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OFAC Pans New Michael Moore Film

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Posted by Clif Burns at 9:42 pm on May 10, 2007
Category: Cuba Sanctions • OFAC

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36 Comments:

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Interesting. The implication seems to be that a journalist must be “regularly employed,” whatever that means. Unfortunately, people are going to focus on their personal feelings for and against Moore, and thus we won’t be able to debate the issues here.

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That was exactly my point, mous. The controversial nature of Moore will distract from the issue.

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I recently had OFAC tell me that another, Emmy winning, Academy Award nominated documentary film-maker was not a journalist. Their exact words: “That’s only for guys from CNN, NBC and people like that”. Apparently, from OFAC’s perspective, in order to be a journalist you must receive salary or regular wages from an organization that depends upon paid commercial advertising.

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Isn’t it odd of all the documentary makers that Mr. Morre is singled out?

He’s hitting too close to the “home team” in Washington, and it is obvious they will stop at nothing to TRY to silence him!

My hat is off to Mr. Moore, and all those who try and tell it like it actually is and not like the political pundits would like us to believe it is with all their high-blown rehtoric and catch phrases…state security and the like!!!!

Congratulations Mr. Moore! You’re shaking them up! Keep up the good work and know there are those of us in the hinterland who admire your work and applaud your bravery to dare to admonish the “system!” I hope if “they” try to punish you that everyone will write their congressmen/women, the President etc…because if it is one thing politicians do listen to it is thousands of written letters & emails that might signal they will lose votes if they continue to act like idiots!

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Perhaps if he had purchased a one-way ticket to Havana, OFAC would not have bothered.

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A “documentary maker”?!?!?!?! – Seems like Ms. Kemp is drinking the Cool-Aide. As a democrat who has watched Moore’s “films”, I am ashamed at my fellow left-leaners (most of whom have never watched Moore’s productions, but instead pick up a line or two from an article or news report. Much to my shagrin, I announce that at long last, perhaps a traitor has been exposed. Maybe he will run like Bobby Fischer.

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As we can see from two of the comments above, strong feelings about Moore (in both directions) do nothing but obscure rational debate about the scope of the general license for journalists.

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Dearest Professor Burns:

One can have strong feelings about someone or something, yet still be rational, conclude differently from you, and support a position maintained by OFAC. Disdain for the actions of Moore does not equate to legal blinding. The two are not mutually exclusive.

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That may be true, Slinger, but your comment focuses on an attack on Moore without any discussion of the regulation in question, which doesn’t really do much to support your position that your opinion hasn’t been colored by your apparent extreme distaste for Moore.

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My “comment” was in response to Ms. Kemp – nothing more with perhaps a bit of Fischer vinegar. Also, I take issue on calling that an “attack.” Pointing out that perhaps Moore is not a journalist and that some of his works would not qualify as serious documentaries seems to me to be fair points – especially from a reader who is left leaning.

Some perhaps Moore and Fischer will suffer the same fate as those who have purchased Cuban cigars over the Internet…..

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I have to agree that Slinger has a point, although I am more sympathetic to Mr. Moore.

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What Slinger et al miss is that OFAC is taking the position that documentary film makers are not journalists, period, not just Mr. Moore, (exceptions being made for pretty celebrities like Charlize Theron, for whom I would make any exception, any time, any place, for darn near anything) and that OFAC appears to be limiting its definition of journalist to those who work for a commercial or at least corporate organization, thus implicitly eliminating application of the exception (and similar provisions elsewhere) to independent journalists. One can call Mr. Moore a bad journalist or an unethical journalist, but the question is whether TWEA gives OFAC the authority to redefine journalist in such a way so as to eliminate all independent and/or non-corporate film-makers and writers just so they can eliminate Mr. Moore. If you’re willing to give OFAC the power to go after Mr. Moore because of the content of his films, then you’re giving OFAC the power to censor, thereby running square up against the First Amendment, and turning OFAC into “muscle” that Tony Soprano would envy. In fact, there is already a pattern emerging that OFAC, ICE and OEE (under Turner) tailors its enforcement policy according to politics.

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Mr. Deal – we are dealing in reality not hopeful nirvana. The export analogy is training the europeans on US reexport controls – US extraterritorial juridiction, denial orders, etc. may very well be unfair, enhance the power of the evil empire and the like, but it is the law – as distasteful as it may be. To not train the europeans b/c of the inequity of American policy would be a tragedy.

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[un]Real Deal: Perhaps you meant to respond to one of my comments on an earlier thread. If your comment is in response to my comments on this thread, I am mystified to see a casual link. That said, I respectfuly suggest that it is not altogether certain whether the regulations issued by OFAC and BIS are the law, or are instead themselves a violation of law. Continuance of the EAR despite the clear unambiguous sunset provisions of the EAA, and the equally clear statutory text of IEEPA that its powers are for extraordinary foreign threats (as noted by the minority opinion in Regan v. Wald in a portion that was not contradicted by the majority), not merely the failure of Congress to act the executive pleases, strikes me as illegal even if inconvenient. As the Court said in INS v. Chadha, the constitutional separation of powers is intended to be both inconvenient and occasionally inefficient. Then there’s the problem that most of the OFAC and BIS regulations have been isued without notice and comment rulemaking as required by the APA, and in the case of the EAR, Section 13 of the EAA itself, and therefore the Regulatory Flexibility Act. OFAC’s and BIS reliance on the foreign affairs exclusion defies the legislative history of the exclusion, which was intended to apply to diplomatic and other activity within the constitutional authority of the executive, which regulation of trade isn’t. The reliance on 1702(a), which was based on TWEA 5(b), as authority to regulate trade is also a stretch, given that the authority to regulate trade (as trade was defined by Section 2 of TWEA) was in TWEA Section 3. And, more germane to this thread, there is that little problem with OFAC and BIS ignoring the clear language of the Berman Amendment as expanded by the Free Trade in Ideas Act, just because it doen’t suit them, notwithstanding a Congressional finding in the legislative history that OFAC had violated the Berman Amendment. The export control agencies certainly have power, because in the tradition of the Sheriff of Nottingham they can always summon up mean men with weapons to punish those who disobey their fiats, to throw them into jail or at least bankrupt them defending against illegal regulations, but whether they have the law on their side or whether they abuse and violate the law is not yet settled.

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Mr. Deal:

With alldue respect, you seem to be living in an alternate reality. While intellectual curiosity may win the day in your case, sitting in jail or paying multi-million dollar fines for what you (and VERY FEW others) claim is NOT the law is not the way I, my boss or my company want to spend our Suday afternoons.

Perhaps you should consider a career as a law school professor.

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[un]Real Deal: No one, certainly not me, suggested that anyone should knowingly violate the regs. What would be appropriate is an action for a declaratory jusgement. So far, the only people to have challenged the use of IEEPA and/or the EAR were not actually exporters, but law professors (Junger v. Daley), organizations such as newspapers and think tanks seeking information under FOIA, and publishers PENN and IEEE. None of these really have business interests at stake. Maybe industry should consider paying a few lawyers to challenge the regs rather than wait until the hammer is dropped on them like ITT, Boeing, et al, not to mention all the small businesses and individuals that get snuffed by ICE and OFAC. My point is that these agencies have been permitted for far too long to act in ways that no other regulatory agency would be permitted to act, including others that deal with foreign trade. If EPA, OSHA, or even the revenue side of Customs tried any of these tricks, businesses would have marched into court with a pack of lawyers to put them back in their cages.

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In reading the letter sent to Mr. Moore, it seems that his organization submitted an application for Mr. Moore to be designated as a journalist. The Moore organization had not yet received a response at the time of the travel.

Perhaps a fine point but I think it’s important to note.

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The application was for a travel license, not an application to be designated as a journalist. A journalist qualifies under the general license and needn’t request a specific license in advance of travel.

My guess is that they applied for a specific travel license as the safest course but when it got put on the bottom of the pile (again and again), they decided to travel on the general license.

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I think everyone is really missing the point here. The point here is weather or not Moore is a journalist or not. Traditionally journalism is defined as the discipline of gathering, writing and reporting news. An independent journalist traveling to Cuba to cover XYZ event or life after Castro clearly falls under that umbrella. What Moore does is closer to propaganda than journalism. Per wikipedia “Propaganda is a type of message aimed at influencing the opinions or behavior of people. Often, instead of impartially providing information, propaganda can be deliberately misleading, or use fallacies, which, while sometimes convincing, are not necessarily valid.”
Even though I am not a fan of the current administration, I can’t honestly say that Moore is a journalist in any way, shape, or form. He reminds me of Goebbels more than Koppel. Unfortunately the regs do not specify the definition of journalist, and thus its up to personal interpretation. With the current trend of decentralization of information reaching far beyond the horison of possible back when the regs were written will complicate things further for OFAC. Take the case of the Bad Missionaries for example. Had the organizers set up personal blogs for those that traveled to Cuba before the trip, would they be considered journalists all of a sudden?
OFAC is stuck between a rock and a hard place. Had they not decided to go after Moore, those who see him the way I do would be, frankly, pissed. Now that they have decided to investigate him, the other camp is mad. Damned if they do, damned if they dont.

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If OFAC or others start drawing a distinction between journalists and “propagandists” where do we put Fox News or 60 Minutes on that scale? That seems to me to be a content-based discrimination that runs up against the First Amendment. The First Amendment isn’t violated by a universal travel ban, but it is where a “journalist” can go without a license but a “propagandist” can’t. The decision about Moore has to be content neutral to survive scrutiny in my view.

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But drawing that distinction is exactly what OFAC must do in order to enforce the regulations. Since the regs proscribe an exception for journalistic activity, someone must make the descision of what is and is not journalistic activity. When you refer to content neutral, I think you mean that in the sense of politics, and I agree with that. However his works do need to be reviewed to see if they fit the journalistic description or not. So if OFAC is not the one to do this, who should? I could see having a national governing industry board that would certify journalists and issue them merit-based licenses, and this would solve that issue. Actually, now that I think more about that, it will also raise the quality of the news in general.

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Exactly so, Cliff. Enforce the rules, sure. But enforce them across the board, consistently, without regard to ideology. And enforce them in clear ways, so that people know what they can and can’t do. We cannot just stop people we don’t like from going to Cuba to film. If we’re going to ban people from going, then ALL such people must be banned. Which means bringing a whole lot more people in, because many folks have violated the rules in the same way Moore did. The restrictions simply must be content-neutral in order to even approach fairness.

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Thank you RS and mous, anony for being voices of realism, reason and fairness – one for all and all for one. Also, check out Moore’s response on his webiste. He responded to none of OFAC’s questions and simply told OFAC to stop pursuing him!

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There is no similarity between Moore and the Bad Missonaries, as the Bad Missionaries did no mission work, whereas Moore is most certainly doing a documentary film which tells the truth as he sees it. To use the missionary analogy, by your logic OFAC should do is decide which traditions of faith are “legitimate”. Oh wait, OFAC is already doing that. They fined the Free Will Mission Board in Nashville for supporting missionaries in Cuba. And churh of Christ evangelists have had difficulties because churches of Christ do not have a central organization and do not have a clergy, i.e., they do not “ordain” ministers, because a central prinple of their religious tradition is congregational autonomy and the priesthood of all believers. I’ve actually had OFAC staffers, Yankees unfamiliar with the tradition, of course, tell me over the phone that churches of Christ can’t be a real religion because they don’t have a central organization and don’t ordain clergy. (Someone really ought to tell Fred Thompson about that).

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Excuse the arthritic old hands: That should read the Free Will Baptist Mission Board. Free Will Baptists are not to be confused with Southern Baptists, that have their central organization’s headquarters in Nashville.

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I’m perfectly fine with Moore getting in trouble, SO LONG AS the rules are enforced in way that applies to all. To do things any other way gives the impression (whether actually true or not doesn’t actually matter) that politics, not logic and fairness, is what is driving the prosecution. All I ask is evenhandedness.

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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.

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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.

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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.

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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.

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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.

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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.

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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!

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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

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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.

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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.

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