OFAC You

Smoke a cigar containing Cuban tobacco in Mexico, go to American jail.

That's the new rule handed down by the odiously-but-accurately named Office of Foreign Assets Control, the freedom-abroad-limiting wing of the Treasury Department. The clarification [PDF], issued Sept. 30, explains that the previous $100 limit on Americans' importation of Cuban merchandise (I should say, licensed Americans' importation, since buying a Cuban tortilla is illegal without Treasury Dept. permission), has now been reduced to $0. And don't think you're free from Uncle Sam if a buddy gives you a Cohiba in Cancun, or even if you're not an American citizen.

This prohibition extends to such products acquired in Cuba, irrespective of whether a traveler is licensed by OFAC to engage in Cuba travel related transactions, and to such products acquired in third countries by any U.S. traveler, including purchases at duty free shops. Importation of these Cuban goods is prohibited whether the goods are purchased directly by the importer or given to the importer as a gift. […]

The question is often asked whether United States citizens or permanent resident aliens of the United States may legally purchase Cuban origin goods, including tobacco and alcohol products, in a third country for personal use outside the United States. The answer is no. […] [T]he prohibition extends to cigars manufactured in Cuba and sold in a third country and to cigars manufactured in a third country from tobacco grown in Cuba. […]

Criminal penalties for violation of the Regulations range up to $1,000,000 in fines for corporations, $250,000 for individuals and up to 10 years in prison. Civil penalties of up to $65,000 per violation may be imposed by OFAC.

In other OFAC news, a coalition of publishing groups, including PEN America and the Association of American University Presses, filed suit late last month against OFAC and Treasury, claiming that OFAC's outrageous and counter-productive new rules prohibiting by force of jail time "substantive or artistic alteration or enhancement" of editorial works originating from countries under full U.S. embargo (Iran, Cuba, Sudan), are in violation of, among other things, the First Amendment. I wrote about the publishing ban earlier this year for The Walrus magazine, with an update here at Hit & Run.

Comments

[kmw]

So, when are we going to see a "Department of Morality?" Seems like we're halfway there already.

In other news, the Supreme Court has decided to revisit Ten Commandment rulings. When does it stop?

[rst]

"The question is often asked whether United States citizens or permanent resident aliens of the United States may legally purchase Cuban goods, including tobacco and alcohol products, in a third country for personal use outside the United States. The answer is no."

Hah, the answer is "too fucking bad." I smoke what I like when I'm in country. I'll smoke what I like when I'm out of the country, too. Please feel free to report my violations "telephonically".

or (3) is made or derived in whole or in part of any article which is the growth, produce or manufacture of Cuba.

I wonder if this means it's illegal to buy baseball cards of Cuban players.

[trainwreck]

rst, didn't you mean baseball players, not cards? What does that mean for major league baseball?

[Mark]

Tell me again how they have jurisdiction?

[M1EK]

To me, one of the most compelling reasons to vote for Kerry is as a big middle finger to the Cuban exiles in Miami who think that they're fighting for freedom when pressuring their Republican toadies to push these kinds of anti-freedom laws.

[Skeptikos]

So when I go to Playa del Carmen (about 80 kliks south of Cancun) and smoke a cuban at hemmingways, while enjoying some fresh localy caught seafood, I'm breaking the law? In a weird way, it all fits, one of the reasons I go to Playa instead of cancun, is that I can't stand the smell of urine and vomit, and since there are very few girngos in Playa, you rarely smell it, unlike the eco-parks, and Cancun (both places where americans flock). And rule of thumb that I have found in Mexico, where there are vacationing gringos, there is the distinct order of vomit and urine.

Now that my fellow Americans can rat me out, even more reasons to avoid them when I travel into Mayan territory.

Now when I go into my fav tobacanist down there, and ask what he has that he recomends, I better remember to tell him not to sell me a Cuban.

Har. Har. Har. Gosh darn, ain't it great to live in the land of the free.

[Matt Welch]

Skeptikos -- I've been in that very restaurant/bar, despite an oft-broken Vow to never again set foot in a place called "Hemingways" ...

[rst]

No, the card. It has a value which derives wholly from the player whose picture, name, and brief biographical information is printed on it. All of that material is the protected intellectual property of the MLB, and a product of Cuba.

yes, I am being facetious.

Tell me again how they have jurisdiction?

Well, it's kind of like the Bobby Fischer flap I'd imagine. Bobby Fischer will go to prison for longer than rapists and murderers over an illegal chess match. I suppose the American public is supposed to get their panties in a bunch over the myriad embargoes Congress imposes on the nations that piss them off. Regardless they weren't ever going to get Fischer until he happened to return or be deported to the U.S. Likewise, if some OFAC spook spots you puffing a Cohiba in Montreal, then you can probably be arrested upon returning to the country, but I don't think he'd be able to grab your arm right there and escort you to the embassy. But with these assholes, you never can tell.

[jc]

What if you've got dual citizenship?

when are we going to see a "Department of Morality?"

C'mon, this is America! We won't limit ourselves to A "department" when we can have several.

[rst]

No, the card. It has a value which derives wholly from the player whose picture, name, and brief biographical information is printed on it. All of that material is the protected intellectual property of the MLB, and a product of Cuba.

yes, I am being facetious.

Tell me again how they have jurisdiction?

Well, it's kind of like the Bobby Fischer flap I'd imagine. Bobby Fischer will go to prison for longer than rapists and murderers over an illegal chess match. I suppose the American public is supposed to get their panties in a bunch over the myriad embargoes Congress imposes on the nations that piss them off. Regardless they weren't ever going to get Fischer until he happened to return or be deported to the U.S. Likewise, if some OFAC spook spots you puffing a Cohiba in Montreal, then you can probably be arrested upon returning to the country, but I don't think he'd be able to grab your arm right there and escort you to the embassy. But with these assholes, you never can tell.

[Skeptikos]

Matt,

Cool. I know exactly what you mean....I must admit I was surprised to like the place, I think I mentioned it mainly because I was thinking how pissed Ernest himself would be if someone told him not to smoke a Havanna. I actually prefer a place south of town a ways and located on one of the bays down there, owned by an interesting texan...but the name escapes my aging brain at the moment.

[Jason Bourne]

Mark,

Regarding the issue of jurisdiction, generally there is a presumption against extra-territoriality when it comes to statutes enacted by the Congress and intepreted by the Courts. However, the Congress has enacted an entire series of laws which have extra-territorial application written into them; a lot of these laws are aimed at international terrorism.

Where does the Congress get this power? Well, let's look at the Constitution, which states in Art. III, sec. 2, cl. 3 that when a crime is "not committed within a State," trial for that crime will be conducted where the Congress directs (clearly implying criminal sanctions for acts committed outside the U.S.), and Art. I, sec. 8, cl. 10 provides Congress with the authority to define and punish "Offenses against the Law of Nations," some of which will presumably occur outside the U.S. However, this gets us into the thorny question of whether international law places limits on this jurisdiction; Andreas Lowenfeld argues that such limits do exist in the following article:

U.S. Law Enforcement Abroad, 83 Am. J. Intl. L. 880.

For an interesting look at the notion of extra-territoriality see:

US v. bin Laden, 92 F. Supp 2d 189 (2000).

This case is a bit of a primer on the principles of jurisdiction under customary international law; but be careful when reading this piece of jurisprudence, because these principles are not equall accepted everywhere, and they can prove to be problematic. For example, take the "territoriality principle" (applies to actors working in a state and acts that effect), which may be unhelpful in the case of inchoate crimes.

[Jason Bourne]

Mark,

Also, the above presumption against extra-territoriality can be trumped; sometimes this is done by the principles laid out in the case I cite.

[stubby]

Skep: I'd say the urine and vomit stench in Cancun is not due to gringos per se, but due to college age and just out of college age gringos (and gringas).

I like staying in Playa to avoid the kiddies.

[James]

What, exactly, did Cuba do to us again? I forget. Is it relevant in the post-Cold War world? Is the government harder on its citizens than that dude in Uzbekistan that boils his enemies alive? Is the government really going to mount surveillance on every single American tourist abroad to make sure they don't smoke a Cuban or is this just one of those laws they plan to keep on the books for whenever they feel like screwing somebody?

Final question: what do the Cubans expatriates think they're really going to get out of this? Do they really think they will be able to return home as heroes when Castro finally dies of old age? Having worked hammer-and-tong for decades to "get Castro," impoverishing their former countrymen, will his death of natural causes be hailed as a "victory" for the exiles, leading the grateful Cubans to anoint them as the new leadership of the island? Or will they string them up from the nearest lamp post the way the Iraqis plan to deal with the returning exiles fifteen seconds after the Americans leave?

[Jason Bourne]

stubby,

Never been to either. I perfer the sleepy small town western black volcanic beaches of the states of Coalima and Michoacan myself.

[Neil Lindsey]

I've never wanted to go to Cuba and drop US currency like its going out of style more in my life than at this moment. But, since I don't want to go to prison, I'll have to get my dollars to Cuba via a Mexican proxy (tobacconist).

[BigPhil]

James,

According to the History Channel ...

Ol' Fidel had the nerve to borrow some Soviet missles and point them at Florida. (No, it's not at all like the missles we pointed at the Soviets for a couple of decades).

This makes Fidel an official Bad Dude, who desperately wants Weapons of Mass Destruction. His deparation is not sufficient to allow him to join the Axis Of Evil club, however, cause he ain't got no oil.

Please refrain from comments as to how we would be better off without Florida.

[Jennifer]

Does this mean it's also illegal for Americans to smoke pot in Amsterdam?

[Jason Bourne]

Jennifer,

I suspect that the drug laws are written to have such extra-territoriality in mind.

[kevrob]

JB mentioned Art. III, sec. 2, cl. 3 as a basis for extraterritoriality. I would have thought that clause was an authorization for the Congress to make law for the territories owned by the US that are not states, US-flagged ships on the high seas, and such places as US embassy grounds. Reading it as a general power to extend US law onto the territory of another sovereign state seems a real stretch, not that I don't think they wouldn't try to get away with it if they can.

Kevin

[swami]

Jennifer:

Because of the economic embargo it is illegal for americans to buy cuban products anyhere in the world. It is legal to smoke Cuban cigars, even in the United States (except of course in the many government mandated smoke-free bars), it is a treasury department regulation, the purchase or importation of the Cuban goods is what triggers the violation. This does not apply to drug laws.

[Jason Bourne]

kevrob,

Well, it could include all those things, plus extra-territoriality. To better discern whether that is possible one would have to look at the issue of extra-territoriality in the 18th century legal context as well as the debates and other non-constitutional sources available from the time. However the courts assume such power exists, and it has been exercised for a long time; which means that most will argue that there is a historical gloss that has been applied to the matter.

[stubby]

Jason: I have always wanted to see a black sand beach (but as a denizen of the Texas Gulf Coast, I'm grateful just to see white sand beaches.)

Are any of the hotels in Coalima and Michoacan all inclusive? We cheap.

[Jason Bourne]

stubby,

All-inclusive? Maybe if go to Puerto Vallarta? The kinds of places I stay in are, well, very cheap, locally run hotels that mostly cater to the Mexican working class. Remember, I'm Jason Bourne; I have to stay underground. 🙂

[Jason Bourne]

Yankees won tonight! Oh yeah! 🙂 I just keep on waiting for their pitching staff to collapse though.

[Mexile]

I live in a free country... Mexico.

They'll take my cohibas when they scrape them from my dead, tarry lungs

[TWC]

They took my Cohibas when the US court system said, nope, Cohiba is a trade name that belongs to the Cuban government (by virtue of the fact that Cuba nationalized the company). Therefore, the Cohibas you could buy here, which were much better than the Cuban counterparts, are not available any more.

Someone please tell me how a government that has no standing in the eyes of the US somehow has standing in a US court in a trademark dispute with a private company.