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July 2009
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Lawsuit Challenges U.S. Cuban Travel Policy

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July 17, posted by Dave Beers.

When will Americans be able to travel to Cuba? When will cruise ships call on Cuban ports? A lawsuit filed yesterday might bring some answers to those questions, or it might not.

The Fifth Amendment to the United States Constitution states “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Using “the 5th” as part of the argument, a federal lawsuit has been filed to challenge U.S. policy over trips to Cuba by American citizens. That policy – from the Treasury Department’s Office of Foreign Assets Control (OFAC) – requires people suspected of having traveled to Cuba to disclose detailed information about the alleged travel under the threat of civil penalties and imprisonment. Specifically, Americans who are suspected of traveling to Cuba without official approval can be ordered to disclose how much money they spent there. The lawsuit says the policy forces travelers to incriminate themselves, since by complying and listing how much you spent in Cuba, you are admitting you broke the law which makes it illegal to spend U.S. currency in Cuba. It was filed in U.S. District Court in Brooklyn by the Center for Constitutional Rights, a non-profit legal advocacy group.

In 2000, OFAC accused Zachary Sanders of traveling to Cuba without authorization. Mr. Sanders refused to answer OFAC’s “Requirement to Furnish Information” about the trip and challenged the legality of OFAC’s actions in administrative proceedings. An administrative law judge rejected Mr. Sanders’ claims, ordering him to pay a $1,000 fine – not for traveling to Cuba, but for failing to comply with OFAC’s demand for information. In other words, it didn’t matter if he actually went to Cuba. It mattered that he didn’t fill out the questionnaire. Mr. Sanders appealed the fine in 2008, but on the Bush administration’s final day the Department of Treasury not only rejected the appeal – they increased the fine to $9,000.

The lawsuit comes on the heels of efforts by the Obama administration to ease travel restrictions to Cuba. Proposed legislation to allow Americans to freely travel to Cuba continues to languish in Congress.

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