On Jul 10, 2008, at 4:09 PM, Mohamad Anwar wrote:
Dear Fellow MN Translators,
A friend of mine directed my attention to the
following disturbing incident which does involve our career as
translators/interpreters and I wanted to share it with you.Here is
her message to me followed by the narration. Thank you
Mohamad Anwar
651-210-7455
======================================================================
Dear Friends and Family:
I ask each of you to take some time to read the attached essay,
written by Florida International University's Professor Erik Camayd-
Freixas, Ph.D, with respect to the recent ICE raid in Potsville,
Iowa. This week Julia Preston of the NY Times is running an
exclusive story on it, and an editorial will follow in the Des Moines
Register and possibly another one in the Times. In addition, the
author has been asked to testify before Congress later this month at
the Immigration Sub-Committee of the House of Representatives. Due
to the immense humanitarian crisis that continues, some individuals
would like to make donations. If you would like to make donations,
they can be sent to:
St. Bridget's Hispanic Ministry Fund
c/o Sister Mary McCauley
PO Box 369
Postville, Iowa 52162 Thank you for your time and attention to this
matter. I know we all lead very busy lives, but this is an issue that
hits right at the heart, and I believe everyone should hear it.
Ingrid B. Christensen, President
INGCO International
100 West Franklin Avenue - Suite 200
Minneapolis, Minnesota 55404
p: 612-819-1314 f: 612-605-1991
www.ingcointernational.com======================================================================
Interpreting after the Largest ICE Raid in US History:
A Personal Account
Erik Camayd-Freixas, Ph.D.
Florida International University
June 13, 2008
On Monday, May 12, 2008, at 10:00 a.m., in an operation involving
some 900 agents, Immigration and Customs Enforcement (ICE) executed a
raid of Agriprocessors Inc, the nation's largest kosher
slaughterhouse and meat packing plant located in the town of
Postville, Iowa. The raid –officials boasted– was "the largest single-
site operation of its kind in American history." At that same hour,
26 federally certified interpreters from all over the country were en
route to the small neighboring city of Waterloo, Iowa, having no idea
what their mission was about. The investigation had started more than
a year earlier. Raid preparations had begun in December. The Clerk's
Office of the U.S. District Court had contracted the interpreters a
month ahead, but was not at liberty to tell us the whole truth, lest
the impending raid be compromised. The operation was led by ICE,
which belongs to the executive branch, whereas the U.S. District
Court, belonging to the judicial branch, had to formulate its own
official reason for participating. Accordingly, the Court had to move
for two weeks to a remote location as part of a "Continuity of
Operation Exercise" in case they were ever disrupted by an emergency,
which in Iowa is likely to be a tornado or flood. That is what we
were told, but, frankly, I was not prepared for a disaster of such a
different kind, one which was entirely man-made.
I arrived late that Monday night and missed the 8pm
interpreters briefing. I was instructed by phone to meet at 7am in
the hotel lobby and carpool to the National Cattle Congress (NCC)
where we would begin our work. We arrived at the heavily guarded
compound, went through security, and gathered inside the
retro "Electric Park Ballroom" where a makeshift court had been set
up. The Clerk of Court, who coordinated the interpreters, said: "Have
you seen the news? There was an immigration raid yesterday at 10am.
They have some 400 detainees here. We'll be working late conducting
initial appearances for the next few days." He then gave us a cursory
tour of the compound. The NCC is a 60-acre cattle fairground that had
been transformed into a sort of concentration camp or detention
center. Fenced in behind the ballroom / courtroom were 23 trailers
from federal authorities, including two set up as sentencing courts;
various Homeland Security buses and an "incident response" truck;
scores of ICE agents and U.S. Marshals; and in the background two
large buildings: a pavilion where agents and prosecutors had
established a command center; and a gymnasium filled with tight rows
of cots where some 300 male detainees were kept, the women being
housed in county jails. Later the NCC board complained to the local
newspaper that they had been "misled" by the government when they
leased the grounds purportedly for Homeland Security training.
Echoing what I think was the general feeling, one of my
fellow interpreters would later exclaim: "When I saw what it was
really about, my heart sank…" Then began the saddest procession I
have ever witnessed, which the public would never see, because
cameras were not allowed past the perimeter of the compound (only a
few journalists came to court the following days, notepad in hand).
Driven single-file in groups of 10, shackled at the wrists, waist and
ankles, chains dragging as they shuffled through, the slaughterhouse
workers were brought in for arraignment, sat and listened through
headsets to the interpreted initial appearance, before marching out
again to be bused to different county jails, only to make room for
the next row of 10. They appeared to be uniformly no more than 5 ft.
tall, mostly illiterate Guatemalan peasants with Mayan last names,
some being relatives (various Tajtaj, Xicay, Sajché, Sologüí…), some
in tears; others with faces of worry, fear, and embarrassment. They
all spoke Spanish, a few rather laboriously. It dawned on me that,
aside from their nationality, which was imposed on their people in
the 19th century, they too were Native Americans, in shackles. They
stood out in stark racial contrast with the rest of us as they
started their slow penguin march across the makeshift court. "Sad
spectacle" I heard a colleague say, reading my mind. They had all
waived their right to be indicted by a grand jury and accepted
instead an information or simple charging document by the U.S.
Attorney, hoping to be quickly deported since they had families to
support back home. But it was not to be. They were criminally charged
with "aggravated identity theft" and "Social Security fraud" —charges
they did not understand… and, frankly, neither could I. Everyone
wondered how it would all play out.
We got off to a slow start that first day, because ICE's
barcode booking system malfunctioned, and the documents had to be
manually sorted and processed with the help of the U.S. Attorney's
Office. Consequently, less than a third of the detainees were ready
for arraignment that Tuesday. There were more than enough
interpreters at that point, so we rotated in shifts of three
interpreters per hearing. Court adjourned shortly after 4pm. However,
the prosecution worked overnight, planning on a 7am to midnight court
marathon the next day.
I was eager to get back to my hotel room to find out more
about the case, since the day's repetitive hearings afforded little
information, and everyone there was mostly refraining from comment.
There was frequent but sketchy news on local TV. A colleague had
suggested The Des Moines Register. So I went to DesMoinesRegister.com
and started reading all the 20+ articles, as they appeared each day,
and the 57-page ICE Search Warrant Application. These were the vital
statistics. Of Agriprocessors' 968 current employees, about 75% were
illegal immigrants. There were 697 arrest warrants, but late-shift
workers had not arrived, so "only" 390 were arrested: 314 men and 76
women; 290 Guatemalans, 93 Mexicans, four Ukrainians, and three
Israelis who were not seen in court. Some were released on
humanitarian grounds: 56 mostly mothers with unattended children, a
few with medical reasons, and 12 juveniles were temporarily released
with ankle monitors or directly turned over for deportation. In all,
306 were held for prosecution. Only five of the 390 originally
arrested had any kind of prior criminal record. There remained 307
outstanding warrants.
This was the immediate collateral damage. Postville, Iowa
(pop. 2,273), where nearly half the people worked at Agriprocessors,
had lost 1/3 of its population by Tuesday morning. Businesses were
empty, amid looming concerns that if the plant closed it would become
a ghost town. Beside those arrested, many had fled the town in fear.
Several families had taken refuge at St. Bridget's Catholic Church,
terrified, sleeping on pews and refusing to leave for days.
Volunteers from the community served food and organized activities
for the children. At the local high school, only three of the 15
Latino students came back on Tuesday, while at the elementary and
middle school, 120 of the 363 children were absent. In the following
days the principal went around town on the school bus and gathered 70
students after convincing the parents to let them come back to
school; 50 remained unaccounted for. Some American parents complained
that their children were traumatized by the sudden disappearance of
so many of their school friends. The principal reported the same
reaction in the classrooms, saying that for the children it was as if
ten of their classmates had suddenly died. Counselors were brought
in. American children were having nightmares that their parents too
were being taken away. The superintendant said the school district's
future was unclear: "This literally blew our town away." In some
cases both parents were picked up and small children were left behind
for up to 72 hours. Typically, the mother would be released "on
humanitarian grounds" with an ankle GPS monitor, pending prosecution
and deportation, while the husband took first turn in serving his
prison sentence. Meanwhile the mother would have no income and could
not work to provide for her children. Some of the children were born
in the U.S. and are American citizens. Sometimes one parent was a
deportable alien while the other was not. "Hundreds of families were
torn apart by this raid," said a Catholic nun. "The humanitarian
impact of this raid is obvious to anyone in Postville. The economic
impact will soon be evident."
But this was only the surface damage. Alongside the many
courageous actions and expressions of humanitarian concern in the
true American spirit, the news blogs were filled with snide remarks
of racial prejudice and bigotry, poorly disguised beneath an empty
rhetoric of misguided patriotism, not to mention the insults to
anyone who publicly showed compassion, safely hurled from behind a
cowardly online nickname. One could feel the moral fabric of society
coming apart beneath it all.
The more I found out, the more I felt blindsighted into an
assignment of which I wanted no part. Even though I understood the
rationale for all the secrecy, I also knew that a contract
interpreter has the right to refuse a job which conflicts with his
moral intuitions. But I had been deprived of that opportunity. Now I
was already there, far from home, and holding a half-spent $1,800
plane ticket. So I faced a frustrating dilemma. I seriously
considered withdrawing from the assignment for the first time in my
23 years as a federally certified interpreter, citing conflict of
interest. In fact, I have both an ethical and contractual obligation
to withdraw if a conflict of interest exists which compromises my
neutrality. Appended to my contract are the Standards for Performance
and Professional Responsibility for Contract Court Interpreters in
the Federal Courts, where it states: "Interpreters shall disclose any
real or perceived conflict of interest… and shall not serve in any
matter in which they have a conflict of interest." The question was
did I have one. Well, at that point there was not enough evidence to
make that determination. After all, these are illegal aliens and
should be deported —no argument there, and hence no conflict. But
should they be criminalized and imprisoned? Well, if they committed a
crime and were fairly adjudicated… But all that remained to be seen.
In any case, none of it would shake my impartiality or prevent me
from faithfully discharging my duties. In all my years as a court
interpreter, I have taken front row seat in countless criminal cases
ranging from rape, capital murder and mayhem, to terrorism, narcotics
and human trafficking. I am not the impressionable kind. Moreover, as
a professor of interpreting, I have confronted my students with every
possible conflict scenario, or so I thought. The truth is that
nothing could have prepared me for the prospect of helping our
government put hundreds of innocent people in jail. In my ignorance
and disbelief, I reluctantly decided to stay the course and see what
happened next.
Wednesday, May 14, our second day in court, was to be a long
one. The interpreters were divided into two shifts, 8am to 3pm and
3pm to 10pm. I chose the latter. Through the day, the procession
continued, ten by ten, hour after hour, the same charges, the same
recitation from the magistrates, the same faces, chains and shackles,
on the defendants. There was little to remind us that they were
actually 306 individuals, except that occasionally, as though to
break the monotony, one would dare to speak for the others and beg to
be deported quickly so that they could feed their families back home.
One who turned out to be a minor was bound over for deportation. The
rest would be prosecuted. Later in the day three groups of women were
brought, shackled in the same manner. One of them, whose husband was
also arrested, was released to care for her children, ages two and
five, uncertain of their whereabouts. Several men and women were
weeping, but two women were particularly grief stricken. One of them
was sobbing and would repeatedly struggle to bring a sleeve to her
nose, but her wrists shackled around her waist simply would not
reach; so she just dripped until she was taken away with the rest.
The other one, a Ukrainian woman, was held and arraigned separately
when a Russian telephonic interpreter came on. She spoke softly into
a cellular phone, while the interpreter told her story in English
over the speakerphone. Her young daughter, gravely ill, had lost her
hair and was too weak to walk. She had taken her to Moscow and Kiev
but to no avail. She was told her child needed an operation or would
soon die. She had come to America to work and raise the money to save
her daughter back in Ukraine. In every instance, detainees who cried
did so for their children, never for themselves.
The next day we started early, at 6:45am. We were told that
we had to finish the hearings by 10am. Thus far the work had oddly
resembled a judicial assembly line where the meat packers were mass
processed. But things were about to get a lot more personal as we
prepared to interpret for individual attorney-client conferences. In
those first three days, interpreters had been pairing up with defense
attorneys to help interview their clients. Each of the 18 court
appointed attorneys represented 17 defendants on average. By now, the
clients had been sent to several state and county prisons throughout
eastern Iowa, so we had to interview them in jail. The attorney with
whom I was working had clients in Des Moines and wanted to be there
first thing in the morning. So a colleague and I drove the 2.5 hours
that evening and stayed overnight in a hotel outside the city. We met
the attorney in jail Friday morning, but the clients had not been
accepted there and had been sent instead to a state penitentiary in
Newton, another 45-minute drive. While we waited to be admitted, the
attorney pointed out the reason why the prosecution wanted to finish
arraignments by 10am Thursday: according to the writ of habeas corpus
they had 72 hours from Monday's raid to charge the prisoners or
release them for deportation (only a handful would be so lucky). The
right of habeas corpus, but of course! It dawned on me that we were
paid overtime, adding hours to the day, in a mad rush to abridge
habeas corpus, only to help put more workers in jail. Now I really
felt bad. But it would soon get worse. I was about to bear the brunt
of my conflict of interest.
It came with my first jail interview. The purpose was for the
attorney to explain the uniform Plea Agreement that the government
was offering. The explanation, which we repeated over and over to
each client, went like this. There are three possibilities. If you
plead guilty to the charge of "knowingly using a false Social
Security number," the government will withdraw the heavier charge
of "aggravated identity theft," and you will serve 5 months in jail,
be deported without a hearing, and placed on supervised release for 3
years. If you plead not guilty, you could wait in jail 6 to 8 months
for a trial (without right of bail since you are on an immigration
detainer). Even if you win at trial, you will still be deported, and
could end up waiting longer in jail than if you just pled guilty. You
would also risk losing at trial and receiving a 2-year minimum
sentence, before being deported. Some clients understood
their "options" better than others.
That first interview, though, took three hours. The client, a
Guatemalan peasant afraid for his family, spent most of that time
weeping at our table, in a corner of the crowded jailhouse visiting
room. How did he come here from Guatemala? "I walked." What? "I
walked for a month and ten days until I crossed the river." We
understood immediately how desperate his family's situation was. He
crossed alone, met other immigrants, and hitched a truck ride to
Dallas, then Postville, where he heard there was sure work. He slept
in an apartment hallway with other immigrants until employed. He had
scarcely been working a couple of months when he was arrested. Maybe
he was lucky: another man who began that Monday had only been working
for 20 minutes. "I just wanted to work a year or two, save, and then
go back to my family, but it was not to be." His case and that of a
million others could simply be solved by a temporary work permit as
part of our much overdue immigration reform. "The Good Lord knows I
was just working and not doing anyone any harm." This man, like many
others, was in fact not guilty. "Knowingly" and "intent" are
necessary elements of the charges, but most of the clients we
interviewed did not even know what a Social Security number was or
what purpose it served. This worker simply had the papers filled out
for him at the plant, since he could not read or write Spanish, let
alone English. But the lawyer still had to advise him that pleading
guilty was in his best interest. He was unable to make a
decision. "You all do and undo," he said. "So you can do whatever you
want with me." To him we were part of the system keeping him from
being deported back to his country, where his children, wife, mother,
and sister depended on him. He was their sole support and did not
know how they were going to make it with him in jail for 5 months.
None of the "options" really mattered to him. Caught between despair
and hopelessness, he just wept. He had failed his family, and was
devastated. I went for some napkins, but he refused them. I offered
him a cup of soda, which he superstitiously declined, saying it could
be "poisoned." His Native American spirit was broken and he could no
longer think. He stared for a while at the signature page pretending
to read it, although I knew he was actually praying for guidance and
protection. Before he signed with a scribble, he said: "God knows you
are just doing your job to support your families, and that job is to
keep me from supporting mine." There was my conflict of interest,
well put by a weeping, illiterate man.
We worked that day for as long as our emotional fortitude allowed,
and we had to come back to a full day on Sunday to interview the rest
of the clients. Many of the Guatemalans had the same predicament. One
of them, a 19-year-old, worried that his parents were too old to
work, and that he was the only support for his family back home. We
will never know how many of the 293 Guatemalans had legitimate asylum
claims for fear of persecution, back in a country stigmatized by the
worst human rights situation in the hemisphere, a by-product of the
US-backed Contra wars of 1980s' Central America under the old domino
theory. For three decades, anti-insurgent government death squads
have ravaged the countryside, killing tens of thousands and
displacing almost two million peasants. Even as we proceeded with the
hearings during those two weeks in May, news coming out of Guatemala
reported farm workers being assassinated for complaining publicly
about their working conditions. Not only have we ignored the many
root causes of illegal immigration, we also will never know which of
these deportations will turn out to be a death sentence, or how many
of these displaced workers are last survivors with no family or
village to return to.
Another client, a young Mexican, had an altogether different case. He
had worked at the plant for ten years and had two American born
daughters, a 2-year-old and a newborn. He had a good case with
Immigration for an adjustment of status which would allow him to
stay. But if he took the Plea Agreement, he would lose that chance
and face deportation as a felon convicted of a crime of "moral
turpitude." On the other hand, if he pled "not guilty" he had to wait
several months in jail for trial, and risk getting a 2-year sentence.
After an agonizing decision, he concluded that he had to take the 5-
month deal and deportation, because as he put it, "I cannot be away
from my children for so long." His case was complicated; it needed
research in immigration law, a change in the Plea Agreement, and,
above all, more time. There were other similar cases in court that
week. I remember reading that immigration lawyers were alarmed that
the detainees were being rushed into a plea without adequate
consultation on the immigration consequences. Even the criminal
defense attorneys had limited opportunity to meet with clients: in
jail there were limited visiting hours and days; at the compound
there was little time before and after hearings, and little privacy
due to the constant presence of agents. There were 17 cases for each
attorney, and the Plea offer was only good for 7 days. In addition,
criminal attorneys are not familiar with immigration work and vice
versa, but had to make do since immigration lawyers were denied
access to these criminal proceedings.
In addition, the prosecutors would not accept any changes to the Plea
Agreement. In fact, some lawyers, seeing that many of their clients
were not guilty, requested an Alford plea, whereby defendants can
plead guilty in order to accept the prosecution's offer, but without
having to lie under oath and admit to something they did not do. That
would not change the 5-month sentence, but at least it preserves the
person's integrity and dignity. The proposal was rejected. Of course,
if they allowed Alford pleas to go on public record, the incongruence
of the charges would be exposed and find its way into the media.
Officially, the ICE prosecutors said the Plea Agreement was directed
from the Department of Justice in Washington, D.C., that they were
not authorized to change it locally, and that the DOJ would not make
any case by case exceptions when a large number of defendants are
being "fast-tracked." Presumably if you gave different terms to one
individual, the others will want the same. This position, however,
laid bare one of the critical problems with this new practice
of "fast-tracking." Even real criminals have the right of severance:
when co-defendants have different degrees of responsibility, there is
an inherent conflict of interest, and they can ask to be prosecuted
separately as different cases, each with a different attorney. In
fast-tracking, however, the right of severance is circumvented
because each defendant already has a different case number on paper,
only that they are processed together, 10 cases at a time. At this
point, it is worth remembering also that even real criminals have an
8th Amendment right to reasonable bail, but not illegal workers,
because their immigration detainer makes bail a moot issue. We had
already circumvented habeas corpus by doubling the court's business
hours. What about the 6th Amendment right to a "speedy trial"? In
many states "speedy" means 90 days, but in federal law it is vaguely
defined, potentially exceeding the recommended sentence, given the
backlog of real cases. This served as another loophole to force a
guilty plea. Many of these workers were sole earners begging to be
deported, desperate to feed their families, for whom every day
counted. "If you want to see your children or don't want your family
to starve, sign here" –that is what their deal amounted to. Their
Plea Agreement was coerced.
We began week two Monday, May 19th. Those interpreters who left after
the first week were spared the sentencing hearings that went on
through Thursday. Those who came in fresh the second week were spared
the jail visits over the weekend. Those of us who stayed both weeks
came back from the different jails burdened by a close personal
contact that judges and prosecutors do not get to experience: each
individual tragedy multiplied by 306 cases. One of my colleagues
began the day by saying "I feel a tremendous solidarity with these
people." Had we lost our impartiality? Not at all: that was our
impartial and probably unanimous judgment. We had seen attorneys hold
back tears and weep alongside their clients. We would see judges,
prosecutors, clerks, and marshals do their duty, sometimes with a
heavy heart, sometimes at least with mixed feelings, but always with
a particular solemnity not accorded to the common criminals we all
are used to encountering in the judicial system. Everyone was
extremely professional and outwardly appreciative of the
interpreters. We developed among ourselves and with the clerks, with
whom we worked closely, a camaraderie and good humor that kept us
going. Still, that Monday morning I felt downtrodden by the sheer
magnitude of the events. Unexpectedly, a sentencing hearing lifted my
spirits.
I decided to do sentences on Trailer 2 with a judge I knew from real
criminal trials in Iowa. The defendants were brought in 5 at a time,
because there was not enough room for 10. The judge verified that
they still wanted to plead guilty, and asked counsel to confirm their
Plea Agreement. The defense attorney said that he had expected a much
lower sentence, but that he was forced to accept the agreement in the
best interest of his clients. For us who knew the background of the
matter, that vague objection, which was all that the attorney could
put on record, spoke volumes. After accepting the Plea Agreement and
before imposing sentence, the judge gave the defendants the right of
allocution. Most of them chose not to say anything, but one who was
the more articulate said humbly: "Your honor, you know that we are
here because of the need of our families. I beg that you find it in
your heart to send us home before too long, because we have a
responsibility to our children, to give them an education, clothing,
shelter, and food." The good judge explained that unfortunately he
was not free to depart from the sentence provided for by their Plea
Agreement. Technically, what he meant was that this was a binding 11
(C)(1)(c) Plea Agreement: he had to accept it or reject it as a
whole. But if he rejected it, he would be exposing the defendants to
a trial against their will. His hands were tied, but in closing he
said onto them very deliberately: "I appreciate the fact that you are
very hard working people, who have come here to do no harm. And I
thank you for coming to this country to work hard. Unfortunately, you
broke a law in the process, and now I have the obligation to give you
this sentence. But I hope that the U.S. government has at least
treated you kindly and with respect, and that this time goes by
quickly for you, so that soon you may be reunited with your family
and friends." The defendants thanked him, and I saw their faces
change from shame to admiration, their dignity restored. I think we
were all vindicated at that moment.
Before the judge left that afternoon, I had occasion to talk to him
and bring to his attention my concern over what I had learned in the
jail interviews. At that point I realized how precious the
interpreter's impartiality truly is, and what a privileged
perspective it affords. In our common law adversarial system, only
the judge, the jury, and the interpreter are presumed impartial. But
the judge is immersed in the framework of the legal system, whereas
the interpreter is a layperson, an outsider, a true representative of
the common citizen, much like "a jury of his peers." Yet, contrary to
the jury, who only knows the evidence on record and is generally
unfamiliar with the workings of the law, the interpreter is an
informed layperson. Moreover, the interpreter is the only one who
gets to see both sides of the coin up close, precisely because he is
the only participant who is not a decision maker, and is even
precluded, by his oath of impartiality and neutrality, from ever
influencing the decisions of others. That is why judges in particular
appreciate the interpreter's perspective as an impartial and informed
layperson, for it provides a rare glimpse at how the innards of the
legal system look from the outside. I was no longer sorry to have
participated in my capacity as an interpreter. I realized that I had
been privileged to bear witness to historic events from such a unique
vantage point and that because of its uniqueness I now had a civic
duty to make it known. Such is the spirit that inspired this essay.
That is also what prompted my brief conversation with the
judge: "Your honor, I am concerned from my attorney-client interviews
that many of these people are clearly not guilty, and yet they have
no choice but to plead out." He understood immediately and, not
surprisingly, the seasoned U.S. District Court Judge spoke as someone
who had already wrestled with all the angles. He said: "You know, I
don't agree with any of this or with the way it is being done. In
fact, I ruled in a previous case that to charge somebody with
identity theft, the person had to at least know of the real owner of
the Social Security number. But I was reverted in another district
and yet upheld in a third." I understood that the issue was a matter
of judicial contention. The charge of identity theft seemed from the
beginning incongruous to me as an informed, impartial layperson, but
now a U.S. District Court Judge agreed. As we bid each other
farewell, I kept thinking of what he said. I soon realized that he
had indeed hit the nail on the head; he had given me, as it were, the
last piece of the puzzle.
It works like this. By handing down the inflated charge
of "aggravated identity theft," which carries a mandatory minimum
sentence of 2 years in prison, the government forced the defendants
into pleading guilty to the lesser charge and accepting 5 months in
jail. Clearly, without the inflated charge, the government had no
bargaining leverage, because the lesser charge by itself, using a
false Social Security number, carries only a discretionary sentence
of 0-6 months. The judges would be free to impose sentence within
those guidelines, depending on the circumstances of each case and any
prior record. Virtually all the defendants would have received only
probation and been immediately deported. In fact, the government's
offer at the higher end of the guidelines (one month shy of the
maximum sentence) was indeed no bargain. What is worse, the inflated
charge, via the binding 11(C)(1)(c) Plea Agreement, reduced the
judges to mere bureaucrats, pronouncing the same litany over and over
for the record in order to legalize the proceedings, but having
absolutely no discretion or decision-making power. As a citizen, I
want our judges to administer justice, not a federal agency. When the
executive branch forces the hand of the judiciary, the result is
abuse of power and arbitrariness, unworthy of a democracy founded
upon the constitutional principle of checks and balances.
To an impartial and informed layperson, the process resembled a
lottery of justice: if the Social Security number belonged to someone
else, you were charged with identity theft and went to jail; if by
luck it was a vacant number, you would get only Social Security fraud
and were released for deportation. In this manner, out of 297 who
were charged on time, 270 went to jail. Bothered by the arbitrariness
of that heavier charge, I went back to the ICE Search Warrant
Application (pp. 35-36), and what I found was astonishing. On
February 20, 2008, ICE agents received social security "no match"
information for 737 employees, including 147 using numbers confirmed
by the SSA as invalid (never issued to a person) and 590 using valid
SSNs, "however the numbers did not match the name of the employee
reported by Agriprocessors…" "This analysis would not account for the
possibility that a person may have falsely used the identity of an
actual person's name and SSN." "In my training and expertise, I know
it is not uncommon for aliens to purchase identity documents which
include SSNs that match the name assigned to the number." Yet, ICE
agents checked Accurint, the powerful identity database used by law
enforcement, and found that 983 employees that year had non-matching
SSNs. Then they conducted a search of the FTC Consumer Sentinel
Network for reporting incidents of identity theft. "The search
revealed that a person who was assigned one of the social security
numbers used by an employee of Agriprocessors has reported his/her
identity being stolen." That is, out of 983 only 1 number (0.1%)
happened to coincide by chance with a reported identity theft. The
charge was clearly unfounded; and the raid, a fishing expedition. "On
April 16, 2008, the US filed criminal complaints against 697
employees, charging them with unlawfully using SSNs in violation of
Title 42 USC §408(a)(7)(B); aggravated identity theft in violation of
18 USC §1028A(a)(1); and/or possession or use of false identity
documents for purposes of employment in violation of 18 USC §1546."
Created by Congress in an Act of 1998, the new federal offense of
identity theft, as described by the DOJ
(http://www.usdoj.gov/criminal/fraud/websites/idtheft.html), bears no
relation to the Postville cases. It specifically states: "knowingly
uses a means of identification of another person with the intent to
commit any unlawful activity or felony" [18 USC §1028(a)]. The
offense clearly refers to harmful, felonious acts, such as obtaining
credit under another person's identity. Obtaining work, however, is
not an "unlawful activity." No way would a grand jury find probable
cause of identity theft here. But with the promise of faster
deportation, their ignorance of the legal system, and the limited
opportunity to consult with counsel before arraignment, all the
workers, without exception, were led to waive their 5th Amendment
right to grand jury indictment on felony charges. Waiting for a grand
jury meant months in jail on an immigration detainer, without the
possibility of bail. So the attorneys could not recommend it as a
defense strategy. Similarly, defendants have the right to a status
hearing before a judge, to determine probable cause, within ten days
of arraignment, but their Plea Agreement offer from the government
was only good for… seven days. Passing it up, meant risking 2 years
in jail. As a result, the frivolous charge of identity theft was
assured never to undergo the judicial test of probable cause. Not
only were defendants and judges bound to accept the Plea Agreement,
there was also absolutely no defense strategy available to counsel.
Once the inflated charge was handed down, all the pieces fell into
place like a row of dominoes. Even the court was banking on it when
it agreed to participate, because if a good number of defendants
asked for a grand jury or trial, the system would be overwhelmed. In
short, "fast-tracking" had worked like a dream.
It is no secret that the Postville ICE raid was a pilot operation, to
be replicated elsewhere, with kinks ironed out after lessons learned.
Next time, "fast-tracking" will be even more relentless. Never before
has illegal immigration been criminalized in this fashion. It is no
longer enough to deport them: we first have to put them in chains. At
first sight it may seem absurd to take productive workers and keep
them in jail at taxpayers' expense. But the economics and politics of
the matter are quite different from such rational assumptions. A
quick look at the ICE Fiscal Year 2007 Annual Report (www.ice.gov)
shows an agency that has grown to 16,500 employees and a $5 billion
annual budget, since it was formed under Homeland Security in March
2003, "as a law enforcement agency for the post-9/11 era, to
integrate enforcement authorities against criminal and terrorist
activities, including the fights against human trafficking and
smuggling, violent transnational gangs and sexual predators who prey
on children" (17). No doubt, ICE fulfills an extremely important and
noble duty. The question is why tarnish its stellar reputation by
targeting harmless illegal workers. The answer is economics and
politics. After 9/11 we had to create a massive force with
readiness "to prevent, prepare for and respond to a wide range of
catastrophic incidents, including terrorist attacks, natural
disasters, pandemics and other such significant events that require
large-scale government and law enforcement response" (23). The
problem is that disasters, criminality, and terrorism do not provide
enough daily business to maintain the readiness and muscle tone of
this expensive force. For example, "In FY07, ICE human trafficking
investigations resulted in 164 arrests and 91 convictions" (17).
Terrorism related arrests were not any more substantial. The real
numbers are in immigration: "In FY07, ICE removed 276,912 illegal
aliens" (4). ICE is under enormous pressure to turn out statistical
figures that might justify a fair utilization of its capabilities,
resources, and ballooning budget. For example, the Report boasts
102,777 cases "eliminated" from the fugitive alien population in
FY07, "quadrupling" the previous year's number, only to admit a page
later that 73,284 were "resolved" by simply "taking those cases off
the books" after determining that they "no longer met the definition
of an ICE fugitive" (4-5).
De facto, the rationale is: we have the excess capability; we are
already paying for it; ergo, use it we must. And using it we are:
since FY06 "ICE has introduced an aggressive and effective campaign
to enforce immigration law within the nation's interior, with a top-
level focus on criminal aliens, fugitive aliens and those who pose a
threat to the safety of the American public and the stability of
American communities" (6). Yet, as of October 1, 2007, the "case
backlog consisted of 594,756 ICE fugitive aliens" (5). So again, why
focus on illegal workers who pose no threat? Elementary: they are
easy pickings. True criminal and fugitive aliens have to be picked up
one at a time, whereas raiding a slaughterhouse is like hitting a
small jackpot: it beefs up the numbers. "In FY07, ICE enacted a multi-
year strategy: …worksite enforcement initiatives that target
employers who defy immigration law and the "jobs magnet" that draws
illegal workers across the border" (iii). Yet, as the saying goes,
corporations don't go to jail. Very few individuals on the employer
side have ever been prosecuted. In the case of Agriprocessors, the
Search Warrant Application cites only vague allegations by alien
informers against plant supervisors (middle and upper management are
insulated). Moreover, these allegations pertain mostly to petty state
crimes and labor infringements. Union and congressional leaders
contend that the federal raid actually interfered with an ongoing
state investigation of child labor and wage violations, designed to
improve conditions. Meanwhile, the underlying charge of "knowingly
possessing or using false employment documents with intent to
deceive" places the blame on the workers and holds corporate
individuals harmless. It is clear from the scope of the warrant that
the thrust of the case against the employer is strictly monetary: to
redress part of the cost of the multimillion dollar raid. This
objective is fully in keeping with the target stated in the Annual
Report: "In FY07, ICE dramatically increased penalties against
employers whose hiring processes violated the law, securing fines and
judgments of more than $30 million" (iv).
Much of the case against Agriprocessors, in the Search Warrant
Application, is based upon "No-Match" letters sent by the Social
Security Administration to the employer. In August 2007, DHS issued a
Final Rule declaring "No-Match" letters sufficient notice of possible
alien harboring. But current litigation (AFL-CIO v. Chertoff) secured
a federal injunction against the Rule, arguing that such error-prone
method would unduly hurt both legal workers and employers. As a
result the "No-Match" letters may not be considered sufficient
evidence of harboring. The lawsuit also charges that DHS overstepped
its authority and assumed the role of Congress in an attempt to turn
the SSA into an immigration law enforcement agency. Significantly, in
referring to the Final Rule, the Annual Report states that
ICE "enacted" a strategy to target employers (iii); thereby using a
word ("enacted") that implies lawmaking authority. The effort was
part of ICE's "Document and Benefit Fraud Task Forces," an initiative
targeting employees, not employers, and implying that illegal workers
may use false SSNs to access benefits that belong to legal residents.
This false contention serves to obscure an opposite and long-ignored
statistics: the value of Social Security and Medicare contributions
by illegal workers. People often wonder where those funds go, but
have no idea how much they amount to. Well, they go into the
SSA's "Earnings Suspense File," which tracks payroll tax deductions
from payers with mismatched SSNs. By October 2006, the Earnings
Suspense File had accumulated $586 billion, up from just $8 billion
in 1991. The money itself, which currently surpasses $600 billion, is
credited to, and comingled with, the general SSA Trust Fund. SSA
actuaries now calculate that illegal workers are currently
subsidizing the retirement of legal residents at a rate of $8.9
billion per year, for which the illegal (no-match) workers will never
receive benefits.
Again, the big numbers are not on the employers' side. The best way
to stack the stats is to go after the high concentrations of illegal
workers: food processing plants, factory sweatshops, construction
sites, janitorial services—the easy pickings. September 1, 2006, ICE
raid crippled a rural Georgia town: 120 arrested. Dec. 12, 2006, ICE
agents executed warrants at Swift & Co. meat processing facilities in
six states: 1,297 arrested, 274 "charged with identity theft and
other crimes" (8). March 6, 2007 —The Boston Globe reports— 300 ICE
agents raided a sweatshop in New Bedford: 361 mostly Guatemalan
workers arrested, many flown to Texas for deportation, dozens of
children stranded. As the Annual Report graph shows, worksite raids
escalated after FY06, signaling the arrival of "a New Era in
immigration enforcement" (1). Since 2002, administrative arrests
increased tenfold, while criminal arrests skyrocketed thirty-
fivefold, from 25 to 863. Still, in FY07, only 17% of detainees were
criminally arrested, whereas in Postville it was 100% —a "success"
made possible by "fast-tracking"— with felony charges rendering
workers indistinguishable on paper from real "criminal aliens."
Simply put, the criminalization of illegal workers is just a cheap
way of boosting ICE "criminal alien" arrest statistics. But after
Postville, it is no longer a matter of clever paperwork and creative
accounting: this time around 130 man-years of prison time were handed
down pursuant to a bogus charge. The double whammy consists in
beefing up an additional and meatier statistics showcased in the
Report: "These incarcerated aliens have been involved in dangerous
criminal activity such as murder, predatory sexual offenses,
narcotics trafficking, alien smuggling and a host of other crimes"
(6). Never mind the character assassination: next year when we read
the FY08 report, we can all revel in the splendid job the agency is
doing, keeping us safe, and blindly beef up its budget another
billion. After all, they have already arrested 1,755 of
these "criminals" in this May's raids alone.
The agency is now poised to deliver on the New Era. In FY07,
ICE grew by 10 percent, hiring 1,600 employees, including over 450
new deportation officers, 700 immigration enforcement agents, and 180
new attorneys. At least 85% of the new hires are directly allocated
to immigration enforcement. "These additional personnel move ICE
closer to target staffing levels"(35). Moreover, the agency is now
diverting to this offensive resources earmarked for other purposes
such as disaster relief. Wondering where the 23 trailers came from
that were used in the Iowa "fast-tracking" operation? "In FY07, one
of ICE's key accomplishments was the Mobile Continuity of Operations
Emergency Response Pilot Project, which entails the deployment of a
fleet of trailers outfitted with emergency supplies, pre-positioned
at ICE locations nationwide for ready deployment in the event of a
nearby emergency situation" (23). Too late for New Orleans, but there
was always Postville… Hopefully the next time my fellow interpreters
hear the buzzwords "Continuity of Operations" they will at least know
what they are getting into.
This massive buildup for the New Era is the outward
manifestation of an internal shift in the operational imperatives of
the Long War, away from the "war on terror" (which has yielded lean
statistics) and onto another front where we can claim success: the
escalating undeclared war on illegal immigration. "Had this effort
been in place prior to 9/11, all of the hijackers who failed to
maintain status would have been investigated months before the
attack" (9). According to its new paradigm, the agency fancies that
it can conflate the diverse aspects of its operations and pretend
that immigration enforcement is really part and parcel of the "war on
terror." This way, statistics in the former translate as evidence of
success in the latter. Thus, the Postville charges—document fraud and
identity theft—treat every illegal alien as a potential terrorist,
and with the same rigor. At sentencing, as I interpreted, there was
one condition of probation that was entirely new to me: "You shall
not be in possession of an explosive artifact." The Guatemalan
peasants in shackles looked at each other, perplexed.
When the executive responded to post-9/11 criticism by integrating
law enforcement operations and security intelligence, ICE was created
as "the largest investigative arm of the Department of Homeland
Security (DHS)" with "broad law enforcement powers and authorities
for enforcing more than 400 federal statutes" (1). A foreseeable
effect of such broadness and integration was the concentration of
authority in the executive branch, to the detriment of the
constitutional separation of powers. Nowhere is this more evident
than in Postville, where the expansive agency's authority can be seen
to impinge upon the judicial and legislative powers. "ICE's team of
attorneys constitutes the largest legal program in DHS, with more
than 750 attorneys to support the ICE mission in the administrative
and federal courts. ICE attorneys have also participated in temporary
assignments to the Department of Justice as Special Assistant U.S.
Attorneys spearheading criminal prosecutions of individuals. These
assignments bring much needed support to taxed U.S. Attorneys'
offices"(33). English translation: under the guise of interagency
cooperation, ICE prosecutors have infiltrated the judicial branch.
Now we know who the architects were that spearheaded such a well
crafted "fast-tracking" scheme, bogus charge and all, which had us
all, down to the very judges, fall in line behind the shackled
penguin march. Furthermore, by virtue of its magnitude and methods,
ICE's New War is unabashedly the aggressive deployment of its own
brand of immigration reform, without congressional approval. "In
FY07, as the debate over comprehensive immigration reform moved to
the forefront of the national stage, ICE expanded upon the ongoing
effort to re-invent immigration enforcement for the 21st century"
(3). In recent years, DHS has repeatedly been accused of overstepping
its authority. The reply is always the same: if we limit what DHS/ICE
can do, we have to accept a greater risk of terrorism. Thus, by
painting the war on immigration as inseparable from the war on
terror, the same expediency would supposedly apply to both. Yet, only
for ICE are these agendas codependent: the war on immigration depends
politically on the war on terror, which, as we saw earlier, depends
economically on the war on immigration. This type of no-exit circular
thinking is commonly known as a "doctrine." In this case, it is an
undemocratic doctrine of expediency, at the core of a police agency,
whose power hinges on its ability to capitalize on public fear.
Opportunistically raised by DHS, the sad specter of 9/11 has come
back to haunt illegal workers and their local communities across the
USA.
A line was crossed at Postville. The day after in Des Moines,
there was a citizens' protest featured in the evening news. With
quiet anguish, a mature all-American woman, a mother, said something
striking, as only the plain truth can be. "This is not humane," she
said. "There has to be a better way."
------------------------------------
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