Liars, Damned Liars, “Privacy Advocates” and NY Times Editors

Orin Kerr at the Volokh Conspiracy seems to think that the NY Times and so-called “privacy groups” and Arab & Muslim advocacy groups have managed to generate a Homeland Security scandal out of thin air. It seems that the Customs and Border Patrol portion of DHS requested census data on various groups of Arabs living in the U.S. No, Ms. Malkin, it doesn’t seem to have been your long hoped-for crackdown on Arab, Arab-American and Muslim men. Rather, according to Customs spokes beings, the Customs service or CBP, were looking to estimate where various dialects of Arabic were spoken, in order to translate their public posters (in airports, natch) into the correct languages. This could be a falsehood; on the other hand, it does have the ring of truth, in that it is a federal civil rights violation of at least administrative significance, to fail to provide legal warnings in the language of choice of the served population. The exact extent of this duty is uncertain so agencies do some pretty wierd things to comply with the rules here. For example, if there are three Philipinos who speak primarily Tagalog living in Bozeman, MT, does the sole Customs agent there have to provide Customs brochures in Tagalog? The extent of Customs duty isn’t clear, but what is clear is that in cities with large Arab and South Asian populations, Customs probably does have a duty to do so. Moreover, if you are looking to make smuggling cases stick, it helps to have your advisements (which are available to English speakers) available to significant non-English speaking minority groups – lest you face an assertion of an equal protection violation as a defense.
Of course the Electronic Privacy Instigating C…, ah, I’m not going there. EPIC and the ACLU naturally said this was an enormous violation of people’s privacy rights. And good ol’ Jim Zogby – none of whose lieutenants have been indicted for terrorist ties recently – basically alleged racial profiling.
As Orrin points out, the fact that the data was in the public domain and available on the Census.gov web site seems to have escaped everyone. So Orrin concludes that this looks like a made up scandal.
Well folks, hold yer horses. There’s another made-up scandal involving Homeland Security en route, delivered by the NY Times in 45 minutes or less, or you get a free order of Krazy Bread.
This scandal also involves the power-crazed rogue organization, Homeland Security. It seems they are cracking down in a big-brother-ish fashion, pickin’ on dark skinned peoples of the world, and Canadians* and acting downright un-hospitable to our southern neighbors. I know this because of the NY Times lede:

U.S. to Give Border Patrol New Powers to Deport Illegal Aliens
WASHINGTON, Aug. 10 Citing concerns about terrorists crossing the nation’s land borders, the Department of Homeland Security announced today that it planned to give border patrol agents sweeping new powers to deport illegal aliens from the frontiers abutting Mexico and Canada without providing the aliens the opportunity to make their case before an immigration judge.


Wow. The government is going to assert sweeping new powers, and it’s going to result in illegals losing their day in court to state their case.**
When you dig a little way into the article, you find this gem:

Immigration legislation passed in 1996 allows the immigration service to deport certain groups of illegal aliens without judicial oversight, but until now the agency only permitted officials at the nation’s airports and seaports to do so. The new rule will apply to illegal aliens caught within 100 miles of the Mexican and Canadian borders who have spent 14 days or less within the United States.

Oh, so in reality, the “sweeping new power” was actually signed into law by the Clinton Administration, and the Bush Administration has thus far abstained from exercising the “sweeping new power”.
An accurate headline would have been, “Border Patrol to Exercise Dormant Powers”. An accurate lede would have been “citing concerns about terrorists crossing the nation’s land borders, the Department of Homeland Security announced today that it planned to allow Border Patrol agents to exercise broad powers granted in a 1996 statute allowing the expedited deportation of illegal aliens from the frontiers abutting Mexico and Canada without providing the aliens the opportunity to make their case before an immigration judge.”
One other beef, here. The thing about the aliens not getting a chance to make their case before an immigration judge? First off, certain classes of aliens such as juveniles and asylum seekers will get a chance to make their case, based on what I’ve heard.
Second of all, immigration court isn’t the friggin judicial court. It’s the friggin’ Administration’s administrative court branch that happens to specialize in immigration law. Yes, that’s right, the power exercised by an immigration judge (IJ) is just executive branch discretion – the same power exercised here by Border Patrol agents. In some parts of the country, IJs don’t decide deportation questions, district directors of the old INS – now I think they belong to Immigration & Customs Enforcement (ICE) decide the question.
So the implication that the aliens have somehow missed out on something by not getting a date in immigration court, is either spectacularly ignorant*** for the Paper of Record, or it is intentionally deceptive. The sentence could arguably be rephrased, “Illegal aliens within 100 miles and 14 days of the contiguous borders, may now be deported by Bush Administration law enforcement agents, without having a second chance to make their case to the Administration’s law enforcement agents.
There is a final bit of editorializing in the news article, the inevitable citation to “advocacy groups”, who fear that Border Patrol agents will make the decision to deport poor unwitting folks, making the decision “often in the vast, inhospitable plains of the southern desert.” Couple points here. First, there’s pretty good grounds to think somebody is illegal if he looks and speaks Mexican, is out in the middle of nowhere in the Southwestern desert, and is hoofing it Northward. I’m no criminal law expert, but I’d say that amounts to reasonable suspicion justifying a stop. Second, the Border Patrol makes all sorts of decisions every day under just those circumstances. “Should I stop that guy who is running North?” “Is that a bundle of drugs under the tarp in that pickup?” “I’m hungry… should I run into town and get a donut?” My understanding of the plan based on other things I’ve read is that the illegals will be processed at big stations near the borders, that there will indeed be process, and that it will result in much quicker “catch and release” of illegals. The way this is written up, makes it sound like the Border Patrol will be turning around illegals in the middle of the desert, and frog marching them back through the same isolated sands back to Mexico.
All in all this is a really nasty set of insinuations. But what the heck. I guess Tom Ridge has been deemed as too credible, and the NY Times feels compelled to tear him down. Sometimes, it makes you wonder why DHS works so damn hard to keep Manhattan safe.
Of course I shouldn’t bitch. This pseudo abuse-of-power scandal will probably help Bush shore up his base, and win over some protectionist Dem centrist voters in the labor movement. Nor will he lose people in the black-UN-helicopter-gubmint-hatin’ wing of the party; many of those boys hate the gubmint, but hate the Messicans even worse. Come to think of it, I should be cheering for the Times to go whole hog, and say “Evil Bush Mounts Vicious Crackdown on Flood of Illegal Aliens, Throwing ’em Out Without Extended Court Proceedings or Benefit of ACLU Lawyers.”
Yeah. That’d teach that bastid.
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*No, really. The Border Patrol are being accused of picking on actual Canadians. I know the term “Canadians” has at times been used to refer to Jews, or to Blacks, or to any other prominent minority group, where the speaker is afraid of being called out for noticing a prominent racial or ethnic or cultural difference – but in this case, the NY Times isn’t saying “Canadian” euphemistically or ironically. They are accusing the Border Patrol of picking on Canadians, something the wily Canucks have probably long suspected.
**A reasonable argument, actually, since the Supreme Court ruled in Rasul/Al Odah that even murderous terrorist scum of the earth captured in open warfare making war on U.S. troops get a day in court, why shouldn’t mere illegal aliens get at least as much due process? But then, what do I know; I’m a mere peon attorney, and not one of our omniscient robed masters sitting upon high Olympus, aka. the big Court. I’m sure they’ll get a chance to sort this out.
***Spectacularly ignorant because one expects the reporters on any given beat with the NY Times, to have at least some expertise in the area they cover. That reporters covering a national security law beat are either lying, or ignorant of the basic administrative law principles that guide government activities in this sphere, is… well, it used to be shocking. It isn’t shocking to conceive of it any more. Why, of course it’s a liberal paper with Upper Manhattan sensibilities, as Mr. Okrent says…

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