W. Aaron Vandiver, Checking Ideas at the Border: Evaluating the Possible Renewal of Ideological Exclusion

• Publication year: 2006

COMMENTS

CHECKING IDEAS AT THE BORDER: EVALUATING THE POSSIBLE RENEWAL OF IDEOLOGICAL EXCLUSION

INTRODUCTION

The United States' war on terrorism has generated fear among some scholars and civil libertarians that "ideological exclusion" is being "resurrected."¹Ideological exclusion is an unofficial term that describes the practice of denying aliens entry into the country based solely upon their political/ideological speech or beliefs.²"Resurrected" arguably describes the status of the practice because ideological exclusions seemed to have ended with the Cold War.³Section 411 of the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act (PATRIOT Act) raised the specter that the U.S. government was resuming its use of ideological criteria in admissibility decisions.⁴The recently enacted REAL ID Act of 2005 has replaced and expanded the above provisions of the PATRIOT Act to authorize an even wider use of ideological criteria in admissibility decisions.⁵

A. Recent Events

Apprehensiveness about the use of the PATRIOT Act, and now the REAL ID Act, to exclude foreigners for purely ideological reasons is not entirely unfounded. The first inkling of a return to this policy came in mid-2004 when the State Department, in conjunction with the Department of Homeland Security, revoked the visa of Tariq Ramadan, a European Muslim scholar and professor from Geneva whom Notre Dame University had invited to teach as a professor of religion.⁶The details of what the State Department called a "prudential revocation"⁷have remained confidential, with the government refusing to disclose its reasons.⁸However, a Homeland Security Department spokesman's statement cited section 411 of the PATRIOT Act as a basis for the denial.⁹Thus, while the exact legal basis for Ramadan's exclusion is unclear,¹⁰and despite an anonymous Homeland Security official's assurances that Ramadan was excluded strictly because of his prior actions, ¹¹many in the media speculated that Ramadan was denied entry because of his views.¹²

In fact, speculation that Ramadan actually was excluded for ideological reasons has become so widespread that the American Civil Liberties Union (ACLU), the American Association of University Professors (AAUP), and the PEN American Center recently filed a lawsuit on the matter against the

Departments of State and Homeland Security.¹³The plaintiffs seek an injunction to enforce a Freedom of Information Act (FOIA) request that the

ACLU had previously filed with those departments to determine why the government denied Ramadan's visa.¹⁴

The ACLU is also seeking information about other scholars whose visas may have been denied for ideological reasons.¹⁵For instance, the suit seeks information about the government's denial of Dora Maria Tellez's visa in January of 2005.¹⁶Ms. Tellez, a historian, professor, and former figure in the Nicaraguan government, participated in the Sandinista overthrow of the brutal Somoza regime in Nicaragua during the late 1970s.¹⁷She had visited the United States many times and she was scheduled to teach at Harvard University as a Robert F. Kennedy Visiting Professor of Latin American Studies before her visa was denied.¹⁸Apparently, the government maintained that Ms. Tellez's participation in Nicaragua's political violence over twenty- five years ago constituted "terrorist acts";¹⁹therefore, the government considered her subsequent teaching and speaking about her activities to be endorsements of terrorism.²⁰The suit also seeks information about other prominent individuals whose visas were denied for possibly ideological reasons; those individuals include Fernando Rodriguez, a well-known Bolivian human rights lawyer, and approximately sixty scholars and academics from Cuba.²¹

The ACLU alleges that "the exclusion of Professors Ramadan and Tellez is part of a broader practice of using immigration laws to exclude and stigmatize critics of U.S. foreign policies."²²Civil libertarians like Professor Cole agree that section 411 of the PATRIOT Act and the examples of Ramadan and Tellez signify a return to a policy of ideological exclusion.²³These civil liberties advocates worry about the practice's effect on, among other things, First

Amendment freedoms. "This is about free speech, the purpose of colleges and universities," says a representative of the American Association of University Professors.²⁴Similarly, a member of the ACLU legal department said, "[w]e have a right to know about how our government is using various immigration laws to censure ideas that Americans have a right to hear."²⁵

Those at the opposite end of the spectrum of American politics frame the issue solely in terms of security. They point out that, although the facts are not completely known, Ramadan may have had ties to actual terrorists and terrorist groups; therefore, he was not excluded simply for ideological reasons.²⁶

Tellez, similarly, was once active in the Sandinista revolution and had even personally participated in the violent takeover of the Nicaraguan Parliament in which over two thousand people were held hostage.²⁷Thus, according to some, she too was not excluded simply for her beliefs.²⁸

Moreover, some of these commentators go so far as to advocate a full- blown return to ideological exclusion as a means of keeping extremists out of the country.²⁹

The question today in light of section 411 of the PATRIOT Act and now, sections 103 through 105 of the REAL ID Act, is whether ideological discrimination against the politically unpopular, such as that that occurred in the most egregious cases during the Cold War, is becoming more prevalent. Will the United States use ideological exclusions only against those persons who pose an actual threat to the country, or will it use provisions of the INA enacted to deny admission to dangerous proponents of terrorism as pretext for excluding individuals based on their speech and beliefs? Is it that today, in

2006, the U.S. government can deliberately and transparently bar admission to noted novelists, professors, poets, musicians, scientists, politicians, journalists, human rights lawyers, religious leaders, and others simply because it does not approve of their ideas?³⁰If so, may the government legitimize its decisions simply by painting excluded individuals' ideas with the brush of "terrorism"? Can the government do all of this under the guise of fighting terrorism?³¹

As this Comment will show, the government took a step toward renewing ideological exclusions with passage of section 411 of the PATRIOT Act. The recently enacted REAL ID Act brings the country even closer to a resumption of the worst kinds of ideological exclusions effected during the Cold War under the McCarran-Walter Act. Whether the government has actually resumed ideological exclusions is another question, however. The new statutory framework for excluding aliens who allegedly advocate terrorism also could allow the government to exclude aliens arbitrarily and capriciously merely because their speech is unpopular. Given this possibility, this Comment will explore judicial, legislative, and executive solutions for preventing and limiting the worst and most blatant ideological exclusions like those seen in the past.

Part I of this Comment will trace the history of ideological exclusion in the United States. Part II will present a constitutional analysis of ideological exclusion, asserting first that ideological exclusion offends citizens' First Amendment right to receive information, then arguing that legitimate reasons exist for continuing judicial deference to Congress and the executive branch on the issue.³²Part III will briefly describe the limited role of the lower courts in guarding against blatant ideological exclusions. Part IV will more closely examine the statutory bases of renewed ideological exclusions-section 411 of the PATRIOT Act and section 103 of the REAL ID Act-and will propose a possible legislative response to the executive branch's potential abuse of its discretion to exclude aliens for ideological reasons. Part V will conclude with a summary and a warning that this issue should be carefully monitored in the future to prevent a return to the discredited practices of the past.

I. A BRIEF HISTORY OF IDEOLOGICAL EXCLUSION IN THE UNITED STATES

Throughout its history, the United States has suppressed the speech of both aliens and citizens during times of national crisis. The Alien and Sedition Acts of the eighteenth century represent the first and most notorious examples.³³

During World War I, the Supreme Court's famous decision in Schenck v. United States cleared the way for the government to curtail U.S. citizens' ability to protest government policy under the "clear and present danger" test.³⁴

Restrictions on the speech of aliens were especially acute in the early and middle twentieth century, and most commonly took the form of exclusion and deportation based on ideological criteria. Ideological criteria in immigration policy first targeted "anarchists."³⁵The Alien Immigration Act of 1903 made ineligible for admission, among other groups, "anarchists, or persons who believe in or advocate the overthrow by force or violence of the Government of the United States or of all government or of all forms of law."³⁶

A. The McCarran-Walter Act

With the onset of the Cold War, United States immigration law primarily targeted those with communist affiliations and views. The Immigration and Nationality Act of 1952 (the McCarran-Walter Act) provided the statutory basis.³⁷Two major provisions of the Act were employed for ideological exclusions. First, Sec. 1182(a)(28) extended the prohibition to aliens who had at any time been members or were affiliated with the Communist party who "advocate[d] the economic, international, and governmental doctrines of world communism,"³⁸"who wr[o]te or publish[ed] . . . the doctrines of world communism,"³⁹or who had written or published the...