"Trials for travel" continue in Washington, D.C., while Congress backtracks

By Shauna Harrison, and Art Heitzer

Starting in October 2003, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) appointed several administrative law judges (ALJs) to hear Cuba travel cases in the Washington, D.C. area. Since October 2004, five "trials for travel" have been held, including three during the month of June, 2005. A network of attorneys set up by the NLG Cuba Subcommittee and the Center for Constitutional Rights (CCR), nicknamed the "Wall of Lawyers" (WOL), has provided representation. CCR Atty. Shayana Kadidal handled all three cases heard in June. For the most part, constitutional claims have been asserted and preserved but not fully litigated in these hearings, and a number have tended to focus on mitigating circumstances and the reasonableness of OFAC’s guidelines and proposed penalties in individual cases, including based on how OFAC has treated different types of Respondents.

On June 21, 2005 ALJ Irwin Schroeder held a penalty hearing for Respondent Jennifer Kennelly, a Massachusetts traveler who purchased a ticket to Cuba through Travelocity, the online travel provider. OFAC guidelines require travel agencies to obtain a special license to provide travel services to Cuba, although Travelocity did not have such a license. OFAC’s Michael Neufeld asserted that Travelocity and American Airlines had glitches in their systems, thus allowing individuals to purchase tickets to Cuba for a short period of time.

As Craig Ostrem (a Cuba traveler whose proposed penalty was reduced by 90% after his hearing in October 2004) had testified, a traveler reasonably relies in good faith on a travel agency to make travel arrangements in the same way that one assumes that a plane is properly equipped before taking flight. Kennelly and her counsel argued the same.

CCR attorney Kadidal also argued that Ms. Kennelly lost her ability to sue Travelocity for negligence, and her first attorneys for malpractice, because a three-year statute of limitations had passed while OFAC inexcusably delayed in appointing any judges or in otherwise prosecuting its claims against her. He also argued that serious medical conditions which prevented her from working for the last three years constituted a substantial mitigating factor. Ms. Kennelly also testified in her defense.

In another case, Respondent David Heslop allegedly traveled to Cuba from Charlotte, North Carolina via Cancun. On his return, he was stopped by U.S. Customs at the Charlotte airport under suspicion of travel to Cuba. Mr. Heslop was referred for secondary inspection and was then pressured to complete a document detailing his travel to Cuba including information regarding his travel-related expenditures.

During the hearing, a former U.S. Customs Agent testified for OFAC that a traveler is not in fact required to complete such a form during inspection at the point of entry. Prior to Mr. Heslop supplying such information pursuant to the Customs Agent's directive, the only information the government had about his trip was suspicion of travel based on stamps in hispassport that resembled entrance stamps used by Cuban officials. CCR has argued that this evidence should not be allowed or relied on to prosecute him, since it was coerced. Mr. Heslop was present at the hearing but did not testify.

In a number of cases where the 5 year statue of limitations for both criminal and administrative prosecution has not run out, CCR has brought motions to stay the proceedings until after the statue of limitations has expired, so that the Respondent traveler will not be forced to testify when there is a risk that such testimony may be used against him or her in a later criminal case. As a result discovery against the traveler has generally been stayed.

In a third case, Zac Sanders, who is now an attorney, allegedly traveled to Cuba without a license, but this case against him was based on his alleged failure to respond to an OFAC a questionnaire (called a "Requirement to Furnish Information," or RFI) demanding details about his travel, including re his expenditures, and identification of fellow travelers and those who made his travel arrangements. Even though violations of these travel sanctions can result in both administrative fines and criminal penalties, the standard RFI demands responses without advising that the recipient has any rights, and OFAC regulations and guidelines threaten Respondents with penalties of $10,000 for simply failing to answer. OFAC’s RFI also demanded that he sign and date every page. (A form response to RFIs can be found at www.nlg.org/cuba.)

OFAC's deadline for responding to the RFI is 20 days, making it difficult for Cuba travelers to find legal help before responding. Mr. Sanders was unable to find a lawyer within the short window allowed. OFAC alleges that he failed to timely answer, and is seeking a $10,000 penalty. Atty. Kadidal has filed a motion to dismiss, and also filed class action civil case, asserting that OFAC’s actions and regulations conflict with the fifth amendment right to not have to give evidence against oneself.

CCR’s Kadidal is a leading member of the WOL network of lawyers who represent Cuba travelers in the administrative process, and beyond. WOL still needs lawyers, especially in certain regions and will provide free training and materials. If interested or for other news, please contact the Art Heitzer (414) 273-1040, ext. 12, aheitzer@igc.org; CCR’s Marc Krupanski, mkrupanski@ccr-ny.org, (212) 614-6470; or visit www.nlg.org/cuba.

Backward votes in the House and Senate on the right to travel

Meanwhile, opponents of these travel restrictions suffered a series of defeats in Congress in June, 2005, including the "defection" of several Republican representatives who have been members of the House Cuba Working Group which was set up to normalize relations and remove these restrictions. (See www.lawg.org for lists of how members of congress voted, including those who switched and those who have recently received contributions from supporters of these restrictions, such as the "U.S.-Cuba Democracy PAC".)

Since the House leadership will not allow the right to travel to be voted on directly, a number of amendments were presented on June 30^th to bar any funds from being used to enforce aspects of these restrictions on travel to Cuba. Representative Jim Davis (D-FL) introduced an amendment to the Transportation-Treasury Appropriations bill to effectively rollback the 2004 regulations barring Cuban-Americans from visiting even their closest family members in Cuba more than once every three years, and then only for two weeks. There are no exceptions for deaths, births, or any type of family emergency. The policy also prohibits travel to visit aunts, uncles, cousins, nieces, nephews, or even step-family. On the closest of these votes, the amendment failed 208-211. An identical amendment passed last year 225-174. More than 20 Representatives who had supported the bill in the past, in addition to the majority of the new House members (primarily GOP freshmen), voted with the administration to defeat the amendment.

Representative Barbara Lee's (D-CA) amendment to allow for educational exchange, lost 187-233. And Representative Charles Rangel's (D-NY) amendment to end enforcement of the overall travel restrictions and the U.S sanctions against against Cuba, also failed, 169-250.

On June 15th the House voted on Rep. Flake's (R-AZ) amendment aimed at easing restrictions on gift parcels sent to family members in Cuba. Although the amendment passed comfortably 221-194 last year, it failed by a narrow 210-216 margin. Confusion about the purpose of the amendment may have been generated by a mysterious document that floated around the floor prior to the vote erroneously describing the amendment as allowing "unfettered trade with the communist regime of Cuba with no Administration oversight of said trade." At the bottom of the document was the name of Chairman Frank Wolf (R-VA), but he told the newspaper that never authorized it.

The Senate voted on an amendment introduced by Senator Dorgan (D-ND) to permit humanitarian exceptions for travel to Cuba. The amendment would allow Cuban-Americans to apply for licenses from the OFAC to visit immediate
family in Cuba during family emergencies. A point of order was raised against the amendment because it was not germane to the Interior Appropriations bill where it was introduced. A motion to suspend the rules takes two-thirds of the senators present to go forward with the vote. The vote was 60-35; we needed 64 votes to suspend the rules. Thus, a clear majority of the Senate appears to continue to support at least loosening these restrictions, as had been true in the House in prior years.

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Ms. Harrison monitors the Cuba travel hearings in Washington, D.C.; Art Heitzer chairs the NLG Cuba Subcommittee, and helps coordinate the Wall of Lawyers network defending US travelers to Cuba.