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FREELANCE WRITERS AND film makers traveling to Cuba are facing Treasury Department restrictions that require them to apply for a permit or license each time they visit the country.
The new regulations on travel by journalists to Cuba, which went into effect Aug. 30, still haven't had much effect on news gathering, but could if they're strictly enforced ? something journalists say hasn't been the case in the past.
Prior to the new regulations, travel was permitted freely under a general license that required no prior application and was available to all "persons traveling for the purpose of gathering news, making news or documentary films."
But, as a result of the changes, only journalists "regularly employed in that capacity by a news reporting organization" are allowed to travel without prior treasury approval.
The Office of Foreign Assets Control (OFAC) is interpreting "regularly employed" to mean only salaried employees.
Others, a spokesman for the office said, must send OFAC a letter explaining why they are going to Cuba. A letter from a news organization assigning a story or willing to buy stories can be included. Or if the writer is traveling to Cuba without a specific assignment, clips of past stories should be provided.
The burden of proof, the OFAC spokesman said, is on the journalist to demonstrate he is a reporter going to Cuba to gather news.
Denials will not be made on the basis of political orientation, but the office will attempt to identify "phonies" who are attempting to use press status as a pretext to travel to Cuba.
Journalists who are approved receive a Treasury Department form which allows them to board charter flights operating between the U.S. and Cuba.
Until the August revisions, OFAC had only submitted scientists attending research conferences to such prior approval requirements.
Procedures for approving these licenses came under attack during Oct. 5 hearings by the Senate Judiciary Committee on the Constitutional Right to Travel.
Audrey R. Chapman, director of the Science and Human Rights Program of the American Association for the Advancement of Science, complained that the licenses to travel have been granted on a "very inconsistent basis. Existing standards of the travel policy have been interpreted and applied unevenly and arbitrarily. Treasury and State Department officials alone retain the discretion to decide which meetings and travel license requests they consider 'legitimately' connected with academic and professional pursuits."
Mary W. Gray, professor of mathematics and statistics with American University, testified regarding her experience with a request by the American Mathematical Society to travel to Cuba for the Second International Conference on Approximation and Optimization in the Caribbean. Despite support from the U.S. National Academy of Sciences, the request was denied.
"Particularly noteworthy, as well as both irritating and incomprehensible to mathematicians is the fact that members of the American Association of Engineering Societies were granted travel licenses to attend a professional meeting in Cuba just weeks later," Gray said. "The rationale offered by the Department of State for their arbitrary and capricious decision was that, in the schedule of the four-day mathematics conference, one half-day was designated as free time, a customary practice in many international meetings."
OFAC declined comment on the criticism.
Kate Martin, director of the Center for National Security Studies of the American Civil Liberties Union, predicts that journalists will encounter similar problems and may need the assistance of lawyers to pry licenses from OFAC.
"The way the regulations are written is arbitrary," Martin said. "It's unknowable who is entitled to go and who isn't. It leaves the decision to the Treasury Department. They're credentialing journalists. It's unconstitutional and I think the courts would agree with us."
Julie Drizin, producer of Pacifica Radio Network News, noted that Pacifica employs freelancers regularly in its coverage of Cuba. Recently, the network sent a reporter on a trip sponsored by a group challenging the Cuba travel restrictions.
Drizin termed the licensing requirements "profoundly anti-democratic," and apparently aimed at reducing channels for open communication.
"Pacifica, over the years, is one of the few media networks to commit to full and fair coverage of Cuba," she said. "We're going to continue that. We're not going to be stopped."
The American Society of Newspaper Editors (ASNE) has protested the new regulations but will likely not challenge them in court.
Allan Adler, legal counsel for ASNE, said that members of the group's international committee met with a member of the National Security Council in October to discuss the changes.
At the meeting, ASNE members protested the tighter controls on travel by freelancers and also called for the restrictions on Cuban news bureaus in the United States and restrictions on travel by Cuban journalists within the United States to be lifted.
At the same time, ASNE urged the Clinton administration to work to allow opening of bureaus by U.S. news organizations in Cuba. Some restrictions preventing this are imposed by the United States, and others are imposed by Cuba.
Adler said the tighter travel restrictions for freelancers appeared to be part of a "calculated tightening of regulations" in response to the Cuban refugee crisis and that the regulations for journalists would not likely be addressed on their own but would be tied to changes in U.S.-Cuba relations.
"We don't believe that it's justified nor does it make much sense in terms of promoting democracy in Cuba," Adler said of the tighter travel controls.
While ASNE does not plan a legal challenge, a case could arise over denial of a license.
Adler said the law might be challengeable on grounds that it violates equal protection guarantees of the U.S. Constitution by favoring individuals who are regularly employed.
Ed Seaton, editor of the Manhattan (Kan.) Mercury, and a member of the ASNE International Committee, said he came away from the discussion with the feeling that the regulation might be changed.
Seaton said the perception was that the old regulation on journalism travel was a "loophole being used by a lot of people who weren't journalists. But it did hit some legitimate journalists. I don't think that was their intent."
Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, said their organization has "always opposed any attempt to license the press."
Treatment of freelance journalists has been a "consistent problem in the past," Kirtley noted.
"The government has difficulty dealing with freelance journalists," she said. "It was noticeable in the handling of press pools during the Gulf War and in obtaining Freedom of Information Act request fee waivers. In neither case is discrimination justified."
Martha Honey, a freelance journalist and published author who has reported from Cuba recently, notes there has been a move toward the use of freelancers throughout the news media. Honey called the tightening of regulations "sad and rather ludicrous.
"From a professional and personal point of view, it's horrendous," Honey said.
"It inhibits a journalist's ability to work. The point of journalism is you're supposed to have free access to places. You can't be of use to the public as a journalist if you can't travel to Cuba."
Although the 1978 Passport Act prohibits travel restrictions in the use of passports, the executive branch exercises a grandfather clause of the Trading with the Enemy Act to outlaw expenditure of currency and effectively prevent travel to Cuba.
This law was upheld by the U.S. Supreme Court in the 1984 Regan vs. Wald case. Some critics contend that a new challenge to the authority to impose travel controls could be mounted, arguing that the national security concerns cited in Regan vs. Wald no longer exist.
?( Morgan is a Fresno, Calif.-based freelance writer) [Caption]
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