Almost Every aspect of the president's program of bringing pressure to bear on Libya was right. One was not. Mr. Reagan, it seems to us, did well to espouse the freezing of assets, the imposition of trade embargos and the prohibition of large commercial financial transactions. The troubling provision of the executive order is that which raises the possiblity that severe criminal sanctions will be imposed on American citizens now in Libya.
In 1977, Congress passed legislation designed to curtail somewhat the use of presidential emergency powers during peacetime. It is that statute that has been invoked in the present situation. The law allows the chief executive to declare a national emergency "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy or economy of the United States." In such an emergency the president has the power to regulate and prohibit a number of specific activities relating to foreign exchange, trade and the use of "any property in which any foreign country or a national thereof has any interest."
If you read the statute, you might think that it was aimed primarily at bankers, currency traders, corporations, exporters and the like, but you probably wouldn't interpret that broad language to be used against Americans who want to spend money on a hotel room or a cup of coffee. The Supreme Court, however, held in a 1984 case that the statute enabled the president, in the guise of regulating the currency, effectively to prohibit travel to Cuba. And it is now the administration's contention that the law is broad enough to allow restrictions that will force all Americans to leave Libya or face criminal penalties of up to 10 years in prison. The courts would probably sustain this interpretation. We believe, as we did of the Cuban travel restrictions, that it is unwise.
Americans should leave Libya both for their own safety and to allow the government more flexibility in dealing with the crisis. Having been warned and requested to leave, however, they should still be free to remain in or travel to Libya at their own risk. At most -- and even this seems unwise to us -- those who elect to stay should be subject to the civil penalties provided in the statute rather than the criminal ones. The executive order does include an exception that will allow journalists to travel to Libya, so it is not designed to restrict the flow of information. But the rights of ordinary citizens to travel and to live at their own risk where they choose should also be acknowledged. No one should be threatened with prison for making personal -- even if unwise -- decisions of this kind.