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Post-9/11 laws source of campus delays, unease
Concern grows that PATRIOT Act, meant to bolster national security, may threaten academic freedom, civil liberties.

| 07 May 2003

Just six weeks after September 11, 2001, Berkeley’s Institute of International Studies invited a foreign scholar named Noer Fauzi to spend a semester in residence. A brilliant, young Indonesian land-reform activist and a Muslim, Fauzi planned to get training in law and agricultural reform as part of the institute’s workshop on environmental politics, conduct research, and network with environmental organizations during a tightly scheduled campus stay.

All that was needed was a stamp of approval from U.S. immigration authorities. That was 19 months ago, and his visa — requested more than a year ago — has just come through, says the institute’s director, Professor Michael Watts.

He would be less frustrated if Fauzi’s case were an aberration. But ever since September 11, Watts says, one after another of the institute’s foreign invitees has waited for an entry visa, sometimes for the better part of a year. The delays have created a hornet’s nest of logistical problems for the institute and its visitors, and left it with an embarrassment of riches: $126,000 in unspent funds on two grants due to expire at the end of June.

“I just wrote a begging letter to the Ford Foundation” requesting a no-cost extension on these grants, says Watts. “I’m obviously hoping we don’t have to give this money back.”

As a global-affairs program, the institute has been hit early, and hard, by new visa procedures designed to protect the U.S. from terrorism. It is not unique. Since passage of new federal border-security legislation a year ago, a number of Berkeley’s 2,700 international students — fearing visa snafus on their return to the U.S. — have declined invitations to scholarly conferences abroad, while dozens of its 2,000 visiting scholars have experienced frustrating visa delays.

So have their counterparts at schools across the country. An October 2002 survey of 77 U.S. colleges and universities, reported in the Chronicle of Higher Education, found widespread problems — such as stalled research and missed program start-dates — because of greater scrutiny of foreign visitors, longer visa delays, and more visa denials.

Research restrictions
Academia is facing a sea change in other respects as well. The 342-page PATRIOT Act rewrites policy on disclosure of educational records — requiring academic institutions, upon request from law-enforcement authorities, to release information on students, sometimes without their knowledge. And, together with a 2002 law on bioterrorism, it tightens restrictions on scientific research. For instance, the list of “select agents” (microbes and toxins of potential interest to terrorists) subject to strict security measures has been expanded, and government screening is required on every person with access to these substances — from principal investigators and postdocs to custodial workers, firemen, and police.

At the April 22 meeting of the campus Academic Senate, Associate Vice Chancellor for Research Robert Price said the direct impact of these changes at Berkeley is currently “nil” — since no researcher is using any of the select agents in sufficient quantity. “But it’s not inconceivable,” he said, “that the Centers for Disease Control could lower the quantity threshold. That could have a major impact on biological research.”

In light of such developments, a growing number of faculty desire clear policy guidelines on how to comply with new legislation, or worry that national-security measures may violate civil liberties and/or academic freedom. There are no easy answers. Catherine Koshland, chair of the Academic Senate – Berkeley Division, poses the hypothetical situation in which a scientist discovers a method for making a particular virus more or less infectious.

“That information would be very important for researchers seeking to make appropriate vaccines,” she notes. “But it’s also information that any bioterrorist would obviously want.” What should the policy be on publication of those findings? The way effective vaccines are developed and good science is done “is by open and free sharing of information,” she says. “But there are also questions about access for people with nefarious goals.”

Faculty have aired their apprehensions, questions, and opinions on such issues in a variety of forums — beginning with a statement from the Academic Senate Divisional Council in December 2001, in support of civil liberties and academic freedom. Interest has built slowly since that time. Koshland says her own concern was piqued by a “sobering” report this fall by faculty at Stanford on potential effects on research, as well as by the Academic Senate’s Committee on International Edu-cation’s discovery that, under new federal regulations, campus civil-engineering classes studying air-traffic control could no longer make routine field trips to the airport if students of particular national origins were to be included.

“That’s the kind of fallout that is coming — not just from the PATRIOT Act, but from other national-security measures that are in place,” she says. Although few at Berkeley have so far been directly affected by the PATRIOT Act, that’s in part, she thinks, because many of its measures have only recently taken effect. “We need to be circumspect about these issues,” Koshland says.

Administration/faculty group looking at the law
To that end, she and Paul Gray, executive vice chancellor and provost, are chairing the PATRIOT Act Steering Committee, a joint administration/faculty group that’s charged with reviewing potential effects of the law and recommending needed policy changes. The steering committee has been conferring since early this year, as have two temporary working groups — one on disclosure of records, chaired by Registrar Susanna Castillo-Robson, the other on research compliance, chaired by Research AVC Price. The working groups plan to submit their findings and recommendations to the steering committee on May 12.

Parallel to those efforts, an ad hoc group of 88 faculty members, in early March, presented a lengthy letter to the Academic Senate on questions relating to academic freedom and the campus response to the PATRIOT Act. The group has asked Chancellor Berdahl to exert his influence with the Association of American Universities (an organization of 60 research institutions nationwide), to help change the most egregious provisions of the PATRIOT Act and oppose rumored draconian provisions in a proposed law known colloquially as PATRIOT Act II. To grapple with some of the issues raised by the faculty letter, Koshland and Gray plan to appoint a third working group, which will include several philosophers and humanists among its members. “It’s important that it’s not just national-security types who engage in these conversations,” says Koshland. “It should be people who think deeply about what it means to be free and democratic, and ‘liberal’ in one’s thinking.”

National context
Berkeley’s dialogue is mirrored on campuses across the nation. The Chronicle of Higher Education, in its April 11 issue, introduced a special section titled “Closing the Gates” as follows: “The government’s heightened vigilance has no doubt made it more difficult for terrorists to attack America. But that vigilance has also, for better or worse, changed the fabric of academic life….” The report offered capsules from campuses around the country — from research projects stalled by visa delays to librarians caught between their professional commitment to reader privacy and a PATRIOT Act provision requiring them to hand over patrons’ records in response to a court order.

Recently, the director of the Office of Lab Safety at Howard Hughes Medical Institute has said that new security rules, though needed, go too far. MIT faculty have questioned new security measures, as have their counterparts at the University of Wisconsin–Oshkosh, where the Academic Senate recently passed a resolution urging instructors not to cooperate with investigations made under the PATRIOT Act.

Grave issues
Berkeley faculty raised similar concerns at the April 22 Academic Senate meeting, whose centerpiece was a discussion of civil liberties, academic freedom, and national security. Tom Campbell, dean of the Haas School of Business, got people’s attention when he referred to the PATRIOT Act as a “very serious piece of legislation.” A former congressman and Stanford law professor, Campbell asserted that provisions of the act concerning access to student records represent a “serious breach” of the Constitution —specifically Fourth Amendment protections against unreasonable search and seizure.

“I don’t lightly urge ‘we will be the test case,’” Campbell said, “but someone ought to challenge it. The bill passed after one day’s debate, and no committee report.”

Interchange among faculty present suggested the gravity of the issues. When Joyce Lashof, professor emerita of public health, asked what it would take “to get a group of universities to challenge the PATRIOT Act,” Campbell replied that it would take “just one university” willing to challenge the law in court.

But doing so might be risky, noted both Chancellor Berdahl and Michael Nacht, dean of the Goldman School of Public Policy and a former member of the Clinton administration. “If Berkeley took a stand against the act,” said Nacht, “there’s a big chunk of people in Washington who would be thrilled to end all federal funding to us, and put us out of business.”

Steven Weber, professor of political science and a national-security expert, told faculty colleagues: “There are a number of hard choices [related to new security measures] that the campus has, so far, been able to duck.” In the future, he predicted, “that’s going to become much more difficult.”

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