Anguish is the word that some observers have used to describe the look on the judge's face as he wrestled with the impotence of his authority before the power of Homeland Security to arrest and detain innocent immigrants.
"Believe it or not, immigration law is replete with that language," explains New York immigration attorney Joshua Bardavid from his New York office on Friday evening, as sounds of the street honk outside his window. "Congress has told the courts that many discretionary decisions by immigration authorities are unreviewable." In this case, the unreviewable decision involves the unlawful six-month imprisonment of an innocent immigrant in the hellish privatized Rolling Plains prison of Haskell, Texas.
Over the weekend, Bardavid will work up his motion pleading with the Federal Magistrate to exercise his unimpeachable power to enforce the Constitution, with its protections against unlawful seizure and guarantees of due process. But the argument will be a a tough sell politically, because in order to take legal responsibility for Suzi Hazahza, the federal courts will have to state plainly that Homeland Security is using its discretionary authority to break the Constitution on American soil. For an aspiring federal magistrate under the administration of George the Bush II, such a ruling could mean the end of a career and almost certain reversal by the Fifth Circuit judges who gave us the racist Hopwood ruling not too many years ago (the ruling that abolished affirmative action in Texas for several years).
"It is extraordinarily upsetting and frustrating that we can live in a system where it is possible that a judge concludes that detention is unlawful but that he himself has no authority to release the prisoner," says Bardavid. But that could be the best hand-wringing effort that the federal courts will make in this case. And it would be a nauseating retreat from the principle of habeas corpus at home.
For Suzi Hazahza, the reality of a powerless judiciary branch, disabled by a weak Congress, will leave her to the hands of a muscular executive power without checks or balances. She will be living in a virtual police state until May 3, when the six-month deadline for her unlawful detention expires. For the rest of us, that leaves a question. If we allow Suzi Hazahza and other innocent immigrants to live in a police state for six months at a time, what are we allowing Homeland Security to make of America?
On the first Friday in November, 2006 Suzi Hazahza was arrested at gunpoint inside her father's home and transported with the rest of her family to an immigration jail in Dallas. By the first Sunday in November, the administration had scored its Dalls-area headlines about the arrest and detention of "criminal aliens" such as the seven Hazahas and other immigrant families.
In order to make the case that the pre-election roundup was a hit for Homeland Security, immigration authorities posted a press release on the internet that included a mug shot of Suzi's 17-year-old brother Ahmed, deliberately misidentifying his age as an 18-year-old adult, and maliciously publicizing his juvenile delinquency as a burglar. There are international laws against the use of children for propaganda purposes. But with the administration facing a grim election challenge, no trick seemed too dirty to pull. On that first Sunday in November, Ahmed was placed into solitary confinement, because he was a juvenile in an adult facility at the Rolling Plains prison of Haskell, Texas.
Not only did Homeland Security know exactly how old Ahmed was, but they knew that his birthday was coming soon. So he was not sent with his mother and younger brother to the T. Don Hutto prison in Taylor, Texas, where all the other immigrant juveniles of the pre-election roundup were sent. By the first Sunday in November, the Hazahza family had been split between two Texas prisons, with mother Juma and 11-year-old Mohammad sent to Hutto, while father Radi was sent to Rolling Plains with his two adult daughters and his two oldest sons.
What Homeland Security will not put into a press release is that the Hazahza family never tried to hide from anybody. They entered the USA legally with visas and applied for asylum to protect themselves from politics back home. Although they have been ordered deported to Jordan or Palestine, visas have been denied by authorities at both places. All the adult members of the family were law abiding citizens. Radi worked as a vehicle inspector. His oldest son Hisham worked as a cell phone salesman. His oldest daughter Mirvat managed the office of an insurance agent and is married to an American citizen. His youngest daughter Suzi had devoted herself to the care of her mother Juma and was engaged to be married to an American citizen in December.
At the federal magistrate hearing on Thursday, the US Attorney admitted that immigration authorities could not prove they had sent a letter to Radi Hazahza ordering him to report for a meeting. They had not sent the letter with return-receipt requested. They had no affidavit from immigration personnel stating that the letter had been mailed. They had no service documents.
"I even asked them if they had a photocopy of the envelope," recalls Bardavid. But no, they didn't even have that.
Furthermore, the letter they showed the judge misstated the facts of the Hazahza immigration case in such a way that it didn't seem to arise from within a knowledgeable process. The letter stated that the Hazahzas of Palestine and Jordan had been ordered deported to Israel, which is a lie. In any case, it was the wrong form.
"That letter was so fundamentally flawed that it can't be given legal effect," argued Bardavid in Dallas. "Therefore the detention based on that letter is unlawful. Even the US Attorney seemed surprised by the errors in the document and promised to look into the matter further."
"I have difficulty grasping in my head this is occurring," says Bardavid from his New York office. "The government did not refute any allegations that we made about the prison conditions, or the fact that the Hazahzas were allegedly sent the wrong form, or lack of proof of service for that letter, or that the facts were flawed. The premise of their entire case was that this federal court does not have jurisdiction in these matters."
Despite the horrible implications for Suzi Hazahza, America should send her a thank you note. Thanks to Suzi's unjust treatment we now have proof that our Homeland Security machine has pulled loose from its Constitutional moorings. Homeland Security has become a pirate operation unto itself. Each passing day of Suzi's imprisonment gives us one more reason to demand the resignation of Homeland Security Secretary Michael Chertoff and immediate action by Congress to strip the agency of its power to evade federal court review.