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non compos mentis

You have the right to remain silent….Tiene el derecho de manterse callado.

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AN INTERPRETER STANDS UP FOR MIGRANTS
nearly 400 immigrant workers’ families torn-apart in one fell swoop…
READ THIS ARTICLE:

http://www.nytimes.com/2008/07/11/us/11immig.html?_r=1&partner=MYWAY&ei=5065&oref=slogin

A professional interpreter comes forward with information about a case in which he feels immigrants were bullied into pleading, and not fully informed of their rights. His essay describing these events is below, under the lj cut. YOU MUST READ HIS ESSAY.
I first read the article yesterday, and discussed among several of my professional colleagues.
Today, one of them has found the essay from Dr. Camayd-Freixas, the interpreter in question.

My first thoughts yesterday caused me to reminisce about certain experiences of my own, as mentioned here, but, today, after reading Dr. Camayd-Freixas’ essay, I feel fire in my veins. I feel ashamed at the way my government has abused these people, and I feel angry.

The article makes me think of cases in which I worked. In one, for instance, in a deposition, a plaintiff, in my opinion, was more or less bullied into taking a settlement of only $15,000 for a work related injury. It was a worker’s comp case, at least, and not a criminal proceeding in which there may be far more important consequences on the lives of those involved, but still, I felt justice was not carried out….But, I don’t have a right to an opinion, do I? I am just a tool.
He had been permanently scarred for life, and would forever walk with a limp. His ability to work and provide for himself and/or family were permanently affected. I knew that, had he chose to pursue the case further, he may very likely have had rights to a far larger agreement. I wanted so badly to tell him, but, as an interpreter, I have no right to offer legal advise or opinions. My job is only to interpret.
And, my job is only to interpret what is said, not explain it or alter it to be more comprehensible.
There are many times when I know a subject has not fully understood, but, if s/he says “sim, entendo”, then, I must say,”yes, I understand”.
There are times when I interpreter complex legalese mumbo-jumbo, and see the blank stare in a subject’s eyes while s/he states, “sim, entendo”.
But, my job is to interpret the complex mumbo-jumbo, in the register in which it is offered, and neither “dumb it down” nor explain it. It is a difficult position at times.
My job is to interpret what is said, not to have opinions or offer advice, either to attorneys or their clients.
And, of course, I am also held to maintain complete confidentiality.
I must not speak of what I interpret between attorneys and their clients, nor publicly proclaim that there may have been misunderstandings in the proceedings when a decision has been made.
That is how I was trained.
At the same time, part of me really wants to applaud the gentleman in this article.
It raises important ethical questions, and a perplexing conundrum.
As an interpreter, I am a tool, only, to assist people in communication.
But, what right or recourse do I have to uphold justice and protect due process if/when I believe I have seen questionable practices? If I perceive that an attorney has not acted in their clients best interests? When I know a client has not understood their rights, or has been bullied?
Am I obliged to remain silent? Or, do I have a responsibility to justice?
When you read Dr. Camayd-Freixas’ essay, I am sure you will agree…In these circumstances, nobody with a conscience could remain silent.
I will not remain silent.

Before you continue let me just state, for the record, that I have mixed feelings about “illegal immigration”.
I understand the those who come illegally are sometimes criminals, but, I believe that those are a very small minority.
I believe the vast majority simply come to work. They brave uncertain circumstances and various dangers to come and provide for their families.
They come to a country where they don’t speak the language, and they work hard, and want no trouble from anyone.
Yes, I know that they break the law when the come illicitly.
I know that their actions have unpleasant consequences on the job market for US workers (deflated wages, fewer jobs, etc.), but I respect their bravery, their willingness to work, their commitment to their families.
My wife was one of these, before I married her (came to work, overstayed a visa). She is probably the hardest working woman I have ever met in my life.
She takes nothing from nobody that she hasn’t earned. She is fiercely honest, and deeply proud. I admire her deeply, as I admire all those who have the courage to leave home in search of richer pastures, despite great odds, to provide and care for their families, who live in deplorable conditions as home.
Now, on to the essay:

Dr. Camayd-Freixas’s essay:
*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 19^th 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
superintendent 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
8^th 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 6^th 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 5^th 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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Written by tonybaldwin

July 12, 2008 at 10:10 am

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