On Nov. 1, attorneys for the two last remaining defendants in the famous LA 8 case announced an agreement with the Department of Homeland Security whereby all government proceedings against the two Palestinian immigrants would be dropped. This ended a 20 year ordeal.
In 1987, the government arrested the original “Los Angeles 8,” seven Palestinians (including Michel Ibrahim Shehade and Khader Musa Hamide the last two defendants) and a Kenyan, and tried to deport them for alleged violations of the 1952 McCarran-Walter Act. The FBI had been spying on them for years and could not find any basis for criminal charges, so the old Immigration and Naturalization Service took over and tried to deport them for their political opinions and associations. At the time, Shehade and Hamide were permanent legal residents and the others were here legally on temporary visas.
McCarran-Walter made support of “communism” a deportable offense for non-citizens, even though such activity was legal for U.S. citizens. It had been used to try to deport non-citizens who were believed to be involved in radical organizations, including the Communist Party USA, and to deny entry to the United States to novelists Graham Greene and Gabriel Garcia Marquez, naturalist Farley Mowat, and poet Pablo Neruda. The accusation against the LA 8 was that they had circulated periodicals of the Popular Front for the Liberation of Palestine, a radical secular affiliate of the Palestine Liberation Organization, had attended PFLP support activities and had participated in fundraising for social service organizations with PFLP connections. None of this was illegal at the time, as the government admitted.
But in 1989, the federal courts declared the anti-communist clauses of McCarran-Walter to be unconstitutional, and in 1990, Congress repealed them, replacing them with a prohibition on terrorist activities. Thus the statute on the basis of which the government was attempting to deport the LA 8 no longer existed, though the government claimed it was still valid for pending cases.
The government then tried to deport the LA 8 on other grounds, namely material support of terrorism. Each time, the effort failed in court, and the government went back after the defendants, under the 1996 Anti-Terrorism and Effective Death Penalty Act, which allowed the PFLP to be “officially” listed as a terrorist organization while also making material support for terrorist organizations a felony, and then under the USA PATRIOT Act of 2001. As the government’s campaign of persecution continued, it became focused on Shehade and Hamide, pursuit of the other 6 being abandoned (one of the others is now a citizen and the other five are either permanent legal residents or have their residency in process). The government spent a total of 20 years trying to deport these people.
The LA 8 case became a central focus of civil liberties organizing in the Arab American community and beyond. Defense for the eight was carried out by National Lawyers’ Guild, the Center for Constitutional Rights and the ACLU, along with the American Arab Anti-Discrimination Committee and others.
In January of 2007, the immigration judge assigned to the case, Bruce Einhorn, terminated the proceedings on the grounds that the government had taken more than nine months to respond to a simple order to produce possible exculpatory evidence, and then had in fact not done so. Exculpatory evidence is evidence the prosecution may possess which would tend to exonerate the accused. Both criminal law and immigration law require that such evidence be turned over to defendants and their attorneys, but the government had been trying to convince the judge that to do so would be a breach of national security. Einhorn did not buy this, and ordered the deportation procedures against Shehade and Hamide terminated, saying “The effect of the government’s defiance of this court has been to prejudice respondents’ constitutional right to a fundamentally fair hearing.”
Shehade’s and Hamide’s supporters then approached Homeland Security Secretary Michael Chertoff who agreed to drop the deportation efforts in exchange for an agreement that the Hamide and Shehade would not sue the government and would wait three years before applying for U.S. citizenship.
The settlement was hailed by civil libertarians and by the Arab American community. But there was a note of caution also. The government had hoped that the LA 8 case would establish a precedent for draconian actions against non-citizens who support groups overseas that the U.S. administration opposes.
Law Professor David Cole of Georgetown University, who was one of the attorneys for the LA 8 for 20 years as a volunteer for the Center for Constitutional rights, told the World that the government has not dropped its claim that non-citizens (either permanent legal residents or otherwise legally in the country) do not have the same First Amendment and due process rights as U.S. citizens. Nor has the government abandoned the idea of being able to prosecute people on the basis of “secret evidence.” Cole said “We are delighted that the Bush administration had the good sense to drop this case, which never should have been brought in the first place. Given the terrorist threats that we face, it makes no sense to waste government resources on individuals who the government has admitted all along engaged in no criminal activity whatsoever. We only hope that this case teaches the government that it is a mistake to proceed on grounds of guilt by association and sweeping theories of “material support” for terrorist organizations.”
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