Sunday, September 27, 2009

Daniel Ellsberg and His Country: An American Love Story

"The Most Dangerous Man in America," a documentary by filmmakers Judith Ehrlich and Rick Goldsmith, is being shown in Los Angeles and New York (until September 29th at the Film Forum) as well as film festivals. I hope it gets a broader release because it's best seen in a theatre, not because of the film's cinematic qualities but because that's one way to feel what Ellsberg and the filmmakers show us: individual conscience is a group activity.

The film, brilliantly edited, tells a number of stories and stories-behind-the-stories (and it was a nice surprise to encounter in the film my friend and co-editor Richard Falk, himself a distinguished anti-war scholar and activist).

As political narrative the opening scenes depicting the Johnson White House's fabrication of Vietnamese aggression to elicit Congressional authorization for the Vietnam War are surreal in their spot-on resemblance to how Cheney obtained approval for the Iraq war. The insidiously crafted bogus threats indicating America was vulnerable worked their magic on two gullible Congresses. In the film, as in life itself, the people's branch of government comes off almost as bad as the imperial presidency.

(When Ellsberg first tries to leak the Rand Corporation's 7,000 page "Top Secret" report documenting U.S. lies behind the conflict dating back to the 1950s, it was to a spineless Senator J. William Fulbright, Chair of the Senate Foreign Affairs Committee who, despite his supposed rejection of U.S. policy, pretended as though the report did not exist. Ellsberg was shocked that politicians who had opposed the war for much longer than he had were too scared to release documents that might have ended it. He spent months carefully organizing the report's copying and delivery, and then nothing happened.)

It took months of smuggling out pieces of the report and then copying them in a secret location before Ellsberg had enough copies to share with key politicians. For this, Ellsberg believed that he might go to prison. In a typically thoughtful choice of honesty over secrecy, which also was an attempt to insure his 14-year-old son and nine-year-old daughter would not think him a kook -- what would they think if one day he's suddenly arrested as a traitor? -- he explained what he was doing as he was doing it. More than that, he wanted to honor them by including them in this important work; one evening his son was making the copies and his daughter was cutting off "Top Secret" at the top.

Ellsberg knew that he was putting his children at risk in various ways, including possibly sentencing them to a father behind bars, but preferred this over the certain calamity of lies. One of the film's motifs is calling into question bourgeois ideals of family and security, suggesting that these values corrode integrity and life itself. (If you care more about what your friends and co-workers think of you than you do about government bombing of civilians, innocent people die.)

Children 10 or older will really enjoy this film.

Why is this an American love story? Because it opens with a recently divorced Ellsberg working as a defense analyst and wooing a woman who, while drawn to him, could not abide by his support of the war. She ends their relationship but it seems that she started a process that profoundly changed him. Later, as Ellsberg is on the brink of leaking the Pentagon Papers, they reunite, marry, and Patricia supports him in this decision and goes underground with him for a while.

But more than their personal relationship, this is a story of Ellsberg's commitment to his government and democracy, faith in the idea that if the people knew the truth, they would do the right thing and end the war. A refrain that occurs more than once is Ellsberg's incitements of his fellow citizens to action. Quotations from Thoreau, Gandhi and Martin Luther King, Jr. come easily to him.

Despite the film's concluding notes indicating Nixon's resignation and the end of the Vietnam War, the Pentagon Papers seem to have played more of a role in the former than the latter. Nixon becomes consumed by revenge after the Supreme Court allows the press to publish the Pentagon Papers and this leads him to establish the secret "plumbers" group that would break into Ellsberg's psychiatrist's office and, later, bug the Democrats at the Watergate complex.

It seems a little sad but also fitting that the virtues of the woman Ellsberg married and that she admired in him meant so little to the country on whose behalf these passions were devoted. At one point Ellsberg quotes the aphorism "if I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country" and tells us that he never understood why anyone would endorse loyalty to a friend instead of one's country when morality seemed to demand the opposite. There are a few other comrades-against-arms we meet who embody the Ellsbergs' ideals, all allies through the peace movement, but America does not come off as an obviously worthy love interest.

True, there is justice and even poetry when the judge in the Ellsberg and Russo case declares a mistrial and dismisses the charges after a Nixon henchman tried bribing the judge by promising him a high-level FBI appointment, but in the end Ellsberg seems to realize that the leaked report, the words themselves, did not really matter and his country would act in the same stupid way it always had. Ellsberg reflects on what it meant that after all he risked and lost, people seemed not to care.

It is unclear whether Ellsberg believes that his love for America has been betrayed, will remain ineluctably unrequited, or whether America might someday reciprocate. Perhaps that's what makes this such a great story.

UPDATE, 9/28/09: Today's column by Frank Rich shows how these debates from the 1960s are being rehashed in the Obama White House.

Wednesday, September 9, 2009

Deported New York City Resident Alleging Unlawful Detention Wins $145,000 Settlement From NYC, And So Can You!

photograph from tenth anniversary of NYU Immigrant Rights Clinic

A couple of weeks ago Cecil Harvey, a legal permanent resident for 36 years and a citizen of Barbados, received his check from the City of New York for $145,000, part of a settlement last May in response to his lawsuit claiming Rikers Island Jail illegally confined him for over a month because the jail staff thought Immigration and Customs Enforcement might want to deport him. [Correction 9/10/09: Mr. Harvey directed that $10,000 from the settlement be donated directly to the NYU Immigrant Rights Clinic, so his personal check was for $135,000.]

Especially inspiring about this lawsuit is that a detainee and immigration attorneys who are more used to playing defense than offense in the legal system prevailed. Their victory stands as an object lesson for thousands of other U.S. residents who are being illegally detained by law enforcement. Crucial here is that Mr. Harvey won these damages despite being deported as a criminal alien. In other words, the City of New York tacitly recognized that its guards cannot violate anyone's civil rights, even those of an alleged criminal alien. (Mr. Harvey, although presently in Barbados, does not concede the legality of his deportation.)

Under 8 CFR 287.7(d), jails are not allowed to hold someone awaiting transfer to ICE custody for more than 48 hours, not including weekends or holidays. But Rikers held Mr. Harvey for ICE 35 days in 2003 and in 2006 Rikers again held him for more than 48 hours. The jail's illegal deprivation of Mr. Harvey's liberty is, according to the complaint, part of a systemic practice in which the jail regularly ignores the immigration law and the due process rights of immigrants:

40. On information and belief, pursuant to this policy, NYC DOC frequently detains immigrants beyond the 48 hours authorized by 8 CFR 287.7(d)(3).

41. Mr. Harvey met other victims of this practice during the months he spent in ICE detention in 2007.

42. On information and belief, NYC DOC officials with final decision-making authority acquiesced in the decision to hold Mr. Harvey, with deliberate indifference toward. theresulting clear violation of his constitutional rights.

The text above is from the 18-page complaint filed on Mr. Harvey's behalf in October, 2008 by Alisa Wellek and Laura Trice, law school interns supervised by Professor Nancy Morawetz at New York University's Immigrant Rights Clinic.

The complaint contains many allegations that might trigger a lawsuit under 42 U.S.C §1983. (The statute allows people to sue those acting under color of law for violating their civil rights.) In this case, the underlying injury was the illegal and unconstitutional deprivation of Mr. Harvey's liberty, a serious example of government misconduct and in some cases felonious.

Keeping people locked up is supposed to hurt. That's the assumption of our current system of criminal incarceration. These harms may include the loss of employment, frayed family relations, and even medical complications from discontinued health treatments.

Mr. Harvey's unlawful detention resulted in all of the above. He knows he is not alone, and has called for "outlawing the conspiracy between between New York City and ICE."

Professor Peter Markowitz, who directs the Immigration Justice Clinic at the Benjamin Cardozo School of Law in New York City, characterized Mr. Harvey's experience as part of a larger pattern of illegal treatment of immigrant detainees in New York City custody – a pattern that has contributed to the unnecessary deportation of countless New Yorkers whose families are left behind.”

Actually, this is happening around the country, including in the DeKalb County Jail in Georgia. For instance, Oscar, who was deported in June to Mexico, also seems like he has a strong case to sue for the violation of his liberty interests. In a fact pattern that holds for thousands of deported US residents, Oscar was picked up by the local police on a pretextual arrest, held for two weeks, unlawfully deprived of visitation by his wife, and then shipped off to Georgia and deported to Mexico, where I met him in late June.
Oscar, 25, originally entered without inspection nine years ago with his father when he was 16. He and his wife, Kimberly, a U.S. citizen, have three young children. Oscar, a contractor, has no criminal record, and if the DeKalb County Jail had released him after its 48 hour legal period for holding him for ICE had expired, then perhaps he could have obtained an attorney and figured out a way to remain in the country legally. (This was part of Harvey's allegation as well: the illegal detention impeded his ability to defend against the deportation.)

I spoke to Kimberly in July, on what turned out to be their wedding anniversary. She said, "He went to Court on Tuesday and the judge dropped all the charges. They wouldn’t let him out because ICE had a hold on him for 48 hours. When the 48 hours was up they put another hold on him. All they would tell me is that ICE had a hold on him. I would call back up there to see if they came and took him and they said they took another 48 hour hold on him. He was there for two weeks."

According to Professor Markowitz, there is no legal means for ICE to "renew" a hold, and yet jails routinely hold people for more than the 48 period legally allowed.

Linda, Kimberly's grandmother, isn't surprised, "That's the way the county is. They don't care. If they want to hold you for two weeks, they'll hold you for two weeks. This whole situation is terrible. The little girl is crying. They made the children here lose their father."
I tried calling Kimberly yesterday but her cell phone is turned off, presumably because she is unable to pay the bill. (She and Oscar both told me he was unable to reach her because without his income she couldn't afford the phone.)

The biggest disappointment for Mr. Harvey, indeed for any resident of a country whose government wrenches them from their homes and families because of fantasies about nations, was that he was ultimately shipped off to Barbados in 2007. His lawsuit states that the deportation itself was largely due to the impact of detention on his ability to prepare his case--he was stuck in an ICE facility in Alabama.
What does it mean that a guy who had been kidnapped and held incommunicado by a foreign government not only decided to fight for his ability to stay in that country, but also that the United States Constitution was meaningful enough that he could use it to sue the government that was breaking its own laws?
The good news, only possible because of Mr. Harvey's gutsy and inspiring use of the law to stand up to the government, is that New York City's attorneys acknowledged by their substantial settlement that Rikers Jail cannot break the law, even when the law is protecting a deported noncitizen and a criminal. This is an extremely important precedent that could potentially allow tens of thousands of other deported US residents to sue the places that illegally held them as well.

Alisa Wellek, one of the NYU law students who submitted the complaint, said, "One of the huge takeaways is that localities are subject to litigation. ICE isn't paying for it. New York City is paying for it." Her hope is that as the word gets out, local jails, including Rikers, will stop illegally holding people.

One thought for immigration attorneys and activists going to detention centers: download the lawsuit here and do it yourself! And don't be afraid to show some spine. According to one source familiar with the negotiations, the City's initial offer was $1,500. It's hard not to infer that the City attorneys wanted to avoid a lawsuit not only because of the damages but because of what would be revealed in discovery, when the jail and ICE would be subject to subpoenas. In light of the widespread illegal practices elsewhere, this motive may not be unique to New York City.

(The New York City Law Department did not respond to a request for comment.)

Another thought for the Department of Justice: start charging the law enforcement agents who are illegally holding people with false arrest and kidnapping. The law is clear about how long people can be held. When US Attorneys or state prosecutors do not file charges, it imposes an enormous hardship on the law-abiding taxpayers who must foot the bill. Not only is a criminal sanction the only real deterrent for the ICE agents and jail guards who are violating the rights of US residents--the City of New York is paying the settlement, not the wardens--it is the appropriate response to the outrageous and cavalier treatment of people the government is supposed to protect, not persecute.
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