December 6, 2007
Constitution trumps all for ‘house Bolshevik’ Einhorn
In 1992, Bruce J. Einhorn was known as a staunch Zionist and had also served as a national commissioner of the Anti-Defamation League. So when, as a relatively new immigration judge, he was assigned to oversee a five-year-old case to deport two Southern California men sympathetic to a radical offshoot of the PLO, his selection was an immediate concern for the defense.|
"We thought that was a conflict of interest," said defense attorney Marc Van Der Hout. "And it was."
The ADL had purportedly encouraged the FBI to investigate the defendants, Khader M. Hamide, Michel I. Shehadeh and the six others, who became known as the L.A. 8. Nevertheless, in late October, after 20 years of continued efforts to deport Hamide and Shehadeh, the U.S. Department of Justice dropped the sole remaining complaint against members of the L.A. 8. And for that, the defense had Einhorn to thank.
Before he retired last winter after 16 years on the bench, Einhorn, 53, blasted the government's efforts as "a festering wound" and "an embarrassment to the rule of law." Case dismissed.
"And I'm still a good, liberal Zionist," Einhorn said in an interview last month.
That he is -- a former Nazi hunter who recalls collecting nickels and dimes as a youth in Brooklyn for the Jewish National Fund; a career civil servant who carries a copy of the Constitution everywhere he goes.
He is now a private judge for Alternative Resolution Centers and an adjunct professor at Pepperdine University School of Law, and since retiring last Jan. 31, he's been speaking out about what he thinks is wrong with the American judicial system and the Bush administration. (Unlike other federal judges, who are appointed for life, immigration judges are employees of the Justice Department and while serving on the bench are prohibited from speaking to the media.)
He blasted then-Attorney General Alberto R. Gonzales in February for signing off on a 2002 White House memo that "described certain anti-torture provisions of the Geneva Convention as quaint." Then, in September, at an awards dinner for the Beverly Hills Bar Association, Einhorn preached the importance of a "strong and independent judiciary, one that selectively but nevertheless boldly acts to modify or strike down unconstitutional usurpations of power by the executive branch."
"A strong president is a good thing for the preservation of our country," he said. "A king is not, especially if his name happens to be George."
Sitting on a dark patio of a Malibu Starbucks before teaching a 6:30 p.m. course at Pepperdine -- a school affiliated with the traditionalist Church of Christ denomination and where Einhorn jokes that he is the "house Bolshevik" -- Einhorn spoke even more acerbically of Gonzales, who was replaced last month by Michael B. Mukasey. He called Gonzales "Mr. Bush's shill" and waxed Benjamin Franklin when talking about civil liberties in an age of ever-present terrorist threats.
"If I could rephrase Franklin: What profits a democracy if in saving itself from its enemies, it sells its constitutional soul?" Einhorn asked. "What would we then be but walking dead?"
What Franklin actually said was, "Those that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." It's a quote Einhorn knows well; it's printed on a coffee mug he keeps on his desk.
A great-great-great-grandson of a leader of the nascent Reform movement, Rabbi David Einhorn -- who came to this country because he was too radical for his German co-religionists -- the future judge attended Columbia University and New York University Law School before leaving the city in 1978 to clerk for Judge Julia Cooper Mack of the District of Columbia U.S. Court of Appeals.
From there he joined the Justice Department and was recruited into the Office of Special Investigations (OSI). Tasked with tracking down Nazi war criminals hidden among the American populace, Einhorn rose to deputy director and oversaw litigation for dozens of deportation and denaturalization proceedings, including those for the "Butcher of the Balkans," Andrija Artukovic.
"Bruce brought a very deep passion to this work, and specifically for the work of achieving some justice on behalf of the victims," said Eli Rosenbaum, who was a colleague at OSI and is now its director. "It was clear that the crimes shocked him deeply, and that the plight of the survivors touched him deeply. And that hasn't changed. I still get e-mails from Bruce whenever we win a case. He left us 20 years ago, and I still get those e-mails every time. He never forgets. It's almost like Bruce never left."
At OSI, Rosenbaum said, Einhorn had a macabre talent for buoying the spirits of attorneys and staffers who spent their days researching the worst crimes in history.
"He wrote little ditties that he would sing about some of our cases," Rosenbaum said. "I realize it is a gallows humor. But you have to have some tricks to break the depression of this job."
In 1990, he left for immigration court and the following year joined the faculty of Pepperdine as an adjunct professor of war crimes and international human rights.
"He has just a stellar reputation as a teacher and as a mentor," said Kenneth Starr, the Whitewater prosecutor who was an early career colleague of Einhorn's and now serves as the law school's dean. "He has, as befits his background, a real passion for the subject that he teaches. That passion comes shining through. And he is frankly a source of great inspiration for our students and an encouragement for our students to become involved in human rights issues generally and humanitarian issues specifically."
When Einhorn received the L.A. 8 case in the spring of 1992, he was the fourth judge to be assigned to it since FBI agents arrested seven Palestinian men, including Hamide and Shehadeh, and a Kenyan woman on Jan. 26, 1987.
The government accused them of providing material support for the Popular Front for the Liberation of Palestine, an organization that had taken credit for car bombings and airline hijackings, in the form of raising money and distributing Al Hadaf, the PFLP's media mouthpiece.
Over the following two decades, attempts to denaturalize the L.A. 8 and have them deported stalled as the basis for the government's argument shifted from statute to statute, and several times rulings were issued in the defendants' favor. But each time an appeals court overruled or the government returned with new legislation under which to deport Hamide and Shehadeh.