A ‘No-Brainer’: Rep. Berman’s ‘Free Trade In Ideas’ Bill Must Not Be Allowed To Strengthen Tyrants

Congressman Howard Berman (D-CA) pulled a fast one last week — a bit of legislative derring-do that despots around the world must be hoping he will be able to repeat when the State Department’s FY94 authorization bill goes before the full House Foreign Affairs Committee next week. Cheers will be heard from all corners of the "Radical Entente" if amendments attached to this bill at Rep. Berman’s initiative are allowed to undermine fatally the President’s ability to restrict certain economic and financial activities of foreign target countries, notably states like Cuba, Libya, Iraq and Serbia.

It is ironic that Congressman Berman of all people would be the sponsor of a measure like H.R. 1579, "The Free Trade in Ideas Act" — a free-standing bill which he succeeded in getting affixed (on an 8-7 vote) to the State Department authorization bill when it was marked up by the House Foreign Affairs International Operations Subcommittee on 26 May 1993. Rep. Berman has, after all, traditionally subscribed to the view that economic and political sanctions can be valuable tools of foreign policy.

The Berman language would, nonetheless, prevent the president from enforcing certain multilateral U.N embargoes — as well as some bilateral sanctions — even in war time. What is more, if enacted, this legislation would provide a convenient cover for a host of illegal and undesirable financial and trade transactions.

An Idea Whose Time Has Not Come

While Mr. Berman describes the bill benignly as a means to "eliminate restrictions on educational, scientific and cultural exchanges" and an avenue to promote "the free exchange of information and ideas," its sweeping provisions would actually have, among others, the following deleterious effects:

• The Trading with the Enemy Act would be amended to prohibit the President from interfering in any way in the transfer of any information between someone in the United States and any other country in the world;

 

• The President would be prevented from restricting the travel of American citizens under any conditions, including in the event of a congressionally-declared war. (For example, U.S. oil workers, now restricted from working in Libya, could not be prevented from returning there);

 

• As a result, the United States could be obliged to violate existing obligations mandated by the U.N. Security Council concerning sanctions on Iraq and the former Yugoslavia (e.g., those prohibiting business travel to these states);

 

• The Cuban Democracy Act overwhelmingly passed by the Congress last year and supported by then candidate Bill Clinton would be undermined by, among other things, the Berman legislation’s proposed lifting of restrictions on U.S. tourism in Cuba. The Castro regime would thus be offered a desperately needed new vehicle for earning hard currency. Similarly, major television networks could not be prevented from transferring royalties to Fidel in connection with the broadcasting of sports and other events;

 

• The Berman legislation would prohibit the President from regulating any transactions related to the transmission, creation or circulation of "informational materials." These are defined broadly to include — but not be limited to — "publications, films, posters, records, photographs, microfilms, microfiche, audiotapes, videotapes, artworks, telephone conversations, other voice data communications, telecasts, news wire feeds, and other forms of telecommunications;"

 

• The President could not prevent any group presenting itself as a foreign news organization from establishing a news bureau in the United States — even though such entities have long been utilized by hostile powers as fronts for espionage;

 

• Any banking or financial transactions, including wire transfers, between the United States and a targeted country that involved the transfer of funds for the tourist industry, movie productions, publishing operations, travel, scientific exchanges, or other "informational activities" could not be regulated; and

 

• Because the legislation is so broadly defined, "scientific exchanges" could not be impeded by the President, even in time of war. Since the content of these exchanges are not defined, presumably the legislation could even be interpreted to permit the transfer of dual-use technologies, military secrets or other information vital to U.S. national security interests.

Bottom Line

The drawbacks of the Berman legislation — were it to be adopted by the full House Foreign Affairs Committee and subsequently enacted into law — should be obvious. For one thing, it would enable economic and financial benefits to flow to such despots as Iraq’s Saddam Hussein, Libya’s Mohammar Gaddafi, Serbia’s Slobodan Milosovic, North Korea’s Kim Il Sung and Vietnam’s unreconstructed communist regime, notwithstanding multilateral or unilateral policies blocking such flows.

For another, the Berman bill would basically hamstring the President’s ability to conduct foreign policy. For example, by eroding the potential effectiveness of sanctions, this legislation would reduce U.S. options for responding to acts of international aggression, gross violations of human rights or dangerous proliferation activities to essentially two (probably) undesirable ones: 1) adopting meaningless sanctions or 2) authorizing military action.

What is more, the Berman bill is not only pernicious; it is unnecessary. Under existing laws, exceptions are already available to accommodate a broad range of humanitarian, educational, cultural and informational considerations. The fact that such exceptions must be authorized on a case-by-case basis, however, offers some basis for ensuring that they are made deliberately and on the basis of merit — and do not have the untoward effect of undermining the sanctions in place.

It would be undesirable for Congress to adopt such legislation at a less difficult moment for U.S. foreign policy than the present one. Enactment of such legislation is to be avoided at all costs, however, under present circumstances — when American leadership in punishing international pariahs is already being severely eroded by misbegotten and ineptly executed policies.(1)

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1. On this point, see the Center’s Decision Briefs entitled "America, The Impotent? ‘Tarnoff Doctrine’ Begets The ‘Please Hold’ Military Strategy; Sets Stage for Abandoned Commitments, Future Combat Losses," (No. 93-D 43, 1 June 1993) and "It’s Official: U.S. Abdication of International Leadership is State Policy, Not Mere Ineptitude," (No. 93-D 42, 26 May 1993).