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The People vs. Michael Chertoff | The Nation

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The People vs. Michael Chertoff

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Office of Homeland Security, Mexico, Texas The People vs. Michael Chertoff Brett Story To build a fence on the US border with Mexico, the Department of Homeland Security seized land without trials or negotiations.

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Brett Story
Brett Story is a freelance journalist and independent documentary filmmaker based out of Montreal, and a 2008 spring...

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The famed prosecutor wants to see the President tried for murder in an American courtroom.

The circumstances were different the last time the federal government visited Dr. Eloise Tamez's family property in the Lower Rio Grande region of South Texas. It was 1936 and her grandparents, descendents of the Lipan Apache with ties to the land going back centuries, were poorly educated and spoke no English--little match for a state government on a mission to build flood levees. "The government took half our land and then left whole families on the south side," says Tamez angrily.

The latest threat to Tamez's land comes in the form of a proposed eighteen-foot steel and concrete wall, to be built through her property as part of the controversial US-Mexico border fence. Determined to fight the seizure, the 72-year-old Apache elder launched a class action lawsuit against the Department of Homeland Security and Secretary Michael Chertoff. Last week, a federal judge ruled in favor of Tamez and her co-defendants, agreeing that Chertoff violated federal law in his rush to build several hundred miles of border wall along the Texas-Mexico border.

The Secure Fence Act of 2006 charged DHS with building 700 miles of double-layer fencing along the US-Mexico border, with at least half to be completed by the end of the 2008. Secretary Chertoff invoked eminent domain powers to seize land along the wall's path, and last August announced that property owners in southern Texas would be served waivers requesting unimpeded access to their land. Those refusing to sign, he declared, would be sued.

Over the past two months the Justice Department filed more than fifty condemnation lawsuits against resisting property owners, among them the city of Eagle Pass and the University of Texas at Brownsville campus. Most, however, were subsistence farmers and small landholders whose vulnerability and limited resources made them easy targets.

Just two miles down the road from Tamez's property sits the River Bend Resort and golf course, a popular luxury retreat that, as The Texas Observer reported recently, has yet to be asked to "volunteer" any of its landholdings. River Bend is not the only place where the spotty route seems to accommodate wealthy landowners with political connections. In the small town of Granjeno, the wall's proposed path stops abruptly at the property of billionaire oilman Ray L. Hunt, a friend of the President who recently donated $35 million to Bush's presidential library. "How do you justify this to people as being about public safety when you leave these big gaps?" asks Tamez.

Eminent domain, the legal rationale DHS has offered for expropriating border land, is a controversial power that allows the state to seize a citizen's property in the name of public utility. The government defended the wall as a necessary bulwark against the twin threats of illegal immigration and terrorism, and Chertoff employed the Declaration of Taking Act, an unusual and expedited condemnation process that denies citizens access to a full trial. Compounded by intimidation tactics that include repeated visits by uniformed Border Patrol agents and US army personnel, landowners have found themselves, until now, relatively powerless.

Although eminent domain grants the government wide latitude and is notoriously difficult to contest, Tamez and seven other Cameron County landowners charged Chertoff and DHS with misuse of power. Represented by Peter Schey of the Los Angeles-based Center for Human Rights and Constitutional Law, they argued that Chertoff had failed to follow requisite due process and violated federal law that prohibits the expedited condemnation process.

"The law specifically provides that the secretary should explain to property owners what interest he seeks in their property and attempt to arrive at a 'fixed price' for that interest," explains Schey. "And then he may only proceed with normal condemnation proceedings in which a person is entitled to a full due-process trial."

In a thirty-two-page ruling, federal judge Andrew Hanen agreed--partially. While affirming the right of landowners to negotiate over terms and compensation in land seizures, the court also ruled that DHS can move to condemn the land if the parties are unable to negotiate a fixed price.

At the very least, Tamez's lawsuit has succeeded in delaying DHS's sprint to finish a significant portion of the wall by the end of the Bush presidency. In the meantime, it has provided traction for a growing resistance movement on the border, with an eclectic coalition of ranchers, wildlife protectors, civic leaders, local families and migrant justice activists rallying to the cause. On the UT-Brownsville campus, a group called Students for Peace and Change is joining the fight against border militarization, and has allied with others to organize a 126-mile, nine-day walk to protest the wall and raise awareness of their rights among landowners and residents. "The wall is a complete waste of taxpayers' money," says student activist Ryan Tabuer. "There is no imminent threat that 'terrorists' are going to cross."

Last week's ruling vindicated claims that DHS is riding roughshod over the rights of local residents, and provided some legal footing to those whose land is threatened by the wall's incursion. As Julio Noboa, assistant professor and faculty sponsor of Students for Peace and Change, points out, "When you alienate enough people, you push their hand." Dr. Tamez agrees, and has vowed to continue fighting a project she believes will destroy the culture and economy of border communities.

"The government is putting pen to paper and destroying lives," Tamez argues. "We applaud when walls are torn down in other parts of the world, and here we are putting one up--undemocratically."

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