Sunday, April 25, 2010

Welcome to Arizona!

By William Fisher

Immigration experts, law enforcement officials and religious leaders are hitting back at the draconian legislation signed into law in Arizona last week, charging it will subject the State to “staggering potential costs” and vowing to have the law declared unconstitutional in the courts.

In one Arizona county alone, Yuma County, the sheriff estimates that law-enforcement agencies would spend between $775,880 and $1,163,820 in processing expenses; Jail costs between $21,195,600 and $96,086,720; and
attorney and staff fees between $810,067-$1,620,134.

The estimates by Yuma County Sheriff Ralph E. Ogden were produced because there is no state-wide fiscal data yet available on the cost of the legislation’s implementation. Sheriff Ogden’s estimates were prepared for inclusion in a fact sheet produced in response to similar legislation in 2006. Yuma County is one of Arizona's 15 counties, with a population of about 200,000. The Sheriff's fact sheet also shows that additional detention facilities would have to be built at unknown costs.

These costs do not account for lost revenue such as tax contributions and consumer purchasing, as well as the potentially expensive lawsuits that will likely ensue.

Republican Governor Jan Brewer signed the legislation after a week of protests by anti- and pro-immigration groups. The new law makes Arizona the first state in the nation to consider it a crime for a person to be an undocumented immigrant.

Several legal challenges to keep the legislation from taking effect are already in the works by the Mexican American Legal and Educational Fund (MALDEF), the American Civil Liberties Union (ACLU) and the National Day Laborer Organizing Network (NDLON).

“Arizona would have the same place in history as South Africa,” said Salvador Reza, organizer for the PUENTE movement, which advocates for human rights, comparing the new law to apartheid.

But the passage of the Arizona law may also have ignited new energy and resolve from the pro-immigration reform movement. President Barack Obama has criticized the Arizona bill, saying it threatens to “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” He called on Congress to enact comprehensive immigration reform.

Sen. John McCain, a Republican of Arizona, has in the past been one of the champions of comprehensive immigration reform. Today, locked in a tight primary challenge from his right wing to win his party’s nomination for another term, he has endorsed the new law. Arizona’s other senator, Republican John Kyl, has done likewise.

Known as the “Support Our Law Enforcement and Safe Neighborhood Act,” the law would allow police officers to arrest a person based on “reasonable suspicion ” that he or she is an undocumented immigrant. Police departments could face lawsuits by individuals who believe they are not enforcing the law.

A coalition of businesses and religious leaders has warned that the impact of the new measure could severely damage the Arizona economy.

The new law “is tearing our state into two. It humiliates us into the eyes of America and threatens our economic recovery,” said Phoenix Mayor Phil Gordon.

State Sen. Russell Pearce, a Republican from Mesa, the author of the bill, said the legislation would have the opposite effect. He believes the new legislation will lead immigrants to leave Arizona, causing the state to save money in services it currently provides to the children of undocumented immigrants at schools and hospitals. He has said that states have to take the matter into their own hands in absence of federal enforcement.

The recent death of a rancher on the border connected to violence in the area gave momentum to passage of the new law.

As the Arizona Governor signed the bill into law, the national and Arizona faith community condemned it as “an affront to moral conscience that will divide families and communities. The inhumane legislation demonstrates the urgent need for national political leadership to pass comprehensive immigration reform,” said a coalition of a dozen s leaders from evangelical, mainline Protestant, Catholic, and Jewish religions representing millions of Americans.

Rev. Jim Wallis, President and CEO of The Sojourners, said, “The law signed today by Arizona Gov. Brewer is a social and racial sin, and should be denounced as such by people of faith and conscience across the nation. It is not just about Arizona, but about all of us, and about what kind of country we want to be. It is not only mean-spirited – it will be ineffective and will only serve to further divide communities in Arizona, making everyone more fearful and less safe.”

He said the legislation “crosses many moral and legal lines, is a clear demonstration of the fundamental mistake of separating enforcement from comprehensive immigration reform. Enforcement without reform of the system is merely cruel. Enforcement without compassion is immoral. Enforcement that breaks up families is unacceptable. This law will make it illegal to love your neighbor in Arizona, and will force us to disobey Jesus and his gospel. We will not comply.”

And Rev. Jan Flaaten, Executive Director of the Arizona Ecumenical Council, said, "All the religious leaders of Arizona know and understand that this law will not solve the issue of crime along the border or in our state, but it will demonize anyone who looks suspiciously like an undocumented person leading to inevitable racial profiling. Our religious traditions ask us to treat people with dignity and respect, and we look for a more enlightened and hopeful way of working with the undocumented people who live along side us."

The legislation was also condemned by the American-Arab Anti-Discrimination Committee (ADC). The group said in a statement, “The measure allows law enforcement agencies to detain anybody if there is reason to suspect they are illegal immigrants, and requires legal immigrants to carry paperwork proving their status at all times. There is a profound fear in the civil rights community that the new measure will permit the practice of racial profiling by Arizona law enforcement personnel.”

Abed Ayoub, ADC Legal Director, said, "To allow the use of racial profiling in law enforcement practices is both dangerous and unconstitutional. The measure signed into law by Gov. Brewer has a profound impact on not only the Latino community of Arizona, but on all individuals living in the state. This law also illustrates the pressing need for Congress, and the Obama Administration to pass comprehensive immigration reform."

The Invasion of the Body Scanners

By William Fisher

More than thirty privacy and civil liberties organizations have filed a formal petition with the Department of Homeland Security (DHS), urging the federal agency to shut down the use of ‘full body scanners’ (FBS) at the nation’s airports.

At a press conference, Marc Rotenberg, President of the Electronic Privacy Information Center (EPIC), one of the signatories to the petition, said, "There is no question that the body scanner program should be shut down. This is a government boondoggle -- expensive, ineffective, and offensive to Constitutional rights and deeply held religious beliefs."

Last year, the groups asked DHS Secretary Janet Napolitano to give the public an opportunity to comment on the proposal to expand the body scanner program. She rejected the request. Since that time, the groups charge that evidence has emerged that “the privacy safeguards do not work and that the devices are not very effective.”

The petition states that the body scanners are not effective and are not designed to detect the type of powdered explosive that was involved in the December 25 “underwear bomber” incident. The petition also states that the privacy safeguards do not work and that the body scanners violate religious beliefs, principally among Muslims.

Despite concerns over costs and benefits, privacy, reliability and safety of airport body scanners, the federal government plans to deploy 500 advanced imaging technology units this ear, roll out 500 more in 2011 and operate a total of 1,800 units by 2014, according to recent testimony last to the House Transportation Security and Infrastructure subcommittee.

The plan represents a "more than two-fold increase from the initial planned buy of 878 units," noted the Government Accountability Office's Steve Lord, director for Homeland Security and Justice issues. "Second, the Transportation Security Administration now plans to use this technology as a primary rather than secondary screening measure."

A signatory to the petition, Chip Pitts, president of the Bill of Rights Protection Committee, told IPS, “The full body scanners fall into the same misleading ‘techno-utopian’ mindset that focuses on the symptoms rather than the causes of terrorism and assumes that some new surveillance technology will somehow eliminate all risk of terrorist incidents.”

He explained: “What happens instead is that companies push for and the government buys technology that merely fights the last war, produces new intrusions to fundamental freedoms like privacy, the presumption of innocence, and freedom from religious or other discrimination, while yielding only faux security instead of the genuine security promised. In the meantime, as Huxley warned in Brave New World, the population becomes used to the new surveillance methods (such as these digital strip searches) that normalize invasions of dignity and serve mainly to enhance government control of the citizenry.”

Pitts adds, “These body scanners weren’t designed for nor will they pick up powdered explosives of the sort used by the underwear bomber, but the misleading illusion that they work will distract us from following genuine leads and damage the genuine human security that comes only from respecting rights and meeting the main security challenge: changing the policies that are the root causes of terrorism.”

The “underwear bomber” is a young Nigerian who attempted to blow up a Northwest Airlines flight as it was descending into Detroit from Amsterstam on Christmas Day last year, concealing an explosive device in his under shorts.

The signatories to the petition describe body scanner systems as "uniquely intrusive, subjecting all travelers to an unreasonable search in violation of the Fourth Amendment.” They also say that the DHS “failed to comply with the Privacy Act when it did not inform the public about this new system that would collect personal information.” And they charge that the DHS Chief Privacy Officer violated the law when she approved the program.”

The group also contends that documents obtained by EPIC under the Freedom of Information Act “also appear to refute the agency's claims that the devices do not store and record images and that the public does not object to the program.”

The group cited a number of comments from unidentified passengers. “One traveler commented, ‘I am outraged and angry that what was supposed to be a ‘pilot’ for the millimeter scan machines has now become MANDATORY. Other fliers described the devices as ‘a disgusting violation of civil liberties and privacy,’ ‘for a bunch of peeping toms,’ ‘unconstitutional,’ ‘intrusive and ridiculous’ and ‘a joke.’ ”

The organizations signing the body scanner petition include the Electronic Privacy Information Center (EPIC), the Asian American Legal Defense and Education Fund (AALDEF), the Bill of Rights Defense Committee (BORDC), the Council on Islamic-American Relations (CAIR), the Center for the Study of Responsive Law (CSRL), the Liberty Coalition, and Public Citizen.

The petitioners charge that “Deployment of Full Body Scanners in US airports, as currently proposed, violates the U.S. Constitution, the Religious Freedom Restoration Act (RFRA), the Privacy Act of 1974 (Privacy Act), and the Administrative Procedures Act (APA).”

The petition says, “The FBS program effectively subjects all air travelers to unconstitutionally intrusive searches that are disproportionate and for which the TSA lacks any suspicion of wrongdoing. The FBS Program also violates the RFRA because it requires those of sincerely held religious beliefs to be subject to offensive intrusions by government officials. The program violates the Privacy Act because the system gathers personally identifiable information—a detailed and unique image of the human body easily associated with a particular airline ticket—yet the TSA failed to publish a System of Records Notice. The TSA Chief Privacy Office violated its statutory obligations to ensure that new technologies ‘sustain and do not erode’ the privacy of Americans when it effectively approved the program.”

EPIC’s Rotenberg said at the press conference that he would consider FBSs for secondary, but not primary, screening.

An Anonymous Jury?

By William Fisher

Department of Justice lawyers yesterday petitioned a Federal court to begin a controversial terror-related trial in New York City with an “anonymous jury” in order to protect the jurors, the audience in the courtroom, the prosecutors and defense counsel, the judge, and the criminal justice process.

The motion asks that the jurors hearing the case of American citizen Syed Fahad Hashmi for conspiracy to provide material support to Al Qaeda should not be required to disclose their names, addresses or places of employment, and that they be kept under the watchful eyes of the U.S. Marshal Service, which will provide extra security services.

Anonymous juries have been used in three terror-related cases in this same court, including the conviction of lawyer Lynn Stewart for passing a message from her terror-suspect client to his colleagues.

If Judge Loretta Preska grants the motion, jury selection would proceed under a process known as voir dire, referring to giving a true verdict.

The voir dire process in the U.S. is controversial. The amount of privacy that the potential jurors are afforded when asked questioned raises the issue of the definition of "impartial jury". Some question whether the intensive questioning of potential jurors looks not just for inherent bias but for a potential to be emotionally swayed. Proponents argue that this method gives both sides more confidence in the verdict.

But one of Hashmi’s most ardent defenders – Dr. Jeanne Theoharis, Hashmi’s teacher at Brooklyn College – terms the government’s action “egregious.”

“There's so many ways this is egregious -- not the least of which is that
it speaks to how the US Attorney's office views Muslims in the
audience and countenances racist speculation,” she says,

Theoharis references the U.S. Attorney, who writes, “It is likely that the jurors will see in the gallery of the courtroom a significant number of the
defendant’s supporters, naturally leading to juror speculation that at
least some of these spectators might share the defendant’s violent
radical Islamic leanings.”

But Theoharis says there are no demonstrations planned for the first day of trial. “The plan is to pack the courtroom with a possible press
conference with human rights groups on the courthouse steps or in the
park across the street for the first day,” she explains, adding:

“This is just about ratcheting up the fear of the jurors. (Hashmi’s lawyers) will obviously contest the government's motion saying that in a democracy people are allowed to come and watch court. But of course the judge is very sympathetic to the government and will likely agree to do so.”

Clearly, she says, “this is proof that our organizing is getting to them--but
also that, in this climate, they will try to use that to increase the fear (and secrecy) of the jury. They are using this activism -- and people exercising
their right to watch the process -- to make the jury scared and gain a

Theoharis is not without allies in her support of Hashmi. In response to the government’s anonymous jury motion, the Center for Constitutional Rights (CCR) said, “The case against Fahad Hashmi in itself raises many red flags related to the violation of his rights, prosecutorial overreach under the material support statute, and the unduly punitive and restrictive special administrative measures under which he has been kept without trial for nearly three years.”

CCR said “The government’s call for the jurors at his trial…to be anonymous and kept under extra security because of the attention and political activism these issues have drawn to the case is a clear attempt to influence the jury by creating a sense of fear for their safety and to paint Mr. Hashmi as already guilty.”

“The government is manipulating the fact that many individuals and human rights organizations are supporting Mr. Hashmi and raising important criticisms of his treatment in detention in order to gain a conviction. This is deplorable,“ the group said.

He has been held in New York since the Memorial Day weekend, 2007.

In the Metropolitan Detention Center in New York, Hashmi, a Muslim, is not allowed to pray with others of his faith. He is on a 23-hour solitary-confinement lockdown and 24-hour surveillance including when he showers and goes to the bathroom. He was not allowed family visits for months. Now, he can see one person for an hour and a half, every other week. Visits are through a thick glass. No touching or hugging is permissible or possible.

Hashmi is permitted to write one letter a week to a single member of his family, but cannot use more than three pieces of paper per letter. Within his own cell, he is restricted in his movements and he is not allowed to talk to guards or other inmates.

Hashmi is forbidden any contact -- directly or through his attorneys -- with the news media. He can read newspapers, but only those portions approved by his jailers -- and not until 30 days after publication. He is forbidden to listen to news radio stations or to watch television news channels.

He is also under 24-hour electronic monitoring inside and outside his cell.
He is allowed one hour of recreation every day -- which is periodically denied. He is not given fresh air but must exercise alone inside a cage.

Prof. Theoharis, who has attended the hearings in his case, told us that Hashmi's "mental health appears to be deteriorating."

His attorneys are concerned that his extreme isolation "will cause lasting psychological, emotional, and physical damage" to their client.

Hashmi's friend Babar has pleaded guilty to five counts of material support of Al Qaeda and has agreed to serve as a government witness in terrorism trials in Britain, Canada, and at Hashmi's trial. The Justice Department says Babar is the "centerpiece" of its case against Hashmi. In return, under a plea bargain, Babar will likely get a reduced sentence.

If Hashmi is convicted, he could be facing up to 70 years behind bars.

Colorado Sheriff Sued. A Buddy for Arpaio?

William Fisher

"Without any legal authority whatsoever, Sheriff Ted Mink imprisoned our client and kept him in legal limbo for 47 days with no charges pending, no opportunity to see a judge and no opportunity to post bail,” the American Civil Liberties Union (ACLU) charged as it filed a lawsuit against the Jefferson County, Colorado, lawman.

The ACLU and the ACLU of Colorado said Luis Quezada was detained simply because federal immigration officers suspected that the man was in the US in violation of federal immigration laws.

Mark Silverstein, Legal Director of the ACLU of Colorado said, "Our fundamental constitutional values prohibit depriving any person of liberty without due process of law."

Quezada was arrested and taken to the Jefferson County Jail where he was held for three days in May 2009 for failing to appear in court on a traffic charge. He promptly resolved the traffic charge, and the county court judge ordered him released.

But he was not released, because Immigration and Customs Enforcement (ICE) – part of the Department of Homeland Security (DHS) -- sent the jail an immigration detainer advising that it was investigating whether Quezada was violating immigration laws.
Omar Jadwat, an attorney with the ACLU immigrants’ project, told IPS, "Immigration detainers are inherently flawed. It is outrageous that someone could spend six weeks in jail because of nothing more than an ICE form saying that the agency wanted to investigate him."

An immigration detainer instructs a jail or prison to hold a particular detainee an additional 48 hours (excluding weekends and holidays) after the detainee's release date. The detainer states that its purpose is to provide adequate time for ICE agents to determine whether to take the detainee into federal custody and begin formal deportation proceedings. Yet after the 48 hour detainer expired, the Jefferson County sheriff continued to unlawfully hold Quezada for an additional 47 days.

When ICE finally took Quezada into custody in mid-July 2009, the agency immediately allowed him to be released on bond while he defended himself in immigration court.

The ACLU of Colorado says it has received multiple complaints of similar cases in which Colorado jails held suspected immigration violators without legal authority. To address the recurring issue, the ACLU of Colorado wrote to all Colorado sheriffs in the fall of 2008, advising that any legal authority of an immigration detainer expires after 48 hours. The ACLU also asked Colorado sheriffs for copies of any written policies instructing jail deputies on how to proceed when the jail receives immigration detainers. The Jefferson County attorney responded that the sheriff's office had no applicable written policies.

ICE routinely issues immigration detainers to law enforcement agencies around the country as part of part of ICE enforcement initiatives involving state and local police such as the 287(g) program, Secure Communities and the Criminal Alien Program. In addition to causing racial profiling and harming public safety, those initiatives raise the risk that agencies and officers will face increased claims for damages as a result of cases like Quezada's.

"ICE is issuing detainers by the thousands in an attempt to use state and local police and sheriffs as adjunct federal immigration officers," said Omar Jadwat, a staff attorney with the ACLU Immigrants' Rights Project. "However, police officers and jailers are always required to obey the Constitution and simply cannot imprison a person in this way, even if an immigration detainer exists. States and municipalities open themselves to liability when they treat ICE detainers as if they were sentences imposed by a court."

The 287(g) program has recently come under severe criticism from the Inspector General of the Department of Homeland Security, who said the program cannot be evaluated properly because its goals, mission and management are confused and substandard.

This program has also come under continuing criticism from local law enforcement officials and groups. They charge that local police officers and sheriff’s deputies are not trained in the complexities of immigration law, that
They are invoking immigration laws in inappropriate ways, and that the program is diverting limited local law enforcement resources away from the main mission, which is protecting the public from criminal behavior.

Sheriff Mink is far from the first local law enforcement officer to be taken to court for allegedly violating immigration laws, which are civil, not criminal. There are hundreds of citizen suits pending against Sheriff Joe Arpaio of Maricopa County (Pheonix) Arizona. Many have already been settled with cash judgments to the plaintiffs.

The Department of Justice is currently investigating a civil rights complaint against Arpaio, and the DHS has recently curtailed his participation in the 287(g) program.