04/19/2008, Port Antonio, Jamaica
We spent a comfortable time in Puerto Rico, planning a trip to Cuba. Paul had spent some time reviewing the rhyme and reason (and lack thereof) of the US laws restricting travel to Fidel and Raul’s socialist playground.
For the most part, Cuba welcomes travelers from the US, just as they do travelers from all over the world.
For the most part.
Reportedly, Americans aren’t welcome in Cuba in the same way as visitors from other countries. They are more welcome. Most Americans who visit report an outpouring of affection. On the other hand, the facilities in Cuba are a bit rough and ready, and the marinas are not the most cruiser-friendly in the Caribbean. And there is a thick veneer of bureaucracy that must be penetrated before one steps ashore. Visiting sailors report multiple inspections by dozens of officials who require the completion of a reef of forms and applications. After all, it is a communist dictatorship that limits the free movement of its own people. (Hey, sound familiar?!)
We know so much about the country because we spent a good amount of time reading up about how one can get to Cuba legally as a US citizen.
The restrictions come from several different directions. Here are the two most notable.
First, if you’re traveling from US waters, you must obtain a license to travel into Cuban waters. This requirement applies to all boats, US-registered or not. If you don’t get a license, and try to go, the US authorities will supposedly take your boat. But they give the licenses freely, and the law appears to exist to frighten you from trying.
A second set of regulations restrict the spending of money in Cuba. You see, you can travel to Cuba, you just can’t spend money there, unless you have a government issued license to travel. The licenses are very circumscribed, and available only to those traveling to see close relatives in Cuba, or to those traveling for academic, medical, or aid-related purposes, for example. These licenses were not available to us. And because one spends money as soon as you reach Cuba, for the purchase of a $25 visa, travel to Cuba is usually tantamount to spending money in Cuba.
But the law apparently banned the spending of money in Cuba. Thus, according to the sources that we researched, one can avoid running afoul of the law by being “fully hosted” by a non-US national, who could pay for the visa and all other expenses.
Sima has a good friend, Hugh, from London. He had expressed interest in sailing with us in general, and in traveling to Cuba in particular. Hugh flew to Jamaica at the start of April, and we sailed from Puerto Rico to meet him there. We holed up at a Marina in Port Antonio to provision and make final preparations for the trip.
With good internet and telephone access in Port Antonio, we also thought, since we were actually going to go, that we should understand the law cold and speak to some attorneys with expertise in the area.
After a day holed up with the computer and talking on the phone, we learned that the US had changed the law, and closed the “fully-hosted” loophole. (The Treasury Department, Office of Foreign Assets Control, “also has come to the position that even a person who accepts goods or services in Cuba without paying for them is in fact engaging in a prohibited dealing in property in which Cuba or a Cuban national has an interest. Therefore, OFAC is removing the language regarding fully-hosted travel from the CACR and is thereby eliminating any authorization of fully-hosted travel.”) Now it is an offense to visit, even if someone else foots the bill completely.
This was a crushing disappointment, to say the least. We were less than 24 hours away from sailing, and Sima had begun to make logistical arrangements with the marina at Santiago de Cuba.
We learned a couple of things as we researched the issue. First, the restrictions are probably unconstitutional, unenforceable, and an abuse of government power. We say probably, because who knows what the current US Supreme Court will uphold. The rationale for the law is that the threat posed by the Cuban government to US security is significant enough to override the constitutional rights of due process and freedom of speech, to name just two interests. But if Cuba ever posed a threat to US national security, it is doubtful that it does now. Furthermore, even if it did, it’s hard to understand how prohibiting travel impacts that threat one way or another. There are a number of other countries that probably pose a real threat, but access is not limited there.
What happens to those who have flouted the law and go anyway? Apparently, not much.. If you are found to have traveled to Cuba (by the way, most travelers are not “caught”), OFAC sends you an imposing, ominous-looking letter that either requests information about your travel or imposes a fine. In either case, you are given the option of asking for a hearing. But reports indicate that NO ONE WHO HAS EVER ASKED FOR A HEARING HAS BEEN GIVEN ONE. In fact, OFAC has never even appointed the administrative judges to conduct the hearings! Whether this is because OFAC thinks that the existence of the law is effective enough, because they don’t want a test case, or because they don’t care to allocate the funds to chase tourists, nothing is being done.
In the end, we spoke with three lawyers about going. One was in South Florida, of Cuban descent, and supported the law whole-heartedly. She said don’t go, “or you’ll go to jail.” The next was a lawyer in D.C. who defended these cases. He spent a considerable amount of time telling us about the overbreadth of the law and the absence of enforcement. He said, in the end, taking the risk was up to us. The third was an immigration lawyer, who advised us that we shouldn’t go, because it would expose Sima to potential immigration problems. Then he conceded that he had made the trip himself. Illegally.