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First Amendment Gives Anti-War Alien Right to Enter US, ACLU Says

Kevin Mooney | Staff Writer | Friday, December 21, 2007

First Amendment Gives Anti-War Alien Right to Enter US, ACLU Says

(CNSNews.com) - The First Amendment right to freedom of speech should be interpreted as preventing the U.S. government from denying a visa to a foreign critic of U.S. war-time policy who has been invited to speak here, even when national security concerns are cited, the American Civil Liberties Union (ACLU) is claiming in a federal lawsuit.

Lawyers for the ACLU filed a complaint in the U.S. District Court in Massachusetts on behalf of Adam Habib and several American interest groups that had invited Habib to speak here.

Habib is a South African academic, who has been a critic of the U.S. war in Iraq and U.S. policies for dealing with terrorist detainees. The suit accuses the State Department and Homeland Security officials of violating the First Amendment rights of Americans by denying Habib a visa to attend the scheduled speaking engagements.

Some legal scholars and public policy experts, however, take issue with this interpretation of the First Amendment.

"This is a case not of speech but of immigration," Roger Pilon, director of the Center for Constitutional Studies at the CATO Institute, told Cybercast News Service. "The government has always had this discretion."

The proper response by the American groups that scheduled Habib to speak should be political rather than judicial, Pilon said. For much of the nation's history disputes and concerns similar to those raised in the ACLU suit were settled by way of a vigorous political debate, he explained.

The ACLU's suit breaks from American tradition, because it takes a legitimate policy difference out of the political arena and places it in the purview of judges, Pilon said.

"The issue here is whether the government has the authority to control its borders and therefore has the discretion," Pilon said. "If it is not given this discretion, then every case ends in court and that is an administrative nightmare, but that is the direction we are going in."

U.S. government officials allege Habib was denied entry because he had "engaged in terrorist activity" as it is described in section 212 (a)(3)(B) of the Immigration and Nationality Act (INA). This provision of the law was added to the INA as part of the USA Patriot Act in November 2001.

The ACLU suit filed on Dec. 3 calls on the court to intervene and allow Habib entry into the U.S. in the absence of specific evidence substantiating the government's allegations. However, Horace Cooper, a senior fellow with the American Civil Rights Union (ACRU), told Cybercast News Service he believes the State Department's actions are being unfairly mischaracterized.

Moreover, he argues, the ACLU suit could potentially force the government to reveal information that is damaging to national security.

"What lawsuits like these do is they put federal government officials in a position where they must either reveal a secret or the means by which the background information has been acquired," Cooper said.

"Or, the other result might be the government simply capitulates and lets individuals and groups into the country with questionable backgrounds," he added.

But there is "catch-22" involved with the government's case against Habib and other academics who have been denied entry into the U.S., said Jonathan Knight, a spokesman for the American Association of University Professors (AAUP), one of the plaintiffs named in the suit.

While there is an understandable "natural tendency" for government agents to assume a more aggressive and assertive border security posture at a time of heightened anxiety, the legal provisions now being invoked are overly vague, he said.

"When it comes time to identify what the [Bush] administration people specifically object to, they refuse to come up with the information because to do so, they say, will divulge state secrets, so there is this catch 22 situation," Knight argued.

"They say trust us, we have information you do not have, which if you did have, you would agree with us that this person should be kept out," he added.

Knight argued, however, that the weight of historical evidence suggests the Bush administration has far too much latitude in blocking foreign academics with alternative foreign policy viewpoints that deserve consideration in the United States.

"We have yet to come across a case going back to the 1950s where a scholar who an administration stopped from coming in [to the U.S.] has been in fact shown in some plausible way to be a true threat," he said.

The ACLU recently introduced on its Web site a new interactive feature that highlights legal disputes involving foreign nationals described as artists, scholars and politicians who have been blocked from entering the U.S. going back to 1952.

The practice of "ideological exclusion" previously applied in cases involving suspected communists has been re-instituted under the USA Patriot Act and is unconstitutional, the ACLU argues.

The state and Homeland Security actions against Habib proceed from "baseless" allegations, the ACLU says in its complaint.

"Professor Habib has never engaged in terrorist activities, in any sense of the term," says the complaint. "He has been a consistent campaigner for democracy and human rights and he has repeatedly condemned terrorism and terrorist acts.

"Since 2001, numerous foreign scholars, human rights activists, and writers have been barred from the U.S. without explanation or on unspecified national security grounds under circumstances that suggest the government is excluding these scholars not for legitimate security reasons but rather because the government disfavors their politics," the complaint says.

"Plaintiffs believe that Professor Habib's exclusion is part of this pattern," the complaint adds.

Habib was scheduled to take part in academic lectures hosted by the organizations named as plantiffs, which include the American Sociological Association, the American Association of University Professors (AAUP), the American-Arab Anti-Discrimination Committee's Massachusetts Chapter, the Boston Coalition for Palestinian Rights (BCPR).

The ACLU's First Amendment argument fails when government officials see genuine and compelling national security risks in allowing someone into the United States, Herb London, president of the Hudson Institute, told Cybercast News Service.

"Just as free speech applies to the kinds of concerns the ACLU has, there's also free speech available to the State Department and the immigration service to say they don't want to allow people into the country who might undermine our institutions," he said.

"We have enough people in the U.S. who have politicized our universities and our institutions. There is no sense in bringing in outsiders to do so," London added.

The ACLU points out in its suits that Habib already lived in the U.S. for several years while obtaining his Ph.D from the City University of New York and had been a frequent visitor to the U.S. prior to his visa being revoked. He is described by the ACLU as a "world-renowned researcher, scholar, and political commentator."

"In one fell swoop, the U.S. government has stifled political debate in this country and maligned the reputation of a respected scholar without giving one shred of evidence to support its claims," Melissa Goodman, a staff attorney with the ACLU's National Security Project, said in a press release.

"It appears that Professor Habib is being excluded not because of his actions but because of his political views and associations," Goodman added.

Karl Duckworth, a State Department spokesman, told Cybercast News Service that visa decisions are made in accordance with U.S. law and are not connected with any desire on the part of administration officials to silence critics. Duckworth declined to comment on any specific cases.

For his part, London believes there is good reason for ideology to play a role when it comes to considering whether or not a foreign national poses a threat to safety and security. In the aftermath of 9/11, the U.S. finds itself engaged with "shadowy foes" who are fighting us on both military and ideological fronts, he said.

"Keep in mind radical Muslims have a religious view and imperial view," London said. "They are working to create caliphates across the globe, and in that sense, they are engaged in an ideological war against us. They want to impose their views, and that is something the ACLU does not recognize."

Furthermore, he said, government officials charged with protecting their countrymen in time of war have been unfairly criticized.

"There is a tendency on the part of the ACLU and some of the left to automatically assume the government is doing something wrong," London said. "I think State Department officials should be very careful about how these decisions are made, and our government does make mistakes."

Contrary to the ACLU's assertions, the provision of U.S. law activated against Habib is not applied in a broad and cavalier way, said Hooper. In fact, he said, a "rigorous" process is involved that requires intelligence gathering.

"It is uncanny how often and how frequently the ACLU finds itself siding with the enemies of America's national security," Hooper said. "There are no Americans involved in this situation whose civil liberties have been threatened."

Pilon also expressed sympathy for state department officials who have access to classified documents that cannot be widely circulated for the purpose of protecting sources.

"There's a part of this country that is so anti-American and unpatriotic that you wonder if we share the same principles," he said.

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