Tag: dhs

What Massachusetts Needs Is a Legislature More Like the U.S. Congress, Said No One Ever

The Massachusetts legislature is currently debating the state government’s budget for the new fiscal year which begins July 1st. This phenomenon—finalizing a spending plan before the beginning of the fiscal year—is something rarely seen in the U.S. Congress any more. Kudos, Bay State, for surpassing the low bar set in Washington, D.C.

But the General Court of Massachusetts is taking one page from the U.S. Congress’s tattered playbook. According to WRAL news, it may attach national ID compliance legislation to the budget bill.

That’s how Congress passed the ill-conceived REAL ID Act back in 2005. There were no hearings on the national ID issue or the bill that gave us one. Instead, the Republican House leadership attached the national ID law to a must-pass spending bill and rammed it past the Senate to President Bush, leaving states to grapple with implementation challenges and Department of Homeland Security belligerence ever since.

As in many states, the U.S. DHS has been telling Massachusetts legislators that they have to get on board with the national ID law, issuing licenses and ID cards according to federal standards, or see their residents refused at TSA’s airport checkpoints.

The threat of federal enforcement in 2016 was broadcast loud and clear last fall. Then in January DHS kicked the deadline a few more years down the road. It’s hard to keep track of the number of times DHS has set a REAL ID deadline, then let it slide when elected state officials have declined to obey the instructions of unelected DHS bureaucrats.

Minnesota has had a similar experience. Last winter, its legislature was spooked into creating a special “Legislative Working Group on REAL ID Compliance.” But Minnesota just ended its legislative season without passing REAL ID compliance legislation. There are a few people there who recognize the demerits of joining the national ID system, and Minnesota elected officials may have figured out that when DHS bureaucrats say “Jump!” they do not have to ask “How high?”

The General Court has done better than the U.S. Congress on REAL ID by holding hearings before acting. In 2007, then-Massachusetts Attorney General Martha Coakley testified before the Joint Committee on Veterans and Federal Affairs.

On REAL ID, DHS Caves Once Again

After menacing states across the country this fall, the Department of Homeland Security has once again caved on threats to enforce REAL ID by denying Americans their right to travel.

This afternoon, DHS Secretary Jeh Johnson put out a press release backtracking on agency claims that the Transportation Security Administration would turn away air travelers from states that don’t comply with the U.S. national ID law in 2016.

The new deadline, according to Secretary Johnson’s statement, is January 22, 2018. That’s sure not 2016. That’s more than two years away.

REAL ID, Rumor Control, and You

The Identity Project says that a new DHS “Rumor Control” web page lies about the REAL ID Act. That may be true, but a lie is an intentional misstatement, and we don’t know if the PR professional who wrote the material on that page knows the issues or the law. Let’s review the record, taking each of the rumors DHS addresses in turn, so that the agency doesn’t misstate the federal government’s national ID policy in the future.

Obama Administration Cuts Interior Enforcement

Shortly before Christmas, the Department of Homeland Security (DHS) released a report detailing deportations (henceforth “removals”) conducted by Immigration and Customs Enforcement (ICE) during fiscal year 2015.  Below I present the data on removals in historical context – combined with information from the Migration Policy Institute and Pew.  See my previous writing on this topic here, here, and here.       

ICE deported 69,473 unauthorized immigrants from the interior of the United States in 2015, down from a peak of 188,422 in 2011.  Removals from the interior are distinct from removals of recent border crossers.  Removals from the interior peaked during the Obama administration and have since fallen to a level similar to that of 2005 and 2006. 

Source: MPI and DHS.

The number of interior removals during the last six years of the Bush administration (the first two years are unavailable so far) was 475,103. The Obama administration has removed unauthorized immigrants about 1,019,637 from the interior of the United States during the seven full years of his administration.  

President Bush’s administration removed an average of about 276,000 unauthorized immigrants per year for the years available and an average of 79,000 of them annually were interior removals.  President Obama’s administration has removed an average of 381,101 unauthorized immigrants a year, an average of 145,662 of them annually were interior removals.  There were a large numbers of unknowns during the Bush administration that decreased as the years progressed. 

The U.S. Department of Chutzpah

For PR professionals, the holiday season is like one big Friday at 5:00 p.m. That’s when you release information that you don’t want getting too much attention.

So it’s no surprise that we learned yesterday that the Transportation Security Administration has just awarded itself the authority to make airport strip-search machines mandatory. Until now, having a machine create a digital representation of your unclothed body has had a happy alternative: a prison-style pat-down! (That’s my choice. It’s sometimes a little massage-y.)

It takes a lot of gall for the Department of Homeland Security to make this move now, though—not because it’s the holiday season, but because the DHS (of which TSA is a part) is currently under a court order to establish the legality of its strip-search machine policies in toto.

In July 2011, the D.C. Circuit Court of Appeals ruled that the DHS had failed to follow the procedures required by law when it established its policy of using strip-search machines for primary screening. The court ordered the DHS to “promptly” undertake a notice-and-comment rulemaking. Four years later, our friends at the Competitive Enterprise Institute initiated a new lawsuit seeking to compel DHS to finish what was amounting to an endless rulemaking process.

DHS recently told the D.C. Circuit that it would finish the regulation by March 3, 2016. In the meantime, they’re screwing the lid down just a little bit more on air travelers. Chutzpah!

When the regulation is done, it can finally be challenged under the Administrative Procedure Act’s “arbitrary and capricious standard.” Our John Mueller and Mark Stewart have already shown that strip-search machines are a cost-ineffective security measure.

In a similar vein, rumors are swirling that the DHS will soon announce full REAL ID enforcement at airports. The quiet week between Christmas and New Years seems like a ripe time to get that news out.

They’ve said they’d give 120 days’ notice that TSA is going to start rejecting drivers’ licenses and IDs from states that don’t participate in the national ID system. A December announcement means that April would be white-knuckle time for travelers.

There will not be enforcement, of course. The goal is to bluff about enforcement to state legislatures in advance of their 2016 legislative sessions, so that they’ll pass laws implementing the federal national ID mandate. Just yesterday, two DHS bureaucrats issued orders to Minnesota governor Mark Dayton (D) detailing how the law in Minnesota must change to satisfy their demands.

Federal bureaucrats ordering around governors and legislators! Chutzpah!

DHS isn’t dumb enough to do it … I’m sometimes wrong … but actual REAL ID enforcement at airports would be quite a show. Not only would there be howls of protest aimed at TSA in the media, the DHS would catch a delicious lawsuit from some law-abiding American citizen trying to visit family who is denied the right to travel.

The lawsuit would expose that DHS enforcement is entirely arbitrary. REAL ID is unworkable, and the agency has been handing out waivers like they were candy canes since the statutory deadline in 2008. Having selected a pared-down “material compliance checklist” to treat as compliance, DHS bureaucrats have been arbitrarily claiming that some states are in compliance and some states are not, giving waivers to some states and not to others based on internal, self-selected criteria. That is not how law works, and once they try to enforce, they’ll have to square-up their enforcement efforts with the terms of the REAL ID law, equal protection, and due process.

Should DHS try to show that it has rational criteria for refusing IDs, that may bring in the question of ID security, which, like strip-search machines, is another cost-effectiveness loser. I won’t belabor that point, but my Christmas list includes a TSA and DHS operating under the rule of law, required to defend its programs in light of solid points made by security analysts like this guy Adam.

Learn more than you ever wanted to know about REAL ID from this recent Hill briefing.

Arab and Muslim Americans: The New “Others”

Over the last month, GOP presidential hopeful Donald Trump’s counterterrorism policy prescriptions have included creating a database of Arab and Muslim Americans, and more recently, a call for a ban on all Arab/Muslim immigration to the United States. While he has yet to call for the creation of WW II-style ethnic/religious concentration camps for our Arab/Muslim American neighbors, at this point nothing seems beyond the pale for Trump. Unfortunately, as I have noted before, when it comes to stigmatizing–if not de facto demonizing–Arab/Muslim Americans, he’s getting some help from DHS, DoJ, and the legislative branch.

Indeed, in the ongoing legislative battle to pass dubious cybersecurity legislation, House Homeland Security Chairman Mike McCaul (R-TX) is being wooed to support the revised cyber information sharing bill with a new carrot: the inclusion of his “countering violent extremism” (CVE) bill in the FY16 omnibus spending bill–a measure condemned earlier this year by civil society groups from across the political spectrum.

To date, McCaul has been opposed to the Senate’s approach to cybersecurity issues in the form of the Cybersecurity Information Sharing Act (CISA), and, keeping that in mind, House and Senate supporters have largely excluded him from their negotiations over a final cyber bill. By dangling the inclusion of his CVE legislation in the omnibus is a clear effort to get McCaul to drop his opposition to CISA by giving him one of his priorities: Passage of CVE legislation would create yet another bureaucracy in DHS to essentially monitor the Arab/Muslim American population for signs of extremism. 

The fact that a similar CVE effort in the U.K. failed miserably has not deterred Congressional boosters like McCaul from pursuing that same discredited approach at the expense of the civil and constitutional liberties of a vulnerable minority population. Additionally, the expense of American taxpayers is likely to be at least an additional $10 million per year for the proposed DHS CVE office. 

As former NBC Nightly News anchor Tom Brokaw reminded us this week, Arab and Muslim Americans have died for the United States in Iraq and Afghanistan. They have paid for our freedom with their blood and their lives. Proposals that would strip them of their rights and attempt to turn them into political and societal lepers should be repudiated–vocally and forcefully. Those who propose such un-American and unconstitutional discrimination are the ones who should be shunned and permanently confined to the unhinged fringes of American political and social life.

Border Patrol Out Of Control

Today, the ACLU’s Border Litigation Project released a damning report on the Department of Homeland Security’s Customs and Border Protection “interior operations” that should serve as a wake up call for Washington policy makers.

Titled “Record of Abuse: Lawlessness and Impunity in Border Patrol’s Interior Enforcement Operations”, the 31 page report is supplemented by hundreds of pages of documents obtained through an ongoing Freedom of Information Act lawsuit. The ACLU Arizona chapter’s summary of the report noted the following: 

Border Patrol’s records contain recurring examples of agents terrorizing motorists far into the interior of the country; detaining and searching innocent travelers after false alerts by service canines; threatening motorists with assault rifles and other weapons; destroying personal property; and interfering with attempts to video record agents. These abuse records substantially outnumber the annual complaint totals DHS oversight agencies disclosed to Congress.

Border Patrol does not record stops of motorists that do not result in arrest, or false canine alerts that lead to searches of innocent suspects.  Substantive investigations into civil rights violations are rare and almost never result in disciplinary consequences. Despite numerous reports of abuse and corruption, the records contain only one example of disciplinary action of any kind.

Border Patrol’s own data undermines the agency’s public claims that checkpoints are efficient and effective: in 2013, Tucson Sector checkpoint apprehensions accounted for only 0.67 percent of the sector’s total apprehensions. The same year, Yuma Sector checkpoint arrests of U.S. citizens exceeded those of non-citizens by a factor of nearly eight (and in 2011, by a factor of eleven).

Pages