Shaking Down American Travelers

A couple of years ago Los Angeles guitarist Ry Cooder made a documentary film in Havana called The Buena Vista Social Club. It was nominated for an Academy Award and was seen by millions of Americans. Some have said it has done more to improve relations between US and Cuba than 42 years of rhetoric by the politicians on both sides of the Florida Straits. An August 18 report in the Santa Monica Daily Breeze indicates that Cooder has now been fined $25,000 by the US Treasury Department for spending money in Cuba without its permission.

I say fight it, Ry. Although our Federal courts have not yet declared it, the 1981 Reagan Cuba travel restrictions became unconstitutional about 11 years ago when the Cold War ended. They have remained on the books because presidents Bush I, Clinton and Bush II lacked the political will to terminate them and our State Department has been using them to try to frighten Americans out of going to Cuba. In order for a court to declare them unconstitutional, our Justice Department would have to take someone to court to enforce them, which it has not done because its lawyers know it is very unlikely any judge would uphold them.

According to an Aug. 5 New York Times article by Frank Bruni, for the few Cuba travelers who receive enforcement letters (about 0.1% of the total), the theoretical fine for unlicensed spending is $250,000, the fine on paper but not practice is $55,000, the typical fine is $7,500, however Treasury accepts down to $700 in "voluntary settlement." Those who contest fines are entitled to an in-house hearing before a Treasury administrative judge, whose ruling would then be subject to a due process review in Federal court where the constitutional issue could be raised. However, Treasury apparently has no such administrative judges. According to an Aug. 18 NY Transfer article by John Hillson, while Treasury has taken in almost $2 million in settlements from the 379 Cuba travelers who were stupid or frightened enough to pay voluntarily, it has never conducted an in-house administrative hearing, much less taken someone to court.

In July the House voted 240-186 to stop funding enforcement, and the Senate will probably do likewise in September. Despite this, supposedly on Bush's orders, Treasury this summer has been stepping up enforcement by sending agents to airports in Toronto, Nassau and Cancun to try to spot Americans getting off flights from Cuba, where they are frightened and subsequently sent letters threatening fines. Some reporters have speculated it's some kind of political payoff to the Cuban American National Foundation. In Cooder's case, perhaps it's punishment for creating good will between Americans and Cubans.

In any event, fined Cuba travelers who become aware of the real situation are beginning to contest, and a large backlog of cases has been building up. Treasury is now claiming it's going to try to use EPA judges to conduct the hearings. At an Aug. 17 press conference, Sen. Byron Dorgan (D-N.D.), chairman of the subcommittee which funds Treasury, reprimanded it for its recent "heavy handed" and "unseemly crankup" of enforcement when Congress is about to repeal the "misguided Cuba travel prohibition". He also stated he was going to try to prohibit Treasury from using environmental judges to hear Cuba travel violations and concluded: "The law preventing US citizens from traveling to Cuba has not been aggressively enforced and is, on its face, an unjustifiable restraint on the freedom of travel ..."

The restrictions have often been used by customs officials to harass (but not prosecute) people our government considers politically incorrect, such as students and union representatives attending conferences in Cuba. Unconstitutional regulations and laws are illegal and void and should immediately be terminated or repealed. If questionably constitutional, they should be taken to court for determination as soon as possible. They should not be kept on the books for years in order to harass selectively, or to frighten and bilk the unwary when our government (but not the traveler) knows there will be no prosecution.

Last January our president took an oath to uphold our Constitution. He has plenty of good legal advice. If he truly represents us, Cuba travelers like Ry Cooder should be able to rely on his good faith in this respect.

Tom Crumpacker is a retired lawyer in Miami Beach, Fla.

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