Suppressing Outside Ideas

Suppressing Outside Ideas

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on June 10, 2009. Graham Greene, Pierre Trudeau, Tariq Ramadan, and Adam Habib — what do they have in common? They are scholars and writers whom the United States barred from entering the country. You may recognize Greene as a British novelist and Trudeau as the flashy Canadian Prime Minister. Both were suspected of being Communists and ensnared by the now-repealed McCarren-Walter Act. Ramadan is a leading European thinker on Muslim identity and democracy and Islam. In 2004 Notre Dame offered him a tenured position as a professor of religion. Habib is a world-renowned South African researcher, scholar, and political commentator on democracy, governance, and race. Several organizations, including the American Sociological Association, had invited him to speak at their events in 2007. Both were prepared to visit the United States until the government denied them visas at the last minute on the grounds that they “engaged in terrorist activities.” It so happens that Ramadan and Habib were highly critical of President Bush’s foreign policy, notably the war on Iraq. They have also condemned terrorism. Both had visited the United States in the past without incident. Believing that the government was blackballing them because of their political beliefs, Ramadan and Habib sued. Joining them as plaintiffs were various organizations who wanted to hear and interact with the scholars. The organizational plaintiffs alleged that their First Amendment rights were violated. The government’s main defense was the doctrine of consular nonreviewability. An alien denied a visa cannot have that determination reviewed by a court. Congress has the exclusive power to set the “terms and conditions for the admission of aliens.” While it has adopted various statutes on the subject, all are silent on the judicial review of a decision to issue or withhold a visa. Further underlying the unwillingness of the courts to get involved is the notion that the decisions are essentially “political” in nature. The Supreme Court has added a qualifier to the doctrine. The decision to deny a visa must be made “on the basis of a facially legitimate and bonafide reason.” Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). The alien denied the visa may not question the basis. However, a person within the United States wanting to hear the speech of the alien may raise the issue in court. What is “a facially legitimate and bonafide reason?” The Supreme Court has not said. The Circuit Courts have shed some light. Not wanting the widow of Salvador Allende to speak on conditions in Chile for fear that her lectures might jeopardize sensitive arms negotiations with the Soviet Union was an insufficient reason. Mrs. Allende’s speech activities were protected by a federal statute. Allende v. Schultz, 845 F.2d 1111(1st. Cir. 1988). On the other hand, Gerry Adams of Sinn Fein could be excluded because the State Department had evidence “upon which it could reasonably find that (he) participated in terrorist activities.” Terrorism is not a protected activity. Adams v. Baker, 909 F.2d 643, 648 (1st. Cir. 1990). What did the State Department have on Ramadan? Between 1998 and 2002 he donated $940 to two Swiss charities that aided Palestinians. In 2003 the State Department blacklisted the charities because they allegedly provided “material support” to Hamas, a terrorist organization. The district court held that the donations were a legitimate reason for Ramadan’s exclusion. The donations were not related to his speech. The making of donations is not a protected activity. There is an exception if Ramadan, really the organizations, could prove, by clear and convincing evidence, that he was not aware of the charities’ ties to Hamas at the time that he made the donations. This the plaintiffs could not do. His disavowals were not enough. An opinion of an expert that the average donor could not have discerned the connection at that time was also not enough. The court admitted that the plaintiffs had to prove a negative but that was the “heavy burden” imposed on them by Congress. Am. Acad. of Religion v. Chertoff, 2007 WL 4527504 (S.D.N.Y. 2007). The plaintiffs are appealing the decision with the assistance of the NYCLU. Habib fared better in court because the government did not give any reason for his exclusion other than a citation to the statute disqualifying a visa applicant “who has engaged in terrorist activities.” The court reminded the government that it must give a reason and that the court had the power to review the legitimacy of the reason. Now the case is proceeding to discovery. Am. Sociological Asso. v. Chertoff, 07-cv-11796-GAO (D. MA 2008). President Obama should disavow the practice of excluding persons on the basis of what they belief or say. To demonstrate his commitment he should discontinue the defense of the lawsuits brought by Ramadan and Habib and issue them visas. He will then send a message that his administration will promote the free flow of ideas, even critical ones, across our borders.