/REPEAT/RIGHTS-US: Immigrants’ Free Speech Rights Threatened

By Jim Lobe Reprint | | Print |

Jim Lobe

WASHINGTON, Feb 26 1999 (IPS) - The U.S. Supreme Court has a dealt a major blow to the rights of free-speech by immigrants who may be subject to deportation from the United States.

In a 6-3 ruling this week the court, the nation’s highest judicial body, ruled that the government may deport illegal immigrants for political reasons.

“(The decision) relegates immigrants to a second-class status that is reminiscent of the political witch hunts of the McCarthy era,” said Marc Van Der Hout of the National Lawyers Guild (NLG), which helped prepare the case for the immigrants involved in the case.

Other critics warned that the decision could deter immigrants from speaking out about conditions in their home countries for fear of being targeted for deportation.

The ruling was the latest development in a celebrated, 12-year- old case involving seven Palestinians and a Kenyan woman accused by the Federal Bureau of Investigation (FBI) of belonging to the Popular Front for the Liberation of Palestine (PFLP).

The eight were arrested at gun point in Jan. 1987 in their suburban Los Angeles homes in an operation conducted by scores of FBI, police and Immigration and Naturalization Service (INS) agents.

All were initially charged with supporting the PFLP, which had been identified as a terrorist group by the State Department.

The arrests, which included 24-hour surveillance over three weeks of their initial imprisonment, was ordered by the FBI which then urged the INS to deport the eight in order to hamper the PFLP’s political activities in southern California.

The government admitted that none of the group, who came to be known as the ‘L.A. Eight,’ had engaged in any terrorist act or criminal conduct.

Indeed, in one document filed with the court, the FBI had targeted one of the group, Khader Hamide, for deportation because he is “intelligent, aggressive, and has great leadership ability,” and therefore his deportation would hurt the PFLP’s organising efforts.

Two of the eight were permanent residents of the United States and the INS moved to deport them on the grounds that they had provided material support to the PFLP.

The rest, mostly students who had been critical of US policy in the Middle East, were charged with technical violations of their immigration status, such as not taking enough university credits to qualify for their student visas, that made them liable for deportation.

Lawyers from the American Civil Liberties Union (ACLU) and the National Lawyers Guild (NLG) challenged the case on the grounds that the government had engaged in “selective prosecution,” because they had not tried to deport supporters of other, non- Palestinian groups accused of terrorist activity.

They argued that the group was being deported for carrying out legitimate activities, including fund-raising, selling newspapers, and other public speaking which are traditionally protected under the First Amendment of the U.S. constitution.

In a series of rulings over the next 10 years, federal courts generally sustained that position and issued injunctions against the government, preventing it from deporting the eight.

Indeed, the appeals court found that non-citizens in this country should have the same rights of free speech and association as do citizens and that the group could be deported only if the government proved that they intend to assist illegal actions by the PFLP.

Last year, however, the government advanced a new argument based on a 1996 law designed to speed the deportation process and limit the ability of immigrants to ask the federal courts to intervene.

Specifically, the law denied immigrants the right to appeal to a federal court on a deportation case until the immigration service had completed its process and a final deportation order was signed.

The 1996 law, according to the government, thus required the courts to quash their injunctions in the LA 8 case and return it to the immigration service to determine whether a deportation order would be issued.

When the Supreme Court heard the case, Reno v. American-Arab Anti-Discrimination Committee, last November, the only issue which the lawyers were asked to address was merits of the government’s new argument – whether the 1996 law required the case to be returned to the immigration service.

On that question, the Court ruled in favour of the government by an 8-1 margin. While that decision was likely to have a great impact on tens of thousands of immigrants currently fighting deportation actions, what really surprised observers here was the court’s decision to rule on the issue of selective enforcement.

“We were blindsided,” said David Cole a professor at Georgetown University who argued the case on behalf of the ACLU and the Center for Constitutional Rights.

“The court has denied to all immigrants in this country the right to engage in the same political activities that citizens have an unquestioned First Amendment right to engage in; and it did so after telling us not to address the question.

“The Court has denied immigrants the right to speak without even allowing them to be heard on that question.”

The scope of the decision was also surprising. In his majority opinion, the court’s most far-right member, Justice Antonin Scalia, wrote, “as a general matter…an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.”

Noting that deportation decisions can involve sensitive foreign- policy consideration, Scalia added that “the Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat…”

The three dissenting judges objected to the majority’s decision to rule on an issue on which it had not been briefed and also pointed to a Supreme Court ruling that said “freedom of speech and of press is accorded aliens residing in this country.”

That ruling set off a trend, suddenly reversed Wednesday, toward according illegal immigrants the same constitutional rights as citizens.