U.S. Government Illegally Censoring Speech At Border, Groups Tell Court

The New York Civil Liberties Union and the American Civil Liberties Union today filed a new motion in federal court seeking to strike down a provision of the Patriot Act that allows the United States government to deny entry to foreign scholars because of their political views. The law, known as the “ideological exclusion” provision, violates the right of Americans to hear constitutionally protected speech, charged the NYCLU and the ACLU.

Today’s motion comes in a lawsuit filed in January 2006 by the NYCLU and the ACLU on behalf of the American Academy of Religion, the American Association of University Professors and PEN American Center.

“The administration is using the immigration laws to stifle speech that is a legitimate and critically necessary part of political and academic debate,” said Jameel Jaffer, Deputy Director of the ACLU’s National Security Program and lead attorney in the case. “It is frankly absurd that foreign scholars are being barred from the country simply because they have criticized U.S. policies in Latin America or the Middle East or taken other political positions that the Bush administration disfavors.”

The groups say that the ideological exclusion provision violates the First Amendment rights of Americans by preventing them from engaging in face-to-face dialogue and debate with foreign scholars whose speech the government disfavors. While the provision is nominally aimed at those who “espouse or endorse terrorist activity,” the provision’s terms are vague, sweeping and manipulable and could readily be used to exclude foreign scholars who study controversial matters such as terrorism and the concept of “jihad” in Islam, according to the NYCLU and the ACLU. In fact, the State Department’s Foreign Affairs Manual interprets the provision to apply to those foreign nationals who have voiced “irresponsible expressions of opinion.”

The groups are asking the court to declare that the provision is unconstitutional, and are also asking the court to end the government’s continued refusal to allow Swiss scholar Tariq Ramadan to return to the United States. The government referenced the provision in 2004 to explain its revocation of a visa that would have permitted Ramadan to take up a tenured teaching post at the University of Notre Dame. When challenged in court, government attorneys failed to produce any evidence showing that Ramadan had endorsed terrorism, and during the course of litigation they abandoned the allegation altogether.

“It is a devastating blow to the First Amendment when the government is allowed to bar foreign nationals based solely on ideological grounds,” said Arthur Eisenberg, Legal Director of the NYCLU. “The free exchange of ideas is a bedrock principle in the United States that needs to be protected from government officials who seek to suppress unpopular views.”

The United States government now claims that Ramadan cannot enter the country because he donated small amounts of money between 1998 and 2002 to French and Swiss organizations that provide humanitarian aid to Palestinians. Although the organizations are legitimate charities in Europe, in 2003 – after Ramadan’s last donation – the Bush administration added the groups to a blacklist because they allegedly provide “material support” to Hamas. The government is now barring Ramadan from the country on the basis of donations that were completely permissible at the time they were made.

“The government’s determination to keep Tariq Ramadan from debating his views face-to-face in this country strikes at the heart of PEN’s efforts and those of other organizations to foster a genuine dialogue across cultural borders,” said Michael Roberts, Executive Director of PEN American Center. “We hope the court will recognize how inimical this is to our national interests and how profoundly contrary to core American principles.”

AAUP President Cary Nelson added, “Ramadan is a brilliant, complex thinker and is a perfect example of the sort of scholar we should welcome, not exclude. When the academic community and all Americans are denied the opportunity to hear and engage with such scholars, academic freedom and the freedoms of the First Amendment are seriously compromised.”

In recent months, the government has barred numerous foreign scholars and activists from the country on apparently ideological grounds. Those who have been excluded include Waskar Ari, a Bolivian historian who had been offered a teaching position at the University of Nebraska; Yoannis Milios, a Greek economist who had been invited to present a paper at the University of New York at Stonybrook; and Adam Habib, a South African human rights activist who had been invited to meet with officials from the World Bank and the National Institute of Health.

The case is AAR v. Chertoff and is in United States District Court for the Southern District of New York. In addition to Jaffer and Eisenberg, attorneys in the case are Melissa Goodman, Lucas Guttentag and Judy Rabinovitz of the ACLU, and New York immigration lawyer Claudia Slovinsky. The lawsuit was brought against Department of Homeland Security Secretary Michael Chertoff and Secretary of State Condoleezza Rice.

The legal documents filed in the case are available at www.aclu.org/safefree/general/ 26133res20060712.html. More information on ideological exclusion is online at www.aclu.org/exclusion.