Testimony of Legislative Counsel Timothy Edgar on Travel to Cuba Restrictions Before the Senate Appropriations Subcommittee on the Treasury and General Government

On behalf of the American Civil Liberties Union (ACLU) we commend you for holding this important oversight hearing of the Treasury Department's Office of Foreign Assets Control (OFAC), which is charged with enforcing the government's restrictions on travel to Cuba.  

The ACLU is a non-partisan, non-profit organization with approximately 300,000 members, dedicating to preserving our freedoms as set forth in the Constitution and the Bill of Rights. We believe that the restrictions on travel to Cuba infringe on the constitutional right of Americans to travel freely across borders, and are not justified by any valid interest that could overcome that right.  

Last July, the ACLU supported an amendment to H.R. 2590, the FY2002 Treasury/Postal Appropriations Bill, that would have ended funding for enforcement of the restrictions on travel to Cuba. That amendment, offered by Representatives Jeff Flake (R-AZ), Jim McGovern (D-MA), Jerry Moran (R-KS) and Howard Berman (D-CA) was approved by a strong vote of 240-186. Unfortunately, the amendment was not included in the final legislation.  

As former Supreme Court Justice William Douglas observed, "[f]reedom of movement is the very essence of our free society, setting us apart?it often makes all other rights meaningful."¹ The Supreme Court has repeatedly recognized that the right to travel is protected under the Fifth Amendment as a liberty interest that cannot be denied without due process of law.² Moreover, freedom of movement allows access to information and encourages the free exchange of ideas and opinions, and thus implicates the First Amendment rights of Americans. Like the freedom of speech, association, and assembly, the right to travel promotes our democratic values of individual autonomy, truth-seeking, and self-government. For example, every person should be free to learn firsthand about the government of Cuba-and of the policies and activities of the U.S. government in Cuba-in order to participate meaningfully in the public debate on crucial foreign policy issues related to Cuba. When the Supreme Court considered restrictions on travel to Cuba in Regan v. Wald, 468 U.S. 222 (1984), it held by a narrow margin that the travel restrictions were permissible only in light of the overriding Cold War national security concerns asserted by the government, concerns that the end of the Cold War have rendered obsolete.  

Under current Treasury Department regulations, Americans are generally restricted from spending money in the course of their travel to Cuba -- a subterfuge effectively restricting travel itself to Cuba. Foreign policy should not be implemented by methods that violate a constitutional freedom. As a general rule, the government should not restrict travel to a particular country unless it is in the midst of an actual military conflict.  

ACLU has received disturbing reports of increased harassment by the Treasury Department of American citizens and residents who have traveled to Cuba pursuant to current law. We urge the Subcommittee to determine whether stepped up enforcement of this misguided policy is an appropriate use of government resources at this time in our history. Ultimately, we believe Congress should put a stop to this unwarranted government intrusion into the freedom of American citizens and residents by adopting legislation to end the travel ban once and for all.  

When Americans travel abroad, they spread our values of freedom and justice and help advance the free inquiry of ideas and free flow of information beyond our borders. The collapse of Communism in the former Soviet bloc-nations to which Americans' travel was not restricted by the U.S. government-instruct that one way to bring about democratic change is through personal interaction and sharing of our democratic ideals. This principle has been the basis for the limited "people to people" contacts among Cubans and Americans allowed under current law. Ensuring the constitutional right of U.S. citizens and lawful permanent residents to travel will promote democracy and human rights in Cuba, not the government of Fidel Castro.  

There is no justification for restricting travel to Cuba simply because of its deplorable human rights record or lack of diplomatic relations with the United States. Americans currently are permitted to travel to such countries as Sudan and Iran, with which the U.S. has no diplomatic relations, which have poor human rights records and where Americans might face danger. The choice to engage in travel should rest with the individual, not with the government.  

Ending the Cuba travel restrictions would promote individual liberty and begin to reverse an unproductive U.S. policy towards Cuba by ending funding for limiting travel-related expenditures by United States citizens and lawful resident aliens of the U.S. when they travel to Cuba. We urge that you do so this year. 

ENDNOTES  

 1 - Aptheker v. Secretary of State, 378 U.S. 500, 520 (1964) (Douglas, J., concurring).  

 2 - See Regan v. Wald, 468 U.S. 222 (1984); Zemel v. Rusk, 381 U.S. 1, 14 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 505-06 (1964); Kent v. Dulles, 357 U.S. 116, 125 (1958).