THE LAW ABOUT GOING TO CUBA
(First posted here 16 years ago in March 20004)


Any American
can go to Cuba
as his own reporter.

     Although this document is about existential rights that supercede any state's authority, it specifically addresses the legal position of Americans in relation to their own government, but you should also see Cuba has a government, too*.

THE LAW ABOUT GOING TO CUBA

    This is not advice. This is instruction. I am not urging anyone to go to Cuba. I urge those with no third world experience, who aren't objective, and don't speak Spanish NOT to go, because, frankly, I don't trust unqualified visitors (including most main stream American reporters) NOT to spread false information, especially if they go with a US approved, licensed tour-group minded by a minder. But if you have already gone to Cuba independently or are determined to go, this document may help you. I am not a lawyer. But as a professor of journalism and adviser to student publications (before I retired, but the legitimate legal framework I'm addressing here hasn't changed), I had to become an expert on press rights. I've had substantial experience defending my own and my students' press rights in legal and adversarial situations, and I know more about press rights (protected NOT invented by the First Amendment) than most news editors and lawyers know.
    I'm also an expert on the English language and a realistic philosopher, which is relevant, because law is always rooted in language and philosophy and good law should reflect profound language competence and be rooted in realistic philosophy.
    The First and Ninth Amendments to the U.S. constitution, for instance, conceived and promoted by the most philosophically realistic of the founding fathers, recognize the existence of existential rights that precede the laws of any state.  These two amendments explicitly do NOT establish or license such rights, but rather recognize their pre-existence and command Congress not to mess with them.  On the other hand,  the so-called Cuban travel law, which violates your existential rights to travel and associate and seek information, comes from people who equate political office with parental authority (or personal opportunity) and are without philosophy. To clarify what Jefferson understood and these people miss, a brief philosophical discussion is needed.

PRE-EXISTING LAW
    The first laws, preceding man-made laws, preceding any state laws, are the laws of physics, from which there is no appeal, and the laws of biology or nature, which may be but don't seem to be quite so absolute.  Within the leeway they seem to allow lies freedom, first, for individual choice.  Any individual may, if he chooses, within that space, make his own laws governing himself.
    Self rule, historically preceding any state's law, initially establishes existential rights (you can call them human rights, basic rights, or fundamental rights, but they are, most logically, existential rights).  That is, since we exist and can choose to do and are able to do some things, and since no cosmic will stronger than ours stops us, we have the existential right to do whatever we are able to do.
    Self rule, logically, only surrenders some precedence to laws agreed on between individuals or communities so that important things can be done together we can't do apart.  Philosophically realistic laws thus begin with the social contract, a mutual defense pact between individuals, and progress to the laws of a community or state, as an extension of the social contract and as a codified commitment to work together and assume responsibilities as necessary to ensure that the state will effectively function for the benefit of the individual.
    Only to serve the purpose explained in the last 16 words of the last paragraph should people in any sense serve the states they create.  States are logically created to serve people, not vice versa. Logically and contrary to the famous but mindlessly fascist slogan screeched out by John F. Kennedy, participants in a civilized civil state should definitely ask what any country will do for them BEFORE asking what they should do for it, if anything.
     Historically, states have been formed for baser reasons, but, so far as most of us are concerned, the state should be formed to ensure that all participants live a good, civilized life, wherein, through cooperative effort, those needs are met which can best or only be met through cooperative effort.  Logically, a state is a mechanism through which people can do together what they can't or can't easily do apart.
    And that's it.  Even an ideal state should not and does not logically have comprehensive authority over its participants.  Willing participants should logically be expected to forfeit only those existential rights they need to forfeit to ensure the state will function effectively.

U.S. LAW
    As far as all the above may seem from the lumpen assumption that the law is the law, or the conservative confusion of the state with religious or parental authority, or any number of other confused popular attitudes, including any lawyer's assumption that law is what the courts say it is, to Thomas Jefferson and other very philosophical founding fathers, the importance of pre-existing existential rights was compelling, and the limitation of state authority was essential.
    This is the initial theme of the Declaration of Independence, and the Bill of Rights was insisted on by Jefferson and others precisely because the constitution as first written seemed to threaten by overlooking the existential rights that preceded and superceded it.
    The entire purpose of the 9th and 10th amendments is to clarify that the union does not have comprehensive authority over the states, which came before the union, or over the people, who came first of all and have "retained" "certain rights" (intentionally not listed so not to seem to limit them) which are obviously existential rights we don't need to forfeit to ensure that the states and the union function effectively.
    All this was necessarily clear to people who still lived on the edge of a wilderness mostly out of reach by civil protection or authority, especially Jefferson.  "Men make laws," said Jefferson's philosophical mentor, Epicurus, "not that they will do no wrong, but that they will be done no wrong."
    This is explicit in the wording of the Bill of Rights, which does not impose or authorize or in any sense initiate rights but acknowledges and protects them.  Rights listed in the First and other amendments, most importantly in the First, are not "licensed" by those amendments.  The wording makes it clear those rights already exist.  The wording is that "Congress shall MAKE NO LAW" to restrain the exercise of those rights.  That is, the superior will is not the will of the state.  The superior will is the will of the individual to retain those existential rights he has no good reason to forfeit.

THE "CUBAN TRAVEL" LAW
     The obviously unconstitutional law that congress HAS made and a series of presidents have clung to, which, along with its other flaws, has illegally abridged the rights of Americans to freely associate with Cubans for half a century is sometimes called the Cuban travel ban, and sometimes the Cuban embargo, and sometimes the Trading With The Enemy Act.  But it does NOT prohibit travel, all other countries and some U.S. businesses ignore it as an embargo, and Cuba is not the enemy of the vast majority of people who theoretically constitute the U.S. state.
    The actual name of the law is the Cuban Assets Control Act, which makes some sense because it was enacted in the interest of a tiny group of business people and their Washington pals and partners who, after they had bullied, used, abused, and robbed Cuba blind for 60 years, lost control of what they considered their assets to the Cuban revolution in 1959.  To these people only, most of whom are dead, whose "assets" existed in a different Cuban state, which has also been dead for half a century, the revolution was an enemy in a business sense only. But they and their U. S. government friends passed their act and dishonestly attached it to The Trading With The Enemy Act by calling Cuba's move to socialism a "national emergency," because that's the way corrupt people with power typically do these things.
    The Trading With The Enemy Act of 1917 was meant to control business dealings with countries with which the U.S. was actually at war.  It was amended in 1940 to include "national emergency" situations that weren't quite wars, because the U.S. was not yet officially involved in World War II.  Then, the totally irrelevant anger of a few people, certainly not "national" in scope, over the Cuban revolution and its determination to persist, justify itself, and defend itself successfully was labeled a "national emergency," travel was curtailed, sugar trade was stopped, and by July 8, 1963, the Cuban Assets Act was fully, forcefully and illogically grafted to the Trading With The Enemy Act, under the irrelevant authority of the 1940 amendment.  When that amendment was repealed in 1977, the Cuban related appendage was allowed to outlive the amendment under which it was lamely justified (like an artificial arm floating in mid air without a body) for as long as one president after another extends it by regularly re-signing a lie that it is "in the national interest" to do so.
    The U.N. regularly passes near unanimous resolutions condemning this hypocrisy.  Rational citizens regularly refuse to regard curbing their existential right to travel to Cuba as a legitimate obligation to the state.  Rabidly anti-communist U.S. congressmen regularly add more quirks to their sub-act to stop unruly citizens from defying them; and the cancerous, cunning (but never smart) sub-act regularly grows more obnoxious warts, such as a clause forbidding anyone from going to Cuba to expand his mind under the guise of research or journalism, and another that bars travelers from TRICKING their parental lawgivers (presumably by holding them to the constitution). There are now over 160 pretentiously tangled and sometimes comical sub-parts bloating the sub-act, a clumsy ink-spill on the Code of Federal Regulations.
    Though the constant revisers, endorsers, and champions of the Cuban Assets Control Regulations (vol. 31 of the Code of Federal Regulations, ch. V, part 515) defend this outdated and never justifiable rat's nest of quasi-legal blather in shrill and expediently incoherent terms that imply national security is at stake, the connection between these regulations and the "Trading With The Enemy Act," is contrived, tenuous, and dishonestly protracted.
    While Americans who vaguely know of this connection are allowed and helped to imagine that Fidel Castro (just one person to keep it simple) is an "enemy" because he is one of the bad guys in the comic book history of the world serialized in U.S. media, the real beefs are (1) that Cuba's successful escape from plantation status stands as a dangerous example to other third world peoples who resent being exploited (we ARE 5% of humanity consuming something like 25% of the world's product - much more than our share in any case), (2) that Americans traveling to Cuba might see that something (maybe communism) is working there, and (3) that Fidel Castro is intelligent, articulate and highly respected world wide, while U.S. presidents are often held in contempt, a fact that led to the public humiliation of George Bush I**, when he was laughed at while Fidel was thunderously applauded at the 1992 Rio population summit - a long-ago incident, barely reported in America but never forgotten or forgiven.

THE RIGHT TO TRAVEL
    The right to travel is not mentioned in our constitution.   It is in other constitutions, as it should be, since there is no reason an individual should forfeit his existential right to travel except under very narrow conditions, when to exercise that right would indisputably impair the well and proper functioning of the state.
    Since the right to travel isn't specifically mentioned in the U.S. Bill of Rights, I logically assume it to be among the rights acknowledged but not listed in the Ninth Amendment.  The National Lawyers' Guild apparently find it instead somewhere in the massive and tangled beard of interpretations and rulings growing out of the First Amendment, since they call it a First Amendment right.
    No matter.  Not even the keepers of the Cuban "travel law" doubt you have the right to travel to Cuba. They make that clear by constantly amending the law not to abridge your right to travel directly, but to try to evade the Constitution by barring you from paying the expenses of normal travel.  That this is a "de facto" abridgement of your right to travel would be clear to a child, and that it is clear even to the keepers of the law is shown by their reluctance to go to court.  All travelers to Cuba confronted by authorities who have demanded a hearing are still waiting for their hearing.
    Any traveler to Cuba who decides he wasn't clearly "press" but only a traveler, if he is accosted by the government or thinks he might be, can go to the NLG's website to download the forms he needs to demand a hearing, or make use of my tailored-to-fit versions of the same forms which appear below.   He will  probably never have a hearing, but he won't go to jail or pay a fine, either.  And if he does get a hearing, he may wind up helping to finally blow the illegitimate and leaky law out of the water.
    Beyond this explanation, this website isn't specifically about the right to travel.  It is about the clear right of every American to be his own reporter and go to Cuba, Venezuela, Haiti, or elsewhere, to find the news the establishment press refuses to cover.

THE RIGHT OF EVERY AMERICAN TO GO TO CUBA AS HIS OWN REPORTER, i.e. AS PRESS

The First Amendment says: "Congress shall make NO law abridging the freedom of the press."

The press IS (=) ANYONE engaged in the practice of journalism.

Journalism IS (=) a behavioral construct which consists of looking, listening, learning and sharing what has been seen, heard and learned with others by any means that works - most obviously by writing and distributing reports but also by any other means that achieves the same end, i.e., the articulation and sharing of what one sees, hears and learns. Period.

The press IS NOT (DOES NOT =) only journalists "licensed" to be journalists by the State Department or the Treasury Deparment OR paid by the embedded media to be THEIR KIND of embedded journalists.

     When I first went to Cuba in 1989, the Cuban Assets Control Regulations did distinguish, almost correctly, between other travelers and press. They illegally abridged travel rights of Americans in general, but granted a "general license" to "persons who are traveling for the purpose of gathering news, making news or documentary films, engaging in professional research, or for similar activities" (3l, CFR, ch.V, 515.560, 1985), an at once sweeping and ineptly selective concept of press.
    They illegally presumed to "license" the exercise of press rights, but didn't ask anyone to get or carry the imaginary "license." They also presumed to limit kinds of expenses allowed, by, for instance, barring "transactions in connection with tourist travel," a clearly illegal trespass on a reporter's or researcher's creative space, but that was easy to ignore, since no actual contact with any arrogantly parental bureaucrats was called for.  In effect, 515.560(1985), by granting the invisible "general license" to anyone "traveling for the purpose of gathering news," conceded exactly what it says at the top of this document, that any American can go to Cuba as his own reporter without asking anyone's permission.
    There was no doubt about this in 1989, when the "Cuban travel ban" acknowledged it, and there is still no doubt about it.  The government has never gone around announcing it, and your corporate mass media, to whom it should have been important, have helped keep it a secret, too.  But it's not a matter of opinion.  It's a fact, that you could have looked up for yourself long ago, as I did in 1989. And having looked it up, you could have gone to Cuba long ago as your own reporter, as I did, publishing the news you gathered in any form that suited you, as a chain letter to your family, in a club bulletin, or as leaflets handed out in the street, and you'd have been immune from prosecution.
    AND YOU STILL CAN.  Again, this is instruction, not advice, but I am referring to an existential right that no legitimate state has any business messing with.  On top of that, it is a right locked in by the First Amendment guarantee that "Congress shall make no law abridging freedom of speech, or of the press."  And a literal mountain of court precedent has established that the freedom referred to in the First Amendment belongs to every single person, not just major media personnel, and that the press referred to includes any kind of publication, no matter how modest or amateurish.  In 1791, for instance, newspapers were likely to be "broadsides," single sheets printed on one side.
    So when rightwing congressmen like Jesse Helms decided to close the loopholes in the "travel law" in '93, '95, and '99, either unaware or unconcerned that among the offensive loopholes was the First Amendment, they and Bill Clinton, who signed their bills, were breaking the law.
    Among the changes to the part of 515 that affects the press, 515.563(a) (1999) now extends the "general license" (the immaculate "license" that doesn't have to be gotten or carried) only to "persons regularly employed as journalists by a (sic) news reporting organization or... as supporting broadcast or technical personnel," who must stick to "transactions... directly incident to journalistic activities," whatever these lawmakers think that means.
    Of course, words and phrases like "regularly," "journalists," "organization," "news reporting organization," and "journalistic activities" are much more flexible than the authors of part 515.563(a) seem to imagine.  Obviously, anyone can "regularly" employ himself to report news about Cuban tourist prospects in a bulletin to his friends and qualify perfectly.  But the lawmakers think they have effectively limited the independent exercise of First Amendment rights to their friends in the corporate media, because, in much more perfect violation of the 14th Amendment, 515.563(b)(1999) offers only a "special license" to now second class free-lance journalists, for one article at a time, application to be accompanied by an itinerary, a resume, a work schedule which some bureaucrat thinks is reasonable, and proof one's journalistic experience is "significant" to the same bureaucrat.
    This would be outrageous even if it wasn't a transparent attempt to abridge freedom of the press and a clear (though probably unconscious) violation of the "equal protection" clause of the 14th Amendment, but it is, and it won't stand up in a legitimate court, because, under the First Amendment, Congress can't legally make such a law.
    As you read this (I wrote in 2004, during my 5th visit to Cuba), I am in Cuba again, without anyone's direct permission.  I am, of course, the editor, publisher, and "regular" reporter of  I Am My Own Reporter, a "news gathering organization." But I'm not what they thought they meant by that description.  Again, I'm not advising the reader, only informing her or him.  But if I get a letter from the authorities, I will respond as follows (this is a ripoff of the letter the NLG recommends for travelers, modified to suit the situation of citizen reporters):

Dear sirs,
    On_____, I got your letter of_____, which presumes to require certain information of me (and/or attempts to solicit payment of an arbitrary fine). This is clearly an effort to get around the Fifth Amendment.  I decline to provide any such information or to pay any such fine and insist instead on my right to await due process.
    I advise you that I have carefully reviewed the regulation(s) you refer to and I find it (they) violate(s) my free press rights under the First Amendment, in that it (they) presume(s) a governmental authority to license, monitor, and regulate individual exercise of these rights in an intrusive and discriminatory way.
    The regulation(s) you cite further violate(s) my 9th Amendment right to travel and my First Amendment rights to free speech and association, and my 14th Amendment right to equal protection under the law.  Arbitrary distinctions between "regular" and other-than-regular press, and arbitrary and capricious limits on incidental travel transactions amount to unlawful discrimination on the basis of political viewpoint.
                               signed:______

(or continued if appropriate)

    I deny all allegations and implications in the "pre-penalty" notice that any exercise of First and Ninth Amendment rights is somehow illegal, and I request a public hearing in Washington D.C., since this apparent governmental attempt to compromise and sidestep the Bill of Rights is the public's business.
    In connection with said public inquiry, I submit the following pre-hearing discovery request:
    1. all documents in your files pertaining to this action, including all records and evidence of the allegations;
    2. Any correspondence or conversation within the past year between Congress and the OFAC relating to OFAC's enforcement of regulations pertaining to Cuba;
    3. a summary of penalties assessed and collected from Cuban-Americans in the past five years for violations of these regulations;
    4. a summary of penalties assessed against other Americans for traveling to Cuba;
    5. the complete context of your agency's or any government agency's analysis of the First and Ninth Amendments that leads to your assumption that the First and Ninth Amendment rights of "regular" employees of "news gathering organizations" are different from those of other Americans.

-Glen Roberts (2004)


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* Cuba has a government, too, which usually doesn't but can and has interfered with the rights of visiting journalists

    Any government can be a nuisance. The US government is definitely a nuisance to Americans who want to visit Cuba. And Cuba has a government, too, which is in most ways admirably progressive and enlightened; but, while Cubans are guaranteed free speech, and they do speak freely, Cuba's constitution is somewhat lame on the subject of press rights, which are mentioned but guaranteed only as exercised through state media - a parental attitude for sure, which Cuba is prone NOT to completely abandon when dealing with foreigners.
    For most Americans, though, except Cuban-Americans aggressively spreading false, hostile, and menacing propaganda, until 2006, this was only a minor problem. But in 2006, in response to increased U.S. hostility, Cuban bureaucrats got stingier about issuing press credentials to Americans and cut independent American journalists visas from 4 months to 30 days at a time. And, around that same time, embedded U.S. media, whom you can never unequivocally believe in reference to Cuba, reported that some Americans who wrote negative stories had their press credentials revoked and that they and some other American reporters with tourist visas accused of acting as "unauthorized" journalists were ejected from Cuba. I don't know about that. It could be 99% apocryphal. I suspect the expansion of internet use by tourists going everywhere has rendered any such fuss both useless and improbable by now.
    But, in fact, corollary to their supervision of all journalism practiced by Cubans, Cuba pretends a "sovereign" authority over foreign journalists as well and goes through the motions of issuing journalists' visas, which, completely forfeiting their "sovereign" dignity, they hand over on demand to their enemies in the major US embedded media, but which they package in endless bureaucratic delay and procedure before grudgingly granting to independent journalists.
    Back in '01 and '04, I actually had a couple of run-ins in Cuba with cops and the Department of the Interior and was briefly detained twice because I was supposedly acting as a journalist without a journalist's visa. In fact, I wasn't "acting." I was exercising a universal human right, which I had energetically tried (sheerly as a courtesy) to supplement with a Cuban-issued journalist's visa, but, after having a ridiculous amount of my own very important time wasted, I had unilaterally waived my need for what I realistically regarded as a piece of paper and gone ahead with my work. Papers and alleged rules were rattled at me. But I just bluffed in one case and theatrically lost my temper in the other and ultimately told them off in both cases, and that was all there was to it. For the details of those incidents, you can and should thoroughly read Chapter 6 of "Cuban Notebooks."
    Washington's threats of really big fines or jail-time, which I've also shrugged off and responded to angrily (very openly through this site) and gotten away with it (maybe because some federal law clerk read this document and tagged my file) are worse than Cuba's questionable rule-book rattling. But, even though I consider all experience (up to a point) adventure, and I wasn't much affected by it, what happened to me was bad enough. Cuba's attitude toward foreign journalists, like America's, is, compared, for instance, to Mexico's attitude, objectively speaking, idiotic. Entering Mexico, everybody gets a 180-day visa automatically, you voluntarily write on it what you're doing in Mexico - just information - and when I told a uniformed Tijuana airport guard (basically a rent-a-cop) helping me with the simple visa form that I was a tourist but sometimes a journalist, he said, "Just put down turismo. No problema y mas sencillo." And he was right.
    And if, in spite of the internet, Cuba's attitude towards visiting journalists has remained officially rigid, besides being ethically wrong and dumb, it's bad strategy while Cuba rightly censures Washington for similar behavior, and it's embarrassing to me to report it in a document posted as much for Cuba's benefit as for yours and mine, and if you try to go to Cuba as your own reporter, which I'm not advising, it may affect you, so you need to know about it. But nothing can change the validity of this document. No state should be licensing, regulating, limiting or controlling the existential right of anyone to go peacefully about the world seeing what's up and sharing what he learns with others. PERIOD.
    That Cuba still issues journalists' visas at all is both absurd and problematic because, while, ironically, they generously dish such visas up to their enemies at the New York Times and Miami Herald at a news-moment's notice, they are tediously bureaucratically slow about issuing them to the rest of us. Frankly, I've never had one, because, though I've applied a few times, I've always run out of patience, said "to hell with it" and gone to Cuba as a tourist.

-Glen Roberts     

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** Castro Mystique - Castro's still got it (a 1992 wire story one of my students working for the local paper sent me, assuring me the paper wouldn't print it, which they didn't)

-by Peter Muello
   Rio de Janeiro, Brazil, 13 June 1992: The mystique still surrounds Fidel Castro. The Cuban president got the strongest ovation of the 58 speakers who addressed an audience of more than 100 presidents, prime ministers and kings at the Earth Summit on Friday.
    Later, a rumor that he would hold a news conference drew a crowd of more than 200 outside a room where the 64-year-old graying revolutionary was meeting with Rio de Janeiro state Gov. Leonel Brizola.
    As Castro emerged, the crowd erupted with cheers and shouts of "Viva Fidel" and "Viva the Cuban Revolution." He shook hands but left without talking to reporters.
    The warm reception contrasted with Cuba's isolation from a conservative trend in much of Latin America, including Brazil. Despite a 30-year-old U.S. embargo, Castro has refused to abandon the hard-line communist policy he adopted after overthrowing dictator Fulgencio Batista in 1959.
    The government of Brazilian President Fernando Collor de Mello, a free market advocate, has urged Cuba to hold free elections. Diplomats say Brazil acted at the request of the United States.
    None of that seemed to matter Friday. Many delegates seemed eager to see Castro tweak Uncle Sam's nose, and he didn't disappoint them.
    With President Bush in the audience, he took the podium to denounce the "luxury and waste" of rich countries and the foreign debt burden of the poor.
    "The ecological debt should be paid, not the foreign debt," he said. "Hunger must disappear, not man."
    Castro blamed capitalist societies as "fundamentally responsible for environmental destruction."
    Developing nations are victims of "export of lifestyles and consumption patterns that destroy the environment," he said.
    "Only yesterday, they were colonies, and they are still plundered by the unjust world economic order," he said.
    Castro proposed what he called a fairer distribution of wealth and technology.
    "When there are no more pretexts for arms races, military expansion and cold wars, what prevents the developed countries from offering funds for environmental protection?" he asked.
    TV cameras showing the proceedings live on two screens at the plenary cut to President Bush, listening to the speech on earphones with the corners of his mouth drawn down. A laugh went up from the audience.
    Castro, famous for speaking for hours when he gets going,. finished in less than his alloted seven minutes. Delegates gave him the loudest ovation of the morning session. Bush clapped weakly three or four times.

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