U.S. Ordered to Surrender Secret Memos in ‘L.A. 8’ Case

The government has been ordered to turn over two secret documents that could seal the fate of the Immigration and Naturalization Service’s nine-year campaign to deport the “L.A. 8,” a group of seven Palestinian men and a Kenyan woman alleged to have ties to Palestinian terrorists.

In a ruling that became public Monday, Los Angeles federal Judge Stephen V. Wilson ordered the Justice Department to give attorneys for the activists two memos that describe the thought processes of INS officials contemplating the deportation effort and indicate that their public statements were pretexts for selective enforcement of the immigration laws.

San Francisco attorney Marc Van Der Hout, co-counsel for the L.A. 8, said Wilson’s ruling boosted the possibility that his clients could sustain a claim of selective enforcement, something that is normally very difficult to prove.

“This decision ordering production of the internal INS memos is the nail in the coffin for the government. These documents seem to be the smoking guns,” said Van Der Hout, an immigration attorney handling the case for the National Lawyers Guild.

Attorneys from three other public interest organizations--the American Civil Liberties Union, the Center for Constitutional Rights, and the Center for Human Rights and Constitutional Law--also represent the plaintiffs.

“We previously presented to the court overwhelming evidence that the INS ignores technical visa violations in thousands of cases a year and specifically refused to prosecute members of groups or supporters of groups the government favored, including the Nicaraguan Contras, the Afghani Mujahadeen and anti-Castro Cuban exiles,” Van Der Hout said.

In February 1995, the plaintiffs obtained a declaration from Ernest Gustafson, the former INS regional director in Los Angeles, that in his 27 years with the agency he could recall no other instance in which the government attempted to deport someone on the grounds that they had taken few credits as a student, the reason given for some of the deportations.

Gustafson said the eight had been “singled out for deportation because of their alleged political affiliations”--with the Popular Front for the Liberation of Palestine--conduct that the eight maintained was protected by the 1st Amendment.

Michael Lindemann, the lead Justice Department lawyer in the long-running case, declined to comment on the significance of Wilson’s ruling. He and other Justice Department lawyers had attempted to withhold the documents, contending that they were exempt from disclosure as privileged communications between an attorney and his client.

The first document is a memorandum from the INS’ Buffalo district counsel to the INS’ Western regional counsel, marshaling the evidence in support of deporting the plaintiffs on ideological grounds.

According to Wilson, the document concluded that the INS’ prospect of success depended on the availability of classified evidence.

The Buffalo attorney recommended, Wilson noted, that if that evidence was unavailable for use in deportation proceedings, the INS should drop the ideological charges and prosecute only the technical violations, such as overstaying a visa or working without a proper permit.

“A rational jury could find that document . . . was a communication in furtherance of selective enforcement in that it revealed that the INS’ actual motivation for deporting plaintiffs was ideological, and that the INS resorted to non-ideological charges only upon discovering that it would be unable to prove the ideological charges,” the judge wrote.

Wilson’s opinion describes the second document as a memo from the INS’ acting general counsel, Paul Schmidt, to INS Commissioner Alan Nelson, describing the INS’ options and recommending that “since the INS will be unable to prove the ideological violations [due to the unavailability of the classified evidence], it would be simpler to deport plaintiffs for the technical violations.”

Again, Wilson concluded that a jury could decide that this document “was a communication in furtherance of selective enforcement.”

Wilson agreed with the contention of the plaintiffs’ lawyers that they were entitled to the documents because of a common law rule that the attorney-client privilege should not shield communications that are made in furtherance of a crime or fraud.

“The attorney-client privilege is designed to promote candid discussions between attorney and client for the purpose of following the law, not intentionally violating it,” Wilson wrote.

“Enlisting the aid of an attorney in furtherance of a scheme of selective enforcement is ‘misconduct fundamentally inconsistent with the basic premises of the adversary system,” and is as much an abuse of the attorney-client relationship as is securing a lawyer’s assistance in implementing a fraudulent scheme, the judge added.

The ruling is the latest of several setbacks for the government in the case, formally entitled American Arab Anti-Discrimination Committee v. Janet Reno. In three key earlier decisions, Wilson ruled that resident aliens have the same 1st Amendment rights as citizens, that the plaintiffs had made a prima facie case for selective enforcement and that the federal government cannot use secret evidence of alleged national security concerns in its deportation efforts. All three rulings were upheld by the U.S. 9th Circuit Court of Appeals.

Wilson’s latest ruling gives the government until March 26 to file a brief if it wants to excise portions of the two memos. The next scheduled hearing is April 1.