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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