Yanking Up the Welcome Mat

Thursday, June 14, at 2 p.m., U.S. Eastern time

Barbara Weinstein, a professor of history at New York University, is president of the American Historical Association. A historian of 20th-century Latin America, she specializes in Brazil, labor history, slavery and emancipation, and race and gender. Melissa Goodman is a staff attorney in the American Civil Liberties Union's National Security Project, working on cases concerning surveillance, excessive government secrecy, torture and detention, and the freedoms of speech and association. She was also lead counsel in a Freedom of Information Act lawsuit seeking information about the government's use of a USA Patriot Act provision that allows the government to exclude noncitizens who "endorse or espouse" terrorism.

A transcript of the chat follows.

Burton Bollag (Moderator):
    Welcome to The Chronicle's live colloquy. I am Burton Bollag, a reporter covering international issues. Our guests today are Barbara Weinstein, a professor of history at New York University and president of the American Historical Association; and Melissa Goodman, a staff attorney in the American Civil Liberties Union's National Security Project. Thank you both for being here today. Let's begin...

Question from Amy Hagopian, University of Washington:
    What roles are our academic professional associations playing in grappling with this issue? Have any academic leaders (University presidents and deans) showed leadership here?

Barbara Weinstein:
    I can speak specifically about the role that the American Historical Association has played in dealing with this issue. The AHA has written multiple letters to government officials expressing our concern about the delay in granting a visa to Waskar Ari, and we were prepared to file an amicus brief in support of the University of Nebraska's lawsuit for action on their visa request for Waskar Ari. The AHA has also tried, wherever appropriate, to publicize Prof. Ari's situation and express its support for him and for our colleagues at the University of Nebraska. Other associations have taken up individual cases--for example, the American Academy of Religion filed the suit that led to a ruling that the US government had to at least explain its denial of a visa to Tariq Ramadan. And the MLA [note from moderator: Modern Language Association] is organizing several sessions on the question of academic freedom for its upcoming meetings.

As for university presidents, I believe a letter was circulated by a group of presidents, especially at research universities, expressing concern over the difficulties faced by foreign scholars in obtaining visas. In the case of universities, one of the key issues is a concern that foreign graduate students will be less inclined to study at US universities because of the delays in granting visas.

Personally, I would like to see a more coordinated effort by learned societies and university administrators to address this issue. But often a particular association or university is focused on an individual case, and is trying to make sure, understandably, that its efforts on that individual's behalf are as effective as possible, rather than addressing the broader issue.

Question from Jeff Ryan:
    Is hearing *every* foreign scholar the top priority for America today?

Barbara Weinstein:
    I assume what you're asking is whether we really need to hear from "every" foreign scholar, or couldn't we just dispense with hearing from some of them. Of course, we neither need to or can hear from every scholar, foreign or otherwise, but the question is Who gets to decide whom we can hear? We probably don't need to read every book, but do you want the government deciding, with no clear criteria, which books you can or can't read? In addition, I do believe that some of the scholars that the US government regards as controversial are those that may be the most important to listen to, even if some of us may find what they have to say challenging, or even upsetting. In any case, I am not eager to delegate the authority to make decisions about what we can and can't hear to government agencies.

Question from Jennifer Ruark (CHE):
    What would you see as a legitimate reason, if any, for the U.S. government to deny entry to a foreign scholar?

Melissa Goodman:
    Our concern is the government's ability to bar foreign scholars based on the content of their speech or the viewpoints that they express. If the expression is protected by the First Amendment, it is speech that U.S. citizens and organizations have a right to hear. We believe that exclusion based on the content or viewpoint of a foreign scholar's speech is illegitimate and unconstitutional. But the government has the legitimate authority to deny entry to a foreign scholar who is an actual terrorist -- who has engaged in violent terrorist acts. The government can also deny entry to a foreign scholar that incites others to engage in imminent lawless acts (incitement is not protected speech under the First Amendment). Or, if a foreign scholar runs afoul of other bars to entry that are not based on the opinions they express speech n such as criminal bars, the government can legitimately exclude that scholar.

Question from Robert Judd, American Musicological Society:
    It seems to me that if we want to maintain the free exchange of ideas any time soon, we must look for alternatives to the strategy of asking the Department of State to change its policies and procedures. That's glacial. What are the best means and ways of developing internet-based conferencing technologies to overcome this hurdle? Is it really imaginable that one can "attend" a meeting electronically? What are the most important things we in academic societies can do to facilitate a "virtual attendee" who can't travel to a meeting?

Barbara Weinstein:
    I agree that we need to have other strategies, given the resistance to change at the government level. I do think that interactive computer technologies allow something close to full participation in the formal aspects of a conference. But I worry that it does nothing about the informal exchanges and scholarly relationships that emerge from many conferences. I'm sure all of us have had the experience of getting more out of the dinners and lunch conversations at a conference than the formal sessions. Plus teleconferencing, etc., only partially addresses the problem of scholars hired to teach in the US. Talk about distance learning! So I agree that we have to be as imaginative and creative as possible, including, where possible, binational symposia that take place in two locations. But I hope that the pace of change at the official level will speed up in the near future.

Question from Jennifer Ruark, CHE:
    How does the situation today compare with how the government handled visas to, say, German or Japanese scholars during World War II?

Barbara Weinstein:
    Melissa may know better than I do the specific legal aspects of this question, but as a historian, I find the comparison not particularly helpful except to highlight how different the situations are. I assume that once war had been declared against Japan and Germany, no scholars were applying for visas through normal channels. Some scholars, many of them Jewish, who were refugees from Nazi Germany were trying to get into the US, but the whole process would be different, and one would expect that the US government would want to make sure that the person fleeing Germany was a genuine opponent of the regime and wouldn't work as a spy once in the US. In contrast, despite talk of a "war on terror," we are not at war in the conventional sense with any other nation, and the scholars who are being excluded from the US are often citizens of countries that represent no threat to the US. For many years prior to the Bush administration, Cuban scholars came to the US for conferences and nobody seemed to regard this as a threat to national security. Given Cuba's complete lack of involvement in anything related to 9/11, why should we now regard a Cuban scholar on US soil as a menace? The problem with the so-called War on Terror is that it has no boundaries, chronological or geographical, and can be endlessly deployed as an excuse for exclusion unless very clear guidelines are set.

Question from Jennifer Ruark, CHE:
    How does the situation today compare with how the government handled visas to, say, German or Japanese scholars during World War II?

Melissa Goodman:
    I don't know the precise answer to that because I am not familiar with the visa rules during that time period. However, during the Cold War, the government denied visas to scholars and other luminaries believed to be communists. Among the victims of Cold War era ideological exclusion were Graham Greene, Gabriel Garcia Marquez, Dario Fo, and Pablo Neruda, and former Canadian Prime Minister Pierre Trudeau. You can see a more extensive list of people who were excluded for ideological reasons here: http://www.aclu.org/safefree/general/26213res20060724.html.

In the late 1980s and early 1990s, in recognition of the First Amendment harm ideological exclusion caused (not to mention the embarrassing foreign policy damage done) Congress repealed certain Communist-related immigration laws and prohibited the exclusion of non-citizens based on past expression or belief that would be protected by the First Amendment here in the U.S.

Barbara Weinstein:
    I agree with Melissa that the denial of visas to foreign scholars during the Cold War for ideological reasons is more comparable to the current situation than the policies during World War II.

Question from Ian Maki, Univ. of Washington (Lafta Sponsor):
    When we encountered difficulty and an unresponsive State Dept. while trying to obtain a visa for Dr. Lafta to come to the USA to complete a collaborative research project, we essentially had no alternative but to ask and wait. Our elected officials could do nothing more than the same. Does there exist any service, office, method or protocol to challenge unfavorable visa decisions or the basic lack of communication about a foreigner scholar's application/status from the government in a timely manner that could avoid jeopardizing progress on research and scientific inquiry?

Melissa Goodman:
    The government's failure to act on visa applications (often for ideologically-motivated reasons) and the government's refusal to provide explanations for its actions (because of excessive secrecy) are tremendous problems. In the Prof. Tariq Ramadan litigation, we found a way to challenge the government's failure to act in court. Under the Administrative Procedures Act, the government must act on applications within a reasonable period of time. Additionally, where the First Amendment rights of U.S. citizens are at stake, the government typically must act quickly. Ultimately, we were successful in this argument, and Judge Crotty, a judge in the Manhattan Federal District Court ordered the government to act on Prof. Ramadan's visa application. The decision is here: http://www.aclu.org/safefree/general/25990lgl20060623.html.

Unfortunately, the government has not seemed very responsive to pressure to act. It acts only when someone sues them. The same thing recently happened in Waskar Ari's case. There was inaction for over 2 years. When his lawyers filed a suit, the government acted.

Additionally, if an actual visa denial/exclusion harms the First Amendment rights of U.S. citizens or residents (because the denial harms the your ability to meet with the excluded non-citizen and engage him or her in discussion and debate n or in your case, research), the government is required to provide what the courts call a "facially legitimate and bona fide" reason for the exclusion. This means, among other things, a reason that is unrelated to the content or viewpoint of the excluded non-citizen's speech.

Question from Amy Hagopian, University of Washington:
    Thank you for your answer to my first question. I do think we need some sort of national clearinghouse for dealing with these issues. The ACLU in NYC showed interest in Dr. Lafta's case, and seems to be tracking these issues. But I would like to see a national university association take some lead here. And university presidents and deans have been too quiet, leaving the work to those of us fairly low on the academic totem pole.

Barbara Weinstein:
    I thoroughly agree that there needs to be a more concerted and broad-based response, rather than a case-by-case protest. I would like the ACLS [note from moderator: American Council of Learned Societies], as the representative of most of the learned societies in the US, to take a more active role. And I certainly would like to see university presidents out front on this.

Question from anon:
    It appears that, when compared with the large number of visas granted to foreign students and scholars, that the number denied are relatively small. Do you agree? How big of a problem is this? And have we seen any impacts, such as conferences being moved etc?

Melissa Goodman:
    I think that it is impossible for us to know the full scope of the problem right now. While many foreign scholars and students may be getting visas, a substantial number of people seem to have been excluded for what appear to be ideologically-motivated reasons. Again, a good timeline with more recent exclusions can be found here: http://www.aclu.org/safefree/general/26213res20060724.html. But, in fact, the government seems to be engaging in ideological exclusion in a myriad of ways, of which denying visas is only one tool: (1) by "prudentially" revoking visas under circumstances that appear ideologically motivated, (2) by failing to act on visa applications under circumstances that appear ideologically-motivated, (3) by denying visas under laws directed at ideology n such the "endorse or espouse" provision, and (4) by denying visas under laws that are not directed at ideology, but which seem to be denied for pretextual reasons.

Government secrecy is also a problem. The government does not need to provide notice or explanation if a visa is denied under terrorism-related grounds. It does not have to provide any explanation if it "prudentially" revokes a visa n which the government claims is an informal determination that you might be unable to the enter the country. It refused to release a number of documents in response to our Freedom of Information Act request.

And we know that these exclusions and delays are having a real impact on how people are planning conferences, whom they choose to invite from abroad, etc. We have heard anecdotally that some organizations are moving their annual conferences to Canada or elsewhere. We know of non-citizens who have declined invitations to conferences in the U.S. because they do not want to undergo the ideological scrutiny.

Question from Amy Hagopian, University of Washington:
    Thank you for your answer to my first question. I do think we need some sort of national clearinghouse for dealing with these issues. The ACLU in NYC showed interest in Dr. Lafta's case, and seems to be tracking these issues. But I would like to see a national university association take some lead here. And university presidents and deans have been too quiet, leaving the work to those of us fairly low on the academic totem pole.

Melissa Goodman:
    the ACLU has worked very closely with the American Association of University Professors and the American Academy of Religion on these ideological exclusion issues. They are both plaintiffs in our suit challenging both Professor Tariq Ramadan and the constitutionality of the ideological exclusion provision. The AAUP is also a plaintiff in the Freedom of Information Act case we filed to get more information about the ideological exclusion provision. I agree, though, that the problem is best addressed if pressure is applied to the government from all levels.

Barbara Weinstein:
    I know the question about the relatively small number of people denied visas was addressed to Melissa, but I would like to chime in and note that the blanket exclusion of Cuban scholars has meant that the total number is much higher than a headcount of individual cases. And as the article mentioned, at least one major organization, the Latin American Studies Association, has moved its upcoming convention from Boston to Montreal.

Question from Burton Bollag:
    How does the current administration's approach compare to the government's practices during the Cold War?

Barbara Weinstein:
    In some ways, the current administration's approach is more problematic. At least during the Cold War it was fairly clear what the standards were for denial of a visa--typically, someone who was or had ever been a member of a Communist Party. I certainly didn't support this, but at least one had a clear idea of what the issue was. The current situation is much more amorphous and unpredictable, and seems even more arbitrary. I suspect in the case of Waskar Ari, if he were not of Aymara descent, his visa would not have been held up. At least during the Cold War the exclusion of alleged Communists didn't discriminate by ethnicity, as far as I know.

Barbara Weinstein:
     I start with the assumption that the denial of visas to foreign scholars on unspecified grounds is a problem even if it involves a relatively small number of academics. Precisely because the dimensions of the government's concerns are so undefined and, it seems, almost infinitely expandable, there is enormous potential here for abuse and for outright ideological exclusion that has nothing to do with ensuring our physical safety. In a number of cases, it seems impossible even to imagine a scenario in which the scholar involved could possibly pose a threat to national security; in others, it seems as if there was simply some mistake that no one wants to admit. But these are just the sort of abuses and errors that one would predict in a situation where decisions are being made by people who have no clear criteria and are completely unaccountable for their acts. To be sure, I am especially reluctant to delegate such authority to this particular administration, which has demonstrated such poor judgment in so many different spheres, and has so routinely politicized questions of national security. But I fear that this is an issue that is not going to disappear once the Bush presidency ends.

Question from Burton Bollag:
    Some say that the Bush administration has increased its practice of excluding certain scholars for ideological reasons in the last year or so. Do you agree, and what is the evidence for this?

Melissa Goodman:
    I do believe that there is evidence of an increased penchant for excluding individuals (or failing to act on certain visa applications) for ideologically-motivated reasons. I think it is telling that many of the writers and scholars who have recently been excluded are people who have freely traveled to the U.S. until recently, had valid visas, and never had a problem entering the country.

Here are a few examples of writers or scholars who have barred without explanation or on unspecified national security grounds, under circumstances that appear ideological:

Yoannis Milios, a Greek professor of Marxist economic thought who had been invited to deliver a paper at the University of New York at Stonybrook. Professor Milios was detained at JFK, interrogated about his political views, and ultimately denied entry to the country. The government has not provided any public explanation of its action. Professor Milios submitted a new visa application in July 2006 but the government has thus far failed to adjudicate it.

Adam Habib, a prominent South African human rights and anti-war activist who had been invited to the U.S. to meet with officials from the World Bank and National Institute of Health. Although he had a valid visa and had visited the U.S. on many previous occasions, Professor Habib was denied entry after a detention of several hours. Despite the AAUP's written requests, the government has not provided any substantive explanation of its action; it has said only that the revocation of Professor Habib's visa was "prudential." The ACLU is currently aiding Prof. Habib in his efforts to secure a visa that would allow him to attend the American Sociological Association's Annual Meeting this August.

Waskar Ari, a Bolivian historian of Aymara Indian descent, who had accepted a tenure-track professorship at the University of Nebraska. In addition to thus far refusing to issue Professor Ari a work visa (though DHS recently acted on his petition in response to a lawsuit), the State Department also cancelled (or prudentially revoked) Professor Ari's student visa. According to a State Department spokesperson, the student visa was cancelled pursuant to a "terrorism-related section of U.S. legislation on the granting of visas."

Inaki EgaOa, a Basque historian who traveled to the U.S. to conduct research on Basques in the U.S., including Mario Salegi, a Basque-born political activist, journalist, and writer who later became a U.S. citizen and was a target of McCarthyism in the 1950s. EgaOa was interrogated about his research, detained overnight, and ultimately returned to Spain.

Professor Dora Maria Tellez was forced to abandon her teaching post at Harvard after the government denied her a visa. She had visited the U.S. as recently as 2001. The denial was based on a terrorism provision, possibly invoked because of Tellez's role in the Nicaraguan revolution that toppled the Somoza regime.

Haluk Gerger, a Turkish sociologist and journalist who in the 1990s had been jailed in his own country for his writing about Turkeyis Kurdish minority. Twice in the 1990s, the U.S. State Department criticized Gerger's treatment as an example of the misuse of antiterrorism legislation to stifle free expression. In October 2002, however, officials at Newark airport barred Gerger from entering and returned him to Germany, where he resides.

These are some of the more high-profile examples, but there are many more.

Question from Ian Maki, Univ. of WA:
    I note that the ACLS held its annual meeting outside of the US this year, for the first time. As a person involved in HIV prevention research, I attended an international meeting of community representatives usually held in the United States, that was forced to relocate to South America because so many Latin American representatives could not obtain visas to come to the US (This was in 2005). Are these signs of a workable strategy that could bring business concerns (convention planners, hotels, airlines, etc.) to bear against policy? Would it make any difference if all international entities simply refused to hold meetings & conferences in the USA and simply moved them all outside the USA? Is anybody talking about the negative economic impact of this "problem" or is the impact on this particular industry to miniscule?

Barbara Weinstein:
    Ian, I just mentioned, in my previous answer, the ACLS meeting in Montreal. I do think that holding meetings outside the US, whenever possible, is a good short-term strategy. Unfortunately, it's not an option for the American Historical Association. But whether an exodus of conventions and conferences to other countries will help bring pressure on the government to change its policies--that I'm more skeptical about. I think we've seen, time and again, that this administration isn't responsive to outside pressure unless the interests involved are massive. But perhaps the next administration...

Question from Amy Hagopian, University of Washington:
    This has been enormously helpful and interesting. Will the discussion thread remain posted so we can refer others to it? Thank you!

Barbara Weinstein:
    (from Burton) The transcript of the colloquy will remain on the Chronicle's website -- at: http://chronicle.com/live.

Question from Burton Bollag, CHE:
    Barbara, you were quoted in the article saying that many foreign scholars don't even try to come to the U.S. for academic purposes, because they don't want to put up with the humiliation. Is that a fair assertion? Many would say a short required personal interview with a U.S. consular official is a small price to pay in light of the danger of new terrorist acts.

Barbara Weinstein:
    The first problem is the implication that somehow a short personal interview will allow a consular staffperson to determine whether the person is a danger or not. There is also the problem that in large countries like Brazil and India, the interview often requires expensive, long-distance travel since only a few consulates grant visas. The expense alone can be prohibitive.

But what if the interview doesn't go well? What if the consular official thinks the person is in some way suspicious? There was the famous case of the Indian scientist, one of the most eminent figures in Indian society and someone who had attended dozens of meetings in the US, who suddenly found himself being denied a visa (or it was delayed to the point that it amounted to denial). It became a scandal in India--though I think the party that was humiliated was the US in this case since it was so absurd.

Finally, a colleague of mine who chairs a major department of history, and is not a US citizen, recently found himself nearly denied re-entry to the US because he rolled his eyes during a particularly annoying interrogation. Perhaps he shouldn't have rolled his eyes, but perhaps one shouldn't have to worry about one's life being ruined because of a trivial facial expression. None of this, from my point of view, contributes to our greater safety.

Question from Burton Bollag, CHE:
    Melissa, the article quotes Barbara Weinstein as saying that many foreign scholars don't even try to come to the U.S. for academic purposes, because they don't want to put up with the humiliation. Is that a fair assertion? Many would say a short required personal interview with a U.S. consular official is a small price to pay in light of the danger of new terrorist acts.

Melissa Goodman:
    A short perfunctory interview is one thing. A lengthy defense of your ideological positions may be another. We have heard many people complain about ideological questions in visa interviews such as questions about their views on the Iraq war, U.S. foreign policy, terrorism generally, economic policy. There simply should not be an ideological litmus test for entering the United States, for gaining permission to speak to U.S. audiences, or for teaching in U.S. universities. Again, if the questions were getting at whether people had engaged in violent terrorist act, fine. But if the questions are about whether the war in Iraq is a good idea, it's hard to see how that is about fighting terrorism.

Burton Bollag (Moderator):
    Unfortunately, our time is up. Many thanks to our two guests, and to readers who sent in questions.