Cubadebate

Why does our government want to prevent us from seeing
and learning about what is happening in Cuba? It says its
purpose is to deny hard currency to Cubans so that they
will change the way they have organized their society. If
so, it's the first time in history we've been forced to
sacrifice one of our fundamental freedoms in order to
implement a foreign policy objective.

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 a 5-4 decision in 1984, Regan v. Wald, our Supreme Court
upheld the constitutionality of these restrictions on the
basis of the State Department's assertion that Cuba had
the economic, political and military backing of the Soviet
Union, therefore the rights of citizens were overcome by
national security needs. 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 posed 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 a legally questionable
maneuver in House-Senate Conference Committee
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
perpetual 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 NY Transfer report by Jon
Hillson indicates 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
men called "party leaders" get to decide what and when
matters are voted on, and no votes have been allowed on
the merits, just on the yearly Bush Administration 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.

Tom Crumpacker is with the Miami Coalition to End the US
Embargo of Cuba. He can be reached at: Crump8@aol.com
http://www.counterpunch.com/crumpacker09302003.html

COUNTERPUNCH

September 30, 2003