[Congressional Record Volume 140, Number 149 (Thursday, December 1, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: December 1, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                          THE RIGHT TO TRAVEL

 Mr. SIMON. Mr. President, on Wednesday, October 5, I held a 
hearing in my capacity as chairman of the Constitution Subcommittee of 
the Judiciary Committee on the Constitutional Right to International 
Travel. The hearing focused on the derivation of this well-established 
constitutional right, on the circumstances under which the right can be 
restricted, and on the wisdom as a policy matter of restricting the 
ability of Americans to visit nations with whom we may have political 
differences.
  In the course of this hearing, it became clear to me that there are 
limited instances in which the right of Americans to travel abroad 
should be restricted--namely, instances where international travel 
endangers the safety of the traveler or implicates national security 
concerns. Otherwise, as a matter of both constitutional law (the First 
and Fifth Amendments as well as other constitutional provisions) and 
policy, the right to a free trade in ideas and to investigations into 
other nations and cultures should be not only left untrammelled, but 
encouraged.
  During the course of this hearing, it also became clear to me that 
this Administration, as well as past Administrations, has been less 
protective or supportive of the right to travel as I think the 
Constitution requires. Administrations both past and present have on 
several occasions restricted travel to nations that pose absolutely no 
security risk either to the United States or to those who travel to 
that nation, relying on the Executive's foreign policy authority to 
effect these restrictions. This is true even though we have managed to 
achieve the greatest foreign policy successes in those very areas that 
we have left open to American travelers.
  On several occasions, Congress has not stood idly by while 
restrictions have been placed on international travel, and has often 
undertaken efforts to protect the right to travel from inappropriate 
and unwise restrictions. More needs to be done, however; currently 
travel restrictions are in place with respect to a number of countries 
that pose no risk to our nation's or citizens' security. I intend to 
look at this issue closely in the next session, and probably to 
introduce legislation to address both present and future travel 
restrictions. I hope to work closely with my colleagues in both Houses 
of Congress who agree with me as to the necessity of protecting this 
important right.
  In the meantime, I would like to place in the record the written 
statement from the October 5 hearing of Kate Martin, Executive Director 
of the ACLU's National Security Project. This statement explains the 
history of the constitutional right to travel, the ways in which 
Congress may inject itself into this debate, notwithstanding claims 
that congressional involvement in the travel issue impinges on the 
President's foreign affairs authority. It is a thoughtful and thorough 
discussion of the travel issue, and one that suggests the need for 
reform in this area in the very near future.
  The statement follows:

   Statement of Kate Martin, Director, Center for National Security 
Studies, American Civil Liberties Union on the Constitutional Right To 
                                 Travel

       Chairman and Members of the Subcommittee: I am very pleased 
     to have this opportunity to testify on behalf of the Center 
     for National Security Studies of the American Civil Liberties 
     Union on the constitutional right to travel. The ACLU is a 
     non-profit, non-partisan organization, with over 275,000 
     members, dedicated to the protection of civil liberties and 
     the democratic process. The ACLU takes no position on 
     substantive matters of U.S. foreign policy, including the 
     Cuban embargo, except to the extent that such policies 
     violate individual liberties or the democratic process.


                              introduction

       The right to travel is a fundamental aspect of individual 
     liberty protected by both international law and the 
     Constitution. It is also essential to the exercise of First 
     Amendment freedoms. The Supreme Court recognizes that right, 
     and the Congress has acted repeatedly to protect the right 
     against infringement by Executive branch actions.
       The current travel ban on travel to Cuba imposed under the 
     Trading with the Enemy Act (TWEA), violates this fundamental 
     right. Bureaucratic enforcement of the current restrictions 
     has been arbitrary and involved improper government inquiries 
     and censorship. Moreover, the administration's most recent 
     actions tightening the Cuban travel restrictions also violate 
     its commitments made to Congress earlier this year.
       The 1982 Supreme Count case, Regan v. Wald, which rejected 
     a challenge to the Cuba travel ban then in effect, is no 
     authority for the continuation of the present restrictions in 
     this post-Cold War world. The opinion in that case, written 
     by Justice Rehnquist for a narrow 5-4 majority did not hold 
     that there was no constitutional right to travel. Nor did it 
     hold that the government may restrict travel whenever it 
     deems such restrictions useful. To the contrary, Regan held 
     only that when the government asserts the weightiest of 
     national security reasons, important to the military defense 
     of the United States, for restricting travel, the court will 
     defer to such reasons. The reasons found sufficient in that 
     case--all related to the existence of the Cold War--no longer 
     exist. The current justification proffered for the travel 
     ban--to promote democracy and human rights in Cuba--does not 
     as a matter of law or common sense justify restricting the 
     human rights of Americans.
       The events of the last fifteen months demonstrate that 
     protection of this constitutional right will never be secure 
     so long as it can be held hostage to the political or foreign 
     policy objectives of the moment. Congress should act now to 
     protect this right, by prohibiting all travel restrictions 
     imposed under economic embargoes.


             The Constitution Protects the Right to Travel

       Most Americans do not realize that it is a crime for them 
     to travel to Cuba and would be shocked to find out that is 
     the case. They instinctively understand that the right to 
     travel freely is part of the basic liberty which our 
     democratic government was established to protect. Indeed, the 
     Universal Declaration of Human Rights, Art, 13, recognizes 
     the right to travel both inside one's country and 
     internationally. The Supreme Court has repeatedly recognized 
     that the right to travel is protected under the Fifth 
     Amendment as a liberty interest that cannot be deprived 
     without due process of law.\1\ Indeed, even the Executive 
     Branch concedes that ``the right to travel--both domestically 
     and internationally--is constitutionally protected,'' 
     although it violates this principle in action. Report of the 
     United States of America Under the International Covenant on 
     Civil and Political Rights, (ICCPR Report) July 28, 1994, 
     Art. 12, p. 99.
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     \1\Footnotes at end of article.
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       Moreover, restrictions on the right to travel must be 
     judged against the central principle of the First Amendment: 
     ``Congress shall make no law . . . abridging the freedom of 
     speech,'' means that every person is free to speak her mind 
     about the actions of the government and to participate in the 
     debate about the great issues of the day. To participate 
     effectively in this process, private persons must have access 
     to information. To participate in debate about foreign policy 
     questions, they must have access to information about events 
     taking place in the world. It would seem beyond debate that, 
     except in the most compelling circumstances, the government 
     may not interfere with the ability of private citizens to 
     find out for themselves what is going on around the world and 
     to use that information to influence public debate.
       As the Supreme Court has explained:
       ``. . . . In Anglo-Saxon law that right [to travel] was 
     emerging at least as early as the Magna Carta. Chafee, Three 
     Human Rights in the Constitution of 1787 (1956), 171-181, 187 
     et seq., shows how deeply engrained in our history this 
     freedom of movement is. Freedom of movement across frontiers 
     in either direction, . . . was a part of our heritage. Travel 
     abroad, like travel within the country, may be necessary for 
     a livelihood. It may be as close to the heart of the 
     individual as the choice of what he eats, or wears, or reads. 
     Freedom of movement is basic in our scheme of values. . . . 
     ``Our nation,'' wrote Chafee, ``has thrived on the principle 
     that, outside areas of plainly harmful conduct, every 
     American is left to shape his own life as he thinks best, do 
     what he pleases, go where he pleases.''
       ``Freedom of movement also has large social values. As 
     Chafee put it:
       ``Foreign correspondents and lectures on public affairs 
     need firsthand information. Scientists and scholars gain 
     greatly from consultations with colleagues in other 
     countries. Students equip themselves for more fruitful 
     careers in the United States by instruction in foreign 
     universities. Then there are reasons close to the core of 
     personal life--marriage, reuniting families, spending hours 
     with old friends. Finally, travel abroad . . . helps them to 
     be well-informed on public issues. An American who has 
     crossed the ocean is not obliged to form his opinions about 
     our foreign policy merely from what he is told by 
     officials of our government or by a few correspondents of 
     American newspapers. Moreover, his views on domestic 
     questions are enriched by seeing how foreigners are trying 
     to solve similar problems. In many different ways direct 
     contact with other countries contributes to sounder 
     decisions at home.''

     (Citations and footnotes omitted.) Kent v. Dulles, 357 U.S. 
     at 126-127.
       Nevertheless, there is a long history of efforts to abridge 
     Americans' right to travel, usually in the name of some 
     foreign policy goal, such as fighting communism or promoting 
     democracy, sometimes, to punish Americans holding minority 
     political views. Each political branch has at different 
     times, acted both to protect and to restrict the right, 
     depending on the prevailing political winds. At times, the 
     Supreme Court has wavered in its commitment to this 
     fundamental right. However, history demonstrates a growing 
     and inexorable recognition that the sharing of information 
     and ideas by travel and otherwise is a cornerstone of 
     individual liberty, and essential to the building of 
     democracy.
       It has become increasingly clear that banning travel by 
     Americans to foreign dictatorships has never resulted in the 
     avowed goal of undermining that dictatorship. Indeed the 
     current Administration no longer even attempts to justify the 
     Cuban travel ban on that basis. They, like all serious 
     observers, recognize the positive benefits democratic forces 
     derive from the sharing of information and ideas. Thus, they 
     are driven to pretend that in banning travel, they are not 
     banning the sharing of information and ideas, but only 
     implementing currency regulations. Testimony of Alexander 
     Watson, Assistant Secretary of State, Joint Hearing on U.S. 
     Policy and the Future of Cuba, Subcommittees on Economic 
     Policy, Trade, and Environment; Western Hemisphere Affairs; 
     and International Operations; of the Committee on Foreign 
     Affairs of the House of Representatives, Nov. 18, 1993, p 19.
       In recent years, protection of the right to travel and to 
     share information and ideas has fallen mainly to the 
     Congress. In particular, Congressman Howard Berman has been 
     instrumental in passing Free Trade In Ideas legislation, 
     first in 1988, then in 1991, and again this year. The recent 
     tightening of the Cuban travel ban demonstrates the necessity 
     for Congress to act again.


                     history of the right to travel

       Historically, Americans' right to travel was regulated 
     under the Passport Act, not the economic embargo laws. For 
     the first hundred years of travel regulations, travel was 
     restricted only during time of war. Although Congress passed 
     the first Passport Act in 1856, it did not make it illegal to 
     travel without a passport until 1918. The 1918 statute 
     delegated to the President the right during time of war, to 
     impose by proclamation, a requirement that U.S. citizens use 
     a passport when entering or leaving the country. In 1918 and 
     again in 1941, the President issued such proclamations. In 
     1952, as part of the McCarren-Walter Act, the Congress again 
     delegated power to the President to proclaim a national 
     emergency during which use of a passport would be required 
     and in 1953, President Truman declared the situation in North 
     Korea to be a national emergency. Immigration and 
     Nationality Act Sec. 215. Only in 1978, when Congress 
     otherwise restricted the President's authority, did it 
     permit him to always require a passport for entering or 
     leaving the country. 8 U.S.C. Sec. 1185(b).
       During the McCarthy era, the government also sought to deny 
     the right to travel to certain Americans based on their 
     political beliefs. That practice was not finally outlawed 
     until 1991 when Congress amended the Passport Act. In 1952, 
     the Secretary of State declared pursuant to the delegation 
     provision in the 1926 Passport Act that passports were not to 
     be issued to members of the Communist Party for reasons of 
     national security. This prohibition was challenged as 
     unconstitutional and unauthorized and in 1958, the Supreme 
     Court struck it down on the ground that Congress had not 
     authorized it. Kent v. Dulles, 357 U.S. 116 (1958).
       Six years later, the Court again considered the issue of 
     revocation of passports of Communists and this time held a 
     statute specifically authorizing such revocation 
     unconstitutional. Aptheker v. Secretary of State, 378 U.S. 
     500 (1964). In this case, the Subversive Activities Control 
     Act specifically provided that members of the Communist party 
     should have their passports revoked. There being no issue 
     whether the Executive had authority to revoke the passports, 
     the Court was forced to reach the constitutional issue and 
     struck down the law as overly broad and indiscriminate. 
     Justice Douglas declared that absent war, the government had 
     no power to keep a citizen from traveling unless there was 
     power to detain him or her.
       Nevertheless, as late as 1981, the Executive Branch 
     continued to assert that the President's foreign policy 
     powers include the right to revoke an American's passport in 
     order to prevent her from denouncing U.S. policy abroad. See 
     Haig v. Agee, 453 U.S. 280 (1981). In 1991, Congress amended 
     the Passport Act to prohibit revocation of passports on the 
     basis of activities protected by the First Amendment.
       The Executive Branch also sought to restrict the travel 
     rights of Americans by putting area restrictions on the use 
     of passports. In Zemel v. Rusk, 381 U.S. 1 (1965) the Supreme 
     Court decided that the statutory language, which had been 
     held not to authorize the President to refuse passports to 
     Communists, did authorize the President to refuse to validate 
     passports for travel to Cuba. The court went on to find the 
     passport restriction on travel to Cuba to be constitutional, 
     because it was supported by the ``weightiest considerations 
     of national security.''
       However, even as the Supreme Court deferred to the 
     Executive concerning passport controls, the Congress became 
     increasingly active in protecting that right against 
     executive limitation. In 1978, Congress rejected the result 
     in Zemel and explicitly prohibited the President from 
     imposing geographic restrictions on the use of passports 
     under the Passport Act except ``where armed hostilities are 
     in progress, or where there is imminent danger to the public 
     health or the physical safety of United States 
     travellers.'' 22 U.S.C. Sec. 211a. In our judgment, this 
     provision of the Passport Act includes all circumstances, 
     in which the government may legitimately ban travel.
       Indeed, in the late 1970's, Americans' right to travel and 
     in particular their right to travel to Cuba was for a time 
     secure. Although the trade embargo of Cuba first declared in 
     1963 under the TWEA, included restrictions on travel by 
     Americans, in 1977, President Carter lifted the ban to permit 
     all Americans to travel to Cuba, for any purpose. Thereafter, 
     Congress amended the Trading with the Enemy Act to restrict 
     its invocation by the President to times of war, although it 
     grandfathered existing restrictions. When Congress also 
     amended the Passport Act in 1978 to prohibit the Executive 
     from imposing geographic restrictions on the use of U.S. 
     passports except in narrowly limited circumstances, it 
     appeared that the right to travel had been protected.
       However, in 1982, President Reagan found a way around the 
     limitation in the Passport Act by using the trade embargo 
     statute to impose currency restrictions on travel to Cuba. 
     President Reagan prohibited all travel to Cuba except by 
     journalists, professional researchers, and persons visiting 
     close relatives, or where Cuba hosted the travel. Americans 
     seeking to travel to Cuba brought suit challenging the 
     reimposition of the ban on the grounds that the President did 
     not have the authority to impose it under the TWEA. They 
     argued that when Congress repealed the President's national 
     emergency powers under TWEA, the grandfather clause 
     preserving ``the authorities'' ``which were being exercised 
     with respect to a country on July 1, 1977'' did not include 
     authority to impose a travel ban not in effect in July, 1977.
       The appeals court struck down the travel ban as 
     unauthorized, based on earlier Supreme Court decisions 
     requiring a narrow construction of delegated presidential 
     powers restricting the right to travel.\2\ The appeals court 
     also reasoned that the 1978 Passport Act amendment 
     prohibiting geographic restrictions on the use of passports 
     would be meaningless if the President could achieve the same 
     result by imposing currency restrictions under the trade 
     embargo laws.
       The Supreme Court, with Justice Rehnquist writing the 
     opinion, reversed. Regan v. Wald, 468 U.S. 222 (1984). Taking 
     an expansive view of the President's powers in areas 
     affecting foreign policy, the Supreme Court read the 
     grandfather clause broadly to authorize the subsequent travel 
     restrictions. The Court did not explain how its conclusion 
     could be reconciled with Congress' explicit prohibition of 
     the imposition of geographic restrictions on the right to 
     travel. It upheld the travel restrictions, by a 5-4 vote, 
     because of the overriding national security concerns asserted 
     by the government. Specifically, the Court relied on State 
     Department assertions that the influx of hard currency from 
     beach tourism and other travel to Cuba posed a threat to 
     the national security of the United States because Cuba 
     was allied with the Soviet Union, was supporting armed 
     insurrection in the Western Hemisphere, and had 40,000 
     troops stationed in Africa and the Middle East in support 
     of objectives inimical to U.S. national security 
     interests. 468 U.S. at 243.\3\
       Of course, none of these national security concerns exist 
     today. The Soviet Union no longer exists. Cuba poses no 
     threat to the national defense of United States. It no longer 
     has troops stationed in Africa or elsewhere and is no longer 
     providing support for violence in the Western Hemisphere.


           current developments: 1994 Free Trade in Ideas Act

       After the end of the Cold War, Congress again took up the 
     issue of travel restrictions. In 1993, Rep. Howard Berman 
     introduced H.R. 1579, the ``Free Trade in Ideas Act of 1993'' 
     to prohibit trade embargo restrictions on the free exchange 
     of information and to protect the right to travel.
       In June, 1993, Secretary of State Warren Christopher wrote 
     Mr. Berman a letter asking him to withdraw the provision in 
     exchange for regulatory reform and ``an inter-agency review 
     of our existing sanctions programs, policies, and legislation 
     to ensure they properly reflect our mutual commitment to the 
     dissemination of information and ideas.''\4\ Secretary 
     Christopher also affirmed ``the Administration's commitment 
     to the dissemination of information and ideas as a 
     significant element in the promotion of democracy'' and 
     expressly endorsed ``the underlying objectives of the Free 
     Trade in Ideas Act.'' Id. In response, Congress deferred 
     further consideration of the bill.
       When the Executive Branch review was not finished by the 
     spring of 1994, Congress enacted the 1994 Free Trade in Ideas 
     Act as part of the State Department Authorization Act. In 
     passing this bill, Congress explicitly recognized that 
     constitutional rights were at stake and acted to prohibit 
     travel bans being imposed as part of future embargoes. H. 
     Rept. 103-482, at 238. The Act amends the International 
     Emergency Economic Powers Act (IEEPA) to prohibit any 
     restrictions on travel (including currency restrictions) in 
     any future embargoes imposed pursuant to the IEEPA. The 
     provision exempts all current IEEPA embargoes from this 
     requirement, and it does not apply to embargoes under the 
     TWEA, such as Cuba and North Korea. The Clinton 
     Administration opposed this change. This is an important 
     protection for future embargoes, although it does not 
     explicitly apply to embargoes imposed by the United Nations 
     and implemented pursuant to the United Nations 
     Participation Act.
       Based on its understanding of the Administration's 
     commitment to the principle of free trade in ideas and the 
     unfinished status of the inter-agency review, the Congress 
     did not pass binding legislation governing travel under 
     current embargoes. It did, however, pass a non-binding Sense 
     of the Congress resolution that ``the President should not 
     restrict travel or exchanges for informational, educational, 
     religious, cultural, or humanitarian purposes or for public 
     performances or exhibitions, between the United States and 
     any other country.'' The conference report accompanying the 
     final bill noted that ``[t]he committee of conference 
     understands that it is the policy of the executive branch to 
     now undertake to incorporate this principle through 
     regulatory and administrative changes, including issuance of 
     visas for these purposes, and removal of currency 
     restrictions for such activities, in all existing and future 
     embargoes.'' H. Rept. 103-482, at 239.\5\
       Finally, the 1994 Act amends the TWEA and the IEEPA to 
     collect overly narrow Treasury Department interpretations of 
     1988 free trade in ideas legislation which prohibited 
     restrictions on the import or export of information and 
     informational materials. These changes make clear that all 
     information and informational materials are exempted from all 
     existing and future embargoes, regardless of the type, 
     format, or means of transmission (including electronic 
     information). Apparently in response to this provision, the 
     United Nations economic embargo to Haiti exempted information 
     from its coverage. See United Nations Security Council 
     Resolution 917 (May 6, 1994).


                 Current restrictions on travel to Cuba

       For five years from 1977 to 1982, the government imposed no 
     restrictions on the right of Americans to travel to Cuba. See 
     42 Fed. Reg. 16621 (1977); 42 Fed. Reg. 25499 (1977). This 
     was the case despite ongoing Cold War hostilities and the 
     maintenance of the economic embargo. In 1982, however, 
     President Reagan reimposed the travel ban, with very limited 
     exceptions. Even though the reasons for imposition of the 
     1982 ban have all disappeared, the Cuban travel ban remains 
     in large measure unchanged. In June 1993, in response to the 
     Cuban Democracy Act, it was slightly eased. However, 6 weeks 
     ago, on August 26, 1994, it was tightened. Current 
     restrictions are more stringent than those imposed by 
     President Reagan.
       When the current administration took office, the Cuban 
     embargo banned travel by all Americans, except professional 
     researchers ``with an established interest in Cuba,'' 
     journalists, people visiting close family relatives, and 
     persons whose travel was hosted by Cubans. Thus, American 
     journalists, professional researchers doing work on Cuba, and 
     Americans visiting their family were free to travel to 
     Cuba under a general license, meaning that they did not 
     have to ask the U.S. Government for permission to go. Of 
     course, if individuals went to Cuba, who did not come 
     within these categories, they would be guilty of 
     committing a federal felony. Tourist travel was banned. In 
     addition, since July 1993, persons could apply for special 
     permission to go for educational purposes, to travel on 
     behalf of human rights organizations, or for purposes of 
     importing informational materials, or for public 
     performance or exhibitions.
       In practice, these restrictions have proved unworkable and 
     discriminatory, as set out in more detail below. However, 
     after passage of the congressional resolution in the Free 
     Trade in Ideas Act, we understood that the Administration was 
     working on changes to implement the congressional resolution 
     and to allow all travel except tourist travel.
       We were extremely disappointed on August 26, when, instead 
     of making changes to implement the resolution, the 
     Administration issued new regulations, tightening instead of 
     loosening the travel restrictions. They did so, not in 
     response to any asserted national security threat, but 
     because record numbers of Cubans were fleeing Cuba for the 
     United States and as part of an effort to persuade Castro to 
     prevent more Cubans from leaving.
       The new regulations ban all family travel, except in cases 
     of terminal illness or severe medical emergency. Even then, 
     you have to ask and wait for U.S. government permission to 
     visit your dying mother. Such an absurd restriction is not 
     only a violation of the right to travel, but also of the 
     fundamental liberty interests that protect family relations. 
     Congress clearly intended such travel to be protected when it 
     passed the non-binding resolution. While the congressional 
     resolution does not explicitly refer to ``family'' travel, it 
     instead refers to the broader category of travel for 
     ``humanitarian'' purposes. The resolution was meant to cover 
     all travel except tourist travel, and did not explicitly 
     refer to ``family'' travel only because no one ever thought 
     that the administration would reverse this decade old policy.
       The new regulations no longer permit travel by free-lance 
     journalists or documentary film-makers: the general license 
     for journalists is now restricted to those ``regularly 
     employed in that capacity by a news reporting organization'' 
     when the regulations had included a general license for 
     ``persons who are traveling for the purpose of gathering 
     news, making news or documentary films,'' 31 C.F.R. 
     Sec. 515.560(a)(1)(ii).
       The new regulations require professional researchers to 
     individually apply for permission to go, when they were 
     previously free to travel under a general license.
       The new regulations no longer permit travel ``for purposes 
     of public performances, public exhibitions or similar 
     activities'', when specific licenses for such purposes have 
     been available since last June, and travel for this purpose 
     was specifically referred to in the congressional 
     resolution.
       The new regulations contain no safeguards to ensure that 
     even people coming within these limited categories will 
     receive timely approval of their travel requests or that the 
     Treasury Department will cease arbitrarily denying such 
     licenses as it was doing prior to the passage of the 
     Congressional resolution.\6\
       Since August, Administration policy has been unclear. While 
     Anthony Lake stated that ``the President remains firmly 
     committed to the free exchange of ideas and information,'' 
     that commitment evidently extends only to persons who can 
     demonstrate ``genuine educational or research needs'' to the 
     satisfaction of the Treasury Department.\7\ Although Lake 
     also announced that ``travel for educational or research 
     purposes will continue to be permitted under the same 
     standards as before'' in practice that has not turned out to 
     be the case.
       Since the August tightening of restrictions, groups of 
     academics seeking to attend academic conferences who would 
     previously have been free to travel under the general license 
     for professional researchers have been forced to submit 
     extensive information about themselves and their scholarly 
     pursuits. They needed a lawyer to obtain permission. Dan 
     Walsh of Liberation Graphics, an importer of Cuban political 
     posters, has been unable to get his specific license renewed, 
     even though Treasury Department employees told him he was in 
     full compliance and entitled to renewal of this license. 
     Treasury Department employees have also said that while they 
     have been directed to first process requests for permission 
     from Cuban-Americans seeking to visit family members in 
     emergencies, they do not have the staff to do so.
       In general there is great confusion about who is entitled 
     to go under the regulations and no written guidance from the 
     Treasury Department. For example, while the regulations state 
     that only persons ``regularly employed . . . by a news 
     reporting organization,'' travel under the general license, 
     Treasury has informed some people that it interprets this to 
     include free-lance journalists. As a result, Americans 
     seeking to exercise their constitutional rights must find a 
     lawyer to advise them whether they face jail for doing so.
       Even before the August charges, the regulatory scheme had 
     proved unworkable and discriminatory. Some persons, including 
     a group of mathematicians who should have been entitled to a 
     specific license for educational travel were denied licenses. 
     The government threatened to criminally prosecute a group of 
     travelers who were clearly entitled to a specific license for 
     an educational trip, but chose as a matter of principle not 
     to apply for a license. In October, 1993 and again in June, 
     1994, the group called the Freedom to Travel Campaign 
     organized an educational trip to Cuba, but did not apply 
     for a specific license because they believed the 
     regulations to be unconstitutional. The 175 travelers on 
     the October trip were professionals, free-lance 
     journalists, and others with an established interest in 
     Cuba. They came from around the country and included 
     doctors, teachers, engineers, priests, and blue collar 
     workers, ranging in age from 4 to 89. They spent a week in 
     Cuba with a full-time schedule of educational, research, 
     and journalistic activities, including visiting day care 
     centers, health clinics, and agricultural cooperatives. 
     They met and had extensive discussions with government 
     officials, experts on Cuban affairs, and ordinary 
     citizens. Upon their return, many were questioned and 
     harassed by Customs agents. The travelers were then 
     referred to the Department of Justice for possible 
     criminal prosecution under the Trading with the Enemy Act 
     and the matter has not been resolved. The group organized 
     a second trip in June and right before the trip, the 
     Treasury Department blocked the group's bank account on 
     the grounds that they intended to violate the law. The 
     group went anyway and has filed a lawsuit seeking return 
     of their money and challenging the Cuba travel 
     regulations. The lawsuit is now pending and the group is 
     at this moment in Cuba on a third trip.
       All of these examples illustrate the grave constitutional 
     problems which arise under a regulatory scheme which picks 
     and chooses which Americans may exercise their constitutional 
     rights and then makes those rights subject to bureaucratic 
     regulations. Indeed, as far as we can determine, the 
     government threatened with prosecution and froze the bank 
     account of the Freedom to Travel campaign without any high 
     level policy review of whether the government interest at 
     stake is the ``weightiest national security interest'' 
     necessary to restrict these constitutional rights. Indicting 
     Americans for simply exercising their First and Fifth 
     Amendment rights would be unprecedented in recent history. 
     Before the government even considers doing so, the Secretary 
     of State and the Attorney General personally should determine 
     that doing so is essential to the national security. We do 
     not believe that determination can be made in good faith.
       Moreover, a regulatory scheme such as this, which gives 
     Treasury officials unbounded discretion to grant or deny a 
     permit application, violates the First Amendment on that 
     ground as well. See 31 C.F.R. Sec. 515.560(b) (allowing OFAC 
     to grant licenses ``in appropriate cases'' without defining 
     such cases). ``[I]n the area of free expression a licensing 
     statute placing unbridled discretion in the hands of a 
     government official or agency constitutes a prior restraint 
     and may result in censorship.'' Lakewood v. Plain Dealer Pub. 
     Co., 486 U.S. 750, 757 (1988).


                               Conclusion

       None of the national security considerations found by the 
     Supreme Court to justify the Cuban travel ban in 1982, apply 
     today. Recognizing these changed circumstances, the Executive 
     no longer attempts to justify the travel restrictions as 
     necessary to our national defense. Instead, the 
     restrictions are justified as helpful to the U.S. foreign 
     policy objective of promoting democracy and human rights 
     in Cuba.\8\ The most recent tightening of the restrictions 
     was done in response to the increased flow of refugees 
     permitted by Cuban Premier Castro. But there is no support 
     for the proposition that fundamental rights of Americans 
     may legitimately be sacrificed to promote human rights in 
     Cuba.
       While our constitutional history is replete with instances 
     in which fundamental rights have been subordinated to real or 
     asserted threats to the national security, never have such 
     rights been sacrificed for the reasons that now underlie the 
     present restrictions on travel to Cuba. Although those 
     reasons may be sufficient to prevent Americans from 
     purchasing cigars, rum, or sugar, they are not sufficient to 
     restrict the exchange of ideas and information via the right 
     to travel. Moreover, we suggest that it is paradoxical at the 
     very least to promote democracy and human rights in Cuba 
     through a policy that limits constitutional rights here.
       Congress should now act to protect the constitutional right 
     to travel so that the Executive Branch may not sacrifice that 
     right whenever it deems it expedient to do so.


                               footnotes

     \1\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).
     \2\The Executive Branch agrees that a narrow construction of 
     ``all delegated powers that curtail or dilute citizens' 
     ability to travel'' is required. ICCPR Report at 99, quoting 
     Kent v. Dulles, 357 U.S. at 129.
     \3\The Regan Court reiterated the position it took in Zemel 
     v. Rusk, 381 U.S. 1 (1965), that the government could 
     prohibit travel in the face of an overriding national 
     security threat. Zemel was decided shortly after the Cuban 
     Missile Crisis, based on the government's assertions that 
     allowing Americans to travel could endanger their lives and 
     provoke a similar international incident if the Cuban 
     government attacked or took Americans hostage.
     \4\Letter dated June 7, 1993 from Secretary of State 
     Christopher to Howard Berman, Chairman of the Subcommittee on 
     International Operations (``Christopher Letter''). [A copy of 
     this letter is attached to this testimony.]
     \5\However, in his April 20, 1994 signing statement, 
     President Clinton appeared to retreat from this commitment 
     stating that ``[w]e will carefully consider the sense of the 
     Congress as we complete our review of the standards for 
     general and specific licenses under embargo programs. We have 
     not, however, committed as a matter of policy to remove 
     restrictions affecting'' such travel.
     \6\The new regulations also further restrict specific 
     licenses for ``activities of recognized human rights 
     organizations'' to instances ``investigating human rights 
     violations.''
     \7\Letter from Anthony Lake, National Security Advisor, to 
     Audrey Chapman, American Association for the Advancement of 
     Science, September 19, 1994, copy attached.
     \8\See ``Speech by Alexander F. Watson, Assistant Secretary 
     of State for Inter-American Affairs before the Cuban American 
     National Foundation'' (Oct. 26, 1993) (``Human rights and 
     democracy are two of the pillars of United States foreign 
     policy under the Clinton administration, and are at the core 
     of our policy towards Cuba.'').
                                  ____



                                       The Secretary of State,

                                     Washington, DC, June 7, 1993.
     Hon. Howard L. Berman,
     Chairman, Subcommittee on International Operations, Committee 
         on Foreign Affairs, House of Representatives.
       Dear Mr. Chairman: I am writing in regard to the ``Free 
     Trade in Ideas Act of 1993'', which is contained in Title II, 
     Part E, of your legislation to authorize appropriations for 
     FY 1994 and 1995 for the Department of State.
       I am pleased to take this opportunity to affirm the 
     Administration's commitment to the dissemination of 
     information and ideas as a significant element in the 
     promotion of democracy, a central tenet of our foreign 
     policy. If conducted in a manner which safeguards national 
     security, and which does not merely constitute an 
     informational pretext for evasion of the larger financial 
     purposes of economic embargoes, the free flow of ideas and 
     information is also consistent with the maintenance and 
     enforcement of economic embargoes. Indeed, the free flow of 
     information can advance rather than hinder the foreign policy 
     goals which embargoes seek to accomplish.
       Accordingly, the Department endorses the underlying 
     objectives of the Free Trade in Ideas Act. Nonetheless, like 
     you, we believe the Administration should retain the 
     authority to control information flow for non-prolife action, 
     anti-terrorism, export control and other highly compelling 
     foreign policy or national security purposes. We also believe 
     that the objectives of your legislation, for the most part, 
     can be achieved through regulation although some statutory 
     clarification of these matters may be useful.
       I propose that the Department conduct, on an expedited 
     basis, an inter-agency review of our existing sanctions 
     programs, policies, and legislation to ensure they properly 
     reflect our mutual commitment to the dissemination of 
     information and ideas. We will consult closely with you and 
     your staff during this review. In return, I ask that you 
     agree to withdraw this Title from the bill when it comes 
     before the full committee.
       I hope this proposal will be satisfactory to you. I look 
     forward to hearing from you.
           Sincerely,
                                               Warren Christopher.
                                  ____



                                              The White House,

                               Washington, DC, September 19, 1994.
     Audrey Chapman,
     Program Director, American Association for the Advancement of 
         Science,
     1333 H Street, N.W., Washington, DC.
       Dear Ms. Chapman: Thank you for your letter regarding 
     United States policy toward Cuba. The decisions announced by 
     the President on August 20, 1994, and subsequently 
     implemented by the Department of the Treasury, are consistent 
     with our long-standing goal of seeking a peaceful transition 
     to democracy in Cuba. The careful application of sanctions is 
     designed to pressure the Cuban government and cut off the 
     supply of foreign currency it uses to support its failed 
     economy.
       I can assure you that the President remains firmly 
     committed to the free exchange of ideas and information. 
     Travel for educational or research purposes will continue to 
     be permitted under the same standards as before. This will 
     ensure that people with genuine educational or research needs 
     will still be permitted to travel to Cuba.
       I appreciate your concerns and assure you that the 
     President and I share your goal of moving toward a democratic 
     Cuba and resuming normal relations with a freely elected 
     Cuban government.
           Sincerely,
                                                     Anthony Lake,
     National Security Affairs.

                          ____________________