The Policy That Time Has Passed By

Can it be that our long-obsolete and woefully counterproductive Cuba policy is beginning to unravel? One senses as much in some recent developments.

First, despite continuing pressure from hard-line Cuban exiles and his own campaign promises, President Bush announced in July that he would not implement Title III of the Helms-Burton Act of 1996. This provision gives U.S. companies and citizens (including Cuban Americans who were naturalized after they lost their properties) the right to sue foreign firms in U.S. courts for supposedly trafficking in properties nationalized by the Cuban government in the 1960s. Its implementation would cause chaos in international commercial circles and damage U.S. interests. Mindful of these risks, former President Clinton signed Helms-Burton into law only with the proviso that he be given authority to waive implementation of Title III for periods of six months, which he did every time the provision came up.

Bush followed suit. He will try to balance that modicum of restraint with promises of tougher actions in more traditional areas like the embargo and the appointment of people chosen by the exile lobby. A few days before announcing that he would not implement Title III, for example, the president sent the U.S. Senate the nomination of Otto J. Reich, one of the hardest of the hard-line exiles, to be assistant secretary of State for Western Hemisphere affairs. He also promised to tighten controls on the travel of American citizens to Cuba.

But even here, whether the president can deliver is far from certain. There is such strong opposition in the Senate to Reich’s confirmation that even if he won his post, the fight would be so bloody and so embittering that it would be a pyrrhic victory. As for tightening travel controls, momentum in the Congress is in exactly the opposite direction. By a vote of 232 to 186, the House of Representatives last month amended the Treasury appropriations bill to prohibit the use of Treasury funds to enforce the controls. Significantly, the amendment was pushed by a staunchly conservative Republican congressman, Jeff Flake of Arizona, and was approved despite energetic White House lobbying against it.

The Senate may go farther. In mid-August, Majority Leader Tom Daschle of South Dakota and Sen. Byron L. Dorgan, a Democrat from North Dakota and the chairman of the appropriations subcommittee that funds the Treasury Department, vowed an all-out effort to remove travel controls altogether. With Congress back in session, the battle lines are forming, and a majority in the Senate now appears ready to reduce restrictions on travel.

In general, the mood in Congress is increasingly against Cuba sanctions. Also in July, an amendment that would have denied Treasury funds to enforce the embargo only lost by a vote of 227 to 201, with anti-embargo forces picking up 27 more votes this year over last.

Why the growing momentum to remove sanctions? First, they haven’t accomplished anything in 40 years. Second, Cuba’s religious leaders, human rights activists and a majority of dissidents--the very people we say we want to help--are telling us we can accomplish far more to advance the cause of human rights and a more open society in Cuba by lifting travel controls, ending the embargo and normalizing relations. Finally, public support for sanctions is evaporating. Polls indicate a majority of Americans want to lift the embargo. Farmers want to open Cuba as a market, as do business organizations. Only a small knot of hard-line exiles in Miami and a few ideologues in the Congress back sanctions.

Travel controls should be the first to go, for these directly violate the constitutional rights of U.S. citizens to travel. The U.S. Supreme Court ruled in 1967 that the federal government cannot deny Americans the right to travel wherever they wish. The government argues that it isn’t denying that right; rather, current regulations simply forbid the spending of money in the process. But these regulations are based on the Trading With the Enemy Act of 1917, which itself stipulates that it can only be imposed in time of war or national emergency.

There is no war between Cuba and the United States. What national emergency, then? For years, the government said it was the Korean War, which ended in 1953; but since the Cold War continued, so did the emergency. With the Cold War now over for more than a decade, the government has shifted its grounds. While the national emergency may have ended, it says, any laws or regulations enacted under its authority remain in force so long as they are deemed to serve U.S. interests.

But if bringing about positive change in Cuba is our objective, travel controls obviously collide with our interests. As Elizardo Sanchez, Cuba’s leading human rights activist, has often put it: “The more American citizens in the streets of Cuban cities, the better for the cause of a more open society. So why do you maintain travel controls?”

More and more Americans are asking that same question.