Judge Says He Cannot Solve Legal Puzzle in Aliens’ Case

U.S. District Judge Stephen V. Wilson, dealing a setback to Los Angeles area aliens accused of subversion, ruled Thursday that he lacks authority to decide whether the McCarthy-Era McCarran-Walter Act is constitutional.

Lawyers for the immigrants said they would ask for an expedited ruling from the U.S. 9th Circuit Court of Appeals, but admitted that could take several weeks. This means that deportation hearings for the aliens--seven Jordanians and a Kenyan charged with belonging to a Marxist faction of the Palestine Liberation Organization--will resume next month, they said.

Wilson said it was clearly Congress’ intent that challenges to the deportation provisions of McCarran-Walter should be decided by higher appellate courts.

Constitutional Question

“This court would be thwarting . . . congressional intent if it were to usurp (the) role of the 9th Circuit and engage in a constitutional analysis of the deportation (McCarran-Walter) law,” he said.

Nonetheless, Wilson said, the question of whether aliens enjoy the same constitutional rights as citizens remains “a burning issue and an alive issue. . . . It’s a question of tremendous constitutional complexity” which, he asserted, the courts have “never really addressed head-on.”

Wilson also said it would be confusing to continue the immigrants’ challenge to the McCarran-Walter Act in his court while, at the same time, lengthy deportation hearings were being conducted in a separate immigration court.

But the judge added in measured words that the American Civil Liberties Union should not despair. “I commend the ACLU for having brought the case,” said Wilson, who was appointed by President Reagan. “This is just the beginning.”

Calls Law ‘Chilling’

In taking the case last month, Wilson sharply criticized the McCarran-Walter law as “over-broad” and “chilling.” He denounced U.S. Justice Department’s attempts to use a section of it to deport the aliens as “bordering on the outrageous.”

The government has maintained that Congress originally passed the law in 1952 over President Harry S. Truman’s veto “to protect the integrity of the United States from the clear and present danger of a communist movement aimed at establishing a totalitarian dictatorship in this country. . . . “

But ACLU attorneys have argued that if lawmakers were allowed to have the final word on deporting aliens, then “First Amendment rights of aliens are reduced to mere statutory interests terminable at will by Congress.” They characterized McCarran-Walter as broad enough to “cover enrollment (by aliens) in a book club that happened to distribute the works of Marx and Lenin.”

Wilson said he had reviewed almost a century of litigation and legislation on alien rights, back to an important 1893 U.S. Supreme Court case turning on whether the government had the authority to expel Chinese laborers. At that time, the high court held that Congress had the right to authorize the exclusion or expulsion of aliens.

All eight immigrants had originally been charged under McCarran-Walter last December with advocating world communism because of their alleged association with the PLO faction, the Popular Front for the Liberation of Palestine--an accusation they all denied.

Then, last month, the subversion charges were dropped against six of them and visa violations were substituted--even though the government maintained that the six were still national security risks. The two others, alleged by the government to be the PFLP ringleaders in California, continue to face subversion accusations, albeit new and narrower ones.

Paul Hoffman, lead counsel for the ACLU, said Wilson’s decision to let higher courts grapple with the law, “means that (aliens) all across the country won’t know how to conduct themselves” for fear of deportation.

Disclose Plan

Separately, the Justice Department laid out more of the route it plans to take in attempting to deport the two aliens charged with being the PFLP leaders in California, Khader Musa Hamide, 33, of Glendale, and Michel Ibrahim Shehadeh, 30, of Long Beach.

Among the evidence immigration attorneys will present at their deportation hearings, scheduled to resume on June 26, will be “documents of the Popular Front itself, newspaper articles and books and interviews with Popular Front personnel,” including PFLP leader George Habash, the department said in court filings.

The latter reference is to an interview conducted in April, 1986, with Habash by CBS newsman Dan Rather, following the U.S. attack on Libya. Habash said that in light of the raid, “we feel that we have the full right to defend ourselves . . . by attacking all American interests wherever possible.”