Doors, Windows, and the Office of Foreign Assets Control

The Cuban novelist, essayist, musicologist, and diplomat Alejo Carpentier was celebrated during his lifetime as one of the greatest Latin American novelists of the twentieth century, and his reputation has only grown since his death in 1980. His own books, and the many books, articles and doctoral theses that continue to be written about his work, circulate widely in many languages, and lately more so than ever, since 2004 was the centennial of his birth. Though Carpentier has never had the same degree of recognition among English-speaking readers as the writers of the highly visible "Boom" generation which came after himóGabriel Garcia Marquez, Carlos Fuentes, Mario Vargas Llosaóhe did get a section all his own in Harold Bloom's recent book Genius, his work enjoys unquestionably canonical status in Spanish departments across the United States, and all of his major books remain in print in English.

In fact, every text Carpentier ever wrote has been published in English, except for a brief essay titled "La Ciudad de las Columnas" first published in a small volume of black and white photos of Havana that came out from Editorial Letras Cubanas in 1982. La Ciudad de las Columnas is an odd little book. The name of the photographer, Paolo Gasparini, doesn't appear on it anywhere, except for one brief mention within Carpentier's text; unlike most photo books with accompanying text, this one is emphatically the writer's, not the photographer's. As if to further underscore that point, the pictures are blotchy and poorly reproduced-no more than inadequate illustrations of the maestro's extraordinary prose, the whole lot of them together not worth one hundred, much less one thousand of his words.

The text is dense, rich with historical and geographical detail; its long, carefully structured sentences seem to follow the intricately geometric layout of Havana's streets. The primary focus is on the most concrete facts of Cuban architecture: the peculiar kind of door-within-a-door known as a mampara, the half-moon-shaped stained-glass medios puntos that top doors and windows, letting in the tropical sunlight while attenuating its heat and glare. The piece aches with deep nostalgia for a vanished way of life and a kind of architecture that had ceased to be built long before it was written; it evokes, with considerable homesickness, all the elements of traditional Cuban architecture that are most particularly Cuban, and the reasons whyógoing back to the first conquest of Cuba by the Spaniardsóthey evolved as they did. There is not a word in it to tell some improbable Rip Van Winkle who went to sleep in 1955 and woke up immediately prior to reading it that a Communist revolution led by Fidel Castro came to power in Cuba in 1959; that Carpentier was a major supporter of that revolution; that as a result of that revolution President John F. Kennedy signed into law a U.S. trade embargo on Cuba that is still in effect; and that when Alejo Carpentier died in 1980 he was in Paris, where he was serving as the Castro government's ambassador to France.

Early in 2003, with the centennial of Carpentier's birth on the horizon, my friend Alexia Lalli came up with the idea of finally bringing Carpentier's essay for La ciudad de las columnas out in English, in a new edition that would include more recent photographs of Havana by a host of Cuban and international photographers. Together we approached the Smithsonian Institution Press about publishing a beautiful coffee-table book with the new photos and the text (which I would translate). The reaction was enthusiastic. At that point, none of us would have taken very seriously any suggestion that the project might be illegal. After all, everything else ever written by Carpentier had been published in English, in most cases long after the embargo on Cuba took effect, and books by writers who live in Cuba come out in English all the time from many different publishing houses.

Then, in September of 2003, the Office of Foreign Assets Control (OFAC), the Treasury Department bureau that monitors transactions with countries under embargo, issued a ruling that informed the U.S.-based Institute of Electrical and Electronics Engineers (IEEE) that "the collaboration on and editing of manuscripts submitted by persons in Iran" was prohibited. What this meant was that the society's journals could only publish articles from Iran (and, by extension, from Cuba or any other embargoed country) if they received them "camera ready" from the authors-no editing or even formatting of the text was permitted. In another ruling later that month, OFAC stated that an U.S. entity could not publish a book written by an Iranian living in Iran because "inherent in the publication of a book are marketing, distribution, artistic, advertising and other services not exempt from" the OFAC regulations.

Clearly, if it is illegal to edit or even format a text originating in an embargoed country, it must also be illegal to translate such a text. Our editor at the Smithsonian, Scott Mahler, informed Lex and me that our Alejo Carpentier project had been placed on hold by the directors of the press, pending further clarification of OFAC's position. Within the preceding year, the Smithsonian itself had published two books that originated in Cuba and were translated from Spanish, without seeking a license or having any trouble with OFAC. Why had everyone felt perfectly free to do that until the fall of 2003? What had changed?

It's hard to come up with a definite answer to that question, but we do know what had not changed. "The OFAC regulations" cited by the new rulings were nothing new; they'd been in place for many years. In 1988, Rep., Howard Berman (D-CA), concerned about protecting the free flow of information from trade sanctions, sponsored the Berman Amendment, enacted by Congress that same year, which very specifically exempted "publications, films, posters... or other informational materials" from regulation. OFAC promptly turned around and in 1989 promulgated its own set of qualifications which stated that transactions related to "informational materials not fully created and in existence at the date of the transactions," or the "substantive or artistic alteration or enhancement of informational materials," were not exempted from trade sanctions, and which also prohibited the provision of marketing services for both existing and not-yet-fully created works.

In an effort to clarify matters further, Congress passed the Free Trade in Ideas Amendment in 1994, reiterating that the Berman Amendment applied to all information, whether fully existing in tangible form at the time of the transaction or not. OFAC did slightly amend its regulations a year later to add the term "information" and include audio CDs, CD-ROMs, artworks, and newswire feeds in its definition of informational materials. However, it made no changes to the other provisions of its regulations. Since 1989, therefore, actions such as editing, translating, and marketing works originating in embargoed countries have not, according to the OFAC regulations, been exempted from trade sanctions.

Why, then, between 1989 and 2003 were publishers routinely translating, publishing, and marketing books and articles originating in embargoed countries, particularly Cuba and Iran, without seeking licenses from OFAC and without notice from OFAC that this was in any way problematic? (Violation of the International Emergency Economic Powers Act, on which the OFAC regulations are based, can carry penalties of up to ten years in jail and up to one million dollars in fines.) And what reasoning underlay the many conflicting messages coming from OFAC in the fall of 2003? At one meeting, for example, an official of the American Publishers Association brought up the example of the Carpentier book and asked if it did indeed need to seek a special license under the OFAC regulations. In response, an OFAC official stated that there was a standing exemption from the OFAC regulations for Cuban literature-an exception which, if it actually existed, would indeed have been bizarre (why Cuban literature alone and not Iranian, Sudanese or North Korean?). That, however, was the last we heard about that special exemption.

Some people, myself among them, initially wondered if this wasn't an example of a single OFAC official being overzealousóa tempest in a teapot that would blow over as soon as higher-ups became aware of what was going on and the public relations disaster it was likely to cause. But it quickly became clear over the course of that fall, as meeting after meeting took place between OFAC officials and concerned representatives of various scientific organizations and publishers, that this was not the case. The Smithsonian Institution Press, which receives a good deal of support from the federal government, and has close ties to it, went so far as to meet with State Department officials in charge of scientific affairs, and was not at all reassured. The Press decided against publishing the Carpentier book, prompting our brave and beloved editor, Scott Mahler, to resign from the Press (he now works at National Geographic). Lex and I came to the strange realization that we, and Alejo Carpentier, had effectively been censored by the United States government.

We were, of course, free to seek a special license from OFAC to publish the Carpentier book, though the way the regulations were being interpreted it seemed doubtful we would get one. To seek a license, however, would have been to acknowledge the government's right to regulate the publication of this or any text, which was certainly not something we, and many other of the various other parties who found themselves affected by the new OFAC rulings, were willing to acknowledge. To most of us, publishing such texts was clearly a right granted by the First Amendment, and not something for which any government license could be required. In addition to my involvement with Cuban literature, which extends far beyond my translation of this short text, I'm also chair of the Translation Committee of PEN American Center. Part of what the Committee does is defend the rights of translators and promote the publication of international literature-in other words, fight the suppression of voices from outside of English, which was precisely what was happening here. So I was in the odd position of being directly affected by regulations it would have been my business to fight anyway.

An article about the OFAC situation by Adam Liptak appeared in the New York Times on February 28, 2004. A spate of other press coverage followed across the country, and eventually as far away as Le Monde. On April 2, on the heels of a March 29 editorial in the Times titled "Keeping Intellectual Borders Open," OFAC issued a letter that amended its initial controversial ruling to IEEE to allow for the very specific review, editorial, and production procedures that IEEE follows. Some greeted this as the end of the controversy, but in fact, there was nothing in the new letter to alter the ban on commissioning new works or collaborations, or on the marketing and promotion of books. Publishing Carpentier's essay in translation (obviously always a significant enhancement or alteration of the original) would still be a risky proposition, particularly if the publisher also subsequently made attempts to bring the book to people's attention so they would buy it.

In early summer I happened to attend a meeting of the Copyright Society where I found myself talking to a representative of Elsevier, one of the world's leading publishers of scientific journals. Given that the whole controversy had erupted over the issue of publishing articles by Iranian scientists in U.S. scientific journals, this was my chance to ask the question that had been nagging at me from the start: just how many articles by Iranian scientists who live in Iran appear in U.S. journals each year? To my chagrin, I confess that my entirely uneducated guess, at that point, would have been about half a dozen. His answer stunned me. He told me Elsevier alone publishes about a thousand scientific articles originating in Iran each year.

This remains the best clue I have as to what really prompted the federal government, in the fall of 2003, to make the unexpected move of beginning to enforce dubious regulations in clear conflict with the letter and spirit of laws enacted by Congress, which had remained largely unenforced for over a decade. A society whose scientists are successfully publishing more than a thousand articles a year in the fiercely competitive scientific journals of the United Statesóarticles, mind you, that those scientists have written in Englishóis obviously a far cry from the image of Iran as a backward and demonized denizen of the "axis of evil" populated by ignorant religious fanatics which the U.S. government has been peddling as a prelude to some possible military intervention there. And the inevitable policy of the current administration, when inconvenient facts contradict whatever image it is trying to promote, is simply to do its best to make the facts go away. Rather than seeing the articles by Iranian scientists in U.S. journals as an opportunity for an improved understanding of and relationship with Iran, the administration saw them as something it had to try to put a stop to. And of course, as many scientists both in and outside of Iran noted, this wasn't just about image. Preventing Iranian scientists from collaborating with their counterparts in the United States and publishing their research in U.S. scientific journals was potentially a rather effective way of hindering the further development of scientific progress itself in Iran.

Except for the use of Guantánamo as an extraterritorial site where, in one legal theory, at least, human rights abuses can occur with impunity, the current administration has obviously not been as focused on Cuba as on the Middle East, so the effect there may have been primarily collateral, though any stance that appears to "tighten" the embargo will always reap some political benefit among certain Cuban Americans. Among the Cuba-related projects which, like mine, were adversely affected by the OFAC rulings of the fall of 2003 were Dialogues in Cuban Archaeology, a discussion among leading Cuban and American archaeologists; the history of an 1825 slave revolt by a leading Cuban scholar; a Field Guide to the Birds of Cuba that involved collaboration between Cuban and international scholars; an Encyclopedia of Cuban Music; and an anthology of contemporary Cuban short stories. Medical research by Cuban scientists in the field of infectious diseases was also impacted. Dishearteningly, some in the Cuban-American community greeted this with relish. Noting that Cuba bans the publication of much writing that originates in the U.S., Professor Jaime Suchlicki, director of the University of Miami's Institute for Cuban and Cuban-American Studies, said "Why should we publish theirs?" (Miami Herald, September 28, 2004). This neatly summed up another aspect of the logic that clearly underlay the administration's stance.

In the fall of 2004, a lawsuit against OFAC and the Treasury Department was filed by the Association of American University Presses, the Professional/Scholarly Publishing Division of the Association of American Publishers, Inc., PEN American Center, Inc., and Arcade Publishing, Inc. The lawyers for the plaintiffs were Ed Davis, Linda Steinman, Victor A. Kovner, and Kai Falkenberg of the New York firm of Davis, Polk. (I owe much of the information I've given here to a document detailing the background of the suit which they distributed when the complaint was filed.) Some very compelling statements were filed along with it by interested parties such as Salman Rushdie, current president of PEN American Center, and Richard Seaver of Arcade Publishing, which was proceeding, despite the risk, with the publication of a PEN anthology of contemporary Iranian literature, edited by Nahid Mozaffari. PEN's Freedom-to-Write Committee, led by Larry Siems, along with the Translation Committee, had been working on this project with Mozaffari for several years.

Not long after that suit was filed, Shirin Ebadi, the University of Tehran law professor who won the Nobel Peace Prize in 2003, filed a lawsuit of her own against the Treasury Department and OFAC. After she received the Nobel, Ebadi was approached by several American publishers who, mindful of the huge success of Azar Nafisi's Reading Lolita in Tehran, were eager for her to write a memoir for publication in the United States (a work of the kind she could not possibly publish in Iran). But the project would clearly have been in violation of several aspects of the OFAC regulations. In November, Ebadi wrote an extremely stirring editorial for the Times in which she finally and powerfully asked the question that unmasked the twisted logic underlying OFAC's restrictions on speech: "What is the difference," she wrote, "between the censorship in Iran and this censorship in the United States?" Her point is difficult to refute, and judging by subsequent events even OFAC must have seen that.

Ebadi's book has yet to be published, but it will appear before long, I'm confident, and Strange Times, My Dear: The PEN Anthology of Contemporary Iranian Literature did come out from Arcade this spring, without interference from OFAC or any other branch of the U.S. government. Just prior to the anthology's publication, OFAC responded to the lawsuits against it with yet another clarification of its position. This time, what it offered was a revision of its regulations to include what is essentially a blanket license that permits all publishing activity involving writers living in embargoed countriesówith the exception of writers who are government officials. Settlement talks between OFAC and PEN's lawyers continue, but the most likely outcome appears to be that the suit will be dismissed without prejudice-which, at least, means that it can be brought again at some future point.

This outcome is probably the only one realistically possible, given the facts of the case at this point. However, it remains unsatisfactory to many because the government's right to regulate speech emanating from embargoed countries remains essentially intact; having a blanket license from OFAC to publish Iranian or Cuban work is a far cry from having a constitutional right to do so. And although several publishers are showing interest in the Carpentier project, and it seems likely that it, too, will appear in English before long, this outcome is particularly unsatisfactory to me. Carpentier's widow and literary executor is a private citizen, but Carpentier himself was-remember-a government official, the Cuban ambassador to France. If he were still alive, his beautiful little essay about doors and windows could not be published in the United States, even under the newly revised regulations. Strange times, indeed.

Copyright © 2005 by Esther Allen. All rights reserved.