Monday, November 01, 2010

To Opt or Not to Opt

By William Fisher

Will U.S. local law enforcement be forced to participate in a program that it says will put city police in the position of enforcing federal immigration law and, in the process, divert scarce resources from essential community policing, discourage immigrants from working with police to solve crimes and increase racial profiling?

Or is it a voluntary program?

Those are the questions being raised by civil rights advocacy groups in a federal court filing seeking an injunction requiring the Immigration and Customs Enforcement (ICE) Agency to turn over critical documents concerning the ability of communities to “opt-out of what they label “the massive deportation dragnet,” the Secure Communities -- S-Comm -- program.

The groups seek to clarify ICE’s statements, which they say have been “inconsistent and confusing.” In August, ICE released a memo entitled, “Setting the Record Straight” which sets forth an opt-out policy:

“If a jurisdiction does not wish to activate on its scheduled date in the Secure Communities deployment plan, it must formally notify its state identification bureau and ICE in writing (email, letter, or fax). Upon receipt of that information, ICE will request a meeting with federal partners, the jurisdiction, and the state to discuss any issues and come to a resolution, which may include adjusting the jurisdiction’s activation date in or removing the jurisdiction from the deployment plan.”

Janet Napolitano, Secretary of the Department of Homeland Security (DHS), later confirmed that process to be accurate.

But subsequent communications to and from ICE have muddied the waters, making it less clear that there is any opt-out policy at all. The Washington Post claims that opting out of Secure Communities “is not a realistic possibility, and never was.” This question takes on significance because a number of municipal and country law enforcement agencies have made it clear that they do not wish to participate in S-Comm.

Advocates who have reviewed the initial S-Comm documents from the FOIA case say they ”reveal a pattern of dishonesty. Information about the nascent program has been scarce, and the development of operational details has been shrouded in secrecy,” they say.

Sunita Patel, an attorney with the Center for Constitutional Rights (CCR), told IPS, “The mis-named Secure Communities program is the Department of Homeland Security's current scheme to rope local cops into immigration enforcement. Though branded as a race-blind way to arrest certain people, the numbers show it's actually trap.”

And Francis Boyle, a law professor at the University of Illinois, told IPS,
“This is simply an exercise in racial profiling against Latinos.”

On August 10, the groups filing the new FOIA suit -- The National Day Laborer Organization Network (NDLON), the Center for Constitutional Rights (CCR), and the Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law -- released internal government documents newly obtained through a Freedom of Information Act (FOIA) lawsuit filed in a New York federal court in April. According to advocates who have reviewed the documents, they reveal a pattern of dishonesty regarding the S-Comm program.

S-Comm, which currently operates in approximately 600 jurisdictions across the country, functions like the controversial 287(g) program and Arizona’s SB1070, making state and local police central to the enforcement of federal immigration law.

The program automatically runs fingerprints through immigration databases for all people arrested and targets them for detention and deportation even if their criminal charges are minor, eventually dismissed, or the result of an unlawful arrest.

Several local jurisdictions have already asked to opt-out, and were given a variety of responses. In May 2010, Sheriff Michael Hennessey of San Francisco requested an opt-out from ICE, but ICE directed them to speak to California state officials. The California Attorney General denied the Sheriff’s request and claimed that there was no opt-out option.

Arlington County, Virginia, held a community forum in July to discuss opting out of the program, at which the Chief of Police stated that ICE had told him that there was no opt-out -- Secure Communities was federally mandated.

Others, including Congresswoman Zoe Lofgren, a Democrat from California (San Jose), the Santa Clara Board, and the San Mateo County Board of Supervisors, all contacted ICE asking for information about the opt-out policies. None received an immediate response.

In the meantime, in response to legislation before the Council of the District of Columbia to terminate Secure Communities, the Washington DC Chief of Police terminated the city’s Secure Communities program with ICE.

So now at least two counties, plus Washington, DC have decided not to participate in the program. Why?

The groups bringing the lawsuit claim that “People are concerned that, similar to the 287(g) program, there is no oversight of Secure Communities. The data provided by ICE thus far has shown that contrary to ICE’s intention to focus on immigrants with serious criminal convictions, the majority of people identified by Secure Communities have minor criminal convictions or have no criminal convictions.”

They add that, in some cases, “U.S. citizens have been wrongly identified by the program. There are also concerns that the program leads to racial profiling and pretextual arrests. Furthermore, local law enforcement agencies that suspect that persons in their jails may be deportable immigrants already have the ability to contact ICE directly.

The Secure Communities program, launched in 2008, is currently active in 658 jurisdictions in 32 states, according to ICE, who plans to activate the program in every jurisdiction in every state by 2013.

According to the groups, “The merger of immigration enforcement and local criminal justice agencies is not only bad public policy, it also sabotages local law enforcement agencies’ core mission of protecting public safety by undermining the trust of the communities they serve. It discourages people from turning to the police when they need to, even to report crimes. It undermines public safety by diverting scarce resources away from local policing and focuses them on false threats from people who look or sound foreign.”

Secure Communities, 287(g), and the Criminal Alien Program – the Obama administration’s signature immigration enforcement programs – all rely on heavy involvement from and cooperation with local law enforcement to siphon immigrants into the immigration enforcement and detention system and, ultimately, through deportation proceedings.

Meanwhile, in a related development, the Department of Justice (DOJ) will be in federal appellate court in San Francisco on Monday, November 1, urging the court to keep in place an injunction blocking the core provisions of SB 1070, Arizona's racial profiling law.

The American Civil Liberties Union and a coalition of civil rights groups will also be present. They filed a friend-of-the-court brief in the case in September, supporting the injunction and illustrating the serious harm that SB 1070 would cause.

Now Playing at GITMO: Kabuki Again

By William Fisher

A military jury at Guantanamo Bay sentenced a “child soldier” to 40 years in prison –unaware that Omar Khadr’s defense and prosecution lawyers had already agreed on an eight-year sentence and further agreed that the United States would send the Canadian home next year.

Under a plea bargain with a Pentagon official, Khadr would receive an eight-year sentence, in addition to the eight years he has been a prisoner at Guantanamo Bay. But according to the plea arrangement reportedly reached between prosecution and defense, he would serve only one additional year at GITMO and the remaining seven in Canada, his home country. That means he could be released from prison at age 32, and perhaps sooner according to Canadian parole regulations.

The United States has pledged to support his return to Canada a year from now to serve out seven more years in a Canadian prison. While Canada has denied the repatriation idea publicly, it is known that the U.S. and Canadian government exchanged diplomatic notes on Oct. 23, declaring that “The Government of Canada is inclined to favorably consider Mr. Khadr's application to be transferred to Canada to serve the remainder of his sentence,'' or whichever portion Canada's National Parole Board decides is required.

But the Guantanamo jury, officially, didn’t know any of that. Their decision would apply only if it decided on a lighter sentence.

According to eye-witness Carol Rosenberg of The Miami Herald, “Jurors were told only that Guant├ínamo's youngest captive had pleaded guilty to five war crimes, including hurling the grenade that mortally wounded Sgt. 1st Class Christopher Speer, 28, during a July 2002 assault on an al Qaeda compound.” Khadr was 15 at the time of the attack.

The prosecution argued for a sentence of 25 years; defense lawyers urged repatriation to Canada. The jury disagreed with both, finding that Khadr should remain in prison until age 64.

The sentence of 25 years would have been far less than the sentence possible for all the crimes Khadr admitted to. Observers have said he pled guilty to so many crimes to avoid receiving a life sentence from the jury.

Moreover, some experts contacted by IPS were certain that the plea deal was known to the jurors.

David Frakt, who gained fame when he resigned as a Guantanamo Bay defense attorney because he believed military commissions were not designed to produce fair trials, told IPS, "I am not sure that we can safely assume that the jury was unaware of the eight year plea deal, because it was plastered all over the news even before the trial started. Although the jurors were instructed by the court not to read news accounts related to the trial, it wouldn’t surprise me if one of them knew about it.”

What was the purpose of convening a jury to deliberate after a plea agreement had been reached? IPS reached out to constitutional scholars for answers. Here are some of them:

Daphne Eviatar, a senior attorney with the advocacy group Human Rights First and an eye-witness to the Khadr proceedings at GITMO, told IPS, “As the prosecutors said over and over to the jury, the government wanted them to ‘send a message’ -- to the American people, to al Qaeda, and to all the victims of this deadly war that the lives of U.S. service members are valued. One has to question, though, the choice of a 15-year-old child soldier forced into war by his father as the messenger.”

David Frakt told IPS, “Even if we accept that they did not know the specific terms of the pretrial agreement, they certainly knew that there was a plea deal, and they would have understood that the maximum sentence under the agreement was something less than the 25 years that the prosecution asked for, because it is standard practice for military prosecutors to ask for a sentence in excess of the agreed sentence cap. It is quite unusual for a military jury to give substantially in excess of what the prosecution requests. In fact, I’ve never seen it happen before.”
He added, “So they clearly were trying to send a message."

“Presumably, the message was intended to be a deterrent to other would-be terrorists and insurgents. In essence, they jurors were saying, “don’t mess with the U.S. military.” Given that the true extreme jihadists are quite willing to die for the cause, I doubt that the sentence will have the desired deterrent effect."

Scott Horton, a constitutional lawyer and Contributing Editor at Harper's Magazine, told IPS, "It can be argued that from the outset a prime function of the military commissions has been not to inform, but rather to deceive the public.”

“A plea bargain was struck, but the details of it were suppressed,” he said, adding:

“What the prosecution got out of the deal was a guilty plea to everything charged--indeed, Khadr would have pleaded to kidnapping the Lindbergh baby had they asked him to. This was then paraded before the public and the commission as a genuine guilty plea, with attendant melodrama, and the thrust behind it was suppressed. But the whole exercise we have seen is theatrics designed to cover the case that the prosecution case was weak and that the government severely mistreated this prisoner. The guilty plea and the courtroom drama will grab headlines, and the rest will be forgotten.”

Chip Pitts, a law lecturer at Stanford University law school, told IPS, “The result is entirely consistent with a process established to function more like the military show trials and Kangaroo courts the United States has traditionally condemned than one established to deliver justice. ‘Back to the USSR’?”

Bruce Fein, a conservative former senior justice department official in the administration of President Ronald Reagan, told IPS, the jury verdict was "a community expression of fear of international terrorism."

Professor Francis A. Boyle of the University of Illinois law school, told IPS, the purpose was “to put the blame on a Child Soldier instead of themselves."

IPS posed another question to the legal experts it contacted: How unusual is it for a judge to send a jury out to deliberate on a verdict without telling them that the prosecution and the defense had already agreed on a plea arrangement?

Scott Horton’s view is that "It's impossible to speak of established practice in military commissions, because they're new, but this is the practice that has been established, starting with the al-Qosi case. Evidently this process is part of the agreed bargain."

Prof. Boyle responded: “These are Kangaroo Court proceedings. Of course they knew [of the plea deal]. As Groucho Marx said, ‘Military justice is to justice as military music is to music.’ And The Marx Brothers are in charge of the GITMO kangaroo court proceedings.”