ACLU CHARGES “IDEOLOGICAL DISCRIMINATION”

By William Fisher

A leading legal rights group charged today that the Obama Justice Department is using immigration law to censor debate by selectively barring U.S. entry to foreign scholars.

The American Civil Liberties Union (ACLU) appeared in a federal appeals court in New York City today to argue that a Swiss professor and leading Muslim scholar was denied entry to the U.S. based on his political views.

The ACLU argued that the government’s exclusion of Professor Tariq Ramadan is illegal and was motivated not by anything he did but by his vocal criticism of U.S. foreign policy.

Jameel Jaffer of the ACLU, the lead lawyer in the case, told us, "It is disappointing to see the lawyers from the Obama Justice Department taking exactly the same positions as their predecessors during the Bush era. "

He added, "Our position is that the government should not be using immigration law to limit free speech within the U.S. By denying visas to prominent foreign scholars and writers simply because they were critical of United States foreign policy, the Bush administration used immigration laws to skew and stifle political debate inside the U.S.”

“The Bush administration was wrong to revive this Cold War practice, and the Obama administration should not defend it," he said.

The Department of Justice declined to comment on the case.

The position of the government during the George W. Bush presidency was that the courts have no jurisdiction over immigration matters. Obama lawyers reiterated that position in court today.

Ramadan was invited to teach at the University of Notre Dame in 2004. The U.S. government first granted but then suddenly revoked his visa, citing a statute that applies to those who have “endorsed or espoused” terrorism. After the ACLU filed suit, the government abandoned its claim that Ramadan had endorsed terrorism, but it continued to exclude him because he made small donations to a Swiss charity that the government alleges had given money to Hamas.

In January 2006, the ACLU and the New York Civil Liberties Union filed a lawsuit challenging Professor Ramadan's exclusion from the U.S. on behalf of the American Academy of Religion, the American Association of University Professors and the PEN American Center. A federal judge upheld Ramadan’s exclusion in December 2007. Today’s court action was an appeal of that ruling.

The lawsuit was originally brought against then-Department of Homeland Security Secretary Michael Chertoff and then-Secretary of State Condoleezza Rice. It is now called Academy of Religion v. Napolitano. Janet Napolitano is Obama’s new secretary of the Department of Homeland Security (DHS).

The ACLU noted that, during the Cold War, the U.S. “used ideological exclusion to bar artists who were vocal critics of U.S. policy,” including Colombian novelist Gabriel García Márquez, Chilean poet Pablo Neruda and British novelist Doris Lessing.

“Over the last eight years, the Bush administration revived the practice, barring dozens of prominent intellectuals from assuming teaching posts at U.S. universities, fulfilling speaking engagements with U.S. audiences and attending academic conferences,” the ACLU said.

“Ideological exclusion is ineffective as a matter of security policy and inconsistent with the ideals that make this country worth defending,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “The U.S. should evaluate applicants for admission to the United States on the basis of their actions rather than their political beliefs and associations.”

The ACLU and other human rights groups are urging the courts to revisit several specific cases of ideological exclusion, including those of Haluk Gerger, a Turkish journalist; Dora Maria Tellez, a Nicaraguan human rights activist; Adam Habib, a South African political commentator; in addition to Prof. Ramadan. Ramadan is a Swiss Islamic scholar who now teaches at Oxford University in the U.K.

The ACLU and other U.S. organizations have also brought lawsuits to challenge the exclusion of Professor Habib. The challenge to his exclusion is currently pending before a federal district court in Boston.

Last week, dozens of the nation’s leading academic, free speech and civil rights organizations sent a letter to high-level U.S. officials today urging them to end the practice of refusing visas to foreign scholars, writers, artists and activists on the basis of their political views and associations.

In the letter, groups including the ACLU, the National Education Association, and the Rutherford Institute, called on Attorney General Eric Holder, Secretary of State Hillary Rodham Clinton, and Secretary of Homeland Security Janet Napolitano, to put an end to the Cold War-era practice of “ideological exclusion.”

The ACLU’s Jaffer said, “Ideological exclusion impoverishes academic and political debate inside the United States, and it sends the message to the world that the United States is more interested in silencing its critics than engaging them. Ideological exclusion is a petty and misguided practice that the Obama administration should retire immediately.”

The government’s assertion that the criminal justice system lacks jurisdiction in immigration cases has recently been the centerpiece of two other cases. Several months ago, a federal district judge ordered 17 Uighurs released from imprisonment at the Guantanamo Bay detention center and permitted to enter the U.S. A federal appeals court ruled that the judge could order the prisoners released, but could not order them to be admitted to the U.S., since that was a matter of immigration law.

Earlier, another court ruled that it had no jurisdiction to adjudicate the case of Maher Arar, who was detained by U.S. authorities at JKF International Airport enroute to his home in Canada from a vacation in North Africa. He was held by the U.S. for two weeks, then flown to Jordan and later to his country of birth, Syria. In Syrian custody, Arar says he was held incommunicado, without charges or access to a lawyer, and tortured. The Syrians released him after ten months, without charges. He later received an apology and $10 million from the Canadian Government. The U.S. never acknowledged any wrongdoing in his case.