I posted the following response to a blog entry at the always entertaining and informative Export Law Blog. In contrast to the usual subject matter of the DC Dispatches, most of the following discussion in this post is kind of in the weeds (you’ve been warned). You may want to read the Export Law Blog post that prompted my response before reading the following:
I realize that most readers of this blog do not support U.S. sanctions on Cuba; and, through the years, those of us that do in this town have become accustomed to outlandish comments like those posted above by Hillbilly.
For the benefit of those of you who have not worked on the Hill, Congressional oversight is part of the policymaking process, not a legal exercise. The Chairman’s letter seems written in that vein, to elicit a response from the Obama Administration whose approach on enforcing sanctions generally, not just to Cuba, has been anything but consistent.
Cherry picking the Chairman’s letter may make for good blogging, but, in the end, Congress is there to conduct robust oversight to ensure U.S. laws are enforced as the Congress intended. And when it comes to U.S. laws toward Cuba, consistent enforcement is something that no administration, Republican or Democrat, has ever truly done (the only exception being the Reagan Administration).
It does not take a creative lawyer anytime to figure out that U.S. laws and regulations with regards to Cuba, under a TWEA umbrella, can dish out devastating and inconsistent results in the real world. There are just too many “may” or “will generally” clauses, peppered throughout all of the Cuba regulations to reach the definitive conclusions outlined in this post.
Just ask any lawyer whose had to defend clients before OFAC, presently company included – a very non-transparent process with a regulatory regime that is somewhat dated – makes you want to head for the hills. TWEA, IEEPA, EAA, Helms-Burton, Cuban Democracy Act, etc., and many more non-Cuba focused federal laws, makes for no easy analysis.
The true solution for this mess is for both the Obama Administration, and the U.S. Congress, to cease the partisan bickering on national security policy and start serious discussions to put in place an export controls reform process that will form the foundation for improving licensing and compliance for U.S. companies that are impacted by these rules; including the sanctions programs.
A good place to begin? Start with reauthorizing the EAA to remove the many IEEPA-related constraints in place today.
The good news on Cuba policy is that we do not need to rush any of this process for Cuba’s sake. We can project U.S. power in the Americas effectively with Cuba policy as is; always have and always will. If and when the regime fizzles in the near term, as some experts say it will, we can help Cuba come out of the political and economic dark ages.
P.S., to the Export Law Blog, you can download a more recent photo of the Chairman here.