By William Fisher
As legal experts mull over the long-term implications of last week’s court decision declaring illegal the program of warrantless surveillance by the George W. Bush administration, attention now focuses on whether the Obama Justice Department will appeal the controversial ruling.
If it does, says the California lawyer who won last week’s landmark decision, “it will signal that Obama thinks it’s OK for him to permanently inherit Bush’s legacy of cowboy governance.”
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct
Islamic charity in Oregon.
Declaring that the plaintiffs had been “subjected to unlawful surveillance,” the judge said the government was liable to pay them damages.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department’s claim — first asserted by the Bush administration and continued under President Obama — that the charity’s lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.
The judge characterized that expansive use of the so-called state-secrets
privilege as amounting to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”
That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no
decision about whether to appeal.
Among legal experts, however, there was little hesitation. Most of those we contacted hailed the decision as the beginning of the end of unfettered use of the state secrets privilege.
Here’s what some of them had to say:
Steven Aftergood, head of the government secrecy program of the Federation of American Scientists:
“At least by implication, the ruling means that aspects of President Bush's Terrorist Surveillance Program were illegal. Significantly, that determination was made by a court, based on a private complaint years after the fact, and not through congressional intelligence oversight. While Congress did enact the Foreign Intelligence Surveillance Act of 1978, which was the foundation of the court's ruling, contemporary congressional oversight alone would have left the Al-Haramain violation (and untold others) undiscovered and unpunished.
“The new ruling also leaves the state secrets privilege seemingly tarnished and in disrepute. ‘The Government does not rely on an assertion of the [state secrets privilege] to coverup alleged unlawful conduct’, government attorneys told the court. But had the Bush and Obama Administrations' use of the privilege prevailed, that is exactly what would have happened-- conduct that has now been found illegal would have been covered up.
“To the extent that there is a legitimate role for a state secrets privilege, the government might now be motivated to bolster the legitimacy of the privilege, perhaps through enactment of the pending State Secrets Protection Act. That bill would, among other things, provide for judicial review and validation of the substance of assertedly privileged evidence.
“Finally, the ruling casts new light retrospectively on the December 2005 New York Times story that exposed the Bush Administration's warrantless surveillance program. A cogent case has been made by Gabriel Schoenfeld (in Commentary Magazine, March 2006, and in his forthcoming book Necessary Secrets) that the Times story violated a statute that clearly prohibits unauthorized disclosure and publication of classified communications intelligence information. But it was the Times story that set the stage for the Al-Haramain lawsuit.
“With a conclusive judicial ruling that the reported surveillance was in significant respects unlawful, the Times' revelation of the classified surveillance program may more readily be seen as supporting and enabling the rule of law, not defying it.”
Daphne Eviatar of Human Rights First:
“The Al Haramain case is a great example of why courts shouldn't simply accept the government's claims that turning over information about possible government lawbreaking will endanger state secrets. Judge Walker was able to adjudicate this case without jeopardizing national security in any way.
“At the same time, this case underscores why Congress needs to pass a new law that prevents the government from seeking to dismiss these sorts of cases on "state secrets" grounds. The Obama administration insists that its new procedures for invoking the state secrets privilege are an adequate protection against its abuse. But in this case, the Justice Department once again tried to use the privilege to have a case dismissed that charged that the government had engaged in illegal conduct.
“Judge Walker has just affirmed that the government did indeed break the law by wiretapping an Islamic charity and its lawyers without a warrant. Unfortunately, many judges in other cases have simply accepted the government's ‘state secrets’ claims without question. Only by passing a new law narrowing the government's ability to invoke the state secrets privilege to dismiss a lawsuit can we be sure that the government isn't using the claim of "state secrets" to shield itself from liability for breaking the law.”
Prof. Peter Shane of Ohio State University law school:
“The Al-Haramain case strongly supports the value of enacting a legislative framework for the evaluation of state secrets claims. News stories thus far have generally focused on the unusual circumstances of the case, in which the plaintiffs were able to satisfy the trial judge of both their standing and their entitlement to relief without resorting to classified information.
“An equally important detail, however, is that the Court of Appeals had actually engaged in a confidential review of the classified document asserted to be privileged, and upheld the Government's right to protect the document only after judicial inspection of its contents. This strongly supports the notion that a properly circumscribed state secrets privilege can co-exist with the added protection of judicial review, and that it may be possible to allow national security cases to go forward in certain circumstances without compromising intelligence sources and methods.”
Scott Horton, civil rights attorney, lecturer at Columbia University law school and contributing editor to Harper’s Magazine:
“The Justice Department has loudly touted its new standards for the invocation of state secrets, in which a large number of high-level employees are involved before a decision is taken to claim it. That's fine and good, but it's strictly a matter of internal administration. And experience with Justice shows that their practice is quite simple: when in doubt claim state secrets.
“When a case will be embarrassing to Justice, claim state secrets to prevent embarrassment. And when a case will implicate the Justice Department in criminal conduct--by all means, claim state secrets. The Al-Haramain case shows, beyond any doubt, that state secrets was invoked to avoid disclosure of official government criminality, which is absolutely forbidden--a point that even Justice acknowledges.
“There is no discernible difference between the Bush and Obama Justice Departments on this point (and I would add that the conduct of the Obama Justice Department cannot be squared with official statements of policy made by President Obama, which suggests that it is still in some measure a rogue Justice Department).
“The Al-Haramain case reflects growing, and appropriate, judicial skepticism about the use of state secrets, and a growing recognition that Justice has made false or at least very tendentious statements to courts in connection with its invocation of state secrets. It also shows that courts can get around state secrets by precluding the use of classified information and instead deciding the matter entirely on the basis of what is not and cannot be classified. And it shows the courts drawing absolutely appropriate adverse inferences from the Justice Department's obsessive use of secrecy. It's a landmark case, and future litigants can find a road map to suing the government over illegal surveillance in it.”
And finally, there’s Jon Eisenberg, one of the lawyers in the case. Eisenberg says his law firm has done little else in the past four years than attempt to litigate the al Haramain case. He says he has spent much of that time “suspended between rage and disbelief.”
He said he could not understand why President Obama seemed “so determined to morph into former president George W. Bush.”
He speculated: Perhaps it was believing that he would need Republican votes to complete his legislative agenda and not wishing to alienate the opposition party. Perhaps he did not want to be the chief executive remembered for rolling back executive power. Maybe he believes that taking any other course would leave him and his party vulnerable to charges of being ‘soft on terrorism’.
But Eisenberg told us, “Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department.”
"I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. If Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other “must pass” legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told us, “Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote.”
The Obama administration insists that it is being more cautious than its predecessor in asserting the state secrets privilege, invoking it only when it's "absolutely necessary to protect national security."
But, as the Los Angeles Times points out in an editorial, “There is an easy way for Atty. Gen. Eric H. Holder Jr. to make good on that commitment: He should decline to appeal Walker's ruling.”
Saturday, April 03, 2010
One of GWB’s Sand Castles Collapses – on Obama!
By William Fisher
The efforts of the Obama Administration to maintain the secrecy of the counter-terrorism policies of its predecessor, the administration of former President George W. Bush, hit a major speed bump last week.
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon.
The judge found that the plaintiffs had been “subjected to unlawful surveillance,” and ruled that the government was liable to pay them damages.
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the claim of the Department of Justice (DOJ) that the charity’s lawsuit should be dismissed because allowing it to go forward could reveal state secrets and compromise national security. That claim was first asserted by the Bush administration and continued under President Obama.
The judge said that such expansive use of the so-called state-secrets
privilege amounted to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”
Even though Congress had enacted the warrant law “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority, “ the judge said that position would enable government officials to violate that law.
The Haramain case has been especially closely watched because the government inadvertently disclosed a classified document that made clear that the charity and its lawyers had been subjected to surveillance without warrants.
In several previous cases, plaintiffs have been unable to establish “standing” – the right to sue – because they were unable to prove they were wiretapped unlawfully. In the Haramain case, the plaintiffs were not allowed to use the document to prove that they had standing, but Eisenberg and other lawyers were able to use public information to prove they had been wiretapped. Those public records including a 2007 speech by an official of the Federal Bureau of Investigation (FBI) who acknowledged that Al Haramain had been placed under surveillance.
Jon Eisenberg, a lawyer for Al Haramain, told IPS, “President Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department.”
He added, “I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. And if Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
Eisenberg said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”
“Judge Walker is saying that FISA and federal statutes like it are not
optional,” he said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”
The origins of the Al-Haramain case trace to a finding by the Bush Administration’s Treasury Department that the group was funneling money to terrorists in Chechnya. The government shut it down, but inadvertently released a classified document to the group’s lawyers. The lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant. Judge Walker agreed.
The organization sued the Bush Administration. But when the case came to court in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
Among other provisions, the proposed law would allow federal judges to examine information whose release the government claims would comprise national security to determine the validity of that claim. This is what has just been done by Judge Walker, but almost all observers believe the case would be strongest if approved by Congressional statute.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other “must pass” legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told IPS, “Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote.”
The efforts of the Obama Administration to maintain the secrecy of the counter-terrorism policies of its predecessor, the administration of former President George W. Bush, hit a major speed bump last week.
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon.
The judge found that the plaintiffs had been “subjected to unlawful surveillance,” and ruled that the government was liable to pay them damages.
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the claim of the Department of Justice (DOJ) that the charity’s lawsuit should be dismissed because allowing it to go forward could reveal state secrets and compromise national security. That claim was first asserted by the Bush administration and continued under President Obama.
The judge said that such expansive use of the so-called state-secrets
privilege amounted to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”
Even though Congress had enacted the warrant law “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority, “ the judge said that position would enable government officials to violate that law.
The Haramain case has been especially closely watched because the government inadvertently disclosed a classified document that made clear that the charity and its lawyers had been subjected to surveillance without warrants.
In several previous cases, plaintiffs have been unable to establish “standing” – the right to sue – because they were unable to prove they were wiretapped unlawfully. In the Haramain case, the plaintiffs were not allowed to use the document to prove that they had standing, but Eisenberg and other lawyers were able to use public information to prove they had been wiretapped. Those public records including a 2007 speech by an official of the Federal Bureau of Investigation (FBI) who acknowledged that Al Haramain had been placed under surveillance.
Jon Eisenberg, a lawyer for Al Haramain, told IPS, “President Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department.”
He added, “I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. And if Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
Eisenberg said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”
“Judge Walker is saying that FISA and federal statutes like it are not
optional,” he said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”
The origins of the Al-Haramain case trace to a finding by the Bush Administration’s Treasury Department that the group was funneling money to terrorists in Chechnya. The government shut it down, but inadvertently released a classified document to the group’s lawyers. The lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant. Judge Walker agreed.
The organization sued the Bush Administration. But when the case came to court in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
Among other provisions, the proposed law would allow federal judges to examine information whose release the government claims would comprise national security to determine the validity of that claim. This is what has just been done by Judge Walker, but almost all observers believe the case would be strongest if approved by Congressional statute.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other “must pass” legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told IPS, “Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote.”
Thursday, April 01, 2010
DEPORTATION BY QUOTA?
By William Fisher
Immigrants’ rights advocates are up in arms today over an apparent gaffe by a senior government official suggesting that immigration authorities would use a “quota system” to determine the number of people it would deport – followed by a “clarification” from higher-ups that appeared to confirm the quota approach.
The reference to the quota approach was contained in a memorandum written by James M. Chaparro, the director of ICE’s Detention and Removal Operations (DRO), part of the Department of Homeland Security (DHS). It directed DRO officers nationwide to boost deportation numbers, make maximum use of detention and detain more people.
The ACLU and a number of immigration groups met earlier this week with ICE Assistant Secretary John Morton and his senior staff to discuss the reported quota policy and DRO priorities. At the meeting, Morton denied the use of quotas, stated his commitment to work together in a “spirit of candor and transparency” and asked to be “judged on the record, not on rumors.”
But when asked how ICE arrived at its goal deporting at least 400,000 people this fiscal year, Morton said ICE had deported 387,000 individuals last fiscal year and needed to increase this number because Congress had given the agency increased resources.
And, in recent testimony before Congress, Morton said ICE intends to reduce the average length of stay of detainees in custody to allow ICE to remove a higher number of aliens. “Recently, we have taken steps to reduce the average length of stay from 33.5 days as of January 2010 to 28 days by FY 2011. This efficiency is increasingly important as the Secure Communities program leads to the identification of more criminal aliens,” he said.
The American Civil Liberties Union (ACLU), said in a statement, “These enforcement priorities are in direct contradiction with those set forth by Department of Homeland Security (DHS) Secretary Janet Napolitano and ICE Assistant Secretary John Morton who have both repeatedly testified, for much of the past year, that ICE’s priority is the deportation of dangerous criminal offenders.”
The group called on leaders in Congress and in ICE to establish transparent immigration enforcement and detention policies that respect the rule of law and constitutional values.
Mary Giovagnoli, director of the Immigration Policy Center, an arm of the American Immigration Council, told IPS, “The idea of deportation by quota is disappointing. It is sad to see ICE falling into the trap of measuring success by the numbers of people detained and removed.”
That sentiment was echoed by Judy Rabinovitz, Deputy Director of the ACLU Immigrants’ Rights Project. She said, “ICE should not be arresting people just to fill detention beds.”
Giovagnoli added, “DHS is operating on borrowed time. It is amassing a history of failed enforcement initiatives.”
“This is unsound government policy and an imprudent use of American taxpayers’ money that can very easily lead to civil liberties abuses,” said Joanne Lin, ACLU Legislative Counsel, who attended the DHS meeting.
“Immigration enforcement practices should be tied to the needs and demands of America, not driven by arbitrary numerical goals set by ICE. The preoccupation with reaching the number 400,000 has placed intense pressure on all corners of ICE to step up immigration enforcement operations. The ACLU is very concerned that ICE agents, in the name of meeting specific numerical goals, will feel pressured to cut corners and improperly target people who look ‘foreign’ for stops and interrogations.”
Another immigrants’ advocate, Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, said, “ICE has a serious credibility problem as they continue to say one thing while doing another. ICE Assistant Secretary John Morton can not effectively lead an agency when he doesn't know what his field representatives are doing or when his subordinates are delivering messages directly at odds with the purported goals of the organization and the President.”
The Chaparro memo, he said, “is only the latest in a series of agency mishaps that have undermined the administration's credibility on immigration enforcement policy.”
And in Washington, a coalition of immigrant rights groups has demanded the ouster of the nation's top immigration official, charging that underlings at Immigration and Customs Enforcement were thwarting Obama administration policy by setting a quota on deportations.
"The reality is that ICE has gone rogue and needs to be reined in with dramatic action," said Deepak Bhargava, executive director of the Washington-based Center for Community Change. "The agency charged with enforcing the nation's immigration laws is systematically deceiving the president and the American public."
Immigrants’ rights advocates are up in arms today over an apparent gaffe by a senior government official suggesting that immigration authorities would use a “quota system” to determine the number of people it would deport – followed by a “clarification” from higher-ups that appeared to confirm the quota approach.
The reference to the quota approach was contained in a memorandum written by James M. Chaparro, the director of ICE’s Detention and Removal Operations (DRO), part of the Department of Homeland Security (DHS). It directed DRO officers nationwide to boost deportation numbers, make maximum use of detention and detain more people.
The ACLU and a number of immigration groups met earlier this week with ICE Assistant Secretary John Morton and his senior staff to discuss the reported quota policy and DRO priorities. At the meeting, Morton denied the use of quotas, stated his commitment to work together in a “spirit of candor and transparency” and asked to be “judged on the record, not on rumors.”
But when asked how ICE arrived at its goal deporting at least 400,000 people this fiscal year, Morton said ICE had deported 387,000 individuals last fiscal year and needed to increase this number because Congress had given the agency increased resources.
And, in recent testimony before Congress, Morton said ICE intends to reduce the average length of stay of detainees in custody to allow ICE to remove a higher number of aliens. “Recently, we have taken steps to reduce the average length of stay from 33.5 days as of January 2010 to 28 days by FY 2011. This efficiency is increasingly important as the Secure Communities program leads to the identification of more criminal aliens,” he said.
The American Civil Liberties Union (ACLU), said in a statement, “These enforcement priorities are in direct contradiction with those set forth by Department of Homeland Security (DHS) Secretary Janet Napolitano and ICE Assistant Secretary John Morton who have both repeatedly testified, for much of the past year, that ICE’s priority is the deportation of dangerous criminal offenders.”
The group called on leaders in Congress and in ICE to establish transparent immigration enforcement and detention policies that respect the rule of law and constitutional values.
Mary Giovagnoli, director of the Immigration Policy Center, an arm of the American Immigration Council, told IPS, “The idea of deportation by quota is disappointing. It is sad to see ICE falling into the trap of measuring success by the numbers of people detained and removed.”
That sentiment was echoed by Judy Rabinovitz, Deputy Director of the ACLU Immigrants’ Rights Project. She said, “ICE should not be arresting people just to fill detention beds.”
Giovagnoli added, “DHS is operating on borrowed time. It is amassing a history of failed enforcement initiatives.”
“This is unsound government policy and an imprudent use of American taxpayers’ money that can very easily lead to civil liberties abuses,” said Joanne Lin, ACLU Legislative Counsel, who attended the DHS meeting.
“Immigration enforcement practices should be tied to the needs and demands of America, not driven by arbitrary numerical goals set by ICE. The preoccupation with reaching the number 400,000 has placed intense pressure on all corners of ICE to step up immigration enforcement operations. The ACLU is very concerned that ICE agents, in the name of meeting specific numerical goals, will feel pressured to cut corners and improperly target people who look ‘foreign’ for stops and interrogations.”
Another immigrants’ advocate, Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, said, “ICE has a serious credibility problem as they continue to say one thing while doing another. ICE Assistant Secretary John Morton can not effectively lead an agency when he doesn't know what his field representatives are doing or when his subordinates are delivering messages directly at odds with the purported goals of the organization and the President.”
The Chaparro memo, he said, “is only the latest in a series of agency mishaps that have undermined the administration's credibility on immigration enforcement policy.”
And in Washington, a coalition of immigrant rights groups has demanded the ouster of the nation's top immigration official, charging that underlings at Immigration and Customs Enforcement were thwarting Obama administration policy by setting a quota on deportations.
"The reality is that ICE has gone rogue and needs to be reined in with dramatic action," said Deepak Bhargava, executive director of the Washington-based Center for Community Change. "The agency charged with enforcing the nation's immigration laws is systematically deceiving the president and the American public."
Wednesday, March 31, 2010
IMMIGRATION DETENTION ABUSES CONTINUE
By William Fisher
More abuses in the US immigration detention system came to light last week when it was revealed that two mentally disabled men continue to be held in detention while facing possible deportation for criminal convictions despite having already served their time and two other immigrants have been held for more than two years while pursuing legal challenges to deportation.
The two mentally disabled immigrants, both Mexicans, are facing deportation for criminal assault convictions for which they have already served their time. According to separate lawsuits filed in federal court, they continue to be held in detention facilities in violation of their constitutional rights.
Their lawyers said Jose Franco-Gonzalez, 29, of Costa Mesa and Guillermo Gomez-Sanchez, 48, of San Bernardino, “have languished in detention facilities for years because authorities deemed them mentally incompetent.” “Their deportation cases were closed in 2005 and 2006 and the men have since been forgotten, shuttled through a network of jails, psychiatric hospitals and detention centers.”
"This represents a massive failure on the part of our immigration system to create procedures to deal with individuals with disabilities," said attorney Talia Inlender of Public Counsel, one of a coalition of legal advocates, including the American Civil Liberties Union of Southern California, which filed the habeas corpus petitions last week.
ICE attorneys have argued that the law requires the men to continue to be detained because of their crimes.
The men's attorneys said their clients have served their time and should be released. Gomez is a legal resident, and Franco's family -- his parents are legal residents -- has a pending petition that would allow him to apply for a green card.
The men still could face deportation. But their families said the men would be unable to care for themselves in Mexico because of their mental conditions.
Franco, who has moderate mental retardation, was convicted and served a year in jail on an assault with a deadly weapon charge for throwing a rock during a fight between rival gangs, his attorneys said. He reportedly doesn't know his birth date or how to tell time, and has an IQ of about 55.
Gomez, who has paranoid schizophrenia, served one year of a two-year sentence for a 2004 assault conviction stemming from a scuffle over tomatoes he picked without permission. He has previous convictions, including for battery against a police officer, which his attorneys have attributed to his mental illness.
In another immigration development, Immigration and Customs and Enforcement (ICE) in Harrisburg, Pennsylvania, released two immigrants who had been subjected to prolonged immigration detention while pursuing legal challenges to deportation after a court ruled that their continued detention without bond hearings was unlawful. Rather than proceed with bond hearings for the detainees.
Released were Elliot Grenade, a lawful permanent resident from Trinidad and Tobago, and Alexander Alli, a lawful permanent resident from Ghana, without requiring them to post any bail – Alli under minimal reporting requirements and Grenade under electronic monitoring. The two men are represented by the American Civil Liberties Union, the ACLU of Pennsylvania and Pepper Hamilton LLP.
The two men had been detained for over two and a half years and a year and a half, respectively.
The men’s lawyer, Farrin Anello of the American Civil Liberties Union (ACLU), told IPS, “Once the court ruled that our clients were entitled to bond hearings at which the immigration agency would bear the burden of justifying their continued detention, the agency agreed to release them on conditions of supervision. It is a relief that the agency finally acknowledged that their detention was unnecessary, but by denying them any bond hearing prior to the court’s ruling, the agency subjected our clients to years of separation from their families, all at taxpayers’ expense.”
She added, “"Under the mandatory detention law, the government has regularly argued that individuals with minor criminal convictions can be detained for long periods of time while fighting the government’s attempts to deport them, without ever having a bond hearing at which a court considers whether their detention is necessary. But in this case, the court ruled that because of due process concerns, the law does not allow for lengthy detention without such a hearing.”
The ACLU filed a class action lawsuit on May 27, 2009, charging that the government is violating the law by incarcerating people for prolonged periods of time, sometimes for years, while they fight their immigration cases, without providing them with the most basic element of due process — a custody hearing to determine if their prolonged detention is justified.
Attorney Anello told IPS that the ACLU plans to appeal the court's August 2009 decision denying permission to bring this case as a class action “in light of the thousands of immigrants who are detained without hearings.”
In yet another development, the Washington Post has reported that immigration authorities have set quotas for agents that incentivize them to deport non-criminal undocumented non-citizens.
A spokesman for the advocacy group Reform Immigration FOR America (RIFA) said, “This directly contradicts stated White House and administration goals of focusing enforcement efforts primarily on those who have dangerous or violent criminal backgrounds.”
On February 22, James Chaparro, Head of ICE Detention and Removal Operations issued a memo to field agents indicating that the agency had decided to implement a quota system for field agents to boost the number of deportations "with a 'surge' in efforts to catch illegal immigrants" whose only violation was related to immigration or visa applications or reentering the United States after being deported."
RIFA said this was at odds with statements from the President and Secretary [of Homeland Security, Janet] Napolitano whose purported enforcement and security goals are to focus deportation efforts on dangerous or violent criminals. To explain the contradiction, an agency spokesman indicated that Chaparro's memo was "inconsistent" with the administration's point of view and inconsistent with Secretary Napolitano. Adding to the confusion, Chapparro later issued a 'clarifying' memo that did not rescind or abandon the quota system he referenced.
More abuses in the US immigration detention system came to light last week when it was revealed that two mentally disabled men continue to be held in detention while facing possible deportation for criminal convictions despite having already served their time and two other immigrants have been held for more than two years while pursuing legal challenges to deportation.
The two mentally disabled immigrants, both Mexicans, are facing deportation for criminal assault convictions for which they have already served their time. According to separate lawsuits filed in federal court, they continue to be held in detention facilities in violation of their constitutional rights.
Their lawyers said Jose Franco-Gonzalez, 29, of Costa Mesa and Guillermo Gomez-Sanchez, 48, of San Bernardino, “have languished in detention facilities for years because authorities deemed them mentally incompetent.” “Their deportation cases were closed in 2005 and 2006 and the men have since been forgotten, shuttled through a network of jails, psychiatric hospitals and detention centers.”
"This represents a massive failure on the part of our immigration system to create procedures to deal with individuals with disabilities," said attorney Talia Inlender of Public Counsel, one of a coalition of legal advocates, including the American Civil Liberties Union of Southern California, which filed the habeas corpus petitions last week.
ICE attorneys have argued that the law requires the men to continue to be detained because of their crimes.
The men's attorneys said their clients have served their time and should be released. Gomez is a legal resident, and Franco's family -- his parents are legal residents -- has a pending petition that would allow him to apply for a green card.
The men still could face deportation. But their families said the men would be unable to care for themselves in Mexico because of their mental conditions.
Franco, who has moderate mental retardation, was convicted and served a year in jail on an assault with a deadly weapon charge for throwing a rock during a fight between rival gangs, his attorneys said. He reportedly doesn't know his birth date or how to tell time, and has an IQ of about 55.
Gomez, who has paranoid schizophrenia, served one year of a two-year sentence for a 2004 assault conviction stemming from a scuffle over tomatoes he picked without permission. He has previous convictions, including for battery against a police officer, which his attorneys have attributed to his mental illness.
In another immigration development, Immigration and Customs and Enforcement (ICE) in Harrisburg, Pennsylvania, released two immigrants who had been subjected to prolonged immigration detention while pursuing legal challenges to deportation after a court ruled that their continued detention without bond hearings was unlawful. Rather than proceed with bond hearings for the detainees.
Released were Elliot Grenade, a lawful permanent resident from Trinidad and Tobago, and Alexander Alli, a lawful permanent resident from Ghana, without requiring them to post any bail – Alli under minimal reporting requirements and Grenade under electronic monitoring. The two men are represented by the American Civil Liberties Union, the ACLU of Pennsylvania and Pepper Hamilton LLP.
The two men had been detained for over two and a half years and a year and a half, respectively.
The men’s lawyer, Farrin Anello of the American Civil Liberties Union (ACLU), told IPS, “Once the court ruled that our clients were entitled to bond hearings at which the immigration agency would bear the burden of justifying their continued detention, the agency agreed to release them on conditions of supervision. It is a relief that the agency finally acknowledged that their detention was unnecessary, but by denying them any bond hearing prior to the court’s ruling, the agency subjected our clients to years of separation from their families, all at taxpayers’ expense.”
She added, “"Under the mandatory detention law, the government has regularly argued that individuals with minor criminal convictions can be detained for long periods of time while fighting the government’s attempts to deport them, without ever having a bond hearing at which a court considers whether their detention is necessary. But in this case, the court ruled that because of due process concerns, the law does not allow for lengthy detention without such a hearing.”
The ACLU filed a class action lawsuit on May 27, 2009, charging that the government is violating the law by incarcerating people for prolonged periods of time, sometimes for years, while they fight their immigration cases, without providing them with the most basic element of due process — a custody hearing to determine if their prolonged detention is justified.
Attorney Anello told IPS that the ACLU plans to appeal the court's August 2009 decision denying permission to bring this case as a class action “in light of the thousands of immigrants who are detained without hearings.”
In yet another development, the Washington Post has reported that immigration authorities have set quotas for agents that incentivize them to deport non-criminal undocumented non-citizens.
A spokesman for the advocacy group Reform Immigration FOR America (RIFA) said, “This directly contradicts stated White House and administration goals of focusing enforcement efforts primarily on those who have dangerous or violent criminal backgrounds.”
On February 22, James Chaparro, Head of ICE Detention and Removal Operations issued a memo to field agents indicating that the agency had decided to implement a quota system for field agents to boost the number of deportations "with a 'surge' in efforts to catch illegal immigrants" whose only violation was related to immigration or visa applications or reentering the United States after being deported."
RIFA said this was at odds with statements from the President and Secretary [of Homeland Security, Janet] Napolitano whose purported enforcement and security goals are to focus deportation efforts on dangerous or violent criminals. To explain the contradiction, an agency spokesman indicated that Chaparro's memo was "inconsistent" with the administration's point of view and inconsistent with Secretary Napolitano. Adding to the confusion, Chapparro later issued a 'clarifying' memo that did not rescind or abandon the quota system he referenced.
Saturday, March 27, 2010
Practical Immigration Solutions
By William Fisher
As the administration of President Barack Obama and Congressional lawmakers prepare to tackle comprehensive immigration reform, a leading immigration advocate is charging that Government inaction has resulted in “a range of enforcement-only initiatives that have cost the country billions of dollars, while doing little to impede the flow of unauthorized immigrants.”
According to a new report by the Immigration Policy Center of the American Immigration Council, “the current immigration system’s structural failures, and the inadequate or misguided responses to these failures, have led to the largest unauthorized population” in American history.
“Nearly everyone agrees that our immigration system is badly broken and in urgent need of reform. Under the existing system people are dying at the border, immigrants are living and working in abject conditions, families trying to reunite legally are separated for many years, employers are unable to hire the workers that they need, U.S. workers suffer from the unlevel playing field shared with exploited immigrant workers, and law-abiding U.S. employers are in unfair competition with unscrupulous employers who increase profits by hiring cheap and vulnerable labor,” the report says, adding, “Meanwhile, the United States continues to spend billions of dollars on enforcing these broken laws.”
“Focusing on the Solutions: The Key Principles of Comprehensive Immigration Reform” summarizes the key elements that need to be included in a successful legislative package.
Commenting on recent proposals made by Congressional lawmakers, IPC Director Mary Giovagnoli told IPS that statements from Senators Charles Schumer of New York and Lindsey Graham of South Carolina “mark renewed commitment to providing immigration reform that will bolster the economy and provide for America's future.”
She added, "We encourage the President and Senators Schumer and Graham to go beyond words and produce legislation that will finally fix our broken immigration system once and for all." An outline of the lawmakers’ ideas appeared in The Washington Post.
The IPC report identifies ten areas it says lawmakers need to concentrate on.
First, insufficient numbers of visas are made available to bring in either high-skilled or less-skilled workers at the levels needed to meet the changing needs of the U.S. economy and labor market.
Second, family members who are eligible for visas must wait up to 20 years to be reunited with family living in the United States.
Third, wage and workplace violations by unscrupulous employers who exploit immigrant workers are undercutting honest businesses and harming all workers.
Fourth, inadequate government infrastructure is delaying the integration of immigrants who want to become U.S. citizens.
Fifth, Legalization. “Most Americans understand that we cannot deport 10-1 million people or hope that they will choose to ‘self-deport.’ It is clear that current enforcement-only responses have not been effective and are not a realistic solution to the current crisis. The underlying flaws of the legal immigration system must be addressed in order to create a fair, humane, and practical immigration system for the 21st century -- a system that is responsive to the needs of our economy and encourages legal behavior.”
“Requiring the 10-11 million unauthorized immigrants residing in the U.S. to register with the government and meet eligibility criteria in order to gain legal status is a key element of comprehensive immigration reform,” the report says.
Sixth, the report says it’s likely that Congress “will transform the way employers verify the work authorization of their workers. Since this will affect immigrants and citizens alike, and because an error in the system can cost a worker his job and paycheck, it is important to make the system effective.”
Seventh, comprehensive reform of our broken immigration system will “necessarily transform the role of immigration enforcement.” Legalization of unauthorized immigrants already in the United States “will result in a significantly smaller unauthorized population, and the creation of flexible legal channels for those immigrants we need will ensure that future flows of illegal immigration are minimal.” But the report says there will continue to be a need to enforce the nation’s immigration laws.
Eighth, the report notes that family-oriented immigration has always been a pillar of the U.S. immigration system. “However, many close family members of U.S. citizens and legal permanent residents are currently waiting years, if not decades, to reunite with their loved ones.”
Ninth, the report says, comprehensive immigration reform must address the future needs of the U.S. economy and create a well-functioning and flexible system of permanent and temporary visas for both high-skilled and low-skilled workers. Policymakers must recognize that if we create a legal immigration system that functions well, there will be less pressure on immigrants come to the U.S. illegally and for employers to hire unauthorized workers.”
Tenth, the report says immigrant integration will benefit everyone because “it enables immigrants to realize their full potential, contribute more to the U.S. economy, and develop deeper community ties.” It notes that the U.S. “has no national strategy for facilitating integration and insufficient infrastructure to facilitate a smooth transition from immigrant to citizen.”
As the administration of President Barack Obama and Congressional lawmakers prepare to tackle comprehensive immigration reform, a leading immigration advocate is charging that Government inaction has resulted in “a range of enforcement-only initiatives that have cost the country billions of dollars, while doing little to impede the flow of unauthorized immigrants.”
According to a new report by the Immigration Policy Center of the American Immigration Council, “the current immigration system’s structural failures, and the inadequate or misguided responses to these failures, have led to the largest unauthorized population” in American history.
“Nearly everyone agrees that our immigration system is badly broken and in urgent need of reform. Under the existing system people are dying at the border, immigrants are living and working in abject conditions, families trying to reunite legally are separated for many years, employers are unable to hire the workers that they need, U.S. workers suffer from the unlevel playing field shared with exploited immigrant workers, and law-abiding U.S. employers are in unfair competition with unscrupulous employers who increase profits by hiring cheap and vulnerable labor,” the report says, adding, “Meanwhile, the United States continues to spend billions of dollars on enforcing these broken laws.”
“Focusing on the Solutions: The Key Principles of Comprehensive Immigration Reform” summarizes the key elements that need to be included in a successful legislative package.
Commenting on recent proposals made by Congressional lawmakers, IPC Director Mary Giovagnoli told IPS that statements from Senators Charles Schumer of New York and Lindsey Graham of South Carolina “mark renewed commitment to providing immigration reform that will bolster the economy and provide for America's future.”
She added, "We encourage the President and Senators Schumer and Graham to go beyond words and produce legislation that will finally fix our broken immigration system once and for all." An outline of the lawmakers’ ideas appeared in The Washington Post.
The IPC report identifies ten areas it says lawmakers need to concentrate on.
First, insufficient numbers of visas are made available to bring in either high-skilled or less-skilled workers at the levels needed to meet the changing needs of the U.S. economy and labor market.
Second, family members who are eligible for visas must wait up to 20 years to be reunited with family living in the United States.
Third, wage and workplace violations by unscrupulous employers who exploit immigrant workers are undercutting honest businesses and harming all workers.
Fourth, inadequate government infrastructure is delaying the integration of immigrants who want to become U.S. citizens.
Fifth, Legalization. “Most Americans understand that we cannot deport 10-1 million people or hope that they will choose to ‘self-deport.’ It is clear that current enforcement-only responses have not been effective and are not a realistic solution to the current crisis. The underlying flaws of the legal immigration system must be addressed in order to create a fair, humane, and practical immigration system for the 21st century -- a system that is responsive to the needs of our economy and encourages legal behavior.”
“Requiring the 10-11 million unauthorized immigrants residing in the U.S. to register with the government and meet eligibility criteria in order to gain legal status is a key element of comprehensive immigration reform,” the report says.
Sixth, the report says it’s likely that Congress “will transform the way employers verify the work authorization of their workers. Since this will affect immigrants and citizens alike, and because an error in the system can cost a worker his job and paycheck, it is important to make the system effective.”
Seventh, comprehensive reform of our broken immigration system will “necessarily transform the role of immigration enforcement.” Legalization of unauthorized immigrants already in the United States “will result in a significantly smaller unauthorized population, and the creation of flexible legal channels for those immigrants we need will ensure that future flows of illegal immigration are minimal.” But the report says there will continue to be a need to enforce the nation’s immigration laws.
Eighth, the report notes that family-oriented immigration has always been a pillar of the U.S. immigration system. “However, many close family members of U.S. citizens and legal permanent residents are currently waiting years, if not decades, to reunite with their loved ones.”
Ninth, the report says, comprehensive immigration reform must address the future needs of the U.S. economy and create a well-functioning and flexible system of permanent and temporary visas for both high-skilled and low-skilled workers. Policymakers must recognize that if we create a legal immigration system that functions well, there will be less pressure on immigrants come to the U.S. illegally and for employers to hire unauthorized workers.”
Tenth, the report says immigrant integration will benefit everyone because “it enables immigrants to realize their full potential, contribute more to the U.S. economy, and develop deeper community ties.” It notes that the U.S. “has no national strategy for facilitating integration and insufficient infrastructure to facilitate a smooth transition from immigrant to citizen.”
Right Wing Blocks Legal Aid
By William Fisher
For the past 14 years, the non-profit company set up by Congress to provide legal services for the poor, has been forced to short-change the needy because of severe Government restrictions on how it can use its funding.
The Legal Services Corporation (LSC) has been attempting to operate with large chunks of its potential activity foreclosed. It has been unable to help with both programs that receive government funds and even those that use non-federal funds raised by legal services programs.
Since their passage, these restrictions have been plagued by repeated First Amendment questions and have sparked calls for change, says watchdog group OMB Watch. (OMB stands for the Government’s powerful Office of Management and Budget.)
Lee Mason, Director of Nonprofit Speech Rights at the Washington-based advocacy group told IPS, “The restrictions on the use of non-federal funds of the Legal Services Corporation amount to an all out attack on the constitutionally guaranteed First Amendment Rights of millions of Citizens of America."
The Legal Services Corporation (LSC) is a private, non-profit corporation established by the United States Congress to seek to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. The LSC was created in 1974 with bipartisan congressional sponsorship and the support of the Nixon administration, and is funded through the congressional appropriations process.
OMB Watch says the origin of the funding restrictions was a concerted effort by right-wing interests to deny low-income people access to the courts by destroying LSC. In “Mandate for Leadership,” the conservative agenda published on the eve of President Ronald Reagan’s first term in 1981, the conservative Heritage Foundation called for LSC’s wholesale destruction. Barring its complete demise, Heritage argued for steep budget cuts and the imposition of broad restrictions through LSC appropriations riders.”
According to state bar associations, court-established Access to Justice Commissions, and state legal services planning bodies, the funding restrictions have had disastrous consequences for poor people who need legal services.
These organizations have found that the restrictions placed on organizations receiving federal funding present "major barriers to justice for low-income persons . . ." (Arkansas); prevent representation "in cases ranging from an illegal tenant lockout to consumer fraud, to civil rights enforcement." (New Hampshire); have a "negative impact," "in actual practice (causing great inefficiencies in the way applicants for service must be processed and referred) and principle (denial of essential and fundamental legal assistance to some who need it)." (New Jersey); are "major obstacles . . . for achieving ‘equal access' for disfavored clients and politically unpopular cases." (Texas); and limit programs' "use of the most appropriate legal strategies to effectively represent low income clients with high priority legal needs."(Washington).
The LSC Act specifically prohibits organizations receiving LSC funding from using LSC or private funds to engage in: political activities; most criminal cases; "challenging criminal convictions against officers of the court or law enforcement officers; organizing activities, including training for – or encouraging of – political or labor activities"; litigation to receive "non-therapeutic abortions" or "compel the provision of abortion services over religious or moral objections"; and "proceedings involving desegregation of public schools, military service or assisted suicide."
Additional funding restrictions have been added over the years. In 1996, Congress expanded the LSC restrictions to apply to funds from all sources, including federal, state, local, and private funds, with the exception of tribal funds. It also prohibited additional activities, including: class actions; all abortion-related litigation; representing prisoners; representing people who are being evicted from public housing for allegedly distributing illegal drugs; redistricting activities; lobbying governmental bodies, with limited exceptions; and representing non-U.S. citizens, with limited exceptions.
Current LSC rules also require legal aid programs that wish to lobby, spend
private dollars on class action lawsuits, comment on proposed regulations, or
represent certain types of clients, such as prisoners or certain immigrants, to
set up physically separate offices with separate staff.
Legislative efforts to overturn the LSC funding restrictions have increased in
the past year. In March 2009, Sen. Tom Harkin, an Iowa Democrat, introduced the Civil Access to Justice Act of 2009 that would end the restrictions on the use of non-federal funds by LSC grantees, except those related to abortion litigation and a few other activities. "Lifting these restrictions allows individual states, cities and donors the ability to determine themselves how best to spend non-federal funds to ensure access to the courts," said Harkin.
Public sentiment also appears to be on the side of providing legal access to
those in need. OMB Watch charges that, “Since the Reagan administration, conservatives have sounded a drumbeat of opposition directed at the LSC. The Reagan budgets annually proposed elimination of legal services, only to have those services protected by Congress. Over the years, LSC funding has limped along. However, with the recent economic downturn, there has been a noticeable uptick in support for legal services. According to the Associated Press, two-thirds of those polled in 2009 on behalf of the American Bar Association said they favor federal funding for people who need legal assistance. Notably, Congress increased funding for the LSC in the last appropriations cycle.”
For 2007, LSC had a budget of some $350 million. This year it has asked Congress to provide $516.5 million, with more than 95 percent of the budget request going to fund 136 nonprofit legal aid programs across the nation that provide civil legal assistance to the nation's poor.
For the past 14 years, the non-profit company set up by Congress to provide legal services for the poor, has been forced to short-change the needy because of severe Government restrictions on how it can use its funding.
The Legal Services Corporation (LSC) has been attempting to operate with large chunks of its potential activity foreclosed. It has been unable to help with both programs that receive government funds and even those that use non-federal funds raised by legal services programs.
Since their passage, these restrictions have been plagued by repeated First Amendment questions and have sparked calls for change, says watchdog group OMB Watch. (OMB stands for the Government’s powerful Office of Management and Budget.)
Lee Mason, Director of Nonprofit Speech Rights at the Washington-based advocacy group told IPS, “The restrictions on the use of non-federal funds of the Legal Services Corporation amount to an all out attack on the constitutionally guaranteed First Amendment Rights of millions of Citizens of America."
The Legal Services Corporation (LSC) is a private, non-profit corporation established by the United States Congress to seek to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. The LSC was created in 1974 with bipartisan congressional sponsorship and the support of the Nixon administration, and is funded through the congressional appropriations process.
OMB Watch says the origin of the funding restrictions was a concerted effort by right-wing interests to deny low-income people access to the courts by destroying LSC. In “Mandate for Leadership,” the conservative agenda published on the eve of President Ronald Reagan’s first term in 1981, the conservative Heritage Foundation called for LSC’s wholesale destruction. Barring its complete demise, Heritage argued for steep budget cuts and the imposition of broad restrictions through LSC appropriations riders.”
According to state bar associations, court-established Access to Justice Commissions, and state legal services planning bodies, the funding restrictions have had disastrous consequences for poor people who need legal services.
These organizations have found that the restrictions placed on organizations receiving federal funding present "major barriers to justice for low-income persons . . ." (Arkansas); prevent representation "in cases ranging from an illegal tenant lockout to consumer fraud, to civil rights enforcement." (New Hampshire); have a "negative impact," "in actual practice (causing great inefficiencies in the way applicants for service must be processed and referred) and principle (denial of essential and fundamental legal assistance to some who need it)." (New Jersey); are "major obstacles . . . for achieving ‘equal access' for disfavored clients and politically unpopular cases." (Texas); and limit programs' "use of the most appropriate legal strategies to effectively represent low income clients with high priority legal needs."(Washington).
The LSC Act specifically prohibits organizations receiving LSC funding from using LSC or private funds to engage in: political activities; most criminal cases; "challenging criminal convictions against officers of the court or law enforcement officers; organizing activities, including training for – or encouraging of – political or labor activities"; litigation to receive "non-therapeutic abortions" or "compel the provision of abortion services over religious or moral objections"; and "proceedings involving desegregation of public schools, military service or assisted suicide."
Additional funding restrictions have been added over the years. In 1996, Congress expanded the LSC restrictions to apply to funds from all sources, including federal, state, local, and private funds, with the exception of tribal funds. It also prohibited additional activities, including: class actions; all abortion-related litigation; representing prisoners; representing people who are being evicted from public housing for allegedly distributing illegal drugs; redistricting activities; lobbying governmental bodies, with limited exceptions; and representing non-U.S. citizens, with limited exceptions.
Current LSC rules also require legal aid programs that wish to lobby, spend
private dollars on class action lawsuits, comment on proposed regulations, or
represent certain types of clients, such as prisoners or certain immigrants, to
set up physically separate offices with separate staff.
Legislative efforts to overturn the LSC funding restrictions have increased in
the past year. In March 2009, Sen. Tom Harkin, an Iowa Democrat, introduced the Civil Access to Justice Act of 2009 that would end the restrictions on the use of non-federal funds by LSC grantees, except those related to abortion litigation and a few other activities. "Lifting these restrictions allows individual states, cities and donors the ability to determine themselves how best to spend non-federal funds to ensure access to the courts," said Harkin.
Public sentiment also appears to be on the side of providing legal access to
those in need. OMB Watch charges that, “Since the Reagan administration, conservatives have sounded a drumbeat of opposition directed at the LSC. The Reagan budgets annually proposed elimination of legal services, only to have those services protected by Congress. Over the years, LSC funding has limped along. However, with the recent economic downturn, there has been a noticeable uptick in support for legal services. According to the Associated Press, two-thirds of those polled in 2009 on behalf of the American Bar Association said they favor federal funding for people who need legal assistance. Notably, Congress increased funding for the LSC in the last appropriations cycle.”
For 2007, LSC had a budget of some $350 million. This year it has asked Congress to provide $516.5 million, with more than 95 percent of the budget request going to fund 136 nonprofit legal aid programs across the nation that provide civil legal assistance to the nation's poor.
Friday, March 26, 2010
Post-Racial What?
By William Fisher
Just in case you've bought into the "post-racial" era of "Yes, We Can," consider the plight of Zachari Klawonn.
Klawonn is an Army Specialist, the son of an American father and a Moroccan mother. He is 20 years old.
As told by The Washington Post, Klawonn was sitting in his barrack room when he heard a THUD. THUD. THUD. Someone was mule-kicking the door of his room, leaving marks that weeks later -- long after Army investigators had come and gone -- would still be visible.
Tthe pounding had stopped by the time Klawonn got to the door. What he found was a note: "F--- YOU RAGHEAD BURN IN HELL" written with a black marker.
But Klawonn had been called worse in the military: Sand monkey. Carpet jockey. Raghead. Zachari bin Laden. Nidal Klawonn. "But the fact that someone had tracked him down in the dead of night to deliver this specific message sent a chill through his body," The Post wrote.
Klawonn had been told by Army recruiters in his home town of Bradenton, Fla.,just how desperate was the Army's need for Muslim soldiers like him to help win the wars in Iraq and Afghanistan.
But he was ordered not to fast and pray. His Koran was torn up. Other soldiers jeered and threw water bottles at him. His platoon sergeant warned him to hide his faith to avoid getting a "beating" by fellow troops. But nothing changed, despite the formal complaints he lodged.
Then came the November shootings at Fort Hood and the arrest of a Muslim soldier he'd never met: Maj. Nidal M. Hasan, who is charged with killing 13 people and injuring more than 30 in a massacre that stunned the nation. And The Post says that from that point on, things only got worse.
Klawonn believed that Hasan's rampage had only added to his visibility.
Now rewind to 1950. The Korean War was being fought. Like millions of others, I was drafted and - because I has been a musician and a newspaper reporter in civilian life - I was assigned to a Military Police unit - the 800th Military Police Company stationed at First Army Headquarters on Governor's Island in scenic New York harbor. For reasons that remain mysteries to this day, almost everyone drafted into that unit had a college degree. And many were Jews.
But first came basic training, which took us to Camp Kilmer in New Jersey. During World War II, Kilmer had played a major role in shipping GIs out to fight in Europe and the Pacific - and I and my fellow conscripts lived in terror of finding ourselves on a slow boat to Korea.
There was, however, an item at Kilmer that was even scarier than the idea of shipping out. That item came in the form of our company's drill sergeant, let's call him Sgt. Duffy. Sgt. Duffy was a compact-looking Regular Army soldier, with the distinctive red nose of a guy who drinks too much.
But his nose wasn't the problem; his mouth was.
"OK, listen up you college Jewboys. Christ-killers. You Kikes can't be good soldiers, but it's my job to try, so I will."
And try he did. He subjected us to weeks of scurrilous religious and ethnic hate speech, even including homespun epithets from the South, which none of us Northeasterners had ever heard.
He called us "Ni**er-lovers," though the major civil rights battles had not yet been fought. He insulted our families by describing us simultaneously as "the money changers who own all the banks" and "the communists who will take over the world and take our money away."
He woke us up at three in the morning to send us out in the pouring rain carrying a full backpack and our M-1 rifles, to make us run around and around what seemed an endless parade ground track until we collapsed from exhaustion, and many of us did.
To Duffy's credit, sort of, he stayed out in the rain with his running charges until breakfast time, all the while raging at Jewboys, Kollege-Kikes, N***er-Lovers and Fa**ots.
Nor was this a case of subjecting new recruits to "tough love" to harden us for battle. This was a case of modifying the Army Basic Training Manual to accommodate a level of bigotry that would normally be ascribed to our military enemies.
And Duffy wasn't the only bigot. We learned from recruits in other units that they were hearing much of the same. It was almost like it was Standard Operating Procedure.
But it wasn't, of course. It just happened to be the kind of behavior about which the Army was comfortable turning a blind eye. Just as it did when the soldiers it shipped off to Korea just happened to be Africa-Americans.
Well, I was about to write that I was certain the Army has changed exponentially since those Dark Ages of the Korean 1950s. But what about Spec. Klawonn?
Is Islamophobia worse or better than anti-Semitism or homophobia or "Ni***r-Loving"? The point is largely rhetorical; they're all equally reprehensible.
But we need to acknowledge that this kind of stuff has been around in American society forever and, despite (or perhaps because of) our election of an African-American as our president, it shows few signs of going away any time soon. On the contrary, all the data suggests that hate-speech - and actions - are increasing.
Now, if you'd like to try to find solace in delusional thinking, you can pretend that the weekend's ugly racism, homophobia and generalized hate exhibited by the Tea Partiers -- egged on by Republican Congresspersons and staffers cheering from a second-floor balcony was not typical of how Americans think and feel.
You can pretend that this kind of garbage ended with the Civil Rights Act of 1964. But, sorry to say, that law simply served to amp up the resistance of the White Supremacists. And it took many years for us to turn down their volume, though the craziness that sparked the volume is still with us.
So maybe it's not "typical" anymore, but it's there, still very much with us.
For me, the saddest part of this current saga is that the Republican Congressional leadership has been, shall we say, muted in its condemnation of the Tea Party protestors. GOP leaders have instead blamed Democrats for using the attacks fto gain political advantage -- to ginn up outrage and raise campaign contributions.
Even though most of the Tea Party folks self-identify as Republicans, this should have been a time when Democratic and Republican leaders decided to rise above partisanship and present a truly united front unequivocally condemning hate speech, incitement and violence.
Alas, to date only the Democrats seem to be able to muster the courage to call out the Tea Partiers. We can only hope that a belated coming together will happen now that all the health care legislation has become law.
But I'm not holding my breath.
Just in case you've bought into the "post-racial" era of "Yes, We Can," consider the plight of Zachari Klawonn.
Klawonn is an Army Specialist, the son of an American father and a Moroccan mother. He is 20 years old.
As told by The Washington Post, Klawonn was sitting in his barrack room when he heard a THUD. THUD. THUD. Someone was mule-kicking the door of his room, leaving marks that weeks later -- long after Army investigators had come and gone -- would still be visible.
Tthe pounding had stopped by the time Klawonn got to the door. What he found was a note: "F--- YOU RAGHEAD BURN IN HELL" written with a black marker.
But Klawonn had been called worse in the military: Sand monkey. Carpet jockey. Raghead. Zachari bin Laden. Nidal Klawonn. "But the fact that someone had tracked him down in the dead of night to deliver this specific message sent a chill through his body," The Post wrote.
Klawonn had been told by Army recruiters in his home town of Bradenton, Fla.,just how desperate was the Army's need for Muslim soldiers like him to help win the wars in Iraq and Afghanistan.
But he was ordered not to fast and pray. His Koran was torn up. Other soldiers jeered and threw water bottles at him. His platoon sergeant warned him to hide his faith to avoid getting a "beating" by fellow troops. But nothing changed, despite the formal complaints he lodged.
Then came the November shootings at Fort Hood and the arrest of a Muslim soldier he'd never met: Maj. Nidal M. Hasan, who is charged with killing 13 people and injuring more than 30 in a massacre that stunned the nation. And The Post says that from that point on, things only got worse.
Klawonn believed that Hasan's rampage had only added to his visibility.
Now rewind to 1950. The Korean War was being fought. Like millions of others, I was drafted and - because I has been a musician and a newspaper reporter in civilian life - I was assigned to a Military Police unit - the 800th Military Police Company stationed at First Army Headquarters on Governor's Island in scenic New York harbor. For reasons that remain mysteries to this day, almost everyone drafted into that unit had a college degree. And many were Jews.
But first came basic training, which took us to Camp Kilmer in New Jersey. During World War II, Kilmer had played a major role in shipping GIs out to fight in Europe and the Pacific - and I and my fellow conscripts lived in terror of finding ourselves on a slow boat to Korea.
There was, however, an item at Kilmer that was even scarier than the idea of shipping out. That item came in the form of our company's drill sergeant, let's call him Sgt. Duffy. Sgt. Duffy was a compact-looking Regular Army soldier, with the distinctive red nose of a guy who drinks too much.
But his nose wasn't the problem; his mouth was.
"OK, listen up you college Jewboys. Christ-killers. You Kikes can't be good soldiers, but it's my job to try, so I will."
And try he did. He subjected us to weeks of scurrilous religious and ethnic hate speech, even including homespun epithets from the South, which none of us Northeasterners had ever heard.
He called us "Ni**er-lovers," though the major civil rights battles had not yet been fought. He insulted our families by describing us simultaneously as "the money changers who own all the banks" and "the communists who will take over the world and take our money away."
He woke us up at three in the morning to send us out in the pouring rain carrying a full backpack and our M-1 rifles, to make us run around and around what seemed an endless parade ground track until we collapsed from exhaustion, and many of us did.
To Duffy's credit, sort of, he stayed out in the rain with his running charges until breakfast time, all the while raging at Jewboys, Kollege-Kikes, N***er-Lovers and Fa**ots.
Nor was this a case of subjecting new recruits to "tough love" to harden us for battle. This was a case of modifying the Army Basic Training Manual to accommodate a level of bigotry that would normally be ascribed to our military enemies.
And Duffy wasn't the only bigot. We learned from recruits in other units that they were hearing much of the same. It was almost like it was Standard Operating Procedure.
But it wasn't, of course. It just happened to be the kind of behavior about which the Army was comfortable turning a blind eye. Just as it did when the soldiers it shipped off to Korea just happened to be Africa-Americans.
Well, I was about to write that I was certain the Army has changed exponentially since those Dark Ages of the Korean 1950s. But what about Spec. Klawonn?
Is Islamophobia worse or better than anti-Semitism or homophobia or "Ni***r-Loving"? The point is largely rhetorical; they're all equally reprehensible.
But we need to acknowledge that this kind of stuff has been around in American society forever and, despite (or perhaps because of) our election of an African-American as our president, it shows few signs of going away any time soon. On the contrary, all the data suggests that hate-speech - and actions - are increasing.
Now, if you'd like to try to find solace in delusional thinking, you can pretend that the weekend's ugly racism, homophobia and generalized hate exhibited by the Tea Partiers -- egged on by Republican Congresspersons and staffers cheering from a second-floor balcony was not typical of how Americans think and feel.
You can pretend that this kind of garbage ended with the Civil Rights Act of 1964. But, sorry to say, that law simply served to amp up the resistance of the White Supremacists. And it took many years for us to turn down their volume, though the craziness that sparked the volume is still with us.
So maybe it's not "typical" anymore, but it's there, still very much with us.
For me, the saddest part of this current saga is that the Republican Congressional leadership has been, shall we say, muted in its condemnation of the Tea Party protestors. GOP leaders have instead blamed Democrats for using the attacks fto gain political advantage -- to ginn up outrage and raise campaign contributions.
Even though most of the Tea Party folks self-identify as Republicans, this should have been a time when Democratic and Republican leaders decided to rise above partisanship and present a truly united front unequivocally condemning hate speech, incitement and violence.
Alas, to date only the Democrats seem to be able to muster the courage to call out the Tea Partiers. We can only hope that a belated coming together will happen now that all the health care legislation has become law.
But I'm not holding my breath.
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