A wider front
By Abolala Soudavar
December 31, 2002
"In Nazi Germany, citizens were asked to declare their religion, and if they
were Jews, they had to wear a yellow star and were discriminated against (to
say the least). Seven decades later, in the United States of America, residents are
asked to show their passports, and if they are in the red color of an Iranian
passport, they are automatically subjected to discriminatory procedures."
The preceding sentences are the opening remarks of a petition of certiorari submitted on 11/27/02 to the Supreme Court of the United States and the last leg of a contentious lawsuit that I had initiated against the FAA some 8 months prior to 9/11. The petition continues as follows:
"In a post 9/11 talk at Harvard Law School, Justice Breyer drew an imaginary line dividing those who 'really stand for law, reason, civilization, against those forces that think of violence and terrorism' and saw 'reliance on law, and courts, and what [he] call[ed] reason, as protectors of both security and basic human rights.' The problem, though, is that, in many instances, an ill-conceived 'reason of state' trumps 'reason' itself. In Germany, law and reason were sacrificed to prevent the Jews from 'undermining' the achievements of the Third Reich. Today, in the USA, law and reason is sacrificed to counter an imaginary threat from Iranian citizens en bloc.
As noted in the trial proceedings of the German Judge Schlegelberger at Nuremberg, Hitler had decreed that:
If an act deserves punishment according to the common sense of the people but is not declared punishable in the Code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of the penal law.
and the tribunal opined:
This new conception of criminal law was a definite encroachment upon the rights of the individual citizen because it subjected him to the arbitrary opinion of the judge as to what constituted an offense. It destroyed the feeling of legal security and created an atmosphere of terrorism. This principle of treating crimes by analogy provided an expedient instrumentality for the enforcement of Nazi principles in the occupied countries.
Crime by analogy seems to be the driving force behind the decisions of the US
intelligence community, although one does not understand how it is applied to Iranians.
More relevant, however, is the parallelism of our case to accusations levied against Schlegelberger in respect to the Klinzman episode: A courageous German judge had tried the policeman Klinzmann, and convicted him of brutality and sentenced him to a few months imprisonment, for beating a milk-hand by the name of Bloodling. Himmler protested and wrote to Schlegelberger:
"I must reward his action because otherwise the joy of serving in the police would be destroyed by such verdicts. But finally K[linzmann] has to be rehabilitated in public because his being sentenced by a court is known in public."
Schlegelberger then quashed the proceedings against Klinzmann.
In the instant case, a courageous Federal Judge, Kenneth Hoyt, initially ruled in our favor, against the FAA. Even though he subsequently dismissed the case in the aftermath of 9/11, he did not validate the claims and arguments of the FAA, and did not try to justify them in legal terms. His order simply signaled a belief that our case was inappropriate in the traumatic period after 9/11.
A year later, the 5th Circuit had no reason to remain "traumatized" and act like a Schlegelberger who succumbed to Hitler's decree that prescribed punishment according to "the common sense of the people" rather than according to law. It quashed our appeal to give free hand to the FAA, lest the "joy" of the security apparatus be undermined.
In this climate of frenzy propagated by the government's disjointed security policies,
it is the law that must be upheld and not the "joy" of the CIA chief who
declared war on Al-Qaeda but only assigned one full-time analyst to it, or
the head of the National Security Council who now claims:
"I don't think anybody could have predicted that these people would take an airplane and slam it into the World Trade Center . . . that they would try to use an airplane as a missile, a hijacked airplane as a missile."
Such statement must be considered as either the epitome of stupidity or an utmost exercise in hypocrisy (if not both). In any event, it is indicative of how unreliable is the raison d'état for which the sanctity of the written law is being sacrificed.
One did not need to have the resources of the NSC at its disposal to conclude, as we did in our Original Complaint (see Appendix D), that:
-- the search-procedure devised for Iranians was indeed indicative that they were suspected as suicide-bombers,
-- that suicide-bombers were indoctrinated individuals whom the intelligence community should have tracked and tagged at their indoctrination camps,
-- that ineptitude and cronyism were the hallmarks of a US intelligence community that was reluctant to attack or pursue the Al-Qaeda monsters that they themselves had created,
-- that the US, not only did not stop the Saudis from funding the Talibans and Al-Qaeda, but was itself contributing at that time some $40 million dollars every 6 months to the Talibans (supposedly for opium eradication which was the main Taliban source of income)
-- that despite all the indictments against Saudi individuals who had bombed US embassies and military barracks, it was the Iranians who were branded as "suspects" and not the Saudis.
Such eschewed favoritism towards Saudis and misguided animosity towards Iranians,
obviously did not bring security to US passengers. The victims of 9/11 more than
being the victims of Bin-Laden, were the victims of those who felt unwilling to spoil
the "joy" of an inept intelligence community in their unholy alliance with
I concluded my petition to the Supreme Court with the following:
"In 1947, the Nuremberg tribunal condemned Schlegelberger to life imprisonment for disregarding the law and upholding the 'joy' of the Police force. This year, the 5th Circuit judges made a mockery out of justice in order to uphold the 'joy' of the intelligence community. If not through reversal from this Court, history shall condemn their lack of foresight, and those who remained silent˝as it did in the case of Nazi Germany."
(note: Schlegelberger is the character whom Burt Lancaster portrayed in Judgment of Nuremberg)
The Legal Basis
Two years ago, there was much debate in iranian.com about the discriminating FAA practices targeting Iranians, and the need for political activism against such policies. In an article entitled, The judicial way, I had advocated that in America, one should do as the Americans do, that is, one should fight for one's rights in court.
In respect to the maltreatment of Iranians, there were two legal arguments. The
first was the protection offered by the Fifth and Fourteenth Amendments best articulated
in two milestone cases of the Supreme Court:
Hurtado v. California, (1884) stated that judicial process is the only remedy against government abuse of constitutional rights:
''Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.''
Plyler v. Doe, (1982) ascertained that foreigners residing in the US must enjoy the same protection and jurisdiction as the citizens of the US, and that the constitution requires people to be judged individually and not as a "suspect" class of citizens:
Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States
Several formulations might explain our treatment of certain classifications as "suspect." Some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same groups, have historically been "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."
The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of 'class or caste' treatment that the Fourteenth Amendment was designed to abolish.
I have purposefully quoted a substantial portion of those two Supreme Court opinions
to show how strongly rooted are individual and minority rights in the US constitution,
and how Iranians, who are here "by virtue of circumstances beyond their control",
must be protected by the US constitution (it is in consideration of those rights
that Judge Kenneth Hoyt initially ruled in my favor and against the FAA).
The second basis is the 1955 Treaty of Amity between the US and Iran that (believe it or not) has never been terminated by either party. It is still valid, and because of certain characteristics, it is constitutionally classified as the Supreme Law of the Land. As such, it gives Iranians certain rights and protections:
Article III. 2. Nationals and companies of either High Contracting Party shall have their juridical status recognized within the territories of the other High Contracting Party, in all degrees of jurisdiction, both in defense and pursuit of their rights, to the end that prompt and impartial justice be done. Such access shall be allowed, in any event, upon terms no less favorable than those applicable to nationals and companies of such other High Contracting Party or of any third country.
The term "High Contracting Party" refers to the signatories, i.e., Iran and the US; and as you can see, according to this Supreme Law of the Land, the jurisdictional rights of Iranians cannot be easily curtailed, and if they are, in no event can they be less than what the US allows for any third country such as, for instance, England or Germany. We have thus a situation that, by law, Iranians must be considered as privileged friends, but are instead designated as foes by the US Administration.
To emphasize this anomaly, I instigated a second lawsuit against the President of the US for imposing economical sanctions against Iran, arguing that firstly, while the treaty was still in force, the sanctions were illegal; and secondly, that it was bad policy, and to the detriment of the people of both Iran and the United States.
Finally, the embassies of 18 nations that have similar friendship treaties with
the US were advised of my lawsuits, and were all sent a copy of my Supreme Court
Petitions, so that each could reassess the value of its treaty with the US.
Further Legal Actions
Although, a recent class action against the Attorney General of the US and the INS are very welcome, it does not attack the problem at its core and does not take into consideration the special status accorded to the Iranians by the Treaty of Amity.
In writing this article, my goal is to reemphasize one more time, the necessity for legal action on a wider front, for Iranians only, and with multiple lawsuits initiated in different courts in order to maximize the chances of success.
For, as I had argued in my previous article, this type of lawsuits, once dismissed
by the district court, have, for all practical purposes, only one chance left, and
that is a favorable appeal at the Circuit Court level. Beyond that, the chances to
be granted a hearing at the Supreme Court are, statistically speaking, one percent,
or almost nil.
Even though my two cases were finally rejected by the Appellate Courts of the 5th Circuit, the very fact that judges of the latter court, did not dare to publish their opinion, and hid behind what I called the "Omerta" rule, shows how vulnerable the government position is, and how evasive the courts' decisions have been.
There are still many judges of the caliber of Judge Kenneth Hoyt who realize how
wrong the government's actions are and who, a year and half after 9/11, will not
sacrifice the rule of law for the incompetence of the intelligence community. Among
all states, California, being the state that has the most number of Iranians and
the most liberal judges, offers the best chance for a concerted effort to defend
the rights of Iranians.
I therefore urge all those who are concerned about recent events and the tragedy facing the Iranian families of California, to seriously consider a multi-pronged judicial attack. The multitude of motions and counter-motions that were filed in my two cases contain the essence of the government's unfounded legal reasoning and present counter-arguments against them. They can be used selectively and can be supplemented with new arguments by competent lawyers who represent Iranians, individually, in small groups, or in a class-action suit.
But ultimately, success will depend on the multiplicity of lawsuits. The more
lawsuits, the more is the chance to find a courageous judge who would rule against
abusive government practices.
The texts of the legal proceedings pertaining to my lawsuits are available on soudavar.com.
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