March 03, 2004

Foreign Asset Control and Censorship

In a previous post, Chris Potts mentioned the Treasury Department's claim that the US law restricting trade with certain foreign countries prohibits scientific journals from editing papers originating in those countries. Our colleague Language Hat has also raised this issue. Here is some additional information.

The Treasury Department's Office of Foreign Asset Control has taken the position that publication of papers originating in embargoed countries is legal but that editing such papers or translating them into English is illegal because it constitutes the provision of a service to residents of the embargoed countries. The law imposes penalties consisting of fines of up to $500,000 and 10 years in jail. The Institute of Electrical and Electronic Engineers has reluctantly accepted OFAC's interpretation and suspended publication of papers from the embargoed countries. The American Association for the Advancement of Science does not accept the OFAC interpretation. According to this report the American Chemical Society initially suspended editing of papers from the embargoed countries but has now rejected the OFAC interpretation and resumed publication of such papers. The Linguistic Society of America is looking into the matter but has not yet taken a position.

Declining papers on the basis of their country of origin clearly runs counter to the goal of most scientific organizations, namely that of promoting knowledge of science. It is also bad public policy. All too often trade embargoes have little effect on the elite that control the government and merely make life more difficult for ordinary people. I'd say its pretty clear that the US embargo on trade with Cuba has been an abject failure of exactly this type, and we learn almost daily of how Saddam Hussein and his cronies lived in luxury and diverted money intended for food and medicine while most Iraqis suffered. But even if we concede that a trade embargo may in some circumstances be effective in crippling a rogue government or deterring terrorism, there is not the slightest reason to believe that preventing the publication of scientific papers will have such an effect. Indeed, such unofficial communication between hostile nations tends to humanize the enemy and improve the prospects for peace and cooperation.

There is good reason to consider the Treasury Department's interpretation of the law to be wrong. This interpretation depends on the notion that editing a paper constitutes a service to the author. (For details, see Executive Order 13224, which you can download as a PDF file here.) Although the publication of the paper may be of some long-term benefit to the author's career, the principal purpose of editing is to bring the paper into conformity with the style of the journal and to improve the experience of the journal's readership. Editing provides a service to the journal's readers. Moreover, to the extent that editing provides a service to the author, the service is not of such a nature as to be of any economic, political, or military benefit to the government of the country in which the author resides. Prohibiting editing of journal articles is not going to deter terrorism.

The Treasury Department's position is contrary to the intent of Congress. In fact, it seems to be in clear violation of the statute as amended. The Berman Amendment, named after its sponsor, Congressman Howard Berman, prohibits the executive branch from interfering "directly or indirectly" with trade in "information or informational materials". That certainly seems to tell it to keep its hands off journal articles.

[Update 2004/03/07: Congressman Berman has written a letter to Richard Newcomb, the Director of OFAC, taking exception to OFAC's interpretation of the law .]

In any case, I believe that the law as interpreted by the Treasury Department is invalid. It contravenes the First Amendment guarantees of freedom of speech and of the press:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
as well as Article 19 of the Universal Declaration of Human Rights, for which the United States voted:
Everyone has the right to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiers.

[The Universal Declaration of Human Rights is available here in over 300 languages. The United Nations Association in Canada has information about the history and status of the Declaration here.]

Posted by Bill Poser at March 3, 2004 12:18 AM