Monday, June 30, 2014


By David Bacon
Stand - ACLU Magazine, June 2014

Under the Fourth Amendment, the American people are not generally subject to random and arbitrary stops and searches. But within 100 miles of a U.S. border, these rules don't apply.

Last July, a worker phoned Alejandro Valenzuela, a young staff member at the Southside Workers Center in Tucson, Arizona.  The police were at his home, the worker said, and were detaining him for deportation.  Valenzuela and a friend drove over to observe - "to make sure his rights were being respected."  Over the next half hour the police grew increasingly hostile, demanding identification from Valenzuela, despite the fact that he was not driving the car, which was parked at the curb.  They then detained Valenzuela and the worker.

Police then drove the two to Border Patrol headquarters.  Neither was ever arrested or accused of a crime.  Valenzuela was detained and intensively questioned for five hours, and finally released only when he could show he qualified for Deferred Action, which allows undocumented young people (DREAMers) to apply for deferred deportation and work authorization..  The worker was eventually deported.

The Border Patrol watches from a hilltop next to the fence, in the Constitution-free zone.

"On the street we get stopped and questioned because of the way we look," Valenzuela charges.  "It's racial profiling."  On his behalf the ACLU filed the first challenge to section 2B of Arizona's infamous SB 1070 "Show me your papers" law, which went into effect in September 2012.  It authorizes police to enforce immigration law, and the ACLU argues it "unconstitutionally authorizes and encourages illegal police practices ... the South Tucson police officers' actions amounted to false arrest, violated Alex's right to equal protection of the law and trampled his right to be free from unreasonable seizures."

Tucson is sixty miles from the Mexican border, within a 100-mile zone where immigration authorities say important due process rights can be suspended. "SB 1070 interacts with this 100-mile area to enable these rights violations," explains James Lyall, ACLU staff attorney in Tucson.  "It's easy for police to stop people on a pretext, detain them longer than permitted, and turn them over to the Border Patrol."  The Valenzuela suit was one of the first actions taken by the ACLU Border Litigation Project, launched to document and litigate civil and human rights cases on the U.S. Mexico border.

Enforcing the "Zone"

Outside of communities like Tucson, the existence of a 100-mile "Constitution-free zone" is not well known. "There, the longstanding view [established in court rulings] is that the normal rules do not apply," according to the ACLU. "For example, the authorities do not need a warrant or probable cause to conduct a 'routine search.'" As of 2008, the zone potentially covered a staggering 197.4 million people-two-thirds of the U.S. population, including nine of the country's 10 largest cities.

In Arizona, the impact is magnified by Federal enforcement and state legislation. Isabel Garcia, Legal Defender for Pima County (which includes Tucson), explains, "In Arizona we've become a laboratory for every kind of anti-immigrant, anti-human [rights] piece of legislation." She points to Proposition 100 that amended the state constitution in November 2006 to permit the detention without bail of any undocumented immigrant accused of a felony. Under state legislation, a felony now includes using a fictitious document or a Social Security number belonging to another person.

The Project has documented other instances of immigration-related police misconduct beyond the 100-mile zone.  They include an elderly Latino citizen jailed by Mesa police after picking a bottle from a trashcan, a passenger in a car stopped for a broken taillight taken to immigration authorities by Casa Grande police, a woman interrogated about immigration status after calling Tucson police about domestic violence, and a legal resident questioned about his status by Phoenix police while picking up his impounded car.

ACLU attorney Christine Sun calls the cases "representative of policing problems throughout Arizona." Lyall testified before the Tucson City Council, noting that in May, Federal District Court Judge Murray Snow ruled that Maricopa County Sheriff Joe Arpaio, using policies like those in Tucson, was guilty of systematic and unconstitutional racial profiling.

The ACLU of Arizona made 20 recommendations for changes in Tucson's police practices. The most basic were to prohibit police "from questioning crime victims and witnesses about their immigration status," from "extending any stop or detention solely to await a U.S. Customs and Border Protection (CBP) or ICE response," requiring officers to contact their supervisors before questioning people about immigration status, and to document "the reasons such questioning is believed necessary." According to Arizona Public Media, the council unanimously approved council member Regina Romero's motion to ask police to put public safety above checking immigration status.

Detained and Demeaned

In October, the ACLU demanded an investigation of the Border Patrol, citing five examples of unlawful stops by roving patrols within the 100-mile zone. Although U.S. Customs and Border Protection (CBP) claims broad authority to conduct searches here, the ACLU complaint responds that "the Fourth Amendment's protection against unreasonable searches and seizures extends to protect against unlawful investigatory stops." Some of the documented mistreatment clearly exceeds this standard.

In May, Clarisa Christiansen was stopped by the Border Patrol n the desert west of Tucson, 40 miles north of the border, while driving her five- and seven-year-old children home from school. All are citizens, yet she was threatened with a Taser and knife, forced from her vehicle, interrogated, and left beside the road with a slashed tire.

In April, a Native American woman was tailgated by a Border Patrol vehicle, dragged from her pickup, threatened and manhandled, interrogated and ridiculed, and detained for over an hour on the Tohono O'odham reservation. Other Native Americans have told her of similar treatment.

In March, a tourist from Oregon was threatened, detained and falsely accused of drug possession after hiking at the Fort Bowie Historical Site. A drug-sniffing dog did hundreds of dollars of damage to his car, but when his insurance company sought reimbursement, the CBP claimed the Federal Tort Claims Act "bars recovery for property damaged by CBP employees while the property is under detention."

In May, a Latino citizen farmer was followed and detained on his property by Border Patrol agents holding automatic weapons. Agents trespass frequently, the family complains.

Two years ago, Suzanne Aldridge was stopped just outside of Bisbee, Arizona, 30 miles from the border, dragged from her car, handcuffed, and groped by a Border Patrol agent. Ten vans of agents, police and sheriffs searched her car with a drug-sniffing dog without her consent. She tried to file a complaint, but was given the runaround by CBP representatives.

In September, the ACLU of Washington and the Northwest Immigrant Rights Project settled a lawsuit challenging CBP's roving patrols on the Olympic peninsula, which lies within the 100-mile zone. As in Arizona, the Border Patrol conducted arbitrary vehicle stops, prolonged detentions and other forms of mistreatment. Fourth Amendment protections still apply, the settlement says.   "Border Patrol officially agreed to follow the Constitution and not racially profile Latinos and other minorities ... People should not have to fear that they could be stopped and questioned without reason any time they drive or are passengers in cars," said Sarah Dunne, legal director of the ACLU-WA.??

The Heavy Price of Immigration Enforcement

In testimony to September's Congressional ad-hoc hearing on border security, the ACLU detailed other areas in which the Border Patrol violates constitutional rights. In Arizona ports of entry, a May ACLU complaint documented 11 cases involving "unprovoked assaults and verbal abuse, the unwarranted use of handcuffs and shackles, extended and recurring detention, invasive searches, property destruction and confiscation, and denial of food, water and legal representation."

At the state's 11 CBP checkpoints, border residents report numerous unlawful searches, detentions, threats and abuse. The vast majority of detentions are for petty crimes, not immigration, and Federal authorities dump those cases on local courts.  Says Santa Cruz County Sheriff Tony Estrada. "They tell us, 'If you don't take them, we're going to take your [Federal law enforcement] funding away.'"

Abuse in CBP custody is rampant. A recent University of Arizona report revealed that 11 percent of deportees reported physical abuse by U.S. authorities, 23 percent experienced verbal abuse, 45 percent received insufficient food, 39 percent had their possessions confiscated and 29 percent had their identification documents taken and not returned.

The worst abuse is deadly. Since 2010, 20 people have died as a result of CBP use of force. Sixteen-year-old Jose Antonio Elena Rodriguez-standing on Mexico soil-was shot seven times in the back in 2012 by an agent firing across the border at Nogales, Arizona. Nineteen-year-old Carlos LaMadrid was shot four times in the back while running toward Mexico at Douglas. Ramses Barron Torres was shot while simply standing in Mexico. The Department of Justice would not prosecute agents in the LaMadrid and Barron killings, and is still investigating the death of Elena Rodriguez.

One other product of the Constitution-free zone is the Operation Streamline courtroom, where every day 70 young people are brought before a Federal District Court judge, chained at their wrists, waists and ankles, and pressured into pleading guilty to criminal charges of illegal entry or reentry. "These proceedings offend fundamental principles of due process," the ACLU testified.

"We just closed our post office in Tucson because it cost $14 million a year to run, and lost 400 jobs," charges Garcia. "We closed eleven  schools because the Tucson district had a shortfall of $17 million. Yet we pay Corrections Corporation of America $11 million a month to house these migrants."

The ACLU testimony made seven recommendations for humane reform. They include increasing CBP oversight, preventing excessive use of force, reducing the high number of border crossing deaths, increasing detention standards and inspections, discouraging local and state authorities' involvement in immigration enforcement, abolishing the Operation Streamline court, and reducing CBP's "zone of authority" from 100 miles to 25 miles from the border.

Tucson résidents protest against abuse by Phoenix Sheriff Joe Arpaio.

Let Them Go!

In October, community anger in Tucson finally boiled over when police stopped a car in front of the Southside Worker Center.  The ACLU and other organizations charge that, especially since passage of S 1070, police often find pretexts to stop vehicles they believe are carrying undocumented people, and then hold them for deportation.

In this case, police called the Border Patrol after detaining the car's occupants, who then put them into a CBP truck.  A local migrant family organization, Corazon de Tucson (Tucson's Heart), urged people to come protest. In an act of civil disobedience, some 60 people surrounded the vehicle carrying the two detained migrants. People from the nearby Presbyterian Church came out in support.  They peacefully held hands, chanting, "Let them go!" as the Border Patrol and police responded by shoving people and using pepper spray. Eventually the two were taken to detention.

Alejandro Valenzuela says, "We're tired of being arrested for no reason. These were people we knew. We wanted to prevent them from being taken from their community and family." Three days later, in further civil disobedience, demonstrators blocked busses taking detainees into the Federal courthouse, chaining themselves to their wheels. The day's session of the Operation Streamline court was cancelled, and 17 demonstrators were arrested.  Similar acts of civil disobedience, blocking busses carrying people for deportation, have taken place in Phoenix, San Francisco, Chicago, San Diego and Austin, among other cities.  They respond to the fact that in the last five years, two million people have been deported from the U.S.

In December, Tucson Congressman Raul Grijalva was one of 27 signing a letter to President Obama opposing mass deportations. "Criminalizing American families or giving local law enforcement the responsibility to choose who stays and who goes is not the right option," they said. Whether in court, in Congress or in the streets, the denial of rights in Arizona is being challenged and that challenge is growing.

Three facts about the Constitution-Free Zone

Fact 1
In the "Constitution-free zone," Border Patrol agents don't need a warrant or probable cause to conduct a "routine search." All travelers crossing a border are assigned a risk assessment score that will be retained for 40 years.

Fact 2
The Border Patrol can put a checkpoint anywhere in the Constitution-free zone (think Fifth Avenue!). "One hundred air miles is still, technically, the border," says Leslie Lawson from the Nogales Border Patrol Station. Everyone at a checkpoint must answer questions about citizenship status.

Fact 3
The Constitution-free zone extends 100 miles from any U.S. border. Two-thirds of the U.S. population (197.4 million in 2008) lives within this zone, which includes nine of the 10 largest metropolitan areas, and the entire populations of:  Connecticut, Delaware, Washington, D.C., Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey and Rhode Island; and over 90 percent of: California, Maryland, New York, Vermont and Washington.


By David Bacon/
Counterpunch - 6/26/14

Journalist Laura Carlsen, writing from Mexico City, has published on the Americas Program website an important article about the way the U.S. media covers the migration of children to the U.S. - Child Migrants and Media Half-Truths <>.  Carlsen raises key questions - the cause of the displacement that leads to migration, and the way the story of migrating children is used for political purposes in the debate over immigration policy.

The story of children in detention is being manipulated by the Border Patrol and the Tea Party to kill any possibility that moderate Republicans will introduce any reform bill with legalization, to attack Obama's executive action for the Dreamers (and any possibility he might expand it - the demand of many immigrant rights advocates), and to push for more resources for enforcement, the Border Patrol and expanded detention facilities.  

Looking at the way the story broke into the press, and who broke it, this strategy is clear.  The story began with a series of photographs, showing young people and children in detention centers all along the U.S./Mexico border.  These photos were published on a website,, which has a long history with the Tea Party and extreme rightwing causes.

Many readers will remember the phony video that killed ACORN.  That video was introduced to the media by Andrew Breitbart, who started the website that bears his name.  John Atlas describes that role in at article:  <>

In the case of the story on children in detention, the original photos were "leaked" by the Border Patrol to a writer with an extensive history with the Tea Party in Texas, Brandon Darby.  Darby has run pieces before on behalf of the Border Patrol, and was a protégé of Andrew Breitbart, who died in 2012.

According to a profile of Darby written by Breitbart senior management, "Darby became an emerging voice of the center-right populist movement called the Tea Party after working undercover with the FBI to stop former comrades from killing Israel civilians and using firebombs to hurt law enforcement and stop Republicans from assembling at the 2008 Republican National Convention ... Darby and Lee Stranahan formed the "greek chorus" to Andrew Breitbart's narration of the film Occupy Unmasked. In Andrew's retelling of that movement everything they present is a false narrative--one that he had dedicated his life's work to expose."

Other Darby articles include an attack on the Sierra Club for opposing the Keystone XL pipeline, and a defense of the racist Nevada rancher and militia leader Cliven Bundy.  The website even credits him with helping to defeat Virginia Congressman Eric Cantor, who was attacked and defeated by Tea Party candidate Dave Brat.  Brat accused Cantor (one of the most anti-immigrant members of Congress) of possibly favoring legalization for the undocumented.

The original Darby/Breitbart article on the children in detention
<> consists of 42 photographs, with a few paragraphs of text.  All the photographs carry the watermark, "Breitbart Texas Release."  They show children in what appear to be many different rooms, probably in many different centers.  One has the camera or cellphone imprint "HOLD 21:52:12."

Any photographer who has taken photographs in a prison, jail or detention center knows that it is difficult, and often impossible, to show the face of an inmate or detainee.  Yet these photographs are taken by people with completely free access to show not only faces, but also the entire context of the places in which the children are being held.  There is only one group of people who have such unrestricted access:  the Border Patrol itself, and the guards who work for private detention corporations like Geo and CCA.

The article brags about being leaked the photos:  "Breitbart Texas obtained internal federal government photos depicting the conditions of foreign children warehoused by authorities on U.S. soil on Wednesday night."

Breitbart Texas Border Expert and Contributing Editor Sylvia Longmire comments on "exhausted and overwhelmed Border Patrol agents and CBP detention facilities."  She condemns the Obama administration for "releas[ing] them with no obligation other than to show up for a hearing in 15 days.  Most of those released will abscond and never show up for their hearings, taking their chances that ICE won't have the time or resources to go looking for them ... a humiliating example of what our government's inability to develop solid immigration and border security policies can cause.”

Another Breitbart article, <> takes credit for creating the media hysteria: "Darby contends that the reason the children are leaving their home country is that 'they know they will not be turned away and that they will be provided for.' Although other outlets attempted to do stories about the invasion, such as the New York Times and NPR, they never really caught on. What Breitbart Texas did was 'obtain 40 internal federal government photos showing the conditions of what exactly the government did with these children.' The images that were released forced everyone on the left and the right to report on the story."

Darby and have been joined by other anti-immigrant organizations with the same message.  Mike Nicley (a former Border Patrol agent now at the nativist Center for Immigration Studies) writes: "The Obama Administration has blamed the overwhelming influx on gang violence and poverty. Hogwash ... Obama's steadfast refusal to enforce our immigration laws is directly responsible for the current 'humanitarian crisis.' Word has spread throughout this hemisphere that America has laid a welcome mat along our southern border."

Nicley gives then gives the story the pro-enforcement spin.  To him the problem isn't the poverty that forces people to leave home, or the fact that the Federal government spends more on immigration enforcement than all other Federal law enforcement agencies and programs combined.  It's the lack of even greater enforcement, and even more money to pay for it:  "Obama could shut the flow down by simply enforcing laws that are already on the books ... The two billion dollars Obama is seeking will only pay for a fraction of the eventual cost to taxpayers."  <>

Carlsen's story shows how the national mainstream media establishment has picked up this refrain.  First, her article explains that the media has picked up the Border Patrol narrative:  "These stories present anecdotal evidence of the thesis that the spike in child migration is due to hopes of being allowed to stay," she charges.

Carlsen discusses the use of stereotypes and lack of context:  "The New York Times, AP and others outlets have been running stories that follow a pattern of emphasizing two general conclusions. One, that parents in the United States are selfishly and irresponsibly encouraging this phenomenon and putting their own children at risk by sending them north and, two, that more children are migrating to the United States because they perceive Obama administration policies and practices as lenient on child migrants and think they have a good chance of staying–even if they get caught.

"Although most of these stories mention conditions of poverty and violence in the places where the children come from, they almost never mention how these places have become so poor and violent, or much less the direct role that U.S. foreign policy has played in making them that way and forcing the children to leave ... Readers were left with the impression that it was the parents’ fault, not a system of injustice that stretched from the Andes to the US-Mexico border."

Finally, Carlsen documents the political use of the articles:  "The predictable result of the spate of articles on children migrants is to urge the creation of more detention facilities (potentially good for the private prison industries) and call for an end to releases, as noted in the AP article:  Texas Gov. Rick Perry last week asked that the Department of Homeland Security stop releasing immigrants with notices to appear. On Monday, Arizona Gov. Jan Brewer asked the same for the hundreds of immigrants, mostly women and children, who in recent weeks have been flown to Arizona from South Texas for processing."

Bob Goodlatte, Republican chairman of the House Judiciary Committee, read from the Border Patrol playbook:  “Word has gotten out around the world about President Obama’s lax immigration enforcement policies, and it has encouraged more individuals to come to the United States illegally… Enforcement at the border and in the interior of the U.S. is crucial to end these kinds of situations, not another bureaucratic task force.”

Brandon Darby himself got credit on the floor of Congress.  The Breitbart site crowed:  "In a floor speech on Wednesday evening from the floor of the U.S. House of Representatives, Rep. Louie Gohmert (R-TX) cited a June 13 story by Brandon Darby reporting Shawn Moran, vice president of the National Border Patrol Council (NBPC), warning the Obama administration’s handling of the influx of Central American youth at U.S.-Mexico border is putting lives of border patrol agents at risk."

The media campaign kicked off by had its predictable effect on the Obama administration.  The White House press secretary's office released a statement, announcing that it would respond with an increase in enforcement:  “The Department of Justice and [Department of Homeland Security] are taking additional steps to enhance enforcement and removal proceedings.  We are surging government enforcement resources to increase our capacity to detain individuals and adults who bring their children with them and to handle immigration court hearings – in cases where hearings are necessary – as quickly and efficiently as possible while also protecting those who are seeking asylum. That will allow ICE to return unlawful migrants from Central America to their home countries more quickly.”

The administration further reacted to the media-created idea that migrants are coming to the U.S. because they're attracted by the prospect of immigration reform, despite the fact that there is virtually no chance that the House of Representatives will pass a reform bill.  Vice President Joe Biden went to Central America, where he spoke on the phone to Honduran President Juan Orlando Hernandez, and "reiterated that arriving migrants will not qualify for legalization under proposed immigration reform legislation or deferred action for childhood arrivals (DACA).”

Carlsen suggests four immediate demands that migrant rights activists can make, in response to the push to increase enforcement:

1) A return to humane family reunification policies. Not to legalize undocumented children on arrival at the border, but to arrange legal and safe passage for children of U.S. residents who face endangering situations at home.
2) Respect the right to asylum.
3) Create a trade adjustment fund for economic integration and re-negotiate free trade agreements.  Now Central American nations have expressed concern that they could lose some 100,000 jobs in the textile sector under the proposed Trans Pacific Partnership. If we do not consider the impact of the so-called "free trade agreements" we will set ourselves up for continuous crisis.
 4) Suspend support for abusive military and police forces. US training and equipment has empowered corrupt forces and even organized crime groups.  The priority on the drug war has fueled a return of authoritarian power and internecine violence.

A long-term solution also involves looking at proposals put forward by the Dignity Campaign and others, who advocate alternatives to the comprehensive immigration approach taken by Congress.  They include:

* Giving permanent residence visas, or green cards, to undocumented people already here, and expanding the number of green cards available for new migrants.
* Eliminating the years-long backlog in processing family reunification visas, strengthening families and communities.
* Prohibiting local law enforcement agencies from enforcing immigration law, ending roadblocks, immigration raids and sweeps, and closing detention centers
* Allowing people to apply for green cards, in the future, after they’ve been living in the U.S. for a few years.
* Ending the enforcement that has led to thousands of deportations and firings
* Repealing employer sanctions, and enforcing labor rights and worker protection laws, for all workers.
* Ending guest worker programs
* Dismantling the border wall and demilitarizing the border, so more people don’t die crossing it, and restoring civil and human rights in border communities.
* Responding to recession and foreclosures with jobs programs to guarantee income, and remove the fear of job competition
* Redirecting the money spent on the wars in Iraq and Afghanistan to rebuilding communities, refinancing mortgages, and restoring the social services needed by working families.
* Renegotiating existing trade agreements to eliminate causes of displacement and prohibiting new trade agreements that displace people or lower living standards, including military intervention intended to enforce neoliberal reforms.