July, 11 2011, 03:49pm EDT
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District Court Rejects DHS and ICE FOIA Withholdings That Conceal Misrepresentations and Embarrassment
Government Agencies Must Release Documents Explaining Its Misleading Public Representations about Secure CommunitiesGovernment Agencies Must Release Documents Explaining Its Misleading Public Representations about Secure Communities
NEW YORK
In a victory today for plaintiffs the National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Cardozo Law School Immigration Justice Clinic in their Freedom of Information Act (FOIA) lawsuit against Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS), and the Federal Bureau of Investigation (FBI), the Executive Office of Immigration Review (EOIR), Judge Shira A. Scheindlin of the Southern District of New York ordered the agencies to produce further information concerning whether and how localities may "opt-out" or limit participation in Secure Communities. Secure Communities functions as a deportation dragnet to funnel non-citizens into the mismanaged ICE detention and removal system. The program automatically runs fingerprints through immigration databases for all people arrested and targets them for detention and deportation. The program currently operates in almost 1,400 jurisdictions in 43 states. Set for expansion nationwide, Massachusetts, Illinois, New York and several local jurisdictions have informed immigration authorities they do not want to participate in the program.
In a strongly worded opinion, the court rejected the agencies' efforts to withhold documents that would reveal embarrassing or misleading information about Secure Communities. Timely disclosure of these records is especially critical in light of the ongoing public scrutiny of Secure Communities. As a result of the disclosures in this case, public pressure and mounting concerns by public officials, the Office of Inspector General is beginning an investigation today into the agency's misrepresentations of the Secure Communities opt-out policy and the program's failure to fulfill its stated mandate. Simultaneously, DHS has initiated an advisory commission to examine the limited issue of individuals targeted through Secure Communities after being arrested for minor traffic offenses. Today's order makes clear that the OIG's review is sorely needed and that the problems with the program run much deeper than the traffic offense-related issues that the DHS-appointed commission is considering.
Sunita Patel, Center for Constitutional Rights staff attorney said, "The court refused to allow the government to withhold documents that merely discuss how to spin an agency policy for the public, especially when the agency's messaging is purposefully misleading. The release of the information improperly withheld from the public will only help public officials and community members in the on-going Secure Communities debate."
The court vindicated the role of FOIA to challenge the government's effort to hide the true nature of Secure Communities from the public, "Deliberations about how to present an already decided policy to the public, or documents designed to explain that policy to--or obscure it from--the public, including in draft form, are at the heart of what should be realized under FOIA." (Opinion, p. 29). The Court further stated that FOIA exemptions "are not concerned with chilling agency efforts to obfuscate, which are anathema to the operation of democratic government." Criticizing the agencies' past public representations, the court concluded that "[t]here is ample evidence that ICE and DHS have gone out of their way to mislead the public about Secure Communities." (Opinion, p. 32). As the court noted, "[t]here is no risk of confusing the public by the inaccurate or premature disclosure of agency views, as the public is confused, and it is plaintiffs who seek to clarify by obtaining the release of a fuller explanation of agency views." (Opinion, p. 61) As a result, the court ordered that documents discussing the voluntary nature of Secure Communities after January 27, 2010 and mandatory nature of the program after March 2010 are not protected by the deliberative process privilege and must be released.
"While the Obama administration boasts of the 'Secure Communities' program to win political points with Republicans, it has kept actual policy details nearly secret from Congress, state partners, and the American public. Thankfully, federal courts, not ICE, get the last word," stated Pablo Alvarado, Director of NDLON. "The administration has a responsibility to be transparent and provide information to the public regarding this dangerous program. As we've seen in states and localities across the country, the more the public learns about 'Secure Communities,' the more they say 'no thank you' to its implementation."
In an opinion heavily focused on providing clarifying information about the mandatory nature of the controversial Secure Communities program, the court also engaged in closed review (in camera review) of 49 documents and ordered further releases. For example, the court ordered production of an email string from the Deputy Press Secretary about what the agency's message to the public should be about opt-in because "[t]he redacted portions are no more deliberative than those left unredacted, even if they are more embarrassing to the agency, which of course is not a relevant consideration under FOIA." (Opinion, p.49) "[T]he entire purpose of this FOIA is to obtain clarity as to the agency's position, where the agency has made contradictory and confusing representations." (Opinion, p. 49 For another document outlining the updated messaging to support ICE maintaining its position to fully use federal information sharing by 2013, the court stated that "[t]he redacted lines do not appear to be any more deliberative than the rest of the memorandum. They are, however, potentially more embarrassing, insofar as they highlight the inconsistencies in the agency's public stance. The purpose of FOIA is to shed light on the operation of government, not to shield it from embarrassment." (Opinion, p. 71). Importantly, the court refused to allow the government to withhold documents based upon a discussion of how to spin an agency policy for the public, especially when the agency's messaging is purposefully misleading.
Said Bridget Kessler, an attorney at the Cardozo Law School Immigration Justice Clinic, "Today, the court has sent a strong message that the public's interest in government transparency outweighs the government's desire to save face. Our government officials cannot use laws meant to ensure transparency to withhold information from the public, especially if the only conceivable reason for preventing the release of the information is that it might be embarrassing or provide evidence of government misconduct."
Today's order rules on cross-motions for summary judgment by plaintiffs CCR, NDLON and Cardozo and the government on exemptions the government used to withhold records or portions of records relating to the ability of states and localities to "opt-out" or limit their participation in Secure Communities. The government initially produced these documents on January 17, 2011. The court orders defendants to release certain categories of documents to the public. For other categories of documents, the court finds that the government did not justify the redactions and orders the government to produce new indexes detailing the justifications their redactions. If the government does not provide sufficient justification in these revised indexes, the court will order the government to produce those documents or portions of documents. Finally, the court finds that a number of the redactions by the government were justified. The court ordered the government to produce the documents and the revised indexes by August 1, 2011 and to appear in court for a conference on August 11, 2011 at 5:00 p.m.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. CCR is committed to the creative use of law as a positive force for social change.
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US Healthcare Workers Back From Gaza Tell Harris and Biden: 'End This Madness'
"Every day that we continue supplying weapons and munitions to Israel is another day that women are shredded by our bombs and children are murdered with our bullets."
Jul 26, 2024
As President Joe Biden and Vice President Kamala Harris met with Israeli Prime Minister Benjamin Netanyahu at the White House on Thursday, dozens of American healthcare workers who recently volunteered in the Gaza Strip urged the U.S. leaders to do everything in their power to end Israel's assault on the enclave, citing the horrors they witnessed firsthand.
In an open letter addressed to Biden, Harris, and First Lady Jill Biden, 45 physicians, surgeons, and nurses wrote that "we wish you could see the nightmares that plague so many of us since we have returned: dreams of children maimed and mutilated by our weapons, and their inconsolable mothers begging us to save them."
"We wish you could hear the cries and screams our consciences will not let us forget," the letter reads. "We cannot believe that anyone would continue arming the country that is deliberately killing these children after seeing what we have seen."
The healthcare workers called on the Biden administration to "withhold military, economic, and diplomatic support from the state of Israel and to participate in an international arms embargo of both Israel and all Palestinian armed groups until a permanent cease-fire is established, and until good-faith negotiations between Israel and the Palestinians lead to a permanent resolution of the conflict."
"We are not politicians. We do not claim to have all the answers," they continued. "We are simply physicians and nurses who cannot remain silent about what we saw in Gaza. Every day that we continue supplying weapons and munitions to Israel is another day that women are shredded by our bombs and children are murdered with our bullets. President Biden and Vice President Harris, we urge you: End this madness now!"
This is an open letter addressed to @POTUS, @VP , and @FLOTUS signed by 45 American physicians and nurses, about what we saw while working in Gaza. Please feel free to distribute. A PDF can be downloaded from the link and/or QR code on page 1. pic.twitter.com/LHVvmeAFad
— Feroze Sidhwa (@FerozeSidhwa) July 25, 2024
The letter was released as Netanyahu, fresh off his widely condemned address to the U.S. Congress, met separately on Thursday with Biden and Harris, the presumptive Democratic presidential nominee.
In remarks following her meeting with Netanyahu, Harris said that "what has happened in Gaza over the past nine months is devastating," pointing to "the images of dead children and desperate, hungry people fleeing for safety, sometimes displaced for the second, third, or fourth time."
"We cannot look away in the face of these tragedies," the vice president added. "We cannot allow ourselves to become numb to the suffering. And I will not be silent."
Harris said she told Netanyahu directly to "get this deal done"—referring to a cease-fire agreement with Hamas—but, as expected, she did not break with the administration on supplying arms to the Israeli military.
While there has been no obvious policy change from the administration now that Harris has taken over for Biden at the top of the Democratic Party's presidential ticket, Trita Parsi of the Quincy Institute for Responsible Statecraft argued that the vice president "clearly broke with Biden on Israel in terms of rhetoric and tone."
Parsi also contended that there was "a substance shift."
"Biden has disingenuously claimed that Hamas blocked a cease-fire deal," Parsi wrote on social media. "By saying that she urged Netanyahu 'to clinch the deal,' Kamala pointed to the real obstacle."
BREAKING: VP Harris speaks after meeting with Israeli PM Netanyahu
Harris calling for an immediate cease-fire deal to free the hostages.
The VP saying she “will not be silent" about the suffering in Gaza, the "devastating" loss of life and the "dire" humanitarian crisis. pic.twitter.com/Fe5QPoOuFh
— MSNBC (@MSNBC) July 25, 2024
In their letter to Harris and Biden, the healthcare workers wrote that Israel "has directly targeted and deliberately devastated Gaza's entire healthcare system" and "targeted our colleagues in Gaza for death, disappearance, and torture." According to figures from the United Nations Human Rights Office, Israeli forces have killed one in every 40 healthcare workers in the Palestinian territory since October as diseases spread and the number of Gazans killed or wounded continues to grow by the hour.
The healthcare workers expressed the view that—based on available evidence and their experiences—"the death toll from this conflictis many times higher than what is reported by the Gaza Ministry of Health," which currently stands at over 39,100.
"We also believe this is probative evidence of widespread violations of American laws governing the use of American weapons abroad, and of international humanitarian law," they continued. "We cannot forget the scenes of unbearable cruelty directed at women and children that we witnessed ourselves."
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'Tragic Outcome' for Gig Workers as California Supreme Court Hands Win to Uber, DoorDash
"Today's ruling only strengthens our demand for the right to join together in a union so that we can begin improving the gig economy for workers and our customers," the case plaintiff said.
Jul 25, 2024
Labor advocates on Thursday decried a ruling by the California Supreme Court upholding a lower court's affirmation of a state ballot measure allowing app-based ride and delivery companies to classify their drivers as independent contractors, limiting their worker rights.
The court's seven justices ruled unanimously in Castellanos v. State of California that Proposition 22, which was approved by 58% of California voters in 2020, complies with the state constitution. Prop 22—which was overturned in 2021 by an Alameda County Superior Court judge in 2021—was upheld in March 2023 by the state's 1st District Court of Appeals.
The business models of app-based companies including DoorDash, Instacart, Lyft, and Uber rely upon minimizing frontline worker compensation by categorizing drivers as independent contractors instead of employees. Independent contractors are not entitled to unemployment insurance, health insurance, or compensation for business expenses.
There are approximately 1.4 million app-based gig workers in California, according to industry estimates.
While DoorDash hailed Thursday's ruling as "not only a victory for Dashers, but also for democracy itself," gig worker advocates condemned the decision.
"Over the last three years, gig workers across California have experienced firsthand that Prop 22 is nothing more than a bait-and-switch meant to enrich global corporations at the expense of the Black, brown, and immigrant workers who power their earnings," plaintiff Hector Castellanos, who drives for Uber and Lyft, said in a statement.
"Prop 22 has allowed gig companies like Uber, Lyft, and DoorDash to deprive us of a living wage, access to workers compensation, paid sick leave, and meaningful healthcare coverage," Castellanos added. "Today's ruling only strengthens our demand for the right to join together in a union so that we can begin improving the gig economy for workers and our customers."
Lorena Gonzalez, president of the California Federation of Labor Unions, AFL-CIO, said that "we are deeply disappointed that the state Supreme Court has allowed tech corporations to buy their way out of basic labor laws despite Proposition 22's inconsistencies with our state constitution."
"These companies have upended our social contract, forcing workers and the public to take on the inherent risk created by this work, while they profit," she continued. "A.B. 5 granted virtually all California workers the right to be paid for all hours worked, health and safety standards, unemployment insurance, workers compensation, and the right to organize."
"Rideshare and delivery drivers deserve those rights as well," Gonzalez stressed.
The Gig Workers Rising campaign said on social media that "Uber and other app corporations spent $220 million to buy this law, and they did it by tricking Californians."
Prop 22's passage in November 2020 with nearly 59% of the vote was the culmination of what was by far the most expensive ballot measure in California history. App-based companies and their backers outspent labor and progressive groups by more than 10 to 1, with proponents pouring a staggering $204.5 million into the "yes" campaign's coffers against just $19 million for the "no" side.
"Voters were told the initiative would provide us with 'historic new benefits' and guaranteed earnings," said Gig Workers Rising. "But since it went into effect, drivers have seen our pay go down, learned the benefits are a sham, and have to accept unsafe rides because of the constant threat of being 'deactivated,' kicked off the app with little explanation or warning."
"If Uber really cared about good benefits and fair wages, it could make that happen tomorrow," the campaign added. "Instead, it has shown it would rather slash pay, bamboozle voters, and put drivers' lives and livelihoods in danger—all while promising $7 billion in stock buybacks to banks and billionaires."
Veena Dubal, a law professor at the University of California, Irvine who focuses on labor and inequality, toldCalMatters that Thursday's ruling was "a really tragic outcome," but "it's not the end of the road."
Dubal's sentiment was echoed by some California state legislators, who said the ruling presents an opportunity to act.
"While this decision is frustrating, it must also be motivating," said state Senate Labor Committee Chair Lola Smallwood-Cuevas (D-28). "I'm more determined than ever to ensure that all workers—including our diverse and Black, Indigenous, and people of color-led gig workforce—have the basic protections of workers compensation, paid sick leave, family leave, disability insurance, and the right to form a union."
Prop 22 has served as a template for lawmakers in other states seeking to deny or limit basic worker rights, benefits, and protections.
In Massachusetts, app-based companies have been fighting for years to get a measure to classify drivers as contractors on the state ballot. In 2022, Lyft made the largest political donation in state history—$14.4 million—to a coalition funding one such proposal.
Last month, Uber and Lyft reached an agreement with the office of Massachusetts Attorney General Andrea Campbell, a Democrat, to pay $175 million to settle a lawsuit filed in 2020. As part of the deal, the companies also agreed to increase driver pay and provide paid sick leave, accident insurance, and some health benefits. The agreement does not address how app-based gig workers should be classified.
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Young Voters Tell Kamala Harris to 'Fight for Our Future'
"This is your chance to energize young people and our communities to vote, mount one of the greatest political comebacks in decades, and deliver a resounding defeat to the far-right agenda of Trump and Vance."
Jul 25, 2024
Four youth-led groups on Thursday urged Vice President Kamala Harris, the presumptive Democratic presidential nominee, to "fight for our future" by pursuing a policy agenda the coalition unveiled in a March letter to U.S. President Joe Biden.
It's been less than a week since Biden left the race and endorsed Harris, who is expected to face former Republican Donald Trump and his running mate, U.S. Sen. JD Vance (R-Ohio), in the November election. Since then, she's racked up endorsements from Democratic members of Congress and progressive groups focused on issues including climate, labor, and reproductive rights.
March for Our Lives, which was launched after the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, honored Harris with the group's first-ever endorsement on Wednesday, calling her "the right person to stand up for us and fight for the country we deserve."
"To defeat Trump, you must rebuild support and enthusiasm among young voters."
The gun violence prevention organization is part of the youth-led coalition behind the new letter, which also includes the climate-focused Sunrise Movement; Gen-Z for Change, which advocates on a range of issues; and the national immigrant network United We Dream Action.
"You have an urgent and important task. To defeat Trump, you must rebuild support and enthusiasm among young voters," the coalition told Harris on Thursday, noting that she sought the Democratic nomination during the last cycle. "You should build on your 2020 campaign platform where you put forward a strong vision to make the economy work for everyday people and ensure a livable future for us all."
The groups urged Harris to support the Green New Deal, Medicare for All, and the Reverse Mass Incarceration Act. They pushed her to expand pathways to citizenship, keep families together, end fossil fuel subsidies, and create good, union jobs. They also called on her to prioritize gun violence prevention and investments in public health solutions and green, affordable housing.
"Democrats are at a critical crossroads with young people," the coalition wrote to Harris on Thursday. "Polls showed Biden and Trump neck-and-neck among young voters."
ANew York Times/Siena College poll conducted July 22-24 shows Trump leading Harris 48% to 47% among likely voters and 48% to 46% among registered voters—differences that fall within the margin of error.
Forbesnoted Thursday that "Democrats are far more enthusiastic about Harris than they were Biden, the Times/Siena survey found, with nearly 80% of voters who lean Democrat saying they would like Harris to be the nominee, compared to 48% of Democrats who said the same about Biden three weeks ago."
The outlet also pointed to two other polls conducted by Morning Consult and Reuters/Ipsos since Biden dropped out, which both show Harris with a narrow lead over Trump.
"You have an opportunity to win the youth vote by turning the page and differentiating yourself from Biden policies that are deeply unpopular with us, such as approving new oil and gas projects, denying people their right to seek refuge and asylum, and funding the Israeli government's killing of civilians in Gaza," the youth coalition highlighted Thursday. "You must speak to the economic pain young people are facing from crushing student debt and skyrocketing housing and food prices."
Looking beyond November, the groups told Harris—who could be the first Black woman and person of Asian descent elected to the country's highest office—that "you could be a historic president. Not just because of who you are, but what you can accomplish."
"Young people are energized and ready to organize against fascism and for the future we deserve," they concluded. "This is your chance to energize young people and our communities to vote, mount one of the greatest political comebacks in decades, and deliver a resounding defeat to the far-right agenda of Trump and Vance."
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