Hearings to begin in Cuba travel cases?

MILWAUKEE – A few U.S citizens who have never had any contact or connection with the mining industry have begun to receive unexpected official mail from the Federal Mine Safety and Health Review Board. The mail comes from the Falls Church, Va., offices of Avram Weisberger, a 64-year-old administrative law judge whose last 16 years have been spent reviewing fines levied against mining companies for allowing dangerous mine conditions.

Others have gotten similar letters from Weisberger’s colleague, Judge Irwin Schroeder. Still others, native citizens with no special connection to immigration matters, are getting similar mail from Robert L. Barton Jr., a judge at the Executive Office for Immigration Review of the U.S. Immigration Appeals Board.

What’s the connection?

The mail contains the first orders regarding hearings into allegations that the recipients have traveled illegally to Cuba. Federal law has provided for such hearings since 1992, but none have ever been held because the Treasury Department office that enforces the ban on travel to Cuba had no judges to hear the cases.

Richard Newcomb, head of the department’s Office of Foreign Assets Control, told Congress last month that in the last six years alone, his office had referred over 2,000 cases for civil action. Hundreds of these awaited hearings for which there were no judges, and were thus left in a legal limbo.

Now, Treasury has borrowed these three judges from other departments and has assigned about 50 cases to them. The first letters were issued Oct. 24, and hearings could begin next March.

About 165,000 U.S. citizens travel to Cuba each year under various types of government licenses. People with close relatives in Cuba, for example, are automatically allowed one visit a year.

Tens of thousands travel without authorization each year, however, and some are stopped when they return through customs. Those investigated routinely face $7,500 fines for a first offense. Federal regulations impose fines merely for failure to provide potentially incriminating information when the department asks.

Hundreds of these accused travelers are represented by the Center for Constitutional Rights; others have gotten legal help from the National Lawyers Guild.

The start of hearings is part of George Bush’s “Initiative for a New Cuba,” what he calls a “crackdown” on unlicensed travel there. In a White House Rose Garden statement Oct. 10, Bush announced that he had “instructed the Department of Homeland Security to increase inspections of travelers and shipments to and from Cuba.”

This year, regulations were changed several times to tighten restrictions on travel to Cuba. In September, the hearing regulations were completely revamped. Bush stated that illegal travel hurts Cubans by furnishing currency to the Cuban government.

The United States’ former top diplomat in Cuba, Wayne Smith, calls that “demonstrably false” and notes that in the same initiative, Bush increased the amounts that could be carried or sent to Cuba by legal travelers and remittance carriers. Last week, both houses of Congress voted to completely end enforcement of the travel ban, but the final bill was rewritten in conference committee to restore enforcement.

The hearings may still not take place, however. For more than a decade, the Center for Constitutional Rights and the National Lawyers Guild have argued that the travel ban violates Americans’ fundamental right to travel abroad, first articulated by the Supreme Court in 1958, and that the ban and its specific enforcement rules violate other constitutional rights.

Particularly questionable is the regulatory presumption of guilt and the requirement that all hearings be held in Washington. According to Art Heitzer, the chair of the National Lawyers Guild Cuba Subcommittee, one option would be a lawsuit to enjoin the Treasury Department and its three new judges from conducting hearings.

“To set up a system that presumes you’re guilty and says the only way you can prove otherwise is to go to Washington, D.C., is inherently coercive and turns on its head all the basic rules we’ve been taught about due process in this country,” says Heitzer.

The author can be reached at pww@pww.org.