Drama on the tarmac: US judge foils secret deportation to Israel
|Ali Abunimah 7 June 2019|
On Wednesday morning, a private jet chartered by the US government landed in Tel Aviv.
On board was Abdelhaleem Ashqar, a Palestinian business professor who ran for the presidency of the Palestinian Authority in 2005.
US Immigration and Customs Enforcement agents were attempting to secretly deport him to Israel, which would then transfer him to the West Bank.
But contrary to the plan, the aircraft was met by a US embassy official who told the ICE agents on board that they could not hand Ashqar over.
Pursuant to an emergency order issued by a federal judge back in Virginia, Ashqar had to remain on the plane in US custody.
He would sit on the grounded plane for more than a day while a legal drama unfolded back in the US.
This account was provided to The Electronic Intifada by Patrick Taurel, Ashqar’s attorney.
Ashqar told Taurel and members of his family what happened, following his return to the United States late Thursday US time.
Ashqar’s return capped an extraordinary 72 hours in which ICE deliberately lied to Ashqar and his lawyer before essentially abducting him and putting him on the jet bound for Tel Aviv.
It was only the intervention of US District Judge T.S. Ellis III that ensured that Ashqar was brought back to the US after his ordeal.
It involved a late-night hearing by telephone in which the judge demanded to know if the government could land the plane in any other country before it reached Tel Aviv, or return it to Vienna where it had stopped to refuel.
Ashqar is now being held at a detention center in Bowling Green, Virginia.
Acquitted of “terrorism” charges
To understand the almost unbelievable chain of events of recent days, we have to go back to 2003, when Ashqar reached an agreement with ICE to voluntarily leave the United States.
If he did not comply, he would be ordered deported to Jordan.
Ashqar had a job offer to teach abroad and was planning to leave the US, but US authorities prevented him from complying with the agreement: Immediately after he signed it, the government summoned him to appear before a grand jury in Chicago.
Ashqar refused to testify and in 2007 the government indicted him for conspiracy and obstruction of justice.
He was the co-defendant of Muhammad Salah in a 2007 “terrorism” trial in Chicago that was part of the US government’s post-9/11 nationwide crackdown on Palestinian activists as part of its “war on terror.”
Ashqar and Salah were acquitted by a federal jury on all the charges supposedly linking them to fundraising for Hamas.
Salah, who died in 2016, was nonetheless convicted of a single count of obstruction of justice and spent less than a year in prison.
Ashqar was convicted on one count of criminal contempt of court for his refusal to testify before US grand juries and received an extraordinarily harsh sentence of 11 years.
Ashqar completed his federal sentence on 13 June 2017 and was immediately turned over to ICE detention for removal.
But no country would take him. The US Supreme Court has ruled that the government cannot hold someone indefinitely for the purposes of deportation if there is no realistic prospect of that happening.
So in May 2018, Ashqar’s lawyers filed a writ of habeas corpus challenging his indefinite detention.
Habeas corpus is a fundamental legal recourse used to challenge unlawful detention – it essentially demands that the detaining authority produce the person before a court.
According to Taurel, sworn testimony in that case revealed how three governments – Israel, Jordan and the Palestinian Authority – were resisting requests to issue Ashqar with travel documents.
Ashqar, who is 60, was born in the West Bank when it was under Jordanian rule.
But while the habeas corpus case was pending, the government voluntarily released Ashqar on 18 December 2018.
By doing so, the government got the case dismissed and avoided what would have been a damaging precedent from its perspective: a court order to release Ashqar.
“Ashqar went home, and for the first time in more than 11 years he slept in his own bed,” Taurel said.
Ashqar also returned to a semblance of normal life, with his wife Asma, and his son who is in his early twenties. He also received much-needed medical care, including a total knee replacement in April.
On 18 May this year, Ashqar and his wife received notices from ICE asking them to appear for a check-in on 4 June. They had previously been given later, and separate check-in dates.
Ashqar asked Taurel to see if ICE would agree to a delay, both because of Eid al-Fitr, marking the end of Ramadan, and because Ashqar was still recuperating from his knee surgery.
Taurel got in touch with ICE, who initially did not respond.
But on 29 May, the lawyer received an email from a supervisory detention and deportation officer at ICE’s Washington field office stating that “We will be issuing Mr. Ashqar an order of supervision at his next appointment.”
That order would mean that he would be allowed to continue living at home instead of in immigration detention – that nothing would change.
ICE requested more medical records and promised to look into the possibility of postponing the check-in.
On 31 May, Taurel received another email from the same officer stating that the Ashqars’ appointment could not be rescheduled, but that “we understand that it is the last day of Ramadan and assure you that when the Ashqars report they will be in and out quickly.”
“That was the last communication I had with them until 4 June,” Taurel said.
Taurel did not go to ICE with the Ashqars on Tuesday, “because I believed ICE was telling the truth. I’ve never been lied to by ICE about something like this.”
But as a precaution, Taurel requested that Ashqar’s son go with them. The family went in as scheduled at about 8 a.m.
In fact what happened is that as soon as Ashqar entered the ICE facility he was shown an order revoking his release, dated 28 May.
Taurel points out that this meant that the entire time ICE claimed that the 4 June visit would just be a routine check-in, the agency knew this was not true.
Ashqar told his lawyer on Friday that he was immediately whisked to an airport in Manassas, Virginia, and was in the air by 9:45 a.m.
Ashqar had no idea where he was going until he overheard someone at the airport say the flight had been given clearance to land at Tel Aviv.
But all this was unknown to Ashqar’s lawyer and his family as it was happening.
Just before 11 a.m. on 4 June, Taurel received a frantic call from Ashqar’s son, saying his father had been handcuffed.
Taurel managed to get hold of a senior official – an assistant field director at ICE – who continued to reassure him that this was simply protocol, that Ashqar was just going to be fingerprinted, given his supervision order and sent on his way home.
But then at around 12:45 p.m., Taurel received another frantic call, this time from Asma, who said, “I was just told they deported him to Israel.”
That ICE lied to Ashqar and Taurel is not a matter of dispute.
An order issued by Judge Ellis on Wednesday recites as fact that on 29 May, “the government’s agents falsely represented to petitioner and his counsel that petitioner would be issued an order of supervision at his next appointment and requested additional documentation regarding the knee surgery.”
The judge also wrote that “Indeed, at this time, it appears that respondents [the government] had already decided and planned to remove petitioner, but did not advise the petitioner of this fact.”
The judge also states that even after Ashqar’s family informed the lawyer that Ashqar had been handcuffed, government agents “once again falsely represented” that Ashqar was “merely being taken to a secure area for fingerprinting.”
“In fact,” the judge’s order states, the government “placed petitioner on a chartered aircraft and removed him from the United States.”
Judge asks to turn plane around
The fact that the government lied prevented Taurel from filing an emergency motion to stay the deportation with the Board of Immigration Appeals, where Ashqar had a pending request to reopen his case.
Taurel filed an emergency motion anyway, but learned from the board that it could do nothing since the aircraft had taken off and Ashqar was no longer on US soil.
So the legal team that evening filed an emergency habeas corpus petition in federal court against ICE, the Department of Homeland Security and the US attorney general.
Taurel also spoke with an assistant US attorney for the Eastern District of Virginia, who informed him that Ashqar was on a private plane chartered by the US government.
The plane was scheduled to land in Vienna to refuel at about 10 p.m. US time on Tuesday and then take off an hour later for Tel Aviv. Ashqar would then be escorted to Ramallah, the government lawyer said.
Judge Ellis scheduled an emergency hearing by telephone at 10 p.m. Tuesday night. Taurel was on the phone representing Ashqar, along with lawyers Thomas K. Ragland and Denyse Sabagh.
The government was represented by two attorneys from the Eastern District of Virginia.
According to Taurel, the judge was troubled by what he was hearing and wanted to know if the government could stop the plane. He asked if it was still in Vienna, or if not, whether it could turn back to Vienna or land somewhere else.
The government lawyers claimed that it was impossible and the plane had to proceed to Tel Aviv.
A key question for the judge was whether he had jurisdiction to hear the case. He asked the lawyers for both sides to submit motions to him on that issue by 11 a.m. Wednesday.
But in the meantime, he wanted to freeze the status quo and he issued a verbal order to the government that Ashqar must be kept in US custody and not handed over to the Israelis.
Meanwhile, on board the plane, Ashqar was initially fully shackled by his arms and legs.
Gradually, the agents freed his legs, then his arms and then his hands – one at a time. Ashqar told his lawyer that he was not allowed to have his prescribed painkillers, but there was a nurse on board who gave him what he was told was Tylenol.
“Under penalty of perjury”
On Wednesday afternoon, Ellis issued his written order: he decided that he did not have jurisdiction with respect to the habeas corpus petition.
But critically, the judge noted that under the original 2003 removal order, Ashqar can only be deported to one country: Jordan.
He therefore ruled that the court would “maintain jurisdiction of this case to ensure that respondents are complying with the removal order and the court’s order of this date prohibiting respondents from delivering petitioner to the Israelis.”
He also ordered the government’s lawyers and agents who carried out the deportation to provide him with affidavits “under penalty of perjury” attesting to “whether they adhered to the removal order by delivering petitioner to Jordan and that they did not turn petitioner over to any entity or person associated with the Israeli government.”
Taurel recalls that from about 5 p.m. on Wednesday, 5 June, until 11 a.m. the following morning, “we had no idea what was happening with Dr. Ashqar. We had no communication with him.”
Taurel asked a government lawyer to try to arrange a confidential call with Ashqar, but did not hear back.
“And then at 11 a.m. on 6 June, I received an email from the assistant US attorney that Dr. Ashqar is en route back to the United States,” Taurel said. “Needless to say we were extremely relieved.”
Taurel can only speculate what happened. He thinks that the government interpreted the judge’s order to mean that they could only deport him to Jordan, and since that was impossible, they decided to bring him back to the United States.
Ashqar told Taurel that during the entire time he was on the ground in Tel Aviv, no Israeli boarded the plane. But Ashqar said he thought he saw cars belonging to Israel’s Shin Bet secret police around the aircraft – recognizable by their long antennas.
Ashqar also tried to inquire of the ICE agents whether the Palestinian Authority had issued travel documents for him – he never saw any – but was told it wasn’t his concern.
Taurel does not know what the government’s next moves will be and Ashqar’s legal team is looking at all options.
Taurel says lawyers have already filed an appeal with the US Court of Appeals for the Fourth Circuit of Judge Ellis’ order that he does not have jurisdiction over crucial parts of the case.
On Friday they also filed for a stay of Ashqar’s deportation order.
The clerk of the US Fourth Circuit Court of Appeals informed Taurel on Friday that the government has undertaken not to try to deport Ashqar again until at least 14 June, giving the court time to hear the case.
Throughout his long detention by the US, Ashqar has been classified as a low security prisoner.
Now he’s being held in a medium to high security facility, a move that Taurel thinks may be punitive.
To give some perspective to the ordeal endured by Ashqar, in 2007, Lewis Libby, chief of staff to Vice President Dick Cheney, was convicted of lying to a federal grand jury about the disclosure of the identity of a CIA agent.
Libby was sentenced to two and a half years, but didn’t spend a day in prison because President George W. Bush commuted his sentence.
Last year, President Donald Trump pardoned Libby altogether.
Ashqar, who wasn’t accused of perjury but of simply refusing to testify, spent more than a decade in prison.
Michael Deutsch, Muhammad Salah’s lawyer during the trial of Ashqar and Salah, wrote for The Electronic Intifada in 2008 about the “extreme injustice perpetrated on Abdelhaleem Ashqar by the US government and the federal court in Chicago culminating in a draconian sentence of 135 months for nonviolent acts of civil disobedience.”
Deutsch wrote that Ashqar’s “refusals to testify before investigative grand juries about his work and relationships with other Palestinians – in effect to become an informer against his people and his liberation movement – was part of a long history of resistance by activists in this country to ‘naming names’ of political associates before government investigative bodies.”
Indeed, Deutsch noted that in 1998, Ashqar spent eight months in prison for civil contempt “resulting from his unequivocal refusal to inform on others before a grand jury sitting in New York.”
“He was released after a judge found that his refusal was based on deeply held principles which would not be affected by further incarceration.”
Yet despite this, the US government continued to pursue, prosecute and persecute Ashqar, culminating in his indictment and incarceration.
Even after Ashqar completed his harsh sentence, the US continues to subject him to extreme injustice.
Note: This article has been updated since initial publication to include information that the US plan intended for Ashqar to be flown to Israel and then transferred to the West Bank.