August 16, 2004

Office of Foreign Assets Control

Department of the Treasury

1500 Pennsylvania Avenue, N.W.

Washington, D.C. 20220

Attn:     Chief, Records Division

            Office of Foreign Assets Control, Treasury

            (Public Comment on Proposed Rulemaking for F.R. Doc. 04-13630)

Dear Chief of Records:

The Cuba Subcommittee of the National Lawyers Guild (the Guild) hereby submits the following comment to the already-enacted interim final regulations published in the Federal Register on June 16, 2004, which include changes to the Cuban Assets Control Regulations, 31 C.F.R. Part 515. The Guild and its members have provided representation to U.S. travelers who have exercised or desire to exercise their right to travel, to Cuba and other nations. In particular the Guild has helped to establish and continues to maintain a nationwide network of lawyers who provide such representation, and information on such referrals may be obtained through our webpage, www.nlg.org/cuba (all lower case). Based on both our experiences and our longstanding commitments, we strongly object to these regulations, which further limit U.S. travel to and exchange with Cuba.

The Guild objects to these changes for a variety of reasons, many specific to the particular changes which OFAC seeks to enact, but many applying also to the rules previously in place. We begin this comment with our general objections, and then address individual changes in the order in which they appear in the Federal Register notice.

First and foremost, the Guild objects to the new rules because they intensify the existing infringement on our rights which the Guild has repeatedly urged OFAC and its parent bodies to address and correct in the past. Since its founding in 1937, the Guild has maintained that restrictions of this type on people’s right to travel violate both the right to due process under the Fifth Amendment, and the interconnected First Amendment freedoms of speech, expression, information-gathering, and association. Each of these rights is fundamental to a democratic society – are each is injured when people are not permitted to travel. The Cuban Assets Control Regulations as they have existed were already a grave infringement on these rights. The interim final rule makes the exercise of these rights more difficult, costly, and rare. It is wholly unjustified.

This is not a case where our government is protecting its citizens and residents from being in harm’s way. U.S. visitors to Cuba generally experience a safe, welcoming and stimulating environment. To continue travel restrictions which began for political, not security, purposes over 40 years ago because a popular revolution sought its own sovereign course, inflicts grave injury upon our rights, not to mention the injuries to the people of Cuba.

The Guild also objects to the process by which the rules were adopted. OFAC has routinely made reference to the foreign affairs exemption from the requirements of the Administrative Procedures Act. But its notices of rulemaking have not asserted that the use of the exemption is required by any legitimate foreign policy considerations. We do not believe that the exemption properly applies in this case.

OFAC recognizes in the "Supplementary Information – Public Participation" section, p. 33770, "the importance of the issues addressed in these regulations…." The importance of the right to travel is agreed, but the urgency in further restricting it, 45 years after the triumph of the Cuban revolution, and only a few months before the U.S. presidential election, appears to lie in short-term political considerations. It is not apparently based on the long-range prospects for developing friendship and understanding between the peoples of Cuba and the United States. Such partisan objectives cannot validly support the expedited procedure utilized in this instance.

Nor, given this context and the recent history, is it possible to give much credence to OFAC’s avowed belief in the importance of "public participation." Recent changes in the regulations, to further restrict the right to travel, were similarly issued with invitations for comments, after the fact. In one prior instance, the provision for person-to-person educational licenses was revoked by a similar procedural "shortcut" to be immediately effective on or about March 24, 2003. OFAC invited responses afterwards, but was unable to honor its promise of posting those comments on its webpage due to overwhelming response. Of the well over 1,000 comments, we believe the large majority were negative, but in any case, we ask respectfully whether this outpouring resulted in OFAC making any change in its already-enacted regulations. In sum, we see an undemocratic process being used to further restrict our democratic rights to travel, dialogue and observe firsthand a unique political and social process taking place only a few miles from our shores.

Likewise, the Guild questions many of the premises upon which the rules are based. The President certainly may, as the basis for exercising the authority delegated to him by Congress pursuant to the Trading with the Enemy Act (TWEA), investigate and reach his own findings that differ from our own. Nevertheless the Guild remains convinced that some of the factual findings upon which these changes are based, as presented in the notice of regulation or in the May 1, 2004 report of the Commission for Assistance to a Free Cuba ("Commission Report"), lack a rational foundation. The Guild believes that not only the factual but the legal premises of some of the changes that follow are unsupportable, and that the resulting regulations actually exceed the powers delegated to the President by Congress, such as the new insistence that even fully hosted travel must be licensed.

A theme that seems to run through the new regulations is the replacement of general licenses with specific licenses. This has obvious and pronounced disadvantages in that the system for issuing specific licenses has been fraught in the past with delays, red tape, and wrongful denials. The expansion of specific licensing activity to cover areas traditionally governed by general licenses, especially the family visit provisions under which the majority of recognized legal travel to Cuba has taken place in the past, can be predicted to compound the problems of administrative overburden, error and delay.

Finally, in several places, the Guild has a particular concern with the transitional impact of the new regulations, since they are either explicitly retroactive, or ambiguous with respect to how they will be applied in the transitional setting. The Guild favors limiting any new regulations to strictly prospective application as a means of preventing the attendant harms to people who have already set plans in motion based on their reasonable beliefs that the old rules would continue in force, or at least that their existing rights and privileges under those rules would not be suddenly and retrospectively revoked.

The Guild strongly objects to OFAC eliminating the category of fully hosted travel. In doing so, OFAC fundamentally has changed the meaning of its entire scope of Cuba travel regulations. In the past, the Cuban Assets Control Regulations have never regarded travel per se as illegal, or even subject to regulation. Since 1982, OFAC has described travel to Cuba without any regulated financial transactions as "fully hosted." Such travel was permitted because the regulations were intended only to restrict certain financial engagements with Cuba, to which mere personal contact with the land or people of Cuba was irrelevant.

Under the previous regulations, a person who merely entered Cuba "unlicensed" and then departed would have been considered to have been acting lawfully. OFAC would have presumed otherwise, applying a now-rescinded presumption of guilt which the Guild and its members successfully opposed as being as unreasonable, illegal and unconstitutional. See § 515.420. At least in principle, OFAC would have permitted the presumption of guilt to be overcome by evidence to the contrary, the mere arrival on the island not being classified as being unlawful. Under the new interim final rule, such a person is considered to be violating the law. This is so even though the person has done nothing whatsoever to harm the interests of the United States, to support the government of Cuba, or to engage in prohibited transactions subject to TWEA.

Furthermore, OFAC appears to recognize that travel to Cuba is itself not a harm that the TWEA is intended to prohibit. It justifies its new regulation only by the assertion that most travel to Cuba involves transactions within the reach of TWEA and that therefore, for the sake of eliminating the administrative burden of sorting out the guilty from the innocent, it will no longer merely presume that those traveling to Cuba have engaged in restricted dealings, but rather make the travel itself a violation. The Guild believes that such regulation is unconstitutional. First, this intentionally overinclusive provision goes beyond the authority granted by Congress, and represents an overreach of presidential power. Second, even it had been authorized by Congress, this provision must be more carefully tailored because it seeks to penalize the exercise of a fundamental right.

Hence by changing the regulations to affect travel in and of itself, in the absence of any financial transaction whatsoever, OFAC is transforming its regulatory regime at the most basic level. For the first time, these regulations will directly prohibit exercise of a basic Constitutional right per se, without even the legal fig leaf of being ostensibly directed at incident economic transactions. Besides exceeding any Congressional grant of authority, it will impose serious and unwarranted burdens upon our simple right to travel. It also asserts a precedent that may threaten a broader range of civil liberties in currently unpredictable ways.

Moreover, OFAC’s rationales for the change are ambivalent and unpersuasive. They do not correspond with one another, with the language of other parts of the Cuban Assets Control Regulations, with the text of TWEA, with the reality of Cuba travel, or with the rationale stated in the report of the presidential commission cited as authority for the change.

For example, OFAC does not assert that all travel to Cuba necessarily entails illicit transactions, but it does now find that the vast bulk of travel to Cuba presented by the traveler as fully hosted, is actually not. (See third paragraph of "Background" section, p.33789.) It has never made such an assertion in the past, and does not indicate why it does so now. It is in fact worrisome that it may be drawing this conclusion from the effect of its own (former) presumption that travel is not fully hosted unless it can be proven so. Yet OFAC does not apply its new reasoning to cases begun under its former rules, since it claims only that "multiday travel in Cuba" gives rise to the inference of a violation, not any travel at all to Cuba. Likewise the Commission Report is limited in its claims to the assertion that "pleasure visitors" to Cuba, tourists generally but especially pleasure boaters, often falsely claim to be fully hosted. Nevertheless, the Report contains no finding that so-called pleasure visitors abuse the fully hosted classification universally, nor that other visitors do so ever.

In this regard, the right of U.S. legal counsel to visit Cuba in order to consult with clients there – without needing to apply for U.S. government permission, or suffering the delays and lack of confidentiality which such a process entails – is of particular importance to the Guild. As it should be to all who care about the right to counsel and to confidentiality in such relationships.

The other new argument presented as a rationale for the regulation is that all along it has been technically illegal for a person in Cuba even to receive free of charge, anything from a Cuban or even a third-country national. Traditionally, OFAC has justified travel restrictions on the basis that they were necessary to prevent the Cuban government from obtaining hard currency. OFAC had not attempted to prevent travelers from receiving gifts for free from the Cuban government, and it is obvious that such a new rule will prevent US travelers only from draining the Cuban economy of wealth. To say that it is illegal for a person subject to U.S. jurisdiction, who may not even be a U.S. citizen, to receive an "unlicensed" gift from a person in Cuba is an extraordinary attempt to exert U.S. government power over individuals. It will supposedly be an offense to accept an invitation to have dinner at the home of a newfound Cuban friend, or to sleep on his or her sofa overnight, to take a memento as a gift, or to receive Cuban health care or education – without a U.S. license in advance. This is an amazing intrusion into personal relationships with no rational basis to support it.

Nevertheless, the new rules go beyond this, to restrict even what American travelers in Cuba may receive from third-country nationals, such as traveling companions from other countries. In doing so, it is doubtful that OFAC is even acting within the TWEA. In so restricting those transfers that are the most remote from any legitimate government concern, OFAC thus appears to exceed any legitimate authority based on U.S. law or the Constitution.

The Guild also objects to the complete elimination of importation of goods from Cuba pursuant to a general license, as published in revised 31 C.F.R. § 515.560(c)(3).

The rule that became effective on June 30 is draconian in that it denies travelers to Cuba under a legitimate general license, for example a journalist’s license, the right to bring back anything other than exempted communicative material, that came from Cuba. Thus small gifts of negligible value, and essential items such as replacement equipment or supplies for the licensed activity, could not return with a traveler to the United States. This zero tolerance provision is likely to be innocently violated because it does not conform to what a traveler would assume to be the case using common sense. Section 515.560 of the regulations permits a traveler to purchase supplies for his or her own consumption in Cuba. This section does not warn that any excess not consumed in Cuba must be left behind. This is the effect of the new interim final rule.

Moreover, the absolute restriction codified in the interim final rule goes far beyond the directive summarized in the Commission Report, which notes (at page 29) that its concern is "almost exclusively rum and tobacco."

There is also a particular problem in the transition from the old to the new regulation. U.S. travelers in Cuba who had already purchased goods there with the intent to return with them to the United States would be forced to abandon those goods in Cuba or sell them at a loss. This represents an unconstitutional taking with respect to those goods. It also represents a bizarre inversion of the supposed rationale for the rule, which was to deprive the Cuban economy of anything of value. In this case, it provides a free windfall to Cuba at the expense of American visitors there.

It also presents a potential conflict with the regulations’ exception for informational materials. The allowance of at least a de minimis level of importation from Cuba would help avoid difficult questions posed when informational or artistic products are created by American visitors using domestic Cuban materials. For example, a photojournalist who replenishes his or her film stock would not be able to bring back rolls of film to the United States unless they were used. If any importation of non-informational materials at all is prohibited, then such a photojournalist would could be deemed in violation if he or she mistakenly left a single unexposed frame at the end of a roll of film.

Also, the proposed change to section 515.560(f) would limit a traveler’s baggage to 44 pounds unless the traveler receives special authorization from OFAC or from the Department of Commerce. This regulation affects property owned at all times by persons subject to the jurisdiction of the United States, and imposes what may be a severe limitation. Conventional airlines generally permit a passenger to bring over 100 pounds of baggage on international flights without any charge beyond the base fare, including roughly 40 pounds of carry-ons. The proposed limit would be a fraction of this. A small luggage case and a laptop computer may together consume most of the new limitation (e.g., the Acer Aspire 1711 SCi, 7.1 kg; Targus Universal rolling case, 11.7 lbs.)

It also adds to the administrative burden borne by OFAC. As noted elsewhere in these comments, the delays associated with the procurement of specific licenses pass the hardships on from the licensing agency to the individual travelers and this impose an inconvenience on innocent members of the public seeking to exercise their constitutional right to travel.

In the final interim rules for 31 C.F.R. § 515.561, OFAC replaces the general license for annual visits to close relatives with a much more limited system of specific licenses for one trip of up to 14 days every three years. In the case of visits to non-Cuban nationals, only certain emergencies may qualify a traveler for a license, and then only when it "supports the mission" of the U.S. Interests Section in Cuba. The revised rules now allow for visits only to see very strictly defined "immediate family," which now excludes most relatives that were previously recognized as "family." A related change to § 515.560(c)(2) drastically reduces the money which visitors to Cuba are allowed to spend each day pursuant to a valid family visit license.

First, OFAC dramatically limits the frequency of family visits, and sets a new limitation on the duration of such visits. Under the old regulation, a Cuban American family under general license could spend a virtually unlimited time in Cuba, provided the visits are no more than annual. In contrast, the interim final rule means that each time a Cuban American contemplates a trip to Cuba to visit close relatives, he or she will have to go through the time-consuming, erratic, and administratively overburdened specific licensing procedure. Whereas OFAC has stated publicly that the current procedure for specific licensing of additional family visits in any given year has been pro forma up to now, it is hard to believe given the generally restrictive nature of the new rules, that this procedure would not be fairly rigorous in the future.

The iron-clad limitation of travel to one visit per three years is also extraordinary. In effect this means that a person traveling under a family visit license is barred for the next three years from returning under another family visit license, no matter what happens in the intervening three years. Under the old system, a traveler could make unlimited applications for specific licenses to cover any emergency need that might arise. To the extent that such requests were treated as pro forma, the inconvenience imposed was minimal. Now, no manner of emergency will authorize a return visit until the mandatory three years have passed.

This means that a visitor will be able to attend the wedding of at most one sibling every three years. It means that one can choose to be at the bedside of a dying parent, but if the parent holds out for a fortnight on his or her deathbed, the visitor will miss the funeral. It means that one wishing to be present at the release of a husband who is a jailed "dissident" will be unable to do so if the scheduled release is delayed by the Cuban government for 14 days. No exceptions or discretion are allowed. Period.

Finally, it meant that those who were in Cuba on general licenses to visit close relatives when the regulations were issued were compelled to attempt a mass exodus from Cuba as the rules’ effective date approached, or face serious penalties. This caused a needless humanitarian crisis. It also means that among these travelers, even those who would otherwise have been eligible for licensed family visits, will apparently be barred from returning to Cuba for the next three years.

The Guild likewise objects to the new limits on travel to visit non-Cuban nationals. Prior to 2003, OFAC rules governing family visits did not distinguish between visits to Cuban nationals and others; after that time, visits to non-Cuban nationals were required to be specifically licensed. The new rule creates four additional conditions that must be met in order for a specific license to be issued.

First, the person visited must be in Cuba pursuant to OFAC authorization. This means that while a person whose immediate family member is neither a Cuban national nor subject to the jurisdiction of the United States may not be visited while in Cuba. If one’s Mexican or Canadian parent (not otherwise subject to U.S. jurisdiction) is mortally injured while traveling in Cuba, no visit is authorized. This appears to be an oversight on the part of OFAC. There certainly is no reason to think that the value or importance of visiting one’s immediate family member should be dependent generally on nationality.

Second, there must be an exigent circumstance. Such a circumstance is nowhere defined in the regulations and improperly vague.

Third, that circumstance must have been reported to the U.S. Interests Section in Havana.

Finally, the license may only be issued where "issuance of the license would support the mission of the U.S. Interests Section in Havana." As a preliminary matter, this requirement is vague and ambiguous because "mission" has a common language meaning of objective or agenda, and a particular diplomatic meaning where a country’s ambassadorial presence is also known as its "mission." What it means to "support" the "mission" is therefore extremely unclear, but would seem to require agreement with or assistance to the Interest Section’s staff or its agenda of changing the character of the Cuban government. It is hard to imagine when or how one could ever establish that visiting a family member would itself meet this requirement. It also seems unreasonable and superfluous to impose such a condition on a license category already limited to emergencies, and it finally, it is unquestionably an open door to the unconstitutional discrimination against some travelers based on their political viewpoints.

OFAC’s interim final rule changes its regulatory regime by strictly circumscribing what it considers to be a traveler’s family for purpose of the family visit license category. The rule excludes under its definition of "immediate family" a traveler’s ex-wife, or cousin, and maybe even half-sibling. It is unclear what effect it would have on common-law, adoptive, or non-custodial biological relationships. But regardless, the notion that such close relatives cannot be under any circumstances licensed for family visits to that person imposes a notion of family that is abnormally limited even for North American nuclear households. It certainly has little relevance to Cuban society, where more extended family relationships may be attended by considerable attachment. In the case of ex-spouses, it would inhibit efforts at reconciliation that are strongly favored by public policy.

Just today, a person under U.S. jurisdiction requested a referral for legal representation from the Guild’s attorney network, in order to try to fulfill his commitment to see his fiancé in Cuba, which has now been made illegal. He wrote eloquently: "It is ironic that as our government criticizes other governments for repression, it in turn imposes one of the worst forms of repression, that of keeping you from your loved ones."

There is no reason to automatically deny license applications from persons seeking to visit close relatives other than those within the new definition of "immediate family" but with whom they share a genuine family bond. This is particularly true because the general license is eliminated by a subsequent provision of these rules (see below) and so all family visits are to be licensed on a case-by-case basis.

Likewise, the elimination of the rule allowing members of the same household to visit relatives of their housemates might be a reasonable adjustment to the regulations if it appeared in isolation. But in the context of a specific rather than a general licensing regime, there seems no reason for this restriction, and in fact it seems especially harsh given the proposed redefinition of family.

Finally, the interim final rules place a special burden upon those seeking to visit immediate family that they must survive in Cuba spending about one third of what other travelers are permitted to spend, on the apparent presumption that they will obtain food and shelter free of charge from family. This is a 180-degree reversal from previous regulations that conditioned family visits on the humanitarian needs of the family members in Cuba. Now it is presumed that all Cuban families to be visited will be able to support foreign visitors. This will, in fact, depend on circumstances and it is quite likely that the strict per diem limits will be prohibitive for many travelers who will not be able to rely on such support.

The Guild also objects to new interim final rules "clarifying" that general licenses granted in the professional research category do not authorize attendance at professional conferences at which others’ research is presented, and that professionals who otherwise may travel freely to Cuba to conduct research must seek a specific license to attend a conference. This change is unnecessarily restrictive and places new burdens on the administrative licensing process.

This must be seen in the context of OFAC and the State Department suddenly re-interpreting the then-existing regulation, as of late February or early March 2004, to decree that a professional could not be deemed to be fulfilling the requirement of doing academic research in Cuba by attending a professional conference in his or her field. Thus, some 100 U.S. neurologists, medical ethicists and other experts in treating persons in comas were summarily denied general license treatment this March, based on the spurious grounds that research in their field could not be accomplished in a specialized International Conference on Coma and Death, featuring experts from Cuba and other nations. What gives OFAC the expertise to delineate where and when full time professionals can learn about comas, or any other field of expertise – more than the practitioners themselves can determine?

This interpretation, now written into the new regulations, is an affront to academic freedom, freedom of association and the free exchange of ideas. It further harms the people of the U.S., including those who might be treated by these health care professionals recently denied such a learning opportunity at the last minute. It is not likely, nor does OFAC assert any finding, that general research licenses have been abused by travelers’ attendance at conferences in their fields.

The shift of power to OFAC to make such an assessment is also an opportunity for abuse. The fact that the May 1 report of the Commission for Assistance to a Free Cuba, whose recommendations underlie this round of regulatory changes, calls for educational and family visits to be conditioned on direct assessments of whether those trips "promote the foreign policy goals of the United States" gives reason to suspect that licenses may be granted or withheld based on an OFAC agent’s assessment of the political content of a conference.

OFAC’s new interim final rules make a number of changes which almost eliminate the ability of American students to travel to Cuba for educational purposes. This follows the Commission Report’s claims that such licenses have often been abused for "disguised tourism" and that the majority of educational travel is "highly controlled by Cuban state security officials" and has little merit in terms of genuine interaction with the Cuban people. The Guild rejects these assertions as being factually inaccurate and a further affront to academic freedom and our First Amendment rights. Does OFAC and the Commission know more about running academic study programs than those hired to do so at our most prestigious universities? Or do they merely wish to prevent U.S. students from having their own direct experiences with the Cuban people, which is almost universally accessible, especially for U.S. students with some command of the Spanish language. Therefore the Guild strongly objects to the new regulations’ severe limits on educational licenses.

First, the new rules eliminate travel licenses related to secondary school education, which is completely unwarranted.

Second, the duration of licenses is shortened from two years to one. This means that legitimate programs which are currently renewed every two years would need to be renewed twice as often, which essentially just doubles the work required of OFAC’s licensing agents, not to mention the burden imposed on educational institutions.

The interim final rules are pointlessly restrictive. Under them, students who transfer between universities or are legitimate visiting students at schools other than their degree-granting institutions, may not travel to Cuba under those schools’ licenses. Likewise, employees’ use of a school’s license is limited to full-time permanent employees, even as universities turn increasingly to part time and temporary workers, including even instructors. The regulation seems arbitrarily intent upon placing whatever obstacles possible on Cuba travel.

But most importantly, the bulk of education-related activities which have taken place in recent years will no longer be allowed under this section, due to the new requirement that the program last an entire "term" (whatever this means), and in no event less than ten weeks. This is extremely problematic because most educational travel, long recognized as beneficial, does not entail such length. E.g., long-established architectural tours to Cuba (including Havana, recognized by UNESCO as a world heritage site) can no longer continue for students of architecture, unless they last 10 weeks or longer, which very few do. A trip abroad certainly does not need to last ten weeks to have substantial educational merit, and many programs occur in summer or winter interim periods for no reason more sinister than to avoid disrupting the regular semester schedule of classes.

Again, the way the new regulation is to be implemented in the transitional period leads to logical absurdities. By grandfathering travel on existing licenses only if the travel is completed by August 15, 2004, some travelers will be forced to return early, but only because the regulation views them as otherwise not staying long enough!

The Guild objects to changes in 31 C.F.R. § 515.567 which replace the old general license category for international sports federation competitions with a specific license system and eliminate altogether the license provisions for clinics and workshops. These changes will only unnecessarily restrict Americans’ right to travel to Cuba and burden the licensing process. It might be noted as well that the only specific reference made to sports-related travel in the Commission Report is part of a recommendation for increased cultural exchanges (page 117).

Finally, the interim final rule dramatically reduces the quarterly limit on remittances to Cuba, and allows them only when they are sent to members of the remitter's newly and narrowly defined immediate family. The Guild objects to the closely related changes in 31 C.F.R. §§ 515.560(c)(4)(i), 515.570(a), 515.570(d)(i) and 515.572(a)(3).

In conclusion, the Guild strongly opposes this attack on our Constitutional right to travel, which severely compromises fundamental values such as academic freedom and the sanctity of family relationships. We would greatly appreciate OFAC not only posting these comments on its website, but also considering these along with hundreds of others being submitted. Finally, we would appreciate any evidence that OFAC is considering this after-the-fact process in good faith, and we look forward to notice from OFAC of what, if any, changes will be made based on this input.

Thank you for your attention to this matter.

Sincerely,

Arthur Heitzer,

Chair, Cuba Subcommittee

National Lawyers Guild