Daniel A. Handelman
SEIZURE # 1998 3801 000 23501
District Director of Customs
Patrick V. McNamara Bldg
477 Michigan Ave Rm 200
Detroit, MI 48226
Att: Darrell Woodard, Don Zainea
SUPPLEMENTAL PETITION FOR RETURN OF ITEMS SEIZED
December 27, 1998
Dear Mr. Woodard and Mr. Zainea:
I received your reply to my petition dated December 15, 1998. I understand that you have denied my petition on legal grounds, and I assume on the moral arguments I have raised. Sirs, in the one year since I sent you my original petition, UNICEF estimates that 90,000 Iraqis have died as a direct result of the embargo which you are participating in enforcing. I think that, if you have developed my photographs and watched my videotapes, you will see that conditions in Iraq are disastrous. It is imperative that you return my materials so I can continue my educational efforts to end this wrongful United States policy.
I would also call your attention to the letter from Professor Richard Falk of Princeton University on behalf of Voices in the Wilderness (VitW), a facsimile of which is attached. Professor Falk points out that the sanctions against Iraq are a violation of international law, in particular, the Hague Conventions and the Geneva Conventions, in that they target a civilian population for military purposes. It is the duty of people of conscience to violate illegal domestic laws in order to uphold international ones.
Furthermore, I have reviewed the legal arguments you raised in denying my petition. You cited Executive Order 12724, which was created to strengthen Executive Order 12722, "Blocking Iraqi Government Property and Prohibiting Transactions With Iraq." EO 12722 is very clear that "publications and other informational materials" are exempted from prohibition. EO 12724 does not specifically mention President Bush's intention to deny entry of such materials.
Looking to the International Emergency Economic Powers Act (IEEPA) 50 USC Chapter 35, Section 1702(b) specifically states that "the authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly: (1) any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value; (2) donations, by persons subject to the jurisdiction of the United States, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering, except to the extent that the President determines that such donations (A) would seriously impair his ability to deal with any national emergency declared under section 1701 of this title, (B) are in response to coercion against the proposed recipient or donor, or (C) would endanger Armed Forces of the United States which are engaged in hostilities or are in a situation where imminent involvement in hostilities is clearly indicated by the circumstances; or (3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. The exports exempted from regulation or prohibition by this paragraph do not include those which are otherwise controlled for export under section 2404 of the Appendix to this title, or under section 2405 of the Appendix to this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of title 18; or (4) any transactions ordinarily incident to travel to or from any country, including importation of accompanied baggage for personal use, maintenance within any country including payment of living expenses and acquisition of goods or services for personal use, and arrangement or facilitation of such travel including nonscheduled air, sea, or land voyages."
The exceptions listed in 50 USC Appendix 2405 section (g) specifically state that "This section does not authorize export controls on medicine or medical supplies. This section also does not authorize export controls on donations of goods (including, but not limited to, food, educational materials, seeds and hand tools, medicines and medical supplies, water resources equipment, clothing and shelter materials, and basic household supplies) that are intended to meet basic human needs."
The educational materials in question -- in the case of "exporting," film and video tapes which were blank; and in the case of "importing" the very same videotapes, now containing information which would lead to the lifting of the embargo and therefore the delivery of badly needed medicine, food, and spare parts for electrical and water treatment plants, among other basics -- constitute "intention to meet basic human needs."
You wrote "President Bush clearly indicated his intention to act in reliance on the U.N. resolution and not to include an informational materials exception when he issued EO 12724." I disagree, since there is no specific language either in that Executive Order nor in the Congressional law implementing it (Iraq Sanctions Act, PL 101-513) regarding informational materials. Since it is clear that these items are of special concern to Congress in instances of broadly defined embargoes, I would argue that Congress and the President would have to specifically include "informational materials" in Public Laws and Executive Orders in order to deny their entry into the country (see 50 USC Appendix Sec. 2405 (f) "Consultation with Congress"). I think this would be true even considering the broad language of the United Nations Participation Act (22 USC 287c), which you cite as the authority for the President to issue an order banning informational materials.
Incidentally, 22 USC 287c does not mention informational materials, but only "economic relations or rail, sea, air, postal, telegraphic, radio, and other means of communication between any foreign country or any national thereof or any person therein and the United States or any person subject to the jurisdiction thereof, or involving any property subject to the jurisdiction of the United States."
Furthermore, my first amendment rights to free speech and freedom of the press are curtailed by your seizure of my items.
Now, to the most specious of your arguments, that my videotapes and film represent "goods or services of Iraqi origin."
You state that "the phrase 'goods or services of Iraqi origin' is defined in 31 CFR 575.311 of the
OFAC regulations as:
(a) Goods produced, manufactured, grown, or processed within Iraq;
(b) Goods which have entered into Iraqi commerce;
(c) Services performed in Iraq."
The fact that the videotapes were purchased in the United States and that they were never for sale, barter, trade or other commercial consideration to Iraqi nationals, means that they never "entered the Iraqi commerce" as you charge.
Moreover, to state that my act of recording images on film and video constitutes a "service" is absurd. I also brought into Iraq several empty notebooks. I filled them up with notes about what I saw, heard, experienced and felt. When I returned to the U.S., does that make my diary a "service" of Iraqi origin? I think not. The images are the same as those words are. In fact, you wrote "Naturally, the prohibition on importation of services performed in Iraq applies to the product of that service, i.e., the photographic and video graphic services you performed while in Iraq. " I do not see how that is a natural conclusion.
Let us say that while in Iraq, I had received a haircut, in this case an unarguable "service of Iraqi origin." Would Customs have had the right to seize my head as the "product of that service?"
I would further put it to you that under these regulations, the recent dropping of bombs and cruise missiles on Iraq would be considered "exporting" materials to Iraq--in this case military equipment which, if the Iraqis were to get hold of the technology, would certainly be a threat to national security. By your logic, the U.S. military should have applied for permission from OFAC before "exporting" those missiles. Who knows what might happen to the unexploded shells?
Furthermore, the videotapes given to me by members of the international media never "entered the Iraqi commerce" in the sense that those video tapes were created by members of the media and given directly to me. They were not bought or sold, traded or bartered for, nor were they transmitted to me via Iraqi nationals. The content of most of those tapes were beamed out over satellite and around the world. Does CNN need a special license to "export" images over the airwaves? If CNN has to get approval from the Treasury Department for each "export" of images, the citizens of the U.S. have a right to know that such censorship exists. If they do not, then your arguments for seizing the images on my videotapes and film have no merit. For while the "recognized newsgathering organizations" may have licenses to travel to Iraq, what is in question here is the information being conveyed from Iraq. Such information is recorded on my tapes, on my film, in my aforementioned diary, and in the very memories in my head. By sharing my stories with over one thousand school children in Oregon and Washington, did I import "services of Iraqi origin?" Can you seize the information in their heads?
These last questions re-inforce the point that the Executive Orders and Public Laws regarding sanctions on Iraq cannot, constitutionally, abridge my right to free speech or freedom of the press. The American people deserve to have access to the information regarding the human effects of the embargo on Iraq.
I expect that all of my items, including the paperwork, water bottle label, stamps, as well as the video and film, will be available should you deny this supplemental petition and I then opt to post a bond and demand a Judicial proceeding for their return. I also expect that I will be able to obtain copies of the film and video, and photocopies of the other items in order to prepare my case for that possible Judicial proceeding.
In conclusion, I believe that you and I, as citizens of the country primarily responsible for the enormous suffering of the people of Iraq, have an obligation to act in such a way to end that suffering. I hope that you will reconsider your participation in these laws and work with your immediate and ultimate supervisors to end the embargo on the Iraqi people. The first step in showing your understanding of this issue would be to return the items you have seized from me as outlined in my original petition of January 9, 1998. I want to be clear that I am opposed to ANY person or country possessing weapons of mass destruction. In this case, the U.S. holds the most deadly weapon of all--the silent killer known as sanctions.
1. Letter from Professor Richard Falk
2. Fact sheet from Interfaith Peace Center--"Impact of the Sanctions on the People of Iraq"
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