Most Guild members are aware of the tightened U. S. restrictions on travel to Cuba and scores are actively involved in defending or counseling U.S. travelers to Cuba. The NLG’s Cuba Subcommittee has made this work a top priority. At the 2003 Guild convention in Birmingham, the Cuba Subcommittee presented a workshop on policy issues and practical working session to provide updates on the recent changes in the regulations and attempts at enforcement. This article summarizes and further updates these developments.

In response to a crackdown on travel to Cuba by the Bush administration in 2001, the Guild, and the Center for Constitutional Rights organized the "Wall of Lawyers" (WOL), a nation-wide network of lawyers willing to represent travelers targeted by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) for travel to Cuba. Through the WOL, a large percentage of Cuba-travelers contacted by OFAC receive advice and/or full representation from lawyers trained in this area. WOL provides ongoing updates, a network for brainstorming, and a brief bank.

Since October 2003, OFAC has appointed four administrative law judges (ALJs) to hear Cuba travel cases in the Washington, D.C. area, although two have already resigned or stopped taking cases. Two final decisions were issued as of February, 2005.

In January 2005 ALJ Robert Barton issued the first final decision in a "trial for travel" case. He reduced by some 90% the penalty against Craig Ostrem, a Minnesota traveler who went to Cuba in 1999, compared to the amount the government had originally sought (from $7,530 to $780). Judge Barton held that Ostrem was entitled to a series of reductions based on mitigating factors and no aggravating factors. An "extraordinary mitigating factor" was the Ostrem’s reliance on representations of a Canadian tour operator that the trip was a "fully hosted, completely legal dive." Ostrem is represented by Matthew Armbrecht, an NLG member from Minneapolis, who recently filed a request for review by the DOT Secretrary’s designee, the first step in the appeal process. The grounds for appeal range from Constitutional rights to OFAC’s violations of its own rules, and include issues not addressed by the ALJ, such as the fact that OFAC’s own guidelines state that OFAC should just issue a "warning letter" for the first illegal trip by a Cuban-American visiting relatives (or for a bank which illegally wired money to Cuba), but that OFAC should seek $7,500 for a first offense from other travelers subject to U.S. jurisdiction.

In a second case, NLG Atty. Kurt Berggren from Ann Arbor represented Michael and Andrea McCarthy of Port Huron, MI. ALJ Irwin Schroeder held a penalty hearing on December 6 after finding them in violation of OFAC travel restrictions based on prehearing motions akin to summary judgment. The McCarthys testified that their travel to Cuba was based on their religious convictions. They are both medical workers, members of the international Catholic peace organization Pax Christi, and they delivered medical supplies to a convent near Havana. On February 7, 2005 Judge Schroeder ordered that OFAC’s $7,500 proposed penalty against each of them should be reduced by some 65%, based on the nature of their trip, even thought no license had been sought, and their limited ability to pay (which OFAC had not recognized as a mitigating factor), still resulting in a combined penalty $5,250. An appeal is expected, and donations for their defense may be made out to the NLG Foundation, c/o Atty. Kurt Berggren, 412 E. Huron St., Ann Arbor, MI 48104.

In November, Milwaukee’s "Methodist 3" became the first to win complete dismissals of their cases, after ALJ Barton ordered OFAC to answer their counterclaims; OFAC instead agreed to dismissal of all claims with no admissions of wrongdoing. Six church members went to participate in the centennial celebration of their sister church in Havana in 1999. They brought counterclaims based on undue OFAC interference with religion, and discriminatory enforcement (both African-Americans were prosecuted, plus a white member who cleared U.S. customs between them, but the government failed to explain why the others three white members were not charged).

And shortly before their scheduled November 2004 trial in Florida on criminal charges with potential 15 year jail sentences, a couple from Key West who organized a sailboat race to Cuba won a complete victory, when a Federal Judge dismissed all charges. He ruled that their actions in organizing and promoting a regatta, without spending any money in Cuba, did not constitute willful violation of the Cuba travel regulations for travel service providers. Guild lawyers and the Cuba Subcommittee assisted in each of these cases.

There has been an apparent hiatus in new OFAC prosecutions in the months up to mid-February, 2005. A few cases have been initiated before ALJs as the five year statute of limitations was about to run, but otherwise almost all OFAC action has been focussed on sending expedited offers to settle cases for $1,000 each, even though most of these have never been processed even to the point of asserting probable cause that a violation existed, via a Pre-Penalty notice. Future trends are impossible to predict as the administration’s harsh rhetoric seems to conflict with a congressional majority to end the travel ban and expand at least "humanitarian trade" (food & medicines) with Cuba.

Meanwhile, the sharp restrictions in "licensed"options has significantly reduced US travel to Cuba, although a few categories such a professional research still exist. Since June 2004, even Cuban-Americans, who were making 120,000 visits a year, are required to apply for specific licenses, and then can only go once every three years, and only to see very close relatives. A major mobilization in Washington, D.C. is set for April 27^th, to show support for removing all of these restrictions.