The Flogging (Flood's Blog) -

My favorite British libertarian writer has once again shown how to combine eloquence with courage. The topic is the right to deny, in whole or in part, details of a contingent historical narrative as if it were not Holy Writ, a test any libertarian worthy of the name should regard as a "no-brainer."

Unfortunately many Americans libertarians fail that test by their silence. Some of them will not breathe a word about the plight of incarcerated writers, not even the one who was kidnapped on American soil and deported to lands that yawn at the mention of our First Amendment right. Yet these same pundits have plenty to share with us about their antiquarian, cultural, and even dietary pastimes. You would never know from visiting their sites that the right to offend Holocaust orthodoxy with impunity had anything to do with being anti-state, anti-war, or pro-market.

As Dr. Gabb shows, defending the right of someone to deny the Holocaust without fear of sanctions does not commit the defender to any version of events, ortho- or heterodox. In fact, Gabb regards as probably true (what he takes to be) the central factual claim of the standard (i.e., culturally transmitted) Holocaust narrative, namely, the Third Reich’s intensification of its targeting of Jews, toward the end of the Second World War, resulting in millions of murders in its occupied territories.

But Gabb’s judgment of centrality is neither here nor there. What is of moment is the impetus toward totalitarianism in Europe. The increased compulsion there toward uniformity of creed on an historical contingency that invariably figures into contemporary rationales for war should concern us. As Gabb has it, “It is one of the most ominous signs of the modern counter-Enlightenment that people can again be persecuted for their opinions.”

I beg visitors who won’t take the time to read the whole of Gabb’s marvelous piece, and the epistemological questions it raises, to read at least a few more of my favorite sentences therefrom:

“What some call the promotion of hatred others call telling the truth. Quite often, whatever opinion the rich and powerful do not like they will find some means of calling ‘hatred.’ In any event, we believe in the right to promote hatred by any means that do not fall within the Common Law definition of assault.”

“. . . in the standard accounts of the Second World War, the Katyn Wood massacre used to be blamed on the Germans, and now it is blamed on the Soviets. How can I be sure that the same is not true for the holocaust?”

“. . . I can believe that Hitler was a bad man: this does not require me to believe that he ate human flesh.”

“. . . considered purely in itself, the revisionist material is as persuasive as that of the mainstream historians. At least one side in this debate is lying, and lying very fluently—but I am not able, on the basis of the evidence offered, to say who is lying.”

“I believe in the central fact of the holocaust. On the secondary issues mentioned above, where my authorities do not agree, I suspend judgment. Take away the freedom to argue with or against these authorities, though, and my assurance that they are right must be weakened.”

“Laws to compel belief in the holocaust do not mean it did not happen. But they do allow people to ask what kind of truth this is that needs laws to defend it. There are many people who know even less about the holocaust than I do, and who deny that it happened simply because David Irving is generally acknowledged to be an expert of sorts on the period, and he had to be locked up before he would shut up.”

Enough spoilers. Read the article. And as uniformity means just that, be prepared to defend in the near future not only “thought-criminals,” but their defenders as well.

Defending the Right to Deny the Holocaust
by Sean Gabb

Last week, on the 19th April, the Justice Ministers of the European Union agreed to make "incitement to racism and xenophobia" a criminal offence in all 27 member states. Despite the best efforts of the German Government, this does not mean that sceptical comments on the holocaust will become a crime in any European country where it is not so already. I am surprised that the British Government held out for a moderating of the final document so that all speech short of "incitement" will remain free.

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The governments of two self-proclaimed “free countries," Canada and Germany respectively, have long regarded Ernst Zündel, a writer of pacifist conviction, of being a “threat to national security” and a “speech criminal.”

They never could have had the opportunity to persecute him under their edicts, however, unless the police apparatus of a third self-proclaimed “free country,” the United States of America—which to this day ceremoniously boasts of its libertarian heritage—selectively, and violently, applied its immigration “laws” by kidnapping him.

Many foreign trespassers upon American private property have compounded their transgression by engaging in the murder, rape, or robbery of Americans. In the eyes of our masters, however, Ernst Zündel is far worse than any murderer, rapist, or robber.

You see, he is a man who dares to withhold assent to that which he does not believe, even when our masters insist that what is proposed for his assent is a holy dogma that all decent human beings must affirm or, at the very least, never publicly question, let alone deny.

Ernst Zündel, who had long lived in Canada, came to reside in Tennessee at the invitation of his wife, an American citizen, Ingrid Rimland. He now languishes in a German cell (and may not re-enter the United States until 2023) while Americans “debate” amnesty for millions of trespassers.

In their lack of interest in this grave injustice, Americans, by whom I especially mean descendents of those who were Catholics in 1500, have revealed themselves to be as spiritually sick as their trans-Atlantic cousins.

Because the recent appellate decision unfavorable to Ernst Zündel was issued per curiam (explained below), I am publishing a report of the details of this legal farce, forwarded to me from a friend, who in turn received it in an e-mail broadcast by Mrs. Zündel.

I encourage kindred spirits among my visitors to disseminate the contents of this post far and wide.

Anthony Flood

Sixth Circuit Court of Appeals Proves Politically Correct in Latest Zündel Ruling

By Fred Lingel

In a decision issued Feb. 27, the Court of Appeals for the Sixth Circuit in Cincinnati has unanimously upheld a lower court’s judgment stripping historian and pacifist Ernst Zündel of his right to be heard on a petition for writ of habeas corpus which was filed when Zündel was first arrested by U.S. authorities in February 2003.

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The court held that the controversial German publisher had effectively bargained away his right to appear before a court because he last entered the United States under the Visa Waiver Pilot Program (VWPP) in May 2000. The court of appeals ignored Zündel’s arguments based on the U.S. Constitution and rejected his argument based on the expiration of the VWPP April 30, 2000.

Zündel has asserted that, because the VWPP had sunset by the time of his May 2000 entry, the attorney general and INS could not have permitted him entry as a “visa waiver” alien in May 2000, and were not entitled to enforce the agreement that “visa waiver” candidates have to enter into as a condition for not having to obtain a visa. Zündel was in a routine waiting period for U.S. permanent residence through his U.S. citizen wife, Ingrid, at the time of his arrest.

“Once again, Ernst Zündel has been betrayed by a federal judiciary which, in its rush to judgment, has tread roughshod on the Constitution and the letter and intent of the law in order to achieve a politically correct result,” said Zündel’s attorney, Bruce Leichty.

There is no precedent for denying an individual of Zündel’s immigration status a hearing on a habeas petition, said Leichty, who noted that the courts have routinely extended habeas rights even to illegal immigrants.

Recent appellate decisions have focused on whether enemy combatants held outside the United States have the right to habeas proceedings, but Zündel was never labeled as an enemy combatant or terrorist-despite ultimately being declared a “national security” risk by Canadian authorities after his summary removal from the United States.

“The law in this area is well established,” said Leichty, “and a different panel of the Sixth Circuit recognized in an earlier decision that immigrants like Zündel can obtain habeas hearings even after they are deported if they face a 20-year bar like the one imposed on Mr. Zündel. But this panel was not willing to apply the law.

“At the time of his arrest, Ernst Zündel was a target of several countries based on his controversial historical views about ‘the Holocaust,’ and even though he was protected by the First Amendment [in the United States], those protections have proved meaningless without judges willing to uphold them,” notes Leichty.

If the decision is allowed to stand, Zündel would be banned from reentering the United States until 2023. He is currently 67 years old.Just weeks before the Sixth Circuit decision, he was convicted in a German courtroom of “inciting racial hatred” because of his Holocaust revisionist views. Zündel asserted that he is a pacifist who is neither anti-Semitic nor racist but that he is simply a champion of his German people, and that he has the right to express different views about what happened during the World War II, including what happened to Jews.

Zündel will seek a rehearing from different judges at the Sixth Circuit based on the unconstitutional suspension of his habeas rights and on known conflicts of interest of at least two members of the panel, says Leichty. One of the judges gave a prohibited campaign contribution to the Bush reelection campaign after being appointed to the federal bench and another has a daughter working in Tennessee for the U.S. attorney’s office, which handled the opposition against Zündel’s petition in a Knoxville federal court.

Zündel’s attorney says he discovered both facts after the case was argued in January 2007. The judges adopted almost to the letter the argument of the Justice Department that sought to assert a distinction between the expiration of a “Visa Waiver Pilot Program period” and the expiration in April 2000 of the attorney general’s visa waiver authority itself-a distinction which was farcical, says Leichty.

The February appellate decision was issued “per curiam,” meaning that none of the judges acknowledged writing the decision, and it was designated “not for publication.” There have been recent attempts to limit the extent to which federal judges can issue unpublished decisions because it is believed that judges are less accountable to the law if they know their decisions will not be widely read and inspected, notes Leichty.

Only if Zündel was found to have entered the United States under the VWPP could the authorities have even thought about arresting him without a hearing, says Leichty. Typically, persons alleged to be deportable get hearings in front of immigration judges. Moreover, Leichty adds, even as to visa waiver entrants there are no published federal court decisions in which a court has ever denied jurisdiction over a habeas petition filed by someone who overstayed his visitor status.

Leichty states that at the time of Zündel’s arrest, INS had a policy of not taking deportation action against immigrants awaiting permanent residence through U.S. citizen spouses, even if they had overstayed visa waivers. Zündel had been given work authorization in the United States and permission to leave and reenter. Because a Knoxville judge and now the Sixth Circuit have claimed not to have jurisdiction, however, he has never been able to present those arguments. When Zündel challenges the latest decision, that will mean that he will have legal challenges pending in three countries. He has appealed his German “thought crime” conviction, and is also hoping to benefit from a recent Canadian Supreme Court decision which held that the “security certificate” proceedings under which he was detained in Canada are unconstitutional, because they permit secret evidence.

After a Canadian court declared him to be a national security risk, the Canadian government spent over $100,000 on a charter plane to fly Zündel to Germany, where he was promptly arrested on criminal speech charges for views expressed in Canada and the United States.

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