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The Lawfare Podcast
Lawfare Daily: Ideological Exclusions and Deportations with Julia Rose Kraut
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Podcast Host
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings. Rational Security Chatter, Lawfare no Bull and the Aftermath.
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Julia Rose Kraut
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Julia Rose Kraut
This is consistent in the history of ideological exclusion and Deportation we see this again and again and again in terms of the use of discretion, as well as those who are pushing for more deportations and exclusions and those who are seeking to be a bit more careful and nuanced.
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Tyler McBrien
It's the Lawfare podcast. I'm Tyler McBrien, managing editor of Lawfare, with Julia Rose Kraut, author of the book Threat of A History of Ideological Exclusion and Deportation in the United States.
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Julia Rose Kraut
Well, it's very important to note that while we have a long history of the use of ideological exclusion deportation in the United States as tools of political repression, we also have a long history of the challenges to ideological exclusions and deportations.
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Tyler McBrien
Today we're talking about Julia's book, which was originally published in 2020, and how it can help us make sense of the Trump administration's recent immigration and deportation policies. So, Julia, I want to start with just laying out the main arguments that you make in your book, just to get everyone on the same page. And then we'll move from there and talk about using the book as a lens to understand the current moment. But first, please just give us a bit of the lay of the land of your book.
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Julia Rose Kraut
Well, my book is called Threat of A History of Ideological Exclusion and Deportation in the United States, and it is a long history of ideological exclusion and deportation and what I mean by that is the barring or expulsion of foreign nationals from the United States based on their political beliefs, expressions, or associations. The format is kind of a long narrative that begins with the Alien friends Act of 1798 and goes through to different eras, into the 20th century and through the 21st to the war on terror and the first Trump administration. And it's this long narrative, different. Different periods of time, where ideological exclusions and deportations have been used. And what I argue is that, particularly in the name of national security, ideological exclusions and deportations have been used as tools of political repression to suppress what I call the threat of dissent, which would include criticism of U.S. policies or politicians, challenges to the status quo, calls for reform, revolution, membership in organizations that would be considered radical or subversive, and that we can trace these ideological exclusions and deportations over time and the use of them as tools of political repression, and that they have continued and endured. So have the. Just as these laws have continued and the use of them, there have been challenges to them consistently. One of the things about the book is that what you get is not only looking at these laws, but also looking at the challenges to them. And so you get the voices of those who are excluded or deported. You get the challengers, lawyers, members of the public who have protested, members of the press. You have those who had advocated for those laws and pushed them, and those who have advocated to change them. And so all of these are part of this long story.
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Tyler McBrien
That's a really helpful place to start. I definitely want to get into some of those challenges and both successful and failed, and the lessons that carry forth to today, as well as some of the mechanics of how these laws work. So maybe a way to get at that. First, I would love to hear a sort of potted history of ideological exclusions and deportations in the U.S. you mentioned that maybe the Alien Friends act is a good place to start. And I also. I think it's a great place to start because as you illustrate so well in the book, the history of ideological exclusions and deportations also coincides with the history of partisan politics in a way. So maybe we could start there. And if you want to take us through a couple of the milestones within this history and the different acts that really stick out to you.
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Julia Rose Kraut
So the discussion of the Alien Friends act, again, we hear more of the Alien and Sedition Acts. And so the Alien Friends act is part of that of 1798. And I talk about that in the first chapter, along with later on in the late 19th century, the Chinese Exclusion act, and a number of important Supreme Court cases that established the federal power, federal immigration power and the power to exclude a deport. But you know, I'm using that as kind of a window into understanding this phenomenon of tremendous power held by Congress to exclude our deport and through the Executive branch to enforce that power. And the Alien Friends act is the first example. But it really kind of sets the stage in terms of examining what is this tremendous power that is held and is there, there can be checks on that power. And also the justification for that act immigration is not really included in the Constitution. So the justification for that act appears later on in the Supreme Court decisions in the late 19th century. So this is really kind of setting the stage of looking a little bit about that plenary power that's held by Congress and the judicial deference to that power that is held as well as the executive to enforce that power of exclusion and deportation. But really it's kicking off with the Alien Friends act of 1798. And there were no deportations under that act, but that wasn't for lack of trying. And so I show in that chapter a little bit about the blank deportation warrant signed by President John Adams that was ready to go, never used. But also behind that was that tremendous power. And at that time there was also suppression of, of dissent through the, the Sedition Act. So this is a very important moment. And what we do is, is, is we take, I take that moment and I show how in the early 20th century and going through the 20th century to the 21st, that we have this ideological exclusion and deportations that begin with the war on anarchy. And that's what I discussed in chapter two, which is after the assassination of President McKinley in 1901 by a self proclaimed anarchist named Leon Czolgosz, Congress passes an ideological exclusion law targeting anarchists. And we see that that is on the books and that has a legal challenge brought by Clarence Darrow to an exclusion under it. And we have our first kind of legal precedent affirming the power of Congress to exclude and the lack of rights of those seeking entry under the Constitution. And so that really paves the way for ideological exclusion, deportation. Other moments include that people might be familiar with the Palmer Raids and the Red Scare, which I discussed in chapter three, the Great Depression anti communism in the 1930s targeting labor agitators and alleged communists. And that's something I talk about in chapter four, the Cold War McCarthyism, in chapter five, the Nixon administration, that it's beginning to use Some of these ideological exclusion deportations that were introduced in the 1950s, still in the late 60s and 1970s, Nixon administration is using it. And that I discussed that along with a very famous case, Klondites vs Mendel 1972 in the Reagan administration, which is something that I discussed in Chapter 7. There is use of ideological exclusion. And then there's also a push by members of the public and civil liberties organizations and members of Congress to repeal ideological exclusion deportation provisions, which then paves the way for other provisions, including a foreign policy provision that we're seeing today being used by the Trump administration. And then I end in chapter eight with the war on terror and the first Trump administration and use of ideological exclusion.
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Tyler McBrien
Yeah, I just want to add also, you know, as you mentioned, the John Adams never used those powers, but in many ways he didn't have to, as you write so well, because many targeted enemies self deported. And I think that was such an important through line in the book for me that as you write in the conclusion, this isn't really a story that you can get the full picture from the statistics of those who were deported, but rather these ripple effects of self deportation, other chilling effects. So yeah, in thinking about that history, what were these first and second order effects, especially during periods when the ideological exclusion and deportation laws solidified in power and these high points of that, what were, what were some of the, the impacts on American society?
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Julia Rose Kraut
And you're right to bring up in terms of my conclusion, where really this, the story of ideological exclusion deportation is one of fear. It's not really one of numbers as much, but it's fear. And the chilling effect. Precisely. And this is so what you had is you had those who advocated for ideological exclusion and deportation provisions and their use did so in the name of national security. They were essential and they often, they even brought up sometimes foreign policy concerns. But it's the challengers who said that, you know, this is a real problem, that ideological exclusion and deportation provisions turn public officials into censors. They violate First Amendment principles, that they chill and suppress free expression and association and that both citizens and non citizens are affected by this, that it undermines democratic values and essential to self government. It damages the reputation of United States at home and abroad. It hinders scientific progress and artistic expression and exchange. And then it depicts the United States as a nation that is not confident in its values and ideals, but rather a nation that is fearful of ideas and free expression. And I mention that because that chilling effect is significant and we see this throughout history. So something that I bring out in the book is that the chilling effect on free expression and association is real. And it is at every instance in history when we deal with ideological exclusion and deportation. But also these arguments run throughout this story. So the arguments against ideological exclusion, deportation, because of its chilling effect, because of its damage to the United States reputation, how it turns public officials into censors and undermines the very values that those who are advocating for ideological exclusion, deportation say that they're trying to protect. And it has nothing to do with national security, but instead undermines what it is to be a free, democratic nation.
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Tyler McBrien
Historically, how have the courts interpreted this question and these challenges to ideological exclusions and deportations on free speech grounds rather than immigration grounds? In other words, can you situate these issues at the intersection of both First Amendment legal doctrine and precedent and immigration?
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Julia Rose Kraut
So this is, you know, ideological exclusions and deportations present a very interesting and unique intersection of First Amendment immigration law. And as I just said, that, you know, the. The challengers to these laws and their implementation emphasize that this is really, you know, these laws are being used as tools of political repression that are used to suppress free expression and association and that they should be subject to First Amendment legal standards and protections. And those who advocated for the use of ideological exclusions and deportations said, well, this is an immigration issue. What you find is that the courts have consistently interpreted mostly as an immigration issue, and therefore it has fallen under, was considered the plenary power doctrine, which insulates ideological exclusions and deportations from substantive judicial review and from due process protections. It's gotten a little bit better over time, for in terms of ideological deportation and the application of First Amendment standards and protections, but for exclusion, not so much. And I talk in the book about a particular case that's very important that happens in 1972, Klondike versus Mendel, where you have American university professors who sue to get a Belgian Marxist economist named Ernest Mendel into the country. He had been invited to speak at various universities and had been excluded under the McCarran Walter act and an ideological exclusion provision. These professors sued under the First Amendment saying that Mendel's exclusion violated their First Amendment right to receive information and to hear. So this was a unique, important legal strategy and argument, and the Supreme Court allows them to have standing that this is an acceptable way of challenging ideological exclusion. But in that case, what Justice Harry Blackmun, who issues the opinion, states is that he upholds the exclusion of Ernest Mandel because he finds that the government has issued a, quote, facially legitimate and bona fide reason for the exclusion. And that becomes the standard used. Now that's a standard as opposed to being able to have full discretion to exclude whomever the government wants with no standard or no reason articulated. But it's far lower than the First Amendment speech protective standards, including the imminent and immediate harm standard, the Brandenburg test. And so it's far below that does not match the standards that would be used to evaluate a First Amendment claim to those within the United States. And that becomes of issue that really shows that ideological exclusion. Well, there needs to be an articulated reason that standard is far below what is used for a typical First Amendment case. And we'll see later that this is kind of challenged and that has affected statutes in terms of addressing that disparity. But still that is with us today, that legal precedent and is something that has helped perpetuate the use of ideological exclusion as a tool of political repression.
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Tyler McBrien
I want to bring in all the branches now in terms of maybe a separation of powers question. So you've, you've laid out a bit of how the courts have have treated the issue. But I want to talk about also tensions between the legislative and executive branches over the passage, revision, implementation and enforcement of these laws. How how is that jockeying between the other two branches played out in the history of ideological exclusions and deportations?
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Julia Rose Kraut
Well, what something that I bring up in the book is that there is jockeying that is going on and that there is there are tensions between the branches. While we do have judicial deference to the legislative and executive branches, when it comes to exclusion and deportation, the legislative and executive branches have not always agreed on how to proceed. And so particularly in chapters three and four and into as well as chapters chapter six, I talk a little bit about those tensions. So for instance, you have tensions with the administration, the implementation of ideological exclusions and deportations, those who have pushed for more exclusions and deportations and those who have held back or those who have internal interpreted the law in a particular way that delayed or canceled deportations. And so you have is during right after the Palmer Raids where you have the mass kind of what was described by Louis F. Post, the acting Secretary of the Assistant, rather the Assistant Secretary of Labor at the time in 1920, a deportations delirium, there was pressure on Lewis Post to deport more deport more of those who had been rounded up in these Palmer Raids. And he used his discretion in his role to analyze the particular statute and be carefully see whether each deportee fell under the statute and would be Deported members of Congress sought to impeach him for that careful analysis and in interpretation, he survived impeachment by saying he was, you know, he was following the law and he was interpreting the law in a manner that was consistent with his understanding of the ideological exclusion provisions and the deportation provisions. The same thing happened later in the 1930s with Frances Perkins, the Secretary of Labor. She was also threatened with impeachment for her decisions in terms of interpreting the law and her delay in waiting for more clarity on the law. In the deportation case of Harry Bridges, a labor activist, we see later that this is another kind of tension between what the implementation and the interpretation of the law, the discretion and the push to deport or exclude more or to hold back. And we see that tension also. I mentioned the Nixon administration. We see within the Nixon administration regarding issuing Belgian economist Ernest Mendel a waiver of inadmissibility to come to the United States to speak on college campuses, and the Attorney General John N. Mitchell refusing to grant the rate waiver, and Secretary of State William P. Rogers baffled of why there was tension even within the administration over that decision. In addition to legal challenges, this is consistent in the history of ideological exclusion and deportation. We see this again and again and again in terms of the use of discretion as well as those who are pushing for more deportations and exclusions and those who are seeking to be a bit more careful and nuanced.
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Tyler McBrien
I'm curious if there are any more methods of deportation. Any other statutory maneuvers that we haven't mentioned yet. I'm thinking particularly of the government's attempt to deport Emma Goldman after the 1901 assassination of McKinley, who was a citizen by marriage. And I think a really interesting part of the book is, is when the government passed a new law in order to call into question or to denaturalize Goldman's husband. And then after that was possible, then Goldman herself would lose, would be denaturalized. One line that really stuck out to me in the introduction is you write, the statutory basis is often a pretext used to selectively target individuals and to conceal the motivation to punish and suppress dissent. So what other pretexts do we see? What other methods by which the government uses to deport people?
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Julia Rose Kraut
It's good to bring up the Emma Goldman case in the sense of that she's representative of a few cases that I mention of a concerted effort by the government determined to deport, say, a particular individual. And the government was very keen after the assassination of President McKinley in 1901, to deport Emma Goldman. And then they found a way to do so by a way of denaturalizing her and then leaving her vulnerable to deportation. And deportation didn't happen right away. It happened after a change in the law that allowed for her deportation. And she was deported along with her comrade Alexander Berkman in 1919. We see other concerted efforts to deport and even that would also mean changes in the law. Harry Bridges is another example. The labor activist in the 1930s, Australian born. And the government, particularly Congressman Martin Dies of the Dyess Committee. The HUAC House of UN American Activities Committee as well as FBI Director J. Edgar Hoover were very adamant that Bridges should be deported. And attempted to deport and pushed to deport, deport Harry Bridges. And it was Secretary of Labor Francis Perkins who stood in their way. And their first attempt, the first attempt to deport him failed. Congress changed the law under the Alien Registration act, also known as the Smith act of 1940. And changed a provision in the law that allowed for not just present members of subversive organizations in which they argued the Communist Party fell under, but also past membership in such organizations. And it was through that change in the law that they attempted once again the government attempted to deport Harry Bridges. And this case went up to the Supreme Court. And also failed in terms of finding that Harry Bridges had never been a member of the Communist Party under the statute. And that their efforts to later then denaturalize Harry Bridges and deport him once again into the 1950s also failed. But those attempts were made. So there was a concerted effort to try to deport this one man. And marshaling all the governmental tools to do so. And what we see also is that that continues on through the 20th century. Another example. Nixon administration and attempting to deport John Lennon. The Beatles. And in the 1970s there was an effort by the Nixon administration to suppress the New Left. And there was a real concern about Nixon's reelection. And it was actually a suggestion from Senator Strom Thurmond to find a way to kick out John Lennon who was in the United States on a visa because of his popularity and the New Left's ability to use his popularity to thwart Nixon's reelection. John Lennon was outspoken against the Vietnam War and a critic of the Nixon administration. He became a target. And those efforts which I detail in chapter six of the book. The efforts to deport John Lennon fail. That selective deportation of John Lennon fails. They use a provision that was not an ideological exclusion deportation provision. This was actually a drug possession offense. John Lennon was admitted on a waiver of inadmissibility. And so there was a revocation of of his visa and an attempt to deport him and under under that provision. So which wasn't an explicit ideological exclusion or deportation provision. But again, those efforts failed because it was a selective deportation that was targeting his First Amendment free speech rights and that he this was something that was that the Second Circuit said was a selective deportation that violated the First Amendment. And in terms of deliberately trying to use this as a pretext to suppress free expression. And so we see this again and again and again. This is not new, but runs through the history of ideological exclusion, deportation When.
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Podcast Host
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Tyler McBrien
We're drawn to nature. Whether it's the recorded sounds of the ocean we doze off to or the succulents that adorn our homes, nature makes all of our lives, well, better. Despite all this, we often go about our busy lives removed from it. But the outdoors is closer than we realize. With alltrails, you can discover trails nearby and explore confidently with offline maps and on trail navigation. Download the free app today. Yeah, this feels like a good opportunity to fast forward to today. So many of the characters you talk about in your book are famous, are outspoken, are part of maybe a. A privileged class of artists or activists. Charlie Chaplin is another character in the book. But if you look at some of the targets of deportation or exclusion today, many people are ordinary people. They're not neither hold outspoken political opinions, nor are they activists. I think a big exception to that are a lot of the Palestinian rights activists who are being targeted right now. This is a long way of asking. You published your book initially in 2020, and it's safe to say a lot has happened since then. And the word unprecedented has been thrown around a lot since the second Trump administration began. So, just from a broad view, your view, what represents continuity in the second Trump administration's recent immigration policy. And what to you represents a break. What has surprised you, I think, since Inauguration Day of this year?
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Julia Rose Kraut
Well, what I would say in terms of when you say unprecedented, how I describe the Trump administration right now is that it appears to be using all of the tools left in the toolbox to exclude, deport, surveil and detained foreign nationals. It is deliberately turning to existing law. That is part of its, its plan. And we see that even in, in a article published by the New York Times In November 2023, members of the Trump administration, including Stephen Miller, laid out the plan, the immigration plan for a potential second Trump term. And what the Trump administration is doing is pretty consistent with that plan. And so I think one might be horrified by that, but shouldn't be surprised. And I think that in terms of learning more about the history of ideological exclusion and deportation, you know, ideological deportation is not new. And this appears, what the Trump administration is doing now appears to be more of a continuation and escalation than a break. We also see, you know, part of the story that I describe in my book Threat of Dissent, is not only about exclusion and deportation, but the challenges and the lawyers who are challenging exclusion deportation. And I describe how the those lawyers, like for instance, Carol Weiss King, general counsel to the American Committee for Protection of Foreign Born, were targeted and investigated by the government. And so the targeting of lawyers and advocates challenging exclusion deportation is also not new. So we're talking really about that this is the use of ideological deportation and as well as exclusion is not only not new, but is not surprising here. What I think is unusual and may be unprecedented is that there is a type of everything everywhere, all at once strategy by the Trump administration. We see that the Trump administration appears to be approaching immigration deportation policies in a relentless manner. We haven't quite seen to this extent the sheer lawlessness, recklessness, shamelessness and vindictiveness quite before. And that I would say is maybe, maybe unprecedented in the manner in which this is being implemented and executed, as well as the use of technology like social media. And I would say too is that, you know what, one thing that has surprised me has been the use of a particular foreign policy provision in the Immigration Nationality act to deport student protesters, including Mahmoud Khalil. And that that was surprising to me in terms of using that foreign policy provision and may be unprecedented in terms of its use by the Trump administration.
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Tyler McBrien
So I want to talk about that foreign policy provision because it's been in the news so much lately as it relates to Mahmoud Khalil's case. Can you remind listeners a bit about the history of the provision, how it's used, how it's invoked, especially as it applies now today to Mahmoud Khalil?
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Julia Rose Kraut
Sure. It's very important in terms of looking at this foreign policy provision to note when it was added to the Immigration Nationality act and a little bit about its background and also its legislative history. I talk about the foreign policy provision and how it is added to the Immigration Nationality act in Chapter seven, my book. But the reason why it's so important is because when it was initially reported in terms of Secretary of State Marco Rubio using this foreign policy provision, an attempt to deport Mr. Kalil, there was a little bit of confusion about its origin. So again, what's very important is to note that this specific foreign policy provision was added in 1990 and was not part of the original Immigration and Nationality act, also known as the McCarran Walter act, which was passed in 1952. We begin with that Immigration and Nationality act passed in 1952 that included anti communist provisions and was used to ideologically exclude and deport those who were alleged Communists, members of the Communist Party, affiliated with communist organizations, and that was that Immigration Nationality act was passed at the height of McCarthyism during the Cold War. And what happens is over time there are more revisions to that act, including getting rid of certain provisions, exclusions related to national origins quotas. That's the Hart celler Act of 1965. But what happens is those anti communist provisions, those national security provisions in the 1952 act survive, and they survive some of these revisions up until their use in the 1980s under the Reagan Administration. And what we find is that during the Reagan Administration there are legal challenges to its use of those old 1952 security provisions to ideologically exclude, calling them antiquated, and also questioning the use of the Reagan Administration to exclude under them. And what you find is that in the name of US Foreign policy, the Reagan Administration is using one particular provision of the McCarran Walter act to circumvent a reporting requirement that was added later to another provision. So there is litigation that's happening, challenging the use of ideological exclusion under the McCarran Walter act by the Reagan Administration. At the same time, there is a major push by members of Congress, members of the public civil liberties organizations like the American Civil Liberties Union and PEN America to get rid of these old antiquated ideological exclusion and deportation provisions in the McCarran Walter act, again also known as the Immigration and Nationality Act. Now the Reagan Administration pushes back a bit and says, well, we are open to getting rid of some of these national security ideological exclusion deportation provisions with an exception for foreign policy. There is a compromise that is made. And what that compromise eventually leads to is the repeal of the security provisions in the original McCarran Walter act of 1952, those ideological exclusion deportation provisions, and the addition of this particular foreign policy provision in 1990. And it's important to kind of go into a little bit of the text of this to understand. And that's something that, again, I talk about the history of how we get here in chapter seven of my book. But it's important also to note that when this is added in 1990, Again, it is a compromise provision within Congress between those who are pushing to get rid of the old ideological exclusion deportation provisions, but also those who are saying there needs to be an exception for foreign policy. And so if you go into the statute that is added in 1990, so this is the Secretary of State, Marco Rubio, is relying on this statute, this one added in 1990, to attempt to exclude Mr. Khalil and others, it is under deportation, it would be section 1227 A, 4C, a quote alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States as deportable in that statute. There are exceptions. And the exceptions then lead you to another part of the Immigration Nationality act under inadmissible excludable foreign nationals, and that would be under section 1182 that you can look up. This is again another foreign policy. This is the foreign policy provision applied to exclusion. This is where the exceptions are. Again, the reason why this would be a little bit more robust is because at that time in 1990, again following the Reagan administration and this litigation over its ideological exclusion of particular individuals in the name of foreign policy under provisions of the old McCarran Walter act, the focus was very much on exclusion rather than deportation. So here are where the exceptions are that are applied to now deportation. And the exceptions are that one cannot be excludable or deportable because of past current or expected belief statements or associations, if such belief statements or associations would be lawful within the United States, unless the Secretary of State personally determines that the quote aliens admission or deportation would compromise a compelling United States foreign policy interest. So actually, what this is is that unless the Secretary of State personally determines that this foreign national would compromise a compelling United States foreign policy interest, and there is a notification requirement such that the Secretary of State must notify on a timely basis the Chairman of Committees of the Judiciary and Foreign affairs of the House of Representatives and of the Senate of the identity of the foreign national and the reasons for the determination. So this is included in the statute. And the reason why that is is because you can see that there is a compromise here. And the compromise is that because of the challenges and the advocacy in Congress led by, as I said before, Pan America, the aclu, members of the public, Congressman Barney Frank, Senator Daniel Patrick Moynihan, we have this provision that protects past, current and expected belief statements and associations if such beliefs, statements or associations would be lawful within the United States. So that's very important because there was a push to say we cannot exclude or deport based on statements or associations that would be lawful, that would be protected under the First Amendment. And that was the push that we were going to, that they were pushing to repeal these old ideological exclusion and deportation provisions. But they also wanted protection for those in the United States facing deportation and those outside the United States facing exclusion, such as their beliefs, statements and associations, would be held to the same standard as those within the United States who are citizens. So that was very important. That was a huge big step. But now we have this exception, this foreign policy exception, and that the Secretary of State could determine that that foreign national, if that foreign national would compromise a compelling United States foreign policy interest, could be excluded or deported. Now, there is some legislative history that's important to note. This was again a compromised position where the Reagan administration had pushed for a foreign policy exception and members of Congress, like Barney Frank and Senator Patrick Moynihan, had pushed for this protection for belief statements and associations, protection that would be up to First Amendment standards. The intention here was that this provision, this exception, this compelling United States foreign policy interest, would be used sparingly, and that this was for unusual circumstances. There would have to be a clear negative foreign policy consequences. And that this was something that was supposed to be very unusual, sparingly used careful and narrow. And they cited the admission of the former Shah of Iran to the United States in 1979 as an example. That led to protests and eventually the Iran hostage crisis. And so that was very much on their minds, that this was something that was really an exception and it was unusual and shouldn't be used frequently, that this was something sparing and should have clear negative impact on foreign policy. And there was a reporting requirement. So presumably there would be oversight by Congress. This is very important in terms of the legislative history. There was again, the intention was not to exclude or deport on advocacy or speech or protected speech alone. This, this was used very infrequently, so infrequently that we only have really one case as an example that was mentioned in, in 1996 of a fellow who was ordered deported under this provision. And the example that is cited, it's been cited in the news as well, was that this is Mary Trump, President Trump's sister, who was the judge and declared that this provision was unconstitutional as void for vagueness. So it's important to note that the legislative history, but also the background of this foreign policy provision added in 1990 because of what was happening during the Reagan administration with the presence of the former Shah of Iran admission in mind, and that this was a provision that was really to be used sparingly and carefully and with some oversight and in a narrow circumstance.
- [48:04]
Tyler McBrien
Yeah, that's so helpful to explain why it was so rarely invoked, first of all, because it's the provision is decades younger, I think, than it has been reported elsewhere. And also given the intent behind it that you explained so well, just goes to show of why there's really only the one case on record. And that irresistible Trump sibling connection that many journalists have noted again and again, I think is also adds to the lore here, I want to say. You know, I can imagine that for critics of ideological exclusions and deportations, learning about this long history of the practice likely offers little solace for the current moment. What may offer more solace is the history of successful challenges to ideological exclusions and deportations. So as we come to a close here, in thinking about the challenges you talk about in your book throughout US History, are there any lessons or things that you'd apply to current cases, especially for those wishing to challenge the Khalil case or Abrego Garcia or others? What do you take away from this history of challenges to ideological exclusions and deportations?
- [49:20]
Julia Rose Kraut
Well, it's very important to note that while we have a long history of the use of ideological exclusion deportation in the United States as tools of political repression, we also have a long history of the challenges to ideological exclusions and deportations. And as I've said in the book, I wanted to bring out and talk a little bit about those challenges, the people involved, and bring a little bit of a sense of how those challenges were successful and what the legal strategies behind those challenges, as well as the people involved. And so I've been very pleased to see currently that people are paying attention to these deportations. That's the first something that's very important and that we see in the history of challenges is it's important to report these ideological deportations and exclusions in the news. That the media attention and publicity is very important, national and international, in terms of making sure that there is some kind of accountability and knowledge of the public of what is going on. There have been protests in the streets that I've seen recently. That's good in terms of showing public support for these individuals who are being detained and potentially deported. You see also challenges, court challenges are very important in terms of trying to prevent these deportations. And all of that are things that were important in the challenges throughout history to the use of ideological exclusion and deportations, public campaigns, legal strategies. And what you see is that it's very important to pay attention and to learn not only about what's happening now, but draw on the success of the past. And I would mention that something that I bring up in the book, and that is something that applies today, is how those who have, who challenge ideological exclusion deportations draw on their own experience and their own understanding and role of changing the law to help aid them in challenging ideological exclusion deportations. And I'm specifically thinking of the lawyers involved in the history and the lawyers that we see today who are challenging ideological exclusion deportation. So something that was very important for me to bring up was that you have a number of lawyers in this history who take from their own experiences and their own strategies and changes in legal precedent and bring it forward to new cases. So as I describe this long narrative of ideological exclusion deportation, I want to point out that there are legal advocates and lawyers who also live long lives and see different eras of ideological exclusion deportation. So here's an example. Carol Weiss King, who was one of the greatest immigration attorneys in the 1930s, 40s into the early 50s before her death, was the general counsel for the American Committee for Protection of Foreign Born. That was the main organization that challenged ideological deportations in the 30s, 40s into the 50s. She remembers as a young lawyer, the Palmer Raids. And she takes that knowledge with her into her practice in the 1930s, when there again were efforts to ideologically deport. So she's taking her experience and her understanding of what happened in the Palmer raids in 1919, 20, she's bringing it to her advocacy in the 1930s. And then she's using her own skills that she gains in the 1930s to successfully challenge ideological deportation, including representing Harry bridges in the 1940s. And then she's going to take that experience and those successes and the legal precedent with her into the late 40s and into the 1950s during the Cold War McCarthy era. And that's how she's going to use her knowledge and skills and experiences to challenge ideological exclusions then and continue to push the law. And we see this also with another lawyer, Leonard Boudin, very famous civil liberties attorney, who takes his experiences with McCarthyism in the 1950s and his own role in setting legal precedent in challenging restrictions on passports and restrictions to receive information in Lamont vs. Postmaster General, that precedent, and he takes that and he applies it to his representation in the Mendel case, in which he challenges Ernest Mandel's exclusion, using that precedent that he was involved with and new precedents set in the 1960s. And he uses it to challenge the exclusion of Mendel and then later in the 1980s through his representation of those excluded under the Reagan administration. And the reason I bring this up is that we see the same thing happening. It's something that I mentioned in my, my last chapter on the war on terror and the first Trump administration with the lawyers and legal advocates who are now challenging ideological deportations under the second Trump administration and Mr. Khalil's deportation along with others. So you have organizations like the Knight First Amendment Institute and the American Civil Liberties Union, and those lawyers who know the history of ideological deportation and exclusion, but also who have had experience in the war, early days of the war on terror, challenging ideological exclusion, as well as during the Trump administrator, the first Trump administration. And they are taking all of those experiences and the legal precedent involved and their knowledge and skills with them to apply to the current situation in terms of these ideological deportation cases. And that should be very reassuring, even though we are in kind of horrifying times, that the people who are bringing these legal challenges have experience and skills and they are taking so much with them to apply to these cases. I've never seen a situation in which so many advocates and lawyers and professors and organizations are as ready to challenge ideological exclusions and deportations. And I have at this moment. And I think those people should take heart in that, even though we don't know kind of what the future holds. What I've seen so far in terms of the litigation, in terms of these cases being brought, in terms of the use of habeas corpus petitions and the importance of getting the constitutional questions before federal courts is very heartening. We, again, we don't know the outcomes, but I've been very impressed with how many people were ready to bring challenges quickly and how organized people have been with taking to the streets, publicizing these deportations, making sure that public is aware of them, and organizing to support those who are being detained and potentially deported.
- [57:23]
Tyler McBrien
Well, that strikes me as kind of a perfect place to end because I suspect some of those lawyers and professors and activists maybe are listening right now. The book is called Threat of A History of Ideological Exclusion and Deportation in the United States. It's been indispensable for me to make sense of the current moment. So, Julia, I want to thank you so much for joining me today.
- [57:47]
Julia Rose Kraut
Thank you, Tyler.
- [57:51]
Tyler McBrien
The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a LawFair material supporter at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other shows, including Rational Security, Allies, the Aftermath, and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work@lawfaremedia.org the podcast is edited by Jen Patia. Our theme song is from Alibi Music. As always, thanks for listening.
- [58:44]
Julia Rose Kraut
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