Cuba
The Status of IBF's Licenses to Conduct Educational  Programs in Cuba

 
 

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.

With 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 License”. The Department of the Treasury (DOT), Office of Foreign Asset Control (OFAC) administers the program.

On “Specific Licenses,” DOT publication, “An overview of the Cuban Assets Control Regulations Title 31 Part 515 of the U.S. Code of Federal Regulations” states:

“Other 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:

“Educational 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.”

This language is repeated again in Title 31 CFR Section 515.565(b)(2)

In 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.

As best as can be determined, OFAC rules on most license applications within two weeks to two months.

Naively 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.

In 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.

First, 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.

Second, 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?

Third, 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.

Consistent 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.

Persevering, 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. 

"The Cuba 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 program.”

[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 proven innocent.].

On 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.

OFAC 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.

Clearly, 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.

All 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 people-to-people contact.

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 “reasons”:

  • Africa 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.
  • African’s 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.”
  • The program designer, and leader of most programs can’t create an educational experience: That individual has twenty-five years experience teaching in and about Africa. Or,
  • The 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.

OFAC’s 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.”

IBF 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,

It 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.

When OFAC was contact to speak to their Education Officer and Africa Specialist, they had neither!

As 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 satisfy them.

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.

7:00 Breakfast: house or hotel
8:00 Tour of Bayamo (lecture by museum curator), includes Casa Museo de Manuel Cespedes, monument, church, 1st Presidents house, composers house
10:00 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 staff).
  Midday Food & People-to-People Experiences: Guisa (25km)
7:00 Dinner: house or hotel
8:00 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. 

Finally 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 denied.”

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 presumed granted.

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 contact”.

On 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 and Legislation

To Atenas de Cuba People-to-People Program

 
 
 
 

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