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The New McCarthyism?

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In January 2004, Tariq Ramadan, a Swiss professor of Muslim studies and visiting fellow at St. Antony’s College at the University of Oxford, was offered a tenured position as a professor of religion, conflict and peacebuilding at the University of Notre Dame. He applied for and received a visa to come to the United States that May. But just nine days before the 44-year-old academic and his family were to move to Indiana, Ramadan was informed by the United States Embassy in Switzerland that his visa had been revoked.

At a press conference on August 25, a spokesman for the Immigration and Customs Enforcement division of the Department of Homeland Security said that Ramadan’s visa had been revoked based on a part of the USA Patriot Act that allows the government to exclude those who have “endorsed or espoused” terrorism.

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Immigration.jpg

Illustration by: Matt Mahurin

Ramadan and his supporters insist in a lawsuit that the scholar and writer “does not endorse, espouse, or persuade others to support terrorism.” On the contrary, they say, Ramadan, who has published 20 books and more than 700 articles on such topics as Muslim identity, democracy, human rights and Islam, “has been a consistent and vocal critic both of terrorism and those who use it.” What’s more, the ACLU, The Pen American Center, American Academy of Religion and others that filed suit on Ramadan’s behalf claim that the “endorse or espouse” provision of the Patriot Act is unconstitutional because it is vague and easily manipulated, effectively excluding foreigners from visiting the United States based purely on their politics. They cite a State Department Foreign Affairs manual says the provision is aimed at those who have voiced “irresponsible expressions of opinion.”

After the groups filed their lawsuit, the government changed its explanation of why it was denying Ramadan entry. Beginning in September 2006, the official explanation was that Ramadan, a devout Muslim, was excluded because between 1998 and 2002 he had made donations totalling just over $1,300 to a Swiss charity that provides aid to Palestinians. Although considered a legitimate charity in Europe, since Ramadan made his donations the group has been deemed “a designated terrorist organization” by the United States because it supposedly gave money to Hamas. Under the Immigration and Nationality Act, modified in 2005 by the REAL ID Act, the U.S. government may exclude anyone who has given money to a terrorist organization.

Ramadan, for his part, insists that when he made the donations to the Association de Secours Palestinien he had no idea the group was supporting Hamas. After all, the United States had not yet blacklisted the organization. He even submitted to the court an affidavit of an expert testifying that someone in his position would have had no reason to know that the group supported Hamas before the United States determined that it did in 2005.

No matter. The United States government maintains that Ramadan is still excludable.

In December 2007, a federal district court agreed. Although acknowledging that the law imposes a “heavy burden” by requring Ramadan to prove a negative, Ramadan still has no grounds to complain, for the power to grant entry to a foreign national lies exclusively with Congress and the Immigration authorities. “It is the Court’s role to interpret the language of the statute as written by Congress, not to question Congress’ wisdom in drawing the line where it did. Congress has decided to make the alien’s burden a high one, and it was well within its power to do so.”

On Tuesday, the ACLU will argue otherwise to a federal appeals court in New York. The group’s lawyers claim that the “endorse or espouse” provision that the government initially relied on to deny Ramadan entry is unconstitutional, because it excludes him based on his political opinions, amounting to “ideological exclusion.” Although foreigners have no right to enter the United States, their claim is that this violates the First Amendment rights of people in the United States — like the groups suing on his behalf — to hear a broad range of political opinions.

As for the provision of the REAL ID Act that denies entry to anyone supporting terrorists, they argue that it cannot be interpreted to deny someone entry if they donated money before the group was deemed a terrorist organization, and the government has provided no evidence that the donor knew or had reason to know that it would be.

“While the government has an interest in excluding people who present a threat to the country, it doesn’t have any legitimate interest in excluding foreign nationals simply because of their political views,” said Jameel Jaffer, Director of the ACLU’s National Security Program. “The Bush administration was wrong to revive this Cold War practice, and the Obama administration should not defend it.”

The government has confirmed, responding to a 2005 Freedom of Information Act request and lawsuit filed by the ACLU, that as of mid-2007, at least 11 people have been barred from entering the United States based on the “endorse or espouse” provision of the Patriot Act.

That likely “under-represents the full spectrum of how the government uses the provision,” said Melissa Goodman, a staff attorney with the ACLU’s National Security project, because it does not include visas that the government has “prudentially revoked” under the provision — in other words, where it hasn’t made a final determination. “Many scholars, writers, and activists have been barred through these kind of limbo-land “prudential revocations” over the last eight years,” said Goodman. What’s more, the government doesn’t actually have to tell visa applicants that they’re being barred under the “endorse or espouse” provision. “When the government bars someone on terrorism grounds, the agency is not required to provide the foreign national with notice of the specific provision the government is relying on,” said Goodman. “So people may be barred under the “endorse or espouse” provision without ever knowing that is the government’s reason.”

Still, the government argues that, as in many other situations involving claims of national security, the courts have little role in reviewing the decisions of the executive branch – in this case, the immigration authorities. The authority to exclude aliens, write the government lawyers in their brief, “has long been recognized as a core sovereign function central to national security and foreign relations, reserved exclusively for the political branches, and immune from judicial intervention. Indeed, the Supreme Court has repeatedly rejected challenges to statutes that render aliens inadmissible because of their prior advocacy, views, or memberships, notwithstanding objections—like plaintiffs’ here—that such exclusions violate the First Amendment.”

Although the government’s brief was written last year, the Obama administration so far has not changed the government’s position in the case.

Dozens of scholars, lawyers, religious groups and civil liberties advocates are not satisifed with the government’s response. They’re now urging the Obama administration, whose Department of Homeland Security makes these decisions – to stop denying entry to people on ideological grounds.

In a letter sent last week to Attorney General Eric Holder, Secretary of State Hillary Clinton and Department of Homeland Security Secretary Janet Napolitano, The American Immigration Lawyers Association, the Society of American Law Teachers, the Constitution Project and more than 70 other legal, civil rights and human rights organizations urged the Obama administration to stop denying foreign scholars, artists, and activists visas on the basis of their political views and associations.

Dozens of prominent intellectuals, they wrote, have been unable to teach at U.S. universities, address U.S. audiences or even attend academic conferences. Most have been critical of U.S. foreign policy.

Such “ideological exclusion” dates back to the Cold War, the groups note, when the United States refused entry to leading scholars, writers and activists, including Colombian novelist Gabriel García Márquez, Palestinian poet Mahmoud Darwish, Chilean poet Pablo Neruda, Italian playwright Dario Fo, British novelist Doris Lessing and Canadian writer and environmentalist Farley Mowat.

While civil rights groups think that’s a historical embarassment, some conservative groups think such exclusion is a good thing. The restrictionist Center for Immigration Studies strongly supports ideological exclusion, for example, as does conservative columnist Michelle Malkin, who has also defended the United States’ internment of the Japanese during World War II. “The Japanese espionage network and the Islamic terrorist network exploited many of the same immigration loopholes and relied on many of the same institutions to enter the country and insinuate themselves into the American mainstream,” she writes in her book, “In Defense of Internment: The Case for ‘Racial Profiling’ in World War II and the War on Terror.”

The more than 70 groups who wrote to the Obama administration last week, however, asked the government to use its discretion more carefully, to deny people only on the basis of “articulable national security interests unrelated to the applicant’s political beliefs or associations,” and to specifically review the cases of Professor Ramadan and six other scholars, journalists and activists who have been refused admission to the United States, apparently based on their politics.

“Ideological exclusion compromises the vitality of academic and political debate in the United States at a time when that debate is exceptionally important,” write the letter’s signatories. “The practice was misguided during the Cold War and it is misguided now.”

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