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concerns, and that no legislative response was warranted.
This conclusion was a stunning defeat for David Horowitz
and other proponents of such intervention, and undoubtedly
explains the much slower pace of such initiatives in the latter
half of 2007. The conservative “Academic Bill of Rights” may
not be dead as an issue, but it has surely been muted since its
heyday several years ago.
Finally, brief note should be taken of the effect of changing
national policy on academic research after September 11,
2001. Specific provisions of the USA PATRIOT Act and laws
regulating such sensitive matters as the laboratory handling
of biohazardous materials have hampered or complicated the
research process, though perhaps less than might have been
feared in the fall of 2001. Expanded use of the elusive label of
“sensitive but unclassified” has undoubtedly complicated the
grants and government-funded research of many laboratory
scientists, but such problems were not previously unknown.
Indeed, there have been two rather striking victories in the
ongoing struggle between protecting national security and
protecting the academic research agenda. Under threat of
litigation, the Treasury Department substantially modified
regulations of the Office of Foreign Assets Control which
at one point virtually barred either publication by a U.S.
journal of an article by a scientist from any of the five trade-
embargoed nations, or collaboration leading to publication
between a U.S. researcher and a colleague from any of those
suspect countries.
Equally heartening was the scrapping by federal officials
of the dreaded “deemed export” plan, which would have
forced research institutions to obtain export licenses before
foreign graduate students and visiting scholars could work
on certain sensitive laboratory projects in the U.S. The license
requirement would have been tied not to a scholar’s place
of residence, but rather to the place of birth, and would
have greatly expanded the scope of potentially regulable
technologies and programs. In response to a chorus of
protests from the U.S. academic community, by spring 2006
federal officials conceded that vital security interests could be
protected through less intrusive measures, and they effectively
abandoned the now-vilified proposal.
For once, a unified protest from the affected academic
and research communities had found receptive ears in
Washington. Given such partial (and admittedly occasional)
victories, the impact of the anti-terrorism campaign on the
nation’s academic research community has been undeniably
substantial, though far less onerous than many observers
initially feared.
That assessment invites three concluding observations:
First, it is easy to blame all intrusive security-related measures
on the terrorist attacks of 2001, when in fact many sources
of concern have far earlier and deeper roots. The Foreign
Intelligence Surveillance Court, for example, dates back to
the 1970s. The principal “aiding and abetting terrorism” laws
were adopted in the mid 1990s, along with the Clipper Chip,
bans on export of encryption software, and other unwelcome
measures which, like the 11 AAUP censure actions since 2001
that bear no tie to terrorism or the Middle East, remind us
that not everything that troubles us—or imperils academic
freedom—can be blamed on Osama bin Laden.
Second, it is also easy to overreact, even to laws and
regulations that are concededly burdensome but might not
be quite as bad as they seem. One recalls the major national
professional organization which advised its members that,
should they receive a demand for sensitive files under the
PATRIOT Act’s Business Records provision, they not only
could not inform the target of the inquiry (which is correct)
but that they were also barred from contacting an attorney
(which is clearly incorrect and reflects an understandable
overreaction).
Finally, to complete this sobering assessment, it is
important to note that in the event of another terrorist attack
on U.S. soil, all bets are off. Senator Levin would presumably
be the first to recognize howmuch his benign assessment of
current conditions depends on at least a stable level of national
security, and the absence of any further domestic trauma.
Another September 11—perish the thought—and life would
surely be very different.
u
Robert M. O’Neil is director of theThomas 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.
Some politically controversial foreign
scholars seeking to enter the U.S.
have been barred on inescapably
ideological grounds. Others have
encountered protracted delays and
bureaucratic hurdles that have
effectively denied them admission.