Monthly Archives: March 2010

Stop Inciting Violence within the Tea Party

It has been quite a week for American politics. We got ourselves health care reform, a nuclear deal with Russia, student loan reform, and 200,000 people on the mall in DC demanding comprehensive immigration reform.

At the same time,  the right wing media, Republican Party, including several members of congress, have been egging on their followers– most dispirited and mean spirited amongst us, the Tea Partiers– to  up the ante in terms of their response to these peaceful democratic reforms.  IE they have been inciting violence.

During the last week, fact-deniers have encouraged their supporters to make use of vitriolic language, spit on members of congress, threaten them with violence and in one instance even cut the gas line to the house of a member of congress’s brother (mistaken for that member of congress).  Members of congress are receiving faxes with nooses on them and their lives are being threatened. Tea Partiers, inspired by right wing militia leaders– one of which lives off of federal disability benefits– have thrown rocks at the offices of members of congress, and broken windows.  When confronted with such facts, Rep Steve King literally ran away from a CNN reporter, rather than condemning or condoning the actions.

Sarah Palin’s response? tell her supporters to reload and place pics of democratic members of congress within the cross-hair gun sights. Glenn Beck’s response?   compare Obama to Hitler and Stalin and call for revolution. Eric Cantor’s response? whine that someone fired a bullet into his office as well (even tho the evidence shows the broekn window in his Va. office was the result of random gunfire. No-one intended to target Eric cantor\’s office.  The response of GOP leaders? unfurl a “don’t treat on me banner and give thumbs-up to the T-partirs.

It’s pretty clear these are acts of desperation from from a party that has lost its way and that fears its owen demise at the polls. The GOP’s worst fear is of its own right flank, which is primarying pretty conservative incumbents with whack-job rightist opponents.   I’m fine with the GOP’s circular firing squad.

My concern here is that along the way, this incipient violence  this has inspired might snowball into real acts of terror. It’s one thing to misinterpret majoritarian rule in congress as a form of totalitarianism. It is quite another to believe this to be true and then encourage your supporters to “reload.”

It’s got to stop!


HCR: Big Government or Public-Private Partnership?

In the past three days, American politics has been spun on its axis, again.  With the signing of HCR, the era of “calling the era of big government is over” is over.  Once again, the federal government will play a role in helping the vulnerable among us, at least in terms of health insurance. For two decades or so, the thought of the federal government playing such a role was verboten. Now, as of Tuesday, it seems back in play, if not in vogue.

The difference between now and the last time the president had such a significant signing ceremony–LBJ signing medicare legislation– is that Obama’s embrace of federal largesse must be seen in terms of public-private partnerships.  LBJ’s Great Society established significant partnerships with non-profit community based organizations around the country which were enlisted to help implement social policy. In Obama’s America, Pharma and huge insurance companies are the domestic partners of choice.

Rather than going out of business, insurance and Pharma elites will make out like bandits. Sure they have made some sacrifices, but they also reported a 29% increase in health insurance premiums last fall, and during the last quarter, health insurance companies  stock value increased (11%.   This ain’t socialism folks. Far from it.  It’s corporatism: PPP–public-private-partnerships.  The government is expanding the net of consumers– by 30 million people– that are now mandated to buy insurance from private companies, yes with some important constraints on those companies.

Such is the Obama era brand of liberalism–his third way: once again, the federal government has a significant role to play in society AND neo-liberal elites continue to make out like bandits.

SBInet (virtual fence) Down but not Dead

Janet Napolitano’s statement that then federal government is going to redirect  $50 million in stimulus funds away from the virtual fence and towards off-the-shelf technology designed to help secure the border. Aside from mentioning that SBInet failed in part precisely because it relied on off-the-shelf technologies, it is worth mentioning that the virtual fence is not dead. The funds have been frozen (only) until DHS completes its reassessment of the virtual fence project.  Let’s see what happens then. Also, SBI executive director Mark Borkowski insists that the project will continue its immediate term assignment of completing block-1 of the virtual fence.

Finally, if you “follow the money” in terms of government contracts, nothing in the Secretary’s statement yesterday suggests the federal government is prepared to break its contract with Boeing, which won the SBInet contract in 2006. It is also worth noting that the federal government extended the SBInet contract with Boeing as recently as last September (09).  Consider that like now– on the eve of yet another damning GEO report documenting the failures of sbinet and government oversight of this ill conceived project– the september 09 extension came on the heels of about a dozen GAO reports all highly critical of SBInet.

Call me highly cynical here, but I refuse to believe SBInet is dead until DHS severs its contract with Boeing. When that happens, let me know. Until then, no celebration.

Fighting back against the anti-immigrant distortion

This Monday, I wrote an op/ed piece for the Baltimore Sun. The column, posted in Koulflo Memo, took a critical look at the criminal alien program.  The piece has drawn some critical response, which I don’t mind, expect and sometimes enjoy.  It is disturbing, however, to see responses dumb down and distort aspects of an important policy debate, and project silly personalized attacks.  For example, how to respond to such comments as

“More of the same from the lying fools who want open borders. LIES LIES and more LIES form the open border anarchicts groups.”


Of the emails and comments I received, even those who tread beyond bumper sticker cliches, almost all gloss over the realities of government policy that: places civil law offenders into a criminal law process; that unlawfully conflates federal and local law enforcement; that creates needless obstacles for local law enforcement to do their job, particularly in Latino and other high-immigrant communities; and that condones racial profiling.

The responses deal with none of these issues, but instead reduce the author’s argument to being pro-illegal alien; pro open borders; and btw, the author is “so stupid” as to not understand that as the term “illegal alien” infers, these people are criminals.

Consider a Letter to the Editor in today’s Sun which has nothing to do with the topic I wrote about, and which says

He implies that Illegal immigrants should be allowed to remain in our country, work in our businesses and eat up our taxpayer dollars with education for their children, hospital and doctor coverage paid by our tax dollars, and when caught they should not be sent back to their home country. What other country would allow illegal immigrants to do this?
I am sure that if the new health care bill is passed that he would want them to be included. What about our welfare and Social Security benefits? An illegal alien is a criminal by definition. Does he want them included also?

Again, my column about ICE ACCESS/ CAP had nothing to do with the issues raised by this letter to the editor. The column has to do with fair process, whether CAP treats immigrants fairly. I suggest that CAP does not treat immigrants fairly  and examine CAP’s shortcomings.

So, to my critics of immigrant rights, why not dispute the points raised; why not discuss and defend CAP? Let’s discuss CAP, or Secure Communities or one of the other of the 14 localized immigration enforcement measures under ICE ACCESS. It is a worthy debate. NO need to go after open borders here. Plenty of meat in CAP for us to bear our differences.

Other responses suggest I did not distinguish between legal immigrants and undocumented immigrants and that “illegal aliens” have no right to drive and were they pulled over, should be deported because they are “criminals.”

Indeed, some important points are raised here. 1) The CAP program, and secure communities and 287(g) make all foreigners– lawful and undocumented immigrants as well as tourists and temporary workers– susceptible to the whims of the arresting officers and criminal process.

Under CAP, any foreigner can be dragged into the criminal process and the removal process if 1) they have an immigration history– any infraction, however minor–  such as an expired visa, and 2) any previous exposure to the criminal justice process– however minor, expunged, or long ago.

Consider the case on one man, a lawful permanent resident, who read the article and said it resonated with his recent experiences. About 25 years ago, as a teenager, he was in receipt of am 8-track player (worth about $50) which, he says, a friend of his had stolen and then sold to him. This man was charged at the time but his record has long since been expunged. Now he finds himself in deportation proceedings, after leading a lawful existing into middle age.  Such are the sort of decent and law abiding folks who whose lives are being overturned by CAP and other draconian immigration programs.

Further, the issue of whether local police have the authority to arrest and then hold and turn somebody over to ICE ostensibly because the local police suspect that person’s immigration papers may not be in order, ought to raise a lot of red flags in immigrant communities as well as among local law enforcement.  The well documented result is that immigrant communities (lawful and unauthorized) become underserved by local police.  They can become havens for crime because of the disincentives now associated with calling local police.

The larger issues have to do with the unfortunate narrative that dumbs down a discussion about local law enforcement of federal immigration law to over simplified and dishonest questions about open/closed borders and whether unauthorized immigrants are criminals.

The issue of open borders has to do with larger and more abstract discussions about sovereignty. Opposing CAP has nothing to do with being for open borders. The narrative about “criminal aliens” or whether unauthorized immigrants are criminals is even more distressing because it has little to do with the realities of the law. We are dealing– for the most part– with civil laws, not criminal law.  The label of “criminal is misleading.” The suggestion that unauthorized immigrants = criminal aliens is even more distressing because it plays with our collective imagination.

Metaphors of criminality replace the rather benign civil offense of being in the country without authorization. It also ignores the realities of why most unauthorized immigrants come to this country, which is for a better life. It stigmatizes and dehumanizes human beings who lead basically lawful lives.

Any readers of this post jaywalk recently, or litter, or fail to stop completely at a stop sign? “illegal walkers? drivers?  perspective people, please!

Punishing Immigrants: The Government is Going After Immigrants

Who would have thought that Team Obama would make “driving while immigrant” an enforceable offense?

While President Barack Obama continues to give lip service (37 words in the recent State of the Union address) to immigration reform, his administration’s embrace of zero-tolerance enforcement strategies reveals a remarkable lack of concern about the repressive criminalization of immigrants. This embrace belies the spirit of reform that the White House trumpeted last week as the president met with U.S. Sens. Charles Schumer and Lindsey Graham and activists in advance of the likely attempt this year to reform a profoundly broken immigration system.

Already, the taxpayer has anted up $1.5 billion in fiscal 2010 for Immigration & Customs Enforcement’s clumsily titled Agreements in Cooperation in Communities to Enhance Safety and Security programs, or ACCESS.

ACCESS is an umbrella scheme of about 14 federal programs that ICE coordinates with state and local law enforcement. Because of it, apprehending people through the criminal justice system has become ICE’s preferred way of identifying undocumented immigrants: any foreigner — whether undocumented immigrant, lawful permanent immigrant, student/tourist or refugee — who is stopped, questioned and/or arrested by the police risks detention and removal from the U.S.

Consider the Criminal Alien Program (CAP), which is the most pervasive and largest ACCESS program. According to the ICE Web site, CAP is supposed to identify dangerous criminal aliens — pedophiles, drug-runners, murderers and rapists. In reality, however, most resources are exhausted going after Class B & C misdemeanors. Of the 500,000 persons ensnared in CAP since 2006, most had no criminal convictions, and most deportees were removed for nonviolent offenses.

By colluding with local law enforcement, CAP earns its reputation as the hidden nightmare of the ICE enforcement regime. It is a “force multiplier” that relies on 1) local cops to enforce federal immigration laws, a subversion of constitutional principles; and 2) technology to provide a virtual presence in almost every local law enforcement precinct in the country, which is downright Orwellian.

Although no system involving immigration is airtight, this pipeline from initial police interaction to being detained by ICE is surprisingly efficient.

In the pre-CAP days, local law enforcement could check a suspect’s name against an FBI database. With CAP, the suspect’s identity is also checked against a series of Department of Homeland Security databases. If the suspect has an “immigration history,” the name is flagged, and ICE puts an immediate “detainer” (hold) in the criminal alien’s arrest file. The hold has a punitive effect: It has been credited with increasing the amount of time an immigrant spends in custody, the amount of bonds, and conviction rates. It also facilitates the immigrants’ transfer into ICE custody within 48 hours of the resolution of the criminal case.

In other words, by creating two distinct criminal processes — one for citizens and another, more punitive one for suspected “criminal aliens” — ICE detainers violate the fundamental fairness principle of criminal procedure. Although citizens, particularly those who are stopped wrongfully or for some small-bore misdemeanor, are likely to be released outright or with a minor fine, foreigners are disappeared into a Kafkaesque procedural maze, fending off complicated allegations of both local and federal wrongdoing (usually without an attorney) and then facing detention and deportation.

What, exactly, is a “criminal alien?” This term of art legitimizes CAP outrages. It is a propaganda cliché that scares us into imagining immigrants are a danger to have around. We imagine the leering pedophile or drug dealer, not the hard-working neighbor.

The term, in fact, seems to include any immigrant who is stopped by a cop and who thus enters the criminal process. Since the immigrant is flagged with a detainer well before guilt or innocence is determined, the term “criminal alien” amounts to the latest stigmatizing tactic in ICE’s strategy of zero-tolerance policing.

The Obama folks figure that showing they are tough on enforcement is a small price to pay for comprehensive immigration reform. They are wrong: Even if comprehensive reform advances, ACCESS programs will undermine the president’s stated desire to establish a more humane immigration system. By enabling ICE to warp the criminal process as a pretext for identifying and removing immigrants, the administration subverts the rule of law. That is a huge price to pay for reform.

Robert Koulish, the author of “Immigration and American Democracy: Subverting the Rule of Law” will be a Visiting Senior Fellow at the Center for American Politics and Citizenship at the University of Maryland, College Park. His e-mail is

Copyright © 2010, The Baltimore Sun

Immigration Law, Corporal Punishment, and Right Wing Politics

The problem with immigration law is that it is inherently repressive and right wing.  Unless this essential character of immigration law changes, any attempt at really comprehensive immigration reform will come up short.

About as generation ago, legal scholars Philippe Nonet and Philip Selznick wrote a book called, Law and Society in Transition. Therein they introduced a template of legal development from repressive law to autonomous law and finally to responsive law.  This evolutionary track coincides with the development of society from pre-industrial to industrial and now, since their book, to post industrial. Although the authors have since denounced some of their ideas  as being poorly developed, the template’s chronology remains informative as a lens through which to understand the shortcomings of immigration law.

One of the chief weaknesses of immigration law is its ad hoc and arbitrary nature, making it one of the most labyrinthean civil legal codes on the federal books. A second weakness is that it serves political purposes, which means that unlike the “rule of law”–separate from politics and controls abuses of power– immigration law serves raw power; capable of unleashing unfettered plenary government powers against immigrants at the borders of territorial or political boundaries.  Although most bodies of law enact some ritualistic balance between powers of government and individual rights, immigration law enacts no such ritual. Instead, the fearsome force of the sovereign meets the civilly naked (homo sacer) immigrant.

In addition to qualifying as the essence of repressive law as defined by Nonet and Selznick these qualities also comprise the essence of a conservative approach to law and justice, which George Lakoff describes in terms of the paternal disciplinarian who abjectly and coercively disciplines a child in the name of reestablishing family values.  Repressive law can be an expression of deep anger in society at the loss of social cohesion (Durkheim’s collective conscience).

Think of society’s anger at the terrorists after 9/11, and more recently the T-party anger at the election of Barack Obama; how the birthers have challenged his citizenship; how Joe Wilson challenged his comments about unauthorized immigrants and health care) Think too of how US immigration authorities continue to expand executive powers against foreigners without deferring to basic due process (the rule of law) In the decade since 9/11, it has been revealed that immigrants have been racially profiled, subjected to secret detention, dataveillance, and separated from families. The property of persons along the border has been cavalierly taken (with quick bows to eminent domain) by the head of DHS (Michael Chertoff) who cavalierly declared sovereign powers over the area.

All these are examples of repressive law. As long as sovereignty remains the basis for immigration law and congress and the executive branch retain the plenary powers incidental to sovereignty, immigrants will remain subjects of executive whim.

The alternative, as Nonet and Selznick correctly documented is the transition from repressive law to “autonomous law,” which is nothing more than the rule of law.  In the USA, the rule of law is defined through the lens of the constitution, which is the legitimate basis for law.  The constitution places limits on the use of coercive power; it demands a system of due process which separates procedure from politics, and recognizes the basic rights of immigrants as persons under the constitution.  And in the realm of paternal authority, it limits the legitimate ability of the strict father to abuse a child.   Conservatives object to such limits as a desecration of family values; in the realm of immigration law, they channel their strict family values onto the immigrant; they release their anger at the immigrant’s moral offense (unauthorized entry; threat to the white majority’s numerical superiority) through punishment fantasies of the immigrant “alien-other.”

Sovereignty remains the right wing’s political delight, and immigration law its nightmarish fantasy legal system.