From the beginning American courts have recognized and protected our right to travel to and in countries at peace with us, and our Supreme Court has repeatedly held this is part of the liberty we can't be deprived of without due process of law under the Fifth Amendment. Moreover, because travel often involves learning and exchange of ideas, our First Amendment rights of speech and association are also implicated. 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 spite of this, in 1982 the Reagan Administration promulgated administrative regulations regarding Cuba travel which require a license issued by the State Department (permitting only certain limited types of travel, excluding business and tourist) and penalties for violation of concurrent Treasury Department currency restrictions forbidding the unlicensed spending of money in Cuba. In a 5-4 decision in 1984, Regan v. Wald, our 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 due process was not violated because we were not "at peace" with Cuba.

In the 1990s when the Soviet Union no longer existed and our Defense Department had certified that Cuba poses no security risk, the restrictions were not being enforced, it being clear that no judge would uphold them. Nevertheless, they remained on the books because our presidents lacked the political will to terminate them and our State Department was using them to try to frighten Americans out of going to Cuba. In 2000 they were codified by party leaders in a legally questionable maneuver in a House-Senate Conference on an unrelated bill. Each year the number of unlicensed American visitors increased, and the US-Cuba Trade and Economic Council has estimated that last year there were over 100,000.

Whether codified or not, the restrictions are unconstitutional and therefore invalid because the Cold War is over. Most Cuba travelers who are aware of the legalities know they can avoid problems by refusing to pay and filing a hearing request within the required 30 days of receiving a penalty notice, which will send the matter into legal abeyance because our government doesn't want a court decision. The restrictions have been used to harass (but not prosecute) those our government deems politically incorrect. Union leaders and students attending conferences in Cuba have on return been held for hours in airports for interrogation by customs agents. Los Angeles guitarist Ry Cooder, who made a movie in Havana tending to promote friendship between the two countries ("Buena Vista Social Club"), was issued a $25,000 penalty notice.

The worst aspect of the present situation is the shaking down of unwary Cuba travelers by a government which knows that if a fine is contested there will be no prosecution. The theoretical fine for unlicensed spending is $250,000, the fine on paper but not practice is $55,000, the typical fine is $7,500, however Treasury accepts down to $700 in "voluntary settlement." Treasury has been refusing to make public its records but a 2001 report by reporter Jon Hillson indicated that Treasury told him that while they had then taken in almost $2,000,000 in settlements from the 379 Cuba travelers who were frightened enough to pay voluntarily, it had never taken anyone to court.

There have been bills pending in Congress for at least five years to repeal various aspects of the Cuba embargo, including the travel restrictions (see proposed "Bridges to Cuban People Act"). However under the rules a few powerful party leaders get to decide what and when matters are debated and voted on, and votes have been allowed only the yearly budget requests for enforcement money. Our Congress responds primarily to campaign contributions and powerful lobbies. The Cuban people have neither. Nevertheless two weeks ago the House voted for the third successive year to deny enforcement money for the travel restrictions, and this will come up in the Senate soon. If Americans can travel freely to Cuba, they will learn for themselves what is really going on there, rather than having to rely on the inaccurate official propaganda. If this happens, hopefully the entire embargo will be relegated to the place where it belongs -- the dustbin of history.

Published in In Motion Magazine October 11, 2003