Here’s more on Moore — which is a transparent ploy by me to start another food fight in the comments section to this post about whether Moore is a big fat liar or a champion of the people. Export Law Blog has no official position on whether Moore is a BFL or a COTP (notwithstanding the title of this post, which is simply an opportunity to make a cheap Shakespearean pun)

Update 1:

Moore has responded to the inquiry of the Office of Foreign Assets Control (“OFAC”) through high-profile lawyer David Boies. After noting that Moore has been critical of the Bush administration, Moore’s lawyer stated:

For this reason, I am concerned that Mr. Moore has been selected for discriminatory treatment by your office.

Unfortunately, all I could find were stories that quoted parts of the Boies response. A full copy of the response, which presumably would provide some better documentation of this charge of discrimination, has not yet been released. We’ll post it when we find a copy.

Update 2:

The New York Post reports that the three workers from Ground Zero who accompanied Moore to Cuba to “demand” medical treatment at Guantanamo are also being investigated by OFAC. Unlike Moore, they can’t even claim to be eligible for the general license for journalists. Even so, every dollar spent by OFAC investigating these Ground Zero rescue workers is a dollar that OFAC can’t spend investigating the terrorists that were responsible for creating Ground Zero.

Update 3:

Michael Moore has announced that he has secreted a copy of Sicko in Canada out of fear that OFAC will confiscate a copy of the film. I’m not clear what under what theory OFAC could do such a thing unless Moore gave the Cuban government a financial interest in the film. Even then, the film couldn’t be blocked under the information exception to the Cuba embargo, which clearly permits transactions relating to films and other informational material. I don’t think I’m being cynical in suggesting that Moore is taking maximum advantage of OFAC’s decision to investigate him.

Last week the Office of Foreign Assets Control (“OFAC”) released its monthly summary of penalties imposed by the agency.

In one case the agency levied a fine of $31,336 and in another the fine was $2800. One of those two cases involved violation of the Cuban Assets Control Regulations and the other involved violation of the Weapons of Mass Destruction Control Regulations. Guess which one got the bigger fine.

If you guessed the Cuba case, you win the cigar (Honduran, of course). Acme Furniture got the $31,336 fine for shipping furniture from China to Cuba. Hecny Transportation got the smaller fine for dealing with goods produced by a foreign person designated under the WMD Control Regulations.

Three of the other cases reported by OFAC involved a perennial favorite of the OFAC enforcement staff: people who buy Cuban cigars over the Internet. One particularly dangerous cigar purchaser was fined $2304, only a few dollars less than it cost Hecny to deal with a designated purveyor of WMD. To paraphrase Kipling, a bomb is only a bomb, but a good cigar is a smoke!

A while back we reported on a fine that OFAC imposed on the Alliance of Baptists, a church group which obtained a license for its member churches to travel in Cuba. Some of the member churches had apparently engaged in tourist activities such as visiting museums and other tourist attractions. Licenses for missionary activity in Cuba require that the missionaries devote their entire time in Cuba to a religious program and forbid groups from engaging in any tourist activities while in Cuba.

According to this article from Associated Baptist Press, OFAC withdrew the penalty on May 17, finding that none of the trips in question involved any improper tourist activities. This finding was allegedly premised on a submission that the group made to OFAC which can be found here. That submission, however, seems to be a fairly direct confession that the groups did, in fact, devote time to tourism, making OFAC’s actions here a bit hard to understand without assuming that the decision was based more on politics than policy.

The problem for the Alliance of Baptists started when it submitted to OFAC in June 2005 an itinerary for a March 2005 trip to Cuba. After analyzing that itinerary, OFAC suspended the Alliance’s travel license and stated the following in the Notice of License Suspension:

The itinerary included approximately four hours of religious activities each day, on average. The rest of the time was filled with walking and driving tours, sightseeing and beach time in Varadero, and visits to farms, museums and craft markets.

The Alliance response to OFAC’s subsequent decision to fine the Alliance $34,000 included a number of affidavits from people who were on the trips to Cuba using the Alliance license. In each instance, the affidavits admitted tourist activity occurred but tried to put a religious gloss on those activities.

An affidavit from a member of the Baptist Church of the Covenant in Birmingham, Alabama, admitted that its group took a driving tour of Havana, claiming to be to sick to engage in the religious activities that had been scheduled for the group. The affidavit of the pastor of the First Baptist Church of Washington, D.C., admitted that the group toured Old Havana but claimed that this was part of its “partnership” with a Cuban church. A member of another church admitted in his affidavit that his group, among other things, engaged in a nature hike in a national park, took a tour of the city of Santa Clara, attended the ceremonial closing of a harbor, and spent a morning touring Old Havana. These were all claimed to be religious activities because they were done together with members of Cuban churches.

Regular readers know that I think that OFAC has better things to do than to pore over the itineraries of Baptists in Cuba to make sure that they don’t have any fun while there. But, 31 C.F.R. 555.516 explicitly requires that licensed religious travelers be engaged “in a full-time program of religious activities” while in Cuba. Normal tourist activities can’t be turned into religious activities simply by enlisting a Cuban church member as a tour guide. Without some clarification from OFAC, it certainly looks like its about-face on its proposed penalty had little to do with the merits of the case.