On January 24, 2007, I was arguing before three judges in Cincinnati, on behalf of my German-born client Ernst Zundel and his wife Ingrid Rimland Zundel, when a curious thing happened.
Out of nowhere, it seemed, the presiding judge in the case, Judge Deborah Cook, a George Bush appointee of 2003, asked me coldly whether my clients were playing "Gotcha" with the government.
"Gotcha" with the most powerful government on Earth — now that was a strange thing to be hearing in this marble-accented chamber. But don't get me wrong; I knew what the judge was suggesting.
For over a year, I had been relishing the opportunity to stand in front of a panel of judges at the 6th Circuit and essentially challenge them to find any error in my airtight legal argument — that Ernst Zundel, a [controversial] Holocaust revisionist who was awaiting U.S. permanent residence through his U.S. citizen wife Ingrid, had been arrested and whisked out of the United States illegally in 2003 based on premises that could not possibly hold up under impartial judicial scrutiny.
I was frankly elated that I had discovered the government's Achilles heel — that when federal agents had arrested and deported Ernst Zundel in Feruary 2003 they had done so based on a false premise about Ernst Zundel's last entry into the United States. That turned Ernst Zundel's case into an extrajudicial rendition — and it had all the earmarks of one, because Ernst's fate was to be confined in Canada for two years and declared a national security threat under a law that allowed secret evidence — a law that the Canadian Supreme Court has now declared unconstitutional. After doing its dirty work, Canada then deported Zundel to Germany, where he was convicted of inciting racial hatred and sentenced to five years in prison — for nothing more than his political speech.
It all started with the U.S. federal agents in 2003. These agents postulated that Ernst Zundel had waived all his rights to due process in the United States under a program called the Visa Waiver Pilot Program. But I knew this was impossible, and I could explain it to anyone willing to put aside their prejudices for a few minutes: Ernst Zundel had last entered the U.S. in May 2000 when the Visa Waiver Pilot Program had already expired, and before Congress had belatedly authorized a permanent visa waiver program in October 2000.
When the pilot program expired, so did the authority of the then Attorney General Janet Reno to admit anyone from Germany without a visa. She didn't get her "visa waiver" authority restored until October 2000. Attorney General Reno decided that, while Congress mulled over the fate of the program, German visitors expecting to enter with visa waivers instead would be allowed into the United States under a program known as "parole."
So I was gratified that it didn't matter what Ernst Zundel thought when he crossed the Canada-U.S. border that night in May 2000, namely that he might need to flash his outdated visa waiver program authorization, but that what really mattered was the actual state of federal immigration law at the time. After all, in this country we don't hold people accountable to laws that they might have believed existed, but rather to laws that actually do exist.
I was gratified that, contrary to the opinion of the folksy District Court judge who had kicked Ernst's case out of his Knoxville, Tennessee court, this expert panel would have to agree that Ernst Zundel's own expectations were irrelevant.
Rather, the question would have to be: in May 2000, did Ernst sign away his rights to a court hearing, or didn't he?
I knew that he had signed nothing in May 2000; so did the government. Of course, the government claimed that he had signed a waiver of rights earlier, in March 2000, while the visa waiver pilot program was still in effect. But didn't that earlier waiver bind him only so long as the Attorney General herself still had the power to waive visas for Germans?
It was obvious as a matter of law that it did. Come May 2000, Ernst Zundel couldn't use the program and Janet Reno couldn't use it either. Janet Reno couldn't enforce a waiver of due process rights if her agents let Ernst into the country without a visa after her authority to do so had been withdrawn.
Therefore I knew that honest judges would have to find that Ernst Zundel had not waived any of his rights in order to enter the U.S. and that Reno's agents had instead targeted Ernst Zundel for his controversial opinions; they couldn't simply arrest Ernst Zundel in Feruary 2003 and whisk him out of the country before considering his marriage. Our immigration laws have always had a high view of marriage to a U.S. citizen! Hundreds of Mexican nationals exercise those marriage-based rights every year before immigration officers — despite illegal entry!
Ernst knew that, too, soon after he entered the U.S. in May 2000. Tired of all his legal struggles in Canada, he and Ingrid consulted with a Tennessee immigration attorney in the summer of 2000, and they decided to get married then, and not later. In October 2000 they began life together in Tennessee assured in the knowledge that, like others who marry U.S. citizens after entering for some other reason, Ernst's status would be resolved through his marriage, without need for him to leave the United States. Their Tennessee attorney told them so.