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OFAC Exemption CP Index
OFAC Exemption Counterplan ................................................................................................2
1NC + Notes ................................................................................................................................. 3
Explanation .............................................................................................................................. 4
How To Write The Counterplan Text ....................................................................................... 5
1NC — OFAC Exemption CP (1/2) ............................................................................................ 6
2NC/1NR ...................................................................................................................................... 8
Overview Explanation.............................................................................................................. 9
Diplomatic/Humanitarian Solvency....................................................................................... 10
Oil Solvency ........................................................................................................................... 11
Agriculture/Medicine Solvency ............................................................................................. 12
Travel Solvency ...................................................................................................................... 13
Targeted Sanctions Solvency ................................................................................................. 14
Empirical Solvency (1/2) ........................................................................................................ 15
They Say: “Doesn’t Solve Relations” ..................................................................................... 17
They Say: “OFAC Licensing Insufficient” (1/5) ....................................................................... 18
They Say: “No OFAC Authority” (1/2) .................................................................................... 23
They Say: “OFAC Not Binding” .............................................................................................. 25
They Say: “OFAC Activism Bad” ............................................................................................. 26
They Say: “Permute — Do Both” ........................................................................................... 27
They Say: “Permute — Do CP” (1/2) ..................................................................................... 28
They Say: “Agent CPs Bad” .................................................................................................... 30
Avoids Politics (1/3) ............................................................................................................... 31
Affirmative Responses ......................................................................................................... 34
Competition ............................................................................................................................... 35
Not Competitive .................................................................................................................... 36
Doesn’t Solve ............................................................................................................................. 37
General (1/3) ......................................................................................................................... 38
Perception ............................................................................................................................. 41
Links To Politics.......................................................................................................................... 42
2AC — Links to Politics (1/2) ................................................................................................. 43
1AR — Links to Politics (1/4) ................................................................................................. 45
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OFAC Exemption Counterplan
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1NC + Notes
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Explanation
Instead of removing sanctions via legislative (Congress) or regulatory
(Executive) action, this counterplan proposes that the Department of Treasury’s
Office of Foreign Assets Control use its licensing authority and enforcement
discretion to exempt the transaction(s) affected by the plan from enforcement
under the Cuban Assets Control Regulations. This arguably resolves the harms
outlined by the affirmative (because the exemptions facilitate trade in the
specified goods or services/activities) but does so without significant political
fallout.
This counterplan is most strategic against affirmatives that lift the embargo for
particular products or services. Instead of changing the embargo to make an
exception, the counterplan proposes that OFAC use its discretionary authority
to create an exemption.
This counterplan is also strategic against affirmatives that lift the whole
embargo and claim sector- or product-specific advantages. Against these plans,
the negative should counterplan to exempt the goods or services described by
the aff advantages.
The counterplan is susceptible to competition arguments. OFAC discretionary
action is arguably topical — so the negative will need to demonstrate the
counterplan is distinct from the plan. Researching the language of the plan
(“lift,” for example, was researched for this file) might provide a useful starting
point for crafting competition arguments.
The counterplan is also susceptible to solvency deficits based on perception or
foreign relations. For the same reason that it (arguably) avoids political fallout,
the counterplan does not generate the same international perception/signal as
would (partial) repeal of the embargo.
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How To Write The Counterplan Text
To write the counterplan, replace “[the good(s)/service(s) affected by the
plan]” with language specific to the transactions allowed by the plan.
Example plan text: As they pertain to crude oil reservoirs, the United
States federal government should lift its restrictions that preclude firms
from exploring, extracting, refining, importing, or coordinating
engineering and safety protocols with the Republic of Cuba.
Counterplan text based on example plan text: Using its licensing
authority and enforcement discretion, the United States Department of
Treasury’s Office of Foreign Assets Control should exempt transactions as
they pertain to crude oil reservoirs involving exploration, extraction,
refinement, importation, or coordination of engineering and safety
protocols with the Republic of Cuba from enforcement under the Cuban
Assets Control Regulations.
You might need to be creative in order to exempt the transactions affected by
the plan.
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1NC — OFAC Exemption CP (1/2)
Using its licensing authority and enforcement discretion, the United States
Department of Treasury’s Office of Foreign Assets Control should exempt
transactions involving [the good(s)/service(s) affected by the plan] from
enforcement under the Cuban Assets Control Regulations.
First, the counterplan solves via specific exemptions — OFAC has broad
discretion over sanctions enforcement.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
2. Ability to Mitigate Collateral Damage
Because OFAC prefers to formulate its sanctions program broadly , its economic sanctions can
affect the lives of unintended targets , such as ordinary citizens of foreign countries that have
no influence in their sanctioned government. n347 The broad reach of U.S. sanctions can also
unnecessarily put U.S. citizens and companies at a competitive disadvantage, undermine
international support for the sanctions programs, and even undermine the policy objectives
of the programs . n348 One way in which OFAC mitigates [*792] the collateral damage of
its holistic sanctions is by issuing licenses that permit U.S. citizens to export food and medical
supplies n349 and provide humanitarian aid n350 to people in sanctioned countries. In an
effort to avoid placing private enterprises at an unnecessary competitive disadvantage, which
can damage U.S. influence internationally and U.S. interests as a whole, OFAC may also allow
certain activities from an otherwise sanctioned country. n351 Additionally, OFAC issues
licenses to avoid interfering with the legitimate activities of international and charitable
organizations and to permit U.S. persons to participate in such organizations. n352 By
licensing these types of activities and transactions, OFAC focuses its sanctions and the
punitive consequences thereof , to the extent possible, on those in a position to produce the
desired change , rather than on innocent civilians and businesses . n353
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1NC — OFAC Exemption CP (2/2)
Second, the counterplan solves quickly and without political fallout — it doesn’t
require legislative or regulatory action.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
3. Adaptability
The third core competency of OFAC's licensing practices is the ability to adapt a particular
sanctions program quickly in response to political or circumstantial changes. n388 In
situations where sanctions goals can change with the tides of revolution, the slow march of
legislative and rulemaking processes may be incapable of producing a timely response .
Sanctions targeting government-owned or government-operated entities may need to be
lifted in response to a positive regime change or re-imposed in the event that the new
government fails. n389 OFAC often utilizes general licenses to manage these fast-paced
scenarios, either by easing sanctions through license adoption or strengthening sanctions
through license revocation. n390 By issuing or revoking general licenses, OFAC can react to the
changing political circumstances of a targeted country without requiring a regulatory
overhaul or the signing or withdrawal of an executive order . n391
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2NC/1NR
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Overview Explanation
The Department of Treasury’s Office of Foreign Asset Controls — OFAC — is
responsible for enforcing the embargo on Cuba. By using its licensing authority
and enforcement discretion, OFAC can exempt specific transactions from U.S.
sanctions without legislative or regulatory action. OFAC discretion is sufficient
to resolve the harms without touching the embargo — that’s Golumbic and
Ruff.
OFAC has broad discretionary authority to act without public notice — the
counterplan solves the case but avoids political fallout.
Chin 8 — Tracy J. Chin, Law Clerk to the Honorable Eric N. Vitaliano of the United States District
Court for the Eastern District of New York, J.D. Candidate at the New York University School of
Law, 2008 (“An Unfree Trade in Ideas: How OFAC’s Regulations Restrain First Amendment
Rights,” New York University Law Review (83 N.Y.U.L. Rev. 1883), Spring, Available Online to
Subscribing Institutions via Lexis-Nexis)
No standards govern OFAC's decision to create, end, or modify its general publishing licenses.
OFAC can add additional exceptions
[*1900]
to its general license at any time , n97 without
public participation , since the agency is not subject to
procedures
the
notice-and-comment rulemaking
of the Administrative Procedure Act. n98 At present, the general license for publication activities has only been added for four of
the embargo programs OFAC runs: Sudan, Iran, Cuba, and Burma. n99 Nothing
forecloses OFAC from removing the
general license from these sanctions programs, and nothing compels OFAC to extend general
license provisions to other embargo programs. n100 Currently, there are no protections for publishing activities under any of
the other country-based programs, so if OFAC wished to apply a different standard of evaluating activities ordinary and incidental to publishing in, for
example, its North Korean sanctions program, n101 it could do so. n102 ¶ OFAC also has
complete discretion over granting
or rejecting a specific-license application. OFAC officials' determinations are "guided by U.S.
foreign policy and national security concerns." n103 License denials constitute " final agency
action ," n104 and there is no formal appeals process ; OFAC merely assures applicants whose licenses are denied that it
will reconsider its decisions for "good cause." n105¶ There is no form for requesting a specific license, and each country's program has different
requirements. n106 While OFAC does make available interpretative guidance letters, it cautions against reliance on these letters, since it
reserves the right to change its interpretations [*1901] of its own regulations without any public
notice . n107 In addition, these letters are reactive and fact-specific. Instead, OFAC advises that the best way to ensure compliance with the
licensing scheme is to contact OFAC directly and seek the opinion of an OFAC official. n108 ¶ As the foregoing discussion illustrates, OFAC's
specific-licensing requirement for government officials places standardless discretion in the
hands of OFAC officials. Little guidance exists as to what a license application entails or what
its outcome will be: OFAC itself encourages guidance on permitted and prohibited activities through informal telephone calls, there exists
no specific form for license applications, and OFAC has never specified the information an applicant should provide in order to receive a license.
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Diplomatic/Humanitarian Solvency
Exemptions solve diplomatic and humanitarian harms.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
[*796] OFAC's licensing practices additionally reflect a desire to prevent U.S. economic sanctions from
interfering with the legitimate humanitarian and diplomatic activities of charitable non-governmental
NGOs) n373 and international organizations like the U.N. n374 or from unduly restricting
the ability of U.S. persons to transact with foreign diplomats. n375 The activities of these
organizations and diplomats may be aimed at brokering peace, developing international
trade, providing humanitarian aid, and other endeavors consistent with U.S. foreign policy. n376
Yet without licenses from OFAC , U.S. citizens would often be prohibited from working for
organizations (
international organizations dealing with sanctioned countries. n377¶ On a case-by-case basis
similar to specific licensing, OFAC issues registration numbers to NGOs that allow registered
organizations to conduct humanitarian or religious activities in countries or areas subject to
economic sanctions. n378 The permitted transactions for registered NGOs are sometimes specified by a [*797] published statement of licensing policy under
the sanctions program for which the registration number is issued; in other cases, OFAC will specify the permitted activities directly in its letter issuing the registration number.
n379 In addition, in connection with many of its sanctions programs, OFAC has issued general licenses permitting U.S. persons to conduct transactions with sanctioned countries
on behalf of international organizations. n380 For instance, OFAC's Iran sanctions program has a general license in place that authorizes U.S. citizens employed by the U.N., the
World Bank, the International Monetary Fund, the International Atomic Energy Agency, International Labor Organization, or the World Health Organization to perform
"transactions for the conduct of the official business of" those organizations. n381 OFAC issued this general license "in light of the U.S. interest in promoting the hiring and
Aside from using general licenses to permit the involvement
of U.S. persons with certain international organizations, OFAC also issues general licenses to
facilitate third-country diplomatic missions to sanctioned countries as well as the diplomatic
missions of some sanctioned countries to the United States. n383 General licenses issued under the Syria sanctions program typify
retention of Americans by international organizations." n382¶
[*798] these facilitative measures. n384 General License No. 1 under the Syria sanctions, for example, authorizes, with limited restrictions, "the provision of goods or services in
the United States to the diplomatic missions of the Government of Syria to the United States and the United Nations and payment for such goods or services." n385 Additionally,
General License No. 8 authorizes employees, contractors, and grantees of the U.N. and its "Specialized Agencies, Programmes, and Funds" to perform transactions for the
conduct of the official business of those U.N.-related entities. n386 Finally, General License No. 12 authorizes "U.S. depository institutions, U.S. registered brokers or dealers in
securities, and U.S. registered money transmitters ... to process funds transfers for the operating expenses or other official business of third-country diplomatic or consular
missions in Syria," so long as the transfer does not in any way involve the Syrian government or a person designated on the SDN List. n387
These general licenses demonstrate OFAC's desire to avoid interference with U.S. foreign
relations . A frequent goal among U.S. sanctions programs is to incentivize political or social
change in a targeted country. By issuing general licenses that facilitate the dealings of
international organizations, sanctioned countries' diplomats in the United States, and
American and third-country diplomats in sanctioned countries, OFAC avoids frustrating the
efforts of individuals and entities that share that same goal.
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Oil Solvency
OFAC can issue licenses to allow companies to contain and clean up Cuban
spills.
Belogolova 12 — Olga, staff reporter, National Journal, 4/27,
http://www.nationaljournal.com/energy-report/cuban-offshore-drilling-an-unsettling-backdropfor-obama-visit-to-florida-20120222, “Cuban Offshore Drilling an Unsettling Backdrop for
Obama Visit to Florida,” ADM
While President Obama is not likely to bring up this controversial issue when he speaks about
energy in Miami on Thursday, energy experts and some U.S. lawmakers say the United States
could be more proactive in either preventing a spill or stopping the operations entirely.
Washington’s Cold War-era embargo on Cuba, which turned 50 earlier this month, allows some
exceptions for the import of U.S. food and medicine for humanitarian reasons, but it still makes
it extremely difficult for the U.S. to respond to a spill not far from its shores. Without special
licenses from the Commerce and Treasury departments , U.S. companies that would work to
contain or clean up any spill in Cuban waters are banned from doing any work there. So far,
the U.S. government has issued several such licenses, but not nearly enough in the event of a
major spill. It took thousands of ships to respond to the disastrous BP oil spill in the Gulf of
Mexico in 2010. According to the International Association of Drilling Contractors, less than 5
percent of the resources used to cap BP’s Macondo well could be leveraged by Cuba at the
moment. The only thing that the U.S. can do, it has already done, says Michael Bromwich,
former director of the Interior Department’s offshore oversight arm who now advises the
Center for Strategic & International Studies on energy issues.
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Agriculture/Medicine Solvency
OFAC can issue licenses for agricultural commodities and medical items
GT 9 — GreenbergTaurig LLP, ATTORNEYS AT LAW, September,
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=15&ved=0CJABEBYwDg
&url=http%3A%2F%2Fwww.gtlaw.com%2Fportalresource%2Flookup%2Fwosid%2Fcontentpilotcore-40113516%2FpdfCopy.name%3D%2FGTAlert_New%2520Gen%2520Lic%2520for%2520AgMed%252
0Cuba%2520Travel_Sep2009.pdf%3Fview%3Dattachment&ei=kDpUYjRMsKVygHy_YHwBA&usg=AFQjCNHhSnsOy348JVJyRrDsYGRomo5skA&sig2=rfnGEiEpIta_
_DgqzQufbw, “New General License for AgMed Travel to Cuba,” ADM
On September 3, 2009, the Office of Foreign Assets Control (OFAC) amended the Cuban Assets
Control Regulations (the “Cuba Regulations”), 31 C.F.R. Part 515 (2009), providing a General
License for travel to Cuba for marketing and sales of eligible agricultural commodities and
medical items . The revisions will be published in the September 8, 2009, Federal Register, but
are effective as of September 3, 2009. The revisions implement provisions of the 2009 Omnibus
Appropriations Act (“Omnibus Act”) and President Obama’s April 13, 2009, initiative lessening
restrictions imposed against Cuba (see previous GT Alerts, Cuba: Congress Begins To Push Open
The Door; White House Continues Momentum on Relaxing Cuban Restrictions). The new
General License, to be published at Section 515.533(e) of the Cuba Regulations, permits U.S.
individuals, employees of U.S. companies and employees of subsidiaries of U.S. companies to
travel to Cuba without prior authorization from OFAC for the marketing and sale of eligible U.S.
agricultural commodities, medicine and medical devices to Cuba, under the Trade Sanctions
Reform and Export Enhancement Act of 2000 (TSRA), (also known as the “AgMed Program”).
BIS and OFAC can issue licenses for agricultural and medical sales – status quo
regulations prohibit banks from financing trade
Jurenas 4 — Remy, Congressional Research Service, 9/17,
http://www.cnie.org/nle/crsreports/briefingbooks/Agriculture/Economic%20Sanctions%20and
%20Agricultural%20Exports.htm, “Economic Sanctions and Agricultural Exports,” ADM
The interim rules to implement the 2000 Act's provisions took effect on July 26, 2001. The
Department of Commerce's Bureau of Industry and Security (BIS) regulations allow for the
commercial sale of agricultural products to Cuba without an export license if other Federal
agencies do not object within 11 days. The Department of Treasury's Office of Foreign Assets
Control's (OFAC) rules require an exporter to obtain a one-year export license for sales of
agricultural and medical sales to Iran and Sudan and institute various checks in the process to
ensure that only sales to permitted buyers are approved. If a reviewing agency objects within 11
days, the license application is denied; if a "concern" is raised, OFAC has 30 more days to review
the license request. Both agencies use the same detailed definition for agricultural and medical
products. OFAC's regulations continue policy that prohibits U.S. banks from financing the sale
of permitted agricultural product sales to Cuba, Iran and Sudan. Any approved sale must be
paid for in cash or financed through eligible third country banks. With the normalization of U.S.
political and economic relations with Libya announced in late April 2004, agricultural sales to
that country are no longer subject to TSRA provisions.
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Travel Solvency
Status quo process for travel licenses is complex and slow – OFAC can alter
regulations to facilitate more effective licensing.
Cave 12 — Damien, NY Times reporter, 9/11,
http://www.nytimes.com/2012/09/16/travel/licensing-rules-slow-tours-to-cuba.html?_r=0,
“Licensing Rules Slow Tours to Cuba,” ADM
The Obama administration loosened restrictions on travel to Cuba early in 2011, allowing more than 10,000
tourists without familial, scholarly or professional ties to go there using tour operators with what are known as people-to-people
licenses. But
the trips, which license guidelines say should focus on “educational exchange activities that will result in
meaningful interaction” between Americans and Cubans, have faced criticism that they are thinly veiled tourist
jaunts devoted to salsa dancing rather than serious pursuits. As a result, the process for renewing licenses has
become more complicated and slower. Several high-profile institutions are still awaiting approval
while others have already seen their licenses expire, including Insight Cuba, which was forced to lay off all 22 of
its employees last month after filing its first renewal application in March. And now, in the prime time for planning travel to Cuba
during its peak season, which starts in November, dozens of other trips are on hold, leaving tour operators fearful that the window
of opportunity to visit may be closing for many travelers. It wouldn’t be the first time. President Bill Clinton created the people-topeople license in 1999, and it came under fire from conservative Cuban politicians who argued that it allowed travel that was more
pleasure than business. The Bush administration eliminated the license in late 2003, and the Obama administration revived it last
year. This time around, Senator Marco Rubio, a Florida Republican, has led the charge against the licenses. And his main complaint
appears to be dancing. In a speech before the Senate last December, Senator Rubio, whose parents were born in Cuba, mocked the
itinerary of an Insight Cuba trip because it included visits to several places where people would be encouraged to “dust off their
dancing shoes.” “This is an important part of this trip,” he said, adding that salsa dancing was not “purposeful travel,” as the law
required, nor did it square with the president’s stated goal of encouraging the creation of “a Cuba that respects the basic rights of all
its citizens.” Senator Rubio also highlighted meetings with Cuban cultural officials, a common feature of these trips, which he said
“borders on indoctrination” and threatened to block Roberta Jacobson’s nomination as the top United States diplomat for Latin
American until his concerns were addressed. He rescinded his opposition to her appointment in March. A few weeks later, the
Treasury Department Office of Foreign Assets Controls issued new regulations demanding
more-specific justification for groups seeking people-to-people licenses. Alex Conant, a spokesman for
Mr. Rubio, called it “an overdue and welcome step.” The changes, meant, though, that many tour operators had
to refile applications that they had already submitted, in some cases just weeks before their licenses expired. Insight Cuba
had to refile its renewal application, which grew to 174 pages from 10, Mr. Popper said, under new rules requiring that applicants
“describe how the educational and people-to-people exchanges you propose would enhance contact with the Cuban people, and/or
support civil society in Cuba, and/or help promote the Cuban people’s independence from Cuban authorities.” An Obama
administration official said that the new regulations were not meant to “emasculate the program,” and Jeff Braunger,
program manager for Cuba travel licensing at the Office of Foreign Assets Controls, said that his office
was doing its best to quickly process all the applications. But many tour operators say that in practice, the
program is dying a slow death. They say that if the licenses are not renewed soon, Americans will not be the only ones
losing out. At a time when Cuba has cracked open the door to a market economy, Cubans will also lose opportunities
to earn money and a connection to American travelers.
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Targeted Sanctions Solvency
OFAC licensing resolves problems with holistic sanctions regimes — the
counterplan facilitates targeted enforcement.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
[*732] Sanctions vary greatly in scope and objective. At one end of the continuum, a sanctioning
government may attempt to force complete regime change through a comprehensive
embargo on trade with the target. n14 At the other end, a surgical effort to freeze the assets of
a single government official or other individual or entity may be employed to influence a
change in policy. n15¶ United States commitment to economic sanctions originated in the aftermath of World War I. With the atrocities of that conflict fresh in the minds of the American
public, President Woodrow Wilson championed sanctions as a potential alternative to all-out war. n16 Since that time, the United States has been the predominant
force on the international sanctions scene, leveraging its considerable economic power in
pursuit of a variety of foreign policy objectives. n17 The U.S. economic sanctions regime utilizes
a variety of techniques , from embargoes to reductions in foreign aid. n18 Perhaps the most
prominent of such techniques are the trade restrictions and asset freezes that compose the
twenty-two sanctions programs currently administered by the Office of Foreign Assets Control (OFAC), a component
of the Department [*733] of the Treasury. n19 For the past fifty years, OFAC has been the agency through which
the U.S. government has implemented its sanctions regime. n20¶ OFAC employs a myriad of
restrictive measures to effectuate U.S. sanctions strategy. Many of its sanctions programs
make use of targeted or " smart " sanctions, which freeze the assets of and restrict trade with designated individuals and entities, such as proliferators of
weapons of mass destruction (WMD), narcotics traffickers, and terrorists and their supporters. n21 Other smart sanctions target persons who threaten democratic processes within a particular country or region,
OFAC is best known, however, for its " holistic " n23 sanctions that target
specific countries or their governments, such as Cuba, Iran, and Syria, and impose broad- [*734] based,
categorical restrictions on doing business with those countries. n24¶ The U.S. experience, both
historically and in connection with the events of the Arab Spring , has revealed significant challenges
such as Liberia, the Western Balkans, and the Congo. n22
attendant to the holistic sanctions programs that are fundamental to its strategic approach . n25
Comprehensive trade restrictions can create conflict-of-law scenarios for businesses
operating within the sanctioned country as well as preclude activities that are deemed
benign and not inconsistent with U.S. foreign policy. n26 They can also impose an excessive
hardship on innocent citizens and businesses in the targeted countries whose interests the
United States is trying to protect by imposing sanctions in the first place. n27 To control for these
excesses, OFAC employs a robust licensing practice . n28 Licensing involves the exemption of
certain categories of transactions or, upon application, specific transactions that would
otherwise run afoul of government sanctions. n29
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Empirical Solvency (1/2)
Libya proves OFAC’s effectiveness and rapid response.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
The United States' use of economic sanctions in response to the 2011 Libyan civil war provides a
more recent example of the use of general licenses to adapt to a rapidly evolving situation . n399
On February 25, 2011, President Obama signed Executive Order 13,566 (EO 13,566), which prohibited all
dealings by U.S. persons in the assets of certain named members of the Muammar Gaddafi regime,
any person that the Treasury Secretary designated, and generally all persons involved in the
political oppression of the Libyan people. n400 Additionally, EO 13,566 froze the assets of and prohibited U.S. persons from
transacting with the Government of Libya, its agencies and controlled entities, and the Central Bank of Libya. n401 In imposing these
sanctions, however, the Obama administration understood that such broad measures could
eventually become unnecessary and even harmful to a new Libyan government. n402 Thus, as is
commonplace with U.S. sanctions, EO 13,566 authorized the Treasury Department to issue
licenses as well as delist designated persons. n403¶ The broad Libya sanctions triggered a torrent
of specific [*802] license applications, many of which concerned the same acceptable practices. n404 Thus, OFAC initially
used its licensing power to issue general licenses responding to the common issues addressed
in the specific license applications it received. n405 These general licenses included authorizations of transactions with
financial institutions controlled by the Libyan government but were organized under the laws of another country, n406 transactions involving the
provision of goods and services to the Libyan government's diplomatic missions, n407 transactions for certain legal services, n408 and transactions
incident to the normal operations of investment funds that had sanctioned persons as non-controlling minority investors. n409¶ As
the Libya
conflict abated and the Gaddafi regime became less of a threat to the Libyan people, OFAC
issued numerous general licenses that restored normal economic relations between the United
States and Libya. n410 Indeed, approximately one month after the commencement of NATO operations, n411
OFAC issued a general license permitting transactions related to certain oil, gas, and
petroleum exports from Libya occurring under the auspices of the Transitional National Council of Libya
(TNC), n412 a then- [*803] emerging anti-Gaddafi group which France had recognized as the sole representative of the Libyan people. n413 In August
2011, to reconcile the United States' recognition of the TNC as the legitimate governing authority in
Libya with the contemporary sanctions targeting the Libyan government, OFAC issued a
license generally authorizing all transactions with the TNC. n414 Following the fall of Tripoli,
moreover, OFAC licensed transactions with the Libyan government and central bank. n415 Finally, in
December 2011, OFAC issued a general license freeing the remainder of those entities' assets . n416
While these general licenses reduced the force of the U.S. sanctions against Libya, EO 13,566
remains in place, and thus OFAC retains the flexibility to ratchet up its sanctions should a
change in Libyan politics militate such action. n417
15
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
Empirical Solvency (2/2)
OFAC can quickly adjust licensing and enforcement — Syria proves.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
Though the Syrian uprising in many ways resembled the concurrent Libyan civil conflict, OFAC
took a markedly different [*804] approach with the al-Assad regime. n418 In Syria, six general
licenses accompanied the release of EO 13,582. n419 Several of these licenses, such as those
authorizing transactions with Syrian diplomats and the provision of certain legal services,
mirrored the licenses issued under the Libya program; others anticipated activities that, in the
absence of a general license, would have been the subject of burdensome specific license
requests. n420 Recognizing the role social media played in the 2009 Iranian election protests,
one general license allows the export of certain services incident to Internet-based personal
communications. n421 This strategy suggests that OFAC learned from its experience with
Libya , where the agency had scrambled to address a wave of specific license applications
with responsive general licenses. n422 As some commentators have argued, the United States'
approaches in the Libya and Syria programs suggest that OFAC may couple the imposition of
future sanctions initiatives with appropriate general license carve-outs , the revocation or
limitation of which could easily adjust the scope and severity of the restrictions, as exigencies
warrant . n423
16
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “Doesn’t Solve Relations”
OFAC action sufficient to boost relations — Iran proves.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
[*795] To avoid economic harm to individuals and businesses that have no influence in a
targeted government's activities, OFAC will exempt certain types of transactions from an
otherwise comprehensive ban . n368 For instance, in 2000, OFAC issued a general license
authorizing the importation of Iranian-origin foodstuffs, carpets, and related transactions.
n369 This licensure was part of the United States' overtures toward Iran during the end of the
Clinton administration, through which the United States attempted to foster goodwill
between Iranians and Americans while still maintaining restrictive measures targeting the
Iranian government as reprisal for its nuclear program and sponsorship of terrorism. n370
Though pistachio, caviar, and carpet exports may compose a relatively small portion of Iran's
overall trade, the authorization of these imports surely gave a boost to the private Iranian
businesses that produce these goods. n371 It also may have restored some cultural ties
between the United States and Iran. n372
17
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “OFAC Licensing Insufficient” (1/5)
OFAC discretion enables optimal sanctions.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money Laundering, Anti-Bribery and Government Sanctions
Compliance Officer at Goldman Sachs & Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United States Attorney with the United States
Attorney's Office for the Southern District of New York, and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal & Manges LLP, 2013
(“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38 N.C.J.
Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via Lexis-Nexis)
D. The "Core Competencies" of OFAC Licensing
While OFAC's licensing practices may be opaque, they provide OFAC with the ability to
maximize the efficacy of U.S. sanctions programs. There are three general attributes or
" core competencies " associated with OFAC licensing that optimize U.S. sanctions: (1) the
ability to operate flexibly , (2) the ability to mitigate collateral damage , and (3) the ability to
adapt to changed circumstances in the target of a sanctions program.
General and specific licenses enable targeted exemptions.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money Laundering, Anti-Bribery and Government Sanctions
Compliance Officer at Goldman Sachs & Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United States Attorney with the United States
Attorney's Office for the Southern District of New York, and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal & Manges LLP, 2013
(“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38 N.C.J.
Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via Lexis-Nexis)
C. OFAC's Licensing Practices
The holistic sanctions programs OFAC favors carry a significant risk of excess . n257 The broadbased, categorical restrictions against U.S. persons doing business with certain countries can
create conflict of law scenarios as well as frustrate activities that are deemed benign and
not inconsistent with U.S. foreign policy . n258 They can also disproportionately impact innocent
citizens and businesses in the targeted countries whose interests the United States is trying to
protect by imposing sanctions in the first place. n259 To control for the potential excesses of
such a system, the agency employs a robust licensing practice . n260¶ OFAC processes tens of
thousands of license and interpretative guidance requests annually. n261 While the bulk of
these are Cuban travel license requests under the Trade Sanctions Reform and Export Enhancement Act n262 (TSRA), n263
some implement specific [*777] U.S. foreign policy decisions . n264 Others respond to the inevitable conflicts and
unanticipated situations that arise under any comprehensive sanctions regime. n265 OFAC's pervasive use of licensing reflects
the agency's proclivity to assert its jurisdiction broadly , making any needed curtailments by
granting exemptions , rather than running the risk of under-regulating. n266¶ OFAC licenses
typically entitle the licensee or a larger class of persons to engage in a transaction or
transactions that would [*778] otherwise be prohibited by one of the U.S. sanctions programs.
n267 OFAC issues two types of licenses: (1) general licenses , n268 which are made public and
provide universal exemptions to a given set of sanctions, and (2) specific licenses , which are
granted only upon application and authorize only the applicant to engage in a specific
transaction or category of transaction, often with significant limitations and reporting
requirements. n269
18
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “OFAC Licensing Insufficient” (2/5)
General licenses are sufficient — North Korea proves.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
1. General Licenses
General licenses are set forth in OFAC's published regulations and authorize particular types
of transactions for a class of persons. n270 If a general license covers a transaction, the class of
persons specified in the general license can engage in that activity without having to apply
individually to OFAC for permission. n271 The class of persons is often U.S. persons generally, n272
but in some [*779] cases OFAC will specify a narrower class. n273 ¶ General licenses serve a variety of purposes. OFAC
often issues general licenses to resolve ambiguities or uncertainties in a given sanctions
program, which arise most commonly in programs imposing broad measures. n274 In cases where
ambiguity or uncertainty is unanticipated, OFAC may issue general licenses in response to a deluge of specific license applications voicing similar
concerns. n275 Where possible, however, OFAC prefers to anticipate these problems and pair new regulations with appropriate general licenses. n276¶
This was the case with the sanctions imposed against the Palestinian Authority in 2006. n277 In the 2006 Palestinian parliamentary elections, Hamas, a
designated terrorist entity under several U.S. sanctions programs, won a majority of seats from the Fatah party. n278 Hamas' victory and newfound
position of power within the Palestinian Authority led OFAC to prohibit transactions between U.S. citizens and the Authority, on the ground that Hamas
had a property interest in those transactions. n279 Five general [*780] licenses accompanied this prohibition, however. n280 Several of these licenses
were designed to ensure that the sanctions did not unduly disrupt activity deemed legitimate and necessary, including authorizations of transactions by
U.N. officials and transactions incident to the daily lives of U.S. citizens living in the region. n281 Two of the general licenses focused on targeting the
wrongdoers while minimizing collateral damage. n282 General License No. 4 focused the pressure on Hamas by permitting transactions with Fatah
party leader President Mahmoud Abbas and his affiliates, the Palestinian judiciary, and non-Hamas members of the Palestinian Legislative Council. n283
General License No. 6 authorized in-kind donations of medicine, medical devices, and medical services to the Ministry of Health. n284 ¶ There is an
advantage in bundling new sanctions with general licenses in this way. General
licenses authorize the types of
transactions that the U.S. government has no interest in frustrating. n285 The President can, of
course, cancel a sanctions program by executive order . n286 When the United States promulgates such
exemptions as licenses rather than full-fledged executive or legislative measures, however, OFAC
retains the ability to revoke or amend the exemptions in the case of abuse or changed
circumstances. n287 Even when OFAC revokes a general license, specific licensing remains
available to ensure that legitimate and desirable transactions get through. n288¶ [*781] In other
cases, OFAC may issue a general license to effectuate or facilitate the actions or policies of a
higher executive authority , such as the Secretary of the Treasury, the Secretary of State, or
the President. n289 For example, as discussed in Part III.B above, in the mid-1990s, in response to representations
from North Korea that it would suspend its nuclear program, the United States agreed to reduce
its trade and economic sanctions against North Korea, which, until that point, constituted a virtual embargo on all
trade. n290 In
addition to amending the regulations it had in place, OFAC issued general licenses
allowing exports to North Korea, investment in a number of North Korean industries, and
brokered transactions. n291 OFAC also licensed the importation of most North Korean-origin
goods and raw materials, although these imports required prior approval from OFAC and affirmations from the importer that the
importation of the goods was not otherwise prohibited by various arms control measures that remained in place. n292
19
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “OFAC Licensing Insufficient” (3/5)
Specific licenses create exemptions without public comment.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
2. Specific Licenses¶ In addition to general licenses, OFAC issues specific licenses, which authorize a particular
transaction upon the written application of the prospective licensee. n293 OFAC's use of specific
licenses reflects the reality that in a comprehensive sanctions regime, it is impossible to
anticipate or generally authorize everything. n294 Unlike general licenses, specific licenses only
authorize the applicant to engage in the specified activity and are typically not made public .
n295¶ [*782] The requirements for an application for a specific license are detailed in the C ode of
Federal Regulations. n296 In general, requests for specific licenses need not follow a specific format. n297 OFAC provides an
application form only for a few categories of requests, including applications for the release of funds blocked at a U.S. financial
institution and applications for licenses to export agricultural commodities, medicine, and medical devices to Iran or Sudan under
the TSRA. n298 As a baseline, however, every specific license application must be in writing and provide a detailed description of the
proposed transaction and the names and addresses of each of the individuals or companies involved. n299 Additionally, the
sanctions program under which the applicant seeks a specific license may require additional information from the applicant. n300¶
OFAC's decision-making process with respect to specific license applications is less than
transparent . n301 OFAC generally [*783] does not publish the factors it takes into consideration
when making a determination on a specific license application. n302 Additionally, although OFAC
issues opinion letters, regulatory interpretations, and other statements, the organization can
change its opinion without public notice . n303 This lack of transparency is due in part to OFAC's
desire to maintain its discretion and not bind itself to any formula . n304 Moreover, OFAC does
not want to create a specific licensing process that is so transparent as to facilitate the
fabrication by applicants of factual circumstances that skirt U.S. sanctions . n305
20
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “OFAC Licensing Insufficient” (4/5)
Licensing authority provides sufficient leeway to exempt particular
transactions.
Chin 8 — Tracy J. Chin, Law Clerk to the Honorable Eric N. Vitaliano of the United States District
Court for the Eastern District of New York, J.D. Candidate at the New York University School of
Law, 2008 (“An Unfree Trade in Ideas: How OFAC’s Regulations Restrain First Amendment
Rights,” New York University Law Review (83 N.Y.U.L. Rev. 1883), Spring, Available Online to
Subscribing Institutions via Lexis-Nexis)
B. OFAC's Licensing Scheme
OFAC exempts certain transactions from the broad prohibitions imposed under sanctions
programs, so that "transactions consistent with U.S. policy are permitted" even with
otherwise sanctioned countries or individuals. n29 There are two possible licenses OFAC can
grant to create such exemptions: general licenses , which give blanket authority to engage in
certain preapproved activities, n30 and specific licenses , n31 which are issued for a particular
purpose. n32
If a person engages in a prohibited activity or transacts with a prohibited person either without
or beyond the scope of a license, OFAC will consider such conduct to be a violation of its
embargo program, [*1889] subject to criminal and civil penalties. Such penalties for OFAC
violations can be quite high: Criminal fines can range from $ 50,000 to $ 10,000,000, and
imprisonment can range from ten to thirty years for willful violations; n33 civil penalties are
lower but can still be steep - up to $ 1,075,000 for each violation - depending on the sanctions
program and the nature of the violation. n34 In response to congressional criticism in 2002,
OFAC drafted a detailed procedure for appealing penalties assessed against an individual or
organization based on the violation of a license, rule, or regulation. n35 However, there is no
equivalent opportunity to contest a license denial. A license denial is a final agency action and
can only be reviewed for "good cause." n36
Violations of OFAC embargo programs incur strict liability n37 on the theory that even an
inadvertent violation "can jeopardize critical foreign policy and national security goals." n38
Nonetheless, self-disclosure of past violations is considered a mitigating factor with regard to
the civil penalties that OFAC might assess. n39 Overall, [*1890] OFAC has substantial leeway
through its licensing power to exercise tight control over a broad range of activities.
21
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “OFAC Licensing Insufficient” (5/5)
Licensing provides OFAC with sufficient flexibility.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money Laundering, Anti-Bribery and Government Sanctions
Compliance Officer at Goldman Sachs & Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United States Attorney with the United States
Attorney's Office for the Southern District of New York, and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal & Manges LLP, 2013
(“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38 N.C.J.
Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via Lexis-Nexis)
1. Flexibility
Perhaps the most important aspect of OFAC's licensing practices is the ability to operate
flexibly . This flexibility is apparent in many areas. For instance, OFAC has leveraged licensing to
manage conflict-of-law situations. n317 The extraterritorial application of certain U.S. sanctions programs, such as the Cuba
sanctions, can adversely affect the interests of subsidiaries of U.S. businesses operating in countries that allow trade with Cuba and its people. n318 As
mentioned in Part III.A above, several countries have gone so far as to enact "blocking laws" that prohibit entities under their jurisdictions from
complying with U.S. sanctions programs. n319 Canada, n320 the EU, n321 [*787] and Mexico n322 each have blocking or anti-boycott laws in place to
counteract U.S. sanctions against Cuba, for example. n323 As a result, situations can arise where a foreign subsidiary of a U.S. company is faced with a
Morton's Fork: Comply with OFAC regulations and face prosecution by the business's country of operation, or comply with local obligations and risk the
imposition of penalties by OFAC. n324 ¶ On
some occasions, these dilemmas are resolved by enforcement
action . n325 More typically, however, they are resolved by licensing . n326 A U.S. company might indicate to its
subsidiary [*788] operating in a jurisdiction that is subject to blocking legislation that it is company policy not to do business with Cuba. n327 The
subsidiary usually informs its home-state authority that it has received such a directive and informs its parent that local law precludes it from complying
with OFAC sanctions. n328 The parent company then alerts OFAC to the impasse, thus establishing the "foreign sovereign compulsion defense," which
allows both parent and subsidiary to represent that they have complied as diligently as possible with their home country's laws. n329 ¶ In most cases,
"papering this Mexican standoff" works. n330 While the subsidiary may still face repercussions for violating U.S. sanctions, OFAC will often grant a
specific license in these situations, provided that U.S. foreign policy does not militate in favor of enforcing the sanction. n331 Granting a specific license
also allows OFAC to closely monitor the subsidiary's trade with the sanctioned jurisdiction per the reporting requirements of the [*789] license, and
OFAC retains the ability to revoke the license if it is being abused (for example, if the U.S. parent company uses the subsidiary merely as a means of
circumventing OFAC sanctions). n332 ¶ OFAC also aspires
to remain flexible with its sanctions by granting
specific licenses to inadvertent violators and persons attempting in good faith to meet their
obligations under the regulations. n333 Although it appears from OFAC's guidance that even "inadvertent" violations of U.S.
economic sanctions are subject to penalties, n334 OFAC's regulations make clear that it will consider the
willfulness or recklessness of the violation when assessing penalties. n335 In addition to its consideration of a
violator's state of mind as a mitigating factor, OFAC occasionally issues specific licenses to allow inadvertent violators to reverse a prohibited
transaction. n336 For example, OFAC's Iran sanctions prohibit, among other activities, the purchase, sale, or transportation of goods of Iranian origin.
n337 If, however, a person purchased goods without knowing or having reason to know that the goods were of Iranian origin, OFAC may grant that
person a specific license to allow him to dispose of the goods. n338 ¶ Further
illustrating its flexibility, OFAC may use
licensing to allay the compliance concerns of persons doing business in politically volatile
situations where the distinction between a sanctioned party and a non-sanctioned
government or country [*790] becomes blurred. n339 Such was the case in Lebanon following Hezbollah's
transition from a militia group to an influential political party. n340 Following the assassination of former Lebanese Prime Minister Rafik Hariri and the
subsequent withdrawal of the Syrian military from Lebanon, n341 Hezbollah parlayed its military power into a position of prominence in the Lebanese
government, culminating with the group's securing fourteen seats in the 2005 Lebanese parliamentary election. n342 This action put companies doing
business in Lebanon in a precarious position. Although OFAC does not administer a sanctions program against the government of Lebanon, Hezbollah
was, and remains, a [*791] designated terrorist entity on OFAC's SDN List. n343 Thus, companies operating in Lebanon, such as those doing business
with Lebanon's central bank or state-owned enterprises, expressed concern that OFAC may view such dealings as running afoul of U.S. sanctions
against Hezbollah. n344 As a measure of assurance to such companies and so as to avoid suffocating legitimate business in Lebanon and risk
destabilizing the country, OFAC
issued specific licenses for transactions that did not run the risk of
furthering Hezbollah's extremist objectives. n345 In doing so, OFAC demonstrated a willingness
to work with companies that make good-faith efforts to comply with U.S. sanctions. n346
22
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “No OFAC Authority” (1/2)
OFAC has broadly delegated authority to administer sanctions.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money Laundering, Anti-Bribery and
Government Sanctions Compliance Officer at Goldman Sachs & Co., Lecturer-in-Law at the University of Pennsylvania Law School,
former Assistant United States Attorney with the United States Attorney's Office for the Southern District of New York, and Robert S.
Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal & Manges LLP, 2013 (“Leveraging the Three Core
Competencies: How OFAC Licensing Optimizes Holistic Sanctions,” North Carolina Journal of International Law & Commercial
Regulation (38 N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via Lexis-Nexis)
IV. OFAC and the Administration of U.S. Sanctions Protocols
Since 1950, OFAC has been the agency responsible for implementing U.S. economic sanctions . n221
According to its mission statement, OFAC "administers and enforces economic and trade
sanctions based on U.S. foreign policy and national security goals." n222 Although the U.S.
Constitution vests the power to regulate trade with Congress, when it comes to sanctions,
Congress has traditionally delegated that authority to the President , most prominently via
TWEA, IEEPA, and the Export Administration Act (EAA). n223 "Together, these statutes provide the main
legal basis for the most comprehensive economic sanctions regime in modern history." n224
* TWEA = Trading with the Enemy Act of 1917; IEEPA = The International Emergency Economic
Powers Act
OFAC administers the embargo by enforcing the Cuban Assets Control
Regulations.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money Laundering, Anti-Bribery and
Government Sanctions Compliance Officer at Goldman Sachs & Co., Lecturer-in-Law at the University of Pennsylvania Law School,
former Assistant United States Attorney with the United States Attorney's Office for the Southern District of New York, and Robert S.
Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal & Manges LLP, 2013 (“Leveraging the Three Core
Competencies: How OFAC Licensing Optimizes Holistic Sanctions,” North Carolina Journal of International Law & Commercial
Regulation (38 N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via Lexis-Nexis)
For most of its existence, OFAC has been responsible for overseeing
the oldest and most controversial U.S.
the Cuba embargo , which also began as a Cold War-era effort to stop the spread of Communism and force a regime
change. n74 President Eisenhower ordered a partial embargo in 1960 in response to Fidel Castro's ties to the Soviet Union and
sanctions program,
the Cuban government's mass expropriation of U.S. property. n75 In [*745] 1962, following the unsuccessful Bay of Pigs invasion, President
Kennedy banned all imports from Cuba, creating a total embargo on trade with Cuba that in most
respects remains in place today. n76 This embargo was and remains implemented through
OFAC's Cuban Assets Control Regulations (CACR). n77 The CACR were imposed under the
President's "national emergency" authority under TWEA; although an amendment to TWEA restricted its application to
wartime emergencies, the CACR were "grandfathered," and are the only U.S. sanctions presently maintained
under a TWEA national emergency. n78
* TWEA = Trading with the Enemy Act of 1917
23
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “No OFAC Authority” (2/2)
OFAC has broad authority to determine exemptions.
Chin 8 — Tracy J. Chin, Law Clerk to the Honorable Eric N. Vitaliano of the United States District
Court for the Eastern District of New York, J.D. Candidate at the New York University School of
Law, 2008 (“An Unfree Trade in Ideas: How OFAC’s Regulations Restrain First Amendment
Rights,” New York University Law Review (83 N.Y.U.L. Rev. 1883), Spring, Available Online to
Subscribing Institutions via Lexis-Nexis)
A. Overview of OFAC's History, Mission, and Structure
OFAC is responsible for administering and enforcing "economic and trade sanctions based on
[U.S.] foreign policy and national security goals against targeted foreign countries, terrorists,
international narcotics traffickers, and those engaged in activities related to the proliferation
of weapons of mass destruction." n14 The agency is charged with enforcing the Trading with
the Enemy Act (TWEA), n15 which gives the executive branch the power to wage economic
warfare against hostile nations during wartime, n16 and the International Emergency Economic
Powers Act (IEEPA), which provides for the application of TWEA powers beyond wartime. n17
[*1887] OFAC is the successor agency to the Office of Foreign Funds Control (FFC), whose
"initial purpose was to prevent Nazi use of the occupied countries' holdings of foreign exchange
and securities" during World War II. n18 The FFC conducted "economic warfare against the Axis
powers by blocking enemy assets and prohibiting foreign trade and financial transactions." n19
OFAC itself was created in 1950, when China entered the Korean War; President Truman
declared the event a national emergency and charged the agency with blocking all Chinese and
North Korean assets subject to U.S. jurisdiction. n20
Today, OFAC is one of several agencies situated within the Treasury Department n21 and is
overseen by the Under Secretary for Terrorism and Financial Intelligence. n22 The size and
scope of OFAC's work have steadily expanded : As of February 2006, its staff had grown to over
125 employees, n23 who administer both country-based and list-based sanctions programs. n24
While international financial institutions have long been familiar with the agency, OFAC has
become increasingly involved with any organization that has international ties. n25
[*1888] OFAC administers and enforces economic sanctions programs against countries and
groups of individuals, such as terrorists or narcotics traffickers. n26 These sanctions programs
broadly prohibit transactions by persons in the United States with the sanctioned country or
group unless those transactions are expressly authorized by OFAC . n27 Therefore, to engage
in these prohibited activities, one must obtain a license from OFAC . n28 While a
comprehensive examination of how OFAC issues licenses for all of its various programs is
beyond the scope of this Note, I discuss below OFAC's licensing scheme for the regulation of
informational materials.
24
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
They Say: “OFAC Not Binding”
OFAC decisions are binding and final.
Golumbic and Ruff 13 — Court E. Golumbic, Managing Director and Global Anti-Money
Laundering, Anti-Bribery and Government Sanctions Compliance Officer at Goldman Sachs &
Co., Lecturer-in-Law at the University of Pennsylvania Law School, former Assistant United
States Attorney with the United States Attorney's Office for the Southern District of New York,
and Robert S. Ruff III, Associate in the Securities Litigation practice group at Weil, Gotshal &
Manges LLP, 2013 (“Leveraging the Three Core Competencies: How OFAC Licensing Optimizes
Holistic Sanctions,” North Carolina Journal of International Law & Commercial Regulation (38
N.C.J. Int'l L. & Com. Reg. 729), Spring, Available Online to Subscribing Institutions via LexisNexis)
Licensing decisions are " final agency actions ," and OFAC's regulations do not provide for a
formal appeals process . n312 It is [*785] doubtful, moreover, that a formal appeals process
would provide much recourse for denied applicants. The U.S. District Court for the District of
Columbia has held that because OFAC has complete discretion over specific licensing
decisions, " no justiciable standard " exists for evaluating such decisions. n313 Nonetheless,
OFAC will reconsider an application for "good cause," such as where the applicant can
demonstrate "changed circumstances" or "submit additional relevant evidence that was not
previously made available to OFAC." n314 Additionally, the applicant may request that OFAC
explain why it denied a specific license application. n315 OFAC's responses to such requests
are often no more than a generic indication that the applicant's described activity does not
comport with U.S. foreign policy . n316
Courts defer to OFAC — decisions are binding.
Ortblad 8 (Vanessa Ortblad, associate in the Global Project Finance Group, “Criminal
Prosecution in Sheep’s Clothing: The Punitive Effects of OFAC Freezing Sanctions,” Journal of
Criminal Law and Criminology, Northwestern University, Vol. 98, No. 4,
http://www.law.northwestern.edu/journals/jclc/backissues/v98/n4/9804_1439.Ortblad.pdf)//R
Da
The post-September 11th expansions to the asset-freezing power of the Office for Foreign Assets Control (OFAC), coupled with executive branch
pressure to “show results” in the financial war on terror, has caused the agency to freeze the assets of several U.S. entities and individuals with as little
evidence as hearsay and newspaper articles. Not surprisingly, in at least one case the Federal Bureau of Investigation (FBI) later found that there was no
direct link between the blocked entity and terrorist finance. Furthermore, the government has never successfully prosecuted a frozen individual or
entity for financing terrorism. While freezing assets is intended to be a preventative measure, the effects are punitive. The sanctions indefinitely
deprive an individual or an entity of property ■ without meaningful due process and indefinitely label OFAC’s target as a supporter of terrorism. To
appeal OFAC’s decision to freeze assets, one must contest the freeze by appealing directly to the agency,
without the right to review the evidence OFAC relied upon to support its action. In every court
case a designee has brought against an OFAC freezing action, the courts have consistently deferred
to OFAC’s decision under the umbrella of deference to agency decisions pursuant to the
Administrative Procedures Act and deference to executive decisions relating to foreign policy
and national security. Only strengthened congi-essional oversight can limit OFAC’s broad
powers to exercise judicial powers without due process. Congress should require that OFAC meet a clearly defined
minimum evidentiary standard prior to freezing assets and impose reporting requirements to demonstrate compliance with this standard. Such
oversight would help ensure that OFAC can continue to freeze assets, a necessary■ action to block terrorist finance transactions, without jeopardizing
the civil liberties of individuals and entities that have no direct link to terrorist activities.
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They Say: “OFAC Activism Bad”
Disads to OFAC discretion are not unique.
Maberry and Jensen 13 — J. Scott Maberry, International Trade Partner in the Government
Contracts, Investigations & International Trade Practice Group at Sheppard Mullin—an AmLaw
100 law firm, holds a J.D. from Georgetown University Law Center, and Mark L. Jensen,
International Trade Associate in the Government Contracts, Investigations & International Trade
Practice Group at Sheppard Mullin—an AmLaw 100 law firm, holds a J.D. from Harvard Law
School, 2013 (“OFAC Gets Hot, Bothered on Iran and Cuba: How Economic Sanctions Work
Today,” Global Trade Law Blog, May 7th, Available Online at
http://www.globaltradelawblog.com/2013/05/07/ofac-gets-hot-bothered-on-iran-and-cubahow-economic-sanctions-work-today/, Accessed 07-19-2013)
People who practice U.S. economic sanctions law like to talk about how sanctions are policy-oriented, or an engine of U.S. foreign
policy. Whereas some laws may be more opaquely political, economic sanctions and embargoes seem to express most bluntly how
international leverage works through regulation. And yet, a few recent
regulatory developments show that the
direction that sanctions take is not always predictable .¶ The U.S. Department of Treasury, Office of Foreign
Assets Control (“OFAC”) has
had a raucously busy year . A torrent of development in laws and regulations on Iran
served as the unsurprising focus of this year’s OFAC symposium, held on March 19, 2013, in Washington D.C. Among the
developments were sanctions imposed on non-U.S. banks, a new executive order related to the purchase of petroleum and
petrochemical products from Iran, an expanded scope of the Iran Transactions and Sanctions Regulations to companies “owned or
controlled” by U.S. companies, and a new statute that targets sectors of the economy related to goods and services to Iran, including
secondary financial transactions in energy, shipping, shipbuilding, precious metal, and graphite. See our recent posts on Iran here
and here.¶ Perhaps the most striking aspect of the Iran sanctions program is its proliferation into not only additional laws and
regulations, but also additional regulatory regimes. The Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010
(“CISADA”), the National Defense Authorization Act for 2012 (“NDAA”), and Iran Threat Reduction and Syria Human Rights Act of
2012 (“ITR”), have created a polyglot system focused on individual sectors of the economy. OFAC presenters at the March
symposium gave the sense of a proliferation of laws that is undoubtedly aimed at accomplishing U.S. foreign policy goals. But the
laws are paradoxically both targeted (at industries, vessels, banks) and incredibly expansive in jurisdiction. The system is the
embodiment of the powerful yet somewhat disorganized U.S. government piling on everything it can to economically overwhelm
Iran. The Iran program also serves as a good case study of how far and wide economic sanctions can be made to reach. If legislation
of past years has proved anything, it is that the U.S. Congress appears ready to use any and all means within its legislative authority
to sanction Iran. Insofar as Congress is able to map out the reach of the U.S. financial system and economy further, it seems likely
that additional sanctions will be applied.¶ Developments since the symposium have
highlighted other political
aspects of U.S. economic sanctions. One event covered extensively in the mainstream press was Jay-Z
and Beyonce’s trip to Cuba. As has been reported in the press, Members of Congress sent a letter to OFAC following the
trip to inquire about travel authorization for the pair. While most travel to Cuba is banned under the
embargo, travel is allowed for certain purposes , including through educational exchanges. The
Cuba sanctions program remains more robust than most, in large part because of the travel ban and the breadth accorded to the
sanctions under the Trading With the Enemy Act.¶ But those aspects, in particular the travel ban, seem to be a remnant of past
policy that is hard to remove, rather than reflections of current policy. The expansion of certain travel allowances under the Obama
administration are reflections of that policy change.¶ The Jay-Z and Beyonce trip highlights that, in light of all of the sanctions that
have been imposed under the Iran program, as yet there is no comprehensive travel ban. Given the welcoming proximity and
climate of Cuba, the travel ban there makes some sense in the context of a goal to economically isolate the country. Put another
way, the U.S. may not need to ban travel to Iran in the way it needs to isolate transactions related to petroleum products or other
natural resources. But the U.S. approach to Cuba logically includes depressing economic development. For that reason, in spite of
the highly anachronistic personal freedom limitations involved in banning travel to Cuba, it seems highly unlikely that full-fledged
Jay-Z and Beyonce’s trip serves as a reminder
of the way that OFAC is approaching sanctions programs now: even comprehensive sanctions
are targeted at economic sectors , and every target will likely be approached according to
leverage to be gained in a particular economy.
U.S. tourism to Cuba will be permitted while the sanctions still last.
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They Say: “Permute — Do Both”
Links to the net-benefit — the plan sparks political fallout. Independent OFAC
action avoids backlash — its decisions aren’t subjected to public scrutiny.
Unconditional and permanent removal turns the aff—rolls back liberalization
and reforms.
Jorge A. Sanguinetty's President at Development Research Center¶ President & CEO at
DevTech Systems, Inc.¶ Past¶ Director, Latin American Program in Applied Economics at American
University, April, 2013 “Who benefits and loses if the US-Cuba embargo is lifted?”
http://devresearchcenter.org/2013/04/08/who-benefits-and-loses-if-the-us-cuba-embargo-islifted-by-jorge-a-sanguinetty/
Who benefits and loses if the US-Cuba embargo is lifted? The answer depends on the conditions
under which the embargo is lifted . I focus on the expected distribution of benefits (and costs) between the government and the
Cuban population. A unilateral move by the US Government, without any quid pro quo by the Cuban government can be expected to yield significant
benefits to the official establishment with benefits of an unknown magnitude to the population at large. I posit that the magnitude of the latter
depends on the degree of internal liberalization of the Cuban economy. Until Raul Castro took over, the centralized command of the Cuban economy
was subject to a set or constraints arguably more restrictive than the US embargo. What I have called the internal embargo consisted in the Cuban
government outright prohibition for Cubans to own enterprises, freely employ workers or trade domestically and internationally. To many Cubans,
probably a majority, such constraints were the main cause of the country ´s secular economic crisis.¶ Lifting the US embargo under such circumstances
was reasonably expected to yield most of the economic and political benefits to the Cuban government and limited economic and no political benefits
to the population. With the recent partial economic (not political) liberalization policies implemented by Raul Castro, we can expect that the
distribution of economic benefits would be more favorable to the Cuban people. Such new economic freedoms carry a dose of informal political
freedoms as Cubans are able to develop relationships among themselves that were tightly constrained until recently, like freedom of assembly, to
communicate, and to make transactions and agreements without the tutelage of the government. To wit, as the private sector develops because the
government is forced to reduce the inflated payrolls of its enterprises, the authorities lose control on those newly liberated workers.¶ Nonetheless,
the system might have reached a point of equilibrium under which an unconditional lifting of
the US embargo might still accrue enough economic benefit to the Cuban government that it
leads to a roll back of some recent reforms in order to cut loses in the political, albeit informal, arena. This
will be a strong reason to oppose an unconditional lifting on the embargo for those who care about the wishes
for freedom and welfare of the Cuban people. Many international observers oppose the US embargo on the basis of several debatable assumptions.
One is the belief that the embargo has served the Castro government as an excuse for its economic failures, and once lifted the excuse will disappear.
Another assumption is that Cubans don´t know that the embargo might have constrained their economy, but not as much as the restrictions of virtually
all economic activity by the Cuban government. There are also many Cubans that believe that the US embargo is the only leverage left to pressure the
Cuban government to lift internal restrictions in both the economic and the political fronts. It
is doubtful that, under the current
conditions, a non-negotiated lifting of the US embargo is likely to bring about democracy in
Cuba.
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They Say: “Permute — Do CP” (1/2)
Mutually exclusive — licensing authority and enforcement discretion are
distinct mechanisms from sanctions repeal.
Perm severs “lift” — it means to remove by an official act.
Dictionary.com 13 — Dictionary.com Unabridged—based on the Random House Dictionary,
2013 (“Lift,” Available Online at http://dictionary.reference.com/browse/lift?s=t, Accessed 0719-2013)
verb (used with object)
1. to move or bring (something) upward from the ground or other support to a higher position; hoist.¶ 2. to raise or direct upward:
He lifted his arm in a gesture of farewell; to lift one's head.¶ 3. to
remove or rescind by an official act , as a ban,
curfew, or tax: a court decision to lift the ban on strikes by teachers.¶ 4. to stop or put an end to (a boycott, blockade, etc.):
The citizenry will have to conserve food and water until the siege against the city is lifted.¶ 5. to hold up or display on high.
The counterplan exempts but doesn’t lift — sanctions are still in place. This is a
meaningful difference.
Amnesty 13 — Amnesty International, 2013 (“Somalia: UN arms embargo must stay in place,”
March 4th, Available Online at http://www.amnesty.org/en/for-media/press-releases/somaliaun-arms-embargo-must-stay-place-2013-03-04, Accessed 07-19-2013)
It is premature for the UN Security Council to consider lifting an arms embargo on Somalia later this week, Amnesty
International said as it warned such a move could see armed groups such as al-Shabab getting its hands on even more weapons, while removing existing mechanisms of
transparency and accountability.¶ Despite improvements in security in some areas of the country, including in Mogadishu, civilians still face a high risk of being killed or injured
during outbreaks of fighting, in air strikes, mortar shelling or through the use of suicide attacks and improvised explosive devices. ¶ “Without adequate safeguards, arms
transfers may expose Somali civilians to even greater risk and worsen the humanitarian situation,” said Gemma Davies, Amnesty International’s Somalia researcher. ¶ “For
several years, the arms embargo on Somalia has been continuously violated with arms supplied to armed groups on all sides of the conflict. The flow of arms to Somalia has
fuelled serious human rights abuses committed during the conflict.” ¶ The widespread availability of arms in Mogadishu and elsewhere in Somalia continues to lead to greater
insecurity for civilians. ¶ During a recent Security Council debate on Somalia, Fowsiyo Yusuf Haji Adan, Deputy Prime Minister and Minister of Foreign Affairs Government urged
both financial and military support to consolidate peace and to help hold areas recovered from the control of armed groups. ¶ Adan also requested the lifting of the arms
embargo, stating her government’s intention of putting in place “the necessary mechanisms to ensure that armaments do not fall into the wrong hands”. ¶ Although this
intention is welcome, Amnesty International believes that such mechanisms should be implemented first and that the Security Council should only proceed with the lifting of the
arms embargo once they prove effective.¶ “
Instead of lifting the embargo , it should be strengthened by
incorporating strict rules granting exemptions
to prevent arns from getting into the wrong hands and being used to commit human
rights and humanitarian abuses.”
The counterplan keeps sanctions on the books—it’s competitive.
Steven Lee Myers Public Policy Scholar at the Kennan Institute, Affiliation: Diplomatic
Correspondent, Washington Bureau, The New York Times, 6-30-2013 “U.S. Companies Investing
in Myanmar Must Show Steps to Respect Human Rights”
http://www.nytimes.com/2013/07/01/world/asia/us-companies-investing-in-myanmar-mustshow-steps-to-respect-human-rights.html?pagewanted=all
Mr. Obama has welcomed the initial steps to loosen the military dictatorship and met Mr. Thein
Sein in the White House in May, but the sanction laws remain on the books and can be
reinstated if the reforms are reversed. The president used his authority to waive the sanctions
and grant companies licenses to operate there. The State Department then spent months
drafting the requirements after holding public hearings and inviting comments from companies
and advocates.
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They Say: “Permute — Do CP” (2/2)
“Lift” requires Congressional action — links to politics.
Toronto Star 10 — Toronto Star, 2010 (“Mr. Obama won’t go to Havana — at least, not
anytime soon,” Byline Oakland Ross, July 9th, Available Online at
http://www.thestar.com/news/insight/2010/07/09/mr_obama_wont_go_to_havana_at_least_
not_anytime_soon.html, Accessed 07-19-2013)
After all, lifting the embargo would require an act of Congress , not a likely prospect amid
Washington’s stormy partisan climate.
“Lift” requires Congress and the President to act — Helms-Burton codified.
FAS 8 — Federation of American Scientists Office of Global Analysis and U.S. Department of Agriculture, 2008 (“Cuba’s Food & Agriculture Situation Report,” March,
Available Online at http://www.fas.usda.gov/itp/cuba/cubasituation0308.pdf, Accessed 07-19-2013)
The Post-Soviet Era and U.S. Policy. In
the years following the collapse of the Soviet Bloc, the U.S.
a number of legislations affecting U.S. policy toward Cuba. In political
or administrative terms, the most significant change may be the 1996 Cuban Liberty and Democratic
Solidarity Act (the Libertad Act, or the Helms–Burton legislation). One particularly important provision of this
legislation codified the U.S. embargo into law. Before this, the embargo had been an
executive order that could have been lifted by any U.S. President. Now lifting the embargo
requires both congressional and presidential approval .
government implemented
In the context of embargos, “lift” means to remove or rescind.
Free Dictionary, 2013 www.thefreedictionary.com/lift
lift (lft)v. lift·ed, lift·ing, lifts
v.tr.1.
a. To direct or carry from a lower to a higher position; raise: lift one's eyes; lifted the suitcase.¶ b. To transport by air: The helicopter
lifted the entire team to the meet.¶ 2.¶ a. To
revoke by taking back; rescind: lifted the embargo.¶ b. To bring
an end to (a blockade or siege) by removing forces.¶ 3. To cease (artillery fire) in an area.¶ 4.¶ a. To raise in condition, rank, or
esteem.¶ b. To uplift; elate: Your telephone call really lifted my spirits.¶ 5. To remove (plants) from the ground for transplanting.¶ 6.
To project or sound in loud, clear tones: lifted their voices in song.¶ 7. Informal To steal; pilfer: A thief lifted my wallet.¶ 8. Informal
To copy from something already published; plagiarize: lifted whole paragraphs from the encyclopedia.¶ 9. To pay off or clear (a debt
or mortgage, for example).¶ 10. To perform cosmetic surgery on (the face, for example), especially in order to remove wrinkles or
sagging skin.¶ 11.¶ a. Sports To hit (a golf ball) very high into the air.¶ b. To pick up (a golf ball) to place it in a better lie.¶ c. To shoot
or flip (a puck) so that it rises sharply off the ice.
Lift means to remove or end
Oxford Advanced Learners Dictionary, 2013
http://oald8.oxfordlearnersdictionaries.com/dictionary/lift
lift
verb
raise
1 [transitive, intransitive] to raise somebody/something or be raised to a higher position or levellift somebody/something (up) (+
adverb/preposition) He stood there with his arms lifted above his head.I lifted the lid of the box and peered in. (figurative) John
lifted his eyes (= looked up) from his book.lift (up) Her eyebrows lifted. ‘Apologize? Why?’¶ move somebody/something¶ 2
[transitive] lift somebody/something (+ adverb/preposition) to take hold of somebody/something and move them/it to a different
positionI lifted the baby out of the chair.He lifted the suitcase down from the rack.3 [transitive] lift somebody/something (+
adverb/preposition) to transport people or things by airThe survivors were lifted to safety by helicopter. see also airlift ¶ remove
law/rule¶ 4 [transitive] lift
something to remove or end restrictions to lift a ban/curfew/blockade ¶ Martial
law has now been lifted.
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They Say: “Agent CPs Bad”
Debates about OFAC regulations are important for topic education.
Lee and Slear 6 — Judith Lee, Partner at Gibson Dunn & Crutcher— a global law firm with
more than 1100 lawyers in 18 offices across the United States, Europe, the Middle East, Asia and
Latin America, and James Slear, Counsel at Gibson Dunn & Crutcher, 2006 (“Beware of OFAC,”
International Financial Law Review, September, Available Online at
http://www.gibsondunn.com/fstore/pubs/Lee-Slear-BewareOFAC0906.pdf, Accessed 07-192013, p. 58)
Tucked away in the labyrinthine US Department of the Treasury, in the old Treasury Annex
across from the main Treasury Building and the White House on Lafayette Square, toil
approximately 150 employees and officials of the Office of Foreign Assets Control (OFAC). If
you have not heard of OFAC you are not alone . This small agency deliberately keeps a low
profile – direct phone numbers are not published and seldom given out even to frequent
callers, and often the person at the end of the phone will provide only a first name.
Despite its size and relative obscurity, the agency yields enormous power and influence in
global financial markets and over the activities of multinational corporations. As noted on its
website (http://www.treas.gov/offices/enforcement/ofac/), OFAC “administers and enforces
economic and trade sanctions based on US foreign policy and national security goals against
targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in
activities related to the proliferation of weapons of mass destruction [WMD]”.
Most people reading this description of OFAC’s mission statement would conclude that it
would have little application to everyday corporate and financial activities. After all, few of us
can be said to be involved in any way with terrorism, narcotics trafficking or the proliferation
of WMD. In fact, however, not knowing about and considering the myriad of OFAC
regulations can have disastrous consequences for anyone engaged in international M&A
activities or global finance.
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Avoids Politics (1/3)
OFAC action flies below the radar – it escapes public and congressional scrutiny.
Ortblad 8 — Vanessa, J.D. Candidate, Northwestern University School of Law, May 2009; B.A.,
University of Washington, 2002, “THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY,”
Northwestern University, School of Law,
http://www.law.northwestern.edu/journals/jclc/backissues/v98/n4/9804_1439.Ortblad.pdf,
“CRIMINAL PROSECUTION IN SHEEP’S CLOTHING: THE PUNITIVE EFFECTS OF OFAC FREEZING
SANCTIONS,” ADM
Unfortunately, U.S. courts have not considered any of the policy implications of OFAC’s actions because of its extreme deference to executive actions.
Furthermore, Congress
has amplified the Executive’s current powers through the USA PATRIOT Act and IEEPA, so
no argument can be made that the President is acting “in a zone of twilight.”156 Congress currently
seems most concerned with verifying that OFAC’s blocking actions are actually effective in countering
terrorism financing by demanding better quantitative and qualitative measures for assessing OFAC’s efforts.157 But Congress should especially take
note of the effect of OFAC’s actions on civil liberties. In the face of the expansion of executive power to combat the war on terror, it is particularly
important for Congress to also focus its attention on safeguarding civil liberties, especially in light of past excesses during wartime.
tend to fly below the radar
OFAC
sanctions
when competing for attention with abuses at Abu Ghraib, debates over whether water-boarding is
actually torture, and discussions regarding the possible closure of Guantanamo Bay. In
light of these other pressing policy
concerns, OFAC has largely escaped the media scrutiny and public policy discussion it merits.
OFAC is low profile — no perception of the counterplan.
Lee and Slear 6 — Judith Lee, Partner at Gibson Dunn & Crutcher— a global law firm with
more than 1100 lawyers in 18 offices across the United States, Europe, the Middle East, Asia and
Latin America, and James Slear, Counsel at Gibson Dunn & Crutcher, 2006 (“Beware of OFAC,”
International Financial Law Review, September, Available Online at
http://www.gibsondunn.com/fstore/pubs/Lee-Slear-BewareOFAC0906.pdf, Accessed 07-192013, p. 58)
Tucked away in the labyrinthine US Department of the Treasury, in the old Treasury Annex
across from the main Treasury Building and the White House on Lafayette Square, toil
approximately 150 employees and officials of the Office of Foreign Assets Control (OFAC). If
you have not heard of OFAC you are not alone . This small agency deliberately keeps a low
profile – direct phone numbers are not published and seldom given out even to frequent
callers, and often the person at the end of the phone will provide only a first name.
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Avoids Politics (2/3)
Beyonce and Jay-Z prove our argument — the White House was unaffected.
Nelson and Yeargin 13 — Lindsey Nelson, Associate at Nixon Peabody LLC—a Global 100
law firm, holds a J.D. from George Washington University Law School, and Grayson Yeargin,
Partner at Nixon Peabody LLC—a Global 100 law firm, holds a J.D. from the Georgetown
University Law Center, 2013 (“‘Can I get a . . .’ OFAC license? Beyoncé and Jay-Z’s travel to Cuba
highlights embargo’s restrictions,” Export Controls Alert—a publication of Nixon Peabody LLC,
April 9th, Available Online at
http://www.nixonpeabody.com/files/156171_Export_Controls_Alert_09APR2013.pdf, Accessed
07-19-2013)
Add potential sanctions violations to Jay-Z’s 99 problems. Following a recent trip to Cuba with his wife, Beyoncé, two
Republican representatives from Florida are investigating the couple’s island travel. Although Paris may have been a more expected destination, the
couple decided to leave their “empire state of mind” to celebrate their fifth wedding anniversary in Cuba. After
photos of Shawn Carter and
the U.S. media, Reps. Ileana Ros-Lehtinen
and Mario Diaz-Balart requested that the Department of Treasury’s Office of Foreign Assets Control (“OFAC”) “check on it”
to determine whether the couple received approval for the trip.¶ In a letter to OFAC, which is
responsible for administration of the U.S. sanctions on Cuba, the representatives said they are seeking “information
regarding the type of license that Beyoncé and Jay-Z received, for what purpose, and who approved such travel.”
Beyoncé Knowles-Carter looking “crazy in love” while strolling the Havana streets hit
The letter continued, stating, “Despite the clear prohibition against tourism in Cuba, numerous press reports described the couple’s trip as tourism, and
the Castro regime touted it as such in its propaganda.” On Monday, the
White House declined to comment on any
specifics of the trip or licenses obtained. Though it is likely that little, if anything, will come of this
once politicians and the media move on to the next hot topic , Bey and Jay’s travel does serve as a reminder for
the 400,000 U.S. citizens who travel to Cuba each year that there are specific limitations that apply to these trips.
OFAC will enact the counterplan quietly—Iran proves.
Cutler and Ferrari 12 (Staff writers for the Almonitor, “US Loosens Sanctions On Medicine
Sales to Iran,” October 29, http://www.al-monitor.com/pulse/originals/2012/al-monitor/iransanctions-medicine.html)
While most Americans and the US foreign policy elite were focused on last week’s final presidential debate, a small office
within the US Treasury Department, without fanfare, rewrote regulations governing key
aspects of the Iranian sanctions. New rules issued Oct. 22 by the Office of Foreign Assets Control (OFAC) — named the
Iranian Transactions and Sanctions Regulations — implement sanctions contained in last year’s National Defense Authorization Act
and Executive Order 13599, which required American institutions to freeze the assets of the Government of Iran, the Central Bank of
Iran and all other Iranian financial institutions. However, in an unexpected move, the
regulations now permit US
companies to sell certain medicines and basic medical supplies to Iran without first seeking a
license from OFAC. It is clear that the Treasury Department did not want much publicity
surrounding the release of the new regulations. Such a major change to US sanctions would
normally warrant at least a press release; even mid-level narcotics traffickers usually merit a cursory statement by
OFAC Director Adam Szubin when they are designated by the office and their assets in the US are frozen. What is most curious about
the radio silence that has greeted this abrupt change is that the humanitarian costs of sanctions, particularly
reported medicine shortages in Iranian hospitals, have long been an area of concern for international organizations and media.
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Avoids Politics (3/3)
Agency action shields the link—doesn’t cost PC.
Mayer and Price 2 professor of political science at the University of Wisconsin Madison &
graduate student at the University of Wisconsin—Madison [Kenneth R. Mayer, and Kevin Price,
Presidential Studies Quarterly, 6.1.02 lexis]
By using their formal powers, presidents structure the institutions that surround them to standardize their
interactions with other actors. To convert the bargains that would otherwise require skill and scarce
political capital into manageable leadership opportunities, presidents seek routines that encourage
compliance from other actors. By creating institutions and processes that make these once-expensive
bargains part of the political landscape, presidents alter default outcomes, leaving it to other actors to
expend resources to undo what the president has done.
Avoids politics – Obama can shift the blame.
Schoenbrod 93 (David, professor of law at NYU, “Power Without Responsibility,” pg. 95-96)
presidents must take personal responsibility for laws embodied in statues that they sign, but they can shift some of the blame for agency laws to the
agency. Shifting blame is easy when as independent agency has made the law, because the leaders of such
agencies do not serve at the president’s pleasure. Presidents also often avoid substantial political losses they
might sustain for the unpopular action of appointees who do serve at the president’s please by taking no position on
what the agency has done or even by expressing some disagreement. Indeed, even incumbent presidents try to
“run against the government.” President George Bush tried to distance himself from agency laws promulgated during his
administration by declaring a ninety-day moratorium on new agency laws before the 1992 elections. Third, delegation enhances the president’s
ability to use his staff to do casework. It thereby allows the president as well as legislators to particularize constituents’
perceptions of costs and benefits. President Reagan and Bush made much of separation of powers --- but usually to defend executive powers from
congressional encroachment and never to prevent Congress from delegating its legislative power to the executive branch. Delegation does not change the
cast of officials who participate in lawmaking: legislators, agency heads, the president, and their staffs. But delegation does
allow legislators and the president to shift to the agency blame for the costs of complying with the laws, blame for the failure to deliver
promised regulatory benefits, and blame for the delay, complexity, and confusion that the process causes. Delegation also
increases the opportunity for legislators and the president to do politically valuable casework.
Second,
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Affirmative Responses
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Competition
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Not Competitive
Permute: do counterplan. OFAC exemptions “lift” sanctions.
Skadden 12 — Skadden, Arps, Slate, Meagher & Flom LLP—one of the largest, most
prestigious, and highest-grossing law firms in the world, 2012 (“U.S. Conditionally Suspends Two
Key Economic Sanctions Against Burma,” Byline Jamie L. Boucher, Jeffrey Gerrish, Soo-Mi Rhee,
Sean M. Thornton, and Autumn M. Hunter, July 17th, Available Online at
https://www.skadden.com/insights/us-conditionally-suspends-two-key-economic-sanctionsagainst-burma, Accessed 07-19-2013)
On July 11, 2012, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC)
issued general licenses — General License Nos. 16 and 17 — that substantially lift two key
features of the U.S. economic sanctions against Burma (Myanmar): the ban on new
investment in Burma by U.S. persons and the ban on exportation of financial services to Burma.
These general licenses implement President Obama’s announcement in May 2012 that the U.S.
government would increase economic engagement with Burma. The general licenses are in line
with similar steps undertaken in the European Union, Canada and Australia to lift their own
sanctions with respect to Burma. As a result, there may be new opportunities for many
companies to enter Burmese markets. However, new business in Burma should be undertaken
cautiously, given that certain U.S. economic sanctions against Burma remain in place (including a
ban on imports from Burma), the two OFAC general licenses include some important conditions
and the future of the Burmese political environment is unpredictable. In that regard, also on July
11, President Obama signed an executive order authorizing among other things the imposition
of new sanctions against persons threatening the “peace, security, or stability of Burma” and
against persons involved in certain trade between North Korea and Burma.1 This order and the
qualifications in the general licenses seem intended as a reminder that economic sanctions will
remain an important aspect of U.S. policy towards Burma.
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Doesn’t Solve
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General (1/3)
OFAC is ineffective—recent attempts to loosen travel restrictions prove.
John McAuliff 10/24/2012 (Director of the Fund for Reconciliation and Development, "People
to people travel rescued but not safe",cubapeopletopeople.blogspot.com/2012/10/peopletopeople-travel-rescued-but-not.html)
In January of 2011 President Obama finally returned travel for most Americans to more or less
the situation under President Clinton. “More” in that universities and religious organizations
received general, no need to apply, licenses. “Less” because third party providers of study
abroad were shut out completely and licenses were issued for only one year. The category that
opened the door to all Americans to visit Cuba was people to people, in which the only
prerequisite was willingness and ability to pay for a group trip with a “full-time schedule of
educational exchange activities...that will result in meaningful interaction between the traveler
and individuals in Cuba.” The devil was in the details , how would such amorphous language be
implemented. What subjective and political screen would be in place behind the very closed
doors of the Office of Foreign Assets Control (OFAC), still led by a Bush appointee. In the first
year OFAC approved about one in three license applications, and imposed a one year time
limit. It seemingly had more enthusiasm for trips that looked more like high end educational
tourism, and less for those focused on substantive interaction.
http://www.thehavananote.com/2012/01/one_year_semi_opening_cuba_travel But even that
was too much for the hard liners in Congress. They hid behind the claim that the small
increment of Americans in a universe of 2.5 million tourists significantly subsidized the regime
they hate. In reality their accurate fear was that the more people travel to Cuba the more
challenge will arise to the US diplomatic and economic embargo. The ultras tried to slip in a
rider to the comprehensive appropriations bill in December that would gut travel, but the
President faced them down.
http://www.thehavananote.com/2011/12/day_cuban_people_won_thanks_president Their
next tactic was hostage taking. Rubio denounced on the Senate floor both the biggest (Insight
Cuba) and oldest (Center for Cuban Studies) providers of open registration travel, then put on
hold the confirmation of the Assistant Secretary of State and several ambassadors. He only
withdrew his unilateral objection when, he claimed, the Administration agreed to tighten
licensing for travel. http://cubapeopletopeople.blogspot.com/2012/09/how-sen-rubio-derailedpeople-to-people.html OFAC dutifully produced new guidelines in May but they seemed only
face saving for Rubio in that the new language was in an either/or format allowing easy
renewal. “Describe how the educational and people-to-people exchanges you propose would
enhance contact with the Cuban people, and/or support civil society in Cuba, and/or help
promote the Cuban people’s independence from Cuban authorities.” However in practice, OFAC
demanded unreasonable amounts of detail and justification and turned down completely
qualified renewals.
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General (2/3)
CP causes overstretch—narrow exemptions divert resources from critical tasks.
John McAuliff, Founder and Executive Director, Fund for Reconciliation and Development, 425-2011 “New OFAC Guidelines Shape Cuba Travel” http://www.huffingtonpost.com/johnmcauliff/new-guidelines-shape-cuba_b_853387.html
Finally on April 19th the Office of Foreign Assets Controls [OFAC] released 51 pages of
guidelines implementing President Obama's new regulations on purposeful travel announced
three months earlier. (Links to full text here and analysis here.)¶ The guidelines are a semibreakthrough, welcome for what they do, infuriating for what they don't, and frustrating
because big questions still remain on what they actually mean in practice.¶ In theory, most
Americans should now have an option for legal albeit encumbered travel to Cuba.¶ The
guidelines confirm the Obama Administration's significant step forward of granting general
licenses for higher education students and all religious organizations -- with which 84% of
Americans are affiliated. These provisions offer two broad opportunities to initiate serious
engagement between the two countries without obstacles from Washington.¶ The language for
specific licenses raises all the predicted problems of cumbersome bureaucracy wasting time on
fine tuning the rights of Americans for political purposes and diverting resources from more
necessary tasks.¶ Most attention has focused on what will flow from the comprehensive but
undefined people-to-people umbrella:¶ OFAC may issue a specific license to an organization that
sponsors and organizes programs to promote people-to-people contact authorizing the
organization and individuals traveling under its auspices to engage in educational exchanges not
involving academic study pursuant to a degree program. In general, licenses issued pursuant to
this policy will be valid for one year and will contain no limitation on the number of trips that
can be taken. (p 22)¶ Will we soon see the return of a wide range of informational programs
allowed before President Bush's crackdown of 2004?¶ ...third party student exchanges, high
schools, educators of the retired, college alumni, world affairs councils, museums, chambers of
commerce, Rotary Clubs, farm organizations, sports teams, community groups, professional
associations, foundations, NGOs, doctors, environmentalists, artists, architects, etc.¶ While
general licenses avoid the contradiction between trust building exchanges and system change
politics, specific licenses could by granted based on which goal is foremost. The core problem is
illustrated by this revealing paragraph:¶ Meeting all of the relevant specific licensing criteria in a
given section does not guarantee that a specific license will be issued, as foreign policy
considerations and additional factors may be considered by OFAC in making its licensing
determinations....specific licenses are not granted as a matter of right. (p 4)¶ As we saw with the
denial of a license for Irish American traditional musicians to participate in last week's Celtic
Festival in Havana, even the performances criteria can be arbitrary and unfathomable.¶ The test
is how promptly and how flexibly OFAC handles applications that have been piling up since
January from groups that were licensed during the Clinton administration.¶ The guidelines text
itself embodies contradictions that arise from a narrow politicized interpretation of
purposeful travel. They are most flagrant in Humanitarian Projects. Some kinds of charity are
OK; some are not; collegiality and sharing of skills are outlawed.
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General (3/3)
Bureaucracy undermines solvency—chilling effect blocks applications and links
to politics.
Ellen Creager¶ Detroit Free Press travel writer Michigan State University¶ BA, Journalism 8-242012 “Cuba US People to People Partnership”¶
http://cubapeopletopeople.blogspot.com/2012/08/people-to-people-in-bureaucraticdanger.html
Why it is happening, nobody is sure. But the Cuba "People to People" travel program touted so highly by President Obama in
2011 is coming to a screeching halt, drowning in paperwork and non-renewed licenses for travel
organizations. ¶ Almost no organizations that got licenses from the U.S. Treasury Office of Foreign Assets Control (OFAC) last
year to sponsor trips to Cuba have received renewals. Trips that were advertised have been scrapped. Organizations are left to wait
without any updates or information.¶ “We work with about 30 different non-profit organizations that have programs to Cuba in next 12 months, and
100% of them have not received renewals of licenses,” said Jim Friedlander, president of Academic Arrangements Abroad in New York, a travel service
provider, late Tuesday. ¶ He said that the practical effect of OFAC’s lack of activity is that it disrupts the entire People to People program. ¶ To me,
this is contrary to the whole purpose of the president's 2011 loosening of travel for Americans to Cuba.¶ Because
of the outdated U.S. embargo against Cuba that makes it illegal for Americans to travel there, most Americans have never been to Cuba unless on a
family or religious visa. The People to People cultural travel program finally allowed thousands of regular travelers to visit last year and early this year,
interacting with Cubans in a meaningful way.¶ But in May, the OFAC application for a license to operate trips to Cuba under People to People grew
from 6 pages to essentially hundreds of pages. Organizations seeking renewal had to document every minute of every day for every single trip they had
done in the past year to prove that they were doing “People to People” activities and not tourism. ¶ Then, most of them heard nothing. Weeks and
months passed. Licenses lapsed. Since OFAC
is notoriously closed-mouth about its work and does not make
public its list of licences, applicants have been able to get little information. But gradually they realized
they were all in the same predicament.¶ The U.S. Treasury press office on Tuesday did email me a comment from Jeff Braunger, program manager for
Cuba Travel Licensing: “We have issued approximately 140 people-to-people licenses. We are doing our best to process both first-time applications and
requests to renew existing licenses. We receive numerous such requests which are being handled in turn. It is our goal to respond in a timely matter.’’ ¶
I think this is approximately one paragraph more information than all the organizations waiting for their renewals have gotten from his office.¶ The
thing that alarms me most is that the groups I’ve talked to seem
intimidated and scared. They are afraid of going
public with their concern, worried that if they seem to be complaining about months of delays that have caused them to
cancel trips, lose money and lay off staff, t hat OFAC will punish them by stowing their application on the
bottom of a giant pile.¶ I don’t think that’s true, but the very fact that companies are so skittish concerns me greatly.
These are not fly-by-night groups. Typical groups that have -- or had -- Cuba “People to People” licenses include Harvard Alumni, The Metropolitan
Museum of Art, National Geographic, Insight Cuba and the National Trust for Historic Preservation, all reputable groups that ran ethical and very good
culturally-rich trips.¶ Now, a look at their websites tells the story. Harvard has one trip planned for Dec. 27 but with this caveat: “Pending ‘People to
People” license renewal.” The Met wiped Cuba off its itinerary for now. National Geographic, which has run 29 trips taking 703 people total in the past
year, is taking only preliminary waiting-list reservations for fall trips with no deposit. (A deposit, according to OFAC rules, is engaging in financial
transaction with Cuba and illegal if you have no license) Insight Cuba has suspended all trips for the past two months and is on hold, waiting for its
renewal that expired in June. National Trust has 4 Cuba trips still on its 2012 itinerary, but with an asterisk: "Pending People to People License
Renewal." ¶ Whether you are pro-Cuba travel or anti-Cuba travel, this whole thing should concern you a lot. There is something sinister to me about
preventing citizens from traveling, then allowing them to do so, then throwing giant roadblocks to prevent them from going after all. ¶ So
why is
it happening?¶ It could be election year politics, with OFAC personnel covering their bases in case Democrats are out in November and
Republicans take over.¶ It could be undue influence from the small but mighty faction of anti-Cuba
types in Congress.¶ It could be the White House consciously deciding to slow down the program for political reasons in exchange for
something it wants from Cuba.¶ Or it could just be bureaucratic overload, with hapless workers struggling
under an avalanche of paperwork it thought it needed and no deadline, and meanwhile these worthy groups that have
done so much work to run People to People trips to Cuba lose money, customers and confidence in their
government.
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Perception
OFAC doesn’t solve perception—too bureaucratic and politicized.
Mark Nestmann career as an investigative journalist, international tax consultant, public
speaker, and author of like resources spans nearly three decades. He holds a Master of Law
(LL.M) in international tax law awarded to him by the Vienna (Austria) University School of
Economics & Business Administration. 9-21-2012 “Backroom Deal Leads to Stricter Cuba Travel
Restrictions” http://www.nestmann.com/backroom-deal-leads-to-stricter-cuba-travelrestrictions/
The United States has maintained a near-total trade and economic blockade against the Republic of Cuba now for 50 years. An
obscure division of the Treasury Department called the Office of Foreign Assets Control (OFAC) manages and enforces
this embargo.¶ Since President Kennedy imposed the original embargo against Cuba, subsequent presidential administrations have adjusted
the regulations in accordance with political realities. For instance, in the early 1980s, President Reagan issued an executive order restricting tourist
travel to Cuba by persons subject to U.S. jurisdiction; e.g. U.S. citizens and green-card holders. While the regulations don’t prohibit travel to Cuba
outright, they forbid U.S. persons or tour groups from spending any money there unless OFAC first issues them a “license.” Historically, these licenses
have been very difficult to obtain.¶ However, in the 1990s, OFAC under President Clinton adjusted the regulations to allow “People to People” (P2P)
contact between ordinary Americans and ordinary Cubans. Licenses became relatively easy to obtain for these purposes and many groups traveled to
Cuba. A decade later, the second Bush administration refused to renew those licenses. The administration also tightened the regulations allowing
Americans with Cuban ancestry to visit their families in Cuba. OFAC dutifully brought civil and administrative cases against these “tourist lawbreakers.”¶
By the time the Obama administration assumed office, the political winds had again shifted toward
greater accommodation toward Cuba. OFAC began issuing one-year licenses for both P2P and family visits under the more
relaxed standards.¶ Over the last few months, however, these licenses have become much more difficult to obtain.
OFAC, while not refusing to renew licenses, has imposed new requirements for their issuance. OFAC
recently shut down two commercial tour operators because they were using someone else’s license and now requires all publicity be in the name of
the license holder. It also now prohibits unlicensed third parties from collecting payments for a group they are sending in cooperation with a licensed
P2P.¶ According to John McAuliff of the Fund for Reconciliation and Development, the reasons are highly
political. Summarizing McCauliff’s reasoning: ¶ 1) The Miami Herald reports that the new guidelines issued in May 2012 are part of a deal with Sen.
Marco Rubio (R-Fla.) to get him to lift a hold on confirmation of the Assistant Secretary of State for Western Hemisphere Affairs. Click here for details. ¶
2) Those opposing travel to Cuba spin their arguments to the effect that “…some organizations had violated stipulations that program activities have to
be of a cultural or educational nature in which participants interact with Cuban people.” This is nonsense, because OFAC permits only highly
programmed group travel. All American trips are organized by one of three Cuban state companies so their itineraries are fundamentally similar.¶ 3)
OFAC operates behind an absurd veil of secrecy and non-disclosure . The names of P2P licensees
are considered confidential, in contrast with its online and updated listing of Travel Service Providers. Visibility of the list would
make it easier to find ways to go to Cuba legally and make more obvious OFAC’s bureaucratic delay, arbitrariness,
inconsistency, and probable politicization.¶ 4) The head of OFAC, Adam Szubin, is a Bush appointee and
has been responsible for aggressive and petty anti-Cuba actions in recent years. OFAC policy now forbids
Cubans from staying in hotels owned and managed by US companies anywhere in the world. Perhaps Szubin
is predisposed to listen to Sen. Rubio and has employing delaying tactics in the hope that Mitt Romney will be elected in November.
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Links To Politics
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2AC — Links to Politics (1/2)
OFAC links to politics and doesn’t solve—Congressional backlash causes delays
and bureaucracy.
John McAuliff 1/22/2012 (Director of the Fund for Reconciliation and Development, "One Year
On: the Semi-opening of Cuba Travel"
thehavananote.com/2012/01/one_year_semi_opening_cuba_travel)
A major error by the White House was to leave too much discretion in the hands of OFAC, the
understaffed inherently distrustful embargo enforcement arm of the Treasury Department.
OFAC is proving to be a choke point rather than a facilitator, perhaps made ever more cautious by
rising complaints from hard line opponents of travel in Congress. Based just on our organization's sequential
numbering, OFAC received between our first attempt of February 24 (CT-17448) and our sixth revision of January 11 (CT-18987) a total of 1539
applications in less than eleven months. We don't know how many have been rejected, or are in the limbo of “pending”. As one attorney wrote:
it's
a bureaucratic black hole . it requires persistence. For instance, the regs state clearly one can apply
"by letter", and I did, following carefully the instructions. When, months after submitting it, OFAC said it
was waiting for my application form, I pointed out that the regs state the application can be
by letter. No response yet. With another applicant they said the sample itinerary did not show enough "intimate people contact", which
is a mystery because there was clearly all sorts of people contact daily. After an application was rejected, its proponent wrote: OFAC felt the
environmental study program, where we met with Cuban professionals and other Cubans every day on mornings, afternoons and evenings, did not
have enough intimate contact with Cubans. A
subjective judgment that
common experience is to be "denied without prejudice" because of a
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2AC — Links to Politics (2/2)
Process doesn’t shield the link—Obama takes the blame.
Nicholas and Hook 10 (Peter and Janet, Staff Writers – LA Times, “Obama the Velcro
president”, LA Times, 7-30, http://articles.latimes.com/2010/jul/30/nation/la-na-velcropresidency-20100730/3)
If Ronald Reagan was the classic Teflon president, Barack Obama is made of Velcro. Through two terms, Reagan eluded much of the responsibility for
recession and foreign policy scandal. In less than two years, Obama has become ensnared in blame. Hoping to better insulate Obama, White House aides have sought to give
But
Obama remains the colossus of his administration — to a point where trouble anywhere in the
world is often his to solve. The president is on the hook to repair the Gulf Coast oil spill disaster, stabilize Afghanistan, help fix Greece's ailing economy and do right
other Cabinet officials a higher profile and additional public exposure. They are also crafting new ways to explain the president's policies to a skeptical public.
by Shirley Sherrod, the Agriculture Department official fired as a result of a misleading fragment of videotape. What's not sticking to Obama is a legislative track record that his
recent predecessors might envy. Political dividends from passage of a healthcare overhaul or a financial regulatory bill have been fleeting. Instead, voters are measuring his
presidency by a more immediate yardstick: Is he creating enough jobs? So far the verdict is no, and that has taken a toll on Obama's approval ratings. Only 46% approve of
Obama's job performance, compared with 47% who disapprove, according to Gallup's daily tracking poll. "I think the accomplishments are very significant, but I think most
people would look at this and say, 'What was the plan for jobs?' " said Sen. Byron L. Dorgan (D-N.D.). "The agenda he's pushed here has been a very important agenda, but it
hasn't translated into dinner table conversations." Reagan was able to glide past controversies with his popularity largely intact. He maintained his affable persona as a smallgovernment advocate while seeming above the fray in his own administration. Reagan was untarnished by such calamities as the 1983 terrorist bombing of the Marines
stationed in Beirut and scandals involving members of his administration. In the 1986 Iran-Contra affair, most of the blame fell on lieutenants. Obama lately has tried to rip off
the Velcro veneer. In a revealing moment during the oil spill crisis, he reminded Americans that his powers aren't "limitless." He told residents in Grand Isle, La., that he is a
flesh-and-blood president, not a comic-book superhero able to dive to the bottom of the sea and plug the hole. "I can't suck it up with a straw," he said.
But as a
candidate in 2008, he set sky-high expectations about what he could achieve and what government could accomplish.
Clinching the Democratic nomination two years ago, Obama described the moment as an epic breakthrough when "we began to provide care for the sick and good jobs to the
jobless" and "when the rise of the oceans began to slow and our planet began to heal." Those towering goals remain a long way off. And most people would have preferred to
see Obama focus more narrowly on the "good jobs" part of the promise. A recent Gallup poll showed that 53% of the population rated unemployment and the economy as the
nation's most important problem. By contrast, only 7% cited healthcare — a single-minded focus of the White House for a full year. At every turn, Obama makes the argument
that he has improved lives in concrete ways. Without the steps he took, he says, the economy would be in worse shape and more people would be out of work. There's evidence
to support that. Two economists, Mark Zandi and Alan Blinder, reported recently that without the stimulus and other measures, gross domestic product would be about 6.5%
lower. Yet, Americans aren't apt to cheer when something bad doesn't materialize. Unemployment has been rising — from 7.7% when Obama took office, to 9.5%. Last month,
more than 2 million homes in the U.S. were in various stages of foreclosure — up from 1.7 million when Obama was sworn in. "Folks just aren't in a mood to hand out gold stars
when unemployment is hovering around 10%," said Paul Begala, a Democratic pundit.
Insulating the president
from bad news
has proved
impossible . Other White Houses have tried doing so with more success. Reagan's Cabinet officials often took the blame,
shielding the boss. But the Obama administration is about one man. Obama is the White
House's chief spokesman, policy pitchman, fundraiser and negotiator. No Cabinet secretary
has emerged as an adequate surrogate. Treasury Secretary Timothy F. Geithner is seen as a tepid public speaker; Energy Secretary Steven Chu
is prone to long, wonky digressions and has rarely gone before the cameras during an oil spill crisis that he is working to end. So, more falls to Obama,
reinforcing the Velcro effect: Everything sticks to him. He has opined on virtually everything in the hundreds of public statements
he has made: nuclear arms treaties, basketball star LeBron James' career plans; Chelsea Clinton's wedding. Few audiences are off-limits. On Wednesday, he taped a spot on
ABC's "The View," drawing a rebuke from Democratic Pennsylvania Gov. Edward G. Rendell, who deemed the appearance unworthy of the presidency during tough times.
Stylistically he creates some of those problems," Eddie Mahe, a Republican political strategist, said in an interview. "His favorite
When you position yourself as being all things to all people, the ultimate controller
and decision maker with the capacity to fix anything, you set yourself up to be blamed when it
doesn't get fixed or things happen." A new White House strategy is to forgo talk of big policy changes that are easy to ridicule. Instead, aides
"
pronoun is 'I.'
want to market policies as more digestible pieces. So, rather than tout the healthcare package as a whole, advisors will talk about smaller parts that may be more appealing and
understandable — such as barring insurers from denying coverage based on preexisting conditions. But at this stage,
it may be late in the game to
downsize either the president or his agenda. Sen. Richard J. Durbin (D-Ill.) said: "The man came in promising change. He has a higher
profile than some presidents because of his youth, his race and the way he came to the White House with the message he brought in. It's naive to believe
he can step back and have some Cabinet secretary be the face of the oil spill. The buck stops
with his office."
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1AR — Links to Politics (1/4)
OFAC links to politics:
First—delegation doesn’t shield. Obama gets the blame—that’s Nicholas and
Hook.
Partisan realities make it inevitable.
Politico 9. [2-13-09 -- http://www.politico.com/news/stories/0209/18827.html]
The Washington climate, which led to a party-line vote on the stimulus, has big political
implications: It means that Obama will have sole ownership -- whether that means credit or
blame -- for all the massive changes in government he envisions over the coming year.
Circumvention is an independent link—spurs fights over competing priorities
and broader disputes over division of powers.
Melia 5 (George, Inst for Diplomacy-Georgetown, “The Democracy Bureaucracy”,
http://www.princeton.edu/~ppns/papers/democracy_bureaucracy.pdf)
As suggested in the previous section, the democracy promotion infrastructure is also a moving target, as numerous actors are advocating, legislating or announcing changes in
the way business is done in this field. Among the issues at play in mid-2005 are the following. 1. Congress/Executive As in most aspects for foreign relations,
inherent
differences in perspective obtain between legislators (and their staffs) and Administration officials (and
the permanent professionals at State, USAID, DOD and the intelligence community)
about priorities, budget allocations, reporting
and notification requirements , and mechanisms. At mid-summer 2005, the battles are just now being
joined between the Congress and the Executive over: ƒ the State Department authorization bill (to which the House has added the
ADVANCE Democracy Act); ƒ the Foreign Operations and State Department appropriations bill (to which the Senate Committee has added aspects of the ADVANCE Democracy
Act, and substantial earmarks, diverse country-specific policy guidance, including on Iran and central Asia, and operational constraints on USAID); ƒ the UN Reform Act 20 , likely
to be added to the State Department authorization (if one is to be enacted this year), in which the UN Democracy Fund, the role of the Democracy Caucus, the composition of
the UN Human Rights Commission/Council are all addressed, and the virtues of withholding assessed contributions to the UN as leverage are all considered. Some of
the
impending tussle will be about specific aspects of the proposals, combined with more
general institutional angst in the Executive about how much it can or should tolerate policy direction (often seen as
“micromanagement ”) from the Congress.
Causes congressional backlash—still accountable for regulatory programs.
Lovell 2K (Assistant Professor of Government, College of William and Mary, George, 17 Const.
Commentary 79)
It is true that members of Congressdo not cast "yes" or "no" votes on particular rules created by
agencies, but they do quite often need to go on record with "yes" or "no" votes that make agency
activities possible. Legislators must cast votes to establish executive branch agencies andto givethose agencies the
authorityto make regulatory decisions. The democratic controls created by such votes weaken over time. (Most of the voters who
voted for the legislators who passed the Agricultural Adjustment Act are now dead). Butmembers of Congress need to take at least
one vote per year (on the relevant appropriations bill) in order for any regulatory program to continue, and circumstances
sometimes force members to cast additional votes on particular programs. Since
no regulatory program can
operate without being created and continually authorized by Congress , there is nothing about delegation
that prevents an unhappy electorate from holding members of Congress accountable for
regulatory power exercised by the agencies.
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1AR — Links to Politics (2/4)
Second—OFAC doesn’t shield. Hard liners oppose loosening restrictions through
OFAC because they distrust agency action—that’s McAuliff.
Jay-Z and Beyonce prove there is media and congressional backlash to OFAC
action on Cuba.
J. Scott Maberry, an International Trade partner in the Government Contracts, Investigations &
International Trade Practice Group in the firm's Washington, D.C. office. And Mark L. Jensen
an International Trade associate in the Government Contracts, Investigations & International
Trade Practice Group in the firm's Washington, D.C. office.5-7-2013 “OFAC Gets Hot, Bothered
on Iran and Cuba: How Economic Sanctions Work Today”
http://www.globaltradelawblog.com/2013/05/07/ofac-gets-hot-bothered-on-iran-and-cubahow-economic-sanctions-work-today/
Developments since the symposium have highlighted other political aspects of U.S. economic sanctions. One event
covered extensively in the mainstream press was Jay-Z and Beyonce’s trip to Cuba. As has been
reported in the press, Members of Congress sent a letter to OFAC following the trip to inquire about travel authorization for
the pair. While most travel to Cuba is banned under the embargo, travel is allowed for certain purposes, including through educational exchanges. The Cuba sanctions program
remains more robust than most, in large part because of the travel ban and the breadth accorded to the sanctions under the Trading With the Enemy Act.¶ But those aspects, in
the travel ban, seem to be a remnant of past policy that is hard to remove, rather than reflections of current policy. The
The Jay-Z and Beyonce trip
highlights that, in light of all of the sanctions that have been imposed under the Iran program, as yet there is no comprehensive travel ban. Given the welcoming
particular
expansion of certain travel allowances under the Obama administration are reflections of that policy change.¶
proximity and climate of Cuba, the travel ban there makes some sense in the context of a goal to economically isolate the country. Put another way, the U.S. may not need to
ban travel to Iran in the way it needs to isolate transactions related to petroleum products or other natural resources. But the U.S. approach to Cuba logically includes
in spite of the highly anachronistic personal freedom limitations involved in banning
travel to Cuba, it seems highly unlikely that full-fledged U.S. tourism to Cuba will be permitted while the
sanctions still last. Jay-Z and Beyonce’s trip serves as a reminder of the way that OFAC is approaching sanctions programs
depressing economic development. For that reason,
now: even comprehensive sanctions are targeted at economic sectors, and every target will likely be approached according to leverage to be gained in a particular economy.
OFAC is heavily scrutinized by Congress – specifically true for travel licenses
Ferrari, 11 Erich, attorney specializing in OFAC matters, Ferrari Legal, P.C., 8/10, Sanction Law,
http://www.sanctionlaw.com/2011/08/10/cuba-people-to-people-exchanges-begin-this-week/,
“Cuba People to People Exchanges Begin This Week,” ADM
OFAC does issue licenses on a case by case basis for educational exchanges not involving
academic study pursuant to a degree program when those exchanges take place under the
auspices of an organization that sponsors and organizes such programs to promote people-topeople contact. However, those organizations sponsoring and organizing such programs must
be careful to ensure that the trips they are organizing are in compliance with the newly
amended regulations. Due to the scrutiny OFAC has been placed under by members of
Congress , it is likely that they will in turn heavily scrutinize those applying and being granted
license to ensure they are in compliance with the new rules. Before advertising your people to
people tour in Cuba, it is best to make sure you have the appropriate authorization from OFAC
and are in full compliance with the law.
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Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
1AR — Links to Politics (3/4)
Any changes to current Cuba policy are unpopular – even OFAC action causes
backlash
McAuliff, 09 John, active participant in the civil rights, peace and equitable development
movements, After graduating from Carleton College in Northfield, Minnesota, he registered
voters during the Mississippi Summer Project of 1964 with the Student Nonviolent Coordinating
Committee, then served as a Peace Corps volunteer in Peru, used to work for the Latin American
programs at the International Secretariat for Volunteer Service and became a graduate student
at the Institute for Policy Studies, directed the Indochina Program in the Peace Education
Division of the American Friends Service Committee, 3/15, The Havana Note,
http://thehavananote.com/node/330, “Gains in Congress and OFAC Just the Beginning,” ADM
The Treasury Department’s fast action through OFAC is a more significant indicator of where the
Administration is heading than the fig leaf that Secretary Tim Geithner provided the two rejectionist Democrats, Senators Menendez
and Nelson, so they could vote for cloture. It is worth reading his letters carefully as they affirm that a larger change is coming. We are,
however, currently reviewing United States policy toward Cuba to determine the best way to foster democratic change in Cuba and improve the lives of
the Cuban people. Your views and the views of others on Capitol Hill will be important to that review, and the President remains committed to
consulting with you as we consider changes to Cuba policy. (Texts here posted by Jake Colvin.) Of course Senators Menendez, Martinez and Nelson will
be consulted, but not more than other Senators like Kerry, Lugar and Dodd. A further encouraging note was in a Miami Herald story: ''The guidance
issued yesterday by the Treasury Department was issued pursuant to a law passed by Congress,'' White House spokeswoman Gannet Tseggai said
Thursday. ''The president was not involved in the drafting of that provision, and it does not take the place of his own review of family visits and family
cash remittances,'' she added. Americans who care need to add their weight to the Administration's discussion so the President does not stop at family
travel. A Citizens' Appeal for engagement with President Obama on Cuba can be seen here in the just posted newsletter of the Fund for Reconciliation
and Development. The
extent to which the other side is in a state of aggressive denial can be seen in a
leaked internal memo from the US-Cuba Democracy PAC the mobilization of Democratic Members of Congress,
and their aggressive outreach to the White House and Leadership on this issue has made it clear to the Obama
Administration that there is a very vocal majority, bipartisan coalition in Congress that opposes
even the slightest changes to current policy. Also possible is that the White House concludes that there are a few
unreconcilables so married to narrow sectarian interests that they are ready to expose their Party
and President to a week of diversionary and politically costly debate about embarrassing Congressional
earmarks and ballooning deficits.
Jay-Z trip proves OFAC still receives Congressional scrutiny
Maberry and Jensen, 13 J. Scott, International Trade partner in the Government Contracts,
Investigations & International Trade Practice Group in the SheppardMullin’s Washington, D.C.
office, Mark L., International Trade associate in the Government Contracts, Investigations &
International Trade Practice Group in the firm's Washington, D.C. office, Global Trade Law Blog,
5/7, http://www.globaltradelawblog.com/2013/05/07/ofac-gets-hot-bothered-on-iran-andcuba-how-economic-sanctions-work-today/, “OFAC Gets Hot, Bothered on Iran and Cuba: How
Economic Sanctions Work Today,” ADM
Developments since the symposium have highlighted other political aspects of U.S. economic
sanctions. One event covered extensively in the mainstream press was Jay-Z and Beyonce’s trip to Cuba. As
has been reported in the press, Members of Congress sent a letter to OFAC following the trip to inquire
about travel authorization for the pair. While most travel to Cuba is banned under the embargo, travel is allowed
for certain purposes, including through educational exchanges. The Cuba sanctions program remains more robust than
most, in large part because of the travel ban and the breadth accorded to the sanctions under the Trading With the Enemy Act. But
those aspects,
in particular the travel ban, seem to be a remnant of past policy that is hard to
remove, rather than reflections of current policy. The expansion of certain travel allowances under the Obama administration are
reflections of that policy change.
47
Spartan Debate Institute 2013
Hoya Spartan- Batterman, Kann, Paul, Wunderlich
1AR — Links to Politics (4/4)
OFAC’s actions are perceived by Congress
Sullivan, 11 Mark P., Specialist in Latin American Affairs, Congressional Research Service, 1/4,
http://www.fas.org/sgp/crs/row/R40193.pdf, “Cuba: Issues for the 111th Congress,” ADM
In February 2005, OFAC amended the Cuba embargo regulations to clarify that TSRA’s term of
“payment of cash in advance” means that the payment is received by the seller or the seller’s
agent prior to the shipment of the goods from the port at which they are loaded. U.S.
agricultural exporters and some Members of Congress strongly objected that the action
constituted a new sanction that violated the intent of TSRA and could jeopardize millions of
dollars in U.S. agricultural sales to Cuba. OFAC Director Robert Werner maintained that the
clarification “conforms to the common understanding of the term in international trade.”74 On
July 29, 2005, OFAC clarified that, for “payment of cash in advance” for the commercial sale of
U.S. agricultural exports to Cuba, vessels can leave U.S. ports as soon as a foreign bank confirms
receipt of payment from Cuba. OFAC’s action was aimed at ensuring that the goods would not
be vulnerable to seizure for unrelated claims while still at the U.S. port. Supporters of
overturning OFAC’s February 22, 2005, amendment, such as the American Farm Bureau
Federation, were pleased by the clarification but indicated that they would still work to
overturn the February rule.75
OFAC action is tied to Obama – specifically in the case of easing restrictions
Bogardus, 11 Kevin, The Hill, 12/22, http://thehill.com/business-a-lobbying/200917-obamaadministration-defends-license-to-lawyer-for-sudan, “Obama administration defends license to
lawyer representing Sudan,” ADM
Under pressure from lawmakers, the Obama administration is defending its decision to grant a
lawyer permission to represent the blacklisted Sudanese regime in Washington. Members of
Congress have assailed the Treasury Department for granting attorney Bart Fisher a license
despite the U.S. sanctions that have been levied against the Republic of Sudan. The license,
granted by Treasury’s Office of Foreign Assets Control (OFAC), allows Fisher to provide legal
services to the Sudanese government in the United States. Lawmakers such as Rep. Frank Wolf
(R-Va.) have hit the Obama administration for the decision , arguing Fisher is a lobbyist for a
genocidal regime who should be barred from the halls of power.
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