A REAL Invasion of Privacy

By Scott Thill, AlterNet. Posted April 22, 2005.

If at first you don't succeed, then try again.

Both the Bush administration and its conservative base have taken that maxim to heart with a vengeance. After realizing that it would be impossible to avoid a Democratic filibuster of a proposed bill allowing drilling in Alaska's Arctic National Wildlife Refuge in the president's first term, Republicans piggy-backed the volatile proposition into a budget measure (which is immune to filibustering) in his second one. The fact that Democrats accused the opposition of bending the rules didn't seem to bother anyone. Republicans in the House and Senate recently tried the same thing with the REAL ID Act, a contentious piece of so-called immigration reform inserted surreptitiously into a House version of the Iraq Supplemental Appropriations bill. The bill passed in the House but was removed at the last minute from a Senate version of the supplemental bill when its sponsor, Senator Johnny Isakson of Georgia, realized it didn't have enough support. Stalled in conference committee right now, the bill has sparked an outcry among immigration groups across the nation, as well as civil liberties organizations worldwide.

"This is a refugee-bashing bill that would not protect Americans from terrorists and suspected terrorists already categorically barred from asylum," argues Erin Callahan, Western Regional Director of Amnesty International. "If passed, the Act would place burdens on asylum-seekers that would likely fall hardest on the most vulnerable among them."

The ACLU agrees. "The REAL ID Act is a civil rights disaster," explains Ahilan Arulanantham, attorney for the ACLU's Southern California chapter. "Several provisions effectively limit or end judicial review of immigration cases, including refugee cases, and that is a very serious issue."

The REAL ID Act (H.R. 418) encompasses four major provisions ostensibly designed to correct what Wisconsin Representative F. James Sensenbrenner called in a February 9 discussion on the House floor national "vulnerabilities" on "terrorist travel" noted by the 9/11 commission's report. Sensenbrenner, who also serves as the House Judiciary Committee Chairman, introduced H.R. 418 into the House version of the Iraq Supplemental Appropriations bill after the GOP was unsuccessful in attaching similar legislation, opposed by both the commissioners and majority of 9/11 family organizations, to the expansive Intelligence Reform Bill that passed in December 2004 with an overwhelming 89-2 vote.

But in the spirit of the 21st-century's never-say-die GOP, Rep. Sensenbrenner pushed onward with REAL ID, after holding up passage of the Intelligence Reform Bill because it dropped the Act's provisions, which were opposed by Harry Reid and Bill Frist alike. Finally, unable to get the votes on its own, Reprensentative Sensenbrenner snuck the bill on to something else entirely, to the indignation of immigrants and asylum seekers worldwide.

In a recent TomPaine.com article. Michigan Congressman John Conyers argues that the REAL ID Act is "anti-immigration legislation" and includes "provisions limiting [America's] asylum laws, making it easier to deport legal immigrants, denying immigrants long-standing habeus corpus rights, imposing onerous new driver's license requirements on the states, and waiving all federal laws concerning the construction of fences and barriers." Sensenbrenner's aforementioned rationale for REAL ID on the House floor is, of course, far more general and alarmist, insisting that the "Act contains a common-sense provision that helps protect Americans from terrorists who have infiltrated the United States" and that the current immigration problems Americans are experiencing are due to, what else, "liberal activist judges."

But civil rights organizations are livid that, once again, the GOP is using the back door to get its highly unpopular policies passed.

"It's a slap in the face that the REAL ID Act has been attached to the Supplemental bill," argues Katherine Culliton, attorney for the Mexican American Legal Defense and Education Fund (MALDEF), "because many of the troops serving in Afghanistan and Iraq are Latino immigrants. Attaching it to the appropriations bill means it's bypassing the proper deliberation and debate procedures normally reserved for such legislation. It should be going through the judiciary committee, not the appropriations committee. We're urging President Bush to use his political capital to stop this act from going through."

While that kind of last-minute intervention can be expected from President Bush when it comes to evangelical hot-button issues like the Terri Schiavo debacle, it is unlikely that anyone in the Bush administration would lift a finger to stop the REAL ID Act. Hard-line conservatives like Tom DeLay are applauding the legislation, explaining to the Washington Times that he "personally think[s] that we ought to use the eyes and ears of our military" to control immigration. For those not sure exactly what that means, Senator Isakson has reductively distilled the REAL ID Act into a handy sound-bite for those not interested in labyrinthine legalspeak. "REAL ID is not an immigration issue," Isakson told the Senate floor on April 13. "It is a national security issue."

But is it? Not if you ask the ACLU, who places REAL ID's attack on immigrants in the context of greater Republican efforts to undermine the strength of the courts. "Since 9/11, but even before that time," explains Arulanantham, "we've seen a huge number of government abuses of power pertaining to immigration. The way our immigration system is set up, the only independent judges that review immigration cases are those of the federal courts; the other judges in the system are actually employees of the Attorney General. So it is not surprising that this bill, in several different ways, seeks to end the critical check on government power that federal judges provide in this area. That is a very serious civil rights issue, and almost certainly unconstitutional."

"As far as how it is being pursued procedurally," Arulanantham continues, "this is obviously an attempt to make opponents of REAL ID look as though they wanted to vote against appropriations for Iraq and Afghanistan. It's sad that such important and momentous civil rights legislation is being shuttled in through the back door in an attempt to frustrate debate on what remains a very important issue."

The REAL ID Act has other, more nefarious, sticking points. "For example," claims Angelica Salas, executive director of the Coalition for Human Immigrant Rights of Los Angeles (CHIRLA), "the asylum provision forces asylum seekers to prove, through documentation from their home government, that they are indeed being persecuted by that same government. Which is ludicrous. There's no way they're going to be able to acquire that kind of documentation."

It gets worse, Salas explains. "The other problematic provision is the one that offers incentives to bounty hunters seeking out undocumented immigrants on the absconder list or those who have failed to appear at their deportation hearings. Giving bounty hunters monetary compensation for capturing undocumented immigrants is simply wrong. It takes us back to the time of slavery, where bounty hunters were employed to capture slaves that had fled the plantation. Enforcement responsibilities belong to immigration, and shouldn't be given to the people so they can make money off of them."

While vigilante justice may go over like gangbusters in American popular culture, it doesn't have any place in a national policy on immigration, according to Salas, Culliton and the many others opposed to REAL ID. In fact, it only exacerbates what is already a serious social problem.

"I'm glad that President Bush has correctly called The Minutemen vigilantes," says Culliton. "And MALDEF has actually sued vigilante groups, because they're much more than a simple neighborhood watch. There have been numerous cases of abuse and illegal detentions; people are not supposed to be taking the law into their own hands. Immigration decisions should be made by the proper authorities in the federal government and the judicial system. After all, this is America: Everyone has the right to a fair trial."

But for how much longer? For all of its considerable controversies, it is the REAL ID Act's Orwellian overtones that concern Arulanantham and the ACLU the most. "We are particularly concerned about the driver's license aspect of the bill, which ... puts us on the path to a national ID card. ...[C]reating uniform standards will make it easier for the government to use tracking technology to monitor people. Which is a serious privacy issue."

Indeed, that panoptic scenario of control and command is only accentuated by a REAL ID provision that clears the way for the construction of military-style fences along the entire Southwestern border, at the cost of $3 million per mile. Equally alarming, the project would be immune to the law.

"The Department of Homeland Security," Culliton claims, "would waive the application of any law -- labor, civil rights, environmental or otherwise -- in regards to construction of the fence. Which means that any grievance filed during the construction would be ignored. But aside from the usual objections, we're also against the fence because we know it's not going to fix the underlying problem. It's not going to stop undocumented immigration. We've already tried it and it's only led to more deaths in the desert, more corruption and grave suffering for entire communities."

All of which begs the question: What are the true motives behind the REAL ID Act, which seeks to reform America's immigration and asylum problems with everything from Wild West concoctions like bounty hunters and hard-to-scale walls to more Orwellian propositions like creating mammoth databases, erasing habeus corpus and demanding documentation from dictatorships from those seeking to flee them? How about good old xenophobia and paranoia?

"We know that the 9/11 hijackers were here under lawful, legal status," argues Culliton. "In addition, we also know that the more than 100 anti-immigrant measures enacted after 9/11 haven't led to a single identification or investigation of terrorists. But they have caused a serious amount of harassment for the Latino community. There are xenophobic groups that have taken advantage of the 9/11 tragedy, and they're very vocal. I hope the American public wakes up and forces the government to enact legislation that will actually make us safer, which is to find the real terrorists rather than blankly targeting immigrants."

Arulanantham agrees. "I don't understand where the attack on immigrants comes from. At times, of course, it's just part of the core conservative agenda, but in this case it's not. Some Republicans favor legislation that is helpful toward immigrants, but I think for the rest what they really want is to get people to come here and work without giving them any rights. They want legislation that both allows them to come here and function as labor, but denies them the civil and human rights protections that all people deserve."

Which seems, in the end, to be the logical if not soporific symptom of a nation of immigrants that, if the REAL ID Act were enforced when their ancestors arrived on a slave ship or the Mayflower itself, probably would have been turned away at the gate. "We sometimes forget," cautions Salas "once we arrive in America and eventually become natives, how we got here. Or that others will continue to come here. Immigration is a natural phenomenon. Of course, every country needs to protect its sovereignty and borders, but our policies need to make sense in the real world."

Scott Thill runs the online mag Morphizm.com, while finding the time to rant for Salon, XLR8R, All Music Guide, AOL and others. His first novel, The Dangerous Perhaps, should be done by the time the War on Terrorism is over.

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