As Congress debates how to respond to children's migration from Central America, we must not forget that Customs and Border Protection is in dire need of improved oversight and accountability. Here are three examples of how the system is failing and what the ACLU is doing to help:
- Sergio, 15, was fatally shot in the face by a Border Patrol agent because he was allegedly throwing rocks at the agent across the border. His family sued the U.S. government, denying that Sergio threw anything, but the district court held that because Sergio was a noncitizen on the Mexican side of the border when he was killed he had no constitutional rights.
Sergio's family appealed the district court decision, and the ACLU and its border affiliates filed an amicus brief. The Fifth Circuit Court of Appeals ruled that the Constitution can apply outside the territorial limits of the United States in the circumstances that led to Sergio's death, squarely rejecting the government's argument that constitutional rights end at the border.
To see ACLU's recommendations on CBP use of force, click here.
- Jane*, 54, was stopped while returning to the United States from Mexico. She was frisked and strip searched by CBP. When they were unable to find contraband, CBP handcuffed and transported Jane to the University Medical Center of El Paso. For six hours, Jane was subjected to an observed bowel movement, X-ray, speculum exam, rectal exam, vaginal exam, and a CT scan. She was released without charge, but was acutely emotionally and mentally traumatized from the painful cavity searches she was forced to endure.
Jane, represented by the ACLU of Texas and the ACLU of New Mexico, sued the El Paso hospital as well as CBP personnel. The hospital settled the lawsuit for $1.1 million and agreed to change its policies to prevent any future abusive searches. The claims against CBP personnel, however, are still pending in federal court.
- Felipe*, 10, fled from El Salvador to the United States after watching the murder of his father, who was targeted because he ran a rehabilitation center for individuals attempting to leave gangs. Felipe is set to stand alone and represent himself before an immigration judge at a hearing scheduled for this September. While Felipe has a case for asylum, he will be forced to face a trained prosecutor alone and is statistically far more likely to lose his case without an attorney to present his side of the case.
On behalf of Felipe and children like him, the ACLU and allies recently filed a nationwide class-action lawsuit challenging the federal government's failure to provide them with legal representation in deportation hearings.
To sign a petition calling for President Obama to provide legal counsel to all children facing deportation, click here.
While these results are all steps in the right direction, there is more work to be done in each of these cases. And, ultimately, litigation is only one facet of oversight and accountability. New leadership at DHS and CBP must follow through on reforms to address each of these failures.
* Pseudonym to protect identity and privacy of the individual
By Alex Sinha, Aryeh Neier Fellow, Human Rights Watch & ACLU
If I can't report a story without keeping a source safe, I'm not going to report a story.
– Jonathan S. Landay, Senior national security and intelligence correspondent, McClatchy Newspapers
It turns out that surveillance affects more than just privacy.
We know the government collects massive amounts of data about us, including bulk domestic calling records in the millions, many of our international emails and calls, and much more. Those programs have obvious privacy implications, but more than a year since the first Edward Snowden disclosure, we need to focus on the other democratic pillars that government spying has imperiled.
A new report, produced jointly by the ACLU and Human Rights Watch, shows that large-scale surveillance by the U.S. government is undermining the work of journalists and lawyers. Many leading journalists covering national security, law enforcement, and intelligence have found sources and information increasingly hard to come by. Surveillance is compounding a host of other challenges faced by journalists lately, like a significant spike in the prosecution of their sources and new government initiatives to minimize even minor leaks.
Many of the journalists I interviewed for the report described struggling to find ways to protect their data and communications, adopting new and sometimes elaborate techniques to do so. Encryption? Check. Air-gapped computers? Check. And many of these journalists are now using "burner phones," going back to payphones, or even trying to contrive ways to bump into sources in person. These techniques can take extra time. Combined with sources' growing reluctance to speak – even about unclassified matters that the government has no business protecting in the first place – that means reporters are producing stories at a slower rate.
The result? We have less information about our own government.
Lawyers need to modify their practices, as well. The Snowden revelations have made it clear that attorneys need to go to new lengths to maintain their clients' confidences. Increasing challenges in communicating securely make it harder for them to build trust with their clients and to develop legal strategies with clients and co-counsel. A number of lawyers have begun adopting techniques similar to those used by journalists.
Both journalists and lawyers also emphasized that taking such elaborate steps to do their jobs makes them feel like they're doing something wrong. As one lawyer put it, "I'll be damned if I'm going to start acting like a drug dealer in order to protect my client's confidentiality."
That feeling is understandable, and it is a profound problem that so many others shared it, given that journalists and lawyers play such integral roles in our democracy. We depend on the press to tell us what our government is doing, and without that information, it is much harder to hold our government to account when it missteps or overreaches. In the age of drones, mass surveillance, and indefinite detention, we need coverage of national security and intelligence as badly as ever.
The same goes for lawyers – especially defense lawyers. Confidentiality and attorney-client trust are crucial for effective representation, cornerstones of fairness in the justice system.
We know that mass surveillance can obliterate privacy. But more than that is at stake. Without privacy, essential democratic processes are in danger.
By Marcellene Hearn, Senior Staff Attorney, ACLU National Security Project
A court handed down a huge victory yesterday, for two men who were rendered to a secret prison in Poland and tortured by the CIA. But it wasn't in an American court. And it wasn't the United States that was held to account.
In two landmark decisions, the European Court of Human Rights found "beyond reasonable doubt" what the world has long known – that the CIA ran a black site at Stare Kiejkuty, Poland, and that it tortured al-Rahim Hussayn al-Nashiri and Husayn Abu Zubaydah there. It also found that Poland was complicit in the CIA's "rendition, secret detention, and interrogation operations" in that country.
The court ruled that Poland breached the European rights treaty in multiple ways. Most notably, Poland violated the prohibition on torture by facilitating the CIA's torture, allowing the men to be taken out of Poland to another secret detention facility where they were likely to be tortured again, and failing to conduct a prompt, thorough, and effective investigation. In addition, Poland infringed on the men's fair trial rights by permitting them to be sent to Guantánamo in June 2003 where they would face trial by military commission. Such a trial would be "a flagrant denial of justice," the court wrote.
To remedy these violations, the court ordered Poland to pay 100,000 euros (about $130,000) to the two men who are back at the Guantánamo prison after having been transferred through multiple CIA black sites. Further, the court ruled, because Mr. al-Nashiri currently faces the death penalty in the military commissions, Poland must seek "assurances" from the United States that it will not execute him.
That this ruling came out of the European court only underscores the accountability gap in the United States where, to date, every case brought in our courts by victims of the torture program has been dismissed – on state secrecy or other grounds – without even considering the merits of the victims' claims.
While the European court stressed the importance of transparent investigations when serious human rights violations are at stake, the United States continues to insist that even the locations of the CIA's secret prisons are classified. The Obama White House is currently reviewing the Senate Intelligence Committee's several hundred page summary of its 6,000-page investigation into the CIA torture program for release later this year; there are reports that the names of the countries that participated in the torture program may be blacked out. Especially now that the European court has confirmed so many details about Poland's role in the CIA's torture program, it would be absurd if those facts are redacted from the Senate torture report.
The torture report is widely predicted to address the CIA's torture of al-Nashiri and Abu Zubaydah. A small – but telling – test for transparency will be whether references to these two men and to Poland appear in the public version. The American public shouldn't have to get the truth from a European court.
The road to Artesia from Las Cruces, New Mexico, is a scenic three-hour drive past pristine white sand dunes, through chilly, foggy mountain ranges, and across flat, open pampas spotted with yucca plants. Artesia, itself, is a dusty town of around 11,000 people, mostly farmers, ranchers, and workers at local oil wells and refineries.
I traveled that road myself this week, on my way to the new Family Residential Center in Artesia run by U.S. Immigration and Customs Enforcement (ICE). This facility currently houses around 620 women and children from Honduras, El Salvador, and Guatemala. It’s the first step in the federal government’s ill-advised plans to dramatically expand the warehousing of vulnerable children and their parents in facilities throughout the country, at a cost to taxpayers of hundreds of millions of dollars.
I was in Artesia with a small group, representing more than 20 civil and human rights organizations, to tour the facility. For the detained families, whom U.S. Customs and Border Protection had flown from the Lower Rio Grande Valley to El Paso before ICE put them on buses to Artesia, it must feel like they landed on the moon.
The families are held in the dormitory section of a federal law enforcement training center. Today these dorms contain bunk beds and cribs. Additional mobile units have been converted to accommodate the growing number of families.
We spoke to about 30 women, all mothers, who told us they feared returning to their home countries because they or their children had received death threats. Many said they had witnessed or experienced the assassination of a spouse, sibling, or neighbor. In their faces, I saw fear, concern, and desperation. We learned that the average age of the children there was six and a half years old.
In theory, our laws are clear. We do not deport families back to countries where they would face persecution or torture. The right to a fair process is a fundamental American value, enshrined in our Constitution. Yet the majority of families detained at Artesia never get a hearing, and they have little to no access to legal assistance. As a consequence, our nation will deport many women and children who may have legitimate claims to asylum or other legal status back to countries where they face violence, exploitation, and even death.
One mother told us that she had witnessed the death of her sister’s husband but feared going to the police in her country because she knew they would not help. She described how she barely escaped with her two small daughters, how she had spent all of her savings to get to safety, how many along the way wanted to exploit her and her children, and how she then finally arrived in the United States and turned herself in to U.S. Border Patrol agents.
"I thought, me and my children, we are finally safe," she told us. "Because here in the U.S., I know they follow the laws."
By Zak Newman, ACLU Washington Legislative Office
This piece originally appeared at Defense One.
Muhammad Murdi Issa Al-Zahrani sat at the center of the conference room table, his foot shackled to the floor.
He had chosen to attend his Periodic Review Board (PRB) hearing at the last minute, deciding to endure what other detainees had called a "humiliating and degrading" groin search to participate in the review of his continued detention without charge or trial at Guantánamo Bay prison since 2002. Writing furiously throughout the unclassified portion of his hearing, he appeared determined to make his case for release.
Tragically for Al-Zahrani, there is little cause for such hope in the PRB system.
The PRBs were designed to ease the sting of the administration's policy of indefinite detention without charge or trial at the prison camp. Begun a year ago today after more than two years of delay, they were to be an opportunity for indefinitely imprisoned detainees to challenge their detention through an administrative hearing. But in their first year, the hearings have largely only aggravated the practice of indefinite detention.
The glacial pace of the PRBs means that even the attempt at some due process for these men will come at an unacceptable delay – and very likely after President Barack Obama leaves office. When detainees do finally get a hearing, the PRBs provide little by way of real due process of law, and even detainees cleared by the PRB may stay stuck at the prison camp. If the boards are to ever meaningfully review detainees' detention, they must address these issues of delay, transparency, and legitimacy.
To finish reading "Guantanamo's New Purgatory," click here.
By Brian Stull, ACLU Capital Punishment Project
We still don't know where the drugs came from.
We know they used midazolam and hydromorphone. We know the combination was experimental. And now we know that instead of working, the drugs took nearly two hours to kill Joseph Wood, as he snorted and gasped for air 660 times.
Within a couple hours of Mr. Wood's death, the state of Arizona started damage control. Last night, Governor Jan Brewer called for an investigation into why the execution had taken so long, but she also released a statement saying: "by eyewitness and medical accounts he did not suffer."
That's not what the reporters who were in the room have written. "It was very disturbing to watch... liked a fish on shore gulping for air," Troy Hayden told The Arizona Republic.
One hour and 57 minutes is horrifically long, even when compared to the recent botched execution of Clayton Lockett, who writhed in pain for 45 minutes while the state of Oklahoma struggled to kill him in May.
It's time to ask the question: How is it possible that, in 2014, state after state is utterly failing at lethal injection? How can it be, given modern medicine, that it could take hours instead of minutes for states to kill someone?
The answer is that the death penalty simply has no place in this country. As method after method of state-sponsored killing has been deemed barbaric and archaic, states are left scrambling to invent new ways to execute.
Lethal injection started as a seemingly more humane alternative to the gas chamber, the electric chair, and firing squads. But as companies both in the U.S. and in Europe have refused to let the drugs they produce be used in executions, lethal injection has become what is essentially medical experimentation, with novel drugs and doses leading to botched execution after botched execution.
Lethal injection is not modern medicine. Executioners do not have proper training, leading to some prisoners being conscious but paralyzed as they slowly asphyxiate. States are fumbling to find drugs, concocting different combinations every time. In the case of Mr. Wood's execution, the state used a two-drug combination that had been used only once before, when the state of Ohio took 25 minutes to kill Dennis McGuire.
And these killing experiments are being carried out in secrecy. The hours before Mr. Woods was strapped to the gurney were a frenzied attempt to figure out where the drugs came from before they could be shot into his vein. We still don't know.
The greater problem underlying the horrific executions we have recently seen is not lethal injection or a matter of simply getting the drugs right. The execution of the innocent, the shameful role of race, mentally ill defendants, poor defense lawyering, and prosecutors who hide the truth – these are the problems that make the death penalty completely inappropriate in the modern world. Yet we continue to slowly pick off killing methods that are simply too barbaric to condone, but the truth is that there is no way for states – for our government – to kill someone that is in line with the type of country we want to be.
Today, my heart is with Jeanne Brown and all of those who loved Debra Dietz. My thoughts are with the executioners who will have to live with the horrific botch they carried out yesterday. This entire story is a tragic one, and it should push us to admit that the path to justice simply cannot include more gruesome violence.
It's time for a nationwide moratorium on the death penalty.
Many Deported as "Recent Border Crossers" Are Neither Recent Nor Anywhere Near the Border, Nor Crossing It
By Chris Rickerd, ACLU Washington Legislative Office
This piece originally ran on MSNBC.com.
In an attempt to convince the public that its enforcement of immigration laws is fair and compassionate, the Department of Homeland Security emphasizes its supposedly careful targeting of "recent border crossers." This spin on "border removals" conjures up individuals apprehended in the act of crossing an actual border or shortly thereafter.
But those deported as recent border crossers, by DHS's own admission, don't have to be either recent crossers or near a border. So what gives?
Last June, the head of ICE's removal operations explained to Congress that so-called border removals occur whenever ICE deports an individual within three years of entry – regardless of whether the initial entry was authorized – or whenever an individual is apprehended by Customs and Border Protection. That means anyone apprehended by CBP counts as a border removal – regardless of how long they've lived in the United States. Because CBP refuses to screen the individuals it apprehends for their ties to the U.S., and DHS overuses procedures that bypass deportation hearings before a judge, many "border removals" are never fully assessed to determine whether they have a legal right to stay.
Don't be fooled by the word "border" in CBP's name. The agency operates in a vast zone stretching 100 miles from any land or sea border. This includes entire states like Florida and Maine as well as almost all of the country's top metropolitan areas. CBP's unnecessary, and massive, militarization of the border region has produced rampant abuses ranging from racial profiling to excessive force. CBP uses interior checkpoints and roving patrols located far from the border to apprehend individuals who are not recent border crossers by any stretch of the imagination. Data from 2011, the most recent publicly available, show that a quarter of CBP apprehensions took place more than 20 miles from a border.
That matters to families like Alfredo's. In February, Alfredo was referred to the Border Patrol after Ohio police stopped a car he was riding in. There's one obvious problem with this: Ohio's only border is in the middle of Lake Erie. Alfredo's case, recently brought to light by America's Voice, would count as a border removal. He's lived in the U.S. for 24 years, since he was 16, but he was deported 14 years ago. His U.S. citizen spouse at the time – nine months pregnant with their first child – urged him to return. Since then, Alfredo has taken care of his family, with no arrests or other problems.
Is this the profile of a recent border crosser?
DHS claims that its border removals do not target recent entrants with deep family ties to the United States. A recently published report from the ACLU of New Mexico, "Torn Apart: How U.S. Immigration Policy Fragments New Mexican Families," shows how untrue that is.
Here's one example: After 8 years living in New Mexico, 16-year-old Sergio was picked up by Border Patrol on his way to harvest lettuce, 70 miles from the border. That morning his widowed mom, Esperanza, sent him out the door with a lunch. The next time she spoke with Sergio, he was more than a thousand miles away in Central Mexico, a country he knows little about. Sergio's deportation hit his two younger brothers hard, especially six-year-old Israel. When he sees one of Sergio's belongings around the house, he picks it up and asks Esperanza when she'll bring Sergio back.
Stories like Sergio's show that deporting people without considering their individual circumstances is callous and inhumane. It is damagingly inaccurate for DHS to assert that everyone caught within 100 miles of a border lacks ties to the United States. Indeed, the Migration Policy Institute recently reported that "a high proportion of … border crossers are likely to be long-time non-citizens who are returning to the United States … because they have homes and families here."
DHS must stop misleading the press and public about recent border crossers and border removals. A person's unique situation and ties to the United States should matter more than which agency apprehended her and where it occurred. The government should always take into consideration how a person's deportation will affect their family members and the communities they contribute to daily. It benefits no one to deport productive members of the community.
DHS is currently conducting a review of its enforcement practices. The stated goal was to make the process more humane. President Obama has unfortunately delayed any action on this review until the end of the summer. This delay gives him more time to consider the cruelty and absurdity of our current approach to the tens of thousands of "recent border crossers" we deport every year despite longstanding ties to the United States.
DHS's obfuscation about recent border crossers is intended to conceal its harsh and indiscriminate deportation record, but Alfredo's and Sergio's ordeals tell the true story: many recent border crossers are nothing of the sort.
By Carrie Ellen Sager, PFRB Legal Fellow, ACLU
They say you can't fight city hall, but sometimes there's no other choice.
The residents of Warren, Michigan, visit their city hall on a regular basis to pay taxes, to vote, and to visit the library branch and the farmers market that are located there. Since 2009, they have also been able to visit a "Prayer Station" in the building's large atrium.
Set up by a local church under a city policy that lets civic organizations and residents reserve space, the table is staffed by volunteers, who pass out religious literature and invite passersby to pray with them or come to their church.
Douglas Marshall, an atheist, often passed the Prayer Station and decided to set up a similar "Reason Station" to offer information on atheism and free thought. But when he submitted an application, the mayor refused to accept it. He told Marshall that he would allow any religious group to use the atrium, but not Marshall, who he claimed was "anti-religion" and trying "to deprive all organized religions of their constitutional freedoms."
But when a city opens up its facilities to the community, it can't pick and choose who gets to use them, and it certainly can't favor religious groups over nonreligious ones. That's why the ACLU and the ACLU of Michigan – along with Americans United for Separation of Church and State and the Freedom From Religion Foundation – filed a lawsuit today on behalf of Marshall.
Let's be clear: No one's trying to get rid of the Prayer Station. But if the city gives a forum to one speaker, it can't silence another speaker just because it dislikes the message.
So to recap…
When Douglas Marshall walked into city hall and saw there was a Prayer Station there, he was like
But when he asked the mayor if he could set up a Reason Station, the mayor was like
So now the ACLU is like
But to be clear, our lawsuit aims to protect the First Amendment rights of all Warren residents, regardless of their religious or philosophical beliefs or non-beliefs.
Pretty sure there's room for both a prayer station and a reason station, guys.
Imagine entering family court and knowing that what's at stake is the person you hold most dear – your child. Now imagine having a judge tell you that he's removing your child from your custody, from your home. When you ask him why, the judge's replies, "I honestly can't tell you." The judge then signs an order giving custody of your son to Social Services.
You might think that such a court proceeding could never happen in the United States – but you'd be wrong.
It happened not long ago to the father of an American Indian child in South Dakota. What's more, many similar hearings in which Indian children are removed from their homes for no reasons given to the parents occur at least 100 times a year in Rapid City, South Dakota, alone.
Congress passed the Indian Child Welfare Act (ICWA) in 1978 in an effort to stop American Indian families from having their children removed by state and local officials for invalid and sometimes even racist reasons. Yet 36 years later, Indian children in South Dakota are 11 times more likely to be removed from their families and placed in foster care than non-Indian children.
The ACLU filed a lawsuit in March 2013 in federal court on behalf of the Oglala Sioux and the Rosebud Sioux tribes in South Dakota and on behalf of a class of all Indian families living in Rapid City, South Dakota, the state's second largest city. We sued state and local officials who, we contend, repeatedly violate ICWA.
We recently examined 120 transcripts of initial custody hearings – known as "48-hour" hearings – held during the past four years involving Indian children. Nearly 100 percent of the time, Indian children were removed from their homes in those hearings. The average length of time those hearings took was less than 4 minutes. Within that time, of the six different judges that oversaw the hearings, not one judge ever told one Indian parent that they have a right to contest the state's petition for temporary custody of their children in the hearing on the petition.
During those hearings, the parents were not told the reasons for the removal, not provided with an attorney, not allowed to submit any evidence, and not allowed to cross-examine the Social Services worker who had submitted an affidavit against them. In most cases, the parents were not even allowed to see the affidavit.
And what were the parents in these hearings "guilty" of? Here is a snapshot of some of the cases discussed in the transcripts:
- A mother abused by her boyfriend lost custody of her child even though the abuser was not being allowed to return to the home. Before the judge's decision, the mother pleaded with the judge not to punish her for what the abuser had done.
- A father going through divorce was denied custody of his children solely because his estranged wife got into trouble with the police, even though no evidence was introduced suggesting that the children would be at risk staying with the father.
- A mother lost custody of her daughter merely because the daughter's babysitter had become intoxicated, without any showing that the mother knew that such a thing might occur.
- A father who tried to discuss the merits of his case was interrupted by the judge and told that the details of child custody removals were not to be discussed in 48-hour hearings, and then the judge signed an order removing the child from the father's custody.
Our lawsuit seeks to stop state judges and social workers from continuing to remove Indian children from their homes unless the parents are provided with basic guarantees of due process of law and rights afforded 36 years ago in ICWA These include the right to a fair and prompt hearing, the right to notice of the charges against them, the right to an attorney, the right to present evidence, and the right to cross-examine the state's witnesses.
Based on the 120 transcripts, we recently filed motions asking the federal court to rule that South Dakota officials engage in a pattern and practice of denying Indian families and Indian tribes their basic rights to fairness under ICWA and the Constitution. And next month, the UN Committee on the Elimination of Racial Discrimination will consider a report submitted by the ACLU on U.S. failure to meet its international treaty obligations to end pervasive and institutionalized discrimination, including the lack of due process in American Indian child custody proceedings in South Dakota.
Ultimately, we hope to restore justice to a group of people who our legal system has repeatedly failed.
By Ian S. Thompson, ACLU Washington Legislative Office
“Many of you have worked for a long time to see this day coming. You organized, you spoke up, you signed petitions, you sent letters -- I know because I got a lot of them.”
If you’ve ever questioned whether it matters to add your voice to debates about the important civil liberties issues of the day, President Obama’s words from earlier today provide a clear answer. Laura Murphy, director of the ACLU’s Washington Legislative Office, and I were two of the guests on hand this morning to witness President Obama’s signing of an historic executive order to protect LGBT people from workplace discrimination.
The ACLU and our hundreds of thousands of members and activists across the country helped to make this day possible. Together with our partners at All Out, 81,693 people signed a petition urging to President Obama to sign this executive order without an exemption for religiously affiliated contractors.
Had such an exemption been included in the executive order, it would have enabled taxpayer-funded employment discrimination against LGBT people. Thankfully, President Obama – at your urging – stood strong on the side of basic fairness and equal treatment for LGBT people by rejecting calls for such an exemption.
It goes without saying that we still have much work to do to achieve the goal of full civil rights protections for LGBT people. It’s important, however, to take time to celebrate the significant landmarks along the way. Today was such a day. Thank you for helping to make it possible.
The signed executive order.