Shaking Down American Travelers

By Tom Crumpacker, retired lawyer
Member, Miami Coalition to End US Embargo of Cuba

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 a fundamental freedom 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 often makes all other rights meaningful."

In spite of this, in 1981 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 the Cold War was an ongoing national emergency and Cuba had the economic, political and military backing of the Soviet Union, therefore our Fifth Amendment right to travel was overcome by national security needs. In other words, 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. 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 160,000.

The issue is constitutional rather than legislative, however most people think otherwise because Congress has entered the fray. In ordinary times, one would think that Congress would not enact laws it knows to be unconstitutional, but recently its voting procedures have sometimes produced a different result. In the summer of 2000, both House and Senate cut off funding for the restrictions, based largely on research and opinion letters by the ACLU. But then a bill came up in November which authorized the sale of food and medicine to Cuba under certain limited circumstances, which many were eager to get credit for voting for.

Unfortunately the Republican leadership in both bodies refused to allow a vote on this bill unless it was coupled with an amendment proposed by two Miami Congresspersons which codified the travel restrictions. Although a majority 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." This past summer the House again prohibited funding and the Senate was about to in September when the matter went on the back burner due to terrorism worries.

Whether codified or not, the restrictions are unconstitutional and therefore invalid because the Cold War is over. The courts have not yet declared them unconstitutional because our government lawyers haven't brought any cases where the issue could be determined, it being unethical to prosecute people for violating laws known to be void. Although the restrictions are not being enforced, President Bush last summer threatened to enforce them, and in the past several years they occasionally have been used to harass (but not prosecute) people our government deems politically incorrect. Students and trade union members attending conferences in Cuba have been held for long hours in airports for questioning by customs agents. Last year Los Angeles guitarist Ry Cooder (who had made in Havana the film "Buena Vista Social Club" which, although not political, tended to promote good will between the people of the two countries) was issued a $25,000 penalty notice.

Cooder and most Cuba travelers who are aware of the legal situation (and who are among the very few who receive penalty notices) know they can avoid problems by refusing to pay and filing a hearing request within the required 30 days, which ends the matter without penalty. They are then entitled 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. However, Treasury has no such administrative judges. This past summer it said it might try to use EPA judges to determine these cases, but apparently dropped this threat when several Senators said environmental judges were not appropriate to decide travel cases and were already busy with pollution matters.

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. According to an August 5, 2001 New York Times article by Frank Bruni, 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." An August 18, 2001 NY Transfer report by Jon Hillson indicates that while Treasury has taken in almost $2,000,000 in settlements from the 379 Cuba travelers who were frightened enough to pay voluntarily, it has never conducted an in-house hearing, much less taken someone to court.