearings was reported to be 357.
OFAC's devotion of additional resources through the hiring
of administrative law judges to enforce the Cuban Assets
Control Regulations at a time when it has also been assigned
the serious responsibility for tracing and blocking assets of
terrorists responsible for the attacks of September 11 is
profoundly troubling.
Senator Dorgan. Ms. Chang, I would like you to summarize
the remainder of your statement, if you would.
Ms. Chang. Certainly. Neither the judiciary nor the
executive is likely to bring about the end to the current
restrictions on travel to Cuba. We are here to ask that
Congress enact legislation that terminates these restrictions
and that explicitly repeals all existing statutory
authorization for such restrictions.
This year marks the 40 anniversary of the Cuban Missile
Crisis. Congress should seize this moment and take the first
critical step towards mending the Cold War-era fences that
separate us from our close neighbors. The restrictions on
travel to Cuba have outlived their purpose. Moreover, their
senseless, the arbitrary and unfair manner in which they have
been applied only serve to breed contempt and disrespect for
the laws of this Nation. Their repeal by legislation is long
overdue.
Prepared Statement
Thank you once again for providing the Center for
Constitutional Rights with this opportunity to address the
subcommittee on these important issues, and I would request
that my full written statement be included in the record of
this hearing.
Senator Dorgan. Without objection, the full statement will
be a part of the record.
[The statement follows:]
Prepared Statement of Nancy Chang
Senator Dorgan and Members of the Subcommittee, thank you for
providing the Center for Constitutional Rights with this opportunity to
discuss the pressing need for legislation ending governmental
restrictions on travel to Cuba. First, I will address how these
restrictions undermine our civil liberties without enhancing our
national security. Second, I will address how enforcement of the
restrictions by the Department of the Treasury unfairly targets
Americans for punishment that they do not deserve. Third, I will
address how these enforcement efforts are being stepped up at a time
when government resources are urgently needed to fight terrorism.
Finally, I will discuss why the restrictions will remain in place
unless and until Congress enacts legislation to terminate them.
the current restrictions on travel to cuba undermine our civil
liberties without enhancing our national security
Travel to Cuba to engage in tourist activities, which, by statute,
can never be licensed,\1\ and travel to Cuba without a license to
engage in those limited activities for which the law permits the grant
of a license,\2\ constitute violations of the Cuban Assets Control
Regulations \3\ and the Trading with the Enemy Act of 1917.\4\ Only
travelers who are fully hosted while in Cuba and successfully avoid
spending so much as a single penny of their own money on prohibited
travel-related transactions, are exempted from these restrictions.\5\
Each violation of these travel restrictions can expose the traveler to
a criminal conviction punishable by a fine of up to $100,000 and by
imprisonment for a term of up to 10 years.\6\ In addition, each
violation can expose the traveler to civil enforcement action by the
Department of the Treasury's Office of Foreign Assets Control (OFAC),
which is authorized to assess a penalty of up to $55,000.\7\
---------------------------------------------------------------------------
\1\ See Agricultural Rural Development, Food and Drug
Administration, and Related Agencies Programs for fiscal year 2001,
Sec. 910(b), amending the Trade Sanctions Reform and Export Enhancement
Act at 22 U.S.C. Sec. 7209(b).
\2\ Id. See also 31 C.F.R. Sec. Sec. 515.560(a)(1)-(12)
(authorizing licensed travel to Cuba under tightly prescribed
conditions).
\3\ 31 C.F.R. Part 515.
\4\ 50 U.S.C. Appendix Sec. Sec. 1 et seq. The restrictions on
travel to Cuba are also authorized by the Cuban Democracy Act of 1982,
22 U.S.C. Sec. Sec. 6001 et seq., the Cuban Liberty and Democratic
Solidarity Act of 1996 (Helms-Burton Act), 22 U.S.C. Sec. Sec. 6021 et
seq., and the Trade Sanctions Reform and Export Enhancement Act, 22
U.S.C. Sec. 7209.
\5\ See 31 C.F.R. Sec. 515.420.
\6\ 31 C.F.R. Sec. 500.701(a)(1).
\7\ 31 C.F.R. Sec. 500.701(a)(3).
---------------------------------------------------------------------------
The severity of the restrictions on travel to Cuba, coupled with
the draconian criminal and civil penalties that may be imposed upon
their violation, interferes with, and effectively chills, the exercise
of two fundamental rights guaranteed by the United States Constitution.
First, the restrictions limit our freedom to travel, which is ``a
part of the liberty of which [a] citizen cannot be deprived without the
due process of law under the Fifth Amendment.'' \8\ The Supreme Court
has explained that:
---------------------------------------------------------------------------
\8\ Kent v. Dulles, 357 U.S. 116, 125 (1958).
---------------------------------------------------------------------------
This freedom of movement is the very essence of our free society,
setting us apart. Like the right of assembly and the right of
association, it often makes all other rights meaningful--knowing,
studying, arguing, exploring, conversing, observing and even thinking.
Once the right to travel is curtailed, all other rights suffer, just as
when curfew or home detention is placed on a person.\9\
---------------------------------------------------------------------------
\9\ Aptheker v. Secretary of State, 378 U.S. 500, 520 (1964)
(Douglas, J., concurring).
---------------------------------------------------------------------------
Second, the restrictions limit rights under the First Amendment to
express our views, hear the speech of others, gather information, and
associate with others--rights that are essential in a democratic
society. As Justice William Douglas astutely observed:
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. Without those contacts First Amendment rights
suffer.\10\
---------------------------------------------------------------------------
\10\ Zemel v. Rusk, 381 U.S. 1, 24 (1965) (Douglas, J.,
dissenting).
---------------------------------------------------------------------------
Government regulations are not permitted to infringe upon
fundamental rights unless they are necessary in order to achieve a
compelling governmental objective and are narrowly tailored to
accomplish that objective. In a suit filed just two months after the
Cuban Missile Crisis of 1962, the Supreme Court was quick to uphold
governmental restrictions on travel to Cuba, finding them to be
justified by the ``weightiest considerations of national security.''
\11\ Two decades later, in 1984, a somewhat more restrained Supreme
Court again upheld such restrictionsEby accepting at face value the
Department of State's opinion that the political, economic, and
military backing of Cuba by the Soviet Union and Cuba's military
activities in the Western Hemisphere continued to sustain the
restrictions.\12\
---------------------------------------------------------------------------
\11\ Id. at 16.
\12\ Regan v. Wald, 468 U.S. 222, 243 (1984).
---------------------------------------------------------------------------
The geopolitical landscape has changed significantly since the
Supreme Court decided these two cases. The collapse of the Soviet bloc
more than a decade ago marked the end of the Cold War and the halt of
Soviet subsidies to Cuba. In the late 1990's, the Department of
Defense, Central Intelligence Agency, Department of State, and National
Security Agency finally acknowledged what had been obvious for quite
some time--that the tiny island nation of Cuba does not pose a
realistic threat to the national security of the United States or the
Western hemisphere.\13\
---------------------------------------------------------------------------
\13\ See Defense Intelligence Agency, Central Intelligence Agency,
and Department of State Bureau of Intelligence and Research, the
National Security Agency, and the United States Southern Command Joint
Intelligence Center, ``The Cuban Threat to U.S. National Security,''
November 18, 1997 ; Dana
Priest, ``Cuba Poses 'Negligible' Threat, Report Says,'' The Washington
Post, May 7, 1998, at p.A8.
---------------------------------------------------------------------------
Yet the Cuban Assets Control Regulations continue to infringe on
our fundamental rights, notwithstanding the fact that the government
can no longer establish that they are necessary in order to achieve a
compelling governmental objective, much less that they are narrowly
tailored to accomplish such an objective. These regulations illustrate
a fatal flaw in the Trading with the Enemy Act--a statute that four
Justices of the Supreme Court have criticized for serving as a ``one-
way ratchet to enhance greatly the President's discretionary authority
over foreign policy'' and to cling to that authority long after the
national emergency that served as the basis for its grant has
ended.\14\
---------------------------------------------------------------------------
\14\ Regan v. Wald, 468 U.S. at 245.
---------------------------------------------------------------------------
enforcement of the restrictions on travel to cuba by the department of
the treasury unfairly targets americans for punishment that they do not
deserve
In 1998, the Center for Constitutional Rights established its Cuba
Travel Project in order to educate the public about the embargo and to
provide legal representation to individuals and organizations subject
to OFAC enforcement actions under the Cuban Assets Control
Regulations.\15\ During the four years that the Cuba Travel Project has
been in operation, the Center has advised thousands of individuals and
dozens of organizations from all across the United States on the laws
and regulations governing travel to Cuba. A bilingual pamphlet
published by the Center, Advice for Travelers to Cuba, provides a user-
friendly introduction to this arcane area of the law and is in wide
circulation.
---------------------------------------------------------------------------
\15\ The Coordinator of the Center for Constitutional Rights' Cuba
Travel Project is Anna Liza Gavieres. The attorneys associated with the
Cuba Travel Project currently include William Goodman, Michael Ratner,
Robert Bloom, Anthony DiCaprio, Margie Ratner, John Speyer, Jaykumar
Menon, Shayana Kadidal, and myself.
---------------------------------------------------------------------------
Currently, the Center represents more than 400 individuals who have
been targeted for OFAC enforcement actions under the Cuban Assets
Control Regulations. Each client has received from OFAC a ``Requirement
to Furnish Information'' demanding a written response to a set of
questions about his or her travel activities and/or a ``Pre-Penalty
Notice'' alleging that he or she traveled to Cuba in violation of the
regulations. In the case of the Center's 246 clients who have received
a Pre-Penalty Notice, OFAC has demanded a civil penalty that generally
ranges from $7,500 to $17,500 per person.
The Center's clients represent a cross-section of America at its
very best. Included among their ranks are doctors, lawyers, educators
from the elementary school level to the university level, students in
high school, college and graduate school, journalists, writers,
artists, dancers, film makers, urban planners, public health workers,
social workers, law enforcement officers, civil servants,
entrepreneurs, computer experts, and engineers. They range in age from
their teens to their 80's, and they are spread across 35 states and the
District of Columbia.
While their reasons for traveling to Cuba are varied, none have
engaged in activities that would--at least under any fair and rational
system of justice--be considered grounds for imposing the criminal and
civil penalties called for in the Cuban Assets Control Regulations and
the Trading with the Enemy Act. Some clients traveled in order to
deliver humanitarian aid to the Cubans and to donate their time and
professional services in Cuban hospitals and schools. Some clients
traveled in order to spend time with their Cuban relatives, friends,
and co-religionists, to visit the grave sites of their relatives, and
to visit their former military stations on the island. Some clients
traveled in order to study the Spanish language, to learn about Cuba,
its history, and its people, and to write books and articles describing
their findings. Some clients traveled in order to attend professional
meetings, sporting events, and cultural events. Some clients traveled
in order to study Cuba's internationally acclaimed programs in public
health, sustainable agriculture, and energy conservation. Some clients
traveled in order to study its political system and to meet with its
proponents and opponents. And some clients traveled in order to
experience the beauty of the Cuban beaches and countryside, sail, swim,
fish, scuba dive, bicycle, birdwatch, and tour the sights.
Despite their many differences, the Center's clients share an
independence of thought, a determination to experience foreign cultures
firsthand, and a belief that ties of friendship between people living
in countries whose governments are at odds can promote peace between
their nations. They are also united in their desire to export their
enthusiasm for all that is positive about life in United States and to
share with their fellow Americans the best of what Cuba has to offer.
The Center's clients represent only an infinitesimal fraction of
the tens of thousands of Americans who have traveled to Cuba in
violation of the travel restrictions.\16\ However, the Center's clients
represent a substantial percentage of the individuals against whom OFAC
has brought enforcement actions.\17\ Thus, the overwhelming majority of
travelers who violate the travel restrictions are not known to OFAC; in
the alternative, they are known to OFAC, but OFAC has chosen not to
pursue them. Ironically, those who honestly report their travel to Cuba
to the Customs Service on their return to the United States are the
ones who are most likely to become the subject of an OFAC enforcement
action, while those who are adept at evading detection nearly always
succeed in their mission. In other words, OFAC enforcement is directed
at the least culpable travelers--those who do not understand the travel
restrictions, believe themselves to be in compliance with them, and are
truthful with the Customs Service.
---------------------------------------------------------------------------
\16\ The United States-Cuba Trade and Economic Council has
estimated that 176,000 U.S. citizens visited Cuba in 2000, of whom
approximately 22,000 of whom traveled in violation of the travel
restrictions, approximately 124,000 were Cuban Americans who are
allowed one trip per year to visit close relatives in circumstances
that demonstrate humanitarian need, and approximately 30,000 of whom
made visits authorized by OFAC. See Kevin Sullivan, ``Americans Defy
Cuba Embargo,'' The Washington Post, October 13, 2001. On the other
hand, The New York Times has estimated that 40,000 to 50,000 Americans
visited Cuba illegally in 2000. See Frank Bruni, ``Bush Administration
Showing Willingness to Enforce Law on Visiting Cuba,'' The New York
Times, August 5, 2001.
\17\ The Center currently represents approximately 246 clients who
have requested an Administrative Law Judge hearing. Given OFAC's
statement in September 2001 that it has a backlog of 357 hearing
requests, it is safe to assume that the Center's clients constitute a
large percentage of OFAC's enforcement cases. See infra Notes 25 and 26
and accompanying text.
---------------------------------------------------------------------------
The Center's clients provide a firm basis for understanding the
reasons why so many Americans travel to Cuba without first obtaining a
license to do so from OFAC. First, most Americans are not aware of, or
do not understand, the complex laws and regulations that govern such
travel and, as a result, incorrectly believe their travel to be legal.
The Cuban Assets Control Regulations are obscure and replete with
provisions that are lacking in clarity. Furthermore, restrictions on
travel run counter to the values of an open society. The freedom to
travel is ``a part of our heritage'' and ``basic in our scheme of
values.'' \18\ And the First Amendment not only protects, but
encourages, Americans to engage in a free exchange of ideas and to form
their own opinions on matters of public concern. Indeed, travel to
socialist states, including the former Soviet Union, the People's
Republic of China, Vietnam, and North Korea, has long been, and
continues to be, permitted--with the sole exception of travel to Cuba.
Perhaps it is for these reasons that Americans are quick to believe
advertisements falsely claiming that Americans may travel to Cuba
lawfully as long as they pay for their trip in advance to a travel
agency in a third country and spend no cash while in Cuba.
---------------------------------------------------------------------------
\18\ Kent v. Dulles, 357 U.S. at 126.
---------------------------------------------------------------------------
Second, Americans who are intent on visiting Cuba as tourists are
left with no option but to violate the Cuban Assets Control Regulations
and to expose themselves to the imposition of harsh criminal and civil
penalties. OFAC is barred by statute from granting a license for travel
in Cuba to engage in tourist activities.\19\
---------------------------------------------------------------------------
\19\ See supra Note 1. A number of the Center's elderly clients
have spoken with great emotion of their determination to visit Cuba
while they still retain the physical ability to endure such a trip and
the mental ability to appreciate the experience. Some of these clients
have ties to the island nation dating back to its pre-revolutionary
days.
---------------------------------------------------------------------------
Third, Americans who apply for a specific license to travel to Cuba
in order to engage in one of the limited activities for which licenses
may be granted under the Cuban Assets Control Regulations have
consistently encountered roadblocks that prevent them from obtaining a
license on a timely basis. From all outward appearances, OFAC is
engaged in a deliberate strategy of discouraging the filing of license
applications, and of constructively denying those applications that are
filed through agency inaction and delay. OFAC has failed to publish any
rules or procedures specifying what information a successful license
application must provide, much less what standards are applied in
reviewing applications. The absence of uniform written standards,
coupled with the absence of any requirement that OFAC demonstrate to
Congress and the public that it is exercising its discretion in a fair
and even-handed manner, promotes the inconsistent and irrational
treatment of applications that we have witnessed.\20\
---------------------------------------------------------------------------
\20\ See, e.g., ``OFAC Travel License Survey Responses,'' Fund for
Reconciliation and Development (February 8, 2002).
---------------------------------------------------------------------------
To complicate matters further, OFAC routinely fails to process
applications in a timely manner, a practice that is unacceptable given
the substantial commitments of time and money required of travelers in
advance of an international trip. Those familiar with the application
process have learned that they must conduct a steady and persistent
campaign of follow-up telephone calls and faxes to OFAC in order to
stand even a chance of obtaining a license in advance of a trip's
scheduled departure date. Furthermore, those applicants who are
fortunate enough to receive specific licenses are now being saddled
with burdensome additional documentation requirements.
Fourth, Americans who qualify for travel on a general license, or
whose travel is fully hosted, are not required to apply for a license
and, as a result, lack documentation from OFAC establishing that their
travel to Cuba was lawful. On their return to the United States, these
individuals are frequently subjected to harassment, detention, and
confiscation of goods purchased in Cuba by untrained Customs officials
who rigidly adhere to the false belief that travel to Cuba is illegal
unless the traveler is able to produce a copy of a specific license
from OFAC authorizing the travel. Some of these individuals have even
been subjected by OFAC to enforcement actions.
Furthermore, the Center's clients provide a firm basis for
understanding the hardships that travelers to Cuba endure--first at the
hands of Customs officials, and later at the hands of OFAC--when our
government suspects them of violating the Cuban Assets Control
Regulations.
With disturbing frequency, the Center's clients have reported that
Customs agents were verbally abusive to them upon their return from
Cuba. Customs agents have screamed directly into their faces, accused
them of being criminals, interrogated them in a belligerent and
intimidating manner, dumped the contents of their suitcases and bags
onto the floor, detained them for periods as long as six hours, and
coerced them into submitting written statements about their trips by
threatening to keep them in detention until such a statement was
submitted. Travelers' requests to speak to their attorneys have been
routinely discouraged and even ignored. Customs agents have often
caused travelers to miss their connecting flights, sometimes forcing
them to spend the night at the airport waiting for another flight.
In addition, the Customs Service appears to have recently initiated
a practice of stationing inspectors in Canadian airports to surveil
Americans as they plane and deplane flights between Cuba and Canada. A
client of the Center received a Requirement to Furnish Information last
year that was eerily reminiscent of the warning in George Orwell's
novel, 1984, ``Big Brother is watching.'' The notice advised her that
she had been observed by Customs inspectors when her Cubana Airlines
flight arrived in Montreal. To its credit, the Canadian government has
voiced concerns that this practice may be taking place, in violation of
the 1974 Pre-Clearance Treaty between the United States and Canada.\21\
---------------------------------------------------------------------------
\21\ Glen McGregor and Mike Trickey, ``Canada Opposes U.S.
Crackdown on Cuba Visitors,'' Ottawa Citizen, September 1, 2001.
---------------------------------------------------------------------------
Customs also appears to be placing the names of a select group of
persons who are suspected of traveling to Cuba in violation of the
Cuban Assets Control Regulations on a watch list used by the agency to
screen for travelers who are of concern to law enforcement agencies.
Many of the Center's clients have complained that after having been
stopped by Customs agents on their return from Cuba, they have been
subjected to heightened inspection procedures at airports whenever they
travel internationally.
Upon their return from Cuba, travelers who have been identified by
Customs as having traveled in violation of the regulations receive a
Pre-Penalty Notice from OFAC assessing a civil penalty of around $7,500
when a single unauthorized trip is alleged, and around $17,500 when two
unauthorized trips are alleged. Thus, a family of four that has visited
Cuba in the mistaken belief that the travel was lawful should expect
OFAC to assess a penalty of $30,000. And just three months ago, in
November 2001, the Center received for the first time a Pre-Penalty
Notice demanding an additional civil penalty of $1,500 from a traveler
who had allegedly responded to a Requirement to Furnish Information
outside of the allotted 20 business day time period for doing so.
The penalties demanded by OFAC are plainly excessive and
unreasonable. OFAC sets penalties without consideration of whether the
traveler reasonably understood his or her travel to be lawful, how many
days the traveler stayed in Cuba, or the nature of the traveler's
activities while in Cuba and whether those activities fall within the
parameters of licensable activity. More critically, OFAC sets penalties
without consideration of the purported purpose of the travel
restrictions--the amount of United States currency that the traveler
has introduced into the Cuban economy.
moreover, these enforcement efforts are being stepped up at a time when
government resources are urgently needed to fight terrorism
Between January 2001 and the present, the number of individuals who
have received Requirement to Furnish Information forms and Pre-Penalty
Notices from OFAC has skyrocketed. In July 2001, in response to
widespread complaints of a Bush Administration crackdown on Americans
traveling to Cuba, a spokesperson for the Department of the Treasury
finally acknowledged that ``a higher incidence of penalty cases are
being issued at this time.'' \22\ This increase, however, was
attributed by the spokesperson ``solely to the normal ebb and flow of
OFAC's workload rather than a shift in policy.'' \23\ Soon thereafter,
the Department of the Treasury reported that while OFAC had issued only
188 enforcement letters in all of 2000, it had issued 517 such letters
between January and July of 2001.\24\
---------------------------------------------------------------------------
\22\ Rafael Lorente, ``U.S. Tightens Cuban Embargo,'' The
Washington Times, July 5, 2001.
\23\ Id.
\24\ See Sullivan, ``Americans Defy Cuba Embargo,'' supra note 16.
---------------------------------------------------------------------------
The increase in OFAC enforcement activity caused the Center for
Constitutional Rights' Cuba Travel Project to be flooded with new
requests for legal representation. Between January and June of 2001,
the Center accepted 162 new cases for representation--far more than the
137 cases it accepted in all of 2000, the 55 cases that it accepted in
1999, or the 49 cases that it accepted in 1998. When its caseload
exceeded 400 at the end of June, 2001, the Cuba Travel Project was
forced to turn away new cases for the first time since it opened its
doors in 1998. In order to fill the void caused by its inability to
accept new cases, the Center, in conjunction with the National Lawyers
Guild, formed a ``Wall of Lawyers'' project. Lawyers from all across
the nation have agreed to provide legal representation to individuals
accused by OFAC of violating the Cuban Assets Control Regulations.
For the first few months following the terrorist attacks of
September 11, 2001, OFAC slowed down its enforcement of the
restrictions on travel to Cuba. However, the agency has apparently
decided to make up for lost time. Last month, January 2002, OFAC issued
18 new Pre-Penalty Notices just to existing clients of the Center. This
is an unusually high number of Pre-Penalty Notices for the Center to
receive in a single month, and it is a strong indication that OFAC is
once again stepping up its enforcement of the Cuban Assets Control
Regulations. In addition, the Center was recently informed by OFAC
officials that Administrative Law Judges will soon be conducting the
hearings that have been requested by individuals who have been charged
with violating the Cuban Assets Control Regulations. During the ten
years that the Cuba Democracy Act of 1992 has provided such individuals
with the right to an Administrative Law Judge hearing, the Department
of the Treasury has never had any judges on staff.\25\ As of December
2001, the backlog of requested hearings was reported to be 357.\26\
OFAC's devotion of additional resources to the enforcement of the Cuban
Assets Control Regulations at a time when it has been assigned
responsibility for tracing and blocking the assets of the terrorists
responsible for the attacks of September 11 is profoundly
troubling.\27\
---------------------------------------------------------------------------
\25\ Ken Guggenheim, ``Lengthy Backlog of Cuba Travel Cases,'' AP
Online, December 16, 2001.
\26\ Id.
\27\ See Executive Order 13224, ``Blocking Property and Prohibiting
Transactions with Persons who Commit, Threaten to Commit, or Support
Terrorism'' (September 24, 2001).
---------------------------------------------------------------------------
the restrictions on travel to cuba will remain in place unless and
until congress enacts legislation to terminate them
Neither the judiciary nor the executive branch is likely to bring
about an end to current restrictions on travel to Cuba. Now that Cold
War tensions have been defused and Cuba no longer presents a credible
military threat to the United States, it is possible that the courts
will no longer be willing to accept at face value the government's
assertion that the travel restrictions are justified on national
security grounds. However, the judiciary has a long tradition of
deferring to Congress and the Executive on matters of foreign policy,
particularly where--as here--the two political branches are in
agreement with one another. Notably, as recently as 1996, the Court of
Appeals for the Ninth Circuit refused to look behind the government
proffer in support of the travel restrictions.\28\
---------------------------------------------------------------------------
\28\ See Freedom to Travel Campaign v. Newcomb, 83 F.3d 1431 (9th
Cir. 1996).
---------------------------------------------------------------------------
And even if the executive branch were so inclined, it has been
barred since October 28, 2000, from granting licenses for travel to
Cuba for any activities other than the limited set of activities for
which licenses are currently permitted under the Cuban Assets Control
Regulations. In essence, the amendment in 2000 to the Trade Sanctions
Reform and Export Enhancement Act, 22 U.S.C Sec. 7209(b), has codified
the travel restrictions in the Cuban Assets Control Regulations into
law.\29\
---------------------------------------------------------------------------
\29\ See supra Note 1.
---------------------------------------------------------------------------
Thus, as a practical matter, the restrictions on travel to Cuba
will not be lifted unless and until Congress enacts legislation to
terminate them. Such legislation should explicitly repeal all existing
statutory authorization for the restrictions, including the Trading
with the Enemy Act, the Cuban Democracy Act, the Helms-Burton Act, and
the Trade Sanctions Reform and Export Enhancement Act. Such legislation
should also provide for the dismissal of all pending OFAC enforcement
proceedings under the Cuban Assets Control Regulations. Individuals
subject to these proceedings have already endured the anxiety and the
taint of having unresolved charges of wrong-doing filed against them
without the ability to have their requests for an Administrative Law
Judge hearing fulfilled. These charges have been pending for upwards of
10 years due to the Department of the Treasury's failure to comply with
its obligations under the Cuban Democracy Act of 1992. The dismissal of
these cases would also serve the public interest, as it would permit
OFAC to shift its resources away from Cuba--which is not a danger to
the United States--to the many genuine dangers that are lurking, such
as the threat of an imminent terrorist attack.
Legislation that simply cuts off funding to OFAC for enforcement of
the travel restrictions without legalizing travel to Cuba will not
resolve the lack of accountability and fairness that is inherent to any
licensing permit scheme. Such a half-hearted measure could make it
impossible for people wishing to travel to Cuba to obtain specific
licenses for such travel. In the event that they chose to travel
without a license, their travel could form the basis of a future OFAC
enforcement action if funding to OFAC for enforcement were restored.
This year marks the 40th anniversary of the Cuban Missile Crisis.
Congress should seize the moment and take this critical first step
towards mending the Cold War-era fences that separate us from one of
our closest neighbors. The restrictions on travel to Cuba have outlived
their purpose. Moreover, their senselessness, and the arbitrary and
unfair manner in which they have been applied, only serve to breed
contempt and disrespect for the laws of this nation. Their repeal by
legislation is long overdue.
Thank you once again for providing the Center for Constitutional
Rights with this opportunity to address the Subcommittee on these
important matters.
Senator Dorgan. Let me ask a couple of questions and then
we will go to the next panel.
Ms. Meister and Mr. Harriman, my understanding is that your
cases are still unresolved at this point, is that the case?
Mr. Harriman. That is correct.
Ms. Meister. Yes, correct.
Senator Dorgan. Are you concerned about speaking publicly
on this matter inasmuch as your cases are as yet unresolved?
Ms. Meister. Yes. To an extent, yes.
Mr. Harriman. I am concerned depending on what questions I
may have, but I feel it is very important for me to express my
ideas here. There certainly may be some questions that I will
not answer at this time.
Senator Dorgan. Mr. Allen, your case is resolved and you
paid a $700 fine.
Mr. Allen. That is correct.
Senator Dorgan. Let me ask, Dr. Gilderbloom, you were
talking about articles that OFAC was critical of. Did I
misunderstand that? You have a website and you have also
written articles----
Mr. Gilderbloom. Yes.
Senator Dorgan [continuing]. And someone was critical of
the articles. Was that the Cuban government or OFAC?
Mr. Gilderbloom. Members of the Cuban government were upset
with both the website listing privately-owned restaurants,
privately-owned places to stay, non-government artists, and
also a variety of perspectives both critical of the Cuban
government, as well as a professional article I wrote in
Planning magazine, which is the foremost article in journal
planning. They were upset because I used the word ``embargo''
instead of ``blockade'' and they called me a member of the
Cuban mafia in Miami, that I was, and other denigrating
comments. Shortly after that, they said I was banned from going
to the university to have official visits with urban planning
faculty.
And then in addition, they were quite upset--we had to find
a host organization, and so this host organization also
insisted, but I resisted in terms of going to certain places
that they did not want Americans to see, which were
shantytowns, people living almost in shacks, caves, on the
river, in tents, because we wanted to show both sides of the
Cuban revolution.
Senator Dorgan. But your license at this point is denied
and you are appealing that denial, is that correct?
Mr. Gilderbloom. We hope to appeal, but we have been after
this for 11 months now and we do not think--we are going to try
our best, but I think with this testimony today, we have put
OFAC in a corner to defend itself.
Senator Dorgan. Again, summarize for me briefly, why do you
think your license request was denied?
Mr. Gilderbloom. Well, they stated in public that we were
not meeting enough with--have enough non-government people-to-
people contacts, and, in fact, we worked with the U.S.
Interests Section on meeting with various people and
introducing people to that.
The second thing is, they are very upset with the website,
which is one of the products we produce, which listed non-
government restaurants, places to stay, and so on. But they
keep on--they did not put that in the letter. That is what is
frustrating. It is one thing they say not enough people-to-
people contact. Well, we could document all that. Now they are
upset with how we designed the website. and then they went on
and said----
Senator Dorgan. Was that as part of a discussion with them?
You said that was not in writing.
Mr. Gilderbloom. Yes. It was a discussion with our
Congressional representative. and then they said, ``We do not
like two of the books you are using.'' And I said, okay, we
will take them out.
Senator Dorgan. Ms. Chang, you indicated in your testimony
and I suggested in mine that there has been a substantial
increase in enforcement actions. I think OFAC may contest that
when they testify, but give me the basis for that statement, if
you would.
Ms. Chang. Starting in the beginning of 2001, our intake
shot up. We were flooded with phone calls and took in more
cases in the first half of 2001 than we had previously accepted
and we had to shut down our intake. We were just overwhelmed.
And just last month, January of 2002, we received 18 pre-
penalty notices in the mail from OFAC. That is an unusually
high number for us and indicates an increase in activity in the
agency.
Senator Dorgan. Mr. Harriman and Ms. Meister, both of you
seem to indicate that you were advised by various
organizations, you, Ms. Meister, a travel agency in Canada, and
Mr. Harriman, you were advised by some organization that you
were a part of----
Mr. Harriman. That's correct.
Senator Dorgan [continuing]. That the kind of travel you
were embarking upon was legal, is that correct?
Ms. Meister. Exactly. I had no intention of doing anything
to violate the law.
Senator Dorgan. And when you received the notice of
assessment from OFAC and Treasury, did you personally contact
them to visit with them about it or did you employ an attorney?
Ms. Meister. Oh, I personally, at that point.
Senator Dorgan. And I assume you told them what you
essentially told us this morning. What was their reaction?
Ms. Meister. Let me see. A period of time went by. I
completed a comprehensive inquiry of what I did there, et
cetera. Then as I recall, it was just to be pending, that I
would hear from them again.
Senator Dorgan. Mr. Harriman.
Mr. Harriman. I did contact OFAC when I received the pre-
penalty notice. At that point, I believe that if they had the
facts in front of them, the documentation that our organization
was participating and I was an official representative, that
they might be able to clear it up. After a short time speaking
on the phone with the contact at OFAC, it became clear that
that was not going to be the case, so I ended the conversation
there and began my own independent inquiries, starting with the
American Go Association, its president and other people who
have in the past had some interest in the Cuban travel. Only
after going through that and a couple other degrees of
separation did I find the Center for Constitutional Rights and
signed them as my counsel.
Senator Dorgan. Your testimony is helpful in that it
describes a range of experiences that people have had in
dealing with OFAC and the Treasury Department and in
confronting this statutory provision here in the United States
that prohibits the freedom to travel to Cuba except that which
has been approved.
Let me thank all of you for your testimony. Your complete
statement will be a part of the record, and I want to go on to
the other witnesses. You may be excused. Feel free to take a
seat and listen to the rest of the hearing. Thank you very much
for appearing here today.
Senator Dorgan. Next, we will ask for testimony from
Richard Newcomb, who is Director of the Office of Foreign
Assets Control, and James Carragher, the Coordinator for Cuban
Affairs at the Department of State. If you would please come
forward and take your chair at the table, we would appreciate
that.
Thank you very much for being with us. Mr. Newcomb, you and
I have visited on previous occasions. You are the Director of
Foreign Assets Control. Let me ask you to proceed, and
afterward we will ask Mr. James Carragher, the Coordinator for
Cuban Affairs at the State Department to proceed.
Mr. Newcomb, thank you very much.
STATEMENT OF RICHARD NEWCOMB, DIRECTOR, OFFICE OF
FOREIGN ASSETS CONTROL, DEPARTMENT OF THE
TREASURY
Mr. Newcomb. Thank you, Mr. Chairman. I am delighted to
have the opportunity to appear here this morning to discuss
restrictions on travel to Cuba and issues concerning the
administration and enforcement of restrictions on travel-
related transactions involving Cuba.
As you know, the Treasury's Office of Foreign Assets
Control is currently responsible for administering and
enforcing 24 economic sanctions programs, most recently, the
President's September 23 Executive Order targeting persons who
commit, threaten to commit, or support terrorism. With respect
to the embargo on Cuba, the President as recently as January 17
of this year has reasserted his commitment to the use of the
embargo and travel restrictions to encourage transition to
democracy in Cuba. When I speak of travel during the course of
this testimony, I refer specifically to restrictions on
transactions related to travel rather than simply to
restrictions on travel.
OFAC's jurisdiction under the Trading with the Enemy Act is
to prohibit or regulate commercial or financial transactions,
not travel per se. The licensing criteria set forth in the
Cuban Asset Control Regulations, implemented under the
authority of the statute, address transactions incident to
travel and other transactions that are directly incident to
those activities deemed consistent with U.S. foreign policy.
We enforce against transactions engaged in by persons
subject to U.S. jurisdiction when those transactions are
entered into without authorization. In contrast, travel to Cuba
that is fully hosted by Cuban or third country nationals where
nothing of value is provided in return is not covered by the
regulations. OFAC's jurisdiction under the Trading with the
Enemy Act to regulate these classes of transactions has
withstood judicial review and been confirmed by the United
States Supreme Court.
The licensing regime applicable to transactions involving
Cuba travel took its present form toward the end of the last
administration, with an emphasis on people-to-people contact
and family reunification. This is only the most recent
development in administration policy on the subject, however,
and the current status of Cuba travel is very much a legacy of
both political parties.
I have appended a chronology to my testimony demonstrating
how often this policy has shifted with respect to travel to
Cuba. In 1977, for example, President Carter lifted
restrictions on travel to Cuba in their entirety, such that all
travel-related transactions involving Cuba were authorized
under a general license. General license in OFAC parlance
constitute blanket authorization for those transactions set
forth in the general license in OFAC's regulations and are
self-selecting and self-executing. No further case-specific
permission is required to engage in transactions covered by
that general license.
Then in 1982, the pendulum swung in the other direction.
President Reagan imposed a prohibition on all travel-related
transactions. The preexisting general license was limited to
official U.S. or foreign government travel, visits to close
relatives, travel related to journalism, professional research
of an academic nature, and certain professional meetings.
From 1982 to early 1994, the general license authorizations
remained unchanged. Travel transactions for humanitarian
reasons, public performances, exhibitions, and similar
activities were specifically licensed on a case-by-case basis.
In 1993, under President Clinton, specific licenses were
made available for travel transactions related to educational,
religious, and human rights activities and the export or import
of informational materials.
In the summer of 1994, responding in part to Cuban policies
that resulted in thousands of Cuban rafters crossing the
Florida straits, President Clinton tightened OFAC's licensing
regime to require specific licenses for all the diplomats and
full-time journalists. U.S. persons seeking to visit close
relatives in Cuba instantly became by far the largest source of
specific license applications. The following year, the general
license was reinstated for professional research, professional
meetings, and the first family visit in circumstances of
extreme humanitarian need during any 12-month period.
Subsequent to the Pope's visit to Cuba in 1998, President
Clinton announced a new policy in 1999 to promote increased
people-to-people contacts in support of the Cuban people. The
result of this policy shift is reflected in the current 12
regulatory categories of activities for which travel-related
and other transactions are authorized, either by general or
specific license. General licenses continued to apply to
diplomats, full-time journalists, professional researchers,
certain professional meetings, and the first family visit per
12-month period. The requirement that the family visit take
place under circumstances of extreme humanitarian need,
however, was eliminated.
Over the years, Congress has been actively involved in the
formulation of policy with regard to Cuba generally and Cuba
travel in particular. In 1992, the Cuban Democracy Act added
civil penalty authority and required the creation of an
administrative hearing process for civil penalty cases and the
establishment of an OFAC satellite office in Miami to assist in
administering and enforcing the Cuba program. The Cuban
Libertarte Act of 1996 required that the underlying
prohibitions as set forth in the regulations are to remain in
place until there is a transition to a democratically-elected
government in Cuba.
Finally, in 2000, Congress passed the Trade Sanctions
Reform and Export Enhancement Act, restricting the President's
discretion authority to authorize certain travel-related
transactions to, from, or within Cuba. Under Section 910 of
TSRA, that authority is restricted to travel-related
transactions related to activities expressly authorized in
paragraphs one through 12 of Section 515.560 of Title 31 CFR or
any section referred to in any of the paragraphs one through
12. Any activity falling outside of these 12 categories is
defined in this section of the TSRA as tourism and may not be
the basis for issuing a license.
Section 910 of TSRA also expressly provides for case-by-
case review of license applications for travel in support of
agricultural exports, an activity referred to in paragraph 12
of 515.560, but in so doing restricted the President's
discretion to authorize such trips by general license.
I have appended a synopsis of these 12 categories of
activities for which travel-related transactions may be
authorized to this testimony for ease of reference. I have also
appended our brochure on Cuba entitled, ``What You Need to Know
About the U.S. Embargo,'' which covers all facets of this
economic sanctions program.
OFAC processes a large number of license applications
relating to the Cuban embargo the majority of which cover
travel. License applications relating to subsequent family
visits, freelance journalism, educational activities by
accredited U.S. financial academic institutions, religious
activities, informational materials, and agriculture and
medical exports are processed by our Miami office. During
calendar year 2001, the Miami office handled over 19,000
license applications for travel, particularly family visits,
and at least as many attendant telephone calls.
Another of the office's primary responsibilities is to
regulate certain activities of 182 entities nationwide which
are currently licensed to provide travel and carrier service to
authorized travelers and to remit funds to Cuban households on
behalf of individuals who are subject to U.S. jurisdiction in
the amounts and frequency authorized under the regulations
implementing the Service Provider Program.
Almost two-thirds of these licensed entities are
headquarted in Miami. Integral to this regulatory process is
the licensing and compliance oversight of the direct charter
flights to Cuba currently authorized from Miami, Los Angeles,
and New York to carry authorized travelers. I have appended a
copy of OFAC Circular 2001 setting forth guidelines applicable
to the Service Provider Program.
The Miami office also investigates alleged violations of
the regulations and processes enforcement referrals to the U.S.
Customs Service and the U.S. Coast Guard.
The remaining travel-related license applications are
processed at OFAC's main office here in Washington, D.C., along
with all non-travel license applications involving Cuba,
relating to everything from blocked assets to international
corporate acquisitions. The travel-related applications include
those involving professional research and attendance at
professional meetings not covered by the general license,
educational exchanges not involving academic study pursuant to
a grade program, participation in a public performance, clinic,
workshops, athletic or other competition or exhibit in Cuba,
support for the Cuban people as provided by the Cuban Democracy
Act, humanitarian projects, activities of private foundations,
a research or educational institute, and exports of medicine or
medical supplies and certain telecommunications equipment or
reexports of U.S.-origin ag commodities from a third country to
Cuba.
During calendar year 2001, OFAC's Washington staff handled
1,300 license applications for travel in these various
categories, with support from our general counsel. We endeavor
to process license applications within 2 weeks absent the need
for interagency review, and most travel-related applications
fall within this category. There are many instances, however,
where a given application fails to meet the applicable
licensing criteria. Depending upon the circumstances, the
licensing officer may contact the applicant to request
additional information or clarification or prepare a letter of
denial.
Certain applications may have been delayed by the anthrax
threat, which caused the main Treasury mailroom to shut down
for several weeks. Mail continues now to be delayed for up to 2
months because of the decontamination process that has since
been put into place.
Recent events have, unfortunately, given rise to
misperceptions on the part of the U.S. public regarding travel
to Cuba. While travel for purposes of tourism or most business
transactions remains strictly prohibited, travel guides to Cuba
are readily available in bookstores or on the Internet
portraying Cuba as just another Caribbean tourist destination.
The Pope's visit to Cuba in 1998, President Clinton's 1999
people-to-people initiative, the recent surge in popularity of
Cuban music and culture, and the Elian Gonzalez case have all
served in one way to focus the American public's interest and
attention on this country. It appears that a great deal of
current frustration regarding the denial of license
applications involves a disconnect in what constitutes an
educational exchange or people-to-people contact. These terms
are often used in license applications but are not accompanied
by materials sufficient to demonstrate eligibility according to
the licensing criteria.
We will continue to work to streamline these licensing
criteria and at the same time promote greater transparency and
understanding by the public. Educational exchanges not
involving academic study pursuant to a degree program must take
place under the auspices of an organization that sponsors and
organizes such programs to promote people-to-people contact.
We have published explanatory guidelines on our Internet
website. These guidelines provide, in part, that people-to-
people contact normally entails direct interaction between U.S.
and Cuban individuals not affiliated with the Cuban government
and normally does not involve meetings with Cuban government
officials.
OFAC evaluates, among other things, whether the U.S.
program is structured to result in direct and individual
dialogue with the Cuban people and whether the proposed
activities with the Cuban people are educational in nature,
such as participation in joint activities that may include
seminars, lectures, and workshops. We also evaluate whether
each traveler may be fully participating in all of the proposed
people-to-people activities.
Educational exchange involving people-to-people contact
does not include travel for purposes of, for example, a
railroad hobbyist, for example, who desires to see aging
locomotives in Cuba, or a U.S. city's desire to establish a
sister city relationship with government officials of a Cuban
city or province, or a group of architects getting together to
take a walking tour of Havana. Such proposed itineraries are
not made more acceptable by a traveler's commitment to
distribute amounts of over-the-counter medicines or visit Cuba
clergy or dissidents during the trip when such contacts are
minimal and clearly not the primary focus of the trip.
Two-year licenses for such exchanges issued at the advent
of the people-to-people initiative in 1999 are now coming up
for renewal. As we review activities undertaken pursuant to
those licenses during the past 2 years, it appears that not all
of the activities that took place pursuant to those licenses
entirely conformed to the intent of the licenses as issued. For
example, some holders allowed other groups to travel to Cuba
under the authority of their licenses when that particular use
of the license was not contemplated in the original submission
for review.
Accordingly, we are exercising a heightened degree of
scrutiny in our review of those requests for renewals and are
incorporating reporting requirements into the renewed licenses
to ensure better compliance.
Finally, there has also been some confusion with respect to
our licensing criteria with respect to applications to permit
persons to travel to Cuba in conjunction with the exportation
of agricultural commodities authorized by the Department of
Commerce. Consistent with the TSRA, the regulations provide
that travel and other transactions that are directly incident
to marketing sales negotiation, accompanying delivery, or
servicing of exports that appear consistent with the export
licensing policy of the Department of Commerce may be
authorized by a specific license.
This licensing criterion does not include trade missions to
discuss transactions that are not currently authorized, such as
direct U.S. financing with a view toward eventual end of the
embargo. It also does not permit individuals with no apparent
nexus to the criterion to join the trip simply out of personal
interest or a familial relationship to another traveler. While
there is no limitation on numbers of participants in any given
group, this nexus must exist between each traveler and the
activity in which he or she seeks to engage. Large numbers are
sometimes an indication that no such nexus may exist, but it is
not dispositive.
We have just issued explanatory guidelines on our website
to provide additional guidance to persons applying for these
licenses.
Prior to 1992, OFAC lacked civil penalty authority to
enforce the Cuban embargo. Criminal prosecution of travel-
related violations was extremely rare. In my experience, U.S.
Attorneys often do not accept travel violations for criminal
prosecution absent other illegal commercial or financial
transactions by the traveler involving Cuba or Cuban nationals.
The lack of criminal prosecutions is widely reported in the
media and almost any travel publication that discusses Cuba.
With the passage of the Cuban Democracy Act in 1992, the
Trading with the Enemy Act was amended to provide that civil
fines of up to $50,000, now adjusted for inflation to $55,000,
could be levied for violation of the regulations. The Cuban
Democracy Act also required that the Secretary of the Treasury
impose such penalties only on the record after an opportunity
for an agency hearing with the right to pre-hearing discovery.
In 1996, the Libertarte Act increased the number of
categories of violations for which civil penalties may be
sought to include all travel-related violations. In February
1997, OFAC promulgated proposed regulations to govern the
hearings, and in March 1998 published final regulations.
Judicial review by Article III courts is available once the
administrative law judge's civil penalty determination is made
final.
No administration review process is currently in place,
despite the efforts over the years to establish such a process.
I am pleased to note, however, that Treasury Secretary O'Neill
has approved a proposal for the Treasury Department funding of
two administrative law judges with necessary support staff.
The majority of OFAC's enforcement actions with respect to
the Cuban embargo concern individuals who engage in
unauthorized travel transactions related to Cuba tourism. For
many reasons, including those previously articulated,
increasingly larger numbers of Americans disregard the law and
travel to Cuba purely for tourism. Interest in Cuba on the part
of otherwise law-abiding Americans has also been exploited by
foreign travel agencies that falsely advertise trips to Cuba,
claiming that such travel is legal. OFAC has endeavored to
correct these agencies' misrepresentations by contacting them
directly and placing advisories for all to see on our website.
Beyond tourism, certain organizations and individuals view
travel to Cuba as an act of civil disobedience. Organized
challenges to the embargo have taken the form of protests
involving unlicensed travel transactions and the unlicensed
export of goods.
There are passionate constituencies on both sides of this
issue, those who believe that we do not do enough to stem the
flow of U.S. tourist travel to Cuba and those who believe that
any regulation of travel is an infringement of their
constitutional rights. We have worked hard to develop
procedures with the Customs Service to identify unlicensed
travelers returning to the United States. We have endeavored to
enforce these restrictions in an even-handed manner that is
consistent with our responsibilities under the law.
Returning Cuban travelers are identified by Customs agents
and inspectors at ports of entry in the United States or at
U.S. pre-clearance facilities in Canada or the Bahamas. Those
travelers who do not claim a general or specific license from
OFAC to engage in Cuba travel-related transactions are
routinely referred to OFAC for investigation and civil penalty
action. This workload is an extremely heavy drain on finite
enforcement and legal resources.
When an enforcement case is referred for civil penalty
consideration, the administrative record either contains
evidence of transactions involving Cuba or the pre-penalty
notice is premised on a rebuttable presumption that an
individual who traveled to Cuba necessarily engaged in
transactions involving Cuba. This presumption appears in OFAC's
regulations and may be rebutted by documentation establishing
that the traveler was fully hosted by a Cuban or third country
national. If the presumption is not rebutted, a pre-penalty
notice with statement of rights and procedures attached is then
issued alleging violations of the embargo.
In many instances, individuals request an informal
settlement before OFAC issues a pre-penalty notice. Typical
penalty assessments for unauthorized travel range from $5,000
to $7,500, but the majority of cases are settled in amounts
ranging from roughly $2,000 to $5,000, depending on the
circumstances.
A number of pre-penalty notice recipients, however, request
administrative hearings, often with the assistance of public
interest legal organizations. As previously mentioned, these
cases are awaiting the funding and selection of administrative
law judges.
I have appended a chart that depicts our travel-related
enforcement case openings and referral for civil penalty
review, as well as the number of Cuba travel pre-penalty
notices issued for the period January 1996 through June 2001.
As shown, over 4,500 travel cases were opened for
investigation. Nearly 1,700 cases were referred for civil
penalty review, and pre-penalty notices were issued in 947
cases. Again, individuals request informal settlements with
OFAC without the issuance of a pre-penalty notice.
At this time, we devote approximately five percent of our
budget and seven full-time equivalent positions to the
administration and enforcement of restrictions involving travel
to Cuba. In addition, our general counsel devotes significant
resources in support of these efforts. We remain committed to
carrying out the President's mandate that enforcement of the
Cuban embargo be enhanced under current law. OFAC remains
committed to carrying out the President's mandate that
enforcement of the Cuban embargo be enhanced under current law.
We will continue to administer and enforce the restrictions on
travel-related transactions involving Cuba in a manner that is
timely, fair, and consistent with the law.
Thank you, Mr. Chairman, for giving me the opportunity to
read this full statement into the record.
Prepared Statement
Senator Dorgan. Mr. Newcomb, thank you. I did not interrupt
you or ask you to summarize, inasmuch as there were five
witnesses prior to you talking about OFAC, and inasmuch as Mr.
Carragher also has a rather short statement.
[The statement follows:]
Prepared Statement of R. Richard Newcomb
introduction
Chairman Dorgan, Members of the Subcommittee, Thank you for the
opportunity today to address issues concerning the administration and
enforcement of restrictions on travel-related transactions involving
Cuba. As you know, the Treasury Department's Office of Foreign Assets
Control (``OFAC'') is currently responsible for administering and
enforcing 24 economic sanctions programs, most recently the President's
September 23 Executive Order targeting persons who commit, threaten to
commit, or support terrorism. With respect to the embargo on Cuba, the
President, as recently as January 17, has reasserted his commitment to
the use of the embargo and travel restrictions to encourage a
transition to democracy in Cuba. (attachment 1)
When I speak about travel during the course of this testimony, I
refer specifically to restrictions on ``transactions related to
travel,'' rather than simply to ``restrictions on travel.'' OFAC's
jurisdiction under the Trading With the Enemy Act (``TWEA'') is to
prohibit or regulate commercial or financial transactions, not travel
per se. The licensing criteria set forth in the Cuban Assets Control
Regulations, 31 CFR Part 515 (the ``Regulations''), implemented under
the authority of this statute, address transactions incident to travel
and other transactions that are directly incident to those activities
deemed consistent with U.S. foreign policy.
We enforce against transactions engaged in by persons subject to
U.S. jurisdiction when those transactions are entered into without
authorization. In contrast, travel to Cuba that is fully hosted by
Cuban or third-country nationals, where nothing of value is provided in
return, is not covered by the Regulations. OFAC's jurisdiction under
TWEA to regulate these classes of transactions has withstood judicial
review and been confirmed by the United States Supreme Court.\1\
---------------------------------------------------------------------------
\1\ 1 The Supreme Court upheld restrictions on travel-related
transactions with Cuba in Regan v. Wald, 468 U.S. 111 (1984). The Court
held that TWEA provides an adequate statutory basis for the 1982
amendment to the Regulations restricting the scope of permissible
travel-related transactions with Cuba and Cuban nationals. The Court
rejected the argument that such a regulation violates the right to
travel guaranteed by the Due Process Clause of the Fifth Amendment to
the Constitution. It held that, in light of the traditional deference
given to executive judgment in the realm of foreign policy, the Fifth
Amendment right to travel did not overcome the foreign policy
justifications supporting the President's decision to curtail the flow
of currency to Cuba by restricting financial transactions relating to
travel to Cuba. The Court rejected the respondents' argument that a
restriction on travel was inappropriate because, in their view, there
was no ``emergency'' at the time with respect to Cuba and that the
relations between Cuba and the United States were then subject to
``only the normal' tensions inherent in contemporary international
affairs.'' 468 U.S. at 242. The Court declined to second-guess the
Executive branch on this foreign policy issue. Id. See also: Freedom to
Travel Campaign v. Newcomb, 82 F 3d 1431 (9th Cir. 1996).
---------------------------------------------------------------------------
licensing
Historical Context
The licensing regime applicable to transactions involving Cuba
travel took its present form toward the end of the last administration,
with an emphasis on people-to-people contact and family reunification.
This is only the most recent development in administration policy on
the subject, however, and the current status of Cuba travel is very
much a legacy of both political parties. I have appended a chronology
demonstrating how often the policy has shifted with respect to Cuba
travel. (attachment 2)
In 1977, for example, President Carter lifted restrictions on
travel to Cuba in their entirety, such that all travel-related
transactions involving Cuba were authorized under a general license.
General licenses in OFAC parlance constitute blanket authorization for
those transactions set forth in the general license in OFAC's
regulations, and are self-selecting and self-executing. No further
case-specific permission is required to engage in transactions covered
by that general license. Then, in 1982, the pendulum swung in the other
direction, and President Reagan reimposed a prohibition on all travel-
related transactions. The pre-existing general license was limited to
official U.S. or foreign government travel, visits to close relatives,
and travel related to journalism, professional research of an academic
nature and certain professional meetings.
From 1982 to early 1994, the general license authorization remained
unchanged. Travel transactions for humanitarian reasons, public
performances, exhibitions, and similar activities were specifically
licensed on a case-by-case basis. In 1993, under President Clinton,
specific licenses were made available for travel transactions related
to educational, religious, and human rights activities and the export
or import of informational materials.
In the summer of 1994, responding in part to Cuban policies that
resulted in thousands of Cuban rafters crossing the Florida Straits,
President Clinton tightened OFAC's licensing regime to require specific
licenses for all but diplomats and full-time journalists. U.S. persons
seeking to visit close relatives in Cuba instantly became by far the
largest source of specific license applications. The following year,
the general license was reinstated for professional research,
professional meetings and the first family visit in circumstances of
``extreme humanitarian need'' during any 12-month period.
Subsequent to the Pope's visit to Cuba in 1998, President Clinton
announced a new policy in 1999 to promote increased people-to-people
contacts in support of the Cuban people. The result of this policy
shift is reflected in the current twelve regulatory categories of
activities for which travel-related and other transactions are
authorized, either by general or specific license. General licenses
continue to apply to diplomats, full-time journalists, professional
researchers, certain professional meetings and the first family visit
per 12-month period. The requirement that the family visit take place
under circumstances of ``extreme'' humanitarian need, however, was
eliminated.
Existing categories were expanded, most requiring case-by-case
authorization by specific license, including educational exchanges,
religious activities, athletic competition and public performances and
exhibitions. In addition, consistent with an overall policy development
applicable to most countries subject to economic sanctions programs
that liberalized the export of food and medicine, travel and other
transactions directly incident to the marketing, sales negotiation,
accompanied delivery or servicing of agricultural exports to Cuba
became eligible for authorization by specific license, provided that
the exports are of the kind licensed by the Department of Commerce.
Over the years, Congress has been actively involved in the
formulation of policy with regard to Cuba generally, and Cuba travel in
particular. In 1992, the Cuban Democracy Act (the ``CDA'') added civil
penalty authority and required the creation of an administrative
hearing process for civil penalty cases and the establishment of an
OFAC satellite office in Miami to assist in administering and enforcing
the Cuba program. The Cuban Liberty and Democratic Solidarity
(Libertad) Act of 1996 (the ``Libertad Act'') required that the
underlying prohibitions as set forth in the Regulations are to remain
in place until there is a transition to a democratically-elected
government in Cuba.\2\
---------------------------------------------------------------------------
\2\ 2 In a December 1998 report, the General Accounting Office
concluded that this provision of the Libertad Act did not eliminate the
President's authority to make modifying amendments to the Regulations,
short of lifting the underlying prohibitions. See: Cuban embargo:
Selected Issues Relating to Travel, Exports, and Telecommunications,
GAO/NSIAD-99-10.
---------------------------------------------------------------------------
Finally, in 2000, Congress passed the Trade Sanctions Reform and
Export Enhancement Act (the ``TSRA''), restricting the President's
discretionary authority to authorize certain travel-related
transactions to, from, or within Cuba. Under section 910 of the TSRA,
that authority is restricted to travel-related transactions related to
activities ``. . . expressly authorized in paragraphs (1) through (12)
of section 515.560 of title 31, Code of Federal Regulations, or in any
section referred to in any of such paragraphs (1) through (12) (as such
sections were in effect on June 1, 2000).'' Any activity falling
outside of these twelve categories is defined in this section of the
TSRA as ``tourism'' and may not be the basis for issuing a license.
Section 910 of the TSRA also expressly provides for case-by-case
review of license applications for travel in support of agricultural
exports--an activity referred to in paragraph (12) of section 515.560
of the Regulations--but in so doing restricted the President's
discretion to authorize such trips by general license. I have appended
a synopsis of these twelve categories of activities for which travel-
related transactions may be authorized to this testimony for ease of
reference. (attachment 3) I have also appended our brochure on Cuba
entitled: ``What You Need to Know About the U.S. Embargo,'' which
covers all facets of this economic sanctions program. (attachment 4)
licensing
Administrative process.--OFAC processes a large number of license
applications relating to the Cuba embargo, the majority of which
concern travel. License applications relating to subsequent family
visits, free-lance journalism, educational activities by accredited
U.S. academic institutions, religious activities, informational
materials and agricultural and medical exports are processed by OFAC's
Miami office. During calendar year 2001, the Miami office handled
19,045 license applications for travel, particularly family visits, and
at least as many attendant telephone calls.
Another of the office's primary responsibilities is to regulate
certain activities of 182 entities nationwide, which are currently
licensed to: (1) provide travel and carrier services to authorized
travelers; and (2) remit funds to Cuban households on behalf of
individuals who are subject to U.S. jurisdiction in the amounts and
frequency authorized under the Regulations (the ``Service Provider
Program''). Almost two-thirds of these licensed entities are
headquartered in Miami. Integral to this regulatory program is the
licensing and compliance oversight of the direct charter flights to
Cuba currently authorized from Miami, Los Angeles and New York to carry
authorized travelers. I have appended a copy of OFAC's Circular 2001,
setting forth guidelines applicable to the Service Provider Program.
(attachment 5) The Miami office also investigates alleged violations of
the Regulations and processes enforcement referrals from the U.S.
Customs Service and the U.S. Coast Guard.
The remaining travel-related license applications are processed at
OFAC's main office in Washington, DC, along with all non-travel license
applications involving Cuba, relating to everything from blocked
estates to international corporate acquisitions. The travel-related
applications include those involving professional research and
attendance at professional meetings not covered by the general license,
educational exchanges not involving academic study pursuant to a degree
program, participation in a public performance, clinic, workshop,
athletic or other competition, or exhibition in Cuba, support for the
Cuban people as provided in the CDA, humanitarian projects, activities
of private foundations or research or educational institutes, and
exports of medicine or medical supplies and certain telecommunications
equipment or reexports of U.S.-origin agricultural commodities from a
third country to Cuba. During calendar year 2001, OFAC's Washington, DC
staff handled 1,283 license applications for travel in these various
categories, with support from Treasury's Office of the General Counsel.
We endeavor to process license applications within two weeks absent
the need for interagency review, and most travel-related applications
fall within this category. There are many instances, however, where a
given application fails to meet the applicable licensing criteria.
Depending upon the circumstances, the licensing officer may contact the
applicant to request additional information or clarification or prepare
a letter of denial. Certain applications may have been delayed by the
anthrax threat, which caused the main Treasury Department mailroom to
shut down for several weeks. Mail continues to be delayed for up to two
months because of the decontamination process that has since been put
into place.
Licensing Criteria.--Recent events have unfortunately given rise to
misperceptions on the part of the U.S. public regarding travel to Cuba.
While travel for purposes of tourism or most business transactions
remains strictly prohibited, travel guides to Cuba are readily
available in any bookstore or on the internet portraying Cuba as just
another Caribbean tourist destination. The Pope's visit to Cuba in
1998, President Clinton's 1999 people-to-people initiative, the recent
surge in popularity of Cuban music and culture and the Elian Gonzales
case have all served to focus the American public's interest and
attention on this country.
It appears that a great deal of the current frustration regarding
the denial of license applications involves a disconnect on what
constitutes an ``educational exchange'' or ``people-to-people
contact.'' These terms are often used in license applications but are
not accompanied by material sufficient to demonstrate eligibility
according to the applicable licensing criteria. We will continue to
streamline these licensing criteria and, at the same time, promote
greater transparency and understanding by the public.
Educational exchanges not involving academic study pursuant to a
degree program must take place under the auspices of an organization
that sponsors and organizes such programs to promote people-to-people
contact. We have published explanatory guidelines on our Internet
website. (attachment 6) These guidelines provide, in part, that people-
to-people contact normally entails direct interaction between U.S. and
Cuban individuals not affiliated with the Cuban government, and
normally does not involve meetings with Cuban government officials.
OFAC evaluates, among other things, whether the U.S. program is
structured to result in direct and individual dialogue with the Cuban
people and whether the proposed activities with the Cuban people are
educational in nature, such as participation in joint activities that
may include seminars, lectures and workshops. OFAC also evaluates
whether each traveler will be fully participating in all of the
proposed people-to-people activities.
Educational exchange involving people-to-people contact does not
include travel for purposes of, for example: railroad hobbyists' desire
to see aging locomotives in Cuba; a U.S. city's desire to establish a
sister city relationship with government officials of a Cuban city or
provence, or a group of architects getting together to take a walking
tour of Havana. Such proposed itineraries are not made more acceptable
by a traveler's commitment to distribute a small amount of over-the-
counter medicines or visit Cuban clergy or dissidents during the trip,
when such contacts are minimal and clearly not the primary focus of the
trip.
Two-year licenses for such exchanges issued at the advent of the
people-to-people initiative in 1999 are now coming up for renewal. As
we review activities undertaken pursuant to those licenses during the
past two years, it appears that not all of the activities that took
place pursuant to those licenses entirely conformed to the intent of
the licenses as issued. For example, some license holders allowed other
groups to travel to Cuba under the authority of their licensees when
that particular use of the license was not contemplated in the original
submission to OFAC. Accordingly, we are exercising a heightened degree
of scrutiny in our review of these requests for renewals, and are
incorporating reporting requirements into the renewed licenses to
ensure better compliance.
Finally, there has also been some confusion with respect to our
licensing criteria with respect to applications to permit persons to
travel to Cuba in conjunction with the exportation of agricultural
commodities authorized by the Department of Commerce. Consistent with
the TSRA, the Regulations provide that travel and other transactions
that are directly incident to the ``marketing, sales negotiation,
accompanied delivery, or servicing of exports that appear consistent
with the export licensing policy of the Department of Commerce'' may be
authorized by specific license.\3\
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\3\ General transportation services relating to these exports are
authorized by general license. Consistent with the CDA, vessels are
authorized by another OFAC general license to carry goods to Cuba that
are authorized for export by the Department of Commerce provided that:
(1) they have not engaged in trade or purchased or provided services in
Cuba within 180 days or; (2) the vessels are not otherwise carrying
goods or passengers in which Cuba or a Cuban national has an interest.
Vessels not qualifying for this general authorization may be
specifically licensed. Financing of these exports is restricted by the
TSRA to payment of cash in advance or to financing by third country
financial institutions, except that such financing may be confirmed or
advised by a United States financial institution.
---------------------------------------------------------------------------
This licensing criterion does not include trade missions to discuss
transactions that are not currently authorized, such as direct U.S.
financing, with a view toward the eventual end of the embargo. It also
does not permit individuals with no apparent nexus to this criterion to
join the trip, simply out of personal interest or a familial
relationship to another traveler. While there is no limitation on
numbers of participants in any given group, this nexus must exist
between each traveler and the activity in which he or she seeks to
engage. Large numbers are sometimes an indication that no such nexus
exists. We have just issued explanatory guidelines on our website to
provide additional guidance to persons applying for these licenses.
(attachment 7)
enforcement
Historical Context
Prior to 1992, OFAC lacked civil penalty authority to enforce the
Cuban embargo. Criminal prosecution of travel-related violations was
extremely rare. In my experience, U.S. Attorneys often do not accept
travel violations for criminal prosecution absent other illegal
commercial or financial transactions by the traveler involving Cuba or
Cuban nationals. The lack of criminal prosecutions is widely reported
in the media and in almost any travel publication that discusses Cuba.
With the passage of the CDA in 1992, the Trading With the Enemy Act
(``TWEA'') was amended to provide that civil fines of up to $50,000
(now adjusted for inflation to $55,000) could be levied for violations
of the Regulations. The CDA also required that the Secretary of the
Treasury impose such penalties ``only on the record after opportunity
for an agency hearing . . . with the right to pre-hearing discovery.''
In 1996, the LIBERTAD Act increased the number of categories of
violations for which civil penalties may be sought to include all
travel-related violations. In February 1997, OFAC promulgated proposed
regulations to govern the hearings, and in March 1998 published final
regulations. Judicial review by Article III courts is available once
the Administrative Law Judge's civil penalty determination is made
final.
No administrative review process is currently in place, despite
efforts over the years to establish such a process. I am pleased to
note, however, that Secretary O'Neill has approved a proposal for
Treasury Department funding of two Administrative Law Judges with the
necessary support staff.
investigation
The majority of OFAC's enforcement actions with respect to the Cuba
embargo concern individuals who engage in unauthorized travel
transactions related to Cuba tourism. For many reasons, including those
previously articulated, increasingly larger numbers of Americans
disregard the law and travel to Cuba purely for tourism. Interest in
Cuba on the part of otherwise law-abiding Americans has also been
exploited by foreign travel agencies that falsely advertise trips to
Cuba claiming that such travel is legal. OFAC has endeavored to correct
these agencies' misrepresentations by contacting them directly and
placing advisories for all to see on our website. (attachment 8)
Beyond tourism, certain organizations and individuals view travel
to Cuba as an act of civil disobedience. Organized challenges to the
embargo have taken the form of protests involving unlicensed travel
transactions and the unlicensed export of goods. There are passionate
constituencies on both sides of this issue, those who believe that we
do not do enough to stem the flow of U.S. tourist travel to Cuba and
those who believe that any regulation of travel is an infringement of
their constitutional rights.
OFAC has worked hard to develop procedures with the Customs Service
to identify unlicensed travelers returning to the United States from
Cuba. We have endeavored to enforce these restrictions in an evenhanded
manner that is consistent with our responsibilities under the law.
Returning Cuba travelers are identified by Customs agents and
inspectors at ports of entry in the United States or at U.S. Customs
Preclearance Facilities in Canada or the Bahamas. Those travelers who
do not claim a general or specific license from OFAC to engage in Cuba
travel-related transactions are routinely referred to OFAC for
investigation and civil penalty action. This workload is an extremely
heavy drain on finite enforcement and legal resources.
civil penalties
When an enforcement case is referred for civil penalty
consideration, the administrative record either contains evidence of
transactions involving Cuba or the prepenalty notice is premised upon a
rebuttable presumption that an individual traveling to Cuba necessarily
engaged in transactions involving Cuba. This presumption appears in
OFAC's Regulations and may be rebutted by documentation establishing
that the traveler was fully hosted by a Cuban or third-country
national. If the presumption is not rebutted, a prepenalty notice with
statement of rights and procedures attached is then issued alleging
violations of the embargo. (attachment 9) In many instances,
individuals request an informal settlement before OFAC issues a
prepenalty notice. Typical penalty assessments for unauthorized travel
range from $5,000 to $7,500, but the majority of cases are settled in
amounts ranging from roughly $2,000 to $5,000, depending upon the
circumstances. A number of prepenalty notice recipients, however,
request administrative hearings, often with the assistance of public
interest legal organizations. As previously mentioned, these cases are
awaiting the funding and selection of Administrative Law Judges.
I have appended a chart that depicts our Cuba travel enforcement
case openings and referrals for civil penalty review, as well as the
number of Cuba travel Prepenalty Notices issued, for the period of
January 1996 through June 2001. (attachment 10) As shown, 4,535 travel
cases were opened for investigation; 1,690 cases were referred for
civil penalty review; and Prepenalty Notices were issued in 947 cases.
Again, many individuals request informal settlements with OFAC without
the issuance of prepenalty notices.
conclusion
At this time, OFAC devotes approximately 5 percent of its budget
and 7 full-time equivalent positions to the administration and
enforcement of restrictions involving travel to Cuba. In addition,
Treasury's Office of the General Counsel devotes significant resources
in support of these efforts. OFAC remains committed to carrying out the
President's mandate that enforcement of the Cuba embargo be enhanced
under current law. OFAC will continue to administer and enforce the
restrictions on travel-related transactions involving Cuba in a manner
that is timely, fair, and consistent with that law.
[Clerk's note.--The attachments can be found in the subcommittee
files.]
Senator Dorgan. Mr. Carragher is the Coordinator for Cuban
Affairs at the Department of State. Thank you for being with
us. Please proceed.
STATEMENT OF JAMES CARRAGHER, COORDINATOR FOR CUBAN
AFFAIRS, DEPARTMENT OF STATE
Mr. Carragher. Mr. Chairman, staff, other distinguished
guests, thank you for the opportunity to be with you this
morning.
The administration's Cuba policy goal is a rapid, peaceful
transition to a democratic government characterized by strong
support for human rights and an open market economy. One
important tool to achieve that goal is engagement between
people, outreach by everyday Americans to everyday Cubans.
Outreach introduces the best of the United States to the Cuban
people, supports the development of civil society institutions,
and brings alternative points of view to the island.
However, travel outside the authority of the Cuban Assets
Control Regulations does not contribute to outreach or to our
policy goal in Cuba. Instead, it can help to prop up a regime
which continues to harass and imprison its people who dare to
criticize their government.
The Treasury Department's Office of Foreign Assets Control
is responsible for authorizing persons subject to U.S.
jurisdiction to engage in travel-related transactions for
travel to Cuba. In the vast majority of applications for
specific licenses, all of which require case-by-case review,
OFAC is able to make a clear-cut determination on whether to
issue a specific license based on the application, the relevant
regulations, and existing policy.
In some instances, when OFAC believes that an application
presents foreign policy implications that have not been
previously addressed, OFAC refers the application to the
Department of State for review. The Department consults
internally and with the NSC. It then typically provides foreign
policy guidance to OFAC as to whether or not the proposed
activity is consistent with current U.S. Government policy and
regulations. This review process assures Department of State
input on applications that affect the President's foreign
policy.
Prepared Statement
I believe that this process and OFAC's impartial and even-
handed approach to each license application assure that
authorized travel-related transactions follow both the letter
and the spirit of the law and that they further administration
policy goals. Thank you, Mr. Chairman.
Senator Dorgan. Mr. Carragher, thank you very much.
[The statement follows:]
Prepared Statement of James Carragher
Mr. Chairman, Committee Members, staff, and other distinguished
guests, thank you for the opportunity to be with you this morning.
The Administration's Cuba policy goal is a rapid, peaceful
transition to a democratic government characterized by strong support
for human rights and an open market economy. One important tool to
achieve that goal is engagement between people--outreach by everyday
Americans to everyday Cubans. Outreach introduces the best of the
United States to the Cuban people, supports the development of civil
society institutions and brings alternative points of view to the
island. However, travel outside the authority of the Cuban Assets
Control Regulations does not contribute to outreach or to our policy
goal in Cuba. Instead it can help to prop up a regime which continues
to harass and imprison its people who dare to criticize their
government.
The Treasury Department's Office of Foreign Assets Control is
responsible for authorizing persons subject to U.S. jurisdiction to
engage in travel-related transactions for travel to Cuba. In the vast
majority of applications for specific licenses, all of which require
case-by-case review, OFAC is able to make a clear-cut determination on
whether to issue a specific license based on the application, the
relevant regulations and existing policy. In some instances, when OFAC
believes an application presents foreign policy implications that have
not been previously addressed, OFAC refers the application to the
Department of State for review. The Department consults internally and
with the NSC. It then typically provides foreign policy guidance to
OFAC as to whether or not the proposed activity is consistent with
current U.S. Government policy and regulations. This review process
assures Department of State input on applications that affect the
President's foreign policy.
I believe that this process and OFAC's impartial and evenhanded
approach to each license application assure that authorized travel-
related. transactions follow both the letter and the spirit of the law
and further Administration policy goals.
Thank you, Mr. Chairman.
Senator Dorgan. I have a series of questions. I will skip
around a bit.
First, I believe, Mr. Newcomb, you indicated that as a
result of the announcement that I referred to in July of last
year by President Bush to step up enforcement with respect to
travel Cuba, you have stepped up enforcement, is that the case?
Mr. Newcomb. Mr. Chairman, following that announcement, we
engaged in discussions to determine how that may be implemented
and were cut short by the attacks of September 11 and virtually
all available free resources have been devoted to that
terrorist attack. We have had discussions about this, but as of
this point, that initiative has not fully been implemented.
Senator Dorgan. In your written testimony at page 12, you
say, ``accordingly, we are exercising a heightened degree of
scrutiny in our review of requests for renewals.'' There, you
are talking about licenses.
Mr. Newcomb. Yes.
Senator Dorgan. And I thought I heard you say that when the
President talked about his policy last July of increasing
enforcement with respect to the travel ban in Cuba, Treasury
and OFAC complied with the President's request.
Mr. Newcomb. We are, but we have no additional resources
applied to those activities at this time. Any available
additional resources have been applied to the terrorist attack.
But the review of license applications to determine compliance
with the people-to-people exchanges and the group educational
licenses, of course, is being reviewed carefully so that they
are consistent with existing policy.
Senator Dorgan. In fact, you refer to heightened scrutiny,
so that would suggest to me that you are doing what the
President has asked you to do.
One person who called my office about this matter who had
received a notice from OFAC said that an OFAC employee told him
he had been targeted because OFAC employees were ``surfing the
web,'' to spot people who post information about traveling to
Cuba. Is that one approach that you use to try to determine who
might have traveled to Cuba? Do you have employees surfing the
web?
Mr. Newcomb. Your reading that right now is the first time
I have heard that particular statement. I would not rule out
the fact that we use all resources available to us to determine
unlawful activity, but that is not prescribed policy for
enforcement of this program. Again, I would not rule that out,
but that is not something we have institutionalized office-
wide.
Senator Dorgan. You indicated in a letter to me that you
have--I believe you have 129 people working at OFAC and seven
of them are working full-time with respect to enforcing the
travel ban with Cuba. Is that correct?
Mr. Newcomb. That is correct.
Senator Dorgan. So about seven employees full-time and
about $1 million, roughly, on enforcing the travel ban?
Mr. Newcomb. I am not sure exactly about the dollar amount,
but that is approximately correct.
Senator Dorgan. That is what your agency is reporting here.
Mr. Newcomb. Then that is fine.
Senator Dorgan. Now, you raised the issue of terrorism and
I raised that, as well, in my opening statement. You know that
since September 11, there has been a substantial amount of
interest in making sure that all necessary resources are used
to respond to the terrorist threats against our country and to
track the mechanisms by which terrorists finance these attacks.
OFAC, of course, is one of the key agencies that we rely on to
do that. Incidentally, I think OFAC, along with FINCEN and
others, have done an excellent job and I appreciate the work
that your employees are doing.
Mr. Newcomb. Thank you, Mr. Chairman.
Senator Dorgan. But because you raise that question,
terrorists post-September 11, I am wondering what your view is
with respect to the relative importance of various areas of
enforcement. Let me give you an example of why I ask the
question.
There are a lot of laws that one can enforce in this
country. Immigration laws--I had an employer tell me once, who
is just on the south side of the Canadian border, that the port
of entry coming across the Canadian border to the United States
opens at 9 a.m. in the morning. He said one of the fellows up
there in Canada works for him. He starts work at 8 a.m. every
morning and he has never been late. Now, the border does not
open until nine. He says, my employee has never been late, so
we know that person clearly is moving across the border to go
to a job on the U.S. side. I do not suspect that anybody has
suggested we send special forces up there to try to figure out
who that is.
I just say that there are a lot of things that one can use
money on to investigate and evaluate and require conformance
with the laws. It seems to me that your agency has a conflict
at the moment. You have the President saying you are supposed
to ramp up enforcement of the travel ban with respect to Cuba,
but I assume that your preeminent responsibility at the moment
is dealing with terrorism. How do you feel about that?
Mr. Newcomb. Mr. Chairman, clearly, our responsibility is
to do, perform, implement, and carry out the enforcement policy
laid out by the Treasury Department as directed by the
President and I believe we are doing just that. The President
did make the announcement on July 13. He also made the
announcement on January 17 of this year. We are mindful of
those announcements. We are mindful that that is a priority. We
also have other programs that we are administering, such as the
Foreign Narcotics Kingpin Designation Act and full-fledged
embargoes on terrorist-supporting Nations, Iran, Iraq, Libya,
Syria, Sudan, North Korea, and Cuba. We have a total of 22
country-specific programs. We maintain lists of terrorist
organizations, implementing the Foreign Kingpin Designation
Act.
All of those are very important elements of the foreign
policy of the United States. I view this as one, and as a
public administrator, someone who is responsible for
implementing this program, I believe we need to do so in a
manner that is fair and even-handed. The allocation of
resources on a Presidential priority then becomes set.
Senator Dorgan. Let me ask, do you have discretion with
respect to the application of these administrative fines? For
example, a retired teacher goes bicycling in Cuba because she
is told by a Canadian travel agency that it is cleared. She
will be spending no money there. The travel agency will be
handling all the money. And so that person calls OFAC and says,
look, here is the circumstance. Do you have a rubber stamp that
says ``guilty,'' and ``fined,'' or do you have discretion, and
if so, what kind of discretion and how do you use it?
Mr. Newcomb. Mr. Chairman, we do have considerable
discretion and in implementing this program, I believe we have
used it.
Senator Dorgan. Let me ask this question, if I might. The
man that takes his parents' ashes back to Cuba to bury them
near a church they founded many, many years ago, would that not
persuade someone with discretion to say, ``I understand that.
All right. Never mind.''
Mr. Newcomb. First, if I could respond to your first
inquiry----
Senator Dorgan. Sure.
Mr. Newcomb [continuing]. That is a matter currently
pending before the office, the traveler to Cuba on the bicycle
trip. So I think in interest of the process existing before the
office, I think it would be best that we not get into
discussing that lest it prejudice any rights that she may have
or----
Senator Dorgan. Actually, I am not describing Ms. Meister.
I am describing someone else. There is more than one retired
schoolteacher who retired in Cuba, so we can talk about it
without talking about Ms. Meister.
Mr. Newcomb. First, as far as discretion in issuing a
penalty, we were authorized in 1992 under the Cuban Democracy
Act for fines of up to $50,000, and that has been raised
recently to a maximum fine of $55,000. We have shown
considerable discretion by mitigating that pre-penalty amount
by over 80 percent. I think the pre-penalty amount is about 82
percent reduction before we even go out to the public.
And then from there, when a petition is--when a request for
further information and a pre-penalty notice is filed, there is
considerable opportunity for the party to submit mitigating
factors involving that case. I believe the Center for
Constitution Rights' testimony and our testimony have both
agreed that there are those outside of the United States that
would attempt to lure people into traveling to Cuba that would
otherwise be unlawful. That would certainly be in all
circumstances an extraordinary mitigating factor. But then
there is a judgment factor that comes in, to what extent is
this now being used by parties who wish to travel merely as a
ruse or is it lawful? That is part of this mitigating process,
and we endeavor to do that in every case possible.
Senator Dorgan. Mr. Newcomb, I understand that. What I do
not understand is whether you have the discretion to, in
certain circumstances, say, look, I understand. You did not
know. This was a mistake. Never mind. And if you do not do that
in terms of someone taking his parents' ashes to bury at a
church site, where they spent one day in Cuba, I assume you
would never use that discretion.
Am I right that you would never use sufficient discretion
to say, ``We understand. We understand what you are telling us
and we are not going to issue a fine in this case.''
Mr. Newcomb. Let me say, in that particular case, the
mitigation was well over 99 percent of the authorized amount.
There----
Senator Dorgan. I understand there, but there was a $700
fine.
Mr. Newcomb. It was a $350 fine per person.
Senator Dorgan. Right.
Mr. Newcomb. Three-hundred-and-fifty for one person, $350
for the second.
Senator Dorgan. That is right, $700.
Mr. Newcomb. So that is mitigation from $55,000 down to
$350, so that was----
Senator Dorgan. But you understand my question. I am just
trying to understand, do you have discretion, or is this a
circumstance where you simply say, gone to Cuba, does not
matter what the excuse is, we are going to fine you. Now, we
may mitigate it 98 percent, but you are going to pay a fine.
That is my question.
Mr. Newcomb. Well, we also look--no, we certainly can and
do show considerable discretion, but there was also facts
within the record that we also looked to. We compare mitigating
factors to aggravating factors in an attempt to weigh both of
them when this is settled or a fine is issued. In this
particular case involving the travel to Cuba, I believe that
was a settlement on agreed terms reduced to a settlement by
counsel. So we did enter into that after an offer of settlement
was made.
Senator Dorgan. If you would be able to, following the
hearing, would you give me examples of circumstances where
people have traveled to Cuba and you have decided that,
although they traveled, you will levy no fine?
Mr. Newcomb. Sure.
Senator Dorgan. Okay.
Mr. Newcomb. And I would also like to augment the record as
far as the particular cases that have been before the
committee----
Senator Dorgan. Of course.
Mr. Newcomb [continuing]. Just for sake of making it a full
record.
Senator Dorgan. Of course.
Mr. Carragher, in your statement, you indicate ``outreach
introduces the best of the United States to the Cuban people,
supports the development of civil society institutions, and
brings alternative points of view to the island. However,
travel outside the authority of the Cuban Assets Control
Regulations does not contribute to outreach.''
I understand your first point. The second point, I think,
is just technical. You are saying that travel outside of the
restrictions is illegal, but I do not know how that would
obviate the first statement. If travel introduces the best of
the United States to the Cuban people, it seems to me it just
does, no matter the circumstances of the travel.
Mr. Carragher. I think I was specifically referring in the
statement in an unspecific way to travel that would be strictly
tourism travel to Cuba as opposed to travel that would have
significant or complete intent of interaction directly with the
Cuban people.
Senator Dorgan. But with respect to the philosophical
point, I think you would argue, and certainly the Department of
State would argue, that just tourist travel to the country of
China or the country of Vietnam, both of which have communist
governments, contributes to engagement and, therefore, to
productive opportunity for the countries to better know each
other. That is the official position, I believe, of the State
Department with respect to China and Vietnam. I am trying to
understand how it differs with respect to Cuba in terms of the
circumstances that would improve relations between countries in
people-to-people contact. Can you describe that for me?
Mr. Carragher. I am not completely familiar--I am not
familiar at all with the tourism industries in the two
countries that you have mentioned, but the tourism industry in
Cuba is under the control, obviously, of the government of Cuba
and part of the policy goals, foreign policy goals of the
President vis-a-vis Cuba, in addition to encouraging the
outreach to ordinary Cubans, is to minimize the flow of hard
currency to the government of Cuba and travel to the--directly
to the Cuban tourism centers which exist on the island
obviously add to the flow of hard currency to the government of
Cuba.
Senator Dorgan. I understand. Would that not be the case
with respect to the purchase of a silk suit in Beijing? Would
that not contribute to the salary of Jiang Zemin in a communist
government? You get my point.
Mr. Carragher. I get your point. I----
Senator Dorgan. I just think there is a philosophical
contradiction and I think it is one that no one can answer just
because it exists for reasons that do not make much sense. But
let me ask the question about agriculture, if I might.
Mr. Newcomb, I pointed out that the Farm Foundation applied
for a license to send a delegation to Cuba in January. It
included two former Secretaries of Agriculture. This is an
organization on whose board the current Secretary of
Agriculture and the current Under Secretary sit, and they were
denied the license. Can you tell me anything about that at all?
Mr. Newcomb. Yes. I do not have the complete record in
front of me, but I did have a conversation with one of those
former Secretaries of Agriculture and I informed him several,
perhaps 2 weeks, maybe, before the license was denied. There
were many people included in the license application that our
staff could not approve. When these licenses are approved,
every individual traveling on a specifically licensed trip must
meet the criteria, and that there were a lot of people who did
not individually and in their own rights qualify.
We had offered to work with the Farm Foundation to bring
down the number of individuals traveling and basically they
told us it was an all or nothing situation. Approve them all or
reject it. So we were precluded in a process that we try to
follow very closely, and that is work with applicants to ensure
that if they are qualified, they are able to go, and sometimes
this is a give and take with organizations over a period of
time so that if they can qualify in and of their own right. But
it was essentially this statement that it was an all or nothing
proposition, take it or leave it, that led to the fact that we
had no choice.
I did communicate that with one of the former Agriculture
Secretaries and he seemed to understand what our position was.
Now, that is done in those situations and others without
prejudice. They can reapply if they wish.
Senator Dorgan. You heard Dr. Gilderbloom's testimony this
morning.
Mr. Newcomb. I did.
Senator Dorgan. What is your impression of that?
Mr. Newcomb. Well, I am certainly sorry that someone is
dissatisfied with what we have done in terms of administering
this program, but I will say that fit into the category of
those license applications it originally granted in 1999 and
2000 that came up for or are coming up for renewal.
I would disagree with the facts somewhat in what he
submitted to the committee. When he spoke to our staff, I am
told, in June of 2001, he was told--or in May of 2001, he was
told that the renewal was not due yet. Please submit an
application for renewal at a later time, i.e., when it was due
for renewal, and the specific reason why when it was submitted
it was denied is one of the conditions of the license states
that all participants shall adhere to the structured program of
professional research and educational activities and that an
individual qualifying under the license shall have the
professional background related to the subject matter of the
licensed professional research. It was the view of the staff
that that did not qualify.
And if I might just make one other statement, in the
testimony of the Center for Constitutional Rights, there is
testimony that says those who apply for a specific license to
travel to Cuba consistently encounter roadblocks, that we have
never published any rules or procedures specifying what
information a license application is required to contain and
what standards OFAC will apply in reviewing license
applications. That is not correct. In fact, we have quite
extensively made an effort to not only publish regulations, but
actually publish guidelines. We have--and they are available on
our website. I would like to submit them into the record.
Senator Dorgan. Yes.
Mr. Newcomb. They include the particular activity with
which Mr. Gilderbloom is speaking, professional research, but
also guidelines for academic institutions, guidelines for
degree-seeking students, guidelines for religious
organizations, guidelines for travel to Cuba to engage in
educational exchanges to promote people-to-people contact,
guidelines for travel to Cuba in need of humanitarian aid,
guidelines for travel related to agriculture and medicine,
something we just issued last week, guidelines for travel to
Cuba involving humanitarian projects, and so on. So if I could
submit that into the record----
Senator Dorgan. Without objection.
Mr. Newcomb [continuing]. As well as our website, which
lays this out.
[Clerk's note.--Information can be found in the
subcommittee files.]
Mr. Newcomb. I believe, finally, on the Dr. Gilderbloom
issue, that we laid out the reasons it was denied. There may be
some extraneous issues discussed, but as with any other
participant, he certainly is free to redo it and conform with
those published guidelines.
Senator Dorgan. Let me ask you, how many people do you
think visited Cuba last year? How many Americans visited Cuba
last year? Are there any broad estimates? I have heard some.
Mr. Newcomb. Yes.
Senator Dorgan. What do you think they are?
Mr. Newcomb. I had the exact number about a year ago and I
do not recall it exactly. It was something over 150,000
travelers.
Senator Dorgan. Between 150,000 and 200,000 Americans
visited Cuba last year?
Mr. Newcomb. Within that range, yes. I would say that is
correct.
Senator Dorgan. And how many of those would have visited
Cuba with permission from OFAC?
Mr. Newcomb. Well, there are two categories, general and
specific licenses. Of the general license, individuals
qualifying within their own right can make the determination
that they qualify under the general license and travel. A good
example of that is journalists. Another example would be--let
us just say journalists, or humanitarian travel, one-time-a-
year travel.
Senator Dorgan. But what percent of the people that visited
Cuba do you think did so with the specific permission of OFAC,
with a license? Do you have any idea?
Mr. Newcomb. I would say possibly qualifying under a
license, at least two-thirds. There is probably an additional
one-third that do not. That is just a rough estimate that I
would like to be able to go back and then submit for the
record, and the reason I say that is by far the largest number
of travelers that go to Cuba are family reunification visitors,
individuals visiting family members, defined in our
regulations, that are lawful, that they are self-defining by
the regulations. We issue licenses for second and subsequent
humanitarian visits, so I would never have a complete handle on
it. We can take the information that comes from the travel
service providers and add that up about travelers taken.
Senator Dorgan. Mr. Carragher, I said when we started this
hearing that you are enforcing the law, in conjunction with
OFAC. I understand that. But you indicated the purpose of that
law and the purpose of the administration's enhanced
enforcement of it, both with respect to travel and licensing,
is to impose a penalty of some sort on Fidel Castro. You talked
about not providing hard currency to be helpful to Fidel
Castro.
It is also your understanding, I am sure, that it imposes a
penalty on the American people, restricting their right of free
travel. I have been trying to understand for some long while
what the criteria is for selecting Cuba vis-a-vis Vietnam or
China or others, because we have gone through a great debate
here about China and the State Department consistently says
engagement is the constructive way to affect the behavior of a
government with whom we disagree. Do you disagree with that
statement with respect to Cuba?
Mr. Carragher. Certainly, engagement directly with the
Cuban people is one of the primary policy tools toward
affecting the rapid transition which I talked about.
Senator Dorgan. Restricted engagement, though, because----
Mr. Carragher. I am sorry?
Senator Dorgan. It is restricted engagement at this point,
involving only the people that you agree to allow to go to
Cuba.
Mr. Carragher. Well, only the people that are--I would
submit, Senator, only the people who are permitted by the
legislation to travel to Cuba, and I guess when you raised the
point a few minutes ago, the obvious difference between China
and Vietnam and Cuba is that legislation prohibits strictly
tourism travel to Cuba, which is part of the reason why we are
here today.
Senator Dorgan. You are absolutely correct about that, and
let me just ask the question of both of you. You heard the
testimony of a schoolteacher--I mentioned that there is more
than one retired schoolteacher that went bicycling in Cuba with
a Canadian bicycling club, someone who plays a game that I have
not heard of named Go--I guess I have actually seen it in a
movie recently, someone who took his parents' ashes back to
bury them in Cuba. When you hear these stories, would you
believe that there is reason for Congress to review whether
this is a very effective policy in reaching the results we
would like to reach with the Castro regime in Cuba?
Mr. Newcomb. If I could respond----
Senator Dorgan. Yes.
Mr. Newcomb. On some of those that you cited, licenses
could have been available, but the traveler has declined to try
to get the license. On others, because of TSRA, the Trade
Sanctions Reform Act, we literally do not have the licensing
discretion. I can say unequivocally that the people that work
on this certainly have, and have demonstrated over the years,
considerable compassion for compelling circumstances, and in
the particular case involving the traveler to take his family
ashes. I think all of us could agree that that has a compelling
persona about it.
In that case, the individual did not elect to apply for a
license. Were he to do so now, we would not have the authority
to show discretion because TSRA limits 12 categories that were
in existence at the time that the Trade Sanctions Reform Act
was adopted.
Senator Dorgan. But that is exactly what I am asking you
about. Someone cannot take his parents' ashes to Cuba, and it
is also the case, that a retired teacher wanting to bicycle in
Cuba, would not be approved for a license?
Mr. Newcomb. That is deemed by the Congress as tourism.
Senator Dorgan. I understand that, but that is why I asked
the larger question of the two of you. What do you think about
that?
Mr. Newcomb. I defer to my colleague.
Senator Dorgan. I understand that.
I understand that, too, but why do we not hear from both of
you? I mean, it just seems to me that this is incongruous. We
are going to have a debate in Congress this year about this
very subject and perhaps a vote in both the House and the
Senate, and the purpose of this hearing is to take a look at
what we are spending in order to enforce this, whether it is
effective, and after you answer my last question, I am going to
ask you both, do you think it can be enforced effectively? If
we have 60,000 people visiting Cuba without the sanction of
OFAC, it suggests to me that it is a law that is not being
enforced very effectively.
Mr. Carragher, why do you not risk your career here and
answer my question.
Mr. Carragher. Since Mr. Newcomb lateraled to me the policy
question, I will, of course, lateral to him the enforcement
question.
Senator Dorgan. I understand, but I am still asking the
policy question.
Mr. Carragher. The policy question, I think that,
obviously, I do not need to tell you, Senator, that the role of
this hearing and the role of the Congress is to, and rightfully
so under our system, is to look at all aspects of a foreign
policy, domestic policy, legislative issue and seek to come to
legislation that will best achieve what Congress deems should
be achievable.
From the administration's perspective, this administration,
and I can only repeat the President's words, will support
nothing to weaken the embargo on Cuba, yet at the same time, a
very important aspect of this administration's policy, and I
tried to highlight it in my brief written statement, opening
statement, was we want to be able to reach out as American
people to the Cuban people and we want to do that in a way that
enables the American people to bring to the Cuban people, to
contribute to bringing to the Cuban people and to that island
the currents of freedom and free ideas which are blowing
everywhere and have blown everywhere in this hemisphere over
the last 20 years and more.
I would submit that the outreach possibilities which are
currently licensable under current legislation enable us to do
that relatively effectively. We certainly could and always can
achieve even more effective outcomes. But outreach and
introducing new ideas, new currents of thought, alternative
ideas to Cuba, is very much in this administration's interest,
I believe, and very much in the U.S. interests.
Senator Dorgan. The announcement last summer that was made
by the administration that they are going to crack down and
ramp up enforcement do not square with that general approach.
The shorter answer, which you probably are not at liberty to
give, is that this really does not make much sense.
It is an attempt to punish Fidel Castro but, in fact,
punishes Americans by restricting their right of free travel.
It is inconsistent with the way we handle travel to other
communist countries, Vietnam and China, for example, and the
Congress ought to take a look at changing it. Mr. Newcomb would
be best served by having that $1 million and seven people, to
be checking on hard-core terrorists who are transferring money
in the pursuit of terrorist acts. Instead of surfing the
Internet to find out who might have traveled to Cuba,
That is a shorter answer but less diplomatic, Mr.
Carragher, and is one that you cannot give. I have no idea how
you feel, but you cannot give that answer.
Mr. Newcomb, would you be happy if the Congress this year
says to you, you have got 129 people. You are now taking seven
of them to enforce this ban on travel by U.S. citizens and we
will repeal the ban and give you those seven people back and
the $1 million back so that you can use that to track
terrorists?
Mr. Newcomb. Mr. Chairman, our job is to enforce the law as
it is written. If it is promulgated through an Executive Order,
that is what we will do. If it is promulgated by the Congress,
that is what we will do. If it is certainly following the lead
of the President, where he says we are going to step up
enforcement, that is what we will do. That is our job and we
will do it.
Senator Dorgan. Can I just ask you----
Mr. Newcomb. I think my views on this is probably largely
irrelevant.
Senator Dorgan. I understand.
Mr. Newcomb. I could always use more people to work on all
24 programs, so----
Senator Dorgan. I understand. If the Congress does what I
think it may do with respect to repealing the travel ban to
Cuba, you will have additional money to deal with the
substantial load you have now and burden you have now tracking
terrorists, is that not the case?
Mr. Newcomb. If that means that we will have seven more
people to put on something else, then we will use the seven
people on something else and we will move smartly to reallocate
resources.
Senator Dorgan. And the central part of your mission, as
you testified earlier this morning, is to deal with post-
September 11 terrorist issues, and so my assumption is if the
Congress would change the law, if we do not change your budget,
it frees up $1 million and seven people to be engaged in that
activity, would that be correct?
Mr. Newcomb. Well, yes, and I also think to repeal
positions without decriminalizing or de-civil penalizing the
current environment would only add to greater confusion,
because not only would, if we did not have the people to deal
with what we are responsible for implementing, we would not
have the ability to respond to questions, issue licenses, or do
the other things that are attendant. So to have a law without
the ability to be responsive is counterproductive on all sides.
Senator Dorgan. Is that the way it was prior to 1992?
Mr. Newcomb. No. Prior to 1992, there were several things.
First of all, Fidel Castro had not moved to open up Cuba. He
was still operating on--the Soviets were still supporting Cuba.
They were operating largely on the Russian ruble and Cuban
peso. A number of steps happened subsequent to 1992 that made
it an attractive place to visit. But the key thing is only
criminal penalties were available prior to 1992 and what the
Cuban Democracy Act did was give us this very effective
enhancement tool, namely civil penalty authority.
Senator Dorgan. But almost no one used the criminal
penalties. U.S. Attorneys largely did not do that, and that is
why they provided civil fines, is that correct?
Mr. Newcomb. That is correct.
Senator Dorgan. Let me thank both of you for appearing. We
have two additional witnesses that we want to bring to the
table. Mr. Newcomb and Mr. Carragher, thank you very much for
being here.
I would like to call former Senator Dennis DeConcini, a
former colleague of ours from the State of Arizona, and
Ambassador Dennis Hayes, Vice President of the Cuban American
National Foundation. If you would please come forward. I
appreciate very much your being here.
Senator DeConcini, thank you very much for being with us
this morning. I might note that you were chairman of this
subcommittee for a good many years. Thank you for being here
and why do you not proceed. We will include your full statement
as part of the record.
STATEMENT OF HON. DENNIS DeCONCINI, FORMER U.S. SENATOR
FROM THE STATE OF ARIZONA, ON BEHALF OF THE
ALLIANCE FOR RESPONSIBLE CUBA POLICY
Senator DeConcini. Mr. Chairman, Senator Dorgan, thank you
for inviting us to testify today and thank you for the time you
have put in on this, I believe, very important subject when I
am well aware of the many different things you have. I have
submitted a statement and I am going to summarize it to some
extent and ask that perhaps another statement might be
submitted later by the Alliance for Responsible Cuba Policy.
I am pleased to testify before you on behalf of that
organization, which is a nonprofit organization,
nongovernmental organization. I am a founding board member of
the Alliance, whose purpose is to educate and change our policy
towards the government of Cuba. I am accompanied this morning,
although he had to leave just recently, by Albert Fox, the
founder and President of the Alliance. We recognize the great
demands on your time and so my remarks will be brief and to the
point.
You have received testimony from the State Department and
Richard Newcomb, the Director of the Office of Foreign Assets
Control. Director Newcomb and his staff are the target of
criticism leveled against the administration for its policy of
enforcement of economic sanctions against the government of
Cuba. OFAC is charged with enforcing the laws against the
Trading with the Enemy Act and other laws designed to enforce
embargoes against those Nations that present a threat to the
United States.
Mr. Newcomb and his staff are professional, dedicated,
honorable public servants that carry out the law as dictated by
Congress and the White House, the administration, as you have
so astutely pointed out today, Mr. Chairman. Current laws
restrict travel and trade with Cuba. Individuals and
organizations that desire to travel to Cuba must secure a
license from OFAC to legally travel to Cuba for humanitarian,
education, and other purposes.
We all know that many, and as you pointed out, have gone to
Cuba through Canada and other countries to avoid the U.S.
embargo. Unfortunately, due to the policies dictated by the
administration, the same individuals who testified here today
are caught in the criminal justice system and the civil justice
system as having defied the laws of the United States
Government. These citizens are not involved in conspiracies
that threaten to undermine our laws or policies. They instead
are individuals who have a curiosity to experience Cuba and get
to know the citizens. They are on their own educational
adventures and are not what we could consider to be criminal or
deserving of civil penalties to undermine the laws and the
foreign policy of the United States Government.
The fact is that our laws toward Cuba should be changed.
Mr. Chairman, sanctions against Cuba have not worked. Having
traveled to Cuba during my Senate tenure and extensively with a
license from OFAC since my departure from the Senate, I have
witnessed firsthand how these sanctions have not and will not
bring about the desired change in the government of Cuba, and
in particular, the removal of Fidel Castro. Fidel Castro will
leave power when he wants to or with his health or he may die
in office. Short of military intervention by the United States
Government, Mr. Castro will stay for the foreseeable future, in
my judgment.
The Cuban people have never had a truly democratic system
to elect free and fair leaders. Cuban history is replete with
instances of U.S. and European interference. We in the United
States have supported corrupt governments in Cuba, even using
our military to see that they were imposed on the Cuban people.
The present government for the past 40 years is not our
dictatorship. When I came to this body, Cuba was a national
security threat because of the then-Soviet Union and the close
ties Cuba had with the USSR. These days, Cuba is no foreign
security threat to the United States or to any other Nation.
In earlier days, voting to keep the embargo on Cuba was a
very easy vote, Mr. Chairman. It was a vote to keep the USSR at
bay. It was an anti-communist vote and it satisfied a
constituency of now-Cuban Americans who have become active in
our political system. Many of them lost their homes and
businesses as a result of the deceit of the Batista government
and the imposition of the Castro government. If that had
happened to me, I would be very upset and very mad about it.
But notwithstanding the deep differences we have with the Cuban
government, our people, our policy of isolation, the embargo,
and sanctions clearly have not worked. It is time to make a
change.
Mr. Chairman, when I served in the Senate, I was very
critical of President Castro and the Cuban government, so much
so that the Cuban government would not allow me to visit, and
when it finally did, my meeting with President Castro can best
be described that we agreed to disagree.
However, in the past several years, I have traveled to Cuba
many times with a license. I am now convinced that we must
learn to deal with the Cuban government as it is, not as how we
wish it to be. In addition, with the Cold War now over, we must
bring logic and reason to the U.S.-Cuban relationship.
When I was the former chairman of this subcommittee, I
supported funding for OFAC to enforce the Cuban embargo. I
approved additional funding for the office and staff in Florida
and I believe these activities were important to deter the
extortion of those who would harm legitimate Cuban Americans
from helping their families in Cuba.
Today is different. Cuba is no longer a national security
threat. I do not believe the funding for OFAC operations for
Cuba, certainly for enforcement of those laws towards Cuba are
necessary. Instead, I believe we should focus our attention on
lifting the embargo against Cuba and on normalization.
Thousands of Americans have traveled to Cuba. Many have
traveled without a license. Cuba is not a Libya, Iran, North
Korea. It is only 90 miles away. Its people are friendly and
welcome Americans. Our national interest would best be served
to permit Americans to travel to Cuba to have hundreds, not
dozens, of exchanges to provide humanitarian assistance. This
is what we do with most developing counties and not
unreasonable restrictions added on to them by amendments
forbidding financing of such purposes as American food and
medicine. A change can take place in Cuba if the U.S. would
treat Cuba like we treat China and Vietnam, that the chairman
has so astutely pointed out today.
Prepared Statement
Thank you, Mr. Chairman, for the opportunity to testify
today on this important matter. We respectfully ask the
committee to devote its time to lifting the travel ban towards
Cuba and to find a way to constructively engage the Cuban
government in a manner that would lead to the reestablishment
of diplomatic relations between our two countries.
Senator Dorgan. Senator DeConcini, thank you very much.
[The statement follows:]
Prepared Statement of Senator Dennis DeConcini
Dear Mr. Chairman and members of the Subcommittee on Treasury and
General Government,
Thank you for inviting the Alliance for Responsible Cuba Policy to
present testimony this morning regarding the Treasury Department's
Office of Foreign Assets Control licensing procedures. The Alliance was
created in late 1998 to foster better political, economic, and cultural
relationships between Cuba and the United States. It is a non-partisan,
non-profit 501 (c) (6) organization. I am accompanied this morning by
Albert A. Fox Jr., founder and president of the Alliance for
Responsible Cuba Policy. Al, as a former Senate staffer, and I
recognize the great demands on your time, so we will get right to the
point. At the appropriate time if you have any questions, Al and I will
be delighted to answer them in a forthright manner.
Let me briefly make two points regarding OFAC and its licensing
procedures. First, Director R. Richard Newcomb and his staff receive
criticism from time to time from various quarters, which we believe to
be totally unjustified. Mr. Newcomb and his staff are dedicated,
honorable, and talented public servants. I say that with great
confidence for I observed them from the inside when I chaired this very
subcommittee or was the ranking member for 12 years. I have now
observed them from the outside as well, as one of the principal
founders of the Alliance for Responsible Cuba Policy, which deals with
OFAC on a regular basis.
Everyone knows the dilemma that Mr. Newcomb and his staff face on a
daily basis regarding licenses for Cuba, but no one wants to admit it
publicly. OFAC and its staff face pressures that very few other
government agencies face. We all know that Cuba is not a foreign policy
matter for the United States any longer. Cuba is a political domestic
matter for the United States. Mr. Newcomb's office is pressured by the
White House, the National Security Council, the State Department,
Congress, and by those who support the blockade toward Cuba, to tighten
the screws on licensing procedures, yet Congress passes laws and
regulations allowing for Americans to travel legally to Cuba under
certain circumstances. In short, OFAC is criticized by those who
support the blockade when a license is granted and equally criticized
by those opposing the blockade when a license is denied.
The fact is that OFAC does not have discretion to grant licenses
regarding travel to Cuba to individuals and groups they personally like
and/or support. Rightly or wrongly, they must adhere to specific laws
as prescribed by Congress. In our opinion OFAC obeys the letter and the
spirit of the law authorizing them to grant licenses for travel to
Cuba.
It is difficult to defend a decision on a license application or to
defend the enforcement of a penalty on some of the cases you have
before you today. We believe they are the exceptions and not the rule.
It is appropriate for this committee to ask questions on resources and
procedures. Again, it is important is to realize that the
administration of congressional statutory language does require
following the law and does not permit the administrators to be
arbitrary, as some claim.
The solution is to repeal the law that denies Americans to travel
freely to Cuba. The blockade against Cuba has not worked. Having
traveled to Cuba during my Senate term and extensively since leaving
the Senate I have witnessed first hand how these sanctions have not and
will not bring about the desired changes in the government of Cuba and
in particular the removal of President Fidel Castro. He will leave
office when he wants to or when he cannot serve because of health
reasons or dying in office. Mr. Chairman, there is absolutely no
evidence of any significant dissident movement against President Castro
or his government within Cuba. Those are the facts. In my judgment,
short of U.S. military action, Mr. Castro will remain the leader of
Cuba for the foreseeable future. I wish that were not the case, for the
Cuban people have never had truly democratic free and fair elected
leaders. Cuban history is replete with instances of U.S. and European
interference. In the past, we have supported corrupt governments in
Cuba, even using our military, when we felt the need to do so. When I
came to this body Cuba was indeed a national security threat because of
the former Soviet Union and the close ties Cuba had with the USSR. So
our foreign policy toward Cuba made sense then. But today, Cuba is no
security threat to the U.S. or to any other nation. In those days,
voting to keep the blockade on Cuba was a very easy vote. It was a vote
to keep the USSR at bay, it was an anti-communist vote, and it
satisfied a constituency of those who are now Cuban Americans, of whom
some have become active in our political system. Many of them lost
their homes and businesses as a result of the overthrow of the
Fulgencio Batista dictatorship. Many of them of course are driven by
nationalistic pride and are bent on retribution. Not withstanding the
deep differences, and they are many, we have with the Cuban government,
our policy of isolation, the embargo and sanctions clearly have not
worked. It is long past time to make a change. Thousands of Americans
traveled to Cuba last year alone without a license approved by OFAC.
Cuba is not some far away place like Libya, Iran or North Korea; it
only ninety miles away from Florida's most southern point. The people
are friendly and they want full relations with us--even the Cuban
government wants full and friendly relations with us. Our national
interest would best be served by permitting Americans to travel to Cuba
to have hundreds, not dozens, of exchanges, to have truly humanitarian
assistance, like we have with most other developing countries, not
unreasonably restricted by amendments forbidding financing of such
purchases of American food and medicine. Why are we afraid of allowing
America's most precious asse--its citizens--to travel to Cuba? Maybe a
change will take place in Cuba if the U.S. would treat Cuba like the
U.S. treats China, Vietnam and the other nations we have disagreements
with.
Further Mr. Chairman, when I served in the Senate, no one was more
critical of President Fidel Castro and the Cuban government than me. So
much so, that the Cuban government would not allow me to visit Cuba and
when they finally did, my meeting with President Castro can best be
described by saying that we ``strongly agreed to strongly disagree.''
However, as referred to above, in the last 7 years, I have traveled to
Cuba seven times and I am now convinced that we must learn to deal with
the Cuban government, as it is, not how we wish it to be. Certainly
with the Cold War over, we should bring logic and reason to United
State-Cuba relations.
The second point I would like to make is that when I was chairman
of the Subcommittee on Treasury and General Government, I proposed and
supported the creation of an OFAC office in Miami, Florida. I believed
at the time it was a prudent expenditure of taxpayers' money and vital
in enhancing U.S.-Cuba relations. Today, U.S.-Cuba relations have
become a political issue and no longer is Cuba a national security
threat, no longer is Cuba exporting military adventurism and communist
revolution. Cuba is not a bit player, if a player at all in the
international drug cartel, which I believe is just as great a national
security threat as terrorism. This office, which this committee
originally funded when I was Chairman, is not necessary any longer in
my judgment. It may employ a number of Americans; which I realize are
jobs but jobs at the taxpayers' expense. Yes the Miami office of OFAC
handles some paper work but I firmly believe OFAC in main Treasury can
handle the effects of such a closure. OFAC may need more personnel but
I do not believe it justifies an office in Miami. As I have said
because of the change of our relationship from one of foreign relations
to one of domestic relations. The alliance recommends the closing of
the OFAC Miami office and the transfer of the office's functions back
to Washington, DC.
In closing, we respectfully ask the committee to devote its time to
lifting the travel ban toward Cuba and to find a way to constructively
engage the Cuban government in a manner that would lead to the re-
establishment of diplomatic relations between Cuba and the United
States. The people of both countries have far too many things in common
to keep us apart, just because of domestic political considerations.
Mr. Chairman, the time to act is now, for there is always going to be a
``legitimate reason'' to postpone enhancing U.S.-Cuba relations. There
is always going to be a presidential election, congressional election,
Florida gubernatorial election, or other excuses for not acting.
We will submit for the record a more detailed statement and
information regarding the Alliance for Responsible Cuba Policy.
Senator Dorgan. Next, we will hear from Ambassador Dennis
Hayes. Mr. Ambassador?
STATEMENT OF AMBASSADOR DENNIS K. HAYES, VICE
PRESIDENT, CUBAN AMERICAN NATIONAL
FOUNDATION
Mr. Hayes. Thank you, Mr. Chairman. With your permission, I
would like to submit my statement for the record and perhaps
summarize it and perhaps attempt to answer the unanswerable
that you put forward a moment or two ago.
Senator Dorgan. Without objection.
Mr. Hayes. I would like to note on behalf of the Foundation
that we do, in fact, support lawful travel to Cuba and we do
see it as a means of increasing communication and support for
the Cuban people. One thing that has been left out of all the
discussions up to this point, I believe, is, in fact, the
status of the Cuban people at this time and how the Castro
regime attempts to limit contact between Americans and other
foreigners and the Cuban people themselves. So I would like to
talk just very briefly about how that process works and how
Americans play into it and perhaps then how OFAC connects into
that.
Perhaps the most important thing to remember is that the
Castro government works very hard to see to it that there is
not meaningful interaction between foreigners and Cubans. There
is a process which is known on the island as the tourist
apartheid. Under this, Cuban citizens are denied entry into
resort areas and into hotels and this effectively presents a
bar for meaningful contact.
There also are a whole series of further restrictions. It
is, in fact--recently, laws were passed in Cuba which makes it
a criminal offense for Cubans and foreigners to discuss
sensitive issues, whether that be medical conditions on the
island or the condition of democracy and free speech advocates.
You may remember that two Czech citizens, one of them a member
of parliament, were imprisoned for over a month for violating
this ban.
It is also important to remember that the tourist industry
itself is built to funnel money into the Castro regime. This is
done through a variety of ways, including the illegal
confiscation of wages. It is done through a process whereby
unionization is not just illegal but can result in firings,
beatings, and imprisonment. It is done through a process where
there is blatant racial discrimination, where Cubans of black
origin are systematically denied positions in the tourist
industry. It also builds, unfortunately, regrettably, very much
in the early days and continuing until now through a basis of
prostitution as a lure for foreign tourists.
And finally, I would note, as the Senator noted, that when
we talk about free trade to Cuba, we have to remember that
there are two pieces to that. It is not simply the United
States that has to authorize travel. The Cuban government also
does and they engage in a process whereby they deny travel
authorization to anyone that they disapprove of, whether that
be because of their political views, family ties, or what have
you.
So one of the concerns that we have is that when we discuss
travel, we always do it in a unilateral fashion rather than
looking at both sides of the equation. I think that we need to
be less timid. We need to say that there are important issues
here of free speech and of free contact and it should not just
be that we give things away, asking nothing in return, when
history has shown that is exactly what we will get, nothing in
return.
Mr. Chairman, one or two other issue that came up in the
conversation here. With respect to the threat of Cuba, I will
note that this is a regime with a long history of anti-
Americanism, that a U.S. court has determined that the state
acted deliberately to kill American citizens in the ``Brother
to the Rescue'' shootdown, that a high-ranking minister of
government has been identified as a man who tortured and killed
Americans in Vietnam, that the government consistently spies
against us and provides a home for an alphabet soup of
terrorist groups.
So all in all, with respect to OFAC, we believe that it is
important that there be transparent regulations, that they be
applied without fear of favor, if you will. We do encourage
those efforts which lead to increased contact. Dr.
Gilderbloom's program, for instance, as described, is one that
I would think that we would support. I do not know all the
details, but certainly as it was described, it has the
requisite points to it.
Prepared Statement
So, all in all, again, we would hope that OFAC would
continue to enforce effectively with the dividing line, that
those actions which provide comfort and support for regime
should be opposed. Those actions which help and support the
Cuban people should be encouraged.
Thank you, Mr. Chairman.
Senator Dorgan. Mr. Ambassador, thank you very much.
[The statement follows:]
Prepared Statement of Ambassador Dennis K. Hayes
Thank you Mr. Chairman, I appreciate this opportunity to appear
before you and the committee to discuss the enforcement of travel--
regulations with respect to Cuba.
The Cuban American National Foundation supports lawful travel to
Cuba. Lawful travel to Cuba may be undertaken for a very wide variety
of purposes, including visits with family members, work with
humanitarian and religious groups, academic research or the pursuit of
news stories. Such travel can help provide a flow of information to and
from the Island and can--if undertaken for such a purpose--bring
comfort and support to the Cuban people as they struggle to free
themselves from over four decades of repressive, authoritarian rule.
The Foundation strongly opposes, however, unrestricted tourist and
business travel to Cuba. Such travel strengthens the regime and
legitimizes the violation of the rights of the eleven million citizens
of Cuba who are not part of the ruling elite. While we understand that
many of the people who seek to engage in such travel have good
intentions, good intentions do not make up for the misery and
degradation their actions cause. We support the efforts of the Office
of Foreign Asset Control to enforce the law. We believe the American
and Cuban people alike are best served by a transparent, predicable,
and vigorous application of the law. In a world of limited resources,
we encourage OFAC to give highest priority to investigating and
prosecuting those individuals who have made a business out of breaking
the law and those individuals who most blatantly engage in abusing the
Cuban people.
Why is tourist travel a bad thing?--The Foundation opposes tourist
travel because, as presently practiced, such travel hurts rather than
helps the people of Cuba. Cuba is a totalitarian regime that severely
restricts the rights of speech, assembly, enterprise, and even the
practice of religion. Tourist travel is structured specifically to
limit meaningful contact between Cubans and foreigners. Revenues from
tourism flow to the most repressive elements of the regime. Cuba has
encouraged tourism from other countries for over a decade now and the
results are sadly clear--the vast majority of tourists become complicit
in the exploitation of the Cuban people. Some specific concerns:
Tourist apartheid.--The Dutch religious group, Pax Christi,
recently reported: ``Cubans are not allowed to enjoy the new tourist
industry because it has become de facto the sole purview of foreigners.
Through a series of physical restrictions imposed on Cubans, the
government is able to maintain what is known as ``tourist apartheid''.
As is generally known, Cubans are not allowed to visit most of the
tourist areas or even enter a hotel; and if they do, they must be in
the company of a foreigner. Cubans are even gradually losing their
beaches and beautiful reefs because the Government continues to
discriminate against them.--In private, Cubans repeatedly expressed
their anger at being treated like second-class citizens in their own
country.''
Racial Discrimination.--Cuba's tourist industry is built on blatant
racial discrimination. Cubans of African decent are routinely denied
employment in tourist industry--the only opportunity many Cubans have
to earn dollars. As noted by Washington Post columnist William
Raspberry in a recent story, ``I saw hardly any brown-skinned or black
Cubans running anything not as managers or ministers, or maitre d's,
not even as cashiers, clerks or hotel maids.''
Illegal confiscation of wages.--Cuban workers at tourist resorts
are employed only through the State Employment Agency. A foreign
company therefore pays the Cuban government directly for the services
of the worker. And while the Cuban government is paid in hard currency
such as U.S. dollars, the Cuban worker is given Cuban pesos at an
artificial exchange rate. Thus, over 95 percent of the worker's wages
are retained by the regime. This practice is a direct violation of
International Labor Organization (ILO) standards. The labor practices
of foreign joint ventures have recently been declared ``exploitative''
by the Infernational Confederation of Trade Unions (ICFTU) and the
International Regional Organization of Workers (ORIT).
Prostitution.--Much of Cuban tourism is built on prostitution,
particularly teenaged prostitution, and the exploitation of women. In
fact, Havana has become known as the ``Bangkok of the Caribbean.''
Fidel Castro has boasted to Cuba's rubber-stamp National Assembly that
``highly educated'' ``jineteras'' (prostitutes) have low rates of AIDS
and, therefore, ``there is no tourism healthier than Cuba's.'' (The New
Republic, July 2000)
Criminalization of free discussion.--The Castro regime recently
passed legislation criminalizing discussions between Cubans and
foreigners on ``sensitive'' issues. Two Czechs, one a Member of
Parliament, were imprisoned for a month last year for speaking with
dissidents. A U.S. citizen was held at State Security Headquarters for
three weeks for taking children's books to an independent library.
Confiscated Property.--Many Cuban tourism facilities are built on
property seized from American and other owners without compensation. In
a further flouting of international law, those facilities are often
operated in conjunction with a foreign partner, who reaps profits from
that stolen American property. Further, tourist resorts in Cuba are
built without regard to the environmental damage caused, often
destroying the fragile ecosystems of Cuban coastlines.
enforcement of travel regulations
The Foundation supports the efforts of the Treasury Department and
the Office of Foreign Assets Control (OFAC) to enforce the law. We
appreciate how difficult it is to gather information in a hostile
regime and to enforce regulations that some Americans--sincerely, if
unwisely--are prepared to violate.
The case for enforcing restrictions on unlawful travel to Cuba is
compelling. We encourage OFAC to act in a transparent, consistent, and
vigorous manner, without fear or favor. Everyone should be held to the
standards of the law. Should a Cuban American violate the law, he or
she should be held every bit as accountable as any other American.
In a world of competing priorities, we encourage OFAC to give
special priority to examining the actions of those individuals and
companies that have made a business of violating U.S. law and degrading
the Cuban people. A cursory web search will reveal numerous companies
that provide specific advise on how to break the law. Some businesses
openly offer to make all arrangements for illegal travel--for a price.
On company in Texas brags it can facilitate business investment in Cuba
because they ``already know the most important Cubans.'' On any given
weekend, dozens of American boats can be found at the Marina Hemingway,
their owners and crews engaged in illegal transactions and often
smuggling contraband back to the United States. Several popular
magazines advertise Cuban products that can be paid for with U.S.
credit cards and shipped anywhere in the United States from a third
country. On occasion, there are stories in the press that highlight
illegal activity, such as a recent melee involving a well-known
heavyweight boxer. It is crucial that action in such cases be taken,
and be seen to be taken, not because of who someone is or isn't, but
because no one is above the law. We strongly urge OFAC to be aggressive
in prosecuting such cases.
In a related area, we encourage the Administration and the Congress
to make available sufficient resources to bring cases before a judge in
a timely manner.
Mr. Chairman, I am confident the day will come when the Cuban
people are able to welcome visitors to their shores freely and proudly
as equals, not slaves. Until that time, to abandon our travel
regulations would not only weaken respect for our laws, but would also
give de facto recognition to the dehumanizing efforts of the Castro
regime. I am proud of America for being the one nation that puts human
dignity above cheap package tours. We owe it to the Cuban people to
insist that their rights and dignity not be traded away for a handful
of sand. Thank you.
Senator Dorgan. Can you, for the record, describe your
background for us? I just did not have it in my record this
morning.
Mr. Hayes. I am a retired Foreign Service Officer. I had
Mr. Carragher's job. I was Coordinator for Cuban Affairs in the
1990s. I was Ambassador to the Republic of Surinam. I was also
President of the Foreign Service Union at one point, so I take
the union issues to heart.
Senator Dorgan. Thank you very much.
Mr. Hayes. Yes, sir.
Senator Dorgan. Let me ask a couple of questions of both of
you, if I might. Ambassador Hayes, you indicated that the Cuban
government bans contact with tourists by average Cubans. I have
been to Cuba once on an official visit and I found that,
walking around, I could talk to anybody about anything at any
time.
The only denial I received came when I wanted to go to a
prison and interview an economist who had been imprisoned.
Outside of that refusal, which I took directly to Fidel Castro,
I was free to talk to anybody, anywhere, at any time. In fact,
we had some meetings with dissidents and they were highly
critical of the Castro regime and demonstrably so. So I did not
get the same sense that there is a circumstance where tourists
do not have the opportunity to interact with Cubans.
Now, when you talk about this, you talk about it in the
context of hotels, and it may well be that these are gated
areas, where you go to a hotel on the beach somewhere and you
are not going to have a lot of contact. But if you go to
downtown Havana and go to the Floridita or wherever you go, you
can talk with anybody about any subject. Can you describe that
a little better for us?
Mr. Hayes. Certainly, Senator. There are a couple pieces to
that. One is those physical barriers between individual Cubans
and visitors, which are more evident, as you said, in the
tourist resort areas. Havana by its nature being a city, that
does not apply as much until, of course, you would like someone
to come back and visit or have a meal at a hotel.
But again, remember that the restrictions are not just on
you, they are very much on the Cuban people, and with a system
in place where basically the actions of people are monitored,
if not 100 percent, quite efficiently and effectively, everyone
who you talk to knows that the conversation that you had is one
that is measured.
I will note, for instance, in meeting with dissidents that
one of the more prominent economists, Marta de Matrice, who met
with President Fox, was detained, strip searched, held out of
her home. Her home was fumigated with some kind of poison
against her wishes. Why? Perhaps because she spoke out on
exactly those issues that you mentioned.
Senator Dorgan. Senator DeConcini, what has been your
experience?
Senator DeConcini. Mr. Chairman, there is no question, and
I agree with the Ambassador, there is still a tremendous amount
of tyranny, as there is in any communist country, whether it is
Cuba or China. You do not have the freedoms there. Nobody
pretends that they do or would argue that that is a good
system.
But my experience traveling there is like yours. Having met
with Fidel Castro, having met with those who oppose him, those
who have been persecuted and put in jail, and having absolute
free contact with anybody I have wanted to see except, as you,
someone who was in prison. That was the only person I was
denied to there. The U.S. Interests Section deserves a great
deal of credit for that because they helped organize those.
Yes, the Cuban government, I suspect, does not like it, and
sometimes they will discourage it, so I am told, but never to
me, and I have had that experience not only in Havana, which is
a large city, as the Ambassador points out, and more difficult
to constrain, but I have had that in many areas, Santiago and
Del Rio, the tobacco area, being able to walk through the
villages, walk into the tobacco farms, talk to the people who
are digging in the fields, have a cup of coffee with one of
them later in their house with no government official there.
Now, maybe there were listening devices, that this farmer was
going to convey something of national security to me, but we
know that is not true.
So it just does not hold up. I think one of the problems
that many who take the very strong position, and I respect the
Ambassador immensely, they have not traveled there. They have
not witnessed it and they do not want to really understand that
the Cuban people are the ones that are hurt by our policies and
not the one that we would like to hurt, perhaps.
Senator Dorgan. It seems to me the question for our
country, aside from the narrower question today of OFAC
resources and enforcement, the question for our country is,
what set of policies will best implement the removal of the
Castro government and move Cuba towards a free opportunity to
select their own government by the Cuban people.
I have traveled in Vietnam, I have traveled in China, I
have traveled in Cuba. Frankly, I see very little discernable
difference in traveling around those countries. They are all
communist countries.
As I said when I started this hearing, it is not my intent
ever to be supportive of a regime like Fidel Castro's regime.
The Cuban people ought to have the right to choose their
government. But there comes a time when the American policy has
to be reviewed. If you have a policy in place for 40 years and
you are not accomplishing your objectives, then it seems to me
you might evaluate whether that policy is working. Fidel Castro
has been in office during the term of ten U.S. Presidents. That
might persuade someone to say that our Cuba policy is not
working.
My own observation--and I would like, Mr. Ambassador, your
observation about it--my own observation is, having gone to
Cuba, and especially China, on these issues, is that those who
talk about trying to open the system with travel and free
markets and so on, that the quickest way to explode a
government that excuses its dismal economy on the U.S. embargo,
the quickest way to dismantle that government is to essentially
say this is open to travel and tourism and trade. My
expectation is that that would hasten the demise of the current
government in Cuba. Give me your impression of that, Mr.
Ambassador.
Mr. Hayes. Yes, sir. I will note the fact that we have had
ten Presidents and there has only been one in Cuba is a
reflection of the fact that we have a peaceful transfer of
power and Cuba does not have that possibility.
Senator Dorgan. Right.
Mr. Hayes. This is clearly a very difficult question
because I accept that there are a lot of people of good will
who come to this question and honestly disagree on how best to
achieve a given result, which, as you said, is the removal of
the Castro regime and allowing the Cuban people to have their
own say in what future they want, and that, of course, is the
bottom line.
I am skeptical that the actions which are proposed, which
is a unilateral lifting of our embargo, will, in fact, have the
effect that is desired in Cuba. I look at what the Canadians
have done over the past 10 years and I think, again, they went
in with very good intentions to cause positive reform, and if
you talk to the Canadians now, they will tell you that it did
not work.
Senator Dorgan. But let me just ask a quick question. Do
you believe that action had an impact on China?
Mr. Hayes. I am--I like to think of myself as consistent in
these policies. I do not agree with our China policy. I think
we trade the heroes of Tiananmen for cheap Happy Meal toys, but
that is a separate question.
I do think that, on the other hand, that when you can
engage someone and get an engagement back, then it is always
worth investigating and pursuing. A diplomat by training, I try
to overcome that conditioning, but there it is.
I do think that in the case of Cuba, if, for instance, Cuba
were to lift the ban to allow citizens to have free access and
free contact with tourists, if they allowed foreign companies
to hire Cuban workers and pay them directly, if they did not
practice the racial discrimination that they do, then the
equation changes and I then think that it would be appropriate
for us to take a look at it.
Senator Dorgan. Actually, consistency is an interesting
thing to hear in a Senate hearing, so congratulations.
I understand the point you make. It is one that I do not
share, but let me ask, and I would ask both of you, about the
issue of agriculture, that is, food and medicine. Do either of
you believe that it is ever appropriate to use food and
medicine as weapons in trade policy or weapons in economic
policy designed to punish a country? The reason I ask the
question is we are having quite a debate about that here in
Congress, as well. Senator DeConcini, would you like to answer
that?
Senator DeConcini. Mr. Chairman, it has been my sad
experience, I guess, to witness that firsthand here, having
served here for three terms, where it is well intended when you
impose those kind of sanctions and prohibitions, but actually,
even though the regime you are trying to topple benefits when
the flow of that food and medicine goes there, for most
examples that I can think of, it is impossible to keep it from
enhancing the ability of the people, in this case, Cuba, from
receiving it.
I visited with Cardinal Ortega there and with Caritas, the
organization there that attempts to do this, and they will tell
you, quite frankly, the people who need the food are getting
the food. Now, it does not mean that some people in the Castro
regime or the army are not also getting some of it. That
happened in Ethiopia. That happened in Somalia, where we had
tremendous non-government efforts but without the prohibitions.
I think it is a lesson well learned.
Your point as to China, and I appreciate the consistency of
our friend here, the Ambassador, I wish our policy had not
changed so dramatically to China, but it has and the reality is
it has worked. This administration understands it works. The
President is going to visit there again. More capitalism, more
small businesses are going there, and why? I think it is
because of the tremendous influence that Western Nations, and
particularly the United States, has there.
I am not a wagering man, Mr. Chairman, but I can almost
guarantee you from my experience there of over eight travels to
Cuba that if half a million or a million Americans travel there
over a 12-month period of time and spend $100 or $200 million,
Cuba would be substantially changed and then that government
could not withstand just the amount of information that would
be brought in and made accessible to Cubans. You cannot police
that, even in a communist society, in my judgment.
Senator Dorgan. Mr. Ambassador.
Mr. Hayes. Let me note this is my personal view as opposed
to the organization I represent and that, in my feeling, the
only time that you should restrict food and medicine is when it
is clear that it is used in such a way that it increases
repression or, rather, the control of a State over a
population, and I think that is a question that is not yet
fully answered with respect to Cuba, so in that case.
Sir, I would also note that throughout my career, I worked
very hard to encourage American exports, particularly
agricultural experts, to the countries where I served and my
experience was not just that farmers wanted to sell
agricultural products but that they wanted to get paid for
selling agricultural products, which, of course, brings us to
another issue, which is that it is one thing if Cuba wants to
buy American products. It is another if they want to simply get
them without paying.
Senator Dorgan. You would not expect that because we have
had an embargo on food to Cuba--now, that was lifted somewhat,
except you cannot even use private financing--you would not
expect that Fidel Castro ever would have missed a meal because
of our action, would you?
Mr. Hayes. No, sir.
Prepared Statement
Senator Dorgan. Let me do this. Mr. Frank Calzon from the
Center for Free Cuba has sent me a letter. I will ask Mr.
Calzon if he wishes to submit written testimony for the formal
hearing record. We were not able to have him testify.
[The statement follows:]
Prepared Statement of Frank Calzon, Center for a Free Cuba
This testimony is presented on behalf of the Center For A Free
Cuba, an independent, nonprofit, nonpartisan organization promoting
human rights and a peaceful transition to democracy in Cuba. The Center
participates in the national debate on Cuba, but does not take a
position either for or against legislation pending before Congress.
I am grateful to Chairman Byron L. Dorgan for this opportunity to
present our views about the U.S. ban on travel to Cuba and other
aspects of United States policy toward the island. A number of
organizations and individuals are urging Congress to lift the ban on
travel to Cuba, claiming that the travel restrictions unnecessarily
curtail civil liberties and that they can no longer be defended on the
grounds of national security. At the same time, some of these advocates
assert that lifting U.S. travel restrictions would help the people of
Cuba and hasten the end of the 42-year-old Castro dictatorship.
While we beg to differ, we urge the Congress to look beyond the
opinions bandied about and to review the facts carefully. It would be
ironic if in the name of advancing tourist travel, a leader of anti-
American violence around the world, a government on the U.S. Department
of State's list of sponsors of terrorism, and one of the world's
leading violators of human rights were to be bolstered by an infusion
of American-tourist dollars. A reappraisal of U.S. Cuba policy by the
Administration and Congress must take into account many issues; the
travel ban is just one. Among issues requiring urgent review are:
--The lack of reciprocity in the operations of the U.S. Interests
Sections in Havana and Cuba's Interests Section in Washington;
--A U.S. District Court's sentencing in December of Cuban spies
charged with trying to penetrate U.S. military bases (two to
life in prison, one to 15 years, and others to lesser
sentences);
--The September 2001 arrest of Ana Belen Montes, a veteran Defense
Intelligence Agency analyst, charged with spying for Havana.
According to press reports Ms. Montes duties included providing
the Pentagon information on the military capabilities of the
Castro government;
--The revelation in a book by the former deputy director of the
Soviet Union's program of biochemical weapons that Soviet
officers were convinced ``Cuba had an active biological weapons
program.'' (Ken Alibeck, ``Biohazard: The Chilling True Story
of the Largest Covert Biological Weapons Program in the World,
Random House, 2000; pages 273-277);
--The torturing of American servicemen (some of whom died) by Fidel
Castro's intelligence officers. See Sen. John McCain's Faith of
our Fathers (Random House, 1999), and Honor Bound: American
Prisoners of War in Southeast Asia 1961-1973, published by the
Naval Institute Press, Annapolis, 1999; and
--The statement by Fidel Castro at Teheran University last summer
that America was weak, and Iran and Cuba could bring the United
States ``to its knees.''
Those examples of the Cuban government's enmity are not, of course,
the subject of this hearing. The focus of this hearing is U.S.
restrictions on travel to Cuba and, to some extent, the sale of U.S.
agricultural products to the island. Allow me to discuss these two
issues in the context of advocating a prudent, pro-active policy
designed to encourage a transition to a democratic and prosperous Cuba.
I believe there are at least three questions that need to be answer:
--Does the Cuba-travel ban violate the U.S. Constitution?
--Will subsidized trade with Cuba help the American farmer or hurt
the U.S. taxpayer?
--Would the Cuban people benefit from American tourism?
does the cuba travel ban violate the u.s. constitution
First, it is simply wrong to suggest that Cuban-travel restrictions
are inconsistent with the exercise of rights guaranteed by the U.S.
Constitution. The United States Supreme Court squarely addressed the
issue in Regan v. Wald. The Court noted then that a citizen's right to
travel is infringed when, for example, the government prevents him/her
from traveling because of his/her political beliefs. The Court in Regan
made clear, however, that the executive branch may prohibit its
citizens, irrespective of political conviction, to travel to Cuba or
any other nation because of foreign-policy considerations. 468 U.S. at
241-42. In so doing, the Court specifically rejected suggestions that
changes in the ``geopolitical landscape'' would permit the judiciary to
second-guess the executive branch's determinations about what foreign
policy justifies a travel ban.
Some apparently feel that only another Cuban missile crisis would
make restrictions on travel to Cuba constitutional. They argue that
there is no ``emergency'' at the present time and that the relations
between Cuba and the United States are subject to ``only the normal'
tensions inherent in contemporary international affairs.'' The holding
[in prior Supreme Court decisions], however, was not tied to an
independent foreign-policy analysis by the Court. Matters relating ``to
the conduct of foreign relations . . . are so exclusively entrusted to
the political branches of government as to be largely immune from
judicial inquiry or interference.''
This clear statement belies any suggestion that changes in the
``geopolitical landscape'' make unconstitutional today what was
constitutional in 1984. Despite ``changing conditions,'' since Regan,
every court has rejected the invitation to find the executive branch's
policy on the Cuba travel restrictions unconstitutional. e.g., U.S. v.
Plummer, 221 F.3d 1298, 1309-10 (11 Cir. 2000); Freedom to Travel v.
Newcomb, 82 F. 3d 1431, 1439 (9th Cir. 1996). There simply is no
responsible legal basis for the suggestion that the Cuba travel ban
violates the Constitution.
Other ``legal'' arguments advanced for repeal are no more
persuasive. It is absurd to suggest that travel restrictions should be
lifted because those who violate them don't know about them. A
defendant showing he/she was unaware of a law might reasonably expect a
court to consider that before deciding what punishment to impose. It is
not grounds for a court to repeal a law that has been violated. A
second argument, that people ``intent'' on visiting Cuba will
necessarily violate the law, seems equally illogical. Congress would
not repeal anti-drug legislation because drug addicts are ``intent'' on
smoking dope. Even if one assumes bureaucratic failings in the Treasury
Department's Office of Assets Control and Customs, it would not be a
basis for repeal. If such reasoning were accepted, the Internal Revenue
Code also would be imperiled.
The truth is that there are no ``legal'' arguments for repeal of
the Cuban travel restrictions. Such arguments are ``smoke'' intended to
obscure a policy debate. It is telling that those urging a change of
policy feel it necessary to try so hard to obscure their intent.
will subsidized trade with cuba help the american farmer or hurt the
u.s. taxpayer
Fidel Castro's most persistent trait since assuming power in 1959
has been anti-Americanism. Now he says he wants to help American
farmers and trade with the United States. By Castro's reckoning,
selling grain and other commodities to Cuba will greatly benefit
American farmers.
The American economy today is grappling with the Enron fiasco,
which can be attributed to the company's manipulation of its fiscal
data, and the unwillingness of Executive branch regulators and
Congressional policy makers to ask tough questions. It is up to
Congress today to ask whether profits from trade with Cuba aren't
another mirage. And whether American taxpayers won't take another hit
if Fidel Castro's campaign to win credits, export insurance and export
guarantees succeeds? Will gullible Americans also be swindled by
Castro?
Harvard scholar and former U.S. Sen. Daniel Patrick Moynihan once
said that ``we are all entitled to our own opinions, but not to our own
facts.'' What are the facts?
Say what you will about the ineffectiveness of the U.S. embargo,
one of the best-kept secrets of the embargo is that it has saved U.S.
taxpayers millions. Because of the embargo American banks aren't part
of the consortium of creditors known as ``the Paris Club'' waiting to
be paid what they're owed by Havana. If they were, you and I both know
they would be pressing Congress to find a way for U.S. taxpayers to
cover their losses in Cuba.
Since 1986 Castro's Western creditors (including Canada, France,
and Spain) have sought to recover some part of their $10 billion in
loans to Cuba. Havana refuses even to repay Moscow's larger loans,
insisting that its debt was to the Soviet Union, ``a country that no
longer exists.''
American agribusiness believes there are huge profits to be made by
trading with Havana. It believes foreign policy considerations should
not prevent trade even if strengthening regimes like Libya, Iraq and
Cuba might someday put the lives of U.S. servicemen at risk. Providing
trade benefits to America's enemies, especially those in the State
Department's list of terrorist nations makes, as much sense as the sale
of U.S. scrap metal and bauxite to Japan in the 1930's. Some of those
materials were used to build up the Japanese military, leading to the
attack on Pearl Harbor.
In June 2000, Congress lifted sanctions on sales of agricultural
products and medicine to Cuba. For more than a year, there were no
sales. In the aftermath of a devastating hurricane in November of 2001,
the Bush Administration offered humanitarian assistance to Cuba.
Instead of promptly accepting the assistance and thanking the United
States, Castro turned the offer into a public-relations stunt,
insisting Cuba would buy $30 million in commodities from the United
States and initiating a political and public relations campaign to win
U.S. credits and export insurance for future ``sales.''
The Castro government, however, is broke. It suspended payments on
foreign debt in 1986. And although Castro has managed to reschedule
some debts, he continues to have difficulty paying his creditors. It is
tragic that Castro's sales pitch are accepted at face value without
checking available economic data, and would be worse if U.S. taxpayers
wind up encumbered with the risk of making good on subsidized credits
(to Castro) and export insurance (to American corporate interests). As
AmCham Cuba, (The American Chamber of Commerce of Cuba in the United
States) reports in its February 2002 newsletter:
``Cuba's economic woes continue to mount as a result of being
especially hard hit by the worldwide economic slow down and the fall-
off in international travel after the September 11 attacks. Tourism,
Cuba's most important economic sector has declined sharply. Hotel
occupancy is down at least 25 percent in Havana, 40 percent in
Varadero--Cuba's second largest source of foreign exchange, expatriate
remittances are down due to the downturn in the U.S. Removal of Russian
surveillance facilities cost the Cuban economy $200 million in Russian
rent. Vice President Carlos Lage has cited the hard blow' by a fall in
world prices for Cuba's commodity exports such as sugar and nickel.''
In the 1960s, when Castro expropriated U.S. and Cuban businesses,
Washington banned all trade with Cuba. Castro now lures businessmen by
telling them that they are ``losing business.'' But according to a
recent U.S. International Trade Commission report, ``U.S. sanctions
with respect to Cuba [have] had minimal overall historical impact on
the U.S. economy'' and ``even with massive economic assistance from the
Soviet Union, Cuba remained a small global market relative to other
Latin American countries.''
The commission estimated ``that U.S. exports to Cuba in the absence
of sanctions, based on average 1996-98 trade data, would have been less
than 0.5 percent of total U.S. exports.'' And that ``estimated U.S.
imports from Cuba . . . excluding sugar (U.S. sugar imports are
government regulated) would have been approximately $69 million to $146
million annually, or less than 0.5 percent of total U.S. imports.''
The report asserts, ``U.S. wheat exports to Cuba could total
between $32 million and $52 million annually, about 1 percent of recent
U.S. wheat exports.''
Economic data about Cuba is difficult to obtain. But consider this:
During the year 2000 France withheld a shipment of grain due to
Castro's inability to pay for earlier transactions and canceled $160
million in new credits to Havana. In early 2001, Chile was attempting
to establish ``a payment plan'' for a $20-million debt for mackerel
shipped the previous year. South Africa, according to The Johannesburg
Sunday Times was ``frustrated'' by Havana's failure to settle a $13-
million debt, and Pretoria's Trade and Industry Ministry refused to
approve credit guarantees to Cuba. Last year (2001), Thailand also
refused to provide export insurance, resulting in the cancellation of
rice sales to the island worth millions of dollars.
According to the commission report, rice exports to Cuba would be
worth between $40 million and $59 million, increasing the value of U.S.
rice exports by 4 to 6 percent: ``U.S. exporters would be highly
competitive with current suppliers.'' But the report cautions that
Castro's trade decisions are based on politics, not on economics.
Castro is unlikely to give the Americans the market share that he
provides his ideological allies: China and Vietnam.
Unfortunately, Castro's trade partners often become apologists for
the regime, fearing to say anything that endangers their investments in
Cuba. They have found out the hard way what happens when Castro feels
insulted by demands to pay.
Louisiana rice and Illinois wheat producers should stop assuming
that ``selling'' to Havana is synonymous with getting paid. U.S.
taxpayers should be wary.
Castro desperately needs credits and subsidies. Washington is under
pressure from agri-business to provide credits and subsidies. If all of
us accept estimates that U.S. trade with Cuba might rise to $100
million per year, then five years from now American taxpayers will have
guaranteed $500 million in credits and insurance. That's real money,
everywhere.
Before extending credit to Castro, Americans should visit New York
City and watch how three-card monte is played on some street corners.
The dealer shows three cards, shuffles them, places them face down and
invites spectators to bet they can identify one. In this game, the
gambler voluntarily takes his chances. Where trade with Castro is
concerned, it's the U.S. taxpayer will be left holding the losing card.
would the cuban people benefit from american tourism
Let us now look at the policy considerations. The stated goal of
U.S. policy is to contain the Castro's communist regime by limiting its
access to hard currency and promoting democracy and a rule of law.
How would a change in current travel restrictions in regard to Cuba
impact U.S. goals and interests? Would opening Cuba to dollar-spending
American tourists subsidize repression and assist Fidel Castro in
legitimizing the ``tourist apartheid'' he has imposed on Cubans?
The Castro government sets aside hotels, beaches, stores,
restaurants, even hospitals and clinics for foreigners and prohibits
Cubans from staying in those hotels or patronizing those facilities. Do
Americans who advocate changes in U.S. travel policy have any moral
responsibility to raise the issue of this apartheid? Should the rights
of vacationing American tourists supersede the right of people living
in Cuba to move freely about their own country? To eat at the same
restaurants? Visit the same beaches? Obtain care in the same clinics?
At the beginning of the 21st Century, it no longer suffices to say
that what happens 90 miles away is not America's business. The long
history of misguided U.S. policies toward Latin America should raise a
cautionary flag when dealing with Cuba. The Cuban people are asking
today, and will ask tomorrow: Where are their American friends in time
of need? How many business leaders and Congressional visitors have
asked President Castro to lift his tourist apartheid? Allow the
International Committee of the Red Cross to visit Cuba's political
prisoners? Grant Cubans the same economic rights and privileges enjoyed
by foreigners?
And what about the right of U.S. citizens to use international
airspace? Six years ago Castro's warplanes shot down two small civilian
aircraft in international airspace over the Florida Straits. Three U.S.
citizens died. So did a Cuban citizen who was legally residing in the
United States. The Clinton Administration presented indisputable
evidence to international organizations that the Castro government
deliberately murdered these men. Would it be fair to say that the right
to live is just as important as the right to travel? Will America's
civil-rights organizations so concerned about international travel join
the families of those who died in seeking an indictment of those who
pulled the trigger?
The Cuban regime needs the hard currency of foreign tourists to
maintain its repression. As I said earlier Castro's communist
government is bankrupt. Yet the dictator continues to muster and
mobilize foreign apologists to press for access to American-funded
trade credits and loan guarantees and to American tourist dollars.
The discussion on lifting the sanctions is somewhat schizophrenic:
Some argue that lifting the travel ban will save the ``achievements''
of the Cuban Revolution. Others say that American tourists will ensure
collapse of the Castro dictatorship. Both groups cannot be right, but
both can be wrong. Many Central European leaders believe that radio
broadcasts and solidarity with dissidents were extremely important in
helping them win their struggle for freedom, but that Western loans and
tourism propped up communist regimes that would have collapsed much
earlier.
Professor Jaime Suchlicki, a noted historian at the University of
Miami, has written [``American tourists would boost Castro,'' The
Providence Journal, Jan.10, 2001] that the belief that unilaterally and
unconditionally lifting the travel ban ``would benefit the Cubans
economically and hasten the downfall of communism--is based in several
incorrect assumptions.'' The first is ``that Castro and the rest of the
Cuban leadership are naive and inexperienced and, therefore, would let
tourists from the U.S. subvert the revolution and influence internal
developments. The second is that Castro is so interested in close
relations with the United States that he is willing to risk what has
been uppermost in his mind for 41 years--total control of power and a
legacy of opposition to `Yankee imperialism'--in exchange for economic
improvements for his people.''
Dr. Suchlicki also writes that lifting the travel ban without
securing meaningful changes in Cuba would:
--Guarantee the continuation of the current totalitarian structures.
--Strengthen state enterprises because the money would flow into
businesses owned by the Cuban government. (Most businesses are
owned in Cuba by the state and, in all foreign investments the
Cuban government retains a partnership interest.);
--Lead to greater repression and control since Castro and the rest of
the leadership would fear that U.S. influence would subvert the
revolution and weaken the Communist Party's hold on the Cuban
people.
--Delay instead of accelerate a transition to democracy in the
island.
-- Send the wrong message to the enemies of the United States: that a
foreign leader can seize U.S. properties without compensation;
allow the use of his territory for the introduction of nuclear
missiles aimed at the United States; espouse terrorism and
anti-U.S. causes throughout the world; and eventually, the
United States will ``forget and forgive,'' and reward him with
tourism, investment, and economic aid.
Some argue that tourism and foreign investors would help bring
respect for human rights in Cuba. But in the absence of other factors,
the statement is simply not supported by the facts. As reported by the
AmCham Cuba Newsletter (February 2002), ``A Congressional delegation
came under fire in Cuba for focusing only on criticism of U.S.
sanctions at the expense of discussion on Cuba's internal human rights.
A leading Cuban dissident, Oswaldo Paya of the Christian Liberation
Movement, said the only issue the delegation wanted to discuss was the
embargo. Paya charged that the visitor should `Question whether there
exists conditions whereby Cubans can freely participate with dignity in
commerce, foreign investments, and cultural exchanges.' ''
Despite millions of foreign tourists every year Cuba remains a
totalitarian state. Canada has acknowledged that its ``policy of
engagement'' has failed to produce any significant change in the human
rights situation on the island. Why should American tourists have an
impact different from that of the thousands of Canadians who have been
visiting Cuba for years?
Castro wants the benefits of capitalism, without Cuban capitalists.
Cuban workers are badly treated. Strikes and nongovernmental labor
unions are forbidden. Foreign investors cannot hire workers directly.
Sheritt, the Canadian nickel company, pays Castro $9,500 per year per
worker; the regime pays the workers the equivalent of $20 a month.
Castro has allowed some minimal reforms due to the economic crisis. In
a perverse way, those who favor lifting the sanctions on Castro's terms
will discourage any future economic or political reforms. The real
embargo responsible for Cuba's misery is the Marxist, command economy
that failed in the Soviet Union and every where else it has been tried.
Castro goes to great lengths to restrict any number of rights of
the Cuban people. Cubans are required to obtain ``an exit permit''
before leaving Cuba. Cuban citizens abroad must obtain a visa from a
Cuban consulate before returning home. Cubans emigrating from the
island are not allowed to buy plane tickets with pesos; they must have
dollars. They are allowed to take with them only ``personal property,''
some clothes, etc. The government confiscates everything else: cars,
furniture, electric appliances, kitchen utensils, etc.
Before Cubans are allowed to leave the island they must pay several
hundred dollars to the government in ``processing fees.'' Because most
Cubans do not earn dollars, they depend on someone outside the island
to pay the fees and to buy their plane tickets. A Cuban family would
have to save all of its earnings for 10 years or more to accumulate the
amount required to buy three plane tickets and pay government exit
fees.
There are many Cubans who have visas issued by the United States or
other governments and who have money from family or friends abroad but
are arbitrarily denied exit visas by the Castro government. Here are a
few of their stories:
Lazara Brito and her children Yanelis, Yamila, and Isaac were
granted U.S. visas in 1996, but remain virtual hostages in Havana.
Castro will not allow them to join her husband and their father Jose
Cohen in the United States. Cohen, once a Cuban intelligence officer,
was granted political asylum in the United States in 1994. Despite his
appeals to Americans and international organizations who meet with
Castro, his family remains in Cuba. They are not charged with any
crime. Lazara Brito has written: ``neither I nor my three children can
have legal representation. My husband, who is abroad, and I here call
out for help from all who believe in human rights everywhere.''
Blanca A. Reyes Castano son, Miguel Angel Sanchez Reyes, has lived
in Miami since 1993. She has seen him only three times in eight years.
Twice he came to Cuba, and once she visited him in the United States.
Mrs. Reyes wrote: ``On 16 November 2000, after waiting for 63 days and
having attained a U.S. visa to travel to see him, Cuba's Inmigration
Department refused to grant me the required exit permit. They said they
were following Cuba's laws. I asked, what laws do not allow a mother to
visit her son? I have yet to receive an answer.'' Why would the Castro
government deny her an exit visa? She is the wife of Raul Rivero, a
dissident poet who is also not allowed to travel. Reporters Sans
Frontieres, Amnesty International and other organizations have
denounced the persecution, harassment and imprisonment of Cuban
independent journalists and their families. ``One would have thought,''
she says ``that the solution is for my son to visit us in Cuba, but I
fear for his safety. My brother-in-law who resides in Canada obtained a
Cuban visa, but when he arrived he was placed under virtual house
arrest. He wasn't allowed to see his 82-year-old mother or his brother
Raul. Is it unreasonable to think that something like that would happen
to my son if he returns to Cuba?''
Iris Gonzalez-Rodiles Ruiz has not seen her son Greco in more than
two years. She has yet to meet her first grandson, Rafael Diego, now a
year old. Her daughter in law, Daniela, is a Swiss citizen. Cuban
authorities denied her the required ``exit permit'' to visit her family
in Bern to help take care of her grandson, who suffers from allergies
and asthma and requires special care.
``The authorities refused to tell me the reason I am not allowed to
travel abroad,'' she says. ``They claim they do not have to tell me
why.'' She is an independent journalist.
Ohalys Victores Iribarren is also an independent journalist. The
authorities will not allow him to travel abroad because he writes for
``media not under the control of the Cuban government.'' He says he
does not wish to leave Cuba, ``but due to political reasons I am being
forced to leave.'' He has a U.S. visa. His family already lives in the
United States.
For more than 10 years Oswaldo de Cespedes Feliu has challenged the
Cuban government working four of those years as an independent
journalist. Fidel Castro has referred to him on Cuban TV, mentioning
his name. As a result Oswaldo says he and his family are ``very
fearful.'' On March 15, 2001, at the International Airport Jose Marti
in Havana the Cuban authorities blocked his departure for the United
States. On April 25 his children and wife were allowed to leave, but
the Castro regime continues to deny him the right to emigrate. He has
been interrogated by State Security, and ``The authorities have turned
a deaf ear to my petition to allow me rejoin my family in the United
States.''
In conclusion, let us not pretend that Americans have an absolute
right to vacation in Cuba.
U.S. policy toward travel to Cuba is correct when it takes into
account Castro's denial of civil liberties in Cuba, his 42 years of
allying Cuba with the world's rogue regimes and sponsoring anti-
American violence, and continuing efforts to manipulate American
institutions and public opinion. Again, in 1984 the Supreme Court ruled
that restrictions on travel to Cuba ``are justified by weighty concerns
of foreign policy.'' That is true today as well. Defense of civil
liberties in this country neither requires nor warrants spending
American dollars to subsidize repression in Cuba.
Senator Dorgan. The American Civil Liberties Union has
provided testimony submitted by Timothy Edgar that we will make
a part of the record.
[The statement follows:]
Prepared Statement of Timothy H. Edgar, American Civil Liberties Union
Mr. Chairman, Senator Campbell and members of the subcommittee: On
behalf of the American Civil Liberties Union (ACLU) we commend you for
holding this important oversight hearing of the Treasury Department's
Office of Foreign Assets Control (OFAC), which is charged with
enforcing the government's restrictions on travel to Cuba.
The ACLU is a non-partisan, non-profit organization with
approximately 300,000 members, dedicating to preserving our freedoms as
set forth in the Constitution and the Bill of Rights. We believe that
the restrictions on travel to Cuba infringe on the constitutional right
of Americans to travel freely across borders, and are not justified by
any valid interest that could overcome that right.
Last July, the ACLU supported an amendment to H.R. 2590, the fiscal
year 2002 Treasury/Postal Appropriations Bill, that would have ended
funding for enforcement of the restrictions on travel to Cuba. That
amendment, offered by Representatives Jeff Flake (R-AZ), Jim McGovern
(D-MA), Jerry Moran (R-KS) and Howard Berman (D-CA) was approved by a
strong vote of 240-186. Unfortunately, the amendment was not included
in the final legislation.
As former Supreme Court Justice William Douglas observed,
``[f]reedom of movement is the very essence of our free society,
setting us apart. . . it often makes all other rights meaningful.'' The
Supreme Court has repeatedly recognized that the right to travel is
protected under the Fifth Amendment as a liberty interest that cannot
be denied without due process of law. Moreover, freedom of movement
allows access to information and encourages the free exchange of ideas
and opinions, and thus implicates the First Amendment rights of
Americans. Like the freedom of speech, association, and assembly, the
right to travel promotes our democratic values of individual autonomy,
truth-seeking, and self-government. For example, every person should be
free to learn firsthand about the government of Cuba--and of the
policies and activities of the U.S. government in Cuba--in order to
participate meaningfully in the public debate on crucial foreign policy
issues related to Cuba. When the Supreme Court considered restrictions
on travel to Cuba in Regan v. Wald, 468 U.S. 222 (1984), it held by a
narrow margin that the travel restrictions were permissible only in
light of the overriding Cold War national security concerns asserted by
the government, concerns that the end of the Cold War have rendered
obsolete.
Under current Treasury Department regulations, Americans are
generally restricted from spending money in the course of their travel
to Cuba--a subterfuge effectively restricting travel itself to Cuba.
Foreign policy should not be implemented by methods that violate a
constitutional freedom. As a general rule, the government should not
restrict travel to a particular country unless it is in the midst of an
actual military conflict.
ACLU has received disturbing reports of increased harassment by the
Treasury Department of American citizens and residents who have
traveled to Cuba pursuant to current law. We urge the Subcommittee to
determine whether stepped up enforcement of this misguided policy is an
appropriate use of government resources at this time in our history.
Ultimately, we believe Congress should put a stop to this unwarranted
government intrusion into the freedom of American citizens and
residents by adopting legislation to end the travel ban once and for
all.
When Americans travel abroad, they spread our values of freedom and
justice and help advance the free inquiry of ideas and free flow of
information beyond our borders. The collapse of Communism in the former
Soviet bloc--nations to which Americans' travel was not restricted by
the U.S. government--instruct that one way to bring about democratic
change is through personal interaction and sharing of our democratic
ideals. This principle has been the basis for the limited ``people to
people'' contacts among Cubans and Americans allowed under current law.
Ensuring the constitutional right of U.S. citizens and lawful permanent
residents to travel will promote democracy and human rights in Cuba,
not the government of Fidel Castro.
There is no justification for restricting travel to Cuba simply
because of its deplorable human rights record or lack of diplomatic
relations with the United States. Americans currently are permitted to
travel to such countries as Sudan and Iran, with which the U.S. has no
diplomatic relations, which have poor human rights records and where
Americans might face danger. The choice to engage in travel should rest
with the individual, not with the government.
Ending the Cuba travel restrictions would promote individual
liberty and begin to reverse an unproductive U.S. policy towards Cuba
by ending funding for limiting travel-related expenditures by United
States citizens and lawful resident aliens of the U.S. when they travel
to Cuba. We urge that you do so this year.
Conclusion of hearing
Senator Dorgan. I thank you, Senator DeConcini, and you,
Ambassador Hayes, for being here to testify. You know that this
issue will have substantial attention by the Congress this
year. We wanted to talk specifically about OFAC, the Treasury
Department enhanced enforcement, but more broadly, as well,
about the policy issues that underline all of these.
We thank all of you, especially those who have traveled
some distance to be here today. It will contribute to the
debate in this Congress to have had this hearing.
This hearing is now recessed.
[Whereupon, at 12:25 p.m., Monday, February 11, the hearing
was concluded, and the subcommittee was recessed, to reconvene
subject to the call of the Chair.]
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