Unless appealed, Einhorn's decision will finally bring an end to the government's decades-long campaign to deport Khader M. Hamide and Michel I. Shehadeh -- two men who have been lawful, permanent residents of the United States for more than 30 years and whose children are U.S. citizens. Their case has reached every level of federal court, including the U.S. Supreme Court.
The government has been seeking to deport Hamide and Shehadeh since January 1987, based on their alleged support for the Popular Front for the Liberation of Palestine (PFLP), a radical offshoot of the Palestine Liberation Organization that has taken credit for airline hijackings and car bombings in the Middle East. The two men, along with six others who became known as the L.A. 8, have all denied membership in the PFLP, while steadfastly maintaining that they were being persecuted for lawful political activities -- distributing newspapers, participating in demonstrations, assisting Palestinians with human rights and medical needs and raising money for hospitals, youth clubs and day-care centers.
Such activities would clearly be constitutionally protected if undertaken by U.S. citizens. The government has never alleged that any of the L.A. 8 were connected to the PFLP's terrorist activities.
Of the other six members of the group, one became a citizen, three obtained permanent residency status, one is seeking permanent residency status and the sixth returned to Bethlehem.
Since the outset of its case, the government has argued that lawful, permanent residents such as Hamide and Shehadeh were not entitled to the same constitutional free speech rights as those of U.S. citizens. In doing so, the government initially invoked the now-repealed McCarran-Walter Act that had been used during the McCarthy era to deport immigrants who embraced communism.
The government also asserted that providing humanitarian aid to an organization that both sides agreed had "engaged in terrorist activities" from 1984 to 1986 was the kind of "material support" that warranted deportation. Finally, government lawyers twice persuaded Congress to change federal laws and to apply them retroactively in order to allow for the deportation of those whose activities were lawful at the time they occurred.
Prior to Einhorn's decision last month, the immigrants had won a number of important rulings, including a 1998 federal appeals court opinion that the Constitution does not permit "guilt by association" and that their deportation could not proceed unless the government demonstrated that the men intended to support the "illegal group goals of the PFLP."
Einhorn's January ruling terminating these deportation proceedings arose from the government's persistent refusal to disclose "any potentially exculpatory evidence" in its possession -- a violation of the judge's June 2005 pretrial order.
In his 11-page opinion, Einhorn wrote: "The repeated actions of the government in not complying with the court's orders have prevented respondents [Hamide and Shehadeh] from obtaining fair hearings and closure in their cases. The attenuation of these proceedings is a festering wound on the body of these respondents and an embarrassment to the rule of law."
Unless such a "gross failure" has consequences, Einhorn colorfully observed that "an immigration judge is reduced to the status of a Blanche DuBois, who must rely on the kindness of strangers. Such status would gut the statutory and regulatory scheme of deportation proceedings."
Einhorn, who previously served for more than a decade in the Justice Department's Office of Special Investigations, where he worked to identify and prosecute Nazi war criminals who resided illegally in the United States, was obviously perplexed by the government's misconduct.
"A reasonable argument could be made," he wrote, "that if Hamide and Shehadeh have engaged in terrorist activity, particularly in the context of today's world, then the government would be prepared to move heaven and earth -- not to mention some mounds of paper -- to complete the trial and deportation of these respondents."
Einhorn concluded that the government's "protracted failure" constituted a violation of the immigrants' constitutional due process rights. The only immigration matter in all of U.S. history that has lasted longer than the L.A. 8 case was the deportation proceedings against Carlos Marcello, a reputed New Orleans crime boss, which started in 1953 and lasted 30 years.
Marcello was briefly deported but died a free man in Louisiana in 1993. It remains possible that the case against Hamide and Shehadeh could drag on still further.
Einhorn's decision to terminate these deportation proceedings is undoubtedly correct -- both legally and morally -- and should not be appealed. It is long past time for the federal government to abandon its decades-long persecution of these immigrants and its concurrent legislative and judicial efforts to exempt lawful U.S. residents from the protection of the Constitution. As Einhorn himself observed, the rule of law is tested not by its ability to protect "those we love" but by whether it protects "those we loathe."
Douglas Mirell, a Los Angeles attorney, is a founder and first vice president of the Progressive Jewish Alliance, www.pjalliance.org.