LA Eight: Historic Court Reversal

By Pat McDonnell Twair

Does the First Amendment to the US Constitution extend the same protection of the right of free speech to resident aliens and foreign visitors to the US as to American citizens? Yes, ruled US District Judge Stephen V. Wilson in a precedent-setting decision Dec. 22 in Los Angeles.

After months of postponing his decision in the case of the American-Arab Anti-Discrimination Committee vs. Edwin Meese, Wilson overturned provisions of the McCarthy-era McCarran-Walter Act and declared 1987 congressional amendments unconstitutional in specifically calling for the deportation of members of the Palestine Liberation Organization.

The ruling could halt deportation proceedings against Khader Hamide, 34, and Michel Shehadeh, 32, who the government charges are members of the Popular Front for the Liberation of Palestine (PFLP), a faction of the PLO. Both deny affiliation with the PFLP. They were arrested along with five other Palestinians and Hamide's Kenyan wife, Julie Mungai, in early morning government raids Jan. 26, 1987. They were held in solitary confinement as national security risks for nearly three weeks.

"Our decision today reaffirms the underlying values of the First Amendment," Judge Wilson declared.

"In this case, the government is trying to stifle certain ideas from entering our society from certain aliens through its immigration power. Our society, however, was built on the premise that only through the free flow of ideas can our nation grow and prosper."

The respondents and their friends looked dazed as the judge's words were digested. Exchanging silent smiles, they heard the judge continue: "it has been a rather interesting path That took us back to another century" (of litigation on the rights of aliens). "This case, hopefully, ties up all the loose ends. Whether reasonable minds argue or differ (the decision) hits the issues head on from a constitutional context."

Wilson, a Reagan appointee, stated that section 901(b) of the Foreign Relations Act-which says PLO members do not have the same civil rights as other immigrants-has a chilling effect on the respondent's First Amendment right of free speech.

PLO Members Entitled to Equal Protection

"Congress has not made PLO membership in itself a deportable offense," he stated. "Only PLO members who also advocate the prohibited McCarran-Walter ideas can be deported. PLO members who stay silent or introverted or advocate Chicago School economics or affiliate with the John Birch Society may stay within the country's borders.

"Thus, we conclude that the PLO exception is not rationally related to a legitimate government end and violates the Fifth Amendment's due process equal protection component," he concluded.

Michael P. Lindemann, a Justice Department attorney heading deportation proceedings, said an appeal will be taken all the way to the Supreme Court.

Outside the courtroom, American Civil Liberties Union attorney Paul Hoffman stated: "it is the first time the court has spoken so clearly that all people, including aliens, have the same right to free speech as citizens do. Once and for all, the court has said the government can't use these provisions to punish people for their ideas—not their acts—but their ideas."

Attorney James Kaddo called Wilson's decision on the unconstitutionality of 901(b) an added bonus. "Congress passed that law in order to misguide and misdirect the American people from airing views and making a lucid decision on the Middle East."

Added Hamide: "Today a cloud of fear was removed from the community. Now I feel I can speak freely, something I didn't one hour ago."

It is unclear if March deportation proceedings against Hamide and Shehadeh will be postponed until the government completes its appeals. Charges have been dropped against Aiad Barakat, 27, and Naim Sharif, 30, who were granted amnesty by the Immigration and Naturalization Service (INS).

Amnesty also was anticipated for Mungai, 30, when she appeared Dec. 21 in the chambers of INS Judge Ingrid Hrycenko.

Government attorney Lindemann charged that Mungai failed to appear for an INS interview scheduled Dec. 20.

Mungai's attorney, Gilbert Lopez, demanded that his client be granted immediate amnesty because she received a work authorization card from the INS Nov. 18. "it is a bizarre situation," Lopez declared. Lopez told the judge that never before in thousands of immigration cases he has handled has the INS granted a work authorization card and then called the grantee in for additional interviews. He noted a further violation was that INS officers phoned Mungai at her home instead of phoning Lopez.

Lindemann countered that issuance of a card is not a final decision in the naturalization process. Lopez retorted he can only second guess the government on what type of questions it wants Mungai to answer.

Acknowledging that a "mix-up" in procedure has occurred and that the INS should only notify Mungai of appointments through her attorney, Hrycenko scheduled a March 24 hearing on the status of Mungai.

Outside INS chambers, a visibly agitated Mungai said: "This is so frustrating. It is unheard of to put a person in solitary confinement for three weeks as I was for a visa violation. Then they (INS) grant me a card, but change their minds and repeatedly phone me, question me, call me in for interviews, and then cancel them."

One appointment was canceled on the grounds that the INS official who was to question Mungai had a family emergency; at a second appointment Mungai was told the INS employee was not at the office. When attorney Dan Stormer requested that Mungai's case be closed, Lindemann refused to agree on the grounds that Mungai's files had been misplaced. Mungai said the INS never informed her of the Dec. 20 interview it says she failed to honor.

Others the INS is attempting to deport on minor visa violations are Amjad Obeid, 25; Ayman Obeid, 25; and Bashar Amer, 25.

Pat McDonnell Twair is a free-lance journalist based in California.