Why we need an FBI investigation

Professor Christine Blasey Ford has accused Supreme Court nominee Brett Kavanaugh of sexual assault. The alleged assault occurred when they were both in high school, at a party.

"Washington Post reporter Emma Brown wrote: “She alleges that Kavanaugh — who played football and basketball at Georgetown Prep — held her down with the weight of his body and fumbled with her clothes, seemingly hindered by his intoxication. (Mark) Judge stood across the room, she said, and both boys were laughing ‘maniacally.’ She said she yelled, hoping that someone downstairs would hear her over the music, and Kavanaugh clapped his hand over her mouth to silence her.”'

Ford has offered to testify before the Senate Judiciary Committee, but she has asked for an independent FBI investigation to be done first.  Senate Majority Leader Mitch McConnell says that this is merely a delaying tactic; he says she can testify on Monday, have her say, Kavanaugh can answer, and the confirmation hearings can move forward. He doesn't seem to think this is a big thing, more of a political nuisance.

Those who already oppose Kavanaugh believe Professor Ford that he assaulted her, while those who support him believe it to be a smear job. 

This is EXACTLY why there should be an FBI investigation before going forward. Without an independent investigation, it is "he says, she says". 

But the questioners in the Senate Judiciary Committee are politicians, and they all have a political drum to beat. It is NOT like testifying before a grand jury, which aims to reveal the truth. Just because we use the same word - testify - doesn't mean we should confuse the two.  Testifying before the Committee is entering a shark tank, and McConnell is doing his best to throw chum in the water. 

"Why is this important?" you might ask. "It happened when he was a teenager. Back then, 'boys will be boys' was the way it was".  Well, it reveals character. But yes, people can change. 

But the MAIN reason it is vitally important is that Kavanaugh categorically denies the event. He doesn't say "I was just a kid, really drunk and out of control. I never did anything like that again. I didn't realize it was such a traumatic event for her, now that I know, I am so sorry".  That might be forgivable. But instead, Kavanaugh denies anything happened. If it DID happen, then he is lying and attempting a cover-up. That is NOT something that happened 30 years ago. Those are his actions NOW. 

There is no Court-related urgent reason to rush the confirmation through. The rush is purely the product of the politics of the upcoming election. As far as the Supreme Court itself is concerned, the consequences for delaying the confirmation are minimal. At least, they have been deemed minimal by the Majority party, which has allowed the seat to be vacant for well over a year. 

But if the event DID occur, and Kavanaugh is rushed through confirmation, then we will have given a lifetime appointment to a corrupt and lying man. 

If the event didn't occur, then steamrolling ahead with the confirmation will still leave the accusation standing, and no matter what is said in the hearing, Cavanaugh's name will forever have a cloud over it.  It would be to Cavanaugh's benefit to have an FBI investigation to clear his name. 

And if the investigation doesn't clear him, then the fact that he lied - his actions now, not when he was a teenager - will be vital to the deliberations of the Committee as they gauge his suitability to be a judge on the highest Court in the land. 

The legality of asylum

Asylum seekers are crossing the border legally.  When AG Sessions says "We will prosecute all those who cross illegally"  that DOES NOT apply to asylum seekers, under US Law.

Check out 8 US Code § 1158.  Asylum.

Section a. 1:
"Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum"

So they do NOT need to enter at a "designated port of arrival".
And they can ONLY apply once they have crossed the border.
ERGO: Asylum seekers are NOT crossing the border illegally.

As with many other places in the law, it's a matter of intent.

Intent is the difference between accidental wrongdoing and criminal action.

• If you pick up a box at the side of the road, thinking it is trash, you have not committed larceny or theft. You did not have the intent to deprive the rightful owner of the object.
• If you cause a death, but there was no intent to cause harm, it is not murder; it is negligent homicide or manslaughter.
• If you trip and fall, knocking someone else over, it is not assault and battery, even if the person you knocked over is seriously hurt.

What Jeff Sessions has done, in prosecuting all those who cross the border, is to assume that all the potential asylum seekers are lying. He is assuming that their cases are baseless, and furthermore, it appears that he is assuming that they have tried to enter the country before.

Entering without proper papers is a misdemeanor, usually not worth prosecuting (deportation is the penalty). Only if someone who has previously been deported tries to enter, giving false statements, does it rise to a felony which might incur imprisonment.

And Sessions is treating these people, who have not yet seen any sort of judge, as felons. Convicted ones, at that.

Children as hostages

Trump claims that his hands are tied, that the law requires children to be removed from parents who have illegally crossed the border. When asked why, if that were so, no previous president has taken children from their parents like this, he replied that HE is following the law, and the previous presidents were not.

Others say that Trump instituted this policy, and he can easily reverse it himself.

Who is right?

TL:DR -- Trump is wrong.

Details:
The White House claims there was a law passed in 1997 by Clinton that requires separation of children. Trump calls it "bad legislation passed by the Democrats" but says he must follow the law. He also refers to a court decision in 2015 which forbids the incarceration of children with their parents.

First of all, neither of these is legislated law. They were court cases aimed at protecting the rights of migrant children and their famiies. They do not say what the administration claims they say. They do not force removal of children from parents.

The 1997 case is known as the Flores Settlement.  It was an agreement reached in a civil lawsuit. Two civil rights organizations sued the INS (the Immigration and Naturalization Service) over their treatment of unaccompanied migrant children. The Flores Settlement said these children, mostly teenagers, must be held in a "least restrictive" setting, and couldn't be held for more than 20 days. Furthermore, the kids must be released "without unnecessary delay" to a relative, or, if no relative was available, to a licensed foster program. This meant that they went from the custody of INS to the custody of the Office of Refugee Resettlement (ORR).

The Flores Settlement was about unaccompanied children, but was later held (2015, see below) to also apply to children who arrived with their parents. The interpretation of exactly how this applies is key to the question today. 

At the time of Flores, 1997, families detained while awaiting immigration classification were sent to one of two family detention centers. Conditions in the Hutto facility in Texas were so bad that public outcry caused it to be closed in 2009. That left only the Berks County Residential Center in Pennsylvania, which was used less and less as the government began to use more alternatives to detention.

But then, in 2014, violence in Central America led to a drastic increase in asylum seekers. The government resurrected the family detention program, and established two new facilities in Texas, both run by for-profit prison companies.

Human rights advocates, bar associations, child welfare organizations, women's groups, and faith groups, as well as 33 Senators and 136 members of Congress, objected to this expansion of the detention program and brought suit. And so, in July of 2015, Judge Gee of the US District Court for the Central District of California ruled that six specific reforms needed to be made: 

1.  The government must keep better records on detainees and children. They must make a better and continuous effort to reunite children with parents.

-> This is the opposite of what is happening now. In fact, there is apparently no actual protocol for reuniting children with their parents once they have been separated. 

2. The government must process detainees promptly (the Flores 20-day limit), and in order of a defined priority. Family groups should be in the first priority category. 

-> Again, this is not part of the current policy.

3. A child should be released to a relative or licensed program, but if for some reason this is not possible, the child may not be held a facility where the child is locked up, nor may the child be held in an unlicensed facility.

-> This is the clause that Trump is referring to. At the moment, none of the family detention centers are licensed, and none allow the child to freely leave (so they are "locked up"). Therefore, this clause prevents children being sent to a family center -- even if accompanied by a parent. (Note that one humane solution for compliance would be to reform facilities so they can be licensed, and allow the children out to go to the local school)

4. When a child is released, the parent should be released with them. If the parent poses a flight or safety risk, the government can require a bond or ankle ID or other condition of release. 

-> This is what the previous administration did. Now it is not being followed at all. Instead, this administration has preferred to separate the children from the parents, then call the children "unaccompanied". I find this especially despicable. 

5. Conditions at the temporary holding centers must be improved, and standards put in place.

-> No comment needed. 

6. The government must keep records of compliance and report statistics on a monthly basis. 

-> This is an attempt at transparency, and I don't know the extent of compliance, but it apparently hasn't helped much. 

The American Immigration Council welcomed this ruling, saying that it "should signal the end of the mass incarceration of children and mothers seeking asylum in the U.S."

No such luck. 

The Government appealed this decision to the Ninth Circuit Court of Appeals, saying they wanted more freedom on how to treat detainees. The court denied the appeal, reaffirming the rights of the families and especially the children.

This is being twisted to mean that the children MUST be removed from their parents when the parents are incarcerated. 

CONCLUSION

There is nothing that says children have to be removed from their parents. 

On the contrary, the fourth clause of the 2015 case says that the parents must accompany the children.

The third clause says children can't be incarcerated, even with their parents, but this is only in conflict with clause four if the government insists the parents must be incarcerated in an unlicensed facility. 

The "zero-tolerance" policy of the current administration is the only reason why the parents are being immediately incarcerated. Note that this policy is legally questionable on two counts:

1. The LEGAL procedure for seeking asylum is to apply from inside the country - i.e., after they have crossed the border. They have 60 days in which to apply for asylum. The ICE handbook has a system of classification for those apprehended which is not being followed. Incarceration of parents in a facility that prevents the children from accompanying them contravenes clause two. 

2. Crossing the border without authorization is only a misdemeanor, not a felony. Not normally what is considered a "crime". Yes, children do not accompany felon parents who are sentenced to prison, but no one is being sentenced here. The families are being detained while their status is being determined. Incarceration that triggers the "no children" clause is inappropriate. 

There are options. 

Do not incarcerate the parents. Do as previous administrations did, and release them on bond, as suggested in clause four. Are they violating bond? That's a different problem, but one that can be solved without traumatizing the children. (For example, ICE reports that electronic monitoring has an over 98% success rate in getting migrants to show up for their court appointments). 

Or, detain the parents in a licensed facility and allow the children to stay with them. The children are free to come and go, perhaps in the custody of a family member or parent-approved guardian. That would satisfy the third clause. 

In short - Trump CAN easily, simply by declaration, reverse this policy. He is choosing not to do so, and is cherry-picking aspects of the court decisions that he feels justify his position. 

Trump is approaching this, as he seems to approach all things, as bargaining chips in a negotiation.  He is not a lawyer and does not seem to understand the law or how the government is structured. 

Trump is saying that the Democrats could fix things by agreeing to his immigration initiative. 

Yes, Congress COULD fix things. But it isn't by passing his proposed immigration reform bill. They could simply pass a law forbidding the removal of children from their parents unless for cause unrelated to the parent's immigration status - and in fact, such a bill has been proposed. 

However, Congress is controlled by Republicans and although they too are outraged by children being forcibly removed from their parents, most of them have so far supported Trump in his attempt to use the children as hostages to force Democratic compliance. 

Immigration reform is a related issue, but passing it is not actually a solution to the problem. 

It is somewhat like an ambulance arriving on a scene where someone has fallen down the stairs, only to be told they can't treat the patient until the unsafe stairs are repaired. 

Trump caused this problem, and he can fix it. Claiming that his hands are tied and blaming others is simply misdirection.

UPDATE: Wednesday, June 20: Trump just signed an Executive Order to stop the removal of kids from their parents.
He did not reveal details.
If he is simply allowing kids to go into detention with their parents, there will still be a conflict with the 2015 decision, and it will probably lead to another court case.

Still, be incarcerated all together would be better than having the families torn apart. I don't imagine the White House will consider having the kids able to come and go.

If he allows families to be released, even with electronic monitoring, his anti-immigration base will be upset at him following the "catch-and-release" system previous administrations used. But Trump is canny - I imagine he will figure out a way to portray himself as the hero.

UPDATE to the UPDATE: Thursday June 21: Trump is holding fast on his insistence on incarcerating the families -- "zero-tolerance". His Executive Order specifically asks that Flores be overturned.

Yes, by removing the stipulation that children not be incarcerated, it allows families to be incarcerated together. But if he is able to remove the Flores protections altogether, the result may well be indefinite detention by families and unaccompanied minors, in horrific conditions.

Plus, his proclamation does not address the thousands of children who have already been removed from their parents.

Article by the ACLU: https://www.aclu.org/blog/immigrants-rights/immigrants-rights-and-detention/despite-trumps-order-many-families-nightmare

Liberty weeps - her lamp extinguished

The US is now separating parents and their children at the border.  AG Sessions has said that if parents want to keep their children, they shouldn't bring them across the border illegally.

Sessions does not know the law. Someone seeking asylum status MUST apply from WITHIN the country. That means they must cross the border. Most cross the border and immediately go to the immigration office to file their asylum request. THIS IS THE LEGAL PROCEDURE. 

Under US law, asylum seekers have one year in which to file their paperwork (form I-589). During that year, they are in the US unlawfully (a civil, not a criminal, offense). If they crossed the border without going through proper procedures, they have, at worst, committed a misdemeanor (which are not normally considered criminal offenses) - and since this IS the legal asylum procedure, they HAVE arguably gone through proper procedure.

From the USCIS website: (https://www.uscis.gov/humanitarian/refugees-asylum)

AsylumAsylum status is a form of protection available to people who:

1. Meet the definition of refugee
2. Are already in the United States
3. Are seeking admission at a port of entry

So these people, who have already suffered victimization, and are following the legal procedure for seeking asylum, are being treated as criminals and having their children ripped from them.

Sessions implies that separation is a deterrence and punishment for the parents. That assumes they know that the US has adopted this bizarre stance, and that the asylum-seekers have a choice. These are people who can't go home, remember; that's part of the definition of being a refugee or asylum-seeker. We also know from numerous studies that such a separation traumatizes the children, and can cause permanent psychological damage. And for what? For some dubious political score?

I am ashamed of this country, There is no excuse for that.
The Statue of Liberty no longer speaks for us.
The new colossus has proven to be a bully.

The New Colossus

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep, ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

Emma Lazarus
November 2, 1883

Immigration, once again.

Immigration is once again front and center in national news. The President referred to immigrants as "animals". He then backpedaled to say he only meant gang members, but his initial comments could certainly be interpreted as applying to immigrants in general, even legal ones. [One does have to wonder what Melania thinks of his statements.] But on we go.

Time to review the legal facts about immigration:

ILLEGAL ENTRY (crossing the border without going through proper immigration), while it is a crime, is only a MISDEMEANOR, not a felony. It is on a par with public drunkenness. The charge must be proven in a court of law and not just assumed because of unlawful presence.

UNLAWFUL PRESENCE does NOT imply illegal entry. Most undocumented people entered legally but overstayed their visa. This is a civil offense, on a par with a parking ticket. It is NOT a crime, and people here unlawfully are not criminals.

The federal STATUTE OF LIMITATIONS is normally 5 years, so if someone entered more than five years ago (and did not use false citizenship papers), the charge of illegal entry is no longer applicable. (Entry using fake papers increases the statute of limitations to 10 years.) Unlawful presence is an ongoing status, not an event, so the statute of limitations doesn't apply. The (non-criminal) penalty for unlawful presence is deportation.

The administration is treating a civil offense as a felony,. They seem to be ignorant of the actual law. They - especially the Attorney General - have no excuse for this; their duty is to know the law. Their misrepresentation and misapplication of the law may, itself, be a legal offense.

Since the general public is also ignorant of the actual law, the anti-immigration faction gets away with using this fear-mongering tactic to control the discussion.

We need to inform the public. Only when people know the facts, and the law, can we begin to have an intelligent discussion about revising immigration policy.

If I made the rules - Congressional pay and benefits

I have seen several posts lately expressing outrage that members of Congress get paid their salary for life.

Now, while I don't like what Congress is doing any better than the next person, this outrage is misplaced.

 Congressmen participate in FERS, the Federal Employee Retirement System. It is NOT a "free ride for life", as many would have it. But it IS an employer-sponsored defined benefit pension plan, and pensions of that sort are increasingly rare.

 The plan itself is not terribly outrageous. They are vested after 5 years, which means three 2-year terms for a Representative and one 6-year term for a Senator. If that's all they serve, then at age 62 they can receive a pension of $17,588 for six years of work. Not earth-shattering, but not trivial either.

 However, if they serve for 25 years, they can get up to about $68,000 a year. And there ARE some unique aspects to the pension. "Serving" can be in any federal job, not just serving in Congress, so it becomes easier to make those extra years. And the calculations are based on the three highest-earning jobs, not the most recent.

 Congressmen can also participate in a TSP, which is the public-sector version of a 401k. The government matches their contributions up to 5%. Again, this is not outrageous; that level of employer match is not unusual.

 They DO participate in Social Security. But because their salaries are so high, their initial benefits can be about $30k a year, and that's on top of their pension. Note that one proposal to "fixing" social security is simply to lift the cap on contributions. For 2017, the cap is $127,200; the current salary of members of Congress is $174,000. Congressmen are also allowed to earn up to $28,400.00 in "outside earned income", so raising the contribution limit to 250k would capture most of this income.

 So what can we do, to save taxpayers from the burden of these (possibly overgenerous) congressional pensions? One theory is that minimizing income and class disparities would help our elected officials identify with, and actually serve, their constituencies. We should not have a ruling class.

 We could start by adjusting their base salaries. Pay Congressmen the median salary of their constituency. According to the Bureau of Labor Statistics, for the entire US, this is currently $44,564 per year. This would both put Congressmen on a level with the constituencies they represent, and reduce the ongoing financial commitment of taxpayers to pay their salary-based pensions.

If Congressmen say they need the higher salaries to do their jobs effectively - they need to maintain an appropriate house in Washington,  they need to host or go to the appropriate soirees - then those supposedly-valid expenses should be line-items in the state's budget. Let the voters decide if the expenses are warranted.

Unfortunately, this may not be much of a constraint on Congressmen, most of whom go into their jobs as millionaires anyway.

 Another possibility would be to give Congressmen the same options given to most workers today. Pension OR 401k, not both. Or, as suggested here, replace FERS with Social Security.

 To address the fear that reducing the salaries of members of Congress will make them more susceptible to bribery, I suggest that we a) make financial disclosure mandatory (ie, all elected officials must release their tax returns) and b) make such a disclosure mandatory again when they leave office or are re-elected. Let the public - their bosses - decide if any moonlighting they do has been interfering with their primary job.

Some complain that those in Congress get free Cadillac healthcare. Again, not true. Currently, Congressmen DO have to buy their healthcare on the marketplace, but in Washington DC (a district, not a State) they have options not available to their constituents. My solution would be to say they have to buy a standard plan offered on the state exchange of their state of residency. If they don't like what is offered there, they can work to get good, affordable plans offered to all.

Better yet, they could institute a national health plan, so residency doesn't dictate health care.

 So - if I made the rules...

Types of law: "illegal entry" vs "unlawful presence"

Civics is no longer taught in schools. It should be. People should be aware of the differences between criminal and civil law; and between legislative and administrative law.

Breaking a criminal law means committing a crime, by definition. Crimes can be broken down into felonies (serious crimes such as murder) and misdemeanors (minor crimes such as trespass or drunk driving). Yes, if you break a criminal law, you are a criminal (though many reserve that term for felons; you rarely hear of people convicted of drunk driving referred to as criminals).

Breaking a civil law subjects you to various penalties, of which having to pay a fine is the most common penalty. You can also be compelled to perform a duty. Civil law is what comes into play when you sue somebody. Breaking a civil law does not make you a criminal.

Regarding so-called "illegal immigrants":

Illegal entry is a misdemeanor on a par with attempting to evade customs inspection. It is not a felony. Federal law specifies that illegal entry must be proven, not assumed, and the punishment is "no more than six months of incarceration and up to $250 in civil penalties for each illegal entry."

So "illegal entry" only applies to those who have been proven to have actually crossed the border without going through proper entry procedures. Most of those who are in this country without documentation have not entered illegally; they overstayed valid visas.

Overstaying your visa is considered "unlawful presence" under Federal law. That is a violation of administrative civil law; it is not actually a criminal act, and those who do so are not criminals. "It is a violation of federal immigration law to remain in the country without legal authorization, but this violation is punishable by civil penalties, not criminal." The basic civil penalty for this is indeed deportation, but people "cannot be criminally charged or incarcerated simply for being undocumented".

This is the law of the United States. To say and do otherwise - even if you are the Attorney General or Director of ICE - is to flout those laws.

DACA recipients are not "illegals"

Current rhetoric conflates DACA recipients with those who have come over the border illegally to work as migrant workers, or those who have overstayed their legally-obtained visas. They shouldn't be confused.

Some people seem to think that DACA kids have broken the law. On the contrary. Anybody who is in the federal DACA program is currently legal; they have filed the paperwork, jumped through the hoops. None have criminal records. All have good grades and/or jobs (you don't get into the program otherwise). Their status, right now, is that of a legal resident of the United States.

But they came here illegally, you say. No; they were brought here illegally, but they themselves did not commit a crime. Under the law, you have to have agency - bear responsibility - in order to commit a crime. A minor child has no agency. They are no more responsible for being smuggled into the US than is a Cuban cigar.

Many now on DACA didn't even know they were not US citizens until high school, when it came time to apply to college or get a passport to travel with a school team. By acceptance into DACA, they have shown that they are precisely the sort of upstanding citizens we want in this country.

Oh, but their parents broke the law, you say. Possibly true... but we still have certain legal principles in this country. One is that you don't punish someone for what someone else did.

DACA kids are already in limbo. Yes, they are here legally, but if they are ever less than model citizens - if they even get a speeding ticket - they may lose that legal status. And, of course, the government may unilaterally decide to terminate their legal status. THAT is the current issue.