An immigration judge criticizes federal conduct in the case against the pair, both legal residents, accused of terrorist ties.
By Henry Weinstein
Times Staff Writer
January 31, 2007
A federal immigration judge has dismissed the government's attempt to deport two men who were arrested along with six other U.S. residents because of their alleged ties to Palestinian terrorists and who fought relentless efforts to force them to leave the country for 20 years.
Judge Bruce E. Einhorn of Los Angeles, in a ruling made public Tuesday, said the government had violated the constitutional rights of Khader M. Hamide and Michel I. Shehadeh by its "gross failure" to comply with his instructions to produce "potentially exculpatory and other relevant information."
In a scathing decision, Einhorn said the government's conduct in the case was "an embarrassment to the rule of law" that left "a festering wound on" Hamide and Shehadeh, who have been in legal and personal limbo for two decades.
The two men, both longtime legal residents of the United States, are part of a group that was dubbed "the L.A. 8" after the government launched attempts to deport them in January 1987. All eight denied that they were members of the Popular Front for the Liberation of Palestine, or PFLP, a radical offshoot of the Palestine Liberation Organization that has taken credit for airline hijackings and car bombings in the Middle East.
Hamide and Shehadeh, as well as the others, steadfastly maintained that they were being persecuted even though their political activities - distributing newspapers, participating in demonstrations, assisting Palestinians with human rights and medical needs, raising money for hospitals, youth clubs and day-care centers - were lawful.
Einhorn's ruling "is a great decision that really vindicates what we have said all along," a jubilant Hamide said in an interview Tuesday. "The government spent millions of dollars and thousands of hours trying to deport us, and the only things they ever accused us of were constitutionally protected activity.
"The government should drop this case and leave us alone to lead normal lives - if there is such a thing after a case like this - and pursue real terrorists," said Hamide, 52, who lives in Chino Hills and is in the coffee distribution business.
Shehadeh, 50, said he was "feeling very, very good about the decision. This might be the moment we have been waiting for, for the last 20 years, a moment of relief and vindication."
But Shehadeh, who lives in Oregon, where one of his sons is in college, quickly added, "Another side of me is still cautious. After 20 years it becomes ingrained in you. This might not be the end of it."
And indeed it might not be. The government has not said whether it will appeal the decision. A Justice Department spokesman said the agency had no comment. The Department of Homeland Security declined to comment.
Prosecutors never filed criminal charges against any of the eight. Late last year, Aiad Barakat, another member of the L.A. 8, was sworn in as a U.S. citizen in Los Angeles. Three other members of the L.A. 8 have obtained permanent residency. One member of the group is still seeking that status, and the other has returned to the West Bank city of Bethlehem.
Over two decades, the immigrants won a number of key decisions, including one from the U.S. 9th Circuit Court of Appeals in 1998 that held that the Constitution does not permit "guilt by association." That court ruled that the deportation of Hamide and Shehadeh could not go forward unless the government showed that the men intended to support the "illegal group goals of the PFLP."
But government lawyers twice persuaded Congress to change laws and make them retroactive in an effort to be able to deport the two men, said San Francisco attorney Marc Van Der Hout of the National Lawyers Guild, who has represented them for 20 years.
The two sides stipulated to Einhorn that the PFLP "engaged in terrorist activities" from 1984 to 1986, but also provided day care, healthcare and Social Security services as well as cultural events.
This week's ruling was the second time Einhorn threw out the case. The judge said that the government missed the deadline for turning over exculpatory information by nine months and that even then its response was inadequate.
The judge said the government's conduct was particularly troubling given how long the case had taken and the nature of the charges.
"A reasonable argument could be made that if Hamide and Shehadeh have engaged in terrorist activity, particularly in the context of today's world, then the government would be prepared to move heaven and Earth - not to mention some mounds of paper - to complete the trial and deportation" of the duo.
In particular, Einhorn blasted John H. Clarkson III, assistant general counsel of the National Security Branch of the FBI, for responses to the court that were a "misuse of black-letter law," a reference to legal principles that are not disputable.
Einhorn said the government had broad but not unlimited powers in immigration matters.
"While this court may be one of limited jurisdiction, it is not an impotent institution," Einhorn wrote.
If there were no consequences for the government's failure to discharge its court-ordered responsibilities, it would mean that an immigration judge would be "reduced to the status of Blanche Dubois, who must rely on the kindness of strangers," he wrote, referring to the character in Tennessee Williams' play "A Streetcar Named Desire."
"Judge Einhorn's decision is important not only for Hamide and Shehadeh, but for all immigrants in this country who want to be able to express their political views," Van Der Hout said.
"The decision makes clear that the government cannot blatantly refuse to comply with an immigration judge's orders and that the government cannot continue to try to deport these permanent residents who did nothing but try to advocate for Palestinians' right to a homeland - hardly a revolutionary belief in the 21st century."
Added Georgetown University law professor David Cole, who has been co-lead counsel for the L.A. 8, on behalf of the Center for Constitutional Rights, since the case began: "For 20 years the government has been attempting to deport these individuals for political activities that would clearly be protected if they were U.S. citizens. We hope that the government will now move on and focus its efforts on real terrorists and not political activists."