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InCUBAtion: The Plan Hatches

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Cancun, Mexico – Although most people, including immigration officials, never seem to notice, in the front of all passports issued by the United States of America, is written in English and then French, “The Secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection.”

Maybe it sounds less abrasive in French. To me, this condescending and demanding statement seems like a preamble to the hard-headed, unilateral foreign policies of the US government of the last 5 years. Surely the US does not extend these requests to nationals of other countries. So what makes us so special? Oh, I forgot. We are Americans.

Ironically, the only time during my world travels when I have been delayed or hindered at a border, issued threatening statements, asked intimidating questions and been subjected to unwarranted or illegal searches is when I have been returning home to US soil from abroad or even in the my own country at federal checkpoints. But that is another story.

By reading the above statement on the US passport I would conclude that it is legal for US citizens to travel wherever they please, so long as they are not prohibited from traveling inside the potential hosting country. With this assumption in mind I have visited 45 countries in the last six years without any major problems being admitted via customs and immigration, with visas or with border crossings.

It is the 46th country which is giving me trouble.

Actually, this country has made it as easy as possible for foreigners to visit without changing their unique socialist economic structure. It has been precisely the country that requests unhindered passage for its citizens into all other countries which has made it so difficult for me to visit this country. That’s right; the alleged ‘Land of the free’ does not want me to visit one of our closest and friendliest neighbors, Cuba.

Although the right to travel is not specifically guaranteed in the US constitution, federal law and case law have set numerous precedents throughout US history so that the right to travel is now firmly established by the government. Example: The US Supreme Court, in Shapiro v Thompson, 394 U.S. 618 (1969), stated that "it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all.” Some speculate that the right to travel is so fundamental that the framers of the Constitution may have felt it wasn’t even worth including.

Therefore, this week I am invoking my constitutional right to travel freely and I will be traveling freely to the country of Cuba. Period.

I had always wanted to visit the land of Castro, one of the only successful and few remaining long-term socialist regimes. The question was: When and how? When? Now. How? Well, it all sounded simple enough when I embarked on a ‘traveling to Cuba.’ internet search and found hundreds of agencies advertising their services. But as Yoda always said, “Easy, it is not.” The US government has made it virtually impossible for its citizens to travel directly from the US to Cuba.

I had heard the only plausible way to visit Cuba was to fly via a third-country. While there are a few direct flights and rejected-refugee rubber rafts leaving from the US and heading directly to Cuba, there is not a chance in hell a US citizen would be able to board one of these planes under this administration unless they are a Cuban immigrant or have gone through the exceedingly difficult task of obtaining a ‘license’ from the US government. These licenses are supposedly issued to journalists, athletes, researchers, fully-hosted travelers, business travelers, members of educational institutions and a few other categories. However, under Bush these licenses have become next to impossible to acquire.

The bottom line was I couldn’t fly from the US to Cuba. Perfect, I am not in the US anyway. The more I looked around online though the more seemingly intense regulation against US citizens traveling to Cuba I came across. I went to one of my favorite travel websites, the US State Departments Travel Warnings page. There I came across the following:

Cuba

December 06, 2004

COUNTRY DESCRIPTION: Cuba is a totalitarian police state, which relies on repressive methods to maintain control. These methods, including intense physical and electronic surveillance of Cubans, are also extended to foreign travelers. [Author’s note: Electronic surveillance is a repressive control method? I agree. But hasn’t the Bush administration spent the last several weeks trying to convince us that governmental spying on and surveillance of its citizens are perfectly acceptable and even vital for national security? But I digress.] Americans visiting Cuba should be aware that any encounter with a Cuban could be subject to surreptitious scrutiny by the Castro regime's secret police, the General Directorate for State Security (DGSE). Also, any interactions with average Cubans, regardless how well intentioned the American is, can subject that Cuban to harassment and/or detention, amongst other forms of repressive actions, by state security elements. The regime is strongly anti-American yet desperate for U.S. dollars to prop itself up.

The description continues so. The anti-Cuban governmental propaganda and bias in this supposed ‘description’ is hardly concealed. I was shocked at first and then even more intent on visiting. But I could tell the US government was fairly intent on keeping as many of us at home as possible, so I decided to find out what the actual laws are and what types of penalties exist for those who decide to skirt them laws and travel to Cuba anyway.

Cuba has been under economic embargo in various forms from the US since 1960. Under the Trading With the Enemy Act of 1917, which was enacted during World War I to prevent Americans from taking part in economic transactions with countries with which the US is currently at war. The civil fine the US government currently threatens to levy for breaking the embargo is a handsome $7,500 for the first offense and $10,000 for each additional offense. A further 1996 law called the Helms-Burton Act allows for fines up to $50,000 and the possible confiscation of property. Those all sound serious enough to make someone think twice about the consequences of a short visit to Cuba. But a violation of the Trading with the Enemies Act is a much bigger crime. Because it is considered an infringement on national security with wartime enemies, and therefore treasonous, theoretically one could be charged up to $250,000 and be sentenced to ten years in prison. Wow. To top it all off, rumor has it if one was caught traveling to Cuba, they would never be able to work for the federal government. Now that one really hurts.

So those are the laws. Now how do I break them?

An interesting twist to the law that many do not know: It is not actually illegal for a US citizen to travel to Cuba, even if they are not legally licensed. Just being in Cuba does not violate the embargo. A monetary transaction of some sort must take place. So technically I could travel to Cuba for as much time as they would have me. And as long as no money changed hands I wouldn’t have broken the law or be subject to fines. But realistically, how is this possible? The government knows people are bound to spend at least some money, and therefore break the embargo. However, this loophole is what many US citizens use to travel to Cuba. They buy an all expense prepaid tour through a third-country travel agency in, let’s say Canada (obviously it would be illegal to go through any agency in the US so there are no agencies which offer packages). They pay the agency in Canada for the trip and the agency in Canada pays the Cuban service providers. No embargo busting. Technically this is still illegal, however, because obviously the tourists will spend some money in Cuba. And they are traveling without a valid license. But it is much more difficult for the US to trace them then if they flew from the states. However, for the independent traveler this kind of tour is not only cost-prohibitive but incredibly stifling. I certainly don’t want to be bused around in a package-tour group, constantly getting on and off the bus according to some printed schedule, while traveling only from tourist hotel to private beach that doesn’t allow Cubans to bathroom stop for granny then back to the tourist hotel. What is the point of going to Cuba if there will be no interactions with Cubans?

There is, or I should say was, another way to visit Cuba without spending any money. Under the Clinton administration, ‘fully-hosted travel’ was licensable. Basically, if you could prove that a third party, somebody in Uzbekistan for example, was paying for your entire vacation to the island, the government would allow you to travel there legally licensed, which would be the best way to go. Another stipulation within this regulation was that if goods and services were provided free of charge by somebody in Cuba – thus no money was being rendered to anybody in Cuba – one would be entitled to travel there under the law. My idea, if I was caught on my way back across the border, would be to admit that, yes, I had been to one of the ‘Axis of Evil’ countries, but my trip was entirely paid for by…the family of Rafael Palmeiro, a famous Major League Baseball player from Cuba. It would indeed be difficult for the US government to prove that had not been the case. My plan finally seemed flawless and I was ready to roll.

But hold that thought. Then I read that in June 2004, President Bush had tightened the OFAC (the Office of Foreign Assets Control – the office under the Department of the Treasury which enforces the Cuban embargo) regulations. Apparently, every new administration which takes control of the US government takes on the extremely inefficient duty of reversing all initiatives undertaken by the previous administration. In Bush’s case, by the end of 2003, he had eliminated all groundbreaking steps taken by the Clinton administration to make travel for US citizens easier to Cuba, and even more regrettably, to send money and humanitarian aid there from the US. Additionally, among several other changes to OFAC regulations, the Bush administration prohibited fully-hosted travel. So I was out of luck with my idea of being hosted in Cuba by my good buddy Jose Canseco. Also sadly changed were the amount of visits which can be made to relatives in Cuba by close family in the US from once per year to once every 3 years. Educational visits were also restricted as were visits for sporting competitions. Why were these seemingly benign licenses now being restricted? The answer is simple. Nobody should be able to visit, learn from or play sports with evil communists.

Just to reiterate how unbelievably arcane, archaic and misguided this OFAC agency and the current administrations policies are toward Cuba, in 2003 OFAC presented the following statistics in a letter to Congress (as reported by the Associated Press):

“Between 1990 and 2003 OFAC opened just 93 enforcement investigations related to terrorism and collected just $9,425 in fines for terrorism financing violations since 1994. In contrast, OFAC opened 10,683 enforcement investigations since 1990 for possible violations of the long-standing economic embargo against Fidel Castro’s regime, and collected more than $8 million in fines since 1994, mostly from people who sent money to, did business with or traveled to Cuba without permission.”

“At the end of 2003, OFAC had just four full-time employees dedicated to investigating Osama Bin Ladin’s and Sadam Husseins’s wealth, while twenty were working on the terrorism of Cuban embargo violations.”

Cuba, Libre Me

Now, without a legitimate way of traveling to Cuba legally, I was consigned to traveling unlawfully with the hopes of staying under the radar of the US government, which may be well aware of my ‘terrorist plot’ to ‘trade with the enemy.’ Legality aside, I had to forget about any future consequences in the US and concentrate on what it would take to get me from a third-country to the streets of Havana. After much reading I realized that Cuba welcomes Americans with open arms. A little less welcome, however, is the American dollar. Even within the past year the greenback was openly traded in the streets and used as the main currency along side the Cuban peso. Castro announced recently that the dollar is no longer accepted in any business transaction, and that foreigners bringing the dollar into Cuba to trade for pesos would be forced to pay a 10 percent commission. Perhaps Castro decided that dollar dependency was no longer good for Cuba’s economy. Or that the 10 percent surcharge would help generate funds country-wide. Or maybe this was a politically motivated move to get under the Bush administration’s skin even more (ala Castro’s slap-in-the-face offer to send teams of doctors to New Orleans after Katrina). Whatever the ploy, I would be entering the country with Mexican pesos because the dollar had been ‘Banished to the pits of hell, where it belongs,’ my English pal James wrote to me in advice on how to enter Cuba.

As far as what I personally needed to bring: a passport, which is not to be stamped by Cuban officials – it is seen as the mark of the beast in the eyes of US immigration, a tourist card issued by any Cuban embassy, and proof of an onward ticket. The passport I had. The tourist card and airline ticket I had not. Luckily, at the time I happened to be in San Jose, Costa Rica, home to a Cuban embassy. I called them and, surprisingly, they were open and answered the phone and referred me to a local travel agency which sold me a tourist card for 15 dollars. I was halfway home.

The airline ticket turned out to be a little trickier. The first problem was that I couldn’t fly with an American airline company because I am not traveling to Cuba legally. The second problem was that I could not fly with a Cuban airline because doing business with them meant breaking the embargo. Besides, along with the rest of the country, they refuse to accept payment from any US bank or credit card company. The only other airline consistently flying into Havana from where I would be at the end of February was Mexicana Airlines. In Nicaragua I went online to purchase the ticket. After hitting the ‘CONFIRM’ button I received an email from Mexicana stating that they don’t accept American Express credit cards, presumably because it is an American company paying for a flight to Cuba. Fine. I repurchased the ticket on my visa. A few weeks later the phone rang in Olympia, Washington and my mom was informed that my credit card could only reserve the ticket not pay for it. My guess was that it was the same problem as before. The paper trail would look bad upon investigation. So strike two. Arriving in Mexico last week with my reservation code in hand, I attempted to purchase the ticket from a travel agency. They couldn’t issue me the ticket because it was a paper ticket. I would have to go to the Mexicana Airlines office in Cancun. Apparently, a Cuban saying goes, “Nada es fàcil en Cuba (Nothing is easy in Cuba).” I hoped this wasn’t going to be the trend. Finally, at the Cancun International Airport I was able to buy the ticket. I finally had everything I needed! In your face US government!

So What Happens To Me When I Get Caught?

From the US State Departments Travel Warnings page:

“Transactions related to tourist travel in Cuba are not licensable. This restriction includes tourist travel to Cuba from or through a third country such as Mexico or Canada. US law enforcement authorities have increased enforcement of these regulations at US airports and pre-clearance facilities in third countries. Travelers who fail to comply with the Department of Treasury regulations will face civil penalties and criminal prosecution upon return to the United States.”

According to the statement above there may be a US federal officer waiting for me in Cancun as I board my flight to Havana this week. In some ways that was a bit worrisome to read. But being that it comes from the State Departments website, which is fraught with propaganda and intimidation, I chose to ignore the threat. If the warning is true, however, I will have plenty of time to wonder where the Bush administration’s priorities are…in my jail cell.

It is estimated by some that more than 50,000 US citizens visit Cuba every year. The majority of these are licensed travelers and Cuban-Americans flying legally from the US. However, there must be a fairly large contingent of illegal US citizens traveling to Cuba. And I presumed that some of them must be getting caught and fined. I researched a little more to find out what is really going on in the penalty phase. Good news: The latest information I could dig up said that, under the Bush administration, governmental harassment after arrival back in the US has become much more aggressive. Even if someone has tossed out all the old receipts from Cuba, etc, and the government can’t prove that the person spent any money there, often the penal process is still initiated.

The feds usually find out about people who took a trip to Castroland illegally as the traveler crosses back into the US. A form is generally issued to all US citizens asking which countries were visited on the trip. In the past it was usually safe to admit that Cuba was on the itinerary. The only harassment was usually the migration officer breaking into a well-practiced warning speech and letting the traveler pass through immigration with only a mild scolding. Now things often times get taken further in the penalty phase. It would seem the easy way out of this mess would be to simply omit Cuba from the list of countries visited, but technically this omission amounts to lying to a federal officer, which might be a more easily prosecuted case than the judicial process of an embargo-breaking trial, which has never yet taken place with a common citizen as the defendant. So an admission might be a better idea.

So now big brother knows you went to Cuba. There are really only two ways the government has worked out thus far to badger the common terrorist who visits Cuba. The first one seems less harmless. A “Requirement to Furnish Information” letter, threatening fines and demanding information about the alleged trip to Cuba, arrives via the US postal service directly to your door. This letter is apparently directed to citizens who don’t know the law well enough to understand that the Fifth Amendment exists to protect people from the government in these types of situations. Furnishing any information in this instance would be self-incriminating so it is not recommended. The second way the government harasses is by sending a “Pre-penalty Notice,” which assesses a civil fine, usually of $7500 dollars. If either of those cases were to occur, both require a letter of response sent to the office of OFAC within 20 days.

Not to worry, people. Our good friends at the National Lawyers Guild have set up a program called the “Wall of Lawyers.” They along with the Center for Constitutional Rights believe, as I do, that the right to travel is constitutionally guaranteed. The lawyers are drooling to take a case, bring it all the way to the US Supreme Court and cause all sorts of problems to the Cuban embargo. They will offer their services free in the instance that one of these cases ever goes to trial. The problem is that none of them have. The US government probably feels that it is on such shaky constitutional ground prosecuting one of these ‘right to travel’ cases that none has ever gone past the “pre-penalty” phase of threatening letters. In fact, according the most updated information online, no judges have been appointed and no courts set-up to handle these sorts of cases. So requesting a trial at this point amounts to having your case thrown out completely.

But the “Wall of Lawyers” has made things even simpler. On their website, http://www.nlg.org/cuba/Cuba_travel_alert_7.htm, they provide form response letters if either the “Requirement to Furnish Information” or the “Pre-penalty Notice” were to arrive at your door. In all known cases, a response to OFAC using one of these letters has stopped the harassment as soon as it starts. Apparently, asserting one’s rights tells the government that one is willing to fight the ridiculous charges. The government, which is not set up to prosecute the cases, then has to file away the case. Therefore, no fines have been paid except, ironically, by those who fail to assert their rights by using the forms, and who have given in to the threats and willingly paid. I did come across several cases in my research where people have been completely ignorant of the issue and had paid astronomical fines of more than $10,000 because they were intimidated by the government or ended up settling with them instead of requesting a hearing, in which case the charge is always shelved indefinitely. The Bush administration has vowed to change the status quo and to appoint judges soon to prosecute these cases. Sadly, I believe them.

The bottom line is that only a tiny fraction of the thousands of US citizens who travel to Cuba illegally are questioned upon return to the United States, although this number is increasing. And of those questioned only a fraction of them ever receives one of the above notices. And of those, the only ones who pay do so willingly. No US citizen has been to trial or been forced to pay a fine for visiting the country of Cuba. Yet.

In my case I will probably just walk into US immigration and customs after a long bus ride, dirty and smelly as usual. After looking through my passport they will ask me ignorantly, “Why did you go to all these countries?” I will just shake my head while they attempt to search my bag. But when they open the old boy, such foul odors will waft out that they will plug their nose with one hand and wave me through with the other.

More likely to cause a problem is my big, fat, trash-talking mouth if I am barraged with questions about Cuba by high-school educated border agents when crossing back into the US. Maybe I will even, for the sake of debate, defend Castro’s infamous human rights abuses, when he sent certain segments of his population to prison labor camps. And then maybe I will draw a verbal correlation to the contemporary human rights abuses which are occurring in Cuba right now, suggesting that I am not sure which ones are worse: Castro’s or the ones taking place at Guantanamo bay, sponsored by the United States of America, where ‘suspected terrorists’ have been held without charges for almost four years, chopping up the protections afforded by the internationally approved Geneva Conventions faster than G-Dub used to chop up lines of nose candy at a Yale frat party. Maybe then the border agents, big fans of Bush, because without him their Associate’s Degree in Homeland Security from Kaplan University Online would be useless, will suggest that I might like to spend some time in Guantanamo to find out just what kind of ‘abuses’ are really going on there. Never one to be intimidated in my own country, I might respond, “I believe I would.” And just maybe me and my illegally-visiting, terror-sponsoring, trading-with-the-enemy wise guy attitude will soon find ourselves at Guantanamo Naval Base, where I will spend my remaining years being mocked and tortured by young SAT flunkies and US Naval recruits. Hell, at least I will finally be in Cuba ‘legally.’

Above: No trip to Cuba should be undertaken without a stop at Guantanamo Bay. Will my experience be as Epicurean as these guys’? Find out soon.

Stay tuned for part two of InCUBAtion, arriving shortly. Or not.