AAUP, AAR, PEN Center, & Ramadan v. Secretaries of State and Homeland Security, 463 F. Supp. 2d 400 (S.D.N.Y. 2006 )

OR: Am. Acad. of Religion v. Chertoff, 463 F. Supp. 2d 400 (S.D.N.Y. 2006

In January 2006, the AAUP, along with the American Academy of Religion and the PEN American Center, filed a lawsuit challenging a decision by two agencies of the U.S. Government—the Department of Homeland Security and the State Department—barring Professor Tariq Ramadan from entering the United States to accept speaking invitations extended by the AAUP and other organizations of scholars.  Neither the professor nor the university received an explanation for the government’s action, but a spokesperson for the Immigration and Customs Enforcement division of the Department of Homeland Security told the press in 2004 that the visa was revoked “because of a section in federal law that applies to aliens who have used a ‘position of prominence within any country to endorse or espouse terrorist activity.’”  The lawsuit claims that the government wrongfully used this section of the USA Patriot Act, known as the “ideological exclusion” provision, to deny a nonimmigrant visa to Dr. Ramadan, a prominent Swiss scholar and outspoken critic of American policy in Iraq.
Tariq Ramadan is one of Europe’s leading scholars of the Muslim world.  He is currently a visiting fellow at St. Anthony’s College at the University of Oxford and a Senior Research Fellow at the Lokahi Foundation in London. The ideological exclusion provision (originally added as part of the Patriot Act) allows the government to deny a visa to anyone who has “endorse[d] or espouse[d] terrorist activity or persuade[d] others to endorse or espouse terrorist activity or support a terrorist organization.”  The AAUP lawsuit contends that the government is using the law not only to exclude terrorists but also to influence political and academic debate inside the United States.  AAUP invited Professor Ramadan to speak at its 2005 annual meeting, but because of the visa denial, he was forced to speak by videoconference.  Professor Ramadan was also invited again to speak at the 2006 Annual Meeting.  The AAUP is represented in the lawsuit by the American Civil Liberties Union.
The ACLU also filed an application on behalf of the plaintiffs for a preliminary injunction compelling the government to adjudicate Professor Ramadan’s longstanding application for a visa.  On June 23, 2006, Judge Paul Crotty, a federal trial judge in New York City, issued a decision (pdf) that sharply criticizes the government’s conduct in failing to act on Professor Ramadan’s visa application and orders the government to make a decision on the pending application by September 21, 2006.  The decision, which can be viewed here, makes clear that if the government fails to supply a legitimate and bona fide explanation for its exclusion of Professor Ramadan and the court determines that the plaintiffs’ First Amendment rights have been violated, the government may not continue to exclude Professor Ramadan from the United States.  The court expressed frustration with the government’s repudiation of its original stated rationale for excluding Professor Ramadan; the court characterized the government’s position as “shifting” and suggested that “the government might be in a better position if it explained [the Department of Homeland Security’s] statement of August 2004, reconciled that statement with its current legal position, and provided a legitimate and bona fide reason for its exclusion of Ramadan.”  The court further rejected the government’s claim that the court had no jurisdiction over visa decisions, holding flatly that such an argument does not apply in cases where United States citizens bring suit to vindicate their constitutional rights, including First Amendment rights.  The court’s decision specifically noted that the AAUP had criticized the government’s revocation of Professor Ramadan’s visa.

Update: Just before the court’s deadline, Professor Ramadan received a letter from the United States Embassy in Bern informing him that his visa had been denied for allegedly providing “material support” to a terrorist organization.  The letter cited several donations by Professor Ramadan to Palestinian relief organizations that, the government alleges, in turn gave money to Hamas, a designated terrorist organization; Professor Ramadan had himself previously disclosed these donations to the U.S. government.  The organizations were registered charities in France at the time that Professor Ramadan made any donations, and were not deemed terrorist organizations by the United States until 2003, after Professor Ramadan’s final donation.

On January 30, 2007, the AAUP and the other plaintiffs filed a motion for leave to file an amended complaint, along with the amended complaint itself, available here (.pdf) and here (.pdf), which responds to the government’s material support argument.  Specifically, the amended complaint asserts that the government’s new reasons for excluding Professor Ramadan are as unjust and unlawful as its reliance on the ideological exclusion provision: the organizations were not listed as terrorist organizations at the time that Professor Ramadan gave his donations, and he neither knew nor should have known that they were providing funds to Hamas (if in fact they were).  The amended complaint therefore seeks, in addition to a declaration that the ideological exclusion provision is unconstitutional on its face and as applied to Professor Ramadan, a declaration that the material support provision is inapplicable to Professor Ramadan and an injunction prohibiting the government from relying on the provision to exclude him.

In addition, the amended complaint refers to the AAUP’s historical and ongoing commitment to the free circulation of scholars, including its advocacy of United States immigration reform and its intervention on behalf of foreign scholars who have been excluded from the country on the basis of their political beliefs and associations.  Most recently, as noted by the amended complaint, the AAUP wrote to the Departments of State and Homeland Security to protest the exclusion of Professor Adam Habib, the executive director of South Africa’s Human Sciences Research Council’s Democracy and Governance Programme, and the eventual revocation of Professor Habib’s visa and the visas of his wife and two young children. 

On February 23, 2007, the AAUP and the other plaintiffs filed a Motion for Summary Judgment (.pdf), accompanied by an extensive supporting declaration (.pdf) by AAUP President Cary Nelson.  The motion challenges the government’s reliance on the ideological exclusion provision and the material support provision, and requests several kinds of relief from the court: a ruling that the government’s reliance on the material support provision to exclude Professor Ramadan violates the U.S. Constitution and federal law; a declaration that the ideological exclusion provision violates the U.S. Constitution; an injunction against using the material support provision to exclude Professor Ramadan; and an injunction against using the ideological exclusion provision to exclude Professor Ramadan or any other person.  The motion was supported by declarations from each plaintiff organization, the ACLU’s lead attorney, Professor Ramadan, and an expert on Muslim charities.  AAUP President Cary Nelson’s declaration outlines the AAUP’s historic and continuing defense of academic freedom and scholars’ freedom to travel, as well as the AAUP’s consistent opposition to restrictions on foreign scholars’ ability to address academic communities in this country.

On March 2, 2007, a group of scholarly and First Amendment organizations, including the Latin American Studies Association, the Middle East Studies Association, the Association of American Law Schools, and the National Coalition Against Censorship filed an amicus brief in support of the litigation.  The amicus brief (.pdf) focuses on why the ideological exclusion provision facially violates the First Amendment and the history of the government’s exclusion of controversial speakers.

On May 21, 2007, the government filed a cross-motion (.pdf)  for summary judgment and an opposition to the AAUP’s and other plaintiffs’ motion for summary judgment.  On June 21, the AAUP and other plaintiffs filed a reply (.pdf) and an opposition to the government’s motion for summary judgment.  On July 13, the government filed a reply (.pdf) and supporting declaration (.pdf).  Oral argument was held before Judge Crotty on October 25, 2007, to address whether the government can lawfully exclude Professor Ramadan from the United States under the "material support" provision and whether the "ideological exclusion" provision is constitutional under the First Amendment. 

On December 20, 2007, the district court granted summary judgment to the government.  In the opinion (.pdf), the court held that the so-called doctrine of consular non-reviewability insulates visa denial decisions made by a consular official from judicial review. The court agreed, however, that U.S. citizens (though not foreigners) can challenge exclusion decisions indirectly by arguing, as the AAUP did, that the visa denial violates their constitutional rights--in this case, the rights of the AAUP to hear Ramadan’s ideas. Nevertheless, the court held that even when constitutional interests are at stake, the government need only provide a “facially legitimate and bona fide reason” for the exclusion.

In concluding that Ramadan’s donations to a group not designated as a terrorist organization at the time supplied a facially legitimate and bona fide reason for his exclusion from the country, the court retroactively applied the portion of the Real ID Act (part of the USA Patriot Act) that permits the government to exclude an alien who has provided “material support” to a “terrorist organization.” Specifically, the court concluded that an alien who knows that he or she has given money to an organization that is later determined to be a terrorist organization falls under the material support provision and can be lawfully excluded from this country. The only way to overcome that exclusion is to prove by clear and convincing evidence that the alien “did not know, and should not reasonably have known, that the organization was a terrorist organization.

In this case, Ramadan supplied ample evidence that he did not know, and could not have known, that the Palestinian relief organization to which he donated was a “terrorist organization” (a designation that it did not receive until after his donations). In addition to declaring under oath that he was unaware that the group provided money to Hamas, Ramadan also offered evidence that the organization was a verified and legitimate charity according to the Swiss government at the time he donated, as well as an expert opinion that a reasonable person in his place would not have known that the organization was funding Hamas. Nevertheless, the court concluded that the government had met the “limited burden” imposed upon it, and that Ramadan had failed to show that he lacked knowledge of the relief organization’s “illicit activities.”  The court therefore granted summary judgment to the government.

Appeal: On April 28, 2008, the AAUP and the other plaintiffs, through the ACLU, filed an opening brief (.pdf) appealing the district court’s decision with the U.S. Court of Appeals for the Second Circuit. On July 11, the government filed its response (.pdf), and on August 1, the AAUP and the other appellants filed a reply (.pdf).