Homeland Security Watch

News and analysis of critical issues in homeland security

July 23, 2009

Once (or more) upon a time in America

Filed under: General Homeland Security — by Christopher Bellavita on July 23, 2009

Narrative is the dominant homeland security methodology.

It would be desirable if policy debates were decided on the basis of objective data.  But stories seem to do as acceptable a job framing and advancing policy as scientifically sound inquiry.  Especially when the issue is complex – like immigration.

In a 2008 article I reviewed seven defensible definitions of homeland security. Each definition presents a story about the meaning of homeland security.

The last of those definitions described homeland security as a “a symbol used to justify government efforts to curtail civil liberties.” Within this semantic construction, government agents ignore the Constitution’s guarantee of fundamental liberties in the name of a more secure America.

On July 22, the Immigration Justice Clinic at the Benjamin N. Cardoza School of Law released a document called “Constitution on Ice: A Report On Immigration Home Raid Operations.”

The report fuels the narrative that homeland security creates more fear than security.

I am tempted to say I have taken the story excerpts that follow out of context.  But as I read and re-read the report, “context” becomes just another  weasel word that hopes “this cannot actually be as bad as it looks.  There’s got to be something else going on in every single one of the stories the report does not talk about.  Maybe once, maybe twice this could happen.  But this many times?”

I’m looking for some interpretive help here, but the agency criticized in the Cardoza report apparently responded to press inquiries with non sequitors:

“The men and women of I.C.E. are sworn to uphold the laws of our nation…. We do so professionally, humanely and with an acute awareness with the impact enforcement has on the individuals we encounter. While I.C.E. prioritizes our efforts by targeting fugitives who have demonstrated a threat to national security or public safety, we have a clear mandate to pursue all immigration fugitives.”

Here are some examples of that acute awareness (you can find the stories and supporting documentation in the Cardoza report):

“I was at home with my wife when the door bell rang. I opened the door and noticed approximately 7 uniformed ICE agents with vests and guns standing at my door . . . I opened the door to look at the paperwork and five agents entered my house . . . . The agents then told my wife to stand in the center of ‘OUR’ living room. Not once did anyone say they had a warrant.”

“The 68-year-old woman told Action 4 News that she heard a knock at her door Tuesday morning. But before she had a chance to get up she said U.S. Immigration & Customs Enforcement (ICE) agents were inside her home . . . When she asked them why they came into her home they allegedly responded, ‘Show us your papers.’ [The woman] complied by showing them documentation proving that she’s been a United States citizen for 40 years.”

“… in North Bergen, NJ, a tenant opened her door and ICE agents searched the entire apartment without permission or legal justification. The tenant was arrested notwithstanding the fact that she had recently been granted legal immigration status and had documents proving that her official work permit card would soon be coming.”

“… in Newark, NJ, between 5:30am and 6:00am, there was loud pounding on the door. Believing it was another tenant who was locked out, a resident opened the door to find six ICE agents displaying holstered firearms. The officers forced the door to stay open and detained the resident without a warrant, probable cause, exigent circumstances, or a reasonable basis for believing that he was unlawfully present in the United States.”

“… in Hudson County, NJ, at 6:30am, ICE agents did not identify themselves while banging on the door. When a tenant opened the door to see who was outside, the ICE agents forced their way inside illegally, and illegally interrogated people in their home. One resident was forcibly stopped from calling her attorney.”

“Respondent persuasively argues that an egregious violation that was fundamentally unfair occurred during his arrest. . . . ICE agents used excessive force while searching his home . . .. ICE agents entered his home and his private bedroom in the early hours of the morning armed with pistols. They forced him into the hall and required him to stand in his underwear before his brother, sister-in-law and their children. . . . ICE agents refused to produce a warrant or identify the person they claimed to be seeking. Finally, they tied a plastic cord around the Respondents wrists as handcuffs and forced him to accompany them to their office in Manhattan.”

“… in Morris County, NJ, at 6:45am, ICE agents took out their guns, banged on a door, and forced their way in once the tenant opened the door to find out who was there. ICE agents illegally entered and searched the home. An ICE agent yelled at one of the residents who tried to call her lawyer. The ICE agent used abusive language – yelling ‘F*** you’ and ‘You are a piece of s***’.”

“… in Riverhead, NY, Residents were awakened by loud voices yelling ‘Police! Open the door!’ and the sounds of windows and doors being forced open. When one resident entered his kitchen he found an ICE agent climbing through an unlocked window. With one leg inside the home, the armed agent yelled, ‘Open the f****** door!’ When the resident unlocked the door, other agents stormed into the residence. Once inside, ICE agents immediately cuffed all residents, kicked in an interior door, and rifled through dresser drawers without consent, looking for immigration documents.”

“…in Metter, GA, ‘The ICE agents involved in the raids forcefully broke into many of the trailers in the Plaintiff Robinson’s [trailer] parks. The ICE agents caused intentional damage to at least one door and four windows in the Highway 46 Park. In the Turkey Ridge Road Park, the ICE agents ripped the skirting from the perimeters of a trailer and caused damage to the flood boards. Upon information and belief, [ICE Agents] did not have warrants or other legal justification for their actions. As a result of the unlawful and terrorizing actions of the ICE agents, the tenants who rented from Plaintiff Robinson were so terrified that many simply fled from the area.’ “

“… Mrs. G was cooking when she heard the doorbell ring. She went to the front gate and saw a man and a woman in plain clothes. As she was unlocking the gate to ask them what they wanted, the man forced the gate open and the two individuals entered her house. Mr. G was led into his house without first being asked for his permission to enter. In the house, Mr. G saw his pregnant wife crying and handcuffed to a chair, along with two strangers.”

“… during the Nassau County 2007 Community Shield Operation, ICE agents were criticized for donning cowboy hats and flaunting shotguns and automatic weapons.”

“… a Connecticut ICE agent boasted [in an email message] to a state police officer, ‘We have an [operation] scheduled for Wed, 05/02/07 in New Haven . . . [I]f you’re interested we’d love to have you! We have 18 addresses — so it should be a fun time!! Let me know if you guys can play!!'”

During last night’s press conference, President Obama was asked to comment on the arrest in Cambridge of Harvard professor Henry Louis Gates Jr.

He said, “… there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately.  And that’s just a fact.”

A story or two might suggest a narrative.  Story upon story upon story mature into fact.

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Comment by William R. Cumming

July 23, 2009 @ 6:34 am

This is a fine post! I have long recommended that all repeat ALL training materials and enforcement guidance for civil or criminal law violations undergo thorough legal review by the Offices of the General Counsel or Chief Counsel in each Department or Agency of the Executive Branch. Usually this is not done and leads to abuses including Constitutional absuses and violations. SCOTUS ruled in Bivens v. Six Unknown agents that no one, repeat no one, even officials and employees of the federal government had the authority to ignore the Constitutional rights fo citizens and residents of the US! That case involved DEA (perhaps BND)agents breaking down the door of a suspected drug dealer with no notice. Only problem is that the agents had the wrong address. That case created the so-called Consitutional Tort. And just so you know that it happens during my time in government since that case decided about 10,000 cases involving that issue were backlogged in the federal court system. Okay where does this leave US? You would think the Libertarians and Conservatives would push a statutory mandate that NO training could be conducted of federal officals and employees without legal review of the materials. As in the Hippocratic Oat–first do no wrong. Obviously this would not be an absolute guarantee since federal or contract instructors may freelance and deviate from the materials. Correctly or incorrectly.
I had personal experience with one case probably time to put on the record. This involved the teaching materials at the Army JAG school on the imposition of martial law within the US. Important subject! You betcha! Anyhow I turned a set of the materials over to the DOJ national security types. In particular Mary Lawton and Jack Goldklang (sic). They exploded. This resulted in a formal memo outlining the principles outlining the establishment of Martial Law by anyone in the US government or military and ws transmitted to DOD! Guess what turns out that only the President of the US can establish Martial Law and then only on the formal recommendation of both the Secretary DOD and Attorney General of the US! And it has to be for a limited geographic area and has to be declared in a publically available document. What is Martial Law–this is where not just criminal law enforcement by the military occurs–a violation of the so-called Posse Commitatus Act under Title 18 of the US Code–but the military actually runs the judicial system. Anything short of that is not technically Martial Law. Where the civil courts are fully operational no such declaration of martial law can legally occur. There is some limited authority in local military command authority to avoid disruptions to actual military operations but this is a highly technical area. Also of course, local military commanders are authorized to use their assets, including troops and equipment, to serve humanitarian purposes. The problem historically is that the military commander of the San Francison Military District at the time of the 1906 Earthquake himself declared martial law and a shoot on sight of looters order. Whatever you get my point.

By the way Mary Lawton wrote an excellent DOJ monograph on Use of the Armed Forces in Civil Disturbances that was issued in 1980. Try as much as I could DOJ despite repeated entreaties by me at high levels of DOJ had not updated that document as of my retirement on October 1, 1999. Hey if not updated should be. Again all repeat all training materials should undergo legal review and if questions raised about Constitutional norms probably DOJ review also. What is interesting is the with regards the Torture MEMOs appears that these were provided to DOJ but were not completely accurate. Not defending John Woo but clearly CIA lawyers should have been on the dotted line first. After all ALL are under the Constitution in the US! And the very first principle of Homeland Security and Emergency Management is that the Constiutiton CANNOT be waived by anyone including the President or the Attorney General. And it does appear the torture memos had a political appointee advocating “Waiver”!

Comment by Stephanie E.

July 23, 2009 @ 8:35 am

This was an educated man with an axe to grind similar to his couterpart (jesse and Al S.) ready to make any incodent about race. He saw a white officer and thought he would test the system by not giving identification and being beligerant. “Well played” , because you have gotten the spotlight you were seeking in a similar fashion to your counterparts.
But realize this,, In doing so, you have revealed the true charachter of our president which is to say that, when americans felt he was inexperienced and possibly elected on color, He confirms just that in his words, by making a stand on race during a critical health care reform plea. Someone more experienced would not have taken the focus away from such an important issue. Not to say race relations is not, however this was not time slotted for that.
Great strategy to bring this issue out in the open, well played gates “for you”.
Time will tell, I did not care about the color of his skin until last night when he made it an issue. This may further your cause against police, but deepen the divide between color !
I’m sure politics will eventually force the officer to apologize for doing his job. Hopefully no officer gets shot the next time, becasue they are worried about what our president might say.

Comment by Scott K.

July 23, 2009 @ 11:15 am

I understand there are goups of people in this country who feel they are profiled or treated unfairly by law enforcement. I know there have been several cases where law enforcement officers have overreacted or acted inappropriately. In some cases it was the heat of the moment, in others it was an inexcusable act that deserves to see that officer (or officers) punished. We are people and we all make mistakes or let emotions get in the way.
Certainly there are valid claims of racism and profiling and wrong doing. I think, however that this has gone way out of control. The job of law enforcement is a difficult and demanding one. It is a job that requires a mix of quick action, level headed response, instincts, force, tact and respect for peoples rights, often all at the same time.
I think what gets forgotten here is what law enforcement people have to go through on a day to day basis. At any moment of any day they are on the job, they could be shot, stabbed, run over, or any number of things. Getting throught the day and going home to family is formost on their minds. There are countless stories of officers who have made innocent traffic stops for nothing more than a broken tail light and were shot and killed by the driver. Officers who have gone to a noise complaint and been shot or suddenly set upon by someone with a weapon, waiting for them. This happens nearly every day in America.
For this very reason, the police unfortunately have to treat EVERYONE as suspect. They have to treat EVERY situation as possibly life threatening and they have to look at EVERYONE with a degree of suspition. To let your guard down at any time is to envite death or injury in a job where anyone you come in contact with could have ill intent on their mind.
Anyone, especially those of us just going about our lives and who follow the laws, would be mad, upset, offended, become defensive if we were suddenly confronted by law enforcement. Thats human nature. What did I do wrong? I was not doing anything, why are the police harrasing me? What you dont realize is that there may have been a murder or a stolen vehicle or a drug trafficer in a vehicle similar to yours…any number of things. And to do their job, police must follow any lead, take every precaution and treat you as a potential threat until they can determine without doubt you are innocent and not who they are looking for.
It is a sad and unfortunate fact in our society. I do not blame law enforcement for the way they act or react to situations. I blame our society for not cracking down harder on those who break the laws, particularly in a violent way. The people who force officers to act the way they act and take the often over the top precautions that many of us hate.
Until violent crime is brought under control, this will continue to be the norm in our society.
It is also an awful and unfortunante thing that Black Americans and Latino Americans are scrutinzed more by officers than White Americans are. While this is not always the case I think overall it is. I know profiling is upsetting to many people and offensive as well. It should be. But if you know a certain type of person is responsible for committing a large portion of the crimes in an area, wouldn’t you, as law enforcement, pay closer attention to that group? Put yourself in the postion of law enforcement. Really.
Yes it is awful that people get profiled and I really wish it were not the case. But lets examine a situation. And this is one I have actually seen myself. There are rap artists who sing about killing cops or tout breaking the law, they sing about it and pump it up as a glorious thing. This is allowed and tolerated as free speach. Ok, fine. Then you have young people who like these rap artists and try to emulate them. They dress like them, listen to the music, act like them, drive cars and wear the same cloths as them. Many of these rap artists have body guards and carry guns and have used them in rapper on rapper fueds. The young people see that and follow suit. They carry guns too and think its cool to go against the law and if a pig comes up on you its allowable to kill him because police are bad and hate Black people. The police know this is going on, so if they pull over a car full of people dressed like rappers, they are going to be more cautious and perhaps overly cautious than they would if they pulled over someone else.
If someone is wearing gang colors or wearing cloths in the same way a gang would, they are going to get treated like a gang member. The police have very little choice. To treat that person any differently invites a situation that could harm the officer.
If you are truely tired of law enforcment acting the way they do, then the best way to fix it is not to punish law enforcement (unless they have actually broken a law or acted badly) or to hinder their ability to control a situationad protect themselves. The only way to fix it responsiblally is to take away the violent situations that force officers to overreact in order to protect themselves.

Comment by William R. Cumming

July 23, 2009 @ 12:30 pm

Am I incorrect in my understanding the Officer was INSIDE the arrestee’s House when he returned home?

Comment by christopher tingus

July 27, 2009 @ 11:58 pm

You Mr. President were wrong, in fact, stupid, Sir, for making comment which was unfactual and defended an individual who has been a friend to you for so long….

Your comments were divisive rather than unifying in a waning Republic where your Chicago neighborhood roots seem to be far too inherent in your being. I remind you that millions of Whites and Blacks voted you in office seeking your impartiality as promised in your election, however you have numerous broken promises and now this unfortunate situation.

God Bless America!

Christopher Tingus
64 Whidah Drive
Harwich, MA 02645

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