Sixth Circuit Court of Appeals Proves politically Correct in Latest Zundel Ruling

zgrams at zgrams.zundelsite.org zgrams at zgrams.zundelsite.org
Sun Apr 1 16:41:14 EDT 2007


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EXCLUSIVE TO AMERICAN FREE PRESS

By Fred Lingel

In a decision issued Feb. 27, the Court of Appeals for the Sixth 
Circuit in Cincinnati has unanimously upheld a lower court's judgment 
stripping historian and pacifist Ernst Zundel of his right to be 
heard on a petition for writ of habeas corpus which was filed when 
Zundel was first arrested by U.S. authorities in February 2003.

The court held that the controversial German publisher had 
effectively bargained away his right to appear before a court because 
he last entered the United States under the Visa Waiver Pilot Program 
(VWPP) in May 2000. The court of appeals ignored Zundel's arguments 
based on the U.S. Constitution and rejected his argument based on the 
expiration of the VWPP April 30, 2000.

Zundel has asserted that, because the VWPP had sunset by the time of 
his May 2000 entry, the attorney general and INS could not have 
permitted him entry as a "visa waiver" alien in May 2000, and were 
not entitled to enforce the agreement that "visa waiver" candidates 
have to enter into as a condition for not having to obtain a visa. 
Zundel was in a routine waiting period for U.S. permanent residence 
through his U.S. citizen wife, Ingrid, at the time of his arrest.

"Once again, Ernst Zundel has been betrayed by a federal judiciary 
which, in its rush to judgment, has tread roughshod on the 
Constitution and the letter and intent of the law in order to achieve 
a politically correct result," said Zundel's attorney, Bruce Leichty.

There is no precedent for denying an individual of Zundel's 
immigration status a hearing on a habeas petition, said Leichty, who 
noted that the courts have routinely extended habeas rights even to 
illegal immigrants.

Recent appellate decisions have focused on whether enemy combatants 
held outside the United States have the right to habeas proceedings, 
but Zundel was never labeled as an enemy combatant or 
terrorist-despite ultimately being declared a "national security" 
risk by Canadian authorities after his summary removal from the 
United States.

"The law in this area is well established," said Leichty, "and a 
different panel of the Sixth Circuit recognized in an earlier 
decision that immigrants like Zundel can obtain habeas hearings even 
after they are deported if they face a 20-year bar like the one 
imposed on Mr. Zundel. But this panel was not willing to apply the 
law.

"At the time of his arrest, Ernst Zundel was a target of several 
countries based on his controversial historical views about 'the 
Holocaust,' and even though he was protected by the First Amendment 
[in the United States], those protections have proved meaningless 
without judges willing to uphold them," notes Leichty.

If the decision is allowed to stand, Zundel would be banned from 
reentering the United States until 2023. He is currently 67 years old.

Just weeks before the Sixth Circuit decision, he was convicted in a 
German courtroom of "inciting racial hatred" because of his Holocaust 
revisionist views. Zundel asserted that he is a pacifist who is 
neither anti-Semitic nor racist but that he is simply a champion of 
his German people, and that he has the right to express different 
views about what happened during the World War II, including what 
happened to Jews.

Zundel will seek a rehearing from different judges at the Sixth 
Circuit based on the unconstitutional suspension of his habeas rights 
and on known conflicts of interest of at least two members of the 
panel, says Leichty. One of the judges gave a prohibited campaign 
contribution to the Bush reelection campaign after being appointed to 
the federal bench and another has a daughter working in Tennessee for 
the U.S. attorney's office, which handled the opposition against 
Zundel's petition in a Knoxville federal court.

Zundel's attorney says he discovered both facts after the case was 
argued in January 2007. The judges adopted almost to the letter the 
argument of the Justice Department that sought to assert a 
distinction between the expiration of a "Visa Waiver Pilot Program 
period" and the expiration in April 2000 of the attorney general's 
visa waiver authority itself-a distinction which was farcical, says 
Leichty.

The February appellate decision was issued "per curiam," meaning that 
none of the judges acknowledged writing the decision, and it was 
designated "not for publication." There have been recent attempts to 
limit the extent to which federal judges can issue unpublished 
decisions because it is believed that judges are less accountable to 
the law if they know their decisions will not be widely read and 
inspected, notes Leichty.

Only if Zundel was found to have entered the United States under the 
VWPP could the authorities have even thought about arresting him 
without a hearing, says Leichty. Typically, persons alleged to be 
deportable get hearings in front of immigration judges. Moreover, 
Leichty adds, even as to visa waiver entrants there are no published 
federal court decisions in which a court has ever denied jurisdiction 
over a habeas petition filed by someone who overstayed his visitor 
status.

Leichty states that at the time of Zundel's arrest, INS had a policy 
of not taking deportation action against immigrants awaiting 
permanent residence through U.S. citizen spouses, even if they had 
overstayed visa waivers. Zundel had been given work authorization in 
the United States and permission to leave and reenter. Because a 
Knoxville judge and now the Sixth Circuit have claimed not to have 
jurisdiction, however, he has never been able to present those 
arguments. When Zundel challenges the latest decision, that will mean 
that he will have legal challenges pending in three countries. He has 
appealed his German "thought crime" conviction, and is also hoping to 
benefit from a recent Canadian Supreme Court decision which held that 
the "security certificate" proceedings under which he was detained in 
Canada are unconstitutional, because they permit secret evidence.

After a Canadian court declared him to be a national security risk, 
the Canadian government spent over $100,000 on a charter plane to fly 
Zundel to Germany, where he was promptly arrested on criminal speech 
charges for views expressed in Canada and the United States.

(Issue #13, March 26, 2007)



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