Border control for Joe McCarthy.

Border control for Joe McCarthy.

Border control for Joe McCarthy.

The law, lawyers, and the court.
May 11 2005 2:40 PM

Keep Out

Border control Joe McCarthy would have loved.

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Borderline

What if Congress resurrected one of the most ill-conceived laws of the McCarthy era and nobody noticed? In 1952, the House and Senate passed the McCarran-Walter Act, which created an ideological litmus test for entry to the United States by barring foreigners with disfavored ideas or affiliations. The law denied admission to communists and anarchists, among others. For four decades, it was invoked to keep out hundreds of people, including writers (Carlos Fuentes, Gabriel García Márquez), scholars (Belgian economist Ernst Mandel), politicians (Ireland's Gerry Adams, Nicaragua's Tomas Borge), and even a former NATO general (Italy's Nino Pasti). Congress repealed the McCarran-Walter Act in 1990 with great fanfare about eliminating thought-control at the border.

But an attachment to a bill that supplements funds for Iraq, passed by Congress and now on the president's desk, would allow the United States once again to keep out and to deport foreign nationals not for their conduct, but for their politics—their ideas, their speech, and the groups with which they associate. Other attachments to the Iraq spending bill have gotten attention, for imposing mandatory standards on the issuance of driver's licenses and for altering the legal rules for asylum. But the expanded grounds for deportation and exclusion received virtually no discussion.

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Where the McCarran-Walter Act's concern was communists and anarchists, the new law ostensibly focuses on terrorists. By comparison, it makes the Patriot Act look good. That law imposed guilt by association on those who provided material support to a short list of groups specifically designated as terrorist by the secretary of state. This one scraps the designated list for a definition of a terrorist organization so broad that it includes virtually any group that has ever threatened to use violence. Any foreigner can be deported for "endorsing or espousing terrorist activity," for "persuad[ing] others to … support a terrorist organization," for being a "member of a terrorist organization," and for being a "representative" of a "political, social, or other group that endorses or espouses terrorist activity." Under the Patriot Act, speech and membership in a terrorist group were grounds for preventing foreigners from entering the country, but not for deporting those who already live here and are protected by the First Amendment. The new law is also retroactive, so people can be deported today for things they did or said lawfully years ago. And punishment extends even to spouses and children, who may be expelled simply for having a spouse or parent who advocated a proscribed idea or belonged to a proscribed group.

What does all of this mean? According to the new law, an immigrant whose mother supported the African National Congress' lawful, nonviolent anti-apartheid work during the 1980s would be deportable today because the ANC fought apartheid with sabotage and other illegal acts of violence as well as with nonviolent protests. So would an immigrant who supported the Northern Alliance in Afghanistan, the Israeli military, the Nicaraguan contras, or the Palestinian Authority, all of which have illegally used or threatened to use weapons against people or property. Your only shot at a winning defense is to show that you had no idea that the group you supported ever engaged in violence. It doesn't matter if you can prove that you had no connection to the group's violent actions, or that the U.S. government also supports these groups. Indeed, in the same bill that includes these provisions, Congress allotted $5 million to help the Palestinian Authority with an audit.

Republicans sneaked the immigration language into the final Iraq spending bill in a closed conference. But it did not come out of nowhere. Wisconsin Republican James Sensenbrenner, chair of the judiciary committee, sought to introduce the same provisions as part of the Intelligence Reform Act, prompted last December by the 9/11 Commission Report. But the language was dropped so that the intelligence bill could pass by consensus. Sensenbrenner vowed to reintroduce his immigration language. In the Iraq bill, he found a vehicle that almost no one could vote against. The vote in the Senate was 100 to 0.

But all the blame cannot rest on Sensenbrenner and the Republican conferees. Liberal advocacy groups like the ACLU and the National Immigration Forum didn't make much noise about the changes to who can be deported and excluded. They chose instead to focus on the new standards for driver's licenses and asylum. That choice may have made strategic sense. The licensing scheme, with its intimation of a national ID card, potentially affects all of us. And while asylum affects only immigrants, applicants for asylum are more sympathetic than those who are labeled as terrorists.

From the perspective of safeguarding civil liberties, however, the expansion of the grounds for deportation is by far more egregious. Fifteen years ago, when Congress repealed the McCarran-Walter Act, it seemed that our lawmakers had finally learned a history lesson. Each time the law was invoked to bar a writer like Gabriel García Márquez or a politician like Gerry Adams, the person and his ideas got more attention than he had previously enjoyed. And each refusal of entry was widely decried as hypocrisy. Now, however, it appears that all Congress learned from history is that when you want to resurrect censorship at the border, you should do so while no one is looking.