The Montgomery County Civil Rights Coalition (MCCRC) held a public forum on April 18 to discuss what effect “The War on Terror” has had on free expression and grassroots political organizing in Maryland and across the United States since 9/11.  The forum featured four speakers whose presentations discussed a number of demonstrations of federal, state and local surveillance and their disruption of peaceful activism.  The forum was opened by Kit Bonson, who explained the MCCRC’s desperate formation, saying:

The Montgomery County Civil Rights Coalition (MCCRC) started because in the fall of 2010, 7 activists in Minneapolis and Chicago awoke one morning to find that their houses were being raided by the FBI. Boxes and boxes of their possessions were confiscated, including computers, papers, and family photos. Although they were never charged with any crime, they were called to testify in front of a Grand Jury.

In response, activists here in our area, as well as in cities around the country, came together to protest the use of the FBI and the Grand Jury process to harass and intimidate movement organizers. Basically, we wanted to stand in solidarity with activists who had not committed crimes or advocated anything other than nonviolence action. It was from these events that MCCRC was founded.

Forum Speakers

Saqib Ali, formerly a Maryland state legislator,  is now the Director of the Council on American-Islamic Relations Maryland chapter (CAIR-MD).  Ali spoke about the overwhelming surveillance of Muslim-American communities throughout the United States, describing the three major issues facing these communities as the “No Fly” list; the FBI’s infiltration of mosques and the growing presence of FBI informants in mosques; and the near-constant surveillance of Muslim communities.  Ali explained that the “No Fly” list prohibits many Muslim-Americans from travel back and forth between the United States and countries abroad where family members may still be located.  Ali specifically noted that the Transport Security Administration (TSA) compiles their “No Fly” list fairly arbitrarily, and lacks any legal recourse; not only  is the reason for being on a “No Fly” list murky at best, but it becomes nearly impossible to remove oneself from that list.

Ali also discussed the FBI infiltration of mosques, both as a means to surveil Muslim community worshiping therein, as well as to persuade mosque members towards terrorist action and subsequently stage their arrests.  He also discussed the more local development of an NYPD “Demographics” Unit, which singled out Muslim community centers of all kinds throughout New York and New Jersey for surveillance.  He described the “Demographics” Unit as a “wide, indiscriminate dragnet of Muslim everyday things: barber shops, bookstores…”

Sue Udry, the Executive Director of the Defending Dissent Foundation (DDF), broadened the discussion beyond the Muslim-American community to discuss the many different examples of legitimate activism being disproportionately targeted by local, state and federal law enforcement agencies.  She specifically mentioned the “Ag Gag laws,” which aim at preventing whistleblowers from exposing any wrongdoing within agricultural operations.  Within these Ag Gag laws is the Animal Enterprise Terrorism Act (AETA) which Udry and DDF describe as:

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In Alameda County, the local Board of Supervisors recently voted 3-1 in passing a proposal requesting Sheriff Greg Ahern to withdraw from the federal Secure Communities program. Implemented in 2008, the voluntary Secure Communities program is an immigration policy operated by the U.S. Immigration and Customs Enforcement (ICE), which is directed towards the deportation of immigrants convicted of violent and dangerous crimes.

The Secure Communities policy implements a process through which state and local police may coordinate with federal agencies in the enforcement of immigration programs. The initial process begins when individuals are arrested, as law enforcement oft fingerprints those detained in violation of criminal offenses.  This fingerprint data is then electronically transferred to the Federal Bureau of Investigation (FBI), who alternatively collects and stores such information in their organizational databases. Subsequently, the FBI then sends such fingerprint information to the Department of Homeland Security (DHS), so that ICE may assess whether the individual in question can be subject to removal from the country.

In Alameda County alone, this policy has already led to the deportation of over 2,000 residents since its adoption. As such, the Secure Communities policy has been subject to significant criticisms, particularly regarding its overbreadth, as the program can produce negative consequences for immigrants who have never violated criminal statutes. Supervisor Richard Valle, who originally drafted the resolution states:

The underlying tone in Secure Communities denies people the due process and very democracy that we are here to defend.

As another proponent of the new resolution, Supervisor Wilma Chan, iterates a similar argument, and elaborates:

There’s nothing in this ICE hold that really helps because under the current system, immigrants just like anybody else who commit crimes are still going through the system. If they committed a felony, they are going to serve time in jail. Our job in Alameda County is not to do the job of [Immigration and Customs Enforcement.

This recent resolution possesses numerous similarities with a previous policy in Berkeley, California, where the City Council voted unanimously against continued support for the Secure Communities program. Nadia Kayyali, legal fellow at the Bill of Rights Defense Committee (BORDC), provides significant insights into the pushback against Safe Communities, and examines both the ineffectiveness and inaccuracies of the program:

It decreases community safety as police become equated with immigration enforcement, thus leading to a lack of willingness to call the police or assist in community policing or investigations. The federal government has stated that S-comm is aimed at “criminals” but according to Immigration and Customs Enforcement’s (ICE) own numbers, 79% of deportees under S-Comm had no criminal records, or had been picked up for low-level offenses such as traffic violations. In California alone, almost 80,000 deportations have taken place.

As Supervisor Chan stated, local communities should not be delegated the task and jobs of the federal immigration officials. While the passing of this resolution is undoubtedly commendable, it remains incomplete and more work will be necessary in transforming this symbolic resolution into a complete victory. 

Ever since the preliminary efforts by the US government to curb undocumented immigration in the 1980s, such as the Immigration Reform and Control Act (IRCA), our nation’s immigration enforcement machinery has steadily become stronger, stricter and much more rigid. With current net undocumented migration from Mexico at or below zero and increased consequences for illegal crossing, new reports show that this level of strict enforcement is wasteful in terms of the federal budget and harmful as it attacks civil liberties of immigrants and citizens alike.

Monumental transformations in immigration law and enforcement since the 1990s have included border control, strict visa requirements, advanced data systems, and detention or deportation of aliens. Moreover, increasing integration of  immigration control systems with criminal investigation mechanisms has also become a pillar of this drive to secure borders and address immigrant influx into the US.

A recent report by the Migration Policy Institute shows that these enforcement mechanisms are supported by a colossal increase in federal spending on immigration control:

The US government spends more on its immigration enforcement agencies than on all its other principal criminal federal law enforcement agencies combined. In FY 2012, spending for CBP, ICE, and US-VISIT reached nearly $18 billion. This amount exceeds by approximately 24 percent total spending for the FBI, Drug Enforcement Administration (DEA), Secret Service, US Marshals Service, and Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which stood at $14.4 billion in FY 2012.

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President Obama has had a complex (and somewhat contradictory) stance on immigration for as long as he has been in office.  His administration has proudly touted its aim to deport record numbers of  undocumented immigrants, while simultaneously pushing for the passage of the DREAM act, which would grant citizenship to undocumented immigrants who fall into one of two socially acceptable categories: those willing to risk their lives for the United States military, and those who are interested in pursuing a college degree.

Immigrants not interested in either of the two straight-and-narrow paths offered by the DREAM act can say goodbye to a life in the U.S.

The exact number of undocumented immigrants deported under Obama is somewhat unclear. Some sources report over 400,000 in the 2012 fiscal year alone and a continuous increase in removals since President Bush left office, while other sources suggest these numbers have been inflated, and that there has actually been a steady decrease in deportation since Obama first came to office in 2008.

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Comprehensive immigration reform, along with the fiscal cliff and sequester, has recently dominated Washington. But observers have overlooked how calls for stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.

Conservative members of Congress have demanded tighter enforcement as a condition of considering meaningful reform of federal immigration policy. But enforcement-first immigration reform could wreak havoc with the fundamental liberties of citizens. If libertarians recognized how conservative policy proposals threaten their interests, the debate could shift dramatically.

What enhanced immigration enforcement could look like

Immigration enforcement takes primarily two forms: border security and interior enforcement. Each poses a threat to Americans who value their own freedom. The border security debate hides the most severe potential pitfalls, only because the privacy implications of interior enforcement have at least been discussed in public.

Many conservatives want to lock down our borders even more than our federal agencies already have. Yet American’s borders have never been more secure. In 2012, our government spent $18 billion on civil immigration enforcement, more than combined spending on all agencies that enforce criminal laws.

Proposals to further tighten border security have included increasing the deployment of domestic surveillance drones, expanding immigration checkpoints, building a fence, and adding more agents to the already bloated rosters of CBP and ICE.

Beyond border security is interior enforcement, which Bush and Obama both escalated, reflected in record numbers of deportations. Recent proposals emphasize technology: the controversial E-verify program to force employers to enforce federal immigration law, or similar programs like 287(g), Secure Communities, or the Next Generation Initiative, which co-opt local police and undermine public safety.

Confused premises

Whether at the border or within the US, the demand for tighter enforcement ignores reality: net migration across the southern border has already turned negative, driven by harsh profiling, alongside continuing stagnation in job growth, which has made immigration less economically attractive.

In other words, tighter border security and enhanced interior enforcement are unnecessary, at best. According to Marc Rosenblum from the Congressional Research Service, “additional investments at the border may be met with diminishing returns.”

Beyond diminishing returns, enhanced border security could prove nightmarish — not just for undocumented families, but also US citizens. Border security could diminish our own freedom to travel, while interior enforcement poses a covert threat to privacy.

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Last week, the Bill of Rights Defense Committee (BORDC) joined a large contingency of other organizations in presenting a letter to Capitol Hill concerning public worries over the implementation of the national “E-Verify” system. In the hopes of uncovering undocumented workers, this controversial system would establish an electronic employment verification process, and compel employers to submit employee information to a governmental database. Consequently, both sets of information will be compared against one another, and any discrepancies between the two records would result in a revocation of that particular employee’s ability to work until the error is corrected.

While the letter adamantly rejects the validity and usefulness of the E-Verify system, it outlines several judicious amendments to the system in order to mitigate the following flaws, as:

E-Verify imposes immigration enforcement costs on Americans, disproportionately impacts minority groups, conscripts employers to act as immigration agents, exacerbates identity theft, and creates a de facto national ID system.

Additionally, the Cato Institute has also severely admonished this employment verification process, and likened the E-Verify system to a biometric national identification system reminiscent of the Federal Bureau of Investigation’s (FBI) “Next Generation Identification” (NGI) project.

Referred to by some commentators as the Big Brother of the next generation, NGI became publicized in 2011 through a Freedom of Information Act (FOIA) request concerning a divisive immigration deportation program. Sarah Berlin, of BORDC, described the NGI project as fundamentally dangerous, in that it would result in the creation of:

A database of biometric information such as fingerprints, iris scans, and facial recognition data — of not only immigrants, but all Americans. In other words, the FBI designed this program to use immigrants as the guinea pigs for a national biometric ID system that will eventually include all Americans. In such a system, there would be no ID cards — our bodies would be our IDs.

As outlined in the letter, E-Verify represents a disastrous assault upon civil liberties, and unnecessarily encroaches upon an individual’s rights to privacy and speech. Though it is directed towards a specific group of individuals, the negative effects of the system will inevitably impact the population in general. As evidenced by the supporters of the recent letter, E-Verify is no longer an issue confined solely within the realm of immigration reform, but has generated considerable criticism from an increasingly large variety of groups ranging from small business owners to workers’ rights organizations.

If observers want to criticize the President, they should challenge his derogation in practice of the same values he professes.

Critics of Mr. Obama have described his inaugural address as radical.  But insisting on values as fundamental as “equality before the law” and the “enduring strength of our Constitution” are hardly radical.  Indeed, they are simply restatements of principles that have long united America.

If observers want to criticize the President, they should instead challenge his derogation in practice of the same values he professes in lofty speeches. Rhetoric is no substitute for reality, and given the President’s unfortunate extension of the Bush-Cheney assault on civil liberties, his administration deserves criticism.

Forgotten promises

The President seems no more inclined than his neo-con predecessors to heed longstanding constitutional limits on executive power. Indeed, his first term witnessed several extensions of the Bush-Cheney legacy.

Extrajudicial assassination using armed drone aircraft, the use of unmanned aerial drones for unwarranted domestic spying, the NSA’s dragnet domestic wiretapping, the FBI’s resurrection of COINTELPRO, the unprecedented crackdown on immigrants under President Obama, the use of immigration enforcement as a pretext to create a national biometric identification scheme for all Americans (including citizens), continued racial profiling in the drug war, and the new threat of military detention within the US, all reflect a dark side of President Obama’s legacy.

I’ve written at length about the secrecy pervading the administration’s national security efforts, which butcher constitutional rights in many ways that are unfortunately even worse than the sum of their parts.

If President Obama wants to leave a legacy in his second term, he need cite no transformative agenda. He need merely remember his own campaign promises from 2008, or the need to ensure accountability for documented recent violations by federal agencies, or alternatively the oath of office he adopted again this week.

Several looming policy issues offer opportunities for the administration to finally walk the President’s talk in its second term.

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On Friday, Immigration and Customs Enforcement (ICE) released its year end deportation numbers alongside a new set of guidelines on the issuance of detainer requests to local law enforcement under the infamous Secure Communities (S-comm) program. The announcement reveals the depths of S-comm’s flaws, while leaving little doubt that real change at the federal level remains elusive.

In 2012, ICE removed 409,849 people, the most deportations in the agency’s history, and 12,943 more than last year’s record of 396,906. It’s no secret that ICE has severely misguided deportation priorities, and that S-comm has worsened them. One frequently repeated statistic from Department of Homeland Security is that 79% of deportees under Secure Communities had no criminal records or had been picked up for low-level offenses such as traffic violations. However, there are other statistics that outline the brutal impact of S-comm in more detail. A report from UC Berkeley researchers showed that:

Approximately 3,600 United States citizens have been arrested by ICE through the Secure Communities program; more than one-third (39%) of individuals arrested through Secure Communities report that they have a U.S. citizen spouse or child . . . ; Latinos comprise 93% of individuals arrested through Secure Communities though they only comprise 77% of the undocumented population in the United States; only 52% of individuals arrested through Secure Communities are slated to have a hearing before an immigration judge;  [and] only 24% of individuals arrested through Secure Communities and who had immigration hearings had an attorney compared to 41% of all immigration court respondents who have counsel.

The numbers are clear. S-comm is a broken program that destroys due process, tears families apart, and focuses on Latinos to a degree that can only be called racial profiling. So, what is ICE’s solution?  Minimal reform with maximum fanfare.

The new detainer guidance states that ICE officials should continue to issue detainers where they “have reason to believe” that an individual has three or more misdemeanor convictions; has a conviction for or has been charged with a felony; has a prior misdemeanor conviction or has been charged with a serious misdemeanor offense; has a prior order of deportation; has re-entered the country after a previous removal or return; has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or:

…the individual otherwise poses a significant risk to national security, border security, or public safety.

In effect, the new policy excludes only a tiny number of individuals. Even those exclusions are only theoretical, because the guidance leaves huge discretion to ICE officers to issue detainers.  Asian Law Caucus’ Angela Chan, a leader in the fight against S-comm in California, released a redlined copy of the new policy on Friday, explaining its fatal flaws. She notes that the policy completely excludes Customs and Border Patrol, and that the guidance would continue to:

…allow individuals to be detained and deported under S-Comm for purely civil immigration violations. S-Comm was supposed to focus on serious or violent felony convictions, not immigration violations.

The other flaws with the policy are obvious. It requires only “reason to believe,” not articulable facts. It does not provide an objective list of specific misdemeanor crimes, but rather a subjective list of categories. By citing a national security threat, it implicates similarly problematic counterterrorism standards.  Finally, it focuses on charges, not convictions, leaving in place the “guilty until proven innocent” standards that have defined S-comm since its inception. Unsurprisingly, although the guidance emphasizes the need for transparency and uniformity, it maintains ICE’s prerogative to police itself, even though this has failed at creating an accountable agency.

ICE is depicting its revisions as thoughtful steps towards sane immigration policy in this country, but these changes trail behind the more meaningful policies passed in cities, counties, and states that want truly secure communities. From the complete non-compliance with ICE detainer requests passed by Berkeley City Council in October of this year to the strict limitations on compliance with detainer requests such as those  passed by Santa Clara County, CA, and  Cook County, IL, grassroots advocacy at the local level has made it clear that communities are fighting S-comm. California Attorney General Kamala Harris’ recent memo clarifying that detainer requests are purely voluntary also demonstrates the sea change happening at the state level. These grudging and miniscule changes to a broken system are clearly ICE’s response, but it is not enough. It is time for S-comm to end entirely.

Earlier this week, the Detention Watch Network (DWN) released its report on the nation’s Top 10 Worst Immigrant Prisons. The report was assembled by a group of “advocates, community organizers, legal service providers, faith groups and individuals personally impacted by detention.”

Yesterday, U.S Rep. Jared Polis (D-CO) and Bishop Minerva Carcaño joined DWN and its supporters in calling President Obama to close these 10 prisons as a “down payment on a complete overhaul of U.S. immigration policies and practices.” As Bishop Carcaño states:

“The detention of hundred of thousands of immigrants in this country for profit and political gain is a moral outrage. Detention centers are not the answer to our broken immigration policies.”

In 2009, following an ACLU lawsuit against the T. Don Hutto Residential Center in Austin, Texas, the Obama administration announced plans to overhaul the immigration detention system, seeking to put an end to the mistreatment and abuse within the system. The first step in the plan entailed ending the detention of immigrant families at Hutto prison.

The larger goal of the Obama administration’s reform efforts was to end abuses by establishing central authority over the immigration detention system, instituting more direct oversight, and moving toward less penal treatment/housing of detainees. In coordination with the administration’s proposal, Immigration and Customs Enforcement (ICE) announced ambitious reform plans aimed at separating the immigration detention system from the prison system. Three years later, in March 2012, ICE opened a non-penal detention center in Karnes County, Texas.

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Alabama’s Beason-Hammon Act (HB 56) was passed in June 2011 and requires public school administrators to question the immigration status of all new Kindergarten through 12^th grade students. The 11^th Circuit Court of Appeals struck down HB 56 two months ago; declaring it unconstitutional. The unconstitutionality of HB56 directly stems from the court case, Plyer vs. Doe, that mandates every state to provide an education to all children regardless of their immigration status. The Southern Poverty Law Center (SPLC), who filed the lawsuit against HB 56, stated that, “Section 28 interferes with that basic right. The legislature and the governor have claimed that Section 28 will not have any impact on enrollment, yet the Department of Justice is reporting that Alabama’s own data shows a significant and measurable decline in Latino students’ school attendance. Alabamians have a right to see the data for themselves, to know the impact this law is having.”

This same circuit struck down HB 87, which was Georgia’s proposal to criminalize “the transporting and harboring” of undocumented people. This decision fights the idea that individual states are able to make their own individual immigration regulations and ignore federal authority. However, this is only one circuit. The effects of bypassing federal authority have been harmful to not only individuals but also whole families. HB 56 is modeled after Arizona law and grants government officials (including law enforcement) to demand “papers” during routine activities. The law encourages racial profiling and abuse against all Latinos in Alabama and mocks human rights. After the law took effect in Alabama, the Southern Poverty Law Center open a hotline for those affected to report about their lives. According to the SPLC, “Almost 1,000 calls poured in during its first weekend of operation….They illustrate the devastating impact HB 56 has had on Alabama Latinos, regardless of their immigration status. The stories also illustrate that HB 56 has unleashed a kind of vigilantism, leading some Alabamians to believe they can cheat, harass and intimidate Latinos with impunity.” During the time HB 56 was active thirteen percent of Latino children withdrew from school and in turn the local economies are suffering because the parents of the children were afraid the provocation of the immigration status of their children would in turn lead to their own arrests or provocation by the police. HB 56 fosters fear and punished innocent victims and is a total civil liberties violation. There cannot be compromise with laws of hate and injustice.