U.S. firms now need OK to publish authors from nations under sanction

By Scott Martelle
Times Staff Writer
Dec 7 2004

In the summer of 1956, Russian poet Boris Pasternak - a favorite of the
recently deceased Joseph Stalin - delivered his epic "Doctor Zhivago"
manuscript to a Soviet publishing house, hoping for a warm reception and
a fast track to readers who had shared Russia's torturous half-century
of revolution and war, oppression and terror.

Instead, Pasternak received one of the all-time classic rejection
letters: A 10,000-word missive that stopped just short of accusing him
of treason. It was left to foreign publishers to give his smuggled
manuscript life, offering the West a peek into the soul of the Cold War
enemy, winning Pasternak the 1958 Nobel in literature and providing
Hollywood with an epic film.

These days, Pasternak might not fare so well.

In an apparent reversal of decades of U.S. practice, recent federal
Office of Foreign Assets Control regulations bar American firms from
publishing works by dissident writers in countries under sanction unless
they first get U.S. government approval.

The restriction, condemned by critics as a violation of the 1st
Amendment, means that books and other works banned by some totalitarian
regimes cannot be published freely in the United States, a country that
prides itself as the international beacon of free expression.

"It strikes me as very odd," said Douglas Kmiec, a constitutional law
professor at Pepperdine University and former constitutional legal
counsel to Presidents Ronald Reagan and George H.W. Bush. "I think the
government has an uphill struggle to justify this constitutionally."

Several groups, led by the PEN American Center and including Arcade
Publishing, have filed suit in U.S. District Court in New York seeking
to overturn the regulations, which cover writers in Iran, Sudan, Cuba,
North Korea and, until recently, Iraq.

Violations carry severe reprisals - publishing houses can be fined $1
million and individual violators face up to 10 years in prison and a
$250,000 fine.

"Historically, the United States has served as a megaphone for
dissidents from other countries," said Ed Davis of New York, a lawyer
leading the PEN legal challenge. "Now we're not able to hear from
dissidents."

Yet more than dissident voices are affected.

The regulations already have led publishers to scrap plans for volumes
on Cuban architecture and birds, and publishers complain that the rules
threaten the intellectual breadth and independence of academic journals.

Shirin Ebadi, the 2003 Nobel Peace Prize winner, has joined the lawsuit,
arguing that the rules preclude American publishers from helping craft
her memoirs of surviving Iran's Islamic revolution and her efforts to
defend human rights in Iranian courts.

In a further wrinkle, even if publishers obtain a license for a book -
something they are loathe to do - they believe the regulations bar them
from advertising it, forcing readers to find the dissident works on
their own.

"It's absolutely against the 1st Amendment," fumed Arcade editor Richard
Seaver, who hopes to publish an anthology of Iranian short stories.
"We're not going to ask permission [to publish]. That reeks of
censorship. And 'censorship' is a word that gets my hackles up very
quickly."

Officials from the U.S. Treasury Department, which oversees OFAC,
declined comment on the lawsuit, but spokeswoman Molly Millerwise
described the sanctions as "a very important part of our overall
national security."

"These are countries that pose serious threats to the United States, to
our economy and security and our well being around the globe,"
Millerwise said, adding that publishers can still bring dissident
writers to American readers as long as they first apply for a license.

"The licensing is a very important part of the sanctions policy because
it allows people to engage with these countries," Millerwise said.
"Anyone is free to apply to OFAC for a license."

Critics say they shouldn't have to.

"We have a long tradition of not accepting prior restraint," said Wendy
Strothman of Boston, who hopes to serve as Ebadi's literary agent should
the regulations be struck down. "The notion of getting a license seems
to me to be completely counter to the spirit of the 1st Amendment.. It's
really, for me, mostly about the notion of freedom of expression."

Strothman found the logic behind the restrictions perplexing.

"It strikes me as incredible irony that we worry about the value of our
intelligence system while cutting off the voices of people we should be
hearing from," she said. "We need to be hearing what people on the
street are thinking around the world."

The literature that might be lost to American readers is impossible to
measure, but in recent months the bestseller lists have been dominated
by Azar Nafisi's "Reading Lolita in Tehran," a memoir she wrote in
exile. And Marjane Satrapi's graphic novel, "Persepolis: The Story of a
Childhood," written and published after her family left Iran for France,
has found an international audience.

Tom Miller, author of "Trading With the Enemy: A Yankee Travels Through
Castro's Cuba," said the regulations not only "nullify the 1st
Amendment" but would dampen the hopes of censored Cuban writers.

"It would be all the more depressing," said Miller, who travels to Cuba
several times a year under U.S. licenses for journalistic, academic or
cultural purposes. "There are two places Cubans get published outside of
Cuba - Spain and the States. To cut that short list in half is
devastating. In the U.S., it means less artistic and literary infusion
from overseas."

Curt Goering, deputy executive director for the Amnesty International
human rights monitoring group, criticized the regulations as "a
violation of some fundamental human rights."

Goering said international covenants recognize the right of people to
receive and distribute information regardless of political boundaries.
"It's yet another example of the hypocrisy of this administration on
human rights," Goering said, adding that while the U.S. defends its role
in Iraq as a defense of liberty at home it is "blocking" publication of
dissident voices.

Kmiec, who is not part of the legal challenge, said the 1st Amendment -
and subsequent court rulings - generally preclude the government from
restricting publications before they are made.

"It does allow for limitations where there are clear and present dangers
and compelling foreign policy or other interests that can be tangibly
and authentically demonstrated," Kmiec said. "But short of that special
application and very rare circumstance, government censorship is
properly off-limits. These efforts to restrain in advance are almost
sure to fail."

The dispute centers on a Treasury Department interpretation this year of
regulations rooted in the 1917 "Trading With the Enemy Act," which
allows the president to bar transactions with people or businesses in
nations during times of war or national emergency. A 1988 amendment by
Rep. Howard Berman (D-North Hollywood) relaxed the act to effectively
give publishers an exemption while maintaining restrictions on general
trade.

In April, OFAC regulators amended an earlier interpretation to advise
academic publishers that they can make minor changes to works already
published in sanctioned countries and reissue them.

But the regulators said editors cannot provide broader services
considered basic to publishing, such as commissioning works, making
"substantive" changes to texts, or adding illustrations.

The regulations seem shaded by Joseph Heller's classic novel "Catch-22."

American publishers are allowed to reissue, for example, Cuban communist
propaganda or officially approved books but not original works by
writers whom the Cuban government has stifled.

In a letter to Treasury officials this past spring, Berman described the
regulations as "patently absurd" and said they form a "narrow and
misguided interpretation of the law."

"It is in our national interest to support the dissemination of American
ideas and values, especially in nations with oppressive regimes," Berman
said. "At the same time, [the Berman amendment] is intended to ensure
the right of American citizens to have access to a wide range of
information and satisfy their curiosity about the world around them."

Had the current Treasury regulations been in place during the Cold War,
such dissidents as Pasternak, Alexander Solzhenitsyn and Vaclav Havel
could not have been published unlicensed in the U.S.

But they were published. And while those writers faced severe reprisals
at home - including years of prison camps - knowing that the outside
world was listening helped keep their hopes alive.

"It was like a constant life support," said Serguei Oushakine, a
doctoral candidate in anthropology at New York's Columbia University and
a former Russian culture professor at Altai State Technical University
in Barnaul, Siberia.

Oushakine said the dissidents' Cold War-era writings in the samizdat -
the underground Russian self-publishing network - and the tamizdat -
works published abroad - infused the political culture of the 1970s and
1980s. Dissident voices helped inform eventual reformers such as Mikhail
Gorbachev, who "took some of the dissidents' ideas for granted."

"These publications provided an immediate influx of literature and ideas
when changes started happening," Oushakine said. "[They] formed a
certain pool of people who could act as moral authorities of some kind
in a situation when previous hierarchies collapsed."

Without them, he believes, perestroika would not have been possible and
the collapse of the former Soviet regime would have unfolded much
differently and much more slowly.

"If you take this long view, I think such a publishing was extremely
important and necessary for the Soviet Union," Oushakine said. "And I
think it could be useful for countries like Iran, Cuba or North Korea."