Artistic License, Revoked

The war on terror is keeping musicians out of the U.S.

Ten years.

That's how long Peter Erlinder, professor of constitutional law at William Mitchell College, guesses it will take to patch the holes Attorney General John Ashcroft has already punched through the U.S. Constitution. And that's only if something or someone inspires a grassroots movement to demand repairs--a daunting task, the professor points out, since "any community groups or organizations that begin forming now will be subject to government-sanctioned harassment."

Pianist Omar Sosa had to play the Walker Art Center without his vocalist, who got stuck in Cuba
Walker Art Center
Pianist Omar Sosa had to play the Walker Art Center without his vocalist, who got stuck in Cuba

It's now been widely reported that law enforcement agencies, empowered by the U.S. Patriot Act to root out "enemy combatants," have the authority to suspend due process rights such as attorney-client privilege, tap phones or monitor e-mail without probable cause, and indefinitely "detain" criminal suspects in secret. Since Bush and Co. have initially set their sights on, and reserved their fiery rhetoric for, Muslim, Arab, and South Asian immigrants, however, a majority of Americans still view this assault on civil liberties as a necessary bit of discomfort--something for someone somewhere else to worry about.

"People just don't know how bad it is yet," Erlinder says. "And many of those who do have a sense of what's going on just want to go on with their lives and hope the dark clouds will pass. My guess is that those people will have to be rained upon. But make no mistake about it, the rain will come."

On September 20, the skies over the Walker Art Center in Minneapolis darkened just enough for a few more of us untouchables to take notice. Before the Omar Sosa Septet came out to burn down a sold-out house with their mix of Latin-flavored jazz and Afro-inspired hip hop, performing arts curator Philip Bither announced that Cuban vocalist Martha Galarraga was not present; she could not get her visa secured in time for the show. Since 9/11 it's become increasingly difficult for artists from around the world to obtain temporary visas, Bither explained. "The last thing we need to do as a country right now is close down the avenues of cultural exchange and the ability for us to hear from artists around the world," Bither would tell me later. "And this is clearly having an impact on the free flow of information."

Blither's pitch prompted a polite round of applause and a few hisses for Dubya, and made more than a few Kenwood types squirm in their seats or stare furtively at their footwear. "Do you really think this government is going to use terrorism as an excuse to censor art?" one silver-haired socialite asked her friend in the lobby afterward. "How can they get away with that?"

The first question made me want to stand on the ticket counter and scream at her. The second caused me to call attorney Laura Danielson, who is the chair of the immigration department at Fredrikson & Byron and represents foreign nationals seeking "P" and "O" temporary visas--categories reserved for artists, athletes, and other special workers.

Danielson says that the deck was being stacked against her clients well before 9/11. In June 2001, the INS bowed to the demands of labor-starved American business and agreed to offer faster case-by-case visa processing for a fee. For $1,000, applicants would be sped through the system in a mere 15 days. (The regular fee is $130, the average waiting period up to four months). The rub, according to Danielson, is that the INS had long been in the habit of efficiently processing artists' requests--a vital accommodation, since performers often have to negotiate bookings on short notice.

Under the new pay-as-you-go system, only high-buck clients get that kind of consideration. "Initially, they said they would expedite requests from nonprofits," Danielson says. "They don't. We try to send an expedite request through without $1,000, and they pay no attention. Or they send us a form telling us to send $1,000."

Then, in response to the terrorist attacks, Congress passed the Enhanced Border Security and Visa Entry Reform Act, and now even those few players who can come up with a grand find themselves tangled in red tape for months--or rejected for no real reason. The law gives agencies like the FBI and CIA 20 days to review visa applications from countries on a list of nations the State Department considers "problematic" and further requires that all men 16 to 45 fill out a detailed biographical form. It also encourages the INS to turn down O and P applicants who don't prove they have "artistic merit" or "extraordinary ability." Not surprisingly, it's unclear what countries are on the State Department's list (the New York Times estimates there are nearly 40), and the standards used to evaluate a person's past or talent are entirely capricious.

When nearly two dozen Cuban musicians were forced to miss the Latin Grammy Awards in mid-September (including winner Chucho Valdés), the mainstream press chimed in with a number of stories that focused primarily on the bureaucratic nightmare INS officials are creating for arts organizations and festival organizers, who face practical pressures to change their programming to avoid hassles. Reporters also chose to cite the most absurd (and seemingly innocent) examples. Earlier this month, for instance, a Yugoslav concert pianist scheduled to play the Carmel Bach Festival in California was denied a visa because immigration officials concluded he was not gifted enough.

Down the line, of course, it doesn't take much effort to imagine that these seemingly subjective, often silly decisions, will be streamlined for use in this country's cultural wars. This administration is aligned with right-thinking censors who routinely attack arts organizations such as the Walker. And just as the U.S. Patriot Act defines "terrorism" so broadly that it could include labor unions and political protestors, the Border Security Act makes it possible for the Justice Department to wreak vengeance on artists who produce work critical of the U.S. or its behavior abroad.

"So far, I haven't seen a refusal that relates to artistic considerations," immigration attorney Danielson concludes. "But I do know what position the INS takes concerning civil disobedience and outcry against the U.S.: Americans can do it, but foreigners sure can't."

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