Cuba Travel Restrictions
Issue #60, April 2002
American courts tend to recognize and protect our right to travel to and in countries at peace with us, and they have had good reason to do so. The Supreme Court has repeatedly held such travel to be one of the liberties we cannot be deprived of without due process of law under the Fifth Amendment. Moreover, because travel often involves learning and the exchange of ideas, our First Amendment rights of speech and association come into the picture as well. As former justice William O. Douglas once observed, "Freedom of movement is the very essence of our free society, setting us apart...it often makes all other rights meaningful."
In 1982, however, the Reagan Administration put into effect strict new regulations regarding travel to Cuba. Americans hoping to set foot on the island would require a license issued by the State Department permitting only certain, limited types of travel, excluding business trips and tourist jaunts. As an added kicker, Treasury Department currency restrictions proscribed the unlicensed spending of money. Were an American to find him or herself washed ashore in Havana one morning, a cup of coffee from the snack-bar was absolutely out of the question. Two years later, by a 5-4 decision (Regan v. Wald), the Supreme Court upheld the constitutionality of these restrictions on the basis of our State Department's assertion that the Cold War was an ongoing national emergency and Cuba had the economic, political, and military backing of the Soviet Union. In other words, we were not "at peace" with Cuba, therefore our Fifth Amendment right to travel was overcome by national security imperatives.
In the 1990s, with the Soviet Union no longer in existence and the Defense Department having certified that Cuba posed no security risk, enforcement of the restrictions fell by the wayside. Nevertheless, they remained on the books because our presidents lacked the political will to terminate them. Despite the fact that the State Department continued to use the threat of legal action to discourage Americans from going to Cuba, each year the number of unlicensed American visitors increased. The US-Cuba Trade and Economic Council has estimated that last year over 160,000 Americans made the trip.
The issue is a constitutional rather than a legislative one, but to most people it appears otherwise because Congress has entered the fray. In ordinary times, one would think that Congress would refrain from enacting laws it knew to be unconstitutional, but recently its voting procedures have sometimes produced different and contradictory results. In the summer of 2000, both the House and the Senate cut off funding for the restrictions, based largely on research and opinion letters from the ACLU. Several months later, though, when a bill authorizing the sale of food and medicine to Cuba was introduced, the tide turned. The leadership in both chambers refused to allow a vote on the bill unless it was coupled with legislation (proposed for the occasion by two Miami Congresspersons) codifying the travel restrictions. Although a majority in both houses clearly opposed the restrictions, they nevertheless voted for the package and it was signed into law by President Clinton. Republican Rep. Mark Sanford of South Carolina said his leadership had "behaved shamefully" and Democratic Sen. Max Baucus of Montana called the matter "a travesty of our democracy" (Wayne Smith, op ed, South Florida Sun Sentinel, 11/3/00). This past summer, the House again prohibited funding for the restrictions and the Senate was set to do the same in September when the matter was pushed to the back burner by terrorism worries.
Whether codified or not, the restrictions are unconstitutional and therefore invalid. The courts have yet to rule on the matter, but it seems clear enough what their ruling will eventually have to be: the Cold War is over and Cuba poses no conceivable threat to the US. Yet, despite the questionable ethics of prosecuting people for violating laws known to be void, enforcement efforts have recently been on the rise. Just six months after taking an oath to uphold our Constitution, President Bush said he would be cracking down on "illegal and excessive" unlicensed travel to Cuba. Penalty letters from the Treasury's Office of Foreign Asset Control have increased and there have been reports of US Treasury agents lurking around airports in Nassau, Toronto, and Cancun, trying to spot Americans getting off of flights from Cuba.
The restrictions have sometimes been used to harass (but not prosecute) people our government deems politically incorrect. Students and trade union members attending conferences in Cuba have been detained for hours in airports and questioned by customs agents. Last year, Los Angeles guitarist Ry Cooder (whose film Buena Vista Social Club promoted goodwill between the people of our two countries) was issued a $25,000 penalty notice. Most returning travelers who admit to customs agents where they've been get lectures and threats but no follow up. Those few who receive penalty letters (and who are aware of the legal situation) know they can avoid problems by refusing to pay and filing a hearing request within the required 30 days. This ends the matter without penalty because the recipient is then entitled under a 1992 law to an in-house hearing before a Treasury administrative judge, whose ruling would be subject to review in Federal Court where the constitutional issue could be raised — something our government clearly hopes to avoid. New York piano tuner Ben Truhaft (who organized a charity to send pianos and tuning equipment to Cuba) received a penalty notice in 1994 and demanded a hearing in order to have the restrictions declared unconstitutional. He's been waiting for eight years, with no action yet. Perhaps, as Truhaft claims, the US is trying to bring Cuba to its knees by forcing its people to listen to out-of-tune pianos. (Ken Guggenheim, AP, Washington D.C., 12/16/01)
The most troubling aspect of the present situation is the shaking down of unwary travelers by a government perfectly aware that if a fine is contested there will be no prosecution. According to an August 5, 2001 New York Times article by Frank Bruni, the theoretical fine for unlicensed spending in Cuba is $250,000. On paper this amount drops to $55,000, although the typical fine is $7,500, and the Office of Foreign Assets Control (OFAC) accepts as little as $700 in "voluntary settlement." Although OFAC is now refusing to disclose its records concerning hearings and settlements, an August 18, 2001 NY Transfer report by investigative reporter Jon Hillson indicates that he was told by OFAC that while they had taken in almost $2,000,000 in settlements from the 379 Cuba travelers frightened into paying-up, they had never conducted an in-house hearing, much less taken someone to court.
Meanwhile, many Senators and Representatives have taken legal trips to Havana to personally investigate the need for further Cuba legislation. Last spring, both chambers exempted members from the law prohibiting licensed travelers from bringing into the US Cuban products worth more than $100. According to a 6/20/01 report by Jay Amberg in Bloomberg Lifestyles, John Kavelich, president of the US-Cuba Trade and Economic Council, has suggested that the reason for the exemption may be that a box of Cohiba cigars, which can be bought for around $120 in Havana, will bring up to $1000 in the US — much more if signed by Fidel.
Tom Crumpacker is a retired lawyer and a member of the Miami Coalition to End the US Embargo of Cuba.