ABA FREE FLOW PROPOSAL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01390R000300360024-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 22, 2016
• Document Release Date: July 19, 2011
• Sequence Number: 24
• Publication Date: February 10, 1986
• Content Type: MEMO

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" :~., United States Department
. ?~,
The Legal Advise.
Washington, D.C. 20520
February 10, 1986
MEMORANDUM FOR FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT: ABA Free Flow Proposal
Your memorandum of February 4 has led me to devise what I
believe is a satisfactory way to deal with the ABA proposal.
- First, we have no intention of-supporting any specific ABA
proposa~to modify 8 U.S.C. S 1182 (a) (28). Rather, I will
propose to the Secretary that we simply support in principle
Recommendation 103 (Tab A), which was specifically revised to
address concerns we ~iad expressed over the past several years
about previous versions. In doing this, we would make a
statement to protect our position. Tab B.
Second, we fully agree that support for the revised
Recommendation must not be understood to imply support for any
legislative change that might diminish existing Executive
Branch powers to exclude aliens who we believe pose a threat to
important national interests. In this connection, I have
prepared a draft Administration bill (Tab C) that we will
circulate to Justice (including INS and the FBI) and the Agency
for consideration.
Am I correct in assuming that, with the precautions I have
described, we have resolved the concerns that you expressed in
your February 4 memorandum? (Bill Casey has already agreed to
our proposal, and I am awaiting word from Ed Meese, whose views
I will convey to you as soon as I receive them.)
Abraham D. Sofaer
Tab A - Recommendation 103
Tab B - Draft Statement
Tab C - Draft Administration Bill
cc: The Attorney General
Director of Central intelligence
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A
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Recommendation 11103 (REVISED)
AMERICAN BAR ASSOCIATION ,
SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES
STANDING COMMITTEE ON LAW AND NATIONAL SECURITY
REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION
n Bar Ass
i
t
1
ca
BE IT RESOLVED, that the Amer
denials
visa
recommends that United States law concerning
should conforn to the following standard:
An alien invited to the United States to speak or
otherwise participate in an exchange of ideas should not
be denied a visa solely on the basis of past or current
political beliefs or political associations or on the basis
of the expected content of the person's statements in the
2
3
4
5
6
~
8
9
United States.
this principle would not preclude visa denial
wever
H
the
10
11
,
o
or exclusion from admission of persons invited to
ited States, their
U
lZ
n
United States if their admission to the
tivity in which the government
13
resence in the country, or ac
the interests
r
14
p
~
believes they intend to engage, would hart
n relations of the
i
15
g
of the United States, including the fore
o not preclude visa
l
16
s
United States. This principle would a
of
n
e
denials for the purpose of seeking
the
of
to=ciheomaintenance
15
n
Americans into a foreign country,
existing power of the President to deny entry to any aliens or
f the government to deny
2U
class of aliens by proclamation, nor o
d States
t
eing
t
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e
entry to aliens when the Uni
h
toclaimed by
ency p
er
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g
em
the existence of a nationa
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President.
Adoption of this principle would require modification
2~
`_
of 8 U.S.C. Section 1182ta)t28)?
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,~~c?soN-ESE :-
Dear Members of the House of Delegates and Board of Governors: ,~,,,~a~,,,
~ ~~sa-
This is to urge your support for the enclosed re_ d version of ~~~._ .'
Recommendation /103, sponsored by our section and, ay owl a t'is~ ; ~?'~10'a;G,?G~''
ABA Standing Committee on Law and National Securit , ~
g the ABA House of sEC11ETARr
considered at the upcoming Midyear Meetin by a?~.c ~,,,,~,~
Delegates and Board of Governors After one and one-half years of ~s~?~,,,?.~..,,.:.
extensive consultations with the U.S. Department of State and other "" u!'?'..~ :0??6
Interested ABA and governmental entities, this revised recommendation AECORD~c SEaE:.=?
w~ ~ wowro-
and report have been substantially clarified and redrafted slnce the r woof s??; Nw
original submission to the House and Board. The recommendation is ~; ???`
the House, as well '""?'"?'"' -?' ?0C
consistent with numerous previous policies adopted by
as v~?ith recent statements by President Reagan and Secretary of State ~~ ~ ~ so ==*
Shu1t2, and with our Nation's obligations pursuant to the Helsinki Final ~[1s~E~~.,~wr?
' sr~ Frs~~scc :J? i~:':
Act. .,s ss+a~:
As revised, the recommendation urges that United States lav-
concerning visa denials conform to current practice as described by the
State Department by codifying the general principle that the
Government should not exclude foreign visitoi` ical beliefs or ed States
solel on the basis of their past or present po '
associations. In so doing, it strikes an Important vasa~ c~ ~~orists and
preserving the ability of our Government to deny
others who threaten the national security or foreign policy interests of
our country while at the same time removing an anachronistic statutory
provision promulgated during the McCarthy Era (as part of the
McCarran-VG'alter Act) so that visits to the United States by foreign
speakers are facilitated when not harmful to our national interests.
This enclosed revisedof rel or sele ndin arbeflobe the House esolution
X103 in the bound volume D ~ R
Numerous caveats and exceptions also have been included in the
recommendation to make it absolutely clea`ot ctinot the interests oiothe
here would prevent our Government from p 8
United States, seeking re( iP o 8~~ens during wartime, aenational to other
countries, or denying ent y
emergency or pursuant to a Presidential proclamation.
Please do not hesitate to contact us, our Section Delegate to the
House, Martha ~'. Barnett, or our Section Liaison to the Board, Samuel S.
Smith, if you would like to discuss this matter further. Thank you for
your consideration.
Sincerely,
Q!L~ ,~~
_
Philip ~-. Lacovara
Abner 7. A4~kva Vice-Chairperson and
Chairperson Member of the House
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REPORT
'Expanding contacts across borders and per-
mitting a free exchange or interchange of
information and ideas increase confidence;
sealing off one's people from the rest of the
world reduces it.' (President Ronald Reagan,
January 17, 19841/
?We will never deny physical access to anyone
because of the beliefs he or she may espouse.'
(U.S. Secretary of State George Shultz,
January 12, 19661 2/
'The participating states make it their
aim to facilitate free movement and contacts,
individually and collectively, whether pri-
vately or officially, among persons, insti-
tutions and organizations of the participa-
ting states .!
The participating states make it their
aim to facilitate the freer and wider dis-
semination of information of all kinds, to
encourage cooperation in the field of in-
formation and the exchange of information -
with other c~yntries (Helsinki Final
Act of 1975_
'The First Amendment 'presupposes that right
conclusions are more likely to be gathered
out of a multitude of tongues, than through
any kind of authoritative selection.'
(Supreme Court in New York T_ v?
Sullivan)4/
After extensive consultation with interested ABA
and governmental entities, this recommendation and report have
been substantially clarified and redrafted since their original
submission to the ABA House of Delegates in August, 1984. The
adoption of this principle would call for a conforming of
existing law to current practice as described by the
Administration. The resulting statutory change would reflect
It would
our Nation's commitment to a free exchange of ideas.
leave the Government free to continue to deny visas, as it does
now, when it believes that granting the visa would lead to harm
to the interests of the Nation, including its foreign policy
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interests. The appropriate role, if any, of judicial review of
visa denials is not addressed by the recommendation.
This recommendation makes it clear that the
intent is to preserve the ability of our Government to combat
terrorism and otherwise protect the national security and other
interests of the United States by denying visas when the
interests of the United States, including foreign policy
interests, are affected. Numerous caveats and exceptions have
been included in the recommendation to make it absolutely clear
that nothing being proposed here would prevent our Government
from protecting the. interests of the United States.
The recommendation at the same time strikes a
balance in the interest of preserving the rule of law by urging
the removal of an anachronistic statutory provision so that
visits to the United States by foreign speakers is facilitated
when not harmful to our national interests. The recommendation
is also consistent with numerous previous policies adopted by
the ABA House of Delegates 5/.
This revised report has also been redrafted to
snake it absolutely clear that it is not meant to imply any
criticism of the Administration, the U.S. Department of State
or other governmental entities. In fact, this principle is
consistent with current practice as described by
representatives of the Administration to congressional
committees and to our Section, and with Secretary of State
Shultz's recent statement to the PEN conference quoted above.
Indeed, this recommendation seeks to preserve as much as
possible of our constitutional tradition of permitting our
citizens access to information and ideas brought to our shores
by citizens of other countries, except where such visits would
harm our national interest. This American tradition of
generally permitting travel and the exchange of information and
ideas across the American border has historically distinguished
our society from totalitarian governments.
As President Reagan observed in 1984 and as our
Nation observed when it became a signatory to the Helsinki -
Final Act in 1975, a free exchange of information and ideas -
subject to narrowly defined exceptions to protect certain
national interests -- is crucial to the health of our
democratic society. Through open and robust debate in the
'marketplace of ideas,' American citizens inform theThelflowoof
policy choices which shape and affect their lives.
persons in and out of the United States is an important part of
this exchange.
The problem which this resolution addresses is
that current United States law, on its face, provides for the
denial of visas to persons solely because of certain political
beliefs or current or past memberships or associations.
Accordingly, the recommendation would require eliminating the
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while
narrow ideologicxclusionnof aliens whosetactivities endanger
permitting the a olicy interests of
the welfare, safety, security or foreign P
the United States. This principle would safe9ueliminatingrican
public's right to receive ideasoliticalrbeliefs and
barriers to unpopular foreign p
hilosophies, and would support our declared intentions under
P It would permit the contitoeengage in
the Helsinki Final Act.
exclusion of ter~oriothernactivity detrimentaltto AmereSa~ould
illegal activity or or presence in the United Stat
security or whose entry
be detrimental to the national interest.
Nothing in this recommendation wou16/dWhichb the
provisions of the Immigratioauthorityltoaexclude aliens who are
provide clear and necessary a e in
believed to be coming to the United Stat~hetlawsnofgthe Udeted
activities which would be Peohsabotagey ~or~ public disor~~~,
States relating to espionag ,
or in other activity subversive to the national s ortionyof the
The recommendation also leaves undisturbedeisonspwho would cone
Act which permits the exclusieninf.activities which would be
to the United States to engag or endanger the welfare,
prejudicial to the public interest, .g/ Furthermore,
safety, or security of the United States. .
this recommendation would leave intact that portion of the Act
providing that:
'Whenever the President finds that the entry
of any aliens or of any class of aliens into the
United States would be detrimentalbto ~oclamaer-
ests of the United Setiod~aseheashallpdeem neces-
tion, and for such P of all aliens or any
sary, suspend the entry _
class of alienseaentrmlofaaliens any restrictions
or impose on th io riate.' 9/
he may deem to be app P
None of these provisions would be disturbed by the pro-
posed standard. osed standard
What would be directly affected by the prof
is the so-called 'ideological exclusion' provision of the Act.
rovision, promulgated under
Under this anachronistic statutthe infamous McCarthy era and its
the McCarran-Walter Act during
an alien is ineligibother grounds,aavconsular
attendant hys.eria,
enter the United States Generalrhasmreason to believe that the
officer or the Attorney
alien is an anarchist, a membsroff worldmconununism ortthetarian . s
advocates the doctrine or belongs to or i
party,.
establishment of a ortanization thatapublishes or diotnrofuthe
affiliated with an such doctrines.lfl/ This provisi
materials espousing that the alien's admission,
law does not require a finding
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presence in the United States or activities in the United States
would cause injury. The simple fact that an alien holds -- or
oncenheadto aaQ=o`cribedlorganizationlcequiresbexclusion unless a
bolo g
waiver is granted.
These provisions apply to foreign nationals who seek
permanent residency, as well as those who wish to enter the Uni-
ted States for short, temporary visits. According to the Immi-
gration and Naturalization Service, 8,000 people from 98 coun-
tries are currently restricted from entering this country because
of their political beliefs or associations. In 1983, apppproxi-
700 ersons were excluded under Sec. 212(a)(28).11/
mately p or to provide information about
Others simply refuse to apply
their political activities.
The McCarran-Walter Act damages our reputation in the
world by appearing to suggest a fear of ideas and exclusion of
individuals solely because of their beliefs. The American public
is also denied access to non-political scholarly and cultural
presentations when foreign artists and writers decline to apply
for a waiver or receive permission to enter the country too late
to engage in planned activities.
In 1977, Congress passed an amendment to the McCarran
Act with the specific full purpose of achieving greater
compliance with the Helsinki Act's basic principle of freedom of
international trave1.12~ The amendment addresses visa denials
based on that section of the Act which denies visas to aliens who
are affiliated with a communist or totalitarian party, or a
related organization.13~ Under the amendment, the Secretary of
State must recommend a waiver to the Attorney General to permit
such aliens to enter the United States unless the Secretary of
State finds and so certifies to both Houses of Congress that the
alien's admission 'would be contrary to the security interests of
the United States.?14~ However, the effect of this amendment
has not been as extensive as some thought it would be. Although
it has removed some of the admission barriers, it applies on its
face only to thlatedltolbeliefslsions relating to membership and
not to those re
The proposed standard would require -- subject to the
enumerated exceptions -- that Section 212(a)(28) not apply to
visitors seeking entry into the United States for the purpose of
meeting with Americans. The result would be that the Government
would be neither required nor permitted to exclude aliens seeking
to visit the United States based simply on their current or past
political associations or beliefs. Adoption of this principle
would require modification of 6 U.S.C. Section 1182(a)(28).
(Since the principle applies only to visitors coming to the
United States at the invitation of Americans it would not apply
to applications for permanent resident status; they could still
be denied on the basis of political beliefs or associations.)
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The standard would simply shift the presumption. It
makes it clear that this principle would not preclude visa denial
of exclusion from admission of persons invited to the United
States if their admission to the United States, their pteaence in
the country, or other activity in which the .Government believes
they intend to engage would harm the interests of the United
States, including foreign policy interests. This principle would
also not preclude visa denials for the purpose of seeking
reciprocity for the entry of Americans into a foreign country nor
the maintenance of the existing power of the President to deny
entry to any aliens or class of aliens by proclamation nor of the
Government to deny entry to aliens when the United States is at
war or during the existence of a national emergency proclaimed by
the president. .
In testimony before the House Judiciary Subcommittee on
Immigration and in a letter by the Legal Adviser of the State
Department commenting on an earlier draft of this report, the
current Administration has, while not endorsing repeal of Section
28, indicated that its primary concern would be satisfied if it
maintained the right to exclude aliens if their visit to the
United States would cause injuryy to the foreign policy or other
15/ The proposed standard would
interests of the United States._
not in any way limit this authority. Furthermoreositionooning
this principle, the ABA would not be taking any p
whether judicial review of visa denials is appropriate, and if
so, under what circumstances.
CONCLUSION
This recommendation recognizes the crucial importance of
preserving the ability of our Government to protect our national
security. safety, and welfare, while at the same time advocating
a limited revision of law to codify the general principle that
the Government should not exclude foreign visitors from the
United States solely on the basis of their political beliefs.
Removing this anachronistic provision of the McCarran-Sialter Act
would strengthen our constitutional system bossiblelagmorerfully
access to foreign ideas and people, making p
informed and politically sophisticated citizenry.
Respectfully submitted,
Abner J. Mikva, Chairperson
Section of Individual Rights
and Responsibilities
John Notton Moore, Chairman
Standing Committee on Law and
National Security
Februazy, 1986
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FOOTNOTES
41-
New York Times, Jan. 17,
1984, at A.B.
#2-
New York Times, Jan. 13,
1986, at A.1
#3- Final Act of the Conference on Simulementnthesepcommitments
Europe, Helsinki, 1975' erationeintHumanitarian and Other
in the section on 'Co-op
Fields,' the Final Act containseO lemand information.coSeetmen s
to facilitate the movement of p P,
'Inhibiting Public Debate: U.S. Violations of the Helsinki
Accords,' A Helsinki Match Report, May 1984.
270 (1964),
#4- New York Times v. Sullivan, 376 U.S. 254,
quoting Learned Handin United S f d,v326sU~Sla 1ed194- Ss 52 F.
Supp. 362, 372 (S.D.N.Y. 1943),
45- Adoption of the recommendatvonousouoliciesoadoptedtbyitheand
a logical extension of three pre i P
Association. In August of 1983? tsethatsanyf legislationawhpchd a
resolution recommending to Con9res
would give the President powers to act in an immigration
emergency should protect the right to travethe Houseeurged two
occasions (August 1977 and February 1978)?. which
support for the implemennafieeroexchangess.ofkinformation and
contain the provisions o
movement of persons quoted in the text above.
4b_ 8 U.S.C. Sec. 1101 et seq. This statute governs the entry
of both visitors and immigrants into the United States.
47- 8 U.S.C. Sec. 1182(a)(29)?
4g- 8 U.S.C. Sec. 1182(x)(27).
#9_ 8 U.S.C. Sec. 1182(f).
10- These 'ideological exclusions' provisions are contained in 8
U.S.C. Sec.. 11821x)(28)?
411- Letter from Davis R. RobonsMoore,aJulye3ar1984t Pe2a1
Adviser to Professor John Nozt
(Hereinafter State Dept. Letter).
412- See 22 U.S.C. Sec. 2691(a).
#13- See 8 U.S.C. Sec. 1182(a)l28)?
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i14- 22 U.S.C. Sec. 2691(a). The McGovern 1-mendment supplements
a waiver procedure previously existing in the law. when the
McCarran J1ct was initially enacted, Congress recognized that
cases >Inight arise where extenuating circumstances justified the
temporary admission of otherwise inadmissible aliens under the
statute. Thus, under the ~-ct, a consular officer or the
Secretary of State has discretionary authority to recommend that
an alien's ineligibility to receive a visa be waived, and the
1lttorney General has the discretionary authority to grant the
waiver. 8 U.S.C. Sec. 1182(4)(3).
115- State Department Letter, p.4.
0341j
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General Information Forn-
To ee Appended to Reports with Recoim~endations
Submitting Entity Sect..oCanm ~tteeaon ~ i Nate Secivritties
Submitted By Abner J Mikva, Chairperson, I.R.6R. Section
John Norton Moore Chair St.Cm. on Law i Nat. Sec.
l . Surtn-a rY of Recamrendat ions )
This revised version of Recam~endation X103 deletes parts lib) and 2 of
the original Recommendation X103 now appearing in the current bound volume of
recommendations and reports pending before the House.
Revised Recommendation #103 attached hereot~~ feca~y~~t~andarded States
law concerning visa denials should conform t
An alien invited to the United States to speak or otherwise participate in
an exchange of ideas should not be denied a visa solely on the basis of past
or current political beliefs o~ political associations or on the basis of the
expected content of the person s statements in the United States.
However, this principle would not preclude visa denial or exclusion from
admission of persons invited to the United States if their admission to the
United States, their presence in the country~ia ~~ r~ interest of the
government believes they intend to engage,
United States, including the foreign relations of the United States. This
principle would also not preclude visa denials for the purpose of seeking
reciprocity for the entry of Americans into a foreign country, nor the
maintenance of the existing power of the President to deny entry to any aliens
or class of aliens by proclamaEion, nor of the government to deny entry to
aliens when the United States esidentar or during the existence of a national
emergency proclaimed by the Pr
Adoption of this principle would require modification of 8 U.S.C. Section
1162(a)l28).
2. ~~roval by Submitting EntitY?
The original principles underlying this recommendation bilities ondMay
the Council of the Section of Individual Rights and Respons'
11-12, 1984. The report with recommendations printed in the bound volume of
House recommendations 0103) cil on May 3 4~r1985~, inlBoston, Massachusetts.
Delegates by the section coon
Recpnnendation X103 (revised) attached hereto was approved by the
Executive Committeed NationalRSecurity pursuant to telephoneepolls lconducted
Committee of Law an
during January, 1986.
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3. BackgT~? (Pcevious submission to the House oc televant Association
position.)
Adoption of the feco~miendation would be consi~en ati~on.a Ing1August of
extension of three previous policies adopted by to Tess
1983, the House of Delegates adopted a resolution rtcan~ending ~9
that any legislation which would give the President powers to act in an
imnigcation emergency should protect the right to travel. Further. on two
occasions (August 1977 and February 1978), the House urged support for the
implementation of the Hels~ moAvementsof peirsons tquoted in theitestsaboverce
exchanges of information
Initially, a resolution (consisting of four statements of principle) was
1984? but
submitted to the House of Delegates for its consideration in August,
was withdrawn by the I.R.i R. Section at the request of the Standing Committee
on Law and National Security and the Section of Ines ~tionaf~ wpar~ practice
to allow time for further study and negotiation.
resolution was resubmitted to the House of Delegates for consideration at the
February, 1985? meeting: hdrawr crtsul,2?land 4tandtonlylstubmittpartn31to the
the section agreed to wit rt 3aat the February, 1985? Midyear Meeting.
House. The House adopted pa
Resubmission of parts 1 and 2 of the original resolution, ar,~ended since
August. 1954 to reflect certakn lace atsthe oABA AnnualreMeeting in July?e1985a
U.S. government agencies, too p
but was again withdrawn to allow further consideration by interested
entities.
The attached revised version of report ~tioens offered by#represe tatives
in January, 1986 in response to further sugge
of the Standing Conmitto olU3aas printed in thecebound voluneeof?reportsrto nt
of State. Recaimendati #
the House was identical to the one submitted to the House in July? 1985.
4. Need for Action at This Meeting
Legislation incorporating the principles in this recomnen6ation was introduced
in the 99th Congress in May and November. 1985 (See #5 below). Hearllteeting)
the legislation will be ails ~1Judicia y rConmftteester~ o S~~gressional
fn the House Foreign Aff ration in Europe will hold its first hearing
Commission on Security and Coope
on February 6. 1986 concerning ~rei~ue licy reasons.l Since the AB9rdcessnoot
political beliefs, ideology or fo 9n Po
now have any policies which would allow it to testify on such legislation, it
would be timely for the House of Delegates to act on this matter at the 1986
Midyear Meeting.
5. Status of Legislation. (If applicable)
Congressman Barney Frank (D.- Mass.) introduced his bill regarding visa
restrictions (H.R. 2361) on May 6. 1985? This bill has fifty-eight bipartisan
co-sponsors, and was referred to the House Judiciary Cam~itteei~i~r~~s~ n
Howard Berman (D. Calif.) introduced his bill on the s~rn(Cpongressm+an Frank),
3825) on November 21. 1985. This bill has one co-spongy
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and was referred to the House Committee on Foreign Affairs. Hearings on the
legislation are planned for 1966 by both the House Judiciary and Foreign
Affairs Committees. in the previous Congress, in the House of
Representatives, H.R. 5227, which dealt in part with ideological exclusions,
was the subject Immi cation, Refugees28and1International~Law, l~iciary
~ttee on 9
6. Financial Information. (Estimate of funds required, if any.)
None
7. Conflict- of Interest (If applicable)
8. Referrals
A copy of this revised report and recam~endation was sent to each member of
the ABA House of Delegates and Board of Governors, as well as to the
chairpersons of all ABA sections and divisions and the chairs of the Standing
Committees on Law and National Security and World Order Under Law, on January
31, 1986. All members of the-Council of the Standing Ca:mittee on Law and
National Security received a copy of the revised recgTmendation and report in
mid-January, 1986 prior to their being polled on whether to authorize
co-sponsorship. In addition, a copy of report with reoam-endation No. 103 as
printed in the bound volume of reports to the House was sent to the
chairpersons an6 staff liaisons of each of the ABA's member sections and
divisions, as well as to the chair of the ABA Standing Cortmittee on Law and
National Security and Standing Committee on World Order Under Law in December,
1985. A copy of this revised version as well as the original version as it
appears in the bound volume have also been sent to the directors for the ABA
Division of C .~ nications, Governmental Affairs Group, Public Services Group,
and Professional Services Group.
9. Contact Person (Prior to Meeting)
Philip A. Lacovara
1201 Pennsylvania Ave., N.W., Suite 300
Washington, D.C. 20004
[phone]
10. Contact Person (Who will present the report to the House)
l4artha W. Barnett, Section Delegate
P.O. Drawer 810
Tallahassee, Florida 32302
[phone]
1237j
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ADMINISTRATION STATEMENT IN SUPPORT OF
ABA RECOMMENDATION REVISED
CONCERNING UNITED STATES VISA POLICY
The Administration supports revised Recommendation #103 in
principle. We believe that aliens who are invited to speak or
otherwise participate in an exchange of ideas in this country
should not be denied nonimmigrant visas solely on the basis of
past or current political beliefs or political associations, or
on the basis of the expected content their statements here.
Recommendation 103 reflects Executive Branch policy, in that we
do not exclude nonimmigrant aliens from the United States for
purely ideological reasons.
In practice, the so-called McGovern Amendment, 22 U.S.C.
S 2691, all but eliminated the concerns to which Recommendation
103 addresses itself, since virtually all nonimmigrant aliens
who might otherwise be statutorily ineligible for admission to
the United States solely because of their political views or
associations currently receive routine waivers of
ineligibility. We agree, however, that the waiver process made
necessary by S 2691 is offensive to many people, and a sterile
and wasteful exercise.
Administration support for the principles stated in
Recommendation 103 does, of course, not imply support for any
specific revision of 8 U.S.C. S 1182 (a)(28). That section
must be revised in a way that would preserve the Executive's
existing ability to exclude terrorist and other aliens whose
presence we believe would be potentially damaging to important
national interests.
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C
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DRAFT PROPOSED AMENDMENT OF 8 U.S.C. S 1182 (a) (28)
TO CONFORM TO THE PRINCIPLE STATED IN
ABA RECOMMENDATION REVISED WHILE PRESERVING
EXECUTIVE BRANCH POWERS TO EXCLUDE
ALIENS IN THE NATIONAL INTEREST
8 U.S.C. S 1162 (a) (28) ...
(J) Any alien who is within any of the classes
described in subparagraphs (A), (B), (C), (D),
and (E) of this paragraph shall not be ineligible
to receive a visa, rovided such alien is
properly classifiab a as a nonimmigrant under
Section 101 (a) 15. However, the Secretary of
State or the Attorney General may in their
discretion deny to any alien or class of aliens
the benefits of this subsection if they determine
that the entry of such alien or class of aliens -
would be deterimental to the national security.
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