In light of recent reports that the Obama Administration is considering easing restrictions on travel to Cuba, CCR Executive Director Vincent Warren issued an Open Letter today to President Obama, taking issue with opponents’ claims that any such changes would be unlawful.
“While we applaud the Administration’s reinstatement of the general license for family travel and remittances last year, the U.S. has yet to eliminate the irrational and unlawful prohibition against travel to Cuba by non-Cuban Americans. The existing restrictions on travel raise serious constitutional and international human rights concerns. The Administration should take corrective measures which would bring the U.S. closer to compliance with the U.S. Constitution and international human rights law.”
In the letter, Warren elaborated on the legal framework surrounding any changes to the current travel licensing scheme that is administered by OFAC:
“The Supreme Court has recognized that the United States Constitution’s substantive due process guarantees include a limitation on the government’s ability to restrict travel. Among other things, the Fifth Amendment requires that any restriction on a citizen’s right to travel must be justified by a government interest important enough to outweigh that right. … [S]ince reimposing the travel restrictions in 1982, the U.S. government has consistently claimed that the restrictions on travel-related transactions are intended to cut off the flow of hard currency to Cuba. Whether such a governmental interest could withstand constitutional challenge under even rational review, given the clear infringement of U.S. citizens’ right to international travel, is highly dubious – particularly when considered against the $600 million to $1 billion sent to Cuba in recent years in the form of permissible remittances. While we support the Administration’s changes concerning remittances last year as a matter of principle and policy, the reality remains that a portion of that multi-million dollar export to the island nation inevitably returns to the Cuban state. Thus, to limit currency flows to Cuba by strictly limiting travel-related transactions remains irrational and unlikely to achieve even the averred goal of causing regime change within the country.
Finally, allowing permissible travel to Cuba would be one step in bringing the U.S. into compliance with the mandates of international law. The United Nations has passed near-unanimous resolutions condemning the U.S. embargo against Cuba, including its travel ban, as a violation of international law every year since 1992. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (“ICCPR”), to which the United States is a party, recognize the fundamental nature and importance of protecting the freedom of movement.”
Warren further corrected several misconceptions surrounding President Obama’s domestic legal authority for amending travel licenses:
“Contrary to recent reports, the Executive may tailor the current travel licensing scheme set forth in the Cuban Assets Control Regulations (“CACR”), 31 C.F.R. Part 515. The Executive may, for instance, expand the definition of ‘educational travel,’ ‘journalistic activities,’ or ‘humanitarian projects’ so as to include a wider range of academic programs, group travel, and people-to-people exchanges.”
Neither the oft-cited LIBERTAD Act nor the Trade Sanctions Reform & Export Enhancement Act of 2000 eliminate the President’s ability to make such changes. Indeed, both the Clinton and Bush Administrations amended the Cuba travel licensing regime, further reflecting that the existence of this authority does not bend with the political winds but is based on clear statutory grounds.
“The Center for Constitutional Rights has long advocated for changes to the U.S. policy toward Cuba, based on international law, constitutional law, and moral principles. Expanding the ability of U.S. citizens to travel to the country would be a first step in reforming what individuals across the political spectrum have acknowledged to be a mistake if not total failure in foreign policy, and in keeping with this Administration’s efforts to restore U.S. relations abroad.”