Wednesday, August 25, 2010

The President's Legal Authority to Enable Non-tourist Travel

Law Offices of
Robert L. Muse
1320 19th Street, N.W., Suite M-2
Washington D.C. 20036

Telephone: 202-887-4990
Facsimile: 202-861-6912

August 24, 2010

The Honorable Barack Obama
President of the United States
The White House
Washington, D.C. 20500

Dear Mr. President:

It has been widely reported that you intend to restore the people-to-people travel to Cuba conceived and implemented by the Clinton Administration in 1999 and subsequently terminated by President Bush in 2003. On August 20, 2010 several members of Congress wrote to you to “draw your attention to pertinent provisions of U.S. law” and to express the opinion that the restoration of people-to-people travel “could run contrary to statutory requirements and prohibitions.” This letter rebuts that contention and reaffirms, as a matter of law, your foreign policy prerogative to restore the educational and cultural travel to Cuba commonly referred to as people-to-people travel.

The Arguments Made by the Opponents of the Reported Changes in the Cuba Travel Relations

The signatories of the August 20 letter make two points. First, they claim expanded travel to Cuba could violate “the statutory requirements in Helms-Burton pertaining to the continuation of the economic embargo on Cuba.” Their second argument is that the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA) prohibits travel to Cuba for tourism, which is true. However, while somewhat vague on the point, their letter goes on to suggest that any expansion of travel to Cuba for educational or cultural purposes (i.e. people-to-people travel) would violate TSRA’s prohibition on tourism, which is untrue.

The Helms-Burton Act’s Attempt at Codification of the U.S. Embargo on Cuba

The August 20 letter cites the Helms-Burton Act’s provision that the embargo on Cuba shall remain in effect until a transition or democratically elected government is in power in that country. However, the Helms-Burton Act leaves it to the president to determine the specific elements of that embargo.

Section 201(h) of the Helms-Burton Act states:
“Codification of Economics Embargo. – The economic embargo of Cuba, as in effect on March 1, 1996, including all restrictions under part 515 of title 31, Code of Federal Regulations, shall be in effect upon the enactment of this Act, and shall remain in effect, subject to section 204 of the Act.”

The Helms-Burton Act’s codification of the embargo codifying the Cuban regulations verbatim – including 31 C.F.R 515.201, which says: “All transactions [involving Cuba] are prohibited except as specifically authorized by the Secretary of the Treasury… by means of regulations, rulings, [and] licenses.”

The Helms-Burton Act of 1996 therefore left untouched the Executive Branch’s authority to modify the embargo on Cuba by (i) promulgating new regulations, or (ii) issuing specific licenses permitting new activities involving Cuba, or, (iii) generally licensing hitherto prohibited dealings with that country. Proof that this was the case was provided in January, 1999 when the Clinton Administration created a new category of approved travel to Cuba by authorizing specific licenses for “people-to-people” educational visits to that country. No joint resolution disapproving that action followed from the same Republican-controlled Congress that passed the Helms-Burton legislation three years earlier. Nor will a restoration, by your administration, of people-to-people travel result in a joint resolution of disapproval, notwithstanding the implied threat of such action that appears at page two of the letter of August 20. As a cursory reading of section 204(a) of the Act reveals, a joint resolution of Congress can be triggered only by a general suspension of the embargo on Cuba following notification of such to specified congressional committees. It cannot be triggered by the exercise of the licensing authority entrusted to the president by Congress when it codified the embargo on Cuba in section 201 of the Helms-Burton Act.

The Peculiar Problem of Travel Restrictions

Section 910 of TSRA provides that the Treasury Department may not authorize travel to Cuba for what the statute terms “touristic activities.” The statute goes on to define the term “touristic activities” to mean travel not “expressly authorized in any of paragraphs (1) through (12) of Section §515.560 [of the CACR]” as that regulation was in effect on June 1, 2000. As a result of Section 910 of TSRA, the general ban on U.S. citizens’ travel to Cuba cannot be rescinded by the Executive Branch. But people-to-people travel to Cuba may be re-instated by presidential action because that category of authorized travel was one of the twelve in existence on June 1, 2000 when the travel regulations were codified by TSRA. It is therefore exempt from the prohibitions of that codification.

Resumption of People-to-People Travel

Because of OFAC’s prohibition on “self-directed educational activities,” holders of §515.565(b)(2) people-to-people licenses were either established U.S. companies that specialize in organizing foreign educational and cultural programs, or institutions that qualified in their own right for a license because of their internal educational programs.

Programs offered by holders of §515.565(b)(2) licenses included Afro/Cuban religion and culture; architectural preservation; Cuban music, art and dance; natural history; agricultural organization and production and rural development.

Among the organizations that traveled to Cuba under the §515.565(b)(2) licenses of educational specialists, such as Academic Travel Abroad, were the American Folk Art Museum; Amherst College; the Art Institute of Chicago; the Association of Art Museum Directors; the Smithsonian; Harvard Art Museums (the Fogg Fellows); the Historical Charleston Foundation; the Museum of Fine Arts, Houston; the Museum of the City of New York; the Nantucket Preservation Trust; the New York Garden Club of America; the Newark Museum; Princeton University Art Museum; the Rhode Island School of Design; Spoleto Festival USA; the Whitney Museum of American Art; and the Williams College Museum of Art Fellows Program. Organizations licensed to conduct §515.565(b)(2) educational programs in their own right included, among others, the American Museum of Natural History; the Metropolitan Museum of Art and the Museum of Modern Art.

Thousands of Americans traveled to Cuba between 1999 and 2003 under “people-to-people” licenses with the intention of broadening their knowledge and understanding of Cuba and its people. It is indisputably within your power to restore that travel.

Yours sincerely,

Robert L. Muse

CC: The Honorable Hillary Clinton
The Honorable Timothy F. Geithner
General James Jones
The Honorable Arturo Valenzuela
Daniel Restrepo


1) Two years after the codification attempted by the Helms-Burton Act, a GAO Report (December 1, 1998) titled: Cuban Embargo: Selected Issues Relating to Travel, Exports and Telecommunications said, “It is clear that the President’s broad foreign affairs authority, as well as that under section 5(b) of the Trading With the Enemy Act, allows the executive branch a great deal of discretion in making changes to embargo restrictions.” See also the January 5, 1999 press conference remarks of Ambassador James Dobbins, Senior Director for Inter-American Affairs, NSC, who speaking three years after the enactment of Helms-Burton said: “...Helms-Burton codified the embargo and at the same time, it codified the President’s licensing power. That is, it codified a process by which there was an embargo to which exceptions could be granted on a case-by-case basis by the President in cases in which it was deemed to be consistent with U.S. policy. Of course, we issued hundreds, probably thousands of licenses for different things since Helms-Burton was signed without any complaint - any complaint on the grounds that it was inconsistent with Helms-Burton. In some cases, people didn’t agree with a particular licensing decision. But the concept that the President would be able to license travel, remittances, other things, such as the steps he took in March [1998], is well accepted.” Finally, for Congress’s view of the efficacy of its codification of the embargo by section 102 of the Helms-Burton Act see “Overview and Compilation of U.S. Trade Statutes”, 2005, where the House Committee on Ways and Means wrote, “Title I of the Act provides that the Cuban embargo as in force on March 1, 1996 (including the executive branch discretion contained therein) is to remain in effect until the president takes certain steps outlined in section 204 of the Act to suspend or terminate the embargo based on the existence of a transition government or a democratically elected government in Cuba.”

2) Section 515.565 is the section of the travel regulations administered by the Treasury Department that authorizes travel to Cuba for educational purposes. Subsection (a) of §565 governs the academic programs in Cuba of accredited U.S. colleges and universities. Subsection (b) authorized: “Educational exchanges not involving academic study pursuant to a degree program when those exchanges take place under the auspices of an organization that sponsors and organizes such programs to promote people-to-people contact.”

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