Advice: Give No Information and Pay No Fines!
During the early years of the Bush Administration, there was a near avalanche of news reporting on the harsh crackdown by the Bush Administration on Americans who travel to Cuba without licenses. The new enforcement policy is being carried out by the Office of Foreign Assets Control of the Department of the Treasury (OFAC). Typically OFAC takes one of two actions: 1) a "Requirement to Furnish Information" letter to the traveler demanding information on the traveler's suspected unlicensed travel to Cuba; or 2) a "Pre-penalty Notice" mailed to the traveler assessing a civil fine---often $7500 and based on OFAC's determination that the traveler spent money in Cuba without a license. The "Pre-penalty Notice" gives the traveler 30 days from the date of the letter to pay the fine or request an official hearing.
Everyone should know that they should refuse to give the self-incriminating information demanded in 1) above, and in the case of 2) above, they should ask for a hearing well within the 30 day period. There are form letters below prepared by the National Lawyers Guild for response to OFAC: one for 1) above in which the traveler refuses to give self-incriminating information; and another for 2) above in which the traveler requests a formal hearing.
If the record of the past
five years is any guide, after a hearing is requested OFAC will then file away
the case because no appeals hearings have been held, nor have any judges been
appointed to hold such hearings. Through the date of this posting, April 15,
2002, the legal processing of all such cases has stopped at that stage, and
therefore no fines have been imposed when the request for hearing was made on
Letters recommended by the National Lawyers Guild:
1) For reponse to an OFAC "Letter of "Requirement to Furnish Information"
U.S. Department of the Treasury
Office of Foreign Assets Control (OFAC)
Attn: Mr./Ms. ______________________
1500 Pennsylvania Avenue, N.W. (Annex)
Washington, D.C. 20220
FAX: 202 622-0447
Re: [INSERT YOUR NAME] (FAC #CU-[INSERT "CU" NUMBER FROM OFAC LETTER TO YOU]
Dear Mr./Ms. _______________________:
This letter is in response to your "Requirement to Furnish Information" letter to me, dated [INSERT DATE OF OFAC LETTER TO YOU] and received by me [INSERT DATE YOU ACTUALLY RECEIVED THE LETTER]. For the reasons stated below, I respectfully decline to respond.
OFACís regulations of transactions incidental to travel, and OFACís demand for information pursuant to such regulations are a violation of the rights of U.S. citizens to travel abroad, to seek information through foreign travel relevant to public issues, and to exchange information and views with foreign persons, all as guaranteed by the First and Fifth Amendments to the Constitution of the United States.
Furthermore, OFACís regulations regarding transactions incidental to travel, and OFACís demand for information pursuant to such regulations constitute discriminatory enforcement of the laws on the basis of national origin and political viewpoint, in violation of the First and Fifth Amendments to the Constitution of the United States. The imposition of any penalties is also discriminatory. Such conduct is arbitrary and capricious and in violation of the Administrative Procedure Act. In this respect, it is noted that substantial numbers of Cuban-Americans and others travel to Cuba with the knowledge of OFAC, in apparent violation of the Cuban Assets Control Regulations, but without consequence.
Furthermore, with respect to any further communication, I assert my privilege against self-incrimination under the Fifth Amendment to the Constitution of the United States.
2) For response to an OFAC letter of "Pre-penalty Notice"
R. Richard Newcomb, Director
Office of Foreign Assets Control
U.S. Department of the Treasury
1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20220
Re: Prepenalty Notices to [INSERT YOUR NAME]FAC No. CU-[INSERT "CU" NUMBER FROM LETTER RECEIVED FROM OFAC]
Dear Mr. Newcomb:
This letter is in response to the above-referenced Prepenalty Notice dated [INSERT DATE OF PREPENALTY NOTICE], which was received on [INSERT DATE NOTICE RECEIVED].
I deny each and every allegation in the prepenalty notice and request an agency hearing in Washington, D.C. with respect to the imposition of any penalty.
In connection with our above hearing request, I submit the following pre-hearing discovery request:
1. All documents in your files pertaining to this matter, including, but not necessarily limited to: Any records or evidence of the allegations made in the prepenalty notice;
2. Any correspondence or communications received from members of Congress within the past year which are related to OFACís enforcement of regulations pertaining to Cuba and OFACís response to said correspondence or communications;
3. A summary of penalties assessed and/or collected from Cuban Americans in the past five years for violation of the regulations limiting such persons to one family emergency trip to Cuba per year; and
4. A summary of penalties collected from persons subject to OFAC regulations pertaining to Cuba other than Cuban Americans in last five years.
This discovery request in ongoing, and will be supplemented from time to time as needed.
No one should be intimidated by the government's unconstitutional campaign against Americans' right to travel where they want, and everyone should know of the legal assistance program offered jointly by the Center for Constitutional Rights and the National Lawyers Guild. The program is called "Wall of Lawyers," and it is designed to assure legal assistance to any traveler to Cuba who suffers harassment from immigration officials or receives letters from OFAC as described above. In addition to using the Guild form letters, travelers can call the CCR at 212-614-6464 for assistance or National Lawyers Guild at 414-273-1040 Ex 12. CCR will either take your case or will arrange for a Guild lawyer to help you.
NOTE THAT AS OF SPRING OF 2014, NO CASES HAVE BEEN HEARD REGARDING TRAVEL TO CUBA FOR MANY YEARS.