Comments on: OFAC Pans New Michael Moore Film

By: Linda

Linda — Tue, 22 May 2007 16:38:14 +0000

CNN online is featuring an interview with Moore regarding the movie and the investigation.

He says he wanted to take the patients to Gitmo so that they could get the same medical care as we give the prisoners.

By: FormerOFAC

FormerOFAC — Fri, 18 May 2007 22:02:12 +0000

What’s important to bear in mind is that the 602 letter is a request (well, demand, really) for information, not a pre-penalty notice. The purpose of the 602 is to compel the production of facts that would help determine whether adequate information exists to pursue further administrative action. Mr. Moore is certainly a larger-than-life public figure, but he is not above the law, whatever one may think of the Cuban embargo. That said, I agree with Clif that a compelling argument can be made that he meets the journalism GL terms, as arguably undefined as they are. Of course, expecting Mr. Moore to play ball with the administration and acknowledge the legitimacy of their inquiry is a classic example of agency tone deafness IMO.

By: Clif Burns

Clif Burns — Fri, 18 May 2007 05:20:58 +0000

Actually, Thomspon showed a writer from the Weekly Standard boxes of the real thing -- Montecristo's from Havana -- that he kept and smoked. Cuban seed, indeed, but grown and rolled in Cuba as well. link

By: The Real Deal

The Real Deal — Fri, 18 May 2007 03:20:08 +0000

Mikey:

Seems like your ol’ pal Fred Thompson has joined the chorus! Perhaps he was smoking a cigar made from Cuban seeds in his Breibart retort to Moore!

By: Mike Deal

Mike Deal — Wed, 16 May 2007 17:28:36 +0000

RS: I think there have to be objective definitions, that fall within the plain ordinary meaning. The teaching of the First Amendment cases on prior restraint, including licensing, is that the regulator can’t be given the unfettered discretion to decide who is or is not a journalist. The definition of journalist is exactly the sort of question for which OFAC should open a notice and comment rulemaking, perhaps with public hearings, rather than just wing it on their own.

By: Frank

Frank — Wed, 16 May 2007 13:42:39 +0000

To RS’s point, can our well-known colleague Clif Burns use the general license for journalists?
In today’s medium who/what is a journalist?
I am sure OFAC would cause an uproar if they decided that only the “Big 5″ (CBS, NBC, ABC, FOX, CNN) and hard print journalists, with a publication of over a certain rate, can use the General License.

By: RS

RS — Tue, 15 May 2007 22:50:33 +0000

Mike, anyone who reads this blog and comment regularly knows where you stand in respect to OFAC, IEEPA, EAR, etc. But lets set that aside for a moment.

The regs, as they are written and currently practiced, require OFAC to qualify journalistic and religious activities to determine the applicability of exemptions. How do you suggest they do that? I am talking about real world application here, and NOT the legality of sanctions, etc.

By: Mike Deal

Mike Deal — Tue, 15 May 2007 20:34:10 +0000

Again, pardon. Judge Patel noted that the many exceptions in the EAR suggesated that the regulations were not within the confines of the First Amendment. Of course, that opinion was withdrawn by the 9th Circuit after the government mooted Berstein’s claim by creating a license exception that covered the sourcecode in question; but, I think it worthwhile as persuasive, though not precedential, authority.

By: Mike Deal

Mike Deal — Tue, 15 May 2007 20:21:16 +0000

RS: I think it useful to go back to Judge Patel’s opinion in the Bernstein case: It wasn’t about just encryption, but about the First Amendment in general. She noted qquite eloquently that the exceptions to reulations were in part what made it clear that it was not within the confines of the regulations. Insofar as the missionary example goes, I suggest that OFAC’s episcopal definition of religion violates not only the First Amendmentment, but Article 6, paragraph 3 banning religious tests as well. Insofar as the journalism exception goes, either one bans all travel (which itself has certain constitutional problems as regards any country with which we are not either at war or expecting war) or permits anyone who writes a story or makes a film. Content driven distinctions are simply prohibited by the constitution. Lets face it, the Cuban regulations serve no national security or foreign policy purpose: They remain only for the purpose of fundraising and vote-buying among the Cuban colonists.

By: RS

RS — Tue, 15 May 2007 18:44:24 +0000

But Mike, you are still not addressing the fact that the regs provide exemptions, but do not give definitions. At some point SOMEONE has to make the descision as to what is and what is not covered under the exemptions. All in all, this is no different from the “obscenity” debate – it focuses on individual perception, and not codified limits. Anytime you have this, you are dealing with a situation like this one. I agree with OFAC that Moore is not a journalist, you think that he is. At some point someone has to make that distinction.

Getting back to the debate though, if you don’t think that OFAC should judge who is a journalist or a missionary, then who should and by what standards?

P.S. If you don’t think that Moore is a journalist, then the Bad Missionary analogy is perfectly acceptable.