Sunday, July 15, 2007

If the ACLU is Right, Chertoff is Running a Kidnapping Ring

The legal briefs filed by both sides in the case of Guzman v. Chertoff et al., decided by Judge Dean Pregerson on June 14, 2007 present numerous disputes of fact and law. The initial brief authored on behalf of Pedro Guzman "by and through his next friend, Juan Carlos Chabes," a legal device to use his step-brother to sue because Guzman is missing, states three causes of action:

1) Violation of the Fifth and Fourteenth Amendments--"DHS's deportation of Pedro Guzman and its refusal to find him and return him to the United States violates Mr. Guzman's...rights to procedural and substantive due process and equal protection."
2) Violation of the Eighth Amendment--the DHS deportation "constitutes banishment in violation of the Eighth Amendment's prohibition against cruel or unusual punishment" (because punishment of citizens must take the form of fines or imprisonment, not exile).
3) Mandamus, when the courts order the Executive Branch to perform certain actions consistent with the intent of the law: "Respondents have a nondiscretionary duty not to deport United States citizens and to ensure their return if they are wrongfully deported."

The judge noted in his decision that because the DHS was recognizing Guzman as a citizen and because the circumstances of the deportation were not clear, he would not issue any findings against the DHS, including granting emergency relief, on the grounds that executive agencies' "decisions about how to allocate its on-the-ground human resources is quintessentially within such discretion." This is a judgment call, and while Pregerson cites cases making this point, other courts have made opposite determinations. I'll discuss the cases for both sides in another posting, but want to make a more basic observation about what seems to be really at stake in this case, whether Guzman was kidnapped.

As has been noted before here, the situation seems surreal, with the judge clearly disturbed by what happened and yet not buying the legal arguments advanced on Guzman's behalf. Perhaps this is because they are coming from specialists in immigration law and Guzman is not an immigrant. If Guzman was, as the brief claims, taken against his will and removed to another country, then this is first and foremost a kidnapping case. Treating it as a case involving violation of the immigration laws tacitly if not overtly accedes to the Government's prerogative to treat him as a wrongfully self-identified immigrant, as opposed to a citizen the government kidnapped and brought to Tijuana against his will. The ACLU is right to say that the government cannot deport citizens, but at least as importantly, the government cannot kidnap its citizens.

None of the immigration cases cited by the plaintiff are closely related to the facts the Guzman brief alleges, that of an individual whom the June 10, 2007 statement says is "developmentally disabled and has mental health problems" and who "did not knowingly and voluntarily authorize federal officials to deport him to Mexico." Perhaps the reason that the immigration decision seems "surreal" is that this is not an immigration case, but a potential kidnapping case and the Guzman family and their advocates might want to enlist a local prosecutor on Pedro Guzman's behalf.

California Penal Code section 207 defines kidnapping as follows:
a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

(b) Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.

(c) Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping.

(d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.

Because the Plaintiff's brief treated the DHS wrongdoing as a violation of Guzman's rights, and not as a violation of the criminal code, Judge Pregerson was able to confine his analysis to the bureaucratic question of whether the DHS was following its policies and could ignore the bigger picture, which is that even if the DHS were following its policies, if these policies resulted in the deception of someone with the end of taking him to another country, then this would be a violation of the criminal law against kidnapping and a judge would have to weigh the Congressional authorization of DHS latitude in deportation against the federal and state laws against the desire to limit kidnapping.

If as a result of kidnapping the victim is missing, this does not preclude a trial on the facts of the abduction, with discovery and deposition of government witnesses in order to build a case. The definition of kidnapping does not require the use of overt force but occurs if the accused "instill[s] fear," which is plausible for a jail situation involving someone with limited mental capacities. It would be the responsibility of the jail and DHS to ensure that the deportation was a result of a freely given admission of Mexican citizenship untainted by fear, taking into account that this will vary among those incarcerated. If through discovery the prosecution unearthed evidence that Guzman agreed to deportation out of fear, then using his consent obtained on this basis to remove him to Mexico would constitute kidnapping.

Naming what the DHS and the LA County Jail did to Guzman as a crime, if the facts are as the ACLU states, raises the bar for all sides to delve into the evidence and make a determination. The government should not violate our Constitutional rights, no doubt, but if they do so in the course of kidnapping citizens, then this certainly should provoke immediate investigation and possibly criminal charges.

The image is from the cover of Robert Louis Stevenson's novel Kidnapped(1886), which is about an uncle tricking his nephew into going on a ship Covenant, the beginning of his treacherous meanderings resulting from the uncle's efforts to deny the boy his inheritance.

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