By Reverend Elmer Zavala Gonzalez, Minister Member of Mid-Kentucky Presbytery
In a matter of minutes, I went from seeking justice, to bearing witness, to being racially profiled.
My youngest son who is 3 years old often accompanies me as I do my duties as a minister member of our Mid-Kentucky Presbytery in Louisville. We visit new members of the congregation to welcome them. We attend community events and celebrations. Sometimes, he comes with me as I lend a hand to a congregant in need of assistance.
On a sunny day last October, I offered to take one congregant, we'll call her Lilia, to the courthouse in Louisville to deal with a traffic offense. My son came along with me. Little did I know the challenge I would face that morning to do the right thing – both as a minister and as a parent.
We arrived at the courthouse and walked up the long set of stairs and under four tall Roman columns into the main lobby of this imposing building and into the courtroom assigned to Lilia's hearing. We were there for only a few minutes when someone opened the door to the courtroom and asked for Lilia, who is an undocumented immigrant, by name. She left and a few minutes later I decided to follow her because she hadn't returned.
Soon I saw Lilia walking toward me accompanied by a man. Her face was red, and clearly she was upset. The man was with U.S. Immigration and Customs Enforcement (ICE), although I didn't know it at the time because he had no identification badge. As they approached, she tried talking to me, hoping I would help her understand what was happening.
When I asked this individual why immigration would be involved with a case in local traffic court, the man who still had not identified himself to me as an ICE agent turned and began to question me. I have an accent, and my skin is dark. The agent asked, "Where are you from?" (Honduras, I replied). "Do you have legal documents?" (Yes, I replied).
He then asked me to show my documents. When I asked him why he was asking me to show documents, he threatened me, saying "You know, if you don't have documents, I can detain you and send your child to Child Protective Services." To avoid traumatizing my son, I showed the agent my residency card. Lilia was taken away and eventually detained for deportation.
I am disturbed on many levels by what transpired. This was a case of brazen racial profiling, and this federal agent acted in an intimidating way towards all of us. Lilia came to court that day just to answer a traffic offense. I came to help her, and my son was innocent to all of it, in the arms of his father. The official did not need to act this way.
I am convinced that my dark skin and my accented English prompted the agent to begin asking me where I was from and if I had documents. When I asked for a simple explanation for his decision to detain Lilia and to question me, he could have answered me in a simple, direct manner and showed me his identification. Instead, he chose to intimidate us, focusing on the presence of my young son.
It was not necessary to threaten me with detention and taking my son away. But this intimidation put me in a difficult position. Although I would never do something intentionally that would traumatize or hurt my son, I knew that what the agent was doing was wrong. I did what I thought was best as a parent: I became quiet and showed the official my documents.
Now I feel a moral imperative to raise this publicly because I know that hundreds of people in Kentucky face situations like this daily. Mine did not result in a separation from my son and wife, but many of these interactions do. That this occurred at a courthouse, where individuals come to seek justice and to settle their obligations is an outrage.
What does ICE enforcement at courthouses say to immigrants, and in fact to people whose skin is dark or who may have an accent? That they may be subject to ill treatment and discrimination for coming to a place that is supposed to be dedicated to justice? This makes no sense. Courthouses should not be locations for ICE enforcement.
Now, although I will still accompany a congregant to the Louisville courthouse to pay a traffic citation, sadly, I do not take my son. I do, however, ask another pastor or congregant, one whose skin is white, to accompany us both.
By Josh Bell, Media Strategist, ACLU
SPOILER WARNING: This post discusses major plot points of the new Captain America movie.
What is patriotism? Is it doing what the government says, or is it doing what you believe is true to the Constitution and American values? "Captain America: The Winter Soldier" – currently the No. 1 movie in the country – comes down on the latter side, wrapping its message in a red, white, and blue action-packed candy shell.
Unfrozen WWII super-soldier Steve Rogers – a.k.a. Captain America – works for SHIELD, which is basically the CIA plus Navy SEAL Team Six plus the NSA times a thousand. At first, the movie seems to be only a commentary on targeted killing. And it is that, featuring a set of enormous SHIELD military drones called "helicarriers," which prompt an exchange between Cap and SHIELD boss Nick Fury.
"We're gonna neutralize a lot of threats before they even happen."
"I thought the punishment usually came after the crime," Cap replies, recalling the Obama administration's elastic definition of the word "imminent" in its legal justification for putting people on the real-world kill list.
"SHIELD takes the world as it is, not as we'd like it to be," Fury says, echoing Dick Cheney's defense of over-the-line counterterrorism tactics.
"This isn't freedom – this is fear," Cap declares.
What later becomes apparent is that the movie is also about dragnet surveillance, revealed in the way that targets are selected for death under the secret helicarrier program, Project Insight. The methodology is explained in the confession of one of the bad guys:
"The 21st century is a digital book. … Your bank records, medical histories, voting patterns, emails, phone calls, your damn SAT scores! [The] algorithm evaluates people's past to predict their future. … Then the Insight helicarriers scratch people off the list – a few million at a time."
It turns out that SHIELD has been infiltrated by a group called Hydra, which was founded by Nazis during World War II. "Hydra was founded on the belief that humanity could not be trusted with its own freedom," explains a Hydra leader to Captain America in the classic movie-villain move of explaining everything to the hero because the hero is doomed (but then of course the hero ends up somehow narrowly escaping certain death).
"What we did not realize is that if you try to take that freedom, they resist. The war taught us much. Humanity needed to surrender its freedom willingly."
So Hydra started secretly sowing international chaos and violence until, as another Hydra baddie puts it, "The world is finally ready to give up their freedom for security."
As you might guess, Cap is not down with that, and he thwarts their sinister plans by going up against the corrupted SHIELD leadership. As he says in this comic book panel while holding an American flag, "I'm loyal to nothing… except the dream."
The movie's co-director, Joe Russo, told Mother Jones that he did set out to make a "political" film drawing on "civil liberties issues, drone strikes, the president's kill list, preemptive technology." The movie was already filming when Edward Snowden's leaks first came out, so the surveillance aspect was not an overt reference to his revelations.
"It was all leading up to Snowden," Russo said. "It was all in the ether, it was all part of the zeitgeist."
And mirroring real life, a secretive agency went too far pursuing security at the expense of liberty, undermining the very values that the government is meant to protect.
By Bennett Stein, ACLU Speech, Privacy and Technology Project
The government is using shaky legal arguments to silence major Internet companies without giving them – or the public – the opportunity to respond. In three separate recent cases, the government has sent a grand jury subpoena to Yahoo or Twitter and requested a gag order from a magistrate judge, attempting to bar these tech companies from informing the customers in question. To make matters worse, the government won't disclose its reasoning for requesting the gag, effectively shutting the public out of the courthouse without any explanation.
The ACLU filed a motion last night seeking to represent the public's interest in open court proceedings when the government seeks gag orders on Internet companies. We know about the three cases only because the magistrate judge pushed back on the government, inviting Yahoo and Twitter to weigh in and ordering the government to make its legal arguments public. The government appealed those orders to a district court, where the judge ordered the appeals sealed. The ACLU is now moving to intervene in the district court for the purpose of opening these gag order proceedings to public scrutiny. In a democracy, if your government is going to gag someone from speaking, it should publicly explain why.
The federal government has an awesome array of tools and technologies in its investigative arsenal, and it often goes to great lengths to shield its tactics from outside scrutiny. Not only does this secrecy prevent people from challenging surveillance used against them, but it also means that elected officials can't openly debate the underlying policies, and communities can't discuss their government's actions.
Traditionally, gag order applications are considered ex parte – meaning with only the government's argument on the record before the court. However, Magistrate Judge Facciola noted that the government's request in this case raised controversial legal questions, and so invited Twitter and Yahoo to respond. (In one case, the government withdrew its gag order application after Judge Facciola invited Twitter's participation.) He also ordered the government file public copies of its gag order applications with limited redactions.
We are now asking to unseal the documents in these cases, and expressing support for Judge Facciola's invitation for responsive briefing from Twitter and Yahoo. As we say in our filing:
The ACLU is troubled, as the Court should be, by the government's overuse of gag orders to prevent public and judicial scrutiny of its invasions of citizens' privacy. Transparency concerning judicial documents like the ones at issue ensures fairness, decreases bias, improves public perception of the justice system, and enhances the chances that the resulting orders will be well-justified and narrowly tailored. These interests are particularly acute where, as here, the government relies on a controversial statutory authority affecting the First Amendment rights of private individuals and where at least one court has openly questioned the applicability of that authority.
If the government is going to take extraordinary measures to silence the companies we rely on daily, then it should be prepared to explain itself.
By Michelle Richardson, Legislative Counsel, ACLU Washington Legislative Office
A very important government report on privacy and cybersecurity programs flew under the radar last week.
Produced following President Obama's executive order from last February, agencies were directed to explain how they share our private information, and what they do to protect it. Overwhelmingly, agencies offered little to no information, and what they did share was discouraging.
With one exception: the Department of Homeland Security (DHS).
DHS issued a thorough report about past and present activities and the results are impressive. In no uncertain terms, it says that personal identifying information (PII) will not be shared unless it is "necessary" to address a cyber threat. It expressly recognizes that information on a cyber "victim" is different from information on a cyber "attacker" and the operative question isn't whether personal data was legally collected, but whether it is "material" to an investigation. It's refreshing to see an intelligence agency recognize publicly that "collecting unnecessary data is unlikely to advance an investigation or technical assistance effort, and may in fact hinder it."
If DHS is the paragon of unexpected transparency here, then the rest of the federal government is pulling down the shades on how they share and protect our sensitive information. Many agencies simply wrote a couple of pages to confirm they are working on it – without any information on what that means or what privacy protections are presently in place. The Departments of Energy, Transportation, and Health and Human Services – despite holding a treasure trove of sensitive U.S. data – had no meaningful disclosures to judge whether they are in fact following the president's order to incorporate the Fair Information Practice Principles.
Others mentioned just enough to raise huge red flags.
The Department of Justice, for example, briefly mentioned the FBI's iGuardian program, which accepts tips on suspicious cyber activity. With a straight face, DOJ reports that privacy is protected because the FBI only retains and shares personal information that is "relevant" to an investigation. As Edward Snowden informed us nine months ago, the administration's official, court-sanctioned position is that all data can be relevant to an investigation in the digital world. If the FBI is collecting and using cyber data in the same way the NSA deals with phone calls – we are in trouble.
The Defense Department also carries the "relevance" torch. You may remember that in 2012, it created a program for its private sector partners to share cyber information. While these companies are part of the Defense Industrial Base – and are not necessarily processing general consumer information – it is heart-stopping to learn that there can be "incidental" collection of personal information, which can be shared with the DoD when "relevant." Cue more NSA references.
This is an annual report, and hopefully next year we'll have more useful information on non-DHS practices. I've testified before Congress about how important it is that DHS be the lead agency for domestic cyber programs. This report only further proves that no other agency even vaguely compares to DHS when it comes to privacy.
As a fourth-generation Arizona rancher I have a strong attachment to the land my great grandfather homesteaded back in 1896. But ever since the US government built the border fence and sent thousands of Border Patrol agents to the Southwest, my property rights are violated every day.
Our ranch has 14,000 acres of cattle land that stretches some ten miles along the U.S.-Mexico border. When I was a kid the border wasn't a big deal. The U.S. and Mexican ranchers on either side would help each other out. Then in the 1990's the Border Patrol showed up to close down the border, and ever since that's dominated my livelihood and my life.
At first I wanted to cooperate with the Border Patrol. Then the agents started racing their vehicles through my property, busting through our fences, tearing up roads, and running down cattle. When other ranchers and I met with border officials in Tucson to explain the problem, they refused to pay for the damages.
I've come to realize that the Border Patrol simply has no respect or understanding for our way of life here at the border. I spend most of the day mending fences they've damaged, and every time one of their vehicles hits one of my animals, I have to absorb the cost. My cattle are worth up to $1,800 a head, and I've lost eight of them. All the ranchers around here have the same problem.
I've also discovered that the Border Patrol doesn't have to respect our constitutional right of private property, something this country was built on. There's a federal rule that within 25 miles of the border US agents have the authority to come onto anyone's land, without permission, whenever they want. That's what they do, and I can't stop them.
It used to be that our dogs could roam freely. They have always been our security system. But when the dogs started going after Border Patrol agents who set foot on our property, the agents threatened to shoot them. So I had to build a fence to keep my dogs penned up.
That's just one way life here has changed.
We also live under constant surveillance. On my property alone, there's about $40 million worth of high-tech surveillance equipment Border Patrol has installed, including three 80-foot-tall surveillance cameras equipped with infrared night vision. They're supposed to be there to track illegal border traffic, yet one of them is pointed right at our house, watching our every move. My wife finally decided we had to plant trees around our windows to try to protect our privacy. There's also at least 200 ground sensors buried on our land right now, and the Border Patrol hasn't asked for permission to put any of them there. They're effectively taking your property without actually taking it, and they don't care if that makes you angry.
When the Border Patrol's air unit started coming with low-flying helicopters to chase illegal border traffic, I realized that the days of living with the peace and quiet we once had on the ranch were gone. The helicopters buzz over our house and scare the cattle and horses into running through fences. No matter how many times we talk to Border Patrol and explain that cows and horses don't get along very well with helicopters, they don't seem to care. It's like living in a military zone.
I believe we have to protect our borders, but not the way the government is doing it and not at hugely wasteful cost to the American public. We already have 450 Border Patrol agents right here in the Naco area. At their district headquarters down the road, there's 200 state-of-the-art patrol vehicles sitting there idle every day. Now Congress is talking about adding 20,000 more agents and spending an additional $46 billion on Customs and Border Protection (CBP), the agency that oversees Border Patrol. I consider that a waste of taxpayer money. We do need to solve the immigration problem, not by offering citizenship but by giving people who want to come to this country to work a way to do that legally.
I'm proud to be an American, and I believe this is the best country in the world. I never thought I would have to publicly criticize our government's policies. But after more than 20 years of experiencing the Border Patrol's arrogance and disrespect, my family and other ranchers have had enough. I want the rest of the country to know the reality that we're living here on the border: a daily violation of our constitutional rights.
Read more about Border Communities Under Siege.
By Brett Max Kaufman, Legal Fellow, ACLU National Security Project
GUANTÁNAMO BAY, Cuba — What would it take for you to trust a stranger with your life?
For most of us, this question is merely rhetorical, but for criminal defendants facing the death penalty, it could not be more concrete. To be effective in pursuit of a just criminal process, the lawyers who defend these individuals must work extraordinarily hard — often for many years— to earn their clients' trust. Before this fundamental trust is born, these attorneys and clients must frequently bridge yawning divides across race, culture, education, politics, religion, and more. Only then, secure in the commonality of purpose that characterizes the most successful attorney–client relationships, can a lawyer navigate with confidence the messy facts, complex law, and highly charged emotions that characterize death-penalty trials.
Here at the Guantánamo Bay military commission convened to try five of the alleged plotters behind the September 11, 2001 attacks, the difficulty of this process is amplified by the conditions under which the commission's charges are being litigated. The defendants were tortured by the same government that is now trying them in a makeshift military courtroom. Extreme rules governing classification and official secrecy prevent defense lawyers from showing (or even explaining to) their clients important evidence and legal motions. Lawyers cannot call their clients, and visits to the base — more than 1,300 miles from Washington, D.C. — are logistically difficult and time-consuming. Hearings are held roughly four days every two months.
Yet the government keeps choosing to make matters worse.
A series of troubling events — CIA censorship of the proceedings from outside the courtroom; the disappearance of files from defense-counsel hard drives; the installation of listening devices, hidden in smoke detectors, in attorney–client meeting rooms — have raised grave concerns about whether the defense teams and their clients can be assured of the integrity of the attorney–client relationship. And on Monday, defense lawyers revealed that they are apparently the subjects of an investigation by the Federal Bureau of Investigation — and that at least one defense team member, a Defense Security Officer for the team defending Ramzi bin al Shibh, has been approached by the FBI for information and gagged by a non-disclosure agreement.
Defense lawyers have asked for an independent inquiry by the military commission into the circumstances of the FBI investigation, which reportedly centers on the publication early this year of a series of letters written by 9/11 defendant Khalid Sheikh Mohammed. They argue that only after the court examines the facts surrounding the DSO interview — and any other FBI contact with members of the defense teams — can they determine whether they are faced with a conflict of interest that would undermine the effective representation of their clients. Judge Pohl seems inclined to agree; in court today, he raised the possibility that, perhaps as soon as next week, he would appoint independent counsel to any of the accused whose defense has now been implicated by a potential attorney–client conflict of the government's making.
As David Nevin, lead attorney for Khalid Sheikh Mohammed, explained in court on Tuesday, there are only two roads ahead: "One of them is that I go, and that anybody who is subject to the investigation goes also; and the other is that Mr. Mohammed waives the conflict after being independently advised." The four other defense teams and their clients confront the same issue.
This is what the government has wrought, but is this really what it wants? Here at Guantánamo, trust is especially delicate, and it now appears to be in serious jeopardy. To lose the representation of the 9/11 defendants' lawyers now would do perhaps insurmountable damage to this prosecution. The lawyers and their teams have spent almost five years with their clients, proving to them in deed and effort that their devotion to the principle that all individuals are entitled to a vigorous, effective defense translates even to these defendants, even in this place.
Could a new set of lawyers ever earn this same trust? And if not, what then?
By Zak Newman, ACLU Washington Legislative Office
It wasn't long ago that President Obama announced on Reddit, "We will fight hard to make sure that the internet remains the open forum for everybody - from those who are expressing an idea to those who want to start a business."
The NSA's surveillance programs fly in the face of that commitment. And, more critically, they violate international law.
A recent ACLU and Amnesty International submission to the Privacy and Civil Liberties Oversight Board (PCLOB) explains that Section 702 of FISA—enacted by Congress in 2008 to codify the Bush administration's warrantless wiretapping program—authorizes surveillance that is not only unconstitutional but that violates the long-established human right to privacy. The International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992, has four primary requirements relevant to national surveillance programs.
Surveillance must be:
- limited by statute and clearly defined in nature and scope;
- narrowly tailored to address legitimate governmental objectives, such as threats to national security;
- subject to independent oversight systems to prevent abuse;
- and applied equally irrespective of nationality.
Section 702 of FISA fails each of these requirements.
Section 702, as our submission explains, "provides US officials an extremely broad grant of authority and effectively unfettered discretion to secretly collect, store, and use protected communications." Meanwhile, Section 702 programs – like PRISM – provide virtually no "protection of the privacy interests of non-US persons outside US territory." That means there are few clear boundaries, little oversight, and no meaningful protections against surveillance for noncitizens.
That's not just the position of civil liberties and human rights groups. In its recent Concluding Observations on U.S. compliance with the ICCPR, the U.N. Human Rights Committee agreed:
The Committee is concerned about the surveillance … under Section 702 … conducted through PRISM. ... The Committee is concerned that until recently, judicial interpretations of FISA and rulings of the Foreign Intelligence Surveillance Court (FISC) have largely been kept secret, thus not allowing affected persons to know the law with sufficient precision. … The Committee is concerned that the current system of oversight of the activities of the NSA fails to effectively protect the rights of those affected.
So why does international law matter here?
First, disrespect for privacy rights around the world is inconsistent with U.S. policy goals and rhetoric. As the President's NSA Review Group stated in its report: "The United States should be a leader in championing the protection by all nations of fundamental human rights, including the right of privacy, which is central to human dignity."
Second, NSA surveillance programs have already created observable "chilling effects" for both citizens and noncitizens – they actually change the way we behave. Recent studies show that knowledge of the government's omnipresent collection programs has shifted the way people conduct their digital lives, causing us to be more selective about which search terms we use and what services we connect to. As our submission notes, this stifles Internet freedom, a long-recognized policy objective of the current administration.
Finally, NSA surveillance undercuts international human rights law that protects Americans, too. U.S. disregard for noncitizens' right to privacy gives the green light to other governments to indiscriminately collect and surveil Americans' most personal data. For the protection of its own citizens' privacy, the U.S. must respect the rights of noncitizens.
Americans understand that the surveillance programs exposed by Edward Snowden violate the Constitution, and it has been heartening to witness the protest movement growing in response. But it's important to consider international implications as well. The United States should be setting global standards – not breaking them.
We know that cuts to early voting are bad for voters. But just how bad are they?
As part of our lawsuit against North Carolina's voter suppression bill, we asked Ted Allen, a professor of industrial engineering at Ohio State University, and Paul Gronke, a political science professor at Reed College, to crunch some numbers. Both found that shorter early voting periods translate to longer lines and less voters.
During the 2012 general election, over one-half of North Carolinians voted early, with about 900,000 ballots cast during the seven days of early voting that have now been eliminated. If just four percent of those voters showed up on Election Day, waiting times to vote would have more than doubled, according to Allen, who literally wrote the textbook on lines and waiting times to vote.
But some people just can't afford to spend their time in line. With longer waits, Allen calculates that 18,000 people would have given up in frustration and left the lines without voting. And that's just a low-end estimate: In a worst-case scenario, waiting times would have been just shy of three hours to vote. For perspective, that's how long it takes to drive from Raleigh to Charlotte.
And Gronke, the nation's leading expert on early voting, also predicts that North Carolina's cutbacks will reduce the number of people who vote early. He looked at data from Florida in 2012, where over 300,000 fewer ballots were cast after the state similarly eliminated several days of early voting. The decline: 10.7 percent.
Who's going to be hit hardest? African–American voters, who have used early voting at higher rates in five out of the last six federal elections in North Carolina, that's who.
In fact, over 70 percent of black voters (or more than 1.6 million) cast their ballots during the early voting periods in 2008 and 2012. This racial effect is exactly what we saw in Florida in 2012. As Gronke observed, "After Florida cut back on early voting, its population of early voters became less black, and more white."
North Carolina Gov. Pat McCrory has brushed these concerns aside, promising that counties will continue to offer the same number of early voting hours, even as the total number of days shrinks. But, in fact, many counties will not do so.
And, regardless of the hours, we know these problems will happen anyway. Florida did the exact same thing before 2012 – compressing the same number of early voting hours into fewer days – and we know the outcome was still the same: less voting and longer lines.
So here's the long and short of it: When voters have less time to vote early, they have less time to vote. And when voters have less time to vote, fewer people get to exercise the most fundamental right in our democracy.
By Wendy George, Sister of commuted life-without-parole prisoner, Stephanie George
When we were little, we used to tell our mama she had good ears. My little sister and I would whisper under the covers in our bed after lights out, and somehow mom could always hear us. She'd tell us to quit talking and go to sleep.
Tomorrow I'm going to pick up my sister from prison. She's been away for 17 years, and until last December I thought she would never come home. I can't wait to drive back to my house, get in bed, and tell each other everything like we used to.
You'd think I had a twin. As kids, my sister and I looked a lot alike. Our mom used to dress us the same. Even as we got older, we wore the same kinds of clothes. We raised our small kids together. We both wanted to style hair for a living. Since she's been gone, a part of me has been missing. A part of me has been locked up for years.
Stephanie was 26 with four small kids when she was sentenced. Even though the judge objected, a mandatory minimum law meant that she got life without the possibility of parole for being "a girlfriend and bag holder and money holder" in a drug conspiracy.
I tried to make being in there easy for her. At first, I wouldn't tell her the bad things. But our father died when she was in there. I tried to hide our dad's sickness from her, and I had to tell her he'd passed. I know she was worried about me having to bury him alone, without her. "From here on," she said, "I want you to promise me that no matter what's going on outside, I want to know the truth."
Stephanie and I have kept each other going. I was the one to tell her that her son was shot and killed in October. I told her that the Sunday before he died, I saw him in the audience at church when I was singing in the choir. I know he got saved that day. She's made peace with it. I've been there since she went inside, and I'm going to be there when she gets out. It's all going to happen for her again – the grieving – when she comes home.
When Stephanie was sentenced, I took her kids into my home and raised them. I am grateful I had the strength to keep pushing on to make sure that her kids got to the prison to visit their mom. She told me horror stories of some of the women in there who didn't have a family outside to help with the kids. It was a rough role, but I thank God for giving me the strength to raise them all. I talked to my sister on the phone last week and joked that once she gets home, I am going to take a month vacation. She said I deserve it.
Even when they said she had a life sentence, I never accepted that. I've been praying and fighting for this day since day one. And the fighting has paid off. Finally, my sister's sentence has been commuted by President Obama.
She has a lot to come home to that she's lost, but we're going to make some happy times. I've lost 17 or 18 years together with her, but we're still young and can enjoy the rest of our lives together. Mom and I are spending all day today baking, and the whole family will be waiting for Stephanie when we pull into the drive way tomorrow.
I just can't wait. I haven't even been sleeping. I woke up this morning, and the first thing I thought was tomorrow is going to be the day. The day she comes home.
All I can say is if you have a sister, hold on to her.
UPDATE - April 17th, 2014
This morning, Stephanie George was released after her 17-year incarceration. She joyfully embraced her sister Wendy outside the prison.
Photographers’ Rights At Issue As Arizona Community Rises Up Against "Occupying Army" of Border Patrol Agents
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project
The ACLU of Arizona today sent a letter to the U.S. Border Patrol demanding that the agency immediately stop interfering with the First Amendment rights of the residents of Arivaca, Arizona, to protest and to photograph government activities that are in plain view on a public street.
The dispute is part of a larger developing story in Arivaca that is actually a pretty incredible tale of citizens rising up against governmental abuse and repression in their own community. I recently spoke with James Lyall, a staff attorney for the ACLU of Arizona, and he described the situation to me:
Arivaca is a community of about 700 people, located 50 miles southwest of Tucson. It's a small town, in a beautiful part of the Sonoran desert. But when you go there sometimes it feels like you've gone to another country or somewhere where they've declared martial law, just because of the overwhelming Border Patrol presence in the community. There are an unbelievable number of armed federal agents—it seems like every other car or person you see out there is Border Patrol— as well as lots of surveillance towers, drones, and helicopters. Our office regularly takes calls from residents who've been pulled over for no reason, detained and interrogated at a checkpoint, or had Border Patrol agents cutting fences and coming onto their property. Residents describe feeling like they're living in a police state or with an occupying army. Agents will tell people, "You have no rights here," and "You're suspect just because you live here."
People are understandably angry at this extreme militarization of their community. So a number of Arivaca residents have come to together to form an organization called People Helping People. It's a true grassroots effort, led by community members, and last year they launched a campaign to demand the removal of the Arivaca Road checkpoint. That's just one of three Border Patrol checkpoints that surround the town and that have had a profoundly damaging impact on the community. Residents have experienced years of routine harassment and civil rights abuse at the Arivaca Road checkpoint, which is about 25 miles north of the border. They also say they've seen a decline in property values and tourism, and harm to local businesses. One local business owner recently went under, she believes, because of the decline in tourism resulting from the checkpoint, which has now been there for over seven years—even though it was supposed to have been a "temporary checkpoint." They also object that the checkpoint is part of a broader enforcement strategy designed to drive migrants into the harshest parts of the desert, resulting in countless deaths.
Lyall says the civil rights abuses at these Border Patrol interior checkpoints—and others throughout the Southwest—include prolonged stops and detentions, extended interrogations totally unrelated to verifying citizenship, drug dogs falsely alerting to nonexistent contraband in order to justify invasive searches, verbal insults, excessive use of force, and racial profiling of Latino residents.
In January, the ACLU of Arizona filed an administrative complaint with DHS regarding abuses at six different southern Arizona checkpoints, including the checkpoint on Arivaca Road. Reading the complaint conveys a some of the texture of what it is like for the citizens living in the area—though as the complaint notes, Border Patrol abuses are not limited to Arivaca or to the Southwest border region—and how Border Patrol agents are going far beyond the limits of their authority at checkpoints, which the Arizona Republic estimates now total 170 nationwide.
These interior checkpoints are in part the result of decades-old regulations giving Border Patrol authority to operate within a "reasonable distance" of the border. That distance was defined in federal regulations in the 1950's —with no public comment or debate, and at a time when the Border Patrol comprised fewer than 1,100 agents—as 100 miles from any external boundary of the U.S. That area that now encompasses roughly two-thirds of the U.S. population, nine of the ten largest cities, and the entirety of ten states. The law also gives Border Patrol authority to enter private lands within 25 miles of the border.
In practice, however, Border Patrol often goes even further into the interior. In 2008, Senator Patrick Leahy (D-Vt.) was stopped at a checkpoint 125 miles from the Canadian border, one of many examples of agents disregarding the geographic and legal limits on their authority. Many are also surprised to learn that Border Patrol operates checkpoints in northern states too, and that even more could be on the way: a recent ACLU Freedom of Information Act (FOIA) request revealed design plans for permanent Border Patrol checkpoints on southbound New England highways.
Lyall describes how the people of Arivaca have organized against the checkpoint:
These are people who have to go through this checkpoint on a daily basis—to go to work, to take kids to school, to get groceries. And every day they have to answer to an armed federal agent. And they don't know if they're going to be waved through, or if agents are going to say, "I want to search your trunk." They have the right to refuse a search—but they could find themselves detained while drug dogs tear apart their car. And that has happened—repeatedly. So they never know when they pull up to the checkpoint on a daily basis what they're going to get.
The first part of their campaign was to petition for the removal of the checkpoint: The petition was signed by over 200 people and 10 businesses—so about a third of the town, including most of the business owners in the town. Their congressman, Raúl Grijalva, wrote a letter in support of their petition. And Border Patrol wrote back saying we take your concerns seriously but buzz off—that's essentially what they said. Nothing about investigating the civil rights violations. Border Patrol has even refused to release stop data that would allow the community to assess whether this checkpoint is even needed.
So that was the first step. Their next step, Lyall says, was to initiate a checkpoint monitoring campaign, in light of all the abuses committed at that checkpoint:
They started monitoring the checkpoint on February 26th. About five or six checkpoint monitors in yellow vests, with video cameras and notebooks—as well as about two dozen supporters—went out to protest and monitor the checkpoint. Local media and the LA Times covered the event.
So they arrived at the checkpoint on foot, and set up near the secondary inspection area, where Border Patrol agents sometimes ask people to pull over to have their car searched. And they began to picket and to video record and document agents' interactions with motorists. Border Patrol agents approached them and told them they couldn't be there, giving a variety of vague and inconsistent reasons: that Border Patrol had a permit, that they had exclusive authority within this area. The Sheriff came and just asked them to go across the street, which they did. But shortly after the Sheriff left, Border Patrol said "you have to move 100 feet back that way or we're going to arrest you." So under threat of arrest they were forced to move quite a ways away from the checkpoint, behind a hastily constructed barricade, where they couldn't really see or record what was going on.
A few days later, they came back, and Border Patrol had set up "No Pedestrian" signs and more barriers and rope blocking the public right of way. Border Patrol is now claiming that this public roadway is their exclusive zone of authority and there are no pedestrians allowed. They also parked their vehicles right behind the barrier to further obstruct view of the photographers and protesters. On one occasion, they left a Border Patrol vehicle running for several hours, blowing exhaust in the faces of the monitors to try to make them go away. They also allowed Border Patrol supporters—but not the monitors—to set up inside the new "enforcement zone." That's a pretty good example of something called "viewpoint discrimination," and it's unconstitutional.
Border Patrol has no authority to come into this community and say "this is ours now and you have to stand 150 feet away behind our cars that are parked there so you can't see what we're doing to your neighbors." This is no different than any other police checkpoint, where courts have been very clear that law enforcement can't unreasonably restrict First Amendment rights of protesters and photographers, much less retaliate against people for exercising those rights. And courts have repeatedly said that a public roadside like this is "the archetype of a traditional public forum," where the government's ability to restrict speech for any reason is tightly curtailed.
So now, on top of all the abuses this community has had to face from Border Patrol, agents are violating residents' fundamental First Amendment free speech rights as well—the right to protest a checkpoint that has profoundly negative impacts on their daily lives, and the right to video record an agency that is known for routine rights abuses of residents. I don't think there could be any clearer demonstration of the Border Patrol's lack of public accountability and transparency: instead of addressing the rights violations and the community's concerns, they're literally barring the residents of Arivaca from seeing what these armed federal agents are doing to their friends, family, and neighbors—in their own community.
So the work the people in Arivaca are doing is an important precedent and it's important for the ACLU to support their efforts—especially now that the Border Patrol is piling on First Amendment abuses on top of the other civil rights and human rights violations that we and others have been documenting for years.
The residents of Arivaca are proving that the American spirit, alive since the Revolution, is not dead—that Americans still have it in them to rise up against occupying soldiers and abusive government authorities. They are fighting for their own rights —but they're also fighting for all of our rights.