Saturday, January 22, 2005

Column: Moshe Feiglin Can Run

Last week, Justice Yaakov Tirkel, chair of the Central Election Committee in Israel ruled that Moshe Feiglin, head of Likud's Manigut Yehudit (Jewish Leadership) will be permitted to run in the next Knesset elections.

Judge Tirkel reversed the committee's earlier decision that found Feiglin's criminal conviction for anti-Oslo political activity a crime of "moral turpitude." As a result, the ban that was placed on Feiglin from running for the Knesset for 7 years has been lifted.

There has been, with the exception of Arutz 7 almost nothing on this story. I was unable to find a transcript of the decision or any commentary on it online. Consequently, it is a little difficult to write much about the decision. The natural reaction is to be relieved that they came to their senses and be grateful that they did and leave well enough alone. However, there is a problem with this. It leaves the committee empowered to do the same or worse again. Admittedly, I was complacent about the whole thing and while suspicious of the motives of the committee -- were they throwing a bone to the right to take some heat off of Sharon? -- I read the report on Arutz 7 and thought to myself; "waddaya know"?

However, it happened, that I was then shaken from my complacency by a reading of Justice Scalia's recent opinion in Jama v. INS.

From the transcript of J. Scalia's opinion:

"When an alien is found ineligible to remain in the United States, the process for selecting the country to which he will be removed is prescribed by 8 U.S.C. 1231(b)(2). The question in this case is whether this provision prohibits removing an alien to a country without the explicit, advance consent of that country's government."

"Petitioner Keyse Jama was born in Somalia and remains a citizen of that nation. He was admitted to the United States as a refugee, but his refugee status was terminated in 2000 by reason of a criminal conviction. See Jama v. INS, 329 F.3d 630, 631 (CA8 2003). The Immigration and Naturalization Service (INS) brought an action to remove petitioner from the United States for having committed a crime involving moral turpitude. Ibid.; see 8 U.S.C. 1182(a)(2)(A)(i)(I), 1229a(e)(2)(A)."

Seeing the familiar phrase "moral turpitude" there I thought back to our subject and clicked on the hyper link to the Code US Code section 1182 and found there in (a)(2)(A)(i)(I) the law that relates to Inadmissible Aliens and crimes of moral turpitude.
The Code here delineates reasons for barring aliens and in this section it discusses criminal convictions:

(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or...

The question I asked myself is whether purely political offenses are excluded from the definition of crimes of moral turpitude across the board or is this section of the law somehow extraordinary. In other words, are purely political offenses ever considered an act of moral turpitude?

To begin my search I looked for the definition of moral turpitude. defines moral turpitude as follows:

"n. gross violation of standards of moral conduct, vileness. An act involving moral turpitude is considered intentionally evil, making the act a crime. The existence of moral turpitude can bring a more severe criminal charge or penalty for a criminal defendant."

I also perused lists of crimes of some of the states and found nothing that resembles a purely political offense defined as a crime of moral turpitude. It seems clear that purely political offenses are not considered acts of moral turpitude anywhere in the US and that the above quoted US Code section 1182 is meant to protect political activity by excluding it from the definition of moral turpitude in order to protect that activity in the event that a state criminal statute might include it.

So, the question remains, how could the Central Election Committee ban Moshe Feiglin from running for office in Israel for his conviction on anti-Oslo activities by defining those activities as involving moral turpitude when those activities were purely political? Were answers given back then that explained the decision better than their recent reversal on that decision has been explained or discussed? I don't recall that there were. Looking at it more closely now in the light of Jama, the whole thing looks worse than it did before, even though, at least for now, the result is better.

Clearly, Israel's Central Election Committee and Israel's High Court are not bound by American Law, but the question remains, what indeed are they bound by?


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