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From: "Pedro Martori"
Subject: Does the Cuban travel ban violate the U.S. Constitution? Would the Cuban people
Date: Sat, 19 Oct 2002 15:21:58 -0400
NNTP-Posting-Date: Sat, 19 Oct 2002 15:21:45 EDT
Organization: Bell Sympatico
Does the Cuban travel ban violate the U.S. Constitution? Would
the Cuban people benefit from American tourism?
Will subsidized trade with Cuba help the American Farmer or hurt
the US taxpayer?
Written Testimony by Frank Calzon,
Executive Director of the Center for a Free Cuba
On February 11, 2002 the United States Senate Subcommittee on
Treasury and General Government, Committee on Appropriations
presided by Senator Byron L. Dorgan held a hearing on the US
travel ban to Cuba. At the end of the hearing Sen Dorgan asked
Mr. Calzon to submit written testimony. Frank Calzon is the
Executive Director of the Center for a Free Cuba.
This testimony is presented on behalf of the Center For A Free
Cuba, an independent, nonprofit, nonpartisan organization
promoting human rights and a peaceful transition to democracy in
Cuba. The Center participates in the national debate on Cuba, but
does not take a position either for or against legislation
pending before Congress.
I am grateful to Chairman Byron L. Dorgan for this opportunity to
present our views about the US ban on travel to Cuba and other
aspects of United States policy toward the island. A number of
organizations and individuals are urging Congress to lift the ban
on travel to Cuba, claiming that the travel restrictions
unnecessarily curtail civil liberties and that they can no longer
be defended on the grounds of national security. At the same
time, some of these advocates assert that lifting US travel
restrictions would help the people of Cuba and hasten the end of
the 42-year-old Castro dictatorship.
While we beg to differ, we urge the Congress to look beyond the
opinions bandied about and to review the facts carefully. It
would be ironic if in the name of advancing tourist travel, a
leader of anti-American violence around the world, a government
on the US Department of State's list of sponsors of terrorism,
and one of the world's leading violators of human rights were to
be bolstered by an infusion of American-tourist dollars. A
reappraisal of US Cuba policy by the Administration and Congress
must take into account many issues; the travel ban is just one.
Among issues requiring urgent review are:
The lack of reciprocity in the operations of the US Interests
Sections in Havana and Cuba's Interests Section in Washington;
A US District Court's sentencing in December of Cuban spies
charged with trying to penetrate US military bases (two to life
in prison, one to 15 years, and others to lesser sentences);
The September 2001 arrest of Ana Belen Montes, a veteran Defense
Intelligence Agency analyst, charged with spying for Havana.
According to press reports Ms. Montes duties included providing
the Pentagon information on the military capabilities of the
The revelation in a book by the former deputy director of the
Soviet Union' s program of biochemical weapons that Soviet
officers were convinced "Cuba had an active biological weapons
program." (Ken Alibeck, "Biohazard: The Chilling True Story of
the Largest Covert Biological Weapons Program in the World,
Random House, 2000; pages 273-277);
The torturing of American servicemen (some of whom died) by Fidel
Castro's intelligence officers. See Sen. John McCain's Faith of
our Fathers (Random House, 1999), and Honor Bound: American
Prisoners of War in Southeast Asia 1961-1973, published by the
Naval Institute Press, Annapolis, 1999; and
The statement by Fidel Castro at Teheran University last summer
that America was weak, and Iran and Cuba could bring the United
States "to its knees."
Those examples of the Cuban government's enmity are not, of
course, the subject of this hearing. The focus of this hearing is
US restrictions on travel to Cuba and, to some extent, the sale
of US agricultural products to the island. Allow me to discuss
these two issues in the context of advocating a prudent,
pro-active policy designed to encourage a transition to a
democratic and prosperous Cuba. I believe there are at least
three questions that need to be answered:
Does the Cuba-travel ban violate the US Constitution?
Will subsidized trade with Cuba help the American farmer or hurt
the US taxpayer?
Would the Cuban people benefit from American tourism?
I. Does the Cuba travel ban violate the US Constitution?
First, it is simply wrong to suggest that Cuban-travel
restrictions are inconsistent with the exercise of rights
guaranteed by the US Constitution. The United States Supreme
Court squarely addressed the issue in Regan v. Wald. The Court
noted then that a citizen's right to travel is infringed when,
for example, the government prevents him/her from traveling
because of his/her political beliefs. The Court in Regan made
clear, however, that the executive branch may prohibit its
citizens, irrespective of political conviction, to travel to Cuba
or any other nation because of foreign-policy considerations. 468
US at 241-42. In so doing, the Court specifically rejected
suggestions that changes in the "geopolitical landscape" would
permit the judiciary to second-guess the executive branch's
determinations about what foreign policy justifies a travel ban.
Some apparently feel that only another Cuban missile crisis would
make restrictions on travel to Cuba constitutional. They argue
that there is no "emergency" at the present time and that the
relations between Cuba and the United States are subject to "only
the 'normal' tensions inherent in contemporary international
affairs." The holding [in prior Supreme Court decisions],
however, was not tied to an independent foreign-policy analysis
by the Court. Matters relating "to the conduct of foreign
relations ... are so exclusively entrusted to the political
branches of government as to be largely immune from judicial
inquiry or interference."
This clear statement belies any suggestion that changes in the
"geopolitical landscape" make unconstitutional today what was
constitutional in 1984. Despite "changing conditions," since
Regan, every court has rejected the invitation to find the
executive branch's policy on the Cuba travel restrictions
unconstitutional. e.g., US v. Plummer, 221 F.3d 1298, 1309-10
(11th Cir. 2000); Freedom to Travel v. Newcomb, 82 F. 3d 1431,
1439 (9th Cir. 1996). There simply is no responsible legal basis
for the suggestion that the Cuba travel ban violates the
Other "legal" arguments advanced for repeal are no more
persuasive. It is absurd to suggest that travel restrictions
should be lifted because those who violate them don't know about
them. A defendant showing he/she was unaware of a law might
reasonably expect a court to consider that before deciding what
punishment to impose. It is not grounds for a court to repeal a
law that has been violated. A second argument, that people
"intent" on visiting Cuba will necessarily violate the law, seems
equally illogical. Congress would not repeal anti-drug
legislation because drug addicts are "intent" on smoking dope.
Even if one assumes bureaucratic failings in the Treasury
Department's Office of Assets Control and Customs, it would not
be a basis for repeal. If such reasoning were accepted, the
Internal Revenue Code also would be imperiled.
The truth is that there are no "legal" arguments for repeal of
the Cuban travel restrictions. Such arguments are "smoke"
intended to obscure a policy debate. It is telling that those
urging a change of policy feel it necessary to try so hard to
obscure their intent.
II. Will subsidized trade with Cuba help the American farmer or
hurt the US taxpayer?
Fidel Castro's most persistent trait since assuming power in
1959 has been anti-Americanism. Now he says he wants to help
American farmers and trade with the United States. By Castro's
reckoning, selling grain and other commodities to Cuba will
greatly benefit American farmers.
The American economy today is grappling with the Enron fiasco,
which can be attributed to the company's manipulation of its
fiscal data, and the unwillingness of Executive branch regulators
and Congressional policy makers to ask tough questions. It is up
to Congress today to ask whether profits from trade with Cuba
aren't another mirage. And whether American taxpayers won't take
another hit if Fidel Castro's campaign to win credits, export
insurance and export guarantees succeeds? Will gullible Americans
also be swindled by Castro?
Harvard scholar and former US Sen. Daniel Patrick Moynihan once
said that "we are all entitled to our own opinions, but not to
our own facts." What are the facts? Say what you will about the
ineffectiveness of the US embargo, one of the best-kept secrets
of the embargo is that it has saved US taxpayers millions.
Because of the embargo American banks aren't part of the
consortium of creditors known as "the Paris Club" waiting to be
paid what they're owed by Havana. If they were, you and I both
know they would be pressing Congress to find a way for US
taxpayers to cover their losses in Cuba.
Since 1986 Castro's Western creditors (including Canada, France,
and Spain) have sought to recover some part of their $10 billion
in loans to Cuba. Havana refuses even to repay Moscow's larger
loans, insisting that its debt was to the Soviet Union, "a
country that no longer exists."
American agribusiness believes there are huge profits to be made
by trading with Havana. It believes foreign policy considerations
should not prevent trade even if strengthening regimes like
Libya, Iraq and Cuba might someday put the lives of US servicemen
at risk. Providing trade benefits to America's enemies,
especially those in the State Department's list of terrorist
nations makes, as much sense as the sale of US scrap metal and
bauxite to Japan in the 1930's. Some of those materials were used
to build up the Japanese military, leading to the attack on Pearl
In June 2000, Congress lifted sanctions on sales of agricultural
products and medicine to Cuba. For more than a year, there were
no sales. In the aftermath of a devastating hurricane in November
of 2001, the Bush Administration offered humanitarian assistance
to Cuba. Instead of promptly accepting the assistance and
thanking the United States, Castro turned the offer into a
public-relations stunt, insisting Cuba would buy $30 million in
commodities from the United States and initiating a political and
public relations campaign to win US credits and export insurance
for future "sales."
The Castro government, however, is broke. It suspended payments
on foreign debt in 1986. And although Castro has managed to
reschedule some debts, he continues to have difficulty paying his
creditors. It is tragic that Castro' s sales pitch are accepted
at face value without checking available economic data, and would
be worse if US taxpayers wind up encumbered with the risk of
making good on subsidized credits (to Castro) and export
insurance (to American corporate interests). As AmCham Cuba, (The
American Chamber of Commerce of Cuba in the United States)
reports in its February 2002 newsletter:
"Cuba's economic woes continue to mount as a result of being
especially hard hit by the world wide economic slow down and the
fall-off in international travel after the September 11 attacks.
Tourism, Cuba's most important economic sector has declined
sharply. Hotel occupancy is down at least 25 percent in Havana,
40 percent in Varadero. ¨
Cuba's second largest source of foreign exchange, expatriate
remittances are down due to the downturn in the US.. ¨
Removal of Russian surveillance facilities cost the Cuban economy
$200 million in Russian rent.
"Vice President Carlos Lage has cited 'the hard blow' by a fall
in world prices for Cuba's commodity exports such as sugar and
In the 1960s, when Castro expropriated US and Cuban businesses,
Washington banned all trade with Cuba. Castro now lures
businessmen by telling them that they are "losing business." But
according to a recent US International Trade Commission report,
"US sanctions with respect to Cuba [have] had minimal overall
historical impact on the US economy" and "even with massive
economic assistance from the Soviet Union, Cuba remained a small
global market relative to other Latin American countries."
The commission estimated "that US exports to Cuba in the absence
of sanctions, based on average 1996-98 trade data, would have
been less than 0.5 percent of total US exports." And that
"estimated US imports from Cuba . . . excluding sugar (US sugar
imports are government regulated) would have been approximately
$69 million to $146 million annually, or less than 0.5 percent of
total US imports."
The report asserts, "US wheat exports to Cuba could total between
$32 million and $52 million annually, about 1 percent of recent
US wheat exports." Economic data about Cuba is difficult to
obtain. But consider this: During the year 2000 France withheld a
shipment of grain due to Castro 's inability to pay for earlier
transactions and canceled $160 million in new credits to Havana.
In early 2001, Chile was attempting to establish "a payment plan"
for a $20-million debt for mackerel shipped the previous year.
South Africa, according to The Johannesburg Sunday Times was
"frustrated" by Havana's failure to settle a $13-million debt,
and Pretoria's Trade and Industry Ministry refused to approve
credit guarantees to Cuba. Last year (2001), Thailand also
refused to provide export insurance, resulting in the
cancellation of rice sales to the island worth millions of
According to the commission report, rice exports to Cuba would be
worth between $40 million and $59 million, increasing the value
of US rice exports by 4 to 6 percent: "US exporters would be
highly competitive with current suppliers." But the report
cautions that Castro's trade decisions are based on politics, not
on economics. Castro is unlikely to give the Americans the market
share that he provides his ideological allies: China and Vietnam.
Unfortunately, Castro's trade partners often become apologists
for the regime, fearing to say anything that endangers their
investments in Cuba. They have found out the hard way what
happens when Castro feels insulted by demands to pay. Louisiana
rice and Illinois wheat producers should stop assuming that
"selling" to Havana is synonymous with getting paid. US taxpayers
should be wary.
Castro desperately needs credits and subsidies. Washington is
under pressure from agri-business to provide credits and
subsidies. If all of us accept estimates that US trade with Cuba
might rise to $100 million per year, then five years from now
American taxpayers will have guaranteed $500 million in credits
and insurance. That's real money, everywhere.
Before extending credit to Castro, Americans should visit New
York City and watch how three-card monte is played on some street
corners. The dealer shows three cards, shuffles them, places them
face down and invites spectators to bet they can identify one. In
this game, the gambler voluntarily takes his chances. Where trade
with Castro is concerned, it's the US taxpayer will be left
holding the losing card.
III. Would the Cuban people benefit from American tourism?
Let us now look at the policy considerations. The stated goal of
US policy is to contain the Castro's communist regime by limiting
its access to hard currency and promoting democracy and a rule of
How would a change in current travel restrictions in regard to
Cuba impact US goals and interests? Would opening Cuba to
dollar-spending American tourists subsidize repression and assist
Fidel Castro in legitimizing the "tourist apartheid" he has
imposed on Cubans?
The Castro government sets aside hotels, beaches, stores,
restaurants, even hospitals and clinics for foreigners and
prohibits Cubans from staying in those hotels or patronizing
those facilities. Do Americans who advocate changes in US travel
policy have any moral responsibility to raise the issue of this
apartheid? Should the rights of vacationing American tourists
supersede the right of people living in Cuba to move freely about
their own country? To eat at the same restaurants? Visit the same
beaches? Obtain care in the same clinics?
At the beginning of the 21st Century, it no longer suffices to
say that what happens 90 miles away is not America's business.
The long history of misguided US policies toward Latin America
should raise a cautionary flag when dealing with Cuba. The Cuban
people are asking today, and will ask tomorrow: Where are their
American friends in time of need? How many business leaders and
Congressional visitors have asked President Castro to lift his
tourist apartheid? Allow the International Committee of the Red
Cross to visit Cuba's political prisoners? Grant Cubans the same
economic rights and privileges enjoyed by foreigners?
And what about the right of US citizens to use international
airspace? Six years ago Castro's warplanes shot down two small
civilian aircraft in international airspace over the Florida
Straits. Three US citizens died. So did a Cuban citizen who was
legally residing in the United States. The Clinton Administration
presented indisputable evidence to international organizations
that the Castro government deliberately murdered these men. Would
it be fair to say that the right to live is just as important as
the right to travel? Will America's civil-rights organizations so
concerned about international travel join the families of those
who died in seeking an indictment of those who pulled the
The Cuban regime needs the hard currency of foreign tourists to
maintain its repression. As I said earlier Castro's communist
government is bankrupt. Yet the dictator continues to muster and
mobilize foreign apologists to press for access to
American-funded trade credits and loan guarantees and to American
The discussion on lifting the sanctions is somewhat
schizophrenic: Some argue that lifting the travel ban will save
the "achievements" of the Cuban Revolution. Others say that
American tourists will ensure collapse of the Castro
dictatorship. Both groups cannot be right, but both can be wrong.
Many Central European leaders believe that radio broadcasts and
solidarity with dissidents were extremely important in helping
them win their struggle for freedom, but that Western loans and
tourism propped up communist regimes that would have collapsed
Professor Jaime Suchlicki, a noted historian at the University of
Miami, has written ["American tourists would boost Castro," The
Providence Journal, Jan.10, 2001] that the belief that
unilaterally and unconditionally lifting the travel ban "would
benefit the Cubans economically and hasten the downfall of
communism .is based in several incorrect assumptions." The first
is "that Castro and the rest of the Cuban leadership are naïve
and inexperienced and, therefore, would let tourists from the US
subvert the revolution and influence internal developments.. The
second is that Castro is so interested in close relations with
the United States that he is willing to risk what has been
uppermost in his mind for 41 years - total control of power and a
legacy of opposition to 'Yankee imperialism' - in exchange for
economic improvements for his people."
Dr. Suchlicki also writes that lifting the travel ban without
securing meaningful changes in Cuba would:
Guarantee the continuation of the current totalitarian
Strengthen state enterprises because the money would flow into
businesses owned by the Cuban government. (Most businesses are
owned in Cuba by the state and, in all foreign investments the
Cuban government retains a partnership interest.);
Lead to greater repression and control since Castro and the rest
of the leadership would fear that US influence would subvert the
revolution and weaken the Communist Party's hold on the Cuban
Delay instead of accelerate a transition to democracy in the
Send the wrong message to the enemies of the United States: that
a foreign leader can seize US properties without compensation;
allow the use of his territory for the introduction of nuclear
missiles aimed at the United States; espouse terrorism and
anti-U.S. causes throughout the world; and eventually, the United
States will "forget and forgive," and reward him with tourism,
investment, and economic aid.
Some argue that tourism and foreign investors would help bring
respect for human rights in Cuba. But in the absence of other
factors, the statement is simply not supported by the facts. As
reported by the AmCham Cuba Newsletter (February 2002), "A
Congressional delegation came under fire in Cuba for focusing
only on criticism of US sanctions at the expense of discussion on
Cuba's internal human rights. A leading Cuban dissident, Oswaldo
Paya of the Christian Liberation Movement, said the only issue
the delegation wanted to discuss was the embargo. Paya charged
that the visitor should 'Question whether there exists conditions
whereby Cubans can freely participate with dignity in commerce,
foreign investments, and cultural exchanges.'"
Despite millions of foreign tourists every year Cuba remains a
totalitarian state. Canada has acknowledged that its "policy of
engagement" has failed to produce any significant change in the
human rights situation on the island. Why should American
tourists have an impact different from that of the thousands of
Canadians who have been visiting Cuba for years?
Castro wants the benefits of capitalism, without Cuban
capitalists. Cuban workers are badly treated. Strikes and
nongovernmental labor unions are forbidden. Foreign investors
cannot hire workers directly. Sheritt, the Canadian nickel
company, pays Castro $9,500 dollars per year per worker; the
regime pays the workers the equivalent of $20 dollars a month.
Castro has allowed some minimal reforms due to the economic
crisis. In a perverse way, those who favor lifting the sanctions
on Castro's terms will discourage any future economic or
political reforms. The real embargo responsible for Cuba's misery
is the Marxist, command economy that failed in the Soviet Union
and every where else it has been tried.
Castro goes to great lengths to restrict any number of rights of
the Cuban people. Cubans are required to obtain "an exit permit"
before leaving Cuba. Cuban citizens abroad must obtain a visa
from a Cuban consulate before returning home. Cubans emigrating
from the island are not allowed to buy plane tickets with pesos;
they must have dollars. They are allowed to take with them only
"personal property," some clothes, etc. The government
confiscates everything else: cars, furniture, electric
appliances, kitchen utensils, etc.
Before Cubans are allowed to leave the island they must pay
several hundred dollars to the government in "processing fees."
Because most Cubans do not earn dollars, they depend on someone
outside the island to pay the fees and to buy their plane
tickets. A Cuban family would have to save all of its earnings
for 10 years or more to accumulate the amount required to buy
three plane tickets and pay government exit fees.
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