Date: Tue, 4 Sep 2001 00:47:07 -0400
To: Matthew Gaylor <freematt@coil.com>
From: Matthew Gaylor <freematt@coil.com>
Subject: Shaking Down American Travelers [Ry Cooder]
Content-Type: text/plain; charset="us-ascii" ; format="flowed"

Published on Saturday, September 1, 2001
http://www.commondreams.org/views01/0901-02.htm

Shaking Down American Travelers

by Tom Crumpacker

 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 August 5 New York Times article by Frank Bruni, for 
the few Cuba travelers who receive enforcement letters (about .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 August 18 NY 
Transfer article by John Hillson, while Treasury has taken in almost 
$2,000,000 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 harassed, frightened and subsequently sent letters 
threatening large fines. Some reporters have speculated it's some 
kind of political payoff to the Cuban American National Foundation. 
In Ry Cooder's case, perhaps it's punishment for creating good will 
between Americans and Cubans.

In any event, many fined Cuba travelers 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 August 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 living in Miami Beach.
E-mail: Crump8@aol.com


Distributed without profit to those who have expressed a prior interest in
receiving the included information for research and educational purposes.
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