Friday, June 29, 2007
A couple of nights ago I had dinner with Ilan Meyer, a visiting scholar this year at the Russell Sage Foundation in New York City. Ilan is writing a book about his research that measures the health effects of stress from sexual orientation discrimination and he told me about a colleague, an economist doing research on the Dalit (the so-called untouchables) in India, and their efforts to mobilize against their oppression.
When I met Ilan's colleague, Christian Davenport, at lunch on Thursday I told him I write about immigration law and politics, and that I was really interested in his research because of the disturbing similarities between the social acceptance of persecuting people without the right nationality in the United States and the social acceptance of the caste system in India. The mix of resentment, anger, and endorsement of dehumanizing conditions for noncitizens living in the United States without state permission has no peer for its normalization. For instance, Lou Dobbs is outraged when people accuse him of being racist. He clearly finds it embarrassing to have his anti-immigrant cause confused with racism. He knows that racism is socially unacceptable. But endorsing discrimination and imprisonment because of nationality is something Dobbs and most people finds perfectly acceptable, noble in fact. So it occurred to me that perhaps the tools being used to fight the untouchable stereotypes might be adaptable to the circumstances of undocumented immigrants in the United States.
Christian is tres cool. He's using the tricks of the economics trade, through a series of projects under the umbrella The Radical Information Project, to call into question numerous assumptions about how power is organized. He was brought to India to work with a group of Indian lawyers and activists calling their organization Dalit Shakti, "The Power of Equality in Practice." (The link is http://dalitfoundation.org, and it was working a couple of days ago but there is a message "problem with upstream provider" just now.) Anyway, Christian was telling me that activists are organizing on many levels, from consciousness-raising among the Dalit to encouraging them to bring lawsuits, as discrimination based on caste violates Indian law and Dalits suing successfully may win major damages.
"Why don't more Dalits sue?" I asked. Christian told me it's because of fear, but also because many have internalized the oppression. At one meeting a woman raised her hand and told an organizer that the sort of resistance being discussed was fine for humans. The method for encouraging the Dalit to understand the incorrectness of the caste system and their status of humans, Christain explained, was to remind them that they considered themselves Indian citizens, and that Indian law said as much.
Of course coming back to the situation of immigrants outside the legal status structure of the U.S. government, it seems that the untouchables of India have it better off than Mexicans in the United States. Not only are undocumented Mexicans unable to sue for discrimination but they are victimized by virulent name-calling and derisive comments on everything from street corners to talk radio. Mainstream politicians say they'll do their best to keep them out of this country and levy fines against those who help them. In the United States discrimination based on race is grounds for a lawsuit and in India, actions of the sorts taken against Mexicans living in the U.S. are also discouraged by the government, as opposed to all countries, where nationality is a legitimate basis for discrimination.
Still, the law is not ultimately friendly even to the untouchables, since it is the kinship rules there and everywhere that maintain the belief that certain groups, be they castes or nations, are inviolably and irresolutely distinct, even amidst the obvious facts that this is a complete fantasy. For if India and the U.S. government truly believed that people were obviously different then they would abandon kinship rules, and the border patrol would not need biometric tests and forgery-proof passports to ensure they can tell who is from what group and whether they are truly deserving of rights.
This all brings us back to dinner with Ilan and his research on the effects of chronic stress based on minority status: why have governments at all if their effect is to create the majorities and minorities that lead to debilitating health consequences at the very least, as well as the kinship structures that give rise to systemic mass violence in war? Or rather, why have the kinds of government policies with these consequences? Why not alternative policies that eliminate birthright prerogatives and the kinship rules that make them seem necessary?
image from Dalit training workshop
Wednesday, June 27, 2007
1) The first mention here of a requirement for detention facilities pursuant to the Catch and Return policy is that they must accommodate "up to 31,000 aliens per day on an annual basis."
But someone forgot the global search and replace function, because later the bill states that DHS must have "at least 20 detention facilities in the United States that have the capacity to detain a combined total of not less than 20,000 individuals at any time..." If the authors mean that at no single point in time can there be fewer than 20,000 spaces available for aliens AND that the average must be at least 31,000 spaces per day, then this is logically consistent but it makes little policy sense. It appears that there was some lack of agreement and both sides won, and lost.
Here are people who cannot keep track of a few words in a document, and they expect us to entrust them with the lives of 20,000, or was that 31,000, people who did nothing wrong other than have the bad luck of being born in an age when people think one's birthplace an interesting fact. (Now, if the government were detaining people according to their astrological sign, THAT would be interesting.)
2) Another oddity, not just of this law but present immigration penalties are the heavy sanctions against "sham marriages." (I use quotation marks because marriage is itself a sham.) If you break the marriage rule you can go to prison for 5 years now or 10 years if S. 1639 passes. But if you are the most egregious employer and do nothing else--no cable television, no golf, all you do is break this law by hiring dozens of undocumented workers, persistently flaunting U.S directives not to-- then the worse you face are fines and in the most extreme case up to six months in prison. The sham marriage restrictions are interesting for all sorts of reasons, including the inconsistency between the lack of penalties for sham marriages for other motives (my colleague Juliet Williams is writing about this, that there is no criminal penalty for marrying for an inheritance, for instance), but they also highlight the incongruity of the harsher sentences for fake marriages than for fake legal employment.
In any case, the tone of the "catch and release" heading says it all. Sadly, even recreational fishermen have a more ethical code of conduct than the supporters of S. 1639.
i found the fish here
Tuesday, June 26, 2007
The Senate, at the strong urging of President Bush, today decided to vote on a revised comprehensive immigration bill, one that puts current and future immigrants at more risk than they are at present and that gives more funds and authority to the security state. Harry Reid, the Senate's Majority Leader and a nominal Democrat joins Bush in wanting the Senate to pass the bill by the end of this week, which would be a disaster since a vast majority of the public has no idea of what it includes. Voting on this omnibus, highly complex measure that will have deep and permanent impact on hundreds of millions of people without feedback from a presently un- and misinformed public makes a mockery of our so-called representative democracy.
Senator Kennedy and many so-called liberal Senators are supporting S. 1639 against the advice of liberal immigration law centers (e.g., the National Immigration Law Center, the American Immigration Lawyers Association, and the San Francisco Legal and Immigrant Education Network are among the legal rights groups opposing the bill). Senate Majority Leader Harry Reid (D-NV) in his letter to President Bush complained about the lack of Republican support for the bill in the Senate: "almost 80% of the Democratic caucus voted to move the bill forward, while only 14% of the Republican caucus did so."
Ironically, the Republicans and Democrats, respectively, are taking the opposite positions from that of their ostensible constituencies. The Republicans should be enthusiastically endorsing the bill (and they do now seem to be lining up for Bush), and the Democrats initiating a filibuster, or simply using their majority to defeat the bill, because Democrats should not want to associate themselves with the Nuremberg Laws.
To be clear, Reid is not just accommodating the White House, but is actively advancing the agenda of a reactionary President, going so far as to state, "this is the President's bill." During the first debate over cloture, Reid said,
I am saying to everyone here, I would do my very best to have more Republican amendments than Democratic amendments. I know some of my colleagues don't want me to say that, but I would be willing to do that, with a time certain for passing this bill. Hopefully, we can do that in the next several weeks.Standing on the Senate floor,
recognizing his first effort to pass S. 1348 was about to be defeated his vowed a misguided effort to use the authority of the Democratic leadership: "But in my office, about 7 o'clock tonight, a number of we Democratic Senators met there and made a commitment to each other that we are going to do everything we can to pass this." After the initial vote for cloture on S. 1348 lost, Reid reiterated, "I want to get this bill done," and said he was going to keep trying this session to pass the same bill, a move he himself conceded was highly unusual. Why is a Democratic Senator doing his best to do the dirty work of the most unpopular President in modern history? During the debate in early June, when it was clear Reid wouldn't have the votes, he said,
There are some really good things in this bill. The DREAM Act--I will not belabor the point, but I will just briefly say that in Smith Valley, NV, a little mining community, a number of years ago, this beautiful child came up to me, a senior in high school. I knew she wanted to talk to me, and she did. She said: I am the smartest kid in my class. I can't go to college. My parents are illegal. What am I going to do, Senator?
A young man in Reno, NV, a small-in-stature Hispanic--he would be the master of ceremonies at events. He could sing. He could talk. It took me a number of years to realize he was in the country but he had bad papers. He couldn't drive a car. I haven't seen him for a number of years, don't know what has happened to him. He couldn't go to college. Under this legislation which is now no longer on the Senate floor, he could have had a pathway to legalization. He already knew English. He spoke better English than I do. Get a job, pay taxes, stay out of trouble--I am confident he would do that--pay some penalties and some fines to go to the back of the line, to be able to come out of the shadows, get the ability to drive a car. But we are not going to be able to do that for him now.
But this bill Reid is supporting is unlikely to do this for these folks either. Supporting S. 1639 in the name of the folks above is like supporting a hike in the estate tax on behalf of Donald Trump, Jr., except the Republicans would never be so confused as to do something like this.
Buried very, very deep in a bill that includes English as a national language (section 702), helicopter patrols, and exemptions for Hurricane Katrina victims (on the principle that exposure to a country's natural disaster should mean citizenship?) is the portion Reid says will help the young man who could sing, the Immigrant Accountability Act of 2007. Here are the main provisions of Section 622:
“(A) Qualifying employment.—
“(i) In general.—Subject to clauses (ii) and (iii), the alien has performed at least—
“(I) 5 years of agricultural employment in the United States for at least 100 work days per year, during the 5-year period beginning on the date of enactment of the AgJobs Act of 2007; or
“(II) 3 years of agricultural employment in the United States for at least 150 days
work days per year, during the 3-year period beginning on such date of enactment.
(ii) Four year period of employment.—An alien shall be considered to meet the requirements of clause (i) if the alien has performed 4 years of agricultural employment in the United States for at least 150 work days during 3 years of those 4 years and at least 100 work days during the remaining year, during the 4-year period beginning on such date of enactment.
“(iii) Extraordinary circumstances.—In determining whether an alien has met the requirement of clause (i), the Secretary may credit the alien with not more than 12 additional months to meet the requirement of that clause if the alien was unable to work in agricultural employment due to—
“(I) pregnancy, injury, or disease, if the alien can establish such pregnancy, disabling injury, or disease through medical records;
“(II) illness, disease, or other special needs of a minor child, if the alien can establish such illness, disease, or special needs through medical records; or
“(III) severe weather conditions that prevented the alien from engaging in agricultural employment for a significant period of time.
Pregnancy, disease, and global warming aside, the requirements pose unfair burdens aliens, mandating behaviors that could never be imposed on native born citizens, who may withdraw from the labor force for long stretches of time and be supported by relatives or have informal sources of income without their creating burdens on the state and of course without risking deportation. Moreover, there is no good justification for allowing native born residents to use state benefits and not those born elsewhere.
In addition, compared with S. 1348, S. 1639 offers even more reasons for making longterm residents ineligible for citizenship, and hence makes the vigorous support of S. 1639 by the Democratic leadership even more perplexing:
3) Grounds for denial of adjustment of status.—The Secretary may deny an alien granted a Z–A visa or a Z–A dependent visa an adjustment of status under this Act and provide for termination of such visa if—
“(A) the Secretary finds by a preponderance of the evidence that grant of the Z–A visa was the result of fraud or willful misrepresentation (as described in section 212(a)(6)(C)(i)); or
“(B) the alien—
“(i) commits an act that makes the alien inadmissible to the United States under section 212, except as provided under subsection (c)(4);
“(ii) is convicted of a felony or 3 or more misdemeanors committed in the United States; or
“(iii) is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500.
This last provision means that someone with a car accident on her record will be ineligible for citizenship.
Even the criminal conviction standard is unfair. If this rule were applied to U.S. born citizens, 5.3 million native born U.S. Americans would be deported.
Also, alien convicts who have served their time are related to those who are law-abiding citizens.Deporting a legal resident's relatives and friends is not only a punishment to the offender, but directly harms innocents. Finally, 80% of the U.S. public favor allowing convicted felons to vote (still not allowed in many states), the highest privilege of citizenship. If the principle that having served time does not render one unfit to vote is endorsed then a reasonable inference is that, save the prejudice of nativism, an alien having served prison time should not be precluded from obtaining citizenship.
And since S. 1348 was introduced, the bill was amended to make life even more miserable for people such as the individuals Reid mentioned above. S. 1173, proposed by Lindsey Graham (R-SC) and passed by unanimous consent of the Senate, requires someone who is denied legal status and returns, be "imprisoned not less than 60 days and not more than 2 years." So if there's a family emergency and the guy who had "bad papers" returns, he gets a mandatory prison sentence. Aliens who are here after their request for legalization is denied and have criminal records, including misdeamors, will have automatic prison sentences of up to ten years, simply for the crime of being in the U.S. and in addition to the time they already served for their convictions. Also added was S. 1168, agreed to in the Senate by unanimous consent, including a provision to "construct reinforced fencing along not less than 700 miles of the southwest border where fencing would be most practical and effective and provide for the installation of additional physical barriers, roads, lighting, cameras, and sensors to gain operational control of the southwest border." In a move to treat children like political pork, the Senate accomodated their colleague Akaka's amendment to "exempt children of certain Filipino World War II veterans from the numerical limitations on immigrant visas," supported by his colleagues, 87-9, the nays all Republican.
In addition, one of the most curious amendments, passed 67-26, was to "To establish commissions to review the facts and circumstances surrounding injustices suffered by European Americans, European Latin Americans, and Jewish refugees during World War II," in particular the treatment of people in European detention facilities after WWII."
Kennedy himself introduced a last minute amendment passed on June 6, 2007 pertaining to new punishments for gang members and stating that drunk driving conviction means the resident is ineligbible for citizenship: "DRUNK DRIVERS.--Any alien who has been convicted of 1 felony for driving under the influence under Federal or State law, for which the alien was sentenced to more than 1 year imprisonment, is inadmissible.'' (This one seems an especially literary or perhaps galling hypocrisy...)
And as discussed earlier, S. 1250 also passed, allowing for the unrestricted sharing of private
information among government agencies.
All these provisions are now written into the law of S. 1639, and then some, to be analyzed later. Here's the link to this incredibly perfect picture indicating Reid's contempt for Democratic values.
Sunday, June 24, 2007
Just leaving Halifax where I attended a workshop called "Democracy in Crisis: Alterity, Violence, and Community." The purpose is to produce a book with, alas, a similar title. (I have an allergy to jargon-y words such as "alterity," which has many meanings in scholarly texts, none of which are especially obvious or consistent.)
It was terrific meeting new scholars and seeing my old friend and colleague, Jodi Dean, a political theorist who runs a well-established political, psychoanalytic, cultural theory blog icite. Her paper "Credibility and Certainty: 9/11 Conspiracy Theories" raises questions about the conspiracy theory blog world, especially the popularity of the video "Loose Change," which suggests that the story of suicide terrorists using commercial planes on 9-11 was a government hoax.
Dean points out the difficulties for a democracy in which only the government's revealed secrets are deemed important, and the openly available government policies are generally ignored. Dean writes:
"By way of an example, we might note how various Democrats and journalists
contested the Bush administration’s classifying of previously public knowledge, its removal of all sorts of documents from the internet after 9/11. It’s unlikely that these Democrats and journalists knew or even cared about this information while it was public."
It's true that under the auspices of the Presidency, elected leaders and their henchmen have abused the public trust. In just the last three decades the break-ins authorized during the Nixon administration, the Iran-Contra subterfuges, the NSA wiretaps, the Office of the President's Legal Council's authorization of torture, provide a sample of numerous good reasons to distrust the Executive Branch.
Still, this does not mean most of government's heinous lies and misdeeds occur in secret. Anyone who reads a newspaper has sufficient evidence about the government's damning record, and looking for the revealing secret is largely a distraction. An excellent example of the Purloined Lie is the debate about whether the Bush Administration deliberately hid their knowledge that Hussein did not have weapons of mass destruction (WMD) or whether the U.S. was just acting on bad intelligence.
Some background. The U.S. has tended to base its foreign policy on "deterrence theory": the belief that dictators can be evil and still be trusted not to launch wars as long as they fear retribution. The U.S. relied on this theory for close to half a century, during Cold War: as long as the USSR feared mutual annhilation, the U.S. could rest assured that the USSR would not launch a first strike nuclear attack.
After 9-11 a new theory began to be circulated in official U.S. policy documents, articulated most clearly in the National Security Strategy (NSS) written by the White House National Security Council and published in September, 2002. The argument was that "rogue states," i.e., states not conforming to the U.S. foreign policy agenda, were no longer sanely calculating the odds of retribution. Therefore, their weaponry would have to be taken out immediately in order to pre-empt attacks against the U.S. The NSS report states:
In the Cold War, especially following the Cuban missile crisis, we faced a generally
status quo, risk-averse adversary. Deterrence was an effective defense. But deterrence based only upon the threat of retaliation is less likely to work against leaders of rogue states more willing to take risks, gambling with the lives of their people, and the wealth of their nations.
In other words, Saddam Hussein might have to be taken out because the U.S. cannot rely on Hussein's self-interest to prevent him from launching a first strike. The report continues: "In the Cold War, weapons of mass destruction were considered weapons of last resort whose use risked the destruction of those who used them. Today, our enemies see weapons of mass destruction as weapons of choice." If you put these statements together, and also in the context of allegations that Iraq possessed WMDs, then the only recourse is to invade: Hussein is not the rational actor whose self-interest would deter him from aggression. He's a demented bully so bent on destroying the U.S. that he'll risk provoking hell on earth for his subjects. Since rational deterrence won't work, the only alternative is to preempt his adduced aggression and WMDs by attacking first.
We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning. The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction.
Based on the public record here are five clear-cut facts
1. The U.S. believes rogue states will not be deterred from using WMDs against U.S. military and civilian targets. (Above.)
2. The U.S. believed that Iraq was a rogue state. (Colin Powell speech to the United Nations.)
3. The U.S. government stated that Iraq had WMDs. (Ditto.)
4. The U.S. knew that Iraq had SCUD missiles and that it used these missiles in the Middle East in the 1991 Gulf War.
5. The U.S. placed over 180,000 troops in the Middle East within easy firing range of Iraq's SCUD missiles, and left them there for two months before actually invading. (Lexis-Nexis article from February, 2003.)
Based simply on the public record, it is evident that one of these facts must be wrong. (I published an essay stating this in Turkish Foreign Policy (2003), three months after the invasion, when the Cheney administration was still insisting that the WMDs would show up.)
That is, either the U.S. believed that Hussein had WMDs but would be deterred from using them against U.S. troops, so it was safe to post hundreds of thousands of soldiers and leave them there as sitting ducks prior to the invasion (and hence the preemption premise is a ruse); or, the U.S. believed that Hussein would use WMDs against the U.S. military, but knew from the weapons inspections that he did not have them.
In the event, it makes no sense to claim that Hussein had WMDs, would not be deterred from using them against U.S. targets; AND THEN to place over 180,000 troops within easy firing range of his SCUDS that, if filled with anthrax or mustard gas and used against the U.S. military in the Middle East, would create what theU.S. itself claimed would be a major public relations coup were Hussein able to kill U.S. military targets in the Middle East. It's true that the troops had some gas suits and so forth, but nothing on the scale that would be necessary to prevent attacks of what the U.S. claimed are weapons of MASS destruction, and not a few clouds of anthrax here and there.
It's also true that armies sometimes make tactical risks for strategic benefits. But in the event Hussein used his weapons on U.S. troops there would be neither tactical nor strategic advantage reaped. The U.S. itself in the NAS report is clear on the strategic, i.e., political, victory Hussein would reap from a massively deadly military attack on U.S. soldiers based in Kuwait and other nearby countries.
In addition to the public record documenting the Cheney-Bush administration's knowledge of WMDs we are beginning to have private confessions, secrets revealed. Powell's former top aide, a Republican Marine, Laurence Wilkerson, has in the meantime come forward to state that the speech given by Powell to the United Nations was a "I participated in a hoax played on the American people," and to apologize for his role in this hoax, but the sort of open secret that should be grounds for impeaching the U.S. President, but it has been sadly ignored. Perhaps if Seymour Hersch had secretly recorded Wilkerson stating this to Scooter Libbey over coffee in a Congressional cafeteria then it would count as news, whereas a mortified former public official coming on the David Brancaccio show is somehow uninteresting. Alas.
Thursday, June 21, 2007
is here: #1, #2, #3.)
From the perspective of ICE the case seems to be about a man who deliberately lied about his citizenship status, effectively tricking the government into sending him to Tijuana. Although one early document raises questions about the authenticity of his birth certificate, the premise in general is that Guzman is a U.S. citizen and that he fabricated an elaborate story leading to his deportation:
The gist is that on April 26, 2007 Mr. Guzman "was referred" to ICE for questioning on his immigrant status. All of the filings from the government use this passive tense, without indicating exactly who in the L.A. County jail referred Mr. Guzman for this interview and the grounds for taking this action. This seems to be the first (mis)step toward his deportation.
According to a sworn statement by Sandra Figueras, who has been working as a Custody Assistant with the Los Angeles County Jail since January, 2000, Mr. Guzman not only told her that he was born in Nayarit, Mexico, but he also said that he had entered the United States illegally at a specific time and place.
The confusion seems to be due to the fact that around that time, Mr. Guzman went with his family from California to visit Mexico, and returned. If he were asked when he was last in Nayarit, he might have indicated this time frame. (My speculation here is based on statements also in this document from Mr. Guzman's brothers, Juan Chabes and Michael Guzman, who told an ICE field investigator that he had last visited Nayarit when he was 11, which would have been 1988.)
One major source of dispute is whether Mr. Guzman is mentally disabled (his family's claim) or whether this is just a fancy idea placed in their heads by a meddlesome journalist. According to an ICE Deportation Officer Jorge Field, Jr., "it was not until a reporter asked them about his mental capacity and suggested there may be a problem that they ever thought about Pedro Guzman in this manner."
The police report of the event leading to Mr. Guzman's arrest and eventually his deportation indicates that on March 30, 2007 Mr. Guzman tried to board a plane at the Lancaster Airport without paying; the charge was vandalism. He also was arrested for driving a stolen vehicle.
Curious about the details, I called the Lancaster Airport and spoke to the manager, Steve Irving. He told me that Mr. Guzman was in his car and followed a fuel truck onto the tarmac. Mr. Guzman left his car and tried boarding a charter plane that was about to take-off. I asked Mr. Irving if Guzman gave any explanation as to why he was trying to fly, and Mr. Irving said no. I said that it seemed a bit odd that someone would do this and what did he think the motive was. Mr. Irving, who had no idea of the legal contest now pending, did his best to be helpful: "It falls under the category of mental illness."
This is interesting, and the analysis seems consistent not only with the lawsuit's claims but also with the police response. Think about it: a post 9-11 event involving a guy trying to board a plane, refusing to leave; the police arrive and charge him only with vandalism and not a more serious federal felony of attempted hijacking or other terrorist-related crimes. Sounds like the police might have been in agreement with Mr. Irving.
Wednesday, June 20, 2007
I spoke this morning by phone with Omar Jadwat, Immigration Rights Project staff attorney at the ACLU offices in New York City about Pedro Guzman, a U.S. citizen ICE accidentally deported from the L.A. County jail on May 10, 2007 and now missing in Mexico (other posts with details on the event are here, and on the legal context here).
Excerpts from my typed transcription of the conversation with Mr. Jadwat:
JS: What is the current status of Pedro Guzman? Has he been located?
OJ: No. We have asked the judge for another status conference. We believe the government is not taking substantial steps to rectify the consequences of their horrible mistake.
JS: Have they done anything other than circulate posters?
OJ: Sometime back they inquired of shelters.
JS: What else would you like them to do?
OJ: They're obligated to make their best efforts to locate Mr. Guzman, and they haven't even begun.
JS: When is this hearing scheduled?
OJ: We're not sure. We have been asking the court to schedule [a hearing] and we hope the court would order one shortly. Time is of the essence here. Getting a ruling from the court is not an end in itself, merely a way to get the government to fix its mixtake and to help this family desperate to find this guy who was taken from them.
JS: Do you know why Guzman was singled out for this questioning? Was it based on race? Is ICE interviewing everyone in the L.A. jail to find out of they're a citizen?
OJ: The cooperation between the sheriff's department and ICE is supposed to governed by a memorandum of understanding (MOU). To what extent the MOU actually describes details on the ground and how typical his treatment is of how people are processed in the county jail will become clearer as case moves on. The fact that this happened and that we have a system that's so devoid of safeguards to due process that a U.S. citizen can be deported in this manner is really both an indictment of the system if it works and a reason to avoid having this kind of cooperation as a typical feature of how jails operate. It's a really horrific result. No matter what he said or his mental capacity there's something wrong with a system that allows this to happen, and no justification for the L.A. County Sheriff's Department or any jail to try participate in a system where things like this happen.
JS: Is there other litigation contemplated for the Guzman case?
OJ: The priority is to get Mr. Guzman home. That will continue to be the priority until he's located.
JS: Does the ACLU believe that under present law immigrants have the same legal rights as citizens?
OJ: The ACLU spent the years between 1996 and 2001 litigating attempts in 1996 to limit judicial review for non-citizens [Illegal Immigration Reform and Responsibility Act of 1996] and we succeeded in preserving some review of important issues, despite what the legislation was understood to be saying. It's an ongoing fight that involves trying to continue to preserve judicial review. The whole issue of what process people get when they're facing removal from this country, and also detention and other things that happen [to aliens] is a core issue for us. Without due process any other guarantees are really meaningless and there's no check on what the government can do.
Tuesday, June 19, 2007
Yesterday it emerged that Masri's arson attack was the latest in a long line of acts of desperation that appeared to stem from the deep psychological trauma he had been suffering from since his captivity.
Prosecutors said that Masri also faced charges for allegedly attacking an instructor who had been teaching him how to drive lorries. They said Masri had lost his temper after the instructor criticised him for failing to attend his lessons.
Prior to his arson attack on the Metro supermarket, they said Masri had spat in the face of one of the store's female staff after she refused to take back an iPod he had bought there.
I learned of this just now in an email from my Chair, who told me that she just learned her panel next month at the Law and Society Association meetings in Berlin would not be including El-Masri, as had been planned, because he in a hospital for arson. "Germans decided to put him in mental institution instead of prison because they are sensitive that he might have lost some good sense in the Salt Pit...," she wrote.
Just found the very short story that the NYTimes did on this and El-Masri's lawyer makes a devastating point against the judicial and social welfare system that has so badly failed El-Masri in his efforts to be compensated for his trauma:
I have asked several times from the beginning for psychological help, but without any luck,'' Mr. Gnjidic said. ''The very ironic thing is that he will get psychological help now, after he committed a crime, and as a torture victim didn't get it before, when he asked for it.''
The suit states that there are "no circumstances under which an American citizen may lawfully be deported from this country," which brings up a difficult question pertaining to the Guzman lawsuit. It's bad enough that Guzman may have been deported illegally, but what if the deportation is legal?
The major precedent that the plaintiffs cite is Rivera v. Ashcroft, 394 F. 3d 1129, a case whose facts would have added another twist to the film Babel: Salvador Rivera is born in Portland, Oregon and has a birth certificate, but by the time he's 18 his legal history in this country is not a pretty one and he decides to start a new life as a Mexican immigrant, so in 1997 he buys a fake Mexican birth certificate with an invented last name and uses this as his official identification, including in the United States as a means of obtaining a Washington state driver's license and identity card.
The new identity brought Salvador no new luck. About a year later he was apprehended by the Border Patrol as an illegal alien. Rather than give his true identity and face prosecution, he maintained his cover as a Mexican and was deported in 1998, but returned to the USA shortly thereafter. Here's what happened next, according to the Ninth Circuit Appellate Court opinion:
Over a year and a half later, a Border Patrol agent interviewed Rivera at Skagit County jail in Washington. Salvador told the agent that he had previously been deported under the name Salvador Galvan-Gaspar, but that he was actually a U.S. citizen.
On December 12, 2000, Rivera was arrested by Border Patrol agents when he appeared for a parole hearing with the Washington State Department of Corrections. Rivera told the agents that he was a U.S. citizen, and that he had purchased a birth certificate in Mexico in the name of "Salvador Galvan-Gaspar." Rivera initially agreed to give a sworn statement to the agents as to his identity, but then refused after reading the list of questions that he was to answer. That same day, the INS issued a "Notice to Appear" alleging that Rivera was not a U.S. citizen.
To make a long story somewhat shorter, the INS decided that Salvador Rivera was not Salvador Rivera and that he was an imposter. As the Court pointed out in rebuking the INS:
First, the INS did not present its own version of the facts of Rivera's birth, presumably because, on the evidence before the IJ [Immigration Judge, in this case, Anna Ho], there was no other version that was plausible. No party has disputed that the Oregon birth certificate is an authentic State document; the only question is whether it belongs to Rivera or to some other person. The Mexican birth certificate is too similar to the Oregon birth certificate to also be authentic. The birth dates are the same, the mother's name (Eloisa Gaspar) is the same, and the first name "Salvador" is the same. Moreover, the other last name on the Mexican birth certificate, Galvan, is Eloisa's married name. If it were the INS's position that the Mexican document was Rivera's real birth certificate, and the Oregon birth certificate belonged to someone else, the coincidences would be staggering. The INS story would have to be that Mexican citizens "Eloisa Gaspar" and her son, "Salvador Galvan-Gaspar," went to the United States and discovered that another woman named "Eloisa Gaspar" had a son named "Salvador Rivera" born in Oregon on exactly the same date, and contrived to obtain "Salvador Rivera's" birth certificate. This set of circumstances is not out of the realm of imagination, but it is incredibly unlikely. Far more plausible is the explanation that the Oregon birth certificate belongs to Rivera, and that he simply had a Mexican birth certificate created with his own birthdate and own mother on it, but changed his last name to his mother's married name.
In the end, the Court used strong language to rule in favor of Salvador Rivera:
In short, a U.S. citizen cannot lose that status unless the government can prove that the person intended to relinquish citizenship. We can think of no reason why citizens illegally deported by the government should be exempt from that rule. Acceptance of deportation after an administrative hearing is not, in and of itself, proof that a person wishes to relinquish citizenship.
While the tone of indignation about the stupidity of the INS (now ICE) seems to bode well for Pedro Guzman, the case points out the dangers of the procedural wasteland in which U.S. law leaves aliens.
The cases are different because although Guzman was deported, ICE is not sticking to this view of Guzman's status and has conceded the validity of his birth certificate and hence the authenticity of his U.S. citizenship. In the one area where Guzman is claiming relief (via the suit filed by his brother), it is on the grounds of his denial of his Constitutional rights, especially to due process and habeas corpus.
The Rivera opinion points out that the Court's overturning of the INS determination was consistent with other cases in which they had deferred to the administrative decisions, and this is the part that is tricky for Guzman and any other U.S. citizen unfortunate enough not to have 24/7 legal counsel and the ability to stand up to guys with guns dragging them out of the country: actions taken by ICE do not require judicial review if the person against whom they are directed waives appeal and signs a document consenting to the deportation. As the Court notes in Rivera v. Ashcroft, describing the deportation of an alien:
Citing § 2241's [of 28 U.S.C.] requirements that a petitioner must be "in custody," we held in Miranda that a petitioner who has already been removed "cannot avail himself of habeas corpus jurisdiction." 238 F.3d at 1158. We also noted an exception to this rule: "under extreme circumstances," we have held that an immigrant already removed may still receive habeas review.
But the "extreme circumstances" refers to the violation of the judge's order, and not violation of the rights of a U.S. citizen:
The extreme circumstances exception arose in our decision in Singh v. Waters, 87 F.3d 346 (9th Cir. 1996). The INS had removed Singh in violation of a stay of deportation by the immigration judge and after interfering with Singh's right to counsel.
In short, Pedro Guzman was treated inhumanely, indecently, and clearly unjustly. But because he never insisted on a judicial review of his case, the decisions cited by Rivera v. Ashcroft seem to suggest that his habeas corpus rights may not have been violated.
The reason for this reveals the deep problem with immigration law, a special, partial law that kicks in once the government determines that someone is an alien, a status that puts them into a realm of medieval orders and despotic decisions. One final quote:
The Fifth Amendment right to judicial review of non-frivolous citizenship claims and the Fourteenth Amendment right to U.S. citizenship (absent voluntary relinquishment) are not violated when an alien making a frivolous citizenship claim is deported after administrative proceedings.
But the entire purpose of judicial proceedings is precisely to distinguish the "frivolous" claim from the legitimate one, a task that when left only to the idiots at ICE violates due process, at least if the person deported is a citizen. Clearly, as long as due process is only for citizens, not even citizens will be able to obtain this. Indeed it is telling of the utter breakdown of the rule of law that Guzman's own case is being handled by immigration lawyers, since of course Guzman is not an immigrant.
If the United States is willing to commit to international law for human rights, then there is something very strange in denying everyone in its borders equal treatment under a law that treats everyone equally. One easy way to change this is to grant everyone claiming citizenship the right to a trial. Expensive? Difficult to manage? Well, that's the cost of justice, and as St. Augustine said, "Without justice, what are kingdoms but great robbers?" On a more pragmatic note, it's still cheaper than preventing free movement. (Image of cathedral in the Prague castle Kafka made famous.)
Friday, June 15, 2007
Guzman called the home of his half-brother Juan Carlos Chabes in Lancaster on May 11, Michael Guzman said. He spoke briefly with Chabes' wife, telling her that he had been deported but that he didn't know where he was.
He asked a passer-by where he was, and Chabes' wife heard a man respond, "Tijuana," Michael Guzman said.
Lawyers from the ACLU and the immigration law firm Van Der Hout, Brigagliano & Nightingale filed a lawsuit demanding the U.S. government find Guzman in Mexico and return him to the USA, and two days ago the Federal Court issued its ruling: tough luck. According to the L.A. Times:
U.S. District Judge Dean Pregerson said he was not convinced that he had the authority to order the government to help in the search for Pedro Guzman, a U.S. citizen, but said it would be the "right" and "moral" thing to do.
Guzman's mother brought the court a birth certificate showing that her son was born in Los Angeles and the U.S. government is not disputing Guzman's citizenship. (To see the debacle as its covered in the Mexican media, watch this story on Telemundo.) On Thursday, June 14, according to AP (the article is accessible only through Lexis-Nexis) the Department of Homeland Security issued a poster to the U.S. embassy and consul offices in Mexico stating:
"Subject is a (U.S. citizen), was removed, possibly mentally impaired. Hold for safeguard contact."The ACLU press release states:
This is a recurring nightmare for every person of color of immigrant roots," said ACLU/SC legal director Mark Rosenbaum. "Local jail officials and federal immigration officers deported the undeportable, a United States citizen, based on appearance, prejudice, and reckless failure to apply fair legal procedures."
Civil rights advocates have long worried about law enforcement of immigrant status. The concern is that the effort to catch immigrants here without the permission of the government is going to lead to racial and linguistic profiling and the harassment of citizens. But who, other than the Klan and the Minuteman--who support a White-only USA--would have guessed that in 2007 the government of the United States of America would be deporting its own citizens with no due process and no immediate legal remedy?
The Gitmo-ization of law has come home to roost. The absence of due process has become an acceptable principle for those who are not citizens, and hence in deportation proceedings means it is impossible to even determine who is an alien. That's why the judge was at a loss. ICE followed the rules. And the rules are consistent with the law. The problem is not civil rights violations but the fact that by law ICE has few restrictions on its authority once they deem someone "illegal." The solution is not only to bring back Guzman, but to keep ICE out of jails, off university campuses, and, ideally to shut them down altogether. Congress is going to have to stop making morality a matter of government choice and to make the laws moral by dropping status distinctions based on birthright.
6-15-08 UPDATE: See Nation article about ICE deporting and detaining thousands of US citizens, "Thin ICE".
Wednesday, June 13, 2007
According to ICE, the visit to the graduate student housing was due to some inconsistencies in the student records the University is required to submit to the digital tracking computer program Student and Exchange Visitor Information System (SEVIS) in the Iranian student's record. But does this warrant a pre-dawn surprise raid? And a detention of another student? Even ICE policies suggest not:
The information contained in SEVIS is input by various academic institutions and exchange visitor programs. These schools are certified by ICE to use SEVIS and are also authorized to petition for foreign students and exchange visitors to enter the United States as nonimmigrant students. The information in SEVIS is used by ICE to carry out administrative enforcement of individual status violators, conduct criminal investigations of smuggling and fraud related to SEVIS, and for national security operations.
If the only evidence of a status violation is inconsistencies in SEVIS records, then the policy here calls for "administrative enforcement," which presumably means at least a preliminary phone call to the home institution to understand any discrepancies, and to arrange an appointment with the student in question if necessary. Such a surprise measure is for terrorists, not graduate students for whom ICE has raised administrative questions about their status.
The arrest of the Korean student was on May 24, 2007. As of June 4, she was in custody at a detention facility in Ventura County. A colleague tells me that thanks to the intervention of the University she is now back at school preparing for her finals.
Chancellor Yang is doing his best to organize the other University of California Chancellors to prevent a repeat of the event that occurred at UCSB elsewhere. In fact at the time of the ICE intrusion, the campus police were violating the University policy that required them to contact the Chancellor and not to show them directly to student housing.
The only way to stop these raids is to end the ugly fiction of "legal" and "illegal" residents, and insist that no one's presence anywhere might be criminal, a notion that has always been received with opprobrium everywhere, until movement becomes legal and then is embraced. Perhaps a few hundred years ago today's lawmakers would have supported King Henry VIII, who ordered the execution of 72,000 vagabonds, meaning anyone traveling outside their parish of birth without documented permission of the king. (See William Harrison, Description of England  (Ithaca: Cornell University Press, 1968), p. 181. (For more on this see Reproducing the State, [Princeton, 1999] pp. 77-78).
If anyone in the sixteenth century were to have criticized policies restricting movement between villages, their words likely would be treated with the same bemusement that greets today's advocates of open borders among countries. The thought was that free movement within England would lead to a mass exodus to London and hence to its collapse under the weight of crushing poverty and overcrowding.
Prior experiences of tumult and then adjustment following the opening of internal borders suggests that within a period as short as one generation following the lifting of our present restrictions, these current ones will seem just as arbitrary and old-fashioned as those we find odd in early modern Europe. (The image is of the Ventura County Detention Facility)
Tuesday, June 12, 2007
According to the article's author Mark Clayton,
The core of this effort is a little-known system called Analysis, Dissemination, Visualization, Insight, and Semantic Enhancement (ADVISE). Only a few public documents mention it. ADVISE is a research and development program within the Department of Homeland Security (DHS), part of its three-year-old "Threat and Vulnerability, Testing and Assessment" portfolio. The TVTA received nearly $50 million in federal funding.
Notice that the name of the program below is "Starlight," and the foundation run by Mike Klein from SRA International (which manages DHS software) is "Sunlight":
At least a few pieces of ADVISE are already operational. Consider Starlight, which along with other "visualization" software tools can give human analysts a graphical view of data. Viewing data in this way could reveal patterns not obvious in text or number form. Understanding the relationships among people, organizations, places, and things - using social-behavior analysis and other techniques - is essential to going beyond mere data-mining to comprehensive "knowledge discovery in databases," Dr. Kielman wrote in his November report. He declined to be interviewed for this article.
The entire article is fascinating. Will this catch terrorists, or will this lead to new strategies for terrorist internet browsing more money for Klein and his military-industrial complex parasites? For one nasty consequence of ADVICE, read here, about how a homegrown film review site was shut down when the DHS raided their firm's server and took the hard drive. (image from mikeklein.com)
Monday, June 11, 2007
Robert Byrd (D-W.Va): While other Democrats opposed S. 1348 because of their stated concerns about U.S.-American workers, Byrd is playing the same law-and-order card as his Republican counterparts. Here's the explanation of his vote from his webpage:
""We should not reward those who break our immigration laws. We should continue to hire more border agents and install the fencing and technology to close the gaps along our land borders. We should encourage employers to hire American citizens and target those companies that hire illegal immigrants," Byrd explained. "And we should not give a blanket amnesty to illegal immigrants who want to flaunt the laws of this land."Byron Dorgan (D-ND): Dorgan introduced an amendment to remove the guest-worker provision from the bill. This provision was not passed and Dorgan voted against S. 1348. Another voice of provincialism. From Dorgan's press release:
"This proposal could wave a magic wand and give as many as 12 million illegal immigrants automatic legal status. This amnesty plan is no fairy tale; it is a bad dream," Byrd said. "The proposal is a slap in the face to every immigrant who had to wait abroad to come to American shores, and to every immigrant who had to struggle and work to become a U.S. citizen."
"There is no excuse for turning a blind eye to the 500,000 aliens expected to sneak across the borders illegally this year," Byrd stated.
The White House and several Members of Congress have been in negotiations over the structure of an amnesty plan that could garner the support of President Bush. A central tenant of those discussions has been a one-time waiver of an illegal immigrant’s status to legal."
"It is, simply put, a plan that would bring cheap labor in the back door in the form of millions of foreign workers, even as we continue to export good paying American jobs to other countries," Dorgan said."Mary Landreiu (D-LA): Another nativist vote against S. 1348. Landreiu voted in favor of an amendment that would have entirely gutted the legalization portion of the bill, for being too lenient! In her own (or rather, her office's words):
“The guest worker program proposed in the bill is virtually unenforceable and its structure does little to help employers short on skilled workers, instead encouraging overstaying and more illegal behavior. The legalization rules laid out give greater preference for those in the country illegally than they do for authorized guest workers or family members of U.S. citizens. This is not fair. If we are to provide a path to earned citizenship, the first people in line should be those who have played by the rules and followed the law.Claire McCaskill (D-MO). Seems Donald Rumsfeld has found a new job working as McCaskill's press officer:
"We have crimes we can deter in this country, and we have crimes we cannot deter."Hmmm... And then we have crimes we don't know are crimes. These would be the crimes of living in this country without a problem other than a nationalist country passing laws to make one's presence illegal. In McCaskill's words, channeling Rumsfeld:
"This doesn’t have to be complicated. Enforce the law. It is a mistake to toy and allow bureaucrats to decide who has broken the law, like one amendment I opposed. Rather, when someone breaks the law they should be brought in front of our criminal justice system and be accountable to the courts...In fact, I voted against the Senate immigration bill for a number of reasons, but there were two that really stuck out at me. I could not support the expansion of a broken guest worker program and I did not think the employer sanctions were tough enough."
Mark Pryor (D-AK). No press release but his voting record on all the amendments to S. 1348 are solidly with the Republicans, voting for almost all of the more draconian proposals, including eliminating the earned income tax credit for guest workers.Jay Rockefeller (D. W.Va) said he opposed S. 1348 because
Jon Tester (D-OK). Joined with Max Baucus (also D-OK) to issue the following:
"It doesn’t do enough to ensure that employers stop hiring illegal workers, and it doesn’t do enough to require major U.S. companies to hire and train U.S. workers first. It creates an unfair and complicated point system for legal immigration while essentially throwing out our historical commitment to unifying families.
“It allows 12 million people who are here illegally to jump to the front of the line and creates a guest worker program that could deny jobs and drive down wages for U.S. citizens."
"Baucus and Tester said that the bill aimed at reducing the number of illegal immigrants entering the country makes it too easy for an illegal immigrant to get a work visa, does not go far enough in strengthening the country’s borders and does not have tough enough enforcement measures."And finally, Jim Webb (D-VA), from his press release:
Personally, I believe that as long as this bill gives legalization to everyone who was here, as of the end of last year, it will be in real trouble.In short, every single member of the U.S. Senate was either willing to endorse S. 1348, a bill that for the first time would make English a national language and kick out residents to countries some had never seen (if they came as newborns and had never been back), or to assail it for being to lenient. The one Senator who seems to have voted for this measure for the right reasons (Bingaman D-NM) still falls far short of deserving any medals for his conviction since his web page avoids the immigration topic entirely and as of today he had no press release on his reasons for voting against cloture and indeed nothing on his overall immigration stand, one of the most important questions on the minds of his constituents. It appears that he fears the diatribes of the Minutemen more than pangs of conscience and would prefer to vote his beliefs for secret reasons, rather than take an opportunity to lead and change some minds.
Saturday, June 9, 2007
This graphic is from a screenshot of the web traffic data for this site (http://stateswithoutnations.blogspot.com) that I looked at on Thursday, June 7, 2007 through a service called Google Analytics. This free web traffic site tells me the networks people are using each day to visit this blog. It also tells me how each visitor came to the site. This piece of information is called the "source" or "referral." If the visitor types in the url http://stateswithoutnations.blogspot.com, then the source is "direct." If the visitor clicks on a link to my blog from another site, then the source is that other site. On June 7, 2007 I was looking at the data from June 6, 2007. As the screenshot from my traffic report makes clear, on June 6, 2007, a computer from the network of the Department of Homeland Security visited my site through a link from the site opencongress.org. What raised my suspicions about this visit through this source even higher was that I also saw that the network Arab Computer Systems (with the city Riyadh) had come to my site through this same source (for more on Arab Computer Systems see the Thursday post). Both of these intelligence networks crawling through OpenCongress.org is not a complete shock in itself. The surprise is that OpenCongress.org was started by a guy who is on the board of directors of the firm that does all the information technology for the Department of Homeland Security and who has a dense web of intelligence contacts, giving the appearance that the government is using a private front for a secret and illegal government purpose. These details are explained in the Thursday post.
Now, back to immigration. Thankfully, 11 Democrats joined with 39 loons from the right to block Sen. Kennedy's misguided coalition to pass S. 1348, a bill that would bring the Nuremberg Laws to the USA. The vote was not on the bill itself, but on whether to vote on the bill, a vote that would require enough to end a filibuster, meaning 60 votes and not a regular majority of 51. Those voting to vote supported the bill and those voting not to vote opposed the bill.
Here's a list of the 11 Democrats who opposed the motion to stop debate (and who inferentially can be assumed to oppose S. 1348): Max Baucus, Jeff Bingaman, Barbara Boxer, Robert Byrd, Byron Dorgan, Mary Landrieu, Claire McCaskill, Mark Pryor, Jay Rockefeller, Jon Tester, Jim Webb.
As a measure of right-thinking and cosmopolitanism, even though the result is a good one--the USA is not implementing draconian measures to punish its residents, establish a national language, and forcibly remove people from its borders who have businesses and families here--the index is embarrassing. In the topsy-turvy world of politics and especially immigration politics, the ideological meaning of the votes to end cloture meant radically different things for the different parties in general, and even within the Democratic party. The seven Republicans voting for cloture (Lindsey Graham, Chuck Hagel, Richard Lugar, Mel Martinez, John McCain, Arlen Specter, George Voinovich) are the Left of the Republican party, while almost all of the Democrats voting to vote on the bill are the party's Right, including those who have credentials suggesting otherwise based on their previous votes. Anyone--including Senators Kennedy, Russell Feingold, Barack Obama, and Hillary Clinton, among the 50 Democrats who voted for cloture--who supports criminalizing living in this country without a license, wants English only, wants to establish a national security registration system for immigrants where all applications for citizenship are in a database for local police and any other law enforcement agencies, and calls for at best a temporary deportation of de facto permanent residents (applicants must leave the country)--cannot claim to believe in civil rights or even basic norms of human decency.
Of the 11 Democrats opposing cloture, none did so on the record because of concerns about undocumented residents. Here's how their votes break down:
Max Baucus (D-MO) is making a bunch of pro-US worker rights speeches and opposing measures that would help current undocumented residents, reversing his commitments from last years, according to human rights activists in Montana.
Jeff Bingaman (D-NM). Bingaman's record is the most complicated. He voted (in the minority) to oppose the English only amendment and is an outspoken advocate for some undocumented workers. According to a June 7, 2007 AP article on Lexis-Nexis by Julie Davis, "The temporary worker program faced yet another challenge from Democratic Sen. Jeff Bingaman of New Mexico, who was seeking to allow laborers to come for six consecutive years. The bill requires them to go home for a year between each of three two-year stints." This proposal was of course defeated and in the tabled bill guest workers would have to return to their home countries after two years (and not the original three) before being able to resume work in the USA. But even when he tries to do good, he panders to a nativist majority. For instance, he proposed a measure to increase the number of people coming here through family ties but did so in a way that appeared to favor limiting immigration.
Barbara Boxer, from the OC Register:
"This bill needs to be simplified, it needs to be clarified, it needs to be rectified before I can support it," said Boxer, D-Calif. "I don't think the bill is workable. I think it hurts American workers. The amendment process didn't make it any stronger for me.'' Boxer supports the legalization plan, particularly the agricultural worker piece and the section that allows illegal immigrant students to get legal status. But she strongly opposes the temporary worker program, which she called "a slap at American workers.''
While Bingaman is worried about immigrants, Boxer's more parochial concerns and her repeated support for higher fences and more armaments at the border belie the consequence of her vote.
The rest tomorrow!
Thursday, June 7, 2007
The reason for alarm is that the Department of Homeland Security and Arab Computer Systems did not land here as a result of random crawling through the web, but because the DHS was crawling through a a website that appears to be a public watchdog group but turns out to be not only a lapdog of corporate lobbyists, as described in detail by Peter Byrne below, but also an arm of the Department of Defense and Homeland Security intelligence services. OpenCongress.org, started by Michael Klein, collects all sorts of political blogs, but for the benefit of spy agencies and not just the general public. Klein is on the Board of Directors for SRA International, which is in charge of the IT for Homeland Security. Klein sets up a public database with copious information about political malcontents that Homeland Security can crawl without violating the Fourth Amendment.
First, some background on Klein and Opencongress.org. Here's what journalist Peter Byrne published in the alternative weekly online newspaper for the Silicon Valley, MetroActive, in his article “Daddy Kleinbucks:Why the media missed the story on Dianne Feinstein's past conflicts of interest”:
(With thanks to pofarmer on the JustOneMinute blog, for linking to this article, and you can read more of Byrne's work here.)
"LAST YEAR, Wikipedia blocked congressional staffers from editing Wiki entries on their bosses after an employee of Sen. Dianne Feinstein changed certain references to her war-contractor husband, Richard C. Blum. For example, Feinstein's office excised Wiki's account of the $190,000 fine she paid for not disclosing that Blum underwrote her political campaigns.
Following the Wiki crackdown, a website devoted to creating bios of congressional members was born: Congresspedia.org. Democrat Feinstein's Congresspedia page paints her as being politically courageous and full of ethical grace. But conversely, Republican senator James Inhofe's Congresspedia blurb details his sins, including his support for torturing prisoners at Guantanamo Bay, Cuba. Con gresspedia is edited by the Center for Media and Democracy as a "joint project" with the Sunlight Foundation.
The nonprofit Sunlight Foundation was founded and bankrolled last year by Blum's longtime business partner, attorney Michael R. Klein. They co-own Astar Air Cargo, which holds defense contracts to service military bases, including Gitmo. Other war-contracting firms in which Blum was a majority shareholder have regularly wrung billions of dollars out of military appropriations that were overseen by Feinstein.
In a telephone interview in September, Klein told me, "I've known Dick [Blum] for a long, long time. One of my roles in life has been to make sure that, when he wakes up in the morning, he doesn't do something that embarrasses his wife. And, to the extent that I can, to make sure that, when she wakes up in the morning, she doesn't do something to embarrass herself, or him." (Our Jan. 24 cover feature, "Iraq & Diane," details how Klein, as a board member of Perini Corp., a defense contractor then controlled by Blum, repeatedly updated Feinstein on Perini's projects coming before her as legislation.)
Klein says the goal of the Sunlight Foundation is to "disinfect" Congress by funding watchdog groups and investigative journalism. He shares the board of directors with Nicholas J. Klein and Ellen S. Miller. The latter is a journalist who founded the Center for Responsive Politics (CRP), a nonprofit that tracks campaign donations, lobbyist activities and functions as a reliable source of data for investigative journalists.
Sunlight's advisory board includes Kim Malone, the director of online sales for AdSense at Google; Esther Dyson, who blogs for the Huffington Post; and Craig Newmark, founder of Craigslist.com. A section of Sunlight's website is devoted to creating blog tags for "your Google homepage," so it is obvious why Malone is involved. Ditto for Dyson, who is an Internet venture capitalist. Newmark, however, is an icon of electronic self-empowerment. I e-mailed him to inquire if he is aware of how Klein makes his living. He did not reply.
In its first year of existence, Sunlight gave out more than $1.6 million in "transparency grants" to ethics watchdog groups, such as Ellen Miller's CRP ($796,000); OMB Watch, which oversees the government's Office of Management and Budget ($334,000); the Center for Media and Democracy ($95,000); ReadtheBill.org ($200,000); Dan Gilmore's Center for Citizen Media ($25,000); and Arizona Congresswatch ($1,650). Journalists may submit individual grant proposals online to Klein.
The money has funded worthwhile activities. OMB Watch used its Kleinbucks to partner with Eagle Eye Publishers, a for-profit company based in Fairfax, Va., that sells search capabilities on federal databases. The resulting contract data obtainable online from www.fedspending.org is useful. ReadtheBill.org and MapLight.org (recipient of $77,000 Kleinbucks) have created free online access to state and federal legislation. And Miller's CRP used the grant to streamline a searchable database of lobbying and campaign records.
Miller is cofounder and executive director of the Sunlight Foundation. She is still a board member of the CRP, however, which raises a conflict-of-interest question. The IRS generally frowns on leaders of nonprofit foundations steering tax-free dollars to outside organizations in which they have a governing interest. In a telephone interview, Miller explained, "The question of self-dealing is irrelevant, because I am not paid by the CRP." She says she is aware of Klein's defense-contracting activities.
For many years, Klein represented Blum's interest as the vice-chairman of the board of directors of Perini Corp., which holds more than $2.5 billion in military-construction contracts in the global war on terror. Klein is also a member of the board of directors of SRA International, which earned $776 million from the federal government last year for such tasks as performing technology- and strategic-consulting services for national security programs.
But it is Klein's co-ownership with Blum of Astar Air Cargo that has furrowed more than a few brows inside the Beltway. Astar is the U.S.-based arm of DHL Worldwide Express (DHLWE), a German-owned air freight service. According to a May 2003 Astar press release, "The airline operates 40 aircraft in the United States or abroad for the United States Air Force, and was actively engaged in providing service to the U.S. Department of Defense during the Iraqi conflict. The airline currently serves the U.S. military with missions to Guantanamo Bay, Cuba; Roosevelt Roads, Puerto Rico; Ramstein Air Force Base, Germany; and other military bases around the world."
The byzantine circumstances in which Klein and Blum acquired Astar prompted competitors FedEx and UPS to formally complain to the federal government, claiming that Astar is a front for the German government. The Congressional Research Service investigated the matter and made a report to Congress in December 2003 that related the following facts:
Foreign corporations are not allowed to directly deliver air freight inside the United States.
In 2001, DHLWE was acquired by the German Post Office (Deutsche Post AG), which made it problematic for DHLWE to deliver packages inside American territory.
The Department of Transportation (DOT) ruled in May 2002 that DHLWE could operate in the U.S. as a "citizen." But in March 2003, the Congressional Research Service's report stated that the Inspector General found that "the informal review process employed by the DOT was not well-suited to the evaluation of DHL Airways' citizenship."
In April 2003, Congress earmarked the Emergency Wartime Supplemental Appropriations Act with a special provision that required DHLWE's American delivery arm to be majority owned by U.S. citizens. The bill also ordered DOT to conduct another review of the matter.
Shortly thereafter, Klein and Blum purchased control of DHLWE's domestic delivery arm with $50 million from Boeing Capital. They renamed it Astar Air Cargo. The gargantuan loan was guaranteed by Deutsch Post AG.
Nevertheless, in December 2003, DOT ruled that Astar meets citizenship requirements because it is controlled by Klein and Blum. The favorable ruling allowed Astar's parent company the right to operate in the U.S. and to obtain military contracts.
The Congressional Research Service pointed out that Klein was a partner in Wilmer, Cutler & Pickering, the Washington, D.C.-based law firm that simultaneously represented DHLWE, Deutsche Post AG and Astar Air Cargo. The report suggested that Astar was potentially controlled by the Deutsche Post AG given its legal bedfellows. Therefore, Klein's potential conflict of interest could have reasonably disallowed Astar Air Cargo from operating inside the U.S. and contracting with the Department of Defense.
In summary, Klein, a member of the powerful law firm representing a foreign-owned corporation, bought a part of that corporation with a loan from a major defense contractor in partnership with the husband of a U.S. senator who directly oversaw military appropriations.
This, then, is the war-contractor-cum-media-philanthropist who is systematically purchasing control over the agendas of congressional watchdog groups and investigative journalists who are supposed to keep on eye on this type of shenanigan."
Peter Byrne's impressive discoveries fortified me to do some poking around myself. It turns out that the firms Michael Klein runs are doing more secret intelligence work for the Defense Department than Byrne realizes.
No doubt the $3.5 million Klein donated to the group funding OpenCongress.org, the Sunlight Foundation, of which he is the co-director, really are from his personal funds and there is no direct government spending on the project, which would be a violation of Congressional limits on Homeland Security, not to mention the Fourth Amendment. But since Klein's SRA International received a $1 billion contract for just one project alone, he might not raise a fuss about using some of this to donate a database for SRA to crawl as part of its work for the DHS and DOD.
In other words, SRA International receives contracts to run the Information Technology for Homeland Security and Homeland Security uses SRA IT to run web crawls through a database that an SRA director with a defense industry background has set up. To quote Ollie North, "a neat idea."
The evidence for these claims? According to the Federal Contracts page for SRA International,
"The Enterprise Acquisition Gateway for Leading-Edge solutions (EAGLE) is a multiple-award indefinite delivery / indefinite quantity (IDIQ) contract vehicle, specifically designed as the preferred source of information technology (IT) services for the majority of the infrastructure and IT initiatives for the Department of Homeland Security (DHS)."
"The Defense Information Systems Agency (DISA) is the Department of Defense (DOD) command and control information systems engineer and provides the engineering for interoperable, integrated, secure, and affordable DOD command and control information systems to support the warfighter."
The SRA contracts for the Air Force specifically include an “Information Warfare Effectiveness Program,” although no further information on this is provided.
Later: on how this program follows from the DARPA plans for using private firms to data mine.