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Academic Freedom and National Security
Anti-terrorism measures remain problematic for higher education

By Robert M. O'Neil

The fourth year since the tragedy of September 11, 2001 contained a more complex mixture of good and bad news for academic freedom and higher education than any of the three that preceded it. Hardly any facet of university life and activity was unaffected, ranging from restrictions on research programs, to access of visiting scholars and foreign students, to collaboration with academic colleagues from certain countries, to faculty personnel matters, and beyond. Yet as the year concluded, even a close observer would be hard put to say whether academic freedom had, on balance, come out ahead.

This year will probably be best remembered for the bizarre case of professor Tariq Ramadan, a distinguished Muslim scholar who was about to assume an endowed tenured chair at Notre Dame when he learned that his visa had been revoked. Earlier in the year, Ramadan had been offered the Henry Luce Professorship in the Joan Kroc Institute at Notre Dame. A Swiss citizen, he received a visa that would allow him not only to travel freely in the U.S. (as he had done on previous occasions) but also to teach at an American university.

His furniture had already been sent to South Bend, and his children enrolled in schools there, when word came that a decree from Homeland Security had caused the State Department to revoke Ramadan's visa. Despite persistent inquiries by the university and the news media, no specific allegation of potential risk to national security was ever provided. Though Ramadan's grandfather had founded an organization some called terroristic, and he himself had made some enemies in the academic world by speaking harshly both of Israel and of U.S. foreign policy, no acts or threats were cited as the basis for his exclusion.

Indignation about the Ramadan matter was widely expressed within and beyond the academic community. The American Association of University Professors protested, in a letter to the then secretaries of State and Homeland Security, that the visa revocation was anathema to traditions of academic freedom. (AAUP later invited Ramadan to address its June 2005 annual meeting, which he did by video conference.) The Chicago Tribune editorialized vigorously on Ramadan's behalf, wryly observing that Notre Dame's Joan Kroc Institute was hardly a place where one would expect to find a dangerous subversive or a potential terrorist. No explanation has yet been offered for the exclusion of this widely respected scholar.

While the past academic year is most notable for the Ramadan case, University of Colorado Ethnic Studies professor Ward Churchill also energized a major test of academic freedom. Excerpts of an essay he had written soon after September 11, 2001 were publicized on the eve of a scheduled winter speech at Hamilton College. Death threats and a highly volatile climate led the college to cancel the lecture, after first trying valiantly to calm the turbulent waters. In the essay, Churchill wrote that "the men who flew the missions against the WTC and Pentagon were not 'cowards'...[They] manifested the courage of their convictions." He also referred in passing to some of the employees of the World Trade Center as "little Eichmanns," even suggesting that some of the victims deserved their fate.

In Colorado, Churchill's home base, Governor Bill Owens demanded that the outspoken professor be dismissed. But the Board of Regents determined that summary dismissal would be out of the question, and would in fact subject the university and the board to legal liability. Instead, the Boulder campus administration launched a thorough internal investigation. Churchill has resigned his chairmanship of the university's ethnic studies program.

The report, released in late March, established the protected status of the essay, declaring that Churchill's "profoundly offensive, abusive and misguided" statements could not justify his dismissal since they were protected both by the First Amendment and by a professor's academic freedom. But the report also noted that Churchill had been accused of plagiarism by scholars at other universities, that he may have misrepresented certain issues in his writings on Indian fishing rights, and that despite his persistent claims of being a Native American there was "serious doubt about his Indian ancestry."

A third faculty case, largely dormant this past year, has now dramatically resurfaced. Soon after the September 2001 attacks, Palestinian-born computer science professor Sami Al Arian had been suspended, and was later dismissed, by the University of South Florida, where he had taught for two decades. These initial adverse actions seemed to reflect nothing more substantial than concerns from anxious parents, angry alumni and uneasy neighbors after Al Arian had appeared on Fox News' "The O'Reilly Factor," and had confirmed on the air his strongly anti-Israel views.

A few months after his dismissal, Al Arian and several others were indicted on serious charges of materially aiding Palestinian terrorist groups by fundraising in the United States. The trial on these charges began on June 6, 2005, with much media and civil-liberties attention focused on the government's intended use of a decade of wiretapped evidence involving Al Arian and his alleged co-conspirators. The dispute between the professor and the university has been dormant throughout the criminal proceedings, and the outcome of the prosecution may well render this personnel action moot.

Among the cross-currents of this past academic year, there was one very welcome development. Scholars had railed for years at the Treasury Department's ban on many forms of collaboration with colleagues from any of the trade-embargoed nations (Iran, Iraq, Cuba and Sudan, and until sanctions were recently lifted, Libya as well). These restrictions were enforced by the Office of Foreign Assets Control (OFAC), an arm of the Treasury, which had seemed nearly oblivious to the clearly expressed will of Congress that scholarly communications and publications should not be treated like international shipments of arms and drugs for licensing purposes. In the fall of 2004, academic publishers and others filed suit to challenge these restrictive policies, claiming that OFAC persistently violated not only the clear intent of Congress but authors' and publishers' free speech rights as well.

In mid-December, while this suit was pending, the Treasury Department substantially revised the rules, announcing that export licenses would no longer be required for co-authoring or publishing works by scholars from the embargoed nations. This action was greeted with enthusiasm and relief by scholarly journal editors and their authors. Although not all the details were clear, the Treasury had at last recognized what Congress had insisted since 1988-that munitions and manuscripts are profoundly different when it comes to regulating trade with unfriendly foreign nations.

However, in early May the academic community learned that the Commerce Department was contemplating new rules that would require universities to obtain licenses for non-Canadian foreigners before they could work with sensitive research equipment, even if the underlying research is itself exempt from the export licensing requirements (as when the results will be published and widely shared in the scientific world).

Representatives of the research community protested that licensing requirements of this kind could severely hamper laboratory activity. Such draconian policies could also further discourage foreign scholars and graduate students from seeking to study and teach in the U.S.

Diminished access to the U.S. for foreign scholars and graduate students was already a major concern of the academic community. Last fall, the Council of Graduate Schools announced that the number of foreign students enrolled at American campuses had dropped the previous year, for the first time in 32 years, by about 2.4 percent. Early returns in the new academic year confirmed that such declines were almost certain to continue.

These losses, moreover, were not confined either to "sensitive" countries or to technical fields, but extended more broadly across the academic map. Just as this bad news was settling in, Congress blocked an encouraging proposal that would have exempted more foreign students and visitors from having to submit to personal interviews before obtaining a visa for study in the U.S.

In the international arena, the year had in fact begun on an inauspicious note. On the eve of the annual congress of the Latin American Studies Association in Las Vegas, all 61 Cuban scholars who had planned to attend were told they would not be allowed to enter the country since the State Department deemed their presence "detrimental to the interests of the United States."

For months, the U.S. hosts had sought and received informal government assurances that the Cubans would be allowed to enter, and thus expected no problems. Further, some of the planned visitors had earlier been most welcome in the U.S. One had been a visiting scholar at Harvard the previous academic year, after having written his doctoral dissertation on the benefits of direct foreign investment in Cuba. Several of the others, including poets, sociologists, art historians and economists, had lectured and visited freely at American universities without incident.

Yet the news was not all bad for foreign visitors and their hosts. In February of this year the State Department took a very positive step by extending the time that many foreign visitors are allowed to remain in the U.S. before they must renew their security clearances. Such clearance is required in "sensitive" fields, a potentially broad category for foreign scholars. Previously such visitors had to renew their security clearances annually, through a process that at last report took an average of sixty-seven days.

Thus the extension of the clearance cycle to up to four years for students, and up to two years for working scientists, promised substantial relief to visitors in sensitive disciplines. In addition, the State Department has in other ways expedited the "Visas Mantis" process for visitors in technical fields-officially touted as proof that, as Homeland Security official Asa Hutchinson said, "the U.S. highly encourages those with great scientific minds to explore studying and working in our country."

As though to confirm that commitment, in late May the State Department issued new rules making some foreign scholars (mainly exchange visitors) eligible for visas that will not only be valid for five years (in place of the current three) but will permit the visitors to enter and leave the U.S. an unlimited number of times during the five years. Meanwhile, a March report showed a significant reduction in the average waiting time for clearance under the Visas Mantis program.

While it is much too soon to tell whether such measures are adequate to stem the decline in foreign student and visiting scholar access to, and interest in, U.S. study, there are more promising signs in the official U.S. policy and process than at any time since September 2001. We must also bear in mind that the alarming loss of international students reflects other, non-September 11, factors such as more aggressive recruitment by other developed nations and the readier availability at universities in those countries of highly popular curricula.

Finally, there is the persistent presence of the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). Despite extensive discussion of this legislation, the extent to which the law will be renewed remains uncertain. Members of the relevant Congressional committees receive quarterly reports on all of the PATRIOT Act provisions, but the classified nature of those reports keeps the media and the general public largely in the dark.

The current year is a critical one for the future of the PATRIOT Act. The sixteen provisions of the law that were subject to a "sunset" requirement in the original statute must either be made permanent, or at least extended for another term, or they will automatically expire this fall.

In addition to seeking new life for those sunset-targeted sections, the Bush Administration has proposed a significant expansion of the current information-gathering powers of federal agents, enabling the FBI to subpoena certain sensitive records without review and approval by either a grand jury or a judge.

Such an extension of the government's authority seems highly suspect on constitutional grounds. Last October, a federal judge in New York struck down the one provision in the Act that most closely resembles the currently proposed expansion, ruling that it could not be used consistent with the First Amendment rights of those whose records were sought.

Further, in mid-June, a House of Representatives that deadlocked on this issue a year ago decisively blocked (by a 238-187 vote) any funding for subpoenas aimed at library-borrower and book-purchaser records-information that the Business Records section of the Act permits federal agents to obtain through secret court proceedings under the Foreign Intelligence Surveillance Act.

An American Library Association survey of the actual use of the Business Records subpoena power revealed that librarians have received at least 200 such requests since September 2001. (The number of requests is the one item of information that a subpoenaed librarian may disclose under the law, which forbids the recipient from informing anyone of such a demand, most especially the person whose records are involved.)

There are other vigorous efforts to narrow the scope of the PATRIOT Act powers and soften its bite. At least three lawsuits are pending in federal court, aimed chiefly at the Business Records provision. And early this year a new group emerged, devoted not only to preventing the expansion of the Act, but to seeking repeal of three of its most worrisome provisions.

Patriots to Restore Checks and Balances, a diverse coalition that draws support from both political right and left (joining, for example, the ACLU and the American Conservative Union), has targeted the sections of the Act that permit "sneak and peek" searches conducted without a property owner's knowledge, and the Act's broad and imprecise definition of "terrorist" that could easily include non-terrorism suspects. Thus any discussion in Congress about expanding or extending the PATRIOT Act's reach must also reckon with strong opposition.

It seems almost certain that the debate will persist well into the fall and probably winter as well. The outcome both in Congress and in the courts is impossible to predict with any confidence.

Robert M. O'Neil is a professor of law at the University of Virginia School of Law and director of the Thomas Jefferson Center for the Protection of Free Expression.

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National CrossTalk Summer 2005



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