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US Supreme Court confirms government’s right to target Islamic activists

Tahir Mahmoud

On May 19, Dr Mazen el-Najjar, a Palestinian professor from Tampa, Florida, completed two years in an American jail for reasons he has never been told. He is the father of three American-born children. He, like 25 others, is a victim of the notorious Anti-Terrorism and Effective Death Penalty Act of 1996, by which the Immigration and Naturalization Service (INS) can arrest and deport foreigners legally resident in the US without giving any reason. The Act allows courts to rule on secret evidence presented by the INS which the defendant and his lawyers are not permitted to see.

Dr Anouar Haddam, a member of the Islamic Salvation Front and elected member of the Algerian parliament in the aborted elections of 1991, is another victim of the Act. He has been in a Virginia county jail since 1996. He was allowed to enter the US and given regular extensions of stay until his return in 1996 from a visit to Europe. He was arrested at the airport and his application for a routine extension of stay was rejected. Officially, this is until a country is found that is willing to grant him political asylum. In effect he is in indefinite political detention for opposing an ally of the US.

The 1996 Act has also been used retroactively by the INS against eight individuals who were arrested in Los Angeles in 1987 for distributing leaflets on behalf of the Popular Front for the Liberation of Palestine (PFLP). Even though the PFLP is part of the PLO, with which the US is now on very friendly terms, it remains designated a ‘terrorist’ organisation by Washington. Although the eight are accused of nothing more serious than distributing leaflets or raising charitable funds, the INS kept their case live.

When the eight won their case in a federal district court, the INS went to the appeals court. When it did not succeed there, it went to the US Supreme Court. By then, the 1996 Act had come into force. Judge Stephen Wilson of the Los Angeles district court, who heard the case, described it as ‘bordering on the outrageous.’ The INS was not deterred. In a move that can only be described as fraudulent, the INS asked the Supreme Court to review the lower court decision, asserting two claims: that the First Amendment rights to free speech of the eight had not been violated, and that they had gone to court too soon because no orders for deportation had been issued.

The Supreme Court refused to hear the first plea but granted limited review of the second, saying it would consider only whether the Immigration Act of 1996 barred the eight from going to court until they were under final orders of deportation. The parties, following the rules, briefed and argued only that question. The Supreme Court’s ruling was more shocking than the INS’s original case. It not only held that the 1996 law did bar the eight’s lawsuit but went on to address the question it had told the parties it would not consider.

Justice Antonin Scalia, writing for a 6-to-3 majority, said on February 23, 1999, that an ‘illegal alien’ against whom the INS moved had ‘no constitutional right to assert selective enforcement as a defense.’ In other words, targeting aliens because of their politics did not violate the First Amendment right to free speech.

Justice Scalia went even further, saying that the government could pick out a group of aliens for political reasons but keep the reasons secret. ‘The executive,’ he said, ‘should not have to disclose the ‘real’ reasons for deeming nationals of a particular country a special threat - or indeed for simply wishing to antagonise a particular foreign country by focusing on that country’s nationals.’

In granting such powers to the government, Justice Scalia got even the basic facts wrong, as Jeanne A. Butterfield, director of the American Immigration Lawyers Association, pointed out in the Seattle Post-Intelligencer on March 2, 1999: ‘Justice Antonin Scalia, writing for the majority, wrongly referred to ‘aliens unlawfully in this country.’ Every one of the eight defendants in this case had entered the United States legally, and two were even longtime lawful permanent residents, on their way to becoming US citizens.’ Such misrepresentation of facts is no bar to honourable Justices of the Supreme Court of the ‘only superpower’ on earth, it seems.

The wider implication of Justice Scalia’s ruling is that even legal immigrants can be targeted by the INS in order to ‘antagonise’ their country of origin as part of Washington’s foreign policy. Such selective targeting by the INS, Justice Scalia said, is not a constitutional problem because deportation is not criminal punishment.

Most Muslims see the 1996 Act as Muslim specific. Of the 25 cases currently in the system, 20 involve Muslims. Most are Islamic activists or others who hold views contrary to the prevailing opinion in the US. In future, Muslims legally resident in the US may well be targeted for daring to criticise such US actions as the attacks on Sudan and Afghanistan. Even protesting against the brutalities of the Egyptian or Tunisian regimes, for example, could end up with Muslims being deported from the ‘land of the free.’

On May 19, coinciding by chance with the second anniversary of Dr Najjar’s incarceration, two US lawmakers, Republican Tom Campbell of California, and Democrat Dave Bonior of Michigan, introduced the Secret Evidence Repeal Bill of 1999. At a Washington press conference, they said ‘... Under the Anti-Terrorism and Effective Death Penalty Act of 1996, the INS is allowed to arrest, detain and deport non-citizens on the basis of ‘secret evidence’ - evidence whose source and substance is not revealed to the potential deportees or their counsel.’ The object of their Bill, they said, is to repeal this legislation.

They may or may not succeed. Either way, the fact that the Act was passed into law in the first place, and has subsequently been reinforced by rulings of the Supreme Court, is indicative of the self-serving hypocrisy of the world’s self-proclaimed ‘moral leader’. It is a lesson Muslims in the US and elsewhere cannot afford to forget. Many more are likely to learn it the hard way.

Muslimedia: June 1-15, 1999

Article from

Crescent International Vol. 28, No. 7

Safar 16, 14201999-06-01

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