Can Richard Goldstone Be Barred from U.S.?

by Julian Ku

I seriously doubt it, but Richard Sher, a former Department of Justice official in the Office of Special Investigations, thinks Goldstone’s apartheid-era past justifies denying Goldstone a visa to the U.S.

In a letter sent to US officials, Neal Sher, a former executive director of the American Israel Public Affairs Committee, said that recently disclosed information about Goldstone’s apartheid-era rulings raised questions about whether he was eligible to enter the United States. The letter was sent to US Secretary of State Hillary Clinton, US Attorney-General Eric Holder and Homeland Security Secretary Janet Napolitano.

Individuals who admit to acts that constitute a crime of moral turpitude¨are ineligible to enter the US, Sher charged. The recent public revelations, to which Goldstone has reportedly admitted, would appear to fit within this provision. At a minimum, there is ample basis for federal authorities to initiate an investigation into this matter, Sher said.

I’m no expert on the relevant U.S. laws here, but my impression is that this power to bar based on “moral turpitude” has been rarely exercised. See INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i), (barring admission of alien who has been convicted of a crime involving moral turpitude or who admits committing acts that constitute the essential elements of such a crime).  And I’m less than sure they would apply to serving as a judge in the Apartheid era, although that is certainly debatable.  I suppose one could make the case that Goldstone authorized “extrajudicial killings” (“a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”), although I don’t think the facts support that view. For a little background on the laws here, see here.

http://opiniojuris.org/2010/05/16/can-richard-goldstone-be-barred-from-us/

13 Responses

  1. That is really funny.. I wonder sometimes whether American lawyers most precious American value is thier legal hypocrisy…

    Moral turptitude for apartheid… when poor blacks under apartheid had the highest living standards on the entire african continent…

    but lets not worry with facts… when some lawyers have got themselves a scapegoat for legal lynching right?

  2. And lest I forget.. about those alleged extra-judicial killings; those only occurred, after the ANC declared war on the apartheid goverment, cause Gandhian nonviolence was so boring and not nearly as exciting and adventurous as necklace killings and fanonstein torture al la Quatro.

    So, what do you think would be the CIA and American Judiciary’s response if Al’Qaeda was running around every American ghetto, and giving every single black or Latino policeman the necklace treatment, to force all blacks and latino’s to join Al’Qaeda?

    May I suggest your judicial officials would have considered Goldstone’s moral turpitude mild, considering your judiciary’s handling of Jose Padilla.

    What about that legal immigrant who was illegally arrested, detained and deported from the streets of San Francisco? The same one the City Attorney condones being illegally deported, while screaming ‘racist’ against Arizona. Or may legal immigrants be illegally deported, and illegal immigrants have rights that legal immigrants do not… 

    You should vote for a new amendment — The right of American lawyers to legal hypocrisy and fraud, as their most cherished legal lynching right.

  3. Professor Ku:

    What you fail to mention is that this crusade against Richard Goldstone is a direct response to and indeed a big part of an Israeli PR effort to undermine what Israel sees as a threat to its international reputation.  Indeed an official from the Israeli Foreign Ministry recently commented that the Goldstone-Apartheid connection was “explosive material” that would be sent to all Israeli representatives to include in their PR materials. 

    http://www.ynetnews.com/articles/0,7340,L-3885999,00.html

    Now, none of this negates Goldstone’s role as a judge within the Apartheid regime but it seems to me that selectively emphasizing some cases in which he failed to write blistering dissents or other cases in which he upheld laws that were morally reprehensible is intellectually dishonest.  Goldstone dissented where many other judges refused to and played a crucial role in undermining – not upholding – the apartheid regime.  One can question his initial decision to become a judge within that legal system at all, but his judicial record was hardly comparable to Nazi judges, as many are alleging.  If it were, its doubtful that Mandela would have tapped him to be on the high court.  Moreover, to the extent that someone like Goldstone would be barred, Benjamin Netanyahu would certainly also be barred for his support of the Apartheid regime.  Check out this Foreign Policy Magazine blog post, which makes the case:

    http://mideast.foreignpolicy.com/posts/2010/05/10/gold_stones_glass_houses

    Do you want to write a blog post suggesting that Netanyahu should be inadmissible to the United States?  I’m assuming not…

  4. The USA should ban Dick Goldstone because the USA congress voted that his Gaza report was biased. Thus a waste of U.N. money. Thus American taxpayer money.

  5. This power to bar based on “moral turpitude” is actually exercised VERY often. It in fact is regularly used to deny admission to foreign nationals on an almost, if not, daily basis. Each foreign national must demonstrate that he or she is not subject to any provision in INA Section 212, which includes the moral turpitude ground. AND this means that even if you were not convicted in a court but admit to the elements of the crime, you are subject to this ground.  Finally, you should keep in mind that even if convicted and the conviction is later expunged, under the INA and related decisional law, the conviction still remains a conviction under the INA.

  6. Raha, I disagree.  Legitimate cross of an expert witness:

    1- the Goldstone report did not criticize Israel only.  The Goldstone Report did lay blame on the gazans who fired rockets deliberately into Israeli civilian areas.   They also hid their rockets in civilian areas.
    (Side Bar Question) So what exactly was the IDF suposed to do to counter this rocket barrage?  Refrain from attack? If the gazans didnt fire rockets into southern Israeli towns there would not have been an Israeli reprisal.  Sounds like legit self defense to me.

    2 – The fact that Goldstone was a participant in apartheid (not merely a supporter of apartheid) and following orders with regard to executing blacks makes him less of a “visionary” and more subject to human failings.  I think its fair and even appropriate to point out that he appears to be using a double standard unless of course he admits he violated int’l law by sending blacks in S Africa to their deaths.

  7. Does banning Mr. Goldstone further any important US interest?  None that I can think of… if we barred people from the US for wasting our money via the UN, as Mr. Turner suggests, it’d be impossible for us to host the UN.

  8. So what exactly was the IDF suposed to do to counter this rocket barrage?  Refrain from attack? If the gazans didnt fire rockets into southern Israeli towns there would not have been an Israeli reprisal.  Sounds like legit self defense to me.

    It is a basic principle of IHL that violations of the laws of war by one belligerent does not free the other belligerent from those laws.  What was Israel supposed to do?  Only launch proportionate attacks or rely on less indiscriminate methods of self-defense.

  9. Dear Kevin,  You state Israel was supposed to (a) either launch proportionate attacks or (b) rely on less indiscriminate methods of self-defense.

    What proportionate responses were available? 
    I think the Israelis were already proportionate inasmuch as they did not counter attack immediately but waited months for “international pressure” to work to get Hamas to stop firing rockets.  How long were they suposed to wait while their civilians were targeted?  The Israelis gave them plenty of warnings to stop and Hamas refused.

    Less indiscriminate?  The Hamas military is embedded into the civilian infrastructure of gaza.  It is impossible not to have collateral damage in these situations.  

    Kevin, If Melbourne were under rocket assault on a daily basis from an adjoining territory what would the ADF do?  

  10. It is a basic principle of IHL that violations of the laws of war by one belligerent does not free the other belligerent from those laws.  What was Israel supposed to do?  Only launch proportionate attacks or rely on less indiscriminate methods of self-defense.

    Really?  I think its a basic principle of IHL not to start a war to begin with.  Like I said initially, had the gazans not started there would not have been an Israeli counter attack in the first place.

  11. Response…

    This is the same Neal Sher who was disbarred for helping himself to money that was meant to be used to reimburse Holocaust survivors:

    http://www.forward.com/articles/8043/

  12. Tom,

    Actually, IHL says absolutely nothing about whether it is legitimate to start a war.  Another basic principle of IHL — perhaps the most basic — is that there is a strict separation of the jus ad bellum and the jus in bello.  IHL applies to both sides equally regardless of whether the armed conflict was initiated by an unlawful act of aggression.

    If you want to defend Israel’s actions, fine.  But you might want to learn something about IHL before you invoke it.

  13. BA,

    I would hope that Australia would use armed force to prevent future attacks in a manner consistent with IHL.

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