THE TRAVEL BAN TO CUBA

By Wayne S. Smith

Most controls on travel between the United States and Cuba are imposed by the U.S. government. These contradict the most fundamental values on which our country was founded. They are almost certainly unconstitutional and also violate basic international conventions to which our government is a party. The Cuban government also imposes travel controls that violate these international standards. All such controls whether imposed by the one government or the other should be removed. The Cold War is over. There can be no further justification for these violations of international standards, least of all by the U.S. government, which claims to respect the rights of its citizens and to believe in the free movement of peoples and ideas across borders. More than that, it claims to believe in the rule of law, yet undercuts that claim by imposing travel controls that would no longer withstand the scrutiny of the courts. Perhaps recognizing its legal vulnerability, it has refrained from prosecuting recent travelers who have disregarded the controls. But the law itself needs to be removed from the statute books.

 

History of U.S. travel restrictions

Under the Helsinki agreements of 1975, the United States is committed to the free flow of people and ideas across national frontiers and in most cases it is a commitment our government respects. Indeed, it usually takes the position that the travel of our citizens to other countries and of theirs to ours is an important means of getting the message of American democracy across. But in the case of Cuba it puts all that aside and opts instead for the kind of travel controls usually imposed by authoritarian governments. These controls ignore international standards of freedom of movement (exactly what we accuse the Cuban government of doing). They are a direct violation of Article 12 of the United Nations' International Covenant on Civil and Political Rights, the most comprehensive body of laws governing human rights now in existence, and of Article 13 of the Universal Declaration on Human Rights. Travel controls are a relic of the Cold War. Prior to World War II, the right of American citizens to travel where they wished was not challenged by their government. During the Cold War that followed, however, the State Department came up with a blacklist of countries-mostly communist states-to which American citizens could not use their passports to travel. This was, after a time, recognized as the infringement of constitutional rights that it was, the Supreme Court ruling in 1967 that the government could not prosecute American citizens for traveling to countries on the State Department's blacklist, which by then included Cuba.

In 1977, in order to comply fully with the Supreme Court's decision, the Carter administration lifted all controls on the expenditure of currency on travel to Cuba. If American citizens had a right to travel, it argued,t hen clearly they had a subsidiary right to spend money to do so. But then enter the Reagan administration, which in 1982 reversed that decision and reimposed currency controls on grounds that Cuba was increasing its support for subversion in Central America and that it refused to negotiate foreign-policy concerns with us. As the author, who was then chief of the U.S. interests section in Havana, has pointed out in his book, "The Closest of Enemies", this was simply not true. Quite the contrary, the Cubans had just suspended arms shipments to Central America and indicated to us their full disposition to discuss all outstanding problems. The Reagan administration ignored their overture, with the results that after a time the arms shipment began again. Meanwhile, the right of American citizens to travel had been curtailed on the basis of outright misrepresentations to the American people.

In imposing these measures, the Reagan administration claimed they were not travel controls per se; rather, they were currency controls authorized by the 1917 Trading With the Enemy Act (Yes! An act dating back to World War I.) Technically that was true, they were currency controls. The result, however, was the same, for if citizens could not pay for their travel, they could not undertake it. Further, one provision of the act of 1917 specifies that it can be applied only in times of war or national emergency. Clearly, we were not at war. What then was the national emergency? Again, the Reagan administration reached back into the past, citing, under a grandfather clause, the national emergency declared in response to the Korean War of 1950 as the legal underpinning for the currency-cum-travel controls imposed against Cuba in 1982! Yet the Reagan administration did not invent the situation.

Although the Korean War ended in 1953, no administration had declared the national emergency to be over. In several cases, it had even been argued that the Cold war was an ongoing national emergency, of which the Korean War had been but the opening chapter. When the Reagan administration's 1982 currency controls were taken to the Supreme Court in 1984, the majority of justices upheld their constitutionality, arguing that the grandfather clause had been correctly applied. Justices Blackmun, Brennan, Marshall and Powell argued strongly to the contrary, saying the currency controls represented an improper extension of presidential power. They, however, were in the minority. Given the Cold War and what were called new tensions with Cuba, the majority were prepared to give the Executive a wide latitude in the area of foreign policy and argued that the rights of citizens were overcome by the security needs of the nation.

Most students of law, reading the arguments ten years later, would probably side with Justice Blackmun and his colleagues who took the minority view. What is obvious, however, is that even if the majority was correct in 1984, all the grounds on which their decision was based have changed. The Cold War is over. No argument could now be made that there is an ongoing emergency occasioned by our rivalry with the Soviet Union. The Soviet Union no longer exists. Gone too is the alliance that once existed between Moscow and Havana. And Cuba has long since ceased any support for or involvement in revolutionary situations anywhere in the world. Yet, the rights of American citizens to travel continue to be curtailed.

Since 1982, only three categories o Americans have been allowed to travel to Cuba (and pay their bills) under a general license: academics doing research, journalists preparing a story, and relatives visiting families. In early 1994, there were reports that the Clinton administration would relax the controls by adding several other categories. These would have included those whose trips were related to cultural activities, human rights or religious affairs. In February, however, the State Department denied the reports, saying that Cuba would be excluded from any liberalization of controls.

The Clinton administration has suggested that the controls are a useful means of denying hard currency to the Cuban government and thus pressuring it to liberalize and show greater respect for human rights. The counterargument is that allowing American to travel to Cuba would do more to encourage liberalization than tightening economic pressure, which have not worked in over thirty years and will not work now. Significantly also, all Cuban religious leaders and most human-rights activists as Elizardo Sanchez, Francisco Chaviano, Lazaro Loreto, Yndamiro Restano and Osvaldo Paya. As they put it, the more American citizens in the streets of Cuba's cities, the better for the cause of a more open society. The logic of their argument would appear to be unassailable.

When the very people our policy is supposedly designed to help tell us the policy is wrong and that it does more harm than good, surely our government should listen. The fact that it does not suggests that it has some other agenda and that encouragement of democracy and greater respect for human rights may not be the central motivation behind U.S. policy. Controls imposed by the U.S. government on the travel of Cuban citizens.

The most objectionable impediments to the travel of Cuban citizens imposed by the U.S. government date back to a presidential proclamation in 1985. Handed down by President Reagan almost ten years ago, it barred the issuance of visas to Cuban officials, an action taken because the Cubans, in retaliation for the inauguration of Radio Marti, had suspended the U.S.-Cuban immigration agreement signed the year before. In 1987, the Cubans restored the agreement. The Reagan administration, however, never rescinded the proclamation.

Subsequently, the Cold War ended, the Soviet Union disintegrated and presidents Reagan and Bush were replaced by Clinton. Even so, the Reagan proclamation of 1985 remains on the books. For years, it was interpreted so rigidly that not even Cuban academics or scientists were allowed to enter the United States, since they traveled on official passports. Under the Bush administration, that interpretation was eased. Academics, scientists, and low-ranking officials usually got visas.

Shamefully, the Clinton administration recently has reversed that liberalization and begun to deny visas even to some of Cuba'smost prominent academics and cultural figures, including several who have been in the United States many times and with respect to whom there cannot possibly be legitimate grounds for denial.

 

Recent Exclusions

For example, one of Cuba's most distinguished writers, Pablo Armando Fernandez, who was to come to the U.S. to participate in poetry readings and roundtable discussions, was denied a visa. He had been in the Untied States at least a dozen times on similar invitations.Two dancers from the Cuban Ballet were denied visas in March, 1994. They were to have participated in the Academy Awards festivities. In sympathy, troupe leader Alicia Alonso did no go either.

Almost at the same time, a group of young Cubans from the Federation of University Students were dined visas on grounds that membership in such an organization made them government officials. Why that would have constituted gourds for denial was not explained, for lower-and mid-level government officials are usually granted visas. Senior officials, however, never are, unless they are coming on U.N. business (or that of the Pan- American Health Organization).For example, in late October, 1993, the American Public Health Association held its annual conference in San Francisco. A few days later, on November 1 and 2, Johns Hopkins University held a conference in Washington on regional cooperation in public health. Vital issues were discussed among the Jamaican, Mexican, U.S. and Cuban participants: cooperation in the control and treatment of AIDS, of optic neuropathy, and a number of communicable diseases, and cooperation in research on these same illnesses. The Cuban minister of health, Dr. Julio Teja Perez, was invited. The State Department, however, indicated that the proclamation of 1985 remained fully valid and that while some exceptions could be made on a case-by-case basis, "current policy precluded such exceptions for senior officials." Thus, the Cuban minster of health could not attend conferences to discuss regional efforts to control diseases that affect us all. We submit that any policy that has that effect is not only morally indefensible, but downright harmful to the interests of the American people.

All this is a direct contradiction of the Clinton administration's expressed intention to expand communications, and especially cultural contacts. Rather than expanding contacts, it has restricted them. Travel controls imposed by the Cuban governments The Cuban government requires that its citizens obtain visas in order to leave the island. This too violates Article 12 of the International Covenant on Civil and Political Rights and article 13 of the Universal Declaration of Human Rights. In the past, few such visas were granted. More recently, however, Havana has liberalized its policies. Most Cuban citizens are now granted exit permits. A few categories are not mostly professionals and others whose services the regime deems vital to the functioning of the economy. Less understandable by far are restrictions on the travel of human-rights activists. In most cases, the Cuban government is willing to allow them to leave, but not to return. Yet, the right of a citizen to freely depart and return is established under the conventions cited above. The Cuban government should follow the trend toward liberalization to its logical conclusion by removing the exit-visa provision altogether.

 

Recommendations

The Center for International Policy urges that all travel controls imposed by either government be lifted. Those imposed by the U.S. government are of most direct concern to us, however, inasmuch as they violate the fundamental rights of American citizens re are almost certainly unconstitutional. So long as the Clinton administration insists not only on backing these controls but even adding to them administrative fines under the Cuban Democracy Act, legal challenges are in order. The Center for International Policy therefore expresses its full support for these groups organized by Global Options and various others who have traveled in defiance of the controls. When the government puts forward illegal statutes, it is the patriotic duty of citizens to challenge their validity.

What really fuels this hard-line policy is the calculation that it will help win the state of Florida in the next presidential election. But here as well the policy is badly misguided. Those tactics did not produce a Clinton victory in Florida in 1992 and a close analysis of voting patterns in that state suggests it would not in 1996. Even on those terms, then, the policy would appear to be mistaken.

President Clinton should base his Cuban policy on the common interests of 245 million Americans in having a peaceful, normal relationship with our near neighbors. The policy should encourage democratic development and economic stability instead of seeking to wreak economic havoc and provoke endless waves of emigration to our shores. He has let shortsighted political calculations and the demands of one Florida constituency overshadow this far larger interest in sensibly managing relations with Cuba. In the process, the constitutional rights of Americans have become merely one more casualty.