In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-2254

R YAN C LANCY,
                                              Plaintiff-Appellant,
                                v.


O FFICE OF F OREIGN A SSETS C ONTROL OF THE
U NITED S TATES D EPARTMENT OF THE T REASURY,
T IMOTHY F. G EITHNER, Secretary, United States
Department of Treasury, in his official capacity,
A DAM J. S ZUBIN , Director, Office of Foreign Assets
Control, in his official capacity, and E RIC H. H OLDER, JR.,
Attorney General, United States Department of Justice,
in his official capacity,
                                         Defendants-Appellees.


           Appeal from the United States District Court
                for the Eastern District of Wisconsin.
           No. 05 C 580—Rudolph T. Randa, Chief Judge.



    A RGUED F EBRUARY 11, 2008—D ECIDED M ARCH 11, 2009




  Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.
 W ILLIAMS, Circuit Judge. Having declared a national
emergency to deal with the threat of Iraq in 1990, President
2                                              No. 07-2254

George H. W. Bush imposed economic sanctions prohibit-
ing unauthorized travel to Iraq and authorized the Trea-
sury Department’s Office of Foreign Assets Control
(“OFAC”) to promulgate regulations in accordance
with those executive orders. In 2003, Clancy traveled to
Iraq in violation of those regulations and was fined $8,000
by OFAC. Clancy challenged OFAC’s regulations on a
number of statutory and constitutional grounds, first in
a written submission to OFAC and then in federal court.
The district court granted summary judgment to the
defendants, and Clancy now repeats all of his arguments
on appeal. None has any merit.
  We first reject Clancy’s claim that he was fined without
due process. Clancy was given the opportunity to make a
written submission (which he did) and to contest OFAC’s
allegations regarding his unauthorized travel to Iraq
(which he did not). Because Clancy is unable to explain
how additional or substitute procedures would have
guarded against any risk of erroneous deprivation, we
are not convinced that additional procedures are con-
stitutionally required.
  Next, in light of Supreme Court case law regarding the
President’s power to impose economic sanctions and
international travel restrictions during national emergen-
cies, we are not persuaded that the regulations violate
Clancy’s Fifth Amendment right to travel or First Amend-
ment right to free speech. See Regan v. Wald, 

,
242 (1984); Haig v. Agee, 

, 309 (1981). We also
reject Clancy’s argument that the regulations are ultra
vires, as both the United Nations Participation Act and the
No. 07-2254                                               3

Iraq Sanctions Act authorized the President to impose
travel restrictions to Iraq. Nor does the International
Covenant on Civil and Political Rights, an international
agreement that does not address any right to travel that
might conflict with these regulations, provide any relief
for Clancy. And finally, we do not find arbitrary or capri-
cious OFAC’s interpretation of the word “services” to
encompass Clancy’s actions as a “human shield” in Iraq.
Therefore, we affirm the grant of summary judgment in
the defendants’ favor.


                   I. BACKGROUND
  In the summer of 1990, Iraq attacked Kuwait. Announc-
ing that the policies and actions of the Government of Iraq
constituted a threat to the national security and foreign
policy of the United States, President George H. W. Bush
declared a national emergency. Pursuant to his authority
under the International Emergency Economic Powers
Act, 50 U.S.C. § 1701 (“IEEPA”), President Bush imposed
unilateral economic sanctions that prohibited, inter alia,
the export of services to Iraq and all transactions relating
to travel to Iraq. See Exec. Order No. 12722, 55 Fed. Reg.
31803 (August 2, 1990). Shortly thereafter, the United
Nations Security Council adopted Resolution 661, which
called upon all states to prevent their nationals and any
persons within their territories from remitting any funds
to persons or bodies within Iraq. In accordance with that
resolution, President Bush issued Executive Order 12724
which, like Executive Order 12722, prohibited “[a]ny
transaction by a United States person relating to travel by
4                                               No. 07-2254

any United States citizen . . . to Iraq, or to activities by
any such person within Iraq.” Exec. Order No. 12724, 55
Fed. Reg. 33089 (August 9, 1990).
  A few months later, in November 1990, Congress passed
the Iraq Sanctions Act, which declared support for the
President’s actions and for “the imposition and enforce-
ment of multilateral sanctions against Iraq.” Iraq Sanctions
Act, Pub. L. 101-513 § 586, 104 Stat. 1979, 2047-48 (1990).
It directed the President to “continue to impose the
trade embargo and other economic sanctions with
respect to Iraq and Kuwait . . . pursuant to Executive
Orders Numbered 12724 and 12725 (August 9, 1990) and,
to the extent they are still in effect, Executive Orders
Numbered 12722 and 12723 (August 2, 1990).” 

authorized the Secretary of the Treasury
to take actions necessary to carry out the purposes of the
Orders. So the Treasury Department’s Office of Foreign
Assets Control (“OFAC”) promulgated regulations that
(in relevant part) restricted unauthorized trade,
transportation-related transactions, the exportation of
services, and financial transactions with Iraq. 31 C.F.R.
§§ 575.204-211; 31 C.F.R. §§ 575.702-704. Specifically,
the regulations prohibited any “U.S. person” (with the
exception of journalists and government officials) from
engaging in “any transaction relating to travel” to Iraq, and
also prohibited “the unauthorized payment by a U.S.
person of his or her own travel or living expenses to
or within Iraq.” 31 C.F.R. § 575.207. 31 C.F.R. § 575.205
provides that “no goods, technology . . . or services may be
exported from the United States [to Iraq].”
No. 07-2254                                               5

  The regulations cite several sources of authority, includ-
ing the Executive Orders, the IEEPA, and the United
Nations Participation Act, 22 U.S.C. § 287c(a) (“UNPA”).
We note that although the President eventually revoked
Executive Orders 12722 and 12724, the orders were in
effect at all times relevant to this case.
  Violations of these regulations are punishable by mone-
tary penalties. If OFAC has reasonable cause to believe
a person has violated these regulations, it must first
issue a “pre-penalty notice” stating the facts of the viola-
tion and notifying the person of her right to make a
written presentation as to why a monetary penalty
should not be imposed. 31 C.F.R. § 575.702. Any such
presentation “should contain responses to the allegations
in the pre-penalty notice and set forth the reasons why
the person believes the penalty should not be imposed
or, if imposed, why it should be in a lesser amount than
proposed.” 31 C.F.R. § 575.703. After considering the
relevant materials, OFAC notifies the person in writing
of its determination. 

  Clancy, an American citizen and resident of Wisconsin,
traveled to Iraq in violation of the regulations. According
to OFAC’s administrative record, he departed for Iraq on
January 28, 2003. He never sought authorization for his
travel. He went to protest the war and act as a “human
shield” for the “human shield movement,” which he had
discovered through its website, www.humanshields.org.
The goal of this organization was to prevent the United
States from bombing Iraq. While in Iraq, Clancy stayed
at the Andalus Apartments (a hotel in Baghdad, Iraq),
and at a food storage facility north of Baghdad.
6                                               No. 07-2254

  Clancy returned to the United States on March 7, 2003.
Upon his return, he was stopped and interviewed by a
United States customs official. (Clancy had declared on
his customs form that he had traveled to Iraq, and his
passport bore Iraqi stamps.) According to the report of
the customs official, Clancy told the customs official that
he traveled to Iraq to protest the war and act as a
human shield for the human shield movement, which
involved staying at food storage facilities and schools
in an attempt to deter the United States from bombing
those locations.
    A few weeks later, the United States invaded Iraq.
  On July 8, 2004, OFAC issued Clancy a Pre-Penalty
Notice (“PPN”) charging Clancy with the following
violations:
     On January 28, 2003, you departed the United
     States with an ultimate destination to Baghdad,
     Iraq. The cost of the transportation totaled £300,
     including ground transportation between Amman,
     Jordan and Baghdad. You arrived in Iraq on or
     around February 5, 2003, where you stayed in the
     Andalus Apartments, a hotel in Baghdad, and a
     food storage facility 30 to 40 minutes north of
     Baghdad. While in Iraq, you provided services by
     shielding Government of Iraq facilities from possi-
     ble U.S. military action. You returned to the
     United States on March 7, 2003.
  The PPN provided the various laws and regulations
that governed Clancy’s actions and informed him that he
could be assessed a civil penalty of $250,000 for each
No. 07-2254                                               7

violation. It informed Clancy that he had thirty days to
make a written presentation to OFAC responding to
the allegations in the PPN. The PPN was signed by
R. Richard Newcomb, a director of OFAC.
  With the assistance of counsel, Clancy submitted a
written presentation to OFAC on August 23, 2004. Clancy
declined to waive his Fifth Amendment privilege and
stated that for the purpose of his response only, he
would accept as true the allegations that he departed the
United States for Iraq on January 28, 2003, and that he
returned to the United States on March 7, 2003. He did not
admit or deny OFAC’s remaining allegations. Clancy
then made a lengthy legal argument challenging the
validity of the regulations and their application to him.
He did not dispute the allegation that he stayed at a
hotel in Baghdad and a food storage facility north of
Baghdad.
  OFAC issued a final penalty notice to Clancy, finding
that he had violated the regulations as set forth in the
PPN, and assessed a civil penalty of $8,000 for his “unau-
thorized travel to Iraq and exportation of services” because
“shielding a Government of Iraq (GOI) infrastructure
from possible U.S. military action constitutes services to
the GOI.” OFAC assessed a reduced penalty of $8,000
because this was Clancy’s first offense and because he
had submitted a written response. The notice was signed
by Robert W. Werner.
  Clancy filed suit in the Eastern District of Wisconsin
against OFAC and its Director, the Secretary of the Depart-
ment of the Treasury, and the Attorney General of the
8                                               No. 07-2254

United States. The defendants moved to dismiss Clancy’s
complaint and submitted a certified copy of the adminis-
trative record in OFAC’s case against Clancy. The district
court converted the motion to dismiss to a motion for
summary judgment on the administrative record and
gave parties the proper notice and time to respond to
the motion.
  The district court then granted summary judgment to
the defendants on all of Clancy’s claims. Clancy now
appeals from the entry of summary judgment against him.


                      II. ANALYSIS
  Summary judgment is appropriate only if “there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). We review the district court’s grant of summary
judgment de novo, construing all facts and inferences in
the light most favorable to the nonmoving party. Five
Points Road Joint Venture v. Johanns, 

, 1124
(7th Cir. 2008).
  We are guided by the Administrative Procedure Act,
5 U.S.C. § 706 (“APA”), which instructs us to set aside
agency action only if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the
law.” 5 U.S.C. § 706(2)(A). “[O]ur inquiry is ‘searching
and careful’ but ‘the ultimate standard of review is a
narrow one.’ ” Highway J Citizens Group v. Mineta, 

, 952-53 (7th Cir. 2003) (quoting Marsh v. Oregon Natural
Res. Council, 

, 378 (1989)). We must “consider
No. 07-2254                                              9

whether the [agency’s] decision was based on a consider-
ation of the relevant factors and whether there has been
a clear error of judgment” but we may not substitute
our judgment for that of the agency. Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

, 42-43 (1983).


 A. Due Process
  Clancy argues that he was deprived of property without
receiving adequate process. Specifically, he claims that
he should have been afforded discovery, a hearing, an
opportunity to call and cross-examine witnesses, and a
“neutral decision maker” before OFAC assessed its fine
of $8,000.
  The government may not deprive a person of life, liberty,
or property without due process of law. U.S. Const. amend.
XIV, § 1. To succeed on a procedural due process claim,
a plaintiff must demonstrate a cognizable property
interest, a deprivation of that property interest, and a
denial of due process. Hudson v. City of Chicago, 

, 559 (7th Cir. 2004). The defendants do not con-
test that Clancy has an interest in his money so the
only question before us is whether the procedural safe-
guards established by OFAC are sufficient to protect that
interest.
  The fundamental requirement of due process is “the
opportunity to be heard at a meaningful time and in a
meaningful manner.” Mathews v. Eldridge, 

,
333 (1976). We apply the Mathews test when determining
10                                                No. 07-2254

what procedures are necessary to ensure that a citizen
is not deprived of property without due process of law.
That requires us to balance:
     [f]irst, the private interest that will be affected by
     the official action; second, the risk of an erroneous
     deprivation of such interest through the proce-
     dures used and the probable value, if any, of
     additional or substitute procedural safeguards; and
     finally, the Government’s interest, including the
     function involved and the fiscal and administra-
     tive burdens that the additional or substitute
     procedural requirement would entail.

deprivation of property requires the
full arsenal of available procedural safeguards. See Dixon
v. Love, 

, 115 (1977) (“[P]rocedural due
process in the administrative setting does not always
require application of the judicial model.”). “Due Process
‘is not a technical conception with a fixed content unre-
lated to time, place[,] and circumstances[;]’ instead, it ‘is
flexible and calls for such procedural protections as the
particular situation demands.’ ” 

(quoting 

) (alterations in original).
The relevant inquiry is not what additional procedures
might be helpful but whether the existing procedures are
constitutionally defective because they present an unrea-
sonable risk of an erroneous deprivation of the private
interest, in light of the particular situation (the govern-
ment’s interest and the probable value of additional
safeguards).
No. 07-2254                                                11

  Prior to assessing its penalty, OFAC provided Clancy
with a PPN that described its reasons for believing Clancy
had violated the Iraq Sanctions regulations. The PPN
notified Clancy of his right to make a written presenta-
tion to OFAC responding to the allegations in the PPN.
Clancy responded with a lengthy submission. Consider-
ation of the procedures afforded by the regulations in
light of the Mathews factors leads us to conclude that
those procedures did not deprive Clancy of his right to
due process.
  The private interest affected by OFAC’s actions in this
case is a monetary interest, the $8,000 fine imposed by
OFAC for violation of the regulations. We do not belittle
the amount of the fine but we note that such a property
interest is less significant than the loss of a job, Cleveland
Bd. of Educ. v. Loudermill, 

, 543 (1985), or the
means of a person’s livelihood, Goldberg v. Kelly, 

, 264 (1970). Indeed, to the extent that the fine
works a great hardship on certain persons, such
travelers remain free to first seek approval by OFAC
before traveling, thereby avoiding the fine altogether. Cf.

(“While a fired worker may
find employment elsewhere, doing so will take some
time and is likely to be burdened by the questionable
circumstances under which he left his previous job.”).
  We turn to the risk of erroneous deprivation and the
value of additional safeguards. The risk of erroneous
deprivation arises from a potential mistake of fact. That is,
OFAC might accuse a person of traveling to Iraq when
in fact he did not, or assess a fine when the traveler is a
12                                              No. 07-2254

journalist and exempted from the regulations. An appro-
priate procedure for dealing with this risk is
exactly what OFAC provides–pre-penalty notice of the
basis for its charge, the underlying facts, and an opportu-
nity to respond. See, e.g., 

(holding
that officers must be given an opportunity to explain
their sides of the story before being terminated to avoid
mistakes).
  Although a hearing might be helpful if there are
material facts in dispute, Clancy does not now, nor did he
before OFAC, challenge OFAC’s allegations that he
traveled to Iraq in 2003 in violation of the regulations. He
does not identify any material factual disputes that could
have been resolved by an evidentiary hearing or cross-
examination of witnesses. See, e.g., Wozniak v. Conry, 

, 890 (7th Cir. 2001) (“[E]ven for the most impor-
tant decisions, an evidentiary hearing is required only if
there are material factual disputes.”). Nor does he demon-
strate how pre-penalty discovery would have allowed
him to better defend himself against OFAC’s allegations.
Indeed, we note that despite having had a chance to
examine OFAC’s administrative record, Clancy has not
challenged OFAC’s factual determinations in the
district court or on appeal.
   Instead of raising factual disputes or circumstances that,
if considered by OFAC in a hearing, might plausibly have
provided relief from this fine, Clancy argues that addi-
tional process would have allowed him the opportunity to
develop and assert affirmative defenses. He also insists
that “the absence of a neutral fact-finder presiding over an
No. 07-2254                                             13

oral hearing where evidence could be presented and
witnesses examined and cross-examined created an
unacceptable risk that [OFAC’s] mitigating factors and
aggravating factors were applied arbitrarily, incorrectly,
or inconsistently.” Finally, he contends that additional
process would have allowed him to challenge the ap-
plication of 31 C.F.R. § 575.205 to his action as a “human
shield.” We find these arguments unconvincing.
  First, Clancy does not elaborate on whether his so-called
affirmative defenses are viable (or even what they are),
what mitigating factors a fact-finder should have con-
sidered, or, importantly, how any of those things might
have resulted in a reduced fine (or no fine) for Clancy.
Although the right to additional procedural protections
does not depend on a demonstration of “certain success,”
the deprivation must involve “arguable issues” that
plausibly would have prevented an erroneous depriva-
tion. 

. Clancy simply has not
shown that here. Nor has Clancy raised evidentiary
disputes that might require a “neutral fact-finder.” We
therefore are not persuaded that Clancy’s vague and
hypothetical arguments justify imposing additional
procedural burdens on the government. See also Karpova
v. Snow, 

, 270-71 (2d Cir. 2007) (concluding
the Iraq Sanction regulations did not violate due process
rights where the plaintiff presented no disputed facts
and where different directors signed the pre-penalty
notice and the final penalty notice).
  What remains of Clancy’s argument is that he was
denied the ability to orally challenge the validity and
14                                               No. 07-2254

application of the regulations.1 See Appellant Br. 14 (“An
oral hearing is particularly important in this case
because Clancy claims that OFAC has misinterpreted its
statutory authority.”). Clancy’s arguments do not turn on
disputed facts but rather concern the legal implications
of Clancy’s travel to Iraq. That is not something that
requires pre-penalty discovery or an evidentiary hearing.
See, e.g., 

n. 8 (noting that a
person may not “insist on a hearing in order to argue
that the decisionmaker should be lenient and depart from
legal requirements”); 

(additional
procedures were not necessary before taking away the
plaintiff’s driver’s license where factual basis for revoca-
tion was undisputed, and licensee was seeking “only to
argue that the Secretary should show leniency and
depart from his own regulations”). In any event, Clancy
was able to make these arguments to OFAC in his re-
sponse. That OFAC rejected his arguments does not
mean Clancy did not receive adequate process.
  Turning to the third Mathews factor, we do not think the
monetary fine is significant enough to impose an addi-
tional procedural burden on the government in light of
the government’s interests in enforcing its national
security interests and administrative efficiency. Because
Clancy has not succeeded in explaining how any addi-


1
   The arguments, challenging the validity of the regulations,
OFAC’s authority to restrict travel to Iraq, and raising con-
stitutional concerns such as Clancy’s First Amendment and
due process rights, are nearly identical to the arguments he
made before the district court and on this appeal.
No. 07-2254                                              15

tional procedures would hedge against erroneous action,
we are not convinced that such procedures are constitu-
tionally required.


  B. Validity of the Regulations
  Clancy challenges the regulations on a number of
statutory and constitutional grounds. None has any
merit. We begin by clarifying a factual issue. Clancy
insists that his travel to Iraq did not financially benefit
Iraq and, therefore, is not sanctionable as an “economic”
activity. But he provides no evidence supporting that
claim or, more importantly, refuting OFAC’s contention
that he spent money traveling to, and within, Iraq. There-
fore, to the extent that there is any meaningful difference
between travel to Iraq that financially benefits Iraq and
travel that does not, we find it irrelevant to this case.


    1.   Statutory Authority for the Regulations
  Clancy claims the regulations are invalid because they
are “ultra vires” and outside legal authority. Specifically,
Clancy claims OFAC did not have the authority to ban
travel to Iraq.
  The regulations were promulgated pursuant to several
sources of authority, including (in addition to the several
Executive Orders mentioned above) the International
Emergency Economic Powers Act, 50 U.S.C. § 1701
(“IEEPA”) and the United Nations Participation Act, 22
U.S.C. § 287c(a) (“UNPA”). Additionally, Congress ap-
16                                               No. 07-2254

proved of Executive Orders 12722 and 12724 and directed
the President to “continue to impose” economic sanctions
in the Iraq Sanctions Act of 1990. Although all of these
statutes allow the President to impose economic sanc-
tions during a national emergency, the defendants princi-
pally rely on the UNPA and the Iraq Sanctions Act
as authorization for the regulations.
  The UNPA provides, in relevant part, that the President
may “prohibit in whole or in part, economic relations or
rail, sea, air, postal, telegraphic, radio, and other means
of communication” with another country in order to
comply with United Nations directives. 22 U.S.C. § 287c(a).
It is beyond dispute that in August 1990, the United
Nations Security Council adopted Resolution 661, which
called upon all states to prevent their nationals and any
persons within their territories from remitting any
funds to persons or bodies within Iraq. Pursuant to this
Resolution, President Bush issued Executive Order 12724
prohibiting transactions relating to travel to Iraq. The
UNPA provided the President with the authority to
restrict travel to Iraq as an economic sanction. See also

(“swiftly reject[ing]” argument
that the Iraq Sanctions regulations exceed the authority
Congress gave to the President); Sacks v. Office of Foreign
Assets Control, 

, 776 (9th Cir. 2006) (recognizing
that the UNPA authorizes the President to take
measures such as limiting air travel when enforcing a
UN Security Council resolution).
  Clancy contends that his travel to Iraq did not bestow
an economic benefit on Iraq and therefore does not fall
No. 07-2254                                            17

within the purview of these statutes, which regulate
“economic” transactions. We do not agree. Travel restric-
tions are meant to stem the flow of currency into a
country that, in the opinion of the President, constitutes
a threat to our national security. See Regan v. Wald, 

, 243 (1984). And, as discussed above, Clancy
never refuted OFAC’s allegation that he spent money
in Iraq.
  Clancy’s argument that OFAC, acting under the direc-
tion of the President, does not have the authority to ban
travel to Iraq ignores the “plain meaning” of the Iraq
Sanctions Act, which references and approves of “eco-
nomic sanctions with respect to Iraq and Kuwait . . .,
pursuant to Executive Orders Numbered 12724.” Executive
Order 12724 prohibits, as an economic sanction, “Any
transaction by a United States person relating to travel
by any United States citizen or permanent resident alien
to Iraq, or to activities by any such person within Iraq”
and “Any transaction by a United States person relating
to transportation to or from Iraq.” Exec. Order No.
12724, 55 Fed. Reg. 33089 (August 9, 1990). See Khan v.
United States, 

, 554 (7th Cir. 2008) (“If the
plain meaning of [statutory] text either supports or op-
poses the regulation, then we stop our analysis and either
strike or validate the regulation.”). Additionally, the
UNPA enables the President to impose economic sanc-
tions. We see no reason why Clancy’s actions, which
involved transportation to Iraq, are not covered by these
statutes.
  Because we find the regulations were a proper exercise
of OFAC’s authority under the UNPA and the Iraq Sanc-
18                                             No. 07-2254

tions Act, we need not address Clancy’s argument that
IEEPA unconstitutionally delegated authority to the
President. See also 

(regulations
promulgated pursuant to the IEEPA and the Trading
with the Enemy Act were constitutional); Zemel v. Rusk,

, 18 (1965) (act giving Secretary of State the
power to grant and issue passports did not constitute an
invalid delegation of power).


     2.   Conflict with international law
  Next, Clancy claims that the regulations violate interna-
tional law. According to Clancy, the regulations violate
the International Covenant on Civil and Political Rights
(“ICCPR”). As is the case with all of his arguments, Clancy
fails to advance any meaningful explanation for this
argument or to provide relevant authority in support
of this claim.
  As an initial matter, we fail to see how the agreement
helps Clancy. Clancy directs us to Section 12 of the ICCPR,
which states: (1) “Everyone lawfully within the territory
of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence”
(emphasis added) and (2) “Everyone shall be free to leave
any country, including his own.” Clancy does not make
clear how the regulations, which neither restrict Clancy’s
ability to travel within the United States, nor prohibit
him from leaving the United States, are in conflict with
this agreement. In any event, the ICCPR is an international
agreement that was ratified by the United States “on the
express understanding that it was not self-executing and
No. 07-2254                                              19

so did not itself create obligations enforceable in the
federal courts.” Sosa v. Alvarez-Machain, 

, 692
(2004).


    3.   Right to Travel
  Clancy argues that the regulations are invalid because
they restrict his right to international travel, which he
maintains is a constitutionally protected right. The
freedom to travel outside the United States, unlike the
“right” to travel within the United States, is “no more
than an aspect of liberty protected by the Due Process
Clause.” Haig v. Agee, 

, 306 (1981). The
Supreme Court affords great deference to restrictions
on international travel so long as they are justified by a
rational foreign policy consideration. See 

(regulations restricting travel to Cuba justified by
foreign policy concerns); see also Freedom to Travel
Campaign v. Newcomb, 

, 1439 (9th Cir. 1996)
(“Given the lesser importance of this freedom to travel
abroad, the Government need only advance a rational, or
at most an important, reason for imposing the ban.”).
Responding to challenges similar to those brought by
Clancy, the Supreme Court held that the Fifth Amend-
ment right to travel, standing alone, is insufficient to
overcome the foreign policy considerations justifying
restrictions on travel to Cuba. 

; see
also 

(upholding refusal by Secretary
of State to validate the passports of United States citizens
for travel to Cuba).
20                                               No. 07-2254

  These regulations were issued pursuant to President
Bush’s declaration of a national emergency with respect
to Iraq, and were imposed to ensure that no benefit
from the United States flowed to the Government of Iraq.
55 Fed. Reg. 31,803 (1990). We see no reason (and Clancy
provides none) to find that these considerations are
insufficient to justify the travel restriction imposed by
the regulations. See also 

(travel
restriction imposed by the Iraq Sanctions regulations
does not violate liberty interest under the Fifth Amend-
ment).
  Clancy responds that even if general travel restrictions
are constitutional, this one is invalid because it is selec-
tively enforced. It is true that government efforts to
selectively restrict travel based on “the basis of political
belief or affiliation” are not entitled to the same judicial
deference as general bans on travel. See Aptheker v. Sec’y
of State, 

, 514 (1964) (rejecting Congress’s
attempt to deny passports on the basis of an affiliation
with the Communist Party); Kent v. Dulles, 

, 130
(1958) (Secretary of State did not have authority to
inquire about affiliation with Communist Party before
issuing passports). But the Supreme Court has distin-
guished “general bans on travel” that are imposed because
of foreign policy considerations affecting all citizens from
selective travel restrictions. 

(distin-
guishing Kent and Aptheker on the ground that the “Secre-
tary of State . . . made no effort selectively to deny pass-
ports on the basis of political belief or affiliation, but
simply imposed a general ban on travel to Cuba following
No. 07-2254                                                21

the break in diplomatic and consular relations with that
country in 1961.”). The regulations here do not discrimi-
nate among people based on their political affiliation.
Rather, they impose a “general ban” on travel to Iraq
based on foreign policy considerations affecting all
citizens. See 

. Clancy provides no
evidentiary support for his contention that the govern-
ment selectively enforces these regulations to penalize
only those who speak out publicly to oppose American
policies in Iraq.2


    4.   First Amendment Rights
  Clancy’s challenge to the regulations on First Amend-
ment grounds faces the same hurdle as his Fifth Amend-
ment right to travel claim. The Supreme Court has held
that governmental restrictions on international travel
inhibit action rather than speech. See 

(“To the extent the revocation of [a] passport operates to
inhibit Agee, ‘it is an inhibition of action,’ rather than of
speech.”) (quoting 

) (emphasis
in original).
  Clancy attempts to distinguish Zemel on the basis of
his motivation to travel. The plaintiff in Zemel wanted to



2
  Clancy complains that he was denied the opportunity to
conduct discovery (he filed a motion seeking discovery related
to his selective enforcement claims, and defendants re-
sponded with a motion for a protective order, the latter of
which was granted by the court), but he does not appeal the
district court’s discovery ruling.
22                                              No. 07-2254

travel to Cuba to learn more about the state of affairs in
Cuba whereas Clancy maintains he traveled to Iraq to
express his belief in peace and his protest against govern-
ment action that would harm innocent Iraqi citizens.
This distinction is one without meaning; the Court has
“rejected the view that conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends
thereby to express an idea.” Rumsfeld v. Forum for Academic
and Institutional Rights, Inc., 

, 65-66 (2006)
(quoting United States v. O’Brien, 

, 376 (1968)
(internal quotation marks omitted)).
   Clancy maintains that his travel was “manifestly sym-
bolic” and therefore protected by the First Amendment,
which extends to symbolic conduct. But the First Amend-
ment protects only conduct that is “inherently expressive,”
Forum for Academic and Institutional Rights, 

, and we do not agree that Clancy’s travel to Iraq
is “inherently expressive.” A person observing Clancy’s
travels to Iraq would have no way of knowing what
message he intended to express unless Clancy explained
it using speech. Compare, e.g., Texas v. Johnson, 

, 406 (1989) (burning the American flag is expressive
conduct). This is strong evidence that international
travel itself is not inherently expressive. See Forum for
Academic and Institutional Rights, 

(“If
combining speech and conduct were enough to create
expressive conduct, a regulated party could always
transform conduct into ‘speech’ simply by talking
about it.”).
No. 07-2254                                                    23

  C. Definition of “Services” in 31 C.F.R. § 575.205
  Finally, Clancy challenges OFAC’s interpretation of the
word “services” in 31 C.F.R. § 575.205. Specifically, he
maintains that the action of serving as a “human shield” in
Iraq provided no economic benefit to Iraq and, therefore,
he could not have provided a service. We give substan-
tial deference to an agency’s interpretation of its own
regulations “unless an ‘alternative reading is compelled
by the regulation’s plain language or by other indications
of the Secretary’s intent at the time of the regulation’s
promulgation.’ ” Thomas Jefferson Univ. v. Shalala, 

, 512 (1994) (quoting Gardebring v. Jenkins, 

,
430 (1988)).
  The regulation states, in relevant part:
    Except as otherwise authorized, no goods, technol-
    ogy (including technical data or other information),
    or services may be exported from the United
    States, or, if subject to U.S. jurisdiction, exported or
    reexported from a third country to Iraq, to any
    entity owned or controlled by the Government of
    Iraq, or to any entity operated from Iraq, except
    donated foodstuffs in humanitarian circum-
    stances, and donated supplies intended strictly
    for medical purposes, the exportation of which
    has been specifically licensed pursuant to
    § 575.507, 575.517 or 575.518.
31 C.F.R. § 575.205.
  We begin with the allegation against Clancy that he
attempted to shield infrastructures in Iraq from possible
24                                             No. 07-2254

U.S. military action. It was not arbitrary and capricious
for OFAC to determine that Clancy traveled to Iraq to act
as a “human shield” for Iraq. Clancy’s own admission
to the customs official upon his return from Iraq indicated
he had gone to act as a human shield and had stayed at
a hotel and a food storage facility to prevent the
United States from bombing those buildings.
  The regulation does not define “services” so the defen-
dants rely on dictionaries to supply the word’s ordinary
meaning. Webster’s Dictionary defines “service” as “an
act of helpful activity; help; aid.” Webster’s College
Dictionary (2d ed. 1997). The purpose of being a human
shield is to confer, or attempt to confer, a benefit on a
country, namely not being bombed. The defendants’
position is that Clancy’s actions might have conferred
an economic benefit on persons or entities in Iraq, and
therefore provided a service to Iraq. Clancy responds that
he provided no economic benefit to Iraq and therefore
did not provide a service. We acknowledge that the
record does not demonstrate that the United States even
knew of, much less delayed or halted its bombing of Iraq,
as a result of Clancy’s presence in Iraq. And clearly
Clancy’s efforts to prevent the bombing of Iraq were
futile. However, Clancy provides no support for his
proposition that Iraq must have realized an economic
benefit from his actions before OFAC could characterize
his actions as a “service.” It was not unreasonable for
OFAC to decide that acting as a human shield provides
a “service” in violation of the regulation.
  Nor does OFAC’s interpretation that the word “services”
applied to Clancy’s actions exceed its authority under the
No. 07-2254                                                   25

governing statutes. Clancy does not argue that the
statutes prohibit OFAC from regulating services to Iraq
but contends instead that OFAC is allowed only to
regulate economic services. As discussed above, however,
OFAC’s determination that Clancy’s act as a human
shield constituted a service that might have conferred
an economic benefit to Iraq was not arbitrary or capri-
cious. The statutes do not define “services” in a way that
compels the opposite result.
   Clancy alternatively argues that the term “services” in
the regulations is void for vagueness under the Fifth
Amendment. The district court did not reach this issue,
however, because Clancy raised the argument for the
first time in summary judgment. His complaint makes no
mention of this claim and we do not think the district
court abused its discretion in rejecting the claim. See
Conner v. Ill. Dep’t of Natural Res., 

, 679 (7th Cir.
2005).


                     III. CONCLUSION
  The judgment of the district court is A FFIRMED.




                             3-11-09