 THE LAW ABOUT GOING TO CUBA 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 only to their own government, because, when I first posted it, the Cuban side of the equation wasn't a serious problem. Now it may be. Though Cuba is in most ways admirably progressive and enlightened and its people speak freely, it's constitution is somewhat lame on the subject of press rights, which are mentioned but guaranteed only as exercised through state media. Except for Cuban-Americans aggressively spreading false, hostile, and menacing propaganda, though, for most Americans, until the last year or so, this wasn't really a problem. But in 2006, in response to increased U.S. hostility, Cuban bureaucrats got stingier about issuing press credentials to Americans, reportedly revoked credentials of Americans who wrote negative stories, certainly cut independent American journalists visas to 30 days at a time, and reportedly nullified the visas of some American tourists identified as journalists. This isn't as bad as Washington's threats of fines or jail-time, but it's bad enough. It's wrong, of course, it's strategically dumb while Cuba rightly censures Washington for censoring Americans, it's embarrassing to me to report it at the top of 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 it doesn't 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. THE LAW ABOUT GOING TO CUBA This is not advice. This is instruction. I am not a lawyer. 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. But if you have gone to Cuba or are determined to go, this document may help you. As a retired professor of journalism, I am an expert on press rights and I've had substantial experience defending my own and my students' press rights in legal and adversarial situations.I'm also a realistic philosopher, which is relevant, because law is always rooted in philosophy and good law is 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 that are good for the individual. 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 all the participating individuals. Only to serve the purpose explained in the last 18 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. 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 insure 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 law 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 46 years is sometimes called the Cuban travel ban, and sometimes the Cuban embargo, and sometimes the Trading With The Enemy Act. But (1) it does not prohibit travel, (2) almost all other countries and some U.S. businesses ignore it as an embargo, and (3) 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 a half century ago. 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, as World War II was beginning, to include "national emergency" situations that weren't quite wars, because the U.S. wasn't quite yet involved in that war. Then, 20 years later, with no pertinent war pending, the 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 Control Act was fully and forcefully 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 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 Act to stop unruly citizens from defying them. And the code 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 under part 515. 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 that (1) 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) Americans traveling to Cuba might see that something (maybe communism) is working there, and (3) 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 at the Rio population summit in 1992, long ago 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. 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 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. When I first went to Cuba in 1989, the Cuban Assets Control Regulations did distinguish, almost correctly, between other travelers and press. They abridged travel rights, 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, barring "transactions in connection with tourist travel," for instance, 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 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 |