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A Dismal Record
The United States remains inhospitable to many academic guests from abroad

By Robert M. O'Neil

While most outspoken professors based in the United States have fared far better than one might have expected after the September 11 terrorist attacks, the same could hardly be said of controversial foreign scholars who seek to teach and to address academic gatherings in this country.

The most troubling case remains that of Middle Eastern scholar Tariq Ramadan, whose U.S. visa was summarily revoked while he was en route to assume a tenured professorship at the University of Notre Dame (the Henry Luce Chair in the Joan Kroc Institute, no less—where, as the Chicago Tribune quipped, “one would hardly expect to find dangerous radicals.”) Apparently Ramadan—whose own writings and teachings (if critical of U.S. policy in the Middle East) could hardly have been deemed incendiary— became persona non grata to the Department of Homeland Security because of his grandfather’s role in founding a suspected terrorist group.

Efforts by Notre Dame and many U.S. groups proved unavailing; Ramadan quietly took a teaching post at Oxford while accepting an ironic appointment to a high-level U.K. commission studying terrorism. A lawsuit in federal court on Ramadan’s behalf eventually forced the U.S. government to provide a rationale for his exclusion— minimal contributions to a charity with suspected terrorist ties—but in January 2008, the dismissal of that suit by a seemingly sympathetic judge ended any realistic chance for a visa reversal.

Another quite different, though equally disturbing, case is that of South African scholar Adam Habib. Despite invitations from prominent U.S. organizations (notably the American Sociological Association), the government initially denied Habib’s visa request and then failed to process a later application, apparently because of a Patriot Act clause that permits a scholar’s exclusion on the basis of unspecified “terrorist activities.” Several putative U.S. hosts brought suit in federal court on Habib’s behalf in late 2007.

The American Civil Liberties Union provided counsel to the plaintiff groups, arguing that the Patriot Act’s exclusionary provision abridges the free speech and academic freedom of those domestic scholarly groups that have persistently but unavailingly sought Habib’s presence as a speaker. The case remains unresolved, despite Habib’s stature and that of his domestic sponsors.

There have been several other less widely publicized but troubling exclusions of visiting scholars. Riyadh Lafta, a distinguished Iraqi professor of medicine who wanted to share with U.S. audiences his research on unusually high rates of cancer among children in Southern Iraq, was refused a visa. The basis for his exclusion was apparently Lafta’s co-authorship of an article in a British medical journal that contained an unwelcome estimate of the number of Iraqi casualties since the U.S.-led invasion. A liberal Greek economist, Yoannis Milios, saw his visa revoked on arrival in the U.S., and was questioned at length regarding his political views (rather than being allowed to enlighten an American audience about them, as he had intended) before being put on a plane back to Athens.

Beyond such blatantly political barriers, impediments to entry have taken a subtler toll on artistic exchanges. No less eminent a spokesperson than cellist Yo-Yo Ma recently warned a Congressional committee that the barriers to even apolitical foreign musicians “have become extraordinarily high.” Several groups from abroad had become exhausted by (or fearful about) the protracted and cumbersome process required to obtain a visa, and simply abandoned the effort altogether, with grave loss to those who would have been their U.S. audiences, as well as to the performers themselves.

There has, however, been one bright spot in the otherwise bleak view of the fortunes of visiting scholars. Waksar Ari, a Bolivian historian with a Georgetown Ph.D., accepted a faculty position at the University of Nebraska-Lincoln, only to be denied a visa for unspecified reasons. The university kept the offer open while filing suit in federal court on Ari’s behalf. The complaint insisted that Ari had satisfied all visa requirements, and faulted the government for offering no reason for the negative response. In the summer of 2007, without official explanation, Ari was summoned to the local U.S. consular office in Bolivia, where he received his visa. He was thus able to begin teaching at Nebraska in the fall semester, and he addressed the American Historical Association at its annual winter meeting.

So favorable an outcome suggests the potential value both of strong institutional support and of seeking legal recourse, although other potential visitors like Tariq Ramadan remain barred from the U.S. despite such efforts. Indeed, what remains striking is the rarity of such intervention on behalf of controversial foreign scholars, and the generally dismal record of the United States in the post-9/11 period as a host to academic guests from abroad.

Strikingly parallel in complexity has been another international dimension of U.S. academic life—travel to Cuba for purposes of research and study. Here the current legal landscape offers a puzzling paradox of success on one hand and unrequited hope on the other. In late summer 2008, a federal judge in Florida struck down on constitutional grounds a state law that effectively barred state university professors and researchers from traveling to Cuba for scholarly purposes, even with support from private or other non-state funds. The law, enacted two years earlier, banned the use not only of Florida state appropriations for travel to countries (including Cuba) labeled by the U.S. government as state sponsors of terrorism, but also forbade using non-state funds for that purpose.

Although an earlier ruling initially upheld the law, the federal judge in late August split the difference in Solomonic fashion. While holding that Florida could constitutionally limit such use of its own funds, the court found the non-state funding bar wholly at variance with the foreign affairs powers of the president and thus violative of the Supremacy Clause of the Constitution. The judge eventually rejected First Amendment challenges to both clauses, although the primary ruling made those claims legally moot.

A recent challenge to federal restrictions on courses taught in Cuba by U.S. colleges and universities yielded a far less happy result. The Treasury Department’s Office of Foreign Assets Control (OFAC) several years ago issued regulations that bar short-term study trips to Cuba (less than ten weeks in duration), demand that only full-time tenured faculty members may lead such trips, and forbid U.S. host institutions to enroll students from any institution other than their own. Any U.S. institution wishing to offer courses in Cuba, even within these severe constraints, must obtain an OFAC license for that purpose.

Under the auspices of the Emergency Coalition to Defend Educational Travel, 450 Cuba-related professors brought suit in federal court, claiming that the regulations severely hampered their research and teaching (and the study options of their students) in a critical area, thus abridging free speech and academic freedom. (The immediate impact of these rules had been devastating; U.S. study abroad programs in Cuba dropped from roughly 200 to a mere handful after the regulations took effect.)

A late summer ruling by the district court rejected all the plaintiff’s claims and upheld the OFAC embargo. The judge deferred broadly to the government’s asserted national security interest, accepting as “important” and “substantial” the stated goal of limiting the flow of U.S. currency to the Castro government. The court also rejected the asserted academic freedom and free speech claims, on the grounds that the challenged rules were “content neutral” and would have been vulnerable only if they reflected viewpoint or content bias— despite the manifestly selective focus of such rules in targeting the study of or travel to a particular country.

In a happier vein, one should note that OFAC does not always succeed in curbing international cooperation. For several years the editors of U.S.-based scholarly journals challenged OFAC regulations that compelled any such journal to obtain a license before even editing manuscripts submitted by authors from any of the five embargoed countries (Cuba, Iran, Iraq, Libya and Sudan).

The rules also effectively barred U.S. scholars from co-authoring articles with colleagues from any of those nations. Academic publishers reacted in varied ways. Some scrupulously avoided any possible violation, while others openly flouted rules they deemed not only indefensible but in clear contempt of clearly expressed Congressional intent to permit such collaboration.

Once again it took a lawsuit to break the deadlock, but litigation did prevail. In the fall of 2007, facing a probably adverse court ruling, OFAC essentially lifted these barriers, retaining the licensing requirement only for publications that involved militarily sensitive content or direct collaboration with an official of an embargoed nation. Although some uncertainty remains over when a professor at a statecontrolled Iranian university must be deemed a “government official,” most of the venom has been removed from one of OFAC’s more intrusive regimens. The outcome seems once again to illustrate the value of litigation as a way of getting attention to academic freedom issues and protecting the rights of scholars and students in these anxious times.

Even at home, all has not been smooth or quiet for outspoken professors. Two quite recent cases remind us of the need for caution even about the domestic scene. Early in 2008, national attention focused on the role that University of California, Berkeley law professor John Yoo had played when he took leave from his faculty post soon after September 11, 2001 to serve in the Justice Department’s Office of Legal Counsel. In that role, he wrote several memos that were later revealed to condone certain interrogation practices in Iraq and Afghanistan that were later disavowed by the Bush Administration and condemned by many members of Congress. When the principal memo became public in March 2008, lines were drawn—some critics even suggesting that Yoo should be dismissed from his tenured professorship, while others defended the law school administration’s continued support for Yoo despite the controversy.

Christopher Edley, the dean of UC Berkeley’s School of Law, responded that only a conviction for war crimes would warrant launching the draconian process that might result in a tenured professor’s dismissal. One Yoo detractor invoked an analogy to the case of University of Colorado professor Ward Churchill, arguing that Yoo, like Churchill, could be found to have engaged in grave research misconduct and should therefore be similarly condemned by a jury of scholarly peers even if his public rhetoric were deemed to be protected under the First Amendment.

Eventually, as the 2008-09 academic year opened, and Yoo remained on the law faculty, the controversy subsided, though not before the Senate Judiciary Committee voted to keep the controversy alive by subpoenaing Yoo’s and other “torture memos” from a recalcitrant Bush Justice Department.

Another very recent case differs markedly, though it too remains in limbo. In September 2008, J. Reece Roth, a recently retired University of Tennessee engineering professor, was convicted in federal court of illegally exporting technical information pertaining to certain uses of plasma technology that he had designed under a government contract. The relevant provisions of the Arms Export Control Act require that anyone planning to export weapons and sensitive materiel to a foreign nation other than Canada must obtain a federal license. Roth was specifically charged with such unlicensed exporting on the basis of having shared sensitive information with two graduate students, one Iranian (whose “embargoed nation” status posed special risks) and the other Chinese.

What puzzled many observers about Roth’s conviction was that in the late 1990s two federal appeals courts had categorically invalidated regulations derived from the Arms Export legislation, at least as they barred the unlicensed sharing with foreign colleagues or graduate students of encryption software or algorithms. Both courts found serious and substantial First Amendment flaws in the challenged regulations, and that seemed to end the matter, leaving in place only the core ban on the unlicensed export of actual munitions. Reece has not yet decided whether to appeal his conviction, while supporters of academic freedom have puzzled about the apparent incompatibility of these recent charges with the outcome of the earlier cases.

At the same time, the longest-running and most contentious case involving the academic freedom of a U.S. scholar seemed to have reached its end with the release of Sami al-Arian from federal custody. Once a tenured professor of computer science at the University of South Florida, al-Arian had appeared on Fox News’ O’Reilly Factor a few days after the terrorist attacks of September 2001. When he admitted on the air to having once called (in Arabic) for “death to Israel” and to soliciting support for the “American Jihad” his university was flooded by calls from angry alumni, anxious parents and apoplectic neighbors. The institution’s president ordered the professor’s immediate suspension, and soon began dismissal proceedings. Early in 2003, al-Arian was charged in federal court with several counts of terrorist activity and was incarcerated. A summary dismissal from the South Florida faculty followed almost immediately

After a trial two years later, al-Arian was acquitted on several counts, while the jury deadlocked on others. Prosecutors who had failed to obtain a conviction on any of seventeen counts of terrorist conspiracy eventually agreed to a plea bargain under which al Arian would have been released (and promptly deported to Egypt) in the spring of 2007. His release did not occur, however, for another year and a half. Incredibly, despite his liberation, al Arian remains in contempt of a federal judge for refusing to testify against alleged fellow terrorists, without receiving an adequate grant of immunity—a state of jeopardy which the Supreme Court confirmed by refusing review in October 2008.

The al-Arian case is distinctive, if not unique, in several respects among post-September 11 threats to academic freedom. For one, the University of South Florida was justifiably faulted for suspending a long-tenured professor without due process, as well as for barring him from entering the campus, ostensibly on the basis of mere adverse publicity; although USF officials apparently knew about the forthcoming federal indictment, they could not publicly invoke such forebodings. Much later, al Arian’s effective exoneration by the federal jury brought no reprieve from university officials, though his severance had been triggered by the indictment. Finally, USF had earlier sought a judicial imprimatur for its efforts to dismiss al-Arian; an impatient federal judge quickly dismissed the case, remitting the university to internal remedies that must precede any quest for court review.

A host of other outspoken university professors who might well have been targeted for reprisal have fared far better in the anxious times since the terrorist attacks. The New Mexico historian who told his freshman class on the afternoon of September 11 that “anyone who can blow up the Pentagon gets my vote” and the California English instructor who a week later reportedly accused his Muslim students of “flying two planes into the World Trade Center” were both suspended with pay, but eventually reinstated (albeit with a reprimand) after exhaustive inquiry.

Even the contentious Ward Churchill was exonerated on free speech grounds after posting an essay that described some World Trade Center victims as “Little Eichmanns” and lauded the hijackers for having “manifested the courage of their convictions.” His eventual dismissal from a tenured post on the Boulder campus resulted instead from proven charges of research misconduct and clearly not from his controversial writing or speaking on political issues. Other academics who have expressed similarly uncongenial, and even abhorrent, views in the seven years since the hijackings have fared far better than their controversial predecessors during the McCarthy era of a half century earlier—or, for that matter, better than a seasoned observer might have expected on the morning of September 12, 2001.

Finally, the prospects for international students attending U.S. campuses remain curiously mixed. On one hand, the actual number of foreign students has continued its modest rise since the dramatic drop in the year or two immediately after September 11. Meanwhile, however, as a May 2008 conference of the Association of International Educators noted, recent reports confirm that many academic visitors still experience major delays both in obtaining U.S. visas in their home countries and in gaining actual entry to the U.S. upon arrival. A surprising number of such students reported that concerns about visa issues actually hampered their studies on U.S. campuses; many said they had, for example, declined invitations to attend scholarly conferences in a third country because of uncertainty about their return prospects.

At that same conference, however, Homeland Security Department officials unveiled plans for a substantially friendlier SEVIS (Student and Exchange Visitor Information System) for screening and clearing foreign visitors, scheduled to go online by fall 2009. The core of the new system would be the creation and maintenance of a single record for each foreign student, in contrast to the currently confusing (and sometimes irreconcilable) multiple records. Skeptics among the international student advisers seemed hopeful, though they recalled past promises that had not fully materialized.

Robert M. O’Neil is director of the Thomas Jefferson Center for the Protection of Free Expression, director of the Ford Foundation Difficult Dialogues Initiative, and visiting professor of law, University of Texas at Austin, Spring 2009.

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National CrossTalk Fall 2008



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