By William Fisher
The courts and the American prison system regularly fail defendants by convicting innocent people and locking them up, sometimes sentencing them to execution for crimes they did not commit.
Many legal experts felt this to be the case when Troy Davis, who was executed last week after failing to be granted a hearing by any county, state or federal official,
Doubtless Troy’s execution was a cause of deep consternation in the offices of The Innocence Project, which is dedicated to seeking the exoneration of convicted inmates by presenting DNA evidence to establish their innocence.
The Innocence Project is associated with the Cardozo School of Law in New York. Law students there do much of the brain-destroying grunt work of looking back through files that may be a generation old. They are assisted by a small tram of staff lawyers and the services of law firms that offer their services free of change. The Innocence Project is now a nationwide phenomenon. It has been responsible for freeing more than 200 prisoners.
By definition, the nature of the work it does triggers big highs and big lows – not all prisoners represented by the Innocence Project win their freedom or a shorter sentence.
But last week, there was ample cause for joy at the Project. Two falsely-convicted prisoners were released from prisons in Louisiana and Texas. At one level, their stories are familiar and conventional. But at a deeper level, what was done to these people is nothing less than outrageous.
Michael Morton, 50, walked out of a Williamson County, Texas, courtroom after his 1987 murder conviction was overturned because of new evidence. And a New Orleans man, Henry James, wrongly incarcerated for 30 years, was exonerated of rape because new DNA evidence proves he didn’t commit. James served more time than any other person in Louisiana cleared by DNA, according to The Innocence Project, which played key roles in securing freedom for both men.
Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.
“Mr. Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family. Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
“This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.”
In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton. According to the papers filed by the Innocence Project yesterday, new DNA testing has connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Morton was incarcerated. Morton always maintained that the murder was committed by a third-party intruder.
In the filing, the Innocence Project charges that Morton would never have been convicted of the crime if the prosecution had turned over as required evidence pointing to his innocence. Newly discovered exculpatory evidence uncovered through a Public Records Act request was not given to the defense.
“The prosecution’s complete disregard for the truth in this case is stunning,”
said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”
All of the newly discovered evidence supports Morton’s insistence that the crime was committed by a third-party intruder who committed the murder for money. Had these leads been investigated, the police may have been able to capture the real perpetrator who it appears went on to commit at least one similar murder in Travis County.
During the trial, defense attorneys suspected something was amiss when they learned that prosecutors did not intend to call Sgt. Wood to testify and specifically raised with the court the possibility that information about Morton’s innocence may not have been turned over. The court ordered a review of all the police reports prepared by Sgt. Wood, and the prosecutor made assurances to the court that he would confer with Sgt. Wood to make sure that all documents were turned over for review.
On August 26, 2011, the sealed file containing the documents that were given to the trial judge was opened and reviewed by the present court and parties. The exculpatory documents that the Innocence Project received through the Open Records Act were not included in the file reviewed by the trial judge.
Morton has always maintained his innocence of the murder of his wife, Christine, who was found dead in their home by a neighbor the morning of August 13, 1986. At trial, the prosecution argued that Morton beat his wife to death after she refused to have sex with him upon returning from his 32nd birthday celebration at a restaurant. There were no witnesses or physical evidence linking Morton to the crime. The prosecution relied largely on the fact that Morton left a note to Christine on the bathroom vanity expressing his disappointment with the fact that she fell asleep on him. (The note closed with the words “I love you.”)
Morton’s co-workers testified that he arrived at work at about 6 a.m. that
morning and didn’t notice anything unusual about his behavior.
The second exoneration is arguably even more unusual. With the consent of Jefferson Parish District Attorney Paul Connick, Jr., a judge has vacated the rape conviction and dismissed the charges against Henry James, 45, as a result of DNA testing on crime scene evidence proving his innocence. James, who has been incarcerated one month shy of 30 years, served longer than any other person in Louisiana who was later cleared through DNA testing. He was released from Angola prison last week.
“The fact that Mr. James is a free man today is thanks largely to the miraculous discovery of the evidence by Milton Dureau from the Jefferson Parish Crime Laboratory and the Sheriff’s Office’s quick response and review of the case,” said Vanessa Potkin, a Senior Staff Attorney with the Innocence Project.
She added, “Far too often searches for DNA evidence in old cases come up empty handed, which is why the federal government set up the Bloodsworth grant program to help police labs catalogue evidence. New Orleans Parish has already taken advantage of this program, but as this case so clearly demonstrates, jurisdictions everywhere must do a better job of cataloguing evidence to help correct injustice.”
Henry James lived adjacent to the victim and spent most of the day before the crime helping the victim’s husband repair his car. The victim was aware that James lived nearby and had seen him three or four times before. Later that day, the victim’s husband drove with James to Westwego, where they got into a car accident and the victim’s husband was arrested. At approximately 8 PM that evening, James went to the victim’s home to tell her that her husband had been arrested. At approximately 6 AM on November 23, 1981, the victim was awoken by someone entering her home through the back door. The man entered her bedroom and raped her at knifepoint. The police were at the scene almost immediately after the rape and the victim told the police that she didn’t know her assailant but gave a brief description of her attacker.
The next day, a police officer patrolling the neighborhood spotted James, who roughly fit the description, and informed the detective working on the case. The victim eventually picked James’ photo out of a book containing approximately 75 to 80 photos of black males. The record contains no indication that the victim told the police that she had previously met her attacker, much less that he had spent the previous day with her husband. James was arrested on November 25, 1981, and was placed in a line up where the victim identified him again.
At trial, the prosecution relied on the testimony of the victim who identified James again in court, the detective and a physician who only testified that the victim had had intercourse within a few hours of his examination. The jury did not hear that serology testing from the rape kit excluded James as the perpetrator. (The seminal fluid and sperm recovered indicated that the attacker was a nonsecretor. James is a secretor.)
James testified on his own behalf. He maintained his innocence of the crime and said that he was asleep that morning until his stepfather woke him and then went to work. Three alibi witnesses backed up his testimony. His stepfather confirmed that he had been asleep at the time of the crime. (James’ mother had passed away, and he lived with his stepfather. James slept in the same bed as his stepfather.) Another witness testified that he saw the defendant walking to work and gave him a ride the rest of the way, and his boss testified that he arrived at work at 6:48 AM. However, James’ lawyer failed to inform the jury about the serological testing that excluded James as a suspect. The jury convicted James of aggravated rape, and he was sentenced on May 7, 1982 to life without parole.
After exhausting his appeals, James reached out to the Innocence Project, which sought to do DNA testing of the evidence recovered in the rape kit. Although officials at the Jefferson Parish Crime Laboratory were cooperative, the initial search for the evidence proved fruitless. The legal team eventually filed a motion on James’ behalf seeking testing on the evidence, but another search on February 18, 2010 also proved fruitless.
On May 3, 2010, Milton Dureau, who worked for the lab, was looking for evidence in a different case when he stumbled upon a slide from James’ case. Fortunately, he remembered the case number from his earlier search. The evidence was sent to a lab, which did STR DNA testing on the slide. The testing, which was completed on September 26, 2011, excluded James as the perpetrator in the rape.
“Misidentification has played a role in 75% of the DNA exoneration, and across racial identifications, as in this case, have proven especially unreliable,” said Thomas Golden, Partner at Willkie Farr & Gallagher LLP.
“In hind sight, it’s pretty obvious that the victim was influenced by her interactions with Mr. James the day before. The police may have also inadvertently influenced her misidentification. That’s why it’s especially important that the state enact identification reforms, especially those that require identification procedures be performed by an officer who doesn’t know the identity of the suspect,” he said.
Michael Morton was freed from prison earlier this month after serving 25 years in prison for a murder he didn’t commit. Since his release, legal wrangling has continued over an investigation into whether prosecutors committed misconduct at Morton’s original trial.
Morton’s legal team – which includes the Innocence Project – objected to the terms of a motion filed last Thursday by prosecutors in the case. And now Texas Attorney General Greg Abbott will become involved in the investigation at the request of Williamson County District Attorney John Bradley.
"As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the Attorney General as the new investigation proceeds,” Houston attorney John Raley (of Raley & Bowick LLP) said today on behalf of Morton’s legal team. “We welcome Mr. Bradley’s pledge of cooperation with our investigation into the allegations that exculpatory evidence was hidden from Mr. Morton and the trial court, and trust there will be no more misunderstandings as to that process goes forward."
New DNA testing of crime scene evidence provides powerful new proof that Williamson County resident Christine Morton was murdered by a third-party intruder, not her husband Michael. Michael Morton, who has served 25 years in prison for the crime, has always maintained his innocence and spent the last six years fighting for DNA testing over the District Attorney’s objections. The new tests have now identified a convicted offender in the national DNA databank as the man whose DNA is mixed with the blood and hair of the murder victim on a bloody bandana recovered near the crime scene.
In light of the new evidence, the Innocence Project filed legal documents today asking the trial judge to appoint a new prosecutor in the case because District Attorney John Bradley’s bias against Michael Morton and the Innocence Project and past history on the case prevents Bradley from conducting an impartial review of the new DNA evidence and pursuing the actual assailant.
Barry Scheck charged, “It’s clear from the new DNA testing and other suppressed, exculpatory documents that law enforcement never followed up on numerous leads pointing to a third-party intruder, which might have solved the crime. But even more troubling, District Attorney Bradley knew about this evidence, yet kept these documents hidden in the State’s file while he fought tooth and nail to bar DNA testing.”
For more than six years, the Innocence Project had been seeking access to DNA testing on a stained bandana that was found on an abandoned construction site approximately 100 yards from the crime scene. Over the repeated objections of Bradley, the Texas Court of Appeals finally granted testing on the bandana last year. On June 20, 2011, the testing laboratory issued a report finding that the bandana contained the DNA of a man other than Michael, along with Christine’s blood and hair. The male DNA was put though the national DNA database and has been linked to a convicted offender.
“Michael had to spend the last six years fighting just to get access to DNA testing. Unfortunately, we now know that the District Attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Mr. Morton since 2003. “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.”
In response to a Public Information Act request, the Innocence Project obtained the transcripts of the state’s chief investigator’s interview with the Christine’s mother that was conducted less than two weeks after the murder. In the transcript, she describes a conversation with the couple’s three-year-old son Eric, who told her in chilling detail that he witnessed an unknown man murder his mother.
The court papers note that this newly discovered evidence was turned over by the state Attorney General’s office in 2008 over the objection of Bradley, who personally reviewed the material and asked that it not be turned over because of the ongoing litigation over DNA testing.
The motion also charges that there was other newly disclosed information also pointing to a third-party intruder, including the fact that a neighbor told police that they “had on several occasions observed a male park a green van on the street behind (the Morton’s) address, then the subject would get out and walk into the wooded area off the road.” A handwritten telephone message to an investigator indicated that what appeared to be Christine’s missing Visa credit card was recovered from a store in San Antonio, but there was no indication that investigators ever pursued the individual who used the stolen card.
Given the fact that Bradley clearly knew that there was evidence of a third-party intruder, the motion argues that his repeated objections to testing of the bandana are further proof that he is incapable of objectively continuing in this case. He opposed the testing even though there was another unsolved murder in the county that bore a highly similar modus operandi.
The legal papers also note Bradley’s animosity towards the Innocence Project while serving as the Commissioner for the state Forensic Science Commission, which was asked by the Innocence Project to investigate whether the state was negligent in its prosecution and execution of Cameron Todd Willingham. The Commission ultimately found that the arson science used to convict Willingham of arson murder was outdated and without scientific basis. During his tenure as Chairman, Bradley, who was appointed by Governor Perry, repeatedly tried to derail the investigation and even referred to Willingham in the press as a “guilty monster” before the Commission had opportunity to hear from its own experts in the investigation.
Bradley, who was ultimately stripped of his chairmanship by the state Senate, was widely criticized by news outlets throughout the state because of concerns that he was incapable of being impartial. At numerous points during his tenure, he disparaged the work of the Innocence Project, specifically naming its Co-Director Scheck and state Senator Rodney Ellis, who also serves as the President of the Innocence Project Board of Directors.
The DPIC reports that recent polls conducted by Gallup and CNN indicate Americans' support for the death penalty is continuing to decline.
According to Gallup's 2011 poll, the percentage of Americans approving the death penalty as a punishment for murder dropped to its lowest level in 39 years. Only 61% supported capital punishment in theory, down from 64% last year and from 80% support in 1994. This is the lowest level of support since 1972, when the U.S. Supreme Court ruling in Furman v. Georgia voided death penalty statutes across the country.
Opposition to the death penalty (35%) in this recent poll reached a 39-year high. The Gallup poll also showed an increase from last year in those who believe the death penalty is applied too often or unfairly. Support for the death penalty dropped compared to last year among both Republicans and Democrats.
This year, among Democrats (or those leaning that way) more opposed the death penalty than supported it, a reverse from a year ago.
A recent CNN poll (conducted by ORC International) showed that when given a choice of sentences between life in prison without parole or the death penalty for the crime of murder, more Americans (50%) would opt for the life sentence than for death (48%). Seven years ago, the majority (56%) chose the death penalty over the life-without parole sentence. In CNN's recent poll, the number of Americans who believe that at least one person in the past five years has been executed for a crime that he or she did not commit increased to 72%.
So it’s possible that the light at the end of the tunnel is not an oncoming train!
Sunday, October 23, 2011
The cold hand of ICE could destroy your family!
By William Fisher
A fast-growing program touted by the Obama Administration has led to thousands of US citizens being arrested and detained, separated from their children, held without bond or access to a lawyer, and without any kind of court hearing.
According to a new report, that describes the majority of people arrested under the so-called “Secure Communities” program conducted by the Department of Homeland Security (DHS) in association with local law enforcement throughout the country.
When S-Comm, as it has become known, was introduced, its stated objective was to arrest and deport “the worst of the worst” among people in this country illegally – murderers, rapists, sexual predators, and so forth. But today more than half the people caught in the grip of ICE’s cold hand have been arrested for such crimes as a broken tail light, driving without a license, overstaying a visitor’s visa. And many of them are bona fide US citizens caught up in the paperchase of a quota-driven bureaucracy.
The report, “Secure Communities by the Numbers: An Analysis of Demographics and Due Process,” was released by the Chief Justice Earl Warren Institute on Law & Social Policy at the University of California Berkeley School of Law. Its authors say it is a “first-ever in-depth analysis of Secure Communities data obtained through the Freedom of Information Act.”
Secure Communities relies on local law enforcement to target noncitizens for deportation. Fingerprints from individuals booked into local jails—many on minor infractions—are sent to the Department of Homeland Security (DHS) for an immigration check, triggering arrests. This has transformed the enforcement landscape by allowing U.S. Immigration and Customs Enforcement (ICE) agents to effectively run federal immigration checks on everyone booked into a local jail.
“The results are disturbing because they point to a system that is funneling
people towards deportation without due process. Based on our findings, we
recommend that the Department of Homeland Security suspend the program until the government addresses the issues we identify, particularly wrongful U.S. citizen arrests, potential racial profiling, and lack of discretion in detention,” said Aarti Kohli, director of immigration policy at the Warren Institute and lead author of the report.
Lisa Chavez, Senior Research Associate at the Warren Institute and a co-author adds, “We had unprecedented access to federal data on ICE arrests, detentions, and deportations of people who are pulled in through Secure Communities. By following the numbers, we were able to construct a picture of who is being arrested and what happens to them after their immigration arrest.”
Key findings include:
• Approximately 3,600 United States citizens have been arrested by ICE through the Secure Communities program even though citizens, by definition, should not be subject to immigration detention;
• Approximately 88,000 families containing U.S. citizens have been affected by Secure Communities through the immigration arrest of a family member;
• Latinos comprise 93% of individuals arrested through Secure Communities though they only comprise 77% of the undocumented population in the United States;
• Only 52% of individuals arrested through Secure Communities were slated to appear before an immigration judge;
• Only 24% of the individuals arrested through Secure Communities who did have an immigration hearing were represented by an attorney. By contrast, 40% of all immigration court respondents have counsel;
• Only 2% of non-citizens arrested through Secure Communities are granted relief from deportation by an immigration judge. By contrast, 14% of all immigration court respondents are granted relief;
• A large majority (83%) of people arrested through Secure Communities is held in ICE detention as compared with an overall DHS immigration detention rate of 62%. ICE does not appear to be exercising discretion when deciding whether or not to detain Secure Communities arrestees.
“The wrongful arrest of thousands of U.S. citizens demonstrates that, too often, ICE’s protocol is arrest first, investigate second. This flies in the face of the Constitution. With these numbers finally public, ICE must confront the deep flaws in the program that have led to these wrongful arrests and to the disproportionate targeting of young Latino men,” said professor Peter L. Markowitz, director of the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo School of Law, a co-author of the report.
Cecilia Muñoz, Obama’s top adviser on immigration issues told FRONTLINE correspondent Maria Hinojosa why the administration plans to keep detaining and deporting record numbers of illegal immigrants: Secure Communities is a high-tech information-sharing program between Immigration and Customs Enforcement (ICE) and local law enforcement.
But FRONTLINE says critics, including three Democratic state governors, say the program is detaining and deporting low-level offenders or people without criminal records, contrary to the administration’s stated goal of deporting only “aliens who are convicted of a serious criminal offense.”
Muñoz told FRONTLINE the adjustments she refers to include a recent Department of Homeland Security [DHS] prosecutorial discretion memo aimed at giving ICE guidance about who to detain and deport, and a promise to review 300,000 pending deportation cases to identify people who have lived in the U.S. for years without committing crimes.
The data of the Immigration and Customs Enforcement agency’s Secure Communities program was obtained through partial settlement of a Freedom of Information Act lawsuit filed by the Cardozo law school’s Immigration Justice Clinic and the Center for Constitutional Rights (CCR) on behalf of the National Day Labor Organizing Network (NDLON).
“The government’s own data has consistently shown that most of the people
impacted by this program have no criminal record or are low-level offenders. To lock these people up in detention centers without access to attorneys or an opportunity to see a judge is undemocratic,” said Kohli.
The report makes a number of recommendations, including: increasing transparency of the program; adding safeguards to prevent U.S. citizen arrests; investigating the evidence of racial profiling of Latinos; providing access to government-appointed legal counsel; and suspending the program until these recommendations are addressed.
“The Warren Institute study demonstrates how deeply U.S. citizens’ own rights have been eroded in the name of immigration enforcement. The Obama administration should treat this study as the final nail in the coffin of a program that should have been buried long ago,” explains Sarahi Uribe, Organizer for the National Day Laborer Organizing Network.
Said CCR attorney Sunita Patel, “This new report further confirms what we know from the damning records released through our lawsuit and the experience of immigrant communities. Secure Communities has been and will always be a dangerously flawed program. The Obama Administration must disconnect immigration enforcement from law enforcement. The results of merging the two systems are erosion of public safety and civil rights.”
The S-Comm program was also the subject of a penetrating investigation of, among other abuses, sexual harassment in immigration detention facilities.
The PBS program claimed that illegal immigrants held in US immigration detention facilities filed more than 170 allegations of sexual abuse over the last four years, mostly against guards and other staff at the centers, according to government documents obtained by FRONTLINE and the American Civil Liberties Union (ACLU).
The ACLU says documents it obtained through the Freedom of Information Act (FOIA) provide a first-ever window into the breadth of the national problem of sexual abuse of detainees in immigration detention facilities. The ACLU made information from the documents public in concert with the filing by the ACLU of Texas of a federal class action damages lawsuit on behalf of three immigrant women who were sexually assaulted while in the custody of Immigration and Customs Enforcement (ICE) at the T. Don Hutto Family Residential Center in Taylor, Texas, along with numerous others who experienced similar trauma.
Government documents obtained by the ACLU contain nearly 200 allegations of sexual abuse of immigration detainees jailed at detention facilities across the nation since 2007.
The documents were obtained from the Department of Homeland Security’s Office of Inspector General, Office of Civil Rights and Civil Liberties and ICE. While the information gleaned from the documents likely does not represent the full scope of the problem given that sexual abuse is notoriously underreported, the documents nonetheless make clear that the sexual abuse of immigration detainees is not an isolated problem limited to a few rogue facilities or the result of a handful of bad apple government contractors who staff some of the nation’s immigration jails.
According to the documents, while facilities in Texas are the focus of more allegations by far than any other state, sexual abuse allegations have come from nearly every state in the nation that houses an immigration detention facility, FRONTLINE reported..
“It is clear there is an urgent need for the government to recognize just how pervasive a problem the sexual abuse of immigration detainees is and take immediate steps to fix the problem and ensure that everyone in the government’s care is protected,” said David Shapiro, staff attorney with the ACLU National Prison Project. “The detainees in immigration detention are a particularly vulnerable population. Even one incident of sexual abuse is one too many.”
Defendants named in the in the ACLU of Texas lawsuit include three ICE officials; Williamson County, Texas; Corrections Corporation of America (CCA), the nation’s largest private prison company that manages the Hutto facility; the former facility administrator for Hutto; and Donald Dunn, a guard who pleaded guilty in state court to three counts of official oppression and two counts of unlawful restraint based on his assaults of five women. Separately, Dunn has been charged with four additional federal counts of criminal violation of civil rights and is awaiting sentencing on two of them.
The FRONTLINE investigation found no evidence that the vast majority of complaints had been investigated or resolved. Most of the complaints went through the Department of Homeland Security’s Inspector General’s (IG)Office, which is the primary office responsible for investigating outside complaints. IG records show only 15 “reports of investigation,” which resulted in six substantiated or partially substantiated cases. Two guards were convicted of sexual abuse; three others have been terminated from their positions.
The documents, together with interviews of dozens of detainees, employees, investigators and officials, present a portrait of detainees with few effective recourses if they are victims of crimes while in detention. Many say they face continuous pressure to sign deportation orders. And unlike in the criminal justice system, immigration detainees do not have a guaranteed right of legal representation, and so have difficulty with access to counsel if they have a grievance.
A former mental health coordinator at Willacy Detention Center in Raymondville, Texas, told FRONTLINE that officials attempted to cover up complaints of sexual abuse, which she described as common among female detainees. The coordinator said she later resigned because of the treatment of detainees at the facility.
FRONTLINE has made repeated requests to DHS to review complaints and the department’s process of investigating sexual abuse allegations. Officials declined to comment.
“Who’s Going to Believe You?”
In 2009, a Canadian immigrant living in Florida was pulled over during a routine traffic stop. When the officer typed her name into his computer, a 10-year-old outstanding warrant for a $230 bounced check from Wal-Mart popped up. The bounced check, combined with her undocumented status, led to her detention.
The woman, whose identity FRONTLINE is withholding because she is an alleged victim of sexual assault, agreed to be interviewed under the name “Mary.”
She said that when she was taken into custody she left her four young children, all U.S. citizens, in the care of a relative. After a local sheriff’s deputy drove her to jail, the authorities notified Immigration and Customs Enforcement (ICE).
Mary was sent to Willacy. She said that when she arrived, a fellow detainee warned her that another female detainee had been raped by a male guard. Mary, who had never been behind bars, didn’t know what to believe.“This is the government. The U.S. government,” she remembered thinking. Mary said she tried to keep quiet at Willacy. She took trips to the law library to escape the dorm and work on an appeal of her deportation case.
A male guard first approached her in the library, she told FRONTLINE.“He would talk to me nicely, and ask me questions, where I’m from, and say] ‘Oh, you’re beautiful,’” she recalled.
During subsequent trips to the library, he made her uncomfortable, but she said she was too afraid to say anything. On the third encounter the guard touched her, Mary said. “He came up, and he started holding my hands, and he kissed me. I said ‘You shouldn’t be doing that. … I don’t like what you’re doing.’”
“I can help you get out of here,” the guard replied.
Mary says she pushed him away, and said she was going to report him. Who are you going to tell?” he responded. Mary said she felt alone, and didn’t tell anyone what happened. “Who’s going to listen to you?” she explained. “Who’s going to believe you?
You’re criminals. You’re a detainee. Who are you going to go complain to?”
A short time later, Mary said, the guard sexually assaulted her. She said he approached, saying, “I love big-breasted women.” She said he placed his hands in her pants, penetrated her with his fingers. Mary said she pushed him away and that the guard told her, “If you tell anyone, you wouldn’t come out of here alive to see your family.”
According to the 170 records examined by FRONTLINE, Willacy Detention Center garnered more complaints of sexual abuse than any other facility.The program said “MTC also received more than 900 grievances filed by detainees in its own internal grievance process, according to a 2009 audit by Creative Corrections, a company contracted by ICE to perform the audit. Of the 900, four grievances were resolved in favor of the detainee. There is no indication as to what the grievances were about or whether any of these were forwarded to oversight agencies in Washington, D.C.
The audit found 49 physical assault incidents at Willacy, but contained no details about the assaults or who was involved. None of the assaults was classified as sexual.
At the same time, MoveOn.org has also taken on a major immigration-related issue. The organization said, “ Jim Crow-style, state-sanctioned racism has returned to Alabama. Governor Robert Bentley and his allies recently enacted HB56, the nation's most draconian anti-immigrant law.”
The organization said the law is scaring businesses, citizens, and immigrant families alike. Sheila Hodges, a business owner in southwest Alabama, said that 30% of her employees have left the state because they are "scared" of enforcement of the new law, even though they carry documentation.
Moveon says that families in Allgood, AL, are in danger of losing water service for being suspected of having undocumented immigrants in their household.
Most heinously, the group says, there have been reports of police patrols driving around Latino neighborhoods like the one Isobel Gomez lives in near Birmingham that have her and other residents afraid to even go outside.
Immigrants and citizens in Alabama are standing up to fight against this discrimination. State Senator Billy Beasley has filed a bill to repeal this law. The U.S. Department of Justice has even stepped in to block parts of the law.
Moveon says, “Support from inside and outside Alabama will strengthen Sen. Beasley's and other local organizing efforts to repeal the entire law and bring relief to everyone impacted. Sen. Beasley said that one of the reasons he wants HB56 repealed is because ‘many folks didn't realize it would have such an impact.’”
The editor of Immigration Daily writes: “ICE announced that it deported nearly 400,000 people in Fiscal Year 2011 setting an all-time record. It is difficult to figure out exactly how many of the 400,000 were deported solely due to immigration violations, and how many due to criminal violations unrelated to immigration issues. 45% of those deported had only civil immigration offenses.
“It is unclear how large a percentage of the remaining 55% of felonies or misdemeanors were immigration-related. We look forward to the clarification of the breakdown of these numbers, to see if and to what extent the numbers conform to or depart from the stated enforcement priorities of the Obama administration.”
A fast-growing program touted by the Obama Administration has led to thousands of US citizens being arrested and detained, separated from their children, held without bond or access to a lawyer, and without any kind of court hearing.
According to a new report, that describes the majority of people arrested under the so-called “Secure Communities” program conducted by the Department of Homeland Security (DHS) in association with local law enforcement throughout the country.
When S-Comm, as it has become known, was introduced, its stated objective was to arrest and deport “the worst of the worst” among people in this country illegally – murderers, rapists, sexual predators, and so forth. But today more than half the people caught in the grip of ICE’s cold hand have been arrested for such crimes as a broken tail light, driving without a license, overstaying a visitor’s visa. And many of them are bona fide US citizens caught up in the paperchase of a quota-driven bureaucracy.
The report, “Secure Communities by the Numbers: An Analysis of Demographics and Due Process,” was released by the Chief Justice Earl Warren Institute on Law & Social Policy at the University of California Berkeley School of Law. Its authors say it is a “first-ever in-depth analysis of Secure Communities data obtained through the Freedom of Information Act.”
Secure Communities relies on local law enforcement to target noncitizens for deportation. Fingerprints from individuals booked into local jails—many on minor infractions—are sent to the Department of Homeland Security (DHS) for an immigration check, triggering arrests. This has transformed the enforcement landscape by allowing U.S. Immigration and Customs Enforcement (ICE) agents to effectively run federal immigration checks on everyone booked into a local jail.
“The results are disturbing because they point to a system that is funneling
people towards deportation without due process. Based on our findings, we
recommend that the Department of Homeland Security suspend the program until the government addresses the issues we identify, particularly wrongful U.S. citizen arrests, potential racial profiling, and lack of discretion in detention,” said Aarti Kohli, director of immigration policy at the Warren Institute and lead author of the report.
Lisa Chavez, Senior Research Associate at the Warren Institute and a co-author adds, “We had unprecedented access to federal data on ICE arrests, detentions, and deportations of people who are pulled in through Secure Communities. By following the numbers, we were able to construct a picture of who is being arrested and what happens to them after their immigration arrest.”
Key findings include:
• Approximately 3,600 United States citizens have been arrested by ICE through the Secure Communities program even though citizens, by definition, should not be subject to immigration detention;
• Approximately 88,000 families containing U.S. citizens have been affected by Secure Communities through the immigration arrest of a family member;
• Latinos comprise 93% of individuals arrested through Secure Communities though they only comprise 77% of the undocumented population in the United States;
• Only 52% of individuals arrested through Secure Communities were slated to appear before an immigration judge;
• Only 24% of the individuals arrested through Secure Communities who did have an immigration hearing were represented by an attorney. By contrast, 40% of all immigration court respondents have counsel;
• Only 2% of non-citizens arrested through Secure Communities are granted relief from deportation by an immigration judge. By contrast, 14% of all immigration court respondents are granted relief;
• A large majority (83%) of people arrested through Secure Communities is held in ICE detention as compared with an overall DHS immigration detention rate of 62%. ICE does not appear to be exercising discretion when deciding whether or not to detain Secure Communities arrestees.
“The wrongful arrest of thousands of U.S. citizens demonstrates that, too often, ICE’s protocol is arrest first, investigate second. This flies in the face of the Constitution. With these numbers finally public, ICE must confront the deep flaws in the program that have led to these wrongful arrests and to the disproportionate targeting of young Latino men,” said professor Peter L. Markowitz, director of the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo School of Law, a co-author of the report.
Cecilia Muñoz, Obama’s top adviser on immigration issues told FRONTLINE correspondent Maria Hinojosa why the administration plans to keep detaining and deporting record numbers of illegal immigrants: Secure Communities is a high-tech information-sharing program between Immigration and Customs Enforcement (ICE) and local law enforcement.
But FRONTLINE says critics, including three Democratic state governors, say the program is detaining and deporting low-level offenders or people without criminal records, contrary to the administration’s stated goal of deporting only “aliens who are convicted of a serious criminal offense.”
Muñoz told FRONTLINE the adjustments she refers to include a recent Department of Homeland Security [DHS] prosecutorial discretion memo aimed at giving ICE guidance about who to detain and deport, and a promise to review 300,000 pending deportation cases to identify people who have lived in the U.S. for years without committing crimes.
The data of the Immigration and Customs Enforcement agency’s Secure Communities program was obtained through partial settlement of a Freedom of Information Act lawsuit filed by the Cardozo law school’s Immigration Justice Clinic and the Center for Constitutional Rights (CCR) on behalf of the National Day Labor Organizing Network (NDLON).
“The government’s own data has consistently shown that most of the people
impacted by this program have no criminal record or are low-level offenders. To lock these people up in detention centers without access to attorneys or an opportunity to see a judge is undemocratic,” said Kohli.
The report makes a number of recommendations, including: increasing transparency of the program; adding safeguards to prevent U.S. citizen arrests; investigating the evidence of racial profiling of Latinos; providing access to government-appointed legal counsel; and suspending the program until these recommendations are addressed.
“The Warren Institute study demonstrates how deeply U.S. citizens’ own rights have been eroded in the name of immigration enforcement. The Obama administration should treat this study as the final nail in the coffin of a program that should have been buried long ago,” explains Sarahi Uribe, Organizer for the National Day Laborer Organizing Network.
Said CCR attorney Sunita Patel, “This new report further confirms what we know from the damning records released through our lawsuit and the experience of immigrant communities. Secure Communities has been and will always be a dangerously flawed program. The Obama Administration must disconnect immigration enforcement from law enforcement. The results of merging the two systems are erosion of public safety and civil rights.”
The S-Comm program was also the subject of a penetrating investigation of, among other abuses, sexual harassment in immigration detention facilities.
The PBS program claimed that illegal immigrants held in US immigration detention facilities filed more than 170 allegations of sexual abuse over the last four years, mostly against guards and other staff at the centers, according to government documents obtained by FRONTLINE and the American Civil Liberties Union (ACLU).
The ACLU says documents it obtained through the Freedom of Information Act (FOIA) provide a first-ever window into the breadth of the national problem of sexual abuse of detainees in immigration detention facilities. The ACLU made information from the documents public in concert with the filing by the ACLU of Texas of a federal class action damages lawsuit on behalf of three immigrant women who were sexually assaulted while in the custody of Immigration and Customs Enforcement (ICE) at the T. Don Hutto Family Residential Center in Taylor, Texas, along with numerous others who experienced similar trauma.
Government documents obtained by the ACLU contain nearly 200 allegations of sexual abuse of immigration detainees jailed at detention facilities across the nation since 2007.
The documents were obtained from the Department of Homeland Security’s Office of Inspector General, Office of Civil Rights and Civil Liberties and ICE. While the information gleaned from the documents likely does not represent the full scope of the problem given that sexual abuse is notoriously underreported, the documents nonetheless make clear that the sexual abuse of immigration detainees is not an isolated problem limited to a few rogue facilities or the result of a handful of bad apple government contractors who staff some of the nation’s immigration jails.
According to the documents, while facilities in Texas are the focus of more allegations by far than any other state, sexual abuse allegations have come from nearly every state in the nation that houses an immigration detention facility, FRONTLINE reported..
“It is clear there is an urgent need for the government to recognize just how pervasive a problem the sexual abuse of immigration detainees is and take immediate steps to fix the problem and ensure that everyone in the government’s care is protected,” said David Shapiro, staff attorney with the ACLU National Prison Project. “The detainees in immigration detention are a particularly vulnerable population. Even one incident of sexual abuse is one too many.”
Defendants named in the in the ACLU of Texas lawsuit include three ICE officials; Williamson County, Texas; Corrections Corporation of America (CCA), the nation’s largest private prison company that manages the Hutto facility; the former facility administrator for Hutto; and Donald Dunn, a guard who pleaded guilty in state court to three counts of official oppression and two counts of unlawful restraint based on his assaults of five women. Separately, Dunn has been charged with four additional federal counts of criminal violation of civil rights and is awaiting sentencing on two of them.
The FRONTLINE investigation found no evidence that the vast majority of complaints had been investigated or resolved. Most of the complaints went through the Department of Homeland Security’s Inspector General’s (IG)Office, which is the primary office responsible for investigating outside complaints. IG records show only 15 “reports of investigation,” which resulted in six substantiated or partially substantiated cases. Two guards were convicted of sexual abuse; three others have been terminated from their positions.
The documents, together with interviews of dozens of detainees, employees, investigators and officials, present a portrait of detainees with few effective recourses if they are victims of crimes while in detention. Many say they face continuous pressure to sign deportation orders. And unlike in the criminal justice system, immigration detainees do not have a guaranteed right of legal representation, and so have difficulty with access to counsel if they have a grievance.
A former mental health coordinator at Willacy Detention Center in Raymondville, Texas, told FRONTLINE that officials attempted to cover up complaints of sexual abuse, which she described as common among female detainees. The coordinator said she later resigned because of the treatment of detainees at the facility.
FRONTLINE has made repeated requests to DHS to review complaints and the department’s process of investigating sexual abuse allegations. Officials declined to comment.
“Who’s Going to Believe You?”
In 2009, a Canadian immigrant living in Florida was pulled over during a routine traffic stop. When the officer typed her name into his computer, a 10-year-old outstanding warrant for a $230 bounced check from Wal-Mart popped up. The bounced check, combined with her undocumented status, led to her detention.
The woman, whose identity FRONTLINE is withholding because she is an alleged victim of sexual assault, agreed to be interviewed under the name “Mary.”
She said that when she was taken into custody she left her four young children, all U.S. citizens, in the care of a relative. After a local sheriff’s deputy drove her to jail, the authorities notified Immigration and Customs Enforcement (ICE).
Mary was sent to Willacy. She said that when she arrived, a fellow detainee warned her that another female detainee had been raped by a male guard. Mary, who had never been behind bars, didn’t know what to believe.“This is the government. The U.S. government,” she remembered thinking. Mary said she tried to keep quiet at Willacy. She took trips to the law library to escape the dorm and work on an appeal of her deportation case.
A male guard first approached her in the library, she told FRONTLINE.“He would talk to me nicely, and ask me questions, where I’m from, and say] ‘Oh, you’re beautiful,’” she recalled.
During subsequent trips to the library, he made her uncomfortable, but she said she was too afraid to say anything. On the third encounter the guard touched her, Mary said. “He came up, and he started holding my hands, and he kissed me. I said ‘You shouldn’t be doing that. … I don’t like what you’re doing.’”
“I can help you get out of here,” the guard replied.
Mary says she pushed him away, and said she was going to report him. Who are you going to tell?” he responded. Mary said she felt alone, and didn’t tell anyone what happened. “Who’s going to listen to you?” she explained. “Who’s going to believe you?
You’re criminals. You’re a detainee. Who are you going to go complain to?”
A short time later, Mary said, the guard sexually assaulted her. She said he approached, saying, “I love big-breasted women.” She said he placed his hands in her pants, penetrated her with his fingers. Mary said she pushed him away and that the guard told her, “If you tell anyone, you wouldn’t come out of here alive to see your family.”
According to the 170 records examined by FRONTLINE, Willacy Detention Center garnered more complaints of sexual abuse than any other facility.The program said “MTC also received more than 900 grievances filed by detainees in its own internal grievance process, according to a 2009 audit by Creative Corrections, a company contracted by ICE to perform the audit. Of the 900, four grievances were resolved in favor of the detainee. There is no indication as to what the grievances were about or whether any of these were forwarded to oversight agencies in Washington, D.C.
The audit found 49 physical assault incidents at Willacy, but contained no details about the assaults or who was involved. None of the assaults was classified as sexual.
At the same time, MoveOn.org has also taken on a major immigration-related issue. The organization said, “ Jim Crow-style, state-sanctioned racism has returned to Alabama. Governor Robert Bentley and his allies recently enacted HB56, the nation's most draconian anti-immigrant law.”
The organization said the law is scaring businesses, citizens, and immigrant families alike. Sheila Hodges, a business owner in southwest Alabama, said that 30% of her employees have left the state because they are "scared" of enforcement of the new law, even though they carry documentation.
Moveon says that families in Allgood, AL, are in danger of losing water service for being suspected of having undocumented immigrants in their household.
Most heinously, the group says, there have been reports of police patrols driving around Latino neighborhoods like the one Isobel Gomez lives in near Birmingham that have her and other residents afraid to even go outside.
Immigrants and citizens in Alabama are standing up to fight against this discrimination. State Senator Billy Beasley has filed a bill to repeal this law. The U.S. Department of Justice has even stepped in to block parts of the law.
Moveon says, “Support from inside and outside Alabama will strengthen Sen. Beasley's and other local organizing efforts to repeal the entire law and bring relief to everyone impacted. Sen. Beasley said that one of the reasons he wants HB56 repealed is because ‘many folks didn't realize it would have such an impact.’”
The editor of Immigration Daily writes: “ICE announced that it deported nearly 400,000 people in Fiscal Year 2011 setting an all-time record. It is difficult to figure out exactly how many of the 400,000 were deported solely due to immigration violations, and how many due to criminal violations unrelated to immigration issues. 45% of those deported had only civil immigration offenses.
“It is unclear how large a percentage of the remaining 55% of felonies or misdemeanors were immigration-related. We look forward to the clarification of the breakdown of these numbers, to see if and to what extent the numbers conform to or depart from the stated enforcement priorities of the Obama administration.”
FBI USING RACIAL, ETHNIC PROFILING TO SNOOP ON US CITIZENS, ACLU CHARGES
By William Fisher
The American Civil Liberties Union (ACLU) is charging that field offices of the Federal Bureau of Investigation (FBI) are engaged in “unconstitutional and widespread” ethnic and racial profiling, stereotyping certain types of crimes to entire minority communities.
As revealed in documents the ACLU has obtained so far through the Freedom of Information Act (FOIA), targeted communities include:
· Arab Americans in Michigan;
· African-Americans in Georgia;
· Chinese and Russian-Americans in California;
· Broad swaths of Latino-American communities in multiple states.
The FBI has also engaged in religious profiling of Muslim American communities in Michigan. “Based on false stereotypes ascribing criminal propensity to minority communities, the FBI is collecting demographic data to map where people from these communities live,” the ACLU said.
The group added, “Nationwide, the FBI is gathering reports on innocent Americans' so-called “suspicious activity” and sharing it with unknown numbers of federal, state and local government agencies.”
In response, the ACLU said its “Mapping the FBI” initiative seeks to expose misconduct, abuse of authority, and unconstitutional profiling and other violations of Americans' rights and liberties across the country.
“As our nation's predominant law enforcement agency, the FBI should be tracking true threats, not wasting resources and inappropriately mapping American communities on the basis of race, ethnicity, national origin, or religion. Law enforcement programs based on evidence and facts are more effective than a system based on racial stereotypes or mass suspicion,” the ACLU said.
It explained that, in the decade since 9/11, “long-standing safeguards on the FBI's investigative and intelligence collection activities have been erased, allowing it to engage in racial and profiling and to initiate intrusive investigations with little or no suspicion of wrongdoing. Taken together, the changes in the FBI's authority have vastly expanding its ability to engage in unlawful and abusive surveillance of innocent Americans.”
The ACLU said it is working in the courts, in Congress and in communities to “expose the ways in which the FBI's expanded authority threatens civil rights and civil liberties.”
The group’s activities include:
Eye on the FBI: Consolidating information obtained through ACLU records requests, lawsuits and reports, the ACLU's “Eye on the FBI” alerts provide regular and detailed analysis of FBI activities that pose a threat to civil liberties. These activities include the use of factually incorrect and bigoted biased counterterrorism materials and FBI racial profiling.
Racial and Ethnic Mapping: 34 ACLU affiliates have filed public records requests to uncover how the FBI is using racial and ethnic demographic information and data about “ethnic-oriented” business and facilities to “map” and investigate local communities. ACLU affiliates in Michigan, New Jersey and Northern California are in federal court to enforce their records requests and secure information for the public.
eGuardian: The ACLU has sued the FBI and the Justice Department to learn more about an FBI monitoring and information-sharing program known as “eGuardian,” through which the bureau collects so-called “Suspicious Activities Reports” (SARs) from local, state and federal law enforcement agencies nationwide.
Spy Files: This ACLU effort paints a comprehensive picture of the vast and expanding infrastructure of surveillance in the U.S. today by local, state and federal law enforcement—including the FBI. Documents obtained by the ACLU show that through this de facto domestic intelligence system, our government is monitoring and recording Americans' First Amendment-protected beliefs and activities.
FBI Interviews: The ACLU is working to educate individuals and community organizations across the country about their rights when encountering law enforcement. Over the past two years, the FBI has significantly increased its use of “voluntary” interviews – especially within specific racial, ethnic, and religious communities – often encouraging interviewees to serve as informants in their communities.
Michael German, a former F.B.I. agent who now works for the A.C.L.U., connected the ethnic mapping to a controversy over F.B.I. training and reference materials, first reported by Wired magazine, that portrayed all Muslims as having a proclivity for terrorism. The A.C.L.U. released additional such materials; the bureau promised last month to review its training and reference materials that refer to culture or religion.
Mr. German said the racial mapping documents and the disputed training documents showed a common “theme of mass suspicion of an entire group based on racial characteristics or religion.” He said the trained agents might be “predisposed to treating everyone from a particular group as suspect.”
Hina Shamsi, the director of the A.C.L.U.’s National Security Project, said the documents showed that the loosened rules had led to an “extremely pernicious” practice of ascribing propensity to crimes to people based on their ethnicity or religion.
“It’s counterproductive because it alienates local communities from their
government, and it also sends the message that the government views prejudice as acceptable,” she said.
Reaction from the Arab-American community was equally forceful.
Hassan Jaber, executive director, of ACCESS (The Arab Community Center for Economic & Social Services), said, “The ACLU information released today sheds a disturbing spotlight on practices that should have been rendered to the dustbin of history. Our organization and many others with whom we work dedicate ourselves to the support of a vibrant American democracy. This happens when all Americans become involved in their communities.”
He added, “Unwarranted surveillance based on racial and ethnic profiling has the opposite effect, creating fear and distance among the targeted communities. This report, combined with recent news of FBI surveillance of day-to-day activities among Muslims in NY, and information about the problematic training techniques employed by the FBI, are causes for serious concern. We believe this situation demands immediate attention and examination.
Documents received by the ACLU in response to its FOIA request paint an alarming picture of FBI Field Office activities. For example:
• A 2009 Detroit FBI field office memorandum references State Department-designated terrorist groups originating in the Middle East and Southeast Asia and asserts that “because Michigan has a large Middle-Eastern and Muslim population, it is prime territory for attempted radicalization and recruitment by these terrorist groups.”
• A 2009 Atlanta FBI Intelligence Note purports to identify potential threats from “Black Separatist” groups (identified as including the National Black Panther Party and the Nation of Islam) and documents population increases among “black/African-American populations in Georgia” from 2000 to 2007.
• Two 2009 San Francisco FBI memoranda state that the “San Francisco domain is home to one of the oldest Chinatowns in North America and one of the largest ethnic Chinese populations outside mainland China,” and justify the opening of an investigation involving racial and national origin mapping because “[w]ithin this community there has been organized crime for generations.” The memoranda similarly justify mapping of the “sizable Russian population” in the region by referencing the existence of “Russian criminal enterprises” in San Francisco.
• Several documents from FBI offices in Alabama, New Jersey, and Georgia show that the FBI is using the threat posed by the criminal gang Mara Salvatrucha (MS-13), which was originally started by Salvadoran immigrants, to justify broad investigations targeting a wide variety of Latino-American communities. The Mobile, Alabama FBI’s Intelligence Note (which states that MS-13’s “primary criminal activity” in Mobile is “graffiti”) contradicts the Newark FBI’s assessment of the gang’s ethnic composition, stating that while “MS-13 members are typically Salvadorans, Guatemalans, and Honduran nationals or first-generation descendants . . . MS-13 has been known to admit Mexicans, Dominicans, and non-Hispanic individuals.” Yet the Mobile FBI office singled out and mapped demographic data for immigrants born in Central America.
The ACLU claims problems of this type emanate from a 2003 Justice Department publication, “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” The guidance prohibited the DOJ from using race “to any degree” in law enforcement investigations (unless describing a specific suspect).
But it carved out a loophole permitting racial and ethnic profiling in national security and border integrity investigations. Exploiting this loophole, in 2008, the FBI issued its Domestic Investigation and Operations Guide (DIOG), which permits FBI agents to conduct Domain Management assessments, which include the authority to collect, analyze and “map” racial and ethnic demographic information and the location of ethnic-oriented business and facilities.
The DIOG also allows the FBI to collect and track “behavioral characteristics reasonably associated with a particular criminal or terrorist element of an ethnic community.” This Domain Management authority is not limited to national security and border integrity investigations.
In 2010, 34 ACLU affiliates filed coordinated FOIA requests with their local FBI field offices to uncover records showing how the FBI has used its racial and ethnic profiling authority under the Guidance on Race and the DIOG.
The ACLU is calling on Attorney General Eric Holder to:
• Enforce the Guidance on Race’s prohibition against the use of race to “any degree” in law enforcement investigations;
• Amend the Guidance on Race to prohibit racial and ethnic profiling without any exceptions, and to add religion and national origin to the barred profiling criteria; and
• Ensure the FBI amends the DIOG to incorporate existing prohibitions on the use of race and ethnicity in FBI investigations, and to incorporate the above amendments to the Guidance on Race.
The American Civil Liberties Union (ACLU) is charging that field offices of the Federal Bureau of Investigation (FBI) are engaged in “unconstitutional and widespread” ethnic and racial profiling, stereotyping certain types of crimes to entire minority communities.
As revealed in documents the ACLU has obtained so far through the Freedom of Information Act (FOIA), targeted communities include:
· Arab Americans in Michigan;
· African-Americans in Georgia;
· Chinese and Russian-Americans in California;
· Broad swaths of Latino-American communities in multiple states.
The FBI has also engaged in religious profiling of Muslim American communities in Michigan. “Based on false stereotypes ascribing criminal propensity to minority communities, the FBI is collecting demographic data to map where people from these communities live,” the ACLU said.
The group added, “Nationwide, the FBI is gathering reports on innocent Americans' so-called “suspicious activity” and sharing it with unknown numbers of federal, state and local government agencies.”
In response, the ACLU said its “Mapping the FBI” initiative seeks to expose misconduct, abuse of authority, and unconstitutional profiling and other violations of Americans' rights and liberties across the country.
“As our nation's predominant law enforcement agency, the FBI should be tracking true threats, not wasting resources and inappropriately mapping American communities on the basis of race, ethnicity, national origin, or religion. Law enforcement programs based on evidence and facts are more effective than a system based on racial stereotypes or mass suspicion,” the ACLU said.
It explained that, in the decade since 9/11, “long-standing safeguards on the FBI's investigative and intelligence collection activities have been erased, allowing it to engage in racial and profiling and to initiate intrusive investigations with little or no suspicion of wrongdoing. Taken together, the changes in the FBI's authority have vastly expanding its ability to engage in unlawful and abusive surveillance of innocent Americans.”
The ACLU said it is working in the courts, in Congress and in communities to “expose the ways in which the FBI's expanded authority threatens civil rights and civil liberties.”
The group’s activities include:
Eye on the FBI: Consolidating information obtained through ACLU records requests, lawsuits and reports, the ACLU's “Eye on the FBI” alerts provide regular and detailed analysis of FBI activities that pose a threat to civil liberties. These activities include the use of factually incorrect and bigoted biased counterterrorism materials and FBI racial profiling.
Racial and Ethnic Mapping: 34 ACLU affiliates have filed public records requests to uncover how the FBI is using racial and ethnic demographic information and data about “ethnic-oriented” business and facilities to “map” and investigate local communities. ACLU affiliates in Michigan, New Jersey and Northern California are in federal court to enforce their records requests and secure information for the public.
eGuardian: The ACLU has sued the FBI and the Justice Department to learn more about an FBI monitoring and information-sharing program known as “eGuardian,” through which the bureau collects so-called “Suspicious Activities Reports” (SARs) from local, state and federal law enforcement agencies nationwide.
Spy Files: This ACLU effort paints a comprehensive picture of the vast and expanding infrastructure of surveillance in the U.S. today by local, state and federal law enforcement—including the FBI. Documents obtained by the ACLU show that through this de facto domestic intelligence system, our government is monitoring and recording Americans' First Amendment-protected beliefs and activities.
FBI Interviews: The ACLU is working to educate individuals and community organizations across the country about their rights when encountering law enforcement. Over the past two years, the FBI has significantly increased its use of “voluntary” interviews – especially within specific racial, ethnic, and religious communities – often encouraging interviewees to serve as informants in their communities.
Michael German, a former F.B.I. agent who now works for the A.C.L.U., connected the ethnic mapping to a controversy over F.B.I. training and reference materials, first reported by Wired magazine, that portrayed all Muslims as having a proclivity for terrorism. The A.C.L.U. released additional such materials; the bureau promised last month to review its training and reference materials that refer to culture or religion.
Mr. German said the racial mapping documents and the disputed training documents showed a common “theme of mass suspicion of an entire group based on racial characteristics or religion.” He said the trained agents might be “predisposed to treating everyone from a particular group as suspect.”
Hina Shamsi, the director of the A.C.L.U.’s National Security Project, said the documents showed that the loosened rules had led to an “extremely pernicious” practice of ascribing propensity to crimes to people based on their ethnicity or religion.
“It’s counterproductive because it alienates local communities from their
government, and it also sends the message that the government views prejudice as acceptable,” she said.
Reaction from the Arab-American community was equally forceful.
Hassan Jaber, executive director, of ACCESS (The Arab Community Center for Economic & Social Services), said, “The ACLU information released today sheds a disturbing spotlight on practices that should have been rendered to the dustbin of history. Our organization and many others with whom we work dedicate ourselves to the support of a vibrant American democracy. This happens when all Americans become involved in their communities.”
He added, “Unwarranted surveillance based on racial and ethnic profiling has the opposite effect, creating fear and distance among the targeted communities. This report, combined with recent news of FBI surveillance of day-to-day activities among Muslims in NY, and information about the problematic training techniques employed by the FBI, are causes for serious concern. We believe this situation demands immediate attention and examination.
Documents received by the ACLU in response to its FOIA request paint an alarming picture of FBI Field Office activities. For example:
• A 2009 Detroit FBI field office memorandum references State Department-designated terrorist groups originating in the Middle East and Southeast Asia and asserts that “because Michigan has a large Middle-Eastern and Muslim population, it is prime territory for attempted radicalization and recruitment by these terrorist groups.”
• A 2009 Atlanta FBI Intelligence Note purports to identify potential threats from “Black Separatist” groups (identified as including the National Black Panther Party and the Nation of Islam) and documents population increases among “black/African-American populations in Georgia” from 2000 to 2007.
• Two 2009 San Francisco FBI memoranda state that the “San Francisco domain is home to one of the oldest Chinatowns in North America and one of the largest ethnic Chinese populations outside mainland China,” and justify the opening of an investigation involving racial and national origin mapping because “[w]ithin this community there has been organized crime for generations.” The memoranda similarly justify mapping of the “sizable Russian population” in the region by referencing the existence of “Russian criminal enterprises” in San Francisco.
• Several documents from FBI offices in Alabama, New Jersey, and Georgia show that the FBI is using the threat posed by the criminal gang Mara Salvatrucha (MS-13), which was originally started by Salvadoran immigrants, to justify broad investigations targeting a wide variety of Latino-American communities. The Mobile, Alabama FBI’s Intelligence Note (which states that MS-13’s “primary criminal activity” in Mobile is “graffiti”) contradicts the Newark FBI’s assessment of the gang’s ethnic composition, stating that while “MS-13 members are typically Salvadorans, Guatemalans, and Honduran nationals or first-generation descendants . . . MS-13 has been known to admit Mexicans, Dominicans, and non-Hispanic individuals.” Yet the Mobile FBI office singled out and mapped demographic data for immigrants born in Central America.
The ACLU claims problems of this type emanate from a 2003 Justice Department publication, “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” The guidance prohibited the DOJ from using race “to any degree” in law enforcement investigations (unless describing a specific suspect).
But it carved out a loophole permitting racial and ethnic profiling in national security and border integrity investigations. Exploiting this loophole, in 2008, the FBI issued its Domestic Investigation and Operations Guide (DIOG), which permits FBI agents to conduct Domain Management assessments, which include the authority to collect, analyze and “map” racial and ethnic demographic information and the location of ethnic-oriented business and facilities.
The DIOG also allows the FBI to collect and track “behavioral characteristics reasonably associated with a particular criminal or terrorist element of an ethnic community.” This Domain Management authority is not limited to national security and border integrity investigations.
In 2010, 34 ACLU affiliates filed coordinated FOIA requests with their local FBI field offices to uncover records showing how the FBI has used its racial and ethnic profiling authority under the Guidance on Race and the DIOG.
The ACLU is calling on Attorney General Eric Holder to:
• Enforce the Guidance on Race’s prohibition against the use of race to “any degree” in law enforcement investigations;
• Amend the Guidance on Race to prohibit racial and ethnic profiling without any exceptions, and to add religion and national origin to the barred profiling criteria; and
• Ensure the FBI amends the DIOG to incorporate existing prohibitions on the use of race and ethnicity in FBI investigations, and to incorporate the above amendments to the Guidance on Race.
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