Changing facts on the ground

Recent American history offers the relevant lesson of the civil rights and draft resistance movements. When a fundamental right is denied for reasons of narrow prejudice and political self-interest, those affected are morally justified in its exercise regardless of bureaucratic regulations. When enough people do so, regulations will follow because nothing sustains them but inertia and opportunism.

A new GAO report estimates that 120,000 unlicensed American travel to Cuba annually through third countries. The Cubans say some 40,000 Americans (not including Cuban Americans) will come in 2007, many if not most without benefit of a license.

An even greater number of Cuban Americans will go. Some have followed the third country route or unashamedly used fraudulent religious licenses. The most notorious example saw criminal prosecution and guilty pleas from profiteering organizers, but no action against the 4500 Cuban Americans who knowingly perjured themselves claiming to be members of non-existent churches.

If Americans who developed friendships and professional ties while participating in licensed non-tourist trips during the later Clinton and early Bush years just went, as did students on spring break and others among the 40% of Americans who want to vacation in Cuba, travel restrictions would become history. Even today, the only weapon OFAC has is fear, convincing violators to passively accept a negotiated lesser fine. Cases of those who insist on their right to a hearing are not moving at all.

As part of a conscientious non-cooperation campaign, retuning Americans should not hide their travel to Cuba. But even those who prefer to take their chances on getting caught will contribute to the unenforceability of illegitimate restrictions on basic freedoms if they are aware of and act upon their right to demand a hearing.

Congress and an incoming administration will have to address travel because bureaucratically and politically they have no choice.

As the GAO Report said:

"Several U.S. organizations have engaged in acts of civil disobedience against the embargo, such as refusing to apply for licenses for religious travel or humanitarian exports to Cuba, claiming that in their view the U.S. embargo violates protected constitutional, human, or religious rights. Agency officials told us that before 2005, they had unilaterally issued licenses to at least one of these groups to deliver humanitarian exports to Cuba and that the decision in 2005 to enforce the restrictions against these groups strictly created an enforcement and public relations dilemna.”

Imagine their dilemma if it was more than several organizations!