SHOULD the United States government have the right to bar foreign visitors whose views it finds offensive? In 1952, at the height of anticommunist hysteria, Congress answered with a resounding yes. But 36 years later Congress is rethinking one of the worst relics of McCarthyism, the McCarran-Walter Act. The act has allowed the government to exclude people from outside the US on the basis of their beliefs and associations. From time to time administrations, including President Reagan's, have used it to keep out aliens whose views it opposed.
In 1983 Italian Gen. Nino Pasti, a former NATO official who had opposed the Reagan administration's deployment of intermediate-range nuclear missiles in Europe, was denied entry. In 1986 Colombian journalist Patricia Lara, who had written critically about the Reagan administration, entered the country under a legal passport and visa, but was jailed and deported under McCarran-Walter without any explanation.
A host of other notables have been refused entry in the past, including Carlos Fuentes, the Mexican novelist; Gabriel Garc'ia M'arquez, the Colombian author; Dennis Brutus, the South African poet; Hortensia de Allende, the widow of the late Chilean President; Graham Greene, the English novelist; and Dario Fo, the Italian playwright. Even Pierre Trudeau, who became the prime minister of Canada, was blacklisted from entering the US for years after he visited the Soviet Union in 1952.
Abroad, the act has undercut America's criticisms of other countries that curb expression. At home it has proved an affront to the principle of free speech and the idea that Americans may trade freely in the marketplace of ideas, home-grown or otherwise. Its ideological exclusion effectively confers the right of government censorship over whom Americans can hear or meet firsthand.
President Harry Truman said in his veto of McCarran-Walter, which the Congress subsequently overturned, that ``seldom has a bill exhibited the distrust evidenced here for citizens and aliens alike.''
Fortunately, recent events have begun to chip away at McCarran-Walter. Last December Congress modified the law so that foreigners cannot be denied a visa ``because of any past, current, or expected beliefs which, if engaged in by a United States citizen, would be protected under the Constitution of the United States.'' So until this provision expires next March, foreigners cannot be excluded for what they might say here. Then in April the US Court of Appeals in Boston, acting on a case involving Hortensia de Allende, ruled that the government had exceeded its authority under McCarran-Walter by deeming her mere presence here a harmful ``activity.''
Even more hopeful is a complete overhaul of the law now under review by the House Judiciary Committee. The new bill, which has passed a House subcommittee, would make permanent the repeal of the ideological exclusion. It also would strip away some of McCarran-Walter's anachronistic barriers, such as those against homosexuals and people who were mentally ill but have since recovered.
The bill would focus the government's exclusionary powers where they belong - on suspected terrorists, criminals, and spies - thereby making the crucial distinction between the actions and beliefs of foreigners. Moreover, it would allow some needed public scrutiny by requiring administration officials to explain - both to Congress and the visa applicant - why a foreigner is being turned away.
Debate on the measure now centers on the government's latitude in barring entrance to the US for foreign policy reasons. The bill's chief sponsor, Rep. Barney Frank (D) of Massachusetts, wants to keep the foreign policy rationale within strict bounds. The administration is seeking wider discretion and argues that foreign policy grounds are invoked against only about 15 people a year, and even then not because of their ``abstract'' political beliefs.
The State Department has proposed an amendment to exclude foreigners whose entry ``could cause potentially serious adverse foreign policy consequences.'' But that standard is needlessly vague and seems only a slight improvement from the government's current authority to deny entry to aliens who might engage in activities that are ``prejudicial to the public interest.''
To be sure, the government needs some generalized authority to deal with unforseen circumstances; most countries acknowledge that in their immigration laws. Representative Frank's bill anticipates one of these circumstances by permitting the exclusion of foreigners whose entry might endanger the lives or property of US citizens living abroad - a provision that recalls one of the reasons for preventing Shah Muhammad Reza Pahlavi from coming to the US during the Iran hostage crisis.
The advisable course seems to be to spell out other contingencies for visa denials and then define the administration's general authority to exclude foreigners as narrowly as possible. Discretion that is conceived broadly invites further abuses: Policymakers may fall back on their political and ideological preferences in deciding who may enter the country.
If broad amendments can be avoided, the new bill will throw away a leftover of McCarthyism. And in the process, Americans will be reaffirming their commitment to the unfettered exchange of opinions.
Thomas Omestad is the associate editor of Foreign Policy magazine.