Reaching the Reefs of Cuba

The U.S. government is cracking down on travel to Cuba. While American divers have been reaching Cuba on flights embarking from Canada, the Bahamas and Mexico, (at least before September 11), U.S. agents were meeting return flights and laying down the law.

One of our fearless correspondents wrote about Cuba diving (January 1999), after signing up with Scubacan, a Toronto travel agency that advertised a fully hosted, completely “legal” Cuban dive trip advertised in American dive magazines. He fudged to get around the U.S. government travel embargo and pointed out the risks Americans face when traveling to Cuba. Now one of our subscribers, whom we’ll call “Johnson,” reports serious problems. After hearing his story, it’s understandable why Johnson prefers to remain anonymous.

Encouraged by a glossy Scubacan brochure, Johnson booked a trip through his local dive shop on Scubacan’s Ocean Diver live-aboard. The brochure read, in part:

“There is no law forbidding American citizens to travel to Cuba. The catch is, however, that American citizens can’t spend money there. That’s the current law ... Scubacan International Cuban Dive Adventures are totally prepaid, fully hosted and sponsored. You don’t spend money while in Cuba. In the past, management officials have escorted hundreds of American travelers to Cuba without mishap.”

Upon Johnson’s return through Toronto, U.S. Customs officials asked him and his party to fill out a form listing the countries visited since their departure. Being honest citizens, and having faith in Scubacan’s written assurances, they listed Cuba.

That was Johnson’s first mistake, according to Keith Bolender, who runs Scubacan. He said that when Johnson booked his trip he should have received a two-page Scubacan advisory for Americans going through customs. That advisory warns that if you declare you’ve been to Cuba, you’re likely to be detained and questioned. The U.S. Treasury Department will then send you a questionnaire asking you to selfincriminate yourself. Johnson said he did not receive the Scubacan advisory.

A couple of months later, Johnson (and other group members) received a formal questionnaire from the Treasury Department’s Office of Foreign Assets Control (OFAC) and he responded.

Mistake number two, says Scubacan. The Scubacan advisory says: “Do not under any circumstance fill out this form before you call us. Once you call us, we will provide the proper response to the Treasury Department and no further action will be taken ... If you fill out this document before contacting Scubacan, we cannot be responsible for any further charges or actions the Treasury Department may take.” Bolender tells us that clients are typically advised to ignore the form and the Treasury Department always drops its claim.

Nine months later Johnson received a notice that he had violated the U.S. Trading with the Enemy Act by engaging in tourist-related transactions in Cuba. Specifically, the notice cited a $20 airport tax. While Bolender assured us that such taxes are paid by Scubacan, one advisory Johnson received from Scubacan recommends that one carry $250 inpocket money for beverages, snacks, souvenirs and the departure tax. In this regard, Scubacan’s fully hosted “legal” trips don’t measure up.

The notice said the Treasury Department would issue a claim against Johnson for a $7,500 penalty, give him 20 days to respond, and would inform him of his right to request a hearing. Johnson replied, but on the advice of his dive shop’s legal counsel, did not request a hearing. Later he changed his mind, but that was beyond the 20- day deadline.

Johnson contacted Scubacan for help, which handed him off to the Center for Constitutional Rights in New York, a nonprofit organization that could represent him before the OFAC. The Center advised Johnson that he had no bargaining position since he hadn’t requested a hearing. (Scubacan said that when people do request a hearing, their cases are generally dismissed because OFA C has no mechanism for a hearing process.)

Later, the Center told one of Johnson’s traveling companions that they had stopped taking referrals from Scubacan due to the volume of cases. Bolender says Scubcan’s U.S. attorneys are handling cases directly.

So far, no actual claims have been filed against Johnson and his friends, but they are still living under the threat.

Meanwhile, Scubacan, which has been advising Americans about U.S. law at will, has changed its tune. An advertisement in the August Sport Diver makes no claim about the legalities of Cuban travel. And its listing in the August Skin Diver Overseas Divers Directory states only that all programs conform to government regulations. But, we don’t think so.

You see, for an American to spend money legally in Cuba, he must be licensed by the Treasury Department. And licenses are granted only to journalists and staff employed by news reporting organizations (freelancers need not apply), official government travelers, and researchers, teachers, and exchange students meeting stiff standards, athletes, and certain religious folks. While other licenses may be granted, they will not be considered for pleasure travelers. Fully hosted or sponsored travelers may venture to Cuba without licenses if all Cuba-related expenses are covered by a person not subject to U.S. jurisdiction. However, OFAC does not consider travel hosted or sponsored if a U.S. traveler pays any travel expenses, even to a third-country person or entity not subject to U.S. jurisdiction (such as Scubacan) at any time.

Anyone who travels to Cuba, even on a fully hosted trip, is likely to spend money. How else can you sip a minty mojito or puff a mellow Cohiba? Bolender advises that on a fully hosted trip, your escort will complete your transactions for you. But, under U.S. law, even that is illegal.

David Falk wrote in the S t . Petersburg Times in August, that the Bush administration is clamping down after years of the government turning a blind eye. “From May 4 to July 30, the U.S. Treasury Department sent out 443 letters to suspected illicit travelers. That was a dramatic increase from the 74 letters mailed in the previous four months. In the past, lawyers advised people receiving such notices to negotiate payment with the Treasury Depart-ment, or else demand an administrative hearing to contest the fine. The Treasury Department was usually happy to negotiate much lower fines; just a few hundred dollars in some cases.

“Because of a lack of judges assigned to embargo issues, hearings were never held, creating a backlog of unresolved cases ... But the Treasury Department now says it plans to begin using judges from the Environmental Protection Agency to hear travel cases. Several recent cases have made a mockery of the regulations. One Seattle man was fined after he traveled to Cuba to bury his father’s ashes. The Treasury Department tried to impose a $20,000 penalty, but settled for much less ... Yet the actor Kevin Costner had no trouble when he recently applied for a license to visit Cuba to show his latest film about the 1962 Cuban missile crisis, Thirteen Days. A New York attorney says it isn’t so difficult to travel to Cuba legally, and cites the license granted to a karate club exchange, as well as another for crocodile research in Cuba.”

Before September 11, Congress was moving to override both the federal ban on Cuban travel and Bush’s insistence on enforcing it. But until then, a diver who travels to Cuba without a license is a scofflaw, no matter what Scubacan says, and faces the possibility of big fines. However, Treasury Department agents may have other concerns these days. As of this writing, whether it will lead to even closer scrutiny of Americans traveling to Cuba, or, on the other hand, a disinterest in applying fines, is uncertain.