Al-Qaeda Goes to College: Impact of the War on Terror on American Higher Education 9780313364297, 9780313364280

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AL-QAEDA GOES TO COLLEGE IMPACT OF THE WAR ON TERROR ON AMERICAN HIGHER EDUCATION

James Ottavio Castagnera Foreword by Dr. Daniel J. Julius

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Library of Congress Cataloging-in-Publication Data Castagnera, James Ottavio. Al-Qaeda goes to college : impact of the war on terror on American higher education / James Ottavio Castagnera. p. cm. Includes bibliographical references and index. ISBN 978–0–313–36428–0 (alk. paper) 1. Education, Higher—Political aspects—United States. 2. War on Terrorism, 2001–. 3. Domestic terrorism—United States. 4. Academic freedom—United States. I. Title. LC173.C38 2009 379.73–dc22 2008051408 British Library Cataloguing in Publication Data is available. C 2009 by James Ottavio Castagnera Copyright


All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2008051408 ISBN: 978–0–313–36428–0 First published in 2009 Praeger Publishers, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.praeger.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48–1984). 10 9 8 7 6 5 4 3 2 1

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Contents Foreword by Dr. Daniel J. Julius

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Introduction

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Part One: Threats to Higher Education and Our Responses 1. The Enemy Within? Al-Qaeda’s Academic Sympathizers

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2. Domestic Terrorists: The Mentally Ill

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3. Domestic Terrorists: The Animal Advocates

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4. With Friends Like These: Government Regulation of Academia

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5. Raiders of the Lost Relics

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Part Two: Benefits to Higher Education 6. Counterterrorism Is Big Business on College Campuses

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7. The Saudi Arabian Windfall

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8. Anthropologists Go to War

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Conclusion: Far More Wins Than Losses for Our Industry

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Notes

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Index

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Foreword Jim Castagnera has written a provocative book. Its major premise suggests that institutions of higher education, primarily larger public and private institutions, are particularly vulnerable to terrorist groups and terrorist acts. While we may disagree with his definitions of “terrorists” or “terrorism,” or argue with the validity of actions taken or justified by a particular ideology or religion (after all, our founding fathers, including the first U.S. president, were labeled terrorists by the English monarchy1 ) the author, a conservative attorney, argues that academic organizations are being forced to cope with issues unique to contemporary times. Indeed, universities fall prey to extremists in a myriad of forms, some more lethal than others. The nature of academic vulnerability as he sees it stems from three interrelated sources. First, universities are populated by well intentioned but often relatively na¨ıve people, who operate in permissive cultures and, as such, enable extremists to obtain protected positions (tenured faculty) and hijack institutional policies (tenure), which are then used as shields to deflect or defend criminal behavior or scholarly misconduct. Castagnera notes that often such individuals are protected by unsuspecting or timid administrators, biased faculty, or ideologically driven professional associations. 1 U.S. presidents are, however, still being called terrorists, now, more often from the radical left, rather than the privileged right.

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Second, academic organizations are public and accessible. They are therefore vulnerable to varieties of deranged individuals intent on killing innocent victims. “Deranged” in this context applies equally to the mentally ill, criminally insane, and ideologically driven radicals blinded to the difference between lawful and unlawful behavior. Third, and most problematic, are conflicting federal and state laws coupled with judicial demands for due process and constitutional protections, together creating a situation whereby academic leaders lack clear authority to take action in the face of competing claims for justice. Related to the latter observation (of stymied academic authorities) is the author’s contention that many who work in academe too often turn a blind eye toward what any mature adult would consider outrageously egregious behavior on the part of individuals or small organized groups on campus. While I do not share a number of the opinions expressed in this book, provocative ideas are worthy of discourse. Clearly, we are living through times in which Americans (the world it seems, as well) are obsessed with terrorism and violence, economic upheaval and competition between different cultures, ideologies and religions. Indeed, as this Foreword is being written, regional wars are ongoing in the Middle East, Central Asia, the Near East, Central and South America, not to mention piracy off the Somali coast. Throughout world history, violent movements claiming allegiance to religious, political, national or other ideologies, have ebbed and flowed, often with tragic consequences. Sadly, extremism and accompanying violence appear endemic to the human condition. They are found in all societies: eastern, western, socialist, tribal, capitalist or religious monarchies. The book is set against the cataclysmic events surrounding 9/11. AlQaeda Goes to College is clearly an attention grabber. The author examines a number of extremist incidents and events involving high profile cases, scholarly misconduct, a jihadist activist raising funds for terrorist organizations, animal rights conflicts, the tragic shootings on the Virginia Tech University (VTU) campus, and lawsuits involving the victims of terrorist incidents who endeavor to reclaim Iranian assets housed in U.S. museums, including university collections. The book argues further that although universities may be under siege, counter terrorism on campus is indeed big business and that numerous institutions have benefited from federal, state (and private donations, even from some highly controversial international sources) dollars devoted to studying extremist movements or preparing for emergency actions. The author implies that academic organizations are now safer and better prepared as a result of such funding, given the initiatives adopted as a result of events such as the tragic VTU massacre and actions by animal activists. There are many complex issues ensconced in episodes depicted in this text. For example, there is the creative tension and juxtaposition between,

Foreword

on one hand, academic freedom and free speech, versus criminal behavior or scholarly misconduct. The demand to provide safe and secure environments for students and employees versus privacy rights and related constitutional prerogatives, all are called into play as academic organizations confront those who would undermine organizational integrity. As Castagnera has elucidated, a number of scenarios have enveloped the careers of those responsible for teaching and managing in academic organizations. The implications seem clear: r Academic leaders must be proactive in anticipating the potential for events brought upon us by those who would condone or take violent acts to achieve objectives; r They must hold themselves accountable for behavior which would not pass muster in most organizations while, simultaneously, striving vigorously to protect cherished academic values; r They must venerate civil discourse while being prepared for those who would abuse such privileges; r They must accept that, ultimately, being vulnerable is a price we may have to pay for intellectual freedom and public accessibility.

Above and beyond these implications it would seem that large sectors within academe are being transformed due to the need to adapt to a changing educational landscape. What are the forces or trends propelling these changes? I have identified four: Responding to the Current Fiscal Crisis The decline in availability of federal monies has impacted distribution of funds for student aid, an ability to invest in physical infrastructure, research support, and the like. This, in turn, may impact the “affordability” of college for many Americans, inhibit out-of-state attendance, or negatively impact tuition pricing. Post secondary institutions, faced with less revenue, will be forced into budget cut backs in order to seek or free up revenue sources.2 The impact of the current fiscal crisis will mean that senior leaders will have to prepare for increased accountability to Boards of Regents. In times of change and realignment, board members themselves may feel more vulnerable or accountable to the state, and my ask more from university leaders. This scenario may promote the need for greater communication with board members, and more transparency in areas where trustees or regents seek greater information. One major result may be 2 Alternatively, the incoming Obama Administration has made campaign promises which suggest increases in funding for science/research, tax credits for students in exchange for community service and streamlined federal student aid programs, all of which may result in a net gain for many academic institutions.

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trustee driven calls for analysis of revenue and budget shortfalls, and the impact of such on performance measures, organizational morale, or academic quality. Lastly, revenue shortfalls may advance geo-centric strains within regions or systems and spur even more institutional competition. Select institutions may be in a better position to raise revenue through marketing, fundraising and other profitable programs such as distance delivery. In large state systems, central offices may not have as much money to advance to affiliated institutions. This could translate into less influence over select schools, if they are able and desire to raise revenue independently of system offices. While institutional autonomy is a sine qua non of excellence, developing independence will blur management lines in systems and make governing more difficult. This will be particularly salient in large state systems that are unionized. The future portends for more tension and competition, not less. This, in turn, may draw university leaders into more of a mediating role between competitors. Increased Competition for Federal Research Dollars Here there are many unknowns that include the eventual impact of the current stimulus package. We do not yet know how the Higher Education Opportunity Act will affect organizational transparency and accountability. Another unknown could be the Veterans Education Assistance Act (known as the Post 9-11 G.I. Bill). The original G.I. Bill literally changed higher education in the United States. The new bill could be a watershed moment for service members as the legislation may provide tuition and stipends for housing. Overall, the decline in federal funds may result in fewer initiative dollars, which may squeeze research throughout the United States. This could increase competition for research dollars, which will flow to select institutions in select areas of research (climate change, bio-medical, defense, and the like). The impact of increased competition may result in larger organizations needing assistance refining research and programmatic priorities. Such refinements may be necessary as leaders are increasingly called upon to “market” institutional budgets to state legislators or new student clienteles. Such events will highlight, even more than the past, the importance of development activities or legislative lobbying efforts. A refinement in programmatic priorities may also have an impact on revenue distribution within and between institutions. This will create new pressures on institute and research directors across many campuses that may result in the departure of employees unable to operate, or those simply uncomfortable in tighter environments. A decline in the ability of states and the federal government to support research will create competition for more limited resources, which some will argue will be a positive influence for long term organizational health. But the road to prosperity and health may be painful.

Foreword

Competition from the For-Profit Sector Overall, colleges and universities may have to be far more attentive to the student as “customer” than ever before. This will be difficult in many organizational environments. College and universities in the United States, for the most part, operate on academic, not student schedules, nor have many made great inroads in learning technology or distance education (distance delivery work is still frowned upon in many rank and tenure applications). By and large, traditional universities may not be able to be as attentive to the demand for accountability as are private for-profit companies. How else to explain the dramatic rise in numbers and profitability of for-profit entities that offer what community and technical colleges and high schools in the United States once offered? Private for-profits will continue to lure students away from the traditional sector and operate (without governance, without tenure, etc.) less expensively than “traditional” colleges and universities. The impact of the for-profit sector will highlight the need to pay more attention to state and federal student grant tuition programs. So go grant and loan monies, so goes enrollment; and with the exception of a handful of institutions, enrollment is the major engine in higher education. It is the single most important variable effecting institutional capacity, political support and administrative behavior. In this context, tighter restrictions on student aid and federal research dollars could exacerbate existing tensions between financial needs versus merit-based programs. How this debate plays itself out may affect some public institutions’ ability to meet state enrollment needs. Competition from the private sector may also spur legislative inquiries into why state systems cannot stem the flow of students who select non-state options to advance educational opportunity. Chancellors and presidents may be forced to respond to external calls as a “system” rather than as “individual” or “regional” campuses; also not as easy as it sounds. College Readiness and Student Success The national call to better prepare high school graduates for college, and to graduate such students into well-paying jobs, will increase in the coming years. “Student Success” programs will probably be given increased support and increased scrutiny. Higher education will be called upon to perform and measure outcomes more efficiently and effectively, particularly for non-traditional and under-represented student populations. As in all environments responding to change, there is challenge and opportunity and many variables that determine outcomes. While the crystal ball (mine at least) may be too hazy to read accurately, several implications are becoming apparent, given the conditions identified. These are; r Increased attention will be needed to assure that budgetary and related fiscal policies are appropriately managed, assessed and evaluated;

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r Increased attention to actual performance metrics, particularly in areas of graduation, retention and attrition rates, faculty performance and program assessment; r Increased attention to revenue enhancing functions and ancillary activities (fees, development, etc.) as revenues decline; r Steady pressure on chancellors and senior administrators to “perform more efficiently with less.” This may include lower budgets, longer hours and compensation freezes. It may also mean that leaders have to examine the financial implications of certain practices in an effort to pare down. In large systems it will become increasingly harder for select campuses to grow programs that are expensive or replicate that available elsewhere in the system. All and all, there will be increased pressures to examine duplication in efforts (programs, services, and compliance functions) and pressure to better align and coordinate among campuses in regard to programs; r Increased attention to long-term funding for “research” and the concomitant benefits (in select research areas) of the research investment to promote economic development.

In my estimation the four national trends and conditions I’ve identified will have a more pronounced effect on higher education than “terrorism,” however defined. However, the threats are real and unless we manage, as a community, to put our house in order, it will be done for us by external authorities. The occurrence of high profile cases, such as those discussed in this volume, will continue to plague academe. Sadly, the careers of many fine individuals will be destroyed in efforts to strike an appropriate balance between intellectual freedom, accountability to the public, open access, safety, privacy, and the maintenance of what we know to be essential and cherished academic ideals. Dr. Daniel J. Julius Vice President for Academic Affairs University of Alaska System of Higher Education

Introduction September 11, 2001—I drove the seven miles from Rider University’s Lawrenceville, New Jersey, campus to the university’s music school, the Westminster Choir College, in Princeton. The skies were clear on that sparkling late-summer day; I didn’t even mind the usual hunt for a legal parking space on campus. En route to the administration building, I cut through the kitchen of the student center to mooch a free coffee. A cook obliged. Handing me the paper cup, he mentioned news of a plane crash in New York City. He was shaky on the details. Crossing the quad, I entered Williamson Hall and climbed the stairs to Associate Dean Peter Wright’s office. I tapped on the half-opened door and let myself inside. At his desk, Peter appeared agitated. “I don’t think we can have our meeting” was his greeting. I furrowed my brow. “A plane just crashed into the World Trade Center,” he explained. “I’m sorry to hear that,” I responded. “But what’s that got to do with our meeting?” Peter patiently explained that the crash reportedly was deliberate. And so my well-planned schedule changed. More to the point my—our—whole world changed. I returned to Rider’s main campus, where President Bart Luedeke and Dean of Students Tony Campbell hastily had organized a memorial service on the campus mall. Other administrators ascertained which students had lost family members in the attack and set up a griefcounseling center for the handful who had. Those employees whose spouses

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commuted to the Big Apple tried frantically, and fruitlessly, to telephone them. THE ANTHRAX ATTACKS In the weeks, months, and, inevitably, years following the 9/11 attacks, the resulting “war on terror” affected Rider University, as all of American higher education, in a wide variety of ways. The first such impact was felt as early as September 18, 2001, when letters postmarked from Trenton-area post offices and containing anthrax spores arrived in the offices of two U.S. senators and several news media organizations, ultimately killing five people and making another seventeen or so ill.1 The Federal Bureau of Investigation (FBI) visited the biology labs on every college campus along the Route 1 corridor between New York and Philadelphia. Rider’s single science building was no exception. Nothing suspicious was found there. Nothing suspicious was found in any other university lab in the region. However, the nearby Hamilton post office, which had handled some of the letters, was closed, not to reopen for three and a half years.2 Emblematic of how panicked people were by these anthrax attacks, I received a call early one morning from Rider’s manager of environmental health and safety, Darryl Blusnavage. She advised me that a member of the admissions staff had reported the presence of an unidentified white powder on the table where the mail was usually opened. She recommended we contact Trenton’s first responders. This, she said, might entail the evacuation of

Envelope in which the letter containing anthrax was sent to Senator Tom Daschle during the 2001 anthrax attacks. Photo from Wikipedia. Figure

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the building and perhaps even hospitalization of its occupants. I asked her to hold her fire. Finding his four-digit extension in the campus directory, I rang up Dr. John Sheats, chair of the chemistry department. John obligingly collected a sample of the mysterious powder and ran it through the department’s spectrometer. A half hour later he called me back. “It’s sugah,” he reported in his southern drawl. Only after the dean of students conveyed the analysis to staff did several of them recall the birthday cake that had been cut on that table the day before. Meanwhile, the FBI also intensely investigated Uncle Sam’s own bioweapons facilities, including Fort Detrick in Maryland.3 The investigation proved to be one involving needles and haystacks. Eventually, FBI suspicions focused on a bioweapons researcher named Steven Hatfill. Indeed, after years of investigating, the agency’s only “person of interest” was Hatfill, a Fort Detrick alumnus. Although never indicted, Hatfill’s personof-interest status was enough to make him an outcast in his profession, essentially unemployable. At last, the government admitted that it was trailing the wrong guy. In June 2008, Hatfill received a $5.85 million settlement.4 With Hatfill off the (exceedingly short) FBI hit list, old leads were reviewed, witnesses revisited, and a new suspect emerged. On Tuesday, July 29, amid rumors that indictments were forthcoming, another Fort Detrick denizen, Bruce E. Ivins, killed himself. Attorneys representing Ivins, age sixty-two, in the government investigation attributed their client’s death to a fragile personality that had succumbed to pressure. “The relentless pressure of accusation and innuendo takes its toll in different ways on different people,” the Bethesda criminal-defense attorney Paul Kemp commented of the client he had represented for more than a year. “In Dr. Ivins’s case, it led to his untimely death.”5 The publicly available evidence against Ivins is circumstantial but somewhat compelling. Of some thirty-three years as an army scientist, Ivins’s last eighteen years were spent at Fort Detrick and apparently were devoted in large part to researching anthrax. Between December 2001 and April 2002, Ivins secretly swabbed and bleached some twenty work areas that he later claimed had been contaminated with anthrax by a sloppy lab technician and then kept his cleanup under wraps. When those illegal activities came to light, he claimed that he couldn’t recall whether he had gone back to reswab the contaminated spots to ensure that no spores remained. A former coworker commented in the media, “That’s bull. If there’s contamination, you always re-swab. And you would remember doing it.”6 The newspaper reports indicated that the second round of FBI investigations benefited from better genetic technology that made a match between the spores sent through the postal service and those with which Ivins had worked. If Ivins was guilty, one irony in the case is that he earlier had helped the FBI analyze the anthrax sent to the senators’ offices. However, unless the

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Department of Justice has some direct evidence yet to be made public, we can’t be certain that Ivins’s death closes the case. What, for instance, might have been his motive? Reports I’ve read to date don’t seem to say. On the contrary, the Washington Post reported on August 1 that, in 2003, “Ivins and two of his colleagues at the . . . U.S. Army Medical Research Institute of Infectious Diseases at Fort Detrick . . . received the highest honor given to Defense Department civilian employees for helping solve technical problems in the manufacture of anthrax vaccine.”7 This doesn’t sound like the same guy the Justice Department was ready to indict five years later. Yet, added the Post, prosecutors were considering a request for the death penalty. Could it be that Ivins and/or his colleagues and/or potential coconspirators concocted the anthrax attacks in order to enhance the priority of the work they were doing? Perhaps this is no more far fetched than the anthrax attacks themselves. The criminal justice system has recorded cases of healthcare workers who brought their patients to the brink of death in order to come across as heroes when they saved them. Conspiracy theorists have long contended that the U.S. government contrived the sinking of the USS Maine in Havana’s harbor in 1898 and the Gulf of Tonkin incident of 1964 to precipitate wars with Spain and North Vietnam, respectively. Closure of the anthrax case, which is older even than the war in Iraq, would add a note of finality to at least one ugly incident in the seven-year-old war on terror. But I don’t think we are there yet. TIGHTER REGULATION For Rider University, the anthrax attack hit close to home. Some effects cut across the entire higher-education industry. Tighter government regulation of higher-education activities was one such result of the attacks. The Student Educational Visa Information System (SEVIS) is a good example.8 Prior to 9/11, foreign students seeking to study at American schools received hand-typed I-20 forms along with their acceptance letters from admissions offices. The student presented the form at a U.S. embassy or consulate in his or her home country. Much more often than not, the student walked out with an F-1 student visa in his or her passport. Once the student landed at an American airport and was admitted into the United States on the basis of that visa, he or she might melt into the population without leaving a trace. American host universities had no obligation to report no-shows to anyone.9 Under SEVIS, all F-1 and J-1 (exchange student) visa applications must begin with authorized school officials entering data on a U.S. Immigration and Customs Enforcement (ICE) Web site. Subsequent no-shows must similarly be reported; more precisely, students who actually arrive on campus must be registered online or the SEVIS system will automatically cancel their registration.

Introduction

The USA PATRIOT Act leveled even more stringent regulations at libraries, including university libraries, leading the American Library Association (ALA) to adopt the Resolution on the USA PATRIOT Act and Related Measures That Infringe on the Rights of Library Users. The ALA resolution opens with a bold assertion that America’s libraries are a “critical force” in “promoting the free flow” of information in our democracy. It then asserts the fundamental significance of privacy to the exercise of the First Amendment rights of free speech and free association. The resolution then accuses the federal government of threatening these fundamental rights by Uncle Sam’s assertion of surveillance authority vis a` vis library resources. In particular, the ALA decried the fact that, “The USA PATRIOT Act and other recently enacted laws, regulations, and guidelines increase the likelihood that the activities of library users, including their use of computers to browse the Web or access e-mail, may be under government surveillance without their knowledge or consent.” In light of this perceived threat, the ALA resolved to: r Officially oppose government interference with free inquiry; r Encourage professional librarians to educate themselves and their constituencies about the dangers posed by this new legislation, and to institute privacy policies aimed at countering, so far as legally possible, these intrusive statutes; r Ally itself with other organizations in opposition to the incursions these new laws purport to authorize; r Publicize such incursions to the extent information about them becomes available; r Lobby the Congress and the White House to amend or repeal the more intrusive portions of the legislation.10

YOU HAVE A FRIEND AT THE FBI: FROM ANTHRAX TO INTELLECTUAL PROPERTY By the summer of 2006, the FBI’s interest in Rider, and in many other universities with far more extensive research labs than our modest teaching university boasts, had shifted away from an obsession with biohazards to concern for intellectual-property (IP) theft by foreign faculty and graduate research assistants. Reminiscent of the “Red Scares” of the 1920s and 1950s, the government suddenly saw these international colleagues as, potentially, the enemies within our ivory towers. At the time, Rider having yet again been visited by the FBI, I conducted a comparison of higher education’s IP policies and procedures with those in the U.S. entertainment industry. Initially, I turned to a Philadelphia lawyer of substantial stature for guidance. In his thousand-dollar suit and expensively coiffed steel-gray hair, the IP attorney Kelly Tillery does not bring Black Sabbath’s Ozzy Osbourne

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to mind.11 All the same, the rock star played a part in making Tillery a top intellectual-property lawyer with Philadelphia’s Pepper Hamilton firm: Winterland Productions retained him to put a stop to pirated Black Sabbath merchandise, and he since has represented Bruce Springsteen, Madonna, and the Rolling Stones. More recently, he has represented such top-tier institutions as the University of Pennsylvania, protecting the intellectual property of these research behemoths of higher education. Tillery takes pride in what he does. Still, he worries that his efforts are sometimes too little, too late. Those worries are centered not on trademarked names, but the trade secrets with which university researchers deal daily. “The reason why something is called a ‘trade secret’ is because nobody else knows it. If I steal the formula for Coke and publish it, it’s gone,” he explained. “You can’t put the genie back in the Coke bottle.” Transfer that rule into the arena of weapons of mass destruction, and Tillery’s worldview gets very scary, very fast. “In ten seconds, terrorists can put the formula or the design on the web—at virtually no cost—and make it available to six billion people. Law enforcement will take weeks to shut their site down.” Tillery added, “I catch the bad guys and hang them after they’ve stolen the horse. But in the case of a trade secret the horse can’t be put back into the barn.” I told Tillery about a new FBI program aimed to keep the horses safely in their barns: the College and University Security Effort (CAUSE), which is overseen by the FBI’s economic-counterintelligence section.12 Tillery’s reaction? “On one hand, it scares the hell out of me to have the FBI on college campuses. There was a time—my era—when agents were breaking into professor’s offices to steal their secrets.” He hastily added, however, “If the agency’s goal is to protect information, then it’s a noble goal.” Just so, Tom Mahlik assured me. The section chief of the FBI’s Domain Support and Counterintelligence Strategy Section in Washington, Mahlik said that CAUSE is the centerpiece of the agency’s effort to combat information theft in the global village. He explained that his section was struggling with an “asymmetric threat.” From a counterintelligence specialist’s perspective, the cold war was an easier time. Professional spies operated out of U.S., Russian, and Chinese embassies and consulates. All sides knew who one another were. They played the game by the rules. When the cold war ended, the rules went the way of the Berlin wall. Globalization enables collectors of information to take advantage of the openness with which research is conducted on university campuses. Add to this higher education’s extensive use of engineers and scientists—especially postdocs, who have little hope of permanent positions at their American host institutions—from around the world, and all the ingredients for technology theft are in place. The counterintelligence section’s noble cause is to raise consciousness before those horses in our research barns are gone.

Introduction

Mahlik cited the example of a notable university in the southeastern United States where one of his teams toured a high-tech lab staffed primarily by South Koreans, Indians, and Portuguese researchers. “My investigators asked, ‘If this work goes commercial, which countries are our top competitors?’ You guessed it: South Korea, India, and Portugal.” He continued, “Probing a little deeper, we learned that the lead investigator was frequently invited back to his home university in Korea to lecture. Sometimes the whole family received a paid vacation as part of the package. This was happening prepublication, prepatent, prelicensing.” University officials, he added, expressed surprise when this severe security risk was pointed out. Solutions, Mahlik admitted, are limited. “Nondisclosure agreements for starters,” he suggested. “They at least create a platform on which to have a discussion with scientists. From there, every situation requires a ‘right’ mitigation strategy.” Mahlik himself worried that America’s technological superiority is slipping away, and to him the struggle is “asymmetric.” The advantage lies with the party who chooses to become a thief. Meanwhile, Mahlik added, “The last thing we want to do is roll onto a campus for the first time in the midst of a crisis. That just aggravates the culture clash. We want to be preemptive rather than reactive.”13 IP, ESPIONAGE, AND TERROR: A SEAMLESS WEB? So just how exposed is American IP? Three years ago, the late Professor Cory Fine of the University of North Florida and I conducted a study of higher education’s IP policies and published our conclusion in a 2003 issue of Journal of Intellectual Capital.14 My coauthor and I concurred that corporations should be concerned that their financial investments in research were likely, in many cases, not adequately protected from third-party theft.15 Some cases in point: In June 2002, two former postdocs admitted to stealing trade secrets from Harvard Medical School’s cell biology department. Jiangyu Zhu and Kayoko Kimbara were arrested in California after absconding with reagents used in the development of immunosuppressive drugs to control organ rejection. The criminal complaint alleged that they also stole information about gene therapies for cardiovascular and nervoussystem disorders. Their crime was “all in the family.” The two were married. It was alleged that the couple sent three genes home to Japan to help a biomedical company develop antibodies. E-mail was their communication of choice.16 In 2004, a Texas Tech University scientist, Dr. Thomas Butler, the former chief of the university’s Health Science Center’s infectious diseases department, was convicted of mishandling bubonic plague and sentenced to two years in prison. He was also ordered to pay a $15,000 fine and $38,000 restitution to his institution. According to university spokespeople,

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Butler engaged in “shadow contracts” with drug companies without the school’s knowledge.17 Last but not least, note the lawsuit filed in 2006 by a biotechnology company against a scientist at the University of Connecticut. Sequoia Sciences’ suit alleged that Dr. Thomas Wood violated a confidentiality agreement involving biofilm inhibitor, when he spoke in July 2006 at a conference of the International Union of Microbiological Societies.18 This variety of cases spanning the distance from 9/11 to the near present indicate both the range of dirty deeds and mixed motives, including loyalty to another nation, malicious intent, and plain old greed, which alone or in combination lead otherwise-valuable research scientists to become threats to university, and sometimes even national, security. That Uncle Sam sees a seamless web is demonstrated by the subsequent establishment of the National Intellectual Property Rights Coordination Center, which brings together disparate law enforcement, immigration, and commercial agencies of the federal bureaucracy: In establishing this center, the participating agencies asserted that,“[I]n recent years, the threat to intellectual property rights (IPR) has grown in magnitude and complexity. Industry and trade associations estimate that counterfeiting and piracy cost the U.S. economy in excess of $200 billion per year and more than 750,000 American jobs. However, as great as the monetary loss is, the loss of technological superiority and trade competitiveness to U.S. trademark and copyright owners is immeasurable.” The center’s maiden announcement went on to suggest that the national security threat it seeks to combat extends beyond the IP of the for-profit business sector. Tainted goods entering the United States, often in the guise of brand names, include everything from toys to pharmaceuticals and medical equipment to foodstuffs; these pose serious health and safety threats to all citizens. The Center has been the federal government’s central point of contact in the fight against IP violators and the flow of counterfeit goods into the commerce of the United States since 2000. The new center in Northern Virginia is in essence the high-tech home of a partnership among the U.S. government, private industry, and state-and-local law enforcement communities. Specific stated goals include: r More effectively using member agencies’ authorities and resources to combat the global threats to public safety and national security posed by the importation into the U.S. of counterfeit, substandard and tainted products; r Jointly managing investigative leads and coordinate investigations and operations nationally and internationally for maximum impact; r Enhancing working relationships with existing and emerging industries to identify the threats to intellectual property and trademarks;

Introduction

r Providing comprehensive training to domestic and international law enforcement agencies on investigative best practices to broaden IPR protection and expand transnational enforcement capabilities.19

BEYOND THE 9/11 ATTACKERS: DOMESTIC TERRORISTS TAKE MANY FORMS So far, no jihadist terror attacks have been directed at American universities. While the 9/11 and subsequent anthrax attacks, as well as changes in federal law, have forced increased attention to security issues on college campuses, the terrorist threats that most disturb and disrupt our colleges and universities emanate from domestic terrorists.20 Going beyond the IP espionage outlined previously, domestic terrorists destroy tangible property and sometimes kill. These homegrown terrorists come in two principal varieties. First, there are the loners, notably rogue researchers, such as Ivins, who in some sick way are seeking attention, and crazed killers, such as the highly disturbed young man who slew more than thirty victims at Virginia Polytechnic Institute and State University in April 2007 (see Chapter 7). The second are those who are passionately, even obsessively committed to a doctrine or a cause, including animal-rights activists, who so far haven’t killed anyone but have caused significant property damage, fear, and research disruption in their misguided crusade to free laboratory animals (see Chapter 8). These latter terrorists resemble their radical-Islamic counterparts in their adherence to a political, religious, or ethical credo, while the former are driven by mental and emotional demons of an individualistic nature. Both pose severe threats to higher education. A third group, which to date has done no direct physical damage to their institutions, students, or colleagues but who are nonetheless deemed to be threats worthy of removal (even when tenured), are Al-Qaeda sympathizers, such as Ward Churchill and Sami Al Arian (see Chapter 5). All in all, campus public safety forces and university administrators feel beleaguered by security threats for which most of them were ill equipped seven years ago, but now are moderately to well prepared. Even Rider University has an emergency response plan aimed to anticipate and react rapidly to a wide range of attacks and other emergencies.21 HEREWITH, MY THESIS The war on terror is a double-edged sword, so far as higher education is concerned. On one hand, as I have tried to outline and exemplify, the War on Terror post-9/11, as well as campus tragedies—most notably the Virginia Tech massacre—have resulted in a loss of innocence: the inexorable, irresistible demand for ever-tighter security measures is accompanied by not

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only the substantial dollar costs of such regulatory and loss-control reforms but also the unavoidable loss of that tweedy, mildly eccentric, and casual atmosphere that characterized college campuses for generations.22 The first half of this book focuses on these varied threats to campus security and higher education’s varied responses. On the other hand, the war on terror has precipitated an enormous windfall for many colleges and universities. The second half of this book documents several of the major ways in which this has happened. Chapter 6 examines several typical counterterrorism and national-security studies programs around the nation, demonstrating that counterterrorism is big business on college campuses. Part Two also includes a special case, one of enormous monetary implications for a favored few. Saudi Arabia has selected a significant, if limited, number of top-notch universities and researchers upon whom it has showered extraordinary grants and gifts. Chapter 8 goes into the field with anthropologists and other social scientists employed by Uncle Sam and embedded in U.S. military units in the nation’s counterterrorism hot spots. The conclusion argues that, on balance, American higher education is the better for rising to the challenges while embracing the many monetary benefits engendered by twenty-first-century terrorism. To draw an analogy, while the New Deal combined with the general tendency of the business cycle to climb out of a downturn (even one as severe as the Great Depression) resulted in an improved American economy by 1941, World War II was the principal cause of our complete economic recovery and of America’s ascendancy to superpower status. Similarly, while globalization and stiff competition from for-profit entrants such as the University of Phoenix nudged American higher education toward increased efficiency and professionalism, the industry remained a highly inefficient enterprise, alarmingly vulnerable to all manner of threats, both from competitors and from enemies of all types. In seven years—a mere blink of the academic eye—the war on terror, the Virginia Tech massacre, and resulting regulatory responses have propelled American higher education to a new, previously unanticipated level of organizational security, financial responsibility, competitiveness, and efficiency. In my opinion, this is a good thing.

PART ONE

Threats to Higher Education and Our Responses

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The Enemy Within? Al-Qaeda’s Academic Sympathizers WARD CHURCHILL As for those in the World Trade Center. . . . Well, really, let’s get a grip here, shall we? True enough, they were civilians of a sort. But innocent? Gimme a break. They formed a technocratic corps at the very heart of America’s global financial empire—the “mighty engine of profit” to which the military dimension of U.S. policy has always been enslaved—and they did so both willingly and knowingly. Recourse to “ignorance”—a derivative, after all, of the word “ignore”—counts as less than an excuse among this relatively well-educated elite. To the extent that any of them were unaware of the costs and consequences to others of what they were involved in—and in many cases excelling at—it was because of their absolute refusal to see. More likely, it was because they were too busy braying, incessantly and self-importantly, into their cell phones, arranging power lunches and stock transactions, each of which translated, conveniently out of sight, mind and smelling distance, into the starved and rotting flesh of infants. If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I’d really be interested in hearing about it.1

With this volatile paragraph, published within twenty-four hours of the 9/11 attacks, Professor Ward Churchill precipitated one of the most vitriolic

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clashes to date between an institution of higher learning and a tenured member of its faculty since the start of America’s war on terror. Ward LeRoy Churchill, who was born October 2, 1947, has been broadly categorized as “an American writer and political activist.” He was a professor of ethnic studies at the University of Colorado at Boulder from 1990 to 2007, when he was finally fired following a lengthy controversy over his September 12 essay, and a comparably controversial investigation of his record of scholarship. Most of the research and writing on which his career and reputation were built critiqued the historical treatment of political dissenters and American Indians by the U.S. government. His work typically featured controversial and provocative claims, written in a very direct, often confrontational style.2 Born in Elmwood, Illinois, Churchill was drafted into the U.S. Army in 1966. His record of service is a matter of some confusion, if not to say controversy, with available sources variously claiming that he volunteered for Vietnam, where he became a combat veteran, and that he was nothing more than a light-truck driver. He also is said to have been radicalized by his involvement with Students for a Democratic Society and the Weathermen in the late 1960s, when he began his college studies. At any rate, he earned a B.A. in technological communications in 1974 and an M.A. in communications theory in 1975, both from the University of Illinois at Springfield.3 Three years later, his career at the University of Colorado at Boulder began with a midlevel administrative post. His rise from that relatively humble position can be described only as meteoric. Churchill’s career as a self-styled champion of oppressed peoples commenced as an affirmative action officer at the University of Colorado at Boulder in 1978. He lectured on Indian issues as an adjunct faculty member in the school’s ethnic studies program, an activity that burgeoned in 1990 into an associate professorship. Although he did not possess the academic doctorate usually required for such a position, the department apparently deemed his credentials adequate to justify the full-time appointment. Only a year later, he was granted tenure in the Communications department, without the inconvenience of the usual six-year probationary period . . . this after the Sociology and Political Science departments passed on permanently appointing the professor. He eventually acquired a doctorate, albeit only an honorary one, this from Alfred University in the course of giving a lecture there on American Indian history in 1992. He moved to UC-Boulder’s new Ethnic Studies department in 1996 and was promoted to full professor in 1997. He began to chair the department in June 2002.4 How to explain this remarkable progression? Four books certainly go a long way toward an explanation, albeit these were not with major university presses.5 Appointment, promotion, and tenure criteria of many universities allow for the substitution of exceptional achievement for traditional terminal-degree status. Reportedly, a document in his university

The Enemy Within? Al-Qaeda’s Academic Sympathizers

personnel file calls his a “special opportunity” position.6 But, predictably, after Churchill’s 2001 essay fell into the media spotlight in 2005, his claims and qualifications began to be scrutinized and challenged. As any decent attorney knows very well, when you want to undermine a witness’s credibility the place to begin is his or her resume, if that is open to questioning. In Churchill’s case, the Denver Post, which itself had published a flattering profile of Churchill back in 1987,7 helped lead the charge against him. On June 9, 2005, the paper stated, “Everything from his service record in Vietnam to his ethnic heritage to the quality of his scholarly work has been deconstructed—fueled by his own statements that don’t always stand up.” The article went on to say, “He’s described himself in interviews and documents as Indian—sometimes Creek, sometimes Cherokee, sometimes both—but police records indicate otherwise, and he has been unable or unwilling to provide any documentation of his ancestry. He says he walked a dangerous point position in Vietnam, but his military records say he was a light-truck driver. Experts in his field of American Indian studies can’t agree on the quality of his scholarship.”8 In another 2005 article, the paper reported that the Keetoowah band of Cherokee Indians confirmed that Churchill, who claimed Native American heritage, was merely an associate member of the tribe, which requires at least one-quarter Indian blood for full-fledged membership. A spokesperson for the tribe’s enrollment committee was quoted as asserting, “He was trying to get recognized as an Indian. He could not prove he was an Indian (Cherokee) at all.”9 Once Pandora’s box was opened by the Post articles, it took no time at all for his academic credentials to be questioned: A high-ranking University of Colorado official urged a faculty appointment for Ward Churchill in 1990, despite questions about his academic credentials. Less than a year later, Churchill landed a coveted tenured faculty position, bypassing the rigorous, six-year academic review that normally precedes tenure, according to CU documents. The correspondence between then–Vice Chancellor for Academic Services Kaye Howe and Dean of Arts and Sciences Charles Middleton sheds more light on how Churchill, who faces possible firing, rose in the ranks at CU. Although Churchill’s scholarship is under fire now for alleged sloppiness and fabrication, CU officials in 1990 considered him an expert in American Indian studies who might be lost to another school.10

One reporter, noting that Churchill’s “stream of consciousness” diatribe had dropped into obscurity after publication in 2001, observed, “Dusted off three years later, it has catapulted him to prime-time TV, prompted death threats and spawned protests from New York to Colorado.”11 This writer went on to report Churchill’s explanation of his controversial article, which had gone on to become a book. “‘I am not a defender of the Sept[ember] 11

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attacks, but simply pointing out that if U.S. foreign policy results in massive death and destruction abroad, we cannot feign innocence when some of that destruction is returned. . . . [S]uch attacks are a natural and unavoidable consequence of unlawful U.S. policy.”12 The University of Colorado regents began their inquiry into Professor Churchill on February 3, 2005. In the words of the preliminary report resulting from this inquiry, which was led by Chancellor Philip DiStefano, “the review by the Chancellor focused initially on allegations concerning certain conduct, speeches, and writings of Professor Churchill and related to the nature of his statements. During the course of the review the Chancellor received additional allegations, primarily in the area of research misconduct.”13 With regard to the first set of allegations, the report reads as follows:

1. Did certain statements by Professor Churchill, made in his writings and speeches, exceed the boundaries of a public employee’s constitutionally protected speech? This review of Professor Churchill’s work was sparked by an essay purportedly written on September 12, 2001, the day after terrorists attacked the World Trade Center (the “9/11 Essay”), and particularly his use of the term “little Eichmanns” in the 9/11 Essay to refer to the victims of the World Trade Center terrorist attacks. The crude and strained application of the “little Eichmanns” metaphor so soon after the 9/11 attacks demonstrated indifference to the families of 9/11 victims and Holocaust survivors, outraged many members of the public and aroused calls by public officials and others for Professor Churchill’s censure or dismissal. Although the 9/11 Essay was republished in several places and expanded into a book, it received little public notice until January 2005, when Professor Churchill was asked to speak at Hamilton College in New York and the student newspaper ran a story about the essay. As a result of attention generated by the 9/11 Essay, Professor Churchill’s other writings and his speeches came under intense public scrutiny. Allegations emerged that Professor Churchill advocated violent acts, that his statements exceeded the bounds of protected expression, and that his conduct and speech have caused such outrage as to warrant his dismissal for cause. The following statements were considered:

r In an interview published in the April 2004 edition of Satya magazine, Professor Churchill spoke of the elimination of the United States government: [“]If I defined the state as being the problem, just what happens to the state?

The Enemy Within? Al-Qaeda’s Academic Sympathizers I’ve never fashioned myself to be a revolutionary, but it’s part and parcel of what I’m talking about. You can create through consciousness a situation of flux, perhaps, in which something better can replace it. In instability there’s potential. That’s about as far as I go with revolutionary consciousness. I’m actually de-evolutionary. I don’t want other people in charge of the apparatus of the state as the outcome of a socially transformative process that replicates oppression. I want the state gone: transform the situation to U.S out of North America. U.S. off the planet. Out of existence altogether.[”] r In an essay written in 2001, Professor Churchill stated: “Those committed to achieving fundamental change rather than cosmetic tweakings of the existing system are thus left with no viable alternative but to include the realities of state violence as an integral part of our political calculus.” r On a February 12, 2005 segment on “At Large w/Geraldo Rivera,” Professor Churchill said: “I’ve even had people argue that those in the Pentagon were innocent bystanders, as well. I mean, my God, if you can’t hit the Pentagon, what can you hit?”; and “[b]ut as it stands, it was absolutely necessary, and it was absolutely empowering, even if they get beat, that they actually drew blood where it counted.” r In a lecture given by Professor Churchill in Seattle on August 10, 2003, in response to an audience member’s question as to “why shouldn’t we do something and how could we move so they don’t see us coming,” Professor Churchill responded, in pertinent part: [“]You carry the weapon. That’s how they don’t see it coming. You’re the one—[inaudible]. They talk about colorblind; they’re blind to your color. You said it yourself. Okay? You don’t send the black liberation army into Wall Street to conduct an action. You don’t send the American Indian movement into downtown Seattle to conduct an action. Who do you send? You. With your beard shaved, your hair cut close and wearing a banker’s suit.[”]

In considering these statements and their bearing on Professor Churchill’s employment, the University of Colorado as a public employer is constitutionally required to abide by the right to freedom of expression guaranteed by the First Amendment to the United States Constitution. The First Amendment prevents government employers such as the University from abridging protected speech by taking adverse action against public employees, including University professors, because of their expression or views on matters of public concern. Speech that is purely political in nature receives the strongest constitutional protection. Constitutional protection of political expression is most often raised when the expression is unpopular. As the Supreme Court has said, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Professor Churchill’s

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Al-Qaeda Goes to College referenced statements concerning United States policies and global affairs, though repugnant in many respects, constitute political expression. Public employees have a right to express themselves so long as their speech does not unduly disrupt the operation of the workplace or impede the performance of the speaker’s duties. In such circumstances, the government employer’s interest in “promoting the efficiency of the public services it performs through its employees” may outweigh the employee’s First Amendment rights. Professor Churchill’s statements and the outcry against them have sorely embarrassed the University. However, the reviewers found no evidence that he has failed to maintain his faculty responsibilities. Courts have upheld adverse employment action based on disruptions only where the speaking employee has a special duty to an outside constituency. In such cases, courts have focused on the employee’s responsibilities in the workplace. For example, a University administrator, such as the chair of a department, has a greater responsibility to external constituencies than does a professor. Where, as here, a professor’s offensive statements in matters of political belief do not entail a non-performance of his professorial duties, the First Amendment forbids the government from disciplining the professor for making the statements. In Jeffries v. Harleston, a tenured professor and department chair outraged the community, alumni, donors, and prospective students over an anti-Semitic speech. He was subsequently removed from his chairmanship, a position in which he could be viewed as speaking for the institution. However, he was not removed from his appointment as a tenured professor. In upholding his removal as chair, the court noted that the professor still had access to the “‘marketplace of ideas’ in the classroom.” This is in keeping with the constitutional principle that the First Amendment does not allow the public, with the government’s help, to shout down unpopular ideas because they stir anger. Similarly, in this case, the outrage Professor Churchill has generated among state and federal elected officials, commentators, and citizens across the country most likely would have warranted his removal as Chair of the Ethnic Studies Department had he not stepped down. However, his faculty position does not impose the same responsibilities to those external constituencies. Professor Churchill appears to have continued in his faculty responsibilities and the content of his speech has not disrupted the University’s provision of services to its students or the ability of other faculty members to perform their responsibilities. His political expression is, therefore, constitutionally protected against government sanction on the grounds of disruption, in spite of the damage it may have caused.

The Enemy Within? Al-Qaeda’s Academic Sympathizers In addition to the limitations on speech specifically applicable to public employees, the Supreme Court has held that advocacy of the use of force or violation of the law is not protected when it is directed to inciting or producing imminent lawless action and is likely to produce such action. However, this exception to the exceedingly broad protection otherwise afforded by the First Amendment applies only to advocacy of concrete or imminent violent action, as opposed to political hyperbole or advocacy and teaching of illegal violent action as an abstract principle. There is no evidence that the statements that precipitated this review or any of Professor Churchill’s other referenced statements meet this standard. While some of his statements advocate violence as a means to a political end in an abstract way, they do not rise to the level of inciting imminent and concrete violence as that line has been drawn by the United States Supreme Court. Therefore, the nature and content of Professor Churchill’s speech does not exceed the boundaries of a public employee’s protected speech.14

Regarding the allegations of research misconduct, the report reads:

2. Is there evidence that Professor Churchill engaged in other conduct in the performance of his University responsibilities that warrants further action by the University, namely, research misconduct, teaching misconduct, or fraudulent misrepresentation? The relationship between a University and a professor is governed by contractual and professional obligations that can result in discipline or discharge. Contractual arrangements that reflect traditions of tenure and academic freedom protect professors even in private institutions where First Amendment protections may not apply. Academic freedom cases usually involve the “rights of professors who express radical views or engage in radical political activity[,]” and academic freedom typically shields an individual from institutional sanction even for speech that is embarrassing to the institution or to one’s colleagues or students. Still, it is not without limits. Among other things, academic freedom is subject to the limitations imposed by standards of professional conduct articulated in the rules and policies of the University. Although the standards of professional integrity to which a tenured professor must adhere may differ according to what should be expected of a professor in a particular field, every discipline requires intellectual honesty and professional conduct. For tenured professors,

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Al-Qaeda Goes to College adherence to minimum standards of professional integrity is a contractual requirement. Because the matters reviewed here arose as a result of statements by Professor Churchill protected by the First Amendment, it is appropriate to ask whether it is now proper to pursue possible action for alleged misconduct identified in the course of this review. The fact that the controversial subject matter of speech may be constitutionally protected does not insulate it from conforming to minimum standards of professional integrity, including standards for academic research. The University should address misconduct uncovered in the course of a review such as this one just as it should address alleged sexual harassment, sanctionable criminal activity, or other wrongdoing within its purview. a. Is there evidence that Professor Churchill engaged in research misconduct? In the course of this review, the University received information from scholars, expert in the fields in which Professor Churchill writes, who tendered allegations of research misconduct which, if true, could violate standards of professional integrity. The following information was considered:

r Professor John LaVelle of the University of New Mexico forwarded allegations to the reviewers that Professor Churchill’s work is “sorely lacking in historical/factual veracity and scholarly integrity.” One of Professor LaVelle’s most serious allegations is that Professor Churchill has misrepresented an important statute in the field of federal Indian law, the General Allotment Act of 1887, and that this misrepresentation is a central premise of one of Professor Churchill’s scholarly theories. According to Professor Churchill, the General Allotment Act “imposed a formal eugenics code” that tribes themselves adopted by making blood quantum a requirement of membership. Professor LaVelle has asserted that Professor Churchill’s criticisms of Indian tribes for using blood quantum standards as part of their tribal enrollment criteria rests on false information about the Act. Professor LaVelle asserts that “[t]he main flaw of this federal/ tribal conspiracy theory is that it rests on—and propagates—demonstrably false information concerning the contents and impact of the General Allotment Act.” Professor Churchill continued to maintain the theory subsequent to publication of Professor LaVelle’s articles. Other scholars have relied in their work on Professor Churchill’s assertion that the General Allotment Act contained a blood quantum requirement. r Professor LaVelle makes a similar allegation about an assertion Professor Churchill has advanced concerning the Indian Arts and Crafts Act of 1990. The Indian Arts and Crafts Act is aimed at preventing non-Indians from marketing their art as Indian-produced. Professor Churchill says the following about the Arts and Crafts Act:

The Enemy Within? Al-Qaeda’s Academic Sympathizers The government “standard” involved—usually called “blood quantum” within the lexicon of “scientific” racism—is that a person can be an “American Indian artist” only if he or she is “certifiably” of “one-quarter or more degree of Indian blood by birth.” Alternatively, the artist may be enrolled as a member of one or another of the federally-sanctioned “tribes” currently existing within the [United States]. Professor LaVelle refers to Professor Churchill’s description of the Act as a “false characterization” and states further that Professor Churchill’s description is “erroneous—and egregiously so.”

r Professor Thomas Brown of Lamar University forwarded information alleging that a theory Professor Churchill has published as fact—that the U.S. Army perpetuated genocide—is clearly contrary to the source Professor Churchill cites. Professor Churchill has asserted that the U.S. Army deliberately distributed smallpox-infested blankets to Mandan Indians in 1837, causing an epidemic in which over 100,000 people died. However, the source he cites is contrary to both the number of dead and his version of the story. Indeed, [as to] his source, Professor Russell Thornton of UCLA and other experts agree that the story is without historical basis. Professor Brown states: Situating Churchill’s rendition of the epidemic in a broader historiographical analysis, one must reluctantly conclude that Churchill fabricated the most crucial details of his genocide story. Churchill radically misrepresented the sources he cites in support of his genocide charges, sources which say essentially the opposite of what Churchill attributes to them.

r Professor Fay G. Cohen of Dalhousie University in Canada told the University of Colorado during this review that Professor Churchill plagiarized her work by publishing a chapter entitled “In Usual and Accustomed Places” in a book entitled The State of Native America. The chapter was nearly the same as an article entitled “Implementing Indian Treaty Fishing Rights: Conflict and Cooperation” that she had published in a volume edited by Professor Churchill. The book chapter showed the author to be “Institute for Natural Progress,” and the “About the Contributors” section of the book, in turn, attributed the work of the Institute of Natural Progress to Ward Churchill. In 1997 the Dalhousie University legal counsel rendered an opinion concluding that the chapter was plagiarized.” Professor Cohen alleged that she did not communicate the allegations of plagiarism discussed above to the University of Colorado until March 2005 because she was intimidated by Professor Churchill based on past dealings. She recounted that when she withdrew her work from The State of Native America, a book edited by, [and] which Professor Churchill was closely involved with, due to substantive editorial disagreements, he telephoned her late at night and said in a menacing voice: “I’ll get you for this.” While the threat and resulting intimidation described by Professor Cohen did not directly relate

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Al-Qaeda Goes to College to the research misconduct allegation, they would be relevant to a question which may be raised during the course of the research misconduct inquiry, that is, why Professor Cohen did not pursue the plagiarism claim sooner.

r Rhonda Kelly, the sister of Professor Churchill’s late wife, Leah Renae Kelly, has made allegations to the reviewers concerning a fifty-page “biographical preface” written by Professor Churchill for a book of essays by Leah Kelly entitled In My Own Voice. The essays were posthumously published in 2001 in a book edited by Professor Churchill. Rhonda Kelly denounces the preface as “inaccurate and defaming” because, in her view, the preface incorrectly describes Leah’s upbringing on and near a Canadian Ojibway reserve. Further, she says Churchill misrepresents Ojibway society as matrilineal when in fact it is patrilineal. The Assembly of First Nations, representing Native peoples across Canada, has also passed a resolution in support of Rhonda Kelly and denouncing the book. r Professor LaVelle also alleges that Professor Churchill has misused the materials of another scholar, Rebecca L. Robbins, Ph.D. Professor LaVelle points out that a passage from an essay in a 1993 book by Professor Churchill closely resembles a similar passage from a 1992 publication by Dr. Robbins. Years after Professor LaVelle raised the issue, Professor Churchill republished the essay with some changes but still containing Robbins’ work without attribution. The inquiry into allegations of research misconduct is a function assigned to the faculty. The University of Colorado at Boulder Standing Committee on Research Misconduct (the “Committee”) has the duty to review, inter alia, allegations of “[f]abrication, falsification, plagiarism and other forms of misappropriation of ideas, or additional practices that seriously deviate from those that are commonly accepted in the research community for proposing, conducting, or reporting research.” Allegations of research misconduct that are not frivolous are reviewed by the Committee. With the exception of Rhonda Kelly’s allegations, with respect to which the reviewers were unable to obtain independent verification, the referenced allegations meet that minimum standard and will be referred to the Committee for further inquiry. If the Committee determines that Professor Churchill engaged in research misconduct, the Committee is to make recommendations regarding possible disciplinary action ranging from warning to dismissal. Consistent with University policy, the Committee’s process will afford Professor Churchill all due opportunity to respond to the allegations.

b. Is there evidence that Professor Churchill engaged in teaching misconduct? During the course of the review, the Chancellor received information about complaints made by several of Professor Churchill’s former students. According to the information, two students complained that their grades had been

The Enemy Within? Al-Qaeda’s Academic Sympathizers lowered by Professor Churchill because of positions they took. The Regent Law on academic freedom provides that students must have freedom of study and discussion. Undergraduate students who have concerns about faculty behavior, performance or grades may seek resolution as outlined in the “Student Appeals, Complaints, and Grievances: A Brief Guide,” published by the Office of Undergraduate Education. Both of the complaints received are over five years old. Much of the information on which they must rely cannot be verified because student records are not retained after five years. No action can be taken on these complaints at this date. c. Is there evidence that Professor Churchill engaged in fraudulent misrepresentation by misrepresenting himself as a Native American in order either to gain an employment-related benefit or to add credibility and public acceptance to his scholarship? The reviewers received multiple generalized accusations that Professor Churchill is not, in fact, Indian, and that he has misrepresented his Indian status in a way material to his employment status and his work as a scholar. Professor Churchill’s claim of Indian ethnicity dates at least to his self-identification on a 1979 application for employment at the University, and is perpetuated by the notation “Tribal Enrollment: United Keetoowah Band Cherokee (Roll No. R7627)” on his curriculum vita[e]. It also appears that Professor Churchill has used his claimed Indian status to attract an audience for his work and to add credibility to it. He has used an “Indian voice,” speaking of “my people” and “we.” The title of one of his books, From a Native Son, implies that he speaks as an American Indian. At times he has claimed ancestry in three tribes. He started one speech: “I bring you greetings from the Elders of the Keetoowah [B]and of Cherokee, my mother’s people.” In another work he refers to “my father’s people, the Creeks.” He writes that “I am an enrolled Keetowah Band Cherokee.” Principal Chief Wickliffe of the Keetoowah Band of Cherokee reported to the reviewers that an “associate” of the band is not enrolled in the tribe; associate membership is merely an honorary designation, like an honorary degree from a university. The question of Professor Churchill’s Indian status raises two separate but related issues. First, did Professor Churchill misrepresent his Indian status on an employment application and, as a result, gain an employment advantage? This question arose in 1994 when certain Indian leaders communicated with the University claiming, among other things, that Professor Churchill lied on his application about his Indian heritage. The then Boulder campus chancellor reviewed this complaint and concluded that University policy permitted self-identification. The chancellor noted that the Equal Employment Opportunity Commission took the position that observation and

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Al-Qaeda Goes to College self[-]identification are the most reliable indicators of ethnicity. The chancellor declined to pursue the matter. The question about Professor Churchill’s employment application must be considered closed as a result of this tenyear[-]old review. A remaining question is whether Professor Churchill has attempted to gain a scholarly voice, credibility, and an audience for his scholarship by wrongfully asserting that he is an Indian. There is evidence that Professor Churchill’s assertion of his Indian status is material to his scholarship, yet there is serious doubt about his Indian identity. The evidence is sufficient to warrant referral of this question to the Committee on Research Misconduct for inquiry and, if appropriate, investigation to determine whether Professor Churchill relies on his Indian identity in his scholarship and, if so, whether he has fabricated that identity. The Committee should inquire as to whether Professor Churchill can assert a reasonable basis for clarifying such identity.15

On these facts the chancellor, clearly a politically astute individual, found that Churchill’s statements about the 9/11 attacks, “however repugnant,” were protected by the First Amendment. He then went on to find that the allegations of research misconduct, including Churchill’s apparently false claims of American Indian heritage, were serious enough to be referred to the institution’s Standing Committee on Research Misconduct.16 The committee subsequently found the professor guilty of research misconduct, and on June 26, 2006, the university announced its intent to fire Churchill, who in turn vowed to sue the school. “We’re going to a real court because we can trust juries to do the right thing,” he was quoted as saying.17 Meanwhile, the University of Colorado Chapter of the American Association of University Professors issued its statement on the decision: No one doubts that the original charges against Professor Churchill were politically motivated. In February 2005, the Colorado House of Representatives unanimously adopted a resolution condemning Churchill and State Governor Bill Owens called publicly for him to resign for statements he made regarding the World Trade Tower disaster. These resolutions violated Professor Churchill’s First Amendment right to free speech, as a University appointed committee rightly ruled. However, charges of academic misconduct immediately surfaced—from the same and similar sources—despite the fact that similar charges had been raised at least two years earlier, and were never followed up by the University. In this highly politicized context, many assert that no investigation of Professor’s Churchill’s work should ever have been undertaken, and others argue that, in such a context, a fair

The Enemy Within? Al-Qaeda’s Academic Sympathizers investigation was impossible. Notwithstanding, an inquiry was conducted, in circumstances marked by constant inflammatory, ad hominem, and even obscene attacks, on and off the [university] campus, against Professor Churchill, his department, anyone who appeared to support him, and even against some members of the ad hoc Investigating Committee, two of whom resigned soon after the investigation began.18

In late July 2007—nearly six years after the publication of his “chickens” essay (just one day after the 9/11 terrorist attacks)—Ward Churchill was terminated by an 8–1 vote of the university’s board of regents. “According to university administrators, it was findings that Mr. Churchill had committed research misconduct—and not the notoriety of his opinions—that fueled the decision.”19 Churchill’s attorney, David Lane, filed suit the morning after the board’s vote. The day before, immediately after the vote was announced, Lane commented to the media, “Ward Churchill’s body will be dragged out of here at [four] o’clock and displayed by the regents to satisfy the baying of the right-wing members of the media [and] maybe get them off CU’s back.”20 Lane is a named partner in the Denver firm of Killmer, Lane & Newman, LLP, which says of itself: The lawyers of Killmer, Lane & Newman, LLP[,] are concerned, above all else, with the protection of the civil rights and liberties of our clients. In our role as trial and appellate lawyers, we are the advocates of the underdog. Whether litigating on behalf of employees against the wrongful conduct of their employers, or on behalf of criminal defendants, our mission, first and foremost is to defend the Constitutional and statutory rights of our clients against both criminal accusations and, frequently, oppressive and illegal corporate or governmental conduct. We represent people, and our opponents are almost always institutional entities. We strongly believe in, and take pride in enforcing, our Constitution and the laws guaranteeing the rights and liberties of the clients we represent.21

Of Lane himself, the firm offers the following demographics and credentials, which appear to make him the perfect attorney for Churchill: Born Denver, Colorado, January 4, 1954; admitted to bar, 1981, New York; 1987, California and Colorado, as well as numerous federal jurisdictions. Education: University of Colorado (B.A., 1977); Boalt Hall School of Law (J.D., 1980). Previously served as public defender with the New York City Legal Aid Society and supervising attorney.

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Al-Qaeda Goes to College Recipient: Colorado Criminal Defense Bar Jonathan Olam Award for exceptional service and sacrifice; Newsed Community Development Civil Rights Award. Lecturer: NAACP Legal Defense Fund’s Airlie Conference for death penalty defense attorneys; numerous bar conferences regarding criminal defense issues. Adjunct Professor of Law: University of Colorado School of Law, 1988– 1995; University of Denver School of Law, 1995–present. Certified by U.S. District Court for accepting federal criminal appointments including death penalty cases at trial, on appeal, and in post-conviction. Board Member, Colorado ACLU, 1993–1994; Legal Panel Member, Colorado, ACLU, 1993–1996; Board Member, Colorado Criminal Defense Bar Association, 1994–1998; Member, Amnesty International, National Association of Criminal Defense Attorneys. Practice Areas: Criminal Defense (Federal and State); Trial and Appeals; Civil Rights Litigation and Appeals.22

The regents’ vote and Lane’s lawsuit climaxed two and a half years of investigations into the quality of Churchill’s research and writing. “Those investigations started because of a public-relations crisis.”23 An interim university chancellor and two deans conducted the first inquiry, which found that Churchill’s scholarship was protected by the First Amendment. However, their investigation failed to deal dispositively with earlier allegations of research misconduct. Consequently, a second special investigation was launched in May 2006 by a committee composed of three University of Colorado at Boulder faculty members and two professors from outside Churchill’s home institution. Their 124-page report cited mostly the same instances of fabricated evidence, improper citations, and plagiarism outlined in the chancellor’s report. “That report, which was followed by several other steps . . . , paved the way for [the recommendation] to the Board of Regents in July that Mr. Churchill be fired.”24 Churchill’s responsive legal action, filed in the Denver district court, complained that after his “chickens” essay entered the public spotlight, “the university vowed to examine every word ever written or spoken by Professor Churchill in an effort to find some excuse for terminating his employment.” Churchill’s complaint claimed that both the investigations and the regents’ decision were retaliation for the plaintiff’s exercise of free speech rights in an unpopular cause. It added counts of due process violations of the federal and state constitutions.25 Not long after the firing and the filing, Churchill was back on campus, teaching an unofficial course. “The students organizing Churchill’s teachings [said] the series [was] intended for those who ‘missed out’ on his years as an American Indian studies professor and head of the ethnic studies department

The Enemy Within? Al-Qaeda’s Academic Sympathizers

at [the University of Colorado].” The university’s administrators “distanced themselves” from the lecture series.26 That same month—September—the university moved for dismissal of Churchill’s suit. Attorneys for the university argued that the regents enjoyed legal immunity and that “school official have the right to investigate whether faculty fulfill their duties.”27 A month later, with some thirty to fifty students attending Churchill’s unofficial class, an altercation ensued between student-organizers of the course and members of the press attempting to cover the class. The upshot was the arrest of one of the students.28 In January 2008, Churchill was back in the academic press, this time when the Modern Language Association’s annual convention, held in Chicago, voted a resolution condemning the University of Colorado for its investigation of the maverick professor’s scholarship.29 In mid-2008, the university’s motion was denied. The case is scheduled for trial in early 2009.30 SAMI AL-ARIAN This matter is before the court on the Motion of The Tribune Company to Intervene and Petition for Access. The Tribune Company, publisher of the Tampa Tribune (hereinafter, “Tribune”), is seeking to obtain from the above files, a copy of the sealed search warrants, the probable cause affidavits, and the court’s orders sealing these documents. The Government has not filed a response in opposition, however, the United States Attorney’s Office orally presented its objections at the January 5, 1996[,] hearing on this matter. Dr. Al-Arian’s counsel appeared and objected on his behalf.31

This is an excerpt from the first reported opinion in which the name of Dr. Sami Al-Arian, a professor in the computer sciences department of the University of South Florida, appears. The case involved a search by federal agents of his home and office. Thus began the courtroom trials and tribulations of the man who is arguably the second most controversial post-9/11 academic (after Ward Churchill). These trials and tribulations continue down to the present day. Al-Arian was born in Kuwait in 1958.32 He relocated with his family to Egypt in 1966 and at the age of seventeen came to the United States to commence his college education in 1975. A 1978 degree in electrical engineering was followed by an M.A. and Ph.D. in computer engineering. He was hired, a newly minted Ph.D., by the University of South Florida in 1986. Meanwhile, during the 1980s, Al-Arian became one of the most active lecturers in North America concerning the Palestinian cause, the Arab-Israeli conflict, and more generally, Islam’s relationship to the West. He co-founded an organization known as the Islamic Committee for Palestine,33 and another styled the

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World and Islam Studies Enterprise (WISE).34 A third organization he is credited with helping to birth was the Islamic Association for Palestine, better known by its subsidiary Holy Land Foundation for Relief and Development, which grew into the largest Islamic charitable organization in the United States.35 Al-Arian was also involved in local community organizations, such as Tampa’s Islamic Community Center, the Florida Islamic Academy,36 and as an imam in his local mosque. Until 9/11, Al-Arian retained an air of respectability. In fact, he enjoyed a certain cache in the lower tiers of national politics. For example, in March 2000 he met George W. and Laura Bush, who posed for a photo with the Al-Arian family.37 He also reportedly lobbied Congress on civil liberties issues, donated funds to congressional campaigns, and was one of about 150 prominent Muslim Americans to attend a White House briefing conducted by Karl Rove in June 2001.38 But in the years leading up to 9/11, a Mr. Hyde had begun to emerge alongside this Dr. Jekyll persona. In the mid-1990s, Al-Arian dodged a very large bullet: “The FBI, in affidavits, accused World and Islam Studies Enterprises of raising money for terrorist organizations and shut it down in 1995. Mr. Al-Arian was placed on paid leave from 1996 to 1998 while the agency investigated whether he was connected to terrorist organizations in the Middle East. South Florida’s own investigation turned up no evidence of wrongdoing.”39 Like Ward Churchill’s “chickens” essay, Al-Arian’s brush with fire during the mid-1990s remained low profile, as his ability to engage in legitimate national-political activities attests, until in the wake of the 9/11 attacks he accepted an invitation to appear on the Fox News program The O’Reilly Factor in October 2001. The major topic of Al-Arian’s television appearance was the World and Islam Studies Enterprise, which by then had been defunct for some six years. “During a heated discussion with the show’s host, Bill O’Reilly, Mr. AlArian said he was ‘shocked’ that two former colleagues from WISE were apparently involved in terrorist activities.”40 Yet again the University of South Florida, which was identified as Al-Arian’s employer during the volatile interview, placed the controversial professor on a paid leave of absence. From that interview onward, the vise began to close on Sami Al-Arian. As 2002 marched onward, like the American army in Afghanistan, the University of South Florida board of trustees proceeded cautiously toward terminating the controversial Muslim faculty member. In early September the board sought a declaratory judgment in a Florida state court that its planned firing of Al-Arian would not violate his constitutional rights.41 While the case was pending, Al-Arian was indicted. In announcing the indictment of Mr. Al-Arian and seven other defendants on racketeering charges, Attorney General John Ashcroft called the organization—the Palestinian Islamic Jihad—“one of the most violent terrorist organizations in the world.”

The Enemy Within? Al-Qaeda’s Academic Sympathizers The [fifty]-count indictment charges that Mr. Al-Arian is the head of the group in this country and that, for years, he directed many of the financial transactions that supported terrorist activities around the world.42

With that government action, the university felt free to lower its own boom on Al-Arian. President Judy L. Genshaft stated, “We have determined that [the university] must sever all ties to Sami Al-Arian once and for all. His use of this educational institution for improper, non-educational purposes will not be tolerated. No longer will he be able to hide behind the shield of academic freedom.”43 Another three years of legal maneuvers and media finger-pointing elapsed before Al-Arian finally came to trial in June 2005. He came to trial with three codefendants in the U.S. District Court for the Middle District of Florida, which like the university calls Tampa its home. The trial was a courtroom soap opera rivaling in its length some of the more notorious trials of recent years, such as the O. J. Simpson murder case. It extended across six months, featured some eighty witnesses and four hundred transcripts of intercepted telephone conversations and faxes, and ended with a whimper rather than a bang as the disgraced college professor’s defense team declined to put on a counter-presentation. This proved a wise tactic. Following thirteen days of deliberations, the jury acquitted Al-Arian on eight of seventeen counts and deadlocked on all of the other nine. None of the defendants was convicted of anything.44 Of course, the prohibition of double jeopardy prevented the government from further pursuing Al-Arian and his codefendants with regard to the acquittals. But the nine deadlocked accusations remained a sword over AlArian’s head. Consequently, on March 2, 2006, he entered a plea bargain with Uncle Sam in which he pleaded guilty to one conspiracy count: “to make or receive contributions of funds, goods or services to or for the benefit of the Palestinian Islamic Jihad, a Specially Designated Terrorist [sic], in violation of U.S.C. 371.” At the plea agreement hearing he told the federal magistrate that he had raised money for the Islamic Jihad and conspired to conceal the identity of his contacts. The government reciprocated, agreeing that Al-Arian’s activities were all nonviolent.45 The federal judge sentenced him to fifty-seven months in prison and deportation. With credit for time served, Al-Arian faced a nineteen-month prison term. Judge James Moody, in passing the sentence, said, “You lifted not one finger. To the contrary, you laughed when you heard of the bombings. You are a master manipulator. The evidence is clear in this case. You were the leader of the [Palestinian Islamic Jihad].”46 Al-Arian’s story hardly ended with his incarceration. Less than a month after Al-Arian was sentenced, in May 2006, the U.S. District Court for the Eastern District of Virginia issued to Al-Arian a grand jury subpoena ad testificandum. The subpoena was served on Al-Arian in early October 2006,

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and he filed a motion to quash the subpoena in the Virginia district court. AlArian argued that his plea agreement in the Florida district court prevented the government from forcing him to testify before the grand jury in Virginia. The government responded that the Florida district court, not the Virginia district court, was the proper court to adjudicate Al-Arian’s motion and suggested that the Virginia district court direct Al-Arian to file his motion in the Florida district court. The Virginia district court agreed and granted Al-Arian leave to file a motion to enforce the plea agreement in the Florida district court on or before October 26, 2006. Al-Arian filed his motion in the Florida district court and argued that he and the government agreed that he would not be required to cooperate with the government in any manner. That agreement, however, is not documented in the plea agreement; Al-Arian asserted that the government purposefully omitted the standard cooperation provisions from the plea agreement because the government acquiesced to his refusal to cooperate. According to Al-Arian, the absence of a cooperation provision in the plea agreement demonstrated that the government agreed not to seek further testimony from him. Al-Arian contended that, in light of this agreement, his constitutional due process rights would be violated if he were compelled to testify before the grand jury in Virginia. Al-Arian requested that the Florida district court enforce the plea agreement and order specific performance of the non-cooperation aspect of that agreement, which would bar the government from compelling his testimony. The government responded that the Florida district court lacked jurisdiction to consider the motion and that the plea agreement did not immunize Al-Arian from the grand jury subpoena. The Florida district court subsequently conducted a hearing on AlArian’s motion. The district judge found that he had jurisdiction over the motion because Al-Arian sought “protection from the United States government” and that it did not matter in which judicial district the dispute over the grand jury subpoena took place. In a subsequent written order, the court held that Al-Arian’s plea agreement was not ambiguous and did not prevent the government from issuing a subpoena compelling him to testify. Further, the court found that cooperation is not the equivalent of compelled testimony, so that even if the plea agreement provided that Al-Arian would not have to cooperate, that would not necessarily have meant that he could not be compelled to testify pursuant to a subpoena. Al-Arian appealed the Florida district court’s order to the U.S. Court of Appeals for the Eleventh Circuit. Subsequently, the Virginia district court found that Al-Arian had no legal basis on which to refuse to comply with the subpoena, granted the government’s motion to hold Al-Arian in civil contempt, denied Al-Arian’s motion to stay the contempt proceedings during the pendency of his appeal, and ordered Al-Arian’s criminal sentence to be tolled until he testified before the grand jury. Al-Arian appealed his contempt citation to the U.S. Court of Appeals for the Fourth Circuit, which

The Enemy Within? Al-Qaeda’s Academic Sympathizers

affirmed the Virginia district court’s order. In May 2007, Al-Arian filed an unopposed motion for expedited consideration and resolution of his appeal with Eleventh Circuit. Oral argument was held in the case, rather ironically, on September 11, 2007. On December 14, 2007, the Virginia district court vacated its contempt order. The Eleventh Circuit issued its ruling on January 25, 2008:

Al-Arian argues that, in exchange for his guilty plea, the government agreed never to seek his cooperation in any future matter, and that the government breached this agreement by subpoenaing him to testify before a grand jury in the Eastern District of Virginia. Whether the government has breached a plea agreement is a question of law that we review de novo. However, the district court’s factual findings regarding the scope of the agreement will be set aside only if they are clearly erroneous. “The court must decide whether the government’s actions are inconsistent with what the defendant reasonably understood when he entered his guilty plea.” The court must use objective standards to resolve a dispute over the meaning of terms in a plea agreement. Parol evidence may be considered only where the language of the agreement is ambiguous or government overreaching is alleged. . . . Al-Arian’s plea agreement contains no mention of whether he could be compelled to testify before a grand jury in the future. It also contains an integration clause, providing that the plea agreement reflects all of the promises and agreements between Al-Arian and the government. Notwithstanding the integration clause, Al-Arian argues that the plea agreement’s lack of any provision related to future testimony is actually affirmative evidence that the government agreed, as part of the plea agreement, not to seek future testimony from him. According to Al-Arian, the government agreed to omit the “standard cooperation provision” from the plea agreement because AlArian conditioned his guilty plea on his refusal to cooperate. Thus, Al-Arian contends that removing that language from the plea agreement achieved the same result as including a provision immunizing him from having to give any future testimony. We disagree. The exclusion of a standard plea agreement provision requiring a defendant to cooperate with the government, whether voluntarily or under subpoena, does not establish that the government immunized Al-Arian from future grand jury subpoenas. This contention is especially dubious where, as here, the plea agreement contains an integration clause stating that there are no other promises, agreements, or representations except those set forth in the agreement, and Al-Arian denied at his plea hearing that he pled guilty in reliance on any promises or inducements except for those found in the agreement. In addition, the

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Al-Qaeda Goes to College United States Attorney’s Office for the Eastern District of Virginia only agreed to be bound by the plea agreement such that it would not prosecute Al-Arian for crimes known to that office at the time of the agreement; that office did not agree to immunize Al-Arian from any future grand jury subpoenas. Given these aspects of the plea agreement and plea hearing, we cannot conclude that Al-Arian reasonably believed that he would forever be immune from all grand jury subpoenas originating from any federal prosecutor’s office.47

Meanwhile, in January 2007, Al-Arian commenced a hunger strike, which ultimately spanned some sixty days and cost him 53 of his 202 pounds.48 Al-Arian eventually provided the government with two lengthy affidavits concerning his knowledge of the International Institute for Islamic Thought (IIIT), the target of the grand jury probe. His attorneys then moved to have him released on bail.49 On July 10, 2008, Al-Arian, whose litigation over testifying in the IIIT case had cost him something on the order of an extra year in jail, was released on bail—but with the government threatening to have the immigration authorities detain him yet again, this time pending deportation.50 CHURCHILL AND AL-ARIAN: EXCEPTIONS THAT PROVE THE RULE? Lest these two notorious cases lead conspiracy theorists among my readers to conclude that academics have, or might, come in for a new, McCarthy-like cycle of persecution, let me conclude this chapter with the public comments of Robert O’Neil, a professor of law and former president of the University of Virginia (where he directs the Thomas Jefferson Center for Protection of Free Expression). This excerpt is from his June 12, 2004, speech to the American Association of University Professors; though given some five years ago, its conclusions remain valid today:

The weeks that followed the attack on the World Trade Center and the Pentagon could well have brought out the worst in university administrators, governing boards, alumni, and legislatures; many of us feared that’s just what would happen, though mercifully it did not. On the afternoon of September 11, University of New Mexico history professor Richard Berthold joked to his first-year survey class that anyone who can blow up the Pentagon gets my vote. Despite strong pressure from some legislators and irate citizens to dismiss Berthold on the spot, the university suspended him

The Enemy Within? Al-Qaeda’s Academic Sympathizers with pay and began a careful but quiet investigation. The outcome, several months later, was an official reprimand. He was also removed from teaching first-year courses, a step that some might not view as a sanction. A week after the attacks, Orange Coast Community College professor Kenneth Hearlson was placed on leave for comments made during a September 18 introductory political science class at the California institution. Several Muslim students claimed that Hearlson had pointed at them, accusing them of being Nazis and terrorists, because they drove two planes into the World Trade Center. A careful internal inquiry concluded that Hearlson had indeed been less than fully sensitive to his Muslim students, though the statements quoted by his critics had not been uttered. He was reinstated for the spring semester, with a letter of reprimand in his file the only formal sanction. Several weeks after September 11, a teach-in occurred at the City College of New York. Several faculty members sharply criticized U.S. foreign policy, specifically blaming American colonialism for the attacks. Response in and outside the [City University of New York (CUNY)] system was immediate and intense. The chancellor took the faculty critics to task, publicly faulting those who had made lame excuses for the terrorists. One trustee labeled the speakers conduct seditious, and another declared that the board should censure the aberrant professors. Shortly before the board meeting at which such action might have occurred, CUNY’s vice chair, Benno Schmidt, educated his colleagues on some basic principles of free speech and academic freedom drawn from his strong First Amendment academic background and his years as Yale University’s president. The freedom of thought to challenge and to speak one’s mind, Schmidt reminded the other trustees, is the matrix, the indispensable condition of any university worthy of the name. There seems to me little doubt where Schmidt, who now happily chairs the CUNY board, got those principles, even though no [American Association of University Professors (AAUP)] citation accompanied his declaration. Suffice it to say the prospect of sanctions quickly vanished. Strikingly similar events were to take place at Columbia University a year and a half later, with an even more reassuring outcome. Nicholas De Genova, an assistant professor of anthropology and Latino studies, took part in a teach-in at the height of the war in Iraq. Among several provocative comments, De Genova said he wished for a million Mogadishus, recalling the tragic ambush of U.S. troops in Somalia, graphically portrayed in the film Black Hawk Down. This challenge was not the professor’s first; the previous spring, he had expressed deep hostility toward Israel at a campus rally.

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Al-Qaeda Goes to College Although word of De Genova’s comments did not become public for several days, they evoked indignation the moment they reached the media. More than a hundred members of the U.S. House of Representatives called for his resignation. The leader of the petition drive, Representative J. D. Hayworth, insisted the issue was not whether De Genova has the right to make idiotic comments . . . but whether he has the right to a teaching job at Columbia University after making such comments. That issue soon came before another highly respected First Amendment expert, Columbia’s new president, Lee Bollinger. He declared that he was personally shocked by De Genova’s remarks, noting that this one has crossed the line, and “I really feel the need to say something.” Later that spring, Bollinger declared that, however reprehensible, such an outburst did not forfeit a faculty members position, and that under the principle of academic freedom, it would be inappropriate to take disciplinary action. While tempers were cooling slightly on Morningside Heights, the De Genova incident became fodder for Fox News’s The O’Reilly Factor. Lee Bollinger was invited to appear and defend his stance, but he understandably declined. I agreed to appear in his stead and (as former chair of the AAUP’s Committee A on Academic Freedom and Tenure) to explain the role of academic freedom. After a few opening parries, and a repeated charge that Columbia’s president was hiding under his desk, O’Reilly concluded with this quite extraordinary statement: “I’ll tell you what I would do if I were Bollinger. . . . I wouldn’t fire this guy; I wouldn’t fire this De Genova. Okay? Because I agree with you. You’ve got to tolerate this kind of speech.” O’Reilly offered, instead, his preferred solution: “I’d shun him. I wouldn’t invite him to any faculty things.” After a closing word of appreciation from the normally contentious host—“Thank you very much for your point of view, very provocative”—we went to a commercial break. I wish I could report that O’Reilly confessed off the air to having perused the AAUP’s policies. That I cannot do, though for some reason, he managed to get it right. Imagine, if you will, the likelihood that columnists Walter Winchell or Westbrook Pegler would have made such a statement half a century ago. The fact that this exchange took place on March 31, 2003, during the tensest period of combat in Iraq, gives greater force to O’Reilly’s apparently extemporaneous, though widely noted, concession. It seems inconceivable that, a half century earlier, Winchell or Pegler could have made a similarly tolerant statement about a highly visible academic target of Senator McCarthy’s scrutiny. For this reason more than any other recent evidence,

The Enemy Within? Al-Qaeda’s Academic Sympathizers the Levin view of the current condition of academic freedom may be closer to the mark. My optimism was tested, I must confess, by two events that occurred in early February of this year. A federal grand jury in Des Moines issued subpoenas to Drake University, demanding detailed information about an antiwar conference held on campus in late 2003, and about the event’s sponsor, the local student chapter of the National Lawyers Guild. Included among the records subpoenaed were lists of all those attending the conference and reports that the student group had filed with the university during the past several years. The apparent basis for such requests was the belief that the conference had spawned a physical protest at a nearby military base, which had piqued the grand jury’s interest. News of the subpoenas brought immediate expressions of concern from civil libertarians and academic groups. Our AAUP Special Committee on Academic Freedom and National Security in a Time of Crisis was one of the first to protest, acting, I may say, with unaccustomed alacrity. We were joined by others. Some critics noted that the nation had not seen such intrusive inquiries for nearly a half century, warning they could presage a return to McCarthyism. Drake’s president took a firm stance in opposition, while the Lawyers Guild filed a motion to quash the subpoenas. Within a few days, an obviously embarrassed U.S. [a]ttorney withdrew the demands. His initial explanation that his office was concerned about the catalyst for a physical trespass at the military base and did not prosecute persons peacefully and lawfully engaged in rallies which are conducted under the protection of the First Amendment satisfied no one. Yet the very fact that a federal prosecutor would feel compelled to offer such a disclaimer suggests the degree to which the landscape has indeed changed during the past half century. About the same time, army intelligence agents aggressively questioned students and staff members at the University of Texas at Austin about a conference on Islam held there. Although no subpoenas were issued, concerns arose paralleling those in Iowa. After much embarrassing publicity, the army officially confessed error, acknowledging in late March that the agents had exceeded their authority in conducting such an inquiry. Lest I be thought naive, uninformed, or both, I should temper my optimism by noting that there have been and remain many causes for concern. Our special committees report addresses such concerns, and the AAUP continues to focus attention on them. Whether it is the still-unresolved dismissal of Professor Sami Al-Arian at the University of South Florida; the

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Al-Qaeda Goes to College U.S. Treasury Department’s bizarre application of a trading with the enemy embargo to the editing of scientific journals; the dramatic decline recently reported in the number of foreign graduate students applying to our most prestigious programs, deterred by inexplicable visa delays; the intrusive limits on research with biohazardous materials; or the ominous politicization of academic science, these and other recent developments suggest that all is not well. Yet even so mixed a picture seems to me far better than what, on the morning of September 12, 2001, I would have feared might emerge from the inevitable pressures following the terrorist attacks. That there has been any good news seems to me reassuring. And the fact that academic freedom has remained as resilient at its core as it has suggests that things could have been much worse.51

I am inclined to strongly agree that the powers that be, both on and outside of, our campuses have by and large exercised remarkable restraint and caution in the face of the often-horrific events of the first eight years of the new century. Far from ushering in an era of persecution of academic dissenters, the Churchill and Al-Arian cases seem to be the glaring exceptions that prove the much more moderate rule. Relating this conclusion to the overall thesis of this book, let me add that terrorism’s presence—physically and intellectually—on our campuses has driven a maturation of our industry’s approach to dissent in marked contrast to both the McCarthy era and the 1960s’ antiwar movement. CREEPING SHARIA? In a handful of instances, at least, our institutions have gone perhaps a bit too far in adapting to the demands of diverse campuses, where proMuslim views and values must be accommodated. Some have called this arguably excessive tolerance “creeping Sharia.” “Sharia is the body of Islamic religious law. The term means ‘way’ or ‘path to the water source’; it is the legal framework within which the public and private aspects of life are regulated for those living in a legal system based on Islamic principles of jurisprudence and for Muslims living outside the domain. Sharia deals with many aspects of day-to-day life, including politics, economics, banking, business, contracts, family, sexuality, hygiene, and social issues.”52 Those who criticize higher education for indulging in “creeping Sharia” point to several noteworthy examples of where aspects of this body of religious law have been accommodated in very visible ways.

The Enemy Within? Al-Qaeda’s Academic Sympathizers

Beginning in February 2008, Harvard University’s Quadrangle Recreational Athletic Center began setting aside from 8–10 a.m. Tuesdays and Thursdays and 3–5 p.m. on Mondays for women only. The reason? To accommodate Muslim women, who typically cover their heads and most of their bodies, but who wanted to dress more appropriately for their workouts.53 Not surprisingly, views varied in response to news of Harvard’s trial policy. “It’s about expanding the range of choices. Women, for all kinds of reasons, don’t want to exercise in front of men. It’s a minority of women, but there are. This modesty business sometimes comes from religion, sometimes from culture. They just don’t want to be ogled by men when they’re working out,” Hussein Ibish, executive director of the Foundation for Arab-American Leadership told the Today Show’s Matt Lauer.54 Michael Smerconish, author of Muzzled: From T-Ball to Terrorism— True Stories that Should Be Fiction, retorted, “Political correctness has run amok again at Harvard. Six individuals out of [six thousand students] complain,” Smerconish told Lauer. “Those six had access [to the campus gyms] and Harvard’s response is to institute a discriminatory practice where now half are closed out of the gym.”55 A few months earlier, the University of Michigan at Dearborn touched off a small firestorm of protest, when it installed footbaths in some washrooms to accommodate Muslim students wishing to perform ritualistic ablutions prefatory to daily prayer.56 Prior to the project’s completion, for example, one critique complained, “The University of Michigan–Dearborn plans to spend $25,000 for foot-washing stations, making it easier for Muslim students to practice their religion but sparking questions about the separation of church and state.” The reason . . . “to accommodate Muslim students, who must ritually wash their bodies—including the feet—up to five times each day before prayers.” Groused this commentator (one of many who took to the Blogosphere to protest this use of taxpayer’s money), “I have been in airport bathrooms when someone will come up, paying no attention to right or left, and start performing his wudu, while water flies all over the place as that person places his feet, one after the other, in the sink and washes them. While these—to many—nauseating public ablutions take place, most people hasten away without going near even the empty sinks.” Obviously a passionate partisan on this matter, he went on, “There is no god-given right to come to other countries and inflict one’s behavior, in fulfilling some kind of faith-based mandate, in public places. . . . If Muslim students wish to have foot-washing sinks available, then they can certainly pay for them. After all, there is hardly a mosque or a madrasa in this country that does not receive, when it needs it, all kinds of financial support from those who, across the seas, batten on the unmerited oil trillions, and by this point have used, collectively, more than 100 billion of it (the estimate

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for Saudi Arabia alone) to pay for mosques, madrasas, armies of Western hirelings, and propaganda of every sort.”57 As these passionate, if not to say vitriolic, comments suggest, strong feelings abound on both sides of the issue of Islamic fundamentalism. The Churchills and Al Arians of higher education seem to side with those Islamic hardliners, who are prepared to use violence to alter America’s behavior in the Middle East. Meanwhile some on the opposite side of the debate would deny even a modest $25,000 expenditure in a multi-million-dollar universityfacilities budget to accommodate an important Islamic custom. Fortunately, as Professor O’Neil points out in his remarks, reproduced earlier, higher education as a whole has exercised a remarkably balanced approach and commendable respect for due process of law in dealing with these difficult issues.

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Domestic Terrorists: The Mentally Ill The parallel between the terrorist attacks of 9/11 and the massacre at Virginia Tech in April 2007 is striking and has been explicitly noted by numerous commentators. To wit: Violence on college and university campuses has been a serious concern of administrators for some time, and particularly in light of recent events at Virginia Tech . . . , it is considered one of the leading issues facing institutions of higher education. While incidents of campus violence, specifically homicides, occur infrequently, the impact they have on campus communities when they do occur can be quite profound. During the past few decades, there have been a number of high-profile violent incidents in middle, secondary, and post-secondary schools. In many ways, however, the recent Virginia Tech tragedy could be considered the “9/11” of higher education. Much like the tragic terrorist attacks of September 11, 2001, the April 2007 events at Virginia Tech opened the eyes of many and motivated higher education like no other event has in recent memory. Since that dreadful day, campus administrators and others across the country have increasingly focused on safety issues generally and, more specifically, on the management of disruptive students who may also have serious mental health concerns.1

Thus, it seems highly appropriate to treat this issue as part and parcel of the impact of terrorist activities and responses to them. To begin, then, let’s review a brief history of the most notorious of this form of campus terrorism

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and higher education’s responses, beginning with the former mother of all campus massacres. THE TEXAS TOWER MASSACRE (1966) On March 29, 1966, Charles Whitman—late of the U.S. Marines but by then a student at the University of Texas at Austin—was referred to Dr. M. D. Heatly on the university’s health center staff. Dr. Heatly opened his report on his one and only session with the soon-to-be mass murderer, “This massive, muscular youth seemed to be oozing with hostility.” Whitman admitted “that he had on two occasions assaulted his wife physically.” He told Heatly that in the marines he’d been court-martialed for fighting. Most remarkably, Heatly recorded: “Repeated inquiries attempting to analyze his exact experiences were not too successful with the exception of his vivid reference to ‘thinking about going up on the tower with a deer rifle and start shooting people.’” The good doctor’s solution? “No medication was given to this youth at this time and he was told to make an appointment for the same day next week, and should he feel that he needs to talk to this therapist he could call me at any time during the interval.”2 Whitman never came back, no one followed up, and on August 1, 1966, he took a rifle to the top of the landmark university tower and killed fourteen people. Counting the killing of his mother and wife earlier in the day, Whitman’s tally was sixteen dead and thirty-two wounded.3 The massacre was a wake-up call. Within days of the August 1 shootings, the Hogg Foundation for Mental Health, founded decades earlier on the campus, ramped up efforts to improve availability of services for psychologically troubled members of the campus community. Student-counseling services were expanded, including services aimed specifically at patients in crisis situations. Today, every campus has its counseling center and its policies on threats of violence and suicide. Yet costly, high-profile lawsuits involving students’ violence toward themselves and others abound. Universities still struggle with whether to treat or expel such students. And, as the Virginia Tech tragedy demonstrates, identification and prevention remain elusive goals. Policing of many campuses also was vastly improved after Whitman’s massacre. According to the author Gary Lavergne, who wrote a book about the tower shootings, “The university [in 1966] had no real police department—only a few unarmed men who spent most of their time issuing parking permits.”4 Today, the University of Texas System Police Web site states, “Our official creation as a police agency occurred in 1967 and was largely the result of a sniping incident on August 1, 1966[,] on the UT-Austin campus. . . . During the 1967 session of the Texas Legislature, members of the House and Senate in a near unanimous action answered a growing need on

Domestic Terrorists: The Mentally Ill

Texas college campuses for adequate police protection.”5 Article 2919(j) of the Texas Civil Code authorizes the Lone Star State’s public colleges and universities to commission their security personnel as peace officers. Countless campuses across the country followed suit, so that, for example, Philadelphia’s Temple University on the city’s dangerous northern side boasts one of Pennsylvania’s largest police forces.6 Meanwhile, most U.S. cities, similarly taking their lead from Austin, have created SWAT teams. Nonetheless, as the Virginia Tech tragedy bitterly attests, campus police and city SWAT teams are no silver bullet when pitted against a determined mass killer. Meanwhile, the University of Texas’s Tower was once again reopened in late 1998, following $500,000 worth of renovations to prevent people from jumping. Tours today are by appointment only.7 PROFILE OF A CAMPUS KILLER So, if better psychological services and campus police will not suffice to make our campuses secure, will profiling of future offenders help close the loopholes? When the police use profiling, it is condemned as racist.8 When the customs service does it, it’s similarly assailed as discriminatory and unconstitutional.9 Still, it’s being done. Travel & Leisure magazine reported in January 2007, “The Transportation Security Administration (TSA) recently began rolling out a new security program, Screening Passengers by Observation Techniques (SPOT), at dozens of airports around the country.”10 Time magazine explained, “TSA employees will be trained to identify suspicious individuals who raise red flags by exhibiting unusual or anxious behavior, which can be as simple as changes in mannerisms, excessive sweating on a cool day, or changes in the pitch of a person’s voice.”11 Although such techniques invariably arouse the American Civil Liberties Union, should colleges and universities consider adopting them? Before you answer no, consider the case of Dawson College. On September 13, 2006, Kimveer Gill parked his car in downtown Montreal, removed a cache of weapons from the trunk, forced a passerby to carry his extra ammunition, and walked the short distance to the college’s campus. At the main building’s back entrance he opened fire on students standing on the steps. His hostage ran off with the extra ammunition as Gill entered the building and walked to the cafeteria, where he immediately shot two students. Ordering the others in the room to lie on the floor, he continued firing randomly until police arrived. Taking two more hostages, he attempted to escape until, shot in the arm, he took his own life. The toll: one student dead and nineteen more wounded.12 Police later found Kimveer Gill’s profile posted on a Web site called VampireFreaks.com.13 In the accompanying photo he wore a black leather

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trench coat and sported a Beretta Cx4 Storm semiautomatic carbine, one of four guns he took to Dawson College. Visit VampireFreaks.com today and you can purchase “cyber-gothic clothing” on a related link called “clothing@F—theMainstream,” and read featured interviews with “Velvet Acid Christ,” “Zombie Girl,” and “Grendel.” Gill’s own VampireFreaks screen name was “fatality666.” His last login was at 10:35 a.m. on the day of the shootings. In the aftermath of the Dawson College shootings, the so-called goth subculture came under sharp attack in the media. Hardly a high school or a college on the North American continent is without its clique of goth enthusiasts in their leather, chains, piercings, tattoos, and bizarre hairstyles. Operators of goth shops and Web sites found themselves defending the lifestyle and adamantly disavowing violence. Some expressed shock at the fifty-five graphically violent pictures posted on Gill’s VampireFreaks profile. Gill also turned out to be a big fan of the video game “Super Columbine Massacre RPG.” Go to the game’s Web site today and you’ll find this statement about the Virginia Tech massacre: This week, the press is awash with stories about the shooting at Virginia Tech—the deadliest in recent history. Will we remember this tragedy in a week? In a month? In the years to follow? I certainly hope so. I hope we can learn from such sobering events as Virginia Tech, as Dawson College, Ehrfurt, Columbine and all the other horrific shootings modern society has endured. So often the potential for another shooting is just around the corner should we forget the lessons history has to offer us. This process of reevaluation, introspection, and a search for understanding is the value I believe my video game offers to those who play it.14

The author, site owner Danny Ledonne, is said to have vomited when he learned that Gill was a fan. Presumably Gill wasn’t participating for “reevaluation, introspection, and a search for understanding.” VampireFreaks and “Super Columbine Massacre” persist on the Web, despite their appeal to the Kimveer Gills out there. No one has definitively proved a clear cause-effect relationship (albeit the Alabama Supreme Court in 2006 reinstated a $600 million lawsuit against the makers of a video game called “Grand Theft Auto,” which the plaintiffs blame for the shooting deaths of two police officers and a dispatcher in 2003).15 As goth enthusiasts and video gamers alike point out, tens of thousands of adherents never commit a violent crime. In the absence of a clear causal connection between violence-glorifying cults and games on one hand and campus shooters on the other, academic freedom argues against profiling goths and gamers as potential threats. And yet as horrific incidents multiply down the decades, administrators might be forgiven for considering closer scrutiny of students who fall into these categories. Indeed, while little

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publicized, standing committees, convened regularly and comprising representatives from all major segments of the university, have quietly come into existence since the Virginia Tech massacre at numerous schools to conduct ad hoc discussions and evaluations of perceived “problem” students. In essence, this amounts to informal, low-profile profiling. Meanwhile, in a case of turnabout being fair play, bloggers are bandying about and debating the notion that Al-Qaeda’s murderous methods actually inspired aspects of the infamous video game “Grand Theft Auto”: Spiegel Online International speculates as to whether some of the attacks in Grand Theft Auto IV were inspired by al-Qaeda tactics: Islamist forums are abuzz with a new theory: The designers of the video game Grand Theft Auto IV, they say, were inspired by killing methods developed by al-Qaeda. But did the idea for the car bombs and suicide attacks in the game really come from Osama bin Laden? For user “Abd al-Wahhab,” it is obvious. It isn’t just military men all over the world who are studying the murderous methods employed by the terror group al-Qaida. Rather, designers, developers and graphic artists in the video game world, he argues, have realized that “al-Qaeda is a killing school.” To support his premise, Abd al-Wahhab posts five YouTube videos. We’ve included one here, depicting a car bomb, at an airport, detonated by cell phone. Hmmmm . . . Catch the rest of the videos with the Spiegel Online story. Spiegel games writer Christian Stocker, however, doesn’t think much ¨ of the theory: To say that al-Qaeda influenced “Grand Theft Auto IV” is just as absurd as claiming that al-Qaeda invented violence. . . . No way. You can carry out a suicide attack in almost every video game that contains bombs and grenades, simply by not running away.16

THE VIRGINIA TECH MASSACRE AND THE HANDLING OF MENTALLY ILL STUDENT-TERRORISTS The panel investigating the Virginia Tech massacre met for the first time on Thursday, May 10, 2007. Present was no less a political light than the Virginia governor Tim Kaine, who commented that “we owe[d] it to the victims” to learn all there was to know about the tragedy. He charged the eight-member commission, chaired by the retired state police superintendent W. Gerald Massengill, to learn all it could about, among other things, the killer’s mental state and mental-health treatment.

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In 1966, as noted previously, the University of Texas at Austin’s resident psychiatrist conducted a session with the tower sniper some four months before the troubled ex-marine climbed to the twenty-eighth-floor observation deck and shot forty-six passersby. The doctor’s notes eerily reported the twenty-five-year-old Whitman’s fantasy of shooting at people from the tower. A decade later, in Tarasoff v. Regents of the University of California,17 the California Supreme Court enunciated a duty-to-warn rule, which has been adopted over the past thirty years by much of the American common law. The decision established an obligation among mental-health professionals to warn the known intended victim of a patient, doctor–patient privilege notwithstanding. In Tarasoff the victim’s parents sought to recover damages against the defendants for the wrongful death of their daughter Tatiana Tarasoff, who was killed by Prosenjit Poddar, a University of California student. The complaint alleged that the Regents of the University of California were engaged in the business of the care, treatment, and supervision of patients suffering from mental disorders, and in providing the service of protecting the public from bodily harm, this by means of its campus police; that on August 20, 1969, Poddar was a voluntary outpatient undergoing psychotherapy at the hospital operated and maintained by the regents; that on that day defendant Lawrence Moore, Ph.D., a clinical psychologist who was providing psychotherapy to Poddar, personally notified the defendants Everett D. Atkinson and Johnny C. Teel, officers of the campus police, that Poddar was capable of doing bodily harm to himself or someone else; that Moore told those officers that at a psychotherapy session on August 18 Poddar had informed Moore that he was going to kill “an unnamed girl, readily identifiable as Tatiana Tarasoff, when she returned home to Berkeley from Brazil”; that on August 20, Moore notified Atkinson and Teel that he would give the campus police a letter of diagnosis on Poddar so that the campus police could pick up Poddar and take him to Herrick Hospital in Berkeley, where “Moore would assign a [seventy-two]-hour Emergency Psychiatric Detention” on Poddar; that same day Moore, by letter, notified defendant William Beall, chief of the campus police, that Poddar had a “paranoid schizophrenic reaction, acute and severe” and was “at this point a danger to the welfare of other people and himself”; that in this letter Moore stated that “at times he appears to be quite rational, at other times he appears quite psychotic”; that defendant Stuart Gold, M.D., who initially examined Poddar at Cowell Memorial Hospital, and defendant James Yandell, M.D., assistant to the director of said department of psychiatry, concurred in the opinion that Poddar should be committed for observation in a mental hospital; that the campus police responded to the letter and took Poddar into custody; that defendants Gary L. Brownrigg, Joseph P. Halleran, and

Domestic Terrorists: The Mentally Ill

Atkinson, officers of the campus police, were satisfied that Poddar was quite rational and had changed his attitude altogether; that the campus police released Poddar when he stated he would try to stay away from Tatiana Tarasoff; that defendant D. Harvey Powelson, M.D., director of the department of psychiatry at Cowell Memorial Hospital, upon learning that his staff had made arrangements for Poddar to be placed in a seventy-two-hour treatment and evaluation facility, requested that Chief Beall of the campus police return Moore’s letter, ordered all copies destroyed, ordered Moore’s therapist’s notes on Poddar to be destroyed, and ordered that no action be taken to place Poddar in a seventy-two-hour treatment and evaluation facility; and that on October 27, as a direct and proximate result18 of the negligence of these various defendants, Poddar, who was deranged and at large, shot and stabbed Tatiana Tarasoff to death.19 On these facts, California’s high court held the following: When a psychotherapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another he incurs an obligation to use reasonable care to protect the intended victim against such danger, that discharge of such duty may require the therapist to take one or more of various steps, depending on the nature of the case, that complaint could be amended to state cause of action against the therapists, to whom patient confided his intentions to kill plaintiffs’ daughter, on theory of failure to warn, that therapists were entitled to statutory immunity from liability for failure to bring about patient’s confinement but that plaintiffs pled no special relationship between the patient and the police defendants which would impose on them any duty to warn the daughter or other appropriate individuals and that the police were also entitled to statutory immunity for failure to confine the patient.

In 1995 the Virginia Supreme Court had occasion to consider the Tarasoff rule. In Nasser v. Parker,20 the commonwealth’s high court stated, “We disagree with the holding of Tarasoff that a doctor-patient relationship or a hospital-patient relationship alone is sufficient, as a matter of law, to establish a ‘special relation’” with the patient sufficient to fix liability upon the doctor who declines to warn. Under this Virginia precedent, the mentalhealth caregiver must “take charge” of the mentally ill individual in order to implicate duty-to-warn liability. In Nasser, the deceased, Angela Nasser Lemon, had been involved in a relationship with George Edwards, but she rejected him and attempted to terminate their relationship. Edwards had a history of committing violent acts against women who rejected him. On December 5, 1990, Edwards held a gun to Lemon’s head and threatened to kill her. She obtained a warrant

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for his arrest, and fearing for her safety, left her Virginia Beach home in an effort to conceal her whereabouts from Edwards. Shortly after the December 5 incident, Edwards consulted Charles E. Parker, a licensed psychiatrist who had been treating Edwards for mental problems over a period of seventeen years. Parker was aware of Edwards’s history of violence toward women who rejected him and was aware that Edwards recently had threatened Lemon. The doctor concluded that Edwards’s mental condition was deteriorating and that Edwards needed prolonged intensive therapy in a mental hospital. On or about December 10, 1990, Edwards was admitted “on a voluntary basis” to Peninsula Psychiatric Hospital in Hampton. Parker visited Edwards in the hospital and observed that the patient had not been placed in a secure section. Learning that Parker knew about Edwards’s actions and his condition and that the doctor had arranged for Edwards to be hospitalized for a prolonged period, Lemon returned to her home. The day after his admission, Edwards left the hospital. Neither Parker nor the hospital notified Lemon of Edwards’s departure. Edwards visited Parker on December 13 or 14, 1990. The doctor prescribed medication for Edwards’s mental illness. On December 17, Edwards shot and killed Lemon in her home and then killed himself. Lemon was survived by an infant son. Lemon’s father, Michael J. Nasser Sr., in his capacity as administrator of Lemon’s estate, brought the action seeking damages for Lemon’s death against three defendants: Parker and the two corporations that operated the hospital, the Hospital Corporation of America and Virginia Psychiatric Company. On these facts, the Virginia Supreme Court concluded, “The boyfriend’s psychiatrist and hospital did not have special relationship with boyfriend to be under duty to control his conduct to prevent harm to another.” However, in thus affirming the dismissal of the lawsuit, the high tribunal held that “to establish the ‘special relation’ required for the duty to control conduct of a third person to prevent him from causing physical harm to another, the plaintiff must allege facts which, if proven, would show that the defendant had taken charge of third person.”21 In the Virginia Tech killer’s case, reports indicated that police first investigated the future mass murderer in November 2005, following up on another student’s harassment complaint. Seung-Hui Cho was directed to the university’s Office of Judicial Affairs. The complainant declined to press charges, saying that Cho’s unwelcome attentions were merely annoying, not truly harassing. A month later another female student filed a complaint against Cho with the Virginia Tech Police. This time, after the campus police interviewed Cho, another student called to claim that Cho appeared to be suicidal. This call resulted in issuance of a detention order. The troubled young man

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was subsequently evaluated at Carilion St. Albans Behavioral Health, an independent mental-health facility. Following this counseling intervention, say police, they received no more student complaints about Cho. Also in the fall of 2005, a Virginia Tech poetry professor had Cho removed from her class. Nikki Giovanni told media she found the young man’s poetry so intimidating and his presence so menacing that, when two students who shared her anxiety stopped attending class, she moved to remove Cho. Describing Cho as “mean,” she told CNN, “I knew when it happened that that’s probably who it was.”22 These facts beg the following questions: In the fall of 2005 should Cho have been removed from more than just Giovanni’s poetry class? Should he have been kept in custody—institutionalized—when he was taken to the mental-health facility? A May 8, 2007, editorial in the Roanoke Times, “No Teeth in Mental Health Laws in Virginia,” contended that Cho’s fall 2005 release from custody was inappropriate because he was diagnosed as “depressed and imminently dangerous.” In eerie emulation of the University of Texas psychiatrist’s suggestion that the tower sniper Whitman make an appointment for the following week, Cho was ordered to pursue outpatient treatment and then released. As with Whitman, Cho’s next appearance on the radar screen was with gun in hand. One ultimate question was whether on these facts Virginia Tech assumed any legal liability vis-a-vis Cho’s victims and their families in terms of a ` wrongful-death action. Though the young man’s meanness and intimidating behavior in Professor Giovanni’s poetry class fit a profile of a potential menace to the campus community, profiling alone cannot form the basis of legal liability for the university (just as it probably cannot alone form the basis for removal of the student). But even under the Virginia Supreme Court’s variant of the Tarasoff rule, Virginia Tech may well be found to have “taken charge” of Cho in 2005. Although he named no specific victims whom Judicial Affairs and campus police could have warned, the commonwealth’s courts might well have proved sympathetic to injured survivors or the parents of the deceased victims, who chose to sue. The commonwealth’s highest court ultimately might have been called upon to determine whether such anticipated wrongful-death actions are capable of prevailing under Virginia common law. However, Virginia Tech and the state wasted little time in settling the case. The settlement was for a modest $11 million, because under Virginia law $100,000 is the maximum that a single litigant can recover against the state in a case of simple negligence.23 And the most Virginia Tech officials could be accused of was simple negligence in this exceptionally difficult case. In April 2008, Governor Kaine signed a number of bills aimed to reform the mental health, law enforcement, and court systems to better cope with the dangerously ill before they morph into terrorists. He also signed

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several pieces of legislation aimed directly at the state’s higher-education system:

r House Bill 1005 requires the board of visitors or other governing board of

r

r r

r

r

any public institution of higher education to establish policies and procedures requiring the notification of a parent of a dependent student when the student receives mental health treatment at the institution’s student health or counseling center. The notification applies when there exists a substantial likelihood that the student will, in the near future, cause serious physical harm to himor herself or others as evidenced by recent behavior or any other relevant information or suffer serious harm due to his or her lack of capacity to protect himself or to provide for his or basic human needs. House Bill 1058 requires the board of visitors or other governing board of any public institution of higher education to establish policies and procedures requiring the release of a student’s educational record if the parent requesting the record claims the student as a dependent. Senate Bill 538 mandates that by January 1, 2009, each public institution of higher education establish a comprehensive, prompt, and reliable first warning and emergency notification system for students, staff, and faculty. Senate Bill 539 requires that the board of visitors or other governing body of every public institution of higher education establish a threat assessment team. The bill also requires the team to adopt a campus-wide committee charged with education and prevention of violence on campus. Senate Bill 636 allows each public and private institution of higher education to request from its students complete student records, including any mentalhealth records held by the originating school. These records shall be kept confidential as required by state and federal law. House Bill 1449 requires the board of visitors or other governing body of each public institution of higher education to develop and keep current a written crisis and emergency management plan.24

THE CHANGING THREAT: FROM POLITICAL TO PSYCHOLOGICAL In the tumultuous 1960s, the most significant threats to campus security came from radical political groups, notably the Students for a Democratic Society (SDS). In 2008, America marked the fortieth anniversary of what was perhaps, overall, the most violent year of a violent decade. Martin Luther King Jr. and Bobby Kennedy were shot and killed. The war in Vietnam escalated to new heights as Lyndon Johnson declined to run again for the

Domestic Terrorists: The Mentally Ill

White House. As his heir apparent, Hubert Humphrey was anointed by the democratic power brokers, such as Mayor Richard J. Daley, in Chicago, and radicalized students clashed violently with police outside the convention hall. The main movement building throughout the 1960s toward that Windy City confrontation, SDS was birthed by a young new leftist named Tom Hayden, who drafted the group’s Port Huron Statement in 1962. In 1968, Hayden participated in yet another dramatic confrontation with the police, this at Columbia University, where he was arrested with seven hundred others when the authorities reclaimed university buildings held for some five days by the student-radicals.25 In effect, 1968 marked a turning point in the new left student movement, which took a sharp turn away from peaceful protests and rallies, such as the “Get Clean for Gene” (shave and get a haircut for Senator Eugene McCarthy) gatherings of the first half of that year, to the violence of the second half of 1968. This shift in emphasis climaxed at Kent State University in Ohio two years later. On May 1, 1970, students demonstrated against President Nixon’s invasion of Cambodia. On May 2, a mob burned the Army ROTC barracks on campus. The following day the Ohio riot act was read and tear gas fired before the students abandoned the campus commons. A day later, the Ohio National Guard fired into the reconstituted campus crowd, killing four and wounding nine more.26 Immediately after the shootings, officials attempted to blame the protesters. On May 15, the Portage County prosecutor displayed a shotgun, a pistol, machetes, cap pistols, slingshots, and BB guns confiscated from dorm rooms. The American Civil Liberties Union labeled the search illegal and its fruits “meager.”27 On June 6, the Ohio legislature enacted a campus riot law, which took effect in the fall.28 The legal tide seemed to turn on June 10, when the parent of a dead student filed suit in federal court, asking for $6 million in damages against the governor and the National Guard commanders for “intentionally and maliciously disregarding” students’ safety. On June 23, a U.S. Department of Justice report concluded that the shootings “were not necessary and not in order.” Wrongful-death suits followed from the other three decedents’ families.29 Meanwhile, the pendulum took another swing, as a special grand jury indicted students and faculty for riot, assault, and incitement. After unsuccessfully fighting the charges all the way to the U.S. Supreme Court, a number of the defendants were eventually fined and imprisoned.30 All four of the wrongful-death actions were dismissed on the ground of Ohio’s sovereign immunity from suit. But in 1974 the U.S. Supreme Court held in Scheuer v. Rhodes that the governor and other individual state actors, including Kent State University’s president, could be sued, as state immunity is “no shield for a state official confronted by the claim that he

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had deprived another of a federal right under color of law.”31 Meanwhile, eight guardsmen were indicted on civil rights charges by a federal grand jury; all were eventually acquitted. In the 1975 case Krause v. Rhodes, a federal jury found the defendants not liable by a 9–3 vote, but the Court of Appeals for the Sixth Circuit ordered a new trial.32 As legal wrangling over campus construction that would obliterate the scene of the shootings dragged on, the parties settled for $675,000—the plaintiffs had sought $46 million—in 1979. That settlement may well be cited as the end of the era of campus terrorism perpetrated by radicalized students and of governmental use of force in reaction. In the 1980s, the dominant student sentiments, reflecting those of the nation’s new president, favored professional education aimed at well-paid careers in the for-profit arena. Political apathy set in and has held firm for the most part down to the present day on most college campuses.33 THE HANDLING OF MENTALLY ILL STUDENT-TERRORISTS, REDUX Today, as the opening pages of this chapter illustrated, campus terrorists are much more likely to be mentally ill students who act alone and on agendas that are highly personal rather than politically inspired. Certainly Cho fit that mold. In the two years following the April 2007 Virginia Tech massacre, university officials have struggled with how to prevent such attacks in the future while complying with the mandates of the law. The threat is one of both qualitative and quantitative magnitude, by which I mean that, on one hand, a single incident of the Virginia Tech variety is devastating and therefore must be deemed to justify the expenditure of significant institutional resources in its own right. On the other, the sheer numbers of mentally disturbed students demand attention in their own right, even if one is prepared to ignore or discount the incident because of its rarity. Some statistics will drive home this latter point: According to the National Institute of Mental Health, over one-fourth of Americans over the age of eighteen, almost 58 million people, suffer from some form of mental disorder. That number includes almost 15 million people suffering from major depressive disorder, 6 million from panic disorder, 2.2 million from obsessive compulsive disorder, 2.4 million from schizophrenia, and 15 million from social phobia. Almost 21 million Americans suffer from some sort of mood disorder, including “major depressive disorder, dysthymic disorder, and bipolar disorder” and approximately 40 million suffer from anxiety disorders. All of these conditions are relevant to students, especially within the context of their transition into college or university life; however, statistics alone do not even scratch the surface of student mental health as a whole.

Domestic Terrorists: The Mentally Ill The 2006 National College Health Assessment—the largest known comprehensive data set on the health of college and university students— reported that at least once within a span of twelve months approximately 65 percent of college and university females and 50 percent of college and university males reported feeling “things were hopeless,” over 80 percent of females and almost 70 percent of males reported feeling “very sad,” and 45 percent of females and 35 percent of males reported feeling “so depressed it was difficult to function.” Even more alarming is the fact that approximately 10 percent of females and 9 percent of males “seriously consider[ed] attempting suicide” at least once within the same twelve-month span.34

While this chapter, in keeping with the theme of this book, is primarily interested in higher education’s ability to prevent acts of campus terrorism by mentally ill actors, and institutional liability when these efforts fail, these issues can only be understood on the context of college or university liability for all manner of student injuries. Much of the underlying law developed in the context of alcohol abuse. For example, in Bland v. Scott, Sean Scott was sixteen years old when on September 16, 2000, he drove from the family home in Shawnee to the Phi Gamma Delta fraternity house in Lawrence, Kansas to visit his nineteenyear-old brother, Mike Scott.35 The Scott brothers went to the Wheel, a local bar, and met Dana and Lawrence Rieke, the Scott brothers’ mother and stepfather, where the Riekes supplied the brothers and other minors with alcoholic beverages. The Scott brothers then walked back to the fraternity house, where fraternity brothers provided Sean with excessive amounts of alcohol, pressuring him to drink and mocking him if he did not. Eventually Sean left the fraternity in his car and ultimately crashed into a vehicle driven by Lisa Bland on K-10 highway. Sean’s blood alcohol level tested at .15, and he was consequently convicted of involuntary manslaughter in Johnson County. As to fraternity and university standards of care, the court concluded: The imposition of a common law duty of care would create a situation rife with uncertainty and difficulty. If the commercial vendor is liable for negligence, does the host at a social gathering owe a duty to prospective victims of guests? The difficulties of recognizing intoxication and predicting conduct of an intoxicated patron without imposing some duty of inquiry are evident. Problems could also arise in the apportionment or sorting out of liability among the owners of various bars visited on “bar hopping” excursions. The correct standard of care to be used also presents a problem, as does the determination of whether all acts of the patron, including intentional torts, should be included within the liability of the tavern owner or operator.36

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The plaintiffs contended that providing liquor or cereal malt beverages to a minor is a crime under various state statutes. Consequently, they contended, the acts by their criminal nature were sufficiently negligent to fix liability on the defendants.. The same argument was broached in Ling, where the court “decline[d] to find negligence per se in this case since to do so would subvert the apparent legislative intention. . . . Clearly, the legislature would have [re-created a civil cause of action in favor of those injured as a result of a violation of the liquor laws] had it intended for there to be a civil cause of action.”37 Additionally, the common law rule stated that any injuries resulting from the actions of intoxicated tortfeasors were the result of the act of drinking, not the act of supplying, and therefore prohibited civil liability for suppliers.38 The plaintiffs also attempted to establish the case based on the fact that fraternity members knowingly served alcoholic beverages to a minor, but “there is nothing in Ling or its progeny to support such a distinction being made.”39 The plaintiffs then raised two constitutional arguments. They first claimed that the “‘Kansas Liquor Control Act is unconstitutional to the extent that it abrogates a common law remedy of persons injured by violations of the act.’ When the legislature statutorily supplants a remedy provided by common law, subsequent restriction or abrogation of that protected remedy must be given adequate substitute, or quid pro quo. Such changes are constitutional if the changes are ‘reasonably necessary in the public interest to promote the general welfare of the people of that state, and the legislature provides an adequate substitute remedy.”40 The plaintiffs next argued that the Kansas Liquor Control Act violated section 18 of the Bill of Rights of the Kansas Constitution, which states, “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” However, the constitutional arguments were without merit, as “Kansas did not recognize a common-law duty owed by suppliers of alcohol to third parties injured by an intoxicated person.” Regarding the Bill of Rights argument, the court stated, “The plaintiffs are not without a remedy under the law to recover for the injuries. They have a cause of action against Sean, the tortfeasor.” Thus, in this example, the plaintiffs’ arguments were rejected. However, the decision was made largely due to the unusual circumstances surrounding the case and the specific law of the state.41 Another example of a university avoiding liability exists in Robertson v. State ex rel. Department of Planning and Control,42 where Louisiana Tech University was found not liable for an intoxicated student, twenty-threeyear-old Trey Robertson, falling off a roof on college grounds. The roof was built in 1984 and stood at about fifty-six feet tall at its apex. Several incidents occurred of students climbing the roof while intoxicated and consequently falling and sustaining various injuries, prompting university officials

Domestic Terrorists: The Mentally Ill

to discuss whether something needed to be done about the roof. However, because all the students injured had been intoxicated, the university decided not to take any action. On April 5, 1991, Trey Robertson climbed the roof after drinking (with a blood alcohol level of .073) and sustained head injuries that caused his death a week later. The plaintiffs argued that the roof posed “an unreasonable risk of harm to others,” and that under Louisiana Civil Code article 2322, “The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice of original construction.” However, this article did not apply to a building, absent poor condition, functioning properly. Thus, the structure was found not to pose an unreasonable risk of harm, as it was in good repair and properly functioned as a roof. The plaintiffs then argued that Louisiana Tech was responsible for dissuading its students from climbing the roof, either by planting shrubbery or building a fence around the roof, because of the three previous incidents that occurred in regard to intoxicated students being injured from climbing the roof. In this case, it was found that Tech’s actions did not constitute negligence, as it was not Tech’s responsibility to protect Robertson from “his deliberate act of recklessness in climbing the roof,” as “any prudent person would recognize the action of climbing the roof both as an unreasonable danger to himself and as an unlawful physical invasion of property. Any damage caused to such an off-limits structure would amount to the intentional tort of trespass.” Furthermore, “the plaintiffs’ argument that the three prior instances gave rise to affirmative duty to act is a miscalculated statistical focus.” This is because the area where the roof was located was passed by thousands of students and campus security officials each day, whose presence acted as an “appropriate deterrent to such a blatant act, tantamount to an act of defacement of the property.” Thus, the prior incidents were not enough to prove negligence. The court found that Tech had no duty to guard against the risk of falling off the roof and the university was found not negligent under the circumstances. In a dissenting opinion, a lone justice stated, “Under the particular circumstances of this case, the risk and the duty are easily associated. The risk was serious, the harm great, the likelihood of recurrence obvious and the cost or sacrifice to avoid further incidents small. There is no policy reason to limit the scope of the protection of the rule of conduct under these specific facts.” The judge believed that Tech had a clear duty to avoid foreseeable injury to its students, and considering the circumstances of the case, the roof posed a foreseeable risk. All the previous injuries occurred around midnight and involved intoxicated students, but no action had been taken to avoid the problem until Tech was ordered by the Office of Risk Management to build a fence surrounding the roof, after several injuries and a death had taken place.

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Finally, let us consider the case of Shin v. Massachusetts Institute of Technology.43 In this case, Elizabeth Shin [a student], began to suffer from psychiatric problems in February 1999. She subsequently overdosed on Tylenol with codeine and was admitted to a hospital for a one-week psychiatric observation, during which doctors discovered that she suffered from mental health problems and had previously engaged in self-injurious behaviors. Shin was later diagnosed with “adjustment disorder” and suffered from “situational issues” due to a recent break-up with a boyfriend combined with mediocre grades. In October 1999, Shin was sent to MIT Mental Health after admitting that she had suicidal thoughts. Shin continued to cut herself and told a teaching assistant that she intended to take a bottle of sleeping pills. She continued treatment until April 10, 2000, when MIT Mental Health received notification that Shin had discussed plans to kill herself. MIT Mental Health decided not to respond to this notification because Shin had recently informed a psychiatrist that she was fine and because there had been overreactions to a suicide threat that she made just two days earlier. Later that night, Shin set fire to her clothes and burned to death. Shin’s parents subsequently filed suit against MIT and various MIT employees. While the trial court dismissed all claims against MIT, it rejected dismissal on specific claims aimed at institution administrators. The court then cited Schieszler’s “imminent probability” standard and used a very similar analysis, but focused on the history between Shin and the institution. As stated by the Shin court, institution administrators “were well aware of Elizabeth’s mental problems at MIT from at least February 1999. . . . Accordingly, there was a ‘special relationship’ . . . imposing a duty . . . to exercise reasonable care to protect Elizabeth from harm.”44

One expert detects in Shin and similar recent cases “a trend toward the use of an ‘imminent probability’ standard with regard to college or university liability for student mental health. However, solely relying on such a standard may discourage colleges and universities from providing adequate mental healthcare for their students.”45 Contrary to this observation, however, the fact is that most higher education institutions are attempting to do more, not less; witness, for example, the widespread establishment of campus threat-assessment teams, as I noted previously.46 Beyond the legal and technical limitations to acting upon a problem-student profile, another major challenge to these efforts is the state of gun-control law today.47 DISTRICT OF COLUMBIA v. HELLER After the U.S. Constitution was completed, some of the founders felt that the document—devised after the predecessor Articles of Confederation failed to provide sufficient central authority to keep the newly liberated colonies

Domestic Terrorists: The Mentally Ill

from one another’s throats—gave the federal government too much power. The upshot of this fear was the Bill of Rights (i.e., the first ten amendments). During the ensuing two hundred years, each of the ten amendments has produced volumes of court decisions and scholarly comments. The Second Amendment is no exception. The Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” What these few words really mean has been the source of considerable controversy, most recently on June 26, 2008, when a majority of U.S. Supreme Court justices declared a District of Columbia gun-control law unconstitutional.48 Justice Antonin Scalia, writing for the majority, stated, “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”49 One of the dissenting justices in this 5–4 decision, Justice John Paul Stevens, retorted that the court’s judgment was “a strained and unpersuasive reading” that overturned long-standing precedent, and that the court had “bestowed a dramatic upheaval in the law.” Stevens added that the Second Amendment was notable for the “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense,” such as is present in the Declaration of Rights in Pennsylvania.50 Observers on both sides of the gun-control debate contend that the decision will stimulate a lot more legislation and litigation. Some prosecutors express concern that wily defense attorneys will find ways to reopen cases in which personal possession of weapons was an important issue. Gun-control advocates predict that the decision will energize gun-rights advocates to challenge more and more federal and state gun-control laws. One police officer commented on National Public Radio that with this decision America has entered the age of Rambo.51 The National Rifle Association argues that “guns don’t kill; people do.” True—but most people who kill, kill with guns. Living on the edge of a city that logs some four hundred homicides a year, mostly deaths by gunshot, I often wish that Philadelphia had the laws in place to somehow get the guns off the streets. But, like every attorney worth his or her salt, I see the other side of the case. In the face of the excesses of Abu Ghraib and Guantanamo, the Supreme ´ Court justices have shown themselves to be on the side of due process of law, handing the Bush administration one defeat after another regarding prisoners’ rights to fair and speedy trials. Meanwhile, airports have become fortresses and boarding a plane can involve stripping oneself of laptop, liquid toiletries, belt, shoes, jacket, metal prostheses, and pocket change. The federal government has begun the building of a billion-dollar fence along our southwestern border to keep out Latin American immigrants (see Chapter 4). And we are embroiled in two wars, one of which undoubtedly was entered

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in the midst of a fog of lies (e.g., that Saddam Hussein had weapons of mass destruction and was in league with Al-Qaeda). Last but not least, Congress appears about to enact legislation giving retroactive immunity to phone companies that cooperated in federal wiretaps since 9/11. All of this suggests that on the scales of justice, civil liberties concerns currently are outweighed by national security considerations, and the Supreme Court may be the individual’s only true champion. In the movie Casablanca, a German officer asks Rick if he can imagine the German army in New York City. Rick replies that there are some New York neighborhoods that are too dangerous for the Nazis to dare invade. In Armageddon: A Novel of Berlin (1963), the novelist Leon Uris made a similar point. He had one of his characters wonder out loud about how long the roundup of Germany’s Jews by the Gestapo would have persisted had every Jewish man met his oppressors at the front door, pistol in hand, and taken at least one down with him. Echoing this point, some commentators on last year’s massacre at Virginia Tech have suggested that students and faculty should be encouraged to arm themselves.52 It is highly unlikely that any university administration will endorse arming either its faculty or its student body. The real issue raised by District of Columbia v. Heller is whether colleges can enforce gun prohibitions in light of the majority’s views on individual rights of self-defense. Actually, this is not terribly problematic for private institutions of higher learning, because the Second Amendment, like the entire Bill of Rights, runs only to state action. But public higher education must be concerned about whether the new decision will affect its campuses. The first question to be asked is whether the Second Amendment reaches state and municipal, as opposed to federal, actions. “The modern Supreme Court has never squarely addressed the question of whether the Second Amendment applies to the States, so that we lack precedent on how the Court might decide the issue in a proper case.”53 The Heller court, predictably, did not address that question; the law at issue was a District of Columbia restriction and thus fell under federal jurisdiction, and therefore directly under the Second Amendment without need for the conduit of Fourteenth Amendment equal protection or due process considerations. Assuming, arguendo, that the Heller rule reaches state and local statutes and ordinances, how might courts construe public university rules and regulations regarding gun prohibitions on campuses? One extremely knowledgeable commentator, anticipating an unfavorable ruling from the high court, offered the following guidance with regard to campus weapons policies:

The definition of the weapons covered. Does the policy deal with weapons besides guns, like knives? What about so-called weapons of self-defense, like Mace or stun guns? If we focus our policies and practices on the specific

Domestic Terrorists: The Mentally Ill circumstances of the tragedies of yesterday—for example, the use of particular types of guns—we will fail to anticipate the potential tragedies of tomorrow. The application to particular locations. Should weapons and ammunition be allowed in dormitories? How will the policy apply to off-campus facilities and locations with connections to the educational environment, like fraternity houses? As a general counsel, I would lie awake at night if I knew that students living in close quarters—and with alcohol and drugs readily available—might have immediate access to firearms and other lethal weapons. Utah, the one state that lets students carry concealed weapons on a campus, also has a rule that permits students to decide whether they want a roommate who carries one. The application to classifications of people. Will the policy apply differently to students, faculty members, administrators, outside contractors, visitors, campus-security officers, and others? The safe storage of weapons and ammunition. How should they be stored in dormitories, if at all? What about in students’ and faculty members’ cars? Weapons components. Does the policy cover materials that can be readily assembled into deadly weapons? Imitation or toy weapons. Does the policy include objects that may not be deadly but could easily be confused with real lethal weapons? What if such weapons are used in campus theatrical productions, for example? What about games that feature the use of toy or imitation weapons— like the popular game “Assassin,” which has been criticized on some campuses? Exceptions for specific purposes. How should the institution handle weapons for research or other educational reasons, religious or ceremonial purposes, or artistic or display purposes? Also, will the policy permit gun clubs or shooting ranges on or near the campus? What about ROTC programs? Those are just some of the questions that colleges should ask. But to reduce the threat of violence, we must focus not only on weapons policies. Many other policies should be considered in an overall strategy of prevention and control, like those on drug and alcohol abuse—often linked to weapons-related incidents—as well as domestic abuse, bullying, harassment, and violence in the workplace. Institutions should also review their policies and practices concerning [the following]: Criminal background checks. Such checks can be expensive if used for large populations and may vary in terms of coverage. Some cover records from only one state, while others are more comprehensive. Nevertheless,

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Al-Qaeda Goes to College background checks can help identify potential sources of weapons-related violence as well as provide other benefits. For example, they can be useful in the hiring of personnel who will have significant responsibility for handling money or making financial decisions. The reporting of possible threats. Institutions may want to ensure that people who become aware of possible threats can make anonymous reports that will be received by law-enforcement authorities. One model is SPEAKUP, a national hotline that allows high school and college students to report anonymously any indications of potential gun violence before they erupt into actual episodes. Timely warnings. The federal Clery Act was designed to warn colleges of known or continuing threats, and thus requires institutions to notify people of certain reported crimes that occur on or near their campuses. While there is considerable debate about the scope and timing of Clery Act notices, the law can be an effective tool to alert people about the use of weapons on or near the campus. In Havlik v. Johnson & Wales University (2007), a federal court upheld the decision by a college to identify a student by name in a crime alert after the student was involved in a fight with another student on a sidewalk near the campus, and a witness alleged that the named student brandished a knife. According to the court, the statute provides “substantial discretion in each campus security office to phrase and disseminate reports in those ways that the particular institution deems best suited to apprise its constituent campus communities of incipient criminal activity.” The arming of campus law-enforcement officers. A national conversation has recently picked up steam regarding the extent to which campus officials—whether law-enforcement officers or others—should be armed. Public institutions in Arizona and California have armed campus police with assault rifles. A recent bill that did not pass in Oklahoma would have permitted veterans, active-duty military, and people with prior law-enforcement experience to carry weapons on campuses. As a lawyer who worries about risk, I would want to ensure that anyone authorized to carry a weapon has sufficient, updated training to handle it in a crisis, and that such weapons are carefully protected so that they will not fall into the hands of other people. Emergency-notification systems. Such systems—text messaging, loudspeakers, and the like—treat the symptoms rather than the causes of weapons violence. But they could be a key component of a comprehensive approach to managing such situations. To be most effective, such systems should include not only students but also faculty members, administrators, and other people on the campus.

Domestic Terrorists: The Mentally Ill Securing campus boundaries and buildings. Evacuation and lockdown policies and procedures must be site-specific and take into account both internal and external threats. Safety considerations should also become a greater focus in the design and planning of campus buildings. Publication and dissemination of safety policies and procedures. Parents and students increasingly ask questions about the safety of our campuses. While institutions should highlight their safety policies and procedures in orientation sessions for students, they must repeat those messages often to be effective. Furthermore, given the understandable focus on student safety, colleges often neglect to familiarize faculty and staff members with such policies and procedures.54

At the end of the day, at least three things appear crystal clear: 1. Student-terrorists, principally of the mentally ill ilk, pose a more serious threat to campus safety and security than does Al-Qaeda. 2. In the aftermath of the Virginia Tech tragedy, virtually every college and university in America beefed up its policies and procedures, and its resources, for preventing and responding to the mentally ill people who come as staff and students to our campuses. 3. The Achilles’ heel of this industry-wide effort to guard against another massacre is the political, legal, and technical limitations inherent in profiling problem-students for purposes of prevention, and the limitations placed upon state-affiliated institutions (if not private colleges and universities) by the Second Amendment and the Supreme Court’s interpretation of same, which together continue to make it difficult, if not impossible, to keep deadly firearms out of the hands of those who are determined to obtain them, even if the would-be purchaser is mentally ill and potentially dangerous. Adding to higher education’s woes in this regard is a national trend toward enactment of so-called “concealed weapons” statutes at the state level; such laws expressly establish the properly trained and licensed citizen to carry a firearm without fear of repercussions.55

Despite these challenges, higher education, taken as a whole, is better prepared to meet third-party threats in the wake of the VTU tragedy. Campus police are not the only personnel who are better trained to deal with threats posed by mentally ill employees and students. Student-life and academic personnel also are sensitized to detect and report on erratic behavior that may be indicative of potentially violent acts. Many universities

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have established interdepartmental committees, which are charged with formally sharing information about troubled students, so that the insularity, which contributed to VTU’s lack of preparedness, is broken down. Employees who regularly deal with students—not only student and residence life personnel and campus police, but also academic administrators and faculty members—are becoming better-educated on their ability, within the broad limits of the federal Family Educational Rights and Privacy Act (FERPA), to share information among themselves about troubled students. Such university personnel also are becoming better trained in dealing with a threatened or actual violent incident should one arise. In short, the higher education industry has come of age, where campus safety and security are concerned with threats posed by the mentally ill.

3

Domestic Terrorists: The Animal Advocates On June 12, 2008, the New Jersey Office of Homeland Security and Preparedness issued the following “intelligence assessment”1 :

Escalation of West Coast Animal Rights Extremist Activity and Implications for New Jersey Key Findings

r There has been an increase in the intensity and overall number of violent criminal acts perpetrated by animal rights extremist groups against university researchers on the West Coast. r Animal rights extremist groups represent the most active, single-issue domestic terrorism group in New Jersey. r Given the apparent connectivity between animal rights groups and the extent of their travel between coasts, the use of violence and intimidation against university researchers on the West Coast is likely to spread to New Jersey.

Threat Overview Over the past ten months, there has been an increase in the number of violent criminal incidents perpetrated by animal rights extremists against

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Al-Qaeda Goes to College university researchers on the West Coast. The majority of the violent incidents have occurred in California, with a limited number also occurring in Oregon. In roughly 80 percent of the incidents the targets were university researchers involved in primate research. Historically, animal rights extremist groups in the United States have carried out direct actions against university laboratories and not individual researchers. Such actions have included criminal trespassing, vandalism and the release of laboratory animals. However, since approximately June 2007, extremists have begun escalating the violence and using more intimidating tactics against individual university researchers, including [the following]: death threats, bomb threats, the mailing of suspicious packages and letters stuffed with razor blades, attempted home invasions, attempted arson, intentional flooding of a home, and the placement of incendiary devices under cars and at residences. These incidents have been carried out by ALF (Animal Liberation Front), Animal Liberation Brigade, UCLA Primate Freedom Project, SHAC (Stop Huntingdon Animal Cruelty) and their affiliates. This shift in tactics coincides with an overall increase in threats and acts of violence by the animal rights extremist movement against a wide variety of targets, including biotech, life-sciences, pharmaceutical and biomedical research companies. While animal rights extremist groups have not publicly announced a change in their targeting tactics, there are several reasons for such a shift. Targeting individual researchers at their residences results in greater fear and intimidation, as extremists “personalize” their attacks by directly threatening the individuals and their families. In addition, by targeting individuals at their homes extremists avoid having to deal with security impediments that might exist at the university laboratory or employment facility. This change in modus operandi enables the extremists to carry out their attacks with fewer resources. Animal rights groups are also increasingly using the Internet to access public records and identify university researchers, and then posting their names and addresses online. This shift in targeting tactics coincides with a growing sentiment among members of the animal rights movement that researchers, businesses, and the general public have been sufficiently warned and violence can now be rationalized in order to permanently end animal abuse. Violent rhetoric is ´ literature and threat letters. For exexpressed in extremist communiques, ´ the Animal Liberation Brigade alluded ample, in a June 2007 communique, to the need for more violent tactics, asserting that “demonstrators need to realize that just demonstrating won’t stop this kind of evil.” Similarly, Jerry Vlasak, co-founder of the North American Animal Liberation Press Office and

Domestic Terrorists: The Animal Advocates leader in the U.S. animal rights movement has stated on several occasions that the notion of murdering medical researchers in order to save laboratory animals is a “morally justifiable solution.” While these statements may simply be aimed at motivating followers, it might also portend a shift toward greater violence. Outlook for New Jersey Animal rights extremist groups represent the most active, single-issue, domestic terrorism group in New Jersey[,] where they have historically focused their campaigns on biotech, life-sciences and pharmaceutical companies. However, since 2003, these groups have branched out, conducting direct actions against “tertiary targets,” including financial and technology-based companies and attacking the employees of targeted companies at their residences. Looking forward, the increased use of violence and intimidation perpetrated against university researchers on the West Coast is likely to be emulated on the East Coast, especially given the apparent connectivity between animal rights groups throughout the country and the extent of their travel between coasts. This type of connectivity has been exemplified in New Jersey through “Days of Action,” direct action campaigns organized by animal rights groups which are attended by supporters from across the [United States]. These events reveal a willingness to travel long distances to protest and target businesses, laboratories and individuals in New Jersey. While there is currently no intelligence indicating that animal rights extremists are planning to target university researchers or other New Jersey facilities involved in animal research, the nature of this threat warrants ongoing situational awareness within university, private sector and law enforcement communities. For additional information and [geographic information systems] mapping of New Jersey companies targeted by animal rights groups, please refer to the December 2007 OHSP Assessment: “Animal Rights Extremism: Current Trends and Implications for New Jersey,” available on the OHSP secure Web site, through http://www.state.nj.us/. Suspicious activity involving animal rights extremist groups should be treated as having a possible nexus to terrorism, and should be reported immediately to the New Jersey Office of Homeland Security and Preparedness (OHSP) . . . and to local law enforcement authorities. Even a cursory survey of stories published in the Chronicle of Higher Education over the past two years drives home the severity of the threat posed to higher education by animal rights activists, who may be the most serious domestic-terrorism threat posed to campuses in the United States. Herewith

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Al-Qaeda Goes to College a modest sampling of the extensive coverage this topic has been receiving. Even this modest sample conveys the geographic reach of the movement, as it directly targets university research activities and the scientists who are engaging in it using a wide variety of species:

Animal-Rights Groups Fight Colleges over Access to Research Records The Ohio Supreme Court has ruled that Ohio State University is not required to release videotapes of animal research sought under the state’s open-records law by an advocacy group opposed to such studies.2 UCLA Professor Halts Monkey Research Responding to pressure from animal-rights activists, Dario Ringach, an associate professor of neurobiology at the University of California at Los Angeles, has abandoned his research on monkeys. In an e-mail message with the subject line “You win,” Mr. Ringach wrote to a news office for animal-rights groups that he would no longer conduct animal research, and asked that the groups leave him and his family alone.3 UCLA’s Acting Chancellor Takes Steps against Animal-Rights Extremists The acting chancellor of the University of California at Los Angeles has announced plans to push back at animal-rights groups, which he says have recently stepped up harassment of faculty members. In a letter to the campus, Norman Abrams, who became acting chancellor on July 1, said “illegal and often violent” acts by activists, who are protesting research conducted by university scientists on nonhuman primates and other animals, had “culminated this summer in an incident involving a powerful incendiary device placed on the doorstep of a neighbor of one of our faculty members.”4 The Growing Field of Animal Law Is Attracting Activists and Pragmatists Alike In the Pacific Northwest, many young people say they want to liberate animals from human subjection, so much so that defending activists who break into research laboratories to set loose animals is now a cottage industry. Here at Lewis and Clark College School of Law, students of “animal law” are learning another way to change social practices that involve animals. They are just as passionate as animal-liberation advocates. And they may become more influential. Animal law is the study of all laws relating to animals, whether they enable harsh treatment of animals or encourage kind treatment. “It’s a lot like where environmental law was in the 1970s,” says Laura Ireland

Domestic Terrorists: The Animal Advocates Moore, founder and executive director of the National Center for Animal Law, based at Lewis and Clark.5 Animal Researchers’ Homes Are Attacked: As Protests Intensify, Colleges Take Steps to Protect Scientists When six masked people pounded on the front door of a scientist’s home in Santa Cruz, Calif[ornia], and allegedly struck her husband late last month, the echo was heard by biomedical researchers and universities around the country. The intrusion represents an apparent escalation in the level of violence used by animal-rights protesters, who until now have not physically attacked academic scientists. “We’re facing a national movement,” says George Blumenthal, chancellor of the University of California at Santa Cruz, where the biologist works. Other universities, he says, are going to have to face “individuals who are prepared to use potentially violent tactics that have a terrorizing effect on researchers.”6 New Front in Battle over Studies of Animals: Activists Take Aim at NonResearch Colleges Far from the front lines of the nasty fight over laboratory-animal experiments at large research universities, activists are strategically drawing some teaching-oriented institutions into the same battle. Amherst College, Fairfield University, Francis Marion University, and [ten] other institutions, none of which [is] known for conducting animal experiments, recently signed a pledge not to subject any research animals to “severe” unrelieved pain or distress. The pledge was written by the Humane Society of the United States, which has sent it to a total of 301 presidents at similar institutions.7 New Attacks on Animal Researchers Provoke Anger and Worry After firebomb attacks this month set the home of a neuroscientist at the University of California at Santa Cruz aflame and destroyed a car parked in the driveway of another university researcher’s home, researchers and academic leaders were shaken. The attacks are believed to be the work of animal-rights protesters.8

THE ROOTS OF THE ANIMAL RIGHTS MOVEMENT In his novel of seventeenth-century England, Quicksilver, the author Neal Stephenson has members of the Royal Society “starving a toad in a jar to see if new toads would grow out of it,”9 draining “all the blood out of a large dog and putting it into a smaller dog minutes later,”10 and removing “the rib cage from a living mongrel.”11 Because Stephenson’s representations appear to be historically accurate, little wonder that the “first significant animal rights movement began in nineteenth-century England,

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where the impetus was opposition to the use of unanaesthetized animals in scientific research.”12 The only wonder is that it took so long for social mores to rise to the level of repugnance for this practice that the “movement inspired protests, legislative reforms in the United Kingdom, and the birth of numerous animal protection organizations.”13 The rise of such sentiments paralleled the changing views of England’s leading philosophers (including so-called natural philosophers) toward animals. While Ren´e Descartes considered animals “organic machines,”14 David Hume wrote in the eighteenth century, “Next to the ridicule of denying an evident truth, is that of taking much pains to defend it; and no truth appears to me more evident, than that beasts are endow’d with thought and reason as well as men. The arguments are in this case so obvious, that they never escape the most stupid and ignorant.”15 Jeremy Bentham, the early-nineteenth-century father of utilitarianism, added: Other animals, which, on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things. . . . The day has been, I grieve it to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated . . . upon the same footing as . . . animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may come one day to be recognized, that the number of legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps, the faculty for discourse? . . . [T]he question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being? . . . The time will come when humanity will extend its mantle over everything which breathes.16

Although the antivivisection movement was birthed in the early nineteenth century alongside the significant scientific activity that characterized that period, and despite its long history of opposition to animal research, the movement cannot be credited with stopping a single scientific experiment until 1977,17 when the movement’s outcries ended National Institutes of Health (NIH) funding of certain grizzly and notorious cat experiments that the federal agency had funded for some seventeen years at New York’s Museum of Natural History.18 In fact, not until the 1960s did a robust animal-rights movement emerge in the United States, part and parcel of the sociocultural revolution that

Domestic Terrorists: The Animal Advocates

swept through American society in such varied forms as the hippy movement, antiwar protests, the sexual revolution, and the drug culture.19 An early victory was the 1966 Laboratory Animal Welfare Act.20 In 1971, NIH issued the policy “Care and Treatment of Laboratory Animals.” This was replaced by public health service regulations in 1973.21 In 1981, Johns Hopkins University established its Center for Alternatives to Animal Testing, which describes itself as follows: The Johns Hopkins Center for Alternatives to Animal Testing (CAAT) has worked with scientists since 1981 to find new methods to replace the use of laboratory animals in experiments, reduce the number of animals tested, and refine necessary tests to eliminate pain and distress. We are an academic, science-based center affiliated with the Johns Hopkins University Bloomberg School of Public Health. We believe the best science is humane science. Our programs seek to provide a better, safer, more humane future for people and animals. We provide a variety of resources, including grants for scientists developing non-animal methods workshops on alternative methods, books, newsletters, and other publications. We also manage Altweb, an international online clearinghouse of alternatives news and resources.22

Despite these pioneering efforts and all the subsequent advances in the regulation and humane treatment of laboratory animals, animal-rights activists’ targeting of scientific, including university, laboratories has increased in recent years. To understand why, it is worth noting the several levels of animal activists in terms of their philosophical orientation. ANIMAL ACTIVIST PHILOSOPHY AND TACTICS DeGrazia identifies three gradations of standards subscribed by activists: 1. Sliding-scale model: “Animals may be used in research only where their use is consistent with giving their interests appropriate moral weight in view of the animals’ cognitive, emotional, and social complexity.” 2. Utilitarianism: “Animals may be used in research only where their use is likely to maximize the overall balance of benefits—factoring in likelihood of success—over harms, where all parties’ (including animals’) interests are impartially considered.” 3. Strong animal-rights view: “Animals may be used in research only where (1) their involvement does not harm them or (2) their involvement is in their overall best interests (therapeutic research). This view might also permit animals to be used in research where their involvement poses only minimal risk to them.”23

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Clearly, the third level is the most demanding. Indeed, the definition proffered by DeGrazia masks the extreme nature of this last position. The devil, as they say, is in the details. For example, whether what a scientist does to animals harms them or not depends entirely on the definition of the word harm. If one includes under harm the mere caging of an animal, then it is virtually impossible for a research scientist to work with animals in his or her lab. Similarly, if one deems the anxiety caused to an animal by the mere handling of that animal to be harm, then, once again, the definition would make it well-nigh impossible for a researcher to work with any such animals. If these interpretations seem far-fetched, then consider the following:

PETA: People for the Ethical Treatment of Animals: Animal Exploitation Every year, more than 3 million dogs, cats, birds, rabbits, and other animals are euthanized because they were born into a world that does not have enough homes for them. For every one companion animal who lives indoors with a human family and receives the attention, health care, and emotional support that he or she needs, there are thousands just barely surviving. Millions of domestic animals never know a kind human touch and live hard lives on the street before dying equally hard deaths. Others suffer at the hands of an unfit guardian who deprives them of veterinary care and other basic necessities: Social birds are left alone in tiny, barren cages for years as decorations; rabbits, guinea pigs, and hamsters are kept in filthy cages and only paraded out as a source of entertainment now and then; cats are left outside and often become victims of cruel people; dogs are left chained outside or kept in waste-strewn pens with only a metal barrel to protect them from the elements. Every animal deserves a chance to thrive in a responsible and permanent home. Sadly, breeders, pet stores, and people who fail to sterilize their companion animals have created a tremendous overpopulation problem that forces animal shelters to put millions of dogs and cats to death every year.24

Those who subscribe to such anthropomorphic sentiments, as those reflected in this statement, also tend to deny that—to borrow from George Orwell’s Animal Farm—some animals are more equal than others. Thus, for example, a recent essay by two biologists rejects all of the following

Domestic Terrorists: The Animal Advocates

arguments for distinguishing among phyla and species in according animals rights: r The evolutionary argument (i.e., that all life has evolved from single-cell organisms and that we humans are part of an unbroken chain of living organisms with shared rights and responsibilities) r Variations in awareness of self r Variations in memory and planning skills r Animal intentionality (i.e., that animals enjoy some limited measure of human free will and freedom of action, and therefore deserve some measure of civil rights)

These writers conclude that, “given our present state of knowledge of the needs and capabilities of classes of animals, let alone individual species, we feel, as biologists, that we first and foremost ought to guard against, or at least be very cautious about, the temptations of creating a scale of lesser or greater value of one species over another.”25 From such philosophical and ethical tenets the distance to radical tactics is short.26 Illustrative is the “ALF Credo,” expressed on the organization’s Web site as follows: The Animal Liberation Front (ALF) carries out direct action against animal abuse in the form of rescuing animals and causing financial loss to animal exploiters, usually through the damage and destruction of property. The ALF’s short-term aim is to save as many animals as possible and directly disrupt the practice of animal abuse. Their long-term aim is to end all animal suffering by forcing animal abuse companies out of business. It is a nonviolent campaign, activists taking all precautions not to harm any animal (human or otherwise). Because ALF actions may be against the law, activists work anonymously, either in small groups or individually, and do not have any centralized organization or coordination. The Animal Liberation Front consists of small autonomous groups of people all over the world who carry out direct action according to the ALF guidelines. Any group of people who are vegetarians or vegans and who carry out actions according to ALF guidelines have the right to regard themselves as part of the ALF.27

The last paragraph of this credo springs from the broader radical tradition of “leaderless resistance” (or phantom cell structure), “a political resistance strategy in which small, independent groups (covert cells) challenge an established adversary such as a government. Leaderless resistance can encompass anything from non-violent disruption and civil disobedience to bombings,

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assassinations and other violent agitation. Leaderless cells lack bidirectional, vertical command links and operate without hierarchal command.”28 The term was popularized by a white supremacist named Louis Beam, who in turn attributed the notion to a U.S. intelligence officer, Colonel Ulius Louis Amoss, who sought to rouse citizens to his perception of a threatened Communist take-over from within the government in the sixties.29 In his essay, Beam argued that traditional liberation armies employing pyramid-style organization are “extremely dangerous for the participants when it is utilized in a resistance movement against state tyranny.” He added, “Especially is this so in technologically advanced societies where electronic surveillance can often penetrate the structure revealing its chain of command. Experience has revealed over and over again that anti-state, political organizations utilizing this method of command and control are easy prey for government infiltration, entrapment, and destruction of the personnel involved. This has been seen repeatedly in the United States where pro-government infiltrators or agent provocateurs weasel their way into patriotic groups and destroy them from within.”30 A more workable approach, argued Beam, is to convince like-minded individuals to form independent cells that will commit acts of sabotage or terrorism without coordination from above, and while minimizing communication with other cells. “The so-called ‘phantom cell’ mode of organization, developed by Col. Amoss, or Leaderless Resistance, is based upon the cell organization but does not have any central control or direction. In the Leaderless Resistance concept, cells operate independently of each other, but they do not report to a central headquarters or top chief, as do the communist cells. . . . ”31 Despite exhorting the adoption of a resistance without a leader, it is likely that Beam was advocating leaderless resistance in an attempt to cement his position as a leader and thinker in the white separatist movement. Indeed, leaderless resistance is taken by some to be a technique of splitting an organization into an aboveground wing that primarily deals in propaganda, and an underground wing that actually carries out terrorist attacks.32 Animal rights advocates are certainly not the only terrorists who adhere to the strategy and tactics of leaderless resistance. Worth noting as an aside here is that substantial evidence of Al-Qaeda’s reliance on leaderless resistance is extant. Incidents in the United States over the past sixteen years or so, which are likely examples of leaderless-resistance actions, include the following: r January 25, 1992: Two CIA employees are shot and three others wounded outside the agency’s Langley headquarters by Mir Aimal Kasi.

r March 1, 1994: Rashid Baz boards a bus in Brooklyn and opens fire on Jewish yeshiva students.

Domestic Terrorists: The Animal Advocates

r February 25, 1997: Ali Hassan Abu Ali Kamal fires on tourists on the observation deck of the Empire State Building.

r July 31, 1997: Lafi Khalil and Ghazi Ibrahim Abu Mezer are arrested in their New York restaurant after police find five pipe bombs, which the pair planned to set off in New York subways. r July 4, 2002: Hesham Mohamed Hadayet attacks the El Al ticket counter at Los Angeles International Airport, killing two and wounding four. r September 6, 2002: German police arrest an American woman and her Turkish fianc´e in Heidelberg, alleging that they planned to detonate pipe bombs in the nearby U.S. military base.33 r May 9, 2007: Six radical Islamists are arrested in Cherry Hill, New Jersey, and charged with plotting to bomb the Fort Dix Army Base.34

Examples of the leaderless resistance credo among animal-rights and ecoterrorist organizations include: r Stop Huntingdon Animal Cruelty (SHAC), a Worcestershire, England, organization targeted in particular Huntingdon Life Sciences (HLS), among the world’s largest animal-testing laboratories. SHAC is a worldwide campaign, and the first of its kind, with SHAC groups in the [United Kingdom, United States], Holland, Germany, Italy and many other countries all uniting to target HLS and the companies that support [it] globally. SHAC is an innovative campaign, and has received worldwide media coverage for the success of its methods, the intelligence of its tactics and the determination of its supporters. Please note that SHAC does not encourage or incite illegal activity.35

r Earth Liberation Front (ELF) modeled itself after the Animal Liberation Front (ALF). Its adherents claim credit for numerous acts of vandalism against such targets as logging companies, luxury real estate developments, and [sport-utility vehicle] dealerships, as well as the freeing of animals. With regard to the latter, ELF affiliates joined with ALF affiliates in November 1997 in Burns, Oregon, to cause a half-million dollars in damage to the office, barns and other facilities of a horse and burro breeding company.36 r Also available on the Web are such leaderless-resistance tools as “ARSON-AROUND with Auntie ALF: ALF’s Arson Guide,” which two Long Island teens, who pleaded guilty in February 2001 of burning down housing currently under construction, had accessed.37

Leaderless resistance in the animal-rights movement took a new turn in early 2008. On Sunday, February 24, 2008, a University of California at Santa Cruz breast-cancer scientist and her family were enjoying a

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birthday party when a loud knock came at the front door of their home. The researcher’s husband responded and was greeted by six masked visitors, one of whom smacked him on the hand before they got back into their car and drove off. This was not the first such incident at Santa Cruz, where the cancer researchers use mice in their labs. Earlier intrusions included graffiti, such as “murderer” and “torturer,” and strewn garbage in front of other scientists’ homes. Similar assaults were reported in Los Angeles and Salt Lake City.38 Dr. Edythe D. London, of the University of California at Los Angeles, who uses primates to study addiction, has been a particular target of ALF adherents. Her house has been both firebombed and flooded.39 The UCLA Center for Neurovisceral Sciences and Women’s Health describes London’s work as follows: Dr. London’s research has advanced the study of substance abuse and the development of new approaches and probes for studies of brain function. She has edited several books and authored over [two hundred] original research articles and over [sixty] reviews. Her most recognized accomplishments involve PET scanning of human subjects who suffer from addictions. Dr. London’s group was the first to show a relationship between drug craving and activity of brain regions that link memory with emotion. She also showed that drug abusers have structural abnormalities in prefrontal cortex and deficits in decision-making tasks that depend on prefrontal cortex function. Her work influenced other researchers to look toward the frontal lobe for an understanding of the compulsive self-administration of drugs despite detrimental effects, which characterizes drug addiction. Most recently, she and her colleagues have developed new probes for external imaging of those receptors in the brain where nicotine binds to produce its behavioral actions.40

By contrast, on March 13, 2008, the ALF Web site posted the following anonymous notice:

At the start of last week, in Irvine, CA, a van owned by UCLA went up in flames. For all of those affected you have the UCLA primate vivisection program to blame. It is unacceptable for us to see, hear, and know what is going on in our animal labs without taking action. Every time we pass someone like Arthur in the hallways and have to witness his stomach churning grin or watch Joaquin double checking the door locks on his little red Mercedes we have to choke back a crippling amount of disgust and hatred. It is becoming

Domestic Terrorists: The Animal Advocates almost impossible to hold back. Then we hear the monkeys wailing and screaming and we find the strength to stay put. We are driven to show the world the compassionless support that UCLA gives to these monkey killers and to do anything we can to end the needless suffering that the primates are forced to face. The end of UCLA vivisection is coming. We urge you to start switching over to non-animal protocol without haste.41

Inevitably, these illegal actions and the attendant property losses, increased security costs, and human anxiety, have led the aboveground parties to clash in court. A leading advocate for ALF is Christine L. Garcia of the Animal Law Office in San Francisco.42 She describes her specialty as follows: Animal Law includes any type of legal action, whether it be transactional or litigation, that affects the rights, standing and/or welfare of an animal. It is a new area of the law where sparse pro-animal case and statutory law exists in terms of defining, establishing and protecting the welfare of animals. Animal Law varies from litigation issues involving incidents of wrongful death, veterinarian medical malpractice, animal activist Constitutional Rights protections, defense at vicious dog hearings, products liability litigation against companies that kill animals through the “proper” use of the product, and transactional issues such as drafting estates [and] trusts and facilitating the non-profit organizational governance.43

In 2006, Garcia represented SHAC USA in a classic case of leaderless resistance. The action was initiated by Valent USA Corporation, maker of insect and weed control products.44 Valent sought injunctive relief against SHAC USA, which defended itself under California’s SLAPP45 statute. A special motion to strike Valent’s complaint as a meritless SLAPP suit was filed by SHAC USA under section 425.16 of the California Code on October 29, 2004, and was originally set down for hearing on December 16, 2004. The core position of SHAC USA was that the claims asserted in Valent’s complaint centered around SHAC USA’s primary existence as a Web site and “informational newsletter” supporting the activities of animal activists in their eighteen-country effort to shut down Huntingdon Life Sciences, a laboratory and product development company that, as noted previously, performs product testing for clients on live animals.46 SHAC USA conceded that this campaign also involved pressuring HLS’s clients to end their business relationships with HLS and that the activities of SHAC USA included the occasional organization of “legal public demonstrations regarding HLS

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and its clients and affiliates.” These actions include activities against Valent, an HLS customer. However, in making these concessions, SHAC USA distinguished itself from the animal-rights movement known as Stop Huntingdon Animal Cruelty (SHAC) and SHAC UK, claiming also that SHAC USA had no members and could not be held liable for the acts of individuals who attended demonstrations “that were organized by other persons or groups.” It also contended that the activities attributed to SHAC USA, as complained of by Valent, were all protected by freedom of speech guaranteed by the First Amendment of the federal constitution.47 The California court closely considered the state’s SLAPP statute: Under the statute, the court makes a two-step determination: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e).’ If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.”48

The evidence taken into account by the court was described in the opinion as follows: This limited record reveals that the SHAC USA website postings contain no home addresses, telephone numbers, e-mail addresses, or any other personal information regarding Demouth or Zisook, other than identifying their employer. The only mention of these two appellants describes the following demonstration in front of their homes: “Received from CA activists: On the night of July 2 we decided to give some animal torture profiteers a visit. We were haunted by the clashing images of those who profit from animal torture sleeping soundly in their beds and the image of four month old beagle puppies being punched in the face and sleeping in their own excrement. First on our list was Robin Denmouth [sic] who is General Counsel and Secretary for HLS customer Valent Corporation. Robin appeared to be in for the night. With our trusty bullhorn and a personal alarm we let them know that their [sic] is no time for puppy killers to relax.

Domestic Terrorists: The Animal Advocates We then hopped on over to Leslie Kvasnicka’s house. Leslie is Valent’s Manager of Quality Assurance and Corporate Safety. Leslie apparently has a soft spot for manatees judging by her manatee shaped mailbox. Too bad she has no soft spot for the animals that linger inside the walls of HLS. Give her a call and let her know what scum she is. . . . Last, but not least on our list was Elsa Zisook. Let them know there is no rest for the wicked! We’re just getting started Valent. Cut your ties with HLS!” In James K. Schmidt’s declaration, he described the investigation he conducted to determine to whom the Internet domain name “www.hlscustomers.com” was registered. Schmidt determined it was registered to SHAC USA. The attorneys’ declarations primarily authenticated documents, most of which were not admitted except as discussed above.”49

Dismissing Valent’s case, the court concluded, “This record is plainly inadequate to show a likelihood that appellants’ would prevail on any of their causes of action against SHAC USA.”50 When UCLA sought injunctive relief in 2008 on behalf of Dr. London and her colleagues, Attorney Garcia represented the defendants. Garcia’s immediate response was to contend that the university’s action was retaliation against a suit she had earlier brought against the Santa Monica Police Department and two UCLA employees.51 Whether that accusation was true or not, on February 21, 2008, the superior court judge Gerald Rosenberg signed a temporary restraining order in UCLA’s favor against the ALF, the Animal Liberation Brigade, the UCLA Primate Freedom Project, and five protesters believed to be affiliated with the groups. The judge’s order “forbids the activists to engage in acts of harassment and threats of violence, and requires that they stay away from anyone known to be a university employee involved in animal research, UCLA’s attorney John C. Hueston said. It also ordered the activists and their groups to remove the researchers’ personal information from Web sites that name them as targets of their protest.”52 Spokesman Jerry Vlasak of the North American Animal Liberation Press Office responded to this suit and subsequent efforts to enact protective legislation, commenting, “If someone’s willing to risk 20 years of prison by . . . burning a building used for animal torture, I don’t think they’re going to worry about a silly restraining order that UCLA cooks up. The same goes for AB 2296 [the proposed statute].”53 Sadly, Vlasak may be dead right. A federal statute, upon which California’s legislature seeks to model its new law, has been on the books since 1992:

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Animal Enterprise Protection Act of 1992: Public Law No. 102–346, August 26, 1992 102nd Congress An Act To Protect Animal Enterprises. . . . SECTION 1. SHORT TITLE. This Act may be cited as the “Animal Enterprise Protection Act of 1992”. SEC. 2. ANIMAL ENTERPRISE TERRORISM. (a) IN GENERAL.— ... “§ 43. Animal enterprise terrorism “(a) OFFENSE.—Whoever— “(1) travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility in interstate or foreign commerce, for the purpose of causing physical disruption to the functioning of an animal enterprise; and “(2) intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property (including animals or records) used by the animal enterprise, and thereby causes economic damage exceeding $10,000 to that enterprise, or conspires to do so; shall be fined under this title or imprisoned not more than one year, or both. “(b) AGGRAVATED OFFENSE.— “(1) SERIOUS BODILY INJURY.— Whoever in the course of a violation of subsection (a) causes serious bodily injury to another individual shall be fined under this title or imprisoned not more than 10 years, or both. “(2) DEATH.—Whoever in the course of a violation of subsection (a) causes the death of an individual shall be fined under this title and imprisoned for life or for any term of years. “(c) RESTITUTION.— An order of restitution under section 3663 of this title with respect to a violation of this section may also include restitution— “(1) for the reasonable cost of repeating any experimentation that was interrupted or invalidated as a result of the offense; and “(2) the loss of food production or farm income reasonably attributable to the offense.

Domestic Terrorists: The Animal Advocates “d) DEFINITIONS.— As used in this section— “(1) the term ‘animal enterprise’ means— “(A) a commercial or academic enterprise that uses animals for food or fiber production, agriculture, research, or testing; “(B) a zoo, aquarium, circus, rodeo, or lawful competitive animal event; or “(C) any fair or similar event intended to advance agricultural arts and sciences; “(2) the term ‘physical disruption’ does not include any lawful disruption that results from lawful public, governmental, or animal enterprise employee reaction to the disclosure of information about an animal enterprise; “(3) the term ‘economic damage’ means the replacement costs of lost or damaged property or records, the costs of repeating an interrupted or invalidated experiment, or the loss of profits; and “(4) the term ‘serious bodily injury’ has the meaning given that term in section 1365 of this title. “9e) NON-PREEMPTION.—Nothing in this section preempts any State law.” (b) CLERICAL AMENDMENT.—The item relating to section 43 in table of sections at the beginning of chapter 3 of title, United States Code, is amended to read as follows: “43. Animal enterprise terrorism.”54

What has been the effect of this federal statute? In the words of a scientist who says that he himself has been victimized by animal-rights activists: After accepting the responsibility to write this article, I immediately plowed into the subject expecting to find myself awash in information about the Act on the internet. Having been detoured there on many occasions, I was nervous about the task of ferreting the relevant from the extraneous, so I fired up my favorite search engine and browsed the web for information on two items, the “Animal Enterprise Protection Act” and the “Animal Welfare Act,” fully anticipating both searches to yield the standard megaresponse that typically goes with such unsophisticated search strategies. To my amazement, the phrase “Animal Enterprise Protection Act” yielded less than [forty] hits. This simple test set the stage for a remarkable discovery. Unlike the Animal Welfare Act, a topic that yielded more than 1,600 hits on my global search of the internet, no one seemed to care very much about the Act that offered such hope for so many just seven years ago.55

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Intrigued and dismayed by this discovery, and being a scientist, he sought an explanation for this dearth of enforcement activity. I immediately picked up the phone and began calling colleagues who I knew could help me understand how this potentially important piece of legislation, written to protect honest users of animals from animal rights terrorists, had suffered such undignified rejection at the hands of the federal prosecutors it was designed to energize. I was then stunned to learn that no one has been prosecuted under the provisions of the Act. No one. Not a single soul since the Animal Enterprise Protection Act became the law of the land.56 While there may be many explanations for the dormancy of prosecutors in the use of this legal tool, we can all be certain that the failure to exercise the Act in the courts is unrelated to the level of animal rights activity during the period since its enactment. On the contrary, a strong case can be made that the overall level of animal enterprise terrorism in the US has dramatically increased since 1992. Numerous laboratory break-ins have occurred during this time frame. . . . During this period, death and bomb threats have continued to flow from activists as freely as small talk at the local tavern, and animal rights leaders continue to egg on their foot soldiers with inflammatory talk of revolution.57

The author criticizes the act for carrying penalties that are too light to deter, as well as for failing to forbid or punish the many minor acts of humiliation, such as pies in the face, that fall short of anything a federal prosecutor would care to handle. He notes that two attempts to pursue private actions fell flat, dismissed because the courts held that the act was a purely criminal statute that accorded no such right to a civil suit.58 This writer concludes: The question that I pose as central to this discussion and the one that I had to grapple with as I wondered about my decision to write this essay is, “Can the handful of philosophers, lawyers, and political activists among us who are promoting the idea that ethical distinctions cannot be made among members of the animal kingdom ever truly hope to win this extreme argument that they wage?” I seriously doubt it. But if they were successful, those other human tragedies to which I refer would be compounded by the Alice in Wonderland atmosphere that would have consumed us.59

The article was published in 2000. With the September 11, 2001, terrorist attacks, it was not only Uncle Sam’s attitude toward Islamic terrorists that changed. In the words of an ALF adherent: Like the amorphous category of domestic terrorism, a keystone in the USA PATRIOT Act attack on civil liberties, the frightening thing about the AEPA is its strategic vagueness that subsumes any and every form of

Domestic Terrorists: The Animal Advocates protest and demonstration against exploitative industries to a criminal act specifically, a terrorist act. Thus, the actions of two or more people can be labeled terrorists if they leaflet a circus, protest an experimental lab, block a road to protect a forest, do a tree-sit, or block the doors of a fur store. On the sweeping interpretations of terrorism in such legislation, Martin Luther King, Mahatmas Gandhi, and Cesar Chavez would today be vilified and imprisoned as terrorists, since the intent of their principled boycott campaigns was precisely to cause economic damage to unethical businesses. And since the AEPA, like the legal system in general, classifies animals as property, their theft.60

The catalyst for this diatribe against the federal statute was the 2006 trial of seven SHAC supporters under the Animal Enterprise Protection Act. Bringing this chapter full circle, the trial took place in Trenton, New Jersey. On March 3, 2006, a federal jury in Trenton, New Jersey, convicted six members of SHAC of “terrorism and Internet stalking,” according to the New York Times, finding them guilty of using their Web site to “incite attacks” on those who did business with HLS. In September 2006, the so-called SHAC seven received jail sentences of three to six years. Originally, seven individuals were charged, along with SHAC USA. The individuals were Kevin Kjonaas (former president of SHAC USA), Lauren Gazzola, Jacob Conroy, Joshua Harper, Andrew Stepanian, Darius Fullmer, and John McGee. McGee was later dropped from the case. The defendants were charged with conspiracy to violate the Animal Enterprise Protection Act, in the first application of the 1992 statute. Kjonaas, Gazzola, Conroy, and Harper were also charged with conspiracy to harass using a telecommunications device (sending black faxes). Kjonaas, Gazzola, Conroy, and SHAC USA were charged with conspiracy to commit interstate stalking and three counts of interstate stalking via the Internet. The case first went to trial in June 2005 but ended in a mistrial when one of the key defense attorneys fell ill during the opening statement. It resumed on February 6, 2006. The defense of the SHAC seven rested largely on the 1969 case Brandenburg v. Ohio, in which the U.S. Supreme Court ruled that political speech is legal unless it can be shown that a defendant has told specific individuals to commit specific, imminent acts of violence. On March 3, 2006, the defendants were convicted, sentenced to an aggregate of twenty-four years in prison, and ordered to pay a joint restitution of $1,000,001.00.61 The New York Times reported:

“An animal rights group and six of its members were convicted of terrorism and Internet stalking yesterday by a federal jury that found them guilty of using their Web site to incite attacks on those who did business with or worked for a British company that runs an animal testing laboratory in New Jersey.

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Al-Qaeda Goes to College “The case was the first test of the Animal Enterprise Terror Act, enacted in 1992 to curb the most aggressive tactics used by activists. The verdict, which came after [fourteen] hours of deliberation, was called an insidious threat to free speech by some activists, but was cheered by research scientists, some of whom are lobbying Congress to tighten restrictions on protesters.”62

Little wonder, then, that in 2008 the New Jersey Office of Homeland Security and Preparedness issued its intelligence assessment. THAT WHICH DOES NOT KILL US How, then, does this terrorist threat benefit higher education? First, enhanced security measures aimed to protect research facilities from animalrights terrorists inevitably spill over into added protection for institutions’ intellectual property and enhanced alertness, beyond what might occur in a context of anti–Al-Qaeda measures, this latter appearing to be far more remote than threats discussed in Chapter 2 and the animal-rights crowd, as outlined here. Second, by forcing us to consider how we run the animal-related aspects of our research programs, the ALFs and SHACs push the advance of research and testing techniques that may be more efficient, more accurate, and/or more safe than animal experimentation. Stated in its broadest terms, the war on terror in all its forms—like any major war in American history—pushes technological advances. Higher education, as much or more than any other sector of the American economy, reaps the benefits of this technological imperative. The FBI has contended that ALF and ELF “have become the most active criminal extremist elements in the United States.”63 While the threat, thus, has greatly increased, so too has official interest in these groups. One might credibly claim that the escalation of violent confrontation—such as a willingness to harass researchers in their homes—is in direct correlation to society’s unwillingness to tolerate these organizations’ positions and activities and the increased pressure placed upon them by legislators and law enforcement agencies in the wake of 9/11. Bundled in with Islamic extremists after the World Trade Center attack, animal-rights activists increasingly find themselves social pariahs in the eyes of the higher-education community, and most likely in the opinion of the general public as well. They are likely to discover that their more strident speech and terrorist tactics will backfire, as our industry and the criminal justice system combine to confront the enhanced threat with improved tactics and technologies.

4

With Friends Like These: Government Regulation of Academia International students represent big business for American universities. This was true before 9/11. It is true today. An American college or university may be operating out there somewhere without a single foreign student studying on campus, but you will be hard pressed to find such a school. To the contrary, the vast majority of institutions of higher education compete vigorously for as many international students as they can get. Many reasons account for this sharp competition: r First and foremost (no matter what anyone says to the contrary), international students mean money. Frequently, they are full payers.

r Second, shared recognition in our industry that an adequate higher education must include an international orientation leads most schools to send as many of their students to study abroad as is possible. Unfortunately, for every student who leaves his or her home campus to spend a semester or two at a foreign university, that student’s home institution sends all, or at least a substantial percentage, of the student’s tuition to the overseas host, while also losing room and board fees, if the traveler was a residential student. Incoming international students fill the holes left by these traveling scholars. r Third, international students bring the world to the American campus. Yankee kids who can’t, or won’t, venture out into the larger world will at least be exposed to these ambassadors from overseas.

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By the same token, illegal aliens pose a big problem, at least for some universities. There are two aspects to this problem: r First is the issue of in-state versus out-of-state tuition differentials frequently charged by public universities. Suppose that an American citizen from outside the institution’s home state is asked to pay a substantially higher tuition than his or her home-state counterpart. Most students and parents will not object to this differential. But suppose that the home-state student enjoying the lower tuition rate is an illegal alien—or an American citizen by reason of birth—but also the son or daughter of illegal parents. No surprise, I think, that some out-of-state students and their parents feel that, as American citizens—who fall under the protection of the equal protection clause of the Constitution’s Fourteenth Amendment— that they are more deserving of the reduced rate than these alien interlopers. Much litigation and legislation, as we shall see, has sprouted from this sense of grievance, especially since 9/11. r Second—and more directly linked to 9/11 and the war on terror—is the fuss that has erupted on some college campuses lying along America’s southern border. Uncle Sam’s commitment to building a border fence from California to the Gulf of Mexico has been resisted by some Texas schools on the grounds that such a structure will disrupt their educational mission.

But before we tackle these two illegal-alien issues, let us begin this chapter by considering (1) the impact 9/11 had on higher education’s international-student market and (2) the federal government’s post-9/11 regulatory scheme for documenting and tracking foreign scholars coming into the United States, an issue to which I alluded briefly in the introduction. BIG BROTHER IS WATCHING (WELL, SORT OF): A SHORT OVERVIEW OF SEVIS Few of the 9/11 terrorists were in the United States on student visas.1 No matter, the attacks had a profound impact upon American higher education’s recruitment of international students. Partly, this was due to echoes of the first World Trade Center attack nearly a decade earlier. “The vast majority of students who come to the United States do so to benefit from our academic institutions. Unfortunately, a few of those purporting to come here for that purpose have exploited the system to cause us harm,” said the Department of Homeland Security’s former Assistant Secretary Michael J. Garcia, as he marked the first anniversary of the institution of the Student and Exchange Visitor Information System (SEVIS). “The worst examples are those who have committed terrorist acts on our

With Friends Like These: Government Regulation of Academia

soil, such as the driver of the explosive-laden van in the 1993 World Trade Center bombing and a number of the 9/11 hijackers. SEVIS helps ensure that people coming here to study do just that, and puts the rule of law back into our immigration system by ensuring that violators will face consequences.”2 Aside from the marketing challenges of attracting international students to the United States, yet intimately related to it is the entirely revamped student-visa system, SEVIS, instituted by Congress shortly after 9/11. SEVIS plays a critical role in higher education’s access to international students. Beyond that, its enactment has provided a central—though thus far unsuccessful—legal argument for those seeking to challenge state tuition discounts for illegal-resident aliens. Consequently, I ask the reader to endure a brief overview of SEVIS before we look at the more intriguing issues—decline and recovery of international student recruiting, the tuition-discount controversy, and the impact of the southern border fence on some universities— that follow. The U.S. Citizenship and Immigration Service (USCIS) issues three general types of nonimmigrant student visas: 1. The F-1 visa is issued to international (alien) students who typically intend to study in the United States for several years and earn a degree. 2. The J-1 visa is issued to international students who are exchange visitors to the United States, studying at an American university for a semester or two and then returning to their home institutions to complete their studies. 3. The M-1 visa is similar to the F-1 but is issued to international students studying at postsecondary trade schools.

Prior to the 9/11 attacks, schools issued international applicants paper forms prepared on typewriters and taken by the students to U.S. consulates, which usually awarded visas without much ado. The issuing school’s tracking of the applicant essentially ended when the Form I-20 was mailed. If the student never showed up on campus, the college was under no obligation to give the student a second thought, much less to notify Uncle Sam of his or her absence. Now, all postsecondary schools that admit international students must track these students on SEVIS, a computer database accessible only to designated school officials and responsible officers. In the words of U.S. Immigration and Customs Enforcement (ICE) agency: Student and Exchange Visitor Program (SEVP) acts as the bridge for varied government organizations which have an interest in information on foreign students. SEVP uses [W]eb-based technology, the Student and Exchange Visitor Information System (SEVIS) to track and monitor schools and

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Al-Qaeda Goes to College programs, students, exchange visitors and their dependents throughout the duration of approved participation within the U.S. education system. SEVP collects, maintains and provides the information so that only legitimate foreign students or exchange visitors gain entry to the United States. The result is an easily accessible information system that provides timely information to the Department of State, U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement.3

Under SEVIS, nonimmigrant aliens seeking to attend a U.S. college or university as degree-seeking students must pass through a five-step process: 1. Apply to, and be accepted by, an SEVP-certified school. Be able to pay for the cost of schooling and living expenses while in the United States and furnish proof of sufficient funding to the school. Nonimmigrant students have limited work opportunities, so unless the school has promised an on-campus job, nonimmigrant students should not expect to work to pay expenses. Attend school full-time (except for Mexican or Canadian residents who live at home and commute to a United States school within seventy-five miles of the U.S. border). 2. When a school accepts a nonimmigrant applicant, it issues a Form I-20 for initial attendance. Prospective nonimmigrant students may apply to more than one SEVP-certified school but must choose one and use the Form I-20 from that school when applying for a visa. 3. After receiving the Form I-20, the prospective nonimmigrant student must pay the SEVIS I-901 fee at www.fmjfee.com. 4. The prospective nonimmigrant student must then obtain a student visa from an embassy or consulate abroad or, if from a visa exempt country such as Canada or Bermuda, apply for admittance at a U.S. port of entry (POE). 5. After obtaining an F-1 or M-1 visa, the prospective student may apply for entry into the United States through a U.S. POE no more than thirty days prior to the program start date on the student’s Form I-20.

Schools covered by F-1 visas include the following: r Kindergarten through 12th grade (K–12) private schools r Public high schools (nonimmigrant students are limited to a maximum r r r r r

of twelve months at a public high school) Colleges and universities, including two-year community colleges Fine arts schools and conservatories Seminaries Language-training schools Other schools that provide instruction in the liberal arts or the professions

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Schools coming under the M-1 visa include the following: r Community or junior colleges that offer technical or vocational instruction

r Postsecondary vocational or business schools r Vocational or other nonacademic high schools The visa applicant’s proof of acceptance to one of these schools is the Form I-20, typically issued by the institution’s admissions office via SEVIS. The Form I-20 is an official U.S. government form, even though issued by a private entity. In fact, a prospective nonimmigrant student must have a Form I-20 issued by an SEVP-certified school to become an F-1 or M-1 student. Only an SEVP-certified school can issue a Form I-20 to students who have been accepted for enrollment. It acts as proof of acceptance and contains the information that is needed to pay the SEVIS I-901 fee; apply for a visa or change of status, and admission into the United States. The Form I-20 has the student’s unique SEVIS identification number on the upper-right-hand side directly above the barcode. SEVIS ID numbers are an N followed by nine digits. If the student fails to report as anticipated on the issuing-institution’s campus, the responsible institutional officer, such as the director of international programs or a member of the school’s legal department, must cancel the I-20 on SEVIS, categorizing the applicant as a no-show. After the creation of the SEVIS database with its government-wide access, this obligation is the second most significant change instituted by the new system. However, the burden still falls on the fed in the form of the ICE to pursue the matter further if the agency so desires. The M-1 category, as noted previously, includes students in vocational or other nonacademic programs other than language training. Approval for the attendance of nonacademic students may be solicited by a community college or junior college that provides vocational or technical training and awards associate degrees, a vocational high school, a trade school, or a school of nonacademic training other than language training. Employment rules under this category are approximately the same as under the F-1 visa. The J-1 (exchange visitor) visa is a different animal altogether. While USCIS oversees the F-1 and M-1 visa process, the U.S. Department of State deals directly with J-1 visas, which cover a wide range of nonimmigrant aliens, including visiting scholars and professors, as well as exchange students, who typically are in the United States for a semester or an academic year at most. (Longer stays are possible but are relatively rare.) Often these exchange students come to our institutions under one-for-one exchange agreements under which we reciprocate by sending our American students to study abroad at a sister institution.

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The State Department’s Exchange Visitor Program is carried out under the provisions of the Mutual Educational and Cultural Exchange Act of 1961, as amended. The purpose of the act is to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. International educational and cultural exchanges are one of the most effective means of developing lasting and meaningful relationships. They provide an extremely valuable opportunity to experience the United States and the American way of life. Foreign nationals come to the United States to participate in a wide variety of educational and cultural exchange programs. The Exchange Visitor Program is administered by the Office of Exchange Coordination and Designation in the Bureau of Educational and Cultural Affairs (http://exchanges.state.gov/education/jexchanges). At the conclusion of their program, program participants are expected to return to the home countries to utilize the experience and skills they have acquired while in the United States. In carrying out the responsibilities of the Exchange Visitor Program, the State Department designates public and private entities to act as exchange sponsors. Designated sponsoring organizations facilitate the entry of foreign nationals into the United States as exchange visitors to complete the objectives of one of the exchange visitor program categories, which are the following: r r r r r r r r r r r r r

Au pair Camp counselor Student, college or university Student, secondary Government visitor International visitor (reserved for U.S. Department of State use) Physician Professor Research scholar Short-term scholar Specialist Summer work or travel Teacher trainee4

“In the SEVIS program’s first year, 8,737 schools and exchange visitor programs, representing more than 9,500 campuses, have been certified to participate in the program. As of July 2004, there are more than 770,000 students and exchange visitors (F-1, M-1 and J-1 visa categories) approved to study in the United States whose data is being managed by SEVIS. In addition, SEVIS maintains records on more than [one hundred thousand] dependents of students and exchange visitors.”5 As I noted previously, every

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college and university interested in competing for international students must now be a part of the SEVIS system. Of course, this is only the ante needed to sit at the table. After 9/11, a decline in international-student enrollments was probably inevitable. Where, you might fairly ask, do things stand with our industry now that the dust has long since settled? DECLINE IN INTERNATIONAL STUDENT ENROLLMENTS BOTTOMS, REBOUNDS The answer: For the first two years after 9/11, perhaps at least in part due to SEVIS, U.S. academia saw its international-student numbers fall. Then a turnaround was detected. The number of foreign students in the United States remained steady last academic year, ending two years of declines. At the same time, the number of new international students increased by 8 percent, suggesting that total foreign enrollments may soon rise. Those results appear in the latest edition of “Open Doors,” an annual report on international students and scholars in the United States published by the Institute of International Education and supported by the State Department’s Bureau of Educational and Cultural Affairs. In 2005, the latest year for which data are available, 564,766 foreign students were enrolled at American institutions, just 273 fewer than enrolled the previous year. The total is still significantly below the high point of 586,323 registered in 2002. Higher-education officials attributed the improved situation to fewer delays in awarding student visas and to stepped up recruitment by institutions.6

Nearly half of all international students in the United States hail from just five nations: India, China, Korea, Japan, and Canada.7 By June 30, 2006, the U.S. ICE agency counted 583,959 international students in its SEVIS database.8 In April 2004, the agency announced a series of improvements to SEVIS:

Improvements to Student and Exchange Visitor Program announced today in Manhattan: Proposed increase in fees will support enhancements to Homeland Security’s critical system WASHINGTON, D.C.—Julie L. Myers, Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement (ICE), announced today

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Al-Qaeda Goes to College at New York University (NYU), to academic practitioners from the greater New York area, an increase in student fees for international students, scholars and exchange visitors. These fees are the first increase in five years and will significantly enhance the Student and Exchange Visitor Program (SEVP). “International students and exchange visitors contribute immeasurably to the United States. They provide significant intellectual capital to our schools and universities and economic stimulus to the communities in which they live,” said Ms. Myers. Millions of students from around the world seek to come to the U.S. to take advantage of our renowned educational system and engage in meaningful cultural exchange. Unfortunately, there have been instances in which individuals have exploited this educational opportunity by overstaying their visas, or using the process as an entry mechanism with no intention of attending classes. After the events of September 11, 2001, in which one of the terrorists entered using a student visa and the others entered on tourist visas, Congress required the Department of Homeland Security to implement a better way of keeping track of international students and exchange visitors. SEVP was the Department’s response to that mandate, and for several years has successfully filled that role. However, the ever-increasing number of students and exchange visitors coming to our country has necessitated several upgrades to the program’s systems and technologies. The fall of 2008 fee increase will provide the framework for dramatic improvements to the current program. “U.S. colleges and universities are the envy of the world and accordingly attract as many as a million individuals from overseas who wish to attend,” said Julie L. Myers, Assistant Secretary of Homeland Security for ICE. “Validating the identity of foreign students, verifying their intentions for entering our country and knowing where they are while they are here is critically important to the security of our country. Today’s proposed new rule ensures that America remains a welcoming place for foreign students to study, while enhancing our abilities to protect our national security.” During the presentation this morning, four major enhancements to SEVP where highlighted:

r The Student and Exchange Visitor Information System (SEVIS), the database used to track visiting students, will include improved interactive features for

With Friends Like These: Government Regulation of Academia school administrators as well as a simplified application process for foreign students hoping to receive an American education; r Local, customized, one-on-one customer support will be provided by new field liaisons; r Additional ICE agents will be assigned to follow up on alerts submitted by school administrators; and r A new recertification process, as mandated by Congress, will maintain the integrity and reputations of participating schools

“One of the real strengths of the meeting today was the opportunity for government officials and international education practitioners in the field clearly to hear each others concerns regarding the effect of the new regulations on the international student and scholar community” said David B. Austell, Ph.D., director for the Office of International Students and Scholars at NYU. SEVP proposes to increase its fees to comply with regulatory requirements to periodically review its fee structure and ensure its costs are fully covered; and to enhance its capability to improve national security and counter immigration fraud. Schools currently participating in the program will not be required to pay any additional fees to recertify under the new rule. The proposed fee increases will affect both students and schools:

r The rule would double the fee for nonimmigrant students to $200 r Most exchange visitor fees would rise from $100 to $180 r The fee for au pairs, camp counselors and summer work/travel program participants remains $35

r There is no fee for government sponsored exchange visitors r Fee for school certification would rise from $350 to $1,700 r Site visit charges would increase from $230 to $655 for each site visit These changes will ensure that America continues to welcome increasing numbers of international students and exchange visitors while maintaining the integrity of its immigration system and the security of its borders.9

So it seems that, eight years having passed without another foreignterrorist attack on the U.S. mainland, we are back to business as usual. Well, almost. Despite the improvements touted by ICE, above, SEVIS and its related POE tracking technologies—today including biometric techniques— have made travel to and from the United States for international visitors, including students, more cumbersome and difficult. In retaliation, a number of nations have thrown up roadblocks to American students seeking to

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study abroad. For example, Spanish consulates operating in the United States are required to send American citizen’s student-visa applications to Madrid, which in turn forwards them to regional government offices where the host universities are located, adding six to eight weeks to what was once a sort of no-brainer application process. UNDOCUMENTED ALIENS ATTENDING U.S. INSTITUTIONS The first half of this chapter deals with nonimmigrant aliens who come to the United States annually in their tens of thousands to legally attend U.S. institutions of higher learning on visas issued by the U.S. State Department following appropriate SEVIS authorization by the admitting institutions. Some might find it ironic, if not nonsensical, that while the ICE agency has tasked colleges and universities with the often onerous obligations entailed by SEVIS, illegal aliens already in the United States are contending, sometimes successfully, that they not only should be allowed to attend state-supported schools but also have the right to do so on the same terms as a state’s citizens and other legal residents. These illegal aliens are frequently the children of illegal parents, many of whom have been in the United States for decades. The U.S. Supreme Court ruled in two seminal cases that such children are entitled to a public K–12 and college education at the taxpayer’s expense (Plyler v. Doe found that a Texas statute that denies free education to alien children violates the equal protection clause, and Toll v. Moreno found that the University of Maryland’s policy of denying treaty organization aliens the opportunity to pay reduced, in-state tuition constituted a violation of the supremacy clause). In reaction to these decisions, the U.S. Congress passed statutes aimed to prevent these students from advancing to public institutions of higher education. Meanwhile some seven states passed statutes of their own, permitting in-state tuition advantages for their illegal-alien residents. Out-of-state students, subject to much higher rates for attending the same state schools, have been challenging these statutes ever since. A signature example of such a challenge is Day v. Sebelius. The Kansas legislature joined the lineup of permissive states, passing its particular statute in 2004. The statute was quickly challenged in federal court. The court, of course, was aware of the seven other states that previously had passed legislation to provide in-state tuition rates to illegal aliens: California, Illinois, New York, Oklahoma, Texas, Utah, and Washington. (The Maryland legislature had passed legislation to allow in-state tuition to illegal aliens, but the legislation was vetoed by the governor. At least two states had by then specifically passed statutes that denied illegal aliens the chance to gain resident tuition status: Alaska and Mississippi. The legislature of Virginia passed legislation prohibiting illegal aliens from receiving resident tuition, but the legislation was vetoed by the governor.)

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The court stated that it believed this was the first case to challenge the type of legislation passed by Kansas. The plaintiffs’ complaint consisted of seven claims for relief. The court spent some time analyzing the claims made by the plaintiffs due to arguments that the defendant, the state, had made about the confusing nature of the claims. In the first count, the plaintiffs contended that Kansas Statutes Annotated (Kan. Stat. Ann.) section 76-731a violated title 8, section 1621 of the U.S. Code. According to the plaintiffs, section 1621 prohibited any state from offering any postsecondary educational benefit, including in-state tuition, to illegal aliens. The plaintiffs further alleged that K.S.A. 76-731a did not meet the statutory loophole set forth in title 8, section 1621(d), which allows states under certain circumstances to provide eligibility for illegal aliens to state benefits, because it did not contain the express statutory language required by federal law. In the second count, the plaintiffs asserted that K.S.A. 76-731a violates title 8, section 1623(a). According to the plaintiffs, section 1623 prohibits any state from providing any postsecondary education benefit, including in-state tuition, to an illegal alien unless a U.S. citizen is eligible for the same benefit. The plaintiffs further asserted that section 1623 eliminated the application of title 8, section 1621(d). In the third count, the plaintiffs contended that K.S.A. 76-731a violated the comprehensive regulatory scheme enacted by the federal government to govern the admission of nonimmigrant aliens to the United States for the purpose of enrolling them as students at postsecondary educational institutions. They specifically pointed to SEVIS as being a comprehensive computerized system designed to track international students and exchange students (emphasis on “comprehensive”).10 The plaintiffs contended that K.S.A. 76-731a frustrated this federal purpose by allowing aliens to illegally pose as students at Kansas institutions of higher education while remaining outside the SEVIS registration system. In the fourth count, the plaintiffs claimed that K.S.A. 76-731a was preempted by the federal regulation of immigration. They suggested that Congress clearly intended to “occupy the field” in the area of regulating the provision of public benefits to aliens without a lawful immigration status. They asserted, “The power to regulate immigration is unquestionably an exclusively federal power, and any state statute that regulates immigration is unconstitutional and therefore proscribed. . . . States can neither add to nor take from conditions lawfully imposed upon the admission or residence of aliens in the United States. . . . [K.S.A. 76-731a] is preempted because it is impossible for a person who is an illegal alien or otherwise present in the United States to both receive postsecondary education under [K.S.A. 76-731a], and to comply with federal immigration law.” In the fifth count, the plaintiffs alleged that K.S.A. 76-731a created residence status for illegal aliens contrary to federal law. They asserted,

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“Congress has created a legal disability under federal law that renders illegal aliens incapable of claiming bona fide legal domicile in Kansas, notwithstanding the fact of physical presence or a subjective ‘intent’ to remain indefinitely in the jurisdiction.” They further alleged, “None of the members of the class of alien beneficiaries of [K.S.A. 76-731a] who are illegal aliens possesses federal authorization to remain in the United States for even the shortest period of time, and therefore cannot, as a matter of law acquire or possess the requisite intent to be a legal resident or domiciliary of Kansas. Kansas may not deem such non-citizens to possess such intent, nor alternatively waive such intent by exercise of its legislative powers.” By doing so, the plaintiffs argued, K.S.A. 76-731a violated the comprehensive scheme established by federal law for aliens. In the sixth count, the plaintiffs asserted that K.S.A. 76-731a impermissibly infringes on constitutional powers reserved to the federal government. They contend that the challenged Kansas law violates Congress’s power over the regulation of interstate commerce and foreign affairs. Finally, in the seventh count, the plaintiffs contended that K.S.A. 76731a violated the equal protection clause of the U.S. Constitution. The plaintiffs asserted that equal protection was denied them on the basis of the following argument: “Illegal aliens have been deemed by Defendants to be Kansas residents for the express purpose of affording such aliens state postsecondary education benefits to which they are not entitled under federal law. Defendants have further denied nonresident U.S. citizens Plaintiffs the identical postsecondary education benefits to which they are expressly entitled by federal law.” The district judge held that the plaintiffs, out-of-state students and parents, lacked standing under federal statute prohibiting states from offering in-state tuition to illegal aliens; that no private right of action was created by statute limiting illegal aliens’ eligibility for higher-education benefits based on residence; and the students and parents also lacked standing under the equal protection clause. In the wake of this ruling, the outcries, particularly from the political right, were loud and persistent, as exemplified by the following article:

Should it be cheaper for illegal immigrants to attend U.S. colleges than for U.S. citizens? Yes, according to lawmakers in California, Illinois, Kansas, New Mexico, New York, Oklahoma, Texas, Utah, and Washington. Illegal immigrants residing in these states are eligible for in-state tuition rates at state colleges and universities. These rates afford a significant cost savings compared to the tuition rates charged to out-of-state students. On average, an out-of-state student pays three times as much in tuition costs as an in-state student to attend the same school. In some states this means an out-of-state student pays as much as $40,000 more over four years.

With Friends Like These: Government Regulation of Academia The primary rationale behind in-state tuition rates is that students whose parents have been paying taxes into the state treasury for the past [eighteen] years—thereby providing revenue for that state’s colleges—should receive a break over out-of-state students. But the rationale has scant applicability to students who are illegal immigrants. Most states require illegal immigrants to reside in the state for only [two to three] years before becoming eligible for in-state tuition rates. In-state tuition for illegals is an increasingly popular concept among lawmakers. At least [twenty] additional states are considering legislation that would grant in-state tuition rates to illegal immigrants. Some U.S. senators are even considering extending in-state tuition for illegals to all fifty states. They’re doing so in clear defiance of congressional intent to make such preferential treatment unlawful. Title 8[,] Section 1623[,] of the U.S. Code (part of the Illegal Immigration Reform Act of 1996) provides in pertinent part: Limitations on eligibility for preferential treatment of aliens not lawfully present on the basis of residence for higher education benefits a) Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such benefit without regard to whether the citizen or national is such a resident. This act isn’t much of a deterrent. It’s estimated that the majority of the 125,000 illegal immigrants attending the nation’s colleges and universities are eligible for in-state tuition rates. In-state tuition breaks may not be the only benefit granted to some illegal immigrants seeking to attend U.S. colleges and universities. Thomas Sowell, Roger Clegg, and Ed Blum have noted recently that illegal immigrants who are members of preferred minority groups are entitled to other benefits unavailable to the vast majority of American citizens. At some schools, preferred-minority applicants are up to [one hundred] times more likely to be admitted than similarly situated non-preferred (i.e., Asian or white) comparatives. Affirmative-action programs at some schools are structured in a way that, beyond a minimum level of qualification, preferred-minority applicants are virtually guaranteed admission. Consider the advantage to the illegal immigrant residing in, say, Illinois, who is also a preferred minority: If he applies to an Illinois state school with a typical affirmative-action program, he’s dozens of times more likely to be admitted over a more qualified Asian or white U.S. citizen and will pay tens of

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Al-Qaeda Goes to College thousands less for tuition than a U.S. citizen from outside the state. As the comedian Yakov Smirnoff—a legal immigrant—might say, “What a country!” The preferences don’t end at the undergrad level. Illegal immigrants from preferred-minority groups are also preferred in law-school admissions. In fact, the American Bar Association recently sought to compel law schools to grant preferences to certain minorities; schools that failed to do so could lose their ABA accreditation. No law school is excused—even if it’s located in a state that has outlawed preferences (e.g., post-Prop. 209 California). Interpretation 211-1 of ABA Standard 211 makes the following breathtaking admonition: “The requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 211 (mandating diversity)”. In other words, “diversity” trumps the law, so schools better engage in preferences, or else. In the next several months, high-school seniors will begin the collegeapplication process in earnest. Many will soon discover that having a 4.0 GPA, 1500 SATs, and a dazzling extracurricular list means less than having the proper ethnicity. And being a U.S. citizen means nothing at all.11

Such protestations not withstanding, in 2007 the U.S. Court of Appeals for the Tenth Circuit affirmed the district court’s decision, holding the following: 1. There was no evidence of any causal relationship between the tuition cost, imposed on Kansas’ public universities by the statute allowing undocumented or illegal aliens to attend Kansas universities and to pay resident or in-state tuition rates, and nonresident tuition rates, as required for equal protection claim. 2. Nonresident citizen-students lacked standing to bring an equal protection claim. 3. No private right of action was created by the statute limiting illegal aliens’ eligibility for higher education benefits based on residence.12

In June 2008 the Supreme Court denied certiorari, allowing the ruling to stand. UNIVERSITIES ON THE FENCE Israel maintains a fence around its West Bank. As an academic fellow on terror of the Foundation for Defense of Democracies in June 2007 (see Chapter 6), I visited the fence line and later wrote the following observations.

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I recently spent ten days in Israel at the expense of the Foundation for the Defense of Democracies. Styled an Academic Fellowship on Terrorism, this “paid vacation” featured an up-close-and-personal peek at how the Jewish state deals with terrorists, a topic of no small interest to us Americans since 9/11. Parallels between our two countries are a little hard to find, however, Israel is about as big as New Jersey or perhaps Vermont, plus or minus some parts of New Hampshire. The beleaguered nation, surrounded by enemies armed to the teeth, somehow manages to remain a democracy. I doubt we Americans are ready to open our purses and packages for inspection every time we enter a mall or restaurant. Universal military service is not even on our federal agenda for discussion. One parallel did catch my eye, rolls of razor wire running parallel to a fence along the so-called West Bank of the Jordan. Similarly, Uncle Sam has started a fence along our border with Mexico. Our FDD contingent, forty-five professors strong, visited Israel’s largest Arab city, some few miles from the fence. At the town hall, the city manager gave us a little talk, then opened himself up to our questions. Of Arab descent but Israel-born, the fifty-something “mayor” confessed that he likes that fence. The barrier, which bears signs warning of “mortal danger” if you climb it, has reduced illegal immigration of Palestinians to his town substantially, he says. The small city’s unemployment rate approaches 30 percent. He blames much of it on illegals who marry local Israeli Arab girls and then either scarf up scarce jobs or add themselves directly to the unemployment rolls. Either way, he contends, they deplete scarce economic resources. Born, raised and educated in Israel, this Arab official worries about where his children are headed. His son, he says, is pro-Palestinian. Were this worried parent an African American, his son might label him an “Uncle Tom.”. However, he, himself, would choose to be a Palestinian citizen if a democratic Palestine becomes a real possibility. I don’t know if Mexican Americans along the Rio Grande and in San Antonio and El Paso and San Diego share any of this Arab city manager’s ambivalence about their futures and those of their children. I would not be surprised to discover that at least some are eager for the [United States] to stanch the flow of illegals into their borderland towns and cities. Like the Arab city manager, other Israeli officials report a decrease in cross-border incursions by would-be-bombers and other illegals, thanks they believe to their fence.

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Al-Qaeda Goes to College The border fence, an innovation that will not in any way impact the rights or lifestyles of U.S. citizens, may be an initiative for which the Israeli experiment is a valuable laboratory test case from which we Yanks can learn.13

I didn’t have to wait long to learn how at least some folks along the Texas–Mexico border felt about such a fence. Already back on October 26, 2006, President George W. Bush had signed the Secure Fence Act of 2006. In the president’s own words at the signing: The bill authorizes the construction of hundreds of miles of additional fencing along our southern border. The bill authorizes more vehicle barriers, checkpoints and lighting to help prevent people from entering our country illegally. The bill authorizes the Department of Homeland Security to increase the use of advanced technology, like cameras and satellites and unmanned aerial vehicles to reinforce our infrastructure at the border. We’re modernizing the southern border of the United States so we can assure the American people we’re doing our job of securing the border. By making wise use of physical barriers and deploying [twenty-first] century technology we’re helping our Border Patrol agents do their job.”14

The Department of Homeland Security (DHS) quickly acted upon the statute’s authorization and, by the time my article appeared in July 2007, was already building new fences along some parts of the border, while floating its plans for additional stretches along others. One such stretch of 370 miles was plotted along a levee that lies slightly inland from the Rio Grande River near Brownsville in southeastern Texas. According to a DHS spokesman, “There has been extraordinary dialogue with local officials and stakeholders in South Texas.” He added, “The federal government has the responsibility for securing our borders, and the American public rightly expects us to get the job done.” This latter assertion was driven by opposition expressed by two border-town universities to this particular stretch of fence, which the two schools claimed would cause a rift between different portions of their noncontiguous campuses.15 Specifically, the University of Texas at Brownsville and its partner Texas Southmost College were consternated to learn that their joint international technology, education, and commerce campus would wind up on the Mexican side of the proposed fence. Even more bizarre was that the Mexican consulate, which rented space on the tech campus would likewise wind up on the south side of the fence’s “border.”16 While this dispute festered, the border fence project proceeded, slowly at first, but then with increased energy. From California to New Mexico, National Guard troops and private contractors erected new stretches of the barrier. “The project got off to a slow start because of environmental

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assessments, land acquisition and fencing design that had to be completed before the start of construction.”17 According to the DHS, “Physical fencing is used in areas where the border is close to a ‘vanishing point’ where an illegal immigrant can easily blend into a larger population and move into the interior of the country.” The department goes on to explain: U.S. Customs and Border Protection (CBP) has created a toolbox of fencing solutions which include but are not limited to:

r r r r r

Vehicle bollards similar to those found around federal buildings “Post on rail” steel set in concrete with a mesh option Steel picket-style fence set in concrete Concrete jersey walls with steel mesh A “Normandy” vehicle fence consisting of steel beams

These designs were the result of CBP’s Fence Lab which evaluated nine lowcost fencing solutions that could be rapidly deployed along the Southwest Board.18

By December 2007, DHS was threatening legal action against landowners who refused access to DHS to conduct tests and surveys. “If CBP . . . determine that the land is suitable for fence-building, they will negotiate with the landowner on a purchase price. If these negotiations are unsuccessful, the government will return to court to seek title and possession and the court will determine the appropriate price.”19 On December 18, 2007, DHS won a major victory against environmental opponents of the fence in federal court. On September 29, 2007, the Army Corps of Engineers, on behalf of DHS, had begun constructing border fencing, an accompanying road, and drainage structures within the San Pedro Riparian National Conservation Area (SPRNCA), a reserve that the environmental organizations described as “a unique and invaluable environmental resource” and “one of the most biologically diverse areas of the United States.” The SPRNCA is managed by the Bureau of Land Management (BLM), which issued a perpetual right-of-way to DHS for the area of the fence project. Before granting the right-of-way, BLM completed an environmental assessment (EA), which concluded that the proposed fencing would have no significant impact on the environment when paired with certain mitigation measures, and that an environmental impact statement (IS) was therefore not required by the National Environmental Policy Act of 1969 (NEPA).20 The challenged fence construction required excavation on up to 225 of the SPRNCA’s 58,000 acres, and the proposed fence segments were intended to cover approximately 9,938 feet at the border when completed. After initially attempting to pursue administrative remedies within the BLM, the plaintiffs filed their action on October 5, 2007, and simultaneously

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moved for emergency injunctive relief to halt the construction of the fence within the SPRNCA. In support of their motion, the plaintiffs argued that BLM’s EA was inadequate and that NEPA required the preparation of a full IS. They also argued that the BLM’s grant of the right-of-way violated the Arizona-Idaho Conservation Act of 1988, which directs the BLM to manage the SPRNCA “in a manner that conserves, protects, and enhances the riparian area and the aquatic, wildlife, archeological, paleontological, scientific, cultural, educational, and recreational resources of the conservation area” and to “only allow such uses of the conservation area” that further the purposes for which it was established.21 After conducting a hearing on October 10, 2007, the court granted the plaintiffs’ motion for a temporary restraining order (TRO), finding that the plaintiffs had demonstrated a substantial likelihood of success on the merits with respect to their NEPA claims and that the balance of the equities favored the plaintiffs. In response to the court’s order, the defendants halted construction of the fence within the SPRNCA. Approximately two weeks later, on October 26, 2007, DHS Secretary Michael Chertoff published a notice in the Federal Register, waiving the NEPA, the Arizona-Idaho Conservation Act, and eighteen other laws with respect to the construction of the SPRNCA fence under the authority granted to him by section 102 of the REAL ID Act of 2005.22 Section 102 of the act gives the secretary of homeland security “the authority to waive all legal requirements” that he or she determines “necessary to ensure expeditious construction” of border fences and roads “to deter illegal crossings in areas of high illegal entry.” This provision also limits judicial review of claims arising from the secretary’s exercise of the waiver authority, and it allows the district courts to consider only those claims that allege a violation of the Constitution. In his Federal Register notice, the secretary stated that the area within the SPRNCA covered by the court’s TRO was “an area of high illegal entry,” that “[t]here [wa]s presently a need to construct fixed and mobile barriers” in the area, and that it was therefore “necessary” for him to exercise the REAL ID Act’s waiver authority “to ensure the expeditious construction of the barriers and roads that Congress prescribed.” Upon notification of the secretary’s waiver, the court vacated the TRO.23 The plaintiffs subsequently amended their complaint to allege that the waiver provision of the REAL ID Act violates the separation of powers principles embodied in articles 1 and 2 of the Constitution because it “impermissibly delegates legislative powers to the DHS Secretary, a politically-appointed Executive Branch official.”24 In response, the defendants moved to dismiss the plaintiffs’ amended complaint under rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. The defendants argued, on the basis of the Supreme Court’s “nondelegation” line of cases, that the REAL ID Act’s waiver provision is a constitutionally permissible delegation of legislative power to the executive

With Friends Like These: Government Regulation of Academia

branch because it provides the secretary with an “intelligible principle” that “clearly delineate[s] the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority”—that is, the secretary may only waive the legal requirements that he “determines necessary to ensure expeditious construction of the barriers and roads.”25 In support of their argument, the defendants also emphasized that “Congress may delegate in even broader terms” than otherwise permissible in matters of immigration policy, foreign affairs, and national security, because “the Executive Branch already maintains significant independent control” over these areas. Federal Judge Ellen Segal Huvelle held that “(1) the fact that each of [twenty] federal statutes waived by DHS pursuant to REAL ID Act’s waiver authority no longer applied to the extent that they otherwise would have with respect to construction of border barriers and roads within SPRNCA did not transform waiver into unconstitutional ‘partial repeal’ of those laws, and (2) the waiver provision was not unconstitutional delegation of legislative power.” Consequently, the government’s motion to dismiss the case was granted.26 Meanwhile, University of Texas at Brownsville and its partner college passed a resolution adamantly opposing the fence as proposed.27 The DHS wasted no time in suing the sister schools, seeking to exercise eminent domain over the stretch of land at issue. The suit dragged through the first quarter of 2008, when in late March the schools capitulated. In return, the U.S. Department of Homeland Security agreed to consult with the university on possible alternatives to a physical barrier that, as planned, would slice off a small portion of the campus, including its golf course. The department also agreed not to clear land or alter the campus without the university’s permission and to consider the effect any structure might have on the university’s educational mission, its environment, and the safety of its students.28 While this compromise ended the particular dispute with the University of Texas and the college that shares its Brownsville campus, DHS’s troubles in Texas were far from over. As this manuscript was being written, the Texas Border Coalition, “which includes just about every mayor and local Chamber of Commerce in the 1,200-mile Rio Grande Valley,” accused Michael Chertoff of failing to negotiate fair prices for the land the agency was seeking to seize.29 Already, back in March, the U.S. District Court for South Texas had told DHS it had an obligation to negotiate with landowners before exercising eminent domain.30 In May 2008, the Texas Border Coalition took the matter one step, and several thousands of miles, farther, initiating a lawsuit in the federal district court in Washington, D.C. At issue is the seventy miles of fence that DHS plans to pass through populated stretches of the Texas– Mexico border where the national boundary has historically been blurred, and where border patrol officers claim illegals can find safe houses and catch rides into the American heartland.31

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CONCLUSION In Part Two of this volume, I discuss in some detail the various ways in which Uncle Sam’s war on terror is financially benefiting both institutions of higher education and individual academics. The cornucopia of grants, contracts, and other benefits is bountiful indeed. But, as this chapter illustrates, the war on terror is a mixed blessing for our industry. SEVIS is emblematic of the increased level of regulation and bureaucratic red tape imposed on us by our government in the wake of the 9/11 attacks. The litigation involving tuition discounts for illegal immigrants and the controversial border fence indicates how dicey the legal environment of the business of educating our constituencies has become in the brave new world of the war on terror. Only if we believe that such intrusions by the federal government are for our own good can I conclude that these additional regulatory—and in the case of the fence, physical—incursions are part of the plus side of the war-on-terror equation.

5

Raiders of the Lost Relics In the 1981 film Raiders of the Lost Ark, the archaeology professor Indiana Jones has the following conversation with Marcus, representative of an unidentified American museum, following Professor Jones’s aborted expedition into Central America: “I had it, Marcus. I had it in my hand. Want to hear about it?” “Not at all. I’m sure everything you do for the museum conforms to the international treaties on antiquities.” “It’s beautiful, Marcus. I can get it. I’ve got it all figured out. There’s only one place he can sell it—Marrakech. I need two thousand dollars.” Jones opens a drawer in his lab table and extracts a cloth containing several small statuettes. “Look,” he urges them on Marcus. “They’re good pieces, Marcus,” he says. “They’re worth at least a ticket to Marrakech.” “Yes,” Marcus replies. “The museum will buy them as usual. No questions asked.” Pocketing them in his suit coat, he smiles wryly. “Yes, they are nice.”

Raiders is set in the mid-1930s. Fast-forward some sixty years. On September 4, 1997, five American citizens were injured in a triple suicide bombing in a jammed pedestrian mall in Jerusalem. Joined by four family members claiming emotional harm, in 2001 these terror victims sued Iran,

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alleging that the perpetrator—Hamas—had received training and support from the nation formerly known as Persia.1 Iran declined to defend itself. Six months after the suit was started, a U.S. district judge entered a default judgment in favor of the plaintiffs for $71.5 million in actual damages, plus an additional $37.5 million in punishment damages.2 Armed with this $109 million final judgment and faced with a defendant that is essentially judgment proof in the United States, Jenny Rubin and eight coplaintiffs, who like her had actually been injured in the blast, and their counsel began casting about for someone who could make good on the massive award. Their initial target was a fund belonging to the former Iranian embassy in Washington, which had been safeguarded since its closing by the U.S. Treasury Department. The federal government resisted. The plaintiffs prevailed but subsequently discovered to their chagrin that an earlier judgment creditor possessed a superior lien on the money.3 Nothing if not persistent, the plaintiffs next went after three Iranian accounts in the Bank of New York.4 The district judge awarded ownership to the Iranian banks involved in the action. Last of these initial attempts to make good their judgment was an attachment action against a piece of Iranian property near Lubbock, Texas. This was a home owned and occupied by an Iranian prince while he received fighter-jet training at Reese Air Force Base. This time the plaintiffs hit pay dirt, if only a modest vein. The district judge in Amarillo issued an order directing sale of the property on plaintiffs’ behalf. On January 4, 2004, the U.S. Marshals auctioned the property for $390,000.5 This was a start but hardly a great victory. Remarkably, where others might have quit, the coplaintiffs came up with a list of prestigious universities and museums in Chicago, Detroit, and Boston, which they hoped to raid for their winnings. Registering their judgment in federal district courts in Illinois, Massachusetts, and Michigan, they pleaded “on information and belief” that museums located in these jurisdictions held antiquities that still belonged to Iran. Concentrating their attack in the Northern District of Illinois and the District of Massachusetts, the coplaintiffs’ primary targets include the Field Museum of Natural History in Chicago, the Oriental Institute of the University of Chicago,6 Boston’s Museum of Fine Arts, and no fewer than five Harvard museums. In Massachusetts, the coplaintiffs moved for an order of attachment covering “all objects . . . that are the property of the Islamic Republic of Iran” held in Harvard’s Arthur M. Sackler Museum, BuschReisinger Museum, Fogg Art Museum, Semitic Museum, and Peabody Museum of Archeology and Ethnology.7 When I first wrote about these cases in 2007, none of the parties or their legal counsels was willing to talk to me, except on background.8 A typical response to my inquiries came from attorney Bill Iverson of the Washington, D.C., firm Covington and Burling, co-counsel for the defendants in the case styled Rubin v. Islamic Republic of Iran. “I’m sorry,” Iverson responded to

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my e-mail, “but because the [Museum of Fine Arts’ (MFA)] policy is not to comment on pending litigation matters, they would prefer that I not speak to you.” Iverson, however, was kind enough to send me the MFA’s official statement, which was representative of the defendants’ collective stance in the matter. Originally released in March 2006, it reads, “The Museum of Fine Arts, Boston has objects in its collection from what is modern day Iran. Most were excavated during official expeditions in the 1930s. Although sympathetic to the plaintiffs, the Museum is firmly of the conviction that these objects are the property of the museum, not Iran, and are therefore not subject to the claim asserted by the plaintiffs.” A 2005 story in the Harvard Crimson, obligingly provided by the director of Harvard’s news office, Joe Wrinn—who likewise declined to speak on the record—reported, “The plaintiffs only specifically identify a set of six limestone relief fragments from the site of Persepolis in southwestern Iran, on display on the third floor of the Sackler.” The Crimson piece continues, “In court filings, Harvard’s lawyers contend that none of the antiquities in its collections—including the six fragments in the Sackler, which were a gift from Grenville L. Winthrop, Class of 1886—are owned by Iran.”9 The article adds that objects at the University of Pennsylvania Museum, the Philadelphia Museum of Art, the Detroit Institute of Arts, and the University of Michigan are also ultimately in the plaintiffs’ gun sights. The current position is not one of much comfort to the defendants. Harvard and the MFA reacted to the plaintiffs’ move on their antiquities with a motion to quash the summonses and dissolve the attachments. Because the motions were based purely on the pleadings, no discovery occurred to actually determine which, if any, antiquities in any of the defendants’ facilities belong to Iran. Rather, Judge O’Toole’s September 30, 2006, decision turned upon complex issues of international law. O’Toole’s analysis began with the Foreign Sovereign Immunities Act10 (FSIA), which “defines the parameters of a foreign state’s immunity in the courts of the United States.” O’Toole concluded that any property of the state of Iran in the defendants’ possession was “immune from execution and attachment unless one of the exceptions”11 of the FSIA applied. No such exceptions pertained here, he found. So far, so good for the museums. But that was not the end of it. The judge had more to say. “The property’s immunity under the FSIA notwithstanding, the plaintiffs may still be able to obtain the antiquities pursuant to . . . the Terrorism Risk Insurance Act of 2002 [TRIA].” There’s the rub. Iran has been designated “a state sponsor of terrorism, and is therefore a ‘terrorist party’ as defined” under the TRIA. In that capacity, Iran’s FSIA immunity evaporates. Following a winding path, which required the parsing of related executive orders that successively blocked and unblocked Iranian assets around the 1980–1981 U.S. embassy hostage crisis, O’Toole decided that “if the plaintiffs are able to establish that the

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antiquities are indeed the property of Iran, those assets will be subject to attachment and execution pursuant to [the] TRIA.” Denying the defendants’ motions, the judge added, “The other reason the . . . defendants say the summonses should be quashed is that the property in question does not belong to Iran.” This, he cautioned, “is a disputed question of fact that remains to be resolved.” He ordered the parties to reappear before him on October 31. Instead, the defendants responded with a motion for reconsideration by O’Toole of his decision or, in the alternative, his certification of the issue up to the U.S. Court of Appeals for the Second Circuit. The judge revisited his decision and concluded that he had been correct: the antiquities were subject to attachment.12 This reaffirmation of his ruling moved the case into the discovery phase: just what Persian artifacts do the defendants hold and who actually owns them? THE MUSEUM OF FINE ARTS Boston’s MFA is one of America’s oldest museums. Founded in 1870, it is surpassed only by New York City’s Met in sheer size of its total collection. Writes the director Malcolm Rogers, “If the heart of a great museum is its collections, then the MFA is truly one of the greatest in the world. The Museum offers not only outstanding art, but also innovative and exciting ways for you to interact with these masterpieces and with fellow art lovers. From groundbreaking exhibitions and engaging programs to state-of-theart gallery space created by our landmark Building Project, from ancient Egyptian mummies to cutting-edge MFA Mobile wallpapers, there is always something new to explore at the MFA.”13 Turning to the relevant collections, the MFA’s Web site advises visitors, “The Art of the Ancient World collection ranks among the premier encyclopedic collections in the world, representing more than [seven thousand] years of art from Nubia, Egypt, the Near East, Cyprus, Anatolia, Greece, and Italy. The objects range in date from about 6500 b.c. to a.d. 600 and cover a geographical expanse from Afghanistan to Britain. In addition to architectural elements, sculpture, painting, vases, jewelry, and decorative arts, the department houses a numismatic collection of approximately [eight thousand] coins.”14 Drilling down into the MFA Web site, one can find such specific artifacts cataloged as the following: Mirror with Paired Sphinxes probably Persian, 12th–13th century Khorasan, Iran (Eastern) Cast bronze Classification: Metalwork Accession number: 72.4482

Raiders of the Lost Relics Candlestick Persian, Safavid or Qajar Iran Steel, cut and inlaid with gold Classification: Metalwork Accession number: 77.45 Fragment of trim from a coat Persian or Mesopotamian, Sasanian, 6th–7th century a.d. Findspot: Antinoe (excavation site), Egypt Place of Manufacture: Iran or Mesopotamia Silk; twill weave with complementary wefts and inner warps (samite) Classification: Textiles Accession number: 04.162015

THE ARTHUR M. SACKLER MUSEUM OF HARVARD UNIVERSITY The plaintiffs have been rather particular in targeting the Arthur M. Sackler Museum. Their focus is on donations of a Harvard alumnus named Grenville L. Winthrop, who died in 1943. Perhaps ironically, Winthrop was not best known, nor is he best remembered, for the antiquities in his vast private collection. In a press release issued in 2002, when a selection of his nineteenth-century paintings became a traveling exhibition from Harvard’s Fogg Museum, the university wrote: Grenville L. Winthrop (1864–1943) assembled a collection of more than [four thousand] works of art that was commensurate in stature to other New York collections such as those of Pierpont Morgan, Benjamin Altman, H. O. Havermeyer, Henry Clay Frick, George and Florence Blumenthal, and Robert Lehman. Although Winthrop’s interests as a collector ranged from Chinese Buddhist sculpture, to Peruvian gold, to prints by Durer, the ¨ collection’s areas of exceptional strength and depth include early Chinese works of art and [eighteenth- and nineteenth-century] British and French drawings, ceramics, and clocks. The Winthrop Collection’s holdings of [nineteenth-century] Western works of art include 700 British, French, and American drawings, as well as 180 paintings predominantly by French and British [nineteenth-century] masters as well as more than 100 sculptures. The collection’s holdings of early Chinese art include one of the largest, finest, and most comprehensive collections of archaic Chinese jades, as well as bronze ritual vessels that rank among the finest in the world. Winthrop rarely loaned these works during his lifetime.16

Like Boston’s MFA, Harvard’s Sackler Museum boasts a significant collection of ancient artifacts: “The collection of ancient art is comprised of over [twenty-four thousand] works of Greek, Roman, Etruscan, Egyptian,

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and Near Eastern art, and includes vases, sculpture in stone, metalwork, [terra-cotta], glass, glyptics, some wood, ivory, and bone, and a very large collection of ancient coins.”17 Concerning the Winthrop legacy itself, the following note can be found in the July–September 1944 issue of the American Journal of Archaeology: Winthrop Bequest One of the most important events for the study of art and archaeology in America in 1943 was the bequest to the Fogg Museum of Harvard University of the collection of Grenville L. Winthrop. A graduate of Harvard College in the Class of 1886, he had made important gifts to the Museum during his lifetime. . . . Reliefs from Persepolis The Winthrop collection, as received by the Fogg Museum, included five reliefs from the palace of Darius (521–485 b.c.) at Persepolis. . . . Two represent provincials in Median dress bringing offerings, and probably came from the stairway of Artaxerxes (359–338 b.c.); two portray heads of socalled “Immortals,” or archers of the Royal Guard, and may well date from the time of Darius himself, while the fifth is a relief of Ahura Mazda, supreme god of the Persians. The writer believes that this may well have been part of the decoration of the Hall of a Hundred Columns in the north part of the Persepolis platform, and if so, it is suggested that it is the missing part of the huge jamb of the south doorway. This building is attributed to both Darius and Xerxes (485–465 b.c.) and as the relief is unfinished, it may be of the time of the latter.18

Note that, while this 1944 article indicates that the reliefs were a small part of the total bequest to Harvard’s Fogg Museum, the plaintiffs’ pleadings place them in the Sackler. More recently, however, in conjunction with architectural alterations, the university grouped the Fogg, the Sackler, and the Busch-Reisinger Museum under the umbrella of “The Harvard Art Museum.”19 THE FIELD MUSEUM The Field Museum is one of many progeny of the World’s Columbian Exposition of 1892, marking the 400th anniversary of Columbus’s arrival in the Americas; the institution began life as the Columbian Museum of Chicago in September 1893, the “accumulation and dissemination of knowledge, and the preservation and exhibition of objects illustrating art, archaeology, science and history.” As such, it shares in the luster of America’s first “world’s fair” and the fair’s cultural influences, which persist to the present day.

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It was not until 1905 that the name was changed to Field Museum of Natural History, the first half of the new moniker in honor of its first major benefactor, department-store magnate Marshall Field, and the second half to better reflect its focus on the natural sciences. And it was not until 1921 that the museum moved from its original location in the Columbian Exposition’s Jackson Park to its present site. Today it is an important part of the lakefront Museum Campus, which also includes the John G. Shedd Aquarium and the Adler Planetarium. These three institutions are regarded as among the finest of their kind in the world and together attract more visits annually than any rival site in Chicago.20 That one of them should be the target of a lawsuit, grounded upon the proposition that significant artifacts in its collection were obtained through less than forthright means, is a startling and disturbing development in the rarified atmosphere of world-class museums. Biological and anthropological collections assembled for the Columbian Exposition form the core of the museum’s collections, but these core collections have grown through worldwide expeditions, exchange, purchase, and gifts to more than twenty million specimens: “The collections form the foundation of the museum’s exhibition, research and education programs, which are further informed by a world-class natural history library of more than 250,000 volumes.”21 THE ORIENTAL INSTITUTE “The Oriental Institute is a research organization and museum devoted to the study of the ancient Near East. Founded in 1919 by James Henry Breasted, the Institute, a part of the University of Chicago, is an internationally recognized pioneer in the archaeology, philology, and history of early Near Eastern civilizations.”22 Interestingly, the institute was the only defendant-institution to admit early in the litigations that Iran actually did own the items at issue. “It acknowledged the Persepolis Fortification archives and the Choga Mish materials were only on loan to the [United States] for cataloging and studying; ownership remained with the National Museum in Iran. . . . Thus, while the MFA could put forth a joint defense, based upon shared factual assertions, the Oriental Institute and the Field Museum found themselves arguing different positions.”23 In May 2008, the federal district court issued the following ruling in the case involving these latter two institutions: Rubin is not seeking general discovery about every conceivable asset of Iran’s in the United States. The only discovery requests that Iran has identified in its objection to the Magistrate Judge’s order are requests for information about Persian artifacts in the possession of the Field Museum

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Al-Qaeda Goes to College and the University of Chicago, and any disputes over the ownership of those artifacts. Thus, Iran’s concerns that subjecting it to “broad-based discovery” about its assets in the United States will cause “other states worldwide . . . to ignore long-standing principles of comity and sovereign immunity and issue broad assets discovery against the United States and other nations in the name of whatever policies the states wish to pursue” appears to be overblown. Rubin is not seeking “broad assets discovery,” but rather has limited its requests to information about a discrete collection of artifacts that it believes falls within an exception to the immunity otherwise afforded a foreign sovereign’s assets. Accordingly, Iran has identified no basis for concluding that the Magistrate Judge’s order was clearly erroneous or contrary to law, and its objection is therefore overruled. Iran shall produce the requested materials no later than June 27, 2008.24

Following the issuance of this court order, the plaintiffs petitioned the court to amend the order, arguing that the judge had misapprehended their motion, which sought broad discovery rights with regard to Iran’s U.S. assets. District Judge Blanche M. Manning responded favorably on June 23, 2008, ordering, “The remainder of the order is unaffected and Iran remains obligated to respond to the requests for discovery that were the subject of its objection, including discovery relating to its assets in the United States.”25 One other aspect of the court’s orders is well worth noting here. The appearance of the name “Ernst Herzfeld” in the judge’s May 23 decision is intriguing, since Herzfeld may very well have been one of the models for “Indiana Jones”: Herzfeld was born in Celle, Province of Hanover. He studied architecture in Munich and Berlin, while also taking classes in Assyriology, ancient history and art history. [From 1903 to 1905] he was assistant to Walter Andrae in the acclaimed excavations of Assur, and later traveled widely in Iraq and Iran at the beginning of the twentieth century. He surveyed and documented many historical sites in Turkey, Syria, Persia (later Iran) and most importantly in Iraq (e.g., Baghdad, Ctesiphon). At Samara he carried out the first excavations of an Islamic period site in 1911–1913. After military service during World War I he was appointed full professor for “Landes und Altertumskunde des Orients” in Berlin in 1920. This was the first professorship for Near/Middle Eastern archaeology in the world. [From 1923 to 1925] he started explorations in Persia and described many of the countries’ most important ruins for the first time. In 1925 he moved to Tehran and stayed there most of the time until 1934. He was instrumental in creating a Persian

Raiders of the Lost Relics law of antiquities and excavated in the Achaemenid capitals Pasargadae and Persepolis.26

Forced to flee Nazi Germany in 1935, this real-life Indiana Jones landed at Princeton’s Institute for Advanced Study from 1936 to 1944. Just prior to Herzfeld’s departure from Berlin, he went on an expedition on behalf of the University of Chicago. The Oriental Institute recalls it as follows: From the time of its barbaric destruction until a.d. 1620, when its site was first identified, Persepolis lay buried under its own ruins. During the following centuries many people traveled to and described Persepolis and the ruins of its Achaemenid palaces. Many of their observations were later condensed and published by George N. Curzon in Persia and the Persian Question (London and New York, 1892). But scholarly and scientifically planned work was not undertaken until 1931. Then Ernst Herzfeld, at that time Professor of Oriental Archaeology in Berlin, was commissioned by James H. Breasted, Director of the Oriental Institute of the University of Chicago, to undertake a thorough exploration, excavation and, if possible, restoration of the remains of Persepolis. Thus, Herzfeld, in 1931 became the first field director of the Oriental Institute’s Persepolis Expeditions. [From 1931 to 1934], assisted by his architect, Fritz Krefter, he uncovered on the Persepolis Terrace the beautiful Eastern Stairway of the Apadana and the small stairs of the Council Hall. He also excavated the Harem of Xerxes. When Herzfeld left in 1934, Erich F. Schmidt took charge. He continued the large-scale excavations of the Persepolis complex and its environs until the end of 1939, when the onset of the war in Europe put an end to his archaeological work in Iran. During the last years of excavating, the University Museum in Philadelphia and the Museum of Fine Arts in Boston had joined the Oriental Institute in order to cope with the tremendous work at hand.27

The statement on the institute’s Web page that “Herzfeld left in 1934” is a classic understatement. In fact, his contract was canceled amid allegations that he had stolen some of the artifacts unearthed at Persepolis.28 In 1944, as he planned his retirement from Princeton, Herzfeld sold artifacts. These artifacts have since been held by private parties, and Iran has proved itself vigilant in contesting their further sales. For example, in 2005, Denyse Berend, an eighty-five-year-old French woman who is the alleged owner of a stone carving of a guardsman, attempted to auction the piece through Christie’s in London. Berend claimed to have obtained the artifact at auction in 1974 in New York City. Iran initiated a legal action in Britain to block the sale and recover the piece.29 On February 1, 2007, the British judge ruled in favor of Berend.30 After engaging in a complicated analysis of conflict-of-laws principles (not unlike

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what the Rubin judges have been required to do) and deciding that French law ought to apply to determine ownership, Justice Eady stated: Naturally, if someone has obtained an artifact knowing it to have been stolen from a particular source, or suspecting it, there may well be policy reasons for placing obstacles in the way of his acquiring a good title by secret possession. Here, by contrast, the Defendant’s good faith having been conceded, she had no reason to keep the fragment she had bought under wraps, nor yet even to suspect that the then government of Iran had a claim to repossess it. There was obviously no question of dissimulation on her part or of any intention to deceive. It makes no sense that innocent purchasers of such objects should be required to go on for up to [thirty] years advertising the fact of their possession—just in case a third party at some stage decides to assert a claim.31

To the extent that the U.S. district courts accord any weight to Eady’s decision, the Berend case doesn’t bode well for the Rubin plaintiffs, for even the Oriental Institute contends that Iran is not the sole owner of the artifacts at issue.32 WHO DOES OWN ANTIQUITY? A more profound obstacle to the Rubin plaintiffs than the complex issues of entangled ownership of the artifacts upon which they hope to levy their massive judgment is the weight of historical trends. A heated debate is raging in the academy, in the art world, and in the international community of nations. On one side are those who contend that antiquities are the national heritage of the modern nations descended from the ancient empires that created the artifacts. Acquiescing to one such claim, in September 2007 Yale University agreed to return thousands of artifacts, excavated at Machu Picchu in 1912, to Peru. However, the transfer agreement is complicated, implicating aspects of the other side of the debate about who owns antiquity. Under the preliminary agreement, “some of the research-quality objects would remain on loan to Yale’s Peabody Museum of Natural History for further study. Yale would establish a program of scholarly exchanges for a period of at least three years. And Yale and Peru would jointly organize a traveling exhibition of the excavated material, with proceeds going toward the cost of building a museum and research center in Cuzco, for which Yale would serve as an adviser.”33 At the time, Yale’s President Richard C. Levin said, “We aim to create a world model for resolving competing interests in cultural property. This can best be achieved by building a collaborative relationship—one which involves scholars and researchers from Yale and Peru—that serves science and human understanding.”34 But then the government of Peru changed

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and the incumbents accused Yale of possessing some forty thousand Machu Picchu artifacts, ten times the original estimate under discussion in 2006 and 2007. Peru’s former first lady, Elaine Karp-Toledo, weighed in: “I fail to understand the rationale for Yale to have any historical claim to the artifacts.” The preliminary agreement, she complained, “reflects a colonial way of thinking not expected from a modern academic institution.”35 Peru changed its stance, demanding accounting for and return of all artifacts. The problem I see for the Rubin plaintiffs is that they are the odd folks out. Whether one subscribes to Yale’s view (i.e., antiquity is part of our common, shared human heritage) or Peru’s position that modern, sovereign nations and their particular peoples are entitled to their particular pieces of that human heritage to the exclusion of the rest of us, individual tort claimants have no place in the debate. As should be apparent, particularly from the May 2008 order, the legal issues involved in these cases, as well as the evidentiary issues posed by the convoluted histories of the numerous expeditions, many remote in time, permit a court—perhaps eventually the U.S. Supreme Court—to fashion whatever ruling it deems just. My prediction is that, at the end of the day, whether the museums or Iran prevail on the ownership issue, the American judiciary will prove itself reluctant to liquidate these collections to satisfy the Rubin judgment. Perhaps the plaintiffs’ best bet is a settlement in which the museums and their parent universities in collaboration with the Iranian government resolve the ownership issues between and among themselves, and then the assorted defendants jointly or severally settle with the plaintiffs, perhaps sharing the financial pain in proportion to their respective shares of the artifacts at issue. In any case, I would contend that the Rubin suits are a backhanded blessing to the universities holding these many invaluable artifacts, as the litigations will do much to clear away the cloud that has hung over the museums for decades. TWO POSTSCRIPTS As the Persian antiquity cases dragged on, in another part of the nation, another group of academic institutions was assisting the federal government in returning other antiquities to their country of origin:

ICE Returns More Than 60 Pre-Columbian Artifacts, Gold Pieces and Emeralds to Colombian Government U.S. Immigration and Customs Enforcement (ICE) officials today returned more than 60 pre-Columbian artifacts to the Colombian government that

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Al-Qaeda Goes to College were seized in 2005 following a joint investigation between ICE and the Broward Sheriff’s Office (BSO). The pre-Columbian era refers to a period preceding the exploration of the Americas by Christopher Columbus. The artifacts date as far back as 500 b.c. ICE agents and BSO officers discovered the artifacts during the execution of three federal search warrants at various South Florida locations. The artifacts, which include ancient pottery, gold pieces and emeralds, were stolen from Colombia and illegally smuggled into the United States. All of the artifacts were examined and authenticated by Florida International University (FIU) professor Dr. Carol Damian. The emerald pieces, which were recovered from the Gemological Institute of America in San Diego, CA, were also studied by the University of Maine’s Physics Department. The study was conducted to establish a baseline of the characteristics of the trace elements in the emeralds as measured by X-ray fluorescence to assist in the study of future pre-Columbian finds. The study determined that the measured emeralds were from the same source. Each emerald has tiny holes, which would indicate that they were drilled in order to create a necklace. “Those who think that they can rob a nation of its cultural heritage to line their pockets are mistaken,” said Anthony V. Mangione, ICE special agent-in-charge of the Office of Investigations in Miami. “We will continue working closely with our law enforcement partners and the U.S. Attorney’s Office to bring these criminals to justice. Our message: These priceless items are not for sale.” “The U.S. Attorney’s Office is pleased to have been involved in returning these precious artifacts to the people of Colombia,” said U.S. Attorney R. Alexander Acosta. “These rare treasures of past civilizations should be enjoyed by everyone, not by a few who can pay to create private illegal collections.” “This should send a message to international criminals and looters that federal and local authorities in this country work together, whether the crimes are foreign or domestic,” Sheriff Al Lamberti said. “Colombia is proud of the cooperation that we have with the United States government and we are very happy with the repatriation of these important artifacts that are part of our cultural heritage,” said Consul General Luis Ignacio Guzman. “We aim to keep working closely with the Department of State as well as with ICE to stop the illegal trafficking of pre-Columbian objects.” ICE agents arrested and charged [sixty-six]-year-old Italian national Ugo Bagnato. The U.S. Attorney’s Office for the Southern District of Florida

Raiders of the Lost Relics handled the prosecution of the case. Bagnato pleaded guilty to the sale and receipt of stolen goods and served [seventeen] months in federal prison. Bagnato entered the country under the Visa Waiver Program, under which citizens of selected countries—including Italy—are allowed to enter the United States using a passport in lieu of a nonimmigrant visa. He was deported to Italy in July 2007.36

My second postscript concerns the fate of the thousands of antiquities pilfered in Baghdad following the American conquest of the city in 2003. Some seven thousand pieces are believed to have been looted while the occupying forces focused on more pressing security matters in the fallen capital. In April 2008, some seven hundred items—roughly 10 percent of what had been taken—were recovered in Syria and returned to the Iraq National Museum. “This was a positive initiative taken by Syria, and we wish the same initiative to be taken by all neighboring countries,” Mohammad Abbas al-Oreibi, Iraq’s acting state minister of tourism and archeology, was quoted as saying. Al-Oreibi led the negotiations with Syria that led to the works’ return.37 As with SEVIS and the courtroom-based sorting of illegal aliens’ rights, described in the preceding chapter, so too is Uncle Sam’s intervention on the antiquities front a necessary evil, driving the improvement of the business practices of the higher-education industry. While Harvard and the University of Chicago might well wish they had never heard of Trudy Rubin, the two “megaversities” will emerge from the litigation on firm legal footings, while all of us in the industry learn a lesson about donors, owners, and the need to practice mature business policies in lieu of the arcane customs of colleges and universities in the hoary, harum-scarum times of Drs. Jones and Herzfeld.

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PART TWO

Benefits to Higher Education

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6

Counterterrorism Is Big Business on College Campuses The most famous photo of the September 11, 2001, terrorist attacks shows a billowing, black cloud of burning jet fuel climbing skyward, seconds before the Twin Towers imploded. In the days that followed, per my personal recollections in the introduction, individuals and our nation as a whole careened between crisis (the anthrax attacks) and comedy (such as the sugar qua anthrax scare in my university’s admissions office). But America wasn’t off balance for long. Less than a month after the 9/11 attacks, Uncle Sam struck back. The U.S. invasion of Afghanistan began on October 7th. Operation Enduring Freedom had a threefold mission: capture Osama bin Laden, destroy Al-Qaeda, and bring down the Taliban regime. It marked the start of America’s so-called “War on Terror.” It was followed in the spring of 2003 by the invasion of Iraq and the unseating of Saddam Hussein. Although President George W. Bush declared victory just weeks after the Iraqi incursion, the sad fact is that the United States remains mired in both Afghanistan and Iraq as this book goes to press. The black cloud of September 11, 2001, seems still to hover over a nation at war and also deeply in debt. Still, at the risk of sounding callous, every cloud does have its silver lining. With the start of hostilities, a cornucopia of grants, contracts, and curricular opportunities opened and poured forth onto America’s campuses; the flow has not abated. The Saudi Arabian bounty, detailed in Chapter 7, is but the most dramatic example.

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And while university faculty are almost automatically labeled “liberal,” Uncle Sam has had no difficulty recruiting academics, as Chapter 8’s chronicle of social scientists in the service of our Afghan and Iraqi expeditionary forces illustrate in greater detail. This chapter is intended to provide a broad sampling from the many research projects, training programs, advanced degrees, and other activities across the spectrum of our industry. FOUNDATION FOR DEFENSE OF DEMOCRACIES SENDS SCHOLARS TO ISRAEL Let me begin with a personal case in point: on May 26, 2007, I was among forty-four academic fellows on terrorism who traveled together to Israel for ten days of briefings and base tours at the expense of the Washingtonbased think tank the Foundation for the Defense of Democracies (FDD).1 According to one Internet observer, “The well-funded, well-connected FDD has quickly become one of the leading institutions in neocon’s web of think tanks and policy institutions. Like all neocon institutes, FDD embraces a militarist pro-Likud position with respect to Israel and Middle East political affairs.” The observer goes on to identify as some of FDD’s high-end donors: “Leonard Abramson of U.S. Healthcare; New York financier Michael Steinhart; [and] Edgar S. Bronfman Sr., patriarch of Seagram’s.” The FDD’s own Web site (http://www.defenddemocracy.org) lists as its board of directors Steve Forbes, Jack Kemp, and Jeanne Kirkpatrick, while “distinguished” advisors include Senator Joseph Lieberman, former FBI director Louis Freeh, and Newt Gingrich.2 The FDD’s academic fellows on terrorism are something of a who’s who in their own right. The call for 2007 applicants said, “The Foundation for the Defense of Democracies is seeking university professors and lecturers who serve in a teaching capacity to participate in the FDD’s Academic Fellowship Program.” According to David Silverstein, former vice president for campus education and grassroots programs for FDD, the program garnered a bumper crop of applications for its fifth annual harvest. The forty-four fellows selected following a round of telephone interviews included representatives of such prestigious institutions as Auburn, Duke, Georgetown, and University of California at Berkeley.3 Little wonder that they came from all across the country. The FDD promised, “The course of study takes place in the classroom and in the field with lectures by academics, diplomats, military and intelligence officials, and politicians from Israel, Jordan, India, Turkey and the United States. It also features visits to military bases, border zones and other security installations to learn the practical side of deterring terrorist attacks.”4 For ten remarkable days FDD delivered, as we fellows feasted our eyes on facilities to which even most Israeli citizens are denied access, such as a prison housing convicted terrorists.

Counterterrorism Is Big Business on College Campuses

The goal of the program is to encourage sympathetic faculty to teach and write about Israel and the war on terror in a sympathetic way. Herewith one of my own weekly newspaper columns, published in the weeks following my return from the fellowship trip:

Sorting Out the Israeli Situation The State of Israel was born the same year I was: 1947. My strongest impressions of that painful birth (Israel’s, not mine) come from the 1960 Otto Preminger film, based on the Leon Uris best-seller Exodus. As I recall that blockbuster epic movie, it accurately depicts the fact that the Jewish Haganah, especially an offshoot called “The Stern Gang,” used terrorist tactics to persuade the Brits to abandon their Mandate. For [sixty] years the Israelis have lived with and adjusted to Palestinian terrorism. Some might see some irony in that. If turnabout is fair play, then a second irony is contained in the struggle being played out now between Fatah and Hamas, the two main Palestinian factions, in the Gaza Strip. Readers may recall that Hamas, which our government deems to be a terrorist organization, won Palestinian elections last year. The more moderate Fatah brought this on itself because of its corruption. Up until two weeks ago the two factions were sharing power. Then, just about the time I returned from my Israel trip as a fellow of the Foundation for Defense of Democracies, Hamas turned its terror-tactics on Fatah and took complete control of Gaza. Hamas also has been firing nasty little homemade rockets, called qassams, into southern Israel. Meanwhile, in the West Bank, power is shared by Fatah with the Israeli army, which still maintains a powerful presence there. The Fatah leadership in the city of Ramallah say they are through talking with Hamas. If the two factions cannot reconcile, then what was once considered a two-state solution—the two states being Israel and Palestine—may become a threestate solution: Israel, Gaza, and the West Bank all being independent entities. This could work where the West Bank is concerned. It’s hard to imagine Gaza as a separate state. True, some states as small or smaller do exi[s]t, including Luxembourg, Monaco, and some independent South Pacific island nations. But right now Gaza’s 1.5 million people are surviving on U.N. and [nongovernmental organization] aid shipments. Besides being an economic black hole, a Gaza ruled by Hamas, which continues to deny Israel’s right to exist, will never be acceptable to the Jewish state.

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Al-Qaeda Goes to College Ten days in Israel don’t make me an expert on the current situation, anymore than seeing Paul Newman strut his stuff as a Haganah operative in Exodus made me an expert on Israel’s birth. The intractability of the IsraeliPalestinian struggle of the past six decades is in many respects as baffling to me as the centuries-old struggle between the Protestants and Catholics in Northern Ireland. The hardest things for me—and maybe for you—to sort out are the political issues from the emotional elements: how much is either situation sustained by the grievances, hatreds and vendettas accumulated year after year? The second hardest question to answer may be: Why are we involved? The same query is being posed, principally by the Democrats in Congress, with regard to Iraq. One answer—in a word—is oil. A quick statistic: During the first quarter of this year, I’m told, we Yanks bought some 75,000 or so hybrid cars. During the same period, Ford Motor Company alone sold around four times that number of pickup trucks and SUVs. If we want to keep driving our gasguzzlers, even at $3.00 a gallon, we need a reliable source of oil. The Middle East is where most of that oil is. Second, if Islamic radicalism is going to be supplanted by democracy and capitalism, then Uncle Sam is stuck in the Mid-East for the foreseeable future, and he had better stand by the only genuine democracy/reliable ally he has in the region. Some say that striving for a democratic Middle East is a fool’s game. They may be right. All I can say is that in the [sixty] years since Israel and I were birthed, we’ve witnessed a peaceful end to both the Cold War and South African Apartheid. If we flawed humans could bring down the Berlin Wall without a nuclear holocaust and end Apartheid without a bloodbath, then anything is possible.5

CAL STATE CUED UP FOR A COOL THREE THOUSAND–PLUS As my column suggests, the FDD experience was extraordinary. No academic could hope to see and hear on his own what we forty-five fellows experienced under the foundation’s auspices. I personally learned more in those ten days about the challenge of sustaining a vibrant democratic society within the confines of a permanent national counterterrorism program than from all the many books I’ve read on the subject. Even the likes of FDD fellow Mark T. Clark, director of National Security Studies at Cal State, San Bernardino,6 was impressed by the fellowship trip. And Clark isn’t easily impressed. He’s been in national security studies since back when the war

Counterterrorism Is Big Business on College Campuses

was still cold. Holder of a Ph.D. in defense and strategic studies from the University of Southern California, Clark chuckled ruefully, recalling how he started at Cal State in 1989, the year the so-called evil empire began its rapid disintegration. The Soviet Union was his program’s focus. There followed an economic downturn, a string of base closings, and a loss of student interest. Clark’s program slipped to about thirty students per annum. “We had to shift gears,” he remarked wryly. He added, “The upsurge in our program began before 9/11, which only accelerated it.” Today some eighty graduate students are working their way through the program, which places a heavy emphasis on languages. Clark said (in English, my only language), “I speak Russian and read classical Greek, but you can guess which languages get promoted these days. Arabic, first and foremost, followed by Pashto and Urdu,” he added. Even sweeter than the surge in students was a multiyear, multimilliondollar grant awarded in the fall of 2006 by the Office of the Director of National Intelligence (ODNI) for the establishment of the Intelligence Community Center of Academic Excellence. Styled the CSU-ACE, the center is actually a consortium of seven Cal State campuses. “I wrote the grant application a year ago,” explained Clark. “We were one of six institutions that got funded, and the only one which got the full amount,” which he pegged at more than $3 million. All in all, ODNI has so far funded ten such centers since 2003 and plans to support a total of twenty by 2015. Since finding its seat at the ODNI banquet table, Cal State has not been shy about touting its credentials. An April 2007 press release announcing CSU-ACE crowed, “Cal State bumps Ivy League in security role.” The lead read, “When Britain needed analysts and agents for its spy services in World War II, it turned to Oxford and Cambridge. The CIA long followed a similar model, recruiting top officers from influential East Coast families and agents on Ivy League campuses. But in the wake of the 2001 terrorist attacks, the nation’s intelligence agencies are seeking applicants with more diverse cultural and linguistic backgrounds.”7 The piece continued, “And a consortium of universities headquartered at Cal State San Bernardino hopes to fill the need. . . . The curriculum concentrates on foreign language study, critical thinking and writing, national security and intelligence studies and graduate studies in related programs. Top students also will receive scholarships for foreign study, said Mark Clark, the consortium director.” The largesse does indeed trickle down, Clark assured me. “If students show a high level of interest we send them abroad for up to $5,000. I insist they use it for languages. Currently, we have three studying in Spain, six in Morocco, one in Brazil and one in Turkey.” While the funding and the student interest are great, Clark added, “I’m in it for the adventure.”

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DEL VAL COLLEGE FIGHTS AGRO-TERRORISM WITH FUNDS FROM DOWN UNDER There was a time when farmers drove their trucks through America’s towns and cities, hawking their fresh-picked produce. The hard fact is that today we are eating seafood from Southeast Asia, fruit from Mexico and Chile, beef from Australia. With the globalization of agribusiness, the list of threats to our food supply is as long as the Klumps’ grocery order: pesticideladen peapods, drug-laced catfish, filthy plums, and crawfish contaminated with Salmonella bacteria from China, avian flu in poultry from Southeast Asia and Eastern Europe, mad-cow disease, botulism, and anthrax in beef from a variety of sources.8 Though some of the worst of these threats, such as mad-cow disease and avian flu thankfully have not yet reached the United States, and while those that have were not (so far as we know) the results of terrorist activities, still 85 percent of Americans polled said they believe that a terrorist attack on our global food chain is likely.9 Tom Kennedy, director of the Food and Agribusiness MBA program at Delaware Valley College in Doylestown, Pennsylvania, fears these folks may be dead right. “The system is very porous,” he said. Consequently, “Food security has now become food defense.” Kennedy, a lanky, gray-haired Irishman, first became involved in “food defense” at St. Joseph’s University in Philadelphia, where he was a principal investigator on a $1.8 million Food and Drug Administration grant awarded under the 2002 Bioterrorism Act. The goal of the grant was to educate executives up and down the food chain, as well as first responders, who might have to deal with an attack on our food supply. How vulnerable are we Americans? Kennedy explained: With profit margins razor thin, the food industry operates on a just-in-time delivery model. This means there’s only a three-day food inventory in most parts of the country. Here on the east coast we have the greatest population densities and largest port facilities. Just imagine an anthrax attack on the food center in the port of Philadelphia. Do you remember when a little bit of anthrax shut down the Hamilton, New Jersey, post office for years? [See the introduction.]

So, when Tom Kennedy moved from St. Joe’s to Del Val College in eastern Pennsylvania’s Bucks County three years ago, he brought along his commitment to protecting the American public from agro-terrorism. “After 9/11, I wondered what an ordinary guy like me could do. I’ve since found out there is a lot.” Del Val College is unique among the hundreds of colleges and universities in eastern Pennsylvania. Some 1,600 undergraduates, plus a couple of hundred grad students, study everything from horticulture (which makes

Counterterrorism Is Big Business on College Campuses

for a gorgeous campus) to dairy farming. The six-hundred-acre campus just south of Doylestown includes the cornfields where movie director M. Night Shyamalan filmed Signs. Kennedy continues to work with colleagues at St. Joe’s, developing what he calls “tabletop exercises.” Food industry personnel and first responders are brought together and presented with a food product, a contaminant, and a scenario, then work to solve the situation. Last time I talked to him, the latest simulated threat was to the dairy industry. Kennedy trekked the sixty-five participants through Del Val’s dairy barns to give them the feel of the business. “Some of the Philadelphia police had never been on a farm,” he chortled. Recently, he went international, taking on a study of Philadelphia’s port facilities, the project being partially funded by sources in Australia. He won’t say how much the Aussies have kicked in: “that’s proprietary.” Kennedy added that he wishes that information on U.S. food inspection and security practices were equally proprietary. “We’re a democracy,” he explained. “Under the Freedom of Information Act, anybody can get a lot of helpful information, if food is the target.” He added, “We can’t build walls around our farms.” I looked out the window of his car, as we toured the Del Val campus, and noted the cattle munching grass right along the highway—point taken. Add one more threat to those facing our intellectual property, lab animals, and museum antiquities. RIDER UNIVERSITY’S COMPUTER AND INFORMATION SCIENCE DEPARTMENT HELPS UNCLE SAM DRINK FROM THE FIRE HOSE Rider University is one of three universities sharing $1 million in funding, which the U.S. Congress approved in the fiscal year 2006 Science, Commerce, Justice and State Appropriations Bill for the establishment of a Cyber Crime and Forensics Institute. Rider joined East Stroudsburg University of East Stroudsburg, Pennsylvania, where the institute is headquartered, and Drexel University of Philadelphia, in the multi-university, cross-disciplinary program that addresses issues related to computer fraud and forensics that are vital to law enforcement at all levels of government. Rider partnered with the two Pennsylvania universities through its Center for Business Forensics. The Cyber Crime and Forensics Institute seeks to fulfill three objectives: (1) education and development of future computer forensics practitioners for U.S. law enforcement; (2) assistance to law-enforcement agencies in personnel training and expert resources for consultation and analysis; and (3) cross-disciplinary, state-of-the-art research in computer forensics. “Rider University’s Center for Business Forensics is proud to join East Stroudsburg University and Drexel University to create the new Cyber Crime and Forensics Institute,” said Dr. Mordechai Rozanski, president of Rider University. “Building on our faculty expertise in data mining, computer

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security, e-commerce, forensic accounting, fraud investigation and business valuation, we will collaborate to expand knowledge, develop standards and educate the next generation of computer forensics professionals to combat computer fraud and abuse. We offer sincere thanks to Senator Jon Corzine [now governor of New Jersey], Senator Frank Lautenberg and Congressman Rush Holt of New Jersey for their active support of this project.” Interest in computer forensics soared in the early 2000s due to the abuse of computers and related communications technologies, including the Internet. The use of computers is criminal when offenders release debilitating viruses, stalk and harass, distribute child pornography, and commit fraud involving commerce transactions. Terrorism is only one aspect, albeit a significant one, of this phenomenon. The participating institutions developed a joint undergraduate and graduate degree program that provides students with training toward a bachelor’s degree in science and a master’s degree in computer forensics and computer security. The institute draws on the strengths of the participating institutions: an existing bachelor of science in computer security, existing curricula and courses in fraud and forensic accounting, cyber forensics, and criminal justice. Dr. William Amadio, director of Rider’s Center for Business Forensics, said, “The Cyber Crime and Forensics Institute will prepare our students to implement the policies, organizational structures, practices and systems necessary to address the threats of fraud and cyber crime in the twenty-first century.” “The funding is supporting the development of concentrated programs in accounting and computer information systems, along with enrichment of other business management curricula,” Amadio added. “In addition, we strive to bring practitioners into the classroom and take students and faculty into the workplace in order to provide a truly cooperative program of education and research.” Dr. Robert Dillman, president of East Stroudsburg University, similarly expressed gratitude for efforts of Senator Arlen Specter, former senator Rick Santorum, and Congressman Paul Kanjorski in securing funding for the creation of a Cyber Crime and Forensics Institute in East Stroudsburg. “Our vision for making Monroe County home to a national ‘center of excellence’ in the field of computer security has been realized through their efforts. As the first university in the United States to provide undergraduate degree programs in computer security, we look forward to providing the training and tools necessary for federal, state and local enforcement communities to fight crimes committed through the use of computers,” said Dillman. “Drexel University is pleased to bring its expertise to the collaboration,” Drexel president Constantine Papadakis echoed. “The Institute has the potential to become an important resource for law enforcement agencies and security professionals.”

Counterterrorism Is Big Business on College Campuses

The institute is also providing law enforcement support and public outreach, including certificate programs for law enforcement personnel and security professionals, as well as development tracks for law personnel with prior academic preparation. In the area of standardization and research, the institute conducts and leads research in computer forensics–related areas. Research topics will include steganography, reverse engineering, mobile computing and cyber crime, intellectual property theft, investigative and criminal methodologies, and computer forensics education. The Rider Center for Business Forensics, located in the College of Business Administration, takes a multidisciplinary approach in the instruction of undergraduate and graduate students, as well as professional development programming for corporate, law enforcement, and government organizations. The accounting and computer information systems departments and the law and justice program provide faculty expertise.10 Beyond the degree and certificate programs, beyond the workshops and seminars, lies the realm of research. Amadio has a patent pending. The application’s title is a mouthful: “Query Construction for Semantic Topic Indexes Derived by Non-negative Matrix Factorization.” The summary states: Briefly stated, in accordance with embodiments of the present invention a method, system and machine-readable medium are provided suitable for processing bodies of documents or other compilations of intelligence and accessing concepts of interest. For convenience in description, each item being indexed is referred to as a document irrespective of its physical form or electronic format. The documents are first explored and summarized. . . . W represents the semantic topics contained in the body of documents. . . . Users construct a query by assigning weights to semantic topics within W. A user is provided with data responsive to the query, the data being indicative of a value obtained by evaluating the body of documents or newly arrived documents against the query. Each user may in turn provide input information used to refine values in the query in accordance with the user’s evaluation of the efficacy of the evaluation against the query. Any document that does not result in data indicative of significant similarity with any semantic topic in W is flagged so that a user may make a manual review.11

Amadio turned this into English for me in an August 13, 2008, interview. “In the prosecution of white-collar crime cases, a multitude of documents are involved. The first thing required is to filter the relevant from the irrelevant. Then prosecutors want to examine the relevant ones. Among the things that my method clarifies in such a case are a timeline of events, the relationships among the players, and the relationships that exist among the multitude of facts.” In other words, Amadio’s patented search method enables investigators and prosecutors to drink from the fire hose: “Another

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use for my invention is intelligence gathering. Here, the need is to evaluate the contents of an ongoing stream of communications. Again, the investigator wants to identify what is relevant and analyze, while filtering out the white noise.” Amadio explained, “My concept is that the combination of words used in a document can be used as a proxy for the content of the document. I deal with a number of factors, such as synonyms and polysemy, that is, the phenomenon of people using the same word in different ways.” He continued, “There is enough regularity in word patterns that it can be captured by computer analysis and a mathematical reduction, leaving you with the essential combination of words needed to filter out the noise and leave the investigator with the essential documents.” The computer information systems professor’s invention may be particularly important if, as some argue, the primary terrorist threat is no longer posed by Al-Qaeda, but rather by myriad small, ad hoc organizations and violent individuals. Marc Sageman, author of Leaderless Jihad, has commented on a paradigm shift in counterterrorism research, which he advocates, The process of radicalization is still going on but now proceeds in a hostile, post-9/11, wired environment, resulting in a social structure comprised of disconnected groups. . . . I show how the Internet has enabled a new wave of terrorist wannabes, who now constitute the main—but not the entire— threat to the West. However, this new wave has been completely neglected in recent analyses of terrorism; I can find no other source providing a comprehensive examination of this new phenomenon. This is why my book is focused more on the new than the old. Missing the evolution of the threat condemns us to keep fighting the last war.12

Amadio’s patent appears to be tailor-made to meet this paradigm shift.

JUMPING ON THE BANDWAGON When I spoke with Kalu N. Kalu, associate professor of political science and public administration at Auburn-Montgomery, in late July 2007 he had just returned from a two-week trip, which included a conference in Abu Dhabi and stops in Singapore and Malaysia. He was wrapping up a course on globalization at the Air War College, before spending the final two weeks of his summer at Yale’s MacMillan Center for International and Area Studies, where he’s a research fellow. Kalu was also a 2007 FDD fellow. With those credentials, he struck me as someone who might see the national security and counterterrorism forest and not merely a few of the trees.

Counterterrorism Is Big Business on College Campuses

“It’s a growing business,” he assured me. “Lots of schools and disciplines are starting programs on national security and tying them to globalization and terrorism.” While some institutions have long traditions of teaching these topics, “some are simply jumping on the bandwagon,” he added. “This is a very rich opportunity,” he continued. Pedagogically, “it removes some of the dryness and drudgery of international relations theory. New security situations open the way for new paradigms of intellectual inquiry.” A quick review of recent literature confirmed his assertions. From Saudi Arabian mega-gifts and grants (see Chapter 7) to National Institutes of Health grants for bioterrorism defense to the Pat Roberts Intelligence Scholars Program (see Chapter 8), which recruits anthropologists for the CIA, counterterrorism is big business on American campuses in the post-9/11 world.

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7

The Saudi Arabian Windfall It is widely known that the overwhelming majority (fifteen of nineteen) of the 9/11 terrorists were Saudi Arabians. This fact did not go unremarked in their homeland. The Saudi public relations and philanthropic campaign commenced almost immediately after 9/11. Saudi Arabia’s 2005 gift of $20 million to Harvard University seems a mere drop in that Ivy League institution’s very deep endowment bucket. However, neither is $20 million just peanuts. In the words of the Boston Globe, “A Saudi Arabian prince who is one of the world’s richest people is giving $20 million to Harvard to establish a university-wide program in Islamic studies, Harvard officials said yesterday.”1 The story went on to note, “Prince Alwaleed Bin Talal, whose net worth was estimated by Forbes magazine this year as $23.7 billion, is also donating $20 million to Georgetown University in Washington, D.C., to promote Muslim-Christian dialogue and understanding.”2 Georgetown’s public relations office issued the following communiqu´e in December 2005:

Georgetown University announced today that it has received a $20 million dollar gift from HRH Prince Alwaleed Bin Talal, an internationally renowned businessman and global investor, to support and expand its Center for Muslim-Christian Understanding (CMCU). The Center, part of the Edmund A. Walsh School of Foreign Service at Georgetown, is an international leader

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Al-Qaeda Goes to College in inter-religious scholarship and research, in particular Islamic studies and Muslim-Christian relations. The Center will be renamed The HRH Prince Alwaleed Bin Talal Center for Muslim-Christian Understanding. This endowed fund is the second largest single gift in Georgetown University history. “We are deeply honored by Prince Alwaleed’s generosity,” said Georgetown University President John J. DeGioia. “This gift will deepen Georgetown’s ability to advance education in the fields of Islamic civilization and Muslim-Christian understanding and strengthen its presence as a world leader in facilitating cross-cultural and inter-religious dialogue. At this time of world conflict, Georgetown is committed to build upon our role as a Catholic, Jesuit institution in fostering greater understanding among religions around the word.” “This generous gift reflects the commitment of Prince Alwaleed to interreligious understanding in the Muslim world and the West. It will enable the Center in these critical times to significantly expand its programs, influence and impact both here and overseas,” said Dr. John L. Esposito, Founding Director of the Center for Muslim-Christian Understanding. “I am pleased to support the Center for Muslim-Christian Understanding. It is vital for the monotheistic religions to reach a common ground of understanding and to gain knowledge about what unites our civilizations,” said Prince Alwaleed. “We are determined to build a bridge between Islam and Christianity for tolerance that transcends cultural and geographical boundaries.” Prince Alwaleed’s gift will allow the Center, founded in 1993 as the only program of its kind to build stronger bridges between the Muslim world and the West as well as between Islam and Christianity, to strengthen its mission. The founding of the Center was made possible through the initiatives and generous support of Hasib Sabbagh, a longtime supporter and former member of the Georgetown University Board of Directors. The gift will endow three faculty chairs, expand programmatic and academic outreach activities, provide new scholarship support for students, broaden opportunities for research and policy discussions and expand library facilities. The professorships and scholarships funded by HRH Prince Alwaleed’s gift also will be named in his honor. Prince Alwaleed, Chairman of the Kingdom Holding Company and a member of the Saudi Royal Family and one of the world’s leading philanthropists, supports many educational and humanitarian initiatives. He recently donated $20 million to the Louvre in support of its collection of Islamic art and created the first Centers for American Studies and Research in the Arab World at the American University of Beirut and the American University in Cairo. He has also made donations to [the] President George

The Saudi Arabian Windfall H. W. Bush Sr. Scholarship fund established by Phillips Academy, the Carter Center for Peace and Health Programs in Africa, and given substantial aid to the Tsunami victims.3

This latter gift has not gone unremarked, albeit only in 2008 did a member of Congress take an overt interest in it. In February 2008, the Washington Post reported, “A Virginia congressman has asked Georgetown University to explain how it used a $20 million donation from a Saudi prince for its academic center on Muslim and Christian relations. Rep. Frank R. Wolf (R) sent a letter yesterday to university President John J. DeGioia expressing concern about the donation and asking whether the Prince Alwaleed bin Talal Center for Muslim-Christian Understanding has ever produced any reports critical of Saudi Arabia.”4 Congressman Wolf’s letter to Georgetown’s President DeGioia, dated February 14, 2008, reads as follows:

I write today to share with you my long-standing concerns about the influence and activities of the Government of Saudi Arabia, both within its own borders, in America, and around the world. This concern was heightened by the recent Washington Times article (enclosed) reporting about Saudi Prince Alwaleed bin Talal’s $20 million donation to Georgetown University’s Center for Muslim-Christian Understanding. The article attempted to provide details about this donation and the center’s operation, but I found that the story raised more questions than were answered. Some observers quoted in the article openly question whether the center’s academic independence could be compromised by this gift. I would appreciate your assistance in providing information about the center’s mission at Georgetown in the context of its training program for U.S. foreign service personnel, but before I outline my questions in that matter, it may be helpful if I first explained my concerns about the Saudi government. Despite agreements reached between the Saudi government and the [United States] to improve religious freedom and human rights in Saudi Arabia, the Saudi government’s promises remain unfulfilled. The Saudi government continues to permit textbooks to contain inflammatory language about other religions. Restrictions on civil society and political activists continue to be pervasive. No changes have been made to the underlying legal authority relating to non-Muslim worship that the Saudis have relied on to enforce these rules. The Saudis have cleansed their own country of religious liberties by severely restricting public religious expression to their interpretation and enforcement of Wahhabism. Since the September 11, 2001, terrorist attacks, there also have been reports of individuals and institutions associated with the Government of

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Al-Qaeda Goes to College Saudi Arabia financing activities that allegedly support Islamic militants and extremists throughout the world. The majority of the 9/11 hijackers were Saudi nationals. These concerns have led me to take a number of steps to identify and counter the level of negative influence that Saudi policies are having on the world. I have asked the Government Accountability Office (GAO) to investigate the effectiveness of the revolving door that senior officials are required to go through before lobbying for the government of a country where they served. I was so troubled after reading Lawrence Wright’s “The Looming Tower,” which illustrates in disturbing detail the nature of Saudi activities around the world, that I have begun circulating copies to my colleagues in Congress. Saudi Arabia only constitutes 1 percent of the world’s Muslim population, and yet supports 90 percent of the expenses of the entire faith through its financing of Wahhabist mosques and madrassas around the globe. Given Saudi Arabia’s record on human rights, women’s rights and religious freedom, and the inconsistency of its policies with U.S. priorities and values, I do not support the sale of advanced weapons to the Saudi military. I am a cosponsor of Rep. Anthony Weiner’s (D-NY) resolution of disapproval for this proposed $20 billion arms sale. Because of the depth of my concern regarding Saudi activities and influence and as a graduate of Georgetown Law, I hope you can understand my dismay after reading the Washington Times article in light of Georgetown’s role in training American foreign service personnel and diplomats. Former Under Secretary for Public Diplomacy Karen Hughes was recently quoted as saying she was influenced by the center. I therefore feel compelled to seek further information and request your assurances that, as this center carries out its mission of “building a stronger bridge of understanding between the Muslim world and the West,” it maintains the impartiality and integrity of scholarship that befits so distinguished a university as Georgetown and that is required by the exigencies of national security for training American officials. Specifically, I would like to know if the center has produced any analysis critical of the Kingdom of Saudi Arabia, for example, in the fields of human rights, religious freedom, freedom of expression, women’s rights, minority rights, protections for foreign workers, due process and the rule of law. It is also important to know if the center has examined Saudi links to extremism and terrorism, including the relationship between Saudi public education and the [k]ingdom-supported clerical establishment, on the one hand, and the rise of anti-American attitudes, extremism and violence in the Muslim world, on the other.

The Saudi Arabian Windfall I also would ask whether the center has examined and produced any critical study of the controversial religious textbooks produced by the government of Saudi Arabia that have been cited by the State Department, the U.S. Commission on International Religious Freedom and non-governmental groups for propagating extreme intolerance[.] Has it published anything on the impact of the [k]ingdom’s dissemination of such texts throughout much of the world? Finally, I request information on whether any of the Saudi-source funds have been used in the training, briefing or education of those going into or currently employed by the U.S. government.5

On February 22, 2008, DeGioia replied, “I want to reassure you that I am completely confident that the center’s work, to borrow your words, ‘maintains the impartiality and integrity’ that we expect of all research conducted at Georgetown. Since Georgetown University accepted the gift in 2005, all activities of the center have been conducted in the most appropriate manner and with no outside interference of any kind.”6 Georgetown’s president continued, “Multiple U.S. government departments and senior officials—particularly ones with extensive sophistication in issues of international concern—have relied upon the center’s scholars for their expertise. Clearly, many high-level government officials have recognized the high quality of the center’s scholarship and have confidence that it maintains its integrity and impartiality.” John Esposito, professor of Islamic studies and director of the center, said in a subsequent e-mail, “It is unfortunate that . . . Wolf relied on a Washington Times article and wrote his letter, which was given to the press before first checking directly with the [president]’s office or with us. However, perhaps under pressure since this is a tough re-election year, his staff was looking for a story that would give him media coverage.” Esposito added that Wolf’s office has never contacted him or the center directly. “Georgetown’s response to Rep. Wolf was made public after we first provided it to him, as we do [with] nearly all correspondence with congressional offices,” university spokesperson Julie Bataille was quoted in the media. “We think it is important, for a clear understanding of the issue, that both perspectives [in this case Rep. Wolf and Georgetown] be available for those interested.”7 Berkeley and Duke Universities also reportedly received major gifts from members of the House of Saud.8 These donations have the pro-Israeli neocons hopping. An example is Clifford May, president of the Washingtonbased Foundation for Defense of Democracies (see Chapter 6), who wondered aloud, “There’s a possibility these campuses aren’t getting gifts, they’re

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getting investments. Departments on Middle Eastern studies tend to be dominated by professors tuned to the concerns of Arab and Muslim rulers. It’s very difficult for scholars who don’t follow this line to get jobs and tenure on college campuses. The relationship between these departments and the money that pours in is hard to establish, but like campaign finance reform, sometimes money is a bribe. Sometimes it’s a tip.”9 Such critiques seem to have dissuaded neither the Saudis nor their beneficiaries. In June 2008, the Chronicle of Higher Education published the article “12 Scientists Will Share $120 Million from Saudis.”10 Each of the lucky dozen, all involved in some way in alternative energy or energy conservation research, will receive $2 million per year for five years. One of the recipients, tongue apparently firmly in his cheek, complained, “It’s hard to spend all that money.” The Chronicle reporter explained: In interviews with The Chronicle, several of the researchers explained what getting some of the most generous science financing available means for their careers. Grants to individual investigators from the National Science Foundation, the National Institutes of Health, and other government and philanthropic organizations rarely exceed $1-million. Multi-investigator grants, such as NSF’s engineering research centers, are the only things that come close.11

The story jumps inside, with the article “What Would You Do With $10 Million?”12 The answers include the following: r William J. Koros, Georgia Institute of Technology: “large-scale processes that remove contaminants, like sulfur and carbon dioxide, from commodities like oil and natural gas” r Edward H. Sargent, University of Toronto: “works on solar energy, attempting to transform the sun’s energy into electricity both efficiently and inexpensively” r Bruce E. Logan, Pennsylvania State University: “works with bacteria in novel types of fuel cells to generate either electricity or hydrogen fuel” r Peter A. Markowich, University of Cambridge: “‘an area of mathematics called nonlinear partial differential equations’ [to] describe biological properties and nanotechnological properties equally well.”13

CONTEXT AND BACKGROUND OF SAUDI GENEROSITY The United States and Saudi Arabia have been locked in an economic and military embrace since the end of World War II. However, the courtship for this marriage of necessity began decades earlier. The long-standing

The Saudi Arabian Windfall

relationship has been best narrated by the petroleum consultant Daniel Yergin in his Pulitzer Prize–winning book, The Prize: The Epic Quest for Oil, Money, and Power.14 The great, and largely unsung, visionary of Saudi Arabian oil was Major Frank Holmes (the rank deriving from World War I). Holmes began his long sojourn in the Arabian Peninsula drilling for water. A grateful sheikh rewarded Holmes’s success with an oil concession in 1925. After that, Holmes roamed the region, allegedly alarming the Anglo-Persian Oil Company, which was already well established and upon which the British navy relied. Initially, Holmes had enormous difficulties in getting an American corporate partner for his enterprises, as the British had locked up several major American oil companies in the so-called red line agreement, a sort of cartel arrangement that delineated precise spheres of influence. But by 1929, the English reversed course, concluding that American capital could help develop petroleum resources more rapidly than they, still cash strapped from World War I, were managing to do on their own. The other major player in these very early days of Saudi ascension to premier petroleum nation was Ibn Saud. In the 1930s, he ruled the self-styled Kingdom of the Hejaz and Nejd and Its Dependencies. The treasury of the House of Saud relied primarily upon the annual pilgrimage to Mecca, which lay within this awkwardly named desert realm. When the Great Depression constricted the flow of pilgrims, Ibn Saud felt the pinch. Traveling his domain with a former English civil servant, Harry Philby (father of the infamous double agent Kim Philby), the two concluded that Holmes may well have been right in predicting vast stores of black gold under the forbidding desolation of the king’s deserts. Meanwhile, Standard Oil of California (Socal) discovered oil in neighboring Bahrain in May 1932. Soon a long negotiation ensued. By May 1933, a concession agreement between Socal and Saudi Arabia had been hammered out. In a masterpiece of understatement, Yergin wrote, “The gaining of the concession by an American company would inevitably begin to change the web of political interests in the region.”15 The following decade was spiced with irony. During World War II, the Allied effort was fueled largely by the United States, which remained at that time a net exporter of oil. The Allies’ main concern where Middle Eastern oil was concerned was keeping it out of Hitler’s hands, even if that meant cementing the wells shut, as happened in a few instances. When the war ended, the great concern of both Uncle Sam and John Bull was collapsing oil prices in the face of excessive surpluses. President Truman’s administration seems to have little suspected the reaction of the American people, when gas rationing was ended a day after V-J Day. As autos proliferated and Americans took to the nation’s highways and byways, it quickly became clear to U.S. policy makers that America

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was rapidly—and permanently—shifting from net exporter to net importer of petroleum. President Franklin D. Roosevelt had initially refused Saudi Arabia any participation in lend-lease, noting that the nation was not a democracy and furthermore was rather “too far afield” to affect American interests.16 Now, a decade or so later, after toying with a new Manhattan Project to produce substantial amounts of synthetic fuels, the United States looked at Saudi Arabia through different strategic lenses. The onslaught of the Cold War made this second look all the more urgent. Despite a U.S. recession at the start of the new decade and the discovery of major petroleum reserves in Venezuela at about the same time, the Saudis recognized their significance. The Saudi demand for a bigger share of Aramco profits was strengthened by the fifty-fifty deal given to the Venezuelans. Inevitably, the House of Saud, tenacious, prevailed. The Saudi-Aramco fifty-fifty agreement of December 1950 was, with justification, described as a “revolution” by one historian of the decline and fall of the British Empire. . . . As for the American government, it satisfied the urgent and critical need to increase the income to Saudi Arabia and other governments in order to maintain the postwar petroleum order and to help keep those “friendly” regimes in power. The stakes and risks were enormous. At a time when every dollar of Truman Doctrine and Marshall Plan aid was a battle in Congress, an arrangement that enabled the Middle Eastern governments to tax the profits of the oil companies was more efficient than trying to get additional aid out of the Congress. Moreover, the fifty-fifty principle had the right psychological feel. Both politically and symbolically, it did the job that needed to be done.17

Fast-forward some forty years. The cold war had just ended. The socalled evil empire had spun apart. A new era of peace and harmony was widely anticipated; the lions would lie down with the lambs. But then Saddam Hussein sent his army into Kuwait. A lion had eaten a very valuable lamb. Forcing the Iraqi dictator to disgorge the meal was seen as a strategic imperative by U.S. decision makers. In August 1990, some one hundred thousand Iraqi troops overran Kuwait. Hussein had taken a calculated risk that, as with the 1956 Suez crisis of his youth, the coalition arrayed against him would crumble. He had badly miscalculated. In January 1991, President George H. W. Bush preceded the invasion of Kuwait and southern Iraq with a month of air strikes to soften up the foe. The upshot was a quick victory for the coalition forces, after which Bush elected not to press his advantage and unseat Hussein. The August 1990 Iraqi invasion of Kuwait placed the House of Saud in an extremely difficult position. In a meeting with Defense Secretary Dick Cheney shortly after the Iraqi incursion, King Fahd observed, “They have

The Saudi Arabian Windfall

forces in position that are not needed for Kuwait. Therefore, they must have other objectives.”18 Clearly, he recognized his danger. At the same time, he feared inviting an even larger lion into his tent. Cheney reassured him: “The President asked me to assure you that we will stay as long as you want us. We will leave when you no longer need us. We will stay until justice is done but not stay a minute longer.” Echoing FDR’s “far afield” comment of the late 1930s, Cheney added, “We are not seeking bases but you are a long way away.”19 The Saudis let the American lion into their tent. Hussein was crushed but not deposed. A decade of embargos; no-fly zones; betrayal of the Iraqi Kurds and their failed uprising; wistful but unrequited expectations that cooler Iraqi minds would eliminate the ever-arrogant dictator; and frustrating, endless efforts to inspect and detect Hussein’s alleged weapons of mass destruction, all unfolded following Operation Desert Storm. Osama bin Laden, a wealthy Saudi national who had cut his warrior’s teeth in Afghanistan helping to eject the Soviet infidels, was among those who clamored for the withdrawal of U.S. forces when the hostilities were over. However, it was not until April 2003 that the bulk of the remaining sixty thousand U.S. troops had been withdrawn,20 and August 2003 that Prince Sultan Air Base was transferred from U.S. to Saudi control.21 Today, only “about [five hundred] U.S. personnel remain in Saudi Arabia, primarily with the 320th Air Expeditionary Wing and 64th Air Expeditionary Group at Eskan Village (a compound about 20 [kilometers] southeast of Riyadh).”22 This, of course, all occurred too late. It is easy for us to understand why in the wake of 9/11, President George W. Bush sent our soldiers into Afghanistan. The relationship of Al-Qaeda and the Taliban was well known. But why also Iraq as an invasion target? Professor Michael T. Klare, in his 2004 book Blood and Oil, commented on the report of the Cheney Energy Task Force in May 2001. The group, dominated by oil and mining interests (including the late and not-so-great Kenneth Lay of the late and not-so-great Enron), raised the alarm about America’s dependence upon petroleum from the unstable Middle East. The 9/11 attacks, carried out by Arab terrorists, most of whom hailed from Saudi Arabia, added urgency to these concerns. According to Dr. Klare, “In the face of these problems and dangers, the Bush-Cheney team could draw only one conclusion: that, on their own, the Persian Gulf countries had neither the will nor the capacity to increase their petroleum output and protect its outward flow. If the administration’s energy plan was to succeed, the United States would have to become the dominant power in the region, assuming responsibility for overseeing the politics, the security, and the oil output of the key producing countries.” Was it, then, coincidental that the United States entered Iraq at exactly the same time U.S. troops were finally removed from Saudi Arabia? And is

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the Saudi largesse to higher education a mere coincidence? Or is it intimately connected to the larger geopolitical picture? Indeed, are all three of these questions rhetorical? SAUDI ARABIA’S PARTICULAR PROBLEM In all the Muslim world—1.3 billion adherents of Islam scattered among dozens of nations from the extreme western end of Africa to the western fringe of the Pacific Ocean—Saudi Arabia is unique. It is home to the most sacred sites of all Islam. Mecca is the destination of all devout Muslims who can afford to make the pilgrimage. At the same time, the House of Saud is singularly secular in so many ways, so cozy with Uncle Sam, that its thousands of princes run the risk of seeing their two extraordinary resources—the largest confirmed petroleum reserves remaining on the earth and the most sacred shrines of the world’s second largest organized religion—snatched from them. Thus, these Arab royals walk a tightrope between support of Saudi Arabia’s brand of fundamentalist Islam at home and cooperation with the United States and the rest of the West on many aspects of foreign policy and commerce. Because the Saudi leaders cannot break free of their embrace of Uncle Sam—never mind the withdrawal of American garrisons, noted previously— they must be ever watchful for the emergence of a fundamentalist challenger to their kingdom. Of particular concern is anyone arising in Mecca and claiming to be the Mahdi. “The central messianic figure in Islam is al-Mahdi, ‘the rightly guided one,’ who will come near the end of historical time in order to usher in a worldwide Islamic state with the help of the returned prophet Jesus.”23 Thus, when an ostensible Mahdi burst upon the Saudi scene in 1979 and seized Mecca’s great mosque, holding it for some two weeks, on December 5 Saudi troops—themselves suffering heavy losses—killed this upstart, alQahtani, and killed or captured all of those with him.24 Concurrent with the military’s crushing of this aspirant, the director of the Board of Islamic Research, Da’wah, and Religious Guidance issued an equally devastating fatwa, ticking off the reasons why al-Qahtani could not possibly be the Mahdi.25 The kingdom had dodged a bullet. “Now we seem to be on the cusp of another great leap forward of interest in, predictions about, and yearning for the Mahdi, sparked by American responses to the September 11, 2001, attacks.”26 Naturally, speculation runs high about whether bin Laden, himself a wealthy Saudi and the arch 9/11 criminal who has eluded capture for more than seven years, will one day make that claim.27 In light of this possibility, and granting that the House of Saud cannot break from or alienate the United States, it stands to reason that Saudi generosity to higher education not only is aimed at winning the hearts and minds

The Saudi Arabian Windfall

of influential academics and other intellectuals but also is directed toward diluting the influence of fundamentalists within Saudi Arabia’s own borders. The most noteworthy event is the imminent grand opening of King Abdullah University of Science and Technology (KAUST), the mega-university with which the twelve mega-grant recipients referenced earlier in this chapter will be affiliated during their five-year, $10-million-each, research projects. According to the KAUST: King Abdullah University of Science and Technology is being built in Saudi Arabia as an international, graduate-level research university dedicated to inspiring a new age of scientific achievement in the Kingdom that will also benefit the region and the world. KAUST is the realization of a decadeslong vision of the Custodian of the Two Holy Mosques, King Abdullah bin Abdulaziz Al Saud. . . . 28

KAUST’s core campus is located on more than 36 million square meters on the Red Sea at Thuwal—approximately eighty kilometers north of Saudi Arabia’s second largest city, Jeddah. As a graduate-level research university, KAUST’s fundamental organizing unit will be, not schools or departments, but interdisciplinary Research Institutes. r r r r

Resources, Energy and Environment; Biosciences and Bioengineering; Materials Science and Engineering; Applied Mathematics and Computational Science

Within each Research Institute there will be multi-investigator, problemoriented, often industry-collaborative Research Centers. The university is set to open in September 2009.29 KAUST’s partners are many; herewith some recent announcements, illustrative of the reach of this new institution: “King Abdullah University of Science and Technology (KAUST) and the University of Texas at Austin today announced a research and educational partnership in computational earth sciences and engineering. Under the Academic Excellence Alliance (AEA), the universities will identify and nominate the founding KAUST faculty, establish joint research, and collaborate in the design of the academic curriculum. The value of the agreement to the University of Texas at Austin is about $27 million. That includes $10 million for research collaborations at the University of Texas at Austin, $5 million for research collaborations at the KAUST campus, $10 million for fellowships for students and faculty participating in the project and about $2 million for operations. This innovative approach to institutional

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Al-Qaeda Goes to College collaboration and faculty selection will enable KAUST, a new international, graduate-level research university opening in Saudi Arabia in 2009, to build its academic foundation during the University’s first several years of operation. The partnership will also expand [t]he University of Texas at Austin’s capacity to carry out basic research and develop innovations that can benefit the people and economy of Texas.”30 “King Abdullah University of Science and Technology (KAUST) and American University in Cairo (AUC) signed a Memorandum of Understanding on August 30, 2007, to establish collaborative research and academic development that will positively impact the Kingdom of Saudi Arabia and the region. Nadhmi A. Al-Nasr, interim president of KAUST, and Dr. David D. Arnold, president of AUC, signed the MOU to establish a solid base of research and academic development that will be internationally competitive across a broad range of science and technology disciplines. “This Memorandum of Understanding represents a wonderful opportunity for both KAUST and AUC,” said Nadhmi Al-Nasr, interim president of KAUST. “We are thrilled and honored to partner with such a venerable institution in the Middle East, and I look forward to the opportunities we will have to advance the objectives of both institutions for the benefit of the region, and for the benefit of the world of scholarly research as a whole.”31 “King Abdullah University of Science and Technology (KAUST), a new world-class, graduate-level scientific research university now under development, finalized an agreement today with Woods Hole Oceanographic Institution (WHOI) to collaborate on marine research projects in the Red Sea. KAUST, which is located along the shores of the Red Sea, is working with WHOI scientists to establish the KAUST Marine and Ocean Research Center, which will provide critical information about ocean ecosystems, fisheries, and water circulation along the Saudi Arabian coast in the northern central Red Sea. One of the first projects will be an assessment of the health of the extensive and vital coral reefs in the region and identification of the environmental factors affecting the system. “This partnership will establish a firm foundation of excellence for KAUST that will help us recruit other scientists and promote our ultimate agenda of scientific discovery,” KAUST’s Interim President Nadhmi Al-Nasr said at today’s signing of the formal agreement between KAUST and WHOI (which announced their intent to collaborate earlier this year). “It will also enrich WHOI’s already prestigious portfolio of scholarship and its reputation as an institution with a reach that extends literally all over the globe.” “The KAUST-WHOI partnership will bring together a large, interdisciplinary group of researchers, each with their own strengths and experiences,” said Dr. James R. Luyten, acting president and director of WHOI. “With this collaboration, we can bring together different tools, techniques, and minds to gain a broader

The Saudi Arabian Windfall Table 7.1 2002–2006 % Increase Public universities Public colleges University hospitals Private universities Private colleges Newly enrolled college students All newly enrolled secondary-ed students

8 79 3 1 4 67,855 136,723

21 191 12 4 17 110,103 214,572

150 142 300 300 325 62 57

Source: Saudi Ministry of Higher Education.

understanding of the Red Sea and its ecosystems. We are proud and excited to be part of this project.”32

All of the preceding needs to be placed in context, as I have tried to do with my brief history of the kingdom’s rags-to-riches story. Just five years ago, eight public universities struggled to serve a national population of 22 million, higher education having failed to keep pace with the breakneck development of other sectors of the Saudi socioeconomic landscape.33 Since 2003, all that has changed dramatically (see Table 7.1). Five years ago, the kingdom embarked on a fantastically ambitious effort to expand and reform higher education. The higher-education ministry’s budget has nearly tripled since 2004, to $15 billion, much of which has been spent on opening more than 100 new colleges and universities. King Abdullah has provided $10 billion of his own money to establish a graduate-level science-andtechnology university instantly making it the sixth wealthiest university in the world. And the government has lifted a decades-old ban on private institutions, offering free land and more than $10 million toward scholarships and building costs for what they hope will become the Harvards and Yales of the Middle East.34

No doubt, the kingdom’s motives are mixed. Its generosity to American universities and faculty may be in part a penance, in part a “tip,” and most assuredly an investment. American higher education, despite increasing competition from the EU, Australia, and even Asia, remains the gold standard. Our industry also remains one of the most influential sources of public opinion in the United States Little wonder, then, that the Saudis are buying the goodwill and the expertise of top U.S. universities. Despite the concerns expressed by such critics as Congressman Wolf and FDD’s Clifford May, I believe we in the academy should be crowing about the Saudi largesse our prestige and influence have attracted.

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Anthropologists Go to War Anthropologists always were a breed apart.1 While the rest of the humanists and social scientists confined themselves mainly to libraries and classrooms and labs, anthropologists took to the “field.” They went into the field, the bush, the desert, and the mountains, because the concept of culture came to dominate their discipline. The father of this endeavor was Franz Boas. Before Boas, biology ruled scientific thinking: “It will be recalled that Darwin could find no useful value in the physical (racial) differences among human groups. Thus he could not account for the difference through the operation of natural selection. He did, however, accept the common anthropological view of the time that the differences in levels of culture or civilization which occurred among the diverse peoples of the world derived from differences in their biological capacities.”2 Obviously, Charles Darwin’s view implied racism. Alfred Russel Wallace, his insightful, more nimble rival, instinctively rejected Darwin’s approach. “As things turned out, Wallace looked to other ways and matters in his effort to make evolution less competitive and threatening.”3 Wallace never developed his instinctual notion of the mental equality of all peoples. It fell to Franz Boas, who in the 1880s was a recent immigrant to the United States and a fledgling anthropologist: “Boas’s influence upon American social scientists in matters of race can hardly be exaggerated. At the same time that racial segregation was being imposed by law in the states of the American South, and eugenics was emerging as a hereditarian solution to social problems, Boas was embarking upon a lifelong assault on the idea

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that race was a primary source of the differences to be found in the mental or social capabilities of human groups.”4 In 1911, Boas published not one but two seminal works, The Mind of Primitive Man and Changes in Bodily Form of Descendents of Immigrants.5 “The essential message of The Mind of Primitive Man was that socalled savages did not differ in mental capacities from civilized peoples, even if in their present state of existence they had not produced the artifacts or cultural achievements traditionally associated with civilized life.”6 His immigrant study, which reached similar conclusions, “was based on the patient measuring of several thousand immigrants and their children in New York City.”7 The results of the latter study revealed marked physical improvements in the features of immigrant children over their parents, although the genetic makeups of both were necessarily identical. Therefore, “the social environment must have been the source of changes.” And so the answers were sought in the field. This article of faith—that culture explained differences—“evolved,” as one might say, into a second article: that whatever cultural practices and artifacts were encountered in the field must necessarily serve a useful purpose, if only the patient, trained observer could discern it: “Indeed, there is a pervasive assumption among anthropologists that a population’s long-standing beliefs and practices—their culture and their social institutions—must play a positive role in their lives or these beliefs and practices would not have persisted.”8 For more than a century, these articles of faith sent anthropology’s disciples far and wide in the great world, to all its wildest and remotest places. And in this new millennium, anthropologists are bolder than ever. Consider, for example, Carolyn Nordstrom, professor of anthropology at Notre Dame University. Nordstrom’s 2007 volume chronicles her descent into the shadow world of the underground or informal global economy, beginning with a little boy selling cigarettes in a West African war zone and fanning outward all the way to parts of Rotterdam and Los Angeles. She summarizes: “The chapters are set up to catch the powerful confluence of the extra-legal and twenty-first-century globalization and advanced technology and to show how the tendrils of the uncharted reach across multinational empires and into everyday lives.”9 Nordstrom’s courting of danger in the underbelly of the world puts one in mind of foreign correspondents and journalists. Emulating these news media professionals even more closely, other twenty-first-century anthropologists have agreed to be embedded in the U.S. armed forces. Anthropology’s involvement with the U.S. military and intelligence establishments began with a 2004 pilot project, the Pat Roberts Intelligence Scholars Program. The CIA and other American agencies funded the graduate educations of students, unbeknownst to their faculty and fellow students.10

Anthropologists Go to War

Even more controversial is the appearance of anthropologists in uniforms. The controversy was jump-started early in 2004, when the investigative journalist Seymour Hersh published “The Gray Zone” in the New Yorker.11 The most sensational aspect—the news peg—of the story were the shocking interrogation techniques that took place at the Abu Ghraib prison, photos of which would soon circulate around the Worldwide Web. However, the aspect of Hersh’s scoop that ignited an academic controversy was this assertion of his: “The notion that Arabs are particularly vulnerable to sexual humiliation became a talking point among pro-war Washington conservatives in the months before the March, 2003, invasion of Iraq. One book that was frequently cited was The Arab Mind, a study of Arab culture and psychology, first published in 1973, by Raphael Patai, a cultural anthropologist who taught at, among other universities, Columbia and Princeton, and who died in 1996. The book includes a twenty-five-page chapter on Arabs and sex, depicting sex as a taboo vested with shame and repression.”12 Hersh quoted from Patai’s book: “‘The segregation of the sexes, the veiling of the women . . . and all the other minute rules that govern and restrict contact between men and women, have the effect of making sex a prime mental preoccupation in the Arab world. [Homosexual activity] or any indication of homosexual leanings, as with all other expressions of sexuality, is never given any publicity. These are private affairs and remain private. . . . [T]he biggest weakness of Arabs is shame and humiliation.”13 It was not long before Hersh’s article drew responses. In fact, they were almost instantaneous: This mention of Patai’s book (on the sole authority of “an academic [who] told me”) sent journalists scurrying to read it—and denounce it. Brian Whitaker, writing in [the] Guardian, called it a “classic case of orientalism which, by focusing on what Edward Said called the ‘otherness’ of Arab culture, sets up barriers that can be exploited for political purposes.” He quoted an academic saying, “The best use of the volume, if any, is for a doorstop.” Ann Marlowe, in Salon.com, called it “a smear job masquerading under the merest veneer of civility.” Louis Wermer, in Al-Ahram Weekly and elsewhere, embellished Hersh’s account with a made-up detail: The Arab Mind, he wrote, “was apparently used as a field manual by U.S. Army Intelligence in Abu Ghraib prison.” . . . Only Lee Smith, writing in Slate.com, suggested that critics had misread Patai, whom he described as “a keen and sympathetic observer of Arab society,” a “popularizer of difficult ideas, and also a serious scholar.”14

A commentator in the Boston Globe noted that the late Raphael Patai’s book had “a curiously checkered history.” When it first appeared in 1973, reviews had been mostly favorable. Ironically, the New Yorker itself called it “a sympathetic and wide-ranging study,” according to this writer. However,

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the late Edward Said attacked the work in 1978, calling it (as noted previously) mere “Orientalism.” But, countered the Globe article, “Patai’s book continued to be read in diplomatic and military circles. It gained broader currency in November 2001, when Hatherleigh Press released a new edition with an introduction by Narwell B. DeAtkine, director of Middle East Studies at the JFK Special Warfare Center and School at Fort Bragg.”15 The controversy festered then bubbled to the surface inside the walls of academia in 2007. This time it was not a dead anthropologist’s reanimated book that set the kettle boiling. This time a news story about living anthropologists was the catalyst. On September 7, 2004, a story in the Christian Science Monitor asserted: “Evidence of how far the U.S. Army’s counterinsurgency strategy has evolved can be found in the work of a uniformed anthropologist toting a gun in the mountains of eastern Afghanistan. Part of a Human Terrain Team (HTT)—the first ever deployed—she speaks to hundreds of Afghan men and women to learn how they think and what they need.”16 This piece was followed by one a month later in the International Herald Tribune. With the dateline “Shabok Valley, Afghanistan,” it stated, “In this isolated Taliban stronghold in eastern Afghanistan, American paratroopers are fielding what they consider a crucial new weapon in counterinsurgency operations here: a demure civilian anthropologist named Tracy.”17 The commander of the 82nd Airborne Division was quoted as claiming, “We’re looking at this from a human perspective, from a social scientist’s perspective. . . . We’re focused on the enemy. We’re focused on bringing governance down to the people.” He added that combat operations had been reduced by 60 percent since the anthropologists’ arrival.18 Yet the article continued, “Criticism is emerging in academia.”19 Such criticism is not hard to find. Just two days after the Herald Tribune piece, which also appeared in the parent New York Times, Professor Marshall Sahlins posted on the blog Savage Minds a piece he styled “an open letter to the New York Times.” To the Editor: The report (Oct[ober] 11) of the killing of two Iraqi women by hired guns of the State Department whose mission was “to improve local government and democratic institutions” bears an interesting relation to the story of a few days earlier about the collaboration of anthropologists in just such imperious interventions in other people’s existence in the interest of extending American power around the world. It seems only pathetic that some anthropologists would criticize their colleagues’ participation in such adventures on grounds of their own disciplinary self-interest, complaining that they now will not be able to do fieldwork because the local people will suspect them of being spies. What about the victims of these militarybacked intrusions, designed to prescribe how others should organize their

Anthropologists Go to War lives at the constant risk of losing them? What is as incredible as it is reprehensible is that anthropologists should be engaged in such projects of cultural domination, that is, as willing collaborators in the forceful imposition of American values and governmental forms on people who have long known how to maintain and cherish their own ways of life.20

The open letter quickly drew dozens of replies. One of the more expansive and thoughtful responses came within hours of Sahlins’s posting: This question is not simply about anthropologists who work with the military (although, of course, their intrusions put peoples’ lives in peril and are therefore much more likely to evoke emotion and passion from us). Some anthropologists who work for development organizations, non-military government agencies, conservation organizations, and the like transport Euro-American ideas about how people ought to live in the world and provide data that ends in cultural domination all the time. I keep wondering how these anthropologists working for the military are any different from anthropologists I know who work for conservation organizations that have as a goal the full-scale transformation of people’s socio-ecological ways of living and being in the world.21

Implicit in these two blog entries are two distinct propositions. The first is that anthropologists’ interference in the lives and ways of life of their subjects, especially on behalf of the American military, or (in the case of the second blogger) even on behalf of Euro-American socio-cultural-economic values, is morally reprehensible. Underlying this hypothesis is a more subtle assumption, namely, that the lifestyles of these subjects have inherent validity and, therefore, ought not to be disturbed, let alone disrupted. Before delving more deeply into the former assertion, we ought to pay at least passing attention to this latter assumption. Here I am approaching this implication through the lens of the anthropologist and psychologist Robert B. Edgerton’s 1992 book, Sick Societies: Challenging the Myth of Primitive Harmony.22 Early on, Edgerton asks the threshold question: should anthropology be deemed a science or is it an art?23 This generates a second, equally fundamental question: should anthropologists describe only what they observe or should they evaluate as well? Here he quotes Sir Edmund Leach: “During the hundreds of years of their existence academic anthropologists have not discovered a single universally valid truth concerning human culture or human society other than those which are treated as axioms: [for example] that all men have language.”24 Due at least in large part to such difficulties, relativism has tended to dominate anthropology. Everything, as the clich´e goes, is relative. Indeed, in my own occasional teaching at Rider University of the honors course Law

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and the Arts, I have consistently found on inquiry that the overwhelming majority of my students are cultural relativists, so deep has this predisposition permeated the academy. And, as Edgerton continues, there are sound philosophical reasons, in addition to methodological difficulties, that favor cultural relativism. “The principle of cultural relativism,” he rightly observes, “is not merely a shibboleth but has helped to counter ethnocentrism and even racism.”25 The problem arises for Edgerton when cultural relativism gives birth to the corollary notion that, if a practice has arisen and entrenched itself inside a society, it must have a useful function. Thus, then, the anthropologist’s task is to observe, report, and if possible, to discern the utility of the practice. Edgerton’s thesis is that maladaptations are as entirely possible as healthy, useful adaptations. He argues: There are many reasons why traditional beliefs and practices may become maladaptive. Some traditional practices that evolved early in human history must have been relatively inefficient solutions to environmental demands, but without the rigorous competition from other populations or other belief systems, such practices tend to persist. Besides, because humans do not always make rational adaptive decisions, some of their beliefs and practices may have been maladaptive from the beginning. What is more, when environmental change occurs, practices that once were adaptive may become maladaptive, just as practices that may be adaptive over the short term can have long-term costs.26

The bulk of Edgerton’s book is devoted to detailed exemplification of this thesis. These examples are drawn from across broad spans of time and space. Suffice it to say here that I find them highly persuasive. The reader may obtain Edgerton’s book and decide for him- or herself. Meanwhile let us test Edgerton’s theory independently. Before taking a whack at Afghanistan and Iraq, let’s revisit Carolyn Nordstrom’s 2007 account of her time in war-torn Angola during the first few years of the present decade. She began her book with an account of a war orphan who survived from day to day by purchasing a pack of cigarettes, then selling single cigarettes for a modest profit. She then expanded her inquiry to include the bombed-out shop where the orphan procured his trade goods. She explained the rationale for her approach as follows: Our theories are constructed to fit the narrow confines of our discipline. We may even begin to think in neat units of analysis. These categories make perfect sense unless we try to apply them to the way people actually live their lives. . . . Each category becomes a distinct research domain, its own empire. Each is its own field of study, like the disciplines of the academy, published according to topic, shelved in libraries by subject matter.

Anthropologists Go to War Many of these studies are excellent, yet taken as a whole, they give three misleading impressions:

r The world acts according to these categories and divisions. r The sum total of these discrete analyses adds up to an encompassing reality.

r There is a discernible line between legal and illegal, between acceptable and illicit, between legal development and criminal intent.27

Expanding her investigations and observations outward and upward to Angola’s national level, she asserts: “No one talks about the fact that the Europeans sitting down to a reasonably priced salad with tomatoes from Africa were linked by their purchase to military battles and forced relocation of poor villagers who were often transformed into a desperate, unpaid workforce; to aid and development monies provided free for the governing elite; and to deals with airlines to provide free transportation for the fruits of this labor. . . . I would ask . . . those working in NGOs and humanitarian organizations, ‘Who tells these stories?’ And they invariably answered, ‘People like you, I guess; it’s not our mandate.’”28 Nordstrom clearly has wandered far from academia’s beaten path, and not merely in the methodological manner she has described. She is no longer simply reporting her field observations, and she has left relativism far behind her. She has taken sides and she is advocating for her side, which (like France Fanon) we might call “the Wretched of the Earth.” Any alterations in the culture and customs that her research and writings may cause are deliberate and hardly could be called a loss to these victimized populations for whom war has become an endemic part of the culture. These research subjects clearly have lost the ability to “maintain and cherish their own ways of life.”29 As I ask readers to accompany me now to Afghanistan, let me request that they pack in their baggage Edgerton’s thesis of maladaptation and Nordstrom’s arguments about the anthropologist’s role in a war zone. Then, in approaching Afghanistan, let’s begin with this observation by an eminent journalist concerning his 1992 history of Central Asia (which, of course, includes Afghanistan): If this narrative tells us nothing else, it at least shows that nothing much has changed in the last hundred years. The storming of embassies by frenzied mobs, the murder of diplomats, and the dispatch of warships to the Persian Gulf—all these were only too familiar to our Victorian forebears. Indeed, the headlines of today are often indistinguishable from those of a century or more ago. However, little appears to have been learned from the painful lessons of the past. Had the Russians in December 1979 remembered Britain’s unhappy experiences in Afghanistan in 1842, in not dissimilar circumstances, then they might not have fallen into the same terrible trap, thereby sparing some [fifteen thousand] young Russian lives,

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Al-Qaeda Goes to College not to mention untold numbers of innocent Afghan victims. The Afghans, Moscow found too late, were an unbeatable foe.30

This journalist, Peter Hopkirk, is referring to the Soviet Union’s invasion of Afghanistan three decades ago. Even if one discounts his contention that Afghanistan’s culture is the product and embodiment of almost incessant warfare since at least the early nineteenth century, one can hardly dispute the ceaseless hostilities of the past thirty years.31 And one who has read, for example, The Kite Runner by Khaled Hosseini, or The Taliban and the Crisis in Afghanistan,32 is likely to cheer the destruction of the Taliban regime on the grounds of its disruptive effects on Afghan society, culture, and economy, never mind its support of international terrorism. THE AMERICAN ANTHROPOLOGY ASSOCIATION COMMISSION’S REPORT The final report of the American Anthropology Association’s (AAA) cumbersomely christened Commission on the Engagement of Anthropology with the U.S. Security and Intelligence Communities was released on November 4, 2007.33 The report opened with candid recognition that “the longstanding habit in anthropology of making a divide between applied/practicing anthropological research and independent/academic anthropological research is challenged by their increasing meeting on the same grounds and research terrains.”34 They seemed to have had the likes of Nordstrom in mind when they wrote that sentence. Looking back over their shoulders, the commission members noted that the relationship between anthropologists and the military and intelligence services “varied, partly depending on the character of [U.S.] wars; World War II (a ‘good’ war) evoked patriotic service by anthropology while Vietnam (a ‘bad’ war) evoked condemnation by anthropology of service” by practitioners of the discipline.35 Analogizing the war on terror to the cold war—both being periods of “low intensity but sustained conflict”36 —the commission described anthropology’s challenge as “to defin[ing] ethically defensible research in complex environments of collaboration.”37 The commission rightly spun off a practitioner subcommittee charged with ascertaining just what anthropologists working with military and intelligence organizations are doing. The subcommittee identified thirty-five potential subjects and interviewed eighteen of them. They asked the eighteen interviewees where they worked and found a wide variety of employers: r Federally funded think tanks such RAND r Private for-profit consulting companies r Military and intelligence colleges, such as the Air University at Maxwell Air Force Base in Alabama

Anthropologists Go to War

r Intelligence agencies and the military, both American and those of friendly nations

r Academia, but with funding from military and intelligence sources.38 The subcommittee also inquired about how they were recruited. The responses included the following: The people in the military . . . heard I was working [in the automotive industry] on the integration of new information technologies at [a] work group level, and they asked, “Can we do [a similar project] in the Air Force?” And I said yes.39 I’d been in anthropology as an undergrad, then went into the defense consulting world. And while I was there, I did a [m]asters’ in operations research, systems analysis, war gaming. Then I was hired into [a Federally Funded Research and Development Center (FFRDC)]. Once I got there, I realized they were doing studies on things like manpower, the military and gay/lesbian issues, families, any number of things that seemed appealing to me. I wanted to do more of that . . . and it was then that I went back to get an anthropology degree.40 I started out doing contracting for the 100th Area Support Group U.S. Army in Vilseck, Germany[,] on the effectiveness of DoDEA [Department of Defense Education Activity] schools. I was married to an [a]rmy officer, and it was the only type of work available, aside from volunteering at the Red Cross bake sale.41

Moving on to how much of the work is classified, the interviewers got these responses, among others: Most of my work is published by [my employer]. My audience is generally a [Department of Defense] audience, although my work is also sold to the public [on our Web site]. I also brief members of Congress and am an invited speaker at conferences and meetings related to DoD issues, such as those focused on military spouses and families.42 Some of the documents are classified, and some of the programs too. However, the vast majority of the work I do is unclassified . . . the research done by me for [the Department of Defense is] owned by the sponsor, so they make decisions about where and how to publish it. Articles that I write on my own time can be freely published, and I have done so frequently in military journals.43

Turning to the types of work done by these interviewees, the interviewers found the engagements as diverse as the organizations that employed them:

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Al-Qaeda Goes to College Active research. Interestingly, very few of the scholars in our pool, respondents or otherwise, are currently involved in fieldwork among an ethnographic Other (e.g., in Iraq, Afghanistan, or studying populations commonly affiliated with the [global war on terror] GWOT). Instead, the vast majority of active fieldwork projects seem to focus on institutional studies within the intelligence or defense communities. Institutional studies. Several of the interviewees described what sounds like classic organizational anthropology: identifying bottlenecks in information and resource flows in large bureaucracies; critically assessing the impact of discursive practices around “privatization” in the Department of Defense, or conducting evaluations of user interfaces for new software among intelligence analysts. One anthropologist teaching in a military university is using her position as a chance to conduct field research among troops and intends to write an ethnography about her experience. Military-to-military relationships. A second form of research focuses on military-to-military relationships in peacekeeping or training exercises involving two or more countries. McNamara is aware of several countries, including Germany, Sweden, and the [United Kingdom], where anthropologists are deployed in combat situations to support military-to-military relations during peacekeeping exercises. One anthropologist is currently supporting the Canadian government’s military-to-military training program in Latin America. Some of this work is intended to be applied in the settings in which it is conducted, while other research is more academic in intent. Teaching. Anthropologists have been teaching in the Department of Defense’s educational system for many years. For example, anthropologist Ana Simons (who was not interviewed for this project) has been teaching at the Naval Postgraduate School for over a decade. However, since 9/11, and particularly since the invasion of Iraq, military educational institutions have been investing resources in expanding programs in area studies, culture, and language training, and anthropologists are involved in developing and implementing these programs. Teaching in civilian institutions. Several of our respondents hold positions in mainstream academic institutions, but pursue research on, in, or among military or intelligence personnel. One of our respondents has built a career studying peacekeeping forces and conflict resolution, while another has spent time deployed with Canadian forces in combat situations. While neither has paid consulting arrangements or works directly for military institutions, they do serve on committees, attend conferences, give talks, and provide advice to military personnel who request it.

Anthropologists Go to War Teaching in military universities. As interest in “culture” expands among military decision makers, there is greater recognition that anthropology could be a valuable component in the military’s educational programs.44

Specific responses reproduced in the report include: My area of emphasis was urban ethnography. I guess I did what is now called Military Anthropology. . . . One thing that might help [illustrate my work]: I wrote [a handbook] for the Army Medical Department. I was preserving what I learned as a [medical officer]. It basically is application of anthropology to understand organizational culture, to provide medical services in a foreign milieu.45 I don’t know if I’m going to . . . make an interdisciplinary major in security studies, together with anthropology and a geographic region. My geographic region is Germany. Many people looking at Iraq and Afghanistan, but I think that looking in at the military, looking at the government, what we need to do to understand the Other better. I don’t want to reinvent the wheel, but in America a lot of times we do that, we don’t look at what people are already doing, or what are our allies doing, and that’s something I can bring to the table. I can say, “Hey, if you go to Germany, you’ll see that their military units can bring social scientist on board, and those social scientists bring an understanding of population where they’re deploying.” That person becomes an adviser to the planning staff. Anthropologists and the military tend not to do that, because of something that we call “risk.” We avoid risk. Well, some of the Europeans and Germans call that risk management. They don’t do risk avoidance, in that sense at least.46 [I study] people engaged in knowledge work. [An idea] came out in Defense Review last year, which basically said there’s no way the [United States] can win this “long war” on its own. Not enough strength, not street smart. So they’ve got to have other people help. How do you work with other people in other cultures, how do you build collaborative spaces to enable things to happen? Lots of [interest in] distance learning, collaboration. . . . [Lately I’ve been] working more with [intelligence and other federal] agencies around [Washington, D.C.], and working in information distribution and collaboration spaces.47 I do military manpower research. Lots having to do with how better to manage, develop, promote [et cetera] our officers. Also anything having to do with military families, race issues in the military, gender in the military, and elite units (like SEALs . . . ).48

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Al-Qaeda Goes to College We don’t do any fieldwork at all where we are, simply because we can’t. . . . What we can offer is—people who aren’t familiar with anthropology, who are using cultural information, we can help them by using ethnography a framework. They are immersed in data and information about a country. . . . We’re in a strategic analysis group. And we look at what the defense community, the software side, the issues they’re dealing with. [Our work] draws on psychology, international relations, operations research, and from my perspective the interest in anthropology is that it can facilitate drawing in different groups. It can provide understanding of the environment that [military analysts] are looking at. What’s the environment for conflict? How do norms and values create conditions for conflict? We can offer insight.49

The report’s recommendations are reproduced in full here. Procedural Recommendations for the Executive Board: Communication Make the Commission’s final report available to the entire membership of the AAA by linking to its full text on the AAA website. Encourage continued openness and civil discourse on the issue of engagement with security institutions, among AAA members. It is unacceptable to demonize people who have chosen career paths in the national security community, simply because of their political viewpoints, choice of employer, or other affiliation. In a professional academic society like the AAA, civil discourse and respectful exchange should be the norm, while closed minds are unacceptable. We encourage members to continue thoughtful and long-term public discussion of the ethical nuances of engagement in print; for example, by publishing articles in such venues as Anthropology News. Member Counseling on National Security Sector Employment Experienced anthropologists should be encouraged to provide counseling to members facing the question of whether and how to engage with national security institutions. A counseling body could be comprised of people from the Ethics Committee and AAA members with experience with these institutions. Code of Ethics The Commission recommends that emergent issues surrounding engagement with military, security, and intelligence be considered in the next revision of the [code of ethics]. Specifically, the language of the [code] should be revisited or revised to include: Secrecy as a condition for funding, employment, research, written “products,” or other applications of anthropology; the Ethics Committee or general membership should consider reinstating

Anthropologists Go to War former language on secrecy from the 1971 [code] (sections 1.g, 2.a, 3.a, and 6). The concept of informed consent including multiple settings in which it may be compromised, undermined, or rendered impossible to obtain. In particular, develop specific language regarding work with vulnerable populations and contexts in which consent may not be free, voluntary, or non-coerced. Differentiating between activities that are politically distasteful and those that are ethically problematic (e.g., draw distinctions between anthropological research and intelligence gathering, focusing on the activity itself, not on whether one agrees with the politics that motivated a war that it might serve or inhibit). What is the ultimate intent or effect of the activity? Is there any way to determine if any research will have “detrimental” effects? How? On whom? What are the warning signs? Should the [code of ethics] assess such intents or effects (e.g., war)? Applied work: Amend the [code of ethics] by elaborating a section on “applied” work . . . and/or append either the Commission’s entire report or the section on strategies for the individual anthropologist to the current code. We recommend that the EB [Education Board] support and encourage education about the [code] and find ways to foster discussion. This should include sponsoring “safe space” discussions at the annual meeting and section meetings where anthropologists can explore the ethical considerations of current and future projects. Publishing Announcements for Military, Security, and Intelligence Employment in the Anthropology News Preface all announcements of jobs, grants, and fellowships posted in [Anthropology News] with a cautionary rider advising AAA members to consult the [code] before accepting any position or funding[.] Create an EB subcommittee of three to evaluate potentially problematic ads ( . . . where institutional nondisclosure may run afoul of the AAA [code] standards). Ads explicitly identified as offering intelligence, military, or other national security jobs or grants/fellowships would be tagged by AN staff for review by this subcommittee, which would then advise staff by rapid response to either (a) publish the ad in AN, with advice to consult the [code] and/or the counseling service, or (b) not publish the ad in AN but list contact information, with advice to consult the [code] and/or counseling service. Rationale: This plan of action would alert AAA members to both opportunities and to risks, and it also would allow the AAA to address unanticipated problems (e.g., a surplus of MIS ads). Strategies for the Individual Anthropologist and Illustrative Examples We suggest that the EB make the following recommendations for individual strategies regarding engagement with MIS. These strategies are written

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Al-Qaeda Goes to College with the image in mind of individuals having to navigate complicated, changing and often unclear terrain, in which it is difficult to foresee all the consequences of their actions. Use the AAA [code] as your guide. Whether you are thinking of seeking or accepting employment or other work (say, a contract, or a consultation); or acting as an unpaid advisor; or find your work unexpectedly of interest to parties you had never imagined as readers; look to the [code] to work through whether what you are being asked to do (or what you have done) is ethical. The Commission also recommends that the AAA set up a means for members to consult other anthropologists on issues of engagement that they find problematic. Work transparently. Everyone involved needs to know who you are, what you are doing, what your goals are, and who will have access and when to the information you are given (and what form this information will be in). Do not participate in funding programs that will not publicly disclose sources of funding. Do no harm. Take the actions you need to take to make sure your work harms no one directly and, to the extent possible, indirectly. Be clear about your responsibilities. Work through and communicate to all involved to whom you are primarily responsible, and for what. Publish your work. Make sure to share the results of your work publicly to the extent possible.50

The AAA adopted all of the report’s major recommendations. But that didn’t put the controversy on the shelf next to the report. To the contrary, in April 2008, Newsweek fanned the flames back to life with an article provocatively titled “A Gun in One Hand, a Pen in the Other.”51 The accompanying photo shows an anthropologist in an army uniform, complete with helmet, scribbling in a notebook at a large gathering in the street. An armed man, apparently part of Iraqi security forces, eyes her suspiciously. The magazine reported that social scientist participants in the army’s program can earn up to $300,000 per year so long as they remain in country. This, the article added, is about six times an average anthropologist’s salary back home in civilian life. The authors went on to claim that recruitment was initially sloppy, resulting in marginally qualified applicants sometimes being employed. For the likes of these, the salary must have been a real windfall. The article also reported on friction between military personnel and Human Terrain Team members. It concluded with a balanced summary, but one that clearly implied that there was something to the problems that the piece claimed to expose. The article also reported the response of the AAA Executive Committee to the information in the committee report. The committee commented in some detail on the problems identified by the report, particularly as they pertained to the HTT program. It concluded:

Anthropologists Go to War In light of these points, the Executive Board of the American Anthropological Association concludes (i) that the HTS program creates conditions which are likely to place anthropologists in positions in which their work will be in violation of the AAA Code of Ethics and (ii) that its use of anthropologists poses a danger to both other anthropologists and persons other anthropologists study. Thus the Executive Board expresses its disapproval of the HTS program. In the context of a war that is widely recognized as a denial of human rights and based on faulty intelligence and undemocratic principles, the Executive Board sees the HTS project as a problematic application of anthropological expertise, most specifically on ethical grounds. We have grave concerns about the involvement of anthropological knowledge and skill in the HTS project. The Executive Board views the HTS project as an unacceptable application of anthropological expertise. The Executive Board affirms that anthropology can and in fact is obliged to help improve U.S. government policies through the widest possible circulation of anthropological understanding in the public sphere, so as to contribute to a transparent and informed development and implementation of U.S. policy by robustly democratic processes of fact-finding, debate, dialogue, and deliberation. It is in this way, the Executive Board affirms, that anthropology can legitimately and effectively help guide U.S. policy to serve the humane causes of global peace and social justice.52

The article was sufficiently troubling to the AAA to inspire the organization’s president to issue a public response:

I write to you on behalf of the American Anthropological Association (AAA) in response to the article, “A Gun in One Hand, a Pen in the Other,” authored by Mr. Dan Ephron and Ms. Silvia Spring. Founded in 1902 and headquartered in the nation’s capital, the AAA is the world’s largest organization of anthropologists, with over 11,000 members. AAA believes that while the article accurately reports the position of its Executive Board regarding the potential ethical implications anthropologists participating in the U.S Military’s Human Terrain Systems program (HTS) may encounter, it is critical to convey to Newsweek and its audience that the association continues to take a proactive approach to examine the full spectrum of issues associated therein, as the intersection of the professional ` ethics of the association vis-a-vis the work of practicing anthropologists in the military raises broader and fundamental considerations of the limits and

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Al-Qaeda Goes to College possibilities for social scientific practice than that represented by HTS-type scenarios. On October 31, 2007, the AAA Executive Board issued a statement regarding the U.S. Military Human Terrain System program which stated, in part, that: In the context of a war that is widely recognized as a denial of human rights and based on faulty intelligence and undemocratic principles, the Executive Board sees the HTS project as a problematic application of anthropological expertise, most specifically on ethical grounds. However, as the Executive Board issued this statement, a special AAA workgroup entitled the Commission on the Engagement of Anthropology with the U.S. Security and Intelligence Communities had already been working for a year on a report examining in detail the bigger picture of the varied roles that practitioners and scholars of anthropology are currently invited to assume within military, intelligence and national security entities, including the state of AAA’s existing guidelines and guidance on the involvement of anthropologists in intelligence/national security-related activities as well as the key ethical, methodological, and disciplinary challenges faced by the AAA in its current and future engagements with these communities. This report was released in late November of 2007, and in its examination of ethical considerations for anthropologists, concluded: The Commission recognizes both opportunities and risk to those anthropologists choosing to engage with the work of the military, security and intelligence arenas. We do not recommend non-engagement, but instead emphasize differences in kinds of engagement and accompanying ethical considerations. This Commission is continuing to examine different kinds of engagements and plans to provide further clarification in the coming months that seeks to address a continuum of concerns related to the military application of anthropology including so-called “situational ethics,” secrecy and disclosure, free and informed consent, the injunction to “do no harm,” dissemination of research results and proprietary data, institutional arrangements and types of employment. This will include further in depth vetting of the HTS program, from the point of view of our discipline’s priorities and ethics. However, since a more thorough and balanced assessment of the intersection amongst anthropology, ethics and the military has not yet been forthcoming, it is inappropriate to assess the program in a global sense, measure its full impact, or treat it

Anthropologists Go to War as representative of this bigger picture. Once available, this information will be available to the public on our Web site [http://www.aaanet.org]. I would also like to bring to the attention of your readership that while the authors of the story seem to suggest that the HTS program is primarily made up of anthropologists, the program, in fact, employs many individuals from the social science community; anthropologists represent a small percentage of the total of those employed. Moreover, ethical considerations associated with the program definitely apply to the entire social science community at large, and these issues will have to be examined on an ongoing basis for years to come.53

A WARRIOR-SCHOLAR DIES Lest Dr. Low imagined for a moment that his letter laid the controversy to rest, the July 4, 2008, issue of Chronicle of Higher Education dispelled that notion with a front-page headline: “Peacekeeper and Scholar Is Killed in War Zone.”54 The story concerned the murder by roadside bomb of a thirty-one-year-old Indian American, Michael V. Bhatia. Bhatia first gained a measure of notoriety in 2003, when Bulletin of the Atomic Scientists published his warning that the United States, having easily and quickly won the war, was about to lose the peace in Iraq.55 Bhatia had begun a brief stint at Brown University as an international relations major in 1995. He first went into the field in his third year at Brown, working in an Algerian refugee camp. In that year, 1998, he testified about the Western Sahara conflict to the U.N. General Assembly. In those remarks he established the theme he repeated in his 2003 essay: “If outsiders are going to intervene in a conflict, they should not take half measures.”56 Seemingly a critic of Uncle Sam, Bhatia shocked friends and colleagues in 2007 when he announced his decision to join the Human Terrain System in Afghanistan. Professor Jarat Chopra of Brown’s Watson Institute for International Studies, Bhatia’s longtime mentor, commented, “I perpetually wrote him letters of recommendation” as he moved from project to project and global hot spot to hot spot. “With the exception of this last one. He didn’t ask me. I don’t know why. I don’t know what the circumstances were.”57 In March 2007, the American Anthropology Association’s commission came to Brown for a three-day meeting. The proceedings record Bhatia’s questions about how much independence social scientists in the Human Terrain program retain. In retrospect, colleagues see that he was already considering his next move. Indeed, he probably had been toying with this step for a couple of years. The evidence is in one of his Internet postings about himself:

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Al-Qaeda Goes to College April 2005–August 2007 (2 years 5 months) Conducted research throughout Afghanistan on small arms proliferation, militias, government-security bodies, and disarmament, demobilization and reintegration. Completed book tentatively titled The Gun in Afghanistan, including [seven] case-study chapters, an overview of arms flows to Afghanistan, and a typology of Afghan armed movements.58

By September 2007, he presented himself in his Internet profile as follows: Michael Bhatia’s Summary Academic and consultant with specialization in contemporary conflict, humanitarian intervention, UN peace operations, and defense studies. Field research and aid experience in the Sahrawi refugee camps (Algerian Sahara), East Timor, Kosovo, Pakistan, and Afghanistan. Author of War and Intervention: Issues for Contemporary Peace Operation (Kumarian Press, 2003); Editor of Terrorism and the Politics of Naming (Routledge, 2007); Co-Author of Gun in Afghanistan (Routledge, 2008); as well as of numerous peer-reviewed articles. Michael Bhatia’s Specialties: Academic, policy and critical (post-positivist/post-colonial) approaches to: Conflict analysis Humanitarian action Disarmament, Demobilization and Reintegration Security Sector Reform Military Strategy Michael Bhatia’s Experience Field Social Scientist Human Terrain Team, 4th Brigade Combat Team, 82nd Airborne Division (Government Agency; Defense & Space industry) September 2007–Present (11 months) I am currently deployed as a field social scientist in southeast Afghanistan, serving as both an adviser and as a field researcher on local political, economic, security and tribal dynamics.59

Bhatia’s May 7, 2008, death elicited a substantial outpouring of eulogies and appreciations. Human Terrain’s program director Steve Fondacaro

Anthropologists Go to War

wrote to the Chronicle of Higher Education, “There are no words to describe the loss. None. [He knew] what we wanted to accomplish, where we were going, and how to get there so much better than we did ourselves.” The Brown May/June 2008 alumni magazine published friends’ and colleagues’ remembrances: When the U.S. military announced the creation of the Human Terrain System, an effort to reduce civilian and military casualties by attaching academic experts to combat units, the program was met with denunciations from the American Anthropological Association and a variety of left-wing groups lamenting the use of scholars to further the goals of the U.S. government. As a result, the program has struggled to recruit qualified academics; Newsweek recently reported that many marginally qualified applicants were offered jobs and that an anthropologist writing a Ph.D. on [g]oth, punk, and rave subculture was offered a position in Iraq while several candidates with relevant linguistic expertise and Middle Eastern heritage were turned away, ostensibly for security reasons. The criticism didn’t faze Bhatia. He was an Ivy-Oxbridge academic with deep expertise on the political motives of combatants in Afghanistan. He had published scathing critiques of the U.S. and NATO conduct of the war in Afghanistan. He knew far more about the politics of post-9/11 Afghanistan than all but a handful of other specialists, few of whom were willing to put their lives on the line there. Bhatia refused to be an armchair critic, or to confine himself to the ivory tower. He offered his expertise to the Army’s 82nd Airborne Division. He chose to focus on the Human Terrain program’s possibilities instead of on its failings. He joined up believing that it would help reduce casualties among both Afghan civilians and NATO soldiers. And so he was killed on the way to mediate an intertribal dispute near the city of Khost. The soldiers and academics who served with him joked that the Afghan Human Terrain program should be renamed Bhatia Mediation Services because of his success in negotiating solutions with local tribal elders. His friends spoke—with no illusions—of his one day becoming U.S. secretary of state or U.S. ambassador to the United Nations. When faced with such speculation, Bhatia simply rolled his eyes. Our country has lost one of the most promising diplomats of its youngest generation of leaders, and Brown has lost one of the most formidable and unconventional minds ever to emerge from the Van Wickle Gates. And the hundreds, if not thousands, of people whose lives he touched have lost a dear friend.60

An Afghan colleague of Bhatia posted the following: An acquaintance of mine, Michael Bhatia, was killed in an IED [improvised explosive device] attack Wednesday in eastern Afghanistan. He was a

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Al-Qaeda Goes to College civilian social scientist who was working alongside U.S. soldiers in Afghanistan to assist them in being more effective in the mission to bring security, governance and reconstruction [to] this country; two other soldiers died in the same attack and two more are critically injured (as of Thursday). Though I have only known Michael a short time, I liked him a great deal. He was a scientist and humanitarian at once. He has spent more time working in Afghanistan than probably the miserable people who created— or influenced the creation of—the IED that took his life. Michael was one of the more unique academics. He wasn’t just concerned with publishing, papers, and tenure track; his interests and desires to show another side to conflict, and to teach others that nothing is cut and dry when it comes to war. People, and their motivations, are complex. I guess the reason I am writing this is because you might read that “two American soldiers were killed in a roadside attack in Afghanistan” in the papers today. Along with two soldiers, doing their job and serving their countries (and their loss is tremendous as well), there was an American civilian whose loss is not only tremendous for his family and friends, but for the world, and those dedicated to the cause of trying to bring peace, partly through understanding conflict.61

As this book went to press it remained to be seen whether the life and death of Michael Bhatia had turned the tide of academic opinion concerning the ethical implications and practical value of anthropologists and other social scientists adding their own boots to those of the soldiers on the ground in the war on terror.

Conclusion: Far More Wins Than Losses for Our Industry I believe that Part One amply illustrates that the threats posed to higher education by foreign and domestic terrorists fall into two broad categories: 1. Threats to life and property, ranging from actual injury and death and property destruction to the theft of intellectual property. 2. Threats to academic freedom and First Amendment rights posed by those charged with providing for our security and safety.

With regard to the first set of threats, I have argued that, while some institutions, such as Virginia Tech, have suffered unfortunate, unparalleled tragedies, and others have endured lesser losses of intellectual property, laboratory animals, and other university property, the net effect upon higher education as a whole has been positive. By that I mean that our industry has benefited in that our campuses are safer and more secure, as is our intellectual property, and while the financial benefits accruing to higher education in the form of government grants and contracts do not rival those of such megacontractors as Halliburton, they are substantial all the same.1 Additionally, I argued throughout Part One, but particularly in Chapters 1 and 4, that the impact of government regulation, prosecutions, and other intrusions has not been unduly damaging to academic freedom or First Amendment rights. Thus, I have contended throughout that, on balance, the impact of international and domestic terrorism and America’s war on terror upon higher education has been positive.

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For those who disagree with this idea, what follows now will be entirely unconvincing. Given that our professorate is predominantly liberal, I was not surprised to see numerous “Obama for President” and “January 20, 2009: End of an Error” bumper stickers in my university’s parking lot during the most recent election cycle.2 Nor was I surprised by protests in August 2008 over the incarceration of the former Brooklyn College student Syed Fahad Hashmi, accused of lending material aid to Al-Qaeda. As of early August some five hundred academics and so-called public intellectuals had signed the “Statement of Concern,” focused primarily on the conditions under which the former political science student was being detained in a Manhattan jail.3 Issues will undoubtedly arise well into the foreseeable future, regardless of which party occupies the White House or controls Congress when this book appears in print, and irrespective of what the Supreme Court and its subsidiary federal courts rule with respect to the rights of detainees, illegal immigrants, and so on. And, so, I will not be surprised to receive some sharp criticism from colleagues within the academy who find my conclusions to be naive or conservatively slanted. Never mind all that. Let me say what I think we ought to expect and what, if we are wise, we in higher education ought to want. (These comments are echoed by Dr. Dan Julius in this book’s Foreword.) “GOODBYE, MR. CHIPS” The novel tells the story of a much-loved schoolteacher through the long years of his tenure at Brookfield, the fictional boys’ public boarding school where he has taught. Arthur Chipping conquers his inability to connect with the boys at the school, as well as his initial shyness, when he marries Katherine, a young woman he meets on holiday who provides him with his nickname. “Chips,” despite his own mediocre academic record, goes on to have an illustrious career as an inspiring educator at Brookfield. Although the book is unabashedly sentimental, it also depicts the sweeping social changes that Chips experiences throughout his life: he begins his tenure at Brookfield in 1870, as the Franco-Prussian War is breaking out, and lies on his deathbed shortly after Hitler’s rise to power. . . . Clearly discernible is a nostalgia for the Victorian social order that had faded rapidly after Queen Victoria’s death in 1901 and whose remnants were fully destroyed by the First World War. Indeed, a recurring leitmotif throughout is the devastating impact of the war on British society. When the war breaks out, Chips, who had retired the year before at age sixty-five, agrees to come out of retirement to fill in for the various masters who have entered military service. Despite his being taken for a doddering fossil, it is Chips who keeps his wits about him during an air raid, averting mass panic and sustaining morale. Countless old boys and masters die on the battlefield, and much of the story involves Chips’s response to the horrors unleashed by the war.

Conclusion At one point, he reads aloud a long roster of the school’s fallen alumni, and, defying the modern world he sees as soulless and lacking transcendent values of honour and friendship, dares to include the name of an Austrian former master who has died fighting on the opposite side.4

So runs the plot of the 1934 novel Goodbye, Mr. Chips.5 Although Chipping teaches in a prep school, he has become symbolic of the AngloAmerican academic, especially after Peter O’Toole’s portrayal of him in 1969.6 That image is undergoing dramatic alteration during this first decade of the twenty-first century, as the following essay, reprinted courtesy of the Greentree Gazette, illustrates:

When CUNY Graduate College Professor Stanley Aronowitz published The Last Good Job in America: Work and Education in the New Global Technoculture in 2001, reviewer John Marsh observed that the radical-left author was referring “to Stanley Aronowitz, tenured sociology professor. His is a job that pays relatively well, not only affords but rewards time off for reflection, ensures job security, guarantees intellectual and political independence, and, while by no means uncluttered, nevertheless remains largely self-directed.” By contrast, continues Marsh, paraphrasing Aronowitz, “For . . . most workers, the weekend is more endangered than some California condors. We check our email six times a day. We own enormous homes that need to be repaired and remodeled. We commute hours to work and hours back home. . . . We live in an age . . . that has subsumed the human spirit—and all its social spaces and work and leisure time—to the imperatives of alienated work without end.” Aronowitz/Marsh seem to be describing millennial American lawyers. When, as a young attorney, I joined the Philadelphia mega-firm Saul Ewing in 1983, the managing partner boasted at a new-associate orientation that hourly billing was “the best thing that ever happened in our profession.” In one respect, he was absolutely right. Hourly rates have soared, surpassing inflation by a country lawyer’s mile. According to the August 22nd Wall Street Journal, “The hourly rates of the country’s top lawyers are increasingly coming with something new—a comma. A few attorneys crossed into $1,000-per-hour billing before this year, but recent moves to the four-figure mark in New York, which sets trends for legal markets around the country, are seen as a significant turning point. On September 1, New York’s Simpson Thacher & Bartlett LLP will raise its top rate to more than $1,000 from $950. Firm partner Barry Ostrager, a litigator, says he will be one of the firm’s thousand-dollar billers, along with private-equity specialist Richard Beattie and antitrust lawyer Kevin Arquit. The top biller at New York’s Cadwalader, Wickersham & Taft LLP hit $1,000 per hour earlier this year. At

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Al-Qaeda Goes to College Fried, Frank, Harris, Shriver & Jacobson LLP, also of New York, bankruptcy attorney Brad Scheler, now at $995 per hour, will likely soon charge $1,000.” What has hourly billing meant to lawyer’s clients? In the words of one maverick law firm, Traverse Legal, PLC, “Lawyers who bill by the hour typically spend their time thinking about hours rather than results. Few hourly billing attorneys tell their client what they will be delivering and the costs [up front]. Once deliverables are defined, a value billing attorney simply asks himself/herself the same question each moment of each day: ‘How do I deliver the deliverables I have promised the client?’ Instead of cases just meandering forward, each day the lawyer’s required to think strategically. . . . The lawyer has tremendous incentive to achieve that result sooner, rather than later. This is because hours of time now count against him/her in contrast to the hourly billing approach where hours count against the client.” An analogy might be drawn to the classroom, where one might argue the tenured professor worries about delivering the best possible educational product, while the contingent faculty member focuses on getting in, getting out, and getting on to the next gig. What has hourly billing meant for law firm partners and associate attorneys? Indiana-Bloomfield law professor Bill Henderson reported last May that “many firms are actively thinning the ranks of equity partners.” This perception was confirmed for me by Eric Gouvin, associate dean for academic affairs and a full professor of law at Western New England College’s law school. “Sometimes it’s pretty unceremonious,” he says. In many firms “partners have given away almost all their rights. Running the firm is delegated to a committee, which runs the firm like a business. Underperforming partners are given a warning and then shown the door.” He adds that “the EEOC has been watching this. The agency’s position often is that so-called partners have ceded so many rights that they are really employees. They are no longer partners, the way they actually work on the ground.” If many law firm partners are in this difficulty, what of the associate attorneys? University [p]rofessor David Luban of Georgetown recently drew an analogy between big-firm associates and classic “exploited workers,” as Karl Marx might have called them. “With overhead, an associate costs a law firm double her salary. . . . Thus an associate must bill 1,500 hours simply to pay for herself. Because not every hour can be billed, that is about 1,800 hours of work . . . six hours a day, six days a week. . . . The rest of the day is the ‘unpaid labor’ generating the surplus value—value that the partners appropriate.”

Conclusion Lest this sounds too onerous, let us remind ourselves that we are talking about 26-year-olds earning upwards of $150,000 per year and billed out at $200 or more per hour. Little wonder that big firms have no trouble recruiting top law school graduates. Perhaps the same may be said of higher education. The American Association of University Professors bemoans the decline of tenured and tenure track faculty as a percentage of the total professorate. In December 2006 the AAUP reported that since the seventies the representation of tenured and tenure track teachers at some 2600 institutions tracked had declined from 57 percent to 35 percent, while the comparable figures for full- and parttime contract faculty reflected an increase from 43 percent to 65 percent during the same period. However, caution knowledgeable observers, it would be a mistake to assume that these contingent faculty are all “exploited workers.” To the contrary, comments Eric Gouvin, “I’ve been at my law school for sixteen years. For faculty of my generation, this is unusual. There has been a generational shift about how much loyalty is owed to a place. Many young faculty feel, ‘I’ll do what I contract to do, but don’t expect a long-term commitment.’ Some also feel, ‘I’d rather get paid at market value, then get tenure. I’ll trade some security for salary.’” Others, he adds, may stick around until they attain tenure, then transport that job security to a better-paying or more prestigious venue. Dr. Anthony Liuzzo, a J.D./Ph.D. who runs the M.B.A. program at Pennsylvania’s Wilkes University and who at sixty is a generation ahead of Gouvin, agrees. “In some ways this is reflective of the larger economy,” he contends. “I’m not even sure junior faculty want tenure.” He continues, “Older faculty appreciate loyalty and longevity. Our parents worked for the same companies all their lives. I ask my M.B.A. students would they be interested in working for a company for thirty years and they laugh at me. This may be true of newly minted Ph.D.s as well.” Furthermore, the professorate has its counterparts to law’s $1,000/ hour mega-partners. Some law professors at top schools now earn upwards of a quarter-million dollars per academic year, while top medical professors, such as at [New York University], have long been earning in excess of a million dollars annually. Predicting that the tenure system “will be dented on a number of fronts” in the coming decades, he demurs that “exploited is an over-statement” when it comes to considering the roles of contingent faculty. Describing himself as a “free-marketer,” he speculates, “The decline of tenured faculty and the tenure system may not be such a bad thing. There will be more

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Al-Qaeda Goes to College mobility. If tenure somehow went away, there’d be a lot of openings . . . 20– 25 percent might be forced out. This would drive up wages. It might be good for both individual institutions and for (competent) faculty.” On the other hand, he wonders if it might be “bad for the industry. The benefits of tenure include shared governance. Without tenure, all power would be transferred to the administration, which is primarily interested in the short term, while the tenured faculty tend to take the long view. Higher education would wind up with the same problems that plague corporations which quest only for short-term profits.” His comments echo the concerns expressed by Traverse Legal about hourly billing. Western New England’s Gouvin takes a different tack on these points: “The broadest trend I see is how philanthropy is administered. It’s all about accountability. Administrators turn to the for-profit playbook. An institution’s biggest cost is people. Lots of institutions are aggressively paring down their people costs by cutting tenured faculty to the bare minimum. The problem for administrators is that there’s no comparable private-sector playbook for managing tenured faculty. Tenure protects dead wood. That’s the terrible side of it. Administrators have to turn to the ‘soft side’ in order to try to make these folks more productive.” Thus, he says, the trend toward trimming down the tenured ranks. In the last analysis, it seems that while both life-time law partners and tenured faculty are declining as percentages of their respective professions, neither category is likely to vanish in any reader’s lifetime. And while both associate attorneys and contingent faculty are working harder than ever, the monetary rewards are often commensurate with the demands and the insecurity . . . at least so far. However, if the parallel paths being pursued by these two professions are destined to converge a bit farther down the [twenty-first] century road, the point of convergence might not bode well for either contract faculty—or even tenured professors below the level of the well-endowed mega-profs— or for the lower ranks of law partners and associate attorneys. Outsourced legal work, primarily to Indian lawyers and paralegals, has been estimated at $163 billion—yes, that’s billion—for calendar 2006. The higher education analogy would seem to be distance learning, which some disgruntled faculty have labeled “prof in a box.” In other words, the majority of practitioners in both professions may be destined to endure the hard side of globalization, and as a result of much the same technological advances. But that’s for tomorrow. What of “the last good job in America” today? Here Eric Gouvin probably should get the last word. “I certainly think I do have the best job in the legal world. Every day I wake up and thank God.”7

Conclusion

Goodbye, Mr. Chips is indeed the order of the day in American higher education. We are in a big business, just as surely as are those of our alumni who are harnessed to Fortune 1000 corporations. Our presidents, and even more so the presidents of our NCAA Division I athletic programs, are receiving compensation packages in the seven- and eight-figure ranges, not unlike the CEOs of most decent-sized for-profit companies.8 Our institutions, and even our executives, are sued with increasing regularity, just like our for-profit counterparts.9 Our intellectual property rivals in value that of the Silicon Valley.10 Our physical security needs are every bit as challenged as those of private industry, if not more. And the pressure of global competition is every bit as sharp. These facts, it seems to me, are irrefutable. Indeed, these facts explain, better than anything else, why we are saying good-bye to Mr. Chips and why the last good job in America is slowly but surely giving way to a model dominated by contingent faculty. It also explains why the war on terror, the ongoing threats to our persons and property posed by international and domestic terrorists, and the closely related threat of information espionage are in the long pull blessings in disguise. I have argued from the introduction through all eight chapters of this book that the harm done by terrorists and by the resulting government reactions in the name of security is vastly outweighed by the benefits that have accrued to our campuses. Beyond the financial benefits in the form of contracts and grants—whether from Saudi Arabia or Uncle Sam or the myriad private foundations and corporations interested in obtaining higher education’s available services—terrorism has forced higher education, not unlike America itself, to grow up and come of age. Globalization and competition— both from foreign universities and the for-profit sector of American higher education—would have brought about the maturation of our industry eventually, as Dr. Julian’s foreword suggests. Terrorism accelerated the process by decades. As I noted previously, colleagues of mine who mourn the death of the good-old, ivy-walled, tweedy college of yore will not endorse this thesis. The nostalgic side of my own psyche is capable of joining in the dirge. However, the greater part of me is forward looking and inclined to embrace the newfound sophistication that has come with the first decade of the new century to American higher education. And for this, we must give the devil— be he in the guise of Osama bin Laden or Seung-Hui Cho—his due, just as historians, if they are candid, must give another demon, Adolph Hitler, his fair measure of credit for drawing the United States out of its shell to assume its role as a superpower on the world stage.

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Notes INTRODUCTION 1. “The 2001 anthrax attacks in the United States, also known as Amerithrax from its FBI case name, occurred over the course of several weeks beginning on September 18, 2001. Letters containing anthrax spores were mailed to several news media offices and two Democratic U.S. Senators, killing five people and infecting [seventeen] others. The crime remains unsolved.” From “2001 Anthrax Attacks,” Wikipedia, http://en.wikipedia.org/wiki/2001 anthrax attacks (last accessed July 5, 2008); see also, Eric Liption, “Anthrax Inquiries Expand in Three States,” New York Times, October 14, 2001, available at http://www.anthraxinvestigation.com/ nyt.html (last accessed December 30, 2008). 2. “Hamilton, N.J. Post Office Reopens after Anthrax Attacks,” USA Today, March 14, 2005, available at http://www.usatoday.com/news/nation/2005-03-14anthrax-cleanup x.htm (last accessed August 3, 2008). 3. http://www.detrick.army.mil/. 4. David Willman, “U.S. Settles with Anthrax Mailing Subject for $5.82 Million,” Los Angeles Times, June 28, 2008, available at http://www.latimes.com/news/ printedition/front/la-na-anthrax28-2008jun28,0,5742061.story (last accessed August 2, 2008). 5. Carrie Johnson, Del Quentin Wilber, and Carol Leonnig, “Maryland Anthrax Scientist Dies in Apparent Suicide,” Washington Post, August 1, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/08/01/ AR2008080100404 pf.html (last accessed August 1, 2008); see also, David Williams, “Apparent Suicide in Anthrax Case: Bruce E. Ivins, a Scientist Who Helped the FBI Investigate the 2001 Mail Attacks, Was About to Face Charges,” Los Angeles Times,

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Notes August 1, 2008, available at http://www.latimes.com/news/nationworld/nation/lana-anthrax1-2008aug01.0.2864223.story (last accessed on August 1, 2008). 6. Ibid. 7. Ibid. 8. See Chapter 4, which includes a more extensive discussion of federal regulation of international students in our post-9/11 environment. 9. “Despite promises to tighten controls on student visas after Sept. 11, the government is at least a year from making the system safer from terrorists, who used the visas while plotting the 1993 World Trade Center bombing and the September attacks, immigration officials say.” Kate Zernike and Christopher Drew, “A Nation Challenged: Student Visas; Efforts to Track Foreign Students Are Said to Lag,” New York Times, January 28, 2002, available at http://query.nytimes.com/gst/fullpage. html?res=9805E3DC123AF93BA15752C0A9649C8B63&sec=&spon=& pagewanted=all(last accessed July 5, 2008). 10. Available at http://www.ala.org/Template.cfm?Section=ifresolutions& Template=/ContentManagement/ContentDisplay.cfm&ContentID=11891 (last accessed August 16, 2008). 11. See, e.g., Carol Brevart-Demm, “‘Mr. Search and Seizure’: Lawyer Kelly M. Tillery ’76 Protects All Kinds of Businesses from Modern-Day Pirates,” Swarthmore College Bulletin, March 2002, available at http://www.swarthmore.edu/bulletin/ mar02/tillery.html (last accessed July 5, 2008). 12. How could terrorists, spies, and criminals threaten national security by taking advantage of the openness and activities of U.S. universities? Consider the possibilities:

r Foreign spies—posing as international students or visitors—trying to steal sensitive and classified university research and to undermine technology export policies and controls; r Terrorists and criminals studying advanced technologies and scientific breakthroughs on campus to use against the [United States]; r Violent extremists using student visas to slip into the country undetected; and r Hackers attacking college computer networks and possibly stealing secrets, research, and identities. Federal Bureau of Investigation, “Academic Alliance: Working to Protect the Nation,” available at http://www.fbi.gov/page2/april06/academicalliance040506.htm (last accessed July 5, 2008). 13. I interviewed Tillery and Mahlik for a column that appeared in the September 2006 Greentree Gazette at pages 34 and 68; all such material is drawn from that column. 14. “Academia is an industry like many of those in the private sector. It produces valuable patents, copyrights and other intellectual property. Consequently, the ‘research for sale’ industry by way of corporate/university partnerships continues to grow. While it is certain that academics participating directly in corporate research partnerships are required to abide by project confidentiality agreements, their colleagues and other academic researchers peripherally involved may only be

Notes required to adhere to their own university’s policies, which may or may not be sufficient. From a corporate executive and strategic policy standpoint, important questions arise. Are corporate interests protected by the presence of valid university intellectual property policies, or should there be concern? In an effort to answer this question, our article examines university policies for the purpose of determining which academic institutions are more likely to maintain protective policies, private or public, and which policies are most prevalent amongst universities: patent, copyright, general loyalty clauses, invention, trademark or trade-secret policies.” Cory R. Fine and James Ottavio Castagnera, “Should There Be Corporate Concern? Examining American University Intellectual Property Policies,” Journal of Intellectual Capital 4, no. 1 (2003): 49–60. 15. Ibid., 49. 16. U.S. Attorney, District of Massachusetts, “Pair Charged with Theft of Trade Secrets from Harvard Medical School,” available at http://www.usdoj.gov/criminal/ cybercrime/zhuCharges.htm (last accessed on July 5, 2008). 17. See Beth Aaron, “Butler Transported to Federal Prison,” Daily Toreador, April 15, 2004, available at http://media.www.dailytoreador.com/media/storage/ paper870/news/2004/04/15/LocalNews/Butler.Transported.To.Federal.Prison1278656.shtml (last accessed on July 5, 2008). 18. Sequoia Sciences, Inc. v. Wood, 2006 WL 346319 (D. Conn., Feb. 6, 2006; 2006 WL 860475 (D. Conn., Mar. 31, 2006). 19. Available at http://www.ice.gov/pi/iprctr/index.htm (last accessed August 10, 2008). 20. In addition to SEVIS (see also Chapter 4), note that the USA PATRIOT Act, among other things, opens university libraries to scrutiny by federal agents. “The USA PATRIOT Act amended over [fifteen] federal statutes, including the laws governing criminal procedure, computer fraud and abuse, foreign intelligence, wiretapping, immigration, and the laws governing the privacy of student records. These amendments expanded the authority of the Federal Bureau of Investigation and law enforcement to gain access to business records, medical records, educational records and library records, including stored electronic data and communications. It also expanded the laws governing wiretaps and ‘trap and trace’ phone devices to Internet and electronic communications. These enhanced surveillance procedures pose the greatest challenge to privacy and confidentiality in the library.” See “U.S. PATRIOT Act in the Libraries,” American Library Association, http://www.ala.org/ala/oif/ifissues/usapatriotactlibrary.cfm. 21. See http://www.rider.edu/175 10765.htm. 22. Terrorism is by no means the only cause of a more corporate highereducation industry. Global competition, entry into the market by for-profit competitors, and a consumerist attitude among a substantial segment of the industry’s customers (students and parents) with its concomitant tendency toward more litigation are among the other factors forcing colleges and universities to function more like other businesses. Nonetheless, it is difficult to understate the impact of terrorism on how we in higher education conduct our enterprise. See, e.g., Robert O’Neil, “For the Record: Higher Education and National Security,” American Association of University Professors, http://www.aaup.org/AAUP/issues/AF/oneilFTR.htm (last accessed August 3, 2008).

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CHAPTER 1 1. Ward Churchill, “‘Some People Push Back’: On the Justice of Roosting Chickens,” Pockets of Resistance, September 12, 2001, 20. 2. “Ward Churchill,” Wikipedia, http://en.wikipedia.org/wiki/Ward Churchill (last accessed June 29, 2008). 3. Ibid. 4. Ibid. 5. See Ward Churchill (ed.), Marxism and Native Americans (Boulder, CO: South End Press, 1984); Ward Churchill and Elisabeth Lloyd, Culture versus Economism: Essays on Marxism in the Multicultural Arena (Boulder, CO: Indigena Press, 1984); Ward Churchill and Jim Vander Wall, Agents of Repression: The FBI’s Secret Wars against the Black Panther Party and the American Indian Movement (Boulder, CO: South End Press, 1988), and The COINTELPRO Papers: Documents from the FBI’s Secret War against Domestic Dissent (Boulder, CO: South End Press, 1990). 6. “Ward Churchill,” Discoverthenetworks.org, http://www. discoverthenetworks.org/individualProfile.asp?indid=1835 (last accessed December 30, 2008). 7. See Denver Post article dated January 18, 1987, available at http:// www.gnosis.cx/photos/news/Churchill-DenverPost-1987.gif (last accessed June 29, 2008). 8. Dave Curtin, Howard Pankratz, and Arthur Kane, “Questions Stoke Ward Churchill’s Firebrand Past,” Denver Post, February 13, 2005, available at http:// www.denverpost.com/search/ci 0002709008 (last accessed June 29, 2008). 9. Howard Pankratz, “CU Prof Affirms Indian Heritage; Tribe Says He’s Not Full Member,” Denver Post, February 3, 2005, available at http://www.denverpost. com/search/ci 0002689334 (last accessed June 29, 2008). 10. Berny Morson and Charlie Brennan, “Churchill Tenure Questioned: Prof Was Granted Job Security without Usual Review Process,” Rocky Mountain News, February 16, 2005, available at http://www.rockymountainnews.com/news/2005/ feb/16/churchill-tenure-questioned/ (last accessed on June 29, 2008). 11. Jodi Rave, “Free Speech for Fake Indian,” Rapid City Journal, February 12, 2005, available at http://www.rapidcityjournal.com/articles/2005/02/12/news/ opinion/opin338.txt (last accessed June 29, 2008). 12. Ibid.; the book is Ward Churchill, On the Justice of Roosting Chickens: Reflections on the Consequences of U.S. Imperial Arrogance and Criminality (Oakland, CA: AK Press, 2003). 13. “Report on Conclusion of Preliminary Review in the Matter of Professor Ward Churchill,” University of Colorado, http://www.colorado.edu/news/reports/ churchill/report.html (last accessed July 4, 2008). 14. Ibid. 15. Ibid. 16. Ibid. 17. “CU to Fire Ward Churchill,” June 26, 2008, available at http://www. thedenverchannel.com/news/9424240/detail.html (last accessed July 4, 2008). 18. “Statement of the AAUP Chapter at the University of Colorado at Boulder Regarding the Investigation and Recommended Termination of Professor

Notes Ward Churchill,” January 25, 2007, http://www.aaup-cu.org/publications/ chapterstatements.html (last accessed December 30, 2008). 19. John Gavois, “Colo. Regents Vote to Fire Ward Churchill: Research Misconduct Cited, but Professor Says Decision Was Political and Sues,” Chronicle of Higher Education, August 3, 2007, available at http://chronicle.com/cgibin/printable.cgi?article (last accessed July 21, 2008). 20. Berny Morson, “Lawyer Plans Legal Action,” Rocky Mountain News, July 25, 2007, available at http://www.rockymountainnews.com/news/2007/jul/25/ lawyer-plans (last accessed July 21, 2008). 21. http://www.killmerlane.com/about.html. 22. http://www.killmerlane.com/lane.html. 23. Gavois, “Colo. Regents.” 24. Ibid. 25. Dan Elliott, “Professor in 9/11 Dispute Sues CU,” Associated Press, July 25, 2007, available at http://www.vaildaily.com/apps/pbcs.dll/article?AID=/20070725 (last accessed July 21, 2008). 26. Brittany Anas, “Ward Churchill to Teach Unsanctioned Course on CU Campus: University Distancing Itself for Student-Organized Lecture Series,” Daily Camera, September 28, 2007, available at http://www.dailycamera.com/news/2007/ sep/28/churchill-back-on-campus (last accessed July 23, 2008). 27. Associated Press, “CU Asks Judge to Dismiss Ward Churchill’s Lawsuit,” Daily Camera, September 5, 2007, available at http://www.dailycamera.com/news/ 2007/sep/05/cu-asks-judge-dismiss (last accessed July 23, 2008). 28. Michael Roberts, “Ward Churchill Butts Heads with a Reporter: What Started as a Simple Class Visit Has Now Resulted in an Arrest Warrant,” Westword, October 18, 2007, available at http://www.westword.com/content/printVersion/ 616686 (last accessed December 30, 2008). 29. John Gravois, Richard Byrne, and Jennifer Ruark, “The MLA on Academic Freedom, Faculty Status, and the Value of Argument,” Chronicle of Higher Education, January 11, 2008, available at http://chronicle.com/cgi-bin/printable.cgi?article (last accessed July 23, 2008). 30. Marc Bousquet, “The Churchill Case Goes to Trial,” How the University Works, http://howtheuniversityworks.com/wordpress/archives/130 (last accessed July 23, 2008). 31. Matter of Search of Office Suites for World and Islam Studies Enterprise, 925 F. Supp. 738 (M.D. Fla., 1996). 32. The basic biographical facts on Sami Al-Arian are drawn from Wikipedia, available at http://en.wikipedia.org/wiki/Sami Al-Arian (last accessed July 24, 2008). 33. “Established in 1986 by Sami Al-Arian and Hussam Jubara, the Islamic Committee for Palestine (ICP) was promoted as a philanthropic advocacy group devoted to alleviating the suffering of Palestinian women and children. In reality, the organization served as an American front for the terrorist organization Palestinian Islamic Jihad. At a 1991 conference in Cleveland, Ohio, a lecturer introducing Al-Arian as the ICP president candidly called the Committee ‘the active arm of the Jihad movement in Palestine.’ ‘We like to call it the Islamic Committee for Palestine here for security reasons,’ he added. Shortly after being introduced that evening, Al-Arian declared, ‘Let us continue the protests. Let us damn

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Notes America. Let us damn Israel. Let us damn their allies until death.’ Available at http://www.discoverthenetworks.org/groupProfile.asp?grpid=6385. 34. “The World Islam Study Enterprise (WISE) was established as an ‘Islamic think tank’ in 1991 by four professors at the University of South Florida (USF): Sami Al-Arian, his brother-in-law Mazen al Najjar, Khalil Shikaki, and Ramadan Abdullah Shallah. Abdullah left WISE (before it was shut down by federal authorities in 1995) to become head of the terrorist organization Palestinian Islamic Jihad (PIJ). Khalil Shikaki is the brother of Fathi Shikaki, the founder of PIJ. When Fathi Shikaki was assassinated, his replacement as PIJ’s military head was Ramadan Abdullah Shallah.” Available at http://www.discoverthenetworks.org/groupProfile.asp?grpid= 6445. 35. “Established in 1988 (under the name ‘Occupied Land Fund’) by Shukri Abu Baker, Mohammad El-Mezain and Ghassan Elashi, the Holy Land Foundation for Relief and Development (HLF) was a non-profit, tax-exempt, charitable trust headquartered in Richardson, Texas. It also maintained branch offices in New Jersey, California, and Illinois. Its name change took place in 1992. Calling itself America’s largest Islamic charity, HLF purported to be a source of help for needy Palestinian Muslims in Israel, Jordan, Lebanon, and the Palestinian Authority. ‘Our mission,’ stated its website, ‘is to find and implement practical solutions for human suffering through humanitarian programs that impact the lives of the disadvantaged, disinherited, and displaced peoples suffering from man-made and natural disasters.’ In reality, however, the Foundation was a major financier of the terrorist organization Hamas.” Available at http://www.discoverthenetworks.org/groupProfile.asp?grpid=6181. 36. See http://schools.privateschoolsreport.com/Florida/Tampa/ IslamicAcademyOfFlorida.html. 37. Michael Isikoff, “Hiding in Plain Sight: Did a Muslim Professor Use Activism as a Cloak for Terror?” Newsweek, March 3, 2003, 27. 38. Ibid. 39. Dana Mulhauser, “Professor Linked to Terrorist Groups Is Placed on Leave by U. of South Florida,” Chronicle of Higher Education, October 26, 2001, available at http://chronicle.com/weekly/v48/i09/09a01901.htm (last accessed July 24, 2008). 40. Ibid. 41. Sharon Walsh, “University Seeks Court Approval to Fire Professor It Accuses of Terrorism,” Chronicle of Higher Education, September 6, 2002, available at http://chronicle.com/weekly/v49/i02/02a02201.htm (last accessed July 25, 2008). 42. Sharon Walsh, “U. of South Florida Professor Indicted of Aiding Terrorists,” Chronicle of Higher Education, February 28, 2003, available at http:// chronicle.com/weekly/v49/i25/25a01201.htm (last accessed July 25, 2008). 43. Scott Smallwood, “U. of South Florida Fires Professor Accused of Terrorism,” Chronicle of Higher Education, March 7, 2003, available at http://chronicle. com/weekly/v49/i26/26a01201.htm (last accessed July 25, 2008). 44. Meg Laughlin, Jennifer Liberto, and Justin George, “Eight Times, Al-Arian Hears ‘Not Guilty,’” St. Petersburg Times, December 7, 2005, available at http:// www.sptimes.com/2005/12/07/Tampabay/8 time Al Arian hea.shtml (last accessed July 25, 2008). 45. Elaine Silvestrini, “Al-Arian Admits His Role in Jihad,” Tampa Tribune, April 18, 2006, A1.

Notes 46. “Ex-Professor Gets over 4 Years in Florida Jihad Case,” Reuters, May 1, 2006. 47. United States v. Al-Arian, 514 F.3d 1184 (11th Cir. 2008). All citations are omitted here; also, all case names referred to in this extract have been set in italic by the author. 48. Meg Laughlin, “Gaunt Al-Arian Shocks Family,” St. Petersburg Times, March 20, 2007, available at http://www.sptimes.com/2007/03/20/Hillsborough/ Gaunt Al Arian shocks.html (last accessed July 25, 2008). 49. http://www.freesamialarian.com/home.htm. 50. American Muslim Association of America, “Dr. Sami Al-Arian Granted Bail,” available at http://al-amana.net/home/2008/07/11/dr-sami-al-arian-grantedbail/ (last accessed July 25, 2008). 51. Robert O’Neil, “For the Record: Academic Freedom and National Security,” American Association of University Professors, available at http://www.aaup. org/AAUP/issues/AF/oneilFTR.htm (last accessed August 3, 2008). 52. “Sharia,” Wikipedia, http://en.wikipedia.org/wiki/Sharia. 53. Bob Considine, “Harvard Gym Restriction Stirs Controversy,” TODAYShow.com, March 10, 2008, http://www.msnbc.msn.com/id/23556551/ (last accessed December 30, 2008). 54. Ibid. 55. Ibid. 56. Noah Feldman, “The Way We Live Now: Universal Faith,” New York Times Magazine, August 26, 2007, available at http://www.nytimes.com/2007/08/ 26/magazine/26wwln-lede-t.html (last accessed October 11, 2008). 57. Hugh Fitzgerald, “No Public Funds for Islamic Footbaths,” Dhimmi Watch, June 9, 2007, http://jihadwatch.org/dhimmiwatch/archives/016829.php (last accessed October 11, 2008).

CHAPTER 2 1. John H. Dunkle, Zachary B. Silverstein, and Scott T. Warner, “Managing Violent and Other Troubling Students: The Role of Threat Assessment Teams on Campus,” Journal of College and University Law 34, no. 3 (2008): 586–636. 2. Dr. Heatly’s written reports are accessible at the Biography Project Web site, http://www.popsubculture.com/pop/bio project/charles whitman docs.html. 3. See Austin Public Library, “Austin History Center Opens Charles Whitman Records to the Public,” December 18, 2001, available at http://www.ci.austin.tx.us/ library/news/nr20011218.htm (last accessed August 18, 2008). 4. Gary Lavergne, A Sniper in the Tower (Denton: University of North Texas Press, 1997). “The publication of A Sniper in the Tower: The Charles Whitman Murders . . . , a factually definitive (though suppositionally flawed) history of Charles Whitman’s August First, 1966 UT ‘marksmanship display’—in combination with films like Raoul Walsh’s 1949 White Heat and Richard Linklater’s Slacker— should further guide one towards something of what has been billed as ‘America’s first mass murder’: an event leaving [sixteen] dead, [thirty-one] wounded, and Charles Whitman’s name smeared across a generation’s newsprint.” Quote from Tom Aiken, “Boom, Boom . . . Out Go the Lights,” Austin Chronicle, September 4,

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Notes 1997, available at http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid% 3A518335 (last accessed June 14, 2008). 5. http://www.utsystem.edu/pol/. 6. http://css.ocis.temple.edu/. 7. “The 307-foot tall UT Austin Tower, designed by Paul Cret of Philadelphia, was completed in 1937. Through the years, the Tower has served as the University’s most distinguishing landmark and as a symbol of academic excellence and personal opportunity. The observation deck of the UT Tower offers a spectacular view of the UT Campus and the Austin area in all directions. Thanks to the cooperative effort of students, staff, and the University administration, the observation deck has recently been remodeled and reopened to the public for the first time in nearly three decades. As a part of the renovation process, persons with disabilities now also have access to this monumental view. . . . This building has truly become the symbol which its esteemed designer intended, the image carried in our memory when we think of the place.” Available at http://www.utexas.edu/tower/. 8. For example, “The American Civil Liberties Union and New York Civil Liberties Union have filed a federal civil rights lawsuit against JetBlue Airways and a Transportation Security Administration (TSA) official for barring an American resident of Arab descent from boarding his flight until he agreed to cover his T-shirt, which read ‘We Will Not Be Silent’ in English and Arabic script. The passenger, Raed Jarrar, was told that wearing an Arabic shirt to an airport was the equivalent of a ‘person wearing a T-shirt at a bank stating, ‘I am a robber.’ The lawsuit alleges that the TSA official and JetBlue Airways illegally discriminated against Jarrar based solely on the Arabic message on his T-shirt and his ethnicity.” “We Will Not Be Silent: Lawsuit against TSA and JetBlue Charges Racial Discrimination and Free Speech Violation,” American Civil Liberties Union, available at http://www.aclu. org/racialjustice/racialprofiling/index.html (last accessed June 14, 2008). 9. E.g., “In the six and a half years since the Sept[ember] 11 terrorist attacks, federal law-enforcement agencies have secretly established profiling techniques to screen immigrants based on their nationalities, protocols that critics charge encourage the unjustified targeting of Muslims. The profiling, described in a February 2006 Immigration and Customs Enforcement memo that McClatchy obtained, shows that the government has relied more heavily on nationality as an indicator of security risks than was previously known. Federal agencies have created internal lists of countries that are of ‘special interest’ for national security reasons, wrote the memo’s author, Ted Stark, supervisory special agent with the Office of Intelligence at ICE.” Marisa Taylor, “Law Enforcement Officials Secretly Profiling Immigrants,” McClatchy Newspapers, March 4, 2008, available at http://www.mcclatchydc.com/227/story/29282.html (last accessed June 14, 2008). 10. http://www.timeandleisure.co.uk/. 11. http://www.time.com/time/. 12. See http://en.wikipedia.org/wiki/Kimveer Gill for details; among other things, this site offers evidence that the Dawson College incident may not have been Gill’s first attack on a school and reproduces excerpts from his diary, such as: “I’m so sick of hearing about jocks and preps making life hard for the goths and others who look different, or are different. The other day on TV they were talking about this [fifteen-year-old] kid that was killed by the cops, cuz he took a fake gun to school. Then they said he was emotionally disturbed and suicidal. Aaaaa, Duh!!

Notes If people were making your life a living hell wouldn’t you be hurt emotionally. How come no one ever talks about those motherfucking jocks and preps who’s fault it is. Oh no. Heaven forbid. We couldn’t possibly say that. Why does society applaude [sic] jocks? I don’t understand. They are the worse [sic] kind of people on earth. And the preps are no better, they think they’re better than others . . . but they’re not. And all of society applaudes [sic] the jocks and preps. As if we are all supposed to be like them. Newsflash motherfuckers: We will never be like them. Never. Stop Bullying It’s not only the bully’s fault you know!! It’s the teachers [sic] and principals [sic] fault for turning a blind eye, just cuz it’s not their job. You fuckers are pathetic. It’s the police’s fault for not doing anything when people complain (oops, my mistake, the cops are corrupt sons of whores, so it’s not like they can do anything about it.) Fuck the police. It’s society’s fault for acting like it’s normal for people to be assholes to each other. Society disgusts me. It’s everyone’s fault for being so apathetic towards fucking everything that doesn’t affect them personally. Fuck you society.” 13. http://www.vampirefreaks.com. 14. http://www.columbinegame.com. 15. The video game “Grand Theft Auto” has attracted plenty of litigation. E.g., in In re Grand Theft Auto Video Game Consumer Litigation (II), (416 F. Supp.2d 1350, Judicial Panel for Multidistrict Litigation 200), the court said: This litigation consists of five actions pending in two federal districts and listed on the attached Schedule A. Before the Panel is a motion by the plaintiffs in the four Southern District of New York actions, pursuant to 28 U.S.C. § 1407, seeking centralization of this litigation in the Southern District of New York. The two affiliated defendants in all actions—Take-Two Interactive Software, Inc. (Take-Two) and Rockstar Games, Inc. (Rockstar)—and the plaintiff in the Southern District of Illinois action agree that centralization is appropriate. Take-Two and Rockstar support centralization in the New York district, while the Illinois plaintiff suggests selection of the Illinois district as transferee forum. On the basis of the papers filed and hearing session held, the Panel finds that the actions in this litigation involve common questions of fact, and that centralization under Section 1407 in the Southern District of New York will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All five putative nationwide class actions arise out of allegations that Take-Two and Rockstar engaged in deceptive marketing by failing to disclose that their video game Grand Theft Auto: San Andreas contained hidden sexually explicit content. Centralization under Section 1407 is necessary in order to

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Notes eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary. For the $600 million lawsuit, see “Alabama Supreme Court Keeps $600 Million Alive,” March 30, 2006, at http://www.feedsfarm.com/article/ 8a49b8c79cb35e32eb616ed33fa98f246a4c7090.html (last accessed June 14, 2008). If reports from the video game industry can be believed, the makers of “Grand Theft Auto” can well-afford to pay such a verdict. For example: If the transaction to buy Take-Two goes through, EA will own the GTA brand, but investors appear to be concerned that the talent behind the games may soon walk if new management is unable to negotiate satisfactory contracts with key Rockstar personnel. Wedbush Morgan’s Michael Pachter elaborated in a Tuesday investor note: “[GTA] could likely be released every two years, but its success and profitability will depend upon whether the creative talent responsible for the first four versions is retained, and upon the price commanded by this talent for their contribution. . . . If EA is unable to reach an accord with the Housers (founders of Rockstar) or with the Rockstar North studio, we envision that EA would choose to release a game entitled Grand Theft Auto and using the existing engine, and could generate $150 million every two years at a 50 percent operating profit. Should the company be able to reach a satisfactory arrangement with Rockstar North, we expect that the game would generate closer to $600 million every two years at somewhere around a 30 percent operating profit (presuming an ‘internal royalty’ of 20 percent). Thus, the expected range of operating profits from ‘Grand Theft Auto’ is between $75 [and] $180 million every two years, or $35 [and] $90 million annually. From Kris Graft, “What Would Happen to GTA?” Next Generation, February 26, 2008, available at http://www.next-gen.biz/index.php?option=com content&task=view&id=9319&Itemid=2&show=1&start=4 (last accessed June 14, 2008). 16. http://www.workfriendly.net/browse/Office2003Blue/http/gamepolitics. com/ (last accessed June 14, 2008); see also Spiegel Online, http://www.workfriendly. net/browse/Office2003Blue/http/www.spiegel.de//international/world/ 0,1518,559575,00.html (this site includes comparisons of video clips of actual terrorist attacks with sequences from “Grand Theft Auto”). 17. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976). 18. “Direct and proximate” is a legal phrase of great significance in personal injury law. A cause that is so remote in time, or so unlikely to cause harm that the result was unforeseeable, will not support a successful lawsuit against the defendant. Only when the defendant’s careless act is a direct and proximate cause will it support a successful cause of action by the aggrieved plaintiff. 19. These facts are taken from Tarasoff v. Regents of the University of California, 108 Cal. Rptr. 878 (1973), vacated by 551 P.2d 334 (Cal. 1976). 20. Nasser v. Parker, 455 S.E.2d 502 (1995).

Notes 21. Ibid. 22. See http://search.cnn.com/search.jsp?query=Nikki%20Giovanni%20& type=web&sortBy=date&intl=false. Also, from http://en.wikipedia.org/wiki/ Nikki Giovanni: Giovanni has been teaching writing and literature at Virginia Tech in Blacksburg, VA, since 1987, and is a Distinguished Professor of English. Giovanni taught the Virginia Tech shooter Seung-Hui Cho in a poetry class. She described him as downright “mean” and, when she approached the department chair to have Cho taken out of her class, said she was willing to resign rather than continue teaching him. She stated that, upon hearing of the shooting, she immediately suspected that Cho might be the shooter. On April 17, 2007, at the Virginia Tech Convocation commemorating the April 16 Virginia Tech massacre, Giovanni closed the ceremony with a chant poem, intoning: “We are sad today, and we will be sad for quite a while. We are not moving on. We are embracing our mourning. We are Virginia Tech. . . . We are better than we think and not quite what we want to be. We are alive to the imagination and the possibilities, we will continue to invent the future through our blood and tears, through all this sadness, we are the Hokies. We will prevail, we will prevail, we will prevail. We are Virginia Tech.” 23. Sara Lipka, “Families of Virginia Tech Victims Reach $11 Million Settlement with the State,” Chronicle of Higher Education, April 11, 2008, available at http://chronicle.com/daily/2008/04/2464n.htm?utm source=at&utm medium=en (last accessed June 14, 2008). 24. Available at http://www.governor.virginia.gov/MediaRelations/ NewsReleases/viewRelease.cfm?id=637 (last accessed August 10, 2008). 25. For a good fortieth anniversary retrospective on Hayden, SDS, and other 1960s radicals, see Maurice Isserman, “Will the Left Ever Learn to Communicate across Generations?” Chronicle of Higher Education, June 20, 2008, B6. 26. See “Kent State Shootings,” Wikipedia, http://en.wikipedia.org/wiki/Kent State shootings (last accessed August 18, 2008). 27. Margaret Ann Garmon (ed.), “Legal Chronology: May 5, 1970—January 4, 1079,” Kent State University Library, http://speccoll.library.kent.edu/4may70/ legalchronology.html (last accessed December 31, 2008). 28. Baldwin’s Ohio Revised Code Annotated 2923.52 (now repealed); however, the following statute remains in force in Ohio as 2917.05: Justifiable use of force to suppress riot A law enforcement officer or fireman, engaged in suppressing riot or in protecting persons or property during riot: (A) Is justified in using force, other than deadly force, when and to the extent he has probable cause to believe such force is necessary to disperse or apprehend rioters; (B) Is justified in using force, including deadly force, when and to the extent he has probable cause to believe such force is necessary to disperse or apprehend rioters whose conduct is creating a substantial risk of serious physical harm to persons.

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Notes 29. See Krause v. Rhodes, 471 F.2d 430 (C.A.6 Ohio 1972). 30. Hammond v. Brown, 323 F. Supp. 326 (N.D. Ohio, 1971), aff’d, 450 F.2d 480 (6th Cir. 1971). 31. “Actions which arose out of a confrontation between university students and the national guard were brought under the Civil Rights Act and state laws. The United States District Court for the Northern District of Ohio, Eastern Division, dismissed the complaints for lack of jurisdiction without the filing of answer. The Court of Appeals affirmed. On certiorari, the Supreme Court, Mr. Chief Justice Burger, held that when a state officer acts under state law in a manner violative of the Federal Constitution he comes into conflict with the superior authority of that Constitution and is stripped of his official or representative character and subjected in his person to consequences of his individual conduct, and the actions, which sought to impose personal liability upon defendants as individuals, were not barred by the Eleventh Amendment. A qualified executive immunity exists, depending upon the scope of discretion and responsibilities of the state office and circumstances surrounding the action taken, but the District Court and Court of Appeals erroneously accepted as fact the good faith of the governor, and erroneously took judicial notice that mob rule existed at the university, where no opportunity had been afforded petitioners to contest the facts assumed in such conclusion.” Scheuer v. Rhodes, 416 U.S. 232 (1974). 32. “Actions arising out of a confrontation between university students and the National Guard were brought under the Civil Rights Act and state laws. A dismissal of the complaints was affirmed by the Court of Appeals, but the Supreme Court reversed and remanded. On trial after remand to the United States District Court for the Northern District of Ohio, Eastern Division, Don J. Young, District Judge, defendants prevailed, and plaintiffs appealed. The Court of Appeals, Lively, Circuit Judge, held that plaintiffs were entitled to a new trial because the verdict was returned by a jury, at least one of whose members had been threatened and assaulted during the trial by a person interested in its outcome.” Krause v. Rhodes, 570 F.3d 563 (6th Cir. 1977). 33. Albeit some signs of continuing student activism remained visible on some campuses throughout the 1980s and 1990s, though with none of the violent tendencies manifested in the 1960s and early 1970s. For example, this extract from “Student Activism,” Wikipedia, http://en.wikipedia.org/wiki/Student activism: In the United States, student activism is often understood as a form of youth activism that is specifically oriented toward change in the American educational system. Student activism in the United States dates to the beginning of public education, if not before. The best early historical documentation comes from the 1930s. The American Youth Congress was a student-led organization in Washington, D.C., which lobbied the U.S. Congress against racial discrimination and for youth programs. It was heavily supported by First Lady Eleanor Roosevelt. The 1960s saw student activists gaining increased political prominence. One highlight of this period was [SDS] launched in Ann Arbor, Michigan, a student-led organization that focused on schools as a social agent that simultaneously oppresses and potentially uplifts society. SDS eventually spun off the Weather Underground. Another successful group was Ann Arbor Youth Liberation, which featured students calling for

Notes an end to state-led education. Also notable was the Student Nonviolent Coordinating Committee, which fought against racism and for integration of public schools across the US. These specific organizations closed in the mid-1970s. The largest student strike in American history took place in May and June 1970, in response to the Kent State shootings and the American invasion of Cambodia. In the early 1980s several formalized organizations brought neoliberal models of student activism to campuses across the nation, especially the Campus Outreach Opportunity League (COOL). They claim large responsibility for identifying and championing the interest in service among higher education students. American society saw an increase in student activism again in the 1990s with the ushering in of the neoliberal community service policies of Bill Clinton. The popular education reform movement has led to a resurgence of populist student activism against standardized testing and teaching, as well as more complex issues including military/industrial/ prison complex and the influence of the military and corporations in education. There is also increased emphasis on ensuring that changes that are made are sustainable, by pushing for better education funding and policy or leadership changes that engage students as decision-makers in schools. Major contemporary campaigns include work for funding of public schools, against increased tuitions at colleges or the use of sweatshop labor in manufacturing school apparel (e.g., United Students against Sweatshops), for increased student voice throughout education planning, delivery, and policy making (e.g., the Roosevelt Institution), and to raise national and local awareness of the humanitarian consequences of the Darfur conflict. There is also increasing activism around the issue of global warming. Antiwar activism has also increased leading to the creation of the Campus Antiwar Network and the refounding of SDS in 2006. 34. National Institute of Mental Health, “The Numbers Count: Mental Disorders in America” (http://www.nimh.nih.gov/publicat/number.cfm) and American Collegiate Health Association National Health Assessment 13 (2006) (http://www. acha-ncha.org/docs/ACHA-NCHA Reference Group ExecutiveSummary Fall2006. pdf), quoted in A. Jason Huebinger, “‘Progression’ since Charles Whitman: Student Mental Health Policies in the 21st Century,” Journal of College and University Law 34, no. 3 (2008): 697–698. 35. Bland v. Scott, 279 Kan. 962, 112 P.3d 941 (2005). 36. Ibid. 37. Ibid. 38. Ibid. 39. Ibid. 40. Lemuz v. Fieser, 933 P.2d 134 (Kan. 1997). 41. Ibid. 42. Robertson v. State ex rel. Department of Planning and Control, 747 So.2d 1276 (La. App. 1999).

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Notes 43. Shin v. Massachusetts Institute of Technology, 2005 WL 186910 (Mass. Super. Ct. June 27, 2005). 44. Huebinger, “‘Progression,’” 700–701. 45. Ibid., 701. 46. See Dunkle et al., “Managing Violent and Other Troubling Students.” 47. Jonathan Alger, “Colleges Must Be Forearmed with Effective Policies on Weapons,” Chronicle of Higher Education, June 6, 2008, A32. 48. District of Columbia v. Heller, 128 S.Ct. 2783 (2008). 49. Ibid. 50. “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” Pennsylvania Constitution of 1776, Declaration of Rights, available at http://press-pubs.uchicago.edu/founders/ documents/bill of rightss5.html (last accessed June 27, 2008). 51. “Supreme Court Overturns D.C. Gun Ban. What’s Next?” National Public Radio, July 3, 2008, http://www.npr.org/templates/story/story.php?storyId= 92192181 (last accessed December 31, 2008). 52. This latter point was being made, sometimes seriously, sometimes tongue in cheek, well before the Virginia Tech massacre and continued with greater frequency after that April 2007 campus massacre; see, e.g., David Plotz, “Shoot Hooligans, Not Hoops. Stop School Violence: Arm School Kids,” Slate, April 25, 1999, available at http://www.slate.com/id/25934/ (last accessed June 27, 2008); “Va. Tech, NIU Gun Dealer: Arm Students,” Newser, March 5, 2008, available at http://www.newser.com/story/20813.html (last accessed June 27, 2008); “Glen Beck: Arm Students on Campus,” Specious Report, available at http://www.thespeciousreport.com/news.aspx?newsnum=7070177 (last accessed June 27, 2008). 53. Michael A. Lawrence, “Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses,” Berkeley Electronic Press, Paper No. 1189 (2006), 38. 54. Alger, “Colleges Must Be Forearmed.” 55. See, e.g., Arizona Revised Statutes Annotated section 13-3112 (2007).

CHAPTER 3 1. “Escalation of West Coast Animal Rights Extremist Activity and Implications for New Jersey,” New Jersey Department of Homeland Security, June 12, 2008, http://www.nj.gov/njhomelandsecurity/ (last accessed December 31, 2008). 2. Jeffrey Brainard, “Animal-Rights Groups Fight Colleges over Access to Research Records,” Chronicle of Higher Education, May 31, 2006, available at http://chronicle.com/weekly/v52/i30/30a02901.htm (last accessed June 23, 2008). 3. Samantha Henig, “UCLA Professor Halts Monkey Research,” Chronicle of Higher Education, September 1, 2006, A22. 4. Paul Fain, “UCLA’s Acting Chancellor Takes Steps against Animal-Rights Extremists,” Chronicle of Higher Education, September 8, 2006, A19.

Notes 5. Peter Monaghan, “The Growing Field of Animal Law Is Attracting Activists and Pragmatists Alike,” Chronicle of Higher Education, June 29, 2007, A6. 6. Richard Monastersky, “Animal Researchers’ Homes Are Attacked: As Protests Intensify, Colleges Take Steps to Protect Scientists,” Chronicle of Higher Education, March 7, 2008, A1. 7. Jeffrey Brainard, “New Front in Battle over Studies of Animals: Activists Take Aim at Non-Research Colleges,” Chronicle of Higher Education, June 27, 2008, A1. 8. Lila Guterman, “New Attacks on Animal Researchers Provoke Anger and Worry,” Chronicle of Higher Education, August 15, 2008, A6. 9. Neal Stephenson, Quicksilver (New York: Harper/Collins 2003), 129. 10. Ibid., 138. 11. Ibid., 187. 12. David DeGrazia, Animal Rights: A Very Short Introduction (Oxford: Oxford University Press, 2002), 7. 13. Ibid., 7–8. 14. Ibid., 4. 15. David Hume, Of the Reason of Animals, available at http://www.animalrights-library.com/texts-c/hume01.htm (last accessed July 15, 2008). 16. Jeremy Bentham, Introduction to the Principles of Morals and Legislation, available at http://utilitarianism.com/jeremybentham.html (last accessed July 15, 2008). 17. DeGrazia, Animal Rights, 102. 18. Ibid., 98. 19. Ibid., 99. 20. Pub. L. No. 89-544, 7 U.S.C. sections 2131–2159. 21. Office of Laboratory Animal Welfare, NIH, Institutional Animal Care and Use Committee Guidebook, 2nd ed. (Washington, D.C.: U.S. Government Printing Office, 2002). 22. Available at http://caat.jhsph.edu/. 23. DeGrazia, Animal Rights, 110. 24. http://www.peta.org/actioncenter/exploitation.asp. 25. Lesley J. Rogers and Gisela Kaplan, “All Animals Are Not Equal: The Interface between Scientific Knowledge and Legislation for Animal Rights,” in Cass R. Sunstein and Martha C. Nussbaum, Animal Rights: Current Debates and New Directions (Oxford: Oxford University Press, 2004), 196. 26. Animal Liberation Front, available at http://www.animalliberationfront. com/ (last accessed July 17, 2008). 27. Available at http://www.animalliberationfront.com/ALFront/alf credo.htm (last accessed July 17, 2008). 28. “Leaderless Resistance,” Wikipedia, available at http://en.wikipedia.org/ wiki/Leaderless resistance (last accessed July 18, 2008). 29. Ibid. 30. Ibid. 31. Ibid. 32. Simson L. Garfinkel, “Leaderless Resistance Today,” First Monday PeerReviewed Journal on the Internet, available at http://www.firstmonday.org/issues/ issue8 3/garfinkel/index.html (last accessed July 18, 2008).

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Notes 33. These six examples are drawn from Garfinkel, “Leaderless Resistance Today.” 34. Jim Kouri, “Terrorist Cell Captured in New Jersey Plot,” The Lawman, May 9, 2007, available at http://www.newswithviews.com/Kouri/jim101.htm (last accessed July 20, 2008). 35. http://www.shac.net/SHAC/who.html (last accessed July 20, 2008). 36. Garfinkel, “Leaderless Resistance Today.” 37. “Ecoterrorism: Extremism in the Animal Rights and Environmentalist Movements,” Anti-Defamation League, http://www.adl.org/learn/ext us/ ecoterrorism.asp (last accessed October 12, 2008). 38. Monastersky, “Animal Researchers’ Homes.” 39. Ibid. 40. http://www.cns.med.ucla.edu/Bios/LondonE.htm (last accessed July 20, 2008). 41. http://www.animalliberationpressoffice.org/communiques/2008-06-13 uclavans.htm (last accessed July 20, 2008). 42. http://www.animalattorney.com/. 43. http://www.animalattorney.com/what.html. 44. http://www.valentpro.com/. 45. SLAPP suits have been defined as, “A Strategic Lawsuit Against Public Participation, in which a corporation or developer sues an organization in an attempt to scare it into dropping protests against a corporate initiative. SLAPP suits typically involve the environment–for example, local residents who are petitioning to change zoning laws to prevent a real estate development might be sued in a SLAPP suit for interference with the developer’s business interests. Many states have ‘anti-SLAPP suit’ statutes that protect citizens’ rights to free speech and to petition the government.” NOLO.com Glossary, http://www.nolo.com/definition.cfm/Term/ 1264241E-6BCC-41DE-88FB065B11543680/alpha/S/ (last accessed December 31, 2008). 46. See, Huntingdon Life Sciences, http://www.huntingdon.com/ (last accessed December 31, 2008). 47. Valent U.S.A. Corp. v. Stop Huntingdon Animal Cruelty, USA, Inc., 2006 WL 2466553 (Cal. App. 1 Dist.). All citations omitted. 48. Ibid. 49. Ibid. 50. Ibid. 51. Monastersky, “Animal Researchers’ Homes.” 52. Noaki Schwartz, “UCLA Gets Order against Protesters,” Oakland Tribune, February 22, 2008, available at http://findarticles.com/p/articles/mi qn4176/ is 20080222/ai n24348952 (last accessed July 20, 2008). 53. Nicole Tieriera, “Of Mice and Men,” University of California–San Diego Guardian, April 21, 2008, available at http://ucsdguardian.org/index.php?option= com content&task=view&id=9930&Itemid=4 (last accessed July 20, 2008). 54. 18 U.S.C. section 42. 55. Edward J. Walsh, “The Animal Enterprise Protection Act: A Scientist’s Perspective Brings the Law into Focus,” Lab Animal 29, no. 2 (February 2000), available at http://www.naiaonline.org/articles/archives/animalenterprise.htm. 56. Ibid.

Notes 57. Ibid. 58. “In this consolidated appeal, appellants Robert Leathem, Sharon A. Martin, Marquita Denise Leathem, Sharon Oberholtzer, Lee Larkin, Clifford E. Murphy, and Betty June Smith appeal the dismissal without leave to amend of their claims alleging violations of their constitutional and federal statutory rights. We review dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo. All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Conclusory allegations of law and unwarranted inferences, however, are insufficient to defeat a motion to dismiss. We have jurisdiction. Although we are sensitive to the rights of persons to be secure in their persons, homes, and property, and decry any excess of zeal or unnecessary intrusion that any person performing a public duty may have committed with respect to any of the appellants, relief available against public officials charged with enforcing the law for the benefit of all of us is very narrow and allowed only within very strict time limitations. The law that binds this court simply allows no relief to these appellants. We therefore affirm the district court” (citations omitted). Leathem v. United States, 122 F.3d 1072 (9th Cir. 1997). 59. Walsh, “Animal Enterprise Prevention Act.” 60. Steven Best, “The Animal Enterprise Protection Act: New, Improved and ACLU Approved,” available at http://www.animalliberationfront.com/ALFront/ AgainstALF/AETANew.htm (last accessed July 20, 2008). 61. “Stop Huntingdon Cruelty to Animals,” Wikipedia, http://en.wikipedia. org/wiki/Stop Huntingdon Animal Cruelty. 62. David Kocieniewski, “Six Animal Rights Advocates Are Convicted of Terrorism,” available at http://www.nytimes.com/2006/03/03/nyregion/03animals. html? r=1&oref=slogin&pagewanted=print (last accessed July 20, 2008). 63. Testimony of John E. Lewis, FBI Counterterrorism Division, before the Senate Judiciary Committee, May 2004, as quoted in Anti-Defamation League, “Ecoterrorism: Extremism in the Animal Rights and Environmentalist Movements,” available at http://www.adl.org/learn/ext us/ecoterrorism.asp (last accessed October 12, 2008).

CHAPTER 4 1. http://thespinfactor.com/thetruth/2008/01/01/students-with-visas-not-evena-threat/. 2. Susan Geary, “Success Marks First Anniversary of SEVIS,” http://www. ice.gov/pi/news/insideice/articles/insideice 081604 web8.htm?searchstring= SEVIS%20AND%20prosecution (last accessed August 10, 2008). 3. http://www.ice.gov/sevis/. 4. http://travel.state.gov/visa/temp/types/types 1267.html. 5. Geary, “Success.” 6. Burton Bollag, “Enrollment of Foreign Students Holds Steady; After 2 Years of Falling Numbers, Educators See a Turnaround Ahead,” Chronicle of Higher Education 53, no. 13, A44–A45. 7. “Study Abroad Statistics,” Vistawide World Languages and Cultures, http:// www.vistawide.com/studyabroad/study abroad statistics.htm (last accessed January 4, 2009).

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Notes 8. “SEVIS by the Numbers,” U.S. Immigration and Customs Enforcement (USICE), http://www.ice.gov/sevis/numbers/student/current statistics.htm (last accessed January 4, 2009). 9. “Improvements to Student and Exchange Visitor Program announced today in Manhattan: Proposed increase in fees will support enhancements to Homeland Security’s critical system,” USICE, April 24, 2008, http://www.ice.gov/pi/news/ newsreleases/articles/080411washington.htm (last accessed January 4, 2009). 10. Another case that tried to challenge in-state tuition benefits for illegally resident aliens by citing SEVIS is Equal Access to Education v. Merton (305 F.Supp.2d 585 [E.D. Va. 2004]): “Neither federal student visa program nor the Student and Exchange Visitor Information System (SEVIS) used to monitor student visa holders preempted policy of Virginia post-secondary educational institutions denying admission to illegal aliens; creation of a student visa category did not completely occupy field of alien access to post-secondary educational institutions, and challenged policy did not conflict with federal eligibility criteria for student visas.” 11. Peter Kirsanow, “An Illegal Advantage,” National Review On-Line, May 10, 2006, http://www.cbsnews.com/stories/2006/05/10/opinion/main1608164. c 2006 by National Review Online, www.nationalreview.com. Reprinted shtml (
with permission). 12. Day v. Bond, 500 F.3d 1127 (10th Cir. 2007). 13. Jim Castagnera, “An Israeli Fencing Lesson,” Israel 21C, available at http://web.israel21c.net/bin/en.jsp?enDispWho=Views%5El313&enPage= BlankPage&enDisplay=view&enDispWhat=object&enVersion=0&enZone= Views& (last accessed July 28, 2008). 14. Office of the White House Press Secretary, “President Bush Signs Secure Fence Act,” October 26, 2006, available at http://www.whitehouse.gov/news/ releases/2006/10/print/20061026.html (last accessed July 29, 2008). 15. Katherine Mangan, “Fence and Sensibility,” Chronicle of Higher Education, July 6, 2007, A6. 16. Ibid. 17. Richard Marosi, “Border Fence Nearly Doubles,” Los Angeles Times, September 29, 2007, available at http://articles/latimes.com/2007/sep/29/nation/naborder29 (last accessed July 30, 2008). 18. U.S. Department of Homeland Security, “More on the Southwest Border Fence,” http://www.dhs.gov/xprevprot/programs/gc 1207842692831.shtm. 19. Office of the Press Secretary, U.S. Department of Homeland Security, “DHS Moves Forward on Border Fencing and Technology Improvement,” December 7, 2007, available at http://www.dhs.gov/xnews/release/pr 1197058374853.shtm (last accessed July 30, 2008). 20. 42 U.S.C. § 4321 et seq. 21. 16 U.S.C. § 460xx–1. 22. 72 Fed. Reg. 60,870 (Oct. 26, 2007); 8 U.S.C. § 1103 note. 23. Defenders of Wildlife v. Chertoff, Civ. No. 07-1801, Minute Order (Oct. 26, 2007). 24. Ibid. 25. See Mistretta v. United States, 488 U.S. 361, 372–373, and 8 U.S.C. § 1103 note.

Notes 26. Defenders of Wildlife v. Chertoff, 527 F.Supp.2d 119 (D.D.C. 2007). 27. Katherine Mangan, “Texas Colleges Argue That a Border Fence Would Divide a Community,” Chronicle of Higher Education, December 7, 2007, A24. 28. Katherine Mangan, “Federal Government Drops Lawsuit against University over Border Fence,” Chronicle of Higher Education, March 20, 2008, available at http://chronicle.com/daily/2008/03/2184n.htm (last accessed August 2, 2008). 29. David Von Drehla, “The Border Fence: A Texas Turf War,” Time, May 21, 2008, available at http://www.time.com/printout/0,8816,1808405,00.html (last accessed July 28, 2008). 30. United States v. 1.04 Acres of Land, 538 F.Supp.2d 995 (S.D. Tex. 2008). 31. Ibid.

CHAPTER 5 1. Some plaintiffs also sued Hamas. See Rubin v. Hamas: The Islamic Resistance Movement, 2004 U.S. Dist. LEX 20883; however, this action was filed only after a judgment had already been obtained against Iran. This chapter will focus on the actions against Iran. The case referred to here is Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258 (D.D.C. 2003). 2. Campuzano, 274–277. 3. Rubin v. Islamic Republic of Iran, 2005 WL 670770 (D.D.C.). 4. Bank of New York v. Rubin, 2006 U.S. Dist. LEXIS 10215 (S.D.N.Y.). To be precise, as the case name suggests, Bank of New York initiated this action to resolve competing claims to the Iranian accounts. 5. James A. Wawrzyniak Jr., “Rubin v. The Islamic Republic of Iran: A Struggle for Control of Persian Antiquities in America,” an unpublished paper available at http://works.bepress.com/james wawrzyniak/1/ (last accessed June 8, 2008), 7. 6. By way of illustration, the institute is said to hold the largest collection of Persian pottery shards in America. Peggy Horton Grant, “Iranian Pottery in the Oriental Institute,” Oriental Institute News and Notes 142 (Summer 1994), available at http://oi.uchicago.edu/research/pubs/nn/sum94 grant.html (last accessed June 8, 2008). 7. See, e.g., Brian Boucher, “Terrorism Victims Sue for Museum Artifacts,” Art in America 39 (September 1, 2006); Robin Pogrebin, “An Unlikely Suit Linking Iran and a U.S. Museum Moves Forward,” New York Times, July 18, 2006, E-1; Jim Castagnera, “Terror Victims Then, Museum Raiders Now,” Greentree Gazette, January 2007, 48, 74. 8. Castagnera, “Terror Victims,” 48, 74. 9. “Bombing Victims Seek Iranian Antiquities,” Harvard Crimson, December 19, 2005, available at http://www.thecrimson.com/article.aspx?ref=510726 (last accessed June 8, 2005). 10. 28 U.S.C. sections 1602–1611. 11. Rubin v. Islamic Republic of Iran, 456 F. Supp. 2d 228 (D. Mass. 2006) 12. Rubin v. Islamic Republic of Iran, 541 F. Supp. 2d 416 (D. Mass. 2008). 13. Malcolm Rogers, “Director’s Welcome,” Museum of Fine Arts, Boston, http://www.mfa.org/about/index.asp?key=4146 (last accessed June 8, 2008).

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Notes 14. “Overview of Art in the Ancient World,” Museum of Fine Arts, Boston, http://www.mfa.org/collections/index.asp?key=19 (last accessed June 8, 2008). 15. Museum of Fine Arts, Boston, http://www.mfa.org/collections/search art. asp?coll keywords=iran&submit.x=0&submit.y=0&coll start=11 (last accessed June 8, 2008). This more or less random sample is reproduced here merely to provide the reader with some sense of the range of artifacts in the MFA’s collection. Obviously, I offer no opinion here about whether any such artifacts or any others belong to the Republic of Iran or to the MFA or to anyone else. 16. “Masterpieces of 19th-Century Western Art from Harvard’s Winthrop Collection to Tour to London, New York, Lyon,” Press Release, July 15, 2002, Harvard University, http://www.artmuseums.harvard.edu/press/released2002/winthrop.html (last accessed June 8, 2008). 17. “Ancient and Byzantine Art and Numismatics,” Arthur M. Sackler Museum, Harvard University, http://www.artmuseums.harvard.edu/sackler/ancient. html (last accessed June 8, 2008). 18. Stephen B. Luce, “Archaeological News and Discussions,” American Journal of Archaeology 48, no. 3 (July–September 1944): 276, 281. 19. “Our transformation begins. After many years of academic and facilities planning, our organization is poised to undergo a major architectural transformation. This physical shift provides a rare opportunity to enact a conceptual shift as well: to clarify and create a new institutional name . . . Harvard Art Museum.” From http://www.artmuseums.harvard.edu/home/index.html (last accessed June 8, 2008). 20. http://www.fieldmuseum.org/museum info/default.htm. 21. Ibid. 22. http://oi.uchicago.edu/. 23. Wawrzyniak, “Rubin v. The Islamic Republic of Iran,” 13. 24. Rubin v. Islamic Republic of Iran, 2008 WL 2501996 (N.D. Ill., May 23, 2008). 25. Rubin v. Islamic Republic of Iran, 2008 WL 2502039 (N.D. Ill., June 23, 2008). 26. “Ernst Herzfeld,” Wikipedia, http://en.wikipedia.org/wiki/Ernst Herzfeld. 27. http://oi.uchicago.edu/museum/collections/pa/persepolis/persepolis.html (last accessed July 4, 2008). 28. Josh Gerstein, “Judge Gives Terror Victims a Victory over Iran,” New York Sun, May 28, 2008, available at http://www.nysun.com/foreign/judge-gives-terrorvictims-a-victory-over-iran/78754/ (last accessed July 4, 2008). 29. Stephanie Condron, “Museums Face Fallout in Fight over Carving,” Daily Telegraph, January 17, 2007, available at http://www.telegraph.co.uk/news/uknews/ 1539637/Museums-face-fallout-in-fight-over-carving.html (last accessed July 4, 2008). 30. See “Rejecting Renvoi: Iran v Berend,” available at http://www. conflictoflaws.net/2007/cases/rejecting-renvoi-iran-v-berend/ (last accessed July 4, 2008). 31. Iran v. Berend, [2007] EWHC 132 (QB), available at http://www.bailii.org/ ew/cases/EWHC/QB/2007/132.html (last accessed July 4, 2008). 32. Wawrzyniak, “Rubin v. The Islamic Republic of Iran,” 34n159.

Notes 33. James Cuno, “Antiquity Belongs to the World: Archaeology Must Be Shielded from Nationalistic Laws and Politics,” Chronicle of Higher Education, July 4, 2008, B-6. 34. “Yale to Return Peruvian Artifacts,” BBC News, September 17, 2007, available at http://news.bbc.co.uk/1/hi/world/americas/6998408.stm (last accessed July 12, 2008). 35. Elaine Karp-Toledo, “The Lost Treasure of Machu Picchu,” New York Times, February 23, 2008, available at http://www.nytimes.com/2008/02/23/ opinion/23karp-toledo.html?n=Top/Reference/Times%20Topics/Organizations/N/ National%20Geographic%20Society (last accessed July 12, 2008). 36. Available at http://www.ice.gov/pi/nr/0807/080708miami.htm? searchstring=SEVIS%20AND%20enforcement%20OR%20prosecution (last accessed August 10, 2008). 37. “Looted Antiquities Found in Syria Returned to Baghdad Museum,” CBC News, April 27, 2008, http://www.cbc.ca/arts/artdesign/story/2008/04/27/iraqmuseum.html (last accessed October 12, 2008).

CHAPTER 6 1. Foundation for Defense of Democracies, http://www.defenddemocracy.org/. 2. Schema-Root.org: Encyclopedia of Current Events, available at http:// schema-root.org. 3. See http://www.defenddemocracy.org/programs/programs show.htm?doc id=357097&attrib id=7403. 4. Ibid. 5. James Castagnera, “Sorting Out the Israeli Situation,” Times-News (Lehighton, PA), June 29, 2007, 15, available at http://castagnera.wordpress.com/page/3/ (last accessed August 3, 2008); also available in Jim Castagnera, Attorney at Large, http://www.lulu.com. 6. http://polisci.csusb.edu/nss/. 7. http://polisci.csusb.edu/nss/2007pages/NSSnews.php. 8. See http://www.lifesci.consortium.umn.edu/conferences/foodsafety.php. 9. Ronald C. Wimberley and William Neal Reynolds. “Food from Our Changing World: The Globalization of Food and How Americans Feel About It,” http:// sasw.chass.ncsu.edu/global-food/foodglobal.html (last accessed January 2, 2009). 10. http://www.rider.edu/news/newswire/fall2005/nw1206/forensics.htm. 11. In re Application of Amadio, William, J., “Query Construction for Semantic Topic Indexes Derived by Non-Negative Matrix Factorization,” U.S. Patent and Trademark Office, Confirmation No. 9390, August 22, 2006. 12. Marc Sageman, Leaderless Jihad: Terror Networks in the 21st Century (Philadelphia: University of Pennsylvania Press, 2008).

CHAPTER 7 1. Charles A. Radin, “Saudi Donates $20m to Harvard: Money Will Fund Islamic Studies,” Boston Globe, December 13, 2005, http://www.boston.com/news/

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Notes education/higher/articles/2005/12/13/saudi donates 20m to harvard/ (last accessed June 8, 2008). 2. Ibid. 3. Erik Smulson, “Georgetown University Receives $20 Million Gift From HRH Prince Alwaleed Bin Talal to Expand Center for Muslim-Christian Understanding,” press release, December 12, 2005, available at http://explore.georgetown.edu/news/? ID=3762 (last accessed June 8, 2008). 4. Valerie Strauss, “$20M Saudi Gift Is Questioned,” Washington Post, February 15, 2008, B-3, available at http://www.washingtonpost.com/wp-dyn/content/ article/2008/02/14/AR2008021403487.html (last accessed June 8, 2008). 5. See “Wolf Seeks Additional Details from Georgetown University about Gift to Center for Muslim-Christian Understanding,” press release, February 14, 2008, available at http://wolf.house.gov/index.cfm?sectionid=34&parentid=6& sectiontree=6,34&itemid=1056 (last accessed June 8, 2008). 6. Kathleen Nahill, “DeGioia Insists Center Neutral Despite Saudi Funds [incl. John Esposito, John Voll, Amira Sonbol, Alwaleed Bin Talal Center for MuslimChristian Understanding],” Campus Watch, March 14, 2008, available at http:// www.campus-watch.org/article/id/4909 (last accessed on September 7, 2008). 7. Ibid. 8. Nina Shea, “A Medal for Brass: A Brazen Publicity Stunt from the House of Saud,” Weekly Standard 13, no. 35 (May 26, 2008). 9. http://snuffysmithsblog.blogspot.com/2007/12/saudis-give-big-to-uscolleges.html (last accessed June 8, 2008). 10. Lila Guterman, “12 Scientists Will Share $120 Million from Saudis,” Chronicle of Higher Education 44, no. 41 (June 20, 2008), A-1. 11. Ibid. 12. Ibid., A-6. 13. Ibid., A-6, A-7. 14. All information in this section of the chapter, unless otherwise indicated, is drawn from Daniel Yergin, The Prize: The Epic Quest for Oil, Money, and Power (New York: Simon & Schuster 1992). 15. Ibid., 292. 16. Ibid., 427. 17. Ibid., at 448–449. 18. Bob Woodward, The Commanders (New York: Simon & Schuster 1991), 268. 19. Ibid., 269. 20. BBC News, April 29, 2003, available at http://news.bbc.co.uk/2/hi/ middle east/2984547.stm (last accessed June 28, 2008). 21. http://en.wikipedia.org/wiki/United States withdrawal from Saudi Arabia. 22. Ibid. 23. Timothy R. Furnish, Holiest Wars: Islamic Mahdis, Their Jihads, and Osama Bin Laden (Westport, CT: Praeger 2005), 2. 24. Ibid., 60–61. 25. Ibid., 82. 26. Ibid., 84. 27. See ibid., chapter 6.

Notes 28. http://www.kaust.edu.sa/about/default.aspx. 29. Ibid. 30. “King Abdullah University of Science and Technology and the University of Texas at Austin Form Academic Partnership,” March 5, 2008, available at http:// www.utexas.edu/news/2008/03/05/kaust/ (last accessed August 10, 2008). 31. “King Abdullah University of Science and Technology and American University in Cairo to Collaborate on Research and Academic Development,” Nanotechnology Now, September 6, 2007, available at http://www.nanotechnow.com/news.cgi?story id=24833 (last accessed August 10, 2008). 32. “King Abdullah University of Science and Technology and WHOI Finalize Research Collaboration: Partnership Will Foster Research along Saudi Arabia Coast in Northern Central Red Sea,” Woods Hole Oceanographic Institute, October 22, 2007, available at http://www.whoi.edu/page.do?pid=7544&tid=282&cid=33106 (last accessed August 10, 2008). 33. Zvika Krieger, “Saudi Arabia Puts Its Billions Behind Western-Style Education,” Chronicle of Higher Education, September 14, 2007, available at http:// chronicle.com/temp/reprint.php?id=tmrxjq9gdgy39k6w5vq3p0cc2d422m4w (last accessed August 14, 2008). 34. Ibid.

CHAPTER 8 1. Note that the Army’s Human Terrain program has recruited participants from the other social sciences as well as anthropologists. I have chosen to focus on anthropology as the most relevant academic discipline to be integrated into the war on terror in the active combat zones. 2. Carl N. Degler, In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought (New York: Oxford University, 1991), 61. 3. Ibid. 4. Ibid. 5. Reports of the Immigration Commission, “Changes in Bodily Form of Descendents of Immigrants,” 61st Cong., 2nd Sess., Senate Document No. 208 (Washington, D.C.: U.S. Government Printing Office, 1911). 6. Degler, In Search of Human Nature, 62. 7. Ibid., 63. 8. Robert B. Edgerton, Sick Societies: Challenging the Myth of Primitive Harmony (New York: Free Press, 1992), 8. 9. Carolyn Nordstrom, Global Outlaws: Crime, Money, and Power in the Contemporary World (Berkeley: University of California Press, 2007), xix. 10. David Glenn, “Patriotic or Unethical? Anthropologists Debate Whether to Help U.S. Security Agencies,” Chronicle of Higher Education, March 23, 2007, A-16. 11. Seymour M. Hersh, “The Gray Zone: How a Secret Pentagon Program Came to Abu Ghraib,” New Yorker, May 24, 2004, available at http://www. newyorker.com/archive/2004/05/24/040524fa fact (last accessed June 12, 2008). 12. Ibid. 13. Ibid.

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Notes 14. Norwell B. DeAtkine, “The Arab Mind Revisited,” Middle East Quarterly (Summer 2004), available at http://www.meforum.org/article print.php?id= 636&v=3119913121 (last accessed June 11, 2008), and citing the following: Brian Whitaker, Guardian, May 24, 2004; Anne Marlowe, “Sex, Violence, and ‘The Arab Mind,’” Salon.com, available at http://www.salonmag.com/books/feature/2004/06/ 08/arab mind/index mp.html; Louis Wermer, Al-Ahram Weekly (Cairo), July 1– 7, 2004; and Lee Smith, “Inside the Arab Mind,” Slate.com, available at http:// slate.com/id/2101328/. 15. Emram Qureshki, “Misreading ‘The Arab Mind,’ the Dubious Guidebook to Middle East Culture that’s on the Pentagon’s Reading List,” Boston Globe, May 30, 2004, available at http://www.boston.com/news/globe/ideas/articles/2004/ 05/30/misreading the arab mind/ (last accessed February 19, 2009). 16. Scott Peterson, “U.S. Army’s Strategy in Afghanistan: Better Anthropology,” Christian Science Monitor, September 7, 2007, available at http://www. csmonitor.com/2007/0907/p01s08wosc.html (last accessed June 10, 2008). 17. David Rohde, “Anthropologists Help U.S. Army in Afghanistan and Iraq,” International Herald Tribune, October 4, 2007, http:// www.iht.com/articles/ 2007/10/04/america/afghan.php (last accessed January 3, 2009). 18. Ibid. 19. Ibid. 20. Marshall Sahlins, “An Open Letter to the New York Times,” Savage Minds: Notes and Queries in Anthropology, October 11, 2007, http://savageminds.org/ 2007/10/11/Marshall-sahlins-on-anthropologists-in-Iraq (last accessed February 19, 2009). 21. Ibid., response posted by “Mohawk” at 4:45 p.m. 22. Edgerton, Sick Societies. 23. Ibid., 16 and 23. 24. Ibid., 23, quoting E. R. Leach, Social Anthropology (Oxford: Oxford University Press, 1982), 52. 25. Ibid., 22. 26. Ibid., 46. 27. Nordstrom, Global Outlaws, 20–21. 28. Ibid., 35. 29. Marshall Sahlins, “Marshall Sahlins on Anthropologists in Iraq,” Small Wars Journal, October 11, 2007, http://council.smallwarsjournal.com/showthread. php?p=28769 (last accessed January 3, 2009). 30. Peter Hopkirk, The Great Game: The Struggle for Empire in Central Asia (New York: Kodansha International, 1992), 7. 31. The modern Soviet experience in Afghanistan and the American role in it are thoroughly chronicled in George Crile, Charlie Wilson’s War (New York: Grove Press 2003). For a sense of continuity between the Afghanistan of Hopkirk’s book to Crile’s account of the Soviet invasion and its consequences, see Fitzroy Maclean, Eastern Approaches (New York: Time, 1964). 32. Robert D. Crews and Armin Tarzi (eds.), The Taliban and the Crisis in Afghanistan (Cambridge, MA: Harvard University Press 2008). 33. AAA Commission on the Engagement of Anthropology with the U.S. Security and Intelligence Communities, Final Report, November 7, 2007, available at http://www.aaanet.org/issues/CEAUSSIC-Final-Report.cfm.

Notes 34. Ibid., 7. 35. Ibid. 36. Ibid. 37. Ibid., 8. 38. Ibid., 49–50. 39. Ibid., 50. 40. Ibid., 50–51. 41. Ibid., 51. 42. Ibid. 43. Ibid., 52. 44. Ibid., 52–53. 45. Ibid., 53. 46. Ibid. 47. Ibid., 54. 48. Ibid. 49. Ibid., 55. 50. Ibid., 25–26. 51. Dan Ephron and Silvia Spring, “A Gun in One Hand, a Pen in the Other,” Newsweek, April 21, 2008, available at http://www.newsweek.com/id/131752 (last accessed February 19, 2009). 52. http://www.aaanet.org/issues/policy-advocacy/Statement-on-HTS.cfm. 53. Accessible at http://www.aaanet.org/issues/AAA-Responds-to-Newsweekarticle-on-HTS.cfm. 54. David Glenn, “Peacekeeper and Scholar Is Killed in War Zone,” Chronicle of Higher Education, July 4, 2008, A-1. 55. Michael Bhatia, “The Peace Allergy,” Bulletin of the Atomic Scientists, July 2003,available at http://thebulletin.metapress.com/index/D22W34270172045L.pdf. 56. Glenn, “Peacekeeper,” A-6. 57. Ibid., A-9. 58. Michael Bhatia, available at http://www.linkedin.com/pub/3/B36/571 (last accessed July 12, 2008). 59. Ibid. 60. Sasha Polakow-Suransky, “The Fearless One,” Brown Alumni Magazine, May/June 2008, available at http://www.brownalumnimagazine.com/may/ june 2008/the fearless one 2027.html (last accessed February 19, 2009). 61. http://kabulkabul.blogspot.com/2008 05 01 archive.html (last accessed February 19, 2009).

CONCLUSION 1. From “Halliburton,” Wikipedia, http://en.wikipedia.org/wiki/Halliburton# Financials: The company’s contracts in Iraq are expected to have generated more than $13 billion in revenue by the time they start to expire in 2006, but most offer low margins—less than 2% on average in 2003 and just 1.4% this year for the logistics work making these contracts less profitable than Halliburton’s core energy business. The contracts in Iraq will be more profitable after

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Notes the US Army reimburses them for costs that were originally investigated as potentially inflated. Meanwhile, KBR reconstruction contracts in Iraq ‘tracked’ by the US Department of Defense were shown to include as much as 55% of total project costs as overhead. KBR has contracts in Iraq worth up to $18 billion, including a single no-bid contract known as “Restore Iraqi Oil” (RIO) which has an estimated worth of $7 billion. An audit of KBR by the Pentagon’s Defense Contract Audit Agency (DCAA) found $108 million in ‘questioned costs’ and, as of mid-March 2005, said they still had ‘major’ unresolved issues with Halliburton. 2. “Faculty Are Liberal—Who Cares?” Inside Higher Education, March 27, 2008, available at http://www.insidehighered.com/news/2008/03/27/politics (last accessed August 8, 2008). 3. Allie Grasgreen, “Academics Protest Jailing of Muslim Student,” Chronicle of Higher Education, August 8, 2008, A1, A13. 4. “Goodbye, Mr. Chips,” Wikipedia, http://en.wikipedia.org/wiki/Goodbye Mr. Chips. 5. James Hilton, Goodbye, Mr. Chips (N.Y.: Little Brown & Co. 1934, 1962). 6. http://www.imdb.com/title/tt0064382/. 7. Jim Castagnera, “The Last Good Job in America?” Greentree Gazette, November 2007. 8. From “The Rising Price of Presidents,” Chronicle of Higher Education, November 16, 2007, available at http://chronicle.com/indepth/compensation/: At the higher end, salaries are escalating rapidly. Eight public institutions paid at least $700,000 to their presidents, compared with two that paid that much the year before. Among private institutions, the median compensation of leaders of research institutions rose 37 percent in the last five years of the survey, to $528,105. That is faster than the rate of increase over the same period for presidents of master’s (30 percent) or baccalaureate (28 percent) institutions. The competition for presidents at the highest levels is becoming more intense, and pay is going up accordingly. In the 2005–6 fiscal year, the most recent available for private institutions, three presidents who are still at their institutions—William R. Brody at the Johns Hopkins University, Shirley Ann Jackson at Rensselaer Polytechnic Institute, and James W. Wagner at Emory University—had pay packages of more than $1 million. For the two previous years, E. Gordon Gee, then at Vanderbilt University, was the only president with annual compensation of at least $1 million. Now he is back at Ohio State University, where he may be setting new standards for compensation of public-institution presidents. Also, “Concern about the escalation of coaches’ salaries, in particular the eightyear, $32 million contract Nick Saban recently signed with the University of Alabama to coach its football team, led two commission members to disclose that the NCAA might seek a federal antitrust exemption for college sports. Such an exemption could help universities cap coaches’ salaries but not necessarily their

Notes overall compensation, which often includes money from boosters and shoe companies.” Brad Wolverton and Sara Lipka, “Knight Commission to Fight High Salaries and Recruiting Pressures,” Chronicle of Higher Education, February 2, 2007, http://chronicle.com/weekly/v53/i22/22a02801.htm. 9. See Jeffrey Salingo, “Survey Finds That Top-Paid Higher-Education Lawyers Are at Private Colleges and Research Universities,” Chronicle of Higher Education, May 26, 2006, http://chronicle.com/weekly/v52/i38/38a03403.htm. 10. See the discussion of intellectual property theft as a form of terrorism in the introduction to this book.

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Index Abu Dhabi, 126 Abu Ghraib, 55 Academic Excellence Alliance, 139 Academic freedom, 163 Afghanistan, 117, 137, 149; Shabok Valley of, 146 Agri-terrorism Air War College, 126 Al-Arian, Sami, 9, 27–32; and contempt order, 31–32; discharge from Florida Southern University, 29; trial, 29–31 Algerian refugee camps, 159 Aliens, undocumented, 90–94 Al-Nasr, Nadhmi, 140 Al Qaeda, 59, 117, 164 Alwaleed Bin Talal, Prince, 129–134 Amadio, Professor William, 123–126 American Anthropology Association, 150–159; Commission Report, 151–156 American Association of University Professors (AAUP), 24, 167 American Library Association (ALA), 5 American University (Cairo), 140

Amherst College, 65 Amos, Colonel Ulius Louis, 70 Angola, 149 Animal activists, and animal exploitation, 68; arguments of, 69; on ethics, 68; philosophy and tactics, 67–68 Animal Enterprise Protection Act (1992), 76–77; ineffectiveness of, 78 Animal Farm (novel by George Orwell), 68 Animal law, 73 Animal Liberation Brigade, 61 Animal Liberation Front (ALF), 61; credo, 69; web site, 72–73 Animal Rights Extremism, Current Trends and Implications for New Jersey, 63 Animal terrorism (legal definition), 76 Anthrax attacks, 3 Anthropologists, 143–162 Arab Mind, The (book by Raphael Patai), 145 Armageddon, A Novel of Berlin (novel by Leon Uris), 56

200

Index Aronowitz, Professor Stanley, 165 Arthur M. Sackler Museum (Harvard University), 103–106 Attorney billing practices, 166 Baghdad, 113 Bank of New York, 102 Beam, Louis, 70 Bentham, Jeremy, 66 Bhatia, Michael V., 159–162; website of, 160; eulogies for, 161–162 Bio-terrorism, 127 Bland v. Scott, 51 Blood and Oil (book by Prof. Michael T. Klare), 137 Blumenthal, George, 65 Boas, Franz, 143 Boston Globe, 129, 145 Brooklyn College, 164 Brown University, 159 Bulletin of the Atomic Scientists, 159 Bush, President George H. W., 136 Business forensics, Rider University Center for California State University at San Bernadino, 120–121 California, University of, at Los Angeles, 64; at Santa Cruz, 65 Care and Treatment of Laboratory Animals (NIH policy), 67 Casablanca (film), 56 Center for Muslim-Christian Understanding (Georgetown University), 129–134 Central Asia, 149 Central Intelligence Agency (CIA), 70, 121 Chertoff, Michael, 99 Cheney Energy Task Force (May 2001), 137 Chicago, University of, 113 Cho, Seung Hui, 43–48, 50 Chopra, Professor Jarat, 159 Christian Science Monitor, 146 Chronicle of Higher Education, animal rights stories, excerpts from, 64–65;

and Michael V. Bhatia, 159; and Saudi Arabia grants, 134 Churchill, Ward LeRoy, 9, 13–27; AAUP defense of, 24–25; David Lane legal representation of, 25–26; University of Colorado investigation of, 16–24 Clark, Professor Mark, 120–121 College and University Security Effort (CAUSE), 6 Colorado, University of (and Ward Churchill), 13–27; Report of investigation of Ward Churchill, 16–24 Columbian Exhibition (1892), 106 Columbus, Christopher, 112 Commission on International Religious Freedom (U.S.), 133 Connecticut, University of, 8 Counterinsurgency, U.S. Army strategy of, 146 CUNY Graduate College, 165 Cyber-crime Darwin, Charles, 143 Daschle, Senator Tom, 2 Dawson College, 41–43 Day v. Sebelius, 90 “Days of Action”, 63 DeGioia, John J., 129–134 DeGrazia, David, 67–68 Delaware Valley College, 122–123 Denver Post, 15 Descartes, Rene, 66 Detroit Institute of Arts, 103 District of Columbia v. Heller, 54–59 Drexel University, 124 Duke University, 133 Earth Liberation Front (ELF) East Stroudsberg University, 124 Edgerton, Professor Robert B., 147 Enrollments, international student, 87 Espionage Esposito, John L., 130 Exchange Visitor Program (U.S. Department of State), 86

Index Fairfield University, 65 Family Educational Rights and Privacy Act (FERPA), 60 Fanon, France, 149 Federal Bureau of Investigation (FBI), and ALF and ELF, 80; and anthrax, 2–6; and Sami Al-Arian, 28 Fences, 94–99 Field Museum, 106–107 Fine, Cory, 7 First Amendment, U.S. Constitution, 163 Florida Islamic Academy, 28 Florida Southern University (and Sami Al-Arian), 27–32 Foreign Sovereign Immunities Act, 103 Foundation for Defense of Democracies (FDD), 94; Academic Fellowships on Terrorism of, 118–121 Francis Marion University, 65 Fraternities, drinking and, 51–52 Fried, Frank, Harris, Shiver & Jacobson LLP, 166 Garcia, Christine L., 73 Garcia, Michael J., 82 Gemological Institute of America, 112 Genshaft, Judy L., 29 Georgetown University, 129–134; Professor David Luban of, 166 Gill, Kimver, 41–43 Goodbye, Mr. Chips, 164 Goth, 41–43 Gouvin, Professor Eric, 166 Government Accountability Office (GAO), 132 Guantanamo, 55 Gun Control, 53–59 Hamas, 102 Harvard Crimson, 103 Harvard University, 7; and creeping Sharia, 37; Sackler Museum of, 103; and Saudi Arabia, 129 Hashmi, Syed Fahad, 164 Hatfill, Steven, 3 Havlik v. Johnson & Wales University, 58

Hayden, Tom, 49 Henderson, Prof. Bill, 166 Hersch, Seymour, 145 Herzfeld, Ernst, 108–109 Holms, Frank, 135 Homeland Security, Department of (DHS), 87; and border fences, 96–99 Hopkirk, Peter, 149–150 Hosseini, Khaled, 150 Hughes, Karen, 132 Human Terrain Team, 146 Hume, David, 66 Hussein, Saddam, 56, 136 Immigration and Citizenship Service (USCIS), 82 Immigration and Customs Enforcement (ICE), 4, 89; and antiquities, 111–112 Indiana Jones, 101 Indiana, University of (Bloomfield), 166 Intellectual property, 5–7 International Herald Tribune, 146 Iraq, and oil, 136 Islamic Community Center, 28 Israel, and fences, 94–95; and Foundation for Defense of Democracies fellowships, 119–120 Iran, and federal lawsuits, 101–111 Iraq, 4, Islam Ivins, Bruce E., 3–4 JFK Special Warfare Center and School (Fort Bragg), 146 Jihad, Leaderless, 70–71 Johns Hopkins, Bloomberg School of Public Health, 67; Center for Alternative Animal Testing, 67 Kaine, Governor Tim, 43, 47 Kalu, Professor Kalu N., 126–127 Kansas, Constitution, Bill of Rights, 52; Legislature, 90; Liquor Control Act, 52; and college tuition rates, 90–94 Kennedy, Tom, 122–123 Kent State University, 49–50 King Abdullah University of Science and Technology (KAUST), 139–141

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Index Kite Runner, The (novel by Khaled Hosseini), 150 Klare, Professor Michael T., 137 Koros, Professor William J., 134 Krause v. Rhodes, 50 Kuwait, 136 Laboratory Animal Welfare Act (1966), 67 Land Management, Bureau of (BLM), 97–98 Last Good Job in America, The (book by Stanley Aronowitz), 165 Leaderless Jihad, 70–71 Leaderless resistance, 70; and Al Qaeda. 70–71; and animal activists, 71–73 Leach, Sir Edmund, 147 Levin, Richard C., 110 Lewis and Clark School of Law, 64 Liuzzo, Professor Anthony, 167 Logan, Professor Bruce E., 134 London, Dr. Edythe D., 72–73 Louisiana Civil Code, 53 Louisiana Tech, 53 Low, Professor Setha Luban, Professor David, 166 Machu Picchu (Peru), 110 Mahdis and Mahdism, 138 Mahlik, Thomas, 5–7 Manchester Guardian, 145 Markowich, Professor Peter A., 134 Marsh, John, 165 Marx, Karl, 166 Massachusetts Institute of Technology, 54 May, Clifford, 133 Michigan, University of (Dearborn), 37; and antiquities, 103 Militia, well-regulated and Second Amendment, 55 Mind of Primitive Man (book by Franz Boas), 144 Moody, Judge James, 29 Museum of Fine Arts, Boston, 103–105 Museum of Natural History, New York, 66 Myers, Julie L., 87

Nasser v. Parker, 45 National Collegiate Athletic Association (NCAA), 169 National College Health Assessment (2006), 51 National Institutes of Health (NIH), 66; and grants for bio-terrorism, 127; grants, typical, 134 National Institute of Mental Health, 50 National Intellectual Property Rights Coordination Center, 8 National Rifle Association (NRA), 55 National Science Foundation (NSF), 134 Nazi Germany, 109 New England College of Law, 168 New Jersey, animal rights advocates and, 61–64 New Jersey Office of Homeland Security and Preparedness, 61, 80 New York Museum of Natural History New York Times, 79 New York University (NYU), 88 Newsweek, 156 Non-Governmental Organizations (NGOs), 149 Non-negative Matrix Factorization, 125 Nordstrom, Professor Carolyn, 144, 148–149 North American Animal Liberation Press Office, 75 “Obama for President”, 164 Ohio State University, 64 O’Neill, Professor Robert (speech to AAUP), 32–36 Operation Desert Storm, 137 O’Reilly Factor, The (and Sami Al-Arian), 28 Oriental Institute, 107–110 Osama bin Laden, 117 O’Toole, Peter, 165 Pat Robertson Intelligence Scholars Program Patai, Raphael, 145 Pennsylvania Declaration of Rights, gun control and, 55

Index Pennsylvania, University of, museum and antiquities, 103 People for the Ethical Treatment of Animals (PETA), 68 Philadelphia Museum of Art, 103 Philosophers, natural, 66 Phoenix, University of, 10 Plyer v. Doe, 90 Prince Sultan Air Base, 137 Professorate, American, 167 Profiling, 41–43 Public Health Service regulations (1973), 67 Quicksilver (novel by Neal Stephenson), 65 Raiders of the Lost Arc (film), 101 REAL ID Act (2005), 98 Rider University, 1–2, 123–126; Center for Business Forensics of, 125 Roadside bomb, 159 Roanoke Times, 47 Robertson v. State ex rel. Department of Planning and Control, 52 Roosevelt, President Franklin D., 136 Royal Society, 65 Rubin, Jenny, 101–102, 113 Rubin v. Islamic Republic of Iran, 101–111 Said, Edward, 146 Saint Joseph’s University (Philadelphia, PA), 122 Salon.com, 145 San Pedro Riparian National Conservation Area, 97 Sargent, Professor Edward H., 134 Saudi Arabia, 10, 129–141; history of, 134–138; universities and colleges of, 141 (Table 7.1) Scheuer v. Rhodes, 49 Second Amendment, gun control and, 55 Sharia, creeping, 36–38 SHAC USA, 61, 73–75; Trenton (NJ) trial, 79

Shin, Elizabeth Shin v. Massachusetts Institute of Technology, 54 Sick Societies; Challenging the Myth of Primitive Harmony (book by Robert B. Edgerton), 147 Silicon Valley, 169 Simpson, O.J., 29 SLAPP statutes Smerconish, Michael, 37 State Department, Exchange Visitor Program, 86 Student Educational Visa Information System (SEVIS), 4, 82–87 Students for a Democratic Society (SDS), 48–49 Students, foreign or international, 81–94; enrollments, 87 Students, intoxicates, 51–53 Students, mentally ill, handling of, 50–54 Taliban, 117 Tarasoff, Tatiana, 44–45 Tarasoff v. Regents of California, 44–45; and Virginia Supreme Court, 45 Tenure, decline of, 167 Texas Border Coalition, 99 Texas Southmost College, 96 Texas Tech University, 7 Texas Tower massacre, 40–41 University of Texas at Austin, 40–41; and KAUST, 139 University of Texas at Brownsville, 96 Tillery, Kelly, 4–5 Toll v. Moreno, 90 Traverse Legal, PLC, 166 Treasury, Department of, 102 Tuition, out-of-state rate, 90 UCLA Primate Freedom Project, 61 United nations General Assembly, 159 University of California at Berkeley, 133 University of California at Los Angeles (UCLA), 64; Center for Neurovisceral Sciences and Women’s Health, 72

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Index University of California at Santa Cruz, 65 USA Patriot Act, 5, Virginia Technical University (VTU), 9, 39, 43–48, 163 Visas, student, 82–87 Vlasak, Jerry, 75 Wahhabism, 131 Wall Street Journal, 165 Walsh, Professor Edward J. War on Terror, 117 Washington Post, 4 Washington Times, 132 Watson Institute for International Studies (Brown University), 159 Weiner, Congressman Anthony, 132

West Coast, animal rights advocates and, 61 Western New England College School of Law, 166 Western Sahara, 159 Whitman, Charles, 40–41 Wilkes University, 167 Winthrop, Grenville L. Wolf, Congressman Frank R., 131–133 Woods Hole Oceanographic Institution, 140 World Trade Center, 1, 13 Yale University, 110–111; MacMillan Center for International and Area Studies of, 126 Yergin, Daniel, 135

About the Author JAMES OTTAVIO CASTAGNERA has spent more than twenty-five years practicing, writing about, and teaching law. He has been a labor lawyer and litigator with a major Philadelphia firm and the general counsel/corporate secretary for the then-largest convenience store chain in New Jersey and for the nation’s leading econometric forecasting organization. He has previously published sixteen books, as well as some fifty professional and scholarly articles and book chapters. He is a frequent commentator in newspapers, magazines, newsletters, and broadcast media. His teaching has taken him to the University of Texas at Austin, the Wharton School of the University of Pennsylvania, and the Widener University School of Law. Dr. Castagnera currently is legal counsel to a New Jersey university and the president of a freelance research and writing company. In May and June 2007, he was one of forty-five academic fellows on terrorism who, together with his editor on this book, Dr. Timothy Furnish, studied counterterrorism techniques in Israel under the auspices of the Foundation for Defense of Democracies.

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