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  •   Justices Hear Palestinians' Case

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, November 5, 1998; Page

    The Supreme Court heard arguments yesterday in the government's 11-year effort to deport a group of Palestinian activists who claim they were targeted because of their political views.

    The dispute, which entangles free speech and national security concerns, tests when people who face deportation can get through the door of the nation's federal courts with the assertion that their constitutional rights have been violated. The case is one of the most closely watched of the term, and the oral arguments drew a host of advocates representing the immigrant community to the high court.

    The eight Los Angeles activists associated with the Popular Front for the Liberation of Palestine were arrested in 1987 and charged with visa violations, including failing to maintain student status, working without a permit and overstaying a visit.

    The activists -- seven Palestinians and a Kenyan -- asserted that they were singled out in retaliation for their political views and that they should not be forced to undergo an administrative deportation process before they can bring their First Amendment case to a federal court.

    Noting that the PFLP opposes U.S. peace efforts in the Middle East and has been responsible for many deadly acts of terrorism, the Justice Department contends Congress properly developed a deportation scheme that requires foreigners to first make their case before an administrative board and receive a final deportation order before seeking review by a federal judge.

    Assistant Solicitor General Malcolm L. Stewart told the court there is no right to an immediate resolution of a First Amendment challenge in immigration disputes.

    The arguments were dominated by conflicting interpretations -- voiced by the lawyers at the lectern and the justices themselves -- of the law at issue and some of the pertinent facts. Some of the questions from the bench suggested the court might be derailed by procedural problems and be unable to decide under what circumstances a person facing deportation can raise a constitutional claim.

    But at one point, some of the justices got to the nub of the politics of deportation. Chief Justice William H. Rehnquist suggested the protracted 11-year case represented exactly what Congress was trying to avoid in recently streamlining immigration law. And Justice Antonin Scalia questioned whether the foreigners were trying to buy time by seeking time-consuming court hearings.

    "Everybody knows this is the name of the game," Scalia said. "String it out."

    But Georgetown University law professor David D. Cole, representing the Palestinian activists, protested that free speech rights are threatened if the government targets people based on legitimate political activities, such as recruiting members, distributing literature and raising funds. He said requiring a person to first endure a sometimes lengthy administrative process would "chill" legal political speech and hurt efforts to gather evidence for the constitutional claim.

    Lower courts have ruled for the activists, blocking their deportation and saying an immediate route to resolve a constitutional challenge must be available. In the government's appeal of a 9th U.S. Circuit Court of Appeals decision, the Justice Department said the ruling threatened "a substantial disruption of important law enforcement and national security interests."

    But the provocative question at the core of Reno v. American-Arab Anti-Discrimination Committee is complicated by uncertainty over what law applies. In 1996, Congress revised illegal-immigration law, and yesterday's hearing was marked by a stew of numerical references to confusing provisions of past and present statutes. The Justice Department insists that the 1996 law made explicit a prior rule that a foreigner threatened with deportation must first exhaust administrative avenues. But Cole said that Congress can not and did not eliminate timely federal court review of a constitutional claim.

    Yesterday's particularly legalistic dialogue was observed by a group of silver-haired women sitting in the spectator seats.

    As they left, one of the women commented on how she clearly heard every word spoken by the justices. But, she added, she understood not a one.

    © Copyright 1998 The Washington Post Company

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