In Other Words

IT WAS A free-speech battle that brought together unlikely bedfellows. On one side, the enforcement arm of U.S. trade sanctions, the Treasury Dept.'s Office of Foreign Assets Control (OFAC). On the other, the left-brained Institute of Electronics and Electrical Engineers, the biggest supporters of which included the eclectic vanguard of New York publishers and editors who serve as the collective clearing house for the world's best fiction, poetry and nonfiction.

It made sense for the literary publishing world to pay attention to issues affecting the tech business. The rights of American publishers to freely translate, edit and publish work from all countries, not just those approved by Congress, were at stake. At its end, OFAC wanted to ensure that works edited and published from Iran, Sudan, Libya and Cuba—countries under U.S. economic sanctions—didn't violate the laws the government agency was obligated to uphold; namely those that prohibit U.S. companies from providing "services" for such countries.

The laws themselves have been around for years. Cuban trade restrictions first emerged in 1917, while the Arab trade regulations have their genesis in 1977 legislation. Recognizing the danger of stifling productive dialogue along with the commerce, a Democratic representative from Los Angeles, Howard Berman, passed an amendment in 1988 that exempted "informational materials" from economic embargoes. Thanks to the new law, books and magazines from sanctioned countries would no longer be seized as they had been in the past.

Shortly before Sept. 11, the IEEE became aware of trade sanctions when they tried to set up an event in Iran. By January 2002 the group was restricting "services" such as email for members residing in Cuba, Iran, Libya and Sudan. The engineering collective asked OFAC to clarify its publishing rules. They wanted to know whether they were breaking the law when they published their highly technical scholarly articles from Iran.

OFAC found itself on the historically unpopular side of a classic policy dilemma. What is the appropriate government response when national security interests seem to trump those of free speech? Treasury Dept. spokeswoman Molly Millerwise explained the agency's initial concern lay with the "sensitive" information that could potentially be included in technical materials.

Last September, OFAC reported back to the engineering group with discouraging news about Iranian authors: "Activities such as the reordering of paragraphs and sentences, correction of syntax, grammar, and replacement of inappropriate words by U.S. persons, prior to publication, may result in a substantively altered or enhanced product, and is therefore prohibited…"

This was not a blanket dismissal. Those who didn't meet the criteria could apply for a license with the Treasury Dept.'s sanctions arm.

Needing to secure the government's permission to publish didn't sit well with national literary groups like the international writers and editors' association PEN and its 2700 members, or the 310-member Association of American Publishers. The groups began talking and looked into the possibility of filing suit against the government. New York-based poetry journal Circumference added a subversive twist. It wasn't just going to flout the law. It was going to dedicate a whole issue specifically to works by artists from sanctioned countries (translated into English, of course).

"It's socially responsible to publish writers from countries in which there's an embargo," says Circumference co-editor Jennifer Kronovet. "The idea of having to ask permission is ludicrous."

The Treasury Dept.'s Millerwise says the regulatory agency is not out to curtail open dialogue. "We don't want to stop the flow of information. We want to make sure authors from countries that aren't able to partake in free speech [are able to do so]."

Despite Berman's 1988 amendment, which was intended to prevent such use of authority, OFAC asserts its responsibility to regulate the publishing industry. "It's illegal to provide a service for a sanctioned country," Millerwise says. "This isn't something new that we just came up with."

The California congressman felt his legislation had been betrayed. Berman fired off a letter to OFAC director Richard Newcomb, calling the recent clarifications "patently absurd." Editing and proofing were an expected part of the peer review process, he said, and called on the government to abandon its licensing provision. Literary translation should also be exempted from rules, he argued.

OFAC finally got back to the engineers on April 2 of this year. Their widely publicized letter was posted on OFAC's website and was meant to answer industry questions. Style- and copy-editing were okay, it conceded, and not just for works coming from Iran, but for all the previously mentioned embargoed countries. The clarifications suited the IEEE, which backed off and touted a "First Amendment victory."

But frustration with the seemingly ambiguous legal semantics had reached a crescendo for PEN and the publishers. Too many questions had been left unresolved. What if an American publisher wants to work directly with a Cuban writer, for example? What if he or she wants to abridge a five-volume Iranian epic novel?

"We're talking about adapting literature and translating it," explains PEN's Larry Siems, director of the group's "Freedom to Write" and International Programs. "Does the law mean that we only have access to the voice of a novelist who happens to write incredibly long works if we take and translate the entire work?"

Millerwise says such questions need to be taken on a case-by-case basis, and that groups like PEN should approach the government directly with their concerns. Two weeks after OFAC's latest letter to the engineering group, a 750-member collective of newspaper editors did just that. Writing to OFAC Director Newcomb, the outgoing president of the American Society of Newspaper Editors, Peter Bhatia, asked a new question to OFAC regulators: What about op-ed pages?

"Any attempt to edit an op-ed for space by removing words, sentences or paragraphs would appear to violate the law," wrote Bhatia.

Licensing violated an international human rights treaty to protect journalists, he explained, and closed by asking whether newspapers, when they tweaked op-ed pieces from certain foreign countries, were in fact violating the law.

Millerwise declined to comment on ongoing discussions, citing OFAC policy not to do so. Meanwhile, PEN remains in close contact with the other publishing associations, and Siems says a lawsuit hasn't been ruled out. They'll settle for nothing less than unfettered access to writers and work from sanctioned countries.

"I can tell you I don't think anything has so provoked outrage in the international PEN world," Siems says. "The world thinks they're in an intellectual lock-down under the Bush administration."

While Siems tries to explain that the laws go back further than the present White House, the impression, he says, is no less sealed. "It's a matter of great concern to me that decisions about any kind of knowledge are being governed by the Treasury Dept. of the United States. It seems to be an ironically American situation."