Saturday, February 04, 2017

Buried treasures in Trump's orders

The coverage of President Trump's executive orders has been intense and informative.

Yet I can think of no other time that it is incumbent on us as journalists -- and just as citizens or plain old human beings -- to read the texts of those orders (I'd encourage you to bookmark that link) and ponder (and seek a range of informed guidance on) what they really say. This means every journalist because, as we've seen already, the tentacles of these have the potential to  reach into almost every community.

I know, it is a lot to ask in a world already demanding too much of our time and mental processing power. But while the media coverage (and what we filter from it) gives us the most salient, emotional points, these orders are filled with gifts that have the potential to  keep on giving (tongue firmly planted in cheek, lest you interpret that as an endorsement).

For instance, in one of Trump's immigration orders (there are at least three, if you count the one primarily dealing with the border wall) is language prompting our typical sky is (well could be) falling stories.

The alarm is well-placed, but you also need to put it in wider context and understanding of the system. Such stories tend to rouse the populace for a relative instant, but the process is a long grind that requires constant vigilance. What usually happens is that the emotion subsides, we move on to other things, and the long, slow engagement is left to the lawyers and lobbyists (and a few journalists, if we are lucky) whose natural habitat is deep in the muck (that swamp Trump said he wants to drain?).

Now, more than ever, to follow that usual pattern is to wake up one day and go WTF?

The screening system order - perspective
Yes, you should be concerned about this proposed screening system (if nothing else but for the retaliation it could invite on the world stage).

But as with all such things (including most laws passed by Congress), the devil will be in the administrative details. What needs to be watched closely, of course, is the agency rule making under this authority. I agree the language is very broad. So is a lot of legislation. Definition of irony - the same process has been used to promulgate many of the regulations across government that the Trump administration finds abhorrent.

Here is the language (you'll have to scroll down to Section 4): "This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant's ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States."

The "such as" standard does not not mean, for instance, that in-person interviews would have to be done for every person. "Uniform" as used in law does not necessarily mean the exact same thing for everyone. It means you can set up a series of exemptions, but the policy has to be applied uniformly, not arbitrarily, and there must be clearly stated (and constitutional) reasons for the disparate treatment.

Don't read this as my endorsement. Far from it. It's scary what could be done under this language. I'm suspecting the ultimate end is to create a vast database, far more intrusive than now. (And with just a few legal gymnastics, well, we'll extend that to U.S. citizens who have traveled to whatever countries we think are baddies -- or house baddies -- because, you know, you might have picked up the germs and we can never be too careful and ...

Think I'm being a bit paranoid? Perhaps, but remember the "enhanced interrogation" legal gymnastics or those WMDs Iraq supposedly had?)

But wait, there's more ...
But while this order has garnered the lion's share of publicity, just as concerning is some of the language in the other immigration/border orders that has not gotten a lot of publicity. For instance, here is the language buried in another executive order:

Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense, where such charge has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

I don't know about you, but (b) - littering?, (c ) - WTF?, (e) - what does "abused" mean, (g) - no room for abuse there, eh?

Ought to give a lot of pause.

I like to think due process is one of those things that borders on a human right and that (once we decided it should apply to everyone) has distinguished the United States.

Also, consider these sections:

Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U.S. Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

Fascinating to me that we propose to establish a government bureaucracy devoted solely to victims of crimes by removable aliens. (How are they different from other crime victims?)

And we'll suspend privacy laws for anyone not a citizen or lawful resident? Seems we've seen something like this before in the Japanese internment camps and in Nazi Germany?

At least, for now, we're not proposing they be penned in or wear a special mark.

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