ACLU and NYCLU Release Government Records on "Ideological Exclusion" Policy

NEW YORK -- The American Civil Liberties Union and the New York Civil Liberties Union today released new documents that indicate the government is broadly interpreting and using a controversial Patriot Act power known as the "ideological exclusion" provision to block people from entering the country. The ACLU is concerned that the provision is increasingly being used to target foreign scholars and others whose politics the government disfavors.

"The American public suffers when our government abuses anti-terrorism laws to shut out voices and ideas that it doesn’t want us to hear," said ACLU attorney Melissa Goodman. "America has a rich tradition of robust academic debate. The government dishonors that tradition when it censors ideas at the border."

The ACLU and NYCLU obtained the documents through a Freedom of Information Act (FOIA) lawsuit filed in coordination with PEN American Center and the American Association of University Professors (AAUP). Although the documents are heavily redacted, the records suggest that the government used the ideological exclusion provision to exclude from the country, among others, an Italian woman residing in Colombia, a mother and daughter residing in Canada, a businessman from Venezuela, and a woman from Costa Rica. The names of the individuals have been redacted.

The ideological exclusion provision permits the government to exclude anyone from the country who, in the government’s view, "endorses or espouses" terrorism or "persuades others" to support terrorism. While the provision is nominally directed at terrorism, the government appears to be using the provision to censor and manipulate debate, said the ACLU.

Other documents released through the FOIA confirm that the Departments of State and Homeland Security are interpreting the law broadly. One document states that the law is directed at those who voice "irresponsible expressions of opinion." Another states, somewhat bizarrely, that an individual can be excluded under the provision even if he or she endorsed terrorism unintentionally.

"It is wholly inappropriate for immigration officials to keep out people whose politics they don’t like," said Donna Lieberman, NYCLU Executive Director. "Barring the doors is not the way a democracy deals with its critics."

Little is known about the specific incidents included in the new documents, but the ACLU pointed to several recent cases of high-profile individuals who have been excluded from the United States for what appear to be ideologically motivated reasons, including:

• In June, 75 South Korean activists were denied visas as U.S. and South Korean officials met for free trade negotiations in Washington, DC. The South Korean farmers and trade unionists had hoped to voice their opposition to the draft free trade agreement.
• In June, Professor Yoannis "John" Milios of the National Technical University of Athens was blocked from presenting a paper entitled "How Class Works" at the State University of New York at Stony Brook. Though he visited the United States as recently as 2003, upon arriving at JFK airport in New York he was detained and interrogated about his politics. After several hours, he was told that he would have to return to Athens.
• In May, London-based Hip Hop artist M.I.A. revealed that she was denied a visa to come work with American music producers on her next album. News reports indicate that the Sri Lankan-born artist was excluded because government officials concluded that some of her lyrics are overly sympathetic to the Tamil Tigers and the Palestinian Liberation Organization.
• In March, Iñaki Egaña, a Basque historian from Spain, arrived at JFK airport with his two children with the intention of researching Basque people in the United States. Egaña and his family were detained while Egaña was questioned about Mario Salegi, a Basque political activist and writer whom Egaña had intended to study. After being detained for 24 hours, Egaña and his family were sent back to Spain.
• In Spring 2006, Dr. Waskar Ari, a scholar of race and ethnic studies and a member of the Aymara indigenous people in Bolivia, was blocked from assuming a teaching position at the University of Nebraska-Lincoln. Dr. Ari, who earned a Ph.D. in history from Georgetown University, applied for a work visa after accepting the Nebraska offer in June 2005. More than a year later, U.S. immigration officials have yet to act on his visa application, but have since revoked his student visa, leaving Dr. Ari inadmissible to the country. The State Department recently said that Dr. Ari is being excluded on national security grounds, but it has not offered any evidence to support this allegation.
• In 2005, Dora Maria Tellez, who served as a Parliamentary leader and Minister of Health in Nicaragua in the 1980s, was forced to abandon her teaching post at Harvard University after the government rejected her visa application. Tellez, who had visited the United States several times up to 2001, was reportedly excluded because of her role in the 1979 Nicaraguan revolution that overthrew the dictator Anastasio Somoza.

A lawsuit challenging the provision is currently pending in U.S. District Court for the Southern District of New York. That lawsuit was filed by the ACLU, NYCLU, AAUP, PEN and the American Academy of Religion, and charges that the provision is being used to prevent United States citizens and residents from hearing speech that is protected by the First Amendment. The groups filed the lawsuit after Professor Tariq Ramadan was barred from entering the United States, where he was offered a teaching position at the University of Notre Dame. Although the government has since backed away from its claim that Professor Ramadan is inadmissible under the Patriot Act provision, on June 23, Judge Paul A. Crotty ruled that the government must act on Ramadan’s pending visa application, and that it cannot bar non-citizens from the United States simply because it disagrees with their political views.

"Ideological misuse of the immigration laws has significant effects on the freedom of academic and political debate inside the United States," said Jameel Jaffer, Deputy Director of the ACLU’s National Security Program, who argued before Judge Crotty. "As the court recognized, the government cannot use the immigration laws as a means of silencing its critics and denying Americans the opportunity to hear dissenting voices."

The Patriot Act’s ideological exclusion provision echoes laws that were used in the 1960s, 70s, and 80s to bar those who were associated with the Communist Party. Those laws were used to bar, among many other prominent individuals, the writers Graham Greene, Gabriel Garcia Marquez, Dario Fo, and Pablo Neruda, and former Canadian Prime Minister Pierre Trudeau.

Attorneys in the FOIA case are Goodman and Jaffer of the ACLU; Arthur N. Eisenberg of the NYCLU; and New York immigration lawyer Claudia Slovinsky.

The documents released today are online at www.aclu.org/exclusion.