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Selected Writings Visvanathan Rudrakumaran
Presentation Made at the Rebellious
Yale Law School, 26 February 2000
The United States of America has a time-honored tradition of Rebellious Lawyering. During the colonial period Rebellious Lawyering challenged the acts passed by Parliament as well as the manner of their enforcement. After the enactment of the new Constitution, the alien and sedition laws were challenged. During the 19th century personal injury and anti-trust lawsuits were initiated to challenge big business. The 20th century witnessed lawsuits involving racial issues, the internment of Japanese-Americans solely on the basis of their ethnic origin, draft resistance on the basis of conscientious objection, non-disclosure of the Pentagon Papers, consumer protection issues, civil rights violations and gerrymandering. Presently, among the subjects of rebellious lawyering is the one challenging the so-called Terrorist designation of numerous organizations and certain decisions with respect to political asylum.
Rebel lawyering has often resulted in political and economic justice, the recognition and realization of individual rights. It has prevented the exercise of arbitrary and whimsical authority and denied various power groups the legitimacy they sought, while at the same time legitimizing the causes of the downtrodden and the underprivileged.
In a society characterized by power asymmetry, rebellious lawyering is an effective weapon in bringing about political, social and economic change. In a society characterized by a vast disparity in political and economic power between the individual and the establishment, whether political or business, the absence of equality and the absence of parity in the bargaining power of the establishment and of the underprivileged, rebellious lawyering has proven to be an effective tool in ensuring political, social and economic justice.
Rebellious lawyering is capable of relying on the supremacy of the judiciary and on the principle of equality before the law in order to compensate for power asymmetry and to create a balance of power between the establishment and the underdog. The independence, integrity and supremacy of the Judiciary permits it to function as an impartial mediator ensuring equality before the law and bringing about greater parity.
Rebellious lawyering also enables those who practice it to expose the flaws and bias inherent in the rules and to thereby render it ineffective from within the system itself.
Rebellious lawyering also provides the underprivileged masses with a forum and outlet for their grievances by bringing them to the public attention.
As an example of rebellious lawyering, I would like to bring to put the discussion of litigation in the context of the designation of “terrorist” organizations, the State Department's involvement in the political asylum context and the detention of asylum seekers.
In November 1997, the U.S. State Department designated 30 foreign organizations as terrorist organization pursuant to Sections 302 and 303 of the Anti-terrorism and Effective Death Penalty Act of 1996. The statutory basis for the making of a designation under the Antiterrorism Act is that an organization is “foreign” and engaged in “terrorist activity” which threatens the security of US nationals or the national security. Terrorist activity is defined very broadly as any activity “which is unlawful under the laws of where it is committed (or which if committed in the US would be unlawful under the law of the US) which involves, inter alia, sabotaging any conveyance, using any firearm other than for mere personal monetary gain. National security is defined as meaning national defense, foreign relations and economic interests of the US.
As one civil rights lawyer in London observed: under this law, George Washington would have been a terrorist; if the U.S. wants to improve its relationship with China, the Dalai Lama could be branded as a terrorist tomorrow. Another interesting point is with respect to the criteria, namely that using firearms for personal monetary gain is taken out of the realm of terrorism. This may be out of respect for capitalism
The designation is valid for only two years. In other words, as the Court of Appeals justice once quipped: Congress has placed term limits on the so-called terrorists.
Aware that the sole true reason for the designation is narrow political considerations, the legislation laid down a judicial review provision in order to put the stamp of legitimacy on this political exercise. The legislative branch's attempt to gain legitimacy by the imprimatur of judicial approval is not a new phenomena. Indeed, the Supreme Court realized such a danger in Mistretta v.U.S., 488 US 361. In that case, the Supreme Court stated that the political branches cannot use the judiciary to rubber stamp its actions, as that would violate the principle of judicial integrity embodied in Article III of the Constitution.
Following the its terrorist designation in November 1997, the Liberation Tigers of Tamil Eelam, a rebel organization challenged its designation on the grounds that: “LTTE is an organization representing the Tamil people who are being subjected to deadly violence, deprived of basic human rights and systematically discriminated against and persecuted as a people by the Sri Lankan government dominated by the Sinhala people. LTTE is the de facto government of a de facto state. It is employing legitimate political violence as a last resort for self -defense. LTTE is a national liberation movement seeking to realize the rights of the Tamil people to self-determination pursuant to a mandate given by the Tamil people in the 1977 election, the last authentic election held in the Tamil areas of Sri Lanka. LTTE presents no threat to the security of the United States, and is not a terrorist organization as defined under the laws of the United States and under international law.”
In its opinion the Court of Appeals for the District of Columbia Circuit, while upholding the designation stated that the materials compiled by the Secretary of State without any notice to LTTE, including secret information, reviewed by the Court but not shown to LTTE, were based on third hand accounts such as press stories and materials available on the Internet. The Court stressed that the information thus compiled is certainly not evidence that would normally be received in court, stating,: “the record consists entirely of hearsay, none of it was ever subjected to adversary testing and there was no opportunity for counter-evidence by the organization's affected… we reach no judgment whatsoever regarding whether the material before the Secretary is or is not true.”
The decision further stated that the “designation may be improper because the Secretary's judgment that the organization threatens our national security is completely irrational, and devoid of any support. Or her findings about national security may be exactly correct. We are forbidden from saying. That we cannot pronounce on the question, does not mean that we must assume the Secretary was right. It means we cannot make any assumptions one way or the other.”
With respect to LTTE's disagreement with the Secretary of State's finding that it is a foreign organization and to its position that it is a de facto government. The Court concluded that “the Secretary's designations embody…discretion as to political matters beyond the competence of the courts to adjudicate.” The Court expressed the belief that in reviewing the designation in this way it was not “allowing the reputation of the Judicial Branch to be 'borrowed by the political branches to cloak their work in the neutral colors of judicial action.'“
The court's opinion has denied the robe of legitimacy the political establishment was seeking and left it “naked”.
However, while the designation lacks any legitimacy, its effect upon the asylum seekers is devastating.
The legislation has denied asylum to members or representatives of this and similarly situated organizations. Denial of asylum to such people is not only a violation of international obligations of the U.S., but also contrary to case law which provides that mere membership in an organization is not sufficient to trigger exclusion from the protections of the Refugee Convention. Fed Orenko v US, 449 US 490, 512 (12981); Laipenieks v INS, 75 F.2d 1427 (9th Cir.); Matter of Rodriguez-Maya, 19 I & N Dec 811 ((BIA 1988).The most appalling aspect of this piece of legislation is that it denies the asylum applicant the opportunity to demonstrate that the organization concerned is not a terrorist one. In the case of the LTTE the terrorist designation of the organization, as stated by the Court of Appeals, was not based on “evidence” as this term is understood but is predicated on narrow political considerations which are final and conclusive as far as the asylum seeker is concerned. However, the possibility remains that Congress might change its mind: in view of the fact that these organizations have been placed for an excessively long time, they may eventually struck from the list in order to make room for others.
Barring that there is no recourse available for members of the designated organizations to seek asylum. It should be observed here that the consequence of the designation also has a terrible effect on ordinary citizens as well. The legislation makes it a felony for anyone including US citizens to provide material assistance to the designated organizations. Under this legislation, any person including a citizen who donates money to orphanages run by these organizations is considered a felony punishable by a 10-year prison term. Even in the context of this situation the designation is deemed to be final and conclusive and there is no legal means to challenge it.
In the context of asylum adjudication
Rebellious lawyering is essential in asylum adjudication, especially in relation to the advisory opinion provided by the States Department in this context. According to regulation 8 CFR 208.7, the Immigration Judge and/or District Director of the INS Office with jurisdiction over the case are required to send the asylum application to the Department of State for the provision of an advisory opinion on the merits of the claim. An advisory opinion is also sought on the subject of the prevailing country conditions, which are used to determine the relative merits of the claim for asylum based on fear of persecution in the native country of claimant.
In most cases the opinion is heavily influenced by narrow political considerations. As noted by the 9th Circuit in Kasravi v INS, 400 F.2d 675,677 n.1(9th Cir. 1968): “such letter from the State Department do not carry the guarantee of reliability which the law demands of admissible evidence. A frank, but official, discussion of the political shortcomings of a friendly nation is not always compatible with the high duty to maintain advantageous diplomatic relations with nations throughout the world…No hearing officer or court has the means to know the diplomatic necessities of the moment in light of which the statements must be weighed.”
Similarly in Gramatikov v INS, 128 F. 3d 619 (7th Cir 1997), the Court observed that: “there is perennial concern that the Department soft pedals human rights violations by countries that the United States wants to have good relations with.” In other words, foreign policy considerations take precedence over the fate of individual asylum seekers from such countries. Under such circumstances, rebellious lawyering is indispensable if the individual asylum seeker is be protected from being sent back to the country of persecution. Reports from independent Human Rights Organizations such as Amnesty International, Human Rights Watch should be introduced to counter the State Department's advisory opinion.
Many courts have recognized that political considerations permeate the advisory opinion and have thus placed greater reliance on the reports of independent human rights organizations. Hengen v INS, 79 DF.3d 60,62 (7th Cir. 1996). In Ratnam v. Lewis, 892 F. Supp 619, 625-26 (D.N.J. 1995) where the asylum seeker was a Sri Lankan woman, the Court noted the shallowness of the advisory opinion, chiding the Stated Department for its lack of content and relied on the reports of independent human rights organizations submitted in that case.
It also should be said that the advisory opinion can be not only not objective, but also specious and often bordering on dubious ingenuity. For instance, an advisory opinion issued in the 1980s with respect to Sri Lanka noted that the situation is improving and the Government is taking necessary steps to curb human rights violations. The same comment can also be seen in the 1990s reports on human rights conditions prepared with respect to this country.
In political asylum adjudications, with respect to the objective component of the “well-founded fear” element and the analysis of “on account of” an individual who is denied a forum both domestically and internationally is not only given an opportunity to air personal grievances and to seek relief from his or her personal predicament, but also to bring it to the attention of the international community the persecutory and oppression nature of his or her government.
Rebellious lawyering is also necessary with respect to the detention of asylum seekers. Currently, there is a Liberian asylum seeker who has been detained for almost 6 years. This particular asylum seeker surrendered his travel documents (which, as in the case of many asylum seekers were false) upon arrival at the airport to the Immigration officer and sought asylum immediately. No fraud charge was filed by the INS. However, the Service has elected to deny him parole stating that he attempted to enter the country with false documents and there is no emergency or humanitarian reason to parole him. The inconsistent reasoning of the INS is really mind-boggling.
As we all know, each INS District Director considers his or her district to be a personal fiefdom. As regards the denial of parole, INS takes the position that it need not give any reason for its denial of parole. If one goes to the Federal court to challenge it, the Government comes forward with the argument that under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) the Federal court does not have any jurisdiction to review parole decisions rendered by the INS with respect to excludable asylum seekers.
Thus asylum seekers have no administrative or judicial recourse to challenge negative decisions. The INS position in this regard is that it can do no wrong. However, with respect to the denial of judicial review, we can see a crack in the government's jurisdictional defense argument. In a Habeas challenge of denial of parole, the District Court for the Eastern District of New York held that: “There may be situations where an official acts so irrationally or viciously in exercising his discretion that Habeas Corpus may lie.” Veerikathy v. INS, 98 Civ. 2591.
In sum it should be said that rebellious lawyering to challenges the power of the status quo and renders unjust laws inoperative by engagement within the system.