Sunday, December 19, 2004


By William Fisher

From Washington this week comes proof that high-profile individuals can sometimes force the Bush Administration to reverse some of its anti-human rights policies.

The high-profile individual is Prof. Shirin Ebadi, the Iranian dissident who was the first Muslim woman to win the Nobel Prize. This is the story of how she and her colleagues got the US Treasury Department to stop a certain train wreck.

Prof. Ebadi was told she couldn’t publish her memoirs in the United States because of regulations that prohibit ‘trading with the enemy’. “The enemy”, in Prof. Ebadi’s case, is Iran, against whom the US currently has sanctions. The Trading With The Enemy Act (TWTE), passed in 1917, allows the president to bar transactions during times of war or national emergency. Though the law has been amended to exempt publishers, the Treasury Department continued to rule it illegal “to enhance the value of anything created in Iran without permission” -- including books.

The Department suggested Prof. Ebadi apply for a special license. But instead, Prof. Ebadi and her agent joined a lawsuit filed a month earlier against the Treasury Department by several American organizations representing publishers, editors and translators. These organizations had conducted fruitless negations for more than a year with Treasury’s Office of Foreign Assets Control (OFAC), which administers the TWTE regulations. Prof. Ebadi’s book is described as an effort to "help correct Western stereotypes of Islam, especially the image of Muslim women as docile, forlorn creatures." The TWTE regulations currently apply to countries against which the US has sanctions – Iran, Sudan and Cuba.

The lawsuit said, “At a time when the US calls for citizens of other countries to follow the example of American democracy, preventing writers in certain countries from reaching the American public sends exactly the wrong message. Writers in Iran, Cuba and Sudan cannot publish freely in their own countries. It is a tragic and dangerous irony that Americans may not freely publish the works of those writers here, either.”

“We seek to overturn the regulations on what Americans can and cannot read in the United States”, Prof. Ebadi wrote in “The New York Times” (November 16) about the lawsuit. The suit was filed by the PEN American Center, the Association of American Publishers Professional and Scholarly Publishing division (AAP/PSP), the Association of American University Presses (AAUP), and Arcade Publishing. Arcade is the publisher of PEN’s “Anthology of Iranian Literature”. PEN is a writers’ advocacy group.

Prof. Ebadi wrote that she “was surprised and angered when I learned that regulations in the United States make it nearly impossible for me to write a book for Americans. Despite federal laws that say that American trade embargoes may not restrict the free flow of information, the Treasury Department's Office of Foreign Assets Control continues to regulate the import of books from Iran, Cuba and other countries. In order to skirt the laws protecting the flow of information, the government prohibits publishing ‘materials not fully created and in existence’. Therefore, I could publish my memoir in the United States, but it would be illegal for an American literary agent, publisher, editor or translator to help me.” Rule-breakers are subject to prison sentences of up to 10 years or fines of up to $1,000,000.

Human rights, she said, “including the freedom to read whatever one wishes, are universal values that transcend national boundaries. Therefore, just as I take on court cases in Tehran to defend others' rights, so must I follow my conscience and take on a lawsuit in the United States to defend my own rights and the rights of Americans.”

The organizations asked the court to strike down OFAC regulations that require publishers, writers, and translators to seek a license from the government to perform the routine services necessary to publish foreign literature in the United States.

Those rulings and the regulations they interpret mandate that Americans may not publish work not already published in embargoed countries, promote or market the work, nor provide vaguely defined "artistic or substantive alterations or enhancements" to the work.

Prof. Ebadi and her colleagues charged that the regulations violate both the intention of Congress, articulated in the 1989 Berman Amendment, and the 1994 Free Trade in Ideas Act, which exempts transactions involving "information and informational materials" from embargoed countries, as well as the First Amendment to the US Constitution. The author of the Berman Amendment is Congressman Howard Berman, Democrat of California, who has long been an advocate for the free flow of information from embargoed nations.

In March, Rep. Berman wrote the Treasury Department to criticize its “narrow and misguided interpretation of the law”. He added: “I fail to see how this serves the interests of the United States in any way, shape or form.”

PEN, the AAP/PSP, AAUP, and Arcade contended that OFAC's regulations overreached the office's statutory authority and endangered US citizens' constitutional rights.

Last week, the Treasury Department abruptly reversed its interpretation of the TWTE Act, to largely exempt writers, publishers, editors, translators and literary agents from the regulations governing the publication of informational materials, including medical and scientific publications as well as books, from countries subject to US trade embargoes.

Edward Davis, whose law firm represents the publishing organizations as well as PEN, called the Treasury Department’s decision “a very encouraging first step toward restoring the freedom of expression”, but cautioned that “the government has not yet undone all the restrictions imposed.” He told IPS, “Prof. Ebadi’s reputation and notoriety undoubtedly played a role in getting the government to change its rules.” Davis’s law firm, Davis, Wright, Tremaine, has not yet withdrawn the lawsuit.

There is an ironic twist to the Ebadi story. At the same time the Treasury Department was denying Prof. Ebadi the right to publish her book, the US State Department – which is reportedly in charge of ‘winning the hearts and minds’ of people who live under repressive, authoritarian regimes – was lauding her on its website as one of Iran’s “Voices Struggling To Be Heard.”

The website notes that she was awarded the Nobel Peace Prize in 2003 “for her life-long campaign to protect vulnerable and persecuted groups within Iranian society.” And it quotes the citation from the Norwegian Nobel Committee: “As a lawyer, judge, lecturer, writer and activist, she has spoken out clearly and strongly in her country, Iran and far beyond.”

The State Department website goes on to explain, “Since being forced from her position as the president of the city court of Tehran, she has used her legal expertise to promote and protect some of the most basic and necessary human rights…. she has provided legal representation to many activists who are the targets of government harassment because of dissident opinions and democracy promotion. She has courageously fought for equitable and just treatment for women in Iranian society, and she has also helped to organize efforts to publicize and alleviate the harsh conditions of ‘street children’ in Iran.”

Prof. Ebadi, a former judge who was forced by the Iranian regime to step down from the bench, is now a law professor at the University of Tehran. In her “New York Times” op-ed, Prof. Ebadi wrote, “I cannot publish my memoir in Iran. The book would either be banned altogether or censored to such an extent that it would be rendered useless. Publishing my book in the United States would involve risk and repercussions for me back in Iran. I believe, however, that the message of the book is so important that I will happily accept the risk and its possible consequences.”

The State Department website notes that in 2000 Prof. Ebadi “was arrested and accused of distributing a videotape that implicated prominent hard-line leaders of instigating attacks against advocates of reform. She received a suspended sentence and a professional ban. She was then detained after attending a conference in Berlin on the Iranian reform movement.”

It says she also provided legal representation for “highly politicized and sensitive cases” such as the students killed during the 1999 Tehran University protests by vigilante groups operating under the influence of hard-line clerics, and two prominent political activists who were stabbed to death in 1998 by “rogue” elements within the Intelligence Ministry.

Even President Bush lauds Prof. Ebadi. In Iran, he says, “the demand for democracy is strong and broad as we saw when thousands gathered to welcome home Shirin Ebadi…The regime in Tehran must heed the democratic demands of the Iranian people, or lose its last claim to legitimacy."