John W. Snow
Secretary of the Treasury
U.S. Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
Richard Newcomb
Director, Office of Foreign Assets Control
U.S. Department of the Treasury
Treasury Annex
1500 Pennsylvania Avenue, NW
Washington, DC 20220
Fax: (202) 622-6415
Dear Secretary Snow and Mr. Newcomb,
We are writing on behalf of the 2,700 professional writers, editors, and translators who are members of PEN American Center to request an immediate review of OFAC regulations that could be interpreted to bar or restrict in any way the publication of literature-and indeed any information and informational materials-originating in countries subject to US trade embargoes. We believe strongly that the regimen as it is currently articulated not only runs contrary to the intention of Congress but also raises serious questions under both the First Amendment and international covenants guaranteeing freedom of expression.
As you may know, PEN American Center is an affiliate of International PEN, the global organization of professional writers that for 83 years has worked to promote an open international exchange of literature and ideas and to defend freedom of expression wherever it is threatened. PEN was founded in 1921 by leading European and North American writers who believed that international literary and intellectual exchange was the only way to prevent disastrous conflicts born of isolationism and extreme nationalism. The organizational charter they devolved-one of the first articulations of values that came to be enshrined in international freedom of expression guarantees-declares that “Literature, national though it be in origin, knows no frontiers, and should remain common currency between nations in spite of political or international upheavals,” and that “In all circumstances, particularly in times of war, works of art, the patrimony of humanity at large, should be left untouched by national or political passion.” In this spirit, PEN American Center and many of its individual members are engaged in ongoing international literary and intellectual exchanges-a two-way street that includes not only the dissemination of US literature and ideas around the world, but the translation and circulation of international literature and ideas within the United States.
PEN first learned of the OFAC regulations concerning the publication of materials from embargoed countries, and the troubling September and December 2003 OFAC rulings, from publishers of scholarly journals. Even as we sought to inform ourselves on the details of the current regulations and how they might impact the free exchange of literature and information, questions arose concerning two specific projects involving PEN members who are translating works of Iranian and Cuban literature. Additional questions surround a joint Association of American Publishers-PEN project to commission translations of important works of contemporary Iranian literature as a means of stimulating publishing-and ultimately, public-interest in recent contributions to this rich literary tradition. In our discussion with publishers, it is clear that there is widespread and growing concern about the OFAC regulations-sufficient, in some instances, to discourage or deter the publication of manuscripts or translations from the targeted, embargoed countries.
We understand that there are ongoing discussions between OFAC and concerned members of the scholarly and publishing communities, and that some confusion exists over whether or when literary translations from certain countries might be considered exempt from the regulations prohibiting “substantive or artistic alteration or enhancement of informational material,” and barring the “provision of services to market, produce or co-produce, create or assist in the creation of information or information materials.” But it is deeply and fundamentally troubling to PEN that we are even engaged in a process of trying to discern whether translations of works of literature-or any intellectual or informational material, in fact-might either require a license from the Treasury Department or trigger criminal prosecutions. It seems impossible to square such a licensing requirement with the language and spirit of the Berman Amendment, which specifically denies the executive branch the authority “to regulate or prohibit, directly or indirectly”
“the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications…”
Even if the current OFAC regulations did not so clearly run counter to the legislation they supposedly interpret, any system that requires publishers to seek licenses from the administration or any other government entity raises serious Constitutional concerns. We believe such a requirement amounts to illegal prior restraint under the First Amendment.
Finally, we are certain that any extension of trade sanctions to literature and any other information and informational materials flies in the face of international law, most notably Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, and Article 13 of the American Convention on Human Rights, which guarantees that the right to freedom of thought and expression “includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.” PEN knows of more than 1,000 writers and journalists who are currently in prison or under threat from governments that violate international laws protecting freedom of expression. Among these are Ven Ngawang Phulchung, a Tibetan monk serving a 19-year sentence for publishing translations of such documents as the Universal Declaration of Human Rights, and Pham Hong Son, who is currently in prison in Vietnam for translating an article titled “What is Democracy” from the website of the U.S. Embassy in Vietnam and circulating it to friends and government officials. The OFAC regulations as they are currently articulated create a mechanism for punishing publishers, scholars, writers, and translators for exercising their universally guaranteed rights, and as such, put the United States in very dubious company internationally. We therefore urge you to review these regulations regarding information and publications from embargoed countries and rewrite them to conform with the letter and spirit of the Berman Amendment, the First Amendment, and international law.
Sincerely,
Joel Conarroe
President, PEN American Center
Esther Allen
Chair, Translation Committee
Hannah Pakula
Chair, Freedom to Write Committee
Larry Siems
Director, Freedom to Write and International Programs
Cc:
President George W. Bush
Congressman Howard L. Berman
Eduardo Bertoni, Special Rapporteur for Freedom of Expression,
Inter-American Commission on Human Rights