A Matter of Life, Death, and the Rule of Law

Somewhere in Northern Mexico, an exhausted nine-year-old girl stumbles. She’s traveling with her maternal grandmother, her legal guardian since her mother died, but they don’t have a paper explaining that, so if they are separated at the border, she will never be reunited with her family. She’s already walked 1,100 miles, but she’s still hundreds of miles away from the U.S. border and finding out what trauma awaits her there.

But the administration isn’t satisfied with baby jails, toddlers separated from parents and forced to appear alone in court, or families who, the administration now says, won’t be sufficiently ID’ed to be reunited for two years. On April 7, Kirstjen Nielsen, Secretary of the Department of Homeland Security (DHS) resigned at the request of the Baby-Jailer-in-Chief. Kevin McAleenan, whom Trump tapped for acting Secretary, has a terrible record. As head of Customs and Border Protection, McAleenan defended his agency’s use of tear gas on children and families. He also repeatedly broke the law to implement Trump’s travel ban, and ignored the death of a seven year-old girl in CBP custody in his Congressional testimony. In a broad purge, Trump also forced the resignations of the head of the Secret Service, the director of Citizenship and Immigration Services, the DHS General Counsel, and the DHS undersecretary for management, and withdrew his nominated Director of Immigration and Customs Enforcement, saying he wanted the agency to go in a “tougher” direction. It’s hard to imagine what that could even be, in a civilized country.

What to do:

Trump will nominate a replacement DHS Secretary who will need Senate approval. Tell our Senators, NOW: Don’t approve anyone with a history of promoting, tolerating, or overlooking human rights abuses of any kind. We need someone far better than Nielsen — not someone even worse! Senator Kamala Harris was the first Senator to call for Nielsen to resign in a July 2018 statement, and she continues to speak out strongly against the family separation policy, including tweeting on April 8: “The next DHS Secretary must unequivocally denounce this abusive policy. We deserve better.” Senator Dianne Feinstein, however, has only expressed sympathy for the “thankless” task performed by Nielsen and the “hope” that McAleenan will be “able to propose and implement more sensible, humane and bipartisan solutions to the problems we face” — a hope that appears to have no foundation in reality.

What to say:

For Sen. Kamala Harris: (email); (415) 981-9369 • DC: (202) 224-3553

My name is _____, my zip code is ____, and I’m a member of Indivisible East Bay. I want to thank Senator Harris for speaking out against the family separation policy that former DHS Secretary Nielsen oversaw. I hope that when the nominee for Nielsen’s replacement is in confirmation hearings, Senator Harris will do everything possible to prevent the confirmation of anyone with a history of promoting, tolerating, or overlooking human rights abuses of any kind. We need someone far better than Nielsen — not someone even worse!

For Sen. Dianne Feinstein: (email); (415) 393-0707 • DC: (202) 224-3841

My name is _____, my zip code is ____, and I’m a member of Indivisible East Bay. I’m concerned that Senator Feinstein has spoken sympathetically about former DHS Secretary Nielsen and Acting DHS Secretary McAleenan, and hasn’t spoken out about the abuses they have perpetrated. I hope that when the nominee for Nielsen’s replacement is in confirmation hearings, Senator Feinstein will do everything possible to prevent the confirmation of anyone with a history of promoting, tolerating, or overlooking human rights abuses of any kind. We need someone far better than Nielsen — not someone even worse!

More info:

Kirstjen Nielsen presided over implementation of the administration’s April 2018 “zero tolerance policy” to deter migrants, separating families and caging the children to deter others from seeking asylum. She then lied to Congress about it, saying, “We do not have a policy of separating families at the border. Period.” Thousands of children have been separated from their parents, and the government has missed several court-imposed deadlines for reuniting families, conceding that it has failed to keep records and claiming that as a result it may take over two years to reunite them—or will never reunite them, in the case of refugees traveling with legal guardians.

After public outcry and a series of adverse court decisions, the zero-tolerance policy was rescinded by executive order, but family separations have continued. Even more troubling, because refugees keep coming, the Scofflaw-in-Chief now wants immigration officials to stop following U.S. statutes and court orders and instead to close the southern borders to asylum—or to close it entirely, to everyone, with the resulting enormous economic disruption. At the border recently, he instructed agents to refuse to follow court orders and to say instead, “sorry, Judge, I can’t do it.” He reportedly fired Nielsen because she opposed his requested actions as counterproductive and against the law and applicable court orders.

The new DHS Secretary must be required to commit to follow — and must actually follow — applicable statutes and court orders, not just the whims of the President. By the time she reaches our borders, it would be good if the nine-year-old Guatemalan girl still found a country with the rule of law.

Photograph: “Women Disobey protest against US Immigration and Customs Enforcement’s ‘zero tolerance’ policy separating children and families at the US/Mexico border,” copyright Sarahmirk

Secrets and Lies: Comment NOW against proposed FOIA Regs

Do you want to know a secret? FOIA, the Freedom of Information Act, gives private citizens the right to get information from federal agencies. It exists to promote transparency, accountability, and prompt access to a wide range of information. But under proposed revised regulations, the Department of the Interior (DOI) would be able to decide for itself whether it felt like giving out information – even information on whether the government was involved in possible criminal behavior. You have until January 28 to comment opposing these proposed regulations and preserve our right to get crucial information … [January 17: note that due to the shutdown the link may not be working, please keep trying if you get an outage message].

For example, information about government officials who have misused their positions … such as Ryan Zinke, Trump’s recently departed Secretary of the Interior. The Department of the Interior, rather like the interior of the country itself, is grand in scope, including the National Park Service, Bureau of Land Management, Bureau of Indian Affairs, and half a dozen other major departments. Zinke resigned at the end of 2018, after an unprecedented 18 separate investigations were launched into his misconduct. Some of these investigations are still pending at the time of this writing; ominously, several were closed only because of lack of cooperation by the DOI or failure to keep records.

In an amazing coincidence, just days before Zinke’s resignation, the DOI proposed revised regulations giving it broad discretion to avoid providing answers to FOIA requests for information — particularly from journalists and public interest organizations. Under these proposed regulations, the Department would be able to:

  • decide which media organizations “serve the public interest” and are therefore entitled to information, and
  • limit the number of requests media and other organizations can make during a month.

Extensive case law under FOIA governs what records must be produced. These proposed regulations are unnecessary, contrary to the statute and that case law, and inconsistent with the clear intent of Congress. They impede accountability and make further misconduct more likely.

The comment period for these proposed regulations ends January 28. Go to https://www.regulations.gov/document?D=DOI_FRDOC_0001-0094 and click the “comment now” button at the upper right to leave an objection. Be sure to mention that you are commenting on Docket No. DOI-2018-0017.

You can use these points as a guide, but please use your own language; comments that are too similar may be grouped together and not considered individually.

  • The proposed changes to the Department of the Interior’s handling of FOIA requests are contrary to goals of the FOIA statute: transparency, accountability, and prompt access to information.
  • The proposed changes are contrary to the FOIA statute, 5 U.S.C. section 522, which allows “any person” to seek information. The proposed regulations allow Interior to deny access to a media organization or other organization that has recently asked for other information. Under this change, Interior could withhold information from media outlets it didn’t like, or anyone who asked numerous or embarrassing questions – the exact situation FOIA was intended to provide against.
  • The purported reason for the changes – an increase in FOIA requests – is the result of the conduct of the DOI itself: As reported by Outside Magazine (January 17, 2019) and Nada Culver, senior counsel with the Wilderness Society, FOIA requests at Interior are up because Interior stopped sharing information voluntarily that was routinely provided by prior administrations.
  • Other changes include stretching time “limits” into “frames,” making it easier to deny requests, and giving Interior discretion to decide whether media organizations are operating primarily “in a commercial interest.” These go directly against the intent of FOIA – to allow access to information and to prevent the government from prohibiting access.
  • Submitting these proposed regulations during a holiday week, in the midst of a government shutdown, just days before Director Ryan Zinke resigned while the subject of numerous investigations, is an outrageous effort by the government to keep the public from exercising their democratic rights.

Dean Gloster is a former clerk at the U.S. Supreme Court who now writes novels. His debut YA, DESSERT FIRST, is out now.