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The Case of Elias Faddoul
Internment, c. 2007

An American victim of the Department of Homeland Security

Elias Faddoul is at this very moment sitting in a prison cell in Texas, 1,200 miles from his home in Orlando. He’s a young Palestinian born in Saudi Arabia, and like most Palestinians born on their land or in host countries where they’ve half-established themselves as refugees, he’s had the status of less than a second-class citizen: he is no citizen. He’s a stateless person. You might hear every Arab country refer to Palestinians as “our brothers and sisters.” In reality, the Arab world has been treating Palestinians like dogs, or footballs, or invisible men. It’s relevant in Faddoul’s case, even though he’s been in the United States for more than twenty years, has an American wife and three American children. He still has no citizenship. He tried getting an American one. He’s been here all this time, first as a student, then as a tax-paying resident, and for a few years as a graphic designer who worked for a crook who ran a t-shirt shop on International Drive, heart and soul of Orlando’s tacky district. The crook died. But the federal government had a case against the crook’s business partner and accountant and drafted Faddoul to be a government witness against them. Faddoul complied. The two were convicted on conspiracy, fraud, tax-evasion and money-laundering charges. Faddoul was proven clean. To thank him, the federal government informed him that deportation proceedings had begun against him. Why? Because in 1986 he let his student visa expire, stayed, and took up work—the story of hundreds of thousands of people like him. Except that he made a life for himself, paid taxes religiously, complied with all laws and paper trails, and the government left him alone. Then it didn't. Who knows why. It used him. Then it chased him. Then it arrested and imprisoned him.

There’s always been an obvious hypocrisy to the way the Immigration and Naturalization Service (now devoured and renamed by the Department of Homeland Security) chooses its targets and picks the time and place for its predatory raids. Yes, yes, “these people” broke the law, they overstayed their visa, they should be treated like anyone else. The point is that they’re not treated like everyone else: Hundreds of thousands of Europeans have overstayed their visas too. They’re seldom in the news columns, desperately hanging on to the life they’ve built here and exhausting their life savings to pay predatory immigration lawyers, who know where the cases, and the money, is. These days, it’s Mexicans and Arabs. And lawbreaking isn’t all equal, otherwise every employee who’s ever stolen office supplies from his company should be fired (the corporate world’s equivalent of deportation). Faddoul’s offense is of even less consequence than office swiping, there being no dishonesty about overstaying a visa, nor anything like stealing. The opposite applies: Faddoul has been a contributor, not a subtractor. But the life Faddoul made for himself and his family is irrelevant to the government. He’d have been shipped off already had it not been for one glitch. As a stateless Palestinian, Saudi Arabia doesn’t want its “brother” back. Other Arab countries won’t take him either. So he’s languishing in a Texas jail while the family that depends on him waits and wonders in Orlando.

How familiar all this sounds, and not just because of 9/11. Immigration authorities only ramped up their raids after that day to look tough to an American public wanting “action” about illegal immigrants. But a dirty secret of American immigration law is that cases like this are old hat. As he waits for whatever in his Texas cell, maybe Faddoul has already read about the half-century-old case of Ignatz Mezei. Mezei was born to Romanian or Hungarian parents in Gibraltar. He had lived in the United States for twenty-five years beginning in 1923. He had married an American. In May 1947, he sailed to Europe to see his dying mother in Romania. He was denied entry there, and spent 19 months in Hungary, trying to get in, then finally sailed back to the United States. At Ellis Island, he was imprisoned as a security risk, without a hearing, and based on what the U.S. Attorney general called “information of a confidential nature, the disclosure of which would be prejudicial to the public interest.” The government wouldn’t even disclose the information secretly to a federal judge. The Attorney General was acting under authority of the Passport Act of 1918, reinforced in 1950, which authorized restrictions on aliens entering or leaving the United States during periods of international tension and strife. The Cold War was on: the state of emergency begun in 1918 hadn’t lapsed. (Nor has it since.) The federal government wanted Mezei deported. No country would have him. He stayed imprisoned on Ellis Island for nineteen months, without charge and without a country. Naturally, Mezei sued over a imprisonment he considered illegal.

Two federal courts ordered him released, including New York’s 2nd Circuit Court of Appeals, which termed his imprisonment “dangerously close to imprisonment for mere beliefs or propaganda.” The case went to the Supreme Court, and on March 16, 1953, was decided against him in a pretty shameless 5-4 decision: “[W]e do not think that [Mezei’s] continued exclusion deprives him of any statutory or constitutional right,” wrote Justice Thomas Cambell Clark. “That exclusion by the United States plus other nations’ inhospitality results in present hardship cannot be ignored. But, the times being what they are, Congress may well have felt that other countries ought not shift the onus to us; that an alien in [Metzei’s] position is no more ours than theirs. Whatever our individual estimate of that policy and the fears on which it rests, respondent’s right to enter the United States depends on the congressional will.” Time being what they are. When have times in the United Statesnot been what they are, and what kind of constitutional reasoning likes on such blowing-in-the-wind rhetoric? Justice Clark, of course, was one of the lesser lights of the court who, in 1937, had coordinated the internment of Japanese-Americans in FDR’s World War II concentration camps, and whom Harry Truman, who had appointed him, later called “my biggest mistake.” Truman specified: “It isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch.” And, incidentally, another product of the Texas National Guard in whose hands Mezei’s fate now rested. The indefinite detention was upheld.

Justice Jackson was mad: “Fortunately it still is startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial. Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint. Under the best tradition of Anglo-American law, courts will not deny hearing to an unconvicted prisoner just because he is an alien whose keep, in legal theory, is just outside our gates. Lord Mansfield, in the celebrated case holding that slavery was unknown to the common law of England, ran his writ of habeas corpus in favor of an alien, an African Negro slave, and against the master of a ship at anchor in the Thames.” By the way, Justice Jackson’s clerk at the time was a young, somewhat callous man called William Rehnquist. Feeding Jackson some research on the Mezei case, Rehnquist penned him a memo that said, “When it comes to this guy, I have trouble crying. He lived in this country 25 years and never bothered to become a citizen.” To Rehnquist, it was an “act of grace” for the government to let him “temporarily decamp on Ellis Island.” Rehnquist had trouble crying for the Guantanamo prisoners too, half a century later, as one suspects the likes of Justices Sam Alito and Chief Justice John Roberts will, when they get the chance.

None of this helps Elias Faddoul, except to note that his case is a sad retread of an old story that 9/11 merely twists in new directions. It’s not about justice in immigration laws. Deporting someone like Faddoul would only shatter a family, end what appears to be the stable life and communal involvement of a man who’s been a citizen in all but name, and if it’s economic well-being and “productive tax-paying” the government is concerned with, end a rather good deal on that account, too. and having covered uncomfortably similar case to this four years ago, it looks arbitrary, capricious, and the work of immigration authorities who pick on one folder as opposed to another based as much on whim as on color and the day’s mood in the office. There’s no rhyme to it, certainly no reason, absolutely no fairness. There’s cruelty, and a dogged desire on the Homeland Security Department’s part to find every avenue to close for men like Faddoul. The spirit of American immigration law has always been understood, in folklore if not quite in fact, as looking for every avenue to open for those like Faddoul who so want to be here. History points otherwise to some extent, although more distant history doesn’t, and those words of Emma Lazarus’s, however sentimental, still don’t. What immigrant doesn’t believe in them? Even in his cell now, Faddoul probably does, still, this man taken away from his daughters as he was getting them ready for school at 6:30 one morning, while his wife was visiting her dying father in New York . And isn’t that early morning or late night knock the characteristic calling card of totalitarian authorities?

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