In April of 2009, the Obama Administration issued a Press Release announcing a series of changes in US policy dealing with Cuba. Among other things, it directed the Secretaries of State, Treasury, and Commerce to take steps to lift all restrictions on transactions related to the travel of family members to Cuba and to remove restrictions on remittances to family members in Cuba. While the action did not lift the Embargo on All Trade with Cuba that has been in place since February 3, 1962 when President Kennedy issued Proclamation 3447, it did ease prohibitions that have restricted Cuban Americans from visiting their relatives and has limited what they can send back home. The Entry and Exit Requirements issued by the US Department of State for travel to and from Cuba restrict such travel to only a small segment of US citizens: those with close Cuban relatives, journalists, government travelers on official business, and professionals doing research.
Pressure is now mounting on other fronts to lift the embargo on trade with and travel to Cuba. In the US Congress, legislators have introduced bills aimed at the Cuba trade embargo. In January, Rep. Jose E. Serrano [NY-16] introduced H.R. 188 to lift the trade embargo on Cuba. Both the US Senate and House have pending bills entitled the Freedom to Travel to Cuba Act. In February, Sen. Byron L. Dorgan (ND) introduced the Senate version, S.428 and Rep. William D. Delahunt [MA-10] introduced the House version, H.R.874.
And now, in Brooklyn, in the US District Court for the Eastern District, there is pending a lawsuit challenging US policy over trips to Cuba by American citizens. That policy, enforced by the Treasury Department’s Office of Foreign Assets Control (OFAC), requires people suspected of travelling to Cuba to disclose detailed information about money spent during their travel under threat of civil penalties and imprisonment. Americans suspected of traveling to Cuba without official approval can be ordered to disclose how much money they spent there. The lawsuit says the policy forces travelers to incriminate themselves, since by complying you are admitting you broke the law which makes it illegal to spend US currency in Cuba. The complaint was filed in U.S. District Court in Brooklyn by the Center for Constitutional Rights, a non-profit legal advocacy group. Click here for the complaint.
The plaintiff in the lawsuit is Zachary Sanders, a Brooklyn resident and New York attorney who travelled three times to Cuba from 1998 to 2001. In 2000, OFAC directed that he answer its “Requirement to Furnish Information” about his travels. Sanders refused to answer and challenged the legality of OFAC’s actions in administrative proceedings. An administrative law judge rejected Mr. Sanders’ claims and ordered him to pay a $1,000 fine, not for traveling to Cuba, but for failing to comply with OFAC’s demand for information. Sanders appealed the fine in 2008, and the Department of Treasury then increased the fine to $9,000.
Paragraph 10 in the Preliminary Statement of the complaint states: ”The penalty imposed against Mr. Sanders is unlawful because the Fifth Amendment prohibits the government from punishing failure to obey any regulation that requires a self-incriminating act.” The Center for Constitutional Rights represents the plaintiff and seeks a declaration that OFAC’s policy is unlawful, enjoining OFAC from issuing such penalties and setting aside the fine to Sanders. The lawsuit names Treasury Secretary Timothy Geithner as a defendant.
For more, see American Sanctioned By U.S. After Cuba Visit Files Suit in the WSJ Law Blog.