In a major win for academic groups fighting the Bush administration's denials of visas to some foreign scholars who have criticized U.S. policies, a federal judge ruled Monday that the government must produce more evidence for the exclusion of Adam Habib.
The ruling rejects the Bush administration's contention that decisions by consular officers cannot be reviewed by courts -- a stance that has already made it difficult for academic and civil liberties groups to get visas for some scholars to attend academic conferences or to accept positions in the United States.
Judge George A. O'Toole Jr. ruled that the First Amendment requires the government to provide a valid and substantiated reason for barring Habib from the United States, when there are groups here that want to meet with him. The decision said that "the government has not given a reason for the denial," and that simply stating that he is banned because he has "engaged in terrorist activities" -- without specifying them in a credible way -- isn't good enough.
Habib is a leading sociologist in South Africa and is currently deputy vice chancellor of research, innovation and advancement at the University of Johannesburg. He has been denied visas that would have been needed for him to accept invitations to speak at the annual meeting of the American Sociological Association and to other groups.
The idea that Habib is a terrorist is absurd to the academics who know him, and who note that he previously visited the United States many times without incident, earned his Ph.D. at the City University of New York, and is respected by scholars around the world. The reason for the unexplained exclusion, many scholars believe, is that Habib is a Muslim who has criticized the U.S. invasion of Iraq and other policies of the Bush administration.
In an essay last year in The Huffington Post, Habib discussed why it was so important for him to be part of the legal challenge to his exclusion. "Am I [a] critic of the U.S. government? Absolutely. In addition to my active participation in anti-war demonstrations, I have been very critical both in my speeches and in my writing about American foreign policy in Africa and the Middle East," he wrote.
"But I have also been equally critical of other governments -- including my own. Is that a rationale for excluding me? I would hope not. Can you imagine if suddenly American academics and citizens were deported from South Africa because they criticized the government's policies on HIV/AIDS? If our governments get in the habit of excluding academics, intellectuals, journalists, and citizens of other countries for ideological reasons, then we are on a slippery slope to the abrogation of all kinds of freedoms. Having lived in apartheid South Africa, I know what this means."
The suit challenging his exclusion came from Habib, the sociology association, the American Association of University Professors and civil liberties groups. Those groups on Monday issued statements praising the ruling. The government's next move is unclear -- and could be complicated by the change in administrations.
Judge O'Toole's decision does not focus specifically on whether the government was justified in excluding Habib, but on the legal question of when visa decisions by consular officials may be reviewed by courts. Generally, the judge wrote, the Bush administration is correct that legal precedent sets a high bar to get over for those seeking judicial review. But the ruling said that the plaintiffs had presented a valid argument that the case should proceed -- forcing the government to provide more information about the visa denial.
Citing past cases, O'Toole said that the potentially valid claim in the case came not from Habib, but from the academic groups that wanted to have him as a speaker, and who argued that their First Amendment rights were violated by his exclusion. So while the case will continue and could result in Habib getting the right to return to the United States, he will no longer be a party.