With the formal creation this year of its Cuba Travel project, CCR now has approximately thirty open files on individuals and organizations facing charges or investigation by the Office of Foreign Assets Control (OFAC), a division of the Department of the Treasury, for violation of the Cuba travel embargo. These clients face civil penalties for allegedly unauthorized expenditure of U.S. funds in Cuba.
The regulations (Cuban Assets Control Regulations, promulgated pursuant to the Trading With the Enemy Act) do not prohibit travel to Cuba per se; an earlier, 1963 version of the law banned travel outright, but was found to violate the First Amendment. The regulations do prohibit transfer of U.S. funds to a Cuban national (i.e., spending money destined toward a Cuban person or entity, whether done in or outside of Cuba). There are three categories of exceptions to the ban.
The first category includes: government officials on official business; members of international organizations of which U.S. is a member; traveling on official business; journalists regularly employed as such; and individuals visiting close family members, no more than once a year, in circumstances of “extreme humanitarian need.” Expenditure of U.S. funds in this first category enjoys a “general license” for which no application need be made to OFAC in advance of a trip.
The second category includes expenditures pursuant to travel for professional research or similar activities; extreme humanitarian need in excess of once a year; religious travel; import/export of information and informational materials; and support for civil society. Expenditures in this category are only permissible if “licensed” by OFAC, pursuant to application on a per-trip basis.
The third category of exceptions to the ban, call “fully hosted travel,” is one in which all expenses are paid by a Cuban national or by a person or organization that is not subject to the embargo regulations.
CCR maintains that on their face, the prohibitions violate rights to travel and freedom of association guaranteed by the First Amendment and by the International Covenant on Civil and Political Rights. In addition, the regulations are vague in that they fail to clearly apprise the reader of parameters of prohibited conduct, and are overly broad. Together with the excess of discretion exercised by OFAC bureaucrats in considering license applications and in enforcing alleged violations, this results in discriminatory and arbitrary application of regulations, amounting to a denial of due process and equal protection of the laws.
In the process of defending clients charged with embargo violations, CCR is amassing evidence of discrimination and arbitrariness in OFAC’s procedures, including selective application of both licensing and enforcement proceedings, often seemingly based on impermissible factors such as race, national origin, or political viewpoint. We expect to use this evidence not only in each individual case OFAC brings against our clients, but also to mount an affirmative challenge to the entire regime of Cuban embargo laws and regulations.
Gabor Rona, Michael Ratner, Margaret Ratner, Michael Krinsky and David Love