Shortly after one hundred members of Congress called for the resignation of an outspoken Columbia University anthropologist, the case became fodder for Fox News' The O'Reilly Factor. Columbia's new President, Lee Bollinger, was invited to appear and discuss his defense of a junior colleague's academic freedom. When Bollinger declined that invitation, I was asked to take his place, and agreed to do so on March 31, 2003. The segment opened by noting that Nicholas DeGenova, the outspoken anthropologist, had told a Columbia teach-in opposing the war in Iraq that he wished for "a million Mogadishus"-the reference recalling the tragic ambush of U.S. forces in Somalia, vividly portrayed in the film "Black Hawk Down."
After explaining to Mr. O'Reilly why we in the American academic community do not dismiss faculty members even for making outrageous statements, I was startled to find my host in substantial agreement. "I'll tell you what I would do if I were Bollinger," he ventured. "I wouldn't fire this guy; I wouldn't fire this DeGenova. OK? Because I agree with you. You've got to tolerate this kind of speech." Instead, suggested O'Reilly, "I'd shun him. I wouldn't invite him to any faculty things." As the screen shifted to a commercial break, I wondered whether I had heard correctly. A review of the transcript the next morning confirmed the accuracy of my perception-and the startling variation from what most listeners would have expected.
Barely a month after this exchange, another defining moment occurred in the evolution of post-September 11, 2001, academic freedom. A Senate subcommittee released on May 5 the long-sealed transcripts of hearings that Senator Joseph McCarthy had conducted behind closed doors a half century earlier. The release offered a sobering reminder of what Joseph Welch had rightly termed the reckless cruelty of Wisconsin's junior senator. The focus of those secret hearings had been a group of potential witnesses, many of them college professors, whom the subcommittee eventually decided not to interrogate in public. One of those who were slated to be spared such public humiliation actually took his own life before learning of his reprieve.
This startling disclosure evoked diverse reactions on Capitol Hill. Senator Carl Levin, who had recently chaired the relevant subcommittee, expressed his confidence that such excesses would not recur. "There's a greater awareness," he explained, "of McCarthyism and what tactics can be used by people who are trying to quiet dissent." And, he added, "there's greater resistance against those who would try to still voices that they disagree with."
His colleague Russ Feingold, the only Senator to oppose the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), offered a less sanguine view: "What I'm hearing from constituents suggests a climate of fear toward our government that is unprecedented, at least in my memory." And, lest one overlook a special credential, Feingold added, "Don't forget that I am the junior senator from Wisconsin."
In the record of events and developments since September 11, 2001, there is ample warrant for both these views. Within the past year or so, the academic community has received a substantial amount of news that is both good and bad on the resiliency of academic freedom to the demands of national security. It may be useful to review several areas of special attention and activity, through which we might assess whether Levin's optimism or Feingold's pessimism better describes current conditions.
The basic policies and actions of the Federal Government offer the optimal starting point. The USA PATRIOT Act has remained a major focus of academic community concern. Despite serious talk in some government circles of a possible second round of restrictive legislation, the Congressional focus has been more upon mitigating the harshest provisions of the original law than on adopting a wholly new statute.
Although no amendments have yet passed either house, several bipartisan proposals have been introduced-for example, to exempt libraries and bookstores from the gravely intrusive Business Records section, to narrow the "roving" wiretap authorization, and to curb the "sneak and peak" authority which law enforcement had received in the fall of 2001. There was substantial academic community support for the Safety and Freedom Ensured (SAFE) Act introduced in the Senate in late fall 2003, by a bipartisan group that included at least one conservative Republican.
The House came within a single vote of curbing some of the most intrusive of the PATRIOT Act's provisions. On July 7, a tie vote failed to approve the Freedom to Read Amendment, which would have cut off funding for Justice Department searches of bookstore and library records under section 215 of the Act. Although Senate concurrence would have been uncertain at best, so strong a showing of concern in the House suggests substantial erosion of the near unanimity with which the Act became law in the fall of 2001. Any other Congressional action before the election seems unlikely.
Meanwhile, the central issue of the Act's longevity remains unresolved. The original PATRIOT Act provided that some of its most onerous sections would expire four years from their effective date. George W. Bush and others in his administration persistently urged the repeal of the mandated sunset, a step that would make permanent some of the law's worst features. In late May 2004, a bill was introduced in the Senate to remove the sunsets. Although the early expiration date remains in force, and is unlikely to be altered before the 2004 presidential election, it is important to note that many of the most objectionable or invasive provisions of the Act-the Business Records section, for example-are not scheduled to expire, and will remain in force unless separately repealed.
The USA PATRIOT Act has also been targeted in the courts. No fewer than three lawsuits were filed in late 2003 and early 2004 to challenge certain of the law's provisions on First Amendment and due process grounds. Again, the Business Records section is an example. That provision, section 215, enables law enforcement agents to obtain from a secret court an order that compels the holder of such records to reveal what books a person bought from a bookstore or borrowed from a library, even though the person may not be even a remotely suspected terrorist. The recipient of such a demand may not reveal that fact to anyone, most especially not to the person whose records were sought and obtained. Not surprisingly, this "gag" provision remains the major focus of civil libertarians and academic freedom champions.
Another development at the federal level has evoked deep concern within the academic community. There had been early suggestions that a U.S. journal editor who reviewed manuscripts or gave advice to authors from certain parts of the world might invite official reprisal. That concern, remarked Science magazine editor (and former Stanford University President) Donald Kennedy, was overreaction-anyone who so cautioned a journal's staff was giving "simply bad advice."
Ironically, the fear turned out to be closer to reality than the alternative. In the late fall of 2003, the Treasury Department's Office of Foreign Assets Control advised a scholarly journal that (under an obscure regulation) trade embargoes against Iran, Iraq, Cuba, Libya and Sudan forbade U.S. editors and publishers from editing manuscripts or providing other forms of editorial advice to authors from any of those countries.
Although OFAC did, in April 2004, assure the original journal that its peer review process, and related style and copy editing, would not violate the trade embargo, that clarification may only have made matters worse. The OFAC letter went on to warn that "collaborative interaction" and any other "substantive or artistic alterations or enhancements of the manuscript" might still be deemed unlawful "trading with the enemy." Thus U.S. journals still risk potential liability for engaging in the sorts of editorial activity that scholarly journals and literary magazines routinely provide.
In mid April 2004, a group of academic organizations issued a strong and highly critical statement calling for the elimination of such government restrictions. Noting that Congress had (in a 1994 Free Trade in Ideas Amendment) specifically exempted the transmission of "information" as well as "information materials" from the trade embargo legislation, the statement insisted that OFAC's position was contrary to a clear legislative intent. Moreover, the statement added, any such constraint was in clear violation of First Amendment freedom of expression.
Several other concerns persist at the federal level. A major target of academic community concern has been the deterrent effect on foreign visitors and graduate students of delays and even denials of visas essential to U.S. visits. The situation has not improved, and may even have gotten worse. The General Accounting Office recently conceded that the average time required to process a visa-related security check was an unacceptable 67 days. In the spring of 2004 a survey of universities that traditionally enroll the largest number of international graduate students sounded a further alarm. Of the 19 major research graduate centers responding to the survey, all reported a decline in foreign student applications during the current year.
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For fifteen of those campuses, the one-year decline exceeded ten percent. Moreover, the institutions most affected by the drop in applications reported that international students, from whom they were hearing, perceive an unwelcome climate in the United States, especially in scientific fields and even in the study of business, and noted that these students were "searching for academic opportunities outside the U.S."
What remains unclear is whether such losses are temporary, as one would fervently hope, rather than reflecting a permanent diversion of academic talent to apparently friendlier nations in which to pursue graduate science and engineering studies.
In a very different vein, a serious Congressional proposal has drawn concern from the academic community. In early spring 2004, the Senate Committee on Health, Education, Labor and Pensions took up a bill that would establish a politically appointed advisory board to "review, monitor, apprise and evaluate the activities" of federally funded international area studies programs. The task of such bodies would be to assure that such programs are designed and implemented to "meet the national need" and to "reflect diverse perspectives and the full range of views on world regions, foreign languages and international affairs." The bill had already passed the House on a voice vote, almost unnoticed in the fall of last year, and seemed headed for Senate acceptance as well.
The apparent rationale for such a measure was Congressional concern about balance in Middle Eastern studies programs, and a broader perception that some area studies programs reflected an anti-American bias, and discouraged students from working for the U.S. government. Fearing that an ostensibly "advisory" body could come to easily assert substantive control over area studies programs for political ends, many national academic groups have strongly urged the Senate to defeat such an ominous surveillance or monitoring process.
Although national security issues have been muted or even absent on most campuses this past year, two notable exceptions merit attention. In February 2004, a federal grand jury in Des Moines, Iowa, issued subpoenas to Drake University, demanding detailed information about an anti-war conference that had taken place at the private university's law school the previous November.
The subpoenas also sought extensive information about the sponsoring organization, Drake's student chapter of the National Lawyers Guild. Among the requested records were lists of all persons who attended the conference, and reports that the student group was required to file annually with the law school dean's office. The apparent basis for such demands was the belief that the conference had triggered a physical protest at a nearby military base, held a week or so later.
News of the subpoenas quickly became a national cause cˇl¸bre. The Lawyers Guild at once filed a motion in federal district court to quash the subpoenas. Just as quickly, a battery of national groups, notably ACLU and AAUP, entered the fray, expressing their deep concern that such a foray into sensitive files smacked of McCarthyism-apart from what seemed to be grave risk to the federally protected privacy of sensitive student information under the Buckley Amendment. Drake's president took a very firm stand in defense of the conference and the students' freedom.
A few days later, an obviously embarrassed U.S. attorney withdrew his demands-although not before the federal judge had imposed an unprecedented gag order on all the participants. Moreover, it now became clear that law enforcement agents had attended the fall conference, so that most if not all of the subpoenaed information was already in hand-further suggesting a harassing motive behind the seemingly superfluous demands.
The prosecutor explained, in terms that satisfied hardly anyone, that his office was concerned only about the catalyst for the physical attack on the military base, and had no desire to target "persons peacefully and lawfully engaged in rallies, which are conducted under the protection of the First Amendment." Yet the fact that such demands could be made at all, and that those who had been subpoenaed could even for a day be barred from speaking publicly on that subject, sounded an ominous note despite the eventually happy outcome.
At almost the exact same time as the events in Iowa, there was also trouble in Texas. Several U.S. Army intelligence agents aggressively questioned students and staff members about a conference on "Islam and the Law: The Question of Sexism" that had taken place in January at the University of Texas at Austin.
The central theme of the conference was how traditional Islam treats women. The agents visited the UT Law School in early February, seeking information about three Muslim men who had been at the conference and had aroused the suspicions of government lawyers from a nearby military base. When the agents sought a roster of conference participants, but were unable to obtain it, they left the campus empty handed.
After university officials had expressed concern about the visit, in late March the Army's Intelligence and Security Command issued a formal statement acknowledging that the actions of the agents had been out of order. Any such investigation of civilians on U.S. soil is to be conducted by the FBI and not by any branch of the armed forces, explained the statement, so the intelligence agents had clearly "exceeded their authority."
While leaving open for another day the much larger and more troubling question of whether an FBI foray would have been unlawful, the Army's confession of error did at least reduce anxieties in Austin, which had arisen so closely in time to the concern in Des Moines about the subpoenas. In both instances, federal officials at least retreated from a potentially contentious area of conflict, and thereby avoided what might have been grave threats to academic freedom. In neither case, however, was there any clear vindication of the legal interests of those who sponsor controversial events on college and university campuses.
The third academic year since September 11, 2001 once again brought a mixture of good and bad news. While there is much basis for concern, things could have been far worse. Congress could by now have enacted PATRIOT Act II or could have repealed the sunset provisions, as the administration has persistently urged. On the other hand, Congress might have adopted the SAFE Act, or might otherwise have mitigated the PATRIOT Act's most onerous and invasive powers.
Similarly, one could have hoped that by now at least one federal judge would have struck down such measures as the Business Records section of the law. Yet those same courts could have upheld some of the challenged provisions, deferring to national security needs and exigent conditions.
So it goes, through the series of issues and events we have reviewed here. Such is the pattern-down to the February forays in Des Moines and Austin, which on one hand should never have happened at all, yet on the other hand could have ended far worse than they did.
Robert M. O'Neil is a professor at University of Virginia School of Law and director of the Thomas Jefferson Center for the Protection of Free Expression.