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Aggressive Defense Of The Rule Of Law

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Trump and his henchmen have declared war on the rule of law. Defending it will require aggressive responses. It’s time for heavy use of Rule 11

Here are the relevant provisions of Rule 11:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

snip

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. …

Every pleading from the government should be closely examined. If there are reasonable grounds, the affected parties should immediately demand preservation of records proving compliance with Rule 11(b).

Example: Illinois Sanctuary City laws

DoJ sued Illinois, Cook County, and Chicago over our sanctuary city laws and the policies adopted pursuant to them. (Full disclosure: I am a Chicagoan.) The suit claims that the laws were intended to and do interfere with the ability of the feds to enforce immigration laws. There is a lot of bluster about this, but there isn’t a single specific example of active interference with the feds. There are no specific allegations of damage done by enactment or compliance with the laws and policies.

The complaint lays out the provisions of Chicago’s policy in ¶¶ 41-50. Then:

51. Upon information and belief, Chicago law enforcement officials have been chilled by these prohibitions.

52. Upon information and belief, Chicago law enforcement officials are also confused by the restrictions on them and thus do not provide even the permissible cooperation out of fear of punishment.

The defendants should demand preservation of all records showing that the lawyers who filed this suit had cause to believe that there is evidentiary support for these allegations, or that it is likely that discovery would uncover evidentiary support.

But, even if there is such chilling or confusion, it doesn’t prove the case alleged by the feds. For example, it is likely the case that the feds can seek clarification of the rules from the superior officers of the duty people. There is no allegation that any actual federal agent has been unable to obtain any result permitted by the law. That information is obviously available to the government’s lawyers if it existed.

It appears that Chicago has a powerful defense against these claims under the anti-commandeering doctrine. Here’s a report from the Congressional Research Service. It says that there are six district court opinions all holding in Chicago’s favor.  I haven’t checked to see if there is later precedent (but this indicates there isn’t any ). If that’s right, then a demand should be made for preservation of records regarding how and why this suit was filed. Was there an improper purpose, like a political purpose?

The demand should include any and all records at the Department of Justice in D.C., as well as documents in the possession or under the control of the US Attorney who filed the suit and all of the lawyers who signed the complaint. The demand should also cover all documents justifying a claim that anti-commandeering case law should be ignored or overturned, and documents related to that determination.

This demand will set up a possible counterclaim for abuse of process as well as sanctions under Rule 11.

Example: Birthright Citizenship cases

Trump’s executive order on birthright citizenship is at stake in several pending cases. Judge Sorokin of the District of Massachusetts issued a preliminary injunction against implementation of the EO in a 31 page opinion. Here’s footnote 8:

In fact, the defendants’ discussion of Texas in their papers verges on misleading. The language upon which they most heavily rely appears in a footnote quoted in their opposition memorandum and referenced during the motion hearing. Contrary to the defendants’ characterization, that footnote is not a “holding,” and it does not “foreclose[]” the State plaintiffs’ standing in this case. Id. Rather, it acknowledges that “States sometimes have standing to sue . . . an executive agency or officer,” and though it warns that “standing can become more attenuated” when based on “indirect effects” of federal action, it stops short of saying such effects could never satisfy Article III. Id. This case, in any event, concerns direct effects. Cites omitted.

That doesn’t verge on misleading, it’s misleading, and required the parties and the Courts to expend time and energy unraveling it.

The Judge also calls out the government’s argument that birthright citizenship requires “mutual consent between person and polity”. The child, of course, can’t consent so that falls to the parents. The government says that if the parents are here illegally, the polity, the US, did not consent to citizenship.

Judge Sorokin rejects that argument, saying[ that birthright citizenship is granted to the child. The parents are not involved. Second, all of the parents of enslaved people were here under duress, not by consent. Therefore the argument means the 14th Amendment doesn’t apply to children of slaves. The Court says this argument “verges on frivolous.” I’d say it crosses the frivolous line into stupid.

Both the state and private plaintiffs should move for sanctions under Rule 11. On its own, the Court should require all the lawyers who signed the pleading to attend three hours of ethics training and certify their attendance within 60 days.

One more example.

Out-of-state lawyers are usually required to apply for and receive permission to appear pro hac vice. Most right-wing litigation groups, like Americans Defending Freedom, use out-of-state lawyers. If sanctions are appropriate under Rule 11, there is nothing to prevent the court from imposing as a sanction termination of pro hac admission. Admission pro hac in future cases will set up the possibility of moving to deny or revoke admission on the grounds that the lawyer has been revoked in one court. That will certainly deter garbage filings.

Conclusion

I know courts are reluctant to award sanctions. But this administration is abusing the courts, just as Trump has done all his life. If courts refuse to protect themselves, and refuse to fully protect the people damaged by illegal actions, their already trashed reputation will sink into negative territory.

I also know that lawyers don’t like to ask for sanctions. It’s an unwritten rule tied to notions of collegiality.  I know it’s particularly difficult with government lawyers, because of the risk they’ll appear in another case where your clients might be hurt.

But. Adhering to unwritten rules has led to this: Trump walks free, free to abuse the courts, free to wreak vengeance, free to wreck what it took centuries to build. Fixing this is more important than fake gentility.

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Ending American Erasure

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[NB: Byline check, thanks. /~Rayne]

In my personal library I have a copy of my textbook from American Government, a mandatory class when I was in high school in Michigan from 1974-1978. Most students took this class in their senior year as it was understood they needed familiarity with government before they voted for the first time, usually within a year of becoming seniors.

Covered about week three of the school year, the subjects of immigration and citizenship followed an overview of basic forms of government, the American republican system of democracy, and the Constitution.

It was the first time in my life that coursework directly addressed any topic related to my family’s origins – specifically my father’s Chinese heritage.

This is it, all of it from that class, in three paragraphs, one of which is a footnote.

The text, Page 83:

Oriental and Personal Exclusion Policies. Congress placed the first major restrictions on immigration with the passage of the Chines Exclusion Act in 1882.[3] At the same time it barred the entry of convicts, lunatics, paupers, and others likely to become public charges. Over the next several years a long list of “undesirables” was composed; for example, contract laborers were excluded in 1885, immoral persons and anarchists in 1903, and illiterates in 1917.[4] By 1920 more than thirty groups were listed as ineligible on grounds of personal characteristics.

Footnote:

[3] The law was intended to stem the flow of “coolie labor” to the Pacific Coast; the Chinese could and did work for far less than white laborers, especially in the mines and on the railroads. By 1924 all Orientals had been excluded except for temporary visits. The policy was relaxed somewhat during World War II when provision was made for the admission of limited numbers of Chinese, Filipinos, and natives of India. Since 1952, immigration from each independent country in the Far East has been regulated by the quota system.

Page 89:

Just how broad the 14th Amendment’s statement of jus soli is can be seen from one of the leading cases in the law of citizenship, United States v. Wong Kim Ark (1898). Wong Kim Ark had been born in the United States to parents who were citizens of China. After an extended visit to China, he was refused entry to the United States by immigration officials at San Francisco. They insisted the 14th Amendment should not be applied so literally as to mean that he was a citizen. They held that as an alien he was prohibited from entry by the Chinese Exclusion Act of 1882. The Supreme Court, however, ruled that under the clear words of the 14th Amendment Wong Kim Ark was, indeed, a native-born citizen and that the Chinese Exclusion Act could not be applied to him.

Because he and his immediate family members left no documents like journals, a total of 318 words in Magruder’s American Government, fifth edition circa 1971, are all I have to understand why my great-grandfather ended up staying in Hawaii rather than coming to the U.S. mainland.

There was nothing in the textbook about other laws affecting immigration and citizenship of Chinese coming to the U.S. – nothing about:

Anti-Coolie Act of 1862
Naturalization Act of 1870
Page Act of 1875
In re Ah Yup 1878
Angell Treaty of 1880 and 1892
Geary Act 1902
In re Hong Yen Chang 1890
In re Knight 1909
Immigration Act of 1924, which included the Asian Exclusion Act
Lum v. Rice 1927

Nothing at all about state and local restrictions affecting Chinese immigrants like:

CA Foreign Miner’s Tax Law 1852
CA law barring “Chinese or Mongolian races” 1858
Pigtail Ordinance of San Francisco
Alien land laws across multiple states

And while there was a generalized discussion of the Naturalization Act of 1790 affecting naturalization of “free white person[s] … of good character,” there’s nothing about its affect on Chinese who weren’t considered white.

As recently as 2018 (!) an alien land law remained in effect in the state of Florida which denied Asian farmers the right of land ownership; the law was finally overturned by voters that year though they had rejected its repeal in 2008.

All of this is particularly galling knowing that over the course of the project, the Transcontinental Railroad was built with the labor of as many as 20,000 Chinese immigrants – enough men to populate a small city. In my American History class the achievement in which the west and east railroads were joined was covered with little more than a passing nod.

Just look at this famous photo taken at the celebration of the railroad’s completion:

Chinese immigrants made up as much as 90% of Central Pacific Railroad’s workforce. How many Chinese faces do you see in that photo? The Chinese paid dearly, hundreds having died from the dangerous work and conditions, paid far less than whites on the same job, only to be literally erased.

It’s also particular painful over the last couple of weeks observing the anniversary of the Tulsa race massacre in which Black Wall Street residents were murdered, knowing that there have been multiple massacres in American history of Chinese Americans which have gone unobserved. Granted, there have been more massacres of Black Americans throughout American history like the 1920 Ocoee massacre, but like the thousands of railroad workers the Chinese victims of white rage since the 1800s received a dearth of recognition.

How many U.S. textbooks contained references to these violent assaults on Chinese American communities during which whites drove out residents after attacking and sometimes killing Chinese Americans:

Los Angeles Chinese Massacre 1871
33 California attacks 1880s
Rock Springs Massacre 1885
Attack on Squak Valley 1885
Tacoma riot 1885
Miscellaneous mob violence in Colorado, Nevada, Oregon 1885-1886
Seattle riot 1886
Hells Canyon massacre 1887
Pacific Coast Race Riots 1907
Bellingham riots 1907

Likely none. Perhaps it’s just as well my great-grandfather never made it to the mainland, becoming an American citizen after the U.S. annexed Hawaii in 1898 and granted Hawaii’s citizens U.S. citizenship in the process of establishing the Hawaii as a territory.

It’s funny Donald Trump forgot this bit of history each time he denied Barack Obama’s U.S. citizenship, yet more deliberate erasure. Each time I heard about Trump’s birtherism I wondered if my family’s citizenship was likewise being called into question for being both brown and born in Hawaii.

~ ~ ~

All of this is to say that the rabid state-level attempts to excise teaching the truth of America’s history is another racist effort to police brown people and erase them while continuing to siphon their value (i.e., keep working and contributing to Social Security and taxes, but die early from the same kind of racist neglect extended to Americans of color through the nation’s history.)

Hello again, colonialism, this time occupying not only brown bodies but the public’s mind, whitewashing the past.

I won’t use the phrase which was honestly and earnestly applied to the body of knowledge which teaches all of America’s history, including its pre-nation origins. I respect the persons behind it, but the phrase or label has become toxic, deliberately made so by a counter movement intended to invoke a reflexive negative reaction in a particular audience.

That I will call out for what it is: it’s white supremacy and nationalism with oligarchic sponsors, attempting to sanitize its wretchedness and avoid disclosure of its ongoing toxic effect on this country by insisting the history of Black Americans is removed from classrooms.

It’s naked racism, fighting against a near-term future in which half or more of the U.S. is not white, in which people like me and my family are a part of a new majority.

It’s a raw struggle for continued domination over the narrative through which they cling to power – the falsehood that America is ever-innocent and eternally white, that its emergence over the last 402 years didn’t depend on the physical, economic, and political subjugation of non-white humans and their nations, even now on a rolling basis.

It’s desperate denialism which cannot accept this country began as multiple layers of theft, constructing an illusion of a vast and empty space waiting for European whites to fill it, suppressing the truth that forced labor by brown people helped turn this space once occupied by indigenous brown people into the precursor entity which became the largest economy in the world.

Fuck all of that. Fuck the erasure which denies people of color have been an intrinsic part of this country’s emergence and too often under violence.

~ ~ ~

No country is perfect. Absolutely none; it’s the story of humanity. A good many countries are now or have been occupiers or occupied over the history of mankind. Changes in boundaries and country names through human history often came with atrocities. There are some truly awful histories like that of the former Belgian Congo and the more recent Cambodia under Khmer Rouge, South Africa’s apartheid past, and now the horrors of the Israel-Palestine conflict and China’s carceral Xinjiang province.

In this the U.S. is not alone. It’s simply a younger country than the United Kingdom whose English forebears injected their brand of slavery into this nation’s history by bringing enslaved people of Ndongo ashore into what is now the state of Virginia.

The same nation later “discovered” Hawaii, encouraging the first wave of colonists and their European diseases which over the next hundred-plus years would wipe out roughly 80-85% of Hawaiians.

This is in part why Hawaii became a territory and is now our fiftieth state. There were too few Hawaiians left to mount a vigorous rejection of colonialism, to defend against the seizure of its monarch. Magruder’s American Government gave even less text to the process by which Hawaiians’ sovereign was deposed and its government replaced as American sugar plantation owners desired, in order to reduce taxes on their products.

I can’t recall exactly how much my American History text expended on Hawaii but I doubt it was little more than a page.

In spite of the wrongs done by Britain and then the U.S. to the small sovereign Pacific nation, it is a bulwark of islands guarding the remote mainland, its residents ready to defend their nation as they were in 1941.

The women in this U.S. Navy photo who were training to fight fires in Pearl Harbor naval shipyard aren’t all white. They are like me and my family – mixed race, some Hawaiian, some Chinese. There were more who were Filipino and Japanese. Let’s not forget war hero and former senator Daniel Inouye of Hawaii, also of Japanese heritage who served his country in WWII with distinction along with other tens of thousands of other Japanese Americans even as 120,000 more civilian Japanese Americans were interned.

These Americans didn’t withdraw and withhold their efforts because the nation which claimed their island as territory was at that time majority white. They signed up to serve the military as did many other local residents who likewise weren’t all white.

Like so many other non-white Americans — Black American descendants of slaves and later immigrants from African nations, Vietnamese and Latin American immigrants, Native Americans who were here all along, so many more — they are part of our complete history and are entitled to be remembered and taught in classrooms.

Any and all of these groups are worth more than three paragraphs. All America deserves a richer, more complete picture of itself. Their story is our story; it shouldn’t be muted, silenced, erased.

Accept the truth: this is what America looks like at its best, warts and all.

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Angry Mom: Hiding the Trumpian Genocide’s Records

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When I think can’t get any angrier at this miserable excuse for governance, the Trump administration proves there isn’t a limit to how low they will go.

Sleazy, unlawful executive action without adequate oversight followed by a fog of obfuscation and prevarication is bad enough. The administration will now double down now to hide what it’s done and hope like hell nobody notices.

It doesn’t help that members of Congress, journalists, and the public still haven’t grasped the true nature of the crimes before them.

The Trump administration hasn’t merely ignored or broken existing U.S. laws on handling of asylum seekers. See 8 U.S. Code § 1158:

(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

(B) Time limit
Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.

There’s more but the key part in boldface above. The “zero tolerance” approach to border protection violated this code. Asylum seekers do not have to apply from outside the country; they can apply once inside the country. I’m not a lawyer but I don’t see anything here that indicates asylum seekers are suddenly not eligible to apply for asylum because they crossed the border.

And nothing in the entirety of 8 U.S. Code § 1158 indicates the government may take custody of asylum seekers’ minor children with or without force.

Note also where the asylum seekers may apply — they are NOT limited to designated ports.

DHS Secretary Nielsen’s claim that border crossers had not applied through ports of entry is a lie because it wasn’t required of them.

What happens to the children appears to fit the description of kidnapping (18 U.S. Code § 1201), including section (a)(3), an “act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49” for those children who are flown by aircraft to other destinations in the U.S. out of their parents’ physical custody. It’s no wonder carriers like United Airlines and American Airlines wrote and published letters yesterday telling DHS to stop using their services for moving the children across the country.

The conditions in which many of the children have been placed also appear to be abusive; based on the children seen so far there are reports of not enough food, sedation, restraints, disruption to sleep habits, etc.

But that’s not the end of it. The entire separation of children from their families appears to be genocide under The Convention on the Prevention and Punishment of the Crime of Genocide which the U.S. has signed (1948) and ratified (1988):

Article 2
In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

We have not yet seen evidence of child deaths, but section (b) is likely and (e) of Article 2 is definite — the children are now in custody of the United States government and disbursed to others’ care.

Wednesday’s executive order does nothing to remedy the situation. It doesn’t even stop the separation of children from families due to its murky wording. It exacerbates the problem by foisting some of the responsibility on the military, placing the Defense Department at odds with the Posse Comitatus Act (18 U.S. Code § 1385) as the EO expects the military to perform a domestic function — DHS’ border patrol and immigration services — which is not in response to a natural disaster.

(Oh, this is definitely a disaster, but it is human made.)

Ordering the military to provide assistance also draws defense resources away from where they may be needed, potentially creating security risks.

And yet this is not enough insult. DHS’ Immigration and Customs Enforcement (ICE) asked the National Archives and Records Administration (NARA) last year if it could change its record retention practices, according to The Memory Hole:

Immigration and Customs Enforcement (ICE) has asked for permission to destroy all its documents about the deaths of detained immigrants in custody 20 years after a case is “closed.” (Deaths in ICE custody are almost always investigated by ICE itself. A minority are investigated by the Department of Homeland Security’s Inspector General. [report])

Similarly, ICE wants to destroy all its documents about sexual assaults of detained immigrants in custody. The time frame is 20 years after a case is “closed.” (Again, ICE almost always investigates itself in these cases. The Department of Homeland Security’s Inspector General investigates around 1% of complaints/reports. [article]) NARA argues that this information is “sensitive,” implying that documents containing the identities of victims and the accused should not be kept indefinitely. ICE itself did not offer this (or any) justification.

Thankfully The Memory Hole followed up and asked for status on ICE’s request, to which NARA replied:

No final action has been taken on this schedule. NARA appraisal staff have reviewed the comments received, and held several meetings with ICE records management and program staff regarding the records being scheduled.

Proposed changes to the schedule are being reviewed internally by NARA stakeholders for internal concurrence, after which NARA will inform ICE of the required changes. NARA will then publish a follow-up Federal Register notice responding to the public comments we received. This notice will be open for public comment for 15 days from the date of publication.

But it is not yet impossible that records related to the current human-made disaster affecting thousands of children may be destroyed prematurely, depriving them of justice.

There’s simply no way that ICE should be allowed to change its records retention given the scale of the separated families disaster. And yet I have a horrible, angry feeling the Trump administration will do whatever it can to hide its role in this genocidal activity along the U.S. southwest border.

EDIT — 5:45 P.M. EDT —

I meant to add one more thing to this post. It’s imperative I add this now that the White House has tried to change the subject by using FLOTUS as a human shield with a target literally painted on her back. Do not be derailed by their bullshit. Keep asking:

Where are the girls?

Where are the babies?

Where are ALL the bodies???

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Angry Mom: I See Dead Children

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I see dead children.

There is no way to reconcile what the Trump administration has done — seizing children from their parents, some so young they are still breastfeeding — and the facilities they’ve established to house them without coming to the conclusion there are dead children.

@Asher_Wolf explains the situation in this Twitter thread, beginning with this tweet:

Only people who’ve never had or cared for infants and children would not know this already. If you are a parent you know this; you’ve already had to keep a child cool, calm, hydrated which can be challenging while traveling even under the best conditions.

The circumstances which drove these refugees to the border for asylum placed these children under enormous stress, unrelieved by travel across Central America and Mexico, worsened by heat across the southwest. Add the stress of interception and detention by Border Patrol on top of separation from parents — these children and babies are extremely vulnerable.

Stuff them in cages inside buildings not built to specifications for human occupation, or warehouse them in goddamned tents in unrelenting summer heat, with who knows how many qualified personnel to care for them.

There are reports some children have not received adequate food. Have they received enough water and other fluids? If they can’t feed themselves, have personnel offered the infants and toddlers enough bottles?

Looking at the best infant and child mortality rates in other countries, there would be several deaths. This is the U.S., though, which is the worst among the top 20 wealthiest countries. Looking at the recent history of refugees fleeing Syria and other parts of the middle east for EU states, there are likely more deaths than normal. We must face this truth and begin to account for all the children, alive or dead.

But so far no facilities with infants, toddlers, and preschoolers have been opened to members of Congress or journalists. Only boys have been seen on camera. Where are the girls? Where are the children under five years of age?

Journalists have asked where they are.

REPORTER: A couple of questions. One, why is the government only releasing images of the boys being held? Where are the girls? Where are the young toddlers?

NIELSEN: I don’t know. I’m not familiar with those particular images so I would have —

REPORTER: Do you know where they are? Do you know where the girls are? Do you know where the young toddlers are?

NIELSEN: We have children in D.H.S. care both, but as you know, most of the children after 72 hours are transferred to H.H.S. So I don’t know what pictures you’re referencing but I would have to refer you to H.H.S.

REPORTER: We’ve seen images of boys but we just haven’t seen any of the girls, any of the young toddlers and you’re saying they are being well cared for. So how could you make that claim if you don’t know where they are?

NIELSEN: It is not that I don’t know where they are. I’m saying that the vast majority of children are held by Health and Human Services. We transfer them after 72 hours.

 I don’t know what pictures you’re speaking about. But perhaps they’re —

REPORTER: Pictures have been released to the public, they’ve been aired all over national television.

NIELSEN: O.K., by D.H.S. or H.H.S.?

REPORTER: By [inaudible] .H.S.

NIELSEN: So let’s find out from H.H.S. I don’t think there is anything other than [cross talk] the pictures —

REPORTER: [cross talk] released by your department. I mean, they’ve have been aired all over national television throughout the day, the kids being held in the cages. We’ve only seen the boys.

NIELSEN: I will, I will look into that. I’m not aware that there’s another picture. Yes.

That DHS Secretary Nielsen can’t offer a coherent answer when asked is ridiculous and absolutely unacceptable.

That the entire administration cannot offer a consistent response to any questions is doubly so.

None of this assures me they aren’t hiding something behind all this prevarication. At this point the lack of a unified response to questions is deliberate; they’ve had ample time to get their shit together. The inconsistency itself might be a means to create a smoke screen, forcing journalists, Congress, and the public to track and compare their answers rather than storm the facilities and get the truth.

Right now, on the face of it, this administration is hiding children’s bodies, alive and possibly dead.

I don’t care about Trump’s bullshit kabuki gesture that he’ll sign something about the families separation policy. I don’t care who they point to within the administration to blame for this willful humanitarian disaster, this ethnic cleansing, this genocide waiting full disclosure, though the buck ultimately stops at the desk in the Oval Office. Until they show us otherwise and account for every single tiny human being which they have taken and for whom they are acting in parents’ or guardians’ stead, I see dead children.

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DHS Inspector General Fluffs the Success of Secure Communities

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Last Friday, DHS’ Inspector General released two reports purportedly written in response to an April 28, 2011 request from Zoe Lofgren to determine whether Immigration and Customs Enforcement and DHS more generally were lying about the Secure Communities program, and if so, if doing so was criminal.

As a threshold matter, the completion of two reports, rather than just the one, seems to be a bit of a smokescreen. Lofgren asked if government officials lied. In response, DHS’ IG decided to answer two questions:

  • Whether Secure Communities was effective in identifying criminal aliens and prioritizing cases for action
  • Whether ICE clearly communicated to stakeholders the intent of Secure Communities and the expectation of States’ and local jurisdictions’ participation

In addition to reframing Lofgren’s question to avoid fully considering why people had misinformed Congress and localities (and also, given the scope of their work, to avoid inquiring whether DHS, rather than ICE, had decided to do so), DHS IG first decided to see whether Secure Communities was effective. According to the list of major contributors included with each report, with the sole exception of Communications Analyst Kelly Herberger, two entirely different teams conducted the reviews. The report that at least sort of responded to Lofgren’s questions was issued on March 27, whereas the non-responsive efficacy report was issued April 5, though both were apparently sent out Friday together. ICE responded to both reports on the same day–February 23, 2012–so it seems the different release dates comes because the efficacy report was revised in some way (the date on the conveyance letter for the efficacy report is in a non-standard sans serif font, which sort of makes you wonder…).

In short, the submission of these two reports together stinks, though it presumably had the desired effect, as the NYT reported “mixed reviews” for Secure Communities. HuffPo and LAT were less compliant, focusing instead on the communications report instead.

That said, the purported “good” efficacy report doesn’t actually prove that Secure Communities is working all that well. Here’s the summary of their results:

We performed this audit to determine if Secure Communities was effective in identifying criminal aliens and if Immigration and Customs Enforcement appropriately prioritized cases for removal action.

Secure Communities was effective in identifying criminal aliens, and in most cases, ICE officers took enforcement actions according to agency enforcement policy. Under Secure Communities, the agency expanded its ability to identify criminal aliens in areas not covered by its other programs. In addition, it was able to identify criminal aliens earlier in the justice process, some of whom it would not have identified under other programs. Secure Communities was implemented at little or no additional cost to local law enforcement jurisdictions. Although ICE was able to identify and detain criminal aliens, field offices duplicated the research associated with their detention, and officers did not always sufficiently document their enforcement actions. To improve the transparency and thoroughness of its processes under Secure Communities, the agency needs to eliminate the duplication of research and ensure that officers fully document their actions.

One of the ways they quantify that success is with a claim that they had identified 692,000 “criminal aliens.”

According to ICE, as of September 30, 2011, it had spent most of the $750 million and identified more than 692,000 criminal aliens.

Now, the graphics they provide to back up this claim do show 692,788 “IDENT” matches in the last 3 fiscal years.

Never mind that the program has become less efficient over the years. In FY2009, ICE had 1,087 fingerprint matches for each activated jurisdiction, in FY2011 ICE had 372 matches. To some degree that’s expected–jurisdictions along the southern border joined in first–but  also suggests getting every jurisdiction in the country involved has diminishing returns.

More troubling, the report also reveals that some of the people–it doesn’t say how many–in IDENT are citizens.

Individuals with fingerprints in IDENT include persons with an immigration history, such as aliens who have been removed but have reentered the country, immigration visa applicants, legal permanent residents, naturalized citizens, and some U.S. citizens.
IDENT includes two categories of U.S. citizens:

  • Citizens who have adopted a child from abroad (which involves U.S. Citizenship and Immigration Services), participated in a trusted traveler program, or may have been fingerprinted by immigration officials for smuggling aliens or drugs across U.S. borders;
  • Individuals who were not citizens at the time that their fingerprints were collected, but subsequently became citizens through naturalization, legal permanent residency, or immigration.

So if you’ve adopted a kid from China? You’re in this database too. Read more →

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