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News and Features
I saw a puzzling banner on the door of a restaurant the other day. It
was a flag flanked by two aphorisms: God bless America and America bless
Admiral James Loy, the nation's top aviation security official, confirmed at an August 22 press conference what thousands of immigrant airport screeners have dreaded for nearly a year. Loy promised that the Transportation Security Administration would without question meet the Congressionally mandated deadline to replace America's 30,000-member screener force with government-trained federal employees.
For Loy to accomplish this task, the TSA must remove an estimated 8,000 immigrant screeners from security checkpoints by November 19 because they fail to meet the new citizenship requirement. "The law of the land is the law of the land," Loy replied, when asked how the TSA justifies the impending shakeout at a time when the agency is scrambling to train and place an additional 16,000 employees at airports nationwide over the next eleven weeks.
Indeed, Loy is merely obeying the demands of Congress. Signed into law following a post-September 11 flurry, the Aviation and Transportation Security Act created the TSA and charged the agency with placing airport security under federal jurisdiction. Section 111 of the ATSA requires US citizenship for all screeners, which sets the absurd precedent that immigrants can join the military (no citizenship required) but not scan sneakers at airline security posts.
Both the TSA and members of Congress offer careful replies when it comes to explaining the reasons for the citizenship requirement. An aide for Senator John McCain, one of the ATSA's main proponents, did not want to comment on the provision's rationale. The Justice Department, however, came close to touching on the truth in a motion to dismiss a lawsuit filed by the American Civil Liberties Union on behalf of nine screeners trying to keep their jobs. "It bears repeating that the ATSA was passed in the aftermath of an attack on the US by non-citizens, who penetrated the US aviation system," the motion stated.
The case, Gebin v. Mineta, names Transportation Secretary Norman Mineta and his former No. 2, John Magaw (who was replaced by Loy), as the defendants. Federal Judge Robert Takasugi promised a decision on the case in early June but still has not issued a ruling.
All nine plaintiffs are noncitizens, lawfully living in the country as permanent residents. The lead plaintiff, Jeimy Gebin, believes that her three years in the US Army should be enough to allow her to stay employed at Los Angeles International Airport. Erlinda Valencia, a leader of the San Francisco airport's screening force, is another plaintiff. Two years ago Valencia's security firm honored her when she detected a toy hand grenade and two weeks later, a loaded handgun. But federal attorneys argue that the government can do as it pleases with its "alien guests," and that Congress acted rationally when, in the interest of airport security, it required screeners to formalize
their "loyalty" and "commitment" through citizenship.
The situation between the government and immigrant screeners begs the comparison of Japanese-Americans who were fired from their jobs after the bombing of Pearl Harbor on Dec. 7, 1941, and were then herded into internment camps. Ironically, Secretary Mineta and Judge Takasugi were among those interned.
In addition to being unfair to immigrants, dismantling experienced screening units at the nation's 429 commercial airports could itself be a major security risk. By the November deadline, 80 percent of San Francisco International Airport's 915 screeners will be forced out of their jobs because they are not citizens. Washington-Dulles will also lose 80 percent of its existing force;
Los Angeles International Airport will lose 40 percent; and Miami
International Airport will lose 70 percent. Even worse, their replacements
are being whisked through the training process: one new screener working at the Norfolk, Virginia, International Airport told Alan Gathright of the San Francisco Chronicle that he received only fifteen minutes of explosive detection training. There is also the matter of how the remaining 40,500 screeners waiting to be hired will complete the federally mandated 100 hours of classroom and onsite instruction before they begin work in late November.
While it is true that most federal employees and civil servants must be US citizens, screeners arrived on the job without this requirement; and the ATSA does not "grandfather" exemplary workers into the applicant pool for a federal screening position. "I am a legal immigrant. Now they are trying to make me a second-grade citizen," said Ashok Malakar, a San Francisco screener who is only a year from naturalization. "That is discrimination."
Medical treatment in women's prisons ranges from brutal to nonexistent.
Liberal groups are also concentrating on influencing the next generation of legal scholars.
Roderick Johnson, a 33-year-old African-American Navy veteran from a small town in rural Texas, didn't ask for it. Prison did it to him, and his life will never be the same.
In the 39 states that elect appellate judges, politicization of the
bench is growing.
"Tell me about the hash bars."
"OK, what do you want to know?"
"It's legal there, right?"
"It's legal, but it ain't 100 percent legal."
In a brief filed in connection with an appeal to the Supreme Court in a
gun possession case, the Bush Justice Department, breaking with sixty
years of jurisprudence, asserts that individuals have a constitutionally
protected right to own firearms. Seeking to quiet ghosts of gun debates
past as the November elections approach, the Administration tries to
reassure us that this proposed sea change in American law would, if
realized, leave law enforcement and gun laws unaffected. But in doing
so, it elevates sophistry and doublespeak to a new art form.
In the case in question, a lower court held that a provision of the 1994
amendment to the gun control act prohibited one Timothy Emerson from
possessing a Beretta pistol, since he was under a domestic-violence
restraining order obtained by his wife. Even after a court issued the
restraining order, Emerson used the pistol to threaten his wife and
daughter as they entered his office to retrieve the daughter's shoes. In
his appeal, Emerson claimed that the restriction abridged his Second
Amendment rights. The Justice Department, in its brief to the High
Court, departed from its historical position and agreed that Emerson did
possess an individualized Second Amendment right. But in a legal
high-wire act, it argued that this right was nonetheless trumped by his
misconduct and that, therefore, the indictment should stand.
Gun control advocates criticized the inclusion of the constitutional
assertion in the department's brief as gratuitous. But on this they miss
the point. The real goal of Justice's new strategy is not to throw a
bone to the gun lobby but to mount a backdoor attack on the very
legitimacy of gun laws it doesn't like but doesn't have the guts, in the
current political climate, to try to repeal legislatively. For as the
Administration knows, elevating gun rights into the rarefied sphere of
constitutional rights would create new, perhaps insurmountable, legal
hurdles for existing gun violence statutes.
Individual rights, such as freedom of speech and religion, to which the
Attorney General claims gun rights are analogous, occupy a unique area
of American law. The Court has repeatedly held that legislative
encroachments in these areas are presumptively invalid unless narrowly
tailored to meet compelling government interests. On this basis, the
Court has invalidated laws in the areas of affirmative action, free
exercise of religion and freedom of speech. Recently, in Ashcroft v.
Free Speech Coalition, it held that a law prohibiting virtual child
pornography was too broadly drafted, and the putative harm it sought to
prevent too speculative to pass constitutional muster. Were the Court to
embrace the Bush view on the Second Amendment, the likely result would
be to invalidate many federal and state gun laws, like the popular Brady
law and the ban on assault weapons.
In passing the 1993 Brady Act, which is applied to the general
population to screen out felons and other miscreants from buying
firearms, the House and Senate judiciary committees did not consciously
undertake the exactingly narrow drafting requirements necessary to
overcome the constitutional hurdles placed on such rights as speech or
religion. Rather, they acted under the authority of the Constitution's
commerce clause, which gives Congress broad legislative discretion. And
while Justice's brief, arguing that the prohibition on gun possession by
those with domestic-violence restraining orders could pass the "narrow
tailoring" constitutional test it seeks generally for gun laws, may be
correct, it is unclear, even improbable, that the broader purpose of
laws like the Brady Act (background checks for everyone) could survive
Similarly, because the ban on military-style assault weapons, intended
to remove the tools of many gang-type street massacres, was broadly
drafted to apply to everyone, that law could be invalidated on the
grounds that it is not sufficiently tailored to prohibit access by those
with criminal records. So, too, could scores of state and local laws,
such as the ban on handgun possession in the District of Columbia. The
new proposal by Senators John McCain and Joseph Lieberman to apply
background checks at gun shows could also be constitutionally dead on
arrival should the Administration view of gun rights become law.
Indeed, this is not the first time since September 11 that the Attorney
General has catered to gun owners. In October, responding to gun lobby
paranoia about gun registries, he refused to give the FBI access to
records that could help it determine if post-September 11 detainees had attempted to purchase weapons.
Each year we lose roughly 28,000 people at the wrong end of a gun
barrel, nearly ten times the number of people who perished on September
11. As the Violence Policy Center has documented, Al Qaeda terrorist
training manuals note the ease with which one can obtain firearms in the
United States--like the .50-caliber rifles that can with precision blow
a nine-inch hole in a concrete wall from 100 yards. At a minimum,
criminals and terrorists will benefit from new defenses that gun
prosecutions violate constitutional rights as envisioned by the Bush
Justice Department. Prior to his plea agreement, attorneys for the
so-called American Taliban, John Walker Lindh, had already indicated his
intention to invoke such a defense on his behalf.
If, when the Attorney General is proclaiming about the need to restrict
Americans' civil liberties, he seeks to expand constitutional liberties
for gun owners, he should at least be straight with the American people
about the likely legal consequences and what it could mean for safety on
Vice President Dick Cheney has spent most of the past year in hiding, ostensibly from terrorists, but increasingly it seems obvious that it is Congress, the Securities and Exchange Commission, th
The essential case for the abolition of capital punishment has long been complete, whether it is argued as an overdue penal reform, as a shield against the arbitrary and the irreparable or as part of the case against "big government."