Do Immigrants Have First Amendment Rights?

“War on Terrorism Hits LA,” the headline of the Los Angeles Herald Examiner screamed on January 27, 1987. The Los Angeles Eight, as the seven Palestinians and a Kenyan came to be known, are still fighting deportation today. Dangerous security risks? The Immigration and Naturalization Service said so. International terrorists? The INS still argues that the Eight were members of the Popular Front for the Liberation of Palestine (PFLP). These charges were partly based on secret evidence, including photos showing the Eight distributing a “subversive” magazine published in Damascus entitled Democratic Palestine.

The twists and turns of this case are Kafkaesque. The toll on the lives — of the Eight and their by-now 18 spouses and children — is incalculable. The most incredible part of the story is that the case persists. After several circuit and district court victories for the Eight, a major defeat in the Supreme Court this year sent the case back to immigration court to begin all over again. The government is trying to prove its charges that the PFLP is a terrorist organization and that these eight people, by association, should be deported as “alien terrorists.”

The Arrests

On January 26, 1987, in the wee hours just before dawn, INS-FBI swat teams swooped down on the homes of seven Palestinian activists and a Kenyan activist married to one of them. The Eight were arrested at gunpoint and held in shackles in solitary confinement at Terminal Island, a maximum-security prison. The INS opposed their release on bond. The charges in the Order to Show Cause, Notice of Hearing and Warrant for Arrest of Alien evoked the McCarthy hearings of the 1950s: “You have been a member of or affiliated with the Popular Front for the Liberation of Palestine, an organization that advocated the economic, international and governmental doctrines of world Communism through written and/or printed publications, issued on or under the authority of such organization.”

The Eight — Amjad Obeid, Ayman Obeid, Khader Hamide, Julie Mungai Hamide, Bashar Amer, Naim Sharif, Michel Shehadeh and Iyad Barakat — were students, activists and parents living and working in Los Angeles. They had all entered the United States legally on valid visas. Two, Hamide and Shehadeh, had been lawful permanent residents of the US for years prior to their arrests. The others were present on student visas.

The INS claimed to have secret evidence that justified the continued detention of the Eight. In the first of many court victories for the Eight, however, an INS judge refused even to hear the government’s secret evidence and ordered their release from detention three weeks after the arrests, on February 18, 1987.

The FBI revealed that it had been conducting extensive surveillance on most of the Eight for at least three years. In fact, they had planted an agent in an apartment adjoining that of Khader and Julie, spying on them through a hole cut in their bedroom wall. Despite this extensive effort, the FBI reported that it had found not a shred of evidence of any illegal activity and could not find any basis to initiate criminal charges against the Eight. Enter the INS.

The INS Contingency Plan

It quickly became clear that the LA Eight case was not an isolated aberration, nor was it an example of a renegade INS district office run amok. A secret document leaked to the press revealed the overall game plan and significance of the case. Entitled “Alien Terrorists and Undesirables: A Contingency Plan,” the leaked document outlined various methods the INS could use to deport nationals of seven Arab countries and Iran. The document included a plan to round up immigrants and hold them in a massive detention camp in Oakdale, Louisiana. A 1,000-acre site for the camp had already been prepared with sanitation facilities and fencing. The document outlined plans to initiate a wholesale “registry and processing procedure,” modeled on the registration of Iranian students in 1979. The document conceded that a weakness of the registry plan was that it “indiscriminately lumps together individuals of widely differing political opinions solely on the basis of nationality.”

To avoid “recurring problems of the above nature,” the Investigations Division of the INS recommended “limited targeting.” That would include directing the CIA, FBI and other law enforcement agencies to “immediately provide the INS with lists of names, nationalities and other identifying data and evidence relating to alien undesirables and suspected terrorists.” Limited targeting would also include the implementation of deportation charges under the “anti-Communism” provisions of the Immigration and Nationality Act. The “Contingency Plan” document notes that the INS should be directed to supplement political charges with additional technical immigration violations, so that “in those cases where the charge cannot be established and a lesser charge is used, such as the overstay provisions, the government has a ‘fallback’ position on which to rest.”

Last but not least, the document stressed the need to “routinely request the immigration judge to invoke the provisions of 8 CFR 242.16 (immigration regulations) relating to the exclusion of the general public from the hearings on the basis of the national security,” to “routinely hold any alien so charged without bond,” and to “introduce any material necessary to sustain the government’s position…to the immigration judge in camerafor inspection and use in arriving at a decision favorable to the government.”

The methods outlined in the INS contingency plan were exactly those used to prosecute the LA Eight case.

Political and Legal Challenges

If the INS had chosen its targets believing that they were isolated individuals who could easily and quietly be intimidated, prosecuted and deported, they chose incorrectly. The LA Eight were not only accomplished and articulate political activists in their own right, they were also part of a broader progressive movement that quickly organized in their support. Peace activists, civil libertarians and defenders of the First Amendment joined forces with Palestine solidarity activists to publicize the case and recruit attorneys for the legal defense effort. The National Lawyers Guild, American Civil Liberties Union and the Center for Constitutional Rights quickly provided legal support. Activists formed a “Committee for Justice” to organize public support of the LA Eight.

While the case was still pending with various motions and appeals, Congress acted to repeal the infamous McCarran-Walter Act provisions that had been incorporated into immigration law in the early 1950s at the height of the McCarthy hysteria. The ideological grounds of exclusion and deportation were not totally eliminated, however. The anti-Communist provisions were merely replaced with new anti-terrorism provisions. One could no longer be deported for advocating “world Communism,” but one could still be deported for membership in a terrorist organization according to changes in immigration law enacted in 1990.

Undeterred, the INS merely substituted the old, now-repealed anti-Communist charges with new ones, arguing that the PFLP was a terrorist organization and the LA Eight were affiliated with it, so that still made them deportable under US immigration law.

While the government continued to prosecute its deportation case against the LA Eight, the American Arab Anti-Discrimination Committee (ADC) became the named plaintiff in a counter-suit. While defending the Eight against deportation charges, ADC argued that charges should be completely dismissed because they were illegally brought as the result of a politically motivated selective prosecution. The ADC v. Reno case, as the selective prosecution case became known, chalked up significant victories in the courts. Yet following each victory for the Eight, the government appealed.

As the LA Eight case continued, Reagan and then Bush left office. The Clinton Justice Department refused to meet about the case in late 1993, citing concerns that the case was pending a critical court decision in Los Angeles. Time passed, and the Administration continued to refuse to back off from its vigorous prosecution of the case.

Finally, the Ninth Circuit Court of Appeals ruled that the Eight had indeed been singled out for prosecution based on their political beliefs and activities and the exercise of their first amendment right to free speech. The government appealed this decision to the US Supreme Court.

The LA Eight Still Face Deportation

In a stunning reversal of lower appellate court decisions, the Supreme Court ruled in the government’s favor on February 23, 1999. In a decision reminiscent of the Japanese internment cases decades ago, the Court sent a chilling message to immigrant communities across the United States by holding that, “as a general matter — and assuredly in the present case — an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” What the decision boils down to is one simple, clear message: immigrants have no First Amendment rights. The Supreme Court sent the LA Eight back to immigration court where the government will soon begin to prosecute their deportation case once more. They can pay taxes and serve in the US military, but they cannot speak out and defend their own rights.

Justice David Souter, writing the sole dissenting opinion, took issue with the majority. He pointed out that selective enforcement cannot be used to target tax evaders against whom the government is prejudiced. Nor can it be used to target particular criminal defendants whom the government is out to get. The constitutional guarantees of equality and liberty are just as important in the deportation context, Souter wrote.

The effect of the Supreme Court decision in ADC v. Reno is to send the LA Eight back to immigration court, where the government will shortly begin prosecuting their deportation case once again.

First experts will be called to testify that the PFLP is a terrorist organization. Then the INS will bring out their tapes and photos of solidarity and Palestinian community events in order to prove that the Eight supported the activities of the PFLP and raised money for it. The Eight will argue that they were expressing political opinions, exercising First Amendment rights guaranteed to every person under the Constitution.

The case will undoubtedly go all the way back up to the Supreme Court.

More Secret Evidence, New Secret Court

While the LA Eight case has been going on, Congress enacted yet new legislation that gives unprecedented powers to prosecutors. Sanctioning and codifying the use of secret evidence, Congress created new procedures for an “alien terrorist removal court.” While this new court has not yet heard a case, the government continues to use regulatory authority to introduce secret evidence in regular immigration court. In recent years, the INS has initiated deportation proceedings against several individuals of Arab and Iranian descent and is attempting to use secret evidence to deny bond and convince immigration judges to deny discretionary relief. In many of these pending cases, immigrants have been held in detention for two and three years. The arguments in the government’s briefs were honed in the LA Eight case.

There are some glimmers of hope, however, as activists and advocates argue these cases in the press and in the courts. By rejecting the government’s secret evidence in one recent case, the Board of Immigration Appeals (BIA — the administrative appellate body that rules on these cases before they proceed to the Circuit Courts of Appeals) has hinted at the shoddy nature of the evidence and the “guilt by association” arguments of the government: “We find that the association with the PFLP is unproven. The evidence presented is vague, lacking in specificity and uncorroborated.… The FBI report…shows that the respondent participated in a demonstration in 1982 and he assisted at a fund-raising dinner in 1985. These activities do not associate him with any particular organization. Nor does his testimony that he participated in fund-raising events for several organizations (some of which were sympathetic to certain elements of the PFLP program, and he could not be certain exactly what happened to every donation), constitute an admission of fundraising for the benefit of the PFLP. The classified information provided in camera may arouse suspicion, but would require much greater details to convince the members of this Board that the respondent is in any way a supporter of a terrorist organization.”

Let us hope that the Supreme Court is as skeptical and rational as the BIA once the LA Eight case reaches their bench again.