Playing Politics with Visas

By JOANNE MARINER

Monday, Mar. 14, 2005

The list of foreign writers, artists and intellectuals who, at one time or another, have been denied entry to the United States on ideological grounds is a long one. It includes English novelist Graham Greene, Italian playwright Dario Fo, and French actor Yves Montand, as well as Nobel-prize-winning authors.

Reforms to U.S. immigration law passed in the late 1980s and early 1990s -- part of the "Free Trade in Ideas" campaign -- were meant to put an end to the practice of ideologically-based visa denials. Foreigners could be barred from entering the U.S. because of their dangerous acts, but not because of their threatening ideas. Unfortunately, it appears that the use of an ideological litmus test has been revived. The most recent case is that of Dora Maria Tellez, a Nicaraguan historian and former Sandinista official who was excluded from the United States because of purported involvement in terrorist acts.

Tellez may be a critic of U.S. foreign policy, but she's no terrorist. By all indications, the decision to bar her from visiting had little to do with national security and everything to do with politics.

An Open-Ended Definition of Terrorism

Tellez came to prominence with Nicaragua's revolution, in which dictator Anastasio Somoza was overthrown. A medical student at the time, she joined the left-wing Sandinista forces and became a commander, participating in a 1978 take-over of the National Palace in which some 2,000 government officials were detained. She later became minister of health under the Sandinista government, and then an author and historian.

Tellez's actions decades ago in the Sandinista rebellion might well fall within the scope of the anti-terrorism provisions of U.S. immigration law, given their remarkable breadth. Indeed, anyone who has ever committed a crime of violence, or been associated with a group responsible for violence, could be barred under the law.

The law is so broad, in fact, that as constitutional scholar David Cole explains, anyone "who offered his services in peace negotiating to the IRA in the hope of furthering the peace process in Great Britain could be deported as a terrorist." So could anyone who provided support to the South Africa's African National Congress (ANC), Afghanistan's Northern Alliance, or the Kurdish uprising against Saddam Hussein.

Such an overbroad law, of course, invites arbitrary and discriminatory enforcement. Thus Tellez is barred while Jalal Talabani, another former guerrilla leader, is not. Talabani, now a Kurdish politician and a leading contender for the presidency of Iraq, was not only granted a visa when he visited last year, but also a hero's welcome in Washington.

What most distinguishes Tellez from Talabani is not her guerrilla past, but her differing political views.

Protecting American Students from Ideas

Tellez is not the only foreign intellectual to have been barred from the U.S. in the past year. Last July, Swiss scholar Tariq Ramadan -- widely seen as Europe's leading moderate Muslim intellectual -- saw his work visa for the U.S. revoked. A spokesman for the Department of Homeland Security quoted in the Washington Post cited provisions of U.S. immigration law that authorized the exclusion of foreigners who had used a "position of prominence within any country to endorse or espouse terrorist activity."

Many who knew Ramadan's work well were appalled. The American Academy of Religion, a group of religious scholars, joined with the Committee on Academic Freedom of the Middle East Studies Association of North America in objecting to the visa denial. "There is absolutely nothing in the public record ... or in [Ramadan's] scholarly production," the two groups stated, "that would indicate any basis whatsoever for such allegations."

Both Tellez and Ramadan had been offered academic posts at prestigious American universities -- Harvard and Notre Dame, respectively -- and both were forced to cancel their teaching plans.

Gabriel Garcia Marquez, Pablo Neruda ... and Toto Constant

In having been denied a U.S. visa, Tellez joins the ranks of such prominent Latin American writers as novelist Gabriel Garcia Marquez and poet Pablo Neruda. But more surprising, perhaps, then the names of those who have been denied visas in the past are the names of those who have been granted them.

A notorious case is that of Emmanuel "Toto" Constant, who headed a paramilitary group responsible for systematic murder, rape and torture in Haiti from 1991 to 1994. He obtained a visa not long after Haiti's military government fell, and has been protected from deportation ever since.

Toto Constant lives in Queens, New York, a place that Dora Maria Tellez cannot even visit.  A sincere effort to protect Americans from violence-prone foreigners would look to him long before it worried about her.


Joanne Mariner is a human rights attorney based in New York. Her previous columns in terrorism and human rights can be found in FindLaw's archive.

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