 Wednesday, August 27, 2008
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Operation Scheduled Departure's failure proves US can't rely on deportation fix
8:18 PM ET
Michele Waslin [Senior Policy Analyst, Immigration Policy Center, American Immigration Law Foundation]: "This week, Immigration and Customs Enforcement (ICE) announced that it had suspended its latest immigration enforcement experiment. Dubbed as ICE’s "compassionately conceived enforcement initiative," Operation Scheduled Departure [factsheet] was a five-city pilot program that would allow immigrants with outstanding orders of removal to report to ICE to make arrangements to voluntarily leave the U.S. ICE would release them with ankle bracelet monitoring systems and give them up to 90 days to make arrangements for their families before leaving. The program was abandoned after netting a grand total of eight takers. However immigrant advocates have feared that the effort now allows ICE to unleash its Fugitive Operations Teams for door-to-door operations and conduct additional worksite raids, self-righteously claiming that they gave immigration violators a chance to be deported compassionately.
Four days after suspending the program, ICE launched the largest worksite raid to date, arresting over 600 workers in a Mississippi electrical equipment plant, once again tearing apart families, disrupting businesses, causing detriment to entire communities, and costing the federal government millions of dollars.
Anti-immigrant groups, most notably the Center for Immigration Studies (CIS), have been confidently reporting that increased enforcement has been successful and that undocumented immigrants are, in fact, leaving the U.S. The recent CIS report is marred with dubious data and questionable methodology. It is nearly impossible to accurately measure the undocumented population, and if there has been a decline in the numbers, serious academics agree that hit has much more to do with the downturn in the economy rather than any enforcement measure. The restrictionists’ solution is to encourage the government to continue spending billions of taxpayer dollars on worksite raids and border fencing. Yet serious researchers concluded long ago that undocumented immigration is driven by economics and that the tens of billions of taxpayer dollars spent on immigration enforcement over the past two decades have done virtually nothing to dissuade undocumented immigrants from coming here when there are jobs to fill.
The failure of Operation Scheduled Departure serves to highlight the realities of our broken immigration system. The U.S. cannot expect to deport its way out of its current problems, and it cannot expect immigrants to simply choose to leave. There are approximately 12 million undocumented immigrants in the U.S., 4.4 million of whom have been in the country since the year 2000, and an estimated 14.6 million people living in mixed families with U.S. citizen spouses and children. It is highly improbable that people who are firmly integrated into our communities will voluntary choose to uproot themselves and ask to be torn from their families and livelihood. Even with the downturn of the economy, it is still unlikely that undocumented workers will return to countries that provide drastically fewer economic opportunities than the worst-hit communities here at home. The U.S. needs a practical, fair, and reasonable solution to immigration that includes smart enforcement measures. Neither Operation Scheduled Departure nor the recent raid in Mississippi will significantly reduce the undocumented population and nor will it address a fundamental issue of the mismatch of our outdated immigration laws with enduring laws of supply or demand, in this case for immigrant labor. Instead, they will drive undocumented immigrants further underground, denying the government additional tax dollars and allowing unscrupulous employers to continue exploiting a vulnerable labor force."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Sixth Circuit ruling on Confederate flag ban is an attack on students' rights
5:53 PM ET
Chip Sinton [President, National Youth Rights Association]: "The National Youth Rights Association disagrees with the Sixth Circuit's ruling in Barr et al. v. Lafon, et al. NYRA disagrees not because we are Confederate sympathizers nor because we support any hateful message implicit in the symbol in question, but because we believe that the court did not apply the correct scrutiny and the school hadn't met its burden in provingthat this was a necessary curtailing of the constitutional rights of the students affected. As an organization devoted to the protection and expansion of youth and student rights in society, we wish to see the decision viewed from the perspective of the party effected - students - and viewed through the prism of whether this egregious violation of student speech is justified. Tinker v. Des Moines, in no unclear terms, established that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," a precedent this organization wholeheartedly supports.
Our first issue with the decision was the application of intermediate scrutiny. While stare decisis may point to using that scrutiny, a true examination of the youth reveals that they merit the application of strict scrutiny, meeting all four criteria set forth in footnote 4 of United States v. Carolene Products Company. Minors are, without a doubt, "discrete, insular minorities" subjected to purposeful and unequal treatment on a daily basis. They are a disenfranchised demographic that is subject to overbroad discrimination based solely on their age - e.g. youth prohibition, government imposed curfews, etc. When the broad history of age discrimination and their political impotence(lack of voting rights) is viewed, the fact that youth warrant suspect classification becomes even more obvious. To meet the final burden of achieving suspect classification, it is the opinion of NYRA that age is an immutable characteristic that cannot be hastened, slowed, transferred or abandoned. It must be endured. It is because we believe that youth are unrecognized discrete and insular minorities, we disagree with the application of mere intermediate scrutiny in this case.
Our second disagreement with the ruling stems from the fact that the school didn't meet its burden of proof in showing that the right of students to display speech related paraphernalia had to be curtailed. The Sixth Circuit held that it was just for the administration of the school to prohibit the flag because they sensed "tension" and had forecast that it could cause problems in the future. This pre-emptive prohibition is almost exactly like the prohibition overturned in Tinker v. Des Moines. In that case, as noted in Frederick v. Morse, the principal of the school acted out of "fear or apprehension of disturbance" and the "mere desire to avoid...discomfort and unpleasantness." This was held to be insufficient grounds by the courts in the 1960s, and that precedent should have been reaffirmed by Barr et al. v. Lafon, et al, not flouted. In Tinker, it was held that "the wearing of armbands...was entirely divorced from actually or
potentially disruptive conduct," and in this case, the displaying of a flag was divorced entirely from any past racially motivated disruptive conduct.
The flag was not a gang sign nor an intimidation tactic, but rather it was pure, undisruptive speech divorced from the conduct of those wearing them. The flag is no different from the armband in the sense that it is simply a symbol of a belief. The case at hand is not dealing with a swastika nor a gang sign that is a direct call to disruptive action. Unless the school can prove the flag itself is a call to racist, violent action - a signal, not a symbol - than it is just as inert as the Tinker armband. Tinker was asked to remove her armband because other students in the school knew people in the war, or agreed with the war. The principal feared it would exacerbate the war v. draft tensions already in the school. The armband was telling some students that their friends were dying for nothing. It represented an insult to beliefs they held very dearly. But the court made the very important distinction of separating the armband itself from inciteful speech and action by war protesters.
If the students wearing the flag are yelling racial epitaphs in a crowded hallway, then they ought to be punished; but if they are simply wearing a flag patch to represent either their agreement with the confederate cause or their pride in their rebel heritage, they ought to be allowed to wear it regardless of personal disagreement. Much like in Tinker, the ban was put in place in a fervent wish to "avoid the controversy which might result from the expression." Thusly, by affirming the school's decision, the Sixth Circuit court ignored the vital precedent set by Tinker v. Des Moines, in what amounts to little more than a slap in the face to Students' Rights."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Thursday, August 21, 2008
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New FBI guidelines for investigations could lead to abuse
8:46 AM ET
Leslie Harris [President and Chief Executive Officer, Center for Democracy and Technology]: "The Department of Justice has properly agreed to a request from Senators Specter and Leahy that it delay release of new Attorney General Guidelines that govern FBI criminal and intelligence investigations.
The new Guidelines would reportedly weaken the standards in existing Guidelines for use of some intrusive investigative techniques. Currently, the FBI has to have "reasonable suspicion" of criminality to open a full criminal investigation and it has to have some kind of a lead to start a preliminary inquiry - sort of a mini-investigation to run down the lead and decide whether to open a full criminal investigation. According to recent reports, the new Guidelines would permit the FBI to conduct an "assessment" of possible criminal activity or a threat to national security without having any lead at all. While doing that "assessment," FBI agents would be empowered to use investigative techniques that had previously been reserved for full investigations and preliminary inquiries when there was evidence of crime: the agents could follow a person around, question friends and business colleagues about the person (and misrepresent themselves as persons other than FBI agents while conducting those interviews), and recruit secret informants to provide information about the person and his or her activities.
If these reports are true, the new AG Guidelines permit conduct the original AG Guidelines were supposed to prevent: investigation of people without an adequate predicate. They would leave room for all sorts of mischief such as spying on people like civil rights leaders based more on their political beliefs than on evidence of crime. As a result, they could divert scarce law enforcement resources from following up on leads and dedicate them to following up on Quakers, peace activists and other dissenters. This kind of guidance is no guidance at all.
Moreover, adoption now of such permissive Guidelines would hand the next President yet another problem to straighten out, in addition to ending a war, solving the energy crisis, and getting the economy back on track. DOJ properly agreed to hold off on issuing new Guidelines until after FBI Director Muller testifies at an oversight hearing on September 17. September 17 is Constitution Day - the 221st anniversary of the signing of the U.S. Constitution. Now, it's up to Congress to use the hearing to send a message to the Attorney General that any change in the Guidelines governing FBI investigations should respect the Constitution by ensuring that investigative resources Congress has provided to the FBI be focused on criminals and terrorists, not on everyone else."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Circuit Court's ruling allows Oregon domestic partnerships to rest easy for now
8:34 AM ET
Karynn Fish [spokesperson, Basic Rights Oregon]: "Oregon's domestic partnership law [PDF] has been in effect since February 1, when a district court judge lifted a temporary restraining order that had delayed its implementation. JURIST isn't clear on this point.
Last week's ruling by the 9th Circuit means that there will be no referendum on the law (a remedy sought by the plaintiffs), and the 2,200+ committed couples who have registered domestic partnerships with the State of Oregon since February no longer have to worry that the legal status of their relationships might be annulled overnight.
Basic Rights Oregon attorney Margaret Olney notes that "The Ninth Circuit found that the state's process had a 'minimal' burden on plaintiffs' rights." Additionally, Olney finds that the Court, while not directly discussing the issue, "rejects plaintiffs' fundamental premise – that they have a constitutionally protected right to have a genuine signature count. The state's rules barring extrinsic evidence are entirely permissible; any other rule would impose a severe burden on the state."
The harm that would come to these committed couples should the law be suspended or overturned was Basic Rights Oregon's greatest concern, and the reason that we intervened in the case."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Russian attacks in Georgia show need for Convention on Cluster Munitions
9:33 PM ET
Bonnie Docherty [Researcher, Human Rights Watch]: "Russia has not only caused civilian casualties with its use of cluster munitions in Georgia, but it has also blatantly disregarded the international decision to ban the weapons. In the process, Russia has demonstrated that states around the world cannot become complacent about the Convention on Cluster Munitions, which 107 of them adopted in May. They must sign and ratify the treaty as soon as possible so that its obligations enter into force and its stigmatization power grows.
Russian cluster bombs killed eleven civilians and injured dozens more in two air strikes on August 12, 2008, according to Human Rights Watch. Some survivors suffered massive trauma to their abdomens and limbs. Two foreign journalists were among the casualties. Cluster munitions - large weapons containing dozens or hundreds of smaller submunition - endanger civilians because of both their broad area effect and the large number of explosive duds they leave behind. Photographs show local residents handling duds from these strikes so, without risk education, additional casualties are sure to occur. Furthermore, Russia is believed to have hundreds of millions of stockpiled submunitions, which it could use at any time if left unchecked. Georgia also stockpiles the weapons. The casualties reported in Georgia so far and the potential for so many more are reminders of the need for a treaty that bans cluster munitions.
The Convention on Cluster Munitions is the best tool for preventing future harm. It prohibits the use, production, stockpiling, and transfer of the weapons and establishes important remedial obligations such as victim assistance and clearance. Once the treaty enters into force, upon thirty ratifications or accessions, it will prohibit state parties from launching strikes like those launched by Russia. It will also require stockpile destruction within eight years. States committed to ending the humanitarian harm of cluster munitions, like that which occurred in Georgia, should join the Convention on Cluster Munitions as soon as possible.
Although cynics argue that military powers, including Russia, will not ratify or accede to the convention, even those states can be influenced by its provisions. The Mine Ban Treaty shows that the stigma of a weapons treaty can be powerful. China and the United States are not party to the Mine Ban Treaty, but they have not used mines since that treaty took effect. The Convention on Cluster Munitions should have a similar impact if states widely join it. It was already adopted by more than 100 states, including large numbers of users, producers, and stockpilers of cluster munitions. By signing and ratifying the treaty, those states can signal to Russia and others that use of these weapons is considered internationally unacceptable as well as unlawful.
States should condemn Russia's attacks on Georgia and call on both sides of that conflict not to make further use of their stocks of cluster munitions. Otherwise they tacitly support Russia's conduct. States must also, however, take steps of their own to help ensure there are not future casualties. In particular they must publicly pledge to sign the Convention on Cluster Munitions in Oslo in December and to ratify the new instrument as soon as possible after that. Russia's attacks should provide the international community an impetus for action."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Indicting Sudan's President Bashir is the practical and just option
4:11 PM ET
Chad Hazlett and Nina McMurry [Director of Protection; Advocacy Analyst, Genocide Intervention Network]: "The debate continues as to whether Sudan's President Omar al-Bashir should be offered a way out of a possible ICC indictment via Article 16 of the Rome Statute.
There are good reasons to worry that pursuing an indictment is a mistake. The first is that the situation is too fragile - that peacemaking or peacekeeping efforts will be too damaged by such an indictment. The second is that utilizing the potential for a deferral to force Bashir to do something to advance peace and security in Darfur - or at least to try the two officials already indicted in the Darfur case – is a better outcome than indicting him, particularly when it is not clear how or when he will be arrested.
Analyses that favor deferring an indictment on the basis of these concerns have generally dismissed arguments to go ahead with an indictment as impractically minded and willing to sacrifice peace for justice. However there are important practical reasons to allow justice to take its course. Also missing from the debate have been the voices of those with the greatest stake – the people of Darfur.
The first practical argument to pursue the indictment is simply that the cost of an indictment may not be as high as feared. There is barely a peace process in place to be "derailed," and under the status quo no effective protection force is able to deploy. Failing to hold those responsible accountable is not necessarily generating a better outcome than we might expect if we show Bashir and others that they will be held accountable. The doomsday scenarios imagined prior to the indictment attempt have not occurred.
In fact, we have never seen Bashir more responsive to international demands for peace than he has appeared to be since the indictment was requested. This might suggest that a deferral could be leveraged to achieve a better outcome. But it also requires that such a deferral be offered only in return for meeting very strict and verifiable conditions. Many of the deals currently being discussed would fail to utilize the leverage of a deferral to its fullest possible extent.
Even if a contingent deferral creates the leverage needed to achieve a real, effective deal on Darfur, we will still pay a cost for extending impunity for mass atrocities once again. This is not merely a long-term, theoretical concern about deterring future perpetrators – it applies within Sudan itself in the very near future. Bashir paid no price for atrocities committed during the war with South Sudan. If he pays no price for Darfur, there is no reason to expect he or others in the Sudanese government will refrain from using atrocities as a tool of political coercion or counterinsurgency in northern or eastern Sudan. One would not be surprised to see violence break out on a massive scale in Merowe or Kajbar, or a resurgence of attacks in Abyei or other strategic areas.
Finally, notwithstanding the value of these analyses, they neglect the perspective of the surviving victims of these crimes and potential victims of future atrocities. Darfurian civilians, both in Darfur and those now living in eastern Chad, have been overwhelmingly supportive of indicting Bashir. While we know of no systematic survey on the topic as yet (several are in the works), those who have recently discussed the issue with displaced Darfurians report that they strongly favor indicting Bashir and argue that there cannot be peace before Bashir has been removed from power. One recent report quoted a Darfurian refugee in eastern Chad: "to people who say that delaying his arrest would give peace a chance, we say no - it would just give him more chances to kill." Another asserted that, "Omar al Bashir must be taken to the court immediately. It is our demand."
The argument of Darfurians expressed here is also a practical one – they are not demanding justice for justice's sake, but because they believe peace and security in Sudan depend on it. One may fairly worry that if an indictment is made, we will still fail to make an arrest in the foreseeable future, thus making a contingent deferral a more "practical" option. On the other hand, an indictment is costly to Bashir even if an arrest cannot be executed. But more fundamentally, finding a way to make the arrest is our next challenge, not a reason to forego a move towards an international system of justice that actually works."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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ICC's arrest warrant for Bashir triggers state obligations to stop Darfur genocide
9:46 PM ET
Betsy Apple and Nicolas Burniat [Director and Pennoyer Fellow, Crimes Against Humanity Program, Human Rights First]: "Efforts by the Prosecutor of the International Criminal Courts (ICC) to obtain an arrest warrant against the president of Sudan, Omar el-Bashir, for charges of war crimes, crimes against humanity and genocide generated unprecedented uproar. In contrast, the tenth anniversary of the Rome Statute - the treaty that created the ICC - three days later, went unnoticed by the press.
While Sudan watchers debated the impact of the Prosecutor's action on justice versus accountability for Darfur - assuming, by and large, that those two goals were mutually exclusive - they ignored the legal implications of the charges sought by the Prosecutor. That genocide is included among those charges has potentially serious legal consequences for States engaged in relations with Sudan.
While the United States has called the situation in Darfur genocide, others, including the U.N. Security Council, have been silent on the question. In its report [PDF] of January 2005, the panel authorized by the Security Council to investigate the crimes in Darfur, the Commission of Inquiry, declined to call them genocide. The Commission did not, however, exclude the possibility that single individuals, including members of the Sudanese governments, might have harbored genocidal intent.
Today, after three years of additional investigations initiated at the request of the Security Council acting under Chapter VII of the U.N. Charter, the Prosecutor of the ICC has indicated that he had sufficient evidence to believe that genocide indeed is occurring in Darfur. The Prosecutor's conclusions are not legally authoritative, and only the judges of the International Criminal Court will be in a position to decide the issue once and for all. Nonetheless, his public statements that he believes genocide is occurring are meaningful because they put to rest the idea that some country - any country - in the world might possibly claim they are unaware of the risk of genocide in Darfur.
Genocide, while a high profile cause for activists and the subject of much public discussion, has not been addressed substantially by international legal institutions. The International Court of Justice, in February 2007, determined for the first time that the 1948 Genocide Convention creates an obligation for all States to act to prevent genocide no matter where the genocide is occurring. In its judgment in the case Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (hereinafter the Genocide case), the Court specified that this obligation arises as soon as a State learns or should normally have learned of the existence of a serious risk of genocide.
By publicly seeking genocide charges against Bashir, the ICC Prosecutor clearly has put governments on notice of the existence of a serious risk that genocide is occurring in Darfur. Whatever their previous stance or alleged state of awareness about the situation in Darfur, States can no longer claim that they are unaware that the crimes in Darfur might amount to genocide. This knowledge is sufficient to trigger for every State the legal obligation to act to prevent that genocide. The obligation persists until the risk of genocide in Darfur is averted or stopped.
In order to have content, obligations require actions. What, then, must a State do to comply with its legal obligation to act to prevent genocide in Darfur?
According to the International Court of Justice (ICJ), States must employ all means reasonably available to them so as to prevent the genocide to the extent possible. A State would violate the Genocide Convention if it had "manifestly failed to take all measures which were within its power, and which might have contributed to preventing the genocide." It explained that any determination as to whether a State had taken all measures in its power had to be made on a case-by-case basis, taking into account, among other things, "the capacity to influence effectively the actions of persons likely to commit, or already committing genocide, the geographical distance from the scene of the events, and the strength of the political links, as well as links of all other kinds between the authorities of that State and the main actors in the events."
In the case of Darfur, States engaged in any kind of relationship with the government in Khartoum should examine the "means reasonably available to them" to ascertain if they are complying with their duty to prevent genocide. Recently, several published reports have indicated that a number of States, most notably China and Russia, are providing significant arms and other military support to Sudan. Those States should immediately stop transferring arms to the government of Sudan. States selling arms to a government suspected of genocide are failing to take all measures in their power to prevent that genocide from happening. To the contrary, their actions fuel the capacity of such a State to commit genocide.
What else must States do? It is clear that the international community has failed so far to put sufficient and credible pressure on the government of Sudan. This lack of resolve has enabled the authorities in Khartoum to stall the deployment of UNAMID, to protect war criminals, and to continue its campaign of violence against not only civilians but also aid workers and peacekeepers. Several countries in the U.N. Security Council have been particularly active in their efforts to protect the government of Sudan from censure or negative consequences for its bad acts. Are these countries undertaking all possible efforts to prevent or forestall the possible genocide in Darfur?
As a legal matter, the ICJ case clearly articulates a duty to prevent genocide, and indicates that this duty is one of conduct rather than of result. This means that the effort is required regardless of the outcome of such effort. Legally, one can imagine a debate about the scope of such a duty. Politically, it is hard to argue that States are failing the people of Darfur, and that every effort to protect civilians has not been exhausted. Should not States provide the logistical support to the peacekeeping force that is so badly needed to protect civilians and help end the violence in Darfur? And should not States cease to provide arms to a potential genocidaire? We believe the Genocide Convention would say yes to both questions. But must we wait for a court of law to decide the fate of the Darfuri people?"
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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Thursday, August 14, 2008
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UN declaration helps secure rights of indigenous peoples around the world
9:46 PM ET
Andy Whitmore [Communications and Research Worker, Philippine Indigenous Peoples Links]: "On the fourteenth International Day of the World's Indigenous People, it is right that we celebrate last September's adoption of the UN Declaration on the Rights of Indigenous People as an historic event for the worldwide movement of indigenous peoples that has arisen to seek redress for the serious denial of rights, discrimination and abuse that everywhere confronts them.
The Declaration is an important step on a long journey by Indigenous Peoples to gain recognition and support from the international community to overcome the many remaining serious problems they face. But the existence of improved standards does not alone solve the fundamental problems. In the Philippines, where we mainly work, there are many provisions to protect Indigenous Peoples' rights contained, to a lesser or greater degree, in the 1987 Constitution and the 1997 Indigenous Peoples Rights Act. Yet despite this legal framework many abuses continue, with widespread abuse and erosion of the provisions of the Philippine Indigenous Peoples Rights Act.
The nominal recognition of rights in the UN does not signal an end to the problems. It does however offer new tools and opportunities. Companies and corrupt officials will still look for the wealth contained within indigenous ancestral lands. Yet what will determine the ability of Indigenous Peoples to exercise their rights to protect their lands is the extent to which they can assert their recognized rights."
Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.
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