Saturday, July 19, 2008

Republicans Point out Hypocrisy of Anti-Torture Legal Scholars

Ric Keller (R-FL): "Isn't killing the ultimate torture?"

Walter Dellinger, Solicitor General under President Clinton and currently a law professor at Duke University Law School visiting at Harvard Law School was questioned by Rep. Dan Lufgren (R-IN) and Rik Keller (R-FL) during the House Judiciary July 17 hearings on interrogations. These Republicans deftly revealed the hollowness and distraction of the anti-torture legal analysis in this country.

To paraphrase the Republicans' line of questioning highlighting the absence of a serious peace movement: why are these liberal scholars so self-righteous in protesting the torture of a few detainees (who clearly should not be held this way much less tortured), but say nothing about our policy of killing hundreds of thousands of innocent civilians, and indeed support targeted assassinations?

Dellinger had been making the case of "24"-s Jack Bauer--the President in the case of a "ticking time bomb" can authorize torture, but then needs to turn himself in and be accountable. (Bauer regularly breaks laws but acknowledges this is his decision, for which he will accept the legal consequences.)

Lufgren made a really great point in pressing Dellinger to distinguish the narrow case of torture from the President's use of weapons of mass destruction against innocent civilians on a daily basis. Dellinger folded.

Here's the exchange (at 1:48 on the hearing streamed via C-SPAN).

Lufgren: Mr. Dellinger, you set up a scenario by which you think we ought to operate, that is in certain dire circumstances the president ought to break the law by directing people to break the law to do something that should save American lives. If that had been the case in WWII should Pres. Truman have submitted himself to the law after he ordered the dropping of the atomic bomb on two occasions.

Dellinger: I don't know that that was unlawful, in violation of any statute.

Lufgren: Even though that ended up with the loss of many lives that were innocent men women, and children who were not described in any way as belligerents or combatants?

Dellinger: I think that may well have been in the scope of his authority.

Later, Ric Keller (R-FL) pushed even further (at 2 hours):

Keller: It seems to me that the gist of your testimony is that it was okay for the Clinton Justice Department to authorize the killing of bin Laden but it's not okay for the Bush administration to aggressively question terrorists who want to kill us, and that seems just a bit inconsistent to me.

Dellinger: I can answer that precisely.

Keller: Okay.

Dellinger: The reason is quite simple. It would not have been against the law of the United States to assassinate bin Laden. It was against the law of the US to engage in torture. Those are decisions that have been made by Congress.

Keller: Isn't killing the ultimate torture. I mean, my god. What worse torture is there than killing somebody?

Dellinger We kill enemy combatants all the time. That is very different. than subjecting them to cruelty. I happen to have a personal belief that the executive order forbidding assassinations, whenever that's been in effect, is probably a mistake.

Keller: Let me just say to you. We have a Supreme Court and they just ruled that the death penalty was too cruel and unusual a punishment for someone who raped an 8 year old girl. So if the death penalty is too cruel of an unusual a punishment, how the hell is it okay to kill someone but not okay to aggressively question them?

Dellinger: Well, Osama bin Laden is not a United States citizen and not being detained in the United States, under the custody of the United States, and therefore, has no Constitutional rights.

Keller: But you agree with me that the Clinton Justice Department specifically authorized the killing of Osama bin Laden?

Dellinger: I am not privy to that, nor could I address it if I did.

Keller: I'm privy to that, and hell I was in school during that administration, because I'm looking at page 132 of the 9-11 Commission Report and I'll let you be privy to it now. “The new memorandum would allow the killing of bin Laden. The administration's position was that under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not assassination. On Christmas eve 1998 bin Laden [sic] sent a final draft to President Clinton with an explanatory memo. The President approved the document. Because the White House considered this operation highly sensitive only a tiny number of people knew about this memorandum of notification. A message from Tenet to CIA field agents directed them to communicate to the tribals the instructions authorized by the President of the United States that preferred that bin Laden and his lieutenants be captured, but if successful capture operation was not feasible the tribals were permitted to kill them.”

Now you see the contradiction. You have testified with respect ot questioning from my colleague from California Mr. Lungren, that even with Khaled Sheikh Mohammed, that is not an exceptional extraordinary circumstance that should allow us under the law that should allow us to question him aggressively, right? He's not a United States citizen. That was your concern before, but he's not a United States citizen..

Dellinger: The question you're asking, I think is a question directed to the Congress of the United States. And if there's a contradiction between our legal authority to assassinate persons who are foreign leaders and the prohibition on torture that's to be resolved by Congress. My concern is that the claim in this, the fundamental flaw in these memoranda is that they take the term “the inherent authority of the president,” that is, what a president can do in the absence of any prohibition by Congress, which I think is a broad area in the area of national defense, and then will say once Congress has enacted a criminal prohibition, the President can still do it because it's quote within his “inherent authority.” That, I think, fundamentally disregards the central role of Congress in establishing what the law is.

Analysis. Dellinger is trying to avoid the blatant ethical hypocrisy of picking on the government for torturing a few people while ignoring the widespread suffering caused by, say, an atomic bomb, the effects of which are torture by any measure, by shifting the problem to Congress. Not only does the magnitude of the contrast warrant comment, even if it is on Congress' decision-making, but Keller is making an astute Constitutional point and not just one about statutes.

Keller is pointing out that the Supreme Court has declared that when the state executes people who are criminally convicted of raping children, that is torture under the Eighth Amendment. Dellinger tries to claim that because the murder of civilians and targetted assassinations are authorized by law, this makes them different from torture that violates the law. But if a legislative body passes statutes that are unconstitutional, e.g., executing rapists, then these are not laws.

If the Supreme Court says killing people who are not convicted of killing someone else is "cruel and unusual punishment" then isn't that an interesting argument against dropping bombs on civilians? The argument would be novel and is not the direction that this Supreme Court would go. But it is an intriguing opening that anyone who truly cared about the excesses and cruelties of state sovereignty would pursue. Dellinger's effort to deflect this line of questioning by claims about state custody is not only ethically indefensible but also incorrect in some cases, for instance, when the US government is an occupying power.

Rather than advancing a marginal if not distracting question about the US use of torture in a few dozen cases at most, why not hearings on the US army killing hundreds of thousands of foreign civilians?

Thursday, July 17, 2008

Lawsuit Charges Maricopa County Sheriff with Racially Profiling Latinos

Attorneys working with the American Civil LIberties Union (ACLU) and the Mexican American Legal Defense and Educational Fund (MALDEF) filed an amended complaint today against Joseph Arpaio, the Maricopa County Sheriff in southern Arizona.

The lawsuit profiles the Sheriff's Wild West brand of racist vigilantism, with the Sheriff plaing to hometown bigotry and illegally detaining and searching US citizens and legal residents who appear to be Latino. You can find the complaint here.

Here are some scenarios the lawsuit describes:

1) Arpaio ordered his deputies to detain and arrest Latinos who were in an area populated by day laborers as retaliation for community protests against these policies. "In an apparent effort to suppress the Pruitt store protesters' exercise of their First Amendment rights, Arpaio announced that he would continue to patrol the area until the protests ended" (pp. 13-14).

2) "Arpaio praised as 'patriotic' the private groups, including the American Freedom Riders, that...had been harassing all Latino persons entering and leaving [a] legal center" (p. 14).
This is the equivalent of conservative politicians in pre-Nazi German pandering to the brown shirts by informally deputizing them and tacitly supporting their thuggery directed against Communists and Jews.

In fact, most of Arpaio's actions resonate with events during the transition era of the German goverment in 1932, when a country compensated for its loss of stature in international and specifically military arenas by bullying its own citizens. Can't beat the French? Then attack the Jews. Can't beat Al Qaeda? Harass Latinos.

3. A Mexican citizen was visiting with a legal visa and in a car with other Latinos. The car was pulled over supposedly for speeding but a ticket for this was not issued. Instead the Sheriff's officers searched, arrested and handcuffed Mauel de Jesus Ortega Melendres without probable cause and after he had shown them his valid legal documents. Weirdly, he was ridiculed as a sex pervert, then held for nine hours without food or drink, and eventually released after an ICE agent approved the documents. His hands were bruised and painful from the handcuffs, which, despite his polite requests, were not removed or even adjusted (pp. 18-19).

4. Sheriffs had established a traffic stop to screen Latinos. Cars driven by Caucasians were briefly inspected and then allowed to pass through. The car driven by Mr. and Mrs. Rodriguez was held up as officers requested a social security card (p. 21).

As a result of these activities, Arpaio is charged with violating several laws. The most surprising law the ACLU charges Arpaio with violating is Section 287(g) of the Immigration and Nationality Act 8 USC 1357(g), which authorizes local law enforcement agencies to enter "memoranda of understanding" with the Department of Homeland Security to enforce some portions of immigration law.

The ACLU points out ICE itself has stated that the "'287(g) program is not designed to allow state and local agencies to perform random street operations'" and that "officers may only 'use their authority when dealing with someone who is suspected of a state crime that is more than a traffic offense.'" (Quoting from ICE Fact Sheet, Section 287(g) of the Immigraiton and Nationality Act (September 24, 2007), at It should be pointed out that the prohibition against random street operations rules out the only possible defense Arpaio might have, which would be to say that his stops are not based on race: random stops are not allowed AND those based on racial profiling allowed. This means that there are no grounds on which officers are allowed to stop and investigate people for immigration violations absent probable cause.

In addition the suit charges Arpaio violated the Equal Protection clause of the 14th amendment, which invalidates racial profiling; the Fourth and Fourteenth Amendment's prohibition against unreasonable search and seizure; the Arizona privacy article of the Arizona Constitution; and Title VI of the Civil Rights Act prohibiting race discrimination in federally funded programs (since the Sheriff's office receives federal funds).

The suit is asking for judgments confirming their allegations as well as injunctions against further racial profiling and attorney fees as well as "such other relief as the Court deems just and proper" (p. 30).

Wednesday, July 9, 2008

ICE Lawbreaking Costing Taxpayers Big Bucks

Yesterday I was interviewed about my research for the June 23, 2008 Nation article "Thin ICE" by a local NPR show "Crosstalk." (The shows are not archived.) The host, Jim Rondeau, asked how ICE responds to charges that it is detaining and deporting U.S. citizens. There used to be one answer to this question, but since a couple of weeks ago, ICE has two. I want to discuss these in more detail from a factual and legal standpoint.

The early response, which I first heard in the February 2008 testimony of Gary Mead, Assistant Director for Management of Detention and Removal Operations, in the House Judiciary Subcomittee on Immigration, Citizenship, Refugees, Border Security, and International Law, was that ICE "does not knowingly or willingly" detain or deport US citizens. This also was the line mouthed to me by Brandon Alvarez-Montgomery, an Public Relations Officer, when I interviewed him for the Nation article.

There are several problems with this answer. The first is that it is demonstrably false. In the cases my article documented, including one specific case whose facts I brought to the attention of Alvarez-Montgomery and several other ICE officials, they ignored the evidence I sent them of Rene Saldivar's citizenship and he continued to be held in the Eloy Detention Center. In other words, ICE will have a birth certificate or other documents indicating legal requirements of citizenship are satisfied, and nonetheless hold the citizen in detention. (I'll speculate on why they do this later.)

The pattern of the Immigration and Naturalization Service (INS), the ICE predecessor agency, and ICE losing civil cases in which the allegation is unlawful detention of US citizens, or settling these cases, provides historical evidence that the government is indeed knowingly and willfully detaining U.S. citizens. In other words, the legal arm of ICE over the last decade has been shelling out what I estimate to be millions of dollars in restitution for false imprisonment lawsuits filed by residents and citizens over the last several years, while the public relations wing of the operation claims this never happens.

In one case, just brought to my attention by attorney Philip Hwang at the San Francisco office of the Lawyer's Committee for Civil Rights, a US citizen was falsely imprisoned for hours at the San Francisco Airport. According to the SF Chronicle, Chima Obi, who was born in Redwood City, California and then raised in Africa, was shackled to a chair and taunted by immigration agents who refused to believe that a woman of African descent could be a doctor and a US citizen. She showed them her passport. That wasn't enough. She showed them her birth certificate, and, she said, that made them only angrier. She and her husband were fearful that they would not be able to settle in the US because the INS would never believe them. She eventually was released and her documentation approved, and the INS paid $50,000 to settle the case.

Between 1995 and 2002, the SF based Lawyers Committee for Civil and Constitutional Rights represented 8 cases of people being unlawfully detained for which the INS paid $675,000 to settle.

Claiming that an ICE agent does "not know" a US passport and birth certificate are authentic because racism makes them stupid is not a defense against false imprisonment, but grounds for additional civil rights charges.

{To be cont.}

image above is from here.

Interpreter's Firsthand Account of Civil Rights Violations in Iowa Raid

The Detention Watch Network just released a first-hand account by an interpreter ICE hired for a raid at the Postville, Iowa meat-packing raid with 900 ICE agents in May. Anyone interested in an eye-witness account to these events should take a look. Here's an excerpt:
...Echoing what I think was the general feeling, one of my fellow interpreters would later exclaim: "When I saw what it was really about, my heart sank..." Then began the saddest procession I have ever witnessed, which the public would never see, because cameras were not allowed past the perimeter of the compound (only a few journalists came to court the following days, notepad in hand). Driven single-file in groups of 10, shackled at the wrists, waist and ankles, chains dragging as they shuffled through, the slaughterhouse workers were brought in for arraignment, sat and listened through headsets to the interpreted initial appearance, before marching out again to be bused to different county jails, only to make room for the next row of 10. They appeared to be uniformly no more than 5 ft. tall, mostly illiterate Guatemalan peasants with Mayan last names, some being relatives (various Tajtaj, Xicay, Sajché, Sologüí...), some in tears; others with faces of worry, fear, and embarrassment. They all spoke Spanish, a few rather laboriously. It dawned on me that, aside from their nationality, which was imposed on their people in the 19th century, they too were Native Americans, in shackles. They stood out in stark racial contrast with the rest of us as they started their slow penguin march across the makeshift court. "Sad spectacle" I heard a colleague say, reading my mind. They had all waived their right to be indicted by a grand jury and accepted instead an information or simple charging document by the U.S. Attorney, hoping to be quickly deported since they had families to support back home. But it was not to be. They were criminally charged with "aggravated identity theft" and "Social Security fraud" -charges they did not understand... and, frankly, neither could I. Everyone wondered how it would all play out.
To read the essay in its entirety, go here.

Tuesday, July 8, 2008

Interview on today's "Crosstalk," 1:05 pm PST

I'm going to be interviewed today on the local NPR station for Ventura County and Santa Barbara, starting at 1:05 PST. It will be streamed at

Wednesday, July 2, 2008

New Interactive Map of Detention Sites

The Detention Watch Network (DWN) today released the next generation of its interactive map of the U.S. Immigration Detention System.

Designed to increase awareness about the hidden and rapidly expanding detention system, the map includes in-depth information about the far-flung network of 350-plus detention centers, private prisons, and local jail facilities that Immigration and Customs Enforcement (ICE) uses to detain immigrants. “It is incredibly difficult to find someone once they have been detained. Family members, lawyers and friends will now be able to use this map to locate their loved ones. It will also be a critical resource for advocates and provide a strong visual tool to educate the U.S. public and policy makers about this hidden system,” said Andrea Black, Network Coordinator.

As recent media reports and congressional hearings on deaths in detention have highlighted, the U.S. immigration detention system is vast, constantly changing, and shrouded in secrecy with isolated and remote facilities scattered across the country. It is extremely difficult to get even basic information from the government about which facilities are in use, the numbers of people being detained and the locations of individuals swept into the system. “It is heartbreaking to see families struggle to find a loved one in detention, frantic to learn which detention centers are nearby. And it is challenging to advocate for detention reform and hold the government accountable for its capricious policies without a clear understanding of the vast system in place and its proposed expansion.” said DWN member Bob Libal of Grassroots Leadership.

In April 2007, DWN created the first national map of the U.S. immigration detention system. The response was overwhelmingly positive and has proven extremely useful to families searching for detainees as well as reporters and Congressional offices. However, it only scratched the surface of needed information. The new map creates a multi-faceted visual representation of the immigration detention world. In addition to a navigable national map, each detention center has its own page with contact and visitation information as well as links to resources and related media.

The map was created by the Praxis Project ( using open-source technology. Research was provided by volunteers throughout the country, including students from Stanford Law School Immigrants’ Rights Clinic, Florida State University School of Law and Southwest Institute for Research on Women who investigated information about each center through interviews, online research and extensive outreach to facilities. Critical funding was provided by the Sparkplug Foundation and Maverick Lloyd Foundation. The map is a work in progress; DWN will continue to work with volunteers to gather information about this ever-changing system to support affected family, community members, and advocates and educate the media, the public, and policy makers.

DWN is a national coalition of organizations and individuals working to educate the public and policy makers about the U.S. immigration detention and deportation system and advocate for reform so that all who come to our shores receive humane treatment. For more information, visit

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