Congress Finally Challenges the Cuba Travel Ban
“The bipartisan bill I will introduce on Monday is about the right of Americans, not Cubans, to travel,” Senator Patrick Leahy stated, as he prepared to introduce the “Freedom for Americans to Travel to Cuba Act of 2019” this week. “Every member of Congress,” he declared, “especially those who have been to Cuba, should oppose restrictions on American citizens that have no place in the law books of a free society.”
In the House, Congressmen James McGovern and Tom Emmer introduced identical legislation last week, setting the stage for Congress to debate President Trump’s ongoing efforts to restrict travel in order to score electoral points in Florida. Although congressional proponents of free travel to Cuba have tried, and failed, to lift existing restrictions in the past, Trump’s recent flagrant assault on freedom to travel, along with the natural constituency of millions of citizens who have flocked to Cuba over the past few years, may combine to give this latest legislative initiative a better chance of success.
Few people are aware that Cuba is the only nation in the world to which a congressional statute prohibits US citizens from traveling for a simple vacation. From the end of the Eisenhower administration to the mid-1990s, restrictions on travel, like the trade embargo itself, fell under executive authority; the restrictions were imposed by the president and could be rescinded by the president. That changed in 1996, when President Clinton signed the punitive Helms-Burton Act, which codified the embargo into law, along with restrictions on travel. After Clinton moved to create exemptions that would allow travel to Cuba for specific, non-touristic, purposes—journalism, education, religious activities, business transactions, professional meetings, etc.—Congress amended the Trade Sanctions Reform and Export Enhancement Act of 2000 to read: “the Secretary of the Treasury may not authorize travel-related transactions for travel to, from, or within Cuba for tourist activities.”
That language was used first by President George W. Bush as the legal basis for restricting the constitutionally supported right of US citizens to travel to the island and see its complex realities for themselves. Now it is being used by Donald Trump.
In between Bush and Trump, President Obama creatively attempted to circumvent the legal restrictions on “tourist” travel by redefining its meaning and expanding the categories under which US citizens, including Cuban-Americans, could visit the island. Whereas Bush had imposed severe limitations on Cuban-American “family” visits, Obama lifted all restrictions and broadened the definition of “family” so that just about anyone with a Cuban heritage could go whenever they wanted. As part of his policy of positive engagement, Obama authorized individual travelers to go under the “people-to-people” category of “purposeful travel” and made it easier for tour organizers, such as this magazine, to arrange “people-to-people” excursions. After the historic breakthrough in relations with Raúl Castro in December 2014, Obama reestablished commercial airline service between the United States and Cuba and authorized cruise ships to dock in Cuba. And in March of 2016, he became the first US president since Calvin Coolidge to travel to Cuba—generating widespread public interest in visiting the island.
Since then, millions of US citizens have done so. According to Cuban government statistics, in 2012, approximately 98,000 non-Cuban-Americans traveled to the island; since the first commercial airline flight in August 2016, however, more than 2.2 million people have flown from the United States to Cuba, and hundreds of thousands more have disembarked in port cities such as Havana, Cienfuegos, and Santiago from massive cruise liners that arrived daily in Cuban harbors. The influx of US travelers has had an overwhelmingly positive impact on the island’s growing private sector that caters to American tourism, as well as on US-Cuban cultural and socioeconomic relations.
On June 4, however, President Trump abruptly banned cruise liners from docking in Cuba, denying 800,000 passengers who had already booked a trip to the island their right to travel. The administration also abolished people-to-people tours, through which tens of thousands of US citizens have ventured to the island for a unique educational experience. At the same time, the State Department expanded its so-called “Cuba Restricted List”—over 200 hotels, restaurants, shops, businesses, rum distilleries, and other official entities administered by the Cuban military where US travelers are prohibited from spending money.
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“As a result,” according to Senator Leahy, “the number of Americans traveling to Cuba this year is projected to plummet by half, due to the policies of their own government.” And, he adds, “thousands of private Cuban entrepreneurs, the taxi drivers, the Airbnb renters, restaurants, and shops that depend on American customers are struggling to survive.” Indeed, a survey of 200 Cuban cuentapropistas—private entrepreneurs—conducted by Cuba Educational Travel last May found that 97 percent of them reported that US travelers “bring their business more earnings,” and 96 percent believed that “decreased American travel would harm their businesses.”
To be sure, US citizens can still travel legally to Cuba. Tour providers that have used the people-to-people category are now reconfiguring their trip itineraries to meet the criteria of a different category—“support for the Cuban people.” But Trump’s assault on the right to travel has sown confusion and created additional hoops for travelers to jump through, while cutting off the most popular route—the cruise ships. For the average tourist, the threat of customs interrogations, government audits, and potential fines for violating the arcane travel regulations serves as a deterrent to travel—as do prohibitions on booking a hotel room on a Varadero beach and taking a seaside vacation.
Passage of the “Freedom for Americans to Travel to Cuba Act” would end Trump’s ability, as well as that of future presidents, to sacrifice the right to travel on the altar of electoral politics. The concise legislation states that “the President may not prohibit or otherwise restrict travel to or from Cuba by United States citizens…or any of the transactions incident to such travel.” Upon enactment, it would explicitly supersede all existing regulations, policies, and laws, including the provisions in the Helms-Burton bill that currently constrain free travel to Cuba.
After the historic Obama-Castro reset of relations in December 2014, a Washington Post/ABC News poll showed that 74 percent of US citizens supported free travel to Cuba. But even though it would have popular appeal, the bill faces an uphill battle. Already, majority leader Mitch McConnell has signaled he will not bring the legislation up for a vote in the Senate this year. Trump and his legislative enablers are clearly determined to destroy Obama’s successful model of positive engagement and to weaponize Cuba policy in the quest for hard-line votes in Florida.
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But the political debate over exercising the fundamental rights of US citizens to travel remains imperative. “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 Supreme Court held in 1958. “Freedom of movement is basic in our scheme of values.” Although the justices ruled during the Cold War that presidents could restrict travel to Cuba for clear-cut national-security concerns, those considerations from a long-gone era are no longer valid—if they ever were.
“The travel ban deliberately punishes the American people—our very best ambassadors—and prevents them from engaging directly with the Cuban people,” Representative McGovern argued when he introduced the legislation last week. “It is a Cold War relic that serves only to isolate the United States from our allies and partners in the region,” he concluded. “It’s time for us to listen to the majority of Americans, Cuban-Americans, and Cubans who do not support the travel ban, and get rid of it once and for all.”
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