S. Hrg. 103-1086
THE CONSTITUTIONAL RIGHT TO
INTERNATIONAL TRAVEL
Y 4. J 89/2: S. HRG. 103-1086
The Constitutional Right to Interna... J\1JNLt
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
THE CONSTITUTIONAL RIGHT TO INTERNATIONAL TRAVEL, FOCUSING
ON UNITED STATES RESTRICTIONS ON TRAVEL TO CUBA
OCTOBER 5, 1994
Serial No. J-103-75
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
24-540 CC WASHINGTON [ 1996
^penntendentot Documents
DEPOSITORY
JUL 1 7 1996
Boston Public Library
f Government Docnmfintc rj ept
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington. DC 20402
ISBN 0-16-052658-2
r~\ S. Hrg. 103-1086
y THE CONSTITUTIONAL RIGHT TO
INTERNATI ONAL TRAVEL
\. J 89/2: S, HRG. 103-1086
Constitutional Right to Interna... JaJJNCx
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
THE CONSTITUTIONAL RIGHT TO INTERNATIONAL TRAVEL, FOCUSING
ON UNITED STATES RESTRICTIONS ON TRAVEL TO CUBA
OCTOBER 5, 1994
Serial No. J-103-75
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
24-540 CC WASHINGTON : 1996
Superintendent of Documents"
DEPOSITORY
JUL 1 7 1996
Boston Public Library
Government Documents Dept
For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington. DC 20402
ISBN 0-16-052658-2
COMMITTEE ON THE JUDICIARY
JOSEPH R. BIDEN, Jr., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
HOWARD M. METZENBAUM, Ohio STROM THURMOND, South Carolina
DENNIS DeCONCINI, Arizona ALAN K. SIMPSON, Wyoming
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa
HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania
PAUL SIMON, Illinois HANK BROWN, Colorado
HERBERT KOHL, Wisconsin WILLIAM S. COHEN, Maine
DIANNE FEINSTEIN, California LARRY PRESSLER, South Dakota
CAROL MOSELEY-BRAUN, Illinois
Cynthia C. Hogan, Chief Counsel
Catherine M. Russell, Staff Director
Mark R. Disler, Minority Staff Director
Sharon Prost, Minority Chief Counsel
Subcommittee on the Constitution
PAUL SIMON, Illinois, Chairman
HOWARD M. METZENBAUM, Ohio HANK BROWN, Colorado
DENNIS DeCONCINI, Arizona ORRIN G. HATCH, Utah
EDWARD M. KENNEDY, Massachusetts
Susan Kaplan, Chief Counsel
David Miller, Minority Counsel
(ID
CONTENTS
STATEMENTS OF COMMITTEE MEMBERS
Page
Simon, Hon. Paul, U.S. Senator from the State of Illinois 1
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah 2
CHRONOLOGICAL LIST OF WITNESSES
Statement of the Hon. Howard L. Berman, U.S. Representative in Congress
from the State of California 3
Panel consisting of Kate Martin, director, Center for National Security Stud-
ies, American Civil Liberties Union; and Robert Turner, Charles E. Stock-
ton Professor of International Law, U.S. Naval War College 15
Panel consisting of Peter Hakim, president, Inter-American Dialogue; Alicia
Torres, executive director, Cuban American Committee Research and Edu-
cation Fund; Mary Gray, professor of mathematics, The American Univer-
sity; and George J. Du-Breuil, member, board of directors, Cuban Commit-
tee for Democracy 89
ALPHABETICAL LIST AND MATERIAL SUBMITTED
Berman, Representative Howard L.:
Testimony 3
Prepared statement 8
A letter from the Secretary of State to Representative Berman, dated
June 7, 1993 5
Du-Breuil, George J.: Testimony 103
Gray, Mary:
Testimony 99
Prepared statement 100
Hakim, Peter:
Testimony 89
Prepared statement 91
A statement of the Inter-American Dialogue's task force on Cuba,
dated Aug. 26, 1994 91
Martin, Kate:
Testimony 15
Prepared statement 17
A letter from Anthony Lake, Assistant to the President, to Audrey
Chapman, program director, American Association of the Advance-
ment of Science, dated Sep. 19, 1994 23
Simon, Hon. Paul: Submitted the prepared statement of Audrey R. Chapman,
director of the Science and Human Rights Program of the American Asso-
ciation for the Advancement of Science 108
Torres, Alicia:
Testimony 92
Prepared statement 94
Turner, Robert F.:
Testimony 24
Prepared statement 27
(III)
IV
Page
APPENDIX
Additional Submissions for the Record
Prepared statements of:
Michael L. Smith, senior research scientist, Center for Marine Conserva-
tion 113
Wayne S. Smith 116
Letters from Audrey Chapman to:
Hon. Claiborne Pell, chair, Senate Foreign Relations Committee, dated
Oct. 14, 1993 118
Dr. Mary Gray, American University, dated Dec. 20, 1993 119
Hon. John Kerry, U.S. Senator from the State of Massachusetts, dated
Apr. 5, 1994 120
Hon. Warren Christopher, Secretary of State, dated Aug. 24, 1994 121
Newspaper articles:
The Washington Post, Travel to Cuba, dated Sep. 4, 1993 122
The Washington Post, End the Ban on Travel to Cuba, dated Sep.
23, 1993 123
Letters from Morton H. Sklar, senior program associate, Science and Human
Rights Program to:
Dr. Frank von Hippel, Assistant Director for National Security, Office
of Science and Technology Policy, dated Nov. 8, 1993 124
Selected AAAS Affiliate Groups, dated Dec. 16, 1993 124
John Shattuck, assistant secretary, Bureau of Human Rights and Hu-
manitarian Affairs, dated Sep. 15, 1993 125
Representative Howard L. Berman, dated Jan. 10, 1994 126
Morton Halperin, Special Assistant to the President, dated Apr. 7, 1994 .. 127
Morton Halperin, Special Assistant to the President, dated Apr. 11,
1994 128
Telefax memorandum from Morton H. Sklar to Dr. John H. Gibbons 129
Letter from the National Academy of Sciences to Steve Pinter, chief of licens-
ing, Office of Foreign Assets Control, dated Apr. 27, 1993 130
Letters to Warren Christopher, Secretary of State from:
Joseph L. Birman and Cyril M. Harris of the New York Academy of
Sciences, Human Rights of Scientists Committee, dated Oct. 5, 1993 131
Prof. Avner Friedman of the Society for Industrial and Applied Mathe-
matics, dated Oct. 13, 1993 131
Linda Ray Pratt of the American Association of University Professors,
dated Sep. 27, 1993 132
Paul H. Plotz and Joel L. Lebowitz of the Committee of Concerned
Scientists, Inc., dated Oct. 5, 1993 132
Letter to Dr. John Gibbons from Paul H. Plotz and Joel L. Lebowitz of
the Committee of Concerned Scientists, Inc., dated Oct. 6, 1993 133
THE CONSTITUTIONAL RIGHT TO
INTERNATIONAL TRAVEL
WEDNESDAY, OCTOBER 5, 1994
U.S. Senate,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:03 p.m., in room
628, Dirksen Senate Office Building, Hon. Paul Simon (chairman
of the subcommittee), presiding.
OPENING STATEMENT OF HON. PAUL SIMON, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Simon. The hearing will come to order.
We are holding a hearing on the whole question of the right of
American citizens to travel. Generally, that has been regarded as
a fifth amendment matter. The court decisions over the years have
varied somewhat. There is a question of how much power the exec-
utive branch has, and we will hear from a distinguished House col-
league who has been a leader in this area.
I think there is not only a fifth amendment factor here, I think
there are two other constitutional amendments that are involved.
One is a first amendment question, and that is free speech. In fact,
if we are to have a good cross-section of speech and ideas and opin-
ions, to restrict travel, whether it is to Cuba or Iran or Iraq or any
other place other than for two reasons I will mention shortly,
would limit our ability to have an insight into what is taking place
in those countries. I think this is a free speech issue.
Second, perhaps the most significant and too frequently noted
amendment to trie Constitution is the ninth amendment. It was
written when James Madison sent out his prospective list of a Bill
of Rights, and Alexander Hamilton said, if you spell out these
rights, then there will be people who will say, these are the only
rights that people have.
So the ninth amendment was added to the Bill of Rights and the
ninth amendment says that, other rights not spelled out here are
reserved to the people. I believe that also applies to travel.
I believe there are only two reasons when the Federal Govern-
ment can restrict the right of travel. One is if there is a genuine
national security concern, and those instances are rare. I don't
think there is a national security factor, for example, at work in
the case of Cuba.
The second is the safety of Americans. The Federal Government
does have the responsibility to try to protect American citizens, and
(1)
if an American citizen were to go into an area of great danger, the
government has the right to protect our safety.
I would like to quote from two distinguished justices, Justice Ar-
thur Goldberg, who practiced law in Illinois for a longtime, and if
I may add, was a partner of the new counsel to the President. Ar-
thur Goldberg wrote in a 1965 opinion and quoted President
Dwight Eisenhower. Here is what Dwight Eisenhower said, quoted
by Justice Goldberg. "Any limitation on the right to travel can only
be tolerated in terms of overriding requirements of our national se-
curity and must be subject to substantive and procedural guaran-
tees. I think Dwight Eisenhower was correct.
Then in a more recent case, Justice William Brennan in a dis-
sent, I regret to say, said, "Just as the Constitution protects both
popular and unpopular speech, it likewise protects both popular
and unpopular travelers, and it is important to remember that this
decision applies to other citizens who may merely disagree with
government foreign policy and express their views."
My belief is that Justice Brennan is correct, but we are here to
see where we should go, what we should do, and I am ready to re-
examine my views.
I would like to insert into the record a statement from Senator
Orrin G. Hatch of Utah, who was unable to be here today.
[The prepared statement of Senator Orrin G. Hatch follows:]
Prepared Statement of Senator Orrin G. Hatch
Mr. Chairman, the "right to travel abroad" is a liberty belonging to all Americans
as a natural right to be free from arbitrary government restraint. That right
preexists the formation of our Constitution and, in Anglo-American law, was per-
naps first codified in Article 42 of the Magna Carta. It was also recognized as an
important precept of the "law of nations" and written about by the great natural
law scholars Hugo Grotius in the 17th Century and Emil de Vattel in the 18th Cen-
tury.
These scholars' teachings on natural law had a profound impact on the Founders
of the American Republic. In American constitutional jurisprudence, it was Justice
Douglas who-first argued in Kent v. Dulles that the right was a constitutional right:
"The right to travel is part of the 'liberty" of which the citizen cannot be deprived
without due process of law under the Fifth Amendment."
Yet the right to travel abroad is not an unbounded right. Thus, in Magna Carta
the right may be curtailed "in time of war, for some short space, [and] for the com-
mon good of the kingdom * * * according to the laws of the land * * *." These na-
tional security and public good considerations have been acknowledged through
American customary practice and by case law as legitimate grounds to restrict un-
fettered travel abroad.
Thus, the Secretary of State as an agent of the President, acting through the au-
thority to deny passports pursuant to statutes and presidential proclamations, has
restricted travel during the War of 1812, the Civil War, the First World War, and
during other wars and national emergencies.
Congress pursuant to both the "Trading with the Enemy Act" and the "Inter-
national Emergency Economic Powers Act" explicitly delegated to the President the
authority to restrict or even prohibit foreign travel during times of war or national
emergencies declared by the President. Moreover, the U.S. Supreme Court, in Zemel
v. Rusk and Haig v. Agee, recognized that the President acting pursuant to statute
could restrict foreign travel, consistent with the Constitution, for national security
or foreign policy reasons.
The lesson of history, therefore, has been that the right to travel abroad must be
carefully balanced against the national interest, the "common good" as termed by
the Magna Carta. It appears that Section 525 of the most recent Foreign Relations
Authorization Act, the 'Free Trade in Ideas Act," amends existing statutory law to
restrict the President's authority to restrain or prohibit travel during periods of na-
tional emergencies. This raises two questions that will be addressed during this
hearing.
One, is it wise? History has demonstrated that the Executive should have the au-
thority to restrict foreign travel, albeit an authority that must be carefully balanced
against the right to travel and other rights, such as First Amendment Free Speech.
Thus, the President may not prohibit travel simply because he disagrees with the
politics or views of an individual. But the President ought to be able to restrict trav-
el if American citizens would be placed in harm's way, possibly taken hostage, or
where travel to an unfriendly anti-American or enemy foreign nation would aid that
nation.
Second, is it constitutional? Does our Constitution delegate to the President inher-
ent or implied authority to restrict foreign travel for the common good as part of
the executive prerogative to conduct foreign affairs? Many of the Founding genera-
tion, including Alexander Hamilton and John Marshall, believed that the Constitu-
tion vested in the President the sole authority to conduct foreign affairs, and surely
an implied power from that constitutional delegation of power is the ability to re-
strict foreign-travel during emergencies or for national security reasons.
In fact, Justice Nelson, sitting as a Circuit judge in the 1860 case of Durand v.
Hollins, held that not only does the President as the executive head of this nation
possess a foreign affairs prerogative, but that the President has a constitutional
duty to protect American lives and property abroad from harm. Although the court
did not reach the travel issue, its holding supports an inherent presidential power
to restrict travel during bona fide emergencies.
Indeed, this Subcommittee's predecessor in 1957 held a hearing on the issuance
of passports, as it related to the right to travel abroad, in which it was widely recog-
nized that the Executive has an inherent and historic power to deny the issuance
of passports for national security reasons.
I want to welcome our esteemed witnesses to what promises to be an enlightening
hearing, particularly in regard to how these issues impact the present policy on re-
stricted travel to Cuba.
Senator Simon. The first person who is going to force me to reex-
amine those views is a distinguished former colleague of mine in
the House who now provides leadership on many issues, including
particularly the whole area of immigration. Howard Berman has
just done a superb job over in the House. Congressman Howard
Berman.
STATEMENT OF THE HON. HOWARD L. BERMAN, A U.S. REP-
RESENTATIVE IN CONGRESS FROM THE STATE OF CALIFOR-
NIA
Representative Berman. Thank you very much, Mr. Chairman. If
anything I say forces you to reconsider your views, it is because I
have said it very badly, because my own thoughts very much follow
what you just announced.
I have a longer statement for the record, which I would like to
have included.
Senator Simon. We will enter it into the record.
Representative Berman. It is obviously apparent from a number
of efforts that I have made over several Congresses to have the
Free Trade in Ideas Act enacted, that I consider the right to travel
and communicate with citizens of other countries among the most
significant issues in our foreign policy.
Let me say at the outset that I strongly believe that the law
should provide the power to government under certain cir-
cumstances to regulate and restrict economic relations with coun-
tries, particularly in times of war. I also believe strongly that the
use of such power can be a very significant instrument of diplo-
macy.
And finally, I believe that the decision on which particular coun-
tries these powers should be used against and of the particular
measures to be employed are, in most cases, most effectively made
as executive decisions within legislative guidelines provided by
Congress.
It is for these reasons that I concur in the Congressional judg-
ment to delegate its constitutional authority over international
commerce to the President in the Trading With the Enemy Act,
(TWEA) and the International Emergency Economic Powers Act,
(IEEPA).
That said, I believe that these economic powers must be exer-
cised in a manner which does not infringe on the constitutional
rights of Americans, or just as important, does not run counter to
other equally-compelling foreign policy interests.
You will hear today erudite arguments about the constitutional
protection which travel and related activities should enjoy. I will,
therefore, not enter into that except to say that I am persuaded
that the right to travel is constitutionally protected and that it is
closely related to the first amendment right of Americans to com-
municate and share ideas with citizens of other nations.
It is to be regretted that the executive branch, through succes-
sive administrations since the early 1980's, has failed to exercise
generally described international economic powers in a manner
which does not infringe on the specific constitutional rights of
Americans. Under those circumstances, I believe that it is incum-
bent on Congress to place explicit limits on the power which it has
delegated to the President, in order to ensure that individual con-
stitutional rights are protected.
I will focus my remarks today on the practical benefits to our na-
tional interest that flow from living by our national principles. Be-
fore I do so, let me just take stock of how far we have been able
to come in vindicating these principles and what obstacles we have
encountered.
On June 7, 1993, the day that the Foreign Affairs Committee on
the House side was to have considered the legislation to signifi-
cantly expand the right to travel, I received a letter from the Sec-
retary of State. I was delighted that the letter endorsed the under-
lying objectives of the Free Trade in Ideas Act, affirmed "the ad-
ministration'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," and noted that "the free flow
of ideas and information is also consistent with the maintenance
and enforcement of economic embargoes" and "can advance, rather
than hinder, the foreign policy goals which embargoes seek to ac-
complish".
The Secretary proposed in that letter that the Department of
State "conduct on an expedited basis an interagency review of our
existing sanctions programs, policies, and legislation to ensure that
they properly reflect our mutual commitment to dissemination of
information and ideas" and concluded that "in return, I ask that
you agree to withdraw" the travel provisions "from the bill", (the
State Department authorization bill), "when it comes before the full
committee." I did so. I ask that a copy of that letter be part of this
record.
Senator Simon. It will be entered into the record.
[The letter from the Secretary of State to Representative Berman
follows:]
The Secretary of State,
Washington, DC, June 7, 1993.
The 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 appro-
priations for fiscal years 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 pro-
motion 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 infor-
mational 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 ad-
vance rather than hinder the foreign policy goals which embargoes seek to accom-
plish.
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-proliferation, 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 re-
view 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.
Representative Berman. When the interagency review had failed
to conclude, 10 months later, there had been no change proposed
by the administration in the regulations governing these matters
and the Senate had acted to express its sentiment in favor of the
Free Trade in Ideas Act, we moved in conference on the State De-
partment authorization bill to reinstate the provisions relating to
freedom of travel.
We devised a compromise with the administration which resulted
in the amendment of IEEPA, the International Emergency Eco-
nomic Powers Act, to provide that as to all future embargoes im-
posed under that law, the authority given to the administration
under that law could not form the basis for restrictions on travel.
I must emphasize this. Under all future embargoes except those
imposed in times of war, the powers delegated to the President by
Congress to restrict international commerce may no longer be used
to restrict travel by Americans. We left untouched the power to re-
strict travel under existing embargoes against Libya and Iraq
under IEEPA and against Cuba and North Korea, which are im-
posed under the authority of the Trading with the Enemy Act.
That compromise was based on a series of assurances by the ad-
ministration that it intended to ease the existing travel restrictions
for particular types of travel. Moreover, we also adopted in the
State Department and USIA authorization bill Senate language ex-
pressing the sense of the Congress that the President should not
restrict travel or other exchanges for informational, educational,
6
cultural, religious, or humanitarian purposes or for purposes of
public performances or exhibitions.
The President signed the State Department and USIA authoriza-
tion bill on April 30, 1994, and I just might add parenthetically
that the decision of the conference committee at that time was
unanimous, including a number of members from the State of Flor-
ida.
I was, therefore, dismayed and disappointed when the adminis-
tration instead imposed new restrictions on travel to Cuba pub-
lished in the Federal Register at the end of August. Those new reg-
ulations, which required individual applications for licenses which
until then had been granted to defined categories of travelers, im-
posed further restrictions on scholars, researchers, and journalists
and thus ran counter to the clear commitments made to Congress
about the intention to expand opportunities for nontourist travel to
Cuba and other countries under economic embargoes.
I am at a loss to understand how an administration which is
committed to the free trade in ideas can impose additional restric-
tions on scholars and journalists.
The new regulations also restricted travel by close relatives. That
issue has not been discussed in the context of the larger debate on
travel because it was longstanding policy to allow such travel
under general licenses and it was inconceivable to me that this
might be restricted. Here, I am talking about the travel by close
relatives, not the remittances coming from relatives to people who
live in Cuba.
Travel by family members represents one of the principle ways
in which ideas and information are carried into and out of Cuba,
and restriction of it appears to be singularly counterproductive to
U.S. interests. Family association is also a fundamental liberty in-
terest and we have, in the past, criticized undemocratic govern-
ments for restricting it. Our latest restriction places us in a com-
promising position at precisely the moment we need to speak with
moral authority in the making of Cuba policy.
The evidence of recent history, marked as it is by the worldwide
ideological triumph of the United States, suggests exactly the oppo-
site approach. Even at the height of the ColcT War, we did not pro-
hibit travel to Eastern Bloc countries. Indeed, we positively encour-
aged the exchange of artistic and literary work in an attempt to
promote the opening of the cultural and political systems of those
countries. Can there be any doubt that the larger the number of
people crossing in both directions, the greater the trade in Bibles
and samizdat?
This is a perfect example of self-interest corresponding with our
deepest principles. In our economic and political life and in our ap-
proach to the marketplace of ideas, we believe in the supreme
value of private effort and in the accomplishment of public pur-
poses through cooperation or debate between the private efforts of
ordinary people. The very best way to promote our values to the
rest of the world is to embody them by having our people speak to
those of other countries.
We also speak with greater moral authority when we embody the
freedoms to which others inspire. Given the importance of intellec-
tual freedom in our way of life and our system of values, how can
we curtail the rights of Americans to communicate and learn from
observation? How can we cut off the flow of ideas to captive people
who are starved of contact with the larger world of ideas and infor-
mation?
In other words, essentially, in addition to the very good and
sound constitutional reasons which you outlined in your opening
comments, it is just a crazy policy for achieving our stated objec-
tives in terms of our foreign policy with Cuba in particular and the
embargoed countries generally.
On this last point, I want to offer concrete evidence to bolster
what is self-evident. I recently met in Washington with an inde-
pendent Cuban intellectual, one who has made the decision to stay
there to promote change. His observations about the nature of
Cuban society confirmed what my staff learned during a fact-find-
ing trip to Cuba last December.
Most significant of all was the fact that dissidents with impec-
cable credentials, those who had suffered imprisonment and ill
treatment, suggested that more contact with Americans and more
travel to Cuba would benefit their efforts to restore freedom with-
out violence.
They offered very practical reasons for this. The more travelers
there are, the harder it is for the security agencies in Cuba to keep
tabs on who meets whom, and the more cover there is for inter-
national human rights activity.
More foreign travelers also bring more outside attention to what
is happening in the country. It is to be noted that Human Rights
Watch, which is really second to none in having denounced the
human rights violations by the Cuban Government, has neverthe-
less strongly endorsed the right to travel to Cuba.
Cuban dissidents whom my staff met did advocate maintaining
an economic embargo as leverage, yet they saw no utility in restric-
tions on travel, which isolate and weaken popular forces more than
the government.
They stressed that the United States is the best potential ally for
the democratic movement in Cuba, if we get involved. They noted
that in the situation of intellectual scarcity, those who cooperated
most with the government were the likeliest to have access to infor-
mation and communication, thus placing a premium on conformity,
whereas the availability of more information and communication
would level the playing field.
I know of no better way to avoid Cuban Government restrictions
on such contacts than to trade on that government's dilemmas. It
would like to restrict such contacts, yet wants the income that for-
eign travelers will bring. While it is true that there will be some
foreign currency that will flow to the Cuban Government as a re-
sult, much will find its way into the expanding independent sector,
including those disposed to challenge the government.
My Cuban interlocutor runs a small nongovernmental organiza-
tion funded by Western European foundations. His organization
and others like it are engaged in promoting independent cultural
and intellectual activity. Again, my staffs findings suggest that
these sectors consider U.S. artists and intellectuals their natural
partners and that their efforts would benefit from more voluminous
and less regulated contact.
8
Moreover, I believe that the small amounts of currency spent by
travelers are far less significant than the political advantages to be
gained by us. I recognize that there remains a concern about purely
recreational tourism offering no opportunity for serious learning or
communication, what is sometimes described as tourist apartheid.
That is the real potential moneymaker for the Cuban Government.
I believe that the nature of that sector of the travel industry would
allow for restrictions in the form of prohibitions on package and
group sales of such tourism. That would allow our concern about
denying hard currency to the Cuban Government to be vindicated
without burdening the constitutional liberties of Americans.
The end of the Cold War offers a lesson in the key to ideological
success, which includes citizen-to-citizen exchanges. It also offers a
new opportunity. We are finally free to live by our true faith. If
ever fear was a justification for ignoring our liberties, it is no
longer. We are infinitely stronger than any of the countries we
have embargoed. At our best, we are confident in our national val-
ues, fear no outside ideas, and stand ready to vindicate our values
and debate.
We are right to be confident because we possess in our Constitu-
tion a marvelous instrument of liberty. When we restrict freedom
of movement and communication, we act more like our antagonists,
thus eroding our moral authority and dissipating our effectiveness.
Thank you for letting me testify, Mr. Chairman.
[The prepared statement of Representative Howard L. Berman
follows:]
Prepared Statement of Representative Howard L. Berman
Thank you, Senator Simon, for holding these hearings. As is apparent from my
repeated efforts over several Congresses to have The Free Trade in Ideas Act en-
acted, I consider the right to travel and communicate with citizens of other coun-
tries among the most significant issues in our foreign policy.
Let me say at the outset that I strongly believe that the law should provide the
power to the government, under certain circumstances, to regulate and restrict eco-
nomic relations with countries, particularly in times of war. I also believe strongly
that the use of such power can be a very significant instrument of diplomacy. Fi-
nally, I believe that the decision on which particular countries these powers should
be used against, and of the particular measures to be employed, are in most cases
most effectively made as executive decisions within legislative guidelines provided
by Congress. It is for these reasons that I concur in the Congressional judgement
to delegate its Constitutional authority over international commerce to the Presi-
dent in the Trading With the Enemy Act and the International Emergency Eco-
nomic Powers Act.
That said, I believe that these economic powers must be exercised in a manner
which does not infringe on the constitutional rights of Americans or, as important,
does not run counter to other equally compelling foreign policy interests. You will
hear today erudite arguments about the constitutional protection which travel and
related activity should enjoy. I will therefore not enter into that, except to say that
I am persuaded that the right to travel is constitutionally protected, and that it is
closely related to the first amendment right of Americans to communicate and share
ideas with citizens of other nations.
It is to be regretted that the executive branch, through successive administrations
since the early 1980s, has failed to exercise generally described international eco-
nomic powers in a manner which does not infringe on the specific constitutional
rights of Americans. Under those circumstances, I believe that it is incumbent on
Congress to place explicit limits on the power which it has delegated to the Presi-
dent, to ensure that individual constitutional rights are protected.
I will concentrate my remarks today on the practical benefits to our national in-
terests that flow from living by our national principles. Before I do so, let me take
9
stock of how far we have been able to come in vindicating these principles, and what
obstacles we have encountered.
Several Congresses ago, I introduced the Free Trade in Ideas Act, to vindicate the
right of Americans to travel freely to other countries, and to communicate with the
citizens of those countries, as guaranteed by the Helsinki Accords. One portion of
that became law as an amendment (commonly known as the "Berman Amendment")
to the Omnibus Trade and Competitiveness Act of 1988. As a result, the import or
export of publications, recordings, films and other informational materials was ex-
plicitly exempted from direct or indirect regulation or prohibition under the Trading
With the Enemy Act and the International Emergency Economic Powers Act. How-
ever, prohibitions on most travel to many embargoed countries continued to be a
part of the regulations of the Treasury Department's Office of Foreign Assets Con-
trol (OFAC).
Moreover, OFAC continued to interpret the Berman amendment in a manner
which limited its natural meaning. Thus, despite the language forbidding "direct or
indirect" regulation or prohibition, OFAC continued to take the position that it had
discretion to grant or deny a license for travel by persons engaged in protected ex-
port or import of informational materials. This in effect amounted to a restriction
in some cases of activities which Congress had explicitly exempted from regulation
or prohibition. OFAC also interpreted the scope or the amendment to deny its pro-
tection to electronically transmitted information, creating the anomalous situation
that the identical information could be prohibited or permitted depending solely on
the means of its transmission.
In order to deal with these problems, and to address the long-standing problem
of restrictions on foreign travel by American citizens, I have twice reintroduced om-
nibus Free Trade in Ideas legislation, which also attempts to protect establishment
of news bureaus, telecommunications, and private educational and cultural ex-
changes.
I recognize the legitimacy of regulating, and even prohibiting, communications
which have genuine national security implications. There can be no doubt about my
efforts over the years to prevent nuclear proliferation and terrorism. I do not believe
that the freedom of intellectual exchange should include scientific collaboration
which would undermine our non-proliferation or anti-terrorism efforts. For precisely
this reason, the Berman amendment provided that its protection did not apply to
activities described in the Export Administration Act or the espionage provisions of
the criminal code.
What we are talking about here is not terrorism, espionage or proliferation. The
absurdity of a prohibitive policy toward international communication is suggested
by the following examples. The highly respected Soros Foundation, a pioneer of de-
mocracy and human rights programs in Eastern and Central Europe, found its ca-
pacity to support democratic forces in Serbia inhibited by restrictions on the export
of equipment for use by opposition media. In other cases, American scholars, profes-
sionals and artists have been denied the opportunity to have personal contact and
exchanges with their counterparts abroad. For example, the Guggenheim Founda-
tion was forced to terminate its support for the international work of one of the pre-
eminent ethno-musicologists in his field. In other cases, foreign academics and art-
ists have not been able to come to the United States, thus depriving their prospec-
tive American interlocutors and audiences of the opportunity to hear them, or ex-
change ideas with them.
Some of these cases raise issues which transcend the scope of the laws relating
to international economic embargoes. The cases of foreign academics and artists de-
nied entry to the United States, in violation of the first amendment right of Ameri-
cans to receive information, suggest that the laws and policy relating to issuance
of visas require a thorough overhaul. And in fairness to OFAC I must note that
those visa policy problems are the sole responsibility of the Department of State.
While I acknowledge that the Department has made some progress in this area, its
decisions still continue to be marked by a high degree of ideological bias. Moreover,
even when the Department has reversed unfavorable decisions in response to pro-
tests in particular cases, its niggardly policy has seriously hampered effective ad-
vance planning of such dialogue and exchanges, of conferences or concert tours.
I have dwelt at some length on issues other than the narrow question of Ameri-
cans' ability to travel to embargoed countries because I believe that the question of
travel is part of a larger issue, that issue being the right to communicate and the
benefits which accrue from that. It is for this reason that in successive pieces of leg-
islation, I have sought to address several of these related issues together.
Early in this Congress, the provisions of H.R. 1579, the Free Trade in Ideas Act,
were included in their entirety in the State Department and US Information Agency
Authorization bill for Fiscal Years 1994 and 1995 as I introduced it to the Inter-
10
national Operations Subcommittee. These provisions included amendments to clarify
the scope of the original Berman amendment, and provisions to ensure that the
statutory embargo authorities of the President were not used to restrict travel in
any fashion except, in a very significant concession to those concerned with the
maintenance of the embargo on Cuba, for purely recreational tourism to Cuba. The
bill reached the Foreign Affairs Committee in modified form, without the general
protection for all travel, but with significant provisions protecting travel for edu-
cational, scientific and cultural purposes.
The deletion of the general protection for travel from the Authorization bill caused
me concern. While it is valuable to have opportunities for travel for specified pur-
poses, if the government retains the power to define which travel is or is not edu-
cational it could use its power to restrict all other forms of travel in a manner which
could disfavor unpopular points of view. Allowing the government the power to ex-
press its ideological biases, or to ignore powerless or unpopular groups or individ-
uals, is highly dangerous to the principle of ideological neutrality which the spirit
of the first amendment requires.
Nor was this simply an abstract or theoretical concern. Before the recent changes
made by the Clinton Administration, further restricting the categories of people who
may travel to Cuba, OFAC regulations had provided a "general license", that is per-
mitted travel without prior permission, for travel by persons who were professional
researchers on Cuban issues. Nevertheless, OFAC in the past had employed threats
of enforcement action not authorized by law to intimidate, and thus abort, a delega-
tion led by an academic expert on Cuban broadcasting, which was to study an issue
of significant foreign policy interest to the United States. Significantly, the delega-
tion was to have included a member of the House of Representatives.
Despite my concern that the failure to protect all travel would still result in
abuses, I considered the limited liberalization of educational travel that the Foreign
Affairs Committee had before it in June 1993, in the State Department and USIA
Authorization bill, a significant advance. On June 7, 1993, the day that the Commit-
tee was to have considered the legislation, I received a letter from the Secretary of
State which "endorse(d) the underlying objectives of the Free Trade in Ideas Act";
"affirm(ed) 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"; and noted that "the free flow of ideas and information is also
consistent with the maintenance and enforcement of economic embargoes" and "can
advance rather than hinder the foreign policy goals which embargoes seek to accom-
plish." The Secretary proposed that the Department of State "conduct, on an expe-
dited basis, an inter-agency review of our existing sanctions programs, policies and
legislation to ensure they properly reflect our mutual commitment to the dissemina-
tion of information and ideas , and concluded that "In return, I ask that you agree
to withdraw this Title (The Free Trade in Ideas Act) from the bill when it comes
before the full committee." I did so. (I ask that a copy of that letter be made a part
of the record.)
Ten months later, despite assertions by the Administration that they intended to
broaden the permitted bases for travel, the inter-agency review had failed to con-
clude, and there had been no change proposed by the Administration in the regula-
tions governing these matters. Indeed several examples of continuing problems had
arisen. Meanwhile, the Senate had acted to express its sentiment in favor of the free
trade in ideas on the State Department and USIA Authorization bill. Accordingly,
we moved in conference to reinstate the provisions relating to freedom to travel, and
export and import information.
As we moved forward with this process, we engaged in a detailed negotiation with
the Administration, as a result of which we reached agreement on changes to the
informational materials provisions which the Administration could accept, and were
assured that if we would agree to drop the insistence on statutory provisions on the
right to travel, the Administration would move expeditiously to broaden the per-
mitted bases for travel.
We devised a compromise on the travel issue which resulted in the amendment
of the International Emergency Economic Powers Act (IEEPA) to provide that, as
to all future embargoes imposed under it, its authority could not form the basis for
restrictions on travel. I must emphasize this: under all future embargoes, except
those imposed in times of war, the powers delegated to the President by Congress
to restrict international commerce may no longer be used to restrict travel by Amer-
icans. We left untouched the power to restrict travel under existing embargoes,
against Libya and Iraa under IEEPA, and against Cuba and North Korea which are
imposed under the authority of the Trading With the Enemy Act (TWEA). The latter
points up an anomaly worthy of note. The embargoes against Cuba and North Korea
11
are, under a grandfather clause, based on the authority of a statute otherwise re-
stricted to times of war. .
I would emphasize that the compromise was itself based on a series of assurances
by the Administration that it intended to ease the existing travel restrictions for
particular types of travel. I was therefore dismayed and disappointed when it in-
stead imposed new restrictions on travel to Cuba, published in the Federal Register
on August 30, 1994. Those new regulations, which required individual applications
for licenses which till then had been granted to defined categories of travelers, im-
posed further restrictions on scholars, researchers and journalists, and thus ran
counter to the clear commitments made to Congress about the intention to expand
opportunities for non-tourist travel to Cuba and other countries under economic em-
bargoes. I am at a loss to understand how an Administration which is committed
to the free trade in ideas can impose additional restrictions on scholars and journal-
ists.
The new regulations also restricted travel by close relatives. That issue had not
been discussed in the context of the larger debate on travel because it was long
standing policy to allow such travel under general licenses, and it was inconceivable
to me that this might be restricted. Travel by family members represents one of the
principal ways in which ideas and information are carried into and out of Cuba, and
restriction of it appears to be singularly counter-productive to U.S. interests. Family
association is also a fundamental liberty interest, and we have in the past criticized
undemocratic governments for restricting it. Our latest restriction places us in a
compromising position at precisely the moment we need to speak with moral author-
ity in the making of Cuba policy.
The Administration sought to justify these restrictions on the grounds that requir-
ing individual license applications would not burden legitimate travel because
OFAC would promptly approve all bona fide applications. However, the record sug-
gests otherwise. Organizations seeking licenses for research travel have had dif-
ficulty communicating with OFAC, sometimes experiencing delays as long as five
days in even reaching the office by telephone. OFAC has indicated to more than one
license applicant that it is overwhelmed by the sheer volume of license applications,
that it is giving priority to applications for licenses for family travel, that it does
not have sufficient qualified staff to meet that need, and that it cannot guarantee
that research and academic licenses, or licenses for statutorily permitted trade in
informational materials, will be processed at all promptly.
This is, of course, a predictable result of requiring individual applications for li-
censes in cases which hitherto have been governed by general licenses for defined
purposes. In any case, the practical result is that the new regulations will seriously
inhibit precisely the kinds of contact which we ought to be encouraging between the
peoples of the United States and Cuba. ....
The evidence of recent history, marked as it is by the worldwide ideological tri-
umph of the United States, suggests exactly the opposite approach. Even at the
height of the Cold War, we did not prohibit travel to Eastern Bloc countries. Indeed,
we positively encouraged the exchange of artistic and literary work in an attempt
to promote the opening of the cultural and political systems of those countries. Can
there be any doubt that the larger the number of people crossing in both directions,
the greater the trade in bibles and samizdat?
This is a perfect example of self-interest corresponding with our deepest prin-
ciples. In our economic and political life, and in our approach to the "marketplace
of ideas", we believe in the supreme value of private effort, and in the accomplish-
ment of public purposes through cooperation or debate between the private efforts
of ordinary people. The very best way to promote our values to the rest of the world
is to embody them, by having our people speak to those of other countries.
We also speak with greater moral authority when we embody the freedoms to
which others aspire. Given the importance of intellectual freedom in our way of life
and our system of values, how can we curtail the rights of Americans to commu-
nicate and learn from observation? How can we cut off the flow of ideas to captive
peoples who are starved of contact with the larger world of ideas and information.
On this last point, I can offer concrete evidence to bolster what is self-evident. I
recently met in Washington with an independent Cuban intellectual, one who has
made the decision to stay there to promote change. His observations about the na-
ture of Cuban society confirmed what my staff learned during a fact-finding trip to
Cuba last December. Most significant of all was the fact that dissidents with impec-
cable credentials, those who had suffered imprisonment and ill-treatment, suggested
that more contact with Americans and more travel to Cuba would benefit their ef-
forts to restore freedom without violence. They offered very practical reasons for
this. The more travelers there are, the harder it is for the security agencies to keep
tabs on who meets whom, and the more cover there is for international human
12
rights activity. More foreign travelers also bring more outside attention to what is
happening in the country. It is to be noted that Human Rights Watch, which is sec-
ond to none in having denounced the human rights violations by the Cuban govern-
ment, has nevertheless strongly endorsed the right to travel to Cuba. Cuban dis-
sidents whom my staff met with did advocate maintaining the economic embargo
as leverage. Yet they saw no utility in restrictions on travel which isolate and weak-
en popular forces more than the government. They stressed that the United States
is the best potential ally for the democratic movement in Cuba, if we get involved.
They noted that, in a situation of intellectual scarcity those who cooperated most
with the government were the likeliest to have access to information and commu-
nication, thus placing a premium on conformity, whereas the availability of more
information and communication would level the playing field. I know of no better
way to avoid Cuban government restrictions on such contacts than to trade on that
government's dilemmas. It would like to restrict such contact, yet wants the income
that foreign travelers will bring. While it is true that there will be some foreign cur-
rency which will flow to the Cuban government as a result, much will find its way
into the expanding independent sector, including those disposed to challenge the
government.
My Cuban interlocutor runs a small non-governmental organization funded by
West European foundations. His organization and others like it are engaged in pro-
moting independent cultural and intellectual activity. Again, my staffs findings sug-
gest that these sectors consider U.S. artists and intellectuals their natural partners,
and that their efforts would benefit from more voluminous and less regulated con-
tact.
Moreover, I believe that the small amounts of currency spent by travelers are far
less significant than the political advantages to be gained by us. I recognize that
there remains a concern about purely recreational tourism offering no opportunity
for serious learning or communication, what is often described as "tourist apart-
heid". That is the real potential money-maker for the Cuban government. I believe
that the nature of that sector of the travel industry would allow for restrictions in
the form of prohibitions on package and group sales of such tourism. That would
allow our concern about denying hard currency to the Cuban government to be vin-
dicated without burdening the Constitutional liberties of Americans.
The end of the Cold War offers a lesson in the key to ideological success, which
includes citizen to citizen exchanges. It also offers a new opportunity. We are finally
free to live by our true faith. If ever fear was a justification for ignoring our lib-
erties, it is so no longer. We are infinitely stronger than any of the countries we
have embargoed. At our best we are confident in our national values, fear no outside
ideas, and stand ready to vindicate our values in debate. We are right to be con-
fident, because we possess in our Constitution a marvelous instrument of liberty.
When we restrict freedom of movement and communication, we act more like our
antagonists, thus eroding our moral authority and dissipating our effectiveness.
Senator SlMON. I thank you for an excellent statement.
I find only one minor area where I might differ with you. I would
even be opposed to restricting package and group sales to visit
places.
But overall, your statement is absolutely on target and you are
correct when you say it wasn't too long ago we were criticizing the
Soviets because of their restrictions on their citizens to travel.
Let us take three extreme examples, Castro in Cuba, Saddam
Hussein in Iraq, and Gaddafi in Libya. Are they more threatened
by — and you by implication answered this, but I think it is impor-
tant to get it on the record real clearly. Are they more threatened
by our present policy or having 1,000 Americans visit Cuba or
Baghdad or Tripoli?
Representative Berman. I certainly feel that the latter is more
threatening to them. I think those Americans become the basis for
undermining the controls that they seek to impose on their entire
societies.
Senator SlMON. I concur completely. As a House member, I re-
member visiting both Libya and Baghdad. They are both very grim.
13
I remember how they got shook up by one lonely House member
going over and visiting there. And I had one staff person with me.
I also remember the Soviet Union, in the old days. If you recall,
when you were in a hotel in Moscow they assigned you a table and
you didn't have a choice of where you were going to eat or any-
thing. I can remember we would have our discussions and they just
gave us the food. You didn't have any choice and a menu or any-
thing. The waiter, whom we assumed knew no English, would come
and wait on us. Then we went to Kiev in the Ukraine and lo and
behold, the same waiter showed up to serve our table there in Kiev.
They get obsessed with just a handful of people. I think one of
the reasons you have had as much progress as you have had in
China, and the reason for Tiananmen Square, is all the exchange
that we have had, Chinese students over here, Americans visiting
China. I think it helps to open the process.
Part of your statement interested me, because I asked both the
State Department and the Justice Department to come and testify
today. Both declined to testify. I am going to keep the record open
for a short time in case they want to enter a statement in the
record.
But I think that Congressman Berman and Paul Simon of the
Senate, we ought to be continuing to push both the State Depart-
ment and the Justice Department and telling them we think that
the right to travel is a fundamental liberty.
Representative Berman. I fully intend to. You were one of the
most outspoken advocates of economic sanctions against South Af-
rica back in the early- and mid-1980's, but neither you nor any one
of the other proponents of sanctions ever suggested at that point
that part of the sanctions should be to keep Americans from going
to South Africa to be able to meet with antiapartheid groups, to be
able to investigate human rights conditions.
Take Nicaragua, even, where we had sanctions against the San-
danista government. Even there, we didn't impose any sanctions on
the right of Americans to travel down there, and it became a tre-
mendous source of information about what really was happening,
in some cases working to the disadvantage of the government that
we were seeking to pressure.
You mentioned in your opening statement about the appropriate
places where you might impose some restrictions on the right to
travel. The Passport Act very specifically speaks to that, and it
says at a time of war or in a situation where the safety of Ameri-
cans is in danger. I can understand at the height of the crisis in
Lebanon, where every American was getting kidnaped and held
hostage, that we had to take a very firm position discouraging trav-
el there, both for the safety of those people and because it had a
very heavy impact on our foreign policy.
But those Passport Act things are related to conditions like pro-
tection of the safety, epidemics and health, a state of war, tailored
situations nothing like what we are talking about with respect to
these countries.
Senator Simon. Absolutely not. Now we are talking about politi-
cal convenience rather than anything else.
You mentioned that you received a letter from the State Depart-
ment saying they were going to review their policies. Did they indi-
14
cate how long a time they were going to give you, when they were
going to review?
Representative Berman. We have two different reviews. We have
the review that started in 1993, which caused the Secretary to
write a letter supporting the principles behind the Free Trade in
Ideas Act, and that review, I think, was sort of done but not com-
pleted, if you know what I mean.
Then we acted again when that bill went to conference commit-
tee in April of 1994, and in the discussions there they suggested
passing the sense of Congress resolution and that that would give
the strength — there is a struggle inside the administration and
there are forces within the administration who want to end this.
They thought, with Congress speaking, the Congress that some
might fear would bash them if they acted unilaterally, had now
spoken about opening up humanitarian, educational, cultural ex-
changes, people-to-people programs, and that they would respond
quickly.
Nothing much happened, and then, of course, we had the crisis
with the refugees from Cuba and all of a sudden, one of the sanc-
tions began to tighten up and to go from the general license to the
specific license, where you have to specifically get approval of the
purpose of your specific trip. It is sort of a prior restraint kind of
a formulation; compared to a general license, which establishes the
guidelines, and if you violate them, you are subject to criminal
prosecution.
So things have actually become worse as a result of what has
happened rather than the opening up that we had expected.
Senator Simon. Is it inaccurate to summarize your testimony as
saying, first of all, the restriction on the right to travel is a restric-
tion on Americans' abilities to get information about what is hap-
pening in other countries, and second, from a very practical inter-
national political point of view, the restriction on travel is, in fact,
a benefit to dictators in countries where they don't want a free flow
of ideas?
Representative Berman. I just can't help but assume it is not to-
tally coincidental that where travel was not restricted, totalitarian
regimes toppled. Where travel was restricted, we still face totali-
tarian regimes. I don't want to make too much of that, but it is out
there to at least think about.
Senator Simon. Absolutely. We thank you very, very much for
your testimony, and more than that, for your leadership. You have
been out in the forefront on this issue. While I have been sympa-
thetic, I haven't done that much, I have to confess. You have been
out there working, and I really appreciate it. Thank you very, very
much.
Representative Berman. Thank you, Mr. Chairman. That is very
nice.
Senator Simon. My staff just reminded me, I am going to have
to recess for 15 minutes to run down to appear before the Armed
Services Committee just very briefly. We will recess for 15 minutes
and I will be back, I hope even before 15 minutes. Thank you.
[Recess.]
Senator Simon. The hearing will be resumed. My apologies. We
are at the end of a session and there is a certain amount of chaos
15
at the end of the session. In addition to testifying before the Armed
Services Committee briefly, I had to try and salvage some legisla-
tion that is wandering through.
For the remainder of the witnesses, let me just remind everyone
we are going to follow the 5-minute rule. We will enter your full
statements in the record, but because of the time constraints, we
are going to have to follow the 5-minute role and try and devote
sometime to discussion of these issues.
Our first panel is Kate Martin, director of the Center for Na-
tional Security Studies of the American Civil Liberties Union and
Robert Turner, the Charles E. Stockton Professor of International
Law at the U.S. Naval War College.
We are very pleased to have both of you here and look forward
to your testimony.
Ms. Martin?
PANEL CONSISTING OF KATE MARTIN, DIRECTOR, CENTER
FOR NATIONAL SECURITY STUDIES, AMERICAN CD7IL LIB-
ERTIES UNION; AND ROBERT TURNER, CHARLES E. STOCK-
TON PROFESSOR OF INTERNATIONAL LAW, U.S. NAVAL WAR
COLLEGE
STATEMENT OF KATE MARTIN
Ms. Martin. Thank you, Senator Simon.
We appreciate the opportunity to appear to testify today. I must
say that we fundamentally agree with all of your remarks and Con-
gressman Berman's remarks today. I might just expand a little bit
on the constitutional right to travel and what I think the Congress
should do about that.
I don't believe there can be any serious dispute today that there
is a constitutional right to travel, that it is not only a part of basic
liberty referred to in the Declaration of Independence, guaranteed
by the fifth amendment, and, I would submit, also part of the ninth
amendment, and that it is also an essential aspect of first amend-
ment freedoms.
Each of the three branches of government, which, of course, have
an independent obligation to interpret and abide by the Constitu-
tion, appears to agree with this conclusion. The Congress, most re-
cently in the State Department authorization bill, explicitly said
that there was a constitutional right to travel, and, in fact, acted
to protect that right in all future economic embargoes.
In 1978, the Congress also acted to protect that right by amend-
ing the Passport Act to prohibit area restrictions on the use of
passports except in places where there are armed hostilities or the
American travelers face physical dangers. We believe that that is
the correct standard here for the President's ability to restrict the
rights of Americans to travel abroad. He already has that authority
under the Passport Act and we believe that that is the only author-
ity that he should have, and that that covers the national security
problems.
The executive branch itself, in a recent report issued by the State
Department about U.S. compliance with the International Cov-
enant on Civil and Political Rights, states unequivocally that there
is a constitutional right to travel internationally.
16
The Supreme Court has, in several cases, discussed the constitu-
tional right. I would like to just read very briefly what I think is
one of the most eloquent descriptions of how that right implicates
first amendment freedoms. Justice Douglas, quoting a constitu-
tional scholar in the case of Kent v. Dulles, explains, "Travel
abroad helps Americans 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 en-
riched by seeing how foreigners are trying to solve similar prob-
lems. In many different ways, direct contact with other countries
contributes to sounder decisions at home."
That is, of course, the essence of what the first amendment is
about, participation in public debate on public policy issues.
While it is true that there are several Supreme Court decisions
upholding restrictions on the right to travel, usually by narrow
margins, in each of those cases, the restrictions were upheld only
because the Court found that they were justified by the weightiest
considerations of national security. Each one of those cases was de-
cided during the Cold War, when the very existence of the United
States was deemed threatened by the Soviet Union and inter-
national communism, and the Government argued that the travel
restrictions at stake in those cases were essential to the national
security, that is, the defense and the continuation of the existence
of the United States.
More specifically, in the 1982 case of Regan v. Wald, where the
Cuban travel ban was upheld, the Court found that the specific na-
tional security justifications cited by the government at the time
justified the travel ban. Those justifications were that Cuba was a
satellite of the Soviet Union, that it had troops in Angola, and that
it was supporting insurrection in the Western Hemisphere. None of
those considerations, of course, are true any longer.
In fact, the current justification for the travel restrictions, we
submit, can in no way meet the required test for infringing on this
constitutional right. The current reason is that restricting these
rights promotes human rights and democracy in Cuba, the objec-
tive of our current foreign policy. But to say that is to demonstrate
that such an objective, however laudable in itself, cannot possibly
justify restricting human rights and democracy in the United
States.
Senator Simon. If you could summarize the balance of your re-
marks.
Ms. Martin. We would urge the Congress at this moment to pass
a statute outlining restrictions on travel under the economic em-
bargo laws. For the reasons that Congressman Berman summa-
rized, we can no longer depend on the administration's stated com-
mitment to the principle of free trade and ideas.
I would simply like to point out that since August 26, when the
administration changed the travel restrictions, the travel restric-
tions on going to Cuba are now worse than they were ever during
the Cold War under Presidents Reagan and Bush. Family visits
were not banned and it was never as difficult for journalists, pro-
17
fessional researchers, students, scientists, and others to travel to
Cuba as it is today.
We think that it is clear that Congressional action is now nec-
essary to protect all travel.
[The prepared statement of Kate Martin follows:]
Prepared Statement of Kate Martin
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 posi-
tion on substantive matters of U.S. foreign policy, including the Cuban embargo, ex-
cept 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 the 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 in-
quiries and censorship. Moreover, the administration's most recent actions tighten-
ing the Cuban travel restrictions also violate its commitments made to Congress
earlier this year.
The 1982 Supreme Court 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 justifying restricting the human rights of Americans.
The events of the last fifteen months demonstrate that protection of this constitu-
tional 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 lib-
erty 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 inter-
nationally—is constitutionally protected," although it violates this principle in ac-
tion. 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.
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 ac-
cess to information. To participate in debate about foreign policy questions, they
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).
18
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 govern-
ment 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 his-
tory 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 lecturers on public affairs need firsthand in-
formation. Scientists and scholars gain greatly from consultations with col-
leagues in other countries. Students equip themselves for more fruitful ca-
reers 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 crossea 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 en-
riched 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 trav-
el, 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 re-
strict 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 essen-
tial to the building of democracy.
It has become increasingly clear that banning travel by Americans to foreign dic-
tatorships 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 ben-
efits 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. Inparticular, Congressman Howard Ber-
man 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
19
leaving the country. In 1918 and again in 1941, the President issued such proclama-
tions. 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 §215.
Only in 1978, when Congress otherwise restricted the President's authority, did it
Eermit him to always require a passport for entering or leaving the country. 8
r.S.C. § 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 Sec-
retary 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 Com-
munist 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 pass-
port controls, the Congress became increasingly active in protecting that right
against executive limitation. In 1978, Congress rejected the result in Zemel and ex-
plicitly 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 travelers." 22 U.S.C. §21 la. 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 re-
strict its invocation by the President to times of war, although it grandfathered ex-
isting restrictions. When Congress also amended the Passport Act in 1978 to pro-
hibit the Executive from imposing geographic restrictions on the use of U.S. pass-
ports 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 byjournalists,
professional researchers, and persons visiting close relatives, or where Cuba hosted
the travel. Americans seeking to travel to Cuba brought suit challenging the reim-
position 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 Presi-
dent'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
20
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 im-
position of geographic restrictions on the right to travel. It upheld the travel restric-
tions, 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 alliea 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 objec-
tives 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 sup-
port 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 restric-
tions. 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 informa-
tion 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 infor-
mation and ideas." 4 Secretary Christopher also affirmed "the Administration's com-
mitment 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 consider-
ation of the bill. .
When the Executive Branch review was not finished by the spring of 1994, Con-
gress enacted the 1994 Free Trade in Ideas Act as part of the State Department
Authorization Act. In passing this bill, Congress explicitly recognized that constitu-
tional 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 (in-
cluding 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 pro-
tection for future embargoes, although it does not explicitly apply to embargoes im-
posed by the United Nations and implemented pursuant to the United Nations Par-
ticipation 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 Con-
gress did not pass binding legislation governing travel under current embargoes. It
did, however, pass a non-binding Sense of the Congress resolution that "the Presi-
dent should not restrict travel or exchanges for informational, educational, religious,
cultural, or humanitarian purposes or For public performances or exhibitions, be-
tween the United States and any other country." The conference report accompany-
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, Kent v. Dulles, 357 U.S.
at 129.
8 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 inci-
dent if the Cuban government attacked or took Americans hostage. _
* Letter dated June 7, 1993 from Secretary of State Christopher to Howard Berman, Chair-
man of the Subcommittee on International Operations ("Christopher Letter "). [A copy of this
letter is attached to this testimony.!
21
ing 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
Rurposes, and removal of currency restrictions for such activities, in all existing and
lture embargoes." H. Rept. 103-482, at 239. B
Finally, the 1994 Act amends the TWEA and the IEEPA to correct overly narrow
Treasury Department interpretations of 1988 free trade in ideas legislation which
prohibited restrictions on the import or export of information and informational ma-
terials.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 of Haiti exempted informa-
tion 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 main-
tenance 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 meas-
ure unchanged. In June 1993, in response to the Cuban Democracy Act, it was
slightly eased. However, six weeks ago, on August 26, 1994, it was tightened. Cur-
rent 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 with-
in 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 per-
mission to go for educational purposes, to travel on behalf of human rights organiza-
tions, or for purposes of importing informational materials, or for public perform-
ances 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 as-
serted 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. gov-
ernment 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 docu-
mentary film-makers: the general license for journalists is now restricted to
6 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 com-
plete 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.
22
those "regularly employed in that capacity by a news reporting organization"
when the regulations had included a general license for "persons who are travel-
ing for the purpose of gathering news, making news or documentary films, 31
C.F.R. G6§ 515.560 (a)(l)(ii).
• The new regulations require professional researchers to individually apply for
permission to go, when they were previously free to travel under a general li-
cense.
• The new regulations no longer permit travel "for purposes of public perform-
ances, 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 re-
quests or that the Treasury Department will cease arbitrarily denying such li-
censes 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 in-
formation," that commitment evidently extends only to persons who can dem-
onstrate "genuine educational or research needs" to the satisfaction of the Treasury
Department. 7 Although Lake also announced that "travel for educational orresearch
purposes will continue to be permitted under the same standards as before" in prac-
tice 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 gen-
eral license for professional researchers have been forced to submit extensive infor-
mation about themselves and their scholarly pursuits. They needed a lawyer to ob-
tain permission. Dan Walsh of Liberation Graphics, an importer of Cuban political
Bosters, has been unable to get his specific license renewed, even though Treasury
lepartment 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 regula-
tions and no written guidance from the Treasury Department. For example, while
the regulations state that only persons "regularly employed * * * by a news report-
ing organization," travel under the general license, Treasury has informed some peo-
ple 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 ex-
tensive discussions with government officials, experts on Cuban affairs, and ordi-
nary 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 nas 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 law-
suit is now pending and the group is at this moment in Cuba on a third trip.
6 The new regulations also further restrict specific licenses for "activities of recognized human
rights organizations" to instances "investigating human rights violations."
° Letter from Anthony Lake, National Security Advisor, to Audrey Chapman, American Asso-
ciation for the Advancement of Science, September 19, 1994, copy attached.
23
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 regu-
lations. Indeed, as far as we can determine, the government threatened with pros-
ecution 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 con-
siders 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. § 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 censor-
ship." 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 jus-
tify the Cuban travel ban in 1982, apply today. Recognizing these changed cir-
cumstances, 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 sup-
port 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.
The White House,
Washington, DC, September 19, 1994.
Mrs. Audrey Chapman,
Program Director, American Association
of the Advancement of Science,
Washington, DC.
Dear Ms. Chapman: Thank you for your letter regarding United States policy to-
ward Cuba. The decisions announced by the President on August 20, 1994, and sub-
sequently implemented by the Department of the Treasury, are consistent with our
long-standing goal of seeking a peaceful transition to democracy in Cuba. The care-
ful 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 ex-
change 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.
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. ")■
24
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,
Assistant to the President,
for National Security Affairs.
Senator Simon. Thank you very, very much.
I have just been going through your statement as you testified.
I appreciate an excellent statement here.
Professor Turner?
STATEMENT OF ROBERT F. TURNER
Mr. Turner. Mr. Chairman, it is a great pleasure to be here with
you this afternoon to discuss these important issues. Before I
begin, I would like to just stress that I am here in an individual
capacity and not representing the Government or the Naval War
College or the University of Virginia.
I have provided a statement of some 18,000 words to the commit-
tee on this issue, tracing the history of travel restrictions and pass-
ports back to pre-Biblical times, and I am not going to even try to
summarize that here. It will be in the record, I understand.
Let me just make a couple of observations of a legal nature and
then make a policy observation or two.
First of all, it was not until 1958, in the case of Kent v. Dulles,
that a bare majority of the Warren Court concluded there was a
constitutional right to travel abroad. Upon reviewing this case, it
is very clear that at least some of the historical analysis is seri-
ously flawed. The Court misrepresented both the Magna Carta and
Blackstone's commentaries, for examples, as precedents, and the
case has clearly been substantially narrowed by the Supreme
Court.
The current state of judicial interpretation can be summarized
briefly as follows. Across-the-board area restrictions, at least when
approved by Congress, such as the current prohibitions on travel
to Cuba, are constitutional and do not raise problems under either
the first or fifth amendment, the first amendment or due process.
That would be Regan v. Wald, the most recent major Supreme
Court case in the area.
Restrictions on travels by individuals may not be premised en-
tirely upon beliefs or associations or other behavior protected by
the first amendment, but otherwise, they simply require a state-
ment of reasons and an opportunity for a post-revocation hearing,
and the Supreme Court has said that the freedom to travel abroad
is subordinate to national security and foreign policy consider-
ations.
There have been a number of policy arguments made here today
about the importance of the benefits of travel and I would sub-
scribe to virtually all of those. I certainly would not be making my
life now as a school teacher if I didn't believe that ideas were im-
portant or that the free flow of ideas were not beneficial.
But indeed, I think it probably is a good time to have a major
reconsideration of our policy towards Cuba.
There are two issues here. One of them is what ought be our pol-
icy towards Cuba and the other is who ought to make that decision.
25
A substantial portion of my testimony is spent pointing out that
the Founding Fathers clearly vested the primary responsibility for
foreign affairs in the President. This was conveyed in article II,
section 1, when they gave the President the executive power. I
have included quotations from Thomas Jefferson, Madison, Hamil-
ton, Jay, Washington, John Marshall, all of them saying that the
executive power clause gives the President all powers of their na-
ture executive and that the control of foreign policy is one of those
powers.
Historically, Congress has given the President complete discre-
tion in this area. It was not until the Cold War that Congress
placed any restrictions on the President's policy in this area. I
think it could be very harmful for Congress to intervene and im-
pose its will on the President in this area, even if Congress has the
right policy. What I would urge instead is to convey the policy ar-
guments to the President and hope that he makes the right deci-
sions.
Let me just give you three examples of how harmful this can be.
Just 11 years ago last week, the Senate on September 29, 1983,
passed a bill authorizing the President to continue our troops in
Beirut. In that debate, which was a very partisan and narrow de-
bate, during that debate, the Commandant of the Marine Corps
came to the Senate Foreign Relations Committee and virtually
begged them to stop the divisive debate. During that debate, one
member after another, including your former colleague, Senator
Percy, Chairman of the Foreign Relations Committee, said if there
were any further casualties, we could reconsider this vote at any-
time.
About that time, we heard from the Syrians that they believed
the Americans were short of breath. A few weeks later, we inter-
cepted an intelligence communication that said if we kill 15 more
Marines, the rest will go home. Then they blew up the Marine bar-
racks and killed 241 Marines. I don't think that would have hap-
pened if they would not have interpreted Congress as saying they
were going to pull the plug. I think Saddam Hussein could have
been deterred.
Let me just give you one closing example, and it was a secret
visit by General Vern Walters in February of 1983 to visit Castro.
Walters went to see Castro and he said, look, the Reagan adminis-
tration is not going to tolerate your continued intervention in Latin
America. We know what you are up to. You have to stop it.
Castro listened to him for a while and then he stopped him and
he said, sit down, General. I happen to know the American system
very well and I happen to know that whatever Ronald Reagan or
any other American wants to do to me, the American Congress will
never let him touch me.
Now why did he think that? When Castro sent 40,000-some-odd
troops into Angola, Congress passed a law prohibiting the Presi-
dent from responding. It was only years later that Congress said,
gee, we goofed. Mr. President, can't you get in there and do some-
thing about Angola?
When the President was trying to stop the Nicaraguans from try-
ing to overthrow the government of El Salvador and other govern-
ments in the region, Congress passed a series of laws blocking the
26
aid. Castro, of course, at the time was tunneling arms through and
so forth.
Right now, we are at a critical time. The travel is important.
There are tremendous benefits that could come from it. But it is
even more important for our President — I didn't vote for him and
I won't vote for him the next time but he is the only President we
are going to have — it is very important that our President be able
to deal with Fidel Castro in a position of strength. If Congress over
a relatively minor issue — these issues are not minor, but as com-
pared to what Castro has been doing and getting him out of power,
these are relatively peripheral issues — if Congress signals Castro
that Congress is going to pull the plug on the President, we are not
going to have an effective foreign policy and the people of Cuba are
going to continue to suffer.
Thank you, Mr. Chairman.
[The prepared statement of Robert F. Turner follows:]
27
'.iV.
National Security and the
Constitutional Right to Travel:
Legal and Policy Implications of Restrictions
on Foreign Travel, with Special Emphasis
on Limiting Travel to Cuba
Prepared Statement of
Robert F. Turner
Charles H. Stockton Professor of International Law
VS. Naval War College
before the
Subcommittee on the Constitution
Committee on the Judiciary
United States Senate
2:00 PM
Wednesday • 5 October 1994
Dirksen Senate Office Building • Room 628
28
About the Witness
Robert F. Turner is currently serving a one year appointment as the Charles H. Stockton
Professor of International Law at the United States Naval War College in Newport, Rhode
Island. In August 1995 he will return to his position as Associate Director of the Center for
National Security Law at the University of Virginia School of Law, which he cofounded in
1981 as a nonpartisan interdisciplinary institute for the advanced study of legal issues
affecting the national security. After serving two Army tours of duty in South Vietnam he
spent several years as a Fellow at Stanford University's Hoover Institution on War, Revolu-
tion and Peace, followed by five years as the national security adviser to a member of the
Senate Committee on Foreign Relations. He has also worked in the policy cluster at the
Pentagon, as Counsel to the President's Intelligence Oversight Board at the White House, as
Principal Deputy Assistant Secretary of State for Legislative Affairs, and as the first Presi-
dent of the congressionally-established United States Institute of Peace. He is a former
three-term Chairman of both the American Bar Association's Standing Committee on Law
and National Security and its Committee on Legislative-Executive Relations, and currently
serves as Editor of the ABA National Security Law Report. In addition to teaching courses
on Advanced National Security Law and International Law, Professor Turner for many years
taught the basic US Foreign Policy course for undergraduates in the Woodrow Wilson
Department of Government and Foreign Affairs at the University of Virginia. A frequent
witness on issues of constitutional and international law before congressional committees,
he is the author or editor of nearly a dozen books and numerous articles. He is a member of
the Council on Foreign Relations and other professional organizations.
Disclaimer
It should be emphasized that Professor Turner is appearing in his individual capacity this
afternoon and is taking a day of annual leave to avoid even the appearance that his testimony
reflects the views of the Naval War College, the Department of the Navy, or the University
of Virginia. The views expressed are entirely his own.
29
Contents
Background 2
The Constitutional Separation of Foreign Affairs/National Security Powers 6
Two Centuries of Practice 14
The Cold War Era 22
Kent v. Dulles: The Warren Court Creates a "Right to Travel" 24
The Cuban Embargo 27
Aptheker v. Secretary of State 28
Zemel v. Rusk: Travel Ban to Cuba Upheld 29
The Post Vietnam Congressional Constitutional Revolution 30
Prohibiting Passport Restrictions on Cuba 32
Haig v. Agee: The Court Upholds an Individual Travel Restriction 33
Regan v. Wald: The Court Upholds the Use of
Trade Legislation to Ban Travel to Cuba 35
1994 State Department Authorization Bill 36
Issues of International Law 39
Considerations of Policy: Substance and Process 42
Is It Time to Reconsider Our Cuba Policy? 42
Process Makes a Difference — There Is Wisdom in the Constitutional Design 44
Conclusions 49
i/i C/in r\ QC _
30
Prepared Statement of
Professor Robert F. Turner
Mr. CHAIRMAN, it is an honor to be with you this afternoon to discuss these
important issues of constitutional law and policy. I want to emphasize at the start that I am
here today in my private capacity as a scholar and not as a spokesman for the U.S. Naval
War College, any other government agency, or the University of Virginia. 1 Indeed, I have
taken a day of annual leave to avoid any misunderstanding on this point.
I thought it might be helpful if I began with a brief discussion of the separation of
constitutional powers in the national security realm — in part because there are important
powers that have been largely overlooked in much of the contemporary discourse, and in
part because, without a serious understanding of this issue, it is difficult to do justice to the
more specific issues raised in this hearing.
I will then provide an overview of controls on foreign travel, including a look at
historic practice, significant statutes, and the major court opinions in this area. My
constitutional discussion will conclude with a brief analysis of the proper constitutional
standards which should be applied to travel restrictions aimed at specific individuals and to
more general bans baring travel to specified geographic areas (such as the ban on travel to
Cuba); and I will also discuss the question of whether the President has independent
authority that might be exercised in this area in the light of the withdrawal of some of the
traditional statutory bases of authority. After a brief discussion of the "right to travel"
1 In this respect I would note this sentence in your letter dated September 22, 1994, inviting me to testify:
"Our invitation is based on your expertise in the field of foreign relations law, and should not be construed
as a request for a witness speaking on behalf of the United States Navy or the Naval War College."
31
Prepared Statement of Professor Robert F. Turner
page 2
under International Law, I will conclude my testimony with some observations of a policy
nature — both in terms of substance and process.
Background
The earliest reference that I have encountered to the issuance of a passport involved
a 450 BC request by newly-appointed Palestine Governor Nehemiah for a document to
provide safe conduct during his journey from Babylon to Palestine. The incident is
recorded in the Bible in this passage:
And I said to the king, 'If it pleases the King, let letters be given to
me to the governors of the province Beyond the River, that they may let me
pass through until I come to Judah. 2
Etymologically, the term "passport" is derived from the French passer (to enter or
leave) and port (a port or harbor) — and it originally referred to a document authorizing an
individual to "pass through a city's gate or through the ports of the realm." 3
The debate over whether there is a "right to travel" dates back at least to the early
Thirteenth Century, and such a right was expressed in the original version of the Magna
Carta issued (under duress) by King John on 15 June 1215 at Runnymede:
42. It is allowed henceforth to any one to go out from our kingdom, and to
return, safely and securely, by land and by water, saving their fidelity to us,
except in time of war for some short time, for the common good of the
kingdom; excepting persons imprisoned and outlawed according to the law
of the realm, and people of a land at war with us ... . 4
2 Nehemiah 2:7, quoted in PASSPORT OFFICE, U.S. DEP'T STATE, THE UNITED STATES PASSPORT:
PAST, PRESENT, FUTURE 1 (1976).
3 GAll.LARD HUNT, THE AMERICAN PASSPORT 2 (1898); Louis L. Jaffe. The Right to Travel: The
Passport Problem, 35 FOR. AFFS. 17 (1956); U.S. DEP'T STATE. THE UNITED STATES PASSPORT
2.
4 A reprint and excellent discussion of this document is found in AMERICAN BAR FOUNDATION, SOURCES
OF OUR LIBERTIES 1 1-22 (Richard L. Perry, ed. 1978).
32
Prepared Statement of Professor Robert F. Turner
page 3
However, this version of the great charter (called carta libertatum) was promptly struck
down by Pope Innocent, III, 5 and the subsequent forty-seven 6 versions — including the
third reissue by Henry III in 1225, which was the first to be given the name Magna Carta
and is the one used in English statute books and cited by most legal treatises 7 — omitted any
reference to the right to travel because it seemed "weighty and doubtful." 8 Thus, the fact
that freedom to travel was ultimately rejected as a natural right in the Magna Carta may
stand as evidence that no such "right" existed at that time.
In fact, the Magna Carta did not secure the "right to travel abroad" for Englishmen;
in the years which followed kings and queens imposed travel constraints at will. 9
Particularly important, in terms of understanding the "rights of Englishmen" 10 as perceived
by the American Founding Fathers, is this discussion in volume 1 of Blackstone's
Commentaries:
A natural and regular consequence of this personal liberty, is, that every
Englishman may claim a right to abide in his own country so long as he
pleases; and not to be driven from it unless by the sentence of the law. The
king indeed, by his royal prerogative, may issue out his writ ne exeat
regnum, and prohibit any of his subjects from going into foreign parts
without license. This may be necessary for the public service, and
safeguard of the commonwealth. But no power on earth, except the
authority of parliament, can send any subject of England out of the land
against his will; no not even a criminal. 11
Thus, the power to restrict foreign travel was viewed by British authorities at the time our
Constitution was written as an Executive rather than a Legislative power. In this regard, it
5 It is clear that King John accepted the charter because he "found himself confronted by the armed barons,
arrayed in a warlike host," and also that the Pope was "lord of all England." Id. at 3-4.
6 The Magna Carta was reissued forty -seven times by the end of the reign of Henry V (1422). Id. at 23.
7 Id. at4n.Il.
8 Jaffe, The Right to Travel at 19.
' For examples, see id. at 20.
10 Much of the impetus behind the American Revolution was the desire to secure "the rights of
Englishmen" for the colonies. See generally, A.E. DICK HOWARD, THE ROAD FROM RUNNYMEDE
(1968); and 1 AMERICAN POLITICAL WRITINGS DURING THE FOUNDING ERA 1760-1895 (Charles S.
Hyneman & Donald S. Lutz, eds. 1983).
1 ' 1 WILLIAM BLACKSTONE. COMMENTARIES ON THE LAWS OF ENGLAND 133 (book I, chapter 1)
(1765).
33
Prepared Statement of Professor Robert F. Turner
page 4
is important to recall that Blackstone's Commentaries were reprinted in the colonies in
1771-72, and Edmund Burke remarked that he had been informed by a leading London
bookseller that "they have sold nearly as many of Blackstone's Commentaries in America
as in England."
When the American Constitution was written during the summer of 1787, there was
a widespread view that it was unnecessary to include a "Bill of Rights" because the powers
of the federal government were to be strictly limited and no "right" could be jeopardized in
the absence of a clear commitment of contrary power to the government. Thus, the fact
that the original Constitution did not identify such a "right" is not dispositive of the issue.
During the state ratification debates it became clear that the people wanted a specific
enumeration of the most fundamental rights (most of which are traceable directly to English
precedents); and it is significant, but not conclusive, that the Bill of Rights does not
incorporate any reference to a right to travel. This does not establish that no such right was
understood to exist 12 ; but, particularly when viewed in the light of the existing British
Constitution, it does suggest that any such "right" was not considered to be of a
fundamental nature. It should be noted, however, that in the same year (1791) that the Bill
of Rights was ratified, the French Declaration of the Rights of Man affirmed the right to
travel as a natural right. 13 Two years late 
