From the beginning American courts have recognized and protected our right to travel to and in countries at peace with us. The Supreme Court has repeatedly held this is part of the liberty we can't be deprived of without due process of law under the Fifth Amendment.

Under the reasoning of the 1984 US Supreme Court case which upheld them, Regan v Wald, the 1982 Reagan Administration travel regulations (prohibiting unlicensed spending of money in Cuba) became unconstitutional when the Cold War ended. They were not being enforced in the 1990s because it was clear no judge would uphold them. Nevertheless, they remained on the books because our presidents lacked the political will to terminate them and our State Department was using them to try to discourage Americans from going to Cuba.

Each year the number of unlicensed American visitors increased, and the US-Cuba Trade and Economic Council has estimated that last year there were over 160,000.

The courts have not yet declared the restrictions unconstitutional because our government lawyers haven't brought any cases where the issue could be decided. It's unethical to prosecute people for violating laws known to be void. However, just six months after taking an oath to uphold our Constitution, President Bush said he was cracking down on "excessive" unlicensed Cuba travel. Penalty letters from our Treasury Department's Office of Foreign Asset Control have increased and there have been reports of Treasury agents around airports in Nassau, Toronto and Cancun trying to spot Americans getting off of flights from Cuba.

The restrictions have frequently been used to harass (but not prosecute) people our government deems politically incorrect. Students and trade union members attending conferences in Cuba have been held for long hours in airports for questioning by customs agents. Last year Los Angeles guitarist Ry Cooder (who had made in Havana the film "Buena Vista Social Club" which, although not political, tended to promote good will between the people of the two countries) was fined $25,000. Most returning travelers who admit where they've been get lectures and threats but no follow up.

Those who are among the very few who receive penalty letters (and who are aware of the legal situation) know they can avoid problems by refusing to pay and filing a hearing request within the required 30 days. This ends the matter without penalty because they are then entitled under a 1992 law to an in-house hearing before a Treasury administrative judge, whose ruling would be subject to review in Federal Court where the constitutional issue could be raised. Treasury has no such administrative judges. This fall it said it might try to use EPA judges, but apparently dropped this threat when several Senators said environmental judges were not appropriate to decide travel cases and were already busy with pollution matters.

New York piano tuner Ben Truhaft, who organized a charity to send pianos and tuning supplies to Cuba, received a penalty notice in 1994, refused a $3,500 settlement offer from OFAC, and demanded a hearing in order to have the restrictions declared unconstitutional.

He's been waiting for eight years, no action yet. He claims the US is trying to bring Cuba to its knees by forcing its people to listen to out-of-tune pianos. (Ken Guggenheim, AP, Washington DC, 12/16/01.)

The most troubling aspect of the present situation is the shaking down of unwary Cuba travelers by a government which knows that if the right to a hearing is requested there will be no prosecution. According to an August 5, 2001, New York Times article by Frank Bruni, the theoretical fine for unlicensed spending is $250,000, the fine on paper but not practice is $55,000, the typical fine is $7,500, however Treasury accepts down to $700 in "voluntary settlement." Although OFAC is now refusing to disclose its records concerning hearings and settlements, an August 18, 2001, NY Transfer report by reporter Jon Hillson indicates that OFAC told him that while they had taken in almost $2,000,000 in settlements from the 379 Cuba travelers who were frightened enough to pay voluntarily, they had never conducted an in-house hearing, much less taken someone to court.

Meanwhile, many Senators and Congressmen have been traveling to Havana with licenses to check out personally the need for further Cuba legislation. Last winter both chambers exempted members from the law prohibiting licensed travelers from bringing into the US Cuba-produced products worth more than $100. According to a report by Jay Amberg in Bloomberg Lifestyles, 6/20/01, John Kavelich, president of the US-Cuba Trade and Economic Council, has suggested that the reason for the exemption is that a box of Cohiba cigars, which can be bought for around $120 in Havana, will bring up to $1000 in the US, much more if signed by Fidel.