- 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
- 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
- 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
- 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 "S 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
- 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.
- Suggested Summary for Appeal Court / Cincinnati - January
- 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
- 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
- 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
- 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.