Tuesday, February 23, 2010

Secure Communities -- Does Its Job?

By William Fisher

A little-known program run by the Department of Homeland Security is using inaccurate databases and functioning “as little more than a dragnet to funnel even more people into the already overburdened” detention and deportation system of the Immigration and Customs Enforcement (ICE) agency.

This is the assertion being made by three civil rights organizations that have filed a request under the Freedom of Information Act (FOIA) asking for information on a program known as “Secure Communities.”

The program, which ICE claims targets “dangerous criminal aliens,” further involves local and state law enforcement agencies in federal immigration enforcement. The three groups say that since the inception of the program, there has been a marked increase in racial profiling, excessive costs to state and local government and due process violations.

The groups are the National Day Laborer Organization Network (NDLON), the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.

Sunita Patel, a CCR staff attorney, told Truthout, “Our principal concern is that this is a very secretive program about which there is little public information. It is being implemented in communities, but the lack of transparency makes it impossible for community groups to determine whether abuses are being committed. We hope our FOIA suit will shed some light on the issue.”

“This program is designed to fail because it relies on information from infamously inaccurate databases. We’ve already seen an increase in racial profiling, pre-textual arrests and mistaken identity of U.S. citizens,” she said, adding, “Combined with the lack of regulation and publicly available information on Secure Communities, ICE will be essentially immune to accountability or transparency. With a budget reaching the billions, taxpayers should be very concerned.”

The Secure Communities program has been implemented in at least 95 jurisdictions with plans to expand nationwide by 2013. The opposition groups says it includes a biometrics component that requires an individual’s fingerprints to be run through multiple databases upon arrest for any reason, even if no charges are brought.

Advocates and attorneys say that in addition to concerns presented by relying on potentially inaccurate and erroneous information in those databases, the program functions as little more than a dragnet to funnel even more people into the already overburdened ICE detention and removal system.

The FOIA request covers materials necessary to provide the public with comprehensive information on the Secure Communities Program, including policies, procedures and objectives; fiscal impact; data and statistical information; individual records; communications; and assessment records.

ICE, part of the huge Department of Homeland Security, has come under continuous attack, mostly from the left of the Democratic Party base, including immigration, labor and human rights advocates. Formed by the merger of several agencies when DHS was created following the terrorist attacks of 9/11, ICE has been seen as unnecessarily rough on suspected illegal immigrants, many of whom are detained in prison-like conditions without proper medical care or access to family members or attorneys.

Nina Bernstein of The New York Times recently exposed ICE’s efforts to cover up the unreported deaths of several people who were held in its detention facilities.

Immigration and labor advocates have lost no time in pushing back at what they consider to be serious shortcomings in the Secure Communities program.

Pablo Alvarado, executive director of the National Day Laborer Organizing Network told Truthout, "The Secure Communities program is 287(g) with lipstick. These programs increase racial profiling and civil rights abuses, erode community policing, and lack oversight and accountability. They are failed programs. The way to solve the nation's immigration problems is not by criminalizing and deporting hard working families. We expect real solutions from the Obama Administration not a civil rights and human rights crisis in the making."

Section 287(g) of the national immigration law allows DHS to deputize local law enforcement officers to become “immigration police.” The program, while still expanding, has been severely criticized by many, including law enforcement officials. The principal objections are that local police and sheriffs do not understand immigration law and that enforcing immigration laws draws officers’ attention away from local law enforcement issues.

Some of the most vocal criticism of 287(g) has been triggered by the activities of “America’s Toughest Sheriff”, Sheriff Joe Arpaio of Maricopa County (Phoenix) Arizona. Currently under investigation by the Justice Department for civil rights violations, Arpaio has outraged civil rights and immigration leaders by conducting unlawful raids on homes, offices and factories, practicing racial and ethnic profiling in making arrests, and operating a jail with substandard conditions.

As the New Yorker magazine reported, “Prisoners have filed thousands of legal claims of abuse against Arpaio and his deputies – and by families of those who’ve died under his watch. A federal investigation found Arpaio’s deputies used “stun guns” on inmates strapped into restraint chairs; some have died in those chairs. One lawsuit brought by a dead prisoners’ family ended in an $8 million settlement after a surveillance video that showed fourteen guards beating, shocking, and suffocating the prisoners, and after the sheriff’s office was accused of discarding evidence, including the crushed larynx of the deceased.”

But DHS Secretary Napolitano staunchly defends both the 287(g) program and the Secure Communities initiative.

Secure Communities, she says, “was designed to facilitate access to timely and accurate information about state and local arrests to better identify criminal aliens and to prioritize those who are the most dangerous for removal from the United States. As Starr County and 94 other jurisdictions across the country have learned first hand, it does its job.”

During a press conference at ICE Headquarters in Washington, D.C., Napolitano noted that “Secure Communities provides our local partners with an effective tool to identify and remove dangerous criminal aliens who pose a threat to public safety.” The program has significantly enhanced ICE’s ability to identify criminal aliens. In one year, the initiative enabled ICE to identify more than 111,000 criminal aliens when they were arrested and booked by state or local law enforcement, she said.

The DHS website proclaims that both the concept and the initiative of Secure Communities “is made possible through partnerships among DHS components, the Department of Justice, and state and local law enforcement. Over the last year, these partnerships have enabled Secure Communities to enhance biometric information-sharing technology supporting the criminal booking processes across 11 states. This technology enables biometrics—fingerprints—collected during the booking process to be checked against FBI criminal history records and DHS immigration records. When ICE officials receive notification of an immigration record match, they can promptly determine if enforcement action is required and take appropriate action.”

But Bridget Kessler, Clinical Teaching Fellow at Cardozo law school in New York City, told Truthout that because of the widespread known inaccuracies in the DHS immigration database and the FBI’s criminal database, “there is a huge risk that innocent people will be misidentified.”

She added, “Few people in that position have the resources to contest their inclusion in these databases. And once you’re in one of these databases, it’s virtually impossible to get out.”

“By 2013, the plan is to install the Secure Communities program in every single jail in the country,” she said. “Given that scope and reach, the complexity of the program, and its ability to seriously impact communities all over the country, it’s inconceivable that DHS would not want to release more information than is currently available.”

But the DHS is equally vehement in its defense of the program. It does not think it is being secretive. It says, “Secure Communities was designed to facilitate access to timely and accurate information about state and local arrests to better identify criminal aliens and to prioritize those who are the most dangerous for removal from the United States.”

Secure Communities, says DHS, “does its job.”

DHS Secretary Napolitano says that “Secure Communities provides our local partners with an effective tool to identify and remove dangerous criminal aliens who pose a threat to public safety.”

She says the program has significantly enhanced ICE’s ability to identify criminal aliens. In one year, the initiative enabled ICE to identify more than 111,000 criminal aliens when they were arrested and booked by state or local law enforcement.

“Secure Communities, both the concept and the initiative, is made possible through partnerships among DHS components, the Department of Justice, and state and local law enforcement. Over the last year, these partnerships have enabled Secure Communities to enhance biometric information-sharing technology supporting the criminal booking processes across 11 states. This technology enables biometrics—fingerprints—collected during the booking process to be checked against FBI criminal history records and DHS immigration records. When ICE officials receive notification of an immigration record match, they can promptly determine if enforcement action is required and take appropriate action,” says the DHS web site.

In a related development, the New York Times has revealed that immigration authorities allegedly colluded with Signal International, L.L.C., a Mississippi oilrig company, to punish and deport legal immigrant workers who chose to exercise their labor rights.

The Lawyers' Committee for Civil Rights Under Law and the New Orleans Workers' Center for Racial Justice, presenting evidence obtained as part of a lawsuit against the agency, revealed that ICE “advised and instructed the company on how to undermine labor laws, skirt DHS regulations related to proper termination of worker visas, ‘privately’ deport legal workers and craft a communications and public relations strategy for Signal as media outlets began to report on the situation.”

The organizations said the exposure of misconduct by ICE agents towards the workers in this case is “yet another chapter in a larger saga of questionable behavior by ICE employees.”

“The Signal case is a clear example of how workplace abuses are flourishing in the absence of a working immigration system. While these immigrant workers were vital to the reconstruction of New Orleans, they were helpless to assert their rights,” said Ali Noorani, Executive Director of the National Immigration Forum.

He told Truthout, “This is another reason why Congress needs to act now to fix our broken immigration system through comprehensive immigration reform. When we protect the rights of immigrant workers, we strengthen and safeguard the rights of all workers in America.”

The Times reported that immigration authorities worked closely with a marine oil rig company in Mississippi to discourage protests by temporary guest workers from India over their job conditions, including advising managers to send some workers back to India, according to new testimony in a federal lawsuit against the company, Signal International.

It said cooperation between the company and federal immigration agents was recounted in sworn depositions by Signal managers who were involved when tensions in its shipyard in Pascagoula, Miss., erupted into a public clash in March 2007.

“Since then, hundreds of the Indian workers have brought a civil rights lawsuit against the company, claiming they were victims of human trafficking and labor abuse. Signal International is fighting the suit and has sued American and Indian recruiters who contracted with the workers in India. The company claims the recruiters misled it — and the workers — about the terms of the work visas that brought them to this country,” The Times reported.

Saket Soni, director of the New Orleans Workers’ Center for Racial Justice,
which represents some workers in the lawsuit, said the managers’ testimony
showed that immigration enforcement agents had “advised the corporation on how to retaliate against workers who were organizing,” The Times reported.

The controversy over Secure Communities comes at time of record immigration prosecutions of non-violent border crossers.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University, and the Warren Institute at the University of California at Berkeley, recently released reports highlighting the dramatic increase in federal immigration prosecutions and the link to Operation Streamline, a DHS program which mandates federal criminal prosecution of all persons caught crossing the border unlawfully.

The Warren Institute report highlights the impact of Operation Streamline on immigration enforcement. The TRAC report shows that federal immigration prosecutions rose to record levels during fiscal year 2009 and how a shift in priorities has created the largest number of federal immigration prosecutions of non-violent border crossers ever.

Immigration advocates say the trade-off is that while the federal government spends billions of dollars prosecuting non-violent immigration violators, more serious criminals involved in drugs, weapons, and organized crime face a lower probability of prosecution.

President Obama has said comprehensive immigration reform is high on his agenda of priority issues. But with both House and Senate deeply polarized by partisan loyalties, it is unclear how the president and lawmakers will steer this highly controversial subject through the legislative process.

This article was originally published in Truthout.org (www.truthout.org).

Cell Phone Surveillance?

By William Fisher

If you own a cell phone, you should care about the outcome of a court case that “could well decide whether the government can use your cell phone to track you — even if it hasn't shown probable cause to believe it will turn up evidence of a crime.”

That was the warning issued to the public by several major civil liberties organizations as they appeared in federal court in Philadelphia to argue for more privacy protections in the use of cell phones as tracking devices by law enforcement agents.

The case is at the heart of the Constitutional crisis now being played out in the US federal court. Civil liberties groups are asking the court to require that the government show probable cause before it can track your whereabouts.

The groups are the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the ACLU of Pennsylvania, and the Center for Democracy and Technology (CDT).

Back in 2007, the U.S. government applied for court permission to obtain information about the location of an individual's cell phone, without showing probable cause that tracking the individual would turn up evidence of a crime. A magistrate judge denied the government's request and a district court upheld that decision in September 2008. The government is appealing the ruling in the U.S. Court of Appeals.

A number of civil liberties groups, on behalf of plaintiffs in the case, filed a friend-of-the-court brief in support of the district court decision, arguing that district courts must require the government to show probable cause before permitting the government to obtain information about the location of a cell phone.

The appeals court will decide whether government agencies in Pennsylvania, New Jersey and Delaware must show probable cause before tracking people's cell phone locations.

EFF explains that, although most people don't realize it, cell phones double as tracking devices. “Newer phones contain GPS chips, the same technology that allows car navigation systems to know where you are and give you driving directions. But even older phones that don't have chips can be tracked by knowing the location of the cell towers they use to connect to a network,” the group said, adding,

“There's no question that cell phones and cell-phone records can be useful for police officers who need to track the movements of those they believe to be breaking the law. And it is important for law enforcement agents to have the tools they need to stop crimes. However, it is just as important to make sure such tools are used responsibly, in a manner that safeguards our personal privacy.”

And Professor Francis A. Boyle of the University of Illinois law school told us, “This practice violates the Fourth Amendment to the United States Constitution: ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched....’ The Bush administration reduced the Fourth Amendment to nothing more than a Potemkin Village of rights. It exists on paper alone. And a pusillanimous Congress has gone along with shredding the entirety of the U.S. Bill of Rights.”

He added, “President Obama, the former constitutional law professor, is actively defending in court every hideous atrocity that the Bush administration inflicted upon the Bill of Rights, civil rights, civil liberties, human rights, international law, and the United States Constitution with the acquiescence and/or approval by Congress.”

This issue gained national attention during last year's gubernatorial race in New Jersey. Documents turned over in EFF’s lawsuit revealed that “the U.S. Attorney's Office — under Chris Christie, now the governor — was tracking cell phones without probable cause, in violation of a Justice Department recommendation,” EFF said.

The decision reached by the Philadelphia-based 3rd Circuit U.S. Court of Appeals will not only bind federal courts throughout Pennsylvania, New Jersey, and Delaware. It will also be a key source of guidance to courts around the country as they grapple with this issue.

The plaintiffs in the court case hope the court will “send a message that merely carrying a cell phone should not make people more susceptible to government surveillance.”

They add, “No one wants to feel as if a government agent is following her wherever she goes — be it a friend's house, a place of worship, or a therapist's office — and innocent Americans shouldn't have to feel that way.”

The government has argued that "One who does not wish to disclose his movements to the government need not use a cellular telephone." But the civil liberties groups say this is “a startling and dismaying statement coming from the United States. The government is supposed to care about people's privacy. It should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool.”

The case has drawn considerable national attention. One of the country’s foremost investigative journalists, Michael Isikoff of Newsweek, addressed the issue in a recent edition of the magazine.

He wrote, “Law enforcement is tracking Americans' cell phones in real time -- without the benefit of a warrant. Amid all the furor over the bush administration's warrantless wiretapping program a few years ago, a mini-revolt was brewing over another type of federal snooping that was getting no public attention at all.”

“Federal prosecutors were seeking what seemed to be unusually sensitive records: internal data from telecommunications companies that showed the locations of their customers' cell phones -- sometimes in real time, sometimes after the fact. The prosecutors said they needed the records to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials. But many federal magistrates -- whose job is to sign off on search warrants and handle other routine court duties -- were spooked by the requests. Some in New York, Pennsylvania, and Texas balked, he wrote.”

“Prosecutors ‘were using the cell phone as a surreptitious tracking device,’ said Stephen W. Smith, a federal magistrate in Houston. "And I started asking the U.S. Attorney's Office, 'What is the legal authority for this? What is the legal standard for getting this information?' Those questions are now at the core of a constitutional clash between President Obama's Justice Department and civil libertarians alarmed by what they see as the government's relentless intrusion into the private lives of citizens.”

Two years ago, a U.S. magistrate in Pittsburgh ruled that the data they were seeking could easily be misused to collect information about sexual liaisons and other matters of an "extremely personal" nature.

In federal appeals court last week, a Justice Department lawyer urged the judges to overturn the magistrate’s ruling. They claimed the government was seeking "routine business records."

But after one of the judges said there were some governments, like Iran's, that would like to use such records to identify political protesters. She asked whether the “government can assure us” that the Justice Department would never collect cell-phone data for this kind of use in the U.S.

The government lawyer grudgingly acknowledged that such data “could be used constitutionally.”


By William Fisher

The U.S. Central Intelligence Agency (CIA) briefed members of Congress from both political parties numerous times about the agency’s interrogation and detention programs, said several prominent human rights groups today.

The groups -- Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law – filed a lawsuit in 2007 based on their requests for information about the program under the Freedom of Information Act (FOIA) The FOIA requests, dating back to 2004, sought records about rendition, secret detention, and "enhanced" interrogation.

The rights groups announced receipt of several new documents in response to their FOIA litigation. Among other new information, the documents show that:

While Vice President Cheney’s role in authorizing waterboarding and other so-called enhanced interrogation techniques has been public, a newly obtained February 4, 2003, CIA memo documents the role of Counsel for the Office of the Vice President (OVP) in analyzing and approving the CIA techniques.

David Addington was counsel to the Vice-President until he succeeded Lewis “Scooter” Libby, who was convicted of perjury in the “outing” of CIA agent Valerie Plame. Libby’s prison sentence was commuted by then President George W. Bush.

The rights groups said that, according to CIA meeting records and the February 4, 2003 memo, it seems that in one of his first acts as chair of the Senate Select Committee on Intelligence, Republican Senator Pat Roberts of Kansas “discontinued efforts by previous chair,” Democratic Senator Bob Graham of Florida, to implement greater oversight of these programs, “thus abdicating the role of Congress in overseeing the CIA rendition, secret detention, and torture programs.”

There are “significant questions about how clear the CIA was with Congress” (including in then-CIA Director Michael Hayden’s previously classified briefing on April 12, 2007 to the Senate Intelligence Committee) about the timing, nature, and results of the interrogation of Abu Zubaydah, including particularly interrogation prior to the August 1, 2002 memo prepared by the Justice Department’s Office of Legal Counsel (OLC).

It is known that Zubaydah was subjected to waterboarding 83 times in 2002. OLC lawyers at the time, John Yoo and Jay Bybee, were the principal drafters of that memo, which has come to be known as “the torture memo.”

Chip Pitts, President of the Bill of Rights Defense Committee and former chair of Amnesty International USA, told IPS, “In order to finally achieve the transparency and accountability that is so indispensable to learning lessons and avoiding calamitous policy failures like the prior administration’s recourse to torture, the need is clearer than ever for a broad and impartial criminal investigation of all the facts surrounding the torture program.”

He added, “No lawyer or other official, high or low, should be immune from the investigation and prosecution required by our national interest, domestic law, and the international treaty obligations the country has undertaken under the Convention Against Torture.”

Gitanjali Gutierrez, attorney for the Center for Constitutional Rights, said,
“Members of Congress must come clean about whether they encouraged or objected to torture during these many secret meetings with CIA officials and we need a complete accounting of Cheney’s counsel, David Addington’s, role in the creation of the torture program. These new documents show that the CIA may have lied to Congress about the role of interrogation techniques in detainee deaths and key members of Congress abdicated their oversight role. This new information points even more strongly to the need for a full criminal investigation of the torture program, up the entire chain of command."

In a related development, after years of stonewalling, an official Polish government agency has admitted that airspace and landing facilities in that country were used by the U.S. Central Intelligence Agency (CIA) to detain, house and transport terrorism suspects.

It was the first time Polish authorities have admitted that their country houses one of the CIA’s so-called “black sites” -- part of the agency’s network of secret prisons. The CIA kidnapped suspected Al Qaeda members and transported them to the black site prisons, where they were subjected to so-called “enhanced interrogation” techniques as part of the C.I.A.’s program of “extraordinary rendition.” program.

Prosecutors in Poland are now investigating the country’s participation in the program.

The admission from the Polish Air Navigation Services Agency (PANSA) came in response to charges by two rights groups, the Open Society Justice Initiative and the Helsinki Foundation for Human Rights. PANSA confirmed that it provided the flight logs showing six flights in 2003 by two aircraft. Five of the flights reportedly originated in Kabul and one in Rabat, Morocco. They landed about 100 miles north of Warsaw, at a small airport in a town called Szymany.

It is widely known that Khalid Shaikh Mohammed, the self-styled mastermind of the 9/11 attacks, was interrogated there in 2003, but neither PANSA nor the CIA would confirm this.

Approximately 100 prisoners were detained in the black site prisons between the program’s inception in 2002 and the transfer of the remaining 14 prisoners to Guantánamo Bay in Cuba in 2006.

Maciej Rodak, vice president of PANSA confirmed to The New York Times that the agency had sent the records to the human-rights groups. He said the agency confirmed information on flight origins, planned destinations and call signs but could not provide passenger lists, which the groups also requested.

“The thing that is quite shocking is that the European investigations requested these specific flight records some four years ago,” said Darian Pavli, an attorney with the Open Society Justice Initiative, a nonprofit human-rights group in New York. “The Poles all these years said they could not locate them, the flights didn’t exist.”