Important Update on the Zundel Saga

[zgrams at zgrams.zundelsite.org]

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Important Update on the Zundel Saga

There is no further "insider news" from court room observers in 
Mannheim, other than additional Zundel hearing dates put on the 
calender, all the way into March!  I will let you know just as soon 
as I know more about what actually played - which is usually not what 
the ADL, Ha'aretz and Reuters report.

Meanwhile, my attorney and I converged on Cincinnati on Wednesday, 
January 24, where we had an appeal hearing in the United States Court 
of Appeals for the Sixth Circuit on the still pending habeas corpus 
petition.

Habeas corpus is a Constitutional provision which guarantees that 
someone detained in the United States is entitled to see a judge to 
show why he should not be deprived of his liberty.  As all my readers 
and much of the world by now know, Ernst never was permitted to go 
before a judge.   Even after being told in August 2004 by the 
Cincinnati court to give us a hearing, the federal district court 
judge in Knoxville washed his hands of the case, finding that he had 
no jurisdiction over Ernst's petition, so we appealed again -- this 
time being assigned to a new panel.

I am sorry to say that the judicial reception to the argument on our 
habeas corpus petition did not go well, subjectively assessed, 
although a judgment is still pending..

We did not know the names and backgrounds of the judges until the day 
before, when we found out that there would be two women - Judge 
Daughtrey (Clinton appointee) and Judge Cook (Bush appointee) - as 
well as a district court judge appointed by Reagan,  Judge Weber, a 
World War II vet.   Judge Cook, the youngest of the three, presided.

This trio became a duo of sorts - Judge Daughtrey was only going to 
be on the telephone.  I had a feeling this would not play well.

As judged by her vocabulary, Judge Cook seemed uninformed, as if she 
had not read the detailed briefs we had submitted - or even been 
briefed on the briefs.   Judge Weber never said a word.

I knew that we would only have 15 minutes to make our case, and that 
the judges could drain away part of that precious time by asking 
peripheral or even hostile questions.  That is exactly what happened.

Our attorney, Bruce Leichty, started out well.  He opened his plea by 
pointing out that "Justice delayed is justice denied," and had just 
finished summarizing the injustice of Ernst's treatment in three 
countries, when he was interrupted by the first question:  "Now isn't 
it true, Mr. Leichty, that Mr. Zundel entered the country under the 
Visa Waiver Program?"

Bruce explained that this program had temporarily expired- "sunset" 
is the word - by the time Ernst crossed the border for the last time 
in May 2000 and therefore the government's case rested on wishful 
thinking.

Ernst could not have, therefore, "signed away his right" to be before 
a judge prior to deportation, with respect to his most recent entry 
to the United States!  He should not simply "have been swept up"!  By 
law, he was entitled to a hearing!   At a hearing he could have shown 
his eligibility for permanent residence through his marriage to me, a 
United States citizen.

Bruce managed to suggest that this was an "extrajudicial rendition" - 
meaning that this was a political kidnapping.  For the record and to 
have this term in the transcript is very important.  Unfortunately, 
Bruce could not finish what he had so carefully prepared and 
condensed.   Judge Daughtrey kept interrupting, arguing elementary 
points and betraying her ignorance of immigration law.  At one point 
she opined that Ernst had used a "green card," the same mistake that 
the Knoxville judge had made--Ernst never had a "green card."  It 
seemed clear that she had already made up her mind.  Judge Cook 
backed her up.  Judge Weber simply sat there.  The attorney for the 
United States, Russell Verby, only used up his half of his allotted 
time--he fielded only a couple questions probing his opinion about 
procedures at Canadian ports of entry (to which our attorney objected 
during his rebuttal time).

A decision is still outstanding - but chances are it will be negative.

Ernst had told me that "Š no silver-tongued argument is going to save 
the day" - that the argument would stand or fall on how carefully the 
appeal brief was prepared and would be read by assistants whose duty 
it would be to relay the gist of the argument to the panel of judges.

I knew our briefs were good.  Our argument was airtight legally. 
Nonetheless, I had hoped to make the 15 minutes count, and I had 
asked if I could speak part of the time.  The court declared this was 
impossible.   Here is what I would have said - and what I suggested 
our attorney might say in case I was turned down.

	[START]

Suggested Summary for Appeal Court / Cincinnati - January 24, 2007

The government would like this panel to think that the Ernst Zundel 
case was a routine deportation due to Visa overstay.  Our contention 
is that what happened to Ernst Zundel was a camouflaged post 9/11 
extrajudicial rendition of a controversial activist inconvenient to a 
powerful and influential lobby that used American and Canadian 
officials as hit squads to corner and silence Ernst Zundel.

If I may, I would like to sketch the "Gestalt" of this post-9/11 
tragedy that befell my clients, a couple of retirement age, in the 
wake of the Patriot Act.  My clients, Ernst and Ingrid Zundel, are of 
German background and lifelong pacifist persuasion.  Both experienced 
World War II as very young, impressionable children.  Both have 
naturally a different view of history.  In this country, it is still 
legal to have a different view of history, as long as that view is 
expressed civilly and non-violently.

Ingrid is a naturalized American.  Ernst is a German national who 
lived all his adult life in Canada where he became a household word 
due to two highly publicized, controversial Holocaust trials in 1985 
and 1988 that went through numerous appeals and ended in a 1992 
Supreme Court decision in his favor.

What Ernst Zundel said, in writing and in speaking, was legal both in 
Canada and the United States.  It was seen as controversial, but it 
was LEGAL.

Ernst and Ingrid married in January of 2000.  Because Ernst still had 
a publishing business in Canada, he did not permanently relocate to 
America until May 21, 2000 when he crossed the border from Canada to 
the United States for the last time.  It is crucial to keep that date 
in mind.

Ernst had crossed that border numerous times under a program called 
the Visa Waiver Pilot Program - a visitor's permit that was valid for 
3 months and had as one of its stipulations that if he overstayed, he 
could be deported and did not have the right to contest that 
deportation in a US court.

He took out such a permit in March of 2000 as he had done every three 
months for the past ten years or so.  That was, however, not his last 
crossing!   When he crossed for the last time, on May 21, 2000, the 
VWPP had sunset.  That program expired on April 30, 2000.

The government's claim rests on the date he took out his last permit, 
March 12, 2000.  The government erroneously assumed that that was the 
last date when he crossed.  However, he crossed the border on May 21, 
being simply waved through, as was customary at that time for 
Canadians with valid licence plates.

Shortly thereafter, Ernst and Ingrid consulted an experienced 
immigration attorney, with whose help they applied for Adjustment of 
Status for Ernst as the husband of an American citizen.

Their application was accepted by INS.  Ernst received a Social 
Security number, a work permit, and a permit that allowed him to 
leave the US and return.  He was fingerprinted by the FBI.  He 
submitted to a health check.  He did all that with the assistance of 
his immigration attorney.

The only last step for approval of Adjustment of Status was an 
interview by INS officials.

Ernst and Ingrid had received a letter from INS that stated that it 
could take up to three years for that final interview, and that no 
interim status report would be granted.

Ernst and Ingrid simply waited for an appointment for that interview. 
It was finally set for June 12, 2001.

Their attorney had a scheduling conflict and requested in writing 
that the appointment be reset.  There was no reply, so he sent 
another letter, a year later, asking that this appointment be 
rescheduled - this time with a postal return receipt, signed by the 
IRS.

Both of these letters have disappeared from INS files.

On February 5, 2003 Ernst was brutally arrested by five armed 
government officials at his home in broad daylight and whisked away 
in handcuffs and leg irons - allegedly for "having missed a hearing". 
There was no arrest warrant.  He was not allowed to call his 
attorney.   There was not even a deportation order.  A paper called a 
"Warrant  for Deportation" was signed after he was already in custody.

Ernst was held in Blount County jail for ten days, where he was 
terrorized with dogs and repeatedly verbally and at least once 
physically abused by guards.  Then he was taken by plane to Canada 
where he was immediately arrested again and placed in what is called 
"the hole" - brutal isolation in inhuman conditions.  He languished 
there for two years.

On March 1, 2003 he was deported from Canada and taken to Germany by 
private executive plane - where he was immediately arrested again, 
put in investigative custody, and charged with "Holocaust Denial."

As the husband of an American citizen, Ernst Zundel was entitled to 
habeas corpus.  He never saw a judge in America.

What followed was a horror story lasting, by now, four years of 
judicial and prison abuse mindful of places such as Abu Ghraib and 
Guanatanomo Bay.

The government would like this panel to believe that this was a 
simple deportation due to overstay.  That is a gross 
misrepresentation of the facts.  A simple deportation would not 
include 2 years in an unheated isolation cell through two brutal 
Canadian winters where the light never turned off, with inadequate 
food, with repeated refusal of medical or dental care, with hundreds 
of humiliating strip searches, sometimes even after a telephone call, 
with destruction of original documents, with unsubstantiated charges 
of Ernst being a "security threat to Canada" where secret witnesses 
were allowed to testify whose stories could not be refuted, with 
deportation to Germany in a private plane costing $100,000, with 
incarceration in Germany - and with a pending, foregone conviction of 
prison time, due any moment now, that could be as long as 15 years.

Ernst Zundel is now 67 years old.  He has been banned from the United 
States for 20 years.

We claim that this is a story of Homeland Security power gone mad!

Does the American Constitution still have the power to protect a 
controversial but peaceful dissident, the husband of an American 
citizen - or not?  That is what is before you.

Habeas corpus could have nixed all this horror in the bud.  It is not 
too late.  Our request to this panel is simple:  Let us present the 
facts of this case to an impartial judge in a habeas action. 
Through FOIA requests, we have in our possession some 150 pounds of 
documented evidence that this was a post 9/11 extrajudicial rendition 
under the fig leaf of a simple deportation - as the government well 
knows but does not want this impartial panel of judges to know.

[End]