Open Letter

An Open Letter to Judge Blais from Ernst Zundel’s American Attorney

I’ve read your “Decision on the Reasonableness of the Certificate” saying that Ernst Zundel could be removed from Canada as a threat to Canadian national security.  You may remember me.  There I am, in Paragraph 102 of your Decision, having testified in your courtroom that Mr. Zundel was scrupulous about complying with U.S. immigration law. 

This was after the Canadian government accused him openly in your courtroom of scoffing at U.S. law in missing a hearing, and that he was a poor risk for bail.  I knew better, because I knew the law, and I knew all the careful steps that Mr. Zundel had taken to follow U.S. law while in the U.S.

I was able to nip that accusation in the bud because it was made in the open.  How many false accusations did you hear about Mr. Zundel that could not be corrected?  We will never know, because they were made in secret.  Your Decision seems to glory in such secrecy.  It is an inextinguishable stain on western democracy when evidence taken in secret leads to the mistreatment of any man or woman.

And by the way — even after my uncontroverted testimony given in your presence, your Decision still gets it wrong.  You wrote that “the [FBI] report makes mention of the fact that Mr. Zundel was `out of status,’ meaning that he had come to the United States as a visitor, but overstayed his six-month window.”  You wrote, “Mr. Zundel was informed of this and advised to come in for an interview to try and rectify the situation.”

How can this obvious falsehood be a part of your Decision?  Since I know this is wrong, how many other things did you get wrong?  Or distort?  I suspect you made this finding because it suited the story you wanted to spin; because you guessed that it would correspond to the facts.  For my part, I guess you don’t care how many parts are wrong, because your Decision was not subject to appeal or review by a higher court.  Nice job if you can get it. No, the government never warned Mr. Zundel that he was out of status, or advised him to come in for an interview to try and rectify the situation.

The U.S. interview that was scheduled for Mr. Zundel was a normal interview at which he was supposed to obtain lawful permanent residence, based on his marriage to a U.S. citizen.  Hundreds of such interviews happen every day here.  His attorney rescheduled his interview, but the INS says they didn’t get the letter.  Ernst Zundel wasn’t ever advised to come in and “try and rectify the situation.”  Where did you get that?

Ernst Zundel knew he would be able to overcome any hurdle arising from remaining in the U.S. longer than a visitor could–because of his marriage.  Hundreds of persons married to U.S. citizens do so in this country every week.  That has not changed since 2001.  You don’t have to take my word for it:  read what his prior immigration lawyer testified to, under oath, in Knoxville, Tennessee in November 2004.  He said the same thing, and so would any knowledgeable American immigration lawyer.  The judge in Knoxville was no more ready to hear the truth than you are.  Is there something else going on here?

It’s ironic what you say about the FBI, too.  The U.S. government can’t seem to get its story straight.  At the trial in Knoxville, the U.S. Attorney argued that Ernst Zundel had come into the U.S. with permission to be here for only 90 days.  Of course, they couldn’t very well argue that he had come on a “six-month window,” because then they would have had to concede that he should have eventually been given a notice to appear in Immigration Court like everyone else who overstays the usual visitor authorization that the U.S. wants to deport.

No, that would never do, after government agents showed up at Ernst Zundel’s house and arrested him and hustled him out of the U.S. without a hearing of any sort.  There are Immigration Court hearings for hard-working Mexican campesinos, but not for Ernst Zundel.

At least you had enough of a sense of shame to include the quote from the FBI that Zundel’s immigration paperwork “would most likely be approved by the INS.”  But that’s all you did:  that statement apparently meant less to you than being able to portray Zundel as a man “flagged by the FBI as being in the United States illegally.”

Those are probably just trifling details to you.  Your Decision concerns the right of a non-citizen to remain in Canada.  Notwithstanding centuries of contrary tradition, you say that isn’t a very weighty right (Paragraph 19).  Never mind the fact that in Ernst Zundel’s case he lived in Canada from 1958 to 2000 and it is really the only home he knew as an adult.

The biblical tradition tells us that God-fearing men are supposed to be hospitable to the strangers, aliens and immigrants in their midst.  I don’t suppose you ever thought of Ernst Zundel in that light, did you?

Because your Parliament said so, you believed that your role was minimal.  You observed that the government only had to prove that there is a “serious possibility” that its charges against the man were accurate (Paragraph 15), not that they were in fact accurate. That’s an awful lot of power Parliament has given to its ministers, don’t you think?  I suspect you didn’t even have to spend 60 pages to find that there was a “serious possibility” that the minister’s charges were accurate.  There is always a serious possibility of something when the governments brings in secret testimony that says so.  But I guess you had to try to give the proceedings the veneer of respectability, just like you did for two years in court.

And so your Decision is preoccupied with weighty matters of racial hatred.  White supremacy.  Hypocrisy.  Those are serious charges, enough to make anyone sit up in his chair, and I want to pose a few questions about those charges.

You say that all you had to do was find that it was reasonable for your government to say that Mr. Zundel’s status within “the White Supremacist Movement (the Movement) is such that he is a leader and idealogue who inspires, influences, supports and directs adherents of the Movement to actuate his ideology.”  (Paragraph 5).

Right off the bat, I have a question about that.  What exactly is the “White Supremacist Movement?”  As far as I am aware, no organization exists with this name.   I do not believe it is a corporation, partnership, association or other legal entity.  You haven’t defined it anywhere in your Decision–although you attempt to define “White Supremacists” (Paragraph 23)–and I am not aware that Ernst Zundel ever used the term “White Supremacist” to describe himself.  (I suspect you would have told me, if he had done so.)

Ernst Zundel certainly never admitted to being a leader of the White Supremacist Movement, or that such a Movement existed.  How then can you get away with giving this term a shorthand designation (the “Movement”) and referring to it repeatedly throughout your Decision?

Your own definition of White Supremacist is nonsensical.  In Paragraph 23, you say they are defined as: “racists, neo-Nazis and anti-Semites who use violence to achieve their political objectives.”  Then in the very next sentence you say that “Leading White Supremacists may inspire others to use or threaten use of violence.”  Wait a minute–why is it important that they “threaten use of violence” when they are already using violence to achieve their political objectives, by your own definition?  I don’t get it.

This looks like outright sloppy thinking, unbecoming to a court responsible to the best traditions of English law weighing matters of national security.

You even fault Ernst Zundel for saying that “white men should behave according to a higher moral standard.”  You call that statement “cynical” and “racist,” and you go on to announce that “no one should doubt that every person should strive to be at the highest standard, not only the White people.”  Your choice of terms would be amusing if it didn’t have such serious repercussions.  “The White people?”  “The White people?”  So what if Ernst Zundel believes that white people should behave according to a higher standard?  He deserves deportation for that?  Let every race, let every creed, let every family aspire to a higher standard of conduct than that of their neighbor, and we’d probably have a much better world than the one we have now.

Speaking of sloppy use of language, in Paragraph 4, you stated that “other documents remained classified and were not disclosed to Mr. Zundel because I have determined that the information and the evidence contained in those documents would be injurious to national security or the safety of any [sic] person if disclosed.”

Somehow your language doesn’t assure me of real careful consideration here.  It sounds like you are just repeating a justification that you found in the text of a statute.  Shouldn’t you have had to determine that the safety of “a” person would be jeopardized upon a disclosure, rather than that the safety of “any person” would be jeopardized?

Talking about “safety” like this is usually a way of saying that you relied on information from confidential informants.  We won’t find it in your Decision, but who is asking the hard questions about what kind of a society we have in North America when information affecting our most important decisions comes to us from confidential informants?  As an American I seem to remember that some of our informants told us about weapons of mass destruction in Iraq.  How can we be sure that these guys (I think they are mostly guys) have it right if they are never cross-examined?

Doesn’t this trouble you?  No?  Well then, take comfort:  It has never troubled despots.

In Paragraph 26 you identify the “ideology” of the White Supremacist Movement as one which is “based on the fundamental belief that the white race is an endangered species in need of protection as a result of non-Whites and Jews seeking to attack the foundation of western civilization.”

I hope you recognize that there is nothing inherently violent about that ideology.  What you describe is a theory–not readily susceptible of either being proved or disproved.  Theories should not be threatening in and of themselves, and the adherents of this one should not be automatically labeled violent.  Its adherents might be just as inclined to adopt a strategy of “be fruitful and multiply” as they would a dubious strategy of wielding weapons or encouraging their use.  The fact that deportation, rather than calm reason, is being used against adherents of this theory only reinforces the fears that engender the theory.  Maybe that is your unstated goal?

You say in Paragraph 6 that Mr. Zundel’s views on the Holocaust were of no concern to the Canadian Security Intelligence Service (CSIS), but that investigations into Zundel “only began when Mr. Zundel crossed the boundaries of free speech and…entered the realm of incitement to hatred and potential political violence in relation to the White Supremacist Movement” (there’s that term again).

When did this “boundary-crossing” happen, by the way?  You never told us.  Why was Zundel never criminally prosecuted if he crossed the line of free speech?  It is probably just a coincidence that all of the (Jewish) spokesmen gloating about Zundel’s deportation from Canada have justified it on the grounds that he is a “Holocaust denier.”   They just haven’t read your Decision very closely.

You say in Paragraph 7 that your government “suggests” that “Mr. Zundel intends serious violence to be a consequence of his influence, and to this extent, Mr. Zundel “is engaged in the propagation of serious political violence to a degree commensurate with those who actually execute the acts.”  Shouldn’t the government have to do a lot more than “suggest” violent intentions in order to remove a man?   And how are you going to get inside of Ernst Zundel’s head to know that he intends violent consequences of his analysis–especially since he says he does not?

Does the man who sweepingly condemns homosexual conduct intend violence against homosexuals?  Does the woman who graphically condemns sexism intend violence against men?  When a Chicano activist says that California belongs to the Mexicans, does that mean he intends revolutionary violence against state officials?

Or when I complain about growing judicial corruption, does that mean I intend violence against judges?

Your government is on a slippery slope here, Judge Blais, and I don’t even think you appreciate it.  That’s what scares me, not Ernst Zundel.

In Paragraph 23, you find it important to note that “Mr. Zundel is viewed by White Supremacists as a leader of international significance and was viewed as the patriarch of the Movement in Canada for decades.”  Are you ending up judging a man by how he is viewed, rather than what he is?  In our Federal Rules of Evidence in the United States, we take a rather dim view of the probative value of evidence of reputation to prove someone’s conduct.  Your statement makes it sound like you aren’t concerned with what Mr. Zundel actually did, but only what some people believe he is capable of doing.

In Paragraph 23, you also make the breezy finding that the Zundelsite was “his” (Ernst Zundel’s) website.  Did it trouble you at all that this website has always been operated by Ingrid Rimland, even before her marriage to Ernst Zundel, and that Mrs. Zundel has always been adamant that her husband did not control or run the website?   In Paragraph 70 you make more extensive reference to testimony about the Zundelsite, and then you apparently go on to conclude that because Ernst Zundel agrees with the content of an article posted on the website by his wife, his testimony is “inconsistent” and the website is “his”–even though it has been operated continuously by Mrs. Zundel since her husband’s deportation from the U.S. to Canada.  Am I missing something here?  The inescapable conclusion is that you decided the website belonged to Ernst Zundel because you wanted it to be so.

You were also apparently impressed by documents “issued by” Mr. Zundel which “show his intention to destabilize the legal and legitimate government of Germany [and of] undermining the German government.”

Why destabilization of the German government should be a threat to the national security of Canada, any more than protests against the Italian government would be, is not clear.  Did it ever occur to you that attempts to destabilize governments have a long and proud history?  And in fact may even be protected by law, as long as no violence is advocated?  Did you ever pause to consider that a stable bad government is still a bad government?

Perhaps you are unfamiliar with the Declaration of Independence in your neighbor to the south, which says, “Whenever any form of Government becomes destructive of these ends [Life, Liberty and the Pursuit of Happiness], it is the right of the People to alter or abolish it, and to institute new Government.”

Perhaps there are important differences between the freedoms granted in Canada and the United States, after all.

You of course declined to acknowledge the contentions of Mr. Zundel that the reason the government of Germany is in fact an illegitimate government is that it traces its origins to its post-war occupiers, and not to any popular or constitutional mandate.  That probably doesn’t concern you, any more than it would concern you to recognize the “legitimacy” of some dictatorship that Canada wants to be cozy to.

What of your conclusion in Paragraph 26 that beliefs about “Jews…conspiring to gain control of the world through manipulation of financial markets, the spread of communism, pornography and general moral degeneracy” lead to “anti-immigration, anti-democratic, anti-human rights and anti-homosexual attitudes….”  That’s a whopper, Judge.

Don’t you think a concern about legalizing homosexual relationships could go hand in hand with a concern for moral degeneracy, rather than one leading to the other?  That anti-immigration attitudes reflect real social pressures, rather than bogeymen?  Do you really think that beliefs about manipulation of financial markets lead to disrespect for human rights?  I’d say it’s just the opposite, Judge.  If I wasn’t disposed to be judicious myself, I’d almost be inclined to think that you were trying to discourage people from identifying market manipulation; I’d almost be inclined to think that you were just a shill for the manipulators.

Your Decision contains page after page of quotations from people that Ernst Zundel met with, that he knew.  You fault him for not disavowing those people.  Some of them people are quoted speaking  angrily–yes violently–about events of extreme injustice that happened in the United States, like the sniper killings at the home of Randy Weaver (“Ruby Ridge”).  You are quick to label the reaction, but you say nothing about the events which prompted the reaction.  Speaking personally, I think it’s understandable when men express rage after innocent lives are taken and after the most basic of human rights are violated.  Ernst Zundel probably understood this, too.  That doesn’t mean that either he or I justify or intend violence.

Did it ever occur to you that Ernst Zundel may have played a moderating role with those who were less likely to want to, or to be able to, curb their violent impulses, over the things they saw happening around them?  That he sought to give their grievances legitimacy without giving their violent impulses legitimacy?

You say that “Mr. Zundel could not forever sit on the fence, and in my view, he fell to one side.  He decided to associate himself with all those people, including extremists and members of the White Supremacist Movement.”  Really?  Is it really that bald–that you sit in judgment of Ernst Zundel because he decided to associate himself with “all those people?”

Did it ever occur to you that some of the most controversial men in history have consorted with “publicans and sinners,” and have taken it on the chin from the legal experts of their day?  I don’t think that despite his large ego Ernst Zundel ever compared himself with Jesus, so maybe you never thought of that parallel.  Or maybe if you did, you were content to be among the Crucifiers.

When all else fails, there is always the Hitler bogeyman to pull out.  Zundel admires Hitler (Paragraph 65), and ergo he is a truly bad man.  It is always the same.  When reasoning becomes too difficult, demonize the adversary’s leader:  the Ayatollah, or Qaddafi, or Osama Bin Laden, or Saddam Hussein.  A half-century ago, it was Adolf Hitler who could be demonized, and there are usually grounds aplenty.  Most of the world now demonizes George Bush, except that they are not in control of our media and so their views count for little.  Would it be relevant to your findings if you realized that Zundel admired Hitler not because he accepted that Hitler was a killer of Jews, but because he thought highly of various points of policy in Hitler’s National Socialist administration?  In any case, what possible threat would it pose to Canada that Ernst Zundel admires Hitler, when most people have a knee-jerk reaction to Hitler as the epitome of evil to start with?  Prove Mr. Zundel wrong by the evidence; don’t content yourself with slur and slander.

One last question.  Now that I have had my chance, and I haven’t outright repudiated Ernst Zundel, should I be nervous about my association with him?  I’m still his immigration lawyer, fighting for his constitutional rights in the U.S.  He is now a “certified” racist, hypocrite and international purveyor of hatred.  I can say that I don’t agree with him or his views, but am I going to be at risk of being detained, too, if I want to travel to Canada?

If so, may your jails be flooded with the dissidents you most fear.