TRAVEL BAN TO CUBA
Wayne S. Smith
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
of U.S. travel restrictions
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.