Note to Treasury: Your Duty is to Uphold (Not Distort) Cuba Sanctions Law

Thursday, March 10, 2016
President Obama is keen on granting Cuba's Castro dictatorship more concessions next week.

As Reuters reported, even Democratic aides who are generally supportive of Obama's policy are dismayed by this policy folly, particularly as Castro's regime is proving to be more emboldened and repressive.

 "Shouldn't we get something from the Cubans in return?" one asked.

Among the new concessions being considered by Obama officials are: 1). allowing the Castro regime to use U.S. dollars in international transactions; and 2). individual "educational exchanges not involving academic study" to Cuba.

Both of these demands were made by Castro's Minister of Foreign Trade and Investment (and senior intelligence official, DGI), Rodrigo Malmierca, during a speech at the U.S. Chamber of Commerce last month.

Obama is now inexplicably willing to cave to these demands.

But both of these demands require a change in U.S. law, which the Obama Administration does not have the statutory authority to do.

Treasury Department lawyers know this and should not impugn their integrity for the whim of Obama's political staff.

As regards allowing the Castro regime to use the U.S. dollar in international transactions, Obama does not have the statutory authority to issue any such blanket authorization.

Congress has only authorized three types of exempted transactions with the Castro regime -- for telecommunications services, agricultural commodities and medicine/medical devices.

Allowing the Castro regime to use U.S. dollars in international transactions would be wholly inconsistent with statutory mandates, nor would it promote freedom, democracy or support the Cuban people.

Let's be absolutely clear -- "the Cuban people" are not shuffling dollars through BNP Paribas, ING Group and HSBC Bank. Only the Castro regime and its apparatchiks are able, willing and eager to do so, which (again) inarguably contravenes U.S. interests and statutory mandates.

As regards individual "educational exchanges not involving academic study" to Cuba, the Trade Sanctions Reform Act ('TSRA') defines illegal “tourist activities” as any activity with respect to travel to, from or within Cuba that is not expressly authorized under Section 515.560 of the Cuban Asset Control Regulations ('CACR'), as in effect on June 1, 2000.

Individual "educational exchanges not involving academic study" to Cuba were not expressly authorized by the CACR on June 1, 2000. This category of trips were expressly authorized on June 1, 2000, only under auspices of a sponsoring organization with a full-time itinerary of education exchange activities.

This is not an issue of whether a category of travel to Cuba that was expressly authorized on June 1, 2000 is allowed under a specific or general license. Obama officials now seek to change the category itself, which would squarely place it outside of the scope expressly authorized on June 1, 2000. That would make it an illegal "tourist activity," as defined and banned by Congress.

President Obama's legacy is his prerogative, but the law should remain inviolable.