On October 29 the Bush Administration abandoned a two-decade effort to deport two Palestinian immigrants, Khader Hamide and Michel Shehadeh. Longtime readers may recognize Hamide and Shehadeh as two of the “LA 8,” a group of college-age students and activists arrested in pre-dawn raids in Los Angeles in January 1987 and placed in deportation proceedings for their alleged ties to the Popular Front for the Liberation of Palestine (PFLP), at the time the second-largest faction of the Palestine Liberation Organization. I have been representing the LA 8 pro bono and writing about their struggle for The Nation ever since. This, I’m happy to say, will be my last piece about this case.
Hamide and Shehadeh’s deportation case, which the Washington Post termed the Jarndyce v. Jarndyce of immigration law, dates back so far that the initial charges were for communist affiliation. When it began, Ronald Reagan was President, the Berlin Wall was still standing and we were arming Osama bin Laden in his battle against the Soviets in Afghanistan. Shortly after the LA 8 were arrested, William Webster, then head of the FBI, admitted that the men had committed no crimes and that if they were US citizens there would be no basis for their arrest. But at the FBI’s behest, immigration authorities charged them with distributing PFLP magazines, hosting annual community dinners that celebrated the PFLP and raising money for humanitarian aid organizations in Palestine.
In 1989 Federal Judge Stephen Wilson declared the initial charges unconstitutional, in a decision establishing that immigrants living here enjoy the same First Amendment rights as citizens. However, when Congress repealed the McCarran-Walter Act, upon which the initial charges had been based, immigration authorities simply charged Hamide and Shehadeh under a new provision making material support of terrorist organizations a deportable offense. This immigration law, enacted in 1990, was the precursor to the 1996 criminal material support statute that has been so widely used by the Bush Administration since 9/11.
In 1994 Judge Wilson halted the case on selective prosecution grounds, finding that the government had singled out Hamide and Shehadeh for their constitutionally protected political associations while not seeking to deport similarly situated immigrants who had aided the Nicaraguan contras or the Afghan mujahedeen. The government responded by getting Congress to strip the federal courts of jurisdiction over selective prosecution claims in immigration cases. In 1999 the Supreme Court upheld that court-stripping statute.
In 2003 the government again amended its case, charging Hamide and Shehadeh with being deportable under the Patriot Act for their conduct almost two decades earlier. In 2005, when the Real ID Act expanded grounds for deportation still further, the government amended the charges yet again. The longer the case dragged on, it seemed, the worse the law became.
However, in January immigration judge Bruce Einhorn, in one of his last acts before he left the bench, dismissed the case for prosecutorial misconduct. The government initially appealed but eventually agreed to dismiss all charges. The other six, meanwhile, all of whom were here on temporary visas when the case began, have either gained permanent residency or have applications pending. One has become a citizen.
The Bush Administration deserves credit for its willingness to drop the case. It’s never easy to abandon a case labeled “terrorism.” There were many occasions when the Clinton Administration, for example, could have abandoned the case, but always it decided to press ahead. Why was the Bush Administration able to do what Presidents Reagan, Bush Senior and Clinton could not? In some sense, it was the Nixon in China phenomenon. No one can accuse the Bush Administration of being “soft on terror” (ineffectual, counterproductive, human rights compromising, power-grabbing and immoral, yes–but not soft).
Perhaps more significant, this is one case where 9/11 did indeed change everything. All of a sudden, the United States recognized that it faced a threat from real terrorists, and magazine distributors no longer seemed such a grave concern. While immigration officials had been wasting hundreds of thousands of dollars trying to deport these erstwhile activists, they had allowed nineteen Al Qaeda terrorists to enter the country (and had even extended two of the hijackers’ visas months after they had committed suicide in the 9/11 attacks).
But has the Administration really learned its lesson? The case against Hamide and Shehadeh prefigured many of the tactics widely and aggressively employed since 9/11, including reliance on guilt by association and sweeping charges of “material support”; the targeting of immigrants, backed by arguments that they don’t deserve the same basic human rights as citizens; and the use of secret evidence. It took the government twenty-one years to recognize that such tactics were a mistake in Hamide and Shehadeh’s case. How long before the government recognizes that it is making the same mistakes today?
