Extreme Vetting of Ideas at the Border

By
Carrie DeCell
April 16, 2019

President Donald Trump has made no secret of his commitment to policing thought at the border. He has spoken warmly of Cold War ideological screening, under which writers, artists, and intellectuals the world over were denied entry to the United States because of their political views. And he has issued executive orders calling for an “extreme vetting” program, insisting that the United States “must ensure that those admitted to this country do not bear hostile attitudes toward it.” The agencies charged with developing the extreme vetting program, however, have not been so forthcoming. In response to the Knight Institute’s FOIA litigation seeking records concerning the government’s asserted power to exclude individuals on the basis of their speech, thought, or associations, those agencies have released only heavily redacted records, with hardly any reference to the extreme vetting program itself. We’re challenging those redactions in cross-motions for summary judgment, including a motion we filed yesterday against ICE and USCIS.

For example, ICE has categorically withheld the legal guidance that it uses when enforcing the Immigration and Nationality Act’s “endorse or espouse” provision, which states that “any alien . . . who endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity” is inadmissible. If given a broad sweep, that text plainly raises First Amendment concerns. In fact, ICE acknowledged the existence of a memo entitled “Inadmissibility Based on Endorsing or Espousing Terrorist Activity: First Amendment Concerns,” which it seems to have circulated to the attorneys in its National Security Law Division as a reference text. But we don’t know how ICE is answering the serious constitutional questions raised by the endorse or espouse provision because the agency has completely redacted the memorandum.

The State Department responded similarly. The Department turned over copy after copy of its Foreign Affairs Manual, the “authoritative source” that “codifie[s]” policies for staff reference, but redacted in every instance its interpretation of the endorse or espouse provision. It’s difficult to see how this redaction could possibly be justified. The Department didn’t redact its discussion of the other speech-related provision in the Immigration and Nationality Act (INA)—the incitement provision. And it didn’t redact its discussion of a previous incarnation of the endorse or espouse provision, which—in an interpretation out of step with First Amendment values—the Department read to cover “irresponsible expressions of opinion.”

When it comes to current policy, the State Department has provided blank space, which makes us wonder whether the administration’s view today is just as broad—or even broader. Indeed, as far as we can tell, the State Department released no records concerning its proposal to collect years’ worth of social media identifiers from the fifteen million foreigners who apply for visas each year. The policy is out of proportion to any legitimate security interest, but well-tailored to allowing bureaucrats to scour the visa applicant pool for voices unfriendly to the administration.

The Office of Legal Counsel (OLC), for its part, turned over nothing but blank pages. That secrecy is of a piece with OLC’s insistence that the public has no right to see the opinions that constitute the “binding law of the executive,” even where, as here, they determine individuals’ concrete rights. (We’ve challenged that position in another case, and we’re challenging it here.)

This excessive secrecy conceals the extent to which the government is (mis)using immigration laws to exclude critical voices from the United States. In turn, American listeners may be deprived of the chance to hear from speakers who choose to self-censor rather than run afoul of this administration’s immigration policies––or who speak out and find themselves shut out. For every Graham Greene or Pablo Neruda visibly excluded by a political litmus test, in all likelihood, dozens of softer voices fall quiet entirely. Like any other effort to punish dissent or purchase silence, tying immigration benefits to ideological conformity distorts the marketplace of ideas. And to what end? As Justice Thurgood Marshall once objected, “the government has no legitimate interest in stopping the flow of ideas.” For just that reason, this White House has no right to “selectively pick and choose which ideas to let into the country.”

The records the Knight Institute has obtained are available on our case page, where you can also follow the progress of our litigation. The Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law serves as co-counsel.