Challenge to NSA’s Mass Surveillance Inches Way Up Court System

September 1st, 2014 No Comments   Posted in ACLU Nationwide
By Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project

This morning, we're heading back to court to challenge the NSA's phone-records program, this time in the Second Circuit Court of Appeals in New York.

Several district courts have already ruled on the program, with one calling it "almost Orwellian." And, of course, the secretive Foreign Intelligence Surveillance Court has approved it many times. But one consequence of the excessive secrecy surrounding the program is that it has never been reviewed by the Supreme Court or even by a federal appeals court. Until now.

Our lawsuit and the several similar lawsuits that have been filed around the country are significant for many reasons. The phone-records program – under which the NSA collects a record of the calls made by millions of Americans every single day – is perhaps the most sweeping surveillance operation ever directed against the American public by our government. It raises profound questions about the role of government in a democracy and about the future of privacy in the digital era. And it threatens our constitutional rights in ways unimaginable by the founders of our country.

As we argued in a brief to the court:

Each time a resident of the United States makes a phone call, the NSA records whom she calls, when the call was placed, and how long the conversation lasted. The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she did not; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the suicide hotline, and the child-services agency.

The legal challenges are also significant for the simple fact that they have forced the government to defend its program in public. For over a decade, the government has thwarted all attempts at public judicial review of the legality of the surveillance programs it inaugurated in the aftermath of 9/11. It erected procedural barriers and invoked the state-secrets doctrine to have those challenges thrown out of court.

But today, we're one step closer to having a definitive ruling on the legality of at least one of those programs. We are optimistic that the court will agree with us that the bulk collection of sensitive information on millions of innocent Americans is unlawful.

Stay tuned for our update after the hearing or watch it on C-SPAN here

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After Ferguson, U.N. Calls on U.S. to Get Its Act Together on Race Discrimination

August 29th, 2014 No Comments   Posted in ACLU Nationwide
By Jamil Dakwar, Director, ACLU Human Rights Program

In the last several weeks, the state of Missouri has captured news headlines around the globe: first, with reports coming out of Ferguson of yet another unarmed African-American young man shot and killed by police, and then with accounts of a violent and militarized crackdown on protesters carried out by law enforcement in the aftermath.

Were they depicting a foreign crisis, these images would have been condemned by the U.S. State Department and policymakers as evidence of human rights violations. But when they come out of our own backyard, we don’t call them human rights abuses. They are, at best, labeled police misconduct and civil rights concerns.

After all, America is a champion of human rights. So why is the world so outraged?

Because much of the world is tired of the U.S. double standard when it comes to human rights. It should come as no surprise that people associated images from Ferguson – full of teargas, rubber bullets, and militarized police deployed to suppress protests – with countries with poor human rights records, like Egypt, Bahrain, Israel, and Turkey. Global opinion is informed and influenced by the internet and social media, with domestic human rights abuses quickly and easily disseminated. Even when the violator is a superpower, we are reminded, in the words of Dr. Martin Luther King, Jr., that “injustice anywhere is a threat to justice everywhere.” 

These sentiments were on full display earlier this month when the United States appeared before a U.N. human rights body to defend its record on racial discrimination. Today, this body — the U.N. Committee on the Elimination of Racial Discrimination — issued its verdict: a 14-page-long scathing report on the U.S. failure to fully comply with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in numerous areas affecting racial and ethnic minorities. While it commended the Obama administration for steps it has taken to combat racial discrimination, it highlighted the gaps between the administration’s stated commitments and the glaring reality of laws and practices that continue to discriminate against and disproportionately impact people of color and indigenous communities.     

The committee’s findings are based on hundreds of pages of reports submitted by the U.S. government as well as advocacy groups, which are then produced after a public hearing in Geneva attended by a high-level U.S. delegation. The U.S. review coincided with the protests in Ferguson after the killing of unarmed black teenager Michael Brown, a development that did not go overlooked during the hearing. Members of the committee were also moved by testimonies from the parents of Trayvon Martin and Jordan Davis, who attended the review to share their loss and lessons to be learned from their own tragedies.    

The recommendations released today address structural and pervasive forms of discrimination in the United States, which often go overlooked in public debates sparked by the loss of human life due to the unjustified use of force. They offer a blueprint to end racial discrimination and to promote equal opportunity. They include calls to:

  • End racial profiling by adopting the End Racial Profiling Act and swiftly revising the 2003 Justice Department Guidance on the Use of Race by Federal Law Enforcement Agencies.
  • Stop the militarized approach to policing, which has had a disproportionate impact on communities of color and to immigration law enforcement, which has led to killings at the border, mandatory detention of immigrants, and deportation without adequate access to justice.
  • Develop a comprehensive plan to reduce school segregation and address the school-to-prison pipeline.
  • End racial disparities in the criminal justice system at the federal, state, and local levels.

These recommended reforms aren’t just about changing policy. They’re about addressing the root causes of discrimination. The Race Convention, the report reminds us, “requires States parties to prohibit and eliminate racial discrimination in all its forms,” including legislation and practices that have disparate impact on racial and ethnic minorities.

The United States ratified the convention 20 years ago. It’s time to do it justice

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Body-Worn Cameras Should Not Expand Beyond Law Enforcement

August 29th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

The Guardian reported last week that Miami Beach is planning on expanding the use of body cameras beyond the police to include “meter maids,” code enforcement officers, and building and fire inspectors. This use of the technology does not make sense.

We’ve always been concerned about the privacy-invading potential of body cameras. As we wrote in our white paper on the technology,

Body cameras have more of a potential to invade privacy than [other] deployments. Police officers enter people’s homes and encounter bystanders, suspects, and victims in a wide variety of sometimes stressful and extreme situations. . . . Perhaps most troubling is that some recordings will be made inside people’s homes, whenever police enter—including in instances of consensual entry… and such things as domestic violence calls.

Balanced against these privacy dangers, however, is the significant need to increase oversight in light of the long record of abusive and illegal behavior by police officers (and other law enforcement agents like Border Patrol officers). Police in specific circumstances are given the authority to shoot to kill, to use brutal force, and to arrest citizens—and all too often, officers abuse those powers.

I am not aware of any cases of building inspectors shooting unarmed civilians in the course of their work. The fact is, these jobs do not come with the frightening powers that police officers possess, and so do not need the same kinds of checks on those powers. Deploying body cameras on these workers would bring all the downsides of police body cams—including in some cases filming inside private homes—without any of the benefits. The balance is completely different.

And as we noted in the white paper, the privacy of the employees should also be factored into the equation:

Just as body cameras can invade the privacy of many innocent citizens, continuous deployment would similarly impinge on police officers when they are sitting in a station house or patrol car shooting the breeze — getting to know each other as humans, discussing precinct politics, etc. We have some sympathy for police on this; continuous recording might feel as stressful and oppressive in those situations as it would for any employee subject to constant recording by their supervisor.

Of course employers, including local governments, have an interest in monitoring their workers to ensure they are doing their jobs properly. But the pervasive monitoring that body-worn cameras bring would create an atmosphere of oppressive surveillance and intimidation. (Again, for police officers their extreme powers and history of abuse justify a different balance—and even so we have called for an extensive set of rules in the deployment of body cams, not just to protect the public’s privacy but also officers’.)

Apparently there has been some problem in Miami Beach with corruption among some of these civilian enforcement employees. But occasional wrongdoing by a few employees does not justify wiring up entire workforces with cameras, especially when those cameras will also be generating video of members of the public. In any case, a top city official told the Guardian that “the basis for the institution of the program is not to catch corruption, it’s to build transparency.” It’s true that “transparency” is a crucial value when it comes to government, but a vague citation of that value is not enough to justify this use of cameras.

I applaud Miami Beach for moving to equip its police officers with cameras (apparently in the face of some opposition by the police union). But they should stick to police.


For the Poor, Every Arrest is a Gamble

August 28th, 2014 No Comments   Posted in ACLU Nationwide
By Jennifer Carnig, New York Civil Liberties Union

Homeless. Unemployed. Kids taken. Locked up. Guilty.

If you're rich like Lindsey Lohan, you can be charged with assault and let off the hook – all with the help of a highly paid, private lawyer. But if you're poor and accused of even the most minor misdeed, you spin the #WheelofJusticeNY at your own risk. Any outcome – from losing your kids to losing your home – is possible.

Every day across parts of New York, people who have never been convicted of a crime languish in jail. They go before judges without lawyers by their sides. And they plead innocent or guilty without understanding what it means for them and their families. New Yorkers are too often undefended and alone when looking up at a judge. And the state has been ignoring its responsibility and allowing this injustice to perpetuate for more than 50 years.

In the United States, you have the right to an attorney – even if you cannot afford one. But in New York and many other states, if you're poor and you enter the broken criminal justice system, justice is a gamble. Public defenders are chronically underfunded and stretched too thin, with poor people paying the ultimate price.

To help New Yorkers understand all that is at stake, this week in Manhattan the New York Civil Liberties Union unveiled a 7-foot-tall Wheel of Fortune-style game that will travel the state. The "Wheel of Justice NY" tells the true stories of real New Yorkers who have been chewed up and spit out by the state's broken criminal justice system.

Stories like that of Kimberly H., whose lawyer advised her to plead guilty to a felony when she only committed a misdemeanor. He had a history of neglect and was later disbarred, but not before Kimberly lost her job and home.

Or like Jacqueline W., who sat in jail for 50 days for a crime she didn't commit. Her sick husband died while she sat in jail, but because she couldn't reach her lawyer, she didn't get to say goodbye or attend the funeral.

The stories go on and on. They are the experiences of real New Yorkers whose lives have been impacted and even ruined because they did not have access to adequate public defense services. Their stories came to light through Hurrell-Harring et al. v. State of New York, a class action lawsuit challenging New York's failure to provide effective counsel to poor New Yorkers accused of crimes. The case was filed in 2007 by the New York Civil Liberties Union and the law firm of Schulte Roth & Zabel LLP. This fall, the case will finally have its day in court. The trial will be the first of its kind in the nation.

If you can't make it to the New York State Fair or the Yankees-Red Sox game to spin the Wheel in person, you can still play. The Wheel of Justice NY is also spinning online. Visit www.WheelofJusticeNY.org today to take a spin or call on New York Governor Andrew Cuomo and the state's legislative leaders to reform New York's broken public defense system.

Justice shouldn't depend on how much someone has in the bank. What misfortune might await you? Spin the #WheelofJusticeNY to find out.

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Victory! Immigration Authorities Must Stop Coercing Immigrants Into Signing Away Their Rights

August 27th, 2014 No Comments   Posted in ACLU Nationwide
By Gabriela Rivera, Staff Attorney, ACLU of San Diego & Imperial Counties & Mitra Ebadolahi, Border Litigation Staff Attorney, ACLU of San Diego & Imperial Counties

One night last summer, Patricia's mother, Marta, did not come home. She had been in poor mental health, but it was unlike her to simply disappear without a word. Marta Mendoza was born in Mexico but lived in the United States for decades, where she raised six U.S. citizen children. As Patricia and her sisters desperately searched their Los Angeles neighborhood for their mother, Marta was in Immigration and Customs Enforcement (ICE) custody being pressured to sign a "voluntary return," which would result in her immediate expulsion to Mexico without an immigration hearing. If Marta had been permitted to go before a judge, she could have won the right to remain here lawfully on account of her U.S. citizen children. Patricia didn't hear from her mother until Marta called from Mexico, scared and confused about what had happened to her.

Unfortunately, Marta's case is not an isolated incident. For years, countless families throughout Southern California have been torn apart by immigration enforcement agencies' coercive and deceptive "voluntary return" practices. As a matter of standard practice, ICE and Border Patrol have misinformed immigrants about the consequences of "voluntary return," including withholding the fact that "voluntary return" can trigger a ten year bar against returning to the United States. And in many cases, immigration officers used pressure and threats to force people to sign "voluntary return" orders.

In June 2013, the ACLU filed a class action lawsuit, Lopez-Venegas v. Johnson, on behalf of three Southern California immigrants' rights organizations, as well as eleven individuals, including Marta, who the government had expelled through unfair "voluntary returns." Each individual plaintiff has significant family ties in the United States and lacks any serious criminal history; thus, each would have had a strong claim to stay here lawfully had immigration officers not misinformed or pressured them to accept "voluntary return." Through the lawsuit, the individual plaintiffs sought to return to the United States and to receive a fair immigration hearing. The organizations sought systemic reforms to the "voluntary return" process throughout Southern California.

After more than a year of litigation, including intensive discovery and the depositions of key government officials, the government has agreed to significant reforms of the "voluntary return" system in Southern California. Under a settlement agreed to by the parties involved in the lawsuit, government officials must:

  • Provide detailed information—in writing, orally, and through a 1-800 hotline—regarding the consequences of taking "voluntary return" to non-citizens asked to choose between "voluntary return" and a hearing before a judge;
  • Cease "pre-checking" the box selecting "voluntary return" on the forms the agencies provide to non-citizens;
  • Permit non-citizens to use a working phone, provide them with a list of legal service providers, and allow them two hours to reach someone before deciding whether to accept "voluntary return";
  • Provide lawyers meaningful access to clients detained by Border Patrol or ICE;
  • Cease pressuring or coercing individuals to accept "voluntary return";
  • Allow ACLU attorneys to monitor compliance with the settlement agreement for three years.

As a result of the settlement agreement, on August 20th, Marta was allowed to return home to her daughters. In the coming months, she will finally have her day in immigration court. The settlement also includes provisions that, if approved by the court, would allow some of the hundreds of thousands of Mexican nationals who have been expelled from the United States pursuant to unlawful "voluntary returns" to reunite with their families here. We will monitor ICE and Border Patrol closely to ensure that these agencies never again trick or coerce vulnerable individuals into signing away their fundamental rights.

The lawsuit was filed by the ACLU Foundation of San Diego & Imperial Counties, the ACLU Foundation of Southern California, the ACLU Immigrants' Rights Project, and Cooley LLP.

A copy of the settlement can be downloaded from ACLU's website, here.

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Illinois Commits to True Sex Equality in the Workplace

August 26th, 2014 No Comments   Posted in ACLU Nationwide
By Hedy Gutfreund

Pregnancy shouldn't be a firing offense, but time and time again, when pregnant women ask their employers for reasonable accommodations, they are shown the door.

Guadalupe, a pregnant fast food worker in Illinois, was denied necessary bathroom breaks and then fired. Then there was a pregnant mother of four from Centralia who worked at an assisted-living home for people with disabilities. She was fired because her employer refused to accommodate her temporary pregnancy-related lifting restrictions. Although she gave birth to a healthy baby, she has no job or financial stability.

No woman should have to choose between her health or family and her job security, and after today Illinois women won't have to.

This morning, Gov. Pat Quinn signed House Bill 8 into law, a milestone for women and families in Illinois. The law requires all employers to make the reasonable accommodations pregnant workers need, so they can preserve their health, their babies' health, and their jobs. It also continues a trend among state governments of extending workplace protections to pregnant women.

Workplace protection is nothing new. Many workers expect that when they have a condition, like a back injury, that temporarily affects their ability to work they will receive reasonable accommodations, such as temporary light duty. They expect that their bosses won't blame them or threaten to make them choose between their health and their jobs.

But for pregnant women, things have been different. Pregnant women are often denied common sense accommodations, such as a stool to sit on, a bottle of water, more frequent bathroom breaks, or temporary light duty. Far too often, they continue to work without necessary accommodations, forced to risk their health and pregnancies. Pregnancy – which marks a time of joy for many women – can become a source of great stress.

HB 8 recognizes pregnancy discrimination as gender discrimination and an attack on women's economic security and equality. It does not give special treatment to pregnant women; rather, it gives them equal treatment. Pregnant women will now receive the same accommodations that workers with temporary disabilities already get.

Because of this new law, women in the workplace no longer have to fear being punished – financially or physically – for being pregnant or for being women. With proper enforcement, Illinois' new law should ensure that the stories from woman like Guadalupe become a thing of the past in our state.

Thanks to the leadership of Representative Mary Flowers and Senator Toi Hutchinson and the support of Governor Quinn, today marks a victory for pregnant workers, for families, and for equality.

Learn more about House Bill 8.

If you have experienced pregnancy discrimination at work, click here.

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The Road To Equality: ‘Til Death Do Us Part And Beyond

August 26th, 2014 No Comments   Posted in ACLU Nationwide
By Chase Strangio, Staff Attorney, ACLU

Life is full of unexpected ups and downs. Sometimes our greatest joys are followed by our deepest sorrows and through the good times and the bad we turn to our loved ones to guide and comfort us.

But for same-sex couples, all too often the best and worst of life's moments become reminders of the second-class status that same-sex relationships are relegated to in many states.

For Midori Fujii and Kris Brittain, the magic of their marriage and wedding was followed by tragedy.

In 2008, after 11 years together, Midori and Kris were married in California. Sadly, shortly after they returned to their home in Indiana to continue their life together as spouses, Kris learned that she had ovarian cancer. Midori recounts the surgeries, hospitalizations and treatments that Kris had to undergo. Through it all, Midori stood by Kris's side, and they found comfort in each other and their shared home.

In Kris's final days, she was plagued with worry over what would happen to Midori after her death because they would be treated as legal strangers in their home state of Indiana. The trauma and sadness of being seen as "less-than" consumed her as she and Midori prepared to say goodbye. The couple did what they could to protect themselves, drafting wills and other legal documents that would allow Midori to make medical and financial decisions for Kris. But nothing can stand in for the recognition of a marriage.

When Kris died in October of 2011, Midori lost the love of her life. And in the most painful moments of grieving, she had to fight to be recognized as a part of Kris's life. At first, she was told that she could not authorize Kris's cremation because she was not a spouse. Then, like Edie Windsor who successfully challenged the constitutionality of the so-called Defense of Marriage Act (DOMA) in United States v. Windsor, Midori was saddled with a $300,000 tax bill on the property that she and Kris shared. This bill would have been $0 had they been an opposite-sex married couple.

For Midori, the devastation of Kris's loss was compounded by the added burden – both financial and symbolic – of having their joint home and life treated as the separate lives of two strangers.

The injustice of her experiences following Kris's death motivated Midori to stand up for the dignity she and Kris deserved. In March of this year, Midori, along with five couples and two children, filed suit challenging the constitutionality of Indiana's ban on the freedom to marry and the recognition of marriages from other jurisdictions. The district court struck down Indiana's ban in Midori's case and two others. The court proclaimed, "Today, the ‘injustice that [we] had not earlier known or understood' ends. … Because ‘[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'"

Those three cases, Midori v. Commissioner of Indiana Dep't of Rev., Baskin v. Bogan, and Lee v. Abbott, were consolidated on appeal before the 7th Circuit Court of Appeals.

Today, the Seventh Circuit will hear oral argument in the three Indiana cases and in the ACLU's case, Wolf v. Walker, challenging Wisconsin's comparable ban. Ken Falk of the ACLU of Indiana and Camilla Taylor of Lambda Legal will be arguing for the plaintiffs in the Indiana cases while James Esseks, director of the ACLU's LGBT & AIDS Project, will be arguing for the plaintiffs in the Wisconsin one.

These cases will be the fourth set of cases to be heard by a federal court of appeals since the Supreme Court's decision in Windsor. There have now been 37 court decisions ruling in favor of marriage equality for same-sex couples. Two other courts of appeals, the 10th Circuit and the 4th Circuit, have already upheld district court decisions on the side of marriage. Argument was held in the 6th Circuit earlier this month. We are hopeful that the 7th Circuit will join the 4th and the 10th in upholding basic constitutional principles.

One or more of these cases will soon be before the Supreme Court and we are optimistic that the Supreme Court will also conclude that our Constitution simply does not tolerate the discriminatatory treatment that these marriage bans inflict. As one judge recently concluded in his opinion striking down Oregon's marriage amendment:

I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

For Midori, the other plaintiff couples and same-sex couples and families throughout Indiana and Wisconsin, these cases truly are about love and devotion – the kind that gives life meaning and transcends death.

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An Execution, Censored

August 25th, 2014 No Comments   Posted in ACLU Nationwide
By Lee Rowland, Staff Attorney, ACLU Speech, Privacy & Technology Project

On April 29, 2014, Clayton Lockett was scheduled to die by lethal injection at the hands of the State of Oklahoma. Under a state law that requires public witnesses to all executions, 12 journalists gathered to observe his death.

They never saw it.

Before the scheduled execution, the reporters were ushered into a media room where a glass partition, covered by a "viewing blind," separated them from the execution chamber. When the blind opened, Clayton Lockett lay before them strapped to a gurney. He had already been in there for almost an hour, getting poked with needles until a member of the execution team – of unknown training and background – finally set an IV line in Lockett's femoral vein, near his groin. Preliminary findings suggest this femoral IV played a role in Lockett's prolonged and torturous execution. Since there were no witnesses, we have only the state's account of how properly these IV procedures were carried out.

But that's certainly not all that journalists were barred from seeing. Right after the blind was raised, the warden announced that the injection process was to begin: First came the drug intended to render Lockett unconscious. Seven minutes later, at 6:30 p.m., a doctor in the room checked Lockett for consciousness; he was awake. At 6:33 p.m., he checked again; the state's account claims the "offender was unconscious." So Oklahoma began the process of injecting Lockett with the second drug (a paralytic), and the third drug, intended to induce cardiac arrest.

But Lockett most certainly didn't remain unconscious while the execution team administered these drugs. Multiple media reports document that Lockett began to moan and writhe on the gurney in clear distress. And how did state officials respond? They lowered the blind. At 6:42 p.m., at the very most critical moment of the execution proceeding, the state opted for secrecy. Once there was unavoidable evidence – visual and audible – that the lethal injection was cruel and unusual, the media was locked out. The journalists were left staring at a blank blind, able to hear – but not verify – sounds of struggle and suffering coming from inside the death chamber.

They never saw anything else.

We now know that Lockett died at 7:06 p.m., long after the media's access was shut down by the state. As to what happened in those fateful 25 minutes, we have only the words of state officials, and those words themselves beg some questions. The governor said the state "lawfully carried out the sentence of death," while the head of the state Department of Corrections – who runs executions in the state – said the execution was formally called off 10 minutes before Lockett was "pronounced…deceased." Once the state is no longer "executing" someone, their duty shifts to one of providing medical care, but there are certainly no reports that they attempted to resuscitate Lockett. Assuming they didn't, the process was, and remained, an attempt to kill him. A process the press had every right to witness.

Because the press and public were literally and figuratively shut out of witnessing the process, we may never get a reliable answer. But here's where there's no question: For over 20 minutes, Clayton Lockett lay there dying in the dark. The assembled reporters were deprived of the right to observe a critical government proceeding, and by extension the public was denied the right to receive a full account of how Oklahoma administers capital punishment, warts and all.

Both death penalty supporters and opponents should be able to agree that the most extreme use of state power should absolutely not occur in the shadows. As the Supreme Court has said, "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

As citizens, we can't complete that duty if the government only offers us selective information, editing out all the ugly parts. That why we brought a lawsuit today asking the court to stop the state of Oklahoma from using the execution shade like a Photoshop tool.

It isn't transparency when the government shines a light only on the things it wants us to see.

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Mothers and Children Fleeing Violence Need a Fair Chance

August 22nd, 2014 No Comments   Posted in ACLU Nationwide
By Mitra Ebadolahi, Border Litigation Staff Attorney, ACLU of San Diego & Imperial Counties

Imagine this: Several months ago, a young mother realized that if she didn't leave home, she would be raped, murdered, or both. She had two young children – an infant and a toddler – and few resources. She knew she couldn't count on the police to protect her. With no other choice, she decided to risk a voyage of more than 2,000 miles north, much of the trip on foot through difficult and dangerous terrain, in the hope that she would find refuge from her persecutors.

Instead, when she reached El Paso, Texas, she and her children were apprehended by U.S. Border Patrol, who promptly sent the family to a makeshift detention facility in remote Artesia, New Mexico. There, this mother and her children joined hundreds of other women and children from Guatemala, El Salvador, and Honduras, many fleeing gang violence, brutal sexual abuse, and a life of perpetual fear and insecurity.

Artesia, it turns out, is the detention equivalent of a black hole. It is a three- or four-hour drive from the closest major metropolitan areas where immigration attorneys might be found.

Equally disturbing are reports that these families – some of the most vulnerable women and children in the world – have been denied information about their fundamental rights under U.S. law, in particular their right to consult a lawyer or to seek asylum or other relief from deportation on account of their real fears of persecution if they are returned to their home countries.

Immigration officers staffing Artesia routinely interfere with the ability of these families to contact a lawyer. Phone calls – even calls to lawyers – are permitted only once per day and are routinely cut off by immigration officers after just three or five minutes. Many lawyers have been denied access to clients or told by the authorities that they are not allowed to speak up in hearings to defend their clients' rights. When one detained mother attempted to find an attorney by asking an official at Artesia if she could get one, he told her that an attorney was not necessary. Another detained mother was told by an ICE officer that an attorney would only facilitate her deportation.

The procedures these mothers have received to evaluate their potential asylum claims have been fundamentally flawed. Because many mothers have been required to bring their children to their asylum interviews, they have been forced to choose between recounting gruesome acts of violence in front of their children, or staying silent and forgoing the chance to explain the basis for their fear of returning home.

As a result of these and other egregious rights violations, the percentage of families detained in Artesia who are given the chance to apply for asylum is far below the national average – even though these families' stories are some of the worst possibly imaginable.

The Obama administration – which has repeatedly stated it intends to send these families back – is violating federal immigration law, the constitutional right to due process, and our obligations under international law to protect vulnerable refugees.

Today, a broad coalition of immigrants' rights organizations and immigration practitioners filed suit to challenge what is happening at Artesia. We seek to ensure that each individual has a real chance to apply for asylum or other forms of immigration relief and to establish once and for all that the government cannot rush deportations at the expense of our Constitution, our obligations under international law, and our nation's finest values.

The case is M.S.P.C. v. Johnson Counsel include ACLU, ACLU of New Mexico, ACLU Border Litigation Project, ACLU of San Diego & Imperial Counties, ACLU of the Nation's Capital, the National Immigration Project of the National Lawyers Guild, the American Immigration Council, the National Immigration Law Center, Van Der Hout, Brigagliano, & Nightingale, LLP, and Jenner & Block LLP.

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Armed Guards at Every Home: The View from El Salvador

August 21st, 2014 No Comments   Posted in ACLU Nationwide
By Rachel Nusbaum, Media Strategist, ACLU Washington Legislative Office

The story always starts the same way: unaccompanied kids, and sometimes whole families, fleeing terrible violence in Central America.

It must be terrible indeed, because the journey north is a perilous one. Yet parents and kids continue to make that dangerous trip. So these stories leave me wondering, what drives them to do it? What could possibly inspire that much fear and desperation?

Despite the considerable news coverage of the humanitarian crisis playing out along the U.S.-Mexico border, we are still missing this key piece of the puzzle.

This type of violence is not new in El Salvador. The parents and grandparents of the children fleeing El Salvador today experienced a civil war that began in the late 1970s and raged for almost a decade. The United States supported the military regime throughout that conflict, despite their use of terror through death squads, recruitment of child soldiers, thousands of assassinations, and rampant human rights violations.

I asked Elizabeth Kennedy, who has been in El Salvador since November 2013, what day-to-day life is like there now. Elizabeth is a Fulbright fellow working with returned child and youth migrants from Mexico and the United States in El Salvador.

The conversation that follows has been lightly edited for length.

Is it as violent as people say in Central America?

Yes. On average, 12 to 13 people a day are dying in this small nation of 6.2 million people. Only Honduras and Syria have definitively higher homicide rates.

A lot of this violence is directed at young people or their family members. Pockets with little violence exist – for example, in the wealthiest neighborhoods – but in most places, people are off the streets from sun down to sun up. News reports commonly indicate that the community heard the shots at 2:00 or 3:00 AM, but no one went out to see what happened until sunrise.

When I walk down the street in a nice neighborhood, I pass an armed guard at nearly every home, and these homes often have electrified fences. In other neighborhoods, military or police patrol on foot in groups with several guns. In the worst neighborhoods, no police or military are present, but gang members can walk in the street, sometimes with their weapons showing.

What is life like for children in El Salvador?

First and foremost, extreme violence is a regular part of many children's lives from an early age. They lose friends and family members. They hear gunshots. They see beatings, rapes, and murders. Fourteen of the 322 children I interviewed between January and May had at least one parent who had been murdered. Plus, they are forcibly recruited into gangs, or they are targeted by police and military for being young.

Then, there are the disappearances. 142 children have been reported as disappeared in the past year, though the true total may be higher. Only 13 of these children were eventually located and returned to their parents or guardians. Some were kidnapped from their school, home, shopping center, or even church. Additionally, between 2005 and 2011, 5,300 children were murdered in El Salvador.

Finally, schools are often not safe places. 130 of 322 children I interviewed between January and May attend a school with a gang presence nearby, and 100 attend a school with a gang presence inside. Seventy have quit studying because of the fear they have to be at their schools. The long-term consequences of not completing one's formal schooling are many for the children and the nation.

Is there a particular child or experience that stands out to you?

I really admire this youth who spoke out – at great personal risk – about what happened to him and his family, because he believes transparency is necessary for justice. He lived in the United States for over seven years, when his mom received a removal order. They elected to voluntarily depart, and within months of their return, they were extorted. They attempted to flee to the United States but were detained and deported from Mexico. His dad was murdered within days, and the youth is now working to support his family. I have met a handful of others in his position.

There's also the 12-year-old boy who came to us with no shoes. He had been beaten and robbed at a detention center in Tapachula. The aunt with whom he traveled left him to sit alone. I sat next to him and talked with him, and we eventually discussed whether he would try to migrate again. He told me: "Both my parents are in the U.S. I have a sibling I have never met. No one loves me here. What would you do?"

Why don't people just go to another part of their country? Aren't there any places where people can feel safe?

El Salvador is a small country, and arguably, there is no safe part of the country unless you have a large amount of economic resources, which most Salvadorans do not.

In my interviews with over 100 Salvadorans who were trying to flee the country after being victims of crime, less than 15 reported the crime. Instead, they fled the neighborhood, often more than once, and then decided to flee the country after criminal elements still found them. Remarkably, two of these victims were police and still had no confidence in the police's ability to protect them. They both told me: "If they [the gang] want you, you can stay and die. Or you can flee. Nothing else will do."

Importantly, gangs in El Salvador are transnational criminal organizations capable of acting throughout the country and region. They are internationally networked and have operating revenues of millions of dollars and large weapons stockpiles. In this regard, their security apparatus is arguably stronger than the nation's military and police.

Do you think people in the United States would feel the same way they do now about those fleeing Central America if they could see what you see?

I think if U.S. citizens came here and had to live in the neighborhoods where many of these kids and adults live, they would feel very differently. They would understand the fear and desperation, and they would likely respond with much more empathy and compassion. People in the United States need to ask themselves: What would I do if someone put a gun to my head and said I could leave or die? What would I do if someone did that to my child? What would I do if I thought that threat could happen any day?

These are the impossible choices many Central Americans face.

You can find out more about Elizabeth's work in Central America at http://elizabethgkennedy.com/ You can also follow her on twitter as @EGKennedySD.

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