January 24, 2007

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 and non-violently.

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 2000. 

The government’s claim rests on the date he took out his last permit.  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 attorney.  

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.  They simply waited for an appointment for that interview.  It was finally set for June 12, 2001. 

Their attorney had a scheduling conflict and requested 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, 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 gone mad! 

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.