As military leaders make the case for deepening military engagement in Syria and Iraq to Congress on Tuesday, more than two dozen groups are calling on lawmakers to seek answers to a number of questions about the mission that the Obama administration has so far failed to address.
“If the past decade of war in the Middle East has taught us anything, it’s that we must demand answers to hard questions before launching into war,” Anna Galland, executive director of MoveOn.org Civic Action, said in a statement. “That’s why, today, groups representing millions of Americans are calling on Congress to debate and be held accountable for America’s next steps in Syria and Iraq—so we don’t make the same mistakes we’ve made in the past.”
Congress has signaled it’s disinclined to have that debate by pushing any real consideration of military action until after the midterm elections. Though a number of lawmakers have called on the president to ask Congress for authorization, many are not looking for a chance to deliberate so much as to show off their hawk bona fides. Tuesday’s campaign, which includes phone calls to lawmakers, social media asks (using the hashtag #AmericaMustKnow) and petition signatures, is intended to point out the serious gaps and inconsistencies in the president’s strategy that Congress (and until recently, the media) have largely failed to take on.
“The public is told there’s no imminent threat to the US, so why are we rushing to war? Could weapons given to Syrian rebels eventually be used against the US?” reads an ad placed by MoveOn and Win Without War in Politico. “How could military force undermine nonmilitary strategies? How will we know when our objectives have been met? What is our clearly defined exit strategy? Under what legal authority are we intervening in Iraq and Syria?”
MoveOn collected more than 10,000 questions from its members. “How will the United States fund this new military offensive? How much will it cost?” asked a Vermont woman named Linda. According to an analysis by the National Priorities Project, one of the groups involved in Tuesday’s action, taxpayers are shelling out $312,500 every hour for military action against ISIS.
Others chimed in via Twitter:
— Angela K. Miller (@angelakkmiller) September 16, 2014
The organizations directing questions to lawmakers during Tuesday’s day of action include the Institute for Policy Studies, Iraq Veterans Against the War, Peace Action, and CREDO.
Last year, when President Obama declared his intention to take the United States off “perpetual war footing,” he identified a crucial mechanism for doing so: repealing the resolution that Congress passed in 2001 authorizing George W. Bush to use military force against those who “planned, authorized, committed or aided” in the September 11 attacks—namely, Al Qaeda.
“Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states,” Obama said during the speech, adding that his intention was to “refine and ultimately repeal the AUMF’s mandate.”
Now, as the president seeks to vastly expand the footprint of American military action in Iraq and Syria, he’s using that very same 2001 authorization as legal justification for skirting Congress. “I have the authority to address the threat of ISIL,” Obama declared on Wednesday evening in a speech laying out his plans for an indefinite military campaign against militants in Iraq and Syria. He said he would “welcome congressional support,” but indicated he wouldn’t wait for it.
“We believe he can rely on the 2001 AUMF for the airstrikes he is authorizing against ISIL,” senior administration officials said on a press call before the speech. The administration does believe it needs Congress to explicitly approve funding to train and equip Syrian rebels, which is part of the strategy Obama outlined on Wednesday.
The administration’s reliance on the AUMF isn’t just ironic. It’s also based on very tenuous logic. The White House argues the resolution covers a multi-country war on ISIL because the organization is “the true inheritor of Usama bin Laden’s legacy,” according to a statement from the administration, “notwithstanding the recent public split between [Al Qaeda]’s senior leadership and ISIL.”
Some legal scholars view this argument skeptically. Writing in Time, Harvard law professor and former Justice Department official Jack Goldsmith called it “unconvincing,” noting that “if this remarkably loose affiliation with Al Qaeda brings a terrorist organization under the 2001 law, then Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States.”
Members of Congress have also expressed doubt about the legal justification. “It is my view that the president possesses existing authorities to strike ISIL in the short term, but that a prolonged military campaign will require a congressionally-approved Authorization for Use of Military Force,” Senate Foreign Relations Committee Chairman Bob Menendez said in a statement. The campaign will most certainly be “prolonged,” as Obama stated clearly that the goal is to “ultimately destroy” ISIS, rather than simply contain it. There are a number of other lawmakers from both sides of the aisle calling on the president to seek authorization from Congress, as my colleague John Nichols reports—something the majority of Americans want, too.
The White House’s dismissal of the need for congressional approval is also in conflict with positions Obama himself expressed as a presidential candidate. “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Obama declared to The Boston Globe in 2008.
The situation in Iraq and Syria does not appear to meet that standard. Obama acknowledged on Wednesday that “[w]e have not yet detected specific plotting against our homeland.” Meanwhile, intelligence sources say that the threat from ISIS has been grossly exaggerated. “It’s hard to imagine a better indication of the ability of elected officials and TV talking heads to spin the public into a panic, with claims that the nation is honeycombed with sleeper cells, that operatives are streaming across the border into Texas or that the group will soon be spraying Ebola virus on mass transit systems—all on the basis of no corroborated information,” former State Department counterterrorism adviser Daniel Benjamin told The New York Times.
It’s worth noting that the legality of an extended cross-border campaign isn’t only a question of the separation of powers. As Eli Lake noted at The Daily Beast, the White House has not explained the basis for the strikes under international law.
While the administration’s current attempt to circumnavigate Congress is hypocritical as well as potentially illegal, it’s also consistent with the way Obama has exercised US military power before. As Spencer Ackerman notes, he’s extended drone strikes across the Middle East and North Africa; initiated a seven-month air campaign in Libya without congressional approval; prolonged the war in Afghanistan; and, in recent months, ordered more than 1,000 troops back into Iraq. Promises of no boots on the ground notwithstanding, Obama’s war footprint is large, and expanding.
Until Saturday, 14-year-old Elena Marquez was full of hope—hope for herself and her siblings and, she told me, for other kids whose parents are undocumented. Then she heard that President Obama had decided to delay taking executive action on immigration until after the midterm elections. “He said, yes, he will, and then he won’t,” said Marquez, who lives in Homestead, Florida, and is a US citizen. “Why can’t the president make one choice?”
Marquez’s father was deported to Guatemala two years ago. She’s concerned about her mother—not just that she’ll be deported but also about the daily toll of living without papers. “My mom doesn’t have a doctor or a dentist or nothing, but we do. And to me that’s not fair. She doesn’t have the rights that we have,” she said.
The delay means that authorities will continue to deport unauthorized immigrants, perhaps as many as 60,000 between now and the November elections. Communities will continue to be subject to aggressive enforcement tactics, like the stop-and-frisk-style raids in New Orleans that I recently wrote about.
The delay also forces Latino and immigrant rights groups to recalibrate their political strategy. “There was a sense that we could get the executive order out of the way so we could focus in a really strong way on the election and getting Latinos out to the polls,” said Arturo Carmona, executive director of Presente.org. “This only forces us to continue to hold the president and Democrats accountable to a major constituency that has proven loyal but is certainly not locked in stone.”
Democrats have tried to keep the focus on House Republicans’ refusal to vote on comprehensive immigration reform legislation. But Tania Unzueta, an organizer with the National Day Laborers Organizing Network, said that message isn’t resonating with the community now. “Our focus is going to be on making sure administrative relief happens. Right now, folks who can put that pressure on the president—that’s the Democrats.”
Activists are discussing a variety of strategies to respond to the delay, including work stoppages, national demonstrations and turning up the pressure on Democratic candidates in key districts. At least one group, Puente Arizona, has called for a boycott of the vote. “We cannot support a party that is destroying our families,” the organization’s director, Carlos Garcia, said in a statement.
“Frankly, I’m not surprised,” said Carmona, although he noted that his organization would continue to encourage civic participation. “There are some legitimate voices and groups saying, ‘This has gotten out of control and we should not participate.’”
Some organizers think the delay will impact Latino participation even if calls for a formal boycott never get traction. “People aren’t calling for a boycott out of nowhere,” said Unzueta, who is undocumented herself. “It’s something we’ve been hearing that is already happening in immigrant communities—maybe not as an organized campaign, but people don’t want to go out to vote. They don’t care this time around.”
That might not matter to Democrats this year. The crucial Senate races are in states where Hispanic voters make up a small share of the electorate—with the exception of Colorado—where strategists think women’s economic issues are key, and where unilateral action might have given the GOP the fire it needed to light up the base.
But the Hispanic vote will be critical for Democrats in 2016. There’s little chance the delay will drive that block into the arms of the GOP, since Republicans have backed themselves into a hardline corner on immigration. But what happens if, after years of broken promises and record numbers of deportations, Latinos just stop voting?
Some pundits have suggested that the delay could actually be a win for immigrants in the end, because the president will be freer, in political if not legal terms, to issue a broad order after the election. Such speculation is cold comfort for people wondering if they’ll be among those who will be deported between now and the midterms. And there’s no guarantee Obama will ever issue the executive orders, particularly with control of the Senate uncertain; clearly, his plans to do so are vulnerable to shifts in the political winds.
“At this point the president has lost so much credibility with the immigrant and the Latino community,” Carmona said. “We don’t buy it at all.”
Meanwhile, the Beltway obsession with the optics and the politics of executive action—and now its delay—has gone a long way to erase the human implications. “When we talk about pressuring Democrats, it is very much about the faces of the people who I know have a final deportation date before November,” Unzueta told me. “Sometimes it feels like there’s a disconnect between those of us who see those faces every day and hear their stories, and people who see this as a political game.”
Elena Marquez made those costs clear when she spoke about her father at a press conference on Wednesday, even when she was too choked up to talk. “He was an honest man,” she managed to say. She stood back, letting other children who’d come from Florida to share stories about parents who’d been deported take their turn at the podium. For a long while the tears continued to slide down her chin and fall to the floor.
Congress returns to Washington this week, one month since the shooting of Michael Brown and the ensuing police crackdown on protesters in Ferguson, Missouri. Right away, lawmakers will address one of the many civil-rights issues highlighted by the tragedy: the militarization of local police.
Senator Claire McCaskill will lead a hearing on Tuesday before a Homeland Security and Governmental Affairs subcommittee to examine how police are using the military equipment they get from the federal government, what equipment is really necessary, and gaps in oversight and training.
The hearing will focus on the Pentagon’s 1033 program, which has provided $4.3 billion in surplus military equipment to local police around the country since 1997, as well as grant programs run by the Department of Justice and the Department of Homeland Security. According to the Center for Investigative Reporting, the grants have enabled local law enforcement to purchase $34 billion in weaponry since the September 11, 2001, attacks.
How Police Became Soldiers, a new short film from Brave New Films, explains in more detail how small-town cops ended up with grenade launchers, assault rifles and armored vehicles.
Scheduled witnesses for Tuesday’s hearing include officials from the Pentagon, the Department of Justice and the Federal Emergency Management Agency; representatives from the NAACP, the Police Foundation and the National Tactical Officers Association; a professor of justice studies; and a photographer for The St. Louis American who witnessed the police response in Ferguson.
The road from the hearing to legislative action will be a long one, particularly with the midterm election consuming many lawmakers’ schedules and attention. The Hill reports that Republican Senator Rand Paul is considering introducing legislation in the Senate. In the House, Representative Hank Johnson is planning to introduce a bill later this month that would ban the transfer of specific weapons—including grenade launchers and some armored vehicles—through the 1033 program and enforce stricter reporting requirements.
If such legislation were to pass, it would mean that events in Ferguson provoked a real shift in the mindset of lawmakers from both parties. In June the House rejected a similar proposal introduced as an amendment to the defense spending bill by a resounding 355-62.
Even in the Democrat-controlled Senate, the prospects for an overhaul of the weapons transfer program are slim. In an August interview, Senate majority leader Harry Reid said that he thought it should be continued, although with greater oversight. “We have police departments all over the country, including those in Nevada, who are desperate for more resources. And the mere fact that you have the equipment doesn’t mean that you have to use it,” Reid said.
The campaign to lift the veil on secret corporate campaign donations hit a milestone on Thursday. More than 1 million comments have been submitted to the US Securities and Exchange Commission calling for a requirement that corporations disclose political spending to their shareholders—ten times more than for any other rule-making petition to the SEC, according to the Corporate Reform Coalition.
“Investors want to know how their money is being spent,” Tim Smith, director of shareholder engagement at the firm Walden Asset Management, said at a press conference outside the SEC in Washington. A sign over his right shoulder read, “Your money is being invested in secret. Why is the SEC doing nothing?”
Campaign finance reformers have long been pushing for the rule, which the SEC was slated to consider in 2013. But Mary Jo White, who took over as head of the agency that year, removed the proposal from the SEC’s agenda. The agency claims to be swamped with other regulations related to the 2010 Dodd-Frank Wall Street Reform Act and other legislation. But shelving the corporate disclosure rule was a win for business groups like the Chamber of Commerce and Republicans, who’d strongly opposed it.
“At a minimum, the SEC should closely consider a rule like this—rather than turning its back on investors’ interests because of Republican objections,” said Robert Jackson, a Columbia University law professor who was one of the initial petitioners for the rule in 2011. “The SEC is an independent agency. They are charged with protecting investors, not politicians.”
The agency is expected to issue a new regulatory agenda this fall. Supporters of the disclosure rule hope the SEC will revisit it in light of what they called “unprecedented” public support.
The point of requiring corporations to disclose their political donations is twofold. First, it’s intended to protect investors, which is the SEC’s responsibility. Shareholders “understand that they have a right to know if the company they invest in is spending money on controversial political causes,” said Lisa Gilbert, the director of Public Citizen’s Congress Watch Project.
Secondly, reformers hope that disclosure will help stanch the flow of secret money in elections, which has increased dramatically since the Supreme Court’s ruling in Citizens United. A critical assumption in the majority’s ruling was that “prompt disclosure of expenditures” would allow shareholders to “determine whether their corporation’s political speech advances the corporation’s interest in making profits.” But without a mechanism to ensure that companies are truly transparent about their political spending, the Court’s faith in “the procedures of corporate democracy” is just wishful thinking.
Even without much transparency there are still examples that illustrate how a company’s political spending can run counter to its shareholders’ best interests. In 2010, Target caused an uproar by donating $150,000 to an anti-gay gubernatorial candidate in Minneapolis. In the following days, its shares declined by more than 3 percent, while those of its competitors rose.
The renewed push for transparency in corporate political spending comes at an appropriate time: according to a Huffington Post analysis, dark-money groups have already spent $142 million on candidate ads in the past twenty months. Unlike Super PACs, these “social welfare” or 501(c)(4) nonprofits are not required to disclose their donors. And unlike labor unions, corporations in most states are not required to report the money they spend in elections. The result is that in many cases shareholders and the public have no way to know which corporations are donating, to whom and how much.
“This rule is squarely within the authority and the responsibility of SEC,” said Demos counsel Liz Kennedy, pushing back on a claim made by the rule’s opponents, who argue that campaign finance regulations are solely the provenance of the Federal Elections Commission. “They have clear statutory authority to regulate in the protection of not just investors but also in the public interest, as well as to require the kind of corporate disclosure that shareholders would need to make informed decisions.”
Fifteen senators, including Elizabeth Warren and Robert Menendez, along with seventy members of the House of Representatives, contributed to the 1 million comments.
Read Next: Zoë Carpenter analyzes Marco Rubio’s speech at the secret Koch brothers billionaire summit.
On the last night of the Koch brothers’ secretive donor retreat in June, wealthy conservatives sat down to the “Immigrant Experience” dinner, as it was dubbed internally. Usually Charles Koch delivers “the final battle cry,” a Koch operative told the audience. But this year the closing speech was given by a special guest: Marco Rubio, the Republican senator from Florida and prospective 2016 presidential candidate.
An audio recording of the event, obtained by The Undercurrent and reported exclusively here, reveals that what Rubio offered was less a battle cry than a safe homage to the American Dream, laced with anecdotes of ordinary people being crushed by big government: the person “trying to start a business out of the spare bedroom,” who can’t afford to “hire all the lawyers and lobbyists in Washington” to help him skirt regulations; the single mother who can’t afford a professional degree because Democrats keep “pouring money into a broken and stagnant higher education cartel.”
Rubio said little to surprise or offend. (A full transcript is here.) Still, the event illustrated the close relationship between the senator and the Koch brothers, who gave more money to Rubio in 2010 than to any other candidate for national office outside of their home state, Kansas. Americans for Prosperity, the Koch-backed Super PAC, was one of the groups that gave Rubio cover from the political blowback that followed his endorsement of the Senate’s immigration reform bill. In turn, Rubio has supported the Kochs’ agenda by spreading skepticism about climate change science and by advocating for other antiregulatory policies that would boost the Kochs’ bottom line. He is one of only five senators who have earned a perfect score for their voting record from AFP.
As the billionaires dined, Rubio served up the right’s favored explanation for poverty. “I know for a fact, and so do you, that perhaps the leading cause of poverty in America today is the breakdown of communities and American families,” he said. He complained that the tax code “punished family life” and condemned safety net programs “that punish people and keep them from getting married”—presumably a reference to tax penalties incurred by some married couples.
“We need to help families with the cost of living, and that means healthcare,” he said vaguely, before immediately moving on to a curt dismissal of the Affordable Care Act: “I’m not going to spend a lot of time preaching to this choir about Obamacare.”
Rubio critiqued his own party lightly for its public relations strategy:
The problem we’ve had on the right for too long is we have not shown people how our principles of limited government and free enterprise apply to the challenges of the 21st century. And so why I’m so proud to endorse candidates like Cory Gardner [who is running the Senate in Colorado], and Joni Ernst [Iowa], and Tom Cotton [Arkansas], is because they fully understand the need that our country has to restore this agenda…. perhaps more than anything else that I think we have failed to do is to convince people that big government doesn’t hurt the people who have made it.
Rubio didn’t articulate many specific policy points, but he did highlight his education reform agenda, which includes a school vouchers and changes that, purportedly, would make higher education more “accessible”:
There’s all sorts of ways to learn in the 21st century—masters online courses, community colleges. You should be able to get credit for life experience and work experience. You should be able to package all these things into the equivalent of a degree, but we can’t because only accredited colleges can give degrees. And guess who accredits colleges? The accredited colleges…who don’t want any competition from anyone else.
Lawmakers on both sides of the aisle have called for an overhaul of the way that the United States accredits postsecondary schools. But proposals advanced by Rubio and other Republicans would allow states to gut quality controls for higher education—which aren’t very strong to begin with, as the rise of predatory for-profit colleges illustrates.
That would be a win for people seeking to extend corporate influence via academia—namely, the Koch brothers, who have funded a variety of efforts to place libertarian ideology in high school and college curriculum. Spreading the free market gospel would be much easier, and cheaper, for the Kochs if they could simply offer their own accredited courses—which students could pay for with federal loans—instead of having to endow faculty positions at traditional universities. (This isn’t that far-fetched: in 2013, the Florida legislature opened the door for the state’s universities to award credit for courses developed, taught, and graded by corporations.)
Rubio also attacked the president’s directive to the EPA to regulate greenhouse gases from power plants. “I promise you, though, what this president just did by executive order is going to raise her electric bill,” Rubio said, referring to a Florida woman named Christine whose “utility is very coal dependent.” While there’s plenty of debate about how the rule will affect consumers, aggressive carbon regulation certainly would hurt the Kochs, whose empire is built on a carbon footprint that is by one estimate 100 million tons a year.
Ironically, one thing Rubio said nothing about during “The Immigrant Experience” was immigration reform. Rubio was introduced by César Grajales, the South Florida field director for the LIBRE initiative, a Koch-funded campaign to attract Latino voters to the GOP. Rubio’s former campaign manager, Jose Mallea, is the group’s national strategic director. LIBRE reaches out to Latinos by offering social services, such as free tax preparation, health checkups and a GED course. But the effort is really focused on selling conservative ideology—or, as Grajales put it in his introduction, giving Hispanics “access to the truth.”
LIBRE appears to believe that Hispanics need “truth” more than healthcare or relief from a broken immigration system. Instead of pressing Republicans for comprehensive immigration reform, which LIBRE claims to support, the group has spent millions on ads attacking Obamacare supporters. Meanwhile, Latinos are more likely to be uninsured than any other group in the US, and they’ve lagged behind others in enrollment in the new insurance exchanges.
Charles Koch wrapped up the evening by thanking “Marco” for “all he’s doing to try to preserve and enhance our free society.” He spoke about the need to build a movement “of people who will act or are dedicated to act, who don’t just give lip service, but are willing to dedicate themselves to our free society, and to making it better and better, whatever the cost to them personally.”
He went on,
And this is absolutely critical because to me what’s going to determine the future of this country is the balance of people who are willing to act to affect the future of this country. And if the majority of those people are collectivists, we are doomed. So we have to be much more aggressive in identifying, recruiting, educating, and mobilizing those people who will be willing to act on behalf of our free society.
Read Next: Lauren Windsor on the Koch brothers’ secret billionaire summit
Immigrants and allies rallied in more than a dozen US cities on Thursday to ask President Obama to use his executive authority broadly to stop deportations of undocumented workers and their families.
Hundreds gathered outside the headquarters of the Department of Homeland Security in Washington, DC, and marched across the National Mall to mark what they called the National Day to Fight for Families. As some 150 protesters prepared to be arrested in front of the White House, they laid red carnations over photos of loved ones who’d been deported.
Ten-year-old Amy hasn’t seen her father since he was sent back to Guatemala three years ago. She’s a US citizen, but neither her mother Sabina nor any of her other adult relatives in the US are authorized. It makes her feel sad, Amy told me, and lonely.
“We want the president to recognize that we’re here,” Sabina said.
Missael Garcia, 24, has been living in the United States since he was 12. His two younger brothers and a sister are protected from deportation by the Deferred Action for Childhood Arrivals program (DACA), which President Obama announced in 2012. DACA allows some immigrants who were brought to the US as children to stay in the country temporarily and work, but Garcia isn’t one of the lucky ones who qualifies. He said he came to the rally to fight for himself and his parents, and for all of the 11 million people who are estimated to be living in the US without papers.
‘”The president has sent the message that he’s taking this issue into his own hands,” Garcia said. “We support him and we pressure him because we’re trying to get him to motivate himself to act immediately, and expand the DACA program for our parents.”
Obama is expected to announce changes to immigration enforcement policy sometime after Labor Day. There’s plenty of speculation about what he’ll do—the idea that’s gotten most of the attention is expanding DACA to include new categories of people, like parents of US citizens—and, within the immigrant-rights community, anxiety about whether the impact of his actions will be as big as the hype.
The Fair Immigration Reform Movement (FIRM), the coalition of organizations that led Thursday’s events, is calling on the president to use his executive powers broadly to keep families together, and to offer stronger protections to children crossing the US-Mexico border after fleeing violence in Central America. FIRM staff said the group arrest at the White House was the largest act of civil disobedience ever undertaken by immigration rights advocates.
Garcia said he’s been advocating for immigration reform throughout Obama’s time in office. (He’s on the board of Casa de Maryland, one of the groups participating in the Fight for Families.) He credits the activism of young immigrants known as Dreamers for giving the immigrant rights movement political clout. “They came out of the shadows saying, ‘I’m undocumented and unafraid,’ so I think that pushed the rest and motivated the rest of the community to step up and let their voice be heard.” He continued, “fighting for this cause has a risk, but living in the fear of being deported isn’t really going to help you.”
“There’s many other people that do illegal things and they don’t need to be punished all their lives,” said a man in a cowboy hat and an American flag shirt who identified himself only as Stephen. He stood at the edge of the crowd, holding a sign that read, “Immigration reform is obstructed by racism in America.”
“It’s a mix of hate for us,” he said about opposition to immigration reform. “I know what it is to be Latino in the US.”
Read Next: Zoë Carpenter covers the ‘Voluntary Departure’ process
Ana Maria Dueñas was waiting for a bus in El Cajon, California, on an April day in 2011 when a Border Patrol agent approached her and asked for her papers. Dueñas had lived in the United States for more than three decades; her five children are US citizens, as well as her six grandchildren. But Dueñas herself didn’t have papers, and so she was taken to a nearby Border Patrol station and instructed to sign a form that read, “I give up my right to a hearing before the Immigration Court. I wish to return to my country as soon as arrangements can be made to effect my departure.”
According to a class action lawsuit filed in 2013 by the American Civil Liberties Union, Dueñas was one of potentially thousands of immigrants who were pressured into expediting their own expulsion by signing Voluntary Departure forms, without being properly informed of the consequences, or of other options. Dueñas alleges that she was told, incorrectly, that she had no chance of obtaining legal status through an immigration judge; that she was threatened with a minimum of two months in detention if she did not sign the form; and that she was not told that once she agreed to leave the United States and her family, she would be barred from returning for ten years. Shortly after being taken into custody she was removed to Tijuana, Mexico, where she’s lived ever since.
Now, Dueñas may have a chance to return. On Tuesday, the ACLU of San Diego and Imperial Counties announced an “historic” settlement with the federal government, which has agreed to reform the voluntary departure process, and to allow the plaintiffs to reenter the country and seek legal status. A federal court still must approve the class portion of the settlement, which would let other people who waived their due process rights return to plead their case. Hundreds of thousands of people were removed to Mexico “voluntarily” over the period covered by the lawsuit, according to the ACLU, meaning that even if only a small fraction are ultimately included in the class, the settlement could reunite a significant number of families.
“We’re very pleased that we were able to reach what we feel is such a favorable settlement,” said Sean Riordan, senior staff attorney for the ACLU of San Diego & Imperial Counties. “It shows that the government can provide better due process protections to people who are subject to immigration enforcement.”
The settlement won’t end voluntary departure, which for many people carries fewer legal penalties than an order of deportation. But the government will have to reform the process. Border Patrol agents will be required to give detailed information about the consequences of waiving the right to an immigration hearing, and to give immigrants considering voluntary departure access to telephones so they can consult lawyers, relatives, and foreign consulates, and reach a newly created hotline with information about the process. Previously, immigrants in short-term custody were not always given time to make calls, Riordan said. As a result even some immigrants who had attorneys were unable to contact them, and agreed to voluntary departure when it was against their interest.
For other people, “voluntary departure could be their best option, sadly, under our broken immigration system,” said Riordan. “What we’ve been able to achieve through this settlement is enacting a number of protections that make treatment in short-term custody more fair.”
The government has also agreed to allow the ACLU to monitor its compliance with the terms of the settlement. “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,” staff attorneys Mitra Ebadolahi and Gabriela Rivera wrote in a statement.
The settlement has particular resonance given the Obama administration’s efforts to speed up deportation proceedings for the record numbers of unaccompanied children who’ve crossed the border in recent months. Many of the children are appearing in court without lawyers, raising questions about due process. “A lot of the problems in the child migrant crisis have to do with fairness of processing,” Riordan said. “If those values of fairness [affirmed by the settlement] are translated into the unaccompanied minors context, hopefully that would mean better decision-making and better protecting of human rights.”
Read Next: Karen Houppert reports on the thousands of children braving Immigration Courts alone.
Police officer Daniel Holtzclaw worked the evening shift, from four in the afternoon until two in the morning, patrolling the northeastern part of Oklahoma City. Between February and June he allegedly sexually assaulted at least seven women while on duty, including a 57-year-old grandmother who says she was forced to give Holtzclaw oral sex after he pulled her over. According to police chief Bill Citty, Holtzclaw coerced the women, all of whom were black, into sexual acts by threatening to arrest them.
“They’ve pretty much got power in the palm of their hand. And it’s your word against theirs,” one resident of the neighborhood Holtzclaw patrolled told a reporter. Another said that rumors of the assaults had been circulating for weeks.
News of Holtzclaw’s arrest last Thursday was overshadowed by the police brutality occurring in Ferguson, Missouri. The killing of Michael Brown, an unarmed black teenager, and the crackdown on people protesting his death highlighted endemic problems of racial profiling, brutality and militarization within American law enforcement. Several writers pointed out after Brown’s death that women of color are often left out of these stories of police violence. Sometimes that violence is lethal. In many other cases it’s sexual in nature.
“It’s a huge problem,” said Philip Stinson, a professor at Bowling Green State University and the principle investigator for a Department of Justice–funded research project on police integrity, about sexual assault by police officers. “There are many opportunities for someone, if they were a predator, to engage in crimes of sexual violence that they wouldn’t otherwise be able to do because of the power and authority they have [as a police officer].”
It’s hard to tell exactly how big the problem is, because few people are collecting data. Researchers have to rely on arrest reports and press accounts, which leave out unreported or unprosecuted cases. But even that limited evidence suggests sexual assault is a significant issue in police forces, as The American Prospect and Truthout have reported. According to the Cato Institute, more than 9 percent of reports of police misconduct in 2010 involved sexual abuse, making it the second-most reported form of misconduct, after the use of excessive force. Comparing that data to FBI crime statistics indicates that “sexual assault rates are significantly higher for police when compared to the general population.”
Many cops arrested for sexual misconduct are, like Holtzclaw, repeat offenders. Stinson said that multiple victims of the accused often come forward once a case against an officer is publicized. Others never report the crimes against them, making justice elusive. “Sexual assault is one of the most underreported crimes, and against police officers it’s probably even less reported,” said Jen Marsh of the Rape, Abuse and Incest National Network. In Oklahoma City, several of Holtzclaw’s victims were only identified once investigators began tracing his contact with the public while on street patrol.
As Samuel Walker wrote in his 2002 report “Driving While Female,” officers who commit sexual crimes are often considered “rogue,” in contrast to officers who engage in department-sanctioned forms of racial profiling like stop and frisk. But the Department of Justice was sufficiently concerned about “recurring accusations of sexual offenses implicating law enforcement officers,” that it underwrote an executive guide with policy recommendations for stamping out sexual misconduct in police forces. Though the guide was completed in 2011, it’s not clear if it actually led to changes within individual police forces. The International Association of Police Chiefs, which created the guide, did not return a request for comment. Last year the director of IACP’s research center told The American Prospect, “We think there’s a good-faith effort by police departments out there to be more accountable,” but offered no supporting evidence.
Meanwhile, sexual misconduct is a persistent problem in some police departments. The Federal Bureau of Investigation is examining a variety of allegations against officers from the San Diego Police Department, many of them having to do with sexual abuse. One officer is accused of coercing sexual favors from women he’d stopped for driving while intoxicated. Several women accused another officer of groping them while conducting pat downs.
According to U-T San Diego, many of the alleged victims of San Diego police officers were sex workers, homeless, intoxicated, mentally ill or had criminal records. On a national scale, the lack of data makes it hard to track the demographics of victims of sexual misconduct by police. Stinson’s research suggests that about half are under the age of eighteen. According to a 2007 report prepared for the United Nations Committee on the Elimination of Racial Discrimination, “rape and sexual abuse by police [in the United States] are primarily reported by women of color.”
“What we’ve seen in sexual assaults committed by law enforcement is that they’re targeting victims seen as vulnerable or ‘less credible,’ whether they’re engaged in sex work or are committing a crime. A police officer uses that as a way to control the victim,” said Marsh.
Better data collection would be a small start to tackling the problem. Another would be to mandate that states share information about cops who’ve been fired or resigned after allegations of sexual misconduct. There’s even a database set up for it: the National Decertification Index, which lists officers who’ve lost their certification. But contributions are voluntary and with only thirty-seven states participating, it’s a leaky sieve.
One legislative reform that’s been proposed is extending the 2003 Prison Rape Elimination Act, which requires prisons and jails receiving federal money to enforce a “zero tolerance” policy towards sexual violence by staff, to apply to anyone who is stopped or detained by law enforcement. Stinson said that requiring police officers to change partners and supervisors between their shifts could help, as could the use of body cameras, although he cautioned that there were still important privacy concerns to consider regarding the use of recording equipment. Other advocates point to the small proportion of female cops as a problem; according to the International Association of Police Chiefs, less than 14 percent of police are women.
More challenging, but just as necessary, are changes in the way that law enforcement works in communities of color, with sex workers, and others at risk of police violence. It will be difficult to encourage more women to report cops who commit sexual crimes if the victims don’t have reason to believe that their assailants are truly “rogue” actors, and that other members of the department will take their complaints seriously. “Who are they going to call?” Penny Harrington, the former chief of the Portland, Oregon police and founder of the National Center for Women and Policing, has asked. “It’s the police who are abusing them.”
Read Next: Soraya Chemaly asks, “How Did the FBI Miss Over 1 Million Rapes?”
Sometime in the next month President Obama is expected to announce changes to immigration enforcement policies, potentially relieving the fear of deportation for millions of undocumented immigrants. Specifics aren’t clear, but press reports and immigrant rights advocates close to the discussions indicate that reforms on the table include widening the group of people temporarily allowed to remain and work in the United States; carve-outs for tech and agricultural interests; and changes to the way immigration authorities enforce the law in the field.
Just the prospect of a unilateral move has triggered accusations of tyranny from the right, though even conservatives are beginning to acknowledge that legal constraints on the president are not clear cut. Already, the executive actions are a major political event. But undocumented immigrants and their advocates are increasingly concerned that the practical impact of Obama’s orders will be far more limited than the hype suggests—and they’re trying to raise the bar for what bold action really means.
Arturo Carmona, executive director of the social justice group Presente.org, said his organization was prepared to reject the option reported to be at the top of the list of reforms the White House is considering because it is not inclusive enough. That proposal is an expansion of the Deferred Action for Childhood Arrivals program (DACA), which allows some immigrants brought to the United States as children to stay and work, to include their parents and those of US citizens. Such an extension would likely cover four to five million people at most—a number that Carmona called “a non-starter.”
“This proposal promises more deportations, more families being separated,” he told me. “This is not what we’ve been working so hard for.”
Marisa Franco, an organizer with the National Day Laborer Organizing Network, said that expanding DACA for such a select group of people was “bottom-shelf stuff,” adding, “The president can and should do more.”
On Wednesday, eleven undocumented immigrants launched a campaign to encourage Obama to consider extending relief broadly, “to all individuals who are integral members of our evolving American community,” as they wrote in a letter to the director of Homeland Security. The eleven, who asked that their own deportations be deferred, represent a range of circumstances. “Our families need urgent relief now, and here’s the key question—just how inclusive and humane will President Obama’s executive action be?” the activist Jose Antonio Vargas, who is one of the eleven, said at the National Press Club in Washington. “Who will be left out, and why?”
Kamal Essaheb of the National Immigration Law Center, one of the groups coordinating the “1 in 11 million” campaign, said that deferred action and work permits should be available to anyone who can demonstrate strong ties to the US. “Their US citizen family members, their length of time in the US, whether they’ve contributed to the US economy somehow, whether they work in a critical industry, whether they’ve created jobs—all of those things should be weighed in before we decide to expel somebody from the community,” he said. “We don’t want to get it half right. If we’re going to try to insert justice back into the immigration system, lets go all the way and develop policies that are consistent with our values.”
It’s hard to estimate how many people might receive relief under that subjective policy, but other immigrant rights groups have pointed to the estimated 8 million people who would be protected from deportation under the comprehensive reform bill that passed the Senate last year as a concrete minimum. That ask has been backed up by the Congressional Hispanic Caucus and several top Democrats including Chuck Schumer, Dick Durbin, and Nancy Pelosi. “It would be my hope that the president’s lawyers would advise him on the broadest possible prosecutorial discretion,” Pelosi said in an interview with Univision earlier in August.
But Carmona is troubled that Democrats who’ve called for bold executive action in the past have lately been quiet. He complained that he’s “not seeing messages from the left” to raise expectations, which Obama has warned activists they need to “right-size.” Carmona isn’t not the only one concerned. Last week, a coalition of thirty groups cautioned Democrats not to throw immigrants under the bus in the hopes that doing so will help them keep the Senate.
“To be clear, any attempts by our ‘allies’ in Congress to delay or dilute administrative reforms will be viewed as a betrayal of Latino and immigrant communities with serious and lasting consequences,” the coalition wrote in a letter obtained by Politico. “Inaction and delay in the name of perceived political expediency would be both morally outrageous and politically disastrous. We will not forgive and we will not forget those who stand in the way of the relief our families so desperately need.”
As advocates press for expansive administrative relief, they’re also concerned about what the situation will be like for people who are ultimately excluded. As troubling as the record number of people removed from the country during Obama’s tenure are the ways in which they’ve been caught up in the deportation machine—by an agency with poor oversight that has used racial profiling and partnerships with local police to net as many deportable immigrants as funding allows. Whether the administration will do anything to make sure immigration agents in the field actually exercise discretion is a key question.
A more specific priority for immigrant rights groups is ending Secure Communities, a data-sharing program that entangles local police with federal immigration authorities and has failed to achieve its goal of increasing removals of noncitizens who’ve committed serious crimes. “We don’t think you can reform a failed program,” Franco said.
The idea that bold executive action will hurt Democrats has currency within the Beltway. But it’s also possible that an administrative move that’s perceived as weak will sever the threads tying Latino voters to Democrats, threads that have frayed over several years as the administration deported record numbers of immigrants. “The president has zero credibility with the immigrant rights movement,” Carmona said. Alice Ollstein has a great report over at ThinkProgress of how frustration with the slow pace of reform is coming back to haunt Democratic lawmakers, despite their attempts to blame Republicans for inaction. Franco told me that activists are already starting to talk about “dramatic escalation” in the event that the White House delays or significantly dilutes the executive orders, including work stoppages, and said that voting could be called into question.
Essaheb of the National Immigration Law Center took a more guarded tone. “We’re cautiously optimistic,” he said. “This administration’s record on immigration has not been great. We think the president has an opportunity to turn that around in the coming weeks.”