Our right to travel to Cuba

Less than two years after President John F. Kennedy imposed the full embargo on trade with Cuba, his brother, Attorney General Robert F. Kennedy, argued that it had been a mistake to include a ban on travel. Restoring the freedom of U.S. citizens to visit Cuba, “is more consistent with our views of a free society and would contrast with such things as the Berlin Wall and Communist controls on such travel,” he wrote in December 1963. “I believe it would be wise to remove restrictions on travel to Cuba.” Bobby Kennedy lost that argument. President Lyndon B. Johnson, in office only a few weeks, would not risk looking “unacceptably soft” on Castro.

President Barack Obama would have agreed with Kennedy. As part of his opening to Cuba announced last December 17, Obama authorized general licenses for all 12 categories of travel currently allowed by law, making it far easier for U.S. citizens and residents to visit the island without getting prior permission from the U.S. government. “Nobody represents America’s values better than the American people,” the president said in his speech to the nation.

But travel to Cuba is still not entirely free. Tourism is prohibited by § 7209(b) of the Trade Sanctions Reform and Export Enhancement Act of 2000, with “tourism” defined as any travel not already allowed under one of the twelve existing travel categories. Restoring the freedom to travel to Cuba will require repealing that ban. During George W. Bush’s first term, both the House and Senate voted repeatedly to do just that, but the threat of a presidential veto killed the legislation. Another attempt in 2010 was not supported by the Obama administration and went nowhere.

Senator Jeff Flake (R-Ariz.), who led the repeal efforts a decade ago, has once again introduced a bill with bipartisan sponsorship to end the travel ban — S.299 the Freedom to Travel to Cuba Act of 2015. “Americans should be allowed to have the right to travel wherever they would like to unless there’s a compelling national security reason,” Flake said. “It’s a freedom issue.” By May, he had 36 cosponsors, including a majority of the Senate Foreign Relations Committee.

In the House, on the other hand, Appropriations subcommittee chair Mario Diaz-Balart (R-Fla.) added a rider to the Fiscal Year 2016 Transportation Appropriations bill (Section 193) that would ban any new airline flights to Cuba, thereby blocking any significant increase in travel. On June 4, the House voted 247-176 to keep Diaz-Balart’s rider in the bill, despite the White House’s threat to veto it. The right to travel is shaping up to be the focal point of Congressional Republican efforts to undermine President Obama’s new Cuba policy.

Travel To and Fro

The travel ban originated as part of President Kennedy’s 1962 embargo, and continued in force for fifteen years until President Jimmy Carter lifted it in 1977, out of respect for the right to travel. Five years later, President Ronald Reagan reimposed it to punish Cuba for its support of revolutionaries in Central America. “Cuba will not be allowed to earn hard currency from American tourists at a time when Cuba is actively sponsoring armed violence against our friends and allies,” the State Department declared.

President Bill Clinton gradually eased travel restrictions, licensing broad new categories of visitors as part of his policy to promote people-to-people engagement. Travel was legalized for religious, educational, humanitarian, and cultural purposes. The number of Americans visiting Cuba annually reached 160,000-200,000 during the Clinton years, most of them Cuban Americans visiting family. Some 30,000 others traveled legally under approved licenses, and the rest — somewhere between 20,000 and 50,000 — traveled illegally.

President George W. Bush reversed most of the Clinton openings. He abolished people-to-people cultural and educational exchanges, restricted academic exchanges, and limited Cuban American travel. The rationale for these tougher sanctions was not any national security threat, but the unabashed aim of subverting the Cuban government by economic strangulation — in the words of the president’s Commission for Assistance to a Free Cuba, to “bring about an expeditious end to the Castro dictatorship” by “denying revenues” to it.

Just a few months after assuming office, President Obama began rolling back the Bush era sanctions. In April 2009, he kept a campaign promise by issuing a general license that eliminated limits on Cuban American family visits and remittances. In January 2011, he eased restrictions on academic exchanges and restored the people-to-people educational travel category that Bush had abolished. Then, in the December 2014 package of travel reforms, he authorized general licenses for all 12 travel categories, going almost as far to open travel as his executive authority allowed. The granting of general licenses takes the Treasury Department out of the gatekeeper business of deciding who does and does not deserve a specific license to travel.

The Right to Travel

“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,” the U.S. Supreme Court held in 1958. “Freedom of movement is basic in our scheme of values” (Kent v. Dulles). Yet the Supreme Court has twice upheld the government’s authority to prohibit travel to Cuba. In 1965 (Zemel v. Rusk), the Court held that the right to travel could be superseded by “the weightiest considerations of national security.” Specifically, the Cuban government was trying to “export its Communist revolution to the rest of Latin America,” and travel was “an important element in the spreading of subversion.” In 1984, when Reagan’s reimposition of the travel ban was challenged, the Court again deferred to the Executive’s argument that Cuba, with Soviet backing, “has provided widespread support for armed violence in the Western Hemisphere” (Regan v. Wald). This compelling national security threat, the Court concluded, justified the use of the president’s national emergency authority to override the right to travel.

With the end of the cold war, however, any national security threat posed by Cuba diminished to the vanishing point. As President Obama himself said in an interview with National Public Radio, Cuba is a “relatively tiny country that doesn’t pose any significant threat to us or our allies.” Yet Cuba is the only country in the world where U.S. citizens are prohibited from traveling by their own government. We can go to North Korea and China, where the human rights situation for dissidents is far worse than in Cuba. Or we can go to any number of failed or failing states from Somalia to Iraq to Yemen. But we can’t freely go to Cuba.

Neither the American public nor Cuban American community support the travel ban any longer. A 2014 Atlantic Council poll taken before Obama’s announcement of the opening to Cuba found that 61% of the general public supported unrestricted travel. AWashington Post/ABC News poll taken after the announcement found 74% in favor. Among Cuban Americans, a 2015 Bendixen & Amandi poll found 56% in favor of easing travel restrictions.

The Impact of Lifting the Travel Ban

In 2014, about half a million U.S. residents visited Cuba, about 80% of whom were Cuban Americans visiting family. Most of the rest were engaged in “purposeful” travel allowed by law, including educational, religious, and humanitarian ventures. The new travel regulations will make it easier for travel providers to organize people-to-people educational trips because they can claim a general license to run them, but prospective visitors must still travel with a licensed provider; you can’t just go on your own.

If the ban on tourist travel were lifted, an International Monetary Fund working paperestimates that U.S. visitors could top 3 million annually. Such a boom in tourism would no doubt bolster the Cuban government’s revenues, but unrestricted travel would also put money into the hands of ordinary Cubans through tips, private restaurants, independent taxis, sales of art and artisanry, and rentals of private rooms. Airbnb already has more than a thousand private rental listings in Cuba. No other international economic flow except remittances has such a direct, immediate benefit for Cuban families.

Those who oppose lifting the travel ban argue that U.S. tourists will do little more than lie on the beach, never interacting with the Cuban public. Even if this were true, the right to travel includes the constitutional right to lie on the beach; it is not contingent on the traveler’s sociological sensitivity. But in fact, Americans are naturally curious, and many will go to Cuba precisely to see what it is like after a half century of estrangement.

Some Americans may choose not to go to Cuba because, as defenders of the travel ban claim, Cuban tourist workers are poorly paid, or employers discriminate against Afro-Cubans. Some may choose not to go to Cuba simply because it is still a communist country. They have that right. But the U.S. government should not impose that decision on everyone without a compelling national security reason, and there isn’t one anymore.

Cultivating interpersonal relationships through professional, cultural, educational, and even tourist travel will help our two peoples better understand one another’s values, fears, and aspirations, thereby building a foundation for reconciliation. But the most important benefit from lifting the travel ban is the simplest: restoring the constitutional right of U.S. citizens and residents to travel.

* William M. LeoGrande is a co-author, with Peter Kornbluh, of Back Channel to Cuba: The Hidden History of Negotiations between Washington and Havana(University of North Carolina Press, 2015).