Cuba and the Freedom to Travel

Where exactly does the United States stand on one of our basic freedoms, the freedom to travel? The question is relevant because of the enormous ambiguity of the U.S. government on this issue since the beginning of the Cold War. It is especially pertinent today as Congress prepares to discuss whether to rescind the nation’s 50+ year ban on travel to Cuba.

Freedom of travel has always been recognized as one of our basic freedoms. As early as 1215 A.D., the Magna Carta stressed the right of all citizens “to go out of our kingdom and return safely . . . unless it be in time of war” (Article 42). Four centuries later, Grotius stated in one of his classic treatises on international law, Freedom of the Seas, that “every nation is free to travel to every other nation, and to trade with it.” The concept of free travel, although not always followed, was taken as an ideal for enlightened nations.

The need to defend the freedom of travel became especially urgent in modern times with the rise of hyper-nationalism and totalitarianism. Realizing this, the international community moved to enshrine the freedom in the Universal Declaration of Human Rights (UDHR), signed by most of the world’s nations in 1948. The document, drafted by the UN Commission on Human Rights made up of 18 members from different countries and chaired by Eleanor Roosevelt, contained a specific section on freedom of travel, Article 13. The Article put the issue simply: “1) Everyone has the right to freedom of movement and residence within the borders of each state. 2) Everyone has the right to leave any country, including his own, and to return to his country.”

At the time of the UDHR, the United States embraced the freedom to travel without restriction. Supporting the idea at the onset of the Cold War was a way of showing the world the contrast between the United States and the Soviet Union, which de-emphasized the rights of the individual vis-à-vis the state. Thus during the U.N. Commission’s deliberations, when the Soviet delegate, Alexei Pavlov, argued that the freedom to travel should be qualified by the phrase “in accordance with the established laws of that country,” he met with firm opposition from Eleanor Roosevelt and other delegates in the Western camp. Any qualification on something as important as the right to travel degraded its status as a “fundamental right.”

Indeed, American jurisprudence at that time tended to treat the right to travel as a protected constitutional right. For instance, in Kent v. Dulles (1958),  the U.S. Supreme Court understood the right to travel as a liberty that could not be taken away without due process under the Fifth Amendment. The Court described the right as “deeply engrained in our history” and “as close to the heart of the individual as the choice of what he eats, or wears, or reads.”  Curtailing the right could be justified only under the most extreme conditions, namely “imminent danger to the public safety.”

Within a few short years, however, the United States abruptly changed its tone. With the rise of a government it did not like in its own backyard, the freedom of Americans to travel soon became much less “fundamental” than previously stated. President John F. Kennedy announced prohibitions on travel to Cuba for the first time on February 8, 1963, following the enforcement of a commercial embargo on the island a year earlier. The decision followed several key events, including Kennedy’s Bay of Pigs operation to overturn the Cuban government in April, 1961, Castro’s request for Russian help, and the Cuban missile crisis of October 1962. The Kennedy administration justified its travel restrictions by taking an expansive view of the Trading with the Enemy Act of 1917, which “empowered the president to prohibit commercial transactions with a foreign nation during times of war or emergency.” The U.S., of course, was not at “war” with Cuba, and its relations with the island, however unpleasant, seemed to fall well short of the definition of “emergency.”

Nonetheless, the Supreme Court took a basically passive role toward this abridgment of rights, a sad indication of the highly charged emotions of the time.  In two challenges  to the travel restrictions (Zemel v. Rusk, 1965, and Regan v. Wald, 1984), the Court basically gave the President and Secretary of State the power, with virtually no restrictions, to make decisions about Americans’ right to travel abroad. The hawkish Secretary of State Dean Rusk’s opinion in the early 1960s that travel to Cuba might involve the U.S. in “dangerous international incidents” was enough to persuade the justices. Some 20 years later in a similar case, the Rehnquist Court carried this deference towards executive power even farther, asserting that matters relating to the conduct of foreign affairs should be “largely immune from judicial inquiry or interference.” This was equivalent to saying that the right to travel was no longer a constitutionally protected right.

So, essentially, in the span of a few years America went from being proud defender of freedom of travel, when it was able to wag its finger at the Russians, to being the most notorious abuser of it today. Nations around the world observe this casebook example of hypocrisy and condemn it every year in the United Nations by lopsided votes. Cuba itself has put America to shame by letting its own citizens travel freely. And as for Cuban dissidents whom America’s travel embargo is meant to give moral support to, even they seem to support an end to the U.S.’s dogmatic policy, believing openness and citizen contacts benefit everybody.

May the U.S. Senate, in its wisdom, end the hypocrisy by arriving at the same conclusion.

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