```

[Senate Hearing 107-361]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 107-361
 
                     RESTRICTIONS ON TRAVEL TO CUBA
=======================================================================

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

                      COMMITTEE ON APPROPRIATIONS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            SPECIAL HEARING
                   FEBRUARY 11, 2002--WASHINGTON, DC
                               __________

         Printed for the use of the Committee on Appropriations

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate
                                 ______

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_____________________________________________________________________________
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                      COMMITTEE ON APPROPRIATIONS

                ROBERT C. BYRD, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             TED STEVENS, Alaska
ERNEST F. HOLLINGS, South Carolina   THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont            ARLEN SPECTER, Pennsylvania
TOM HARKIN, Iowa                     PETE V. DOMENICI, New Mexico
BARBARA A. MIKULSKI, Maryland        CHRISTOPHER S. BOND, Missouri
HARRY REID, Nevada                   MITCH McCONNELL, Kentucky
HERB KOHL, Wisconsin                 CONRAD BURNS, Montana
PATTY MURRAY, Washington             RICHARD C. SHELBY, Alabama
BYRON L. DORGAN, North Dakota        JUDD GREGG, New Hampshire
DIANNE FEINSTEIN, California         ROBERT F. BENNETT, Utah
RICHARD J. DURBIN, Illinois          BEN NIGHTHORSE CAMPBELL, Colorado
TIM JOHNSON, South Dakota            LARRY CRAIG, Idaho
MARY L. LANDRIEU, Louisiana          KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island              MIKE DeWINE, Ohio
                  Terrence E. Sauvain, Staff Director
                 Charles Kieffer, Deputy Staff Director
               Steven J. Cortese, Minority Staff Director
            Lisa Sutherland, Minority Deputy Staff Director
                                 ------                                

            Subcommittee on Treasury and General Government

                BYRON L. DORGAN, North Dakota, Chairman
BARBARA A. MIKULSKI, Maryland        BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana          RICHARD C. SHELBY, Alabama
JACK REED, Rhode Island              MIKE DeWINE, Ohio
ROBERT C. BYRD, West Virginia        TED STEVENS, Alaska
  (ex officio)                         (ex officio)

                           Professional Staff

                              Chip Walgren
                             Nicole Rutberg
                         Pat Raymond (Minority)
                    Lula Edwards (Minority)
                           deg.C O N T E N T S

                              ----------                              
                                                                   Page
Opening statement of Senator Byron L. Dorgan.....................     1
Statement of Marilyn Meister.....................................     3
    Prepared statement...........................................     5
Statement of Cevin Allen, Sammamish, Washington..................     6
    Prepared statement...........................................     8
Statement of John Harriman, Chicago, Illinois....................    10
    Prepared statement...........................................    12
Statement of John I. Gilderbloom, Ph.D., Professor, Department of 
  Urban and Public Affairs, College of Business and Public 
  Administration, University of Louisville.......................    13
    Prepared statement...........................................    16
    Biographical sketch..........................................    21
Statement of Nancy Chang, Center for Constitutional Rights.......    22
    Prepared statement...........................................    25
Statement of Richard Newcomb, Director, Office of Foreign Assets 
  Control, Department of the Treasury............................    33
    Prepared statement...........................................    40
Statement of James Carragher, Coordinator for Cuban Affairs, 
  Department of State............................................    45
    Prepared statement...........................................    45
Statement of Hon. Dennis DeConcini, former U.S. Senator from the 
  State of Arizona, on behalf of the Alliance for Responsible 
  Cuba Policy....................................................    56
    Prepared statement...........................................    58
Statement of Ambassador Dennis K. Hayes, Vice President, Cuban 
  American National Foundation...................................    60
    Prepared statement...........................................    61
Prepared statement of Frank Calzon, Center for a Free Cuba.......    67
Prepared statement of Timothy H. Edgar, American Civil Liberties 
  Union.....................................................73

                               (iii) 

                     RESTRICTIONS ON TRAVEL TO CUBA

                              ----------                              

                       MONDAY, FEBRUARY 11, 2002

                           U.S. Senate,    
                   Subcommittee on Treasury and    
                                General Government,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 10:07 a.m., in room SD-192, Dirksen 
Senate Office Building, Hon. Byron L. Dorgan (chairman) 
presiding.
    Present: Senator Dorgan.

              opening statement of senator byron l. dorgan

    Senator Dorgan. We will call the meeting to order. First of 
all, let me welcome all of you to this hearing. This is a 
hearing of the Subcommittee on Appropriations dealing with 
Treasury and General Government. This hearing is to deal with a 
subject that, of course, most of you know is fraught with 
controversy, the subject of Cuba travel and especially, from 
the perspective of the subcommittee, the enforcement of the 
Cuban travel restrictions.
    This subcommittee funds, an agency called the Office of 
Foreign Assets Control. That office in the Treasury Department 
is central to the issue of trying to track terrorists' assets, 
among other things. The National Terrorist Assets Tracking 
Center is housed within OFAC, the Office of Foreign Asset 
Control. Working with the Financial Crimes Enforcement Network, 
OFAC leads our Nation's war against global terrorist financing. 
It does that with a relatively small budget. Indeed, the 
President's budget this year proposes to increase OFAC's budget 
by about $2 million in fiscal year 2003 over fiscal year 2002.
    One of the reasons that we wanted to have a hearing on this 
issue is to evaluate what has been happening with respect to 
OFAC and its use of resources in enforcing the travel 
restrictions, especially with respect to Cuba. We have had 
numerous reports in the past year or so that the Office of 
Foreign Assets Control has dramatically increased the number of 
enforcement actions against U.S. citizens traveling to Cuba.
    Particularly in the aftermath of September 11, one must 
ask: What is the best use of assets at OFAC and at the Treasury 
Department? Should it be focusing its resources on tracking the 
U.S. assets of terrorists, thereby helping prevent future 
attacks, or should it be using precious resources to enforce 
the travel restrictions with respect to Cuba?
    While this hearing is not about the policy of restrictions 
on travel to Cuba, it is about the funding of OFAC and how much 
is being devoted to enforcement of that policy. Let me say that 
my feeling is that the travel restrictions with respect to Cuba 
are ill-advised. I have no Truck for Fidel Castro. He is a 
dictator and his mismanagement of the Cuban economy and human 
rights violations have brought misery to the Cuban people. But 
in an attempt to punish Fidel Castro, we are restricting the 
freedom of the American people to travel. I do not think that 
those restrictions hurt Fidel Castro. They certainly do 
disadvantage the American citizen.
    Despite the fact that I am philosophically opposed to these 
restrictions and would love to see democracy in Cuba, I believe 
that the best way to achieve progress in Cuba is very much the 
way we achieved progress in the old Soviet Union and the way we 
are striving to achieve progress, for example, in China, and 
that is through more interaction and more involvement and more 
travel and more education. People-to-people interaction worked 
to bring down the Soviet government, to bring about significant 
reforms in China, and I believe they can do the same in Cuba.
    Let me just say, as a Senator from a farm State, I would 
very much like to see family farmers in North Dakota be able to 
travel to Cuba and sell their crops to Cuba without impediment. 
This travel ban only hinders such sales.
    I will cite one example of how these travel restrictions 
can impede our agricultural sector and family farmers. In 
January of this year, the Farm Foundation applied for a license 
to send a delegation of 100 people to Cuba. They were turned 
down. This is a nonprofit group based in Illinois. Two former 
Agriculture Secretaries were going to join the delegation. The 
current Agriculture Secretary and Deputy Secretary and Under 
Secretary all served on the board of this Farm Foundation 
before resigning to take their current positions. Yet these 100 
people were denied the opportunity through this organization to 
go to Cuba to talk about agricultural issues.
    I do not know why OFAC did not approve the Farm 
Foundation's request for a license. I am sure OFAC can describe 
its reasons. But at the end of the day, this incident, in my 
judgment, highlights the absurdity of this policy. It makes no 
sense that a delegation looking to promote sales of American 
farm products to Cuba has to apply for a license and then jump 
through hoops just to be able to travel to that country, and in 
this case, discover that the proposal to go is denied.
    One of the interesting aspects of this issue is that on 
July 13 of last year, President Bush announced that he had 
asked the Treasury Department and the Office of Foreign Assets 
Control to step up enforcement of Federal regulations governing 
the embargo with, quote, ``a view towards preventing unlicensed 
and excessive travel.'' I have a quote from the Associated 
Press from that day which caught my attention. It quotes 
President Bush as saying that the Treasury should provide more 
money to its Office of Foreign Assets Control to hire 
additional personnel to monitor travel to Cuba, trade, and the 
limited amounts of money that Cuban Americans are allowed to 
send home to their families.
    I saw that in July of last year and wondered as a result of 
that what was going to happen if OFAC beefed-up enforcement to 
try to deal with this travel issue. What we have learned is 
that there have been substantial increases in enforcement 
activities. I have a chart that shows enforcement actions over 
the last couple of years. It depicts a jump in fines levied for 
travel to Cuba, from 188 in 2000, to 766 in 2001. So it appears 
that something has changed and we will talk a little about that 
today.
    At the hearing today, the first panel will include 
witnesses describing their experiences with respect to OFAC 
activity and Justice Department activity. It will also include 
some organizations that have faced licensing problems, as well 
as non-government organizations. We will have a second panel 
with Richard Newcomb, Director of OFAC and James Carragher, 
Coordinator for Cuban Affairs at the Department of State, and a 
third panel with former Senator Dennis DeConcini from Arizona 
and Ambassador Dennis Hayes, Vice President, Cuban American 
National Foundation. So that represents the agenda for the 
hearing.
    As I indicated when I started, I understand that this is an 
issue of some controversy, but I think it is timely and 
important for us to discuss what are the resources being 
devoted to enforcement of travel restrictions to Cuba, how are 
they being devoted to it, to what end do they enhance this 
country's foreign policy, and to what end do they simply 
restrict the freedom of the American people to travel.
    Our first panel is a panel with four individuals who have 
had some experience with this issue. They have all traveled to 
Cuba under various circumstances that they will describe, and 
have been the subject of enforcement actions by OFAC.
    Marilyn Meister is someone who went on a bicycle trip 
organized by a Canadian tour group. Cevin Allen was fined after 
taking his parents' ashes to Cuba for burial. John Harriman was 
fined after attending a board game competition in Cuba.
    Let me begin by asking the witnesses to state their name 
and where they are from. We will proceed with you, Ms. Meister. 
Welcome to the committee and thank you for coming to 
Washington, D.C., today.
STATEMENT OF MARILYN MEISTER
    Ms. Meister. Thank you. Good morning, Senator. I am a 
retired teacher from a small town in Wisconsin. I was born on a 
farm in Wisconsin 75 years ago and I have always enjoyed being 
active. Since retiring, I have become an avid traveler. I favor 
trips that both include activities, such as hiking and biking, 
and expose me to different cultures. I have gone on bike trips 
in Cuba, France, Portugal, trekked in Nepal, hiked in the South 
of France, Tuscany, England, Canada, and many States within the 
United States and traveled independently in Costa Rica.
    It has been an important and fulfilling part of these trips 
to share my experiences with others. I have written travel 
articles for publications, including senior citizen newspapers, 
and have come to think of myself as a freelance travel writer. 
An article I wrote about my trip to Cuba was published 2 years 
ago.
    The cultural lessons I learned from traveling and 
interpersonal connections I have made are just as special to 
me, if not more so, than the exhilarating physical challenges 
of biking and hiking. This was certainly true of my trip to 
Cuba.
    I learned from a friend about a bike trip organized by a 
Canadian group out of Toronto. The travel agency sent me quite 
a bit of information and printed material and I also had some 
phone conversations with them. All along, they assured me that 
it was perfectly legal for Americans to travel to Cuba as long 
as they did not go directly and they did not spend any money in 
Cuba. I strictly adhered to both of these requirements. Their 
brochure states, quote, ``Congress has passed a law which makes 
it legal for U.S. citizens to travel to Cuba, although they 
cannot spend any money there. So when you travel to Cuba, you 
are fully hosted by our company and you do not spend any money 
in Cuba. Our programs are fully escorted from the time you 
arrive in Cuba and totally under our control. If you do need to 
buy something in Cuba, our escort will do it for you, 
maintaining the legality of your trip.''
    The trip took place in February 2000. We biked through the 
countryside of Western Cuba, which was extremely impressive. I 
was deeply moved by the beauty and diversity of the scenery, as 
well as the kindness and genuine warmth of the people.
    I was excited to learn before the trip began that we would 
be stopping at a small rural school in a very poor and humble 
area. I decided to take some educationally-related materials 
along as gifts, including some children's picture books, 
crayons, and pens. The principal and children's grateful 
reception of these items was overwhelming, and as an educator, 
I found this encounter most gratifying. It was heartwarming to 
see my counterparts make up for their limited resources with an 
enthusiasm for learning and to see the positive effect of their 
efforts on the children.
    Cuba continued to be a welcoming place, and I like to think 
that my presence there gave the Cubans my group encountered a 
positive view of Americans. After a week of biking, sightseeing 
in Havana, and gaining a wonderful impression of the Cuban 
people, I flew back to Toronto. However, as soon as I stepped 
off the plane, I was in for a series of surprises.
    I was told that I would have to run in order to catch my 
returning Air Canada flight to Chicago. I came dashing up to 
the U.S. Customs desk in a hurry, hoping to pass through 
customs quickly and make my flight. The Customs agent asked me 
where I was coming from and I immediately answered, ``Cuba.'' I 
understood my travel to have been legal and, of course, it 
would not have occurred to me to tell her anything other than 
the truth. To my surprise, this answer set the Customs agent 
into a rage. She yelled as she searched my luggage and was 
unable to find any purchases made in Cuba, as I had made none. 
As she questioned me, I said no more than necessary to honestly 
answer her questions, hoping she would soon calm down. 
Unfortunately, I was mistaken.
    The Customs agent continued to make me feel like the most 
horrible of criminals. A representative from Air Canada 
announced from the doorway that I needed to hurry as my flight 
was about to leave. The Customs agent replied furiously, ``She 
is not going anywhere.'' Then she went into a full-scale 
tirade. She demanded that I remove my fanny pack and threw its 
contents all over the counter. She snatched my passport from a 
pile of my belongings strewn on the counter, shouted at me to 
pick up my belongings, and left to make a photocopy of my 
passport. When she returned, she handed me my passport and 
warned with me with a touch of glee, ``You will be hearing from 
the Treasury Department.''
    I was quite chagrined to be treated in such an abrasive way 
by a representative of my own government after a week of 
seeking to be a laudable representative of my country while in 
Cuba. Needless to say, I missed my flight and I was forced to 
spend a lonely, cold, and tiring night in the Toronto airport.
    When I finally returned to Chicago, my ordeal was far from 
over. As the Customs agent had warned, within months, I 
received my first enforcement letter from OFAC, called a 
``Requirement to Furnish Information.'' A full year later, a 
second notice arrived demanding a civil penalty of $7,500. With 
the help of a pro bono legal counsel, I have requested a 
hearing before an administrative law judge and have been 
waiting for a hearing for almost a year.
    In my opinion, the ban on tourist travel to Cuba is 
senseless and misguided. The ban does not punish Fidel Castro, 
it punishes ordinary Americans like myself who are losing out 
on an invaluable opportunity to meet, exchange ideas with, and 
learn from our counterparts in Cuba.
    I call upon Congress to pass legislation this session that 
will allow Americans to travel freely to Cuba. Thank you for 
allowing me to speak with you about this matter.

                           prepared statement

    Senator Dorgan. Ms. Meister, thank you very much. We will 
have some questions following the presentations.
    [The statement follows:]

                 Prepared Statement of Marilyn Meister

    Good morning, Senators. I am a retired teacher from a small town in 
Wisconsin. I was born on a farm in Wisconsin 75 years ago, and I have 
always enjoyed being active.
    Since retiring, I have become an avid traveler. I favor trips that 
both include activities such as hiking and bicycling, and expose me to 
different cultures. I have gone on bike trips in Cuba, France, and 
Portugal, trekked in Nepal, hiked in the south of France, Tuscany, 
England, Canada and many states within the United States, and traveled 
independently in Costa Rica. It has been an important and fulfilling 
part of these trips to share my experiences with others. I have written 
travel articles for publications, including senior citizen newspapers, 
and have come to think of myself as a freelance travel writer. An 
article I wrote about my trip to Cuba was published 2 years ago. The 
cultural lessons I learned from traveling, and inter-personal 
connections I have made, are just as special to me, if not more so, 
than the exhilarating physical challenges of biking and hiking. This 
was certainly true of my trip to Cuba.
    I learned from a friend about a bike trip organized by a Canadian 
group out of Toronto. The travel agency sent me quite a bit of 
information and printed material, and I also had some phone 
conversations with them. All along, they assured me that it was 
perfectly legal for Americans to travel to Cuba as long as they did not 
go directly and they did not spend any money in Cuba. I strictly 
adhered to both of these requirements. Their brochure states, 
``Congress has passed a law which makes it legal for U.S. citizens to 
travel to Cuba, although they cannot spend any money there. So when you 
travel to Cuba you are full[y] hosted by our company, and you don't 
spend any money in Cuba. Our programs are fully escorted from the time 
you arrive in Cuba, and totally under our control. If you do need to 
buy something in Cuba our escort will do it for you, maintaining the 
legality of your trip.'' The trip took place in February 2000. We biked 
through the countryside of western Cuba, which was extremely 
impressive. I was deeply moved by the beauty and diversity of the 
scenery as well as by the kindness and genuine warmth of the people.
    I was excited to learn before the trip began that we would be 
stopping at a small rural school in a very poor and humble area. I 
decided to take some educationally-related materials along as gifts, 
including some children's picture books, crayons, and pens. The 
principal and children's grateful reception of these items was 
overwhelming, and as an educator I found this encounter most 
gratifying. It was heart-warming to see my counterparts make up for 
their limited resources with an enthusiasm for learning, and to see the 
positive effect of their efforts on the children.
    Cuba continued to be a welcoming place, and I like to think that my 
presence there gave the Cubans my group encountered a positive view of 
Americans. After a week of biking, sightseeing in Havana, and gaining a 
wonderful impression of the Cuban people, I flew back to Toronto. 
However, as soon as I stepped off the plane, I was in for a series of 
surprises. I was told that I would have to run in order to catch my 
returning Air Canada flight home to Chicago. I came dashing up to the 
U.S. customs desk in a hurry hoping to pass through customs quickly and 
to make my flight. The customs agent asked me where I was coming from 
and I immediately answered, ``Cuba.'' I understood my travel to have 
been legal, and, of course, it would not have even occurred to me to 
tell her anything other than the truth. To my surprise, this answer set 
the customs agent into a rage. She yelled as she searched my luggage 
and was unable to find any purchases made in Cuba as I had made none. 
As she questioned me, I said no more than necessary to honestly answer 
her questions, hoping that she would soon calm down. Unfortunately, I 
was mistaken.
    The customs agent continued to make me feel like the most horrible 
of criminals. A representative from Air Canada announced from the 
doorway that I needed to hurry as my flight was about to leave. The 
customs agent replied furiously, ``She's not going anywhere!'' Then she 
went into a full-scale tirade. She demanded that I remove my fanny 
pack, and threw its contents all over the counter. She snatched my 
passport from the pile of my belongings strewn on the counter, shouted 
at me to pick up my belongings, and left to make a photocopy of my 
passport. When she returned, she handed me my passport and warned me 
with a touch of glee, ``You'll be hearing from the Treasury 
Department.'' I was quite chagrined to be treated in such an abusive 
way by a representative of my own government, after a week of seeking 
to be a laudable representative of my country while in Cuba. Needless 
to say, I missed my flight and I was forced to spend a lonely, cold, 
and tiring night in the Toronto Airport.
    When I was finally able to return to Chicago, my ordeal was far 
from over. As the Customs official had warned, within three months, I 
received my first enforcement letter from OFAC, called a Requirement to 
Furnish Information. A full year later, a second notice arrived 
demanding a civil penalty of $7,500. With the help of pro bono legal 
counsel, I have requested a hearing before an administrative law judge 
and have been waiting for a hearing for almost a year.
    In my opinion, the ban on tourist travel to Cuba is senseless and 
misguided. The ban does not punish Fidel Castro. It punishes ordinary 
Americans like myself who are losing out on an invaluable opportunity 
to meet, exchange ideas with, and learn from our counterparts in Cuba. 
I call upon Congress to pass legislation this session that will allow 
Americans to travel freely to Cuba.
    Thank you for allowing me to speak with you about this matter.

    Senator Dorgan. Mr. Allen, please proceed. Thank you very 
much for being here.
STATEMENT OF CEVIN ALLEN, SAMMAMISH, WASHINGTON
    Mr. Allen. Good morning, Senator Dorgan and members of the 
subcommittee. My name is Cevin Allen and I reside in Sammamish, 
Washington, which is about 20 miles outside of Seattle. I 
currently work as a supervisor with the County Department of 
Transit, where I have been employed for 25 years this June. 
Thank you for inviting me to speak to you about a matter that 
is of tremendous concern, not only to myself, but also to many 
other Americans. Legislation legalizing travel to Cuba for 
Americans is long overdue and we are looking to the Congress of 
the United States to enact such corrective legislation this 
session.
    My interest in Cuba and love for the Cuban people reaches 
back to my early childhood. I was born in Seattle, Washington, 
in 1945 to Ralph and Mildred Allen, missionaries with the 
Assembly of God Church. It is a Protestant Pentecostal church. 
From 1948 until 1955, my parents and I, along with an older 
brother, lived in Cuba. My parents were missionaries with the 
church in Contramaestre. It was called Iglesia Evangelica 
Pentecostal, which is Assembly of God. Contramaestre is located 
in the south end of the island, near Santiago. While in Cuba, 
my parents bought a piece of land, supervised the building of a 
simple but beautiful church, and built its congregation.
    After having spent my formative years in Cuba, making my 
first impressions with Cubans, and learning Spanish as my first 
language, I feel as though a part of me is Cuban. I have many 
wonderful memories of my childhood in Cuba and a love for its 
people. Even though we were Protestants in a Catholic land, we 
were always warmly welcomed.
    My family left in 1955, intending simply to renew our visas 
in the United States, visit with family members, and then 
return to Cuba. Unfortunately, we found ourselves unable to 
return because Cuba was undergoing a revolution and the church 
feared for our safety. After the revolution, we were saddened 
to learn that the property on which our church sat had been 
nationalized and the building had been converted into a 
mattress factory. For the next 30 years, my parents maintained 
close connections with the staff and members of its 
congregation through letter correspondence.
    In 1984, my parents and I were excited to learn that the 
Cuban government was going to reinstate the nationalized 
property back to a Protestant church. My mother, my partner, 
and I visited Cuba that year after receiving permission to do 
so from the Reagan administration. While there, we visited the 
site of our church and were reunited with our Cuban friends and 
co-religionists from some 30 years prior. Shortly thereafter, 
my parents made a gesture of giving the property title back to 
the church. My parents were delighted that the Cuban government 
had agreed to reinstate the land as a place of worship.
    In 1987, my parents were both killed in a house fire that 
completely destroyed their home. I promised myself then that I 
would bring their ashes to Cuba, a place they had always loved. 
Ten years later, in 1997, November, my partner and I made a 
brief journey to Cuba to give my parents' ashes a final resting 
place. During the one full day we spent in Cuba, I scattered 
part of their ashes on the grounds of the church in Havana and 
another part at sea. I also brought along a Bible that my 
parents had used while in Cuba that had miraculously survived 
the fire and presented it to Reverend Jaime Rodriguez, a former 
student of my parents, who now leads the largest Protestant 
congregation in Havana. It was this trip that finally allowed 
me to deal with the pain of losing my parents, to feel at peace 
with their deaths, to fulfill my family duty to them and give 
them a burial I knew they would have wanted, and to experience 
a sense of closure.
    Unfortunately, these positive feelings were soon countered 
by my interaction with Customs agents on my return to the 
United States via Nassau. Upon questioning, I immediately told 
the agents about my travel to Cuba. This apparently angered the 
agents, as they became belligerent and searched all of our bags 
as if we were common criminals. The tension of the moment was 
heightened by the fact that we had only a 50-minute layover in 
Nassau and we literally had to run at a fast clip to make our 
connecting flight once we were released by the Customs agents.
    The reception I received from the Customs agents in Nassau 
turned out to be only a small part of the much larger dark 
shadow cast on my trip to Cuba by U.S. Government officials. 
The greatest shock came 2 months later, when my partner and I 
each received a notice from OFAC in January of 1998 demanding 
that we pay a civil penalty of $7,500 each for traveling to 
Cuba illegally. Taken together, OFAC was demanding the 
outrageous sum of $15,000 from our household.
    After speaking to OFAC agents on the phone and explaining 
the circumstances surrounding our trip, OFAC agreed to reduce 
the original sum of $15,000 to a joint penalty of $10,000--a 
figure that I am sure you agree is still quite high.
    Fortunately, my partner and I learned about the Center for 
Constitutional Rights' Cuba Travel Docket and the Center agreed 
to take on our case. Through the Center's vigorous legal 
representation, we were able to reach a settlement with OFAC 
for a reduced penalty of $700.
    These experiences have left me with the firm conviction 
that it is wrong for the United States Government to punish 
Americans for traveling to Cuba. Americans are permitted to 
travel freely to other socialist countries, including Russia, 
the People's Republic of China, and Vietnam. Cuba is our next-
door neighbor and it is in the interest of the United States to 
develop a good relationship with it. Toward this end, the 
United States should encourage, rather than penalize, 
friendship between the American people and the Cuban people. 
Each group has much to learn from the other.

                           Prepared Statement

    I commend the subcommittee for examining the ban on travel 
to Cuba and hope that my story will shed some light on how the 
ban represents bad domestic and bad foreign policy. I implore 
Congress to put an end once and for all to this outdated ban 
and to legalize travel to Cuba. Thank you.
    Senator Dorgan. Mr. Allen, thank you very much.
    [The statement follows:]

                   Prepared Statement of Cevin Allen

    Good morning, Senator Dorgan and Members of the Subcommittee. My 
name is Cevin Allen, and I reside in Sammamish, Washington, which is 
about 20 miles outside of Seattle. I currently work as a supervisor 
with the county department of transit, where I will have been employed 
for twenty-five years this June. Thank you for inviting me to speak to 
you about a matter that is of tremendous concern not only to myself, 
but also to many other Americans. Legislation legalizing travel to Cuba 
for Americans is long overdue, and we are looking to the Congress of 
the United States to enact such corrective legislation this session.
    My interest in Cuba and love for the Cuban people reaches back to 
my early childhood. I was born in Seattle, Washington, in 1945, to 
Ralph and Mildred Allen, missionaries with the Assemblies of God 
Protestant-Pentecostal Church. From1948 until 1955, my parents and I, 
along with my older brother, lived in Cuba. My parents were 
missionaries with a Protestant Church in Contramaestre called Iglesia 
Evangelica Pentecostal (Assembly of God). Contramaestre is located in 
the south end of the island, near Santiago. While in Cuba, my parents 
bought a piece of land, supervised the building of a simple but 
beautiful church, and built its congregation.
    After having spent my formative years in Cuba--making my first 
friendships with Cubans, and learning Spanish as my first language--I 
feel as though a part of me is Cuban. I have many wonderful memories of 
my childhood in Cuba and a love for its people. Even though we were 
Protestants in a Catholic land, we were always warmly welcomed.
    My family left Cuba in 1955, intending simply to renew our visas in 
the United States, visit with family members, and then return to Cuba. 
Unfortunately, we found ourselves unable to return because Cuba was 
undergoing a revolution, and the church feared for our safety. After 
the revolution, we were saddened to learn that the property on which 
our church sat had been nationalized and the building had been 
converted into a mattress factory. For the next thirty years, my 
parents maintained close connections with its staff and members of its 
congregation through letter correspondence.
    In 1984, my parents and I were excited to learn that the Cuban 
government was going to reinstate the nationalized property back to a 
Protestant church. My mother, my partner, and I visited Cuba that year 
after receiving permission to do so from the Reagan administration. 
While there, we visited the site of our church, and were reunited with 
our Cuban friends and co-religionists from some thirty years prior. 
Shortly thereafter, my parents made a gesture of giving the property 
title to the church. My parents were delighted that the Cuban 
government had agreed to reinstate the land as a place of worship.
    In 1987, my parents were killed in a house fire that completely 
destroyed their home. I promised myself then that I would bring their 
ashes to Cuba, a place they had always loved. Ten years later, in 
November of 1997, my partner and I made a brief journey to Cuba to give 
my parents' ashes a final resting place. During the one full day we 
spent in Cuba, I scattered part of their ashes on the grounds of the 
church in Havana, and another part at sea. I also brought along the 
Bible that my parents had used while in Cuba that had miraculously 
survived the fire, and presented it to Reverend Jaime Rodriguez, a 
former student of my parents who now leads the largest Protestant 
congregation in Havana. It was this trip that finally allowed me to 
deal with the pain of losing my parents, to feel at peace with their 
deaths, to fulfill my family duty to them and give them a burial I knew 
they would have wanted, and to experience a sense of closure.
    Unfortunately, these positive feelings were soon countered by my 
interaction with Customs agents on my return to the United States via 
Nassau. Upon questioning, I immediately told the agents about my travel 
to Cuba. This apparently angered the agents, as they became belligerent 
and searched all of our bags as if we were common criminals. The 
tension of the moment was heightened by the fact that we had only a 
fifty-minute lay-over in Nassau and we literally had to run at a fast 
clip to make our connecting flight once we were finally released by the 
Customs agents.
    The reception I received from the Customs agents in Nassau turned 
out to be only a small part of a much larger dark shadow cast on my 
trip to Cuba by U.S. government officials. The greatest shock came two 
months later when my partner and I each received a notice from OFAC in 
January of 1998 demanding that we pay a civil penalty of $7,500 each 
for traveling to Cuba ``illegally.'' Taken together, OFAC was demanding 
the outrageous sum of $15,000 from our household.
    After speaking to OFAC agents on the phone and explaining the 
circumstances surrounding our trip, OFAC agreed to reduce the original 
sum of $15,000 to a joint penalty of $10,000-a figure that, I am sure 
you will agree, is still extraordinarily high.
    Fortunately, my partner and I learned about the Center for 
Constitutional Rights' Cuba Travel Docket, and the Center agreed to 
take on our case. Through the Center's vigorous legal representation, 
we were able to reach a settlement with OFAC for a reduced joint 
penalty of $700.
    These experiences have left me with the firm conviction that it is 
wrong for the United States government to punish Americans for 
traveling to Cuba. Americans are permitted to travel freely to other 
socialist countries, including Russia, the Peoples Republic of China, 
and Vietnam. Cuba is our next-door neighbor, and it is in the interests 
of the United States to develop a good relationship with it. Towards 
this end, the United States should encourage, rather than penalize, 
friendship between the American people and the Cuban people. Each group 
has much to learn from the other.
    I commend the Subcommittee for examining the ban on travel to Cuba 
and hope that my story will shed some light on how the ban represents 
bad domestic and bad foreign policy. I implore Congress to put an end 
once and for all to this outdated ban and to legalize travel to Cuba.
    Thank you.

    Senator Dorgan. Next, we will hear from Mr. John Harriman. 
Mr. Harriman, would you proceed?
STATEMENT OF JOHN HARRIMAN, CHICAGO, ILLINOIS
    Mr. Harriman. Good morning. Good morning, Senator Dorgan 
and members of the subcommittee. My name is John Harriman and I 
am a 37-year-old software developer from Chicago, Illinois. For 
the past 13 years, I have been an avid player of a board game 
called ``Go,'' which is a centuries-old game that originated in 
Asia and has recently begun to gain popularity in the United 
States and other non-Asian countries.
    It was my passion for this game that led to my one and only 
visit to Cuba in January of 2001, to compete in an 
international Go tournament, and it was this travel, or rather 
the Treasury Department's imposition of a $7,500 civil penalty 
based on this travel, that has led me to testify before you 
today.
    Go is often described as being similar to chess, but it is, 
in the opinion of many, even more challenging. Two players face 
each other across a board, one with a set of white stones and 
the other with a set of black stones, each with a goal of 
controlling the most territory over the board. It is a game 
that requires careful deliberation and strategic thinking. The 
intellectual challenges of the game reveal a great deal about 
the player's personality and his resourcefulness under 
pressure. Time after time, I have played opposite a complete 
stranger with whom I did not share a common language, and by 
the game's end, we were able to develop a bond of friendship.
    In December of 2000, I read an article in the American Go 
Journal describing an international Go tournament scheduled for 
January 3 through 7, 2001, in Havana, Cuba. The article stated, 
quote, ``According to U.S. law, amateur and semi-professional 
sports teams are legally allowed to visit Cuba. This means that 
Americans can legally participate in the 5-day international 
tournament next January 3 through 7.''
    I was immediately interested in participating in this 
tournament, not only because of my longstanding interesting in 
Cuba, but also because I was intrigued that such a small, non-
Asian country could maintain a Go community large enough to 
sponsor an international tournament. Additionally, I am nearly 
fluent in Spanish and welcomed the opportunity to immerse 
myself in a Spanish-speaking culture. And, of course, there is 
nothing like the challenge of an international tournament to 
improve one's game.
    Upon reading the article, I contacted Peter Schottwell, who 
was mentioned in the article I read, and Roy Leard, the 
President of the American Go Association. Both men assured me 
that it would be legal for me to travel to Cuba as a 
representative of the American Go Association at the 
tournament. Relying on their assurances, I made plans to 
attend. The President of the American Go Association provided 
me with a letter designating me as a representative of the 
Association to carry with me on the trip.
    My experiences in Cuba exceeded my expectations. My Spanish 
skills improved and I forged friendships with Cuban Go players 
and their families, people whom I otherwise would not have had 
the opportunity to meet. I also had the good fortune to compete 
against players from a number of other foreign countries, 
including Italy, Venezuela, Chile, Argentina, and Brazil. 
During the course of my trip, I learned a great deal about 
these tournament players and their respective cultures. On the 
competition level, I also found satisfaction. I placed third in 
the tournament out of 29.
    Without a doubt, the highlight of my trip was a visit I 
made to a Go academy, which is a part of the curriculum for 
grade school children in Cuba. A Cuban participant in the 
tournament was a teacher at a Go academy and he invited me and 
another participant from Japan to visit his academy. I was 
delighted to see a lively classroom full of 20 or so children 
between the ages of 5 and 8 who were paired off and 
enthusiastically playing games of Go.
    During the course of the day, I observed and critiqued the 
children's games, provided them with advice on technique, and 
tried to instill them a desire to raise their skills to the 
point where they would be able to compete in international Go 
tournaments. It was already clear to me that some of the 
children would soon exceed their own teachers in skill.
    Regrettably, Cuba is quite isolated and it lacks good books 
on Go technique. It also lacks access to the Internet over 
which Go can be played at any time of day against players from 
all over the world.
    On the flight back to the United States on January 9, 2001, 
I listed Cuba as a country that I had traveled to on a U.S. 
Customs declaration card. Arriving at the airport in Memphis, 
Tennessee, I was questioned by U.S. Customs officials about my 
listing of Cuba on this form. I explained the purpose of my 
trip and provided the Customs official with the letter that 
designated me as a representative of the American Go 
Association. After I had answered all their questions, the 
officials thanked me for my cooperation and I made my 
connecting flight to Chicago.
    The wonderful memories of my trip to Cuba continued to 
last. However, I received a letter from OFAC dated May 18, 
2001, 4 months after my trip to Cuba. This letter, titled 
``Pre-Penalty Notice,'' informed me that under the Trading with 
the Enemies Act and Cuban Assets Control Regulations, OFAC 
intended to issue a claim against me for a civil penalty in the 
amount of $7,500. I was shocked and upset by this letter, both 
at the suggestion that my travel to Cuba was not authorized and 
by the fact that my government would impose a large fine on me 
when I had done nothing more than participate in an 
international Go tournament that had been attended by players 
from around the world. With assistance of counsel, I requested 
a hearing and my case remains unresolved.
    Senators, I truly believe that people-to-people contact 
promoted by events like the tournament I attended is an 
invaluable tool for laying a common ground between differing 
cultures. It is through such contact that mutual respect and 
understanding can be based. I am strongly in favor of lifting 
the travel ban to Cuba so that ordinary citizens like myself 
can travel legally to Cuba, learn about our neighbors, and 
convey a positive image of Americans and their life in the 
United States. At the very least, as a result of my travel, 
there is now a group of Cuban Go players and their families who 
knew very little about Americans prior to January 2001 but who 
now know at least one American who has shown himself to be not 
so different from them in the ways that really count.
    The great leaps in technology of the last few decades have 
made the world seem like it is becoming a smaller and smaller 
place. There is no stopping this trend, nor do I think there 
should be. The events of the last year should teach us that 
Americans cannot afford to remain isolated from the rest of the 
world, nor can Americans afford to remain dismissive of other 
cultures. I know that I have been greatly enriched by my visit 
to Cuba and I strongly suspect that the same would hold true 
for other Americans were they to have the good fortune to make 
such a visit.

                           Prepared Statement

    Respectfully, I urge Congress to end the ban on travel to 
Cuba through legislation. Thank you once again for this 
opportunity to speak to you today.
    Senator Dorgan. Mr. Harriman, thank you very much.
    [The statement follows:]

                  Prepared Statement of John Harriman

    Good morning, Senator Dorgan and Members of the Subcommittee. My 
name is John Harriman, and I am a 37-year-old software developer from 
Chicago, Illinois. For the past 13 years, I have been an avid player of 
a board game called Go, which is a centuries old game that originated 
in Asia and that has recently begun to gain popularity in the United 
States and other non-Asian countries. It was my passion for this game 
that led to my one and only visit to Cuba in January of 2001, to 
compete in an international Go tournament. And it was this travel, or 
rather the Treasury Department's imposition of a $7,500 civil penalty 
based on this travel, that has led me to testify before you today.
    Go is often described as being similar to chess, but it is, in the 
opinion of many, even more challenging. Two players face each other 
across a board, one with a set of white stones, and the other with a 
set of black stones, each with the goal of controlling the most 
territory over the board. It is a game that requires careful 
deliberation and strategic thinking. The intellectual challenges of the 
game reveal a great deal about the player's personality and his 
resourcefulness under pressure. Time after time, I have played opposite 
a complete stranger with whom I did not share a common language and, by 
game's end, we were able to develop a bond of friendship.
    In December of 2000, I read an article in the American Go Journal 
describing an International Go Tournament scheduled for January 3-7, 
2001 in Havana, Cuba. The article stated, ``According to U.S. law, 
amateur and semi-professional sports teams' are legally allowed to 
visit Cuba. This means that Americans can legally participate in the 5-
day international tournament next Jan 3-7.'' \1\ I was immediately 
interested in participating in this tournament, not only because of my 
long-standing interest in Cuba, but also because I was intrigued that 
such a small non-Asian country could maintain a Go community large 
enough to sponsor an international tournament. Additionally, I am 
nearly fluent in Spanish and welcomed the opportunity to immerse myself 
in a Spanish-speaking culture. And of course, there is nothing like the 
challenge of an international tournament to improve one's game.
---------------------------------------------------------------------------
    \1\ American Go Journal, Fall 2000 Volume 34, Number 3, ``The 
Travelling Go Board--Go in the land of Capablanca.''
---------------------------------------------------------------------------
    Upon reading the article, I contacted Peter Shotwell, who was 
mentioned in the article I had read, and Roy Laird, the President of 
the American Go Association. Both men assured me that it would be legal 
for me to travel to Cuba as a representative of the American Go 
Association at the tournament. Relying on their assurances, I made 
plans to attend. The President of the American Go Association provided 
me with a letter designating me as a representative of the Association.
    My experiences in Cuba exceeded my expectations. My Spanish skills 
improved, and I forged friendships with Cuban Go players and their 
families--people whom I otherwise would not have had the opportunity to 
meet. I also had the good fortune to compete against players from a 
number of other foreign countries, including Italy, Venezuela, Chile, 
Argentina, and Brazil. During the course of my trip, I learned a great 
deal about these tournament players and their respective cultures. On 
the competition level, I also found satisfaction--I placed third in the 
tournament out of 29.
    Without a doubt, the highlight of my trip was a visit I made to a 
``Go Academy,'' which is a part of the curriculum for grade school 
children in Cuba. A Cuban participant in the tournament was a teacher 
at a Go Academy, and he invited me and another participant from Japan 
to visit his academy. I was delighted to see a lively classroom full of 
twenty or so children between the ages of 5 and 8 who were paired off 
and enthusiastically playing games of Go. During the course of the day, 
I observed and critiqued the children's games, provided them with 
advice on technique, and tried to instill in them a desire to raise 
their skills to the point where they would be able to compete in 
international Go tournaments. It was already clear to me that some of 
the children would soon exceed their own teachers in skill. 
Regrettably, Cuba is quite isolated and it lacks good books on Go 
technique. It also lacks access to the Internet, over which Go can be 
played at any time of day, against players from all over the world.
    On the flight back to the U.S. on January 9, 2001, I listed Cuba as 
a country that I had traveled to on a U.S. Customs declaration card. 
Arriving at the airport in Memphis, Tennessee, I was questioned by U.S. 
Customs officials about my listing of Cuba on this form. I explained 
the purpose of my trip and provided the Customs official with the 
letter designating me as a representative of the American Go 
Association. After I had answered all of their questions, the officials 
thanked me for my cooperation, and I made my connecting flight to 
Chicago.
    The wonderful memories of my trip to Cuba continue to last. 
However, I received a letter from the Office of Foreign Assets Control, 
or OFAC, dated May 18, 2001, four months after my trip to Cuba. This 
letter, titled a ``Pre-Penalty Notice,'' informed me that under the 
Trading with the Enemy Act and the Cuban Assets Control Regulations, 
OFAC intended to issue a claim against me for a civil penalty in the 
amount of $7,500. I was shocked and upset by this letter--both at the 
suggestion that my travel to Cuba was not authorized, and by the fact 
that my government would impose a large fine on me when I had done 
nothing more than participate in an international Go tournament that 
had been attended by players from around the world. With assistance of 
counsel, I requested a hearing, and my case remains unresolved.
    Senators, I truly believe that people-to-people contact, promoted 
by events like the tournament I attended, is an invaluable tool for 
laying a common ground between differing cultures. It is through such 
contact that mutual respect and understanding can be based. I am 
strongly in favor of lifting the travel ban to Cuba so that ordinary 
citizens like myself can travel legally to Cuba, learn about our 
neighbors, and convey a positive image of Americans and their life in 
the United States. At the very least, as the result of my travel, there 
is now a group of Cuban Go players and their families who knew very 
little about Americans prior to January 2001, but who now know at least 
one American who has shown himself to be not so different from them in 
the ways that really count.
    The great leaps in technology of the last few decades have made the 
world seem like it is becoming a smaller and smaller place. There is no 
stopping this trend, nor do I think there should be. The events of last 
year should teach us that Americans cannot afford to remain isolated 
from the rest of the world. Nor can Americans afford to remain 
dismissive of other cultures. I know that I have been greatly enriched 
by my visit to Cuba, and I strongly suspect that the same would hold 
true for other Americans should they have the good fortune to make such 
a visit.
    Respectfully, I urge the Congress to end to the ban on travel to 
Cuba through legislation. Thank you once again for this opportunity to 
speak to you today.

    Senator Dorgan. Next, we will hear from Dr. John 
Gilderbloom of the Cuba Research and Education Programs. Dr. 
Gilderbloom?
STATEMENT OF JOHN I. GILDERBLOOM, Ph.D., PROFESSOR, 
            DEPARTMENT OF URBAN AND PUBLIC AFFAIRS, 
            COLLEGE OF BUSINESS AND PUBLIC 
            ADMINISTRATION, UNIVERSITY OF LOUISVILLE
    Mr. Gilderbloom. Thank you, Senator Dorgan. I am a 
professor at the Department of Urban and Public Affairs in the 
College of Business and Public Administration at the University 
of Louisville and I teach courses on Cuba, research methods, 
urban planning, historic preservation, comparative urbanism, 
and housing. I have published 3 books, 21 refereed articles, 12 
chapters in books, and articles in the Wall Street Journal, USA 
Today, and Los Angeles Times.
    Outside of my university duties, I work with the Cuba 
Research and Education Programs, which brings several groups 
for professional study for planning, architecture, economic 
development, and sustainable communities. Participants are 
eligible to get continuing education credit from the American 
Institute of Architects, American Planning Association, and 
other relevant organizations. In addition, graduate students, 
professors, and journalists who sign up for our programs on 
urbanism are also allowed to go on these programs if they 
promise to disseminate the information as required by U.S. 
Treasury laws, which we follow.
    More people than not cannot go on these programs. It is not 
open to everybody, and, in fact, over the last 9 months, we 
have only taken 71 persons to Cuba, three groups, including 
some very distinguished people who have worked in the Federal 
Government, the State Government, as well as some established 
journalists.
    Our program has been featured on CNN, National Public 
Television. A host of newspapers, magazines, and books have 
lauded our Cuba program. I brief U.S. State Department 
officials, the United States Interests Section, where we meet 
regularly, and numerous Senators and their staff, and I 
represent Kentucky in the nonpartisan Americans for 
Humanitarian Trade with Cuba.
    Last March, we wrote to Treasury requesting renewal of our 
license for another 2 years. In June, they said that we would 
not hear from them until December because they wanted to 
evaluate our program and take a closer look at it.
    When we contacted them December 1, when they said they 
would have a decision made, they said they lost our original 
correspondence from March. We immediately resubmitted the 
information to them and we received another letter denying our 
license renewal and stating that we should resubmit and provide 
a summary of past activities and an agenda of the proposed 
activities. We promptly did so, but much of what we provided, 
of course, is included in this testimony today.
    On January 31, we were told that our license application 
had been denied again. Treasury gave us this vague explanation 
that our programs do not have enough people-to-people 
exchanges. We think the reasons for this denial are capricious 
and arbitrary.
    Although OFAC's stated reason for denying our license is 
that our programs do not have enough people-to-people contact, 
my Congressional representative was told by OFAC that they felt 
we were more of a tourist-oriented organization rather than a 
serious research and education program. OFAC also informed her 
that they objected to our website, which has over 41,000 people 
visiting it, with numerous Cubans also participating in it, 
both here and in Cuba. They also expressed a distaste for the 
restaurant reviews, which we provide as a service to 
participants because of issues of food safety and we wanted to 
promote small, private businesses that opened up as 
restaurants.
    The arbitrary nature of OFAC's decision is further 
highlighted by the fact that one of our programs was copied 
nearly word for word by another organization and institution. 
They were granted a license 2 months previous to ours, while 
our program was flatly denied. In addition, a participant or 
student in one of my programs has adopted many of the same 
features from my program and had no trouble securing a license 
to lead groups.
    Finally, in terms of people-to-people contact, we regularly 
brought people, against the wishes of the Cuban government, to 
the Catholic Church, to outreach organizations, to activists, 
and particularly troubling, I think, for the Cuban government 
was regular interests with the U.S. Interests Section. In fact, 
of special interest is that, in fact, the strength of our 
program is that the preservationists at the U.S. Treasury 
Department actually attended one of our programs and went in 
there and said they recommended the trip highly because of our 
strength and positive nature. It is also interesting, too, 
because we focus on 500 years of architecture, from pre-
Columbian all the way up to the Soviet style of architecture 
and it gives people an idea of what housing looked like before 
and after the revolution.
    U.S. Treasury is not alone in their discontent with our 
programs. As I mentioned earlier, the Cuban government was also 
unhappy and, in fact, was considering not allowing us to go 
anymore. They were concerned about articles I had posted in 
Planning which are attached to this testimony, as well as a 
forthcoming article in the Encyclopedia of 20 Century 
Architecture. In fact, they have been quite critical of it, and 
for those reasons of visiting people and organizations outside 
of the Cuban government and our visits regularly to the 
Catholic Church and to OFAC.
    Unlikely many U.S.-licensed tour programs that are 
uncritical of Cuba, we have attempted to provide a balanced 
perspective with competing points of view because we want to 
provide the most profound, interesting, and honest educational 
experience. Like OFAC, the Cuban officials were upset by our 
website, too, but for different reasons. The Cubans did not 
like us promoting privately-owned businesses and enterprises 
like restaurants, artists, and apartments that were for rent. 
The Cuban government wants all participants supporting 
government-owned restaurants, hotels, and stores. OFAC believed 
our website to be promoting tourism, but we think it is more 
like promoting small, privately-owned businesses and, 
therefore, not supporting the government.
    People we have taken to Cuba are professionals in respected 
urban fields, professors, and students. They are the 
ambassadors to America. They are the face that represents 
America. In a time when the Cuban government continually 
replays the worst of America, these Americans that we take are 
the face of America and it goes against the Cuban media 
development of that.
    We would also like to say that our participants that come 
on this trip are professionals. They are not there for the sun, 
the rum, or the sex, but instead learn about a country that is 
so alien to our own.
    Alvarado Sanchez, widely regarded as a leading human rights 
activist, has said on numerous occasions in Cuba, the more 
American citizens in the streets of Cuban cities, the better 
for the cause of a more open society. He says, ``So why does 
the U.S. maintain travel controls?''
    We have met continuously with the chief officer, both the 
former and current, of the United States Interests Section, who 
have praised our programs as being on the cutting edge. In 
fact, they have already contacted OFAC, concerned about our 
license being turned down, and they were pushed away and told, 
``Mind your own business. We are taking care of this.''
    We have done a lot of work in terms of outreach to the 
Cuban people and we are very proud of this. OFAC needs to 
follow the law and grant travel licenses to educational 
research organizations like ours. But it is too late for our 
organization. The denial of our license request has been 
devastating. We have had to cancel all of our future programs 
in March and May, and because these programs are a large source 
of our modest budget, we have been forced to lay off the entire 
staff and essentially mothball our office until we hear from 
Treasury. OFAC has created economic ruin for a modest operation 
which was to reach out in a people-to-people program. It is 
likely it will never recover from their unfair and unjust 
treatment of our organization.

                           Prepared Statement

    Thank you for the opportunity to testify here today, and 
attached is a much longer testimony.
    Senator Dorgan. Thank you, Dr. Gilderbloom.
    [The statement follows:]

            Prepared Statement of John I. Gilderbloom, Ph.D.

    In 1997, I was one of the first American planners/environmentalists 
to speak to Cubans on our successful economic development programs 
involving inner city Louisville. These programs included development of 
family owned homes and businesses. My presentation was a big success 
and got a lot of attention (please see appendix A). Since the collapse 
of the Soviet Union, Cuba has allowed private ownership of hundreds of 
different kinds of businesses. I was then asked to bring delegations of 
American experts to Cuba to exchange ideas. The Cubans were not 
interested in converting Americans to Socialism but learning how to run 
private businesses. This modest beginning led way to us becoming one of 
the most respected and acclaimed programs in Cuba.
    I am a Professor in the Department of Urban and Public Affairs in 
the College of Business and Public Administration at the University of 
Louisville and teach graduate courses on Cuba, research methods, urban 
planning, historic preservation, comparative urbanism, and housing. 
Outside of my University duties, I work with Cuba Research and 
Education Programs to bring several groups for a professional study of 
planning, architecture, economic development, and sustainable 
communities. We focus on both the achievements and mistakes the Cubans 
have made in the fields we study. Participants are eligible for 
continuing education credit from the American Institute of Architects, 
American Planning Association, and other relevant organizations. In 
addition, graduate students, professors, and journalists also sign up 
for our programs and present the knowledge gained from the experience 
in their schoolwork, teaching, and writing. All participants are 
required to sign a letter stating they are professionals in these areas 
and, moreover, promise there is a good likelihood of professional 
dissemination in books, newspapers, journals, and/or professional 
newsletters. On our website, we give the following statement regarding 
who can go on our trips:
    ``The following persons would qualify for this program:
  --A faculty or student at a higher education institution who can 
        state that they have an established interest in attending this 
        research and education program.
  -- A journalist with established record of writing and who promises 
        to submit an article.
  --If you are an architect, planner, ecologist, designer, government 
        official, developer, environmentalist, community activist, or 
        other related profession, you will need to write a one-page 
        statement of established interest for attending this research 
        and education program. This is a statement explaining how you 
        will disseminate the research and how it relates to your 
        particular field.''
    Our program has been featured on CNN, national public television, 
and a host of newspapers, magazines, and books on Cuba. I have briefed 
U.S. State Department officials, the United States Interests Section, 
and numerous Senators and their staffs. I represent Kentucky to the 
non-partisan Americans for Humanitarian Trade with Cuba. Most recently, 
syndicated columnist Neal Peirce quoted me and cited my organization 
for our work in Cuba in his column. Our website (www.cubanow.org) has 
had over 41,000 visitors. Officials at the United States Interests 
Section have praised our program as representing the gold standard of 
programs, noting that our program is following OFAC guidelines for 
people to people contact, unlike many other groups. They have contacted 
OFAC regarding the recent denial of our license. Both the current and 
past Chief of the United States Interests Section have repeatedly 
praised our ``people-to-people'' educational programs as important for 
creating greater openness and dialogue in Cuba.
    Last March, we wrote to Treasury requesting renewal of our license 
for another 2 years. In June 2001, they told us that a decision 
regarding our license would be made by December 1 of that year, and it 
was in the queue. In November, we wrote to Treasury officials to remind 
them that a decision was promised by December 1, 2001. When we 
contacted them in mid-December inquiring about their decision, we were 
told that they had lost our original correspondence from March. We 
immediately resubmitted information to them. We received a letter dated 
December 18, denying our license renewal and stating that we could 
resubmit and provide ``A summary of past activities and an agenda for 
the proposed activities.'' We promptly did so; much of what we provided 
is included in this testimony. In early January, we received another 
letter from Treasury informing us that they had received our revision. 
On January 31, we were told our license application had been denied 
again. Treasury gave us the vague explanation that our programs did not 
have enough ``people-to-people exchanges.'' We think the reasons for 
this denial are capricious and arbitrary. All that remains of our 
organization is our website and my own research on Cuba, that includes 
a forthcoming book--which is now in peril as well. In the past, OFAC 
has seemed pleased with our programs; the sudden u-turn they have taken 
is hard to understand since the law on travel to Cuba has not changed.
    Although OFAC's stated reason for denying our license is that our 
programs did not have enough people-to-people contact, my congressional 
representative was told by OFAC that they felt we were more of a 
tourist oriented than a serious educational and research program. OFAC 
also informed her that they objected to our website; they believe it 
gives the impression that anyone can go on our programs (not true) and 
expressed distaste for the restaurant reviews we have posted as a 
service to participants. We plan to follow OFAC's directive and remove 
the restaurant guide, as well as several books to which they opposed, 
from our website, although we believe these requests to be petty and 
senseless.
    The arbitrary nature of OFAC's decision is further highlighted by 
the fact that one of our programs was copied nearly word-for-word by 
another organization; they were granted a license while our program was 
flatly denied! In addition, a participant in one of my programs has 
adopted many of the same features from my program and had no trouble 
securing a license to lead groups. Finally, in terms or people-to-
people contact, we regularly brought urbanists working outside of 
government to the attention of participants, including Habitat for 
Humanity and regular visits to the modest homes of the Cuban people.
    Our organization, Cuban Research and Education Programs, is the 
most prominent organization providing legitimate, for-credit, 
professional education and research programs on Cuba for planners, 
architects, environmentalists, urbanists, and other related fields. Our 
programs have been running on a modest level for the past 5 years with 
wide acclaim. All participants are required to sign a form stating they 
are a professional in the field of urbanism and declare they have a 
good chance of disseminating the information they have learned to 
professional organizations. Very few other licensed programs make such 
a requirement or simply ignore it. More often than not, we say no to 
most people who call wanting to go on our licensed program. We will 
direct them to either write their own customized license or to another 
organization with less stringent requirements. Richard Stone of the 
American Institute of Architects recently wrote the following to us:
    ``Thank you again for the superior tour you gave--Architects would 
love your tour and your tour format--I collected 24.5 hours of 
continuing education credit--I do want to take the same tour again 
soon.'' Prominent engineer David Giuliani said in another testimonial: 
``Visiting Cuba with you has been the most educationally intensive 
period of my recent life.''
    U.S. Treasury Preservationist, Martin Shore AIA, who headed the 
office out of 1500 Pennsylvania Avenue and was a participant in our 
program posted the following on our website: ``recommend the trip 
highly.'' Numerous graduate students from schools around the country 
have used their experiences on our programs to receive course credit.
    Our programs are considered the best of their kind, with a focus on 
architecture, planning, economic development, environmentalism, and 
sustainability (please see Appendix B for an example of one of our 
lectures in Cuba). Professionals have very limited choices in terms of 
programs that provide continuing education credit. Our programs 
represent the gold standard of research and education programs, 
providing more opportunities for people-to-people contact than any 
other, including visits with activists outside of Cuban government, 
churches, and many places that have been ruled ``out of bounds'' by the 
Cuban government. These educational and research adventures provide a 
rare and unique opportunity for Americans to learn first-hand how 
communism works in one of the world's last bastions of Socialism. They 
also get to see some of the most significant historic architecture in 
the world, including pre-Columbian, Spanish Colonial, Art Deco, 
International, and the rather awful looking prefabricated Soviet/
Siberian style apartment blocks--a well-rounded lesson on urban form 
and housing before and after the Socialist revolution.
                  conflicts with the cuban government
    The U.S. Treasury is not alone in their discontent with our 
programs; the Cuban government is also unhappy. The Cuban government 
has a similar kind of licensing authority, under which groups must find 
a government organization willing to sponsor them. Our permission from 
the Cuban government to do educational and research programs has been 
shaky because of our open criticism of their island country.
    An article I wrote on Cuban architecture, design, and economic 
development in the professional journal Planning (see appendix A), 
while winning praise in the United States for being even handed, was 
roundly denounced on the internet by top Cuban officials. One official 
accused me of being part of the Miami exiled Cuban ``mafia''. Another 
accused me of working for the CIA! I was later informed that the top 
planning school in Cuba was barred from having any official contact 
with me. We were forced to find a new sponsor-Cuban Institute for 
Friendship with Americans-with whom we remained affiliated for 2 years. 
They, too, were bothered by my willingness to criticize Cuba for its 
problems with planning, economic development, and architecture. The 
Institute was also upset because I insisted on taking participants to 
places frowned upon by the Cuban government, such as the U.S. Interests 
Section, a Catholic Church specializing in outreach efforts for people 
with AIDS and drug problems, and a shanty town. They expressed 
disapproval that I arranged meetings with former urban planning and 
housing experts that no longer work with the Cuban government. We 
suspect that the Cubans were strongly considering not giving us the 
needed sponsorship for next year--but it looks like OFAC has taken care 
of that task for them. Unlike many licensed U.S. tour programs that are 
uncritical of Cuba, we have attempted to provide a balanced perspective 
with competing points of view--because we want to provide the most 
profound, interesting, and honest educational experience for the 
professionals who sign up with us. The rave testimonials on our website 
says it all.
    Like OFAC, the Cuban officials were upset with our website--but for 
different reasons. The Cubans did not like us promoting privately owned 
businesses and enterprises like restaurants, artists, and apartments. 
The Cuban government wants our participants supporting government owned 
restaurants, hotels, and stores only. OFAC believed our website to be 
promoting tourism, but we think of it as promoting small privately 
owned businesses--and therefore not supporting the Cuban government.
                               conclusion
    The Cold War is over. Today, thousands of Americans now visit China 
and Russia. To a certain degree, these visits or exchanges have caused 
China to move toward a third stream of economic development embracing 
some forms of capitalism. The dramatic fall of Communist Russia is also 
related to cultural exchanges with the West--rock n' roll, blue jeans, 
and McDonald's brought about structural changes greater than any 
military might. The people we have taken to Cuba are professionals in 
respected urban fields, professors, students, and journalists, and 
represent the best of America. They are the face of America that went 
against a Cuban media creation of racist, greedy, and violent 
Americans. They did not come to Cuba for sun, rum, and sex, but instead 
to learn about a country that is so alien to our own. Our people-to-
people programs have helped create new bridges of understanding, hope, 
and peace between the people of Cuba and the United States. Elizardo 
Sanchez, widely regarded as the leading human rights activists, has 
said on numerous occasions: ``The more American citizens in the streets 
of Cuban cities, the better for the cause of a more open society. So 
why does the U.S. maintain travel controls?''
    With only limited media outlets that are controlled by the Cuban 
government, Cubans think that incidents like the shooting at Columbine 
occur nearly every week in the United States. Many Cubans believe that 
Pulp Fiction--played over and over in Cuba--is an accurate portrayal of 
our state of race relations. Both the former and current Chief Officer 
of the United States Interests Section have praised our programs as 
being one of the best in creating greater understanding and goodwill 
between the people of Cuba and the United States. We believe the 
embargo against food, health, and travel restrictions need to be 
completely lifted; at the very minimum, however, OFAC needs to follow 
the law and grant travel licenses to educational and research 
organizations like ours. Groups like ours are a small step toward 
helping to improve relations between our two countries.
    For our organization, the denial of our license request has been 
devastating. We have had to cancel programs scheduled for both March 
and May. Because these programs are a large source of income for our 
small organization, we have been forced to lay off the entire staff and 
essentially mothball our office until we hear from Treasury. OFAC has 
created economic ruin for our modest operation. It is likely we will 
never recover from their unfair and unjust treatment of our 
organization. Thank you for the opportunity to testify here today. 
Attached is more information about our programs for the written record.
                       summary of our activities
Travel and Educational Exchange
    By any measure, Cuban Research and Education programs provides the 
highest quality educational programs in the areas of architecture, 
planning, preservation, sustainable development, and environmental 
development. We have at least one or two American professors that lead 
each of our licensed programs, we meet with non-governmental groups and 
individuals, and we spend more time on substantive educational 
activities than any other programs. Some of the folks that currently 
lead newly licensed programs were participants of mine in the past and 
attempt to essentially duplicate our previous programs. Some of the 
newly licensed programs focus on urban and design issues are simply 
lacking the kind of expertise and breath that we provide.
    In 1997, I attended the Fourth Biennial de Architechtura del 
Caribe, along with hundreds of fellow academics, planners, and 
architects. I was the only American present at the conference. At the 
conference, I made a presentation that highlighted new urbanism and my 
own experiences with sustainable development. I received requests for 
encore lectures. The eagerness of the Cuban people to share 
information, and their desire for quality interaction on a professional 
level, led to the inception of my Cuban Research and Education 
programs. In 1997, I organized a group of Americans to attend the 
International Conference on Shelter and Revitalization of Old and 
Historic Urban Centers, held in March of that year. The group was 
comprised of diverse individuals, including planners, architects, 
builders, and sociologists. The research and education programs have 
been featured in nationally syndicated newspaper columns, and received 
the 1999 ``Insider Award'' for excellence in educational travel from 
Travel Holiday, a publication with more than 625,000 readers. The book, 
Time Out: Havana and the Best of Cuba, called us the ``perhaps the best 
educational option'' for travel to Cuba.
       fostering people-to-people educational, professional, and 
                        organizational exchange
    Many of the contacts for our research and education programs are 
recognized internationally. Ruben Bancroft, Ph.D., Dean of the School 
of Architecture at the University of Havana, and an internationally 
recognized architect, has been instrumental in forging a strong 
relationship and providing program support. The research and education 
programs resulted in Dr. Bancroft visiting the United States twice and 
giving lectures on the great need to preserve Cuba's architectural 
history through historic preservation. Mr. Sergio Garcia Gutierrez has 
been an important resource for the programs. President of the Union of 
Architects and Engineers, an organization with more than 10,000 
members, Mr. Gutierrez awarded me with two certificates to recognize 
the contribution the programs have made toward providing an information 
exchange between Cubans and Americans. I was also awarded a ``Diploma'' 
by the Dean of Architecture at the University of Havana. The programs 
have also enjoyed the support and participation of Eusebio Leal, Havana 
Town Historian, Dr. Mario Cabello; the Cuban Minister of Housing, Mr. 
Gregorio Alvarez Valdes; Director of International Relations, Ms. 
Isabella Rigol; former Head of Conservation of Old Havana, Arg. 
Salvador Gomila Gonzales; the Deputy Chairman of the National Housing 
Institute; and Mr. Jose Choy, a leading architect in Cuba. Participants 
also meet with leaders of the Committee for the Defense of the 
Revolution and Cuban Institute for Friendship. Some of these 
individuals work outside of Cuban government, and we have also worked 
with several other non-government organizations in Cuba including 
Habitat for Humanity. I have discussed planning and preservation on 
Cuban television several times.
                         humanitarian outreach
    Our Cuban research and education programs have institutionalized 
the donation of medical supplies as an organizational goal. Cuban 
hospitals and clinics suffer from a constant shortage of medical 
supplies, inadequate facilities, and antiquated equipment. Each 
individual traveling to Cuba is allowed to bring a maximum of 22 pounds 
of medicine to donate. In the beginning, individuals were asked to 
acquire their own medical supplies. I quickly realized that this method 
would not produce the maximum amount of medical donations to Cuba. I 
sought and fostered a relationship with Supplies Over Seas (SOS), a 
local foundation whose mission is to provide free medical supplies and 
assistance wherever it is needed. I am now an active SOS board member. 
Currently, the research and education programs acquire and distribute 
the medical supplies with assistance from SOS.
    The programs have been responsible for delivering approximately 
10,000 pounds of medical supplies to a hospitals and clinics throughout 
Cuba. These medical supplies have an estimated value of more than 
$200,000, under the assumption that each participant brought 10 pounds 
of medicine each.
    Recently, the programs made a large donation of clothing to a 
private church that works with Cuban AIDS patients after receiving 
information from the Cuban AIDS project. We believe that assisting 
those in need is the most basic form of building relationships and 
community between people and Nations.
                       information dissemination
    As an active community member, I have had the opportunity to 
discuss the importance of improved U.S.-Cuba relations and the research 
and education programs with national leaders. On the local level, I 
regularly correspond with Congresswoman Anne Northup (3rd District, R-
Ky) as a way to disseminate information and heighten awareness about 
the potential for positive relations with Cuba. I have also met with 
United States Senator Mitch McConnell (R-Ky) several times and had a 
lengthy personal conversation with him regarding Cuba. I have met with 
four other U.S. Senators to discuss Cuba--Senators Kerry, Chafee, 
Leahu, and Rockefeller. Most recently, I participated in a day long 
seminar on the economic impacts of the embargo with Congressional 
leaders and staff. At a national level, I spoke to former Secretary of 
State Madeline Albright during her visit to Louisville in spring 1998. 
I addressed policy issues regarding Cuba at an open forum discussion 
hosted by the University of Louisville. Internationally, I have 
arranged meetings between research and education participants and the 
United States Interest Section in Havana, Cuba. These meetings have 
provided an informal setting for individuals to question the status of 
U.S.-Cuba policy and progress regarding free travel and professional 
exchange. Michael Kozak, Former Chief of the U.S. Interest Section, 
complimented me for the variety of officials both within and outside 
the government I have met with. Mr. Kozak stated that I had better and 
friendlier contacts than does the entire U.S. Interest Section.
                           community outreach
    Our organization has helped to foster relationships through 
membership, advertisement, and listserv postings with important 
international organizations that have an established interest in the 
Cuban research and education programs. These organizations include the 
National Trust for Historic Preservation, Society of Architectural 
Historians, Urban and Community Sociology Section, Cuban Committee for 
Democracy, Americans for Humanitarian Trade with Cuba, H-Urban, New 
Urbanist, University and Community Partnerships, American Planning 
Association, and Progressive Planners Network.
    As a way to provide the maximum amount of people with up-to-date 
information on research and education programs to Cuba, I have 
developed an extensive web site, www.cubanow.org. This web site 
provides a constant stream of new information through slide 
presentations, essays, video presentations, and details about travel to 
Cuba, and numerous links to relevant sites that will allow individuals 
to better understand U.S.-Cuba policy and travel. The site has received 
more than 41,000 hits from 52 countries. The website now averages about 
150 hits a week. The number of hits have doubled in the past year. The 
website is very popular among Cuban architects, planners, and 
preservationists and government officials. This is the only website in 
the world that provides a voice to the Cuban design community. These 
community outreach efforts have achieved participation of a wide 
variety of individuals from interrelated fields, including participants 
from the U.S. Treasury Department, Council on Foreign Relations, U.S. 
Department of Housing and Urban Development, and the Federal Aviation 
Administration has traveled to Cuba with our organization as a direct 
result of these outreach efforts.
    I was also invited to speak at the Cuban National Heritage 
Symposium at the Institute San Carlos in Key West, Florida, by the 
preservation group Cuban National Heritage. I gave a slide show 
presentation to illustrate the great need in Cuba for preservation 
efforts. At this symposium, I interacted with a wide range of 
individuals, including exile groups that offered another perspective on 
the state of U.S.-Cuban relations.
                            speaking events
    The Cuban Research and Education Program (Cubanow.org) promotes the 
people-to-people public policy initiative to better U.S.-Cuban 
relations through direct interaction between U.S. citizens and Cubans. 
Our organization has made nearly 30 policy presentations to top Cuban 
and United States officials in order to promote positive social change 
at a grassroots level. Among the organizations for which we gave 
presentations were the U.S. Treasury Department, National Security 
Council, and State Department. Our organization has been invited to 
speak at prominent universities such as MIT, Columbia, New York 
University, University of Southern California, University of California 
at Santa Barbara, Museum of Architecture in Southern California, 
National Building Museum in Washington D.C., New School of Architecture 
in San Diego, American Sociological Annual Conference, Skirball Center 
in Los Angeles, University of Cincinnati, University of Louisville, 
Parliamentarians National Conference, Professional Speakers Group, 
Rotary Club, and Ohio State University. I was recently the keynote 
speaker in Washington D.C. at the Restoration and Renovation Conference 
before 6,000 participants. I feel that education and freedom go hand-
in-hand and that our programs generate attention in some of the most 
basic and important public policy arenas. Our organization also feels 
that these speaking events are the best arenas to dispel common 
misconceptions about US-Cuban public policy and to encourage more 
research into public policy issues.
           Biographical Sketch of John I. Gilderbloom, Ph.D.
    John I. Gilderbloom, Ph.D., Executive Director of the Cuban 
Research and Education Programs, is a professor in the University of 
Louisville's Department of Urban and Public Affairs graduate program in 
the College of Business and Public Administration and the Director of 
the Center for Sustainable Urban Neighborhoods (www.louisville.edu/org/
sun). He teaches courses on Cuba, Historic Preservation, Housing, Urban 
Planning, and Revitalizing Inner Cities. Dr. Gilderbloom has won two 
``teacher of the year'' awards and the Professional Speakers Bureau now 
represents his popular lectures on Cuba. He has been profiled in the 
New York Times, Atlanta Constitution Journal, and Planning Magazine. 
Dr. Gilderbloom has written articles on a variety of public policy 
issues for 22 academic journals and 18 chapters in books; he has also 
written two books. He has written articles in the Wall Street Journal, 
Washington Post, USA Today Magazine, and the Los Angeles Times. Most 
recently, Dr. Gilderbloom served as a technical advisor for National 
Geographic's recent special issue on Old Havana. He is currently 
writing a book on Cuba and has published articles on Cuba recently in 
Planning Magazine and the Encyclopedia of 20th Century Architecture. 
Dr. Gilderbloom has been to Cuba approximately 25 times in the past 
five years and is internationally recognized. He is a member of 
Americans for Humanitarian Trade with Cuba Board of Directors, where he 
sometimes volunteers as a spokesman. Dr. Gilderbloom recently earned an 
honorary diploma, along with several other honors, from Cuba's Union of 
National Architects and Engineers. He has provided testimony to 
Congress on several occasions concerning Hispanics and housing.
    Special note: My thanks to Teressa Jackson, Neal Pearce, Gayle 
Kimball and Richard Louv for reading and editing this.

    Senator Dorgan. We will now go to Nancy Chang, of the 
Center for Constitutional Rights. Ms. Chang.
STATEMENT OF NANCY CHANG, CENTER FOR CONSTITUTIONAL 
            RIGHTS
    Ms. Chang. Senator Dorgan, thank you for providing the 
Center for Constitutional Rights with this opportunity to 
discuss the pressing need for legislation ending governmental 
restrictions on travel to Cuba.
    Travel to Cuba to engage in tourist activities, which by 
statute can never be licensed, and travel to Cuba without a 
license to engage in those limited activities for which the law 
permits the grant of a license constitute violations of the 
Cuban Assets Control Regulations and the Trading with the Enemy 
Act of 1917. Only travelers who are fully hosted while in Cuba 
and successfully avoid spending so much as a penny of their own 
money on prohibited travel-related transactions are exempted 
from these restrictions.
    Each violation of these travel restrictions can expose the 
traveler to a criminal conviction, punishable by the fine of up 
to $100,000 and by imprisonment for a term of up to 10 years. 
In addition, each violation can expose the traveler to civil 
enforcement by the Department of the Treasury's Office of 
Foreign Assets Control, which is authorized to assess a penalty 
of up to $55,000.
    The severity of the restrictions on travel to Cuba 
interferes with and effectively chills the exercise of two 
fundamental rights protected by the United States Constitution. 
First, the restrictions limit our freedom to travel, which is 
part of the liberty of which a citizen cannot be deprived 
without due process of law under the Fifth Amendment. The 
Supreme Court has explained that this freedom of movement is 
the very essence of our free society, setting us apart. Like 
the right of assembly and the right of association, it makes 
all other rights meaningful--knowing, studying, arguing, 
exploring, conversing, observing, and even thinking. Once the 
right to travel is curtailed, all other rights suffer, just as 
when curfew or home detention is placed on a person.
    Second, the restrictions limit our rights under the First 
Amendment to express our views, to hear the speech of others, 
to gather information, and to associate with others, rights 
which are essential to a democratic society. During the Cold 
War, the Supreme Court twice upheld governmental restrictions 
on travel to Cuba, finding them to be justified by the 
weightiest considerations of national security. The 
geopolitical landscape has changed significantly since the 
Supreme Court decided these cases and the Cuban Assets Control 
Regulations, nevertheless, continue to infringe on our 
fundamental rights.
    Out of concern that the OFAC enforcement of the 
restrictions was unfairly targeting Americans for punishment 
that they did not deserve, in 1998, the Center for 
Constitutional Rights established its Cuban Travel Project. 
During the 4 years it has been in operation, it has advised 
thousands of individuals and dozens of organizations from 
across the United States on the laws and regulations governing 
travel to Cuba. A bilingual pamphlet published by the Center, 
``Advice for Travelers to Cuba,'' provides a user-friendly 
introduction to this arcane area of the law and is in wide 
circulation.
    Currently, the Center represents more than 400 individuals 
who have been targeted for OFAC enforcement actions. Each 
client has received from OFAC a requirement to furnish 
information, demanding a written response to a set of questions 
about his or her travel activities, and/or a pre-penalty notice 
alleging that he or she traveled to Cuba in violation of the 
restrictions. In the case of the Center's 246 clients who have 
received a pre-penalty notice, OFAC has demanded a civil 
penalty that generally ranges from $7,500 to $17,500.
    The Center's clients represent a cross-section of America 
at its very best. Included among its ranks are doctors, 
lawyers, educators from the elementary school level to the 
university level, students in high school, college, and 
graduate school, journalists, writers, artists, dancers, film 
makers, urban planners, public health workers, social workers, 
law enforcement officers, civil servants, entrepreneurs, 
computer experts, and engineers. They range in their age from 
their teens to their 80s and they are spread across 35 States 
and the District of Columbia.
    While their reasons for traveling to Cuba are varied, none 
have engaged in activities that would, at least under any fair 
and rational system of justice, be considered grounds for 
imposing the criminal and civil penalties called for in the 
Cuban Assets Control Regulations and the Trading with the Enemy 
Act. The Center's clients provide a firm basis for 
understanding the reasons why so many Americans travel to Cuba 
without first obtaining a license to do so from OFAC.
    First, most Americans are not aware of and do not 
understand the complex laws and regulations that govern such 
travel, and as a result, incorrectly believe their travel to be 
legal. The regulations are obscure, replete with provisions 
that are lacking in clarity, and furthermore, the restrictions 
run counter to the basic values of an open society. Indeed, 
travel to socialist States, including the former Soviet Union, 
the People's Republic of China, Vietnam, and North Korea have 
long been and continue to be permitted, with the sole exception 
of travel to Cuba.
    Perhaps it is for these reasons that Americans are quick to 
believe advertisements falsely claiming that Americans may 
travel to Cuba lawfully as long as they pay for their trip in 
advance to a travel agency in a third country and spend no cash 
in Cuba.
    Ironically, those who honestly report their travel to the 
Customs Service on their return to the United States are the 
ones who are most likely to become the subject of an OFAC 
enforcement action, while those who deliberately set out to 
violate the rules are adept at evading detection, and, it 
seems, nearly always succeed in their mission. In other words, 
OFAC enforcement is directed at the least culpable travelers, 
those who do not understand the travel regulations and believe 
themselves to be in compliance with them and are truthful with 
the Customs Service.
    Second, Americans who are intent on visiting Cuba as 
tourists are left no option but to violate the Cuban Assets 
Control Regulations and expose themselves to the harsh 
penalties. OFAC is barred by statute from granting a license 
for travel to engage in any tourist activities.
    Third, Americans who apply for a specific license to travel 
to Cuba in order to engage in one of the limited activities for 
which licenses may be granted have consistently encountered 
roadblocks that prevent them from obtaining a license on a 
timely basis. From all outward appearances, OFAC is engaged in 
a deliberate strategy of discouraging the filing of license 
applications and of constructively denying those applications 
that are filed through agency inaction and delay.
    OFAC has failed to publish any rules or procedures 
specifying what information a successful license application 
must provide, much less what standards are applied in reviewing 
these applications. The absence of uniform written standards, 
coupled with the absence of any requirement that OFAC 
demonstrate to Congress or to the public that it is exercising 
its discretion in a fair and even-handed manner promotes the 
inconsistent and irrational treatment of applications that we 
have witnessed.
    Fourth, Americans who travel on a general license or whose 
travel is fully hosted are not required to apply for a license 
in advance of their trip from OFAC and, therefore, lack 
documentation that their travel is lawful. On their return to 
the United States, these individuals are frequently subjected 
to harassment, even detention and confiscation of goods 
purchased in Cuba by untrained Customs officials who rigidly 
adhere to the false believe that travel to Cuba is illegal 
unless the traveler is able to produce a copy of a specific 
license from OFAC authorizing this travel. Some of these 
individuals have even been subjected by OFAC to enforcement 
actions.
    Enforcement of the restrictions on travel to Cuba are being 
stepped up at a time when government resources are urgently 
needed to fight terrorism. In July 2001, in response to 
widespread complaints of a Bush administration crackdown on 
Americans traveling to Cuba, a spokesperson for the Department 
of Treasury finally acknowledged that a higher incidence of 
penalty cases is being issued. The Department of Treasury 
reported that while OFAC had issued only 188 enforcement 
letters in all of 2000, it had issued 766 such letters in 2001.
    The Center was recently informed by OFAC officials that 
administrative law judges will soon be conducting the hearings 
that have been requested by individuals who have been charged 
with violating the regulations. During the 10 years since the 
Cuban Democracy Act of 1992, the agency has been required to 
provide individuals with an administrative law judge hearing 
upon request. However, since that time, the Department of 
Treasury has not had any judges on staff. As of December 2001, 
the backlog of requested hearings was reported to be 357.
    OFAC's devotion of additional resources through the hiring 
of administrative law judges to enforce the Cuban Assets 
Control Regulations at a time when it has also been assigned 
the serious responsibility for tracing and blocking assets of 
terrorists responsible for the attacks of September 11 is 
profoundly troubling.
    Senator Dorgan. Ms. Chang, I would like you to summarize 
the remainder of your statement, if you would.
    Ms. Chang. Certainly. Neither the judiciary nor the 
executive is likely to bring about the end to the current 
restrictions on travel to Cuba. We are here to ask that 
Congress enact legislation that terminates these restrictions 
and that explicitly repeals all existing statutory 
authorization for such restrictions.
    This year marks the 40 anniversary of the Cuban Missile 
Crisis. Congress should seize this moment and take the first 
critical step towards mending the Cold War-era fences that 
separate us from our close neighbors. The restrictions on 
travel to Cuba have outlived their purpose. Moreover, their 
senseless, the arbitrary and unfair manner in which they have 
been applied only serve to breed contempt and disrespect for 
the laws of this Nation. Their repeal by legislation is long 
overdue.

                           Prepared Statement

    Thank you once again for providing the Center for 
Constitutional Rights with this opportunity to address the 
subcommittee on these important issues, and I would request 
that my full written statement be included in the record of 
this hearing.
    Senator Dorgan. Without objection, the full statement will 
be a part of the record.
    [The statement follows:]

                   Prepared Statement of Nancy Chang

    Senator Dorgan and Members of the Subcommittee, thank you for 
providing the Center for Constitutional Rights with this opportunity to 
discuss the pressing need for legislation ending governmental 
restrictions on travel to Cuba. First, I will address how these 
restrictions undermine our civil liberties without enhancing our 
national security. Second, I will address how enforcement of the 
restrictions by the Department of the Treasury unfairly targets 
Americans for punishment that they do not deserve. Third, I will 
address how these enforcement efforts are being stepped up at a time 
when government resources are urgently needed to fight terrorism. 
Finally, I will discuss why the restrictions will remain in place 
unless and until Congress enacts legislation to terminate them.
    the current restrictions on travel to cuba undermine our civil 
           liberties without enhancing our national security
    Travel to Cuba to engage in tourist activities, which, by statute, 
can never be licensed,\1\ and travel to Cuba without a license to 
engage in those limited activities for which the law permits the grant 
of a license,\2\ constitute violations of the Cuban Assets Control 
Regulations \3\ and the Trading with the Enemy Act of 1917.\4\ Only 
travelers who are fully hosted while in Cuba and successfully avoid 
spending so much as a single penny of their own money on prohibited 
travel-related transactions, are exempted from these restrictions.\5\ 
Each violation of these travel restrictions can expose the traveler to 
a criminal conviction punishable by a fine of up to $100,000 and by 
imprisonment for a term of up to 10 years.\6\ In addition, each 
violation can expose the traveler to civil enforcement action by the 
Department of the Treasury's Office of Foreign Assets Control (OFAC), 
which is authorized to assess a penalty of up to $55,000.\7\
---------------------------------------------------------------------------
    \1\ See Agricultural Rural Development, Food and Drug 
Administration, and Related Agencies Programs for fiscal year 2001, 
Sec. 910(b), amending the Trade Sanctions Reform and Export Enhancement 
Act at 22 U.S.C. Sec. 7209(b).
    \2\ Id. See also 31 C.F.R. Sec. Sec. 515.560(a)(1)-(12) 
(authorizing licensed travel to Cuba under tightly prescribed 
conditions).
    \3\ 31 C.F.R. Part 515.
    \4\ 50 U.S.C. Appendix Sec. Sec. 1 et seq. The restrictions on 
travel to Cuba are also authorized by the Cuban Democracy Act of 1982, 
22 U.S.C. Sec. Sec. 6001 et seq., the Cuban Liberty and Democratic 
Solidarity Act of 1996 (Helms-Burton Act), 22 U.S.C. Sec. Sec. 6021 et 
seq., and the Trade Sanctions Reform and Export Enhancement Act, 22 
U.S.C. Sec. 7209.
    \5\ See 31 C.F.R. Sec. 515.420.
    \6\ 31 C.F.R. Sec. 500.701(a)(1).
    \7\ 31 C.F.R. Sec. 500.701(a)(3).
---------------------------------------------------------------------------
    The severity of the restrictions on travel to Cuba, coupled with 
the draconian criminal and civil penalties that may be imposed upon 
their violation, interferes with, and effectively chills, the exercise 
of two fundamental rights guaranteed by the United States Constitution.
    First, the restrictions limit our freedom to travel, which is ``a 
part of the liberty of which [a] citizen cannot be deprived without the 
due process of law under the Fifth Amendment.'' \8\ The Supreme Court 
has explained that:
---------------------------------------------------------------------------
    \8\ Kent v. Dulles, 357 U.S. 116, 125 (1958).
---------------------------------------------------------------------------
    This freedom of movement is the very essence of our free society, 
setting us apart. Like the right of assembly and the right of 
association, it often makes all other rights meaningful--knowing, 
studying, arguing, exploring, conversing, observing and even thinking. 
Once the right to travel is curtailed, all other rights suffer, just as 
when curfew or home detention is placed on a person.\9\
---------------------------------------------------------------------------
    \9\ Aptheker v. Secretary of State, 378 U.S. 500, 520 (1964) 
(Douglas, J., concurring).
---------------------------------------------------------------------------
    Second, the restrictions limit rights under the First Amendment to 
express our views, hear the speech of others, gather information, and 
associate with others--rights that are essential in a democratic 
society. As Justice William Douglas astutely observed:
    The right to know, to converse with others, to consult with them, 
to observe social, physical, political and other phenomena abroad as 
well as at home gives meaning and substance to freedom of expression 
and freedom of the press. Without those contacts First Amendment rights 
suffer.\10\
---------------------------------------------------------------------------
    \10\ Zemel v. Rusk, 381 U.S. 1, 24 (1965) (Douglas, J., 
dissenting).
---------------------------------------------------------------------------
    Government regulations are not permitted to infringe upon 
fundamental rights unless they are necessary in order to achieve a 
compelling governmental objective and are narrowly tailored to 
accomplish that objective. In a suit filed just two months after the 
Cuban Missile Crisis of 1962, the Supreme Court was quick to uphold 
governmental restrictions on travel to Cuba, finding them to be 
justified by the ``weightiest considerations of national security.'' 
\11\ Two decades later, in 1984, a somewhat more restrained Supreme 
Court again upheld such restrictionsEby accepting at face value the 
Department of State's opinion that the political, economic, and 
military backing of Cuba by the Soviet Union and Cuba's military 
activities in the Western Hemisphere continued to sustain the 
restrictions.\12\
---------------------------------------------------------------------------
    \11\ Id. at 16.
    \12\ Regan v. Wald, 468 U.S. 222, 243 (1984).
---------------------------------------------------------------------------
    The geopolitical landscape has changed significantly since the 
Supreme Court decided these two cases. The collapse of the Soviet bloc 
more than a decade ago marked the end of the Cold War and the halt of 
Soviet subsidies to Cuba. In the late 1990's, the Department of 
Defense, Central Intelligence Agency, Department of State, and National 
Security Agency finally acknowledged what had been obvious for quite 
some time--that the tiny island nation of Cuba does not pose a 
realistic threat to the national security of the United States or the 
Western hemisphere.\13\
---------------------------------------------------------------------------
    \13\ See Defense Intelligence Agency, Central Intelligence Agency, 
and Department of State Bureau of Intelligence and Research, the 
National Security Agency, and the United States Southern Command Joint 
Intelligence Center, ``The Cuban Threat to U.S. National Security,'' 
November 18, 1997 /www.defenselink.mil/pubs/cubarpt.htm>; Dana 
Priest, ``Cuba Poses 'Negligible' Threat, Report Says,'' The Washington 
Post, May 7, 1998, at p.A8.
---------------------------------------------------------------------------
    Yet the Cuban Assets Control Regulations continue to infringe on 
our fundamental rights, notwithstanding the fact that the government 
can no longer establish that they are necessary in order to achieve a 
compelling governmental objective, much less that they are narrowly 
tailored to accomplish such an objective. These regulations illustrate 
a fatal flaw in the Trading with the Enemy Act--a statute that four 
Justices of the Supreme Court have criticized for serving as a ``one-
way ratchet to enhance greatly the President's discretionary authority 
over foreign policy'' and to cling to that authority long after the 
national emergency that served as the basis for its grant has 
ended.\14\
---------------------------------------------------------------------------
    \14\ Regan v. Wald, 468 U.S. at 245.
---------------------------------------------------------------------------
enforcement of the restrictions on travel to cuba by the department of 
the treasury unfairly targets americans for punishment that they do not 
                                deserve
    In 1998, the Center for Constitutional Rights established its Cuba 
Travel Project in order to educate the public about the embargo and to 
provide legal representation to individuals and organizations subject 
to OFAC enforcement actions under the Cuban Assets Control 
Regulations.\15\ During the four years that the Cuba Travel Project has 
been in operation, the Center has advised thousands of individuals and 
dozens of organizations from all across the United States on the laws 
and regulations governing travel to Cuba. A bilingual pamphlet 
published by the Center, Advice for Travelers to Cuba, provides a user-
friendly introduction to this arcane area of the law and is in wide 
circulation.
---------------------------------------------------------------------------
    \15\ The Coordinator of the Center for Constitutional Rights' Cuba 
Travel Project is Anna Liza Gavieres. The attorneys associated with the 
Cuba Travel Project currently include William Goodman, Michael Ratner, 
Robert Bloom, Anthony DiCaprio, Margie Ratner, John Speyer, Jaykumar 
Menon, Shayana Kadidal, and myself.
---------------------------------------------------------------------------
    Currently, the Center represents more than 400 individuals who have 
been targeted for OFAC enforcement actions under the Cuban Assets 
Control Regulations. Each client has received from OFAC a ``Requirement 
to Furnish Information'' demanding a written response to a set of 
questions about his or her travel activities and/or a ``Pre-Penalty 
Notice'' alleging that he or she traveled to Cuba in violation of the 
regulations. In the case of the Center's 246 clients who have received 
a Pre-Penalty Notice, OFAC has demanded a civil penalty that generally 
ranges from $7,500 to $17,500 per person.
    The Center's clients represent a cross-section of America at its 
very best. Included among their ranks are doctors, lawyers, educators 
from the elementary school level to the university level, students in 
high school, college and graduate school, journalists, writers, 
artists, dancers, film makers, urban planners, public health workers, 
social workers, law enforcement officers, civil servants, 
entrepreneurs, computer experts, and engineers. They range in age from 
their teens to their 80's, and they are spread across 35 states and the 
District of Columbia.
    While their reasons for traveling to Cuba are varied, none have 
engaged in activities that would--at least under any fair and rational 
system of justice--be considered grounds for imposing the criminal and 
civil penalties called for in the Cuban Assets Control Regulations and 
the Trading with the Enemy Act. Some clients traveled in order to 
deliver humanitarian aid to the Cubans and to donate their time and 
professional services in Cuban hospitals and schools. Some clients 
traveled in order to spend time with their Cuban relatives, friends, 
and co-religionists, to visit the grave sites of their relatives, and 
to visit their former military stations on the island. Some clients 
traveled in order to study the Spanish language, to learn about Cuba, 
its history, and its people, and to write books and articles describing 
their findings. Some clients traveled in order to attend professional 
meetings, sporting events, and cultural events. Some clients traveled 
in order to study Cuba's internationally acclaimed programs in public 
health, sustainable agriculture, and energy conservation. Some clients 
traveled in order to study its political system and to meet with its 
proponents and opponents. And some clients traveled in order to 
experience the beauty of the Cuban beaches and countryside, sail, swim, 
fish, scuba dive, bicycle, birdwatch, and tour the sights.
    Despite their many differences, the Center's clients share an 
independence of thought, a determination to experience foreign cultures 
firsthand, and a belief that ties of friendship between people living 
in countries whose governments are at odds can promote peace between 
their nations. They are also united in their desire to export their 
enthusiasm for all that is positive about life in United States and to 
share with their fellow Americans the best of what Cuba has to offer.
    The Center's clients represent only an infinitesimal fraction of 
the tens of thousands of Americans who have traveled to Cuba in 
violation of the travel restrictions.\16\ However, the Center's clients 
represent a substantial percentage of the individuals against whom OFAC 
has brought enforcement actions.\17\ Thus, the overwhelming majority of 
travelers who violate the travel restrictions are not known to OFAC; in 
the alternative, they are known to OFAC, but OFAC has chosen not to 
pursue them. Ironically, those who honestly report their travel to Cuba 
to the Customs Service on their return to the United States are the 
ones who are most likely to become the subject of an OFAC enforcement 
action, while those who are adept at evading detection nearly always 
succeed in their mission. In other words, OFAC enforcement is directed 
at the least culpable travelers--those who do not understand the travel 
restrictions, believe themselves to be in compliance with them, and are 
truthful with the Customs Service.
---------------------------------------------------------------------------
    \16\ The United States-Cuba Trade and Economic Council has 
estimated that 176,000 U.S. citizens visited Cuba in 2000, of whom 
approximately 22,000 of whom traveled in violation of the travel 
restrictions, approximately 124,000 were Cuban Americans who are 
allowed one trip per year to visit close relatives in circumstances 
that demonstrate humanitarian need, and approximately 30,000 of whom 
made visits authorized by OFAC. See Kevin Sullivan, ``Americans Defy 
Cuba Embargo,'' The Washington Post, October 13, 2001. On the other 
hand, The New York Times has estimated that 40,000 to 50,000 Americans 
visited Cuba illegally in 2000. See Frank Bruni, ``Bush Administration 
Showing Willingness to Enforce Law on Visiting Cuba,'' The New York 
Times, August 5, 2001.
    \17\ The Center currently represents approximately 246 clients who 
have requested an Administrative Law Judge hearing. Given OFAC's 
statement in September 2001 that it has a backlog of 357 hearing 
requests, it is safe to assume that the Center's clients constitute a 
large percentage of OFAC's enforcement cases. See infra Notes 25 and 26 
and accompanying text.
---------------------------------------------------------------------------
    The Center's clients provide a firm basis for understanding the 
reasons why so many Americans travel to Cuba without first obtaining a 
license to do so from OFAC. First, most Americans are not aware of, or 
do not understand, the complex laws and regulations that govern such 
travel and, as a result, incorrectly believe their travel to be legal. 
The Cuban Assets Control Regulations are obscure and replete with 
provisions that are lacking in clarity. Furthermore, restrictions on 
travel run counter to the values of an open society. The freedom to 
travel is ``a part of our heritage'' and ``basic in our scheme of 
values.'' \18\ And the First Amendment not only protects, but 
encourages, Americans to engage in a free exchange of ideas and to form 
their own opinions on matters of public concern. Indeed, travel to 
socialist states, including the former Soviet Union, the People's 
Republic of China, Vietnam, and North Korea, has long been, and 
continues to be, permitted--with the sole exception of travel to Cuba. 
Perhaps it is for these reasons that Americans are quick to believe 
advertisements falsely claiming that Americans may travel to Cuba 
lawfully as long as they pay for their trip in advance to a travel 
agency in a third country and spend no cash while in Cuba.
---------------------------------------------------------------------------
    \18\ Kent v. Dulles, 357 U.S. at 126.
---------------------------------------------------------------------------
    Second, Americans who are intent on visiting Cuba as tourists are 
left with no option but to violate the Cuban Assets Control Regulations 
and to expose themselves to the imposition of harsh criminal and civil 
penalties. OFAC is barred by statute from granting a license for travel 
in Cuba to engage in tourist activities.\19\
---------------------------------------------------------------------------
    \19\ See supra Note 1. A number of the Center's elderly clients 
have spoken with great emotion of their determination to visit Cuba 
while they still retain the physical ability to endure such a trip and 
the mental ability to appreciate the experience. Some of these clients 
have ties to the island nation dating back to its pre-revolutionary 
days.
---------------------------------------------------------------------------
    Third, Americans who apply for a specific license to travel to Cuba 
in order to engage in one of the limited activities for which licenses 
may be granted under the Cuban Assets Control Regulations have 
consistently encountered roadblocks that prevent them from obtaining a 
license on a timely basis. From all outward appearances, OFAC is 
engaged in a deliberate strategy of discouraging the filing of license 
applications, and of constructively denying those applications that are 
filed through agency inaction and delay. OFAC has failed to publish any 
rules or procedures specifying what information a successful license 
application must provide, much less what standards are applied in 
reviewing applications. The absence of uniform written standards, 
coupled with the absence of any requirement that OFAC demonstrate to 
Congress and the public that it is exercising its discretion in a fair 
and even-handed manner, promotes the inconsistent and irrational 
treatment of applications that we have witnessed.\20\
---------------------------------------------------------------------------
    \20\ See, e.g., ``OFAC Travel License Survey Responses,'' Fund for 
Reconciliation and Development (February 8, 2002).
---------------------------------------------------------------------------
    To complicate matters further, OFAC routinely fails to process 
applications in a timely manner, a practice that is unacceptable given 
the substantial commitments of time and money required of travelers in 
advance of an international trip. Those familiar with the application 
process have learned that they must conduct a steady and persistent 
campaign of follow-up telephone calls and faxes to OFAC in order to 
stand even a chance of obtaining a license in advance of a trip's 
scheduled departure date. Furthermore, those applicants who are 
fortunate enough to receive specific licenses are now being saddled 
with burdensome additional documentation requirements.
    Fourth, Americans who qualify for travel on a general license, or 
whose travel is fully hosted, are not required to apply for a license 
and, as a result, lack documentation from OFAC establishing that their 
travel to Cuba was lawful. On their return to the United States, these 
individuals are frequently subjected to harassment, detention, and 
confiscation of goods purchased in Cuba by untrained Customs officials 
who rigidly adhere to the false belief that travel to Cuba is illegal 
unless the traveler is able to produce a copy of a specific license 
from OFAC authorizing the travel. Some of these individuals have even 
been subjected by OFAC to enforcement actions.
    Furthermore, the Center's clients provide a firm basis for 
understanding the hardships that travelers to Cuba endure--first at the 
hands of Customs officials, and later at the hands of OFAC--when our 
government suspects them of violating the Cuban Assets Control 
Regulations.
    With disturbing frequency, the Center's clients have reported that 
Customs agents were verbally abusive to them upon their return from 
Cuba. Customs agents have screamed directly into their faces, accused 
them of being criminals, interrogated them in a belligerent and 
intimidating manner, dumped the contents of their suitcases and bags 
onto the floor, detained them for periods as long as six hours, and 
coerced them into submitting written statements about their trips by 
threatening to keep them in detention until such a statement was 
submitted. Travelers' requests to speak to their attorneys have been 
routinely discouraged and even ignored. Customs agents have often 
caused travelers to miss their connecting flights, sometimes forcing 
them to spend the night at the airport waiting for another flight.
    In addition, the Customs Service appears to have recently initiated 
a practice of stationing inspectors in Canadian airports to surveil 
Americans as they plane and deplane flights between Cuba and Canada. A 
client of the Center received a Requirement to Furnish Information last 
year that was eerily reminiscent of the warning in George Orwell's 
novel, 1984, ``Big Brother is watching.'' The notice advised her that 
she had been observed by Customs inspectors when her Cubana Airlines 
flight arrived in Montreal. To its credit, the Canadian government has 
voiced concerns that this practice may be taking place, in violation of 
the 1974 Pre-Clearance Treaty between the United States and Canada.\21\
---------------------------------------------------------------------------
    \21\ Glen McGregor and Mike Trickey, ``Canada Opposes U.S. 
Crackdown on Cuba Visitors,'' Ottawa Citizen, September 1, 2001.
---------------------------------------------------------------------------
    Customs also appears to be placing the names of a select group of 
persons who are suspected of traveling to Cuba in violation of the 
Cuban Assets Control Regulations on a watch list used by the agency to 
screen for travelers who are of concern to law enforcement agencies. 
Many of the Center's clients have complained that after having been 
stopped by Customs agents on their return from Cuba, they have been 
subjected to heightened inspection procedures at airports whenever they 
travel internationally.
    Upon their return from Cuba, travelers who have been identified by 
Customs as having traveled in violation of the regulations receive a 
Pre-Penalty Notice from OFAC assessing a civil penalty of around $7,500 
when a single unauthorized trip is alleged, and around $17,500 when two 
unauthorized trips are alleged. Thus, a family of four that has visited 
Cuba in the mistaken belief that the travel was lawful should expect 
OFAC to assess a penalty of $30,000. And just three months ago, in 
November 2001, the Center received for the first time a Pre-Penalty 
Notice demanding an additional civil penalty of $1,500 from a traveler 
who had allegedly responded to a Requirement to Furnish Information 
outside of the allotted 20 business day time period for doing so.
    The penalties demanded by OFAC are plainly excessive and 
unreasonable. OFAC sets penalties without consideration of whether the 
traveler reasonably understood his or her travel to be lawful, how many 
days the traveler stayed in Cuba, or the nature of the traveler's 
activities while in Cuba and whether those activities fall within the 
parameters of licensable activity. More critically, OFAC sets penalties 
without consideration of the purported purpose of the travel 
restrictions--the amount of United States currency that the traveler 
has introduced into the Cuban economy.
moreover, these enforcement efforts are being stepped up at a time when 
      government resources are urgently needed to fight terrorism
    Between January 2001 and the present, the number of individuals who 
have received Requirement to Furnish Information forms and Pre-Penalty 
Notices from OFAC has skyrocketed. In July 2001, in response to 
widespread complaints of a Bush Administration crackdown on Americans 
traveling to Cuba, a spokesperson for the Department of the Treasury 
finally acknowledged that ``a higher incidence of penalty cases are 
being issued at this time.'' \22\ This increase, however, was 
attributed by the spokesperson ``solely to the normal ebb and flow of 
OFAC's workload rather than a shift in policy.'' \23\ Soon thereafter, 
the Department of the Treasury reported that while OFAC had issued only 
188 enforcement letters in all of 2000, it had issued 517 such letters 
between January and July of 2001.\24\
---------------------------------------------------------------------------
    \22\ Rafael Lorente, ``U.S. Tightens Cuban Embargo,'' The 
Washington Times, July 5, 2001.
    \23\ Id.
    \24\ See Sullivan, ``Americans Defy Cuba Embargo,'' supra note 16.
---------------------------------------------------------------------------
    The increase in OFAC enforcement activity caused the Center for 
Constitutional Rights' Cuba Travel Project to be flooded with new 
requests for legal representation. Between January and June of 2001, 
the Center accepted 162 new cases for representation--far more than the 
137 cases it accepted in all of 2000, the 55 cases that it accepted in 
1999, or the 49 cases that it accepted in 1998. When its caseload 
exceeded 400 at the end of June, 2001, the Cuba Travel Project was 
forced to turn away new cases for the first time since it opened its 
doors in 1998. In order to fill the void caused by its inability to 
accept new cases, the Center, in conjunction with the National Lawyers 
Guild, formed a ``Wall of Lawyers'' project. Lawyers from all across 
the nation have agreed to provide legal representation to individuals 
accused by OFAC of violating the Cuban Assets Control Regulations.
    For the first few months following the terrorist attacks of 
September 11, 2001, OFAC slowed down its enforcement of the 
restrictions on travel to Cuba. However, the agency has apparently 
decided to make up for lost time. Last month, January 2002, OFAC issued 
18 new Pre-Penalty Notices just to existing clients of the Center. This 
is an unusually high number of Pre-Penalty Notices for the Center to 
receive in a single month, and it is a strong indication that OFAC is 
once again stepping up its enforcement of the Cuban Assets Control 
Regulations. In addition, the Center was recently informed by OFAC 
officials that Administrative Law Judges will soon be conducting the 
hearings that have been requested by individuals who have been charged 
with violating the Cuban Assets Control Regulations. During the ten 
years that the Cuba Democracy Act of 1992 has provided such individuals 
with the right to an Administrative Law Judge hearing, the Department 
of the Treasury has never had any judges on staff.\25\ As of December 
2001, the backlog of requested hearings was reported to be 357.\26\ 
OFAC's devotion of additional resources to the enforcement of the Cuban 
Assets Control Regulations at a time when it has been assigned 
responsibility for tracing and blocking the assets of the terrorists 
responsible for the attacks of September 11 is profoundly 
troubling.\27\
---------------------------------------------------------------------------
    \25\ Ken Guggenheim, ``Lengthy Backlog of Cuba Travel Cases,'' AP 
Online, December 16, 2001.
    \26\ Id.
    \27\ See Executive Order 13224, ``Blocking Property and Prohibiting 
Transactions with Persons who Commit, Threaten to Commit, or Support 
Terrorism'' (September 24, 2001).
---------------------------------------------------------------------------
  the restrictions on travel to cuba will remain in place unless and 
          until congress enacts legislation to terminate them
    Neither the judiciary nor the executive branch is likely to bring 
about an end to current restrictions on travel to Cuba. Now that Cold 
War tensions have been defused and Cuba no longer presents a credible 
military threat to the United States, it is possible that the courts 
will no longer be willing to accept at face value the government's 
assertion that the travel restrictions are justified on national 
security grounds. However, the judiciary has a long tradition of 
deferring to Congress and the Executive on matters of foreign policy, 
particularly where--as here--the two political branches are in 
agreement with one another. Notably, as recently as 1996, the Court of 
Appeals for the Ninth Circuit refused to look behind the government 
proffer in support of the travel restrictions.\28\
---------------------------------------------------------------------------
    \28\ See Freedom to Travel Campaign v. Newcomb, 83 F.3d 1431 (9th 
Cir. 1996).
---------------------------------------------------------------------------
    And even if the executive branch were so inclined, it has been 
barred since October 28, 2000, from granting licenses for travel to 
Cuba for any activities other than the limited set of activities for 
which licenses are currently permitted under the Cuban Assets Control 
Regulations. In essence, the amendment in 2000 to the Trade Sanctions 
Reform and Export Enhancement Act, 22 U.S.C Sec. 7209(b), has codified 
the travel restrictions in the Cuban Assets Control Regulations into 
law.\29\
---------------------------------------------------------------------------
    \29\ See supra Note 1.
---------------------------------------------------------------------------
    Thus, as a practical matter, the restrictions on travel to Cuba 
will not be lifted unless and until Congress enacts legislation to 
terminate them. Such legislation should explicitly repeal all existing 
statutory authorization for the restrictions, including the Trading 
with the Enemy Act, the Cuban Democracy Act, the Helms-Burton Act, and 
the Trade Sanctions Reform and Export Enhancement Act. Such legislation 
should also provide for the dismissal of all pending OFAC enforcement 
proceedings under the Cuban Assets Control Regulations. Individuals 
subject to these proceedings have already endured the anxiety and the 
taint of having unresolved charges of wrong-doing filed against them 
without the ability to have their requests for an Administrative Law 
Judge hearing fulfilled. These charges have been pending for upwards of 
10 years due to the Department of the Treasury's failure to comply with 
its obligations under the Cuban Democracy Act of 1992. The dismissal of 
these cases would also serve the public interest, as it would permit 
OFAC to shift its resources away from Cuba--which is not a danger to 
the United States--to the many genuine dangers that are lurking, such 
as the threat of an imminent terrorist attack.
    Legislation that simply cuts off funding to OFAC for enforcement of 
the travel restrictions without legalizing travel to Cuba will not 
resolve the lack of accountability and fairness that is inherent to any 
licensing permit scheme. Such a half-hearted measure could make it 
impossible for people wishing to travel to Cuba to obtain specific 
licenses for such travel. In the event that they chose to travel 
without a license, their travel could form the basis of a future OFAC 
enforcement action if funding to OFAC for enforcement were restored.
    This year marks the 40th anniversary of the Cuban Missile Crisis. 
Congress should seize the moment and take this critical first step 
towards mending the Cold War-era fences that separate us from one of 
our closest neighbors. The restrictions on travel to Cuba have outlived 
their purpose. Moreover, their senselessness, and the arbitrary and 
unfair manner in which they have been applied, only serve to breed 
contempt and disrespect for the laws of this nation. Their repeal by 
legislation is long overdue.
    Thank you once again for providing the Center for Constitutional 
Rights with this opportunity to address the Subcommittee on these 
important matters.

    Senator Dorgan. Let me ask a couple of questions and then 
we will go to the next panel.
    Ms. Meister and Mr. Harriman, my understanding is that your 
cases are still unresolved at this point, is that the case?
    Mr. Harriman. That is correct.
    Ms. Meister. Yes, correct.
    Senator Dorgan. Are you concerned about speaking publicly 
on this matter inasmuch as your cases are as yet unresolved?
    Ms. Meister. Yes. To an extent, yes.
    Mr. Harriman. I am concerned depending on what questions I 
may have, but I feel it is very important for me to express my 
ideas here. There certainly may be some questions that I will 
not answer at this time.
    Senator Dorgan. Mr. Allen, your case is resolved and you 
paid a $700 fine.
    Mr. Allen. That is correct.
    Senator Dorgan. Let me ask, Dr. Gilderbloom, you were 
talking about articles that OFAC was critical of. Did I 
misunderstand that? You have a website and you have also 
written articles----
    Mr. Gilderbloom. Yes.
    Senator Dorgan [continuing]. And someone was critical of 
the articles. Was that the Cuban government or OFAC?
    Mr. Gilderbloom. Members of the Cuban government were upset 
with both the website listing privately-owned restaurants, 
privately-owned places to stay, non-government artists, and 
also a variety of perspectives both critical of the Cuban 
government, as well as a professional article I wrote in 
Planning magazine, which is the foremost article in journal 
planning. They were upset because I used the word ``embargo'' 
instead of ``blockade'' and they called me a member of the 
Cuban mafia in Miami, that I was, and other denigrating 
comments. Shortly after that, they said I was banned from going 
to the university to have official visits with urban planning 
faculty.
    And then in addition, they were quite upset--we had to find 
a host organization, and so this host organization also 
insisted, but I resisted in terms of going to certain places 
that they did not want Americans to see, which were 
shantytowns, people living almost in shacks, caves, on the 
river, in tents, because we wanted to show both sides of the 
Cuban revolution.
    Senator Dorgan. But your license at this point is denied 
and you are appealing that denial, is that correct?
    Mr. Gilderbloom. We hope to appeal, but we have been after 
this for 11 months now and we do not think--we are going to try 
our best, but I think with this testimony today, we have put 
OFAC in a corner to defend itself.
    Senator Dorgan. Again, summarize for me briefly, why do you 
think your license request was denied?
    Mr. Gilderbloom. Well, they stated in public that we were 
not meeting enough with--have enough non-government people-to-
people contacts, and, in fact, we worked with the U.S. 
Interests Section on meeting with various people and 
introducing people to that.
    The second thing is, they are very upset with the website, 
which is one of the products we produce, which listed non-
government restaurants, places to stay, and so on. But they 
keep on--they did not put that in the letter. That is what is 
frustrating. It is one thing they say not enough people-to-
people contact. Well, we could document all that. Now they are 
upset with how we designed the website. and then they went on 
and said----
    Senator Dorgan. Was that as part of a discussion with them? 
You said that was not in writing.
    Mr. Gilderbloom. Yes. It was a discussion with our 
Congressional representative. and then they said, ``We do not 
like two of the books you are using.'' And I said, okay, we 
will take them out.
    Senator Dorgan. Ms. Chang, you indicated in your testimony 
and I suggested in mine that there has been a substantial 
increase in enforcement actions. I think OFAC may contest that 
when they testify, but give me the basis for that statement, if 
you would.
    Ms. Chang. Starting in the beginning of 2001, our intake 
shot up. We were flooded with phone calls and took in more 
cases in the first half of 2001 than we had previously accepted 
and we had to shut down our intake. We were just overwhelmed. 
And just last month, January of 2002, we received 18 pre-
penalty notices in the mail from OFAC. That is an unusually 
high number for us and indicates an increase in activity in the 
agency.
    Senator Dorgan. Mr. Harriman and Ms. Meister, both of you 
seem to indicate that you were advised by various 
organizations, you, Ms. Meister, a travel agency in Canada, and 
Mr. Harriman, you were advised by some organization that you 
were a part of----
    Mr. Harriman. That's correct.
    Senator Dorgan [continuing]. That the kind of travel you 
were embarking upon was legal, is that correct?
    Ms. Meister. Exactly. I had no intention of doing anything 
to violate the law.
    Senator Dorgan. And when you received the notice of 
assessment from OFAC and Treasury, did you personally contact 
them to visit with them about it or did you employ an attorney?
    Ms. Meister. Oh, I personally, at that point.
    Senator Dorgan. And I assume you told them what you 
essentially told us this morning. What was their reaction?
    Ms. Meister. Let me see. A period of time went by. I 
completed a comprehensive inquiry of what I did there, et 
cetera. Then as I recall, it was just to be pending, that I 
would hear from them again.
    Senator Dorgan. Mr. Harriman.
    Mr. Harriman. I did contact OFAC when I received the pre-
penalty notice. At that point, I believe that if they had the 
facts in front of them, the documentation that our organization 
was participating and I was an official representative, that 
they might be able to clear it up. After a short time speaking 
on the phone with the contact at OFAC, it became clear that 
that was not going to be the case, so I ended the conversation 
there and began my own independent inquiries, starting with the 
American Go Association, its president and other people who 
have in the past had some interest in the Cuban travel. Only 
after going through that and a couple other degrees of 
separation did I find the Center for Constitutional Rights and 
signed them as my counsel.
    Senator Dorgan. Your testimony is helpful in that it 
describes a range of experiences that people have had in 
dealing with OFAC and the Treasury Department and in 
confronting this statutory provision here in the United States 
that prohibits the freedom to travel to Cuba except that which 
has been approved.
    Let me thank all of you for your testimony. Your complete 
statement will be a part of the record, and I want to go on to 
the other witnesses. You may be excused. Feel free to take a 
seat and listen to the rest of the hearing. Thank you very much 
for appearing here today.
    Senator Dorgan. Next, we will ask for testimony from 
Richard Newcomb, who is Director of the Office of Foreign 
Assets Control, and James Carragher, the Coordinator for Cuban 
Affairs at the Department of State. If you would please come 
forward and take your chair at the table, we would appreciate 
that.
    Thank you very much for being with us. Mr. Newcomb, you and 
I have visited on previous occasions. You are the Director of 
Foreign Assets Control. Let me ask you to proceed, and 
afterward we will ask Mr. James Carragher, the Coordinator for 
Cuban Affairs at the State Department to proceed.
    Mr. Newcomb, thank you very much.
STATEMENT OF RICHARD NEWCOMB, DIRECTOR, OFFICE OF 
            FOREIGN ASSETS CONTROL, DEPARTMENT OF THE 
            TREASURY
    Mr. Newcomb. Thank you, Mr. Chairman. I am delighted to 
have the opportunity to appear here this morning to discuss 
restrictions on travel to Cuba and issues concerning the 
administration and enforcement of restrictions on travel-
related transactions involving Cuba.
    As you know, the Treasury's Office of Foreign Assets 
Control is currently responsible for administering and 
enforcing 24 economic sanctions programs, most recently, the 
President's September 23 Executive Order targeting persons who 
commit, threaten to commit, or support terrorism. With respect 
to the embargo on Cuba, the President as recently as January 17 
of this year has reasserted his commitment to the use of the 
embargo and travel restrictions to encourage transition to 
democracy in Cuba. When I speak of travel during the course of 
this testimony, I refer specifically to restrictions on 
transactions related to travel rather than simply to 
restrictions on travel.
    OFAC's jurisdiction under the Trading with the Enemy Act is 
to prohibit or regulate commercial or financial transactions, 
not travel per se. The licensing criteria set forth in the 
Cuban Asset Control Regulations, implemented under the 
authority of the statute, address transactions incident to 
travel and other transactions that are directly incident to 
those activities deemed consistent with U.S. foreign policy.
    We enforce against transactions engaged in by persons 
subject to U.S. jurisdiction when those transactions are 
entered into without authorization. In contrast, travel to Cuba 
that is fully hosted by Cuban or third country nationals where 
nothing of value is provided in return is not covered by the 
regulations. OFAC's jurisdiction under the Trading with the 
Enemy Act to regulate these classes of transactions has 
withstood judicial review and been confirmed by the United 
States Supreme Court.
    The licensing regime applicable to transactions involving 
Cuba travel took its present form toward the end of the last 
administration, with an emphasis on people-to-people contact 
and family reunification. This is only the most recent 
development in administration policy on the subject, however, 
and the current status of Cuba travel is very much a legacy of 
both political parties.
    I have appended a chronology to my testimony demonstrating 
how often this policy has shifted with respect to travel to 
Cuba. In 1977, for example, President Carter lifted 
restrictions on travel to Cuba in their entirety, such that all 
travel-related transactions involving Cuba were authorized 
under a general license. General license in OFAC parlance 
constitute blanket authorization for those transactions set 
forth in the general license in OFAC's regulations and are 
self-selecting and self-executing. No further case-specific 
permission is required to engage in transactions covered by 
that general license.
    Then in 1982, the pendulum swung in the other direction. 
President Reagan imposed a prohibition on all travel-related 
transactions. The preexisting general license was limited to 
official U.S. or foreign government travel, visits to close 
relatives, travel related to journalism, professional research 
of an academic nature, and certain professional meetings.
    From 1982 to early 1994, the general license authorizations 
remained unchanged. Travel transactions for humanitarian 
reasons, public performances, exhibitions, and similar 
activities were specifically licensed on a case-by-case basis.
    In 1993, under President Clinton, specific licenses were 
made available for travel transactions related to educational, 
religious, and human rights activities and the export or import 
of informational materials.
    In the summer of 1994, responding in part to Cuban policies 
that resulted in thousands of Cuban rafters crossing the 
Florida straits, President Clinton tightened OFAC's licensing 
regime to require specific licenses for all the diplomats and 
full-time journalists. U.S. persons seeking to visit close 
relatives in Cuba instantly became by far the largest source of 
specific license applications. The following year, the general 
license was reinstated for professional research, professional 
meetings, and the first family visit in circumstances of 
extreme humanitarian need during any 12-month period.
    Subsequent to the Pope's visit to Cuba in 1998, President 
Clinton announced a new policy in 1999 to promote increased 
people-to-people contacts in support of the Cuban people. The 
result of this policy shift is reflected in the current 12 
regulatory categories of activities for which travel-related 
and other transactions are authorized, either by general or 
specific license. General licenses continued to apply to 
diplomats, full-time journalists, professional researchers, 
certain professional meetings, and the first family visit per 
12-month period. The requirement that the family visit take 
place under circumstances of extreme humanitarian need, 
however, was eliminated.
    Over the years, Congress has been actively involved in the 
formulation of policy with regard to Cuba generally and Cuba 
travel in particular. In 1992, the Cuban Democracy Act added 
civil penalty authority and required the creation of an 
administrative hearing process for civil penalty cases and the 
establishment of an OFAC satellite office in Miami to assist in 
administering and enforcing the Cuba program. The Cuban 
Libertarte Act of 1996 required that the underlying 
prohibitions as set forth in the regulations are to remain in 
place until there is a transition to a democratically-elected 
government in Cuba.
    Finally, in 2000, Congress passed the Trade Sanctions 
Reform and Export Enhancement Act, restricting the President's 
discretion authority to authorize certain travel-related 
transactions to, from, or within Cuba. Under Section 910 of 
TSRA, that authority is restricted to travel-related 
transactions related to activities expressly authorized in 
paragraphs one through 12 of Section 515.560 of Title 31 CFR or 
any section referred to in any of the paragraphs one through 
12. Any activity falling outside of these 12 categories is 
defined in this section of the TSRA as tourism and may not be 
the basis for issuing a license.
    Section 910 of TSRA also expressly provides for case-by-
case review of license applications for travel in support of 
agricultural exports, an activity referred to in paragraph 12 
of 515.560, but in so doing restricted the President's 
discretion to authorize such trips by general license.
    I have appended a synopsis of these 12 categories of 
activities for which travel-related transactions may be 
authorized to this testimony for ease of reference. I have also 
appended our brochure on Cuba entitled, ``What You Need to Know 
About the U.S. Embargo,'' which covers all facets of this 
economic sanctions program.
    OFAC processes a large number of license applications 
relating to the Cuban embargo the majority of which cover 
travel. License applications relating to subsequent family 
visits, freelance journalism, educational activities by 
accredited U.S. financial academic institutions, religious 
activities, informational materials, and agriculture and 
medical exports are processed by our Miami office. During 
calendar year 2001, the Miami office handled over 19,000 
license applications for travel, particularly family visits, 
and at least as many attendant telephone calls.
    Another of the office's primary responsibilities is to 
regulate certain activities of 182 entities nationwide which 
are currently licensed to provide travel and carrier service to 
authorized travelers and to remit funds to Cuban households on 
behalf of individuals who are subject to U.S. jurisdiction in 
the amounts and frequency authorized under the regulations 
implementing the Service Provider Program.
    Almost two-thirds of these licensed entities are 
headquarted in Miami. Integral to this regulatory process is 
the licensing and compliance oversight of the direct charter 
flights to Cuba currently authorized from Miami, Los Angeles, 
and New York to carry authorized travelers. I have appended a 
copy of OFAC Circular 2001 setting forth guidelines applicable 
to the Service Provider Program.
    The Miami office also investigates alleged violations of 
the regulations and processes enforcement referrals to the U.S. 
Customs Service and the U.S. Coast Guard.
    The remaining travel-related license applications are 
processed at OFAC's main office here in Washington, D.C., along 
with all non-travel license applications involving Cuba, 
relating to everything from blocked assets to international 
corporate acquisitions. The travel-related applications include 
those involving professional research and attendance at 
professional meetings not covered by the general license, 
educational exchanges not involving academic study pursuant to 
a grade program, participation in a public performance, clinic, 
workshops, athletic or other competition or exhibit in Cuba, 
support for the Cuban people as provided by the Cuban Democracy 
Act, humanitarian projects, activities of private foundations, 
a research or educational institute, and exports of medicine or 
medical supplies and certain telecommunications equipment or 
reexports of U.S.-origin ag commodities from a third country to 
Cuba.
    During calendar year 2001, OFAC's Washington staff handled 
1,300 license applications for travel in these various 
categories, with support from our general counsel. We endeavor 
to process license applications within 2 weeks absent the need 
for interagency review, and most travel-related applications 
fall within this category. There are many instances, however, 
where a given application fails to meet the applicable 
licensing criteria. Depending upon the circumstances, the 
licensing officer may contact the applicant to request 
additional information or clarification or prepare a letter of 
denial.
    Certain applications may have been delayed by the anthrax 
threat, which caused the main Treasury mailroom to shut down 
for several weeks. Mail continues now to be delayed for up to 2 
months because of the decontamination process that has since 
been put into place.
    Recent events have, unfortunately, given rise to 
misperceptions on the part of the U.S. public regarding travel 
to Cuba. While travel for purposes of tourism or most business 
transactions remains strictly prohibited, travel guides to Cuba 
are readily available in bookstores or on the Internet 
portraying Cuba as just another Caribbean tourist destination.
    The Pope's visit to Cuba in 1998, President Clinton's 1999 
people-to-people initiative, the recent surge in popularity of 
Cuban music and culture, and the Elian Gonzalez case have all 
served in one way to focus the American public's interest and 
attention on this country. It appears that a great deal of 
current frustration regarding the denial of license 
applications involves a disconnect in what constitutes an 
educational exchange or people-to-people contact. These terms 
are often used in license applications but are not accompanied 
by materials sufficient to demonstrate eligibility according to 
the licensing criteria.
    We will continue to work to streamline these licensing 
criteria and at the same time promote greater transparency and 
understanding by the public. Educational exchanges not 
involving academic study pursuant to a degree program must take 
place under the auspices of an organization that sponsors and 
organizes such programs to promote people-to-people contact.
    We have published explanatory guidelines on our Internet 
website. These guidelines provide, in part, that people-to-
people contact normally entails direct interaction between U.S. 
and Cuban individuals not affiliated with the Cuban government 
and normally does not involve meetings with Cuban government 
officials.
    OFAC evaluates, among other things, whether the U.S. 
program is structured to result in direct and individual 
dialogue with the Cuban people and whether the proposed 
activities with the Cuban people are educational in nature, 
such as participation in joint activities that may include 
seminars, lectures, and workshops. We also evaluate whether 
each traveler may be fully participating in all of the proposed 
people-to-people activities.
    Educational exchange involving people-to-people contact 
does not include travel for purposes of, for example, a 
railroad hobbyist, for example, who desires to see aging 
locomotives in Cuba, or a U.S. city's desire to establish a 
sister city relationship with government officials of a Cuban 
city or province, or a group of architects getting together to 
take a walking tour of Havana. Such proposed itineraries are 
not made more acceptable by a traveler's commitment to 
distribute amounts of over-the-counter medicines or visit Cuba 
clergy or dissidents during the trip when such contacts are 
minimal and clearly not the primary focus of the trip.
    Two-year licenses for such exchanges issued at the advent 
of the people-to-people initiative in 1999 are now coming up 
for renewal. As we review activities undertaken pursuant to 
those licenses during the past 2 years, it appears that not all 
of the activities that took place pursuant to those licenses 
entirely conformed to the intent of the licenses as issued. For 
example, some holders allowed other groups to travel to Cuba 
under the authority of their licenses when that particular use 
of the license was not contemplated in the original submission 
for review.
    Accordingly, we are exercising a heightened degree of 
scrutiny in our review of those requests for renewals and are 
incorporating reporting requirements into the renewed licenses 
to ensure better compliance.
    Finally, there has also been some confusion with respect to 
our licensing criteria with respect to applications to permit 
persons to travel to Cuba in conjunction with the exportation 
of agricultural commodities authorized by the Department of 
Commerce. Consistent with the TSRA, the regulations provide 
that travel and other transactions that are directly incident 
to marketing sales negotiation, accompanying delivery, or 
servicing of exports that appear consistent with the export 
licensing policy of the Department of Commerce may be 
authorized by a specific license.
    This licensing criterion does not include trade missions to 
discuss transactions that are not currently authorized, such as 
direct U.S. financing with a view toward eventual end of the 
embargo. It also does not permit individuals with no apparent 
nexus to the criterion to join the trip simply out of personal 
interest or a familial relationship to another traveler. While 
there is no limitation on numbers of participants in any given 
group, this nexus must exist between each traveler and the 
activity in which he or she seeks to engage. Large numbers are 
sometimes an indication that no such nexus may exist, but it is 
not dispositive.
    We have just issued explanatory guidelines on our website 
to provide additional guidance to persons applying for these 
licenses.
    Prior to 1992, OFAC lacked civil penalty authority to 
enforce the Cuban embargo. Criminal prosecution of travel-
related violations was extremely rare. In my experience, U.S. 
Attorneys often do not accept travel violations for criminal 
prosecution absent other illegal commercial or financial 
transactions by the traveler involving Cuba or Cuban nationals. 
The lack of criminal prosecutions is widely reported in the 
media and almost any travel publication that discusses Cuba.
    With the passage of the Cuban Democracy Act in 1992, the 
Trading with the Enemy Act was amended to provide that civil 
fines of up to $50,000, now adjusted for inflation to $55,000, 
could be levied for violation of the regulations. The Cuban 
Democracy Act also required that the Secretary of the Treasury 
impose such penalties only on the record after an opportunity 
for an agency hearing with the right to pre-hearing discovery.
    In 1996, the Libertarte Act increased the number of 
categories of violations for which civil penalties may be 
sought to include all travel-related violations. In February 
1997, OFAC promulgated proposed regulations to govern the 
hearings, and in March 1998 published final regulations. 
Judicial review by Article III courts is available once the 
administrative law judge's civil penalty determination is made 
final.
    No administration review process is currently in place, 
despite the efforts over the years to establish such a process. 
I am pleased to note, however, that Treasury Secretary O'Neill 
has approved a proposal for the Treasury Department funding of 
two administrative law judges with necessary support staff.
    The majority of OFAC's enforcement actions with respect to 
the Cuban embargo concern individuals who engage in 
unauthorized travel transactions related to Cuba tourism. For 
many reasons, including those previously articulated, 
increasingly larger numbers of Americans disregard the law and 
travel to Cuba purely for tourism. Interest in Cuba on the part 
of otherwise law-abiding Americans has also been exploited by 
foreign travel agencies that falsely advertise trips to Cuba, 
claiming that such travel is legal. OFAC has endeavored to 
correct these agencies' misrepresentations by contacting them 
directly and placing advisories for all to see on our website.
    Beyond tourism, certain organizations and individuals view 
travel to Cuba as an act of civil disobedience. Organized 
challenges to the embargo have taken the form of protests 
involving unlicensed travel transactions and the unlicensed 
export of goods.
    There are passionate constituencies on both sides of this 
issue, those who believe that we do not do enough to stem the 
flow of U.S. tourist travel to Cuba and those who believe that 
any regulation of travel is an infringement of their 
constitutional rights. We have worked hard to develop 
procedures with the Customs Service to identify unlicensed 
travelers returning to the United States. We have endeavored to 
enforce these restrictions in an even-handed manner that is 
consistent with our responsibilities under the law.
    Returning Cuban travelers are identified by Customs agents 
and inspectors at ports of entry in the United States or at 
U.S. pre-clearance facilities in Canada or the Bahamas. Those 
travelers who do not claim a general or specific license from 
OFAC to engage in Cuba travel-related transactions are 
routinely referred to OFAC for investigation and civil penalty 
action. This workload is an extremely heavy drain on finite 
enforcement and legal resources.
    When an enforcement case is referred for civil penalty 
consideration, the administrative record either contains 
evidence of transactions involving Cuba or the pre-penalty 
notice is premised on a rebuttable presumption that an 
individual who traveled to Cuba necessarily engaged in 
transactions involving Cuba. This presumption appears in OFAC's 
regulations and may be rebutted by documentation establishing 
that the traveler was fully hosted by a Cuban or third country 
national. If the presumption is not rebutted, a pre-penalty 
notice with statement of rights and procedures attached is then 
issued alleging violations of the embargo.
    In many instances, individuals request an informal 
settlement before OFAC issues a pre-penalty notice. Typical 
penalty assessments for unauthorized travel range from $5,000 
to $7,500, but the majority of cases are settled in amounts 
ranging from roughly $2,000 to $5,000, depending on the 
circumstances.
    A number of pre-penalty notice recipients, however, request 
administrative hearings, often with the assistance of public 
interest legal organizations. As previously mentioned, these 
cases are awaiting the funding and selection of administrative 
law judges.
    I have appended a chart that depicts our travel-related 
enforcement case openings and referral for civil penalty 
review, as well as the number of Cuba travel pre-penalty 
notices issued for the period January 1996 through June 2001. 
As shown, over 4,500 travel cases were opened for 
investigation. Nearly 1,700 cases were referred for civil 
penalty review, and pre-penalty notices were issued in 947 
cases. Again, individuals request informal settlements with 
OFAC without the issuance of a pre-penalty notice.
    At this time, we devote approximately five percent of our 
budget and seven full-time equivalent positions to the 
administration and enforcement of restrictions involving travel 
to Cuba. In addition, our general counsel devotes significant 
resources in support of these efforts. We remain committed to 
carrying out the President's mandate that enforcement of the 
Cuban embargo be enhanced under current law. OFAC remains 
committed to carrying out the President's mandate that 
enforcement of the Cuban embargo be enhanced under current law. 
We will continue to administer and enforce the restrictions on 
travel-related transactions involving Cuba in a manner that is 
timely, fair, and consistent with the law.
    Thank you, Mr. Chairman, for giving me the opportunity to 
read this full statement into the record.

                           Prepared Statement

    Senator Dorgan. Mr. Newcomb, thank you. I did not interrupt 
you or ask you to summarize, inasmuch as there were five 
witnesses prior to you talking about OFAC, and inasmuch as Mr. 
Carragher also has a rather short statement.
    [The statement follows:]

                Prepared Statement of R. Richard Newcomb

                              introduction
    Chairman Dorgan, Members of the Subcommittee, Thank you for the 
opportunity today to address issues concerning the administration and 
enforcement of restrictions on travel-related transactions involving 
Cuba. As you know, the Treasury Department's Office of Foreign Assets 
Control (``OFAC'') is currently responsible for administering and 
enforcing 24 economic sanctions programs, most recently the President's 
September 23 Executive Order targeting persons who commit, threaten to 
commit, or support terrorism. With respect to the embargo on Cuba, the 
President, as recently as January 17, has reasserted his commitment to 
the use of the embargo and travel restrictions to encourage a 
transition to democracy in Cuba. (attachment 1)
    When I speak about travel during the course of this testimony, I 
refer specifically to restrictions on ``transactions related to 
travel,'' rather than simply to ``restrictions on travel.'' OFAC's 
jurisdiction under the Trading With the Enemy Act (``TWEA'') is to 
prohibit or regulate commercial or financial transactions, not travel 
per se. The licensing criteria set forth in the Cuban Assets Control 
Regulations, 31 CFR Part 515 (the ``Regulations''), implemented under 
the authority of this statute, address transactions incident to travel 
and other transactions that are directly incident to those activities 
deemed consistent with U.S. foreign policy.
    We enforce against transactions engaged in by persons subject to 
U.S. jurisdiction when those transactions are entered into without 
authorization. In contrast, travel to Cuba that is fully hosted by 
Cuban or third-country nationals, where nothing of value is provided in 
return, is not covered by the Regulations. OFAC's jurisdiction under 
TWEA to regulate these classes of transactions has withstood judicial 
review and been confirmed by the United States Supreme Court.\1\
---------------------------------------------------------------------------
    \1\ 1 The Supreme Court upheld restrictions on travel-related 
transactions with Cuba in Regan v. Wald, 468 U.S. 111 (1984). The Court 
held that TWEA provides an adequate statutory basis for the 1982 
amendment to the Regulations restricting the scope of permissible 
travel-related transactions with Cuba and Cuban nationals. The Court 
rejected the argument that such a regulation violates the right to 
travel guaranteed by the Due Process Clause of the Fifth Amendment to 
the Constitution. It held that, in light of the traditional deference 
given to executive judgment in the realm of foreign policy, the Fifth 
Amendment right to travel did not overcome the foreign policy 
justifications supporting the President's decision to curtail the flow 
of currency to Cuba by restricting financial transactions relating to 
travel to Cuba. The Court rejected the respondents' argument that a 
restriction on travel was inappropriate because, in their view, there 
was no ``emergency'' at the time with respect to Cuba and that the 
relations between Cuba and the United States were then subject to 
``only the normal' tensions inherent in contemporary international 
affairs.'' 468 U.S. at 242. The Court declined to second-guess the 
Executive branch on this foreign policy issue. Id. See also: Freedom to 
Travel Campaign v. Newcomb, 82 F 3d 1431 (9th Cir. 1996).
---------------------------------------------------------------------------
                               licensing
Historical Context
    The licensing regime applicable to transactions involving Cuba 
travel took its present form toward the end of the last administration, 
with an emphasis on people-to-people contact and family reunification. 
This is only the most recent development in administration policy on 
the subject, however, and the current status of Cuba travel is very 
much a legacy of both political parties. I have appended a chronology 
demonstrating how often the policy has shifted with respect to Cuba 
travel. (attachment 2)
    In 1977, for example, President Carter lifted restrictions on 
travel to Cuba in their entirety, such that all travel-related 
transactions involving Cuba were authorized under a general license. 
General licenses in OFAC parlance constitute blanket authorization for 
those transactions set forth in the general license in OFAC's 
regulations, and are self-selecting and self-executing. No further 
case-specific permission is required to engage in transactions covered 
by that general license. Then, in 1982, the pendulum swung in the other 
direction, and President Reagan reimposed a prohibition on all travel-
related transactions. The pre-existing general license was limited to 
official U.S. or foreign government travel, visits to close relatives, 
and travel related to journalism, professional research of an academic 
nature and certain professional meetings.
    From 1982 to early 1994, the general license authorization remained 
unchanged. Travel transactions for humanitarian reasons, public 
performances, exhibitions, and similar activities were specifically 
licensed on a case-by-case basis. In 1993, under President Clinton, 
specific licenses were made available for travel transactions related 
to educational, religious, and human rights activities and the export 
or import of informational materials.
    In the summer of 1994, responding in part to Cuban policies that 
resulted in thousands of Cuban rafters crossing the Florida Straits, 
President Clinton tightened OFAC's licensing regime to require specific 
licenses for all but diplomats and full-time journalists. U.S. persons 
seeking to visit close relatives in Cuba instantly became by far the 
largest source of specific license applications. The following year, 
the general license was reinstated for professional research, 
professional meetings and the first family visit in circumstances of 
``extreme humanitarian need'' during any 12-month period.
    Subsequent to the Pope's visit to Cuba in 1998, President Clinton 
announced a new policy in 1999 to promote increased people-to-people 
contacts in support of the Cuban people. The result of this policy 
shift is reflected in the current twelve regulatory categories of 
activities for which travel-related and other transactions are 
authorized, either by general or specific license. General licenses 
continue to apply to diplomats, full-time journalists, professional 
researchers, certain professional meetings and the first family visit 
per 12-month period. The requirement that the family visit take place 
under circumstances of ``extreme'' humanitarian need, however, was 
eliminated.
    Existing categories were expanded, most requiring case-by-case 
authorization by specific license, including educational exchanges, 
religious activities, athletic competition and public performances and 
exhibitions. In addition, consistent with an overall policy development 
applicable to most countries subject to economic sanctions programs 
that liberalized the export of food and medicine, travel and other 
transactions directly incident to the marketing, sales negotiation, 
accompanied delivery or servicing of agricultural exports to Cuba 
became eligible for authorization by specific license, provided that 
the exports are of the kind licensed by the Department of Commerce.
    Over the years, Congress has been actively involved in the 
formulation of policy with regard to Cuba generally, and Cuba travel in 
particular. In 1992, the Cuban Democracy Act (the ``CDA'') added civil 
penalty authority and required the creation of an administrative 
hearing process for civil penalty cases and the establishment of an 
OFAC satellite office in Miami to assist in administering and enforcing 
the Cuba program. The Cuban Liberty and Democratic Solidarity 
(Libertad) Act of 1996 (the ``Libertad Act'') required that the 
underlying prohibitions as set forth in the Regulations are to remain 
in place until there is a transition to a democratically-elected 
government in Cuba.\2\
---------------------------------------------------------------------------
    \2\ 2 In a December 1998 report, the General Accounting Office 
concluded that this provision of the Libertad Act did not eliminate the 
President's authority to make modifying amendments to the Regulations, 
short of lifting the underlying prohibitions. See: Cuban embargo: 
Selected Issues Relating to Travel, Exports, and Telecommunications, 
GAO/NSIAD-99-10.
---------------------------------------------------------------------------
    Finally, in 2000, Congress passed the Trade Sanctions Reform and 
Export Enhancement Act (the ``TSRA''), restricting the President's 
discretionary authority to authorize certain travel-related 
transactions to, from, or within Cuba. Under section 910 of the TSRA, 
that authority is restricted to travel-related transactions related to 
activities ``. . .  expressly authorized in paragraphs (1) through (12) 
of section 515.560 of title 31, Code of Federal Regulations, or in any 
section referred to in any of such paragraphs (1) through (12) (as such 
sections were in effect on June 1, 2000).'' Any activity falling 
outside of these twelve categories is defined in this section of the 
TSRA as ``tourism'' and may not be the basis for issuing a license.
    Section 910 of the TSRA also expressly provides for case-by-case 
review of license applications for travel in support of agricultural 
exports--an activity referred to in paragraph (12) of section 515.560 
of the Regulations--but in so doing restricted the President's 
discretion to authorize such trips by general license. I have appended 
a synopsis of these twelve categories of activities for which travel-
related transactions may be authorized to this testimony for ease of 
reference. (attachment 3) I have also appended our brochure on Cuba 
entitled: ``What You Need to Know About the U.S. Embargo,'' which 
covers all facets of this economic sanctions program. (attachment 4)
                               licensing
    Administrative process.--OFAC processes a large number of license 
applications relating to the Cuba embargo, the majority of which 
concern travel. License applications relating to subsequent family 
visits, free-lance journalism, educational activities by accredited 
U.S. academic institutions, religious activities, informational 
materials and agricultural and medical exports are processed by OFAC's 
Miami office. During calendar year 2001, the Miami office handled 
19,045 license applications for travel, particularly family visits, and 
at least as many attendant telephone calls.
    Another of the office's primary responsibilities is to regulate 
certain activities of 182 entities nationwide, which are currently 
licensed to: (1) provide travel and carrier services to authorized 
travelers; and (2) remit funds to Cuban households on behalf of 
individuals who are subject to U.S. jurisdiction in the amounts and 
frequency authorized under the Regulations (the ``Service Provider 
Program''). Almost two-thirds of these licensed entities are 
headquartered in Miami. Integral to this regulatory program is the 
licensing and compliance oversight of the direct charter flights to 
Cuba currently authorized from Miami, Los Angeles and New York to carry 
authorized travelers. I have appended a copy of OFAC's Circular 2001, 
setting forth guidelines applicable to the Service Provider Program. 
(attachment 5) The Miami office also investigates alleged violations of 
the Regulations and processes enforcement referrals from the U.S. 
Customs Service and the U.S. Coast Guard.
    The remaining travel-related license applications are processed at 
OFAC's main office in Washington, DC, along with all non-travel license 
applications involving Cuba, relating to everything from blocked 
estates to international corporate acquisitions. The travel-related 
applications include those involving professional research and 
attendance at professional meetings not covered by the general license, 
educational exchanges not involving academic study pursuant to a degree 
program, participation in a public performance, clinic, workshop, 
athletic or other competition, or exhibition in Cuba, support for the 
Cuban people as provided in the CDA, humanitarian projects, activities 
of private foundations or research or educational institutes, and 
exports of medicine or medical supplies and certain telecommunications 
equipment or reexports of U.S.-origin agricultural commodities from a 
third country to Cuba. During calendar year 2001, OFAC's Washington, DC 
staff handled 1,283 license applications for travel in these various 
categories, with support from Treasury's Office of the General Counsel.
    We endeavor to process license applications within two weeks absent 
the need for interagency review, and most travel-related applications 
fall within this category. There are many instances, however, where a 
given application fails to meet the applicable licensing criteria. 
Depending upon the circumstances, the licensing officer may contact the 
applicant to request additional information or clarification or prepare 
a letter of denial. Certain applications may have been delayed by the 
anthrax threat, which caused the main Treasury Department mailroom to 
shut down for several weeks. Mail continues to be delayed for up to two 
months because of the decontamination process that has since been put 
into place.
    Licensing Criteria.--Recent events have unfortunately given rise to 
misperceptions on the part of the U.S. public regarding travel to Cuba. 
While travel for purposes of tourism or most business transactions 
remains strictly prohibited, travel guides to Cuba are readily 
available in any bookstore or on the internet portraying Cuba as just 
another Caribbean tourist destination. The Pope's visit to Cuba in 
1998, President Clinton's 1999 people-to-people initiative, the recent 
surge in popularity of Cuban music and culture and the Elian Gonzales 
case have all served to focus the American public's interest and 
attention on this country.
    It appears that a great deal of the current frustration regarding 
the denial of license applications involves a disconnect on what 
constitutes an ``educational exchange'' or ``people-to-people 
contact.'' These terms are often used in license applications but are 
not accompanied by material sufficient to demonstrate eligibility 
according to the applicable licensing criteria. We will continue to 
streamline these licensing criteria and, at the same time, promote 
greater transparency and understanding by the public.
    Educational exchanges not involving academic study pursuant to a 
degree program must take place under the auspices of an organization 
that sponsors and organizes such programs to promote people-to-people 
contact. We have published explanatory guidelines on our Internet 
website. (attachment 6) These guidelines provide, in part, that people-
to-people contact normally entails direct interaction between U.S. and 
Cuban individuals not affiliated with the Cuban government, and 
normally does not involve meetings with Cuban government officials. 
OFAC evaluates, among other things, whether the U.S. program is 
structured to result in direct and individual dialogue with the Cuban 
people and whether the proposed activities with the Cuban people are 
educational in nature, such as participation in joint activities that 
may include seminars, lectures and workshops. OFAC also evaluates 
whether each traveler will be fully participating in all of the 
proposed people-to-people activities.
    Educational exchange involving people-to-people contact does not 
include travel for purposes of, for example: railroad hobbyists' desire 
to see aging locomotives in Cuba; a U.S. city's desire to establish a 
sister city relationship with government officials of a Cuban city or 
provence, or a group of architects getting together to take a walking 
tour of Havana. Such proposed itineraries are not made more acceptable 
by a traveler's commitment to distribute a small amount of over-the-
counter medicines or visit Cuban clergy or dissidents during the trip, 
when such contacts are minimal and clearly not the primary focus of the 
trip.
    Two-year licenses for such exchanges issued at the advent of the 
people-to-people initiative in 1999 are now coming up for renewal. As 
we review activities undertaken pursuant to those licenses during the 
past two years, it appears that not all of the activities that took 
place pursuant to those licenses entirely conformed to the intent of 
the licenses as issued. For example, some license holders allowed other 
groups to travel to Cuba under the authority of their licensees when 
that particular use of the license was not contemplated in the original 
submission to OFAC. Accordingly, we are exercising a heightened degree 
of scrutiny in our review of these requests for renewals, and are 
incorporating reporting requirements into the renewed licenses to 
ensure better compliance.
    Finally, there has also been some confusion with respect to our 
licensing criteria with respect to applications to permit persons to 
travel to Cuba in conjunction with the exportation of agricultural 
commodities authorized by the Department of Commerce. Consistent with 
the TSRA, the Regulations provide that travel and other transactions 
that are directly incident to the ``marketing, sales negotiation, 
accompanied delivery, or servicing of exports that appear consistent 
with the export licensing policy of the Department of Commerce'' may be 
authorized by specific license.\3\
---------------------------------------------------------------------------
    \3\ General transportation services relating to these exports are 
authorized by general license. Consistent with the CDA, vessels are 
authorized by another OFAC general license to carry goods to Cuba that 
are authorized for export by the Department of Commerce provided that: 
(1) they have not engaged in trade or purchased or provided services in 
Cuba within 180 days or; (2) the vessels are not otherwise carrying 
goods or passengers in which Cuba or a Cuban national has an interest. 
Vessels not qualifying for this general authorization may be 
specifically licensed. Financing of these exports is restricted by the 
TSRA to payment of cash in advance or to financing by third country 
financial institutions, except that such financing may be confirmed or 
advised by a United States financial institution.
---------------------------------------------------------------------------
    This licensing criterion does not include trade missions to discuss 
transactions that are not currently authorized, such as direct U.S. 
financing, with a view toward the eventual end of the embargo. It also 
does not permit individuals with no apparent nexus to this criterion to 
join the trip, simply out of personal interest or a familial 
relationship to another traveler. While there is no limitation on 
numbers of participants in any given group, this nexus must exist 
between each traveler and the activity in which he or she seeks to 
engage. Large numbers are sometimes an indication that no such nexus 
exists. We have just issued explanatory guidelines on our website to 
provide additional guidance to persons applying for these licenses. 
(attachment 7)
                              enforcement
Historical Context
    Prior to 1992, OFAC lacked civil penalty authority to enforce the 
Cuban embargo. Criminal prosecution of travel-related violations was 
extremely rare. In my experience, U.S. Attorneys often do not accept 
travel violations for criminal prosecution absent other illegal 
commercial or financial transactions by the traveler involving Cuba or 
Cuban nationals. The lack of criminal prosecutions is widely reported 
in the media and in almost any travel publication that discusses Cuba. 
With the passage of the CDA in 1992, the Trading With the Enemy Act 
(``TWEA'') was amended to provide that civil fines of up to $50,000 
(now adjusted for inflation to $55,000) could be levied for violations 
of the Regulations. The CDA also required that the Secretary of the 
Treasury impose such penalties ``only on the record after opportunity 
for an agency hearing . . . with the right to pre-hearing discovery.'' 
In 1996, the LIBERTAD Act increased the number of categories of 
violations for which civil penalties may be sought to include all 
travel-related violations. In February 1997, OFAC promulgated proposed 
regulations to govern the hearings, and in March 1998 published final 
regulations. Judicial review by Article III courts is available once 
the Administrative Law Judge's civil penalty determination is made 
final.
    No administrative review process is currently in place, despite 
efforts over the years to establish such a process. I am pleased to 
note, however, that Secretary O'Neill has approved a proposal for 
Treasury Department funding of two Administrative Law Judges with the 
necessary support staff.
                             investigation
    The majority of OFAC's enforcement actions with respect to the Cuba 
embargo concern individuals who engage in unauthorized travel 
transactions related to Cuba tourism. For many reasons, including those 
previously articulated, increasingly larger numbers of Americans 
disregard the law and travel to Cuba purely for tourism. Interest in 
Cuba on the part of otherwise law-abiding Americans has also been 
exploited by foreign travel agencies that falsely advertise trips to 
Cuba claiming that such travel is legal. OFAC has endeavored to correct 
these agencies' misrepresentations by contacting them directly and 
placing advisories for all to see on our website. (attachment 8)
    Beyond tourism, certain organizations and individuals view travel 
to Cuba as an act of civil disobedience. Organized challenges to the 
embargo have taken the form of protests involving unlicensed travel 
transactions and the unlicensed export of goods. There are passionate 
constituencies on both sides of this issue, those who believe that we 
do not do enough to stem the flow of U.S. tourist travel to Cuba and 
those who believe that any regulation of travel is an infringement of 
their constitutional rights.
    OFAC has worked hard to develop procedures with the Customs Service 
to identify unlicensed travelers returning to the United States from 
Cuba. We have endeavored to enforce these restrictions in an evenhanded 
manner that is consistent with our responsibilities under the law. 
Returning Cuba travelers are identified by Customs agents and 
inspectors at ports of entry in the United States or at U.S. Customs 
Preclearance Facilities in Canada or the Bahamas. Those travelers who 
do not claim a general or specific license from OFAC to engage in Cuba 
travel-related transactions are routinely referred to OFAC for 
investigation and civil penalty action. This workload is an extremely 
heavy drain on finite enforcement and legal resources.
                            civil penalties
    When an enforcement case is referred for civil penalty 
consideration, the administrative record either contains evidence of 
transactions involving Cuba or the prepenalty notice is premised upon a 
rebuttable presumption that an individual traveling to Cuba necessarily 
engaged in transactions involving Cuba. This presumption appears in 
OFAC's Regulations and may be rebutted by documentation establishing 
that the traveler was fully hosted by a Cuban or third-country 
national. If the presumption is not rebutted, a prepenalty notice with 
statement of rights and procedures attached is then issued alleging 
violations of the embargo. (attachment 9) In many instances, 
individuals request an informal settlement before OFAC issues a 
prepenalty notice. Typical penalty assessments for unauthorized travel 
range from $5,000 to $7,500, but the majority of cases are settled in 
amounts ranging from roughly $2,000 to $5,000, depending upon the 
circumstances. A number of prepenalty notice recipients, however, 
request administrative hearings, often with the assistance of public 
interest legal organizations. As previously mentioned, these cases are 
awaiting the funding and selection of Administrative Law Judges.
    I have appended a chart that depicts our Cuba travel enforcement 
case openings and referrals for civil penalty review, as well as the 
number of Cuba travel Prepenalty Notices issued, for the period of 
January 1996 through June 2001. (attachment 10) As shown, 4,535 travel 
cases were opened for investigation; 1,690 cases were referred for 
civil penalty review; and Prepenalty Notices were issued in 947 cases. 
Again, many individuals request informal settlements with OFAC without 
the issuance of prepenalty notices.
                               conclusion
    At this time, OFAC devotes approximately 5 percent of its budget 
and 7 full-time equivalent positions to the administration and 
enforcement of restrictions involving travel to Cuba. In addition, 
Treasury's Office of the General Counsel devotes significant resources 
in support of these efforts. OFAC remains committed to carrying out the 
President's mandate that enforcement of the Cuba embargo be enhanced 
under current law. OFAC will continue to administer and enforce the 
restrictions on travel-related transactions involving Cuba in a manner 
that is timely, fair, and consistent with that law.
    [Clerk's note.--The attachments can be found in the subcommittee 
files.]
    Senator Dorgan. Mr. Carragher is the Coordinator for Cuban 
Affairs at the Department of State. Thank you for being with 
us. Please proceed.
STATEMENT OF JAMES CARRAGHER, COORDINATOR FOR CUBAN 
            AFFAIRS, DEPARTMENT OF STATE
    Mr. Carragher. Mr. Chairman, staff, other distinguished 
guests, thank you for the opportunity to be with you this 
morning.
    The administration's Cuba policy goal is a rapid, peaceful 
transition to a democratic government characterized by strong 
support for human rights and an open market economy. One 
important tool to achieve that goal is engagement between 
people, outreach by everyday Americans to everyday Cubans. 
Outreach introduces the best of the United States to the Cuban 
people, supports the development of civil society institutions, 
and brings alternative points of view to the island.
    However, travel outside the authority of the Cuban Assets 
Control Regulations does not contribute to outreach or to our 
policy goal in Cuba. Instead, it can help to prop up a regime 
which continues to harass and imprison its people who dare to 
criticize their government.
    The Treasury Department's Office of Foreign Assets Control 
is responsible for authorizing persons subject to U.S. 
jurisdiction to engage in travel-related transactions for 
travel to Cuba. In the vast majority of applications for 
specific licenses, all of which require case-by-case review, 
OFAC is able to make a clear-cut determination on whether to 
issue a specific license based on the application, the relevant 
regulations, and existing policy.
    In some instances, when OFAC believes that an application 
presents foreign policy implications that have not been 
previously addressed, OFAC refers the application to the 
Department of State for review. The Department consults 
internally and with the NSC. It then typically provides foreign 
policy guidance to OFAC as to whether or not the proposed 
activity is consistent with current U.S. Government policy and 
regulations. This review process assures Department of State 
input on applications that affect the President's foreign 
policy.

                           Prepared Statement

    I believe that this process and OFAC's impartial and even-
handed approach to each license application assure that 
authorized travel-related transactions follow both the letter 
and the spirit of the law and that they further administration 
policy goals. Thank you, Mr. Chairman.
    Senator Dorgan. Mr. Carragher, thank you very much.
    [The statement follows:]

                 Prepared Statement of James Carragher

    Mr. Chairman, Committee Members, staff, and other distinguished 
guests, thank you for the opportunity to be with you this morning.
    The Administration's Cuba policy goal is a rapid, peaceful 
transition to a democratic government characterized by strong support 
for human rights and an open market economy. One important tool to 
achieve that goal is engagement between people--outreach by everyday 
Americans to everyday Cubans. Outreach introduces the best of the 
United States to the Cuban people, supports the development of civil 
society institutions and brings alternative points of view to the 
island. However, travel outside the authority of the Cuban Assets 
Control Regulations does not contribute to outreach or to our policy 
goal in Cuba. Instead it can help to prop up a regime which continues 
to harass and imprison its people who dare to criticize their 
government.
    The Treasury Department's Office of Foreign Assets Control is 
responsible for authorizing persons subject to U.S. jurisdiction to 
engage in travel-related transactions for travel to Cuba. In the vast 
majority of applications for specific licenses, all of which require 
case-by-case review, OFAC is able to make a clear-cut determination on 
whether to issue a specific license based on the application, the 
relevant regulations and existing policy. In some instances, when OFAC 
believes an application presents foreign policy implications that have 
not been previously addressed, OFAC refers the application to the 
Department of State for review. The Department consults internally and 
with the NSC. It then typically provides foreign policy guidance to 
OFAC as to whether or not the proposed activity is consistent with 
current U.S. Government policy and regulations. This review process 
assures Department of State input on applications that affect the 
President's foreign policy.
    I believe that this process and OFAC's impartial and evenhanded 
approach to each license application assure that authorized travel-
related. transactions follow both the letter and the spirit of the law 
and further Administration policy goals.
    Thank you, Mr. Chairman.

    Senator Dorgan. I have a series of questions. I will skip 
around a bit.
    First, I believe, Mr. Newcomb, you indicated that as a 
result of the announcement that I referred to in July of last 
year by President Bush to step up enforcement with respect to 
travel Cuba, you have stepped up enforcement, is that the case?
    Mr. Newcomb. Mr. Chairman, following that announcement, we 
engaged in discussions to determine how that may be implemented 
and were cut short by the attacks of September 11 and virtually 
all available free resources have been devoted to that 
terrorist attack. We have had discussions about this, but as of 
this point, that initiative has not fully been implemented.
    Senator Dorgan. In your written testimony at page 12, you 
say, ``accordingly, we are exercising a heightened degree of 
scrutiny in our review of requests for renewals.'' There, you 
are talking about licenses.
    Mr. Newcomb. Yes.
    Senator Dorgan. And I thought I heard you say that when the 
President talked about his policy last July of increasing 
enforcement with respect to the travel ban in Cuba, Treasury 
and OFAC complied with the President's request.
    Mr. Newcomb. We are, but we have no additional resources 
applied to those activities at this time. Any available 
additional resources have been applied to the terrorist attack. 
But the review of license applications to determine compliance 
with the people-to-people exchanges and the group educational 
licenses, of course, is being reviewed carefully so that they 
are consistent with existing policy.
    Senator Dorgan. In fact, you refer to heightened scrutiny, 
so that would suggest to me that you are doing what the 
President has asked you to do.
    One person who called my office about this matter who had 
received a notice from OFAC said that an OFAC employee told him 
he had been targeted because OFAC employees were ``surfing the 
web,'' to spot people who post information about traveling to 
Cuba. Is that one approach that you use to try to determine who 
might have traveled to Cuba? Do you have employees surfing the 
web?
    Mr. Newcomb. Your reading that right now is the first time 
I have heard that particular statement. I would not rule out 
the fact that we use all resources available to us to determine 
unlawful activity, but that is not prescribed policy for 
enforcement of this program. Again, I would not rule that out, 
but that is not something we have institutionalized office-
wide.
    Senator Dorgan. You indicated in a letter to me that you 
have--I believe you have 129 people working at OFAC and seven 
of them are working full-time with respect to enforcing the 
travel ban with Cuba. Is that correct?
    Mr. Newcomb. That is correct.
    Senator Dorgan. So about seven employees full-time and 
about $1 million, roughly, on enforcing the travel ban?
    Mr. Newcomb. I am not sure exactly about the dollar amount, 
but that is approximately correct.
    Senator Dorgan. That is what your agency is reporting here.
    Mr. Newcomb. Then that is fine.
    Senator Dorgan. Now, you raised the issue of terrorism and 
I raised that, as well, in my opening statement. You know that 
since September 11, there has been a substantial amount of 
interest in making sure that all necessary resources are used 
to respond to the terrorist threats against our country and to 
track the mechanisms by which terrorists finance these attacks. 
OFAC, of course, is one of the key agencies that we rely on to 
do that. Incidentally, I think OFAC, along with FINCEN and 
others, have done an excellent job and I appreciate the work 
that your employees are doing.
    Mr. Newcomb. Thank you, Mr. Chairman.
    Senator Dorgan. But because you raise that question, 
terrorists post-September 11, I am wondering what your view is 
with respect to the relative importance of various areas of 
enforcement. Let me give you an example of why I ask the 
question.
    There are a lot of laws that one can enforce in this 
country. Immigration laws--I had an employer tell me once, who 
is just on the south side of the Canadian border, that the port 
of entry coming across the Canadian border to the United States 
opens at 9 a.m. in the morning. He said one of the fellows up 
there in Canada works for him. He starts work at 8 a.m. every 
morning and he has never been late. Now, the border does not 
open until nine. He says, my employee has never been late, so 
we know that person clearly is moving across the border to go 
to a job on the U.S. side. I do not suspect that anybody has 
suggested we send special forces up there to try to figure out 
who that is.
    I just say that there are a lot of things that one can use 
money on to investigate and evaluate and require conformance 
with the laws. It seems to me that your agency has a conflict 
at the moment. You have the President saying you are supposed 
to ramp up enforcement of the travel ban with respect to Cuba, 
but I assume that your preeminent responsibility at the moment 
is dealing with terrorism. How do you feel about that?
    Mr. Newcomb. Mr. Chairman, clearly, our responsibility is 
to do, perform, implement, and carry out the enforcement policy 
laid out by the Treasury Department as directed by the 
President and I believe we are doing just that. The President 
did make the announcement on July 13. He also made the 
announcement on January 17 of this year. We are mindful of 
those announcements. We are mindful that that is a priority. We 
also have other programs that we are administering, such as the 
Foreign Narcotics Kingpin Designation Act and full-fledged 
embargoes on terrorist-supporting Nations, Iran, Iraq, Libya, 
Syria, Sudan, North Korea, and Cuba. We have a total of 22 
country-specific programs. We maintain lists of terrorist 
organizations, implementing the Foreign Kingpin Designation 
Act.
    All of those are very important elements of the foreign 
policy of the United States. I view this as one, and as a 
public administrator, someone who is responsible for 
implementing this program, I believe we need to do so in a 
manner that is fair and even-handed. The allocation of 
resources on a Presidential priority then becomes set.
    Senator Dorgan. Let me ask, do you have discretion with 
respect to the application of these administrative fines? For 
example, a retired teacher goes bicycling in Cuba because she 
is told by a Canadian travel agency that it is cleared. She 
will be spending no money there. The travel agency will be 
handling all the money. And so that person calls OFAC and says, 
look, here is the circumstance. Do you have a rubber stamp that 
says ``guilty,'' and ``fined,'' or do you have discretion, and 
if so, what kind of discretion and how do you use it?
    Mr. Newcomb. Mr. Chairman, we do have considerable 
discretion and in implementing this program, I believe we have 
used it.
    Senator Dorgan. Let me ask this question, if I might. The 
man that takes his parents' ashes back to Cuba to bury them 
near a church they founded many, many years ago, would that not 
persuade someone with discretion to say, ``I understand that. 
All right. Never mind.''
    Mr. Newcomb. First, if I could respond to your first 
inquiry----
    Senator Dorgan. Sure.
    Mr. Newcomb [continuing]. That is a matter currently 
pending before the office, the traveler to Cuba on the bicycle 
trip. So I think in interest of the process existing before the 
office, I think it would be best that we not get into 
discussing that lest it prejudice any rights that she may have 
or----
    Senator Dorgan. Actually, I am not describing Ms. Meister. 
I am describing someone else. There is more than one retired 
schoolteacher who retired in Cuba, so we can talk about it 
without talking about Ms. Meister.
    Mr. Newcomb. First, as far as discretion in issuing a 
penalty, we were authorized in 1992 under the Cuban Democracy 
Act for fines of up to $50,000, and that has been raised 
recently to a maximum fine of $55,000. We have shown 
considerable discretion by mitigating that pre-penalty amount 
by over 80 percent. I think the pre-penalty amount is about 82 
percent reduction before we even go out to the public.
    And then from there, when a petition is--when a request for 
further information and a pre-penalty notice is filed, there is 
considerable opportunity for the party to submit mitigating 
factors involving that case. I believe the Center for 
Constitution Rights' testimony and our testimony have both 
agreed that there are those outside of the United States that 
would attempt to lure people into traveling to Cuba that would 
otherwise be unlawful. That would certainly be in all 
circumstances an extraordinary mitigating factor. But then 
there is a judgment factor that comes in, to what extent is 
this now being used by parties who wish to travel merely as a 
ruse or is it lawful? That is part of this mitigating process, 
and we endeavor to do that in every case possible.
    Senator Dorgan. Mr. Newcomb, I understand that. What I do 
not understand is whether you have the discretion to, in 
certain circumstances, say, look, I understand. You did not 
know. This was a mistake. Never mind. And if you do not do that 
in terms of someone taking his parents' ashes to bury at a 
church site, where they spent one day in Cuba, I assume you 
would never use that discretion.
    Am I right that you would never use sufficient discretion 
to say, ``We understand. We understand what you are telling us 
and we are not going to issue a fine in this case.''
    Mr. Newcomb. Let me say, in that particular case, the 
mitigation was well over 99 percent of the authorized amount. 
There----
    Senator Dorgan. I understand there, but there was a $700 
fine.
    Mr. Newcomb. It was a $350 fine per person.
    Senator Dorgan. Right.
    Mr. Newcomb. Three-hundred-and-fifty for one person, $350 
for the second.
    Senator Dorgan. That is right, $700.
    Mr. Newcomb. So that is mitigation from $55,000 down to 
$350, so that was----
    Senator Dorgan. But you understand my question. I am just 
trying to understand, do you have discretion, or is this a 
circumstance where you simply say, gone to Cuba, does not 
matter what the excuse is, we are going to fine you. Now, we 
may mitigate it 98 percent, but you are going to pay a fine. 
That is my question.
    Mr. Newcomb. Well, we also look--no, we certainly can and 
do show considerable discretion, but there was also facts 
within the record that we also looked to. We compare mitigating 
factors to aggravating factors in an attempt to weigh both of 
them when this is settled or a fine is issued. In this 
particular case involving the travel to Cuba, I believe that 
was a settlement on agreed terms reduced to a settlement by 
counsel. So we did enter into that after an offer of settlement 
was made.
    Senator Dorgan. If you would be able to, following the 
hearing, would you give me examples of circumstances where 
people have traveled to Cuba and you have decided that, 
although they traveled, you will levy no fine?
    Mr. Newcomb. Sure.
    Senator Dorgan. Okay.
    Mr. Newcomb. And I would also like to augment the record as 
far as the particular cases that have been before the 
committee----
    Senator Dorgan. Of course.
    Mr. Newcomb [continuing]. Just for sake of making it a full 
record.
    Senator Dorgan. Of course.
    Mr. Carragher, in your statement, you indicate ``outreach 
introduces the best of the United States to the Cuban people, 
supports the development of civil society institutions, and 
brings alternative points of view to the island. However, 
travel outside the authority of the Cuban Assets Control 
Regulations does not contribute to outreach.''
    I understand your first point. The second point, I think, 
is just technical. You are saying that travel outside of the 
restrictions is illegal, but I do not know how that would 
obviate the first statement. If travel introduces the best of 
the United States to the Cuban people, it seems to me it just 
does, no matter the circumstances of the travel.
    Mr. Carragher. I think I was specifically referring in the 
statement in an unspecific way to travel that would be strictly 
tourism travel to Cuba as opposed to travel that would have 
significant or complete intent of interaction directly with the 
Cuban people.
    Senator Dorgan. But with respect to the philosophical 
point, I think you would argue, and certainly the Department of 
State would argue, that just tourist travel to the country of 
China or the country of Vietnam, both of which have communist 
governments, contributes to engagement and, therefore, to 
productive opportunity for the countries to better know each 
other. That is the official position, I believe, of the State 
Department with respect to China and Vietnam. I am trying to 
understand how it differs with respect to Cuba in terms of the 
circumstances that would improve relations between countries in 
people-to-people contact. Can you describe that for me?
    Mr. Carragher. I am not completely familiar--I am not 
familiar at all with the tourism industries in the two 
countries that you have mentioned, but the tourism industry in 
Cuba is under the control, obviously, of the government of Cuba 
and part of the policy goals, foreign policy goals of the 
President vis-a-vis Cuba, in addition to encouraging the 
outreach to ordinary Cubans, is to minimize the flow of hard 
currency to the government of Cuba and travel to the--directly 
to the Cuban tourism centers which exist on the island 
obviously add to the flow of hard currency to the government of 
Cuba.
    Senator Dorgan. I understand. Would that not be the case 
with respect to the purchase of a silk suit in Beijing? Would 
that not contribute to the salary of Jiang Zemin in a communist 
government? You get my point.
    Mr. Carragher. I get your point. I----
    Senator Dorgan. I just think there is a philosophical 
contradiction and I think it is one that no one can answer just 
because it exists for reasons that do not make much sense. But 
let me ask the question about agriculture, if I might.
    Mr. Newcomb, I pointed out that the Farm Foundation applied 
for a license to send a delegation to Cuba in January. It 
included two former Secretaries of Agriculture. This is an 
organization on whose board the current Secretary of 
Agriculture and the current Under Secretary sit, and they were 
denied the license. Can you tell me anything about that at all?
    Mr. Newcomb. Yes. I do not have the complete record in 
front of me, but I did have a conversation with one of those 
former Secretaries of Agriculture and I informed him several, 
perhaps 2 weeks, maybe, before the license was denied. There 
were many people included in the license application that our 
staff could not approve. When these licenses are approved, 
every individual traveling on a specifically licensed trip must 
meet the criteria, and that there were a lot of people who did 
not individually and in their own rights qualify.
    We had offered to work with the Farm Foundation to bring 
down the number of individuals traveling and basically they 
told us it was an all or nothing situation. Approve them all or 
reject it. So we were precluded in a process that we try to 
follow very closely, and that is work with applicants to ensure 
that if they are qualified, they are able to go, and sometimes 
this is a give and take with organizations over a period of 
time so that if they can qualify in and of their own right. But 
it was essentially this statement that it was an all or nothing 
proposition, take it or leave it, that led to the fact that we 
had no choice.
    I did communicate that with one of the former Agriculture 
Secretaries and he seemed to understand what our position was. 
Now, that is done in those situations and others without 
prejudice. They can reapply if they wish.
    Senator Dorgan. You heard Dr. Gilderbloom's testimony this 
morning.
    Mr. Newcomb. I did.
    Senator Dorgan. What is your impression of that?
    Mr. Newcomb. Well, I am certainly sorry that someone is 
dissatisfied with what we have done in terms of administering 
this program, but I will say that fit into the category of 
those license applications it originally granted in 1999 and 
2000 that came up for or are coming up for renewal.
    I would disagree with the facts somewhat in what he 
submitted to the committee. When he spoke to our staff, I am 
told, in June of 2001, he was told--or in May of 2001, he was 
told that the renewal was not due yet. Please submit an 
application for renewal at a later time, i.e., when it was due 
for renewal, and the specific reason why when it was submitted 
it was denied is one of the conditions of the license states 
that all participants shall adhere to the structured program of 
professional research and educational activities and that an 
individual qualifying under the license shall have the 
professional background related to the subject matter of the 
licensed professional research. It was the view of the staff 
that that did not qualify.
    And if I might just make one other statement, in the 
testimony of the Center for Constitutional Rights, there is 
testimony that says those who apply for a specific license to 
travel to Cuba consistently encounter roadblocks, that we have 
never published any rules or procedures specifying what 
information a license application is required to contain and 
what standards OFAC will apply in reviewing license 
applications. That is not correct. In fact, we have quite 
extensively made an effort to not only publish regulations, but 
actually publish guidelines. We have--and they are available on 
our website. I would like to submit them into the record.
    Senator Dorgan. Yes.
    Mr. Newcomb. They include the particular activity with 
which Mr. Gilderbloom is speaking, professional research, but 
also guidelines for academic institutions, guidelines for 
degree-seeking students, guidelines for religious 
organizations, guidelines for travel to Cuba to engage in 
educational exchanges to promote people-to-people contact, 
guidelines for travel to Cuba in need of humanitarian aid, 
guidelines for travel related to agriculture and medicine, 
something we just issued last week, guidelines for travel to 
Cuba involving humanitarian projects, and so on. So if I could 
submit that into the record----
    Senator Dorgan. Without objection.
    Mr. Newcomb [continuing]. As well as our website, which 
lays this out.
    [Clerk's note.--Information can be found in the 
subcommittee files.]
    Mr. Newcomb. I believe, finally, on the Dr. Gilderbloom 
issue, that we laid out the reasons it was denied. There may be 
some extraneous issues discussed, but as with any other 
participant, he certainly is free to redo it and conform with 
those published guidelines.
    Senator Dorgan. Let me ask you, how many people do you 
think visited Cuba last year? How many Americans visited Cuba 
last year? Are there any broad estimates? I have heard some.
    Mr. Newcomb. Yes.
    Senator Dorgan. What do you think they are?
    Mr. Newcomb. I had the exact number about a year ago and I 
do not recall it exactly. It was something over 150,000 
travelers.
    Senator Dorgan. Between 150,000 and 200,000 Americans 
visited Cuba last year?
    Mr. Newcomb. Within that range, yes. I would say that is 
correct.
    Senator Dorgan. And how many of those would have visited 
Cuba with permission from OFAC?
    Mr. Newcomb. Well, there are two categories, general and 
specific licenses. Of the general license, individuals 
qualifying within their own right can make the determination 
that they qualify under the general license and travel. A good 
example of that is journalists. Another example would be--let 
us just say journalists, or humanitarian travel, one-time-a-
year travel.
    Senator Dorgan. But what percent of the people that visited 
Cuba do you think did so with the specific permission of OFAC, 
with a license? Do you have any idea?
    Mr. Newcomb. I would say possibly qualifying under a 
license, at least two-thirds. There is probably an additional 
one-third that do not. That is just a rough estimate that I 
would like to be able to go back and then submit for the 
record, and the reason I say that is by far the largest number 
of travelers that go to Cuba are family reunification visitors, 
individuals visiting family members, defined in our 
regulations, that are lawful, that they are self-defining by 
the regulations. We issue licenses for second and subsequent 
humanitarian visits, so I would never have a complete handle on 
it. We can take the information that comes from the travel 
service providers and add that up about travelers taken.
    Senator Dorgan. Mr. Carragher, I said when we started this 
hearing that you are enforcing the law, in conjunction with 
OFAC. I understand that. But you indicated the purpose of that 
law and the purpose of the administration's enhanced 
enforcement of it, both with respect to travel and licensing, 
is to impose a penalty of some sort on Fidel Castro. You talked 
about not providing hard currency to be helpful to Fidel 
Castro.
    It is also your understanding, I am sure, that it imposes a 
penalty on the American people, restricting their right of free 
travel. I have been trying to understand for some long while 
what the criteria is for selecting Cuba vis-a-vis Vietnam or 
China or others, because we have gone through a great debate 
here about China and the State Department consistently says 
engagement is the constructive way to affect the behavior of a 
government with whom we disagree. Do you disagree with that 
statement with respect to Cuba?
    Mr. Carragher. Certainly, engagement directly with the 
Cuban people is one of the primary policy tools toward 
affecting the rapid transition which I talked about.
    Senator Dorgan. Restricted engagement, though, because----
    Mr. Carragher. I am sorry?
    Senator Dorgan. It is restricted engagement at this point, 
involving only the people that you agree to allow to go to 
Cuba.
    Mr. Carragher. Well, only the people that are--I would 
submit, Senator, only the people who are permitted by the 
legislation to travel to Cuba, and I guess when you raised the 
point a few minutes ago, the obvious difference between China 
and Vietnam and Cuba is that legislation prohibits strictly 
tourism travel to Cuba, which is part of the reason why we are 
here today.
    Senator Dorgan. You are absolutely correct about that, and 
let me just ask the question of both of you. You heard the 
testimony of a schoolteacher--I mentioned that there is more 
than one retired schoolteacher that went bicycling in Cuba with 
a Canadian bicycling club, someone who plays a game that I have 
not heard of named Go--I guess I have actually seen it in a 
movie recently, someone who took his parents' ashes back to 
bury them in Cuba. When you hear these stories, would you 
believe that there is reason for Congress to review whether 
this is a very effective policy in reaching the results we 
would like to reach with the Castro regime in Cuba?
    Mr. Newcomb. If I could respond----
    Senator Dorgan. Yes.
    Mr. Newcomb. On some of those that you cited, licenses 
could have been available, but the traveler has declined to try 
to get the license. On others, because of TSRA, the Trade 
Sanctions Reform Act, we literally do not have the licensing 
discretion. I can say unequivocally that the people that work 
on this certainly have, and have demonstrated over the years, 
considerable compassion for compelling circumstances, and in 
the particular case involving the traveler to take his family 
ashes. I think all of us could agree that that has a compelling 
persona about it.
    In that case, the individual did not elect to apply for a 
license. Were he to do so now, we would not have the authority 
to show discretion because TSRA limits 12 categories that were 
in existence at the time that the Trade Sanctions Reform Act 
was adopted.
    Senator Dorgan. But that is exactly what I am asking you 
about. Someone cannot take his parents' ashes to Cuba, and it 
is also the case, that a retired teacher wanting to bicycle in 
Cuba, would not be approved for a license?
    Mr. Newcomb. That is deemed by the Congress as tourism.
    Senator Dorgan. I understand that, but that is why I asked 
the larger question of the two of you. What do you think about 
that?
    Mr. Newcomb. I defer to my colleague.
    Senator Dorgan. I understand that.
    I understand that, too, but why do we not hear from both of 
you? I mean, it just seems to me that this is incongruous. We 
are going to have a debate in Congress this year about this 
very subject and perhaps a vote in both the House and the 
Senate, and the purpose of this hearing is to take a look at 
what we are spending in order to enforce this, whether it is 
effective, and after you answer my last question, I am going to 
ask you both, do you think it can be enforced effectively? If 
we have 60,000 people visiting Cuba without the sanction of 
OFAC, it suggests to me that it is a law that is not being 
enforced very effectively.
    Mr. Carragher, why do you not risk your career here and 
answer my question.
    Mr. Carragher. Since Mr. Newcomb lateraled to me the policy 
question, I will, of course, lateral to him the enforcement 
question.
    Senator Dorgan. I understand, but I am still asking the 
policy question.
    Mr. Carragher. The policy question, I think that, 
obviously, I do not need to tell you, Senator, that the role of 
this hearing and the role of the Congress is to, and rightfully 
so under our system, is to look at all aspects of a foreign 
policy, domestic policy, legislative issue and seek to come to 
legislation that will best achieve what Congress deems should 
be achievable.
    From the administration's perspective, this administration, 
and I can only repeat the President's words, will support 
nothing to weaken the embargo on Cuba, yet at the same time, a 
very important aspect of this administration's policy, and I 
tried to highlight it in my brief written statement, opening 
statement, was we want to be able to reach out as American 
people to the Cuban people and we want to do that in a way that 
enables the American people to bring to the Cuban people, to 
contribute to bringing to the Cuban people and to that island 
the currents of freedom and free ideas which are blowing 
everywhere and have blown everywhere in this hemisphere over 
the last 20 years and more.
    I would submit that the outreach possibilities which are 
currently licensable under current legislation enable us to do 
that relatively effectively. We certainly could and always can 
achieve even more effective outcomes. But outreach and 
introducing new ideas, new currents of thought, alternative 
ideas to Cuba, is very much in this administration's interest, 
I believe, and very much in the U.S. interests.
    Senator Dorgan. The announcement last summer that was made 
by the administration that they are going to crack down and 
ramp up enforcement do not square with that general approach. 
The shorter answer, which you probably are not at liberty to 
give, is that this really does not make much sense.
    It is an attempt to punish Fidel Castro but, in fact, 
punishes Americans by restricting their right of free travel. 
It is inconsistent with the way we handle travel to other 
communist countries, Vietnam and China, for example, and the 
Congress ought to take a look at changing it. Mr. Newcomb would 
be best served by having that $1 million and seven people, to 
be checking on hard-core terrorists who are transferring money 
in the pursuit of terrorist acts. Instead of surfing the 
Internet to find out who might have traveled to Cuba,
    That is a shorter answer but less diplomatic, Mr. 
Carragher, and is one that you cannot give. I have no idea how 
you feel, but you cannot give that answer.
    Mr. Newcomb, would you be happy if the Congress this year 
says to you, you have got 129 people. You are now taking seven 
of them to enforce this ban on travel by U.S. citizens and we 
will repeal the ban and give you those seven people back and 
the $1 million back so that you can use that to track 
terrorists?
    Mr. Newcomb. Mr. Chairman, our job is to enforce the law as 
it is written. If it is promulgated through an Executive Order, 
that is what we will do. If it is promulgated by the Congress, 
that is what we will do. If it is certainly following the lead 
of the President, where he says we are going to step up 
enforcement, that is what we will do. That is our job and we 
will do it.
    Senator Dorgan. Can I just ask you----
    Mr. Newcomb. I think my views on this is probably largely 
irrelevant.
    Senator Dorgan. I understand.
    Mr. Newcomb. I could always use more people to work on all 
24 programs, so----
    Senator Dorgan. I understand. If the Congress does what I 
think it may do with respect to repealing the travel ban to 
Cuba, you will have additional money to deal with the 
substantial load you have now and burden you have now tracking 
terrorists, is that not the case?
    Mr. Newcomb. If that means that we will have seven more 
people to put on something else, then we will use the seven 
people on something else and we will move smartly to reallocate 
resources.
    Senator Dorgan. And the central part of your mission, as 
you testified earlier this morning, is to deal with post-
September 11 terrorist issues, and so my assumption is if the 
Congress would change the law, if we do not change your budget, 
it frees up $1 million and seven people to be engaged in that 
activity, would that be correct?
    Mr. Newcomb. Well, yes, and I also think to repeal 
positions without decriminalizing or de-civil penalizing the 
current environment would only add to greater confusion, 
because not only would, if we did not have the people to deal 
with what we are responsible for implementing, we would not 
have the ability to respond to questions, issue licenses, or do 
the other things that are attendant. So to have a law without 
the ability to be responsive is counterproductive on all sides.
    Senator Dorgan. Is that the way it was prior to 1992?
    Mr. Newcomb. No. Prior to 1992, there were several things. 
First of all, Fidel Castro had not moved to open up Cuba. He 
was still operating on--the Soviets were still supporting Cuba. 
They were operating largely on the Russian ruble and Cuban 
peso. A number of steps happened subsequent to 1992 that made 
it an attractive place to visit. But the key thing is only 
criminal penalties were available prior to 1992 and what the 
Cuban Democracy Act did was give us this very effective 
enhancement tool, namely civil penalty authority.
    Senator Dorgan. But almost no one used the criminal 
penalties. U.S. Attorneys largely did not do that, and that is 
why they provided civil fines, is that correct?
    Mr. Newcomb. That is correct.
    Senator Dorgan. Let me thank both of you for appearing. We 
have two additional witnesses that we want to bring to the 
table. Mr. Newcomb and Mr. Carragher, thank you very much for 
being here.
    I would like to call former Senator Dennis DeConcini, a 
former colleague of ours from the State of Arizona, and 
Ambassador Dennis Hayes, Vice President of the Cuban American 
National Foundation. If you would please come forward. I 
appreciate very much your being here.
    Senator DeConcini, thank you very much for being with us 
this morning. I might note that you were chairman of this 
subcommittee for a good many years. Thank you for being here 
and why do you not proceed. We will include your full statement 
as part of the record.
STATEMENT OF HON. DENNIS DeCONCINI, FORMER U.S. SENATOR 
            FROM THE STATE OF ARIZONA, ON BEHALF OF THE 
            ALLIANCE FOR RESPONSIBLE CUBA POLICY
    Senator DeConcini. Mr. Chairman, Senator Dorgan, thank you 
for inviting us to testify today and thank you for the time you 
have put in on this, I believe, very important subject when I 
am well aware of the many different things you have. I have 
submitted a statement and I am going to summarize it to some 
extent and ask that perhaps another statement might be 
submitted later by the Alliance for Responsible Cuba Policy.
    I am pleased to testify before you on behalf of that 
organization, which is a nonprofit organization, 
nongovernmental organization. I am a founding board member of 
the Alliance, whose purpose is to educate and change our policy 
towards the government of Cuba. I am accompanied this morning, 
although he had to leave just recently, by Albert Fox, the 
founder and President of the Alliance. We recognize the great 
demands on your time and so my remarks will be brief and to the 
point.
    You have received testimony from the State Department and 
Richard Newcomb, the Director of the Office of Foreign Assets 
Control. Director Newcomb and his staff are the target of 
criticism leveled against the administration for its policy of 
enforcement of economic sanctions against the government of 
Cuba. OFAC is charged with enforcing the laws against the 
Trading with the Enemy Act and other laws designed to enforce 
embargoes against those Nations that present a threat to the 
United States.
    Mr. Newcomb and his staff are professional, dedicated, 
honorable public servants that carry out the law as dictated by 
Congress and the White House, the administration, as you have 
so astutely pointed out today, Mr. Chairman. Current laws 
restrict travel and trade with Cuba. Individuals and 
organizations that desire to travel to Cuba must secure a 
license from OFAC to legally travel to Cuba for humanitarian, 
education, and other purposes.
    We all know that many, and as you pointed out, have gone to 
Cuba through Canada and other countries to avoid the U.S. 
embargo. Unfortunately, due to the policies dictated by the 
administration, the same individuals who testified here today 
are caught in the criminal justice system and the civil justice 
system as having defied the laws of the United States 
Government. These citizens are not involved in conspiracies 
that threaten to undermine our laws or policies. They instead 
are individuals who have a curiosity to experience Cuba and get 
to know the citizens. They are on their own educational 
adventures and are not what we could consider to be criminal or 
deserving of civil penalties to undermine the laws and the 
foreign policy of the United States Government.
    The fact is that our laws toward Cuba should be changed. 
Mr. Chairman, sanctions against Cuba have not worked. Having 
traveled to Cuba during my Senate tenure and extensively with a 
license from OFAC since my departure from the Senate, I have 
witnessed firsthand how these sanctions have not and will not 
bring about the desired change in the government of Cuba, and 
in particular, the removal of Fidel Castro. Fidel Castro will 
leave power when he wants to or with his health or he may die 
in office. Short of military intervention by the United States 
Government, Mr. Castro will stay for the foreseeable future, in 
my judgment.
    The Cuban people have never had a truly democratic system 
to elect free and fair leaders. Cuban history is replete with 
instances of U.S. and European interference. We in the United 
States have supported corrupt governments in Cuba, even using 
our military to see that they were imposed on the Cuban people. 
The present government for the past 40 years is not our 
dictatorship. When I came to this body, Cuba was a national 
security threat because of the then-Soviet Union and the close 
ties Cuba had with the USSR. These days, Cuba is no foreign 
security threat to the United States or to any other Nation.
    In earlier days, voting to keep the embargo on Cuba was a 
very easy vote, Mr. Chairman. It was a vote to keep the USSR at 
bay. It was an anti-communist vote and it satisfied a 
constituency of now-Cuban Americans who have become active in 
our political system. Many of them lost their homes and 
businesses as a result of the deceit of the Batista government 
and the imposition of the Castro government. If that had 
happened to me, I would be very upset and very mad about it. 
But notwithstanding the deep differences we have with the Cuban 
government, our people, our policy of isolation, the embargo, 
and sanctions clearly have not worked. It is time to make a 
change.
    Mr. Chairman, when I served in the Senate, I was very 
critical of President Castro and the Cuban government, so much 
so that the Cuban government would not allow me to visit, and 
when it finally did, my meeting with President Castro can best 
be described that we agreed to disagree.
    However, in the past several years, I have traveled to Cuba 
many times with a license. I am now convinced that we must 
learn to deal with the Cuban government as it is, not as how we 
wish it to be. In addition, with the Cold War now over, we must 
bring logic and reason to the U.S.-Cuban relationship.
    When I was the former chairman of this subcommittee, I 
supported funding for OFAC to enforce the Cuban embargo. I 
approved additional funding for the office and staff in Florida 
and I believe these activities were important to deter the 
extortion of those who would harm legitimate Cuban Americans 
from helping their families in Cuba.
    Today is different. Cuba is no longer a national security 
threat. I do not believe the funding for OFAC operations for 
Cuba, certainly for enforcement of those laws towards Cuba are 
necessary. Instead, I believe we should focus our attention on 
lifting the embargo against Cuba and on normalization.
    Thousands of Americans have traveled to Cuba. Many have 
traveled without a license. Cuba is not a Libya, Iran, North 
Korea. It is only 90 miles away. Its people are friendly and 
welcome Americans. Our national interest would best be served 
to permit Americans to travel to Cuba to have hundreds, not 
dozens, of exchanges to provide humanitarian assistance. This 
is what we do with most developing counties and not 
unreasonable restrictions added on to them by amendments 
forbidding financing of such purposes as American food and 
medicine. A change can take place in Cuba if the U.S. would 
treat Cuba like we treat China and Vietnam, that the chairman 
has so astutely pointed out today.

                           Prepared Statement

    Thank you, Mr. Chairman, for the opportunity to testify 
today on this important matter. We respectfully ask the 
committee to devote its time to lifting the travel ban towards 
Cuba and to find a way to constructively engage the Cuban 
government in a manner that would lead to the reestablishment 
of diplomatic relations between our two countries.
    Senator Dorgan. Senator DeConcini, thank you very much.
    [The statement follows:]

             Prepared Statement of Senator Dennis DeConcini

    Dear Mr. Chairman and members of the Subcommittee on Treasury and 
General Government,
    Thank you for inviting the Alliance for Responsible Cuba Policy to 
present testimony this morning regarding the Treasury Department's 
Office of Foreign Assets Control licensing procedures. The Alliance was 
created in late 1998 to foster better political, economic, and cultural 
relationships between Cuba and the United States. It is a non-partisan, 
non-profit 501 (c) (6) organization. I am accompanied this morning by 
Albert A. Fox Jr., founder and president of the Alliance for 
Responsible Cuba Policy. Al, as a former Senate staffer, and I 
recognize the great demands on your time, so we will get right to the 
point. At the appropriate time if you have any questions, Al and I will 
be delighted to answer them in a forthright manner.
    Let me briefly make two points regarding OFAC and its licensing 
procedures. First, Director R. Richard Newcomb and his staff receive 
criticism from time to time from various quarters, which we believe to 
be totally unjustified. Mr. Newcomb and his staff are dedicated, 
honorable, and talented public servants. I say that with great 
confidence for I observed them from the inside when I chaired this very 
subcommittee or was the ranking member for 12 years. I have now 
observed them from the outside as well, as one of the principal 
founders of the Alliance for Responsible Cuba Policy, which deals with 
OFAC on a regular basis.
    Everyone knows the dilemma that Mr. Newcomb and his staff face on a 
daily basis regarding licenses for Cuba, but no one wants to admit it 
publicly. OFAC and its staff face pressures that very few other 
government agencies face. We all know that Cuba is not a foreign policy 
matter for the United States any longer. Cuba is a political domestic 
matter for the United States. Mr. Newcomb's office is pressured by the 
White House, the National Security Council, the State Department, 
Congress, and by those who support the blockade toward Cuba, to tighten 
the screws on licensing procedures, yet Congress passes laws and 
regulations allowing for Americans to travel legally to Cuba under 
certain circumstances. In short, OFAC is criticized by those who 
support the blockade when a license is granted and equally criticized 
by those opposing the blockade when a license is denied.
    The fact is that OFAC does not have discretion to grant licenses 
regarding travel to Cuba to individuals and groups they personally like 
and/or support. Rightly or wrongly, they must adhere to specific laws 
as prescribed by Congress. In our opinion OFAC obeys the letter and the 
spirit of the law authorizing them to grant licenses for travel to 
Cuba.
    It is difficult to defend a decision on a license application or to 
defend the enforcement of a penalty on some of the cases you have 
before you today. We believe they are the exceptions and not the rule. 
It is appropriate for this committee to ask questions on resources and 
procedures. Again, it is important is to realize that the 
administration of congressional statutory language does require 
following the law and does not permit the administrators to be 
arbitrary, as some claim.
    The solution is to repeal the law that denies Americans to travel 
freely to Cuba. The blockade against Cuba has not worked. Having 
traveled to Cuba during my Senate term and extensively since leaving 
the Senate I have witnessed first hand how these sanctions have not and 
will not bring about the desired changes in the government of Cuba and 
in particular the removal of President Fidel Castro. He will leave 
office when he wants to or when he cannot serve because of health 
reasons or dying in office. Mr. Chairman, there is absolutely no 
evidence of any significant dissident movement against President Castro 
or his government within Cuba. Those are the facts. In my judgment, 
short of U.S. military action, Mr. Castro will remain the leader of 
Cuba for the foreseeable future. I wish that were not the case, for the 
Cuban people have never had truly democratic free and fair elected 
leaders. Cuban history is replete with instances of U.S. and European 
interference. In the past, we have supported corrupt governments in 
Cuba, even using our military, when we felt the need to do so. When I 
came to this body Cuba was indeed a national security threat because of 
the former Soviet Union and the close ties Cuba had with the USSR. So 
our foreign policy toward Cuba made sense then. But today, Cuba is no 
security threat to the U.S. or to any other nation. In those days, 
voting to keep the blockade on Cuba was a very easy vote. It was a vote 
to keep the USSR at bay, it was an anti-communist vote, and it 
satisfied a constituency of those who are now Cuban Americans, of whom 
some have become active in our political system. Many of them lost 
their homes and businesses as a result of the overthrow of the 
Fulgencio Batista dictatorship. Many of them of course are driven by 
nationalistic pride and are bent on retribution. Not withstanding the 
deep differences, and they are many, we have with the Cuban government, 
our policy of isolation, the embargo and sanctions clearly have not 
worked. It is long past time to make a change. Thousands of Americans 
traveled to Cuba last year alone without a license approved by OFAC. 
Cuba is not some far away place like Libya, Iran or North Korea; it 
only ninety miles away from Florida's most southern point. The people 
are friendly and they want full relations with us--even the Cuban 
government wants full and friendly relations with us. Our national 
interest would best be served by permitting Americans to travel to Cuba 
to have hundreds, not dozens, of exchanges, to have truly humanitarian 
assistance, like we have with most other developing countries, not 
unreasonably restricted by amendments forbidding financing of such 
purchases of American food and medicine. Why are we afraid of allowing 
America's most precious asse--its citizens--to travel to Cuba? Maybe a 
change will take place in Cuba if the U.S. would treat Cuba like the 
U.S. treats China, Vietnam and the other nations we have disagreements 
with.
    Further Mr. Chairman, when I served in the Senate, no one was more 
critical of President Fidel Castro and the Cuban government than me. So 
much so, that the Cuban government would not allow me to visit Cuba and 
when they finally did, my meeting with President Castro can best be 
described by saying that we ``strongly agreed to strongly disagree.'' 
However, as referred to above, in the last 7 years, I have traveled to 
Cuba seven times and I am now convinced that we must learn to deal with 
the Cuban government, as it is, not how we wish it to be. Certainly 
with the Cold War over, we should bring logic and reason to United 
State-Cuba relations.
    The second point I would like to make is that when I was chairman 
of the Subcommittee on Treasury and General Government, I proposed and 
supported the creation of an OFAC office in Miami, Florida. I believed 
at the time it was a prudent expenditure of taxpayers' money and vital 
in enhancing U.S.-Cuba relations. Today, U.S.-Cuba relations have 
become a political issue and no longer is Cuba a national security 
threat, no longer is Cuba exporting military adventurism and communist 
revolution. Cuba is not a bit player, if a player at all in the 
international drug cartel, which I believe is just as great a national 
security threat as terrorism. This office, which this committee 
originally funded when I was Chairman, is not necessary any longer in 
my judgment. It may employ a number of Americans; which I realize are 
jobs but jobs at the taxpayers' expense. Yes the Miami office of OFAC 
handles some paper work but I firmly believe OFAC in main Treasury can 
handle the effects of such a closure. OFAC may need more personnel but 
I do not believe it justifies an office in Miami. As I have said 
because of the change of our relationship from one of foreign relations 
to one of domestic relations. The alliance recommends the closing of 
the OFAC Miami office and the transfer of the office's functions back 
to Washington, DC.
    In closing, we respectfully ask the committee to devote its time to 
lifting the travel ban toward Cuba and to find a way to constructively 
engage the Cuban government in a manner that would lead to the re-
establishment of diplomatic relations between Cuba and the United 
States. The people of both countries have far too many things in common 
to keep us apart, just because of domestic political considerations. 
Mr. Chairman, the time to act is now, for there is always going to be a 
``legitimate reason'' to postpone enhancing U.S.-Cuba relations. There 
is always going to be a presidential election, congressional election, 
Florida gubernatorial election, or other excuses for not acting.
    We will submit for the record a more detailed statement and 
information regarding the Alliance for Responsible Cuba Policy.

    Senator Dorgan. Next, we will hear from Ambassador Dennis 
Hayes. Mr. Ambassador?
STATEMENT OF AMBASSADOR DENNIS K. HAYES, VICE 
            PRESIDENT, CUBAN AMERICAN NATIONAL 
            FOUNDATION
    Mr. Hayes. Thank you, Mr. Chairman. With your permission, I 
would like to submit my statement for the record and perhaps 
summarize it and perhaps attempt to answer the unanswerable 
that you put forward a moment or two ago.
    Senator Dorgan. Without objection.
    Mr. Hayes. I would like to note on behalf of the Foundation 
that we do, in fact, support lawful travel to Cuba and we do 
see it as a means of increasing communication and support for 
the Cuban people. One thing that has been left out of all the 
discussions up to this point, I believe, is, in fact, the 
status of the Cuban people at this time and how the Castro 
regime attempts to limit contact between Americans and other 
foreigners and the Cuban people themselves. So I would like to 
talk just very briefly about how that process works and how 
Americans play into it and perhaps then how OFAC connects into 
that.
    Perhaps the most important thing to remember is that the 
Castro government works very hard to see to it that there is 
not meaningful interaction between foreigners and Cubans. There 
is a process which is known on the island as the tourist 
apartheid. Under this, Cuban citizens are denied entry into 
resort areas and into hotels and this effectively presents a 
bar for meaningful contact.
    There also are a whole series of further restrictions. It 
is, in fact--recently, laws were passed in Cuba which makes it 
a criminal offense for Cubans and foreigners to discuss 
sensitive issues, whether that be medical conditions on the 
island or the condition of democracy and free speech advocates. 
You may remember that two Czech citizens, one of them a member 
of parliament, were imprisoned for over a month for violating 
this ban.
    It is also important to remember that the tourist industry 
itself is built to funnel money into the Castro regime. This is 
done through a variety of ways, including the illegal 
confiscation of wages. It is done through a process whereby 
unionization is not just illegal but can result in firings, 
beatings, and imprisonment. It is done through a process where 
there is blatant racial discrimination, where Cubans of black 
origin are systematically denied positions in the tourist 
industry. It also builds, unfortunately, regrettably, very much 
in the early days and continuing until now through a basis of 
prostitution as a lure for foreign tourists.
    And finally, I would note, as the Senator noted, that when 
we talk about free trade to Cuba, we have to remember that 
there are two pieces to that. It is not simply the United 
States that has to authorize travel. The Cuban government also 
does and they engage in a process whereby they deny travel 
authorization to anyone that they disapprove of, whether that 
be because of their political views, family ties, or what have 
you.
    So one of the concerns that we have is that when we discuss 
travel, we always do it in a unilateral fashion rather than 
looking at both sides of the equation. I think that we need to 
be less timid. We need to say that there are important issues 
here of free speech and of free contact and it should not just 
be that we give things away, asking nothing in return, when 
history has shown that is exactly what we will get, nothing in 
return.
    Mr. Chairman, one or two other issue that came up in the 
conversation here. With respect to the threat of Cuba, I will 
note that this is a regime with a long history of anti-
Americanism, that a U.S. court has determined that the state 
acted deliberately to kill American citizens in the ``Brother 
to the Rescue'' shootdown, that a high-ranking minister of 
government has been identified as a man who tortured and killed 
Americans in Vietnam, that the government consistently spies 
against us and provides a home for an alphabet soup of 
terrorist groups.
    So all in all, with respect to OFAC, we believe that it is 
important that there be transparent regulations, that they be 
applied without fear of favor, if you will. We do encourage 
those efforts which lead to increased contact. Dr. 
Gilderbloom's program, for instance, as described, is one that 
I would think that we would support. I do not know all the 
details, but certainly as it was described, it has the 
requisite points to it.

                           Prepared Statement

    So, all in all, again, we would hope that OFAC would 
continue to enforce effectively with the dividing line, that 
those actions which provide comfort and support for regime 
should be opposed. Those actions which help and support the 
Cuban people should be encouraged.
    Thank you, Mr. Chairman.
    Senator Dorgan. Mr. Ambassador, thank you very much.
    [The statement follows:]

            Prepared Statement of Ambassador Dennis K. Hayes

    Thank you Mr. Chairman, I appreciate this opportunity to appear 
before you and the committee to discuss the enforcement of travel--
regulations with respect to Cuba.
    The Cuban American National Foundation supports lawful travel to 
Cuba. Lawful travel to Cuba may be undertaken for a very wide variety 
of purposes, including visits with family members, work with 
humanitarian and religious groups, academic research or the pursuit of 
news stories. Such travel can help provide a flow of information to and 
from the Island and can--if undertaken for such a purpose--bring 
comfort and support to the Cuban people as they struggle to free 
themselves from over four decades of repressive, authoritarian rule. 
The Foundation strongly opposes, however, unrestricted tourist and 
business travel to Cuba. Such travel strengthens the regime and 
legitimizes the violation of the rights of the eleven million citizens 
of Cuba who are not part of the ruling elite. While we understand that 
many of the people who seek to engage in such travel have good 
intentions, good intentions do not make up for the misery and 
degradation their actions cause. We support the efforts of the Office 
of Foreign Asset Control to enforce the law. We believe the American 
and Cuban people alike are best served by a transparent, predicable, 
and vigorous application of the law. In a world of limited resources, 
we encourage OFAC to give highest priority to investigating and 
prosecuting those individuals who have made a business out of breaking 
the law and those individuals who most blatantly engage in abusing the 
Cuban people.
    Why is tourist travel a bad thing?--The Foundation opposes tourist 
travel because, as presently practiced, such travel hurts rather than 
helps the people of Cuba. Cuba is a totalitarian regime that severely 
restricts the rights of speech, assembly, enterprise, and even the 
practice of religion. Tourist travel is structured specifically to 
limit meaningful contact between Cubans and foreigners. Revenues from 
tourism flow to the most repressive elements of the regime. Cuba has 
encouraged tourism from other countries for over a decade now and the 
results are sadly clear--the vast majority of tourists become complicit 
in the exploitation of the Cuban people. Some specific concerns:
    Tourist apartheid.--The Dutch religious group, Pax Christi, 
recently reported: ``Cubans are not allowed to enjoy the new tourist 
industry because it has become de facto the sole purview of foreigners. 
Through a series of physical restrictions imposed on Cubans, the 
government is able to maintain what is known as ``tourist apartheid''. 
As is generally known, Cubans are not allowed to visit most of the 
tourist areas or even enter a hotel; and if they do, they must be in 
the company of a foreigner. Cubans are even gradually losing their 
beaches and beautiful reefs because the Government continues to 
discriminate against them.--In private, Cubans repeatedly expressed 
their anger at being treated like second-class citizens in their own 
country.''
    Racial Discrimination.--Cuba's tourist industry is built on blatant 
racial discrimination. Cubans of African decent are routinely denied 
employment in tourist industry--the only opportunity many Cubans have 
to earn dollars. As noted by Washington Post columnist William 
Raspberry in a recent story, ``I saw hardly any brown-skinned or black 
Cubans running anything not as managers or ministers, or maitre d's, 
not even as cashiers, clerks or hotel maids.''
    Illegal confiscation of wages.--Cuban workers at tourist resorts 
are employed only through the State Employment Agency. A foreign 
company therefore pays the Cuban government directly for the services 
of the worker. And while the Cuban government is paid in hard currency 
such as U.S. dollars, the Cuban worker is given Cuban pesos at an 
artificial exchange rate. Thus, over 95 percent of the worker's wages 
are retained by the regime. This practice is a direct violation of 
International Labor Organization (ILO) standards. The labor practices 
of foreign joint ventures have recently been declared ``exploitative'' 
by the Infernational Confederation of Trade Unions (ICFTU) and the 
International Regional Organization of Workers (ORIT).
    Prostitution.--Much of Cuban tourism is built on prostitution, 
particularly teenaged prostitution, and the exploitation of women. In 
fact, Havana has become known as the ``Bangkok of the Caribbean.'' 
Fidel Castro has boasted to Cuba's rubber-stamp National Assembly that 
``highly educated'' ``jineteras'' (prostitutes) have low rates of AIDS 
and, therefore, ``there is no tourism healthier than Cuba's.'' (The New 
Republic, July 2000)
    Criminalization of free discussion.--The Castro regime recently 
passed legislation criminalizing discussions between Cubans and 
foreigners on ``sensitive'' issues. Two Czechs, one a Member of 
Parliament, were imprisoned for a month last year for speaking with 
dissidents. A U.S. citizen was held at State Security Headquarters for 
three weeks for taking children's books to an independent library.
    Confiscated Property.--Many Cuban tourism facilities are built on 
property seized from American and other owners without compensation. In 
a further flouting of international law, those facilities are often 
operated in conjunction with a foreign partner, who reaps profits from 
that stolen American property. Further, tourist resorts in Cuba are 
built without regard to the environmental damage caused, often 
destroying the fragile ecosystems of Cuban coastlines.
                   enforcement of travel regulations
    The Foundation supports the efforts of the Treasury Department and 
the Office of Foreign Assets Control (OFAC) to enforce the law. We 
appreciate how difficult it is to gather information in a hostile 
regime and to enforce regulations that some Americans--sincerely, if 
unwisely--are prepared to violate.
    The case for enforcing restrictions on unlawful travel to Cuba is 
compelling. We encourage OFAC to act in a transparent, consistent, and 
vigorous manner, without fear or favor. Everyone should be held to the 
standards of the law. Should a Cuban American violate the law, he or 
she should be held every bit as accountable as any other American.
    In a world of competing priorities, we encourage OFAC to give 
special priority to examining the actions of those individuals and 
companies that have made a business of violating U.S. law and degrading 
the Cuban people. A cursory web search will reveal numerous companies 
that provide specific advise on how to break the law. Some businesses 
openly offer to make all arrangements for illegal travel--for a price. 
On company in Texas brags it can facilitate business investment in Cuba 
because they ``already know the most important Cubans.'' On any given 
weekend, dozens of American boats can be found at the Marina Hemingway, 
their owners and crews engaged in illegal transactions and often 
smuggling contraband back to the United States. Several popular 
magazines advertise Cuban products that can be paid for with U.S. 
credit cards and shipped anywhere in the United States from a third 
country. On occasion, there are stories in the press that highlight 
illegal activity, such as a recent melee involving a well-known 
heavyweight boxer. It is crucial that action in such cases be taken, 
and be seen to be taken, not because of who someone is or isn't, but 
because no one is above the law. We strongly urge OFAC to be aggressive 
in prosecuting such cases.
    In a related area, we encourage the Administration and the Congress 
to make available sufficient resources to bring cases before a judge in 
a timely manner.
    Mr. Chairman, I am confident the day will come when the Cuban 
people are able to welcome visitors to their shores freely and proudly 
as equals, not slaves. Until that time, to abandon our travel 
regulations would not only weaken respect for our laws, but would also 
give de facto recognition to the dehumanizing efforts of the Castro 
regime. I am proud of America for being the one nation that puts human 
dignity above cheap package tours. We owe it to the Cuban people to 
insist that their rights and dignity not be traded away for a handful 
of sand. Thank you.

    Senator Dorgan. Can you, for the record, describe your 
background for us? I just did not have it in my record this 
morning.
    Mr. Hayes. I am a retired Foreign Service Officer. I had 
Mr. Carragher's job. I was Coordinator for Cuban Affairs in the 
1990s. I was Ambassador to the Republic of Surinam. I was also 
President of the Foreign Service Union at one point, so I take 
the union issues to heart.
    Senator Dorgan. Thank you very much.
    Mr. Hayes. Yes, sir.
    Senator Dorgan. Let me ask a couple of questions of both of 
you, if I might. Ambassador Hayes, you indicated that the Cuban 
government bans contact with tourists by average Cubans. I have 
been to Cuba once on an official visit and I found that, 
walking around, I could talk to anybody about anything at any 
time.
    The only denial I received came when I wanted to go to a 
prison and interview an economist who had been imprisoned. 
Outside of that refusal, which I took directly to Fidel Castro, 
I was free to talk to anybody, anywhere, at any time. In fact, 
we had some meetings with dissidents and they were highly 
critical of the Castro regime and demonstrably so. So I did not 
get the same sense that there is a circumstance where tourists 
do not have the opportunity to interact with Cubans.
    Now, when you talk about this, you talk about it in the 
context of hotels, and it may well be that these are gated 
areas, where you go to a hotel on the beach somewhere and you 
are not going to have a lot of contact. But if you go to 
downtown Havana and go to the Floridita or wherever you go, you 
can talk with anybody about any subject. Can you describe that 
a little better for us?
    Mr. Hayes. Certainly, Senator. There are a couple pieces to 
that. One is those physical barriers between individual Cubans 
and visitors, which are more evident, as you said, in the 
tourist resort areas. Havana by its nature being a city, that 
does not apply as much until, of course, you would like someone 
to come back and visit or have a meal at a hotel.
    But again, remember that the restrictions are not just on 
you, they are very much on the Cuban people, and with a system 
in place where basically the actions of people are monitored, 
if not 100 percent, quite efficiently and effectively, everyone 
who you talk to knows that the conversation that you had is one 
that is measured.
    I will note, for instance, in meeting with dissidents that 
one of the more prominent economists, Marta de Matrice, who met 
with President Fox, was detained, strip searched, held out of 
her home. Her home was fumigated with some kind of poison 
against her wishes. Why? Perhaps because she spoke out on 
exactly those issues that you mentioned.
    Senator Dorgan. Senator DeConcini, what has been your 
experience?
    Senator DeConcini. Mr. Chairman, there is no question, and 
I agree with the Ambassador, there is still a tremendous amount 
of tyranny, as there is in any communist country, whether it is 
Cuba or China. You do not have the freedoms there. Nobody 
pretends that they do or would argue that that is a good 
system.
    But my experience traveling there is like yours. Having met 
with Fidel Castro, having met with those who oppose him, those 
who have been persecuted and put in jail, and having absolute 
free contact with anybody I have wanted to see except, as you, 
someone who was in prison. That was the only person I was 
denied to there. The U.S. Interests Section deserves a great 
deal of credit for that because they helped organize those.
    Yes, the Cuban government, I suspect, does not like it, and 
sometimes they will discourage it, so I am told, but never to 
me, and I have had that experience not only in Havana, which is 
a large city, as the Ambassador points out, and more difficult 
to constrain, but I have had that in many areas, Santiago and 
Del Rio, the tobacco area, being able to walk through the 
villages, walk into the tobacco farms, talk to the people who 
are digging in the fields, have a cup of coffee with one of 
them later in their house with no government official there. 
Now, maybe there were listening devices, that this farmer was 
going to convey something of national security to me, but we 
know that is not true.
    So it just does not hold up. I think one of the problems 
that many who take the very strong position, and I respect the 
Ambassador immensely, they have not traveled there. They have 
not witnessed it and they do not want to really understand that 
the Cuban people are the ones that are hurt by our policies and 
not the one that we would like to hurt, perhaps.
    Senator Dorgan. It seems to me the question for our 
country, aside from the narrower question today of OFAC 
resources and enforcement, the question for our country is, 
what set of policies will best implement the removal of the 
Castro government and move Cuba towards a free opportunity to 
select their own government by the Cuban people.
    I have traveled in Vietnam, I have traveled in China, I 
have traveled in Cuba. Frankly, I see very little discernable 
difference in traveling around those countries. They are all 
communist countries.
    As I said when I started this hearing, it is not my intent 
ever to be supportive of a regime like Fidel Castro's regime. 
The Cuban people ought to have the right to choose their 
government. But there comes a time when the American policy has 
to be reviewed. If you have a policy in place for 40 years and 
you are not accomplishing your objectives, then it seems to me 
you might evaluate whether that policy is working. Fidel Castro 
has been in office during the term of ten U.S. Presidents. That 
might persuade someone to say that our Cuba policy is not 
working.
    My own observation--and I would like, Mr. Ambassador, your 
observation about it--my own observation is, having gone to 
Cuba, and especially China, on these issues, is that those who 
talk about trying to open the system with travel and free 
markets and so on, that the quickest way to explode a 
government that excuses its dismal economy on the U.S. embargo, 
the quickest way to dismantle that government is to essentially 
say this is open to travel and tourism and trade. My 
expectation is that that would hasten the demise of the current 
government in Cuba. Give me your impression of that, Mr. 
Ambassador.
    Mr. Hayes. Yes, sir. I will note the fact that we have had 
ten Presidents and there has only been one in Cuba is a 
reflection of the fact that we have a peaceful transfer of 
power and Cuba does not have that possibility.
    Senator Dorgan. Right.
    Mr. Hayes. This is clearly a very difficult question 
because I accept that there are a lot of people of good will 
who come to this question and honestly disagree on how best to 
achieve a given result, which, as you said, is the removal of 
the Castro regime and allowing the Cuban people to have their 
own say in what future they want, and that, of course, is the 
bottom line.
    I am skeptical that the actions which are proposed, which 
is a unilateral lifting of our embargo, will, in fact, have the 
effect that is desired in Cuba. I look at what the Canadians 
have done over the past 10 years and I think, again, they went 
in with very good intentions to cause positive reform, and if 
you talk to the Canadians now, they will tell you that it did 
not work.
    Senator Dorgan. But let me just ask a quick question. Do 
you believe that action had an impact on China?
    Mr. Hayes. I am--I like to think of myself as consistent in 
these policies. I do not agree with our China policy. I think 
we trade the heroes of Tiananmen for cheap Happy Meal toys, but 
that is a separate question.
    I do think that, on the other hand, that when you can 
engage someone and get an engagement back, then it is always 
worth investigating and pursuing. A diplomat by training, I try 
to overcome that conditioning, but there it is.
    I do think that in the case of Cuba, if, for instance, Cuba 
were to lift the ban to allow citizens to have free access and 
free contact with tourists, if they allowed foreign companies 
to hire Cuban workers and pay them directly, if they did not 
practice the racial discrimination that they do, then the 
equation changes and I then think that it would be appropriate 
for us to take a look at it.
    Senator Dorgan. Actually, consistency is an interesting 
thing to hear in a Senate hearing, so congratulations.
    I understand the point you make. It is one that I do not 
share, but let me ask, and I would ask both of you, about the 
issue of agriculture, that is, food and medicine. Do either of 
you believe that it is ever appropriate to use food and 
medicine as weapons in trade policy or weapons in economic 
policy designed to punish a country? The reason I ask the 
question is we are having quite a debate about that here in 
Congress, as well. Senator DeConcini, would you like to answer 
that?
    Senator DeConcini. Mr. Chairman, it has been my sad 
experience, I guess, to witness that firsthand here, having 
served here for three terms, where it is well intended when you 
impose those kind of sanctions and prohibitions, but actually, 
even though the regime you are trying to topple benefits when 
the flow of that food and medicine goes there, for most 
examples that I can think of, it is impossible to keep it from 
enhancing the ability of the people, in this case, Cuba, from 
receiving it.
    I visited with Cardinal Ortega there and with Caritas, the 
organization there that attempts to do this, and they will tell 
you, quite frankly, the people who need the food are getting 
the food. Now, it does not mean that some people in the Castro 
regime or the army are not also getting some of it. That 
happened in Ethiopia. That happened in Somalia, where we had 
tremendous non-government efforts but without the prohibitions. 
I think it is a lesson well learned.
    Your point as to China, and I appreciate the consistency of 
our friend here, the Ambassador, I wish our policy had not 
changed so dramatically to China, but it has and the reality is 
it has worked. This administration understands it works. The 
President is going to visit there again. More capitalism, more 
small businesses are going there, and why? I think it is 
because of the tremendous influence that Western Nations, and 
particularly the United States, has there.
    I am not a wagering man, Mr. Chairman, but I can almost 
guarantee you from my experience there of over eight travels to 
Cuba that if half a million or a million Americans travel there 
over a 12-month period of time and spend $100 or $200 million, 
Cuba would be substantially changed and then that government 
could not withstand just the amount of information that would 
be brought in and made accessible to Cubans. You cannot police 
that, even in a communist society, in my judgment.
    Senator Dorgan. Mr. Ambassador.
    Mr. Hayes. Let me note this is my personal view as opposed 
to the organization I represent and that, in my feeling, the 
only time that you should restrict food and medicine is when it 
is clear that it is used in such a way that it increases 
repression or, rather, the control of a State over a 
population, and I think that is a question that is not yet 
fully answered with respect to Cuba, so in that case.
    Sir, I would also note that throughout my career, I worked 
very hard to encourage American exports, particularly 
agricultural experts, to the countries where I served and my 
experience was not just that farmers wanted to sell 
agricultural products but that they wanted to get paid for 
selling agricultural products, which, of course, brings us to 
another issue, which is that it is one thing if Cuba wants to 
buy American products. It is another if they want to simply get 
them without paying.
    Senator Dorgan. You would not expect that because we have 
had an embargo on food to Cuba--now, that was lifted somewhat, 
except you cannot even use private financing--you would not 
expect that Fidel Castro ever would have missed a meal because 
of our action, would you?
    Mr. Hayes. No, sir.

                           Prepared Statement

    Senator Dorgan. Let me do this. Mr. Frank Calzon from the 
Center for Free Cuba has sent me a letter. I will ask Mr. 
Calzon if he wishes to submit written testimony for the formal 
hearing record. We were not able to have him testify.
    [The statement follows:]

       Prepared Statement of Frank Calzon, Center for a Free Cuba

    This testimony is presented on behalf of the Center For A Free 
Cuba, an independent, nonprofit, nonpartisan organization promoting 
human rights and a peaceful transition to democracy in Cuba. The Center 
participates in the national debate on Cuba, but does not take a 
position either for or against legislation pending before Congress.
    I am grateful to Chairman Byron L. Dorgan for this opportunity to 
present our views about the U.S. ban on travel to Cuba and other 
aspects of United States policy toward the island. A number of 
organizations and individuals are urging Congress to lift the ban on 
travel to Cuba, claiming that the travel restrictions unnecessarily 
curtail civil liberties and that they can no longer be defended on the 
grounds of national security. At the same time, some of these advocates 
assert that lifting U.S. travel restrictions would help the people of 
Cuba and hasten the end of the 42-year-old Castro dictatorship.
    While we beg to differ, we urge the Congress to look beyond the 
opinions bandied about and to review the facts carefully. It would be 
ironic if in the name of advancing tourist travel, a leader of anti-
American violence around the world, a government on the U.S. Department 
of State's list of sponsors of terrorism, and one of the world's 
leading violators of human rights were to be bolstered by an infusion 
of American-tourist dollars. A reappraisal of U.S. Cuba policy by the 
Administration and Congress must take into account many issues; the 
travel ban is just one. Among issues requiring urgent review are:
  --The lack of reciprocity in the operations of the U.S. Interests 
        Sections in Havana and Cuba's Interests Section in Washington;
  --A U.S. District Court's sentencing in December of Cuban spies 
        charged with trying to penetrate U.S. military bases (two to 
        life in prison, one to 15 years, and others to lesser 
        sentences);
  --The September 2001 arrest of Ana Belen Montes, a veteran Defense 
        Intelligence Agency analyst, charged with spying for Havana. 
        According to press reports Ms. Montes duties included providing 
        the Pentagon information on the military capabilities of the 
        Castro government;
  --The revelation in a book by the former deputy director of the 
        Soviet Union's program of biochemical weapons that Soviet 
        officers were convinced ``Cuba had an active biological weapons 
        program.'' (Ken Alibeck, ``Biohazard: The Chilling True Story 
        of the Largest Covert Biological Weapons Program in the World, 
        Random House, 2000; pages 273-277);
  --The torturing of American servicemen (some of whom died) by Fidel 
        Castro's intelligence officers. See Sen. John McCain's Faith of 
        our Fathers (Random House, 1999), and Honor Bound: American 
        Prisoners of War in Southeast Asia 1961-1973, published by the 
        Naval Institute Press, Annapolis, 1999; and
  --The statement by Fidel Castro at Teheran University last summer 
        that America was weak, and Iran and Cuba could bring the United 
        States ``to its knees.''
    Those examples of the Cuban government's enmity are not, of course, 
the subject of this hearing. The focus of this hearing is U.S. 
restrictions on travel to Cuba and, to some extent, the sale of U.S. 
agricultural products to the island. Allow me to discuss these two 
issues in the context of advocating a prudent, pro-active policy 
designed to encourage a transition to a democratic and prosperous Cuba. 
I believe there are at least three questions that need to be answer:
  --Does the Cuba-travel ban violate the U.S. Constitution?
  --Will subsidized trade with Cuba help the American farmer or hurt 
        the U.S. taxpayer?
  --Would the Cuban people benefit from American tourism?
         does the cuba travel ban violate the u.s. constitution
    First, it is simply wrong to suggest that Cuban-travel restrictions 
are inconsistent with the exercise of rights guaranteed by the U.S. 
Constitution. The United States Supreme Court squarely addressed the 
issue in Regan v. Wald. The Court noted then that a citizen's right to 
travel is infringed when, for example, the government prevents him/her 
from traveling because of his/her political beliefs. The Court in Regan 
made clear, however, that the executive branch may prohibit its 
citizens, irrespective of political conviction, to travel to Cuba or 
any other nation because of foreign-policy considerations. 468 U.S. at 
241-42. In so doing, the Court specifically rejected suggestions that 
changes in the ``geopolitical landscape'' would permit the judiciary to 
second-guess the executive branch's determinations about what foreign 
policy justifies a travel ban.
    Some apparently feel that only another Cuban missile crisis would 
make restrictions on travel to Cuba constitutional. They argue that 
there is no ``emergency'' at the present time and that the relations 
between Cuba and the United States are subject to ``only the normal' 
tensions inherent in contemporary international affairs.'' The holding 
[in prior Supreme Court decisions], however, was not tied to an 
independent foreign-policy analysis by the Court. Matters relating ``to 
the conduct of foreign relations . . . are so exclusively entrusted to 
the political branches of government as to be largely immune from 
judicial inquiry or interference.''
    This clear statement belies any suggestion that changes in the 
``geopolitical landscape'' make unconstitutional today what was 
constitutional in 1984. Despite ``changing conditions,'' since Regan, 
every court has rejected the invitation to find the executive branch's 
policy on the Cuba travel restrictions unconstitutional. e.g., U.S. v. 
Plummer, 221 F.3d 1298, 1309-10 (11 Cir. 2000); Freedom to Travel v. 
Newcomb, 82 F. 3d 1431, 1439 (9th Cir. 1996). There simply is no 
responsible legal basis for the suggestion that the Cuba travel ban 
violates the Constitution.
    Other ``legal'' arguments advanced for repeal are no more 
persuasive. It is absurd to suggest that travel restrictions should be 
lifted because those who violate them don't know about them. A 
defendant showing he/she was unaware of a law might reasonably expect a 
court to consider that before deciding what punishment to impose. It is 
not grounds for a court to repeal a law that has been violated. A 
second argument, that people ``intent'' on visiting Cuba will 
necessarily violate the law, seems equally illogical. Congress would 
not repeal anti-drug legislation because drug addicts are ``intent'' on 
smoking dope. Even if one assumes bureaucratic failings in the Treasury 
Department's Office of Assets Control and Customs, it would not be a 
basis for repeal. If such reasoning were accepted, the Internal Revenue 
Code also would be imperiled.
    The truth is that there are no ``legal'' arguments for repeal of 
the Cuban travel restrictions. Such arguments are ``smoke'' intended to 
obscure a policy debate. It is telling that those urging a change of 
policy feel it necessary to try so hard to obscure their intent.
 will subsidized trade with cuba help the american farmer or hurt the 
                             u.s. taxpayer
    Fidel Castro's most persistent trait since assuming power in 1959 
has been anti-Americanism. Now he says he wants to help American 
farmers and trade with the United States. By Castro's reckoning, 
selling grain and other commodities to Cuba will greatly benefit 
American farmers.
    The American economy today is grappling with the Enron fiasco, 
which can be attributed to the company's manipulation of its fiscal 
data, and the unwillingness of Executive branch regulators and 
Congressional policy makers to ask tough questions. It is up to 
Congress today to ask whether profits from trade with Cuba aren't 
another mirage. And whether American taxpayers won't take another hit 
if Fidel Castro's campaign to win credits, export insurance and export 
guarantees succeeds? Will gullible Americans also be swindled by 
Castro?
    Harvard scholar and former U.S. Sen. Daniel Patrick Moynihan once 
said that ``we are all entitled to our own opinions, but not to our own 
facts.'' What are the facts?
    Say what you will about the ineffectiveness of the U.S. embargo, 
one of the best-kept secrets of the embargo is that it has saved U.S. 
taxpayers millions. Because of the embargo American banks aren't part 
of the consortium of creditors known as ``the Paris Club'' waiting to 
be paid what they're owed by Havana. If they were, you and I both know 
they would be pressing Congress to find a way for U.S. taxpayers to 
cover their losses in Cuba.
    Since 1986 Castro's Western creditors (including Canada, France, 
and Spain) have sought to recover some part of their $10 billion in 
loans to Cuba. Havana refuses even to repay Moscow's larger loans, 
insisting that its debt was to the Soviet Union, ``a country that no 
longer exists.''
    American agribusiness believes there are huge profits to be made by 
trading with Havana. It believes foreign policy considerations should 
not prevent trade even if strengthening regimes like Libya, Iraq and 
Cuba might someday put the lives of U.S. servicemen at risk. Providing 
trade benefits to America's enemies, especially those in the State 
Department's list of terrorist nations makes, as much sense as the sale 
of U.S. scrap metal and bauxite to Japan in the 1930's. Some of those 
materials were used to build up the Japanese military, leading to the 
attack on Pearl Harbor.
    In June 2000, Congress lifted sanctions on sales of agricultural 
products and medicine to Cuba. For more than a year, there were no 
sales. In the aftermath of a devastating hurricane in November of 2001, 
the Bush Administration offered humanitarian assistance to Cuba. 
Instead of promptly accepting the assistance and thanking the United 
States, Castro turned the offer into a public-relations stunt, 
insisting Cuba would buy $30 million in commodities from the United 
States and initiating a political and public relations campaign to win 
U.S. credits and export insurance for future ``sales.''
    The Castro government, however, is broke. It suspended payments on 
foreign debt in 1986. And although Castro has managed to reschedule 
some debts, he continues to have difficulty paying his creditors. It is 
tragic that Castro's sales pitch are accepted at face value without 
checking available economic data, and would be worse if U.S. taxpayers 
wind up encumbered with the risk of making good on subsidized credits 
(to Castro) and export insurance (to American corporate interests). As 
AmCham Cuba, (The American Chamber of Commerce of Cuba in the United 
States) reports in its February 2002 newsletter:
    ``Cuba's economic woes continue to mount as a result of being 
especially hard hit by the worldwide economic slow down and the fall-
off in international travel after the September 11 attacks. Tourism, 
Cuba's most important economic sector has declined sharply. Hotel 
occupancy is down at least 25 percent in Havana, 40 percent in 
Varadero--Cuba's second largest source of foreign exchange, expatriate 
remittances are down due to the downturn in the U.S. Removal of Russian 
surveillance facilities cost the Cuban economy $200 million in Russian 
rent. Vice President Carlos Lage has cited the hard blow' by a fall in 
world prices for Cuba's commodity exports such as sugar and nickel.''
    In the 1960s, when Castro expropriated U.S. and Cuban businesses, 
Washington banned all trade with Cuba. Castro now lures businessmen by 
telling them that they are ``losing business.'' But according to a 
recent U.S. International Trade Commission report, ``U.S. sanctions 
with respect to Cuba [have] had minimal overall historical impact on 
the U.S. economy'' and ``even with massive economic assistance from the 
Soviet Union, Cuba remained a small global market relative to other 
Latin American countries.''
    The commission estimated ``that U.S. exports to Cuba in the absence 
of sanctions, based on average 1996-98 trade data, would have been less 
than 0.5 percent of total U.S. exports.'' And that ``estimated U.S. 
imports from Cuba . . .  excluding sugar (U.S. sugar imports are 
government regulated) would have been approximately $69 million to $146 
million annually, or less than 0.5 percent of total U.S. imports.''
    The report asserts, ``U.S. wheat exports to Cuba could total 
between $32 million and $52 million annually, about 1 percent of recent 
U.S. wheat exports.''
    Economic data about Cuba is difficult to obtain. But consider this: 
During the year 2000 France withheld a shipment of grain due to 
Castro's inability to pay for earlier transactions and canceled $160 
million in new credits to Havana. In early 2001, Chile was attempting 
to establish ``a payment plan'' for a $20-million debt for mackerel 
shipped the previous year. South Africa, according to The Johannesburg 
Sunday Times was ``frustrated'' by Havana's failure to settle a $13-
million debt, and Pretoria's Trade and Industry Ministry refused to 
approve credit guarantees to Cuba. Last year (2001), Thailand also 
refused to provide export insurance, resulting in the cancellation of 
rice sales to the island worth millions of dollars.
    According to the commission report, rice exports to Cuba would be 
worth between $40 million and $59 million, increasing the value of U.S. 
rice exports by 4 to 6 percent: ``U.S. exporters would be highly 
competitive with current suppliers.'' But the report cautions that 
Castro's trade decisions are based on politics, not on economics. 
Castro is unlikely to give the Americans the market share that he 
provides his ideological allies: China and Vietnam.
    Unfortunately, Castro's trade partners often become apologists for 
the regime, fearing to say anything that endangers their investments in 
Cuba. They have found out the hard way what happens when Castro feels 
insulted by demands to pay.
    Louisiana rice and Illinois wheat producers should stop assuming 
that ``selling'' to Havana is synonymous with getting paid. U.S. 
taxpayers should be wary.
    Castro desperately needs credits and subsidies. Washington is under 
pressure from agri-business to provide credits and subsidies. If all of 
us accept estimates that U.S. trade with Cuba might rise to $100 
million per year, then five years from now American taxpayers will have 
guaranteed $500 million in credits and insurance. That's real money, 
everywhere.
    Before extending credit to Castro, Americans should visit New York 
City and watch how three-card monte is played on some street corners. 
The dealer shows three cards, shuffles them, places them face down and 
invites spectators to bet they can identify one. In this game, the 
gambler voluntarily takes his chances. Where trade with Castro is 
concerned, it's the U.S. taxpayer will be left holding the losing card.
          would the cuban people benefit from american tourism
    Let us now look at the policy considerations. The stated goal of 
U.S. policy is to contain the Castro's communist regime by limiting its 
access to hard currency and promoting democracy and a rule of law.
    How would a change in current travel restrictions in regard to Cuba 
impact U.S. goals and interests? Would opening Cuba to dollar-spending 
American tourists subsidize repression and assist Fidel Castro in 
legitimizing the ``tourist apartheid'' he has imposed on Cubans?
    The Castro government sets aside hotels, beaches, stores, 
restaurants, even hospitals and clinics for foreigners and prohibits 
Cubans from staying in those hotels or patronizing those facilities. Do 
Americans who advocate changes in U.S. travel policy have any moral 
responsibility to raise the issue of this apartheid? Should the rights 
of vacationing American tourists supersede the right of people living 
in Cuba to move freely about their own country? To eat at the same 
restaurants? Visit the same beaches? Obtain care in the same clinics?
    At the beginning of the 21st Century, it no longer suffices to say 
that what happens 90 miles away is not America's business. The long 
history of misguided U.S. policies toward Latin America should raise a 
cautionary flag when dealing with Cuba. The Cuban people are asking 
today, and will ask tomorrow: Where are their American friends in time 
of need? How many business leaders and Congressional visitors have 
asked President Castro to lift his tourist apartheid? Allow the 
International Committee of the Red Cross to visit Cuba's political 
prisoners? Grant Cubans the same economic rights and privileges enjoyed 
by foreigners?
    And what about the right of U.S. citizens to use international 
airspace? Six years ago Castro's warplanes shot down two small civilian 
aircraft in international airspace over the Florida Straits. Three U.S. 
citizens died. So did a Cuban citizen who was legally residing in the 
United States. The Clinton Administration presented indisputable 
evidence to international organizations that the Castro government 
deliberately murdered these men. Would it be fair to say that the right 
to live is just as important as the right to travel? Will America's 
civil-rights organizations so concerned about international travel join 
the families of those who died in seeking an indictment of those who 
pulled the trigger?
    The Cuban regime needs the hard currency of foreign tourists to 
maintain its repression. As I said earlier Castro's communist 
government is bankrupt. Yet the dictator continues to muster and 
mobilize foreign apologists to press for access to American-funded 
trade credits and loan guarantees and to American tourist dollars.
    The discussion on lifting the sanctions is somewhat schizophrenic: 
Some argue that lifting the travel ban will save the ``achievements'' 
of the Cuban Revolution. Others say that American tourists will ensure 
collapse of the Castro dictatorship. Both groups cannot be right, but 
both can be wrong. Many Central European leaders believe that radio 
broadcasts and solidarity with dissidents were extremely important in 
helping them win their struggle for freedom, but that Western loans and 
tourism propped up communist regimes that would have collapsed much 
earlier.
    Professor Jaime Suchlicki, a noted historian at the University of 
Miami, has written [``American tourists would boost Castro,'' The 
Providence Journal, Jan.10, 2001] that the belief that unilaterally and 
unconditionally lifting the travel ban ``would benefit the Cubans 
economically and hasten the downfall of communism--is based in several 
incorrect assumptions.'' The first is ``that Castro and the rest of the 
Cuban leadership are naive and inexperienced and, therefore, would let 
tourists from the U.S. subvert the revolution and influence internal 
developments. The second is that Castro is so interested in close 
relations with the United States that he is willing to risk what has 
been uppermost in his mind for 41 years--total control of power and a 
legacy of opposition to `Yankee imperialism'--in exchange for economic 
improvements for his people.''
    Dr. Suchlicki also writes that lifting the travel ban without 
securing meaningful changes in Cuba would:
  --Guarantee the continuation of the current totalitarian structures.
  --Strengthen state enterprises because the money would flow into 
        businesses owned by the Cuban government. (Most businesses are 
        owned in Cuba by the state and, in all foreign investments the 
        Cuban government retains a partnership interest.);
  --Lead to greater repression and control since Castro and the rest of 
        the leadership would fear that U.S. influence would subvert the 
        revolution and weaken the Communist Party's hold on the Cuban 
        people.
  --Delay instead of accelerate a transition to democracy in the 
        island.
  -- Send the wrong message to the enemies of the United States: that a 
        foreign leader can seize U.S. properties without compensation; 
        allow the use of his territory for the introduction of nuclear 
        missiles aimed at the United States; espouse terrorism and 
        anti-U.S. causes throughout the world; and eventually, the 
        United States will ``forget and forgive,'' and reward him with 
        tourism, investment, and economic aid.
    Some argue that tourism and foreign investors would help bring 
respect for human rights in Cuba. But in the absence of other factors, 
the statement is simply not supported by the facts. As reported by the 
AmCham Cuba Newsletter (February 2002), ``A Congressional delegation 
came under fire in Cuba for focusing only on criticism of U.S. 
sanctions at the expense of discussion on Cuba's internal human rights. 
A leading Cuban dissident, Oswaldo Paya of the Christian Liberation 
Movement, said the only issue the delegation wanted to discuss was the 
embargo. Paya charged that the visitor should `Question whether there 
exists conditions whereby Cubans can freely participate with dignity in 
commerce, foreign investments, and cultural exchanges.' ''
    Despite millions of foreign tourists every year Cuba remains a 
totalitarian state. Canada has acknowledged that its ``policy of 
engagement'' has failed to produce any significant change in the human 
rights situation on the island. Why should American tourists have an 
impact different from that of the thousands of Canadians who have been 
visiting Cuba for years?
    Castro wants the benefits of capitalism, without Cuban capitalists. 
Cuban workers are badly treated. Strikes and nongovernmental labor 
unions are forbidden. Foreign investors cannot hire workers directly. 
Sheritt, the Canadian nickel company, pays Castro $9,500 per year per 
worker; the regime pays the workers the equivalent of $20 a month. 
Castro has allowed some minimal reforms due to the economic crisis. In 
a perverse way, those who favor lifting the sanctions on Castro's terms 
will discourage any future economic or political reforms. The real 
embargo responsible for Cuba's misery is the Marxist, command economy 
that failed in the Soviet Union and every where else it has been tried.
    Castro goes to great lengths to restrict any number of rights of 
the Cuban people. Cubans are required to obtain ``an exit permit'' 
before leaving Cuba. Cuban citizens abroad must obtain a visa from a 
Cuban consulate before returning home. Cubans emigrating from the 
island are not allowed to buy plane tickets with pesos; they must have 
dollars. They are allowed to take with them only ``personal property,'' 
some clothes, etc. The government confiscates everything else: cars, 
furniture, electric appliances, kitchen utensils, etc.
    Before Cubans are allowed to leave the island they must pay several 
hundred dollars to the government in ``processing fees.'' Because most 
Cubans do not earn dollars, they depend on someone outside the island 
to pay the fees and to buy their plane tickets. A Cuban family would 
have to save all of its earnings for 10 years or more to accumulate the 
amount required to buy three plane tickets and pay government exit 
fees.
    There are many Cubans who have visas issued by the United States or 
other governments and who have money from family or friends abroad but 
are arbitrarily denied exit visas by the Castro government. Here are a 
few of their stories:
    Lazara Brito and her children Yanelis, Yamila, and Isaac were 
granted U.S. visas in 1996, but remain virtual hostages in Havana. 
Castro will not allow them to join her husband and their father Jose 
Cohen in the United States. Cohen, once a Cuban intelligence officer, 
was granted political asylum in the United States in 1994. Despite his 
appeals to Americans and international organizations who meet with 
Castro, his family remains in Cuba. They are not charged with any 
crime. Lazara Brito has written: ``neither I nor my three children can 
have legal representation. My husband, who is abroad, and I here call 
out for help from all who believe in human rights everywhere.''
    Blanca A. Reyes Castano son, Miguel Angel Sanchez Reyes, has lived 
in Miami since 1993. She has seen him only three times in eight years. 
Twice he came to Cuba, and once she visited him in the United States. 
Mrs. Reyes wrote: ``On 16 November 2000, after waiting for 63 days and 
having attained a U.S. visa to travel to see him, Cuba's Inmigration 
Department refused to grant me the required exit permit. They said they 
were following Cuba's laws. I asked, what laws do not allow a mother to 
visit her son? I have yet to receive an answer.'' Why would the Castro 
government deny her an exit visa? She is the wife of Raul Rivero, a 
dissident poet who is also not allowed to travel. Reporters Sans 
Frontieres, Amnesty International and other organizations have 
denounced the persecution, harassment and imprisonment of Cuban 
independent journalists and their families. ``One would have thought,'' 
she says ``that the solution is for my son to visit us in Cuba, but I 
fear for his safety. My brother-in-law who resides in Canada obtained a 
Cuban visa, but when he arrived he was placed under virtual house 
arrest. He wasn't allowed to see his 82-year-old mother or his brother 
Raul. Is it unreasonable to think that something like that would happen 
to my son if he returns to Cuba?''
    Iris Gonzalez-Rodiles Ruiz has not seen her son Greco in more than 
two years. She has yet to meet her first grandson, Rafael Diego, now a 
year old. Her daughter in law, Daniela, is a Swiss citizen. Cuban 
authorities denied her the required ``exit permit'' to visit her family 
in Bern to help take care of her grandson, who suffers from allergies 
and asthma and requires special care.
    ``The authorities refused to tell me the reason I am not allowed to 
travel abroad,'' she says. ``They claim they do not have to tell me 
why.'' She is an independent journalist.
    Ohalys Victores Iribarren is also an independent journalist. The 
authorities will not allow him to travel abroad because he writes for 
``media not under the control of the Cuban government.'' He says he 
does not wish to leave Cuba, ``but due to political reasons I am being 
forced to leave.'' He has a U.S. visa. His family already lives in the 
United States.
    For more than 10 years Oswaldo de Cespedes Feliu has challenged the 
Cuban government working four of those years as an independent 
journalist. Fidel Castro has referred to him on Cuban TV, mentioning 
his name. As a result Oswaldo says he and his family are ``very 
fearful.'' On March 15, 2001, at the International Airport Jose Marti 
in Havana the Cuban authorities blocked his departure for the United 
States. On April 25 his children and wife were allowed to leave, but 
the Castro regime continues to deny him the right to emigrate. He has 
been interrogated by State Security, and ``The authorities have turned 
a deaf ear to my petition to allow me rejoin my family in the United 
States.''
    In conclusion, let us not pretend that Americans have an absolute 
right to vacation in Cuba.
    U.S. policy toward travel to Cuba is correct when it takes into 
account Castro's denial of civil liberties in Cuba, his 42 years of 
allying Cuba with the world's rogue regimes and sponsoring anti-
American violence, and continuing efforts to manipulate American 
institutions and public opinion. Again, in 1984 the Supreme Court ruled 
that restrictions on travel to Cuba ``are justified by weighty concerns 
of foreign policy.'' That is true today as well. Defense of civil 
liberties in this country neither requires nor warrants spending 
American dollars to subsidize repression in Cuba.

    Senator Dorgan. The American Civil Liberties Union has 
provided testimony submitted by Timothy Edgar that we will make 
a part of the record.
    [The statement follows:]

 Prepared Statement of Timothy H. Edgar, American Civil Liberties Union

    Mr. Chairman, Senator Campbell and members of the subcommittee: On 
behalf of the American Civil Liberties Union (ACLU) we commend you for 
holding this important oversight hearing of the Treasury Department's 
Office of Foreign Assets Control (OFAC), which is charged with 
enforcing the government's restrictions on travel to Cuba.
    The ACLU is a non-partisan, non-profit organization with 
approximately 300,000 members, dedicating to preserving our freedoms as 
set forth in the Constitution and the Bill of Rights. We believe that 
the restrictions on travel to Cuba infringe on the constitutional right 
of Americans to travel freely across borders, and are not justified by 
any valid interest that could overcome that right.
    Last July, the ACLU supported an amendment to H.R. 2590, the fiscal 
year 2002 Treasury/Postal Appropriations Bill, that would have ended 
funding for enforcement of the restrictions on travel to Cuba. That 
amendment, offered by Representatives Jeff Flake (R-AZ), Jim McGovern 
(D-MA), Jerry Moran (R-KS) and Howard Berman (D-CA) was approved by a 
strong vote of 240-186. Unfortunately, the amendment was not included 
in the final legislation.
    As former Supreme Court Justice William Douglas observed, 
``[f]reedom of movement is the very essence of our free society, 
setting us apart. . . it often makes all other rights meaningful.'' The 
Supreme Court has repeatedly recognized that the right to travel is 
protected under the Fifth Amendment as a liberty interest that cannot 
be denied without due process of law. Moreover, freedom of movement 
allows access to information and encourages the free exchange of ideas 
and opinions, and thus implicates the First Amendment rights of 
Americans. Like the freedom of speech, association, and assembly, the 
right to travel promotes our democratic values of individual autonomy, 
truth-seeking, and self-government. For example, every person should be 
free to learn firsthand about the government of Cuba--and of the 
policies and activities of the U.S. government in Cuba--in order to 
participate meaningfully in the public debate on crucial foreign policy 
issues related to Cuba. When the Supreme Court considered restrictions 
on travel to Cuba in Regan v. Wald, 468 U.S. 222 (1984), it held by a 
narrow margin that the travel restrictions were permissible only in 
light of the overriding Cold War national security concerns asserted by 
the government, concerns that the end of the Cold War have rendered 
obsolete.
    Under current Treasury Department regulations, Americans are 
generally restricted from spending money in the course of their travel 
to Cuba--a subterfuge effectively restricting travel itself to Cuba. 
Foreign policy should not be implemented by methods that violate a 
constitutional freedom. As a general rule, the government should not 
restrict travel to a particular country unless it is in the midst of an 
actual military conflict.
    ACLU has received disturbing reports of increased harassment by the 
Treasury Department of American citizens and residents who have 
traveled to Cuba pursuant to current law. We urge the Subcommittee to 
determine whether stepped up enforcement of this misguided policy is an 
appropriate use of government resources at this time in our history. 
Ultimately, we believe Congress should put a stop to this unwarranted 
government intrusion into the freedom of American citizens and 
residents by adopting legislation to end the travel ban once and for 
all.
    When Americans travel abroad, they spread our values of freedom and 
justice and help advance the free inquiry of ideas and free flow of 
information beyond our borders. The collapse of Communism in the former 
Soviet bloc--nations to which Americans' travel was not restricted by 
the U.S. government--instruct that one way to bring about democratic 
change is through personal interaction and sharing of our democratic 
ideals. This principle has been the basis for the limited ``people to 
people'' contacts among Cubans and Americans allowed under current law. 
Ensuring the constitutional right of U.S. citizens and lawful permanent 
residents to travel will promote democracy and human rights in Cuba, 
not the government of Fidel Castro.
    There is no justification for restricting travel to Cuba simply 
because of its deplorable human rights record or lack of diplomatic 
relations with the United States. Americans currently are permitted to 
travel to such countries as Sudan and Iran, with which the U.S. has no 
diplomatic relations, which have poor human rights records and where 
Americans might face danger. The choice to engage in travel should rest 
with the individual, not with the government.
    Ending the Cuba travel restrictions would promote individual 
liberty and begin to reverse an unproductive U.S. policy towards Cuba 
by ending funding for limiting travel-related expenditures by United 
States citizens and lawful resident aliens of the U.S. when they travel 
to Cuba. We urge that you do so this year.

                         Conclusion of hearing

    Senator Dorgan. I thank you, Senator DeConcini, and you, 
Ambassador Hayes, for being here to testify. You know that this 
issue will have substantial attention by the Congress this 
year. We wanted to talk specifically about OFAC, the Treasury 
Department enhanced enforcement, but more broadly, as well, 
about the policy issues that underline all of these.
    We thank all of you, especially those who have traveled 
some distance to be here today. It will contribute to the 
debate in this Congress to have had this hearing.
    This hearing is now recessed.
    [Whereupon, at 12:25 p.m., Monday, February 11, the hearing 
was concluded, and the subcommittee was recessed, to reconvene 
subject to the call of the Chair.]

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