Constitutional Doubt

Does the Constitution apply to immigrants? 

On February 24, 1999, the United States Supreme Court seemed to say that it did not.  Whether wholly, or only in certain circumstances remains to be seen.  In its most immediate impact, Reno v. American Arab Anti Discrimination Committee concludes twelve years of onerous litigation for the L.A. Eight–seven Palestinians and a Kenyan living in the Los Angeles area–and returns them to the threshold of deportation. 

            Their case began in 1987, when they were charged under the now repealed McCarran Act with possessing literature advocating worldwide communism.  Since then, charges against them have been dropped and added repeatedly by the government, all aimed at First Amendment protected activity, most recently under new legislation which prohibits support to a terrorist organization.  The government contends the eight immigrants are members of the Popular Front for the Liberation of Palestine, a charge they have always denied, despite the shorthand in the media and the courts that assumes such membership. 

            The eight in earlier proceedings offered convincing evidence that the government had singled them out because of their advocacy of Palestinian rights.  Ultimately, officials conceded as much, and that the immigrants were not involved in any criminal conduct.  The Ninth Circuit Court of Appeal twice ruled in ADC v. Meese that the selective enforcement of the law against them, and the threat of deportation, impermissibly chilled their First Amendment rights, and the deportation proceedings were enjoined.  That injunction was vacated by Reno v. ADC, clearing the way for deportation trials to resume.

            At issue in the Supreme Court was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Justice Scalia, writing for an 8-1 majority, construed the act to limit or eliminate–depending on interpretation–federal jurisdiction over constitutional claims in deportation cases.  The abolition of federal jurisdiction would mean any immigrant group could be subjected to unconstitutional speech limitations without redress in the courts.

            But the Scalia majority went further.  After specifically advising the parties that the issue of selective enforcement would not be addressed, the Court held nonetheless: “As a general matter–and assuredly in the context of claims such as those put forward in the present case–an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” 

            The Court made no distinction between the six visa holders with minor technical violations, and therefore “unlawfully in this country”, and the two lawful resident aliens, who are most assuredly asserting a selective enforcement defense.  As applied to resident aliens, the Court’s ruling makes no sense, as there has been no finding that they are unlawfully in this country, they are merely accused of being so.  Nor did the Court fairly address the six vias holders, accused of taking too few credits in school and other minuscule infractions.  Deportations are rarely initiated on such charges, and in this case, were done so, by the government’s admission, only because the respondents are alleged to support the PFLP.          

            Moreover, this fait accompli simply preempted previous Supreme Court rulings that the First Amendment applies to aliens living here the same as it does to citizens, and without briefs or argument on the issue.  Such unabashed disregard for due process and fundamental fairness undermine the credibility of the Court; it is also unfortunately consistent with the government’s twelve-year campaign of vilification and misconduct against the L.A. Eight.

            In its rationale for rejecting the selective enforcement defense, the Court seemed to confer an almost unlimited discretion to the INS in targeting aliens for deportation: “The Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat–or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals–and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy.”

            So far afield has the Scalia majority gone with this declaration of guilt by association as constitutional principle, that Justice Souter, in his thoughtful dissent, considered the selective enforcement part of the ruling dictum–a line of argument unnecessary to the decision.  He voted aginst the majority on the jurisdictional question as well, to maintain the immigrants’ constitutional rights.

            The case is in some ways confusing and illogical, and legal scholars differ on the scope of harm it encompasses.  At its worst, it effectively strips immigrants of constitutional protections, and combined with the hands-off approach to enforcement, renders unfettered discretion to the INS to target unpopular nationalities as “special threats”, and find reasons to deport them.  The doors of the federal district courts would thus be closed to immigrants facing deportation, thereby eliminating the forum and fact-finding process essential to showing a constitutional deprivation.  At its best, Reno may limit immigrants’ constitutional protections only in the INS’ discretion to commence proceedings, but not in obtaining an order of deportation, and immigrants may still have access to federal courts to protect their constitutional rights.  As Justice Souter observed, the “complete preclusion of judicial review of any kind for claims brought by aliens subject to proceedings for removal would raise the serious constitutional question whether Congress may block every remedy for enforcing a constitutional right.”  To avoid such a result, Souter invoked the doctrine of constitutional doubt, which holds that when a statute is susceptible to two meanings, one raising grave and doubtful constitutional questions, and one in which such questions are avoided, the latter should be adopted.

            But the Scalia led Court rejected this approach and concluded that “[w]hen an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.”

            The Court again failed to distinguish between the six technically illegal visa holders, and the two lawful resident aliens for whom the “additional reason” is the only reason.  Does Justice Scalia mean that otherwise lawful resident aliens may be considered illegal aliens for “supporting terrorist activity” (by First Amendment protected speech and associations), and deported by the INS, because they are illegal aliens?  And without recourse to judicial review?   

            Whether some variation of this interpretation will prevail, or one less offensive to civil liberties and good sense, will be fought out in the courts over coming months and years.  For the L.A. Eight, with their homes and families and roots here, the outcome will determine if they stay or go.  In the interim, Reno v. ADC provides them, and all immigrants, ample reason to doubt that the Constitution still applies to them. 



Under Siege:   Secret Evidence and Guilt by Association

            The L.A. Eight were in many ways the subjects of an experiment by the government that ultimately led to harsh new anti-immigrant legislation and enforcement policies.  Currently, there are some 25 cases that involve secret government evidence, denial of bail based on national security, years of pretrial detention, invasive grand jury and FBI investigations, and civil forfeitures–all under charges aimed at First Amendment activities, and all against immigrants from the Arab world. 

            From their arrest in January 1987, it was clear the L.A. Eight were targeted for high profile treatment.  With a hundred agents deployed across the Los Angeles area to bring them in, FBI and INS officials claimed the seven Palestinians and a Kenyan were affiliated with the Popular Front for the Liberation of Palestine and held them without bond as threats to the national security.  To circumvent constitutional review, the government changed charges against them throughout the case, under different advocacy prohibiting sections of the now repealed McCarran Act, and later under new antiterrorist legislation.  Even though acknowledging the immigrants were involved in no criminal activity, the INS continued to depict them as somehow linked to terrorism–not by allegations of specific conduct, but by allegations the government said could only be made in secret, without the eight respondents or their counsel present.  At the bond hearing three weeks after their arrest, the INS, rather than provide its evidence in open court, offered to whisper it to the judge.  The judge declined, and the detainees were released.  An important victory for the L.A. Eight, and one the government wouldn’t forget.

            At the same time, previously secret memoranda were leaked to the defense team that outlined efforts taken in 1986 to establish a mass internment camp for Arab and other Middle Eastern immigrants.  “Alien Terrorists and Undesirables: A Contingency Plan”, created by the Alien Border Control Committee (ABC), including the INS, FBI, CIA and other federal law enforcement groups, also delineated, step by step, the actions taken in the L.A. Eight case, including the use of charges under the McCarran Act and the reliance on secret evidence.  Though immigration officials denied any correlation, a camp site was prepared in Oakdale, Louisiana, complete with fences, cots and tents enough for five thousand detainees, as specified in the ABC document.

            The public outcry at the time was sufficient, it seemed, to curtail such a plan.  But still intent on doing its business in secret, the government adapted.  Though rarely used in the past, “classified information” has been introduced in about 50 immigration cases since 1992, according to the Justice Department.  Learning from its mistakes, the INS no longer has to ask the immigration court if it may whisper its secret evidence to the judge.  Instead, Congress, with President Clinton’s blessings, passed the Antiterrorism and Effective Death Penalty Act of 1996.  The act established “special removal courts” that allow for secret evidence to prove an alien has provided material support to a designated terrorist organization, or solicited funds for, or solicited persons for membership in such an organization.  The law also criminalizes for citizen and alien alike, support of even the lawful activities of any group the Secretary of State designates as terrorist, with a ten-year maximum sentence.  Most of the thirty groups targeted are Arab or Muslim.

            This is a bad idea.  In the first place, anyone in the United States who takes part in planning or committing a terrorist crime is subject to criminal statutes, such as those used in the World Trade Center and Oklahoma City bombings.  The antiterrorism law is not concerned with criminal acts, but rather with otherwise lawful associations with groups deemed criminal.  But whether we like it or not, organizations we call terrorist can be complex social structures like the PLO, which was the government in exile of the Palestinians, with all the responsibilities of any other government to its citizenry, including humanitarian relief.  In effect, anyone can now be penalized for donating to hospitals or hunger relief campaigns if the intermediary is officially disapproved of.  Moreover, “material support” is a vague catchall that could reach far beyond such donations.  With this in mind, the Humanitarian Law Project in Los Angeles is challenging the law as it applies to the project’s efforts to provide human rights training to the Kurdistan Workers Party, one of the terrorist designees. 

            While the act vests an overly broad discretion in what the government may consider support by immigrants here, the process of allotting terrorist status to particular groups is fraught with all the instability of international relations.  We have seen repeatedly that persons and organizations, such as Nelson Mandela and the African National Congress, who are considered terrorist on one day, can on the next be recognized as respected leaders and governments.  The law accordingly shifts in and out of effect with the changing tides of political alignments in the world.  In 1997 for example, six Irish Republican activists had their deportation proceedings stayed as a direct result of a peace agreement for Northern Ireland.  At the stroke of a pen, they no longer threatened the national security.

            As with the L.A. Eight, national security is the proffered rationale in all the secret evidence cases.  But from what few disclosures there have been, it appears the INS is trying cases in secret in which the bulk of the evidence had no reason to be.  Why subject your case to confrontation and cross examination when you can sit down in chambers alone with the judge and recite hearsay?  What lawyer wouldn’t exercise such an advantage?  In the case of six Iraqis, recruited by the CIA in a failed coup against Saddam Hussein and detained here now as national security risks, 90% of the evidence initially claimed to be secret was ultimately released once former CIA Director, James Woolsey took their case public–and without in any way harming the national security.

            Civil asset seizures and jail sentences for contempt of grand jury proceedings have targeted both Arab immigrants and U.S. citizens of Arab descent for their First Amendment activities, generally involving allegations of fund raising for groups deemed terrorist.  Civil forfeiture procedures put the burden on the person whose assets have been seized to prove the funds weren’t involved in criminal activity; grand jury proceedings give prosecutors broad latitude, including indefinite jail terms, in coercing witnesses, who must appear without benefit of counsel.  Through such means, the government is foreclosing First Amendment associational and speech rights, especially in the Arab American community, and without having to subject its own evidence to cross examination, or even disclosure. 

            In the deportation cases, the INS has the further advantage of being able to litigate interminably.  Imad Hamad, another Palestinian, may hold the record.  In 1985, Hamad sought to adjust his status to permanent resident.  The INS denied his request and instead began deportation proceedings based on secret evidence alleging that he belonged to the Popular Front for the Liberation of Palestine.  The judge allowed the evidence which neither Hamad nor his counsel had access to but held that it failed to establish any link between him and the PFLP.  Fourteen years later, the Board of Immigration Appeals affirmed, and Hamad can now adjust his status.    

            The point of his and the other cases, one might reasonably conclude, is not so much to enforce the law, which, as we have seen, is infinitely mutable, but to enforce a political viewpoint in which Arabs are presumed terrorists until proven innocent.  The propagation of this view against the L.A. Eight and others has created a pervasive chilling effect on free speech in the Arab American community for more than a decade.  The new law, like the McCarran Act and those in between, provided the government a means to appear to be doing something, anything, about terrorism, while inhibiting dissent on its underlying anti-Arab assumptions, and scaling back immigrants’ rights generally.  Like outright wars, these repressive campaigns have a way of creating their own momentum.  Since the Reagan 80s, Arab bashing has become a growth industry, consuming millions of tax dollars and thousands of work hours, whittling away at civil liberties, while reinforcing the stereotyping against people from the Arab world, in an atmosphere all too conducive to violence against them.  Just how bad things have gotten can be viewed through the warped lens of Hollywood, where the maniacal Arab terrorist of the 1980s has become a maniacal community in The Siege and is locked up accordingly.  Simple as ABC.

            With Reno v. ADC (see Constitutional Doubt, p.) to reassure the government in its anti-Arab zeal, deportation proceedings against the L.A. Eight will resume, and the myriad other repressive efforts outlined here continue.  And we should probably expect worse, until proponents of civil liberties and people of good will, and especially Arab immigrants and Arab Americans, can be heard above the baying of the pack.  

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