By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.
The State Department has announced plans to ban US citizens from visiting North Korea, according to the BBC, North Korea tourism: US to ban Americans from visiting.
Details of the ban will be published in the Federal Register next week and will take effect thirty days thereafter.
Once the ban is implemented, US travellers who with to visit North Korea will require special validation of their passports; those who flout the restrictions face potential penalties of up to ten years in prison.
Since the 1980s, the US has used Geographical Travel Restrictions (GTRs) to restrict travel to various Middle Eastern countries, as well as to Cuba between 1963 and 1977, as NBC reported in State Department Announces Ban on Tourist Travel to North Korea. In addition, during the height of the Cold War US citizens were barred– at least in theory– from travelling to many Communist countries.
As The Washington Post reported in North Korean travel ban marks return to Cold War-era restrictions on U.S. citizens abroad:
“The safety and security of U.S. citizens overseas is one of our highest priorities,” State Department spokeswoman Heather Nauert said late Friday morning as the ban was announced. “Due to mounting concerns over the serious risk of arrest and long-term detention under North Korea’s system of law enforcement, [Secretary of State Rex Tillerson] has authorized a Geographical Travel Restriction on all U.S. citizen nationals’ use of a passport to travel in, through, or to North Korea.”
Peter Spiro, the Charles Weiner chair in international law at Temple University, said such a policy would be a revival of “area restrictions” that were common during the mid-20th century.
“At various points, Americans were barred from traveling to various communist countries during the Cold War,” Spiro said in an email, noting that the practice went back as far as the 1920s.
Currently, about 5000 foreign tourists visit North Korea each year on group tours. About 800 of these are Americans.
Is a US Government Ban on Travel to Specific Countries Constitutional?
The United States Supreme Court in the 1965 case of Zemel v. Rusk upheld a ban on US citizens visiting Cuba, on the basis of national security grounds. This case is still good law. The Court declined to find a constitutional right to international travel, and it also rejected a general First Amendment challenge to an area restriction, according to Professor Spiro in the Washington Post account cited above.
Chief Justice Earl Warren drafted the majority opinion, which determined that to be constitutionally permissible, the ban must be non-discriminatory– and apply to all citizens and not be directed at any particular traveller on the basis of political views she may hold, or for other specific reasons. The case includes an extended discussion of the history of country bans the US had imposed on the its citizens (as of the decision’s 1965 date) (pp. 8-11).
I hadn’t looked at this case since law school. Yet what I found most interesting when I read the opinion again today was that three justices, Hugo Black, William Douglas, and Arthur Goldberg wrote individual dissents, in which each set out his reasons for striking down the ban.
Well, all I can say about the Supreme Court is that we’ve come a long way, baby– but not in the right direction. Moreover, I think it highly unlikely that the current Supreme Court would even elect to hear a case on the North Korean ban, let alone strike down the restrictions.
Practically speaking, enforcing such a ban is more difficult– especially if the country the US citizen wants to visit is willing to play ball, by not stamping the visitor’s passport. “Americans who violate the ban could be prosecuted, though a state department official said prosecutions for that crime were rare,” The Guardian quoted an anonymous State Department official as saying in US to ban citizens from travel to North Korea after Otto Warmbier’s death.
That could of course all change under Trump’s Department of Justice. The same Guardian account mentioned that the new administration intends to tighten travel restrictions on Cuba (relying on different statutory than the North Korea GTR) — a subject I previously posted on in Trump Cuba Policy Reversal: More Sound and Fury, Signifying…. No Mucho. And the tightening of security protocols, as well as enhanced surveillance and monitoring may make it much easier for the US government to target and prosecute violations if prosecutors chose to go that route.
North Korea Travel Ban Might Seem Sensible, But…
Now, even I, an intrepid and frequent traveller think it would not be sensible for any US citizen travelling on a US passport to try and visit North Korea at this time– especially as the current situation could at any time become a very hot conflict.
I am more worried, however, about reviving the Cold War protocol under which the United States tried to restrict travel to certain countries. Once the State Department gets back into the practice of regularly telling US citizens where they’re forbidden to travel, where will this practice stop?
Let me outline a couple of reasons I find this practice problematic.
First, I’m not alone in saying that I object to many, many elements of US foreign policy. I don’t want my activities– nor my ability to form an opinion about a place– thwarted by some misguided travel ban– whether it’s put in place by a Trump official or a future US government functionary. Today, it’s North Korea, yet tomorrow who knows what countries may be subject to similar bans.
I’m particularly concerned as I know that the State Department’s system for alerting and warning travellers about visiting certain countries has long been notorious among frequent travellers for misinformation. The system is very much distorted by US political considerations, and is infected with false negatives– sometimes steering travellers away from perfectly safe venues, if their governments don’t hew to a US line– and false positives– such as failing to mention major concerns about visiting countries that are close allies. The warnings look particularly ludicrous when one considers that the US baseline from which many US travellers start from is considerably less safe than the status quo in many of targeted countries. Meaning that even though the dangers the State Department warns about may indeed exist, they may be less of a threat than the conditions the traveler might have faced by electing to remain at home in the US. Those of us who want to get sound information on safety and security issues find the UK’s Foreign and Commonwealth Office site to be a much more accurate site (although I am not so naive as to claim that its advice, too, is not distorted by some political shading.)
Allow me to indulge in a brief quotation from Justice Arthur Goldberg’s dissent in the Zemel case (p. 29):
…As nations have become politically and commercially more dependent upon one another and foreign policy decisions have come to have greater impact upon the lives of our citizens, the right to travel has become correspondingly more important. Through travel, by private citizens as well as by journalists and governmental officials, information necessary to the making of informed decisions can be obtained. And, under our constitutional system, ultimate responsibility for the making of informed decisions rests in the hands of the people. As Professor Chafee has pointed out,
An American who has crossed the ocean is not obliged to form his opinions about our foreign policy merely from what he is told by officials of our government or by a few correspondents of American newspapers. Moreover, his views on domestic questions are enriched by seeing how foreigners are trying to solve similar problems. In many different ways, direct contact with other countries contributes to sounder decisions at home. Chafee, Three Human Rights in the Constitution of 1787, 195-196 (1956).
I’m especially aware of the problem today, as happen to be writing this while visiting Vietnam. At the moment, I’m in the northern part of the country– northwest of Hanoi, in the hill country town of Sa Pa, to be more precise. During what the Vietnamese call the American War (to distinguish it from the French War that occurred a couple of decades before), peace activists and journalists travelled to North Vietnam. These visits helped make people in the United States understand what was happening here, during the war years.
Second, even if I were in complete accord with all and every element of US foreign policy, I think it’s still extremely foolhardy for the government to ban contact with countries. Allow me to quote from Justice Douglas’s dissent in the Zemel case mentioned above (pp. 25-26):
I agree that there are areas to which Congress can restrict or ban travel. Pestilences may rage in a region, making it necessary to protect not only the traveler but those he might infect on his return. A theatre of war may be too dangerous for travel. Other like situations can be put. But the only so-called danger present here is the Communist regime in Cuba. The world, however, is filled with Communist thought, and Communist regimes are on more than one continent. They are part of the world spectrum, and if we are to know them and understand them, we must mingle with them, as Pope John said. Keeping alive intellectual intercourse between opposing groups has always been important, and perhaps was never more important than now.
The First Amendment presupposes a mature people, not afraid of ideas. The First Amendment leaves no room for the official, whether truculent or benign, to say nay or yea because the ideas offend or please him or because he believes some political objective is served by keeping the citizen at home or letting him go. Yet that is just what the Court’s decision today allows to happen. We have here no congressional determination that Cuba is an area from which our national security demands that Americans be excluded. Nor do we have a congressional authorization of the Executive to make such a determination according to standards fixed by Congress. Rather, we have only the claim that Congress has painted with such a “broad brush” that the State Department can ban travel to Cuba simply because it is pleased to do so. By permitting this, the Court ignores the “familiar and basic principle,” Aptheker v. Secretary of State, supra, at 508, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not he achieved by means which sweep unnecessarily broadly, and thereby invade the area of protected freedoms.
Today, the ban targets North Korea. Tomorrow: Nobody knows. Now while staying clear of North Korea at the moment may be perfectly sensible, as for the future, and for the rest of the world, that just isn’t sound advice. And in Washington’s New Cold War atmosphere, I think there will be more, rather than less, pressure exerted to avoid outright people, places, and ideas. And this at a time that it seems to me what’s needed is more, rather than less, contact, empathy, an effort at understanding the other side’s position.