Crushing Liberty to Promote Democracy:
OFAC’s Licensing Program - A Flawed Process
In an effort to promote democracy in Cuba, the US government requires
most of its citizens to apply for a license to visit the people of Cuba.
On January 5, 1999, President Clinton called for expanding
people-to-people contact with Cuba and streamlining licensing procedures.
some exceptions that fall under the provisions of a “General License”
(i.e. journalists, diplomats, athletes, "professionals to do
professional research in their professional area"), U.S. citizens traveling to Cuba
are required to have a “Specific
Department of the Treasury (DOT), Office of Foreign Asset Control (OFAC)
administers the program.
“Specific Licenses,” DOT publication, “An overview of the Cuban
Assets Control Regulations Title 31 Part 515 of the U.S. Code of Federal
specific licenses: Specific licenses may be issued by the Office of
Foreign Assets Control on a case-by-case basis authorizing travel
transactions by the following categories of persons in connection with
the following activities:
Activities – Persons traveling to engage in educational activities
that are not authorized pursuant to an academic institution’s specific
license, including education exchanges not involving academic study
pursuant to a degree program when those exchanges take place under the
auspices of an organization that sponsors and organizes such programs to
promote people-to-people contact.”
language is repeated again in Title 31 CFR Section 515.565(b)(2)
the spirit of expanding people-to-people contact with Cuba, on May 24,
2000, the International Bicycle Fund (IBF),
a non-profit organization regularly involved in organizing and sponsoring
international programs that promote people-to-people contact,
applied to OFAC for a license for an
“educational people-to-people program,” to begin in November 2000.
best as can be determined, OFAC rules on most license applications within
two weeks to two months.
IBF expected a timely and positive response to its application: Despite
two follow-up letters, seven phone calls and a congressional inquiry over
the next three months, there was no response to the application.
In September 2000, the congressional office was told by OFAC that
the petition to the government had been sent to the Civil Penalties Branch
for action and they would be contacting IBF -- implying that this was
beyond Congressional purview. Hindsight
indicates that the response was probably intended to mislead, and
sidetrack the Congressman.
all probability, in response to reading the Travel Section of the Sunday New
York Times of February 18, 2001, that mentioned IBF, two days later
OFAC denied IBF’s license request “for the purpose of cycling and
touring.” This is spurious
because nowhere in the application was a license requested for “cycling
and touring.” In any case,
such a ruling is inconsistent and arbitrary because OFAC has licensed
other programs that involve ”cycling and touring.” The letter was received
four months after what was to be the starting date of the program.
it is interesting to note that the gist of OFAC’s ruling is that you
can’t have an educational program that uses a bicycle. Yet, education is
the process of taking a pristine space, an empty brain and adding foreign
matter to it, new information. What is going to be a better environment
for gathering new
information; the sterile confines and isolation of the inside of a motor
vehicle with its barriers of glass and steel, and often speed, or the
totally exposed and constantly changing, constantly new and constantly
stimulating experience of discovery by bicycling? OFAC licenses many
programs that involve long hours on buses.
if OFAC’s charge is to restrict assets (money) from going to Cuba
(Trading with the Enemies Act), why are they acting contrary to their own
charge by forcing licensed programs to hire transport, almost all of which
is controlled by Cuban
state-owned providers, instead of using transportation that transfers no
assets to Cuba?
while the Trading with the Enemies Act, Cuban Democracy Act of 1992 and
the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996,
restrict a variety of transactions, it is a stretch to see that the
contents of any of these documents even begins to comment on cycling as a
mode of transportation.
Forth, nothing in
the foreign asset control regulation prescribe that educational activities
have to be stationary and not involve “touring” or traveling to
museums, factories, social programs, historic sites, cultural programs and
other educational venues. In fact, other programs that "tour"
have received licenses by OFAC.
with OFAC procedures, there are minimal provisions for due process. The
letter from OFAC, its publications, its website and the Code of Federal
Regulation indicate no avenue to appeal, other than reapplying to the same
officials at OFAC.
on February 23, 2001, IBF again applied to OFAC for a license for the same
“educational people-to-people program,” to begin in September 2001.
In part, this application states:
“(IBF people-to-people programs worldwide) are structured to be environmental-friendly (use simple living
styles and bicycle or public transportation as the primary mode of
travel), economically decentralized (design to direct the economic benefit
of the program to local owned and produced goods and services) and
intellectually enriching (include a activities expose participants to the
mix of cultural, ethnicity, economic activities, social programs,
religion, architecture, geography, geology, history, current affairs,
etc.) These multidiscipline
programs have no political position -- we do encourage inquiry. Past programs have been in Tunisia, Senegal, Gambia, Guinea,
Liberia, Ivory Coast, Burkina Faso, Mali, Ghana, Togo, Benin, Cameroon,
Eritrea, Ethiopia, Kenya, Uganda, Tanzania, Malawi, Zimbabwe, Botswana and
the United States.
programs will have the same environmental, economic and enrichment
structure as our other programs. Day-to-day,
on an ongoing basis throughout the program, there will be discussions on
history, architecture, culture, ethnic diversity, social systems, gender
rights and roles, politics, agriculture, mining, industry, fisheries,
music, language, religion, geology, botany, and ecology. At least once, if not several time each day, there will be visits
to a museum, factory, social program, historic site and/or cultural
[In March of 2001, we received an "Order to
Cease and Desist" until we received a license, but we were also told
that once OFAC issues one of these orders they use it as a pretext for
never issuing a license, regardless of whether it has been adjudicated or
not -- a little prosecutor/judge/jury, summary judgment and guilty until
April 26, 2001, the application was again denied, but this time because
IBF doesn’t “sponsor and organize educational exchange programs that
promote people-to-people contacts within an international context” and
the “agenda (doesn’t contain) a sufficient amount of people-to-people
contact with non-Cuban government entities and individuals.” Again, both are spurious.
is not clear as to whether they judge IBF’s other programs to not be
educational, or to not promote people-to-people contact or to not be
international, or all three.
IBF sponsors a number of programs in Africa, so unless OFAC has judged the
countries of Africa to be domestic colonies or protectorates of the United
States, the programs are international.
IBF programs systematically visit entities such as schools, orphanages,
churches, clinics, and development projects, and stay in local housing. Unless OFAC believes that these entities are populated by something
less than humans, people are encountered. These are immersion programs where participants can’t avoid
That leaves the issue of why OFAC concluded that
IBF’s programs are not educational. OFAC does not state why it arrived
at its determination. Studying popular attitudes and other OFAC actions, we can surmise
that OFAC’s ruling may be based on one or more of the following possible
is only wildlife and crises: There
is nothing to be learned from the IBF program activities and
discussions relating to culture, ethnicity, economic activities,
social programs, religion, architecture, geography, geology, history,
current affairs, etc.
are incapable of teaching anything to Americans: On June 7, 2001, this assessment of capability was reflected by
another administration official, Andrew Natsios, Administrator of the
US Agency for International Development, when he said, “(Africans)
don’t know what Western time is”, claiming, “Many people in
Africa have never seen a clock or watch their entire lives.”
program designer, and leader of most programs can’t create an
educational experience: That
individual has twenty-five years experience teaching in and about
program participants are incapable of learning: Many participants have post-graduate degrees and provide
feedback (www.ibike.org/bikeafrica/comments.htm), which has been
submitted to OFAC, and is a strong testimonial to the educational and
people-to-people character of the program.
view of Africa seems to reflect the attitude expressed by explorer John
Speke in the 1860’s; “He works his wife, sells his children, enslaves
all he can lay his hands upon and unless fighting for the lands of others,
contents himself with drinking, singing, and dancing like a baboon, to
drive dull care away.”
has been doing international people-to-people programs for since 1983. OFAC is the first and only entity that has denied or questioned the
existence and substance of the programs. In return, one must question OFAC’s qualifications and expertise
to evaluate educational and people-to-people programs in Africa – a
region that Americans are notoriously misinformed about. OFAC has no published criteria for educational and/or
people-to-people programs in Africa.
There are indications that OFAC prefers programs that are very simple, narrow and limited in scope,
inquiry and activity:
- play baseball
- learn drumming,
- karate exchange,
- showing the film "Thirteen Days,"
- crocodile research,
is easier for a Little League player or high school student to visit Cuba
than a registered voter who wants to inform themselves about foreign
policy issues. The pattern being, if associate with a group
that plans to spend most of there time on a Little League field, karate
dojo, movie theatre or other confined area you have a fair chance of
getting a license for travel to Cuba. But if you choose to associate
with a group that wants to travel around learning about Cuban history and
society your chances of getting a license are much less likely. Programs that offer a more comprehensive, interdisciplinary
examination are suspect -- not by the Cubans, but the U.S.
OFAC was contact to speak to their Education Officer and Africa
Specialist, they had neither!
for the structure and content of the proposed Cuba program, participants
will be able to spend virtually all of their waking hours with individual
Cubans and the program has no formal relationship with any Cuban
government entities. While
most licensed programs have as their primary contact the University of
Havana or other entities of the Government of Cuba and their participants
stay in lodgings and eat at restaurants that are part of state
corporations -- which US foreign policy professes to want to minimize
support of -- the IBF program will be done in conjunction with an
organization that is a component of Cuban civil society with no ties to
the government of Cuba and lodging and meals are primarily sourced from
Cuban owner-operated private businesses -- which US foreign policy
professes to want to support.
Again, OFAC’s ruling is arbitrary and inconsistent because IBF’s program is
scheduled to have more “people-to-people contact with non-Cuban
government entities and individuals” than most of the other programs
that OFAC has licensed. By
blocking a program that promotes the civil society and private sector in
Cuba, OFAC’s actions, again, are more aligned with the policies and
interests of the Government of Cuba than those of the United States
government and OFAC’s own regulations.
Although IBF has made the above challenges to OFAC’s ruling, there is no apparent
avenue of appeal other than to OFAC. This is complicated by OFAC’s vague
and arbitrary rulings, lack of transparency and its inability to respond
in a timely manner. It remains difficult to know its criteria or how to
Although OFAC's scrutiny of IBF non-Cuba program is totally unprecedented
and few, if any other licensee are required to provide the level of detail
about their Cuba program that OFAC is demanding of IBF, undaunted, on May
1, 2001, again applied for a license to do an “educational people-to-people
program,” for September 2001. IBF sent a packet of documents furnished the
supplementary information requested in the ruling of April 26, including a
half dozen pages documenting the people to people nature of the Africa program
and 11 pages of itinerary, with 36 days of day-by-day itineraries for each
of the different programs in the following form:
Daily Program: DAY 4 - Wednesday
BAYAMO (60km, 37mi). Tour Bayamo area, the "cradle of nationalism."
It was the site of early Indian uprising (1530) and Cespedes' and
Marti's struggle against colonial masters had their roots here.
Points of interest: Excursion to Guisa in the
foothills of the Sierra Maestra, site of historically important battles.
||Breakfast: house or hotel
||Tour of Bayamo (lecture by museum curator), includes Casa Museo de
Manuel Cespedes, monument, church, 1st Presidents house,
||Fatherland Square (explanation by docent), organic farm
(explanation by foreman), cigar factory (explanation by foreman),
botanical garden (lecture by curator), Guisa war site (lecture by program
||Midday Food & People-to-People Experiences: Guisa (25km)
||Dinner: house or hotel
||Evening walk, visit music venue (explanations by program staff)
||Lodging: private houses
After waiting two month a Senatorial inquiry was
requested. This initially
involving a half dozen calls through the fist half of July. On July 20,
OFAC answered that a response would be coming that week. When nothing came after two weeks more calls were put through.
OFAC gave the same response on August 6. When again OFAC failed to produce the promised letter, on August
15, another round of calls was initiated.
Having not kept their
promises to the Senator’s office. On August 19, IBF sent a fax that
said, “We request the courtesy of a written decision to our application
of February 23, 2001, for programs scheduled to begin September 16, as
amended on April 18 and May 1, in which we furnished the supplementary
information that you requested.”
On August 20, the
Senate office was told that OFAC would be faxing a copy of the letter that
afternoon or the next day. Having
heard nothing they left another message on August 23. OFAC continues to
respond to the Senator and IBF with deception, delay and silence.
on September 5, OFAC replied, “You have not provided the requested agendas or
itineraries of previous activities or programs run by the IBF. You also have not
provided the requested detailed agendas of your proposed activities in Cuba…License
The wait highlights another OFAC inconsistency: When OFAC sends a
“Requirement to Furnish Information” letter; the recipient has 20 business
days to reply. These letters, in which OFAC asserts that the subject has had
transactions with Cubans, can be based on as little evidence as names
gleaned from newspaper articles and the Internet. Failure to reply is a
basis for a civil penalty proceeding. Turning U.S. democracy and the U.S.
Constitutional guarantees to due process on their head, the subject is
then presumed guilty unless he or she can prove himself or herself innocent.
For example: OFAC doesn’t have to prove someone spent money in
Cuba, the accused has to prove they DIDN’T spend any money in Cuba. It
is not even clear if OFAC has to prove that the accused went to
Cuba – if they say you did you have to prove you did not.
It would be interesting if the people of the United State could hold OFAC
to the same standards it applies; for example, if OFAC doesn’t answer an
application for a license within 20 business days, on its merits, it is
Ironically, though OFAC’s primary responsibility is control of the flow of assets to
Cuba, through the entire process OFAC has never asked the IBF a single
question, nor raised a single issue about the actual quantity of assets
this activity would transfer to Cuba if a license is granted.
IBF reapplied on January 3, 2002, with a 15 page application.
A lawyer, who has applied for and successful
received a number of specific licenses for travel to Cuba, reviewed our
application wrote to us, “You’ve done it, and done it very well… the
overall quality, detail, stratagem, and most important, legitimacy of your
application. Hell, I’d use your application and itineraries as models,
instead of mine.”
On February 11, 2002, OFAC
testified before the U.S. Senate that, "We
will continue to streamline these licensing criteria and, at the same
time, promote greater transparency and understanding by the public."
On March 20, 2002, our application for the “the purposes leading a
group on a bicycle tour” was denied.
First, “bicycle tour” never appears in the application and is
not an objective of our program. It
is a means to educational opportunities and people-to-people contact.
Second, other groups that use bicycles as a mode of transportation
are issued specific licenses. Third, there is nothing in any of the rules that prescribe
which mode of transport (walking, bus, train, limousine, etc.) must or
must not be used for “educational exchanges to promote people-to-people
June 3, 2002, we submitted another application.
If this sounds Kafkaesque and you think you are
experiencing the last vestiges of the Cold War, you are not alone.
In the fall of 2002, both the Senate and House of Representative voted
for provision in budget bills to eliminate restrictions on travel to Cuba.
Though both houses voted for the these provisions they were delete in
conference committee and not in the final bill.
On March 24, 2003, OFAC eliminated the policy to license
people-to-people programs, which further restrict opportunities to for
people under U.S. jurisdiction to travel to Cuba.
And that is how democracy works.
To OFAC: Travel, Trade, Licenses
To Atenas de Cuba People-to-People