The charges announced this week against Germar Rudolf and Siegfried Verbeke, though hardly unexpected, have stirred up much familiar argument against the German Penal Code's Section 130 provision against incitement (Volksverhetzung), and concerning the United States' position regarding free speech.
The issues are complex, and best taken one at a time.
The involvement of the US immigration authorities is much more easily discussed. The facts are these: after fleeing a 14-month sentence for incitement and leaving Germany in 1996, and spending time first in Spain then in the United Kingdom, Germar Rudolf arrived in the United States circa 1999, criss-crossing between Mexico and the US until he filed a claim for asylum in 2000. This application was rejected in the summer of 2003 by the INS as a 'frivolous'; Rudolf appealed. In September 2004, he married a US citizen, at a ceremony performed by the late Robert Countess and witnessed by Fredrick Toben; Arthur Butz was also present for the festivities. Two months later, his appeal was also turned down by the BIA. The following month, he filed for a change of status on the grounds of his marriage to a US citizen. The INS rejected this change of status in March 2005, on the grounds that a change of status cannot be filed when an asylum seeker is in the midst of proceedings, a contentious interpretation of the relevant legal statute.
In April 2005, Rudolf was ordered to present himself to the Chicago Immigration and Customs Executive for deportation; he absconded. On October 19, 2005, he appeared at the Chicago office of US Citizenship and Immigration Services to apply for a green card based on his marriage to a US citizen; a records check indicated he had missed his April 2005 appointment and he was taken into custody. He was deported on November 15, 2005 and handed over to the German Federal police to begin the 14-month sentence resulting from his 1995 conviction under Section 130. Though he had been deported, a renewed appeal against the INS decision of March 2005 continued to perk its way through the courts.
Last week, the US 11th Circuit Court of Appeals ruled on Rudolf's appeal. We received the judgement from an anonymous source involved in the legal side of the case, but it is also available online (large PDF). The appeals court judge upheld the denial of Rudolf's asylum claim, rejected its characterisation by the INS as 'frivolous', and reversed the BIA's denial of motion to reopen proceedings based on his change of status.
In short, the US court system, all the way up to one level shy of the Supremes, has repeatedly rejected Rudolf's claim to asylum on grounds of his alleged 'persecution' by the German authorities. Legally, the US courts were being entirely consistent with their own practice and philosophy. One of the chief strikes against Rudolf's claims was the fact that his original 1995 sentence was only 14 months of a possible 5 years, whereas others have received much longer sentences under the same statute. As an American law professor, Catherine Smith, has pointed out regarding this case, US law does not recognise as persecution sentences that have been handed down by properly constituted courts, in comparable legal systems, with the right to a defence, an appeals process and so forth. All of which characterises the German legal system, even when prosecuting Section 130 offences. Rudolf's original trial lasted 19 days. Nor can Rudolf claim to be making a valid claim of asylum under the UN Convention of Torture, even though he and his lawyers have hyperbolically invoked it repeatedly. To give a comparison, the US courts rejected a claim of asylum from an Iranian convicted of selling Western pop music CDs, because this was the locally enforced law, but accepted a claim from an Iranian translator of Salman Rushdie's The Satanic Verses, because an associate had been tortured to death.
The reversal on appeal of the characterisation of the asylum application as 'frivolous' does not, however, undermine or contradict the denial of the overall claim for asylum. In legal terms, all it does is restore potential benefits which are made available to legitimate asylum claimants which a characterisation of 'frivolousness' withdraws. Yet in case there's any doubt how unusual the Rudolf case is, let's take a look at the available INS statistics for asylum claims granted to German and EU citizens from 1990 to 2003 (Excel spreadsheet). These show that out of 207,527 claims of asylum accepted by the US, only 91 can be definitively shown to have come from countries within the EU. Greece and the United Kingdom are the largest, with 27 apiece, while France and Germany tied with 17.
So who are these dissidents from Euro-totalitarianism that have been granted a safe haven in the Land of the Free? Almost none of them, it turns out, are native-born citizens of the respective countries. Indeed, the sole German national granted asylum is a Scientologist who it seems fraudulently claimed refugee status in order to avoid tax enquiries. The remaining German applicants seem to be mainly refugees from Iran, Afghanistan or Middle Eastern countries who left German to avoid racist attacks and direct physical violence. Cases can be found where such claims for asylum were accepted as well as rejected by the US courts. So it would seem that those few from Germany granted asylum in the US are fleeing from Nazis, not Nazis fleeing German state 'persecution'.
The only legal leg that Rudolf had left to stand on vis-a-vis the United States immigration authorities was his change of status. The INS interprets existing US law to mean that a change of status such as marriage is irrelevant to an ongoing appeals process under the asylum regulations. The 11th Circuit appeals court ruled against the INS on this aspect of the case, dissenting from rulings made in some appeals court circuits while affirming and agreeing with rulings handed down by other appeals court circuits. Chances are, this point of statute interpretation will go to the Supreme Court for a final ruling, or the law will be redrafted.
Yet what does his change of status come down to? A marriage to a US citizen. Anyone who's seen the movie 'Green Card' will know that arranged marriages for the purposes of gaining citizenship are on the one hand easy to sort out, but on the other hand vulnerable to checks by officials and demands for proof. Much the same applies in other countries. I'm not a lawyer, but I strongly suspect that the alternative route of entering under a tourist visa and promptly finding a US citizen to marry would bring down just as much scrutiny from officialdom as an asylum claim.
The bottom line, then, is that Germar Rudolf was deported from the US having exhausted a protracted appeals process after his claim of asylum was denied; a claim that stood next to no chance of succeeding under the US regulations. Had he wanted to secure resident-alien status more swiftly, he should have shacked up with someone a lot sooner than he did. The IDGR page on Rudolf relates a sad tale, derived from his own writings, of him romancing a Texan woman who turned out to be a Christian fundamentalist and thus incompatible with Rudolf's worldview.
Not to put too fine a point on it, but surely Bradley Smith, Mark Weber or Robert Countess had a daughter or grand-daughter somewhere to spare? One finds it hard to believe that somewhere within US revisionism, there wasn't someone who had a spare female. But then maybe all the sisters or daughters of the relevant revisionists hate their brother's/father's guts for lying about the Holocaust. At the end of the day, the US revisionist movement needs to find a suitable supply of willing partners for arranged marriages to fleeing German revisionists if it wants to avoid legal fiascos such as the Rudolf case happening again...
In the next post about Rudolf, we'll turn to the view from Germany, and why this blog disagrees with his forthcoming trial under Section 130.