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The Status of Restrictions on the Right to Travel from the U.S. to Cuba

Atty. Arthur Heitzer,
633 W. Wisconsin Ave., Suite 1410,
Milwaukee, WI 53203 USA, (414) 273-1040 ext. 12, aheitzer@igc.org.

Despite the multiple guarantees of individual rights contained in the U.S. constitution, the right of U.S. nationals to travel abroad to countries of their choosing, and to learn from and associate with people of other nations, has repeatedly been restricted. The longest such restrictions have attempted to prevent average people from the U.S. to visit Cuba, since the triumph of the 1959 Cuban Revolution. This paper will present an overview of this legal situation, beginning with the treatment of this right by the U.S. courts. Part Two will summarize the recent (and continuing) system of restrictions on such travel. Part Three will briefly review the organizing and struggle to assert these travel rights, and Part Four will discuss the prospects for change under the current administration.

I. The (lack of) constitutional protection for the right to international travel

Although the United States constitution guarantees to its citizens and residents the rights to freedom of association and expression, a majority of the U.S. Supreme Court has not protected the right to travel internationally in order to exercise these rights, when faced with claims that U.S. national security requires them to be restricted. This is not limited to times of war or countries with which the United States is at war. E.g., two U.S. Courts of Appeals have recently upheld fines imposed against U.S. peace activists who visited Iraq in the months prior to the U.S.-led invasion in March 2003. (Karpova v. Snow, 497 F.3d 262, 270-71 (2d Cir. 2007) and Clancy v. OFAC (No. 07-2254; 7th Cir., 3/11/2009.)

The case of Cuba is rather unique. First of all, Cuba is not only 90 miles away from the United States, but it was a frequent tourist destination prior to the triumph of the 1959 Cuban Revolution. Second, these restrictions have continued in force, with varying degrees of severity, for nearly 50 years. Despite the fact that the U.S. CIA organized and sponsored an unsuccessful invasion of Cuba in April 1961, combined with a plan to assassinate Cuba’s top leadership then, and since, as well as a comprehensive plan of terrorism and irregular warfare (called Operation Mongoose), there has been no state of war between the U.S. and Cuba since the Spanish-Cuban-American War of 1898 (See The Bay of Pigs, by Howard Jones and Jane Franklin’s Cuba and the United States: A Chronological History.)

While the Cuban Missile Crisis of October 1962 brought the world to the brink of annihilation, as President John F. Kennedy demanded that Soviet missiles aimed at the United States be dismantled, and threatened a naval blockade of Cuba which was lifted before major hostilities erupted, President Kennedy earlier had recognized that a military blockade of Cuba was an act of war, which lacked any legal justification. Instead, he accepted his advisors’ suggestion to impose an economic blockade, believing it would have almost the same effect without being an obvious act of war in violation of the United Nations charter.

The severe restrictions on the right of U.S. nationals to travel to Cuba was part of such “economic warfare,” but it was also done to prevent people in the U.S. from experiencing the Cuban Revolution firsthand, and from exchanging ideas with the Cuban people.

Despite the rather obvious fact that restricting the rights of Americans to travel to other countries restricts their ability to gather information, and likewise severely restricts their ability to associate with people from other countries, a majority of the U.S. Supreme Court rejected First Amendment protection in the case of Zemel v. Rusk (1965). Rather, the courts have held that there is only a conditional right or privilege to international travel, which can be restricted based on...
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