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The OFAC Has Heart, Cubans Had Christmas in Cuba in Spite of the Cuban Regime

A few weeks ago the elves at the Export Law Blog (“ELB”) posted a special Christmas message, How the OFAC Stole Christmas.  For readers from outside of Washington, DC, the somewhat humorous post is a jab at U.S. laws and regulations restricting trade with state sponsor of terror Cuba.  Other than this annual Cuba post, ELB is otherwise a good and informative read. 

I guess in ELB’s world, the North Pole must be aware of cost-benefit analysis and risk assessment.  Why on earth would Santa Claus avoid the United States on Christmas over Cuba?  The U.S. is a free market country that respects the rule of law, freedom of religion, and assembly,  while Cuba is a state sponsor of terror that for fifty years has clung to a failed, atheistic, Marxist-Leninist system that locks up people in jail for practicing their faith and expressing political opposition? 

Worry not, U.S. laws and regulations allow for the export of humanitarian goods to Cuba and the sale of food.  While I was in Miami for the Christmas season, I noted that Santa’s helpers in the Cuban exile community took advantage of various regulatory provisions to ensure that, notwithstanding the Cuban Communist Party’s near ban on the Christmas holiday, that Cuba’s children could have something close to a normal holiday.

Supporters of freedom were taking advantage of 31 CFR 515.206, shipping information materials as defined by 31 CFR 515.332 about the true meaning of Christmas.   They also made phone calls to Cuba and stores in Miami sell phone cards for the purpose, allowed by 31 CFR 515.418.

For Americans traveling to Cuba to visit family for the holiday [See 31 CFR 515.561 (travel), 31 CFR 515.566 (religious activity)], if they were given a gift of Cuban origin, they are allowed to bring that gift with them back in the U.S. as outlined by 31 CFR 515.444.  Since Cuba Communist Party has destroyed Cuba’s economy and most Cubans, unless you are party official, are desititute, most gifts of Cuban origin made during the holiday will likely be allowed to enter the U.S. under these familial exchanges.

Then there is the gift that keeps on giving, not just for Christmas, but throughout the year, remittances.  According to 31 CFR 515.570, Americans with families in Cuba can send $300 once every three months to a relative in Cuba.  And, in the spirit of Christmas, OFAC helps Santa Clause by maintaining a Naughty List of people who cannot receive such funds (See 31 CFR 515.570(a)(3)).  These bad apples include human rights abusers, murders, and others likely guilty of crimes against humanity.

The ELB post states that it received a press release from the North Pole that Santa Claus was going to bypass U.S. children because of OFAC rules on Cuba.  I am afraid that they may have been duped by Granma propagandists who send out such false information, year round, to distract from the true culprit of Cuba’s misery, the Cuban Communist Party and its leaders.

So, you see my friends, the grinches are not at OFAC, the grinches are down south in Havana – and have been there since 1959.  U.S. laws and regulations are not the problem, it is the Cuban Communist Party, the only legal political entity in Cuba allowed to engage in civic and political life. 

While we do not know the personal views of the editors at ELB, this most recent post on Cuba reminds me of the ongoing battle in Washington, DC by some in the business lobby that get upset by our limited sanctions programs on just 13 of the worlds’ 194 independent states. 

Of those 13 countries on which the U.S. imposes economic sanctions, and for good reasons, Cuba has in place the most restrictive set of sanctions.  So, just one country in the Americas is a target.  Why do they insist on trading with the enemy when there are 37 other countries in the Americas that could use increased U.S. trade.  Ironically, some of these companies, and their lobbyists, that seek to ease sanctions on Cuba are the same ones blocking efforts to grant Colombia a Free Trade Agreement. 

The incoming Obama Administration should take the following comment to heart.  The late and venerable Senator Jesse Helms (R-NC) penned in 1999 on U.S. sanctions opponents in Washington that “with their antisanctions crusades these lobbyists are fighting for business as usual with thugs, tyrants, and terrorists.  They do not represent the views of the American people or most American businesses.  They should be ashamed.”  Ten years later and the same thinking holds.

The Obama team, and some in the Congress from both political parties, should read the entire piece, “What Sanctions Epidemic: U.S. Business’ Curious Crusade,” 78 Foreign Affairs (April 2, 1999).   And they should also brush up on U.S. laws related to Cuba.  Our legal regime provides a clear, concise, and calibrated blueprint on how to ensure that there is a peaceful transition back to freedom in Cuba.  It will also safeguard U.S. interests and regional stability.

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