Posted by Clif Burns at 8:05 pm
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The Wall Street Journal’s Law Blog had an interesting post last Friday regarding Iranian santurs (a dulcimer-like instrument) that a UCLA professor of ethnomusicology had been importing from Tehran. These instruments had been sailing through customs until last August when somebody in customs woke up and seized the instruments. A curt notice from DHL informed the professor of the seizure and the possibility that the santurs might be destroyed.
So Professor Sadeghi hired a lawyer to free the santurs. The lawyer told the WSJ blog that he “scoured” the Iranian Transactions Regulations for an exception for “dulcimers” — to no avail, of course. I suspect that the lawyer is speaking figuratively here because anyone familiar with the regulations would have known immediately that there were no applicable exceptions that would cover Professor Sadeghi’s santurs.
So, the lawyer did his best to make something up:
In his package, he acknowledged that the dulcimers didn’t have the appropriate licensing from the Office of Foreign Assets Control (OFAC) but argued that the instruments met the requirements for the regulatory exceptions made for informational materials and gifts.
Er, no. The gift exception provided in section 560.506 of the Iranian Transaction Regulations is limited to gifts valued at less than $100 dollars, and Persian santurs seem to exceed this dollar limit by a considerable amount. And I’m not quite sure how one gives a gift to oneself. Nor is the informational exception applicable. A musical instrument does not fit within the category of items described as informational materials in section 560.315. Frankly, he could just as well have argued that the santur is a carpet covered by section 560.534.
Even the lawyer himself appeared to be a little embarrassed by these arguments and offered an alternative justification:
Furthermore, [he] argued, even if they didn’t meet those exceptions, this was an ideal case for OFAC to exercise its discretion.
Okay, now were talking. And, miraculously enough, he received a letter from OFAC, stating:
Mr. Manoochehr Sadeghi is hereby authorized to engage in all transactions necessary to receive delivery from Iran of four miniature hammered dulcimers (santurs) seized by U.S. Customs and Border Protection on or about August 30, 2007.
More interesting, it appears that the lawyer, rather than filing a voluntary disclosure, filed something akin to a retroactive license request. If he did file a voluntary disclosure, the WSJ blog doesn’t relate whether OFAC imposed a fine or mitigated the fine completely.
In the end, it appears that two factors were at play in OFAC’s decision. In the past, the Bureau of Industry and Security (”BIS”) has used its discretion to permit exports of musical instruments to Cuba, and so a direct appeal to OFAC’s discretion in this case, without relying on inapplicable regulatory exceptions, was probably the best approach. Additionally, it seems possible that OFAC may have been influenced by Professor Sadeghi’s fame: he performed at the Kennedy Center and received a National Heritage Award from the National Endowment for the Arts.
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First, it should be noted that said lawyer is a former Dept. of Justice Internal Security section prosecutor who did a fair number of embargo cases, so perhaps OFAC was kindly disposed. Second, while OFAC’s regulations’may not contemplate that the information exclusion would cover musical instruments, a look at the conference report for the Foreign Relations Authorization Act of 1994, which includes the Free Trade in Ideas Act, suggests that Congress may well have contemplated that cultural items were excluded from OFAC’s reach. In addition to the text of the present statutory exclusion from TWEA and IEEPA for information, the FTIA includes a sense of the Congress resolution that the President should never use the powers granted under not only IEEPA and TWEA, but also the United Nations Participation Act (which the 9th Circuit cited, instead of IEEPA, as the source of the statutory authority for the Iraq travel ban) for the purpose of prohibiting cultural exchanges. Clearly, in passing the FTIA, Congress intended that economic sanctions be used for economic coercion, not cultural isolation. OFAC still perversely persists in treating IEEPA as an unfettered wholesale abdication of the plenary Constitutional authority of Congress to regulate trade, which is big city words that mean that OFAC just doesn’t give a darn about what the law actually says.
Comment by Mike Deal — April 28, 2008 @ 9:06 pm