A Constitutional Right to Travel to Cuba

Our government has been telling us that the reason it is prohibiting us from traveling to Cuba is to deny Cubans hard currency so that they will change the way they have organized their society. If so, it’s the first time in our history we’ve been forced to give up one of our fundamental liberties in order to implement a foreign policy objective.

In the modern era of nation-states, citizens in good standing have always enjoyed the basic freedom of travel. Most other freedoms depend on it, at least to some extent. As nations began forming, the right to foreign travel was recognized regardless of the king’s opinion of, or policy toward, the destination nation. An exception was made for travel to nations at war with the home nation, because it endangered national security. Article 42 of Magna Carta, which the English lords required King John to sign on the field at Runnymede in 1215, provides (translated from Anglo-Saxon):

“It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and merchants also shall be treated as said above.”

Bill of Rights.

Magna Carta has been an important part of English law for almost eight centuries. When United States became a nation, English common law remained in effect here except insofar as it was changed by our Constitution, statutes and case law. The First Amendment to our Constitution (1791) provides that Congress shall make no law abridging the freedom of speech, or of the press, or of the right of the people to peaceably assemble. The right of assembly was construed broadly by our Supreme Court to include the right of association it implies.

The right of travel to nations at peace with us was so clear and obvious that our government didn’t try to restrict it until the time of the Cold War, when both socialist and capitalist governments began preventing their citizens from learning what things were like on the other side of the Iron Curtain. However, efforts to prevent our travel to socialist countries including Cuba were declared unconstitutional by our Supreme Court. Concurring in Aptheker v. State, 378 US 500 (1964), Justice Douglas stated as regards the First Amendment (citations omitted):

“Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interests of security….Freedom of movement, at home and abroad, is important for job and business opportunities — for cultural, political, and social activities — for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we enjoy. We nevertheless place our faith in them, and against restraint, knowing that the risk of abusing liberty so as to give rise to punishable conduct is part of the price we pay for this free society. Freedom of movement is kin to the right of assembly and to the right of association. War may be the occasion for serious curtailment of liberty. Absent war, I see no way to keep a citizen from traveling within or without the country, unless there is power to detain him.This freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful.”

The Fifth Amendment (1791) provides that no citizen shall be deprived of his liberty without due process of law. In Kent v. Dulles, 357 US 111 (1958), the Court held that foreign travel is necessarily implied as part of this “liberty,” stating (citations omitted):

“The right to travel is a part of the `liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”

We can’t be deprived of our Fifth Amendment liberty of travel “without due process of law.” Due process in this situation is not afforded unless, as suggested in Magna Carta, the travel endangers national security. In Kent v. Dulles above, the Court indicated that restrictive legislation must be based on grave, immediate danger to the national security which is stated in explicit terms pursuant to the lawmaking function. The Court has never allowed a restriction of our travel where national security was not at such risk.

Reagan currency restrictions.

The Trading With the Enemy Act of 1917 (TWEA) allows our presidents after declaring a national emergency to prohibit or restrict not travel but “trade” with foreign nations, such trade being broadly defined as including any “money transactions.” The TWEA has been used as authority for our presidents without consulting Congress to impose embargoes and other trade sanctions on various nations in emergencies.

In 1982 the Reagan Administration promulgated regulations, under authority of TWEA, under which State Department licensed certain limited types of Cuba travel only, such as diplomats, full time journalists, academic research, educational conferences, family visits. The spending of money involved in unlicensed travel was criminalized by Treasury Department regulations and enforced by Treasury’s Office of Foreign Assets Control (OFAC).

In 1984 the Court in Regan v. Wald, 468 US 222 (a 5-4 opinion) upheld the constitutionality of these currency restrictions under TWEA as part of the Cuba trade embargo, deferring (as courts must) to State’s opinion that the Cold War was an ongoing national emergency, Cuba had the military, political and economic support of the Soviet Union, and due process was afforded because national security was at substantial risk. The majority opinion by Chief Justice Rehnquist (first quoting Zemel v. Rusk which had been decided shortly after the Cuba missile crisis) stated (citations omitted):

“‘That the restriction which is challenged in this case is supported by the weightiest considerations of national security is perhaps best pointed up by recalling that the Cuban missile crisis of October 1962 preceded the filing of appellant’s complaint by less than two months.’ We see no reason to differentiate between the travel restrictions imposed by the President in the present case and the passport restrictions imposed by the Secretary of State in Zemel. Both have the practical effect of preventing travel to Cuba by most American citizens, and both are justified by weighty concerns of foreign policy….In the opinion of the State Department, Cuba, with the political, economic, and military backing of the Soviet Union, has provided widespread support for armed violence and terrorism in the Western Hemisphere. Cuba also maintains close to 40,000 troops in various countries in Africa and the Middle East.Given the traditional deference to executive judgment…, we think there is an adequate basis under the Due Process Clause of the Fifth Amendment to sustain the President’s decision to curtail the flow of hard currency to Cuba – currency that could then be used in support of Cuban adventurism — by restricting travel.”

By 1991 all these factors supposedly endangering our security were no longer in existence. The Cold War had ended in 1989. The Soviet Union had disappeared in 1991, along with its support of Cuba. Cuba “adventurism” in the hemisphere had ended at least by the early eighties. Cuban troops were removed from Africa and the Middle East (if ever there) in the mid-eighties. Since then they have been sending physicians, health care and literacy workers instead of soldiers. In 1994 and thereafter our Defense Department, after full review of all intelligence and full on-site investigations of Cuban military equipment, manpower and facilities, has continually certified that Cuba poses no risk to our national security.

Lack of enforcement or repeal.

The restrictions should have been repealed when the Cold War ended, but Presidents Bush I and Clinton lacked the political will to do it. They were left on the books during the 1990’s without serious enforcement, primarily to frighten Americans out of visiting Cuba. Very occasionally penalty notices were sent out for civil fines (maximum $50,000, usual $7,500). OFAC accepted “voluntary settlements” from a few unlicensed, frightened, unwary Cuba travelers, the rest of the notices (now over 1,000) were held “in abeyance.” The OFAC never took anyone to court because it feared a decision declaring the restrictions unconstitutional.

In 1996 and again in 2000 Congress codified the restrictions, necessitating that any future repeal be done by Congress rather than a president. Although President Bush II took an oath to protect and preserve the US Constitution, his administration, 15 years after the end of the Cold War, is now claiming to enforce the restrictions despite Congress’s votes each year to refuse budget requests for enforcement money (such being later annulled by “party leaders” in conference committees). Several cases apparently are now being prosecuted, but none have yet reached the first level, hearing before an in-house Treasury administrative judge. After such hearing it would take several years for a case to wend its way through the federal court system (where the constitutional issues could be raised) up to the Supreme Court.

Meanwhile, in Congress every year in the past four years at least bills have been introduced (or pending) to repeal the restrictions. Based on the recent votes against enforcement money, a majority of at least 55% to 59% in both chambers would favor repeal. For some reason these majorities can’t bring the repeal issue to the floor for debate and vote. It’s said that the party leaders won’t allow it, and it’s true that the party leaders act as agents of the president, who has threatened a veto. But party doesn’t seem important on this issue because many from both parties are on each side. When a majority in each chamber can’t bring an issue to a vote, it leads one to wonder whether our Congress is functioning.

Consequences of failure to repeal.

Laws and regulations which become unconstitutional by changing realities should not be allowed to remain on the books for purposes other than enforcement. If a law is questionably unconstitutional, it should be repealed or immediately brought to court to determine its validity. To do otherwise breeds public contempt for the law and encourages civil disobedience.

The Reagan Cuba travel restrictions favor some groups of Americans, and some types of travel, over others. Apparently our national politicians think they can gain funding or votes in this way. But the First and Fifth Amendments do not permit this. They grant the right of free association and travel to all US citizens equally. Nor does parsing our fundamental freedoms make sense. Some families are close, some aren’t. Some people travel for research, some for relaxation, some to learn, some for curiosity. As a people we travel for hundreds of different reasons and the point of our basic liberties is to keep unnecessary governmental interference out of our private lives. That’s what freedom is.

Before the Cuban Revolution the Cuban and American peoples had a long, friendly, mutually beneficial relationship. People passed freely between the countries, learned from each other, and became aware through personal experience of the realities of the other. Since the revolution we two peoples have been isolated from each other due to some ideological disputes between our governments which are not reality-based and are their creation, not ours. The unnecessary prohibition of our right to travel to and learn the reality of Cuba is sad for us, because we are shut off from truth, friendship and many other benefits. Moreover, if our government can prevent us from visiting Cuba, why not also Mexico, the Caribbean, Canada, anywhere in the world it wants to apply pressure to a foreign government?

The separation of Cuban family members is very sad for many of them. The effect of our government’s blockade on the Cuban people is a devastating and unmitigated tragedy. Many of us believe that this economic war could not continue if Americans were allowed to visit Cuba freely. As Justice Douglas observed in Kent v. Dulles above, free citizens of a democracy are not obliged to accept government and media propaganda as their only information source. By direct contact with Cuban people our views on our government’s policies would be enriched — we could see that Cubans are our friends rather than enemies, that they live and think much as we do, and they have organized their society democratically in the way they desire, which is their prerogative, not ours.

Last year in Miami Mikhail Gorbachev said that the Berlin Wall came down in response to Ronald Reagan’s famous 1988 demand, “Mr. Gorbachev, tear down this wall!” It’s now high time to tear down Mr. Reagan’s wall.

TOM CRUMPACKER is a lawyer who works with the Miami Coalition to End the US Embargo of Cuba. He can be reached at: Crump8@aol.com