Michel Shehadeh considers it something of a victory that the FBI has not come knocking on his door in the weeks following September 11. “It proves that they know we are not dangerous in the least,” says Shehadeh, one of the eight defendants in a notorious 15-year-long immigration case in which the U.S. government has sought to deport seven Palestinians and the Kenyan-born wife of one of them.
The case was a central reference point in the Bush administration’s crafting of new “anti-terrorist” legislation, which was signed into law on Friday. It offers a chilling example of how the new USA PATRIOT Act threatens the constitutionally protected activities of immigrants. The case began in 1987, when federal agents stormed the Los Angeles homes of activists for Palestinian self-determination and accused them, under a Cold War relic of a law, of being associated with an organization that “advocates the doctrines of world Communism.” (Specifically, the government alleged, they distributed magazines and gave talks endorsing the establishment of a Palestinian state.)
After that tack was declared unconstitutional a couple of years later, the U.S. slapped new charges on two of the eight in 1991. Using a law passed in 1990, it alleged that they had provided material support to a “terrorist organization in conducting its terrorist activities” by having made donations—in the 1980s—to hospitals and day-care centers associated with a militant faction of the PLO.
The action against the L.A. 8, as they came to be known, is one of the hallmark cases in immigration law of the last 50 years. It has bred numerous law-review essays addressing the extent to which immigrant speech and political dissent may be restricted. Rejected by courts and decried on editorial pages from the Los Angeles Times to The New York Times, this case has long been regarded as an illustration of the dangers (not to mention the needless expense) of the hell-bent hounding of immigrants under absurdly broad definitions of “terrorism.” Yet these are the very efforts the Bush administration has authorized and codified in the new laws.
Over the years, a series of court rulings at various levels has repeatedly held that the L.A. 8 do not deserve to be deported for having exercised their First and Fifth Amendment rights to free expression and association. Also, referring to mountains of material obtained through several years of wiretapping and other surveillance of the L.A. 8, former FBI director William Webster said that none of the accused had ever engaged in criminal activity, and that if they had been citizens, “there would not have been a basis for their arrest.”
In the latest ruling, in June, an immigration judge threw out the charges, asserting that the defendants could not be prosecuted under laws that didn’t even exist when proceedings against them began; in August the government filed an appeal, which is now pending. As the case has wended its way through immigration, district, and federal courts, the L.A. 8 have remained lawfully in the U.S., some marrying American citizens and raising children born here; none has ever been accused of engaging in any illegal activity. “Don’t you think that if the government honestly thought any of us had something to do with trying to harm this country, they’d have come and questioned us last month?” Shehadeh asks. “For 15 years, they have been after the wrong guys.”
True, there’s no reason why the government would think Shehadeh and his fellow defendants would have anything to do with the twin towers attacks. But according to David Cole, an attorney with the Center for Constitutional Rights who has led the federal court fight against the Immigration and Naturalization Service’s effort to deport the L.A. 8, “there’s no question that the administration had this case in mind” as it pushed for restrictive laws in the wake of the tragedy.
Arguments over immigrant provisions of the anti-terrorism act had at their core two major issues: Do immigrants have the same constitutional rights as citizens? And, can immigrants be singled out and deported for innocent associations with organizations deemed “terrorist”?
These, says Cole, are the very questions underlying the L.A. 8 case, and courts have answered them in favor of immigrants. So the Bush administration tried to draft language that would withstand the sorts of arguments that have defeated the feds in their relentless pursuit of the L.A. 8. They brought in the lead prosecutor against the L.A. 8, Michael Lindemann, as an advisor in the Senate negotiations on the bill.
“The bill the administration put forward attempted to get around legislatively all the legal arguments the courts had accepted in the L.A. 8 case,” explains Marc Van Der Hout, a San Francisco-based attorney who has been representing the L.A. 8 since 1987 on behalf of the National Lawyers Guild. For instance, the USA PATRIOT Act establishes as law the government’s heretofore shaky claim that helping to fund a day-care center or hospital run by an organization that may also have a military wing constitutes giving material aid to terrorists—even if the U.S. has not officially designated that organization as terrorist.
What is more, the act places the burden of proof on the immigrants, whose only hope of staving off detention and deportation is demonstrating that they did not know and should not have known that their assistance would further terrorist activity. At the same time, the definition of terrorism is so broad—encompassing, among other things, the use of a “weapon or other dangerous device . . . to cause substantial damage to property”—that even throwing a rock through a window could qualify.
In an alarmed critique of the act, the ACLU warns that this expansive definition exacerbates the dangers of putting the burden of proof on the immigrant. Under the law’s understanding of ‘terrorism,’ the ACLU notes, World Trade Organization protesters who engage in minor vandalism, abortion foes who practice civil disobedience, or protesters in Vieques, Puerto Rico, who damage a fence would be deemed terrorists. Likewise, purely humanitarian aid to the Northern Alliance, currently a U.S. ally in fighting the Taliban and Osama bin Laden, could be called assistance to a terrorist organization.
Worse still, the determination of who is a terrorist is entirely up to the secretary of state, and that, of course, means the label could easily be used to target political dissent, as it arguably was in the case of the L.A. 8, prosecuted in the days before the U.S. itself supported the establishment of a Palestinian state. Indeed, although the Supreme Court ultimately ruled that immigrants cannot claim selective prosecution, in one chapter of the L.A. 8 saga, attorneys sought to show that their clients were being singled out only because of their political views. Immigrants from other lands, they argued, often engaged in genuinely militant activities, but were not put into deportation proceedings because the causes they supported served goals of American foreign policy. Activists for the Nicaraguan contras and the anti-Castro Cubans testified that they had never been prosecuted for backing violent movements in their homelands; so did members of the Afghan mujahideen.
The USA PATRIOT Act, in sum, makes it virtually impossible for immigrants to assist humanitarian causes and political movements in their countries of origin and beyond. Thus they are not accorded the constitutional rights to free speech and association.
Though the Supreme Court has ruled in a range of cases that immigrants are covered by the Bill of Rights, the history of U.S. immigration policy has always been a tense struggle between the principle of constitutional protections for immigrants and the broad discretion granted the executive and legislative branches of government to defend borders and sustain national security. In the name of preventing sedition, Communist revolution, or terrorism, the government has often restricted the rights of immigrants. And again and again, their rights have been re-established as challenges to restrictive laws have percolated through the courts.
But not always. Sometimes, especially in times of fear, the courts wobble. The Supreme Court, after all, upheld actions against those speaking out against American involvement in World War I, and also permitted the internment of Japanese immigrants during World War II. So activists must remain on the alert, says Jeanne Butterfield, executive director the American Immigration Lawyers Association. “We have to make sure the government does not try to use immigration civil proceedings, where standards of proof are lower and technicalities broader, to accomplish what cannot be accomplished through the criminal justice system,” she says. “We cannot let the immigration laws be manipulated to circumvent the Constitution.”
Safeguarding the Constitution, says Michel Shehadeh, now 45 and working as the West Coast regional director of the American Arab Anti-Discrimination Committee, is what drives him. There isn’t a day that goes by when he doesn’t recall with a shudder the January morning in 1987 when agents barged into his apartment with guns drawn, handcuffed him, and hauled him away, leaving his then three-year-old son wailing and alone. “This was the West Coast of America, not the West Bank under occupation, where I had grown up and might expect such things,” he says. “It was a shock and also a wake-up call. I understood that the freedoms and ideals I so relish here do not survive on their own. We cannot take them for granted. We have to protect them vigilantly.”