Monday, February 06, 2017

Excerpts from "Executive Order: Border Security and Immigration Enforcement Improvements" with Annotations, or 'The New Trump Towers'

Sec. 3. Definitions.
(d) Except as otherwise noted, "the Secretary" shall refer to the Secretary of Homeland Security.
More on this below.

Sec. 5. Detention Facilities. (a) The Secretary shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.
Detention facilities are not new in the US. There are currently 111 such facilities operating around the country, and our nation's first such establishments were used to contain other groups of Native Americans. What's notable about this current order is its parallel to the immediacy with which the Konzentrationslager were ordered after Hitler's appointment as Chancellor and the subsequent issuance of the Reichstag Fire Decree in 1933.

The Fire Decree was instated in response to (and as a means of propagating) fears of a Communist uprising, and effectively ended civil liberties for many German citizens, stating in part - without being accompanied by any written guidelines - that due to supposed planned acts of terrorism:
On the basis of Article 48 paragraph 2 of the Constitution of the German Reich, the following is ordered in defense against Communist state-endangering acts of violence:
§ 1.  Articles 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Reich are suspended until further notice. It is therefore permissible to restrict the rights of personal freedom [habeas corpus], freedom of (opinion) expression, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications. Warrants for House searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.
We currently see this mindset being applied against another group as well, and it should be noted that while the Konzentrationslager were initially ordered for the detention and torture of political opponents, their purpose was quickly expanded to include any 'undesirable' element.

(c) The Attorney General shall take all appropriate action and allocate all legally available resources to immediately assign immigration judges to immigration detention facilities operated or controlled by the Secretary, or operated or controlled pursuant to contract by the Secretary, for the purpose of conducting proceedings authorized under title 8, chapter 12, subchapter II, United States Code.
Mr. Sessions' voting record speaks for itself with regard to what he sees as 'undesirable elements'. The Attorney General is commonly held to be the chief law enforcement officer for their jurisdiction, in the case of Mr. Sessions, the whole of the US.

Sec. 6. Detention for Illegal Entry. The Secretary shall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law. The Secretary shall issue new policy guidance to all Department of Homeland Security personnel regarding the appropriate and consistent use of lawful detention authority under the INA, including the termination of the practice commonly known as "catch and release," whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law.
Current US immigration law calls unauthorized presence a civil (non-criminal) offense requiring payment of not more than $500 per day, while improper entry is a misdemeanor punishable by at least $50 and no more than $250 or six months of imprisonment, and only repeated improper entries rise to a felony-level crime for which they may be fined up to $500 or imprisoned for up to two years per entry or attempted entry (barring the commission of other crimes). Most 'illegal immigrants' in the US didn't enter improperly, and even fewer did so after having previously been deported.

Sec. 10. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)). [Emphasis added]
Notice that in the noted section of the INA the official of record is the Attorney General, while this order tasks the Secretary of Homeland Security with overseeing the agreements. While it's within the purview of the former to enforce federal law, the latter is specifically tasked with, among other things but primarily, protecting the US from domestic and international terrorist threats. It's a subtle change, but one that indicates a shift toward a presumption of such a threat by immigrants, which might be construed as fear-mongering.

(b) To the extent permitted by law, and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties. [Emphasis added]
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in the manner that provides the most effective model for enforcing Federal immigration laws and obtaining operational control over the border for that jurisdiction.
The highlighted phrases in section (b) and the wording of section (c) give the SDHS broad latitude in the enforcement of this order, as noted by Prof. David A. Martin. The linked article annotates the 'Executive Order Enhancing Public Safety in the Interior of the United States', in which these same paragraphs, word-for-word, make up section 8, and is well worth a read as a dispassionately measured examination of that order by a legal expert.


At best, the EO: BSaIEI - as well as the EOEPSitIotUS - serve to greatly enrich an already lucrative for-profit prison system. At worst, we could be working our way toward World War III in the nuclear age. The likelihood is that we find ourselves somewhere in between, but echoes of that earlier regime are disturbing, and we'll do well to proceed with great caution.
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