Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
Came across this tidbit in a Sacramento Bee editorial about the embargo on Cuba:
It was bad enough when Americans couldn't import Cuban cigars and other Cuban goods. But the Bush administration made the embargo worse with a regulation on Sept. 30, 2004, that said Americans cannot buy or smoke Cuban cigars even in countries where the cigars are legal, such as Canada, Mexico, Europe, indeed most of the world. The same goes for Havana Club rum and other Cuban products.
I looked up the regulations and this is accurate. It says:
The question is often asked whether United States citizens or permanent resident aliens of the United States may legally purchase Cuban origin goods, including tobacco and alcohol products, in a third country for personal use outside the United States. The answer is no. The Regulations prohibit persons subject to the jurisdiction of the United States from purchasing, transporting, importing, or otherwise dealing in or engaging in any transactions with respect to any merchandise outside the United States if such merchandise (1) is of Cuban origin; or (2) is or has been located in or transported from or through Cuba; or (3) is made or derived in whole or in part of any article which is the growth, produce or manufacture of Cuba. Thus, in the case of cigars, the prohibition extends to cigars manufactured in Cuba and sold in a third country and to cigars manufactured in a third country from tobacco grown in Cuba.
It does say that this is a change that was made in September 2004, but it does not say whether that change was made by an act of Congress, by executive order or by administrative rule. Regardless, I don't see any possible constitutional basis for any Federal authority to make it illegal for an American to buy a product and use it in another country where that product is legal. They have the authority to prevent it from being imported, but there is no authority in the Constitution for regulating what Americans can purchase in another country.
Email this entry to a friend
View the Technorati Link Cosmos for this entry
Comments
Surely a person outside the United States (except on a military base or in an embassy) is not subject to the jurisdiction of the United States.
Posted by: Ginger Yellow | June 6, 2007 9:56 AM
Hmmm...I don't know if this has been litigated or under what constitutional law theory would apply, but Congress passes laws like this all of the time. For instance, Congress passed a law that American citizens cannot have sex with child prostitutes abroad, as they do in places like Thailand and Cambodia.
Posted by: Royale | June 6, 2007 10:12 AM
I don't see how this regulation is even remotely enforceable.
If I buy a Cuban cigar in Nassau, Bahamas, how the hell could the Treasury Department know about it?
Posted by: CHV | June 6, 2007 10:38 AM
Does anyone even give a shit what the Bush administration says we can do, especially when we're out of the country? What a load of bull.
Posted by: writerdd | June 6, 2007 10:39 AM
When my wife and went on our honeymoon we went to Cuba.
The Cubans are not stupid, so they don't actually stamp your passport, you just get a slip of paper, which you will need to hold on to, if you want to leave Cuba again.
the reason they do not stamp your passport, is because of all the US tourists. It seemed that about half the tourists we met were from the US.
the way to get to Cuba is apparently to go by Mexico, Canada or Jamaica.
We even met a guy (American citizen) who arranged bicycle tours on Cuba for US residents. He lived about 6 months out of a year in Cuba, and returned to the US for the rest of the year.
As Danish citizens we were not part of the embargo, though I won't give my full details here, since I am quite sure admitting being in Cuba will cause trouble for me if I want to return to the US in the future.
Posted by: Soren | June 6, 2007 10:41 AM
And if you need a law to tell you to keep away from child prostitution, you are really f*cked up and no law will help straighten you out.
Posted by: writerdd | June 6, 2007 10:43 AM
first part of my message got cut off -- what I said was, does any one really give a shit what the Bush administration says we can or can't do, especially when on foreign soil? I sure don't.
Posted by: writerdd | June 6, 2007 10:44 AM
Canada has laws saying that if its citizens partake of child prostitution in another country--regardless of legality in that country--they can be prosecuted in Canada. It's an attempt to stop child sex tourism.
I hardly think that sex tourism and Cuban cigars are comparable, but that IS an example of a country forbidding a behaviour that's taking place outside its traditional jurisdiction.
Posted by: Justin | June 6, 2007 10:49 AM
re: "They have the authority to prevent it from being imported, but there is no authority in the Constitution for regulating what Americans can purchase in another country."
While I completely disagree with America's inane policy with regards to Cuba, they do have authority over citizens in foreign countries. A prime example of this is the sex tourism that was happening in Asia over the last couple of decades. It was determined that if an American citizen was involved in certain illegal sex acts with children overseas that they would still be held responsible for it upon their return to the states.
The same applies in this case I guess. Basically the government seems to be tired of people trying to get around it's rules by making them apply to American citizens anywhere, and aren't smart enough to realize the inanity of those rules in the first place.
Posted by: MrvnMouse | June 6, 2007 10:54 AM
just a grammatical glitch above, I meant to say:
Basically the government seems to be tired of people trying to get around it's rules and wants to stop them from doing so by making those rules apply to American citizens anywhere in the world
Posted by: MrvnMouse | June 6, 2007 10:55 AM
As for constitutionality of these extra-territorial laws (for America), my guess is that it would be upheld under Congress/President' power to regulate foreign relations and international commerce. Basically, the State Dept does not have to give you a passport. They can condition the passport to whatever they want, including following the extra-terrotorial laws passed by Congress, which would include the Cuban cigars.
But, as for enforcing the laws - that is so out of the question that it makes the whole law ridiculous.
Posted by: Royale | June 6, 2007 10:58 AM
As a rule, any law is useless if it cannot be enforced - kind of like US laws against suicide.
Posted by: CHV | June 6, 2007 11:08 AM
I think child prostitution is also illegal in the foreign countries where child sex tourism is taking place. The Cuban products law is different because it seeks to punish Americans for using products that are legal in the place where they are using them.
Posted by: Tim Johns | June 6, 2007 11:09 AM
The US still has such a law?
Assuming it is based on the idea that suicide is a form of murder are those who attempt suicide also breaking the law?
As for the jurisdiction idea I think it can be helpful, many countries now have the paedophilia rule.
It may help in stopping it or at least make people realise they can be held accountable even when extradition isn't possible.
The cigar/rum idea is silly, you would have burnt or drunk the evidence :o)
Posted by: Chris' Wills | June 6, 2007 11:21 AM
I assume the passing of that ridiculous law was intended as nothing more than a sop to the Miami Cubans on the part of the Florida GOP. In other words, a feel-good measure with no basis in reality.
Posted by: George Cauldron | June 6, 2007 11:48 AM
I for one completely support the US government's stance on Cuban cigars. If Americans were allowed to smoke them, the price would go through the roof - and they're expensive enough as it is. ;)
Posted by: Dunc | June 6, 2007 11:51 AM
I'm curious about the provision regarding permanent residents - does the US government really have jurisdiction over them outside of the US? If you are in your home country, does the US government have any say over you?
Posted by: IanR | June 6, 2007 12:01 PM
I have charged Cuban cigars at overseas vendors and have yet to receieve a suppoena. I have been aware of this law for a long time, but it is unenforceable.
Posted by: D | June 6, 2007 12:10 PM
On a related note, I have unilaterally passed a law that states George W. Bush is welcome to kiss my ass, whatever country we may find ourselves in at the time.
Posted by: TikiHead | June 6, 2007 12:26 PM
I live in a country where both Cuban Rum and cigars are avaliable,. I don't smoke but I do drink rum. Stupid people make stupid laws
Posted by: Ex Pat | June 6, 2007 12:29 PM
I wonder how the Mojito escaped the ban stick?
Posted by: Rev. BigDumbChimp | June 6, 2007 1:04 PM
Laws against attempted suicide, or any self-inflicted injury, are indeed enforced. The police won't prosecute you, however, they just set you up with a counselor.
Posted by: Brandon | June 6, 2007 1:15 PM
I always thought that with laws against suicide, they should put you in the electric chair. And then refuse to turn it on.
Posted by: Ed Brayton | June 6, 2007 1:28 PM
>
Welcome to the U.S. Republican mindset. I dare say that in the minds of your average Foxnews junkie, a bunch of navy guys enjoying 16 year old Thai prostitutes is fine, just so long as they don't smoke a Cuban (cigar) afterwards or think of a man during.
Posted by: JoshPritcher | June 6, 2007 2:10 PM
I had almost forgotten about The Cuban Menace. Thank God our leaders are protecting us from them.
Posted by: Troublesome Frog | June 6, 2007 2:18 PM
Posted by: llewelly | June 6, 2007 2:29 PM
Llewelly-
And they can ignore it when they want to as well. In 2003, Tom DeLay was photographed smoking a Cuban cigar. Think anything happened to him? Not a chance.
Posted by: Ed Brayton | June 6, 2007 2:37 PM
It has been a decade since I was in law school so I have forgotten a lot about personal jurisdiction. But it seems there are many laws that regulate Americans when outside of the US.
For example, there is the Foreign Corrupt Practices Act--an American businessperson cannot bribe a foreign official even if the bribe occurs completely outside the US and it would be the custom to do so in the foreign land. If you employed overseas, be prepared to pay income tax in the US for wages that were earned entirely overseas.
Posted by: David C. Brayton | June 6, 2007 4:13 PM
Gee, nice to know I'm a federally-wanted criminal.
Not so nice to know that I'm in company with a scumbag like DeLay. First, it was Rush's ugly mug staring out at me from the cover of cigar mags at the tobacconist's.
Then, Clinton's antics got me to give up cigars entirely.
But this last tidbit will drive me away from them forever.
Well, I don't look for the Feds to hunt me down--it's been twenty years since I've smoked a Havana--unless the Statute of Limitations doesn't apply. Then, they'll just have to catch me.
BTW, almost all quality cigar-filler come from some variety of Cuban seed, even filler grown somewhere else, and some of those seed varieties seed might well be post-Castro.
I wonder how far into the depths of stupid the State Department will go?
Oh, yes.
Iraq.
Posted by: Fumar | June 6, 2007 6:51 PM
IanR -
I'm curious about the provision regarding permanent residents - does the US government really have jurisdiction over them outside of the US? If you are in your home country, does the US government have any say over you?
Unless you renounce your U.S. residency, yes. However, if you break a law for which you could be prosecuted in both your home country (or whatever country you happen to be in) and the U.S., I would imagine that the country where the crime was committed would get jurisdiction. Also, the county where the crime was committed would have to be willing to extradite you.
In some circumstances, it might be preferable to be in U.S. jurisdiction, i.e. where the punishment in the other country would be inhumane. In such circumstances, U.S. resident aliens would have the same rights and protections as U.S. citizens, even if the crime was committed in their country of origin. Though I would guess that this could be a bit of a grey area.
Posted by: DuWayne | June 6, 2007 8:30 PM
Part of Michael Moore's newest film "Sicko" was filmed in Cuba, so he's in trouble with the Federales. Apparently he almost got his film taken away on the way to Cannes, where they loved it.
Posted by: Paul Burnett | June 6, 2007 9:40 PM
"It does say that this is a change that was made in September 2004, but it does not say whether that change was made by an act of Congress, by executive order or by administrative rule."
In 2004 the Administration issued a set of new rules designed to turn the screws of the blockade even further. The Office of Foreign Assets Control (OFAC) of the Treasury Department is the main agency involved, and also Commerce. Bush did not go to Congress, and no law was passed to do this. In part, Bush may have considered it a more expedient way to proceed, but clearly he also did not want to go back to Congress on the point, because Congress has three times before voted to start lifting parts of the blockade. In those cases, the language already approved by both houses of Congress (an Act of Congress) was stripped out by the White House and the Congressional leadership before the law was taken to the President for signature. Getting Congress involved would would have risked a larger review of the blockade, so Bush basically issued a decree as a regulatory amendment.
Posted by: LatAm | June 6, 2007 9:46 PM
Paul Burnett wrote:
Yes. and I'm no fan of Michael Moore but I hope he challenges the law if they try and punish him for it. I'd like to see where the government thinks the Constitution gives them the authority to tell American citizens where they can and cannot travel.
Posted by: Ed Brayton | June 6, 2007 9:50 PM
Just the other day there were news stories about "The Governator" not being able to resist lighting up a Cuban cigar while on a visit to Canada. Now we can wait for the story about the feds showing up in California to take him away. Right?
Posted by: Gerry L | June 7, 2007 12:10 AM
Presumably they will use the regulating international commerce clause. I mean given what the Supreme Court lets them get away with using the interstate commerce clause, why wouldn't that do the trick?
Posted by: James | June 7, 2007 1:02 AM
For individuals, I agree this seems close to unenforceable. (Imagine the Customs officer asking you on re-entry to the US: Did you illegally smoke any Cuban cigars while out of the country? - "Why, yes, I did sir." *Customs officer stamps passport with MORON and places you under arrest...*)
Although it's been a while since I read through the applicable regulations, I seem to recall there's stuff like this several places w/r/t export controls and with whom "US persons" can engage in commerce. It can get fairly complex about what you can and can't do, depending on whether you're dealing with BIS, OFAC or the DoD.
Multinational exporters and logistics companies have to pay close attention where they're shipping and to whom. A lot of times, a US company's foreign subsidiary is subject to the same kind of restraints that the parent is. But, IIRC, there can be exceptions: a US company can't ship stuff to Iran for example, but I think there are some limited circumstances in which a US company's foreign subsidiary can.
Posted by: ScottN | June 7, 2007 1:14 AM
Here in Canada Cuban cigars are legal. Come on over and enjoy a few. Just remember to pay cash, and leave your receipt in Canada. :)
Posted by: Bill Poser | June 7, 2007 1:46 AM
Can someone remind me why we still have an embargo against Cuba when China and Vietnam are a-ok?
Posted by: daenku32 | June 7, 2007 8:41 AM
Because of the Electoral College, which makes Florida a vitally important state to win in Presidential elections. And you cannot win Florida unless you win Dade County. And you cannot win Dade County without the Cuban vote.
So to reiterate; because of the Electoral College, you cannot buy Cuban cigars.
Yes, the world is insane. (or at least the Florida part of it)
.
Posted by: Ick of the East | June 7, 2007 9:01 AM
>>Can someone remind me why we still have an embargo against Cuba when China and Vietnam are a-ok?
Two words: cha-ching!
Thanks to Bush, the U.S. also owes China billions in debt due to loans given due to overspending. Were Clinton or Gore in the same financial position, the right's android-like base would be foaming at the mouth with rage.
But if their lord & savior GWB does it? Hey, no problem.
Posted by: CHV | June 7, 2007 9:40 AM
I imagine my story is mundane and has happens 100 times every day, but in Nicaragua, I bought a few Cuban smokes.
I was told by the shopowner that Nicaraguan and Honduran cigars were cheaper and just as good as Cubans. Perhaps. But my dad wanted a Cuban smoke for Christmas.
To get them back through US customs, I removed the wrappers and if questioned, I would have said they were Honduran.
Lo and behold, I gave them to my dad and he smoked them with a bottle of whisky.
The question I found myself asking - why didn't I just buy Honduran cigars, removed the wrappers, and told my dad they were Cuban? Well, I guess I'd rather lie to the US customs than my dad.
Posted by: Royale | June 7, 2007 9:42 AM
Just goes to show you what electoral votes will do to common sense. We can send all our jobs to communist China and buy all of their goods. But God forbid if we buy cigars from communist Cuba. Hypocrisy at its best.
Posted by: Mark Bresky | June 7, 2007 12:34 PM
And it's not as if China has no record of human rights abuses or the unlawful arrest & confinement of political dissidents.
The continued US policy on Cuba is a relic of the Kennedy era. It's a joke.
Posted by: CHV | June 7, 2007 1:11 PM
The history of the pseudo legality of the Cuban Assets Control Act is spelled out (I think) articulately on my website, iammyownreporter.com. The authority wiggles by a devious path back to the Trading With The Enemy Act of WWI which was to prevent U.S. citizens from contributing money to a country that might use it against us on the battlefield or etc. Obviously, that rationale would hold up wherever you were buying cigars, IF we were or ever had been at war with Cuba, or alternately, if the "national" secutiry of the American people (not just some of the rich insiders) were or ever had been threatened by Cuba. Every president every year or two signs a lie that this is the case. The reason really is (1)that Cuba presents the strongest threat of a good example in the world and (2) Fidel always gets a standing ovation from audiences that only politely clap for any U.S. president. - Glen Roberts iammyownreporter.com
Posted by: Glen Roberts | June 7, 2007 5:55 PM
the embargo is stupid, if we can do business with China and Viet Nam we certainly can do business with Cuba. It is time both parties quit ass kissing the cubans in Florida.
Posted by: Ex Pat. | June 8, 2007 5:47 AM
The Grand Prix du Canada (Formula 1) is this weekend in Montreal. You cannot move on Crescent St., and Ste. Catherine St., for Americans lining up at the tobacconiste to purchase Cuban cigars. (Por mucho deniro.) Are they being filmed by someone from the US Consulate here, or is the guy from the Consulate in the line? ;)
Posted by: southern quebec | June 8, 2007 11:07 AM
As I read the regulations, they do not prohibit US nationals from smoking Cuban cigars outside of the United States. They prohibit the importation of Cuban cigars into the United States and the purchase of Cuban cigars by US nationals, but not the receipt, possession, or consumption of Cuban cigars. If you are given a Cuban cigar outside of the United States, you may smoke it. This is consistent with the underlying legislation, which prohibits commerce with Cuba. Receiving something as a gift is not commerce. That is why US nationals are not actually forbidden to travel to Cuba. What the law prohibits is spending money in Cuba. If you are fortunate enough to be invited by Cubans to visit at their expense, you are home free.
Posted by: Bill Poser | June 9, 2007 12:51 AM