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. 

Last week, Immigrations and Customs Enforcement (ICE) executed a crackdown operation throughout Connecticut, resulting in the arrest of at least 27 individuals.  The arrests began on a day of immigration reform rallies organized by the Connecticut Immigrant Rights Alliance (CIRA).

Department of Homeland Security (DHS) officials denied any intentional coincidence with CIRA’s immigration events.

Carried out by ICE’s Enforcement and Removal Operations unit, supposedly after months of preparation, sudden news of the arrests chilled Connecticut’s immigrant community.  Together with the threat of Secure Communities (S-Comm) turning local police stations into automated documentation checkpoints, immigrant communities also face dragnet operations.  Denying lack of discretion, ICE spokesperson Ross Feinstein describes the recent ‘probe’ as:

part of an on-going enforcement action targeting at-large, criminal aliens and others who pose threats to the community.

ICE submits a similar justification for S-Comm, which purports to bolster community safety, but enables biased policing and indiscriminate enforcement.  Additionally, just as ICE obscures data regarding individuals’ apparent criminality, officials mostly refused to reveal the convictions prompting the Connecticut immigration roundup.

Feinstein did admit that one individual arrested in New Haven had multiple Driving Under the Influence (DUI) convictions, while another was convicted of narcotics sales and second-degree assault.  However, does conducting arrests for crimes like these actually require such a massive operation? ICE’s silence on the convictions of 25 other individuals raises further questions as to the legitimacy of the sweep.

Criticizing ICE’s tasteless tactics, New Haven immigration attorney Glenn Formica, who currently represents some of the individuals arrested, states:

I don’t think they have to go door to door. If somebody gets a letter from ICE saying, ‘Appear in Hartford,’ they will show up. Most people are not going to run. A guy with three DUIs, I don’t think you need to go to his house and arrest him. I think you can send him a letter and he will get a lawyer and show up.

Although Connecticut’s local ICE offices received Formica’s commendation for treating arrestees humanely, the system of deportation creates severe burdens for impacted families.  Children and spouses, documented and otherwise, could be left to live without support, with no available recourse for their suffering.  Furthermore, as a consequence of intimidation tactics, entire communities cannot trust and fear the authorities charged with preserving peace and protecting the public.

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On Friday, March 22, the Judiciary Committee of the Connecticut General Assembly held a public hearing for the Transparency and Responsibility Using State Tools (TRUST) Act.  Like its California namesake, Connecticut’s TRUST Act restricts local operation of Immigration and Customs Enforcement’s (ICE) Secure Communities (S-Comm) protocols.

Although purported to identify and remove dangerous undocumented criminals, S-Comm neglects human rights, enables profiling and racist policing, violates due process, and chills free expression.

Community members, organizations, and activists flooded Room 2B of the Legislative Office Building to support local immigration reform.  The Judiciary Committee heard heartfelt testimony against unjust detainment and deportation; how parents lose their children, how families live indefinitely without support, and the fear of seeking help when victimized by violence or unfair treatment.

BORDC Legal Fellow Nadia Kayyali submitted written testimony on S-Comm’s dragnet, stating:

[Even] citizens have been detained and deported under S-Comm, and more than one-third (39%) of individuals arrested…report that they have a documented spouse or child, meaning that approximately 88,000 families with documented members have been impacted…

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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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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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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.

This past Saturday, the Connecticut Coalition to Stop Indefinite Detention along with BORDC organized “An Injury to One is An Injury to All: A Conference in Defense of Civil Liberties and to End Indefinite Detention”.  A litany of advocacy groups and activists attended to demonstrate solidarity against the systematic and divisive abridgment of Americans civil liberties.  The conference encompassed critical issues such as police militarization, government aggression against dissident voices, prejudiced enforcement practices, and domestic surveillance.  The ideology under which so many civil liberties groups gathered expresses that, though all Americans face significant challenges to their civil liberties,  no one community should endure isolation, even in marginalization.

The conference featured notable speeches addressing the most pernicious assaults on Americans civil liberties.  Critical Guardian columnist and best-selling author Glenn Greenwald spoke out against indefinite detention and the use of laws to undermine the rights they ought to preserve.  He also raised the issue of surveillance drones already in American airspace, which suggests the further adaptation of foreign conflict policies for domestic law enforcement.

BORDC Executive Director Shahid Buttar revealed the disturbing implications emboldened ‘criminal justice agencies’ and Next Generation Identification (NGI) for Americans’ privacy and freedom.  Through biometric data-sharing among federal agencies and local police, community cops become proxy feds and every American is a suspect.  Professor Sahar Aziz extended this discussion with a piece on government plants and informants utilized to listen in on dissident voices, instigate criminal acts, and enable manufactured investigations against targeted communities, which you can view online.

The conference also entailed multiple workshops to closely examine pertinent issues such as prejudiced law enforcement and diminishing speech rights.  The simultaneous impact of these violations  marginalizes targeted communities such as African-Americans, South Asians, and Latinos while negating opportunities to expose and challenge abuse.  Though not all groups experience the same levels of discrimination, the liberty of all peoples requires each group to represent the cause of others. Without such solidarity, we will all be competing for false freedom.

Ultimately, the “Conference in Defense of Civil Liberties”  brought together a diverse cross-section of civil liberties advocates for a singular purpose: preserve the rights of all Americans.  Though tireless organizing, activism, issue engagement, and resistance to regressive and abusive policies, We the people can build the power to keep the state in its proper place.  In identifying with the struggles of other groups and communities, we develop the understanding necessary to truly contextualize our own efforts to establish liberty and justice.

After a four year absence, a board charged with ensuring government respect for privacy and civil liberties was recently reconvened and received recommendations from civil liberties groups.  How it approaches its work will carry serious implications for civil liberties going forward.

In 2004, the September 11th Commission’s recommendations to Congress included the creation of a Privacy and Civil Liberties Oversight Board (PCLOB) to ensure the protection of civil liberties.  Noting that “if our liberties are curtailed, we lose the values that we are struggling to defend,” the commission called for a board to oversee the government’s adherence to defending civil liberties.  The PCLOB was constituted in 2006, but after operating for less than a year, it was reorganized by Congress, curtailing the tenure of its original members and then allowing to lapse after 2008.

After years of inactivity, the Senate finally confirmed new members of the Board, and it convened for a public hearing on October 31.  A bevy of civil liberties groups submitted statements to the Board, including the Bill of Rights Defense Committee (BORDC), as well as the ACLU, the Defending Dissent Foundation, the Electronic Privacy Information Center (EPIC), the Brennan Center for Justice at NYU School of Law, the DC-based Center for National Security Studies (CNSS), and the Constitution Project.

Both BORDC and CNSS  recommended approaches to the PCLOB’s work going forward, rather than discrete issues.  BORDC’s statement included three major recommendations to guide the work of the board:

• [Undertake] a concerted effort to recruit and engage pro bono counsel to extent the PCLOB’s investigative capacity.
• Beyond examining any discrete set of policies…acquaint policymakers, the press, and its observers within the executive branch with context about the landscape connecting these various long overlooked civil liberties issues.
• Because the PCLOB has convened only in passing over the decade since its creation was first recommended by the 9/11 commission, it should evaluate contemporary policies not in the context of the most recent incremental changes, but rather against the baseline pre-dating the 9/11 commission.

Similarly, CNSS provided input on the Board’s role, objectives, operations and its place vis-a vis the public and Congress. Notably, CNSS urged the Board to take a broad view of what constitutes privacy, inviting it to:

consider those ways in which government access to personal information, even when that information may be somehow available on the internet, impacts those constitutional values of liberty, due process and individual autonomy that privacy is supposed to protect.

A number of allied organizations presented suggestions about particular issues screaming out for scrutiny and oversight by the PCLOB.

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Given the election is just only a day away, it should come as no surprise that this past week gave rise to a ton of political discourse. Sadly for the American people, issues of civil liberties continue to evade the lips of the Democratic and Republican presidential candidates by and large. This week, BORDC was featured by many news outlets as work with local coalitions moved forward-including those in Berkeley, California.

On Wednesday, BORDC legal fellow Nadia Kayyali appeared in several local and regional newspapers/online-editions after the Berkeley city council unanimously voted to revoke a policy requiring Berkeley Police Department to hold undocumented immigrants in the local jail by request of the federal government. The vote, which came as surprise to many including some advocates, is one of the most progressive maneuvers pushing back against the ICE’s Secure Communities initiative to have been undertaken in the country to date. Both the Daily Californian and the Mercury News quoted Kayyali’s address to the city council about Berkeley Police turning over suspected immigration violators to federal authorities. In the Daily Californian, Kayyali was quoted:

“We are basically throwing out the idea that someone is innocent until proven guilty. We are holding them on their immigration status.”

The Mercury News quoted Kayyali as saying that turning over suspects to ICE…

“throws out the notion that people are innocent until proven guilty.”

Speaking on the ramifications of the vote on county and state advocacy, Kayyali was quoted by the independent newspaper Berkeleyside:

“This is probably the best policy in the country,” she said. “It really sends a message about S-Comm, and makes council’s statements in the past, about not supporting the program, a reality.”

For a comprehensive view of BORDC’s latest news coverage, and to find out how to reach staff for comment, and more, view our online press resources.

Note: The Bill of Rights Defense Committee is a 501(c)3 nonprofit and does not endorse particular candidates for public office. Nothing in what follows should be construed as an official endorsement for any candidate, but we do hope that you’ll find it both informative and provocative.

With only a few days remaining until the 2012 presidential election, the candidates are sprinting around the country to secure support from voters. Behind the distractions of their legitimate policy differences, however, lie quietly critical issues that truly test their dedication to upholding the laws of the land and preserving the protections of We the People. While the national economy dominated discussion during the 2012 presidential debates, this year’s election also affords an opportunity to scrutinize the candidates’ perspectives on civil liberties.

Obama vs. Romney

On many civil liberties issues, neither Obama nor Romney have taken positions consistent with American values, choosing instead to support authoritarian measures adopted in the name of security. According to BORDC’s Shahid Buttar:

While the 2012 presidential debate has involved many issues of legitimate national concern, those with the most enduring legacy have been excluded entirely from the debate — and with good reason: There is no meaningful daylight between the candidates. Despite an increasingly vicious electoral contest between the presidential campaigns, and wide-ranging conflict between the two major political parties in Congress and the state legislatures, with respect to national security and human rights (and to be fair, a range of other equally ignored issues), America is a one party state.

On the one hand, Romney may bring back into the White House the discredited coterie of advisers that dragged our country into a constitutional abyss under the Bush administration. On the other hand, President Obama has made policy choices in counterterrorism, immigration enforcement, surveillance, and police accountability that outflank the Bush-Cheney administration’s worst abuses.

Noting the Obama administration’s support for domestic surveillance, government secrecy, a national biometric ID scheme, prosecuting whistleblowers, and executive accountability for torture, Buttar notes that:

Despite campaigning to restore liberty in the face of Bush & Cheney’s blind pursuit of a brutish (and ultimately foolish) vision of security, President Obama has not only continued their constitutional abuses but even pioneered new ones. Two looming, especially large, ones are the powers to militarily detain — or even kill — anyone (even American citizens, and their children) with neither evidence nor any judicial review.

The 2012 presidential debates also gave rise to a discussion on the candidates’ immigration policies.  President Obama and Governor Romney both consider America a “nation of immigrants”, and both advocate a “streamline” approach to acquiring citizenship.  The candidates also share ambitions to remove non-resident criminals and encourage an influx of educated immigrants .  Although the President and former Governor both support reforming the ‘legal’ immigration system, their respective programs differ significantly.

One aspect of President Obama’s immigration agenda entails some constuctive reforms.  The President has promised that his administration will “go after folks who are criminals, gang bangers, people who are hurting the community, not after students, not after folks who are here just because they’re trying to figure out how to feed their families.”

Though President Obama’s rhetoric is laudable, its execution seems at odds with his words.  Enforcement protocols such as Secure Communities, which purports to identify and eject immigrants who commit serious crimes, tend to victimize immigrant communities and essentially turn local police stations into extensions of federal immigration agencies.  In the name of immigration reform, the administration has essentially terrorized productive members of American communities.

Considering immigration from the perspective of economic reconstruction, Governor Romney’s agenda entails identifying ‘illegal’ hires and imposing penalties on employers who knowingly hire ‘illegal’ workers.  Romney also suggested that even if the breadwinners of a family face deportation, their children may enlist for military service as a pathway to citizenship.  But a state that accepts immigrants into its armed forces while rejecting them from its workforce defies the ideals of justice and equality that America once signified.

Romney’s vision for the future of immigration policy also contemplates a self-deportation system.  He explains:

[W]e’re not going to round up 12 million people, undocumented illegals, and take them out of the nation. Instead let people make their own choice. And if they — if they find that — that they can’t get the benefits here that they want and they can’t — and they can’t find the job they want, then they’ll make a decision to go a place where — where they have better opportunities.

While seemingly humane, this soft description of self-deportation policies conflicts with Romney’s own stated immigration objectives.  Though he determines to penalize employers who hire ‘illegal’ workers, he neglects to reveal possible repercussions for individuals found ineligible to work.

Without a clear path to citizenship or opportunity to work, Romney will not have to “round up [and remove]12 million…undocumented illegals,” because a lack of livelihood will force them to leave.  Ultimately, Romney’s immigrant agenda represents a selective exclusion process with the potential to deport the very individuals it ought to protect; people  who simply want to work hard to provide for their families.  He proposes a return to policies of exclusion that unfortunately taint our nation’s history.

Though President Obama’s immigration agenda seems more benevolent than Governor Romney’s, both major party candidates support potentially prejudicial policies and further fortifying the border industrial complex.  True immigration reform cannot exist with vulnerable communities under state surveillance and families facing separation because of an inefficient system.

Third Party Candidates on Civil Liberties

While neither Obama nor Romney can plausibly claim to defend the Constitution, many third-party presidential candidates have expressed profound opposition to national security policies that abuse civil rights and civil liberties. On October 23, four candidates on the ballot in enough states to win the presidency (Green Party candidate Jill Stein, Libertarian Party candidate Gov. Gary Johnson, Constitution Party candidate Virgil Goode, and Justice Party candidate Rocky Anderson) gathered at the Chicago Hilton to debate each other, drawing attention to many policies on which neither Romney nor Obama have promised real leadership.

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