the Travel Ban to Cuba
report was being prepared for the printer, the world was suddenly transformed
by the tragic events of September 11, 2001. Responding to these terrorist
attacksand beyond that to the terrorist threat in generalwill
of course be at the forefront of all deliberations for many months to
come, in Congress as well as the executive branch. This could disrupt
momentum in Congress to remove travel controls on Cuba, just as it may
result in postponement of other business. That is unfortunate, but understandable.
What we wish to stress here is that the events of September 11 in no
way diminish the need to remove controls on travel to Cuba. On the contrary,
they reinforce that need. Cuba poses no threat whatever to the security
of the United States. Although for political reasons (no one wishes
to offend the hard-line exiles in Miami) the State Department keeps
it on the list of terrorist nations, in fact there is no objective reason
for it to be there. Cuba does not support terrorism. Indeed,
the Cuban government immediately condemned the attacks of September
11, expressed solidarity with the American people and offered any assistance
within its means to care for and rehabilitate the victims. Those sentiments
have been repeated subsequently on a number of occasions.
new world dominated by the struggle against terrorism, the United States
needs to recognize that Cuba is not our enemy. We have our disagreements
with the Cuban government, to be sure, just as we have with many other
governments, but surely, in this new international context, the time
has come to begin to discuss ways in which we might cooperate. And there
is no better way to begin than by letting our citizens travel freely
an updated version of an International Policy Report entitled "The
Travel Ban to Cuba" published by the Center for International Policy
in May, 1994. Even though the Cold War has now been over for more than
a decade, the U.S. policy of sanctions and pressures against Cuba continues
unabated, though it is clearly obsolete and counterproductive. The whole
policy should be abandoned. But the first component to go should be
travel controls, for these not only work against the objective
of opening Cuba to new ideas and influences, they also infringe in a
fundamental way on the constitutional rights of American citizens to
travel where they wish. The national emergency which was pointed to
as the legal underpinning for these controls ended with the Cold War.
In the new national emergency following the Septem ber 11 terrorist
attacks, Cuba is not our enemy. That the controls are continued, especially
by a government which claims to re spect the rights of its citizens
and to believe in the free movement of peoples and ideas across borders,
is a travesty. The U.S. government maintains that its objective in Cuba
is to encourage respect for the civil and political rights of Cuban
citizens, but it then violates the rights of its own by curtailing their
travel to Cuba. That is hardly the best way to get across its message.
travel controls not only desecrate U.S. laws, they stand in open violation
of various international conventions to which the United States is a
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. It will be
remembered that when these were signed by the United States, the Soviet
Union and various other states, it was seen as a major advance in opening
the Soviet Union to broader contacts and concepts. Many believed this
was a key factor in bringing about the sweeping changes that ended the
Cold War. Indeed, the United States usually takes the position that
the travel of our citizens to other countries and of theirs to ours
is an important means of getting across the message of American democracy.
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 in
direct violation of the Helsinki Agreements. They also violate 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 Article 13 of the Universal Declaration on Human Rights.
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 countriesmostly communist
statesto 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
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,
then clearly they had a subsidiary right to spend money to do so.
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 shipments 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 travel. 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!
Korean War had ended in 1953, yes, but it was argued that the Cold War
was an ongoing national emergency, of which the Korean War had been
but an 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 today, 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. Cuba has long since ceased any support for or involvement
in revolutionary situations anywhere in the world and our own Pentagon
states categorically that Cuba poses no threat whatever to the security
of the United States. Yet, the rights of American citizens to travel
continue to be curtailed.
the end of the Cold Warand with it any pretext for holding that
the national emergency of 1950 continuedthe government's position
shifted. Since then, it has maintained that while the national emergency
is over, any laws or regulations promulgated under its authority will
remain in effect so long as that is deemed to be in the interests of
the U.S. government. And who does the "deeming?" Why the U.S.
government, of course! Thus, the legal basis for continuing travel controls
comes down to this: they will remain in effect so long as the U.S. government
says they will.
does that serve the interests of the United States? The executive power
really doesn't have to say, for the courts refuse to second-guess it.
That was certainly the basis of the ruling by the Ninth Federal District
Court in San Francisco in April, 1996 in a case arising from the courageous
insistence of Global Exchange, a San Franciscobased organization,
on taking groups to Cuba in the face of the government's restrictions.
The attitude of the court, in essence, was that the executive said it
was in the interests of the United States to maintain the travel ban
and the court had no reason to challenge that conclusion.
fact, however, the government's arguments as to how it serves U.S. interests
to maintain travel controls will not stand the light of day. The Clinton
and now the Bush administration say the controls deny hard currency
to the Cuban government and will thus pressure it to liberalize and
show greater respect for human rights. But in over forty years' time,
the controls have had no such effect. None whatever. On the contrary,
the historical record is clear: increased pressures from the United
States always lead to a tightening-up in Cuba, not to liberalization.
The Cuban government, pointing to new evidence of an external threatwhether
it be the Cuban Democracy Act, the Helms-Burton Act or some other initiativeinevitably
demands greater internal discipline and ideological unity. The United
States could encourage liberalization far more effectively by reducing
tensions, beginning a dialogue with the Cuban government and easing
sanctions. This is especially true of travel controls.
also, all Cuban religious leaders and most human-rights activists such
as Elizardo Sanchez, Hector Palacios, Pedro Pablo Alvarez, and Manuel
Cuesta Morua, to name but a few, urge a lifting of travel controls.
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 helping tell us it is wrong and does more harm
than good, surely our government should listen.
of the summer of 2000, many in Congress seemed indeed to be listening.
A symbolic vote in July showed that a majority in the House favored
lifting travel controls. There were indications too that the Clinton
administration, as part of its people-to-people program, might at least
add new categories of people beyond academics or journalists who could
receive Treasury licenses to travel to Cuba.
nip any such relaxation in the bud, Lincoln Diaz-Balart, a hard-line
Cuban-American congressman from Miami, demanded that the Treasury regulations
be codified. The instrument and method chosen to accomplish this were
ironic. A measure put forward by Rep. George Nethercutt (Republican
of Washington) to make possible the sale of foods and medicines to Cuba,
Iran, North Korea and a number of other states had gained approval in
both houses. Incredibly, however, in the ensuing House-Senate conference,
the House Republican leadership (principally in the person of the majority
whip, Rep. Tom DeLay of Texas) took it upon itself to attach provisions
limiting financing for such sales in the case of Cuba. And at the same
time, as demanded by Diaz-Balart, they agreed to the codification of
travel controls and attached that to the legislation as well. There
was no discussion and no vote; rather, maneuvering behind closed doors,
a handful of congressmen circumvented the will of the majority. No security
issues were at stake or were invoked as the rights of American citizens
were curtailed in the name of Congress. It is especially ironic that
since September, 2000, the curtailment of those rights has been based
on the Trade Sanctions Reform and Export Enhancement Act of 2000. Certainly
not what its authors had intended. But even worse was to follow.
on Travel of American Citizens
July, 2001, President Bush announced more stringent measures to curb
Americans from traveling illegally to Cuba. Thousands of Americans,
regarding travel controls as unjustified and an infringement of their
rights, had over recent years traveled to Cuba without applying for
Treasury Department licenses. Some categories of Americans are permitted
to travel. These include academics, journalists, Cuban-Americans and
those conducting fact-finding missions of one kind or another. But most
are expected to apply for and secure a license from the Treasury Department.
Whether the license is issued or not is problematical, and those who
simply wish to visit Cuba to see for themselves need not even apply.
The result is that the vast majority of Americans are prohibited from
traveling to Cuba.
indicated, thousands have traveled anyway. Some have been fined, from
sums ranging upwards from $7,500. By and large, however, the cases of
those who have demanded hearings rather than simply paying the fines
have been left pending for long periods of time simply because Treasury
did not have enough judges to conduct the hearings.
now, apparently urged on by the Bush administration, Treasury is sending
out far more notices of fines to be assessed, and is bringing in judges
from other agencies to conduct hearings. "We aren't winking at
travel to Cuba anymore," one Treasury agent warned; "we are
there have been so many citations that the Center for Constitutional
Rights in New York, which had offered to defend those the Treasury Department
was attempting to fine, has had to appeal to other lawyers to take some
of the cases. "What we are doing," said a spokesperson for
the Center, "is to build a firewall of lawyers to defend these
of Visas to Cuban Citizens
State Department frequently denies visas to Cuban citizens, thus blocking
their travel to the United States. This is usually done on the basis
of a presidential proclamation handed down by President Reagan in 1985
which barred the issuance of visas to Cuban officials, an action taken
because the Cuban government, 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 president Reagan
was replaced by Bush, Clinton and then George W. Bush. 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 travel on official passports.
In time, this was eased somewhat. Academics, scientists, and low-ranking
officials usually get visas. Even so, over the years, the State Department
has used the proclamation of 1985 to deny visas to hundreds of Cubans,
including the island's most prominent poets, dancers from the Ballet
Nacional de Cuba, the minister of Public Health coming to attend a conference
at Johns Hopkins University on cooperation in fighting diseases common
to both countries, and dozens of academics. These denials seem to be
whimsical and to come in flurries.
we are on the leading edge of a new flurry, for, concomitantly with
its crackdown on the travel of American citizens to Cuba, the Bush administration
has recently ordered the Department of State to deny visas to certain
Cubans trying to enter the United States. A case in point was the denial
of visas to three Cuban officials to come to a conference organized
by the Center for International Policy in June, 2001 to discuss the
situation of U.S. trademarks in Cuba. They were to address the question
of how trademarks are registered and discuss the Cuban government's
view of a controversial new U.S. law under which the United States no
longer adheres to the Inter-American Trademark Convention in cases of
trademarks related to companies nationalized by the Cuban government.
the wording of the presidential proclamation, the State Department denied
the visas on grounds that the presence of the Cuban officials would
be prejudicial to the interests of the United States. How their discussion
of a complicated legal situation could possibly be prejudicial to the
interests of the United States was of course not explained. Usually,
one fears to hear the other side only if one's own position is so flawed
as not to bear up to open discussion.
is but an example. During that same time period, the State Department
refused visas to sixteen other Cuban officialson the same grounds!
And the denials continue.
Imposed by the Cuban Government on its Citizens
Cuban government requires that its citizens obtain exit visas 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. Many Cuban citizens are
now granted exit permits. A few categories are not, mostly professionals
and others whose services the regime deems vital to the
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 remove the exit-visa provision altogether.
Mood in Congress
the same time that the Bush administration is moving to tighten controls
on travel to Cuba, momentum in the U.S. Congress is in exactly the opposite
direction. Responding to polls which show the majority of Americans
opposed to travel controls and to appeals from Cuban human-rights activists
and dissidents to lift these and other sanctions, the House of Representatives
on July 25, 2001 voted 240 to 186 to prohibit the use of Treasury funds
to enforce travel controls. Significantly, the amendment was presented
by a staunchly Republican congressman, Jeff Flake of Arizona, and was
approved despite energetic White House lobbying against it.
August Senate leaders vowed an all-out effort to remove travel controls
altogether when Congress reconvened in September. They seemed to have
the votes. Removal was interrupted by the tragic events of Sepember,
2001, as noted above. Still the mood in Congress remains decidedly against
travel controls and at some point, sooner rather than later, they will
be removed. A growing majority of Americans demand it.
to Be Done
Center for International Policy urges both the U.S. and Cuban governments
to remove all restrictions on the travel of their citizens that in any
way conflict with international conventions or their own laws. Those
imposed by the U.S. government are of most immediate concern to us,
however, inasmuch as they violate the fundamental rights of Americans
citizens. Further, the fact that the Cuban government impedes the departure
and return of certain of its citizens in no way excuses or justifies
controls placed by Washington on the travel of U.S. citizens. As stated
at the outset, ours is a government which claims to respect the rights
of its citizens and to believe their travel abroad is a useful means
of spreading the message of American democracy. It should act accordingly.
has full authority to end travel controls and, as indicated above, is
moving in that direction. It needs to be supported and encouraged. To
emphasize that Congress has a mandate from the American people to remove
controls, concerned Americans should urgently communicate their views
to their senators and congressmen. And, with victory now in sight, organizations
opposing travel controls should redouble their efforts to end them once
and for all.
also calls on the Bush administration to halt the capricious denial
of visas to Cuban citizens based on the anachronistic presidential proclamation
of 1985. Indeed, this document, which long ago outlived the conditions
that called it forth, should be rescinded immediately. There are ample
provisions in the immigration law for the exclusion of any alien, including
Cubans, on legitimate and established groundsranging from having
a criminal record to intention to engage in espionage. The proclamation
of 1985 is simply a means of denying entry to any or all Cubans traveling
on official passports, whether or not there are specific grounds for
exclusion. It is capricious in the extreme and can often have unwanted
results. Does it really serve any purpose to prevent Cuban academics
from coming to the United States to participate in conferences and exchange
views with their American counterparts? Is that not the antithesis of
what we worked for under the Helsinki agreements? Back in 1975, we held
to the belief that greater contact would lead to greater openness. And
in the case of the Soviet Union, it worked! Why not follow that successful
precedent in Cuba?