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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

(II)

COMMITTEE ON APPROPRIATIONS

ROBERT C. BYRD, West Virginia, Chairman

DANIEL K. INOUYE, Hawaii

ERNEST F. HOLLINGS, South Carolina

PATRICK J. LEAHY, Vermont

TOM HARKIN, Iowa

BARBARA A. MIKULSKI, Maryland

HARRY REID, Nevada

HERB KOHL, Wisconsin

PATTY MURRAY, Washington

BYRON L. DORGAN, North Dakota

DIANNE FEINSTEIN, California

RICHARD J. DURBIN, Illinois

TIM JOHNSON, South Dakota

MARY L. LANDRIEU, Louisiana

JACK REED, Rhode Island

TED STEVENS, Alaska

THAD COCHRAN, Mississippi

ARLEN SPECTER, Pennsylvania

PETE V. DOMENICI, New Mexico

CHRISTOPHER S. BOND, Missouri

MITCH MCCONNELL, Kentucky

CONRAD BURNS, Montana

RICHARD C. SHELBY, Alabama

JUDD GREGG, New Hampshire

ROBERT F. BENNETT, Utah

BEN NIGHTHORSE CAMPBELL, Colorado

LARRY CRAIG, Idaho

KAY BAILEY HUTCHISON, Texas

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

MARY L. LANDRIEU, Louisiana

JACK REED, Rhode Island

ROBERT C. BYRD, West Virginia

(ex officio)

BEN NIGHTHORSE CAMPBELL, Colorado

RICHARD C. SHELBY, Alabama

MIKE DEWINE, Ohio

TED STEVENS, Alaska

(ex officio)

Professional Staff

CHIP WALGREN

NICOLE RUTBERG

PAT RAYMOND (Minority)

LULA EDWARDS (Minority)

(III)

CONTENTS

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

(1)

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?

2

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.

3

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.

4

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

5

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 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, ‘‘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

6

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 educationallyrelated 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 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.

7

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

8

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

9

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.

10

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

11

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

12

1 American Go Journal, Fall 2000 Volume 34, Number 3, ‘‘The Travelling Go Board—Go in

the land of Capablanca.’’

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.

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,

13

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

14

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 liVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
15

cense 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?’’

16

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 reVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
17

search 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.’’

18

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

19

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 nongovernmental 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 ‘‘DiVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
20

ploma’’ 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

21

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 peopleto-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.

22

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.

23

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.

24

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 evenhanded 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

25

1See Agricultural Rural Development, Food and Drug Administration, and Related Agencies

Programs for fiscal year 2001, § 910(b), amending the Trade Sanctions Reform and Export Enhancement Act at 22 U.S.C. § 7209(b). 2 Id. See also 31 C.F.R. §§ 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 §§ 1 et seq. The restrictions on travel to Cuba are also authorized by

the Cuban Democracy Act of 1982, 22 U.S.C. §§ 6001 et seq., the Cuban Liberty and Democratic

Solidarity Act of 1996 (Helms-Burton Act), 22 U.S.C. §§ 6021 et seq., and the Trade Sanctions

Reform and Export Enhancement Act, 22 U.S.C. § 7209. 5See 31 C.F.R. § 515.420.

6 31 C.F.R. § 500.701(a)(1).

7 31 C.F.R. § 500.701(a)(3).

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

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

26

8 Kent v. Dulles, 357 U.S. 116, 125 (1958). 9 Aptheker v. Secretary of State, 378 U.S. 500, 520 (1964) (Douglas, J., concurring). 10Zemel v. Rusk, 381 U.S. 1, 24 (1965) (Douglas, J., dissenting). 11 Id. at 16. 12 Regan v. Wald, 468 U.S. 222, 243 (1984). 13See 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 <http://www.defenselink.mil/pubs/cubarpt.htm>; Dana Priest, ‘‘Cuba Poses ’Negligible’ Threat, Report Says,’’ The Washington Post, May 7, 1998, at p.A8. 14 Regan v. Wald, 468 U.S. at 245. 15The 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.

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:

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

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

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

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

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

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

27

16The 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. 17The 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.

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.

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 PrePenalty 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 underVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
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18 Kent v. Dulles, 357 U.S. at 126. 19See 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. 20See, e.g., ‘‘OFAC Travel License Survey Responses,’’ Fund for Reconciliation and Development (February 8, 2002).

stand the travel restrictions, believe themselves to be in compliance with them, and

are truthful with the Customs Service.

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.

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

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 evenhanded manner, promotes the inconsistent and irrational treatment of applications

that we have witnessed.20

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, interroVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
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21Glen McGregor and Mike Trickey, ‘‘Canada Opposes U.S. Crackdown on Cuba Visitors,’’ Ottawa Citizen, September 1, 2001. 22 Rafael Lorente, ‘‘U.S. Tightens Cuban Embargo,’’ The Washington Times, July 5, 2001. 23 Id. 24See Sullivan, ‘‘Americans Defy Cuba Embargo,’’ supra note 16.

gated 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

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

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

30

25Ken Guggenheim, ‘‘Lengthy Backlog of Cuba Travel Cases,’’ AP Online, December 16, 2001. 26 Id. 27See Executive Order 13224, ‘‘Blocking Property and Prohibiting Transactions with Persons

who Commit, Threaten to Commit, or Support Terrorism’’ (September 24, 2001). 28See Freedom to Travel Campaign v. Newcomb, 83 F.3d 1431 (9th Cir. 1996). 29See supra Note 1.

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

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

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 § 7209(b), has codified the

travel restrictions in the Cuban Assets Control Regulations into law.29

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,

31

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.

32

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

33

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.

34

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 reVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
35

searchers, 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 authorVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
36

ized 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 acaVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
37

demic 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 beVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6602 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
38

tween 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

39

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. 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.

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 witVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
40

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).

nesses 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

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 peopleto-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

41

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.

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 fulltime 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 democraticallyelected government in Cuba.2

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)

42

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

43

3General 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.

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

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.

44

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.]

45

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,

46

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-topeople 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?

47

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

48

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 prepenalty 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

49

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

50

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.

51

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

52

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

53

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?

54

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

55

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

56

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.

57

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.

58

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, ConVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
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gress, 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 carVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
60

tel, 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

61

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 inforVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6621 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
62

mation 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.

63

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

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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

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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.

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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

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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);

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—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 antiAmericanism. 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.

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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 bestkept 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.’’

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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 dicVerDate 21-JUN-2000 13:00 May 02, 2002 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6621 U:\13HEAR\2003\78446.XXX DORISJ PsN: DORISJ
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tator 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.

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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 Castan ̃ o ́ son, Miguel Angel Sa ́nchez 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.

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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

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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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