No Lawful Basis for Jailings of Texas Families: Analysis

Were Three Texas Families Picked Up and Imprisoned without Legal Basis?

By the Texas Civil Rights Review

Activists are looking for pressure points to free three Texas families of Palestinian heritage ages 5 to 61 who have been imprisoned pending deportation since early November, 2006. For example, Diana Claitor of texasjailproject.org posed a question that the Texas Civil Rights Review forwarded to Dallas attorney John Wheat Gibson.

In Gibson’s answers to the question and follow-up, we learn about the difference between “the legal basis” of state imprisonment and why the state is “picking people up.”
Indeed, the gap between “legal basis” and “picking people up” has grown wide enough that, as Claitor observes in her final reply, Congressional influence seems doubtful.

Appended to this discussion below is Gibson’s answer to activist Jay J. Johnson-Castro’s question about how long this nonsense can go on. The answer is that when the USA “picks you up,” there may be nothing you can do for six months.

In protest to this emerging system of immigration gulag, Johnson-Castro has become co-organizer of a caravan that will travel the length of Mexico’s northern border with the USA, Feb. 2-18. The Texas Civil Rights Review has offered to post all updates from caravan organizers.

Meanwhile, attorney Rebecca Bernhardt of the American Civil Liberties Uni*n reports that jail conditions have changed since protests and publicity began in mid-December—-gm (Greg Moses, TCRR editor).

***

Here is the Claitor-Gibson correspondence of Jan. 8-9, 2007:

***

From an email circulated via Austin, TX CodePink:

An attorney is asking me on what basis (legally) are they being detained? Can anyone help me on this?

Thanks,
Diana Claitor

***

On Jan 8, 2007, at 1:10 PM, John Wheat Gibson wrote:

Diana,

Yours is an interesting question. If I were being asked by a panel of the U.S. Court of Appeals, I would answer that there is no legal basis for the detention of the children. I would say it defies the jus cogens of international law and fifth and eighth amendments to the U.S. Constitution. I also would cite a recent Fifth Circuit decision that says the Constitution protects aliens from abuse by government officers. That does not mean that the DHS will not have plenty of statutory and case law to cite to the contrary. In fact, there is a Fifth Circuit decision that says an attorney should be punished for basing an appeal on international law in the Fifth Circuit.

The definitive answer to your question will appear in the brief I or the ACLU will file with the Court of Appeals. I have not done all the research yet. I am sure there will be nasty problems with new provisions of the Patriot Act, Real ID Act, and Military Commissions Act with which I am not yet familiar. Additionally, there is the contention of the Executive Branch of the U.S. government in recent years that it is restrained by no law at all. If you know any law clerks willing to research the matter and share their work with me, I would be very grateful. Of course, ultimately what the court thinks is the legal basis or lack of legal basis is what will determine the fate of the families.

John Wheat Gibson

***

John:

Thanks for your analysis of this situation. The decision that an attorney could be punished for basing an appeal on international law is certainly chilling news, especially in light of the unlimited power of the executive branch.

What we were wondering (perhaps not clearly stated) is why were these families picked up?

Thanks very much,
Diana Claitor

***

Diana,

You asked “on what basis (legally) are they being detained.” Now you ask “why were these families picked up?” Those two questions are not even similar to each other. I am no better qualified to answer your new question than you are, since it requires reading the sadistic mind of Gestapo Chief Michael Chertoff.

My speculation is that the families were “picked up” as part of a public relations offensive to prepare the American public for escalation of war in the middle east, including a Final Solution to the Palestinian Problem, even more massive slaughter of Iraqi civilians by aerial bombardment, and nuclear aggression against Iran. The public relations analysis is as follows:

Since people hate to believe that their own father would lie to them or do evil things, they seek alternative explanations when they witness atrocities. See Freud’s Group Psychology and the Analysis of the Ego. They conflate their political leadership with their paternal protector. Therefore they reason that the Palestinian families must in some way be culpable, or the Furher would not have had them arrested. It follows, therefore, that the Furher’s actions were necessary to protect us, however regrettable they may have been. Furthermore, seeing that the Furher is willing to put small children in prison, we can infer that the government acts with impunity and recognizes no legal or moral restrictions on its power. You and I, therefore, had better keep our heads down, remain silent, and hope that Mr. Chertoff does not notice us.

If you would like to know the current legal status of the detainees pursuant to statute and regulation, it is as follows: The families entered the US legally as visitors. They applied for asylum. Their asylum applications were denied. Their appeals were denied, and they were ordered deported. Years after the deportation orders became final, Chertoff sent his Gestapo to arrest the families and take them to prison. That is where they are now. It is customary to send families a notice to report for deportation, called a “bag and baggage letter,” when the warrant of deportation is served by mail. That procedure allows the families to depart in an orderly way at their own expense. However, it is useless as an instrument of terrorism, whereas arresting families and imprisoning children shows all of us who is boss. That, IMHO, is why the warrants were not served by mail, and Palestinian families are singled out for nocturnal Gestapo raids on their homes and prolonged incarceration of small children.

Both of the families I represent have motions to reopen asylum proceedings pending at the Board of Immigration Appeals. The motion to stay the deportation of the Ibrahim family has been denied by the BIA and that denial is the subject of a petition for review to the Fifth Circuit Court of Appeals. The BIA has not ruled on the motion to stay the deportation of the Suleiman family. Formal applications to delay deportation (form I-246) were filed with the Department of Homeland Stupidity for each member of both families and all have been denied. No appeal is available from the denials.

John Wheat Gibson, P.C.

***

John:

Thanks very much. Yes, our police state is coming along nicely–and of course what’s most discouraging is how few people care, even if you tell them. Much of the public does seem to respond to fear-mongering so, as the press has noted, the puppet’s speech tomorrow will be full of scary stories.

I’m calling my representatives in Congress about these families—-Lloyd Doggett might actually try to help but I doubt he has any pull in this situation.

If I hear of any way to help you in your work for them, I’ll email for sure.

Best,
Diana

***

Follow-up email from John Wheat Gibson (Jan. 13, 2007)

Mr. Suleiman told me he cannot stand any more and wants right away to be deported to Jordan. He has been in solitary confinement since December 20, (yesterday, when I finally found him and telephoned him, he said was the
first time in 24 days he was allowed out of his 8×5 foot cell) apparently to punish him for telling me on the telephone about conditions in the Garvin County, Oklahoma Jail. [Mr. Suleiman was moved to the Oklahoma County, Oklahoma Jail, in Oklahoma City, Oklahoma; and that is where attorney Gibson found him.]

Ayman, the son, having grown up in Texas, being a high school senior, does not want to go. Apparently the BICE [Bureau of Immigration and Customs Enforcement] now has the travel documents from Jordan it needed to deport the Suleimans, and is making airline arrangements. Because Mr. Suleiman asked me not to, I have not pressed the BIA [Board of Immigration Appeals] to grant the motion to stay deportation that I filed for him last year. The BIA will dismiss it as moot after the deportation.

The Ibrahims almost surely will not be deported. They cannot be deported to Jordan because Jordan refuses to cooperate with the BICE. They cannot legally be deported through Israel, although in the past Israel has assisted the BICE illegally to deport people to the Occupied Territories.

Considering how hard Israel has been trying in the past couple of years to finish the ethnic cleansing of the Palestinians in the Occupied Territories, I do not see why Tel Aviv would help BICE send the Ibrahims back to Palestine, unless they just want to make sure they can kill them.

In any event, there remains not even a pretense of legality in the continuing incarceration of the Ibrahims. The BICE officers will review their detention after 90 days (I calculate February 1) but, because they work for the sadistic racist Chertoff, will almost surely refuse to release them.

After 180 days, they must be released pursuant to the US Supreme Court decision in the Zadvydas case, but since the monarchists have packed the courts, there is a chance the BICE (executive branch) will fight to keep them in jail anyway. Still, I intend to file the Zadvydas habeas corpus petition after 180 days, since it is a straightforward legal argument based on established law, and I can base the pleadings on pleadings that I have filed previously with good results….

A more serious challenge to the detention of children generally, however, must be filed by somebody like the ACLU, who has the resources to do it right and see it through to the end. At this juncture, it is more than I can manage, since if I undertook it I would find myself practicing law out of a shopping cart under a bridge.

I do appreciate your disseminating my letter to [Austin American-Statesman Reporter Juan] Castillo. I think it aroused the interest of many folks, and it appears the bureaucrats are receiving lots of e-mails, letters, and phone calls as a result. There is a lot of media interest, including San Antonio Express, Houston Chronicle, and nationally In These Times and New American Media. Of course, the San Antonio Express and Houston Chronicle reporters assume these children must be terrorists, since the king can do no wrong.

John Wheat Gibson, P.C.

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