US Politics: Why Supporters of Arizona's Immigration Law Can Be Optimistic (Haddigan)

Lee Haddigan, one of EA's analysts on US politics, writes:

On Wednesday, 28 July, a day before Arizona's immigration legislation, SB 1070, was due to become law, District Judge Susan R. Bolton issued a preliminary injunction that temporarily prohibited the state from applying certain provisions of the statute. Her decision has provoked widespread comment, not just within the US but also in other countries, with both the BBC and Sky in Britain featuring the story prominently.

Most discussion, national and international, has portrayed the ruling as a victory for the Obama Administration and a defeat of the intent of Arizona’s law. However, study of the 36 pages of Judge Bolton’s reasoning and an evaluation of what the law actually intends to do reveal that Arizona legislators who supported SB 1070 can still celebrate. There are those provisions that did become law on Thursday, and the judge’s review offers grounds for optimism that, with some minor alterations, the sections that did not become law could survive a challenge in the future by the Department of Justice.

Judge Bolton granted the right of Arizona, in theory, to pass legislation dealing with illegal aliens. To sum up the implied message, "This is where you went wrong, now go fix it if you can."

The review of SB 1070 began with the observation that the law was enacted against “a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns.” So Judge Bolton started with the recognition that Arizona does suffer from problems that need addressing. And in her conclusion, she asserted that the Court “by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime".

Often overlooked in discussion of SB 1070 is what the law is actually meant to achieve. It is not the mass detention and deportation of illegal aliens. Instead, it intends to force illegal immigrants to leave the state of their own accord, deny illegal immigrants the economic means to live in Arizona and negating the assumption that their presence is tolerated. Section 1 of SB 1070 referred to this strategy as "attrition by enforcement".

The Federal Government attempted to enjoin the whole law because this “overall statutory scheme” was an attempt to “set immigration policy at the state level and interferes and conflicts with federal immigration law". Thus, the motion argued, SB 1070 is unconstitutional because of the Supremacy Clause (see the earlier post on EA).

Judge Bolton refused the Federal Government’s argument, stating that the intent of the Act does not “create a single and unified statutory scheme incapable of provision by provision analysis”. In essence, she conceded that Arizona has the right to pursue the policy of "attrition through enforcement" when the provisions of the law do not infringe upon the federal right to regulate immigration.

Bolton allowed that the Supreme Court “has consistently ruled that the federal government has broad and exclusive authority to regulate immigration". But she followed this assertion of the broad powers of Congress on immigration by quoting a Supreme Court decision, De Canas v. Bica (1976), that narrowed the field where the federal government possessed exclusive authority. While the Court held that the “[p]ower to regulate immigration is unquestionably exclusively a federal power”, it also concluded that not all state laws “which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power”.

Judge Bolton also specifically used the De Canas precedent to uphold a section of SB 1070 that the government challenged as a preemption of the federal right to regulate immigration. Part of Section 5 makes it “illegal for a person in violation of a criminal offense" to induce a person to come to Arizona, or hide them when they are in the state, if they know that the person is an unauthorized alien. The government asked for this section to be enjoined because it preempted federal laws on immigration.

De Canas, the Judge declared, defined the regulation of immigration as deciding “who should or should not be admitted into the country, and the conditions under which a legal entrant may remain”. A state law with illegal aliens as its subjects does not “render it a regulation of immigration”. As long as the state does not try to decide who should or should not be allowed to enter the United States, and does not stipulate the requirements for a legal entrant to remain in the country, then it can pass laws to deter illegal aliens from residing in their state.

Where Judge Bolton did prohibit sections of SB 1070 from becoming law on Thursday, she also at times indicated the grounds on which it could be amended to counter the enjoinment. She granted the Federal Government’s motion to prohibit a sentence which, she said, could only be read as making it mandatory for police to check the residency status of every person, including citizens, that they arrested.

Arizona, the Judge remarked, had explained at the hearing should be read as “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined”. This inclusion of Arizona’s explanation of the meaning of the sentence, which Judge Bolton did not have to give, was footnoted by her with the wry comment that “Arizona acknowledges that this sentence of Section 2(B) ‘might well have been more artfully worded’”. To my eyes that means "Go away and write that sentence as you explained it at the court hearing."

In another footnote, Bolton politely reminds the reader that many Arizona law enforcement officers do not need a new law to check the immigration status of a person who they have encountered in the course of a “lawful stop, detention or arrest,” as they “already have the discretion to verify immigration status if they have reasonable suspicion”.

In simple words, supporters SB 1070 argue that they are not surpassing federal law but to overcome resistance within the state to the full implementation of federal law. Governor Jan Brewer of Arizona appeared on Fox News on Wednesday night to emphasise “that police officers can do their job, they can enforce federal laws and their supervisors are not able to tell them not to enforce them”.

Those who see Wednesday’s decision by Judge Bolton as a defeat of SB 1070 are being a little premature. In fact, her ruling established the right of Arizona to legislate on its intent to force illegal aliens out of the state by "at4trition through enforcement" (an attempt that, according to some news channels, is already achieving the desired result). Where the Judge did enjoin provisions of the law, she also hinted at the means whereby Arizona could amend SB 1070 to fix the problem. And she allowed the right of the citizens of Arizona to sue recalcitrant state officials who do not enforce the federal laws on the books.

Of course, this is only the first hurdle for SB 1070 to overcome, and legal rulings on the civil rights issues in the law have yet to be heard. But for supporters of the Arizonan law, I would suggest that there is cause to be optimistic.

MENA House: Egypt as "A Nation Without Trust"?

In a heated discussion, television commentators Amr Adeeb and Amal Othman raised the subject  "A Nation Without Trust" (Watan bila thika).

The reason for this debate? In recent weeks, headlines have featured events bringing into question the integrity of the judiciary, medical examiners, and police forces.  In the words of  Adeeb, this is a "catastrophe".

MENA House: The Pharaoh’s Music in Today’s Egypt

Case 1: The Beating of Khalid Saeed

On 6 June, Khalid Saeed was assaulted and murdered by, according to eyewitnesses, two policemen.  Al Masry Al Youm obtained exclusive material, including more eyewtiness accounts and testimonies revealing the attack caused severe bruising and bleeding.  Pictures of the victim were then released matching  the description.

The events that followed that raised even more eyebrows throughout the nation.  Saeed's brother Ahmed claims that, informed of his brother's death, he went to the morgue.  Officers refused to let him enter and took him to the police station, where he was given a story completely different that of all the eyewitnesses.

The prosecutor interrogated the medical examiner at the morgue, "Afify Abdel Al Afify", who claimed that there was  a "bruise under Saeed’s left eye and scratches on his lips, but no other injuries".  The examiner added that the victim's mother and brother did in fact visit the morgue, however, he "forgot" to add this to the visitors' logbook.

A new medical report is being written to confirm/revoke the previous account.

Case 2: Lawyers vs. Judges

Two lawyers were convicted and sentenced to five-year prison terms for assaulting the district attorney in the Nile Delta city of Tanta, northwest of Cairo.  It is alleged that the lawyers slapped the prosecutor.  However, accounts of the event differ over who initiated the scuffle.

At the hearing, a judge ruled in favour of the prosecutor, a decision which defense lawyers claim was biased.  This led to numerous protests against prosecutors, with lawyers handing out leaflets condemning judges of not being objective and failing to do their job properly.

While the judges, defence lawyers and prosecutors argue amongst themselves, it is the Egyptian citizen who is affected. Videos show empty courtrooms, in contrast to the normal rush of judicial business.

In the words of Adeeb, the Egyptian citizen is being abused twice over.  First, their legal dealings are stalled because of the dispute within the judiciary.  Secondly, their trust is being killed.

Returning to the Khalid Saeed case, what happens if the final report is published and it states that he was in fact murdered by policemen? This means that police officers and the forensice medical examiner can change their reports from one extreme to another.  Whom does an Egyptian citizen trust?

What on the other hand happens if the report concludes that Saeed was not killed, contrary to all eyewitness accounts and photographic evidence of the assault? Again, whom should an Egyptian citizen trust?

Iran's Persecution of Rights: The Pursuit of Lawyer Mohammad Mostafaei (Shahryar)

A few weeks ago, my significant other and I were having a conversation about the state of affairs in Iran in the wake of the Green Movement’s uprising and the Government's attempt to stop it.. After looking at all the information at hand, she looked at me and said, “They started with arresting ordinary Iranians, then, journalists; I wonder who is next.”

Well, her question seems to have been answered. Human Rights Lawyers.

Prominent human rights activist and lawyer Mohammad Mostafaei was questioned last week by authorities. A couple of days later, they came against for him, this time for detention. Apparently, he was not in his office; he remains missing. His wife Fereshteh Halimi, and brother-in-law, Farhad Haleemi, who were near the office, were arrested.

Mostafaei is not the first lawyer the government has wanted to detain. Many were arrested early in the crisis and then released, including influential feminist and human rights lawyer Shadi Sadr. But in those days, the government was arresting anyone it could get its hands on. They didn’t really care if the jails were filled because their other detention facilities --– such as the infamous Kahrizak Prison --- had shipping containers on hand to hold detainees if no cells were available.

Now that the situation is calmer, at least in appearance, the government has embarked on a campaign to detain prominent Iranians fighting for human rights. Mostafaei’s case may be the most crucial because he is probably the most overburdened lawyer in Tehran.

Recently, Mostafaei emerged in the Western media through his representation of Sakineh Mohammadi Ashtiani, the woman convicted of adultery who was about to be stoned to death. She, however, is only one of his clients. The majority of human rights cases currently in courts in Tehran that we here in West get to hear about are all cases that Mostafaei has taken and worked on for years. Every time a child is facing the death penalty in Iran, he is the first lawyer to take up the case. He also takes on most of the other cases involving women accused of adultery, a crime punishable by stoning in Iran. Journalists, human rights activists,and political dissidents cases are also represented by Mostafaei.

Even before the publicity for his representation of Ashtiani, Mostafaei had won a hard-fought battle in Iran’s courts when he was able to convince the family of a victim to forgive juvenile Hossein Haghi, accused of murder when he was 14. His work with juvenile offenders has won him respect among human rights activists not just in Iran but also abroad.

Mostafaei was one of the early detainees after the election last year in June, but was later released on bail. The arrest did not deter him, as he took on more clients. The pressure to take up more of these cases was prompted by two factors. Other human rights lawyers like Nobel Prize laureate Shirin Ebadi and Shadi Sadr had been forced into exile by the government, and the regime was detaining more and more Iranians on almost a daily basis.

Last Saturday, Mostafaei was summoned to Evin prison and questioned about his work for hours. He later posted a blog entry hinting that he believed he would be arrested. If imprisoned, he will join human rights lawyers Mohammad Oliayifard, currently serving a one-year sentence. If he makes it out of the country, he will join an alarming number of Iranian intellectuals who have been forced into exile. In either case, he will not be able to defend Iranians against the regime's interpretation and application of the law

Most importantly, as Mostafaei was the most prominent human rights lawyer who had been allowed to work relatively freely inside Iran, his arrest means that his colleagues will have to be extremely careful from now on. The duties of a human rights lawyer in Iran are now even more dangerous than it was before.

Iraq's Missing Billions: Scott Lucas on Al Jazeera's Inside Story

This week the US Special Inspector General for Iraq Reconstruction reported that the Pentagon cannot account for almost 95% of $9.1 billion allocated by the United Nations, from revenues from the sale of Iraqi oil and gas, after the Iraq War in 2003. There are still no records for $2.6 billion.

I discussed the issue on Inside Story alongside Mundher Adhami, an analyst on Iraqi affairs, and Jeremy Carver, a board member of Tranparency International.

Iraq: The Billions of Disappearing US Reconstruction Dollars

Iran Document: Karroubi Strongly Criticises Head of Guardian Council (29 July)

In a statement on his website, Mehdi Karroubi writes to Ayatollah Ahmad Jannati, the head of the Guardian Council, responding to Jannati's speech supporting the Supreme Leader and accusing the US and Saudi Arabia of offering $50 billion for "regime change" (see separate analysis on EA). Translation from the Facebook page supporting Mir Hossein Mousavi:

In the name of God,

Ayatollah Ahmad Jannati, Head of the Guardian Council and Friday Prayer Imam of Tehran

Greetings,

According to the news and reports published by some news agencies and news websites, recently you had an extensive political speech at Qom’s Jamkaran Mosque for the celebration of the birthday of Imam Mehdi [Shia’s "hidden" 12th Imam]. In the worst manner, you abused the pure and devoted religious gathering of Muslims who had gathered in that place only, because of their beliefs, to show respect to and ask for help from Imam Mehdi. Relying on the power and assumed immunity from liability for what you make up, you stated some imaginary unproven and divisive remarks and added the fuel of hatred and discord on the fire of difference you have started.

Among these repetitive shabby and outdated false allegations and rumours of yours against Imam Khomeini’s friends and the defenders of the people’s fundamental rights and all the noble people and freedom seekers, what was new was that you said: “I  have acquired a document that [shows] the Americans have paid $1 billion to the “heads of the conspiracy" [the Iranian opposition] via Saudi people who are currently agents of the United States in the region’s countries. These Saudis, who were speaking on behalf of the United States, told [them] if you manage to overthrow the establishment, we will pay you up to another $50 billion, but God put out this “conspiracy” with the hands of his pure believers.”

Mr. Jannati, what you call “conspiracy” was the election that, as usual, was engineered by you and the intelligence rooms guiding those like you in the Guardian Council and Interior Ministry to provide what was favoured by those who engineered this election. But despite the expectation and unlike the norm (and God is the best planner), the plan of yours and other power grabbers was not successful and the salty stew you cooked up and was hastily
fed to the nation made them angry and [this] interrupted your show election.

So you and the other designers and engineers of the election scenario, with disbelief and despite the empty claim of abiding to people’s votes, repressed people’s protest in the most extreme and most brutal way possible. And then, at the height of your fear from people’s anger, you posed victoriously and, to complete your projects, staged show trials to quiet the remnants of any objective voice, putting the silence seal on the land of dead that you had dreamed of in your mind. This method of alleging and giving out sentences has unfortunately been the method based on which, for years, many of
the pure children of this nation have been denied their rights, such as electing or being elected because their qualifications have also been rejected based on these types of reports.

However, after more than a year from what has happened [since the election], you still are having nightmares from what you have done and the response you have received, and you are constantly trying to find a pretext so that the outcome of the fantasy that you made up and the lies you
created would become smooth for you.

Mr. Jannati, in the lexicon you created following the Presidential elections you called those “conspirators” who are the majority of the Iranian nation and are considered leaders for them (I bet Mehdi Karroubi is one of them). But in the same lexicon, which fortunately was defined correctly by the nation, some have become well-known for their hypocrisy, trickery, shams, killing, abuse of religion, and deceit of faith. Undoubtedly,  no doubt if
you are not one of the obvious examples of them, you are indeed someone who made this path clear for them to achieve their goals.

If I am a conspirator because I object [to the Presidential election], then you are a partner of those who stole this nation’s vote and are disloyal to the nation because the footsteps of your foolish acts are evident in the events that have happened both before and after the election. Unfortunately, in every case you stood against the people and took side with the violent and oppressive movement.

This time for the false accusations you made against those who you call “the heads of the conspiracy”, claiming that they have received money from
Saudis to topple the system, first of all I will file charges against you to the Islamic Republic’s judiciary, although I have no hope that this will be processed. Secondly I write this letter so that you realise that I am protesting to your remarks. I ask you here to reveal any reason, document, and
evidence you have, otherwise I will unveil your growing lies and scandals publicly everywhere and by any means possible.

In conclusion, I remind you that you are at the end of the path that is called life and whatever you have done, if it has been done for the love of this world and its possessions, then you have definitely achieved it....

Mr. Jannati, history repeats itself and it is incumbent upon the politicians to learn from it. You certainly remember that after the uprising of Khordad 15 [5 June 1963] and the arrest of Imam [Khomeini] and a group of great [religious] scholars and many of the people and the butchering of the nation by the government’s soldiers and thugs in various cities, the Shah’s regime announced that they have arrested someone named “Jo Jo” at [Tehran's] Mehrabad airport who had brought two million tomans for Imam Khomeini to use for rioting against the regime.

The planners and scene-writers affiliated with the deceased Shah seemed experienced enough that, when they created a lie, they at least made it plausible for some of the people. Unfortunately you and your friends or, better said, your sources, when you create a lie, it is implausible and unacceptable. I seek refuge to God from the injustice that the government’s religious instructors and preachers have done and continue to do to the real and oppressed clergymen and the true preachers of Islam and Shia.

You also seek refuge to God and fear for your afterlife. Ask God for forgiveness and ask the great nation of Iran for mercy. There is hope that people and the almighty God may forgive your sins.

So learn a lesson, you insightful ones (from the Holy Quran)

Mehdi Karroubi

Mordad 7, 1389 6 (29 July 2010)