DANCERS GIVING BACK to the Migrant Caravan: A first-hand account of a non-profit’s efforts to send humanitarian aid to families along the Border

DGB logo

Written by James Rodriguez Daza

—-Tijuana, Mexico  The road least traveled is usually the one that brings you closer to your destination. Traveling with a non-profit group to Tijuana, Mexico to help distribute much needed supplies to migrant families who were part of a caravan from Central America, the policy implications surrounding the issue of immigration reform and border security resonated throughout a trip I took to the border. Having spoken with immigration lawyers and human rights activists during the summer as the political crucible began to heat up over immigration, I felt I needed to go to the border to see first-hand what the situation was really like and if possible offer some level of assistance. What I saw for a single day had opened my eyes widely while producing a sense of sadness for the families who had traveled so far. Nevertheless, the trip had indeed strengthened my resolve toward furthering the call for a significant change in US immigration reform and human rights advocacy.

Nearing the end of 2018 and as the holidays were reaching their conclusion, the subject of immigration and the migrant families affected by the US Zero-Tolerance Immigration Enforcement Policy (implemented in May of 2018) continued to linger. Reports of increasing numbers of migrant families being detained and unaccompanied children being transferred to US Customs and Border Patrol (CBP) facilities and/or camps kept circulating throughout political and media circles especially as conflict within Congress intensified as both Democrats and Republicans argued over budget appropriations for the New Year. US President Donald Trump’s insistence on a $5 billion price tag for a border wall that he had championed since his presidential campaign over 3 years ago have however continued to be the lynch pin derailing recent efforts to reach a bipartisan accord. The end result was another US government shutdown before Christmas, which is not expected to end until well into the new year.

Debate on the subject of migrant family separations and reunifications at the US Border spiraled into new territory as a recent caravan of migrants from Central America (primarily from Honduras) had reached the border inspiring heated, angry debates on both sides of the political spectrum over the next steps to deal with this latest cohort of arriving migrants—mostly comprised of women, children, LGBT, and temporary workers escaping acute gang/political violence and persecution from their home countries as others were seeking work and a better way of life in an attempt to escape extreme poverty. According to the United Nations High Commissioner for Refugees (UNHCR), an estimated 7,000+ migrants comprised this particular caravan that was making its way to cities along the US border. Some had returned home due to the extremely difficult and precarious journey. The United Nations International Children’s Emergency Fund (UNICEF) estimated over 2,000 children were among the caravan numbers. Both UN, government, and non-governmental organizations (NGOs) specializing in immigration law, human rights advocacy, crisis management, and humanitarian aid had dispatched representatives to address the matter as US military personnel were eventually ordered to the border for security purposes. Among the NGOs, Dancers Giving Back (DGB), a registered 501 (c)(3) non-profit had been directly distributing humanitarian aid to migrant families at the border in addition to other charitable pursuits in Los Angeles, CA that included feeding the homeless in Skid Row and distributing clothes, blankets, and supplies to other indigent pockets throughout the city. It was DGB whom I had accompanied to the border in mid-December of 2018.

DANCERS GIVING BACK

DGB CREW

Founded and led by Jose Lopez, Dancers Giving Back had been operating for the past 3 years steadily growing support as their social media presence continued to grow and their collaboration with local charities like the Adopt-A-Meal program and local churches gained notoriety. A number of their donation drop-off locations have in fact popped up allowing contributors to leave needed clothes and toiletries for them to collect and distribute for their following trips. According to Lopez, the group’s humble beginnings really originated from a personal desire to engage his daughters in caring for their community. As a member of the Latin dance community in Los Angeles, Lopez soon realized and appreciated the potential neighboring social dance events had for congregating a large population of patrons. Appreciation soon turned to opportunity as Lopez gathered his fellow dancers and formed DGB hosting their own charity drives and social dance events throughout Los Angeles. Early in April of 2018, Lopez registered the group under the 501 (c)(3) non-profit tax code forming a board of directors and networking with local charities in order to solidify and increase their impact onto the community. Guided by members of the board, Lopez worked tirelessly to cement the group’s standing within the non-profit sector learning about the bureaucratic labyrinth and the political realities associated thereof.

BORDER TREK

On their third outing to the border, I had accompanied DGB trekking through Tijuana carrying 4 carloads of donations made up of clothing, shoes, toiletries, blankets, and non-perishable food to distribute directly to the migrants in the caravan. Zooming down the I-5 Freeway during the early Saturday morning hours, we had arrived at Lopez’s family home in Mexico where DGB members were already prepping some of the donations that we were about to distribute separating them by type and gender. Multiple bags of mostly women’s and children’s clothing were piled onto a towing trailer waiting to be hitched onto one of the trucks Lopez had prepared for the trip.

Curiosity spurred by the carloads of donations we had brought down to the border prompted my inquiry as to why larger trucks had not been acquired for the trip. After all, larger trucks meant more donations could be distributed and required less vehicles. Understandably, Lopez broke it down for me when describing their previous efforts to help out at the border:

The very first time that we did this, we didn’t know [about the import fees imposed at the Border]. So, we went from people who told us that ‘Yeah! It’s fine. Just go and take a letter that you’re going to an orphanage and they’re going to help you out.’ So, we did that, and we got fined [by Mexican officials]. It was for a Christmas [about a year and a half ago]. We had another truck that we brought full of donations along with another truck from a U-Haul. We managed to get a lot of sponsors for these kids at the orphanage. We were able to get about 5 sponsors per kid. So, we had a lot of gifts. They were wrapped really nice. The trucks were full. We figured we’d be cool. When we crossed over, we got pulled over. One truck we had to pay something close to $500 US. The next time we came to an orphanage. They did the same thing. We brought a trailer full of stuff. This time I figured I take my 501 (c)(3) letter and they’re going to let us cross the border. Nope. They taxed me another $500 US saying that they were giving me another break because if they were to weigh that, it was going to be over $1,000 US. So, I had to pay $500 bucks because if I didn’t agree to pay it they would’ve confiscated everything and something about registering or tacking the truck with some additional costs. In the end, I had to pay the $500 bucks. I had no choice. This time, I said we’re not going through this again. So, I decided to bring the [donations] in multiple cars.

Indeed, all of us (15 in total) packed our vehicles completely with donations and headed over to the Benito Juarez migrant refugee station making a short stop at a local area where homeless Mexican indigents were also camped out. The migrants by the Benito Juarez location were camped outside the initial station where all of the families were placed upon arriving in Tijuana. According to a migrant, Eduardo Avila, who had been there for 40 days after traveling from Honduras with the caravan, explained that when the rains occurred in early December, families were pushed out from the station because it had completely flooded the area forcing them to live out on the street in the cold. Since then, none had returned leaving a somber empty space with only tattered clothing and personal belongings spread throughout the area as a testament that they were once there.  Many families were later shipped to neighboring shelters, churches, and other refugee stations dwindling the number of migrants seen in one given space.

According to Lopez, this time around was much better controlled compared to when he visited Tijuana as the caravan first arrived in late November. As he described it, multitudes of families were packed here. It looked like a “’war zone’…We didn’t get enough footage to show what it was really like for them then. We didn’t get footage of kids bathing in cold water or setting up their own tents wearing old clothes and shoes.” Organizing the donation distributions then was very challenging. For Lopez, the experience from that trip felt chaotic as many rushed their vehicles to grab what they could before they were left with nothing. People were desperate, and members of DGB empathized with their desperation and took steps to improve their coordination. This time around, they felt better organized and asked a couple of members in the caravan to help group families in lines separating the women and children from the men alongside opposite sides of their vehicles. Wearing surgical masks and gloves, we tried to quickly pass out shoes and clothing while leaving an open bag and box of toiletries and mixed supplies on the trucks and alongside the walls. Children as young as 3 were either holding on tightly to their mothers or were roaming around our vehicles playing while their parents asked us for shoes or blankets. As we came to learn, many men had asked for additional clothing and shoes directing our attention to their current clothes’ state of disrepair. Alas to our dismay, we were in short supply for them during this trip.

In cases of supplies and storage, allying with local churches or shelters would seem to prove useful in these situations. However, experience has taught DGB that some of these locations are unreliable having lost a full load of their donations from one trip.

[Having gone with my brother the first time before bringing the group], we went to a shelter in Tijuana with over 200 brand new shoes to donate. We also decided to bring cash and buy blankets there. When we came there on a Tuesday shopping, and…sometimes I get it. It’s hard for these people, and the blankets we’re getting over here in the US are super cheap wholesale [by comparison]. The blankets are 3 times more there. I mean the market was crazy. So, I ended up not buying the blankets. I just went to Downtown LA and bought them there and ended up bringing them down next time we came. By then, I had left about 200 shoes [at a shelter]. Now, I made the mistake of leaving them in a shelter. I don’t like to do that not even in LA or anywhere. I like to do the [distribution] ourselves with our group. Well, I made the mistake of leaving the shoes there because I didn’t want to take them back. So, I asked the shelter to hold them for me. The next week when we came back to pick them up, the shelter told me that they never saw me. They don’t know what we were talking about. So, they pretty much took the stuff. It sucks because when we left the shelter, one of the guys that…They had arrived at Tijuana from Honduras about 3 days later… had told us, ‘You know what guys. Sorry to say but the stuff you left here, you’ll never going to see it. He had said that that last week. When a few other families came, the shelter had charged us for the stuff we had left and kept the rest. So, the following day we tried to get some of the shoes back. We were able to get what little shoes we could get but not everything because the guy even told me that if ‘you go right now they’ll take everything from me and they’re not going to let me spend the night in the shelter. So, please don’t do that.’ And yeah! Sure enough, they did exactly what he had said they would do

Benito Juarez

DGB 2

Conditions in Benito Juarez are such that the migrant families from the caravan are sadly left to their own devices despite the presence of local shelters. Interestingly, some members of the caravan have had taken leadership roles among their group organizing the rest to coordinate with visiting NGOs or neighboring shelters when they arrive to offer help. Since some speak English, it was easier for them to rally the others in the caravan to follow them. Our guide, Eduardo escorted a DGB member and myself through the encampment of migrants camped out along the street just outside the Benito Juarez refugee station informing migrant families to meet with DGB staff around the corner for donations they were distributing. As we kept meeting other families, Eduardo explained how some shelters do not always pass out donations or have enough beds to offer for a night. Moreover, he stressed that some migrants at times do not even know where they’ll sleep the next evening. In some cases, neighboring shelters from other regions may drop by and offer food sometimes enticing some to join them. In fact, in an effort to lessen the optics of the caravan, arriving migrants have been at times rustled together (appx 200-500) and taken to different locations further reducing the number of migrants seen in one setting where they had congregated.  When asked what the current status of asylum applicants were, he indicated that each were given a number and were called to present themselves. The average number of applicants called to present themselves by his count was approximately 60-80 applicants per day. He approximated that the number of applicants with assigned numbers thus far was around 2,668. The day we arrived, Eduardo told us that roughly 800 migrants were currently situated in this area around Benito Juarez. Of that, there were around 185 children.

Many tents throughout the area were seen erected where you can easily find a family or a group of indigents huddled together inside just idling as we pass them. Eduardo kept explaining the hardships he had witnessed as the caravan arrived and how the residents in Tijuana had responded to their presence. In fact, he had noted how a number of NGOs had dropped by to lend support albeit it was not always consistent.  Medical assistance was one need he did point out describing a couple of incidents of the ill being shipped out by ambulances when their conditions were brought to the attention of Mexican authorities and aid workers. One girl was actually seen covered in chicken pox following her mother down the street as we passed by. Seeing each person in the encampment stare at us as we peruse the site, their eyes—better yet what one sees in their eyes—spoke volumes. The level of desperation even now after just a few weeks passed when the caravan first arrived is incomparable. Sadness and dread can be seen by many. Only the few smiles from playing children that circled our vehicles were able to lift one’s spirits if only momentarily. The more we spoke with Eduardo, the more we received a better picture of how the situation at the border is developing. There are no local bathrooms or enough food and water to go around. Surrounding shelters do not have enough beds, and migrants (especially children) are exposed to the elements increasing their risk of illness. Some local residents in Tijuana have at times offered migrants the use of their bathrooms for as much as 20 pesos for showers and 5 pesos for the use of their restrooms. If they wanted to rent a room for the evening, migrants would have to pay 5-10 pesos per night. For many who ventured on this journey with very little if anything at all, finding enough to pay for just the use of the restroom is difficult. Since there are no public restrooms or outhouses conveniently located nearby, many are forced to use gutters or anywhere else that may serve as a momentary substitute.  A few feet away, we had passed a kitchen soup line where you could see a line form for food offered by neighboring NGOs. Piles of freshly laundered clothing were gathered in the middle of the street for onlookers and nearby scavengers to inspect and carry off should anyone so desired. Actually, I mistakenly thought the pile to be dirty laundry until Eduardo had corrected me to my surprise.

Here’s Eduardo’s first-hand account of his experience joining that caravan to the border for approximately 2.5 months:

To see this video with subtitles, go to the YouTube link below and click the closed caption button at the bottom of the window to activate the translator. Click on the settings (gear) icon. Click on Subtitles/cc. Then Select Auto-Translate to configure the preferred language. 

MEXICO’S RESPONSE

Mexico’s response to the arrival of the caravan had been well documented by reporters highlighting the fact that the overwhelming numbers of migrants had strained local resources frustrating some residents and officials while prompting others to help as more migrants arrive. Resentment toward the caravan had in fact set in among some calling for their deportation. Although, the Mexican government, under former President Enrique Peña Nieto, had already instituted stricter immigration guidelines and have deported thousands arriving from Central America. According to the Mexican Interior Ministry, 84,000 were deported in 2017 alone. Considering recent NAFTA deliberations though, Mexico had been under considerable pressure by the Trump administration to further tighten their immigration processes and increase their border enforcement if they wanted to continue receiving US humanitarian aid—a vital financial source to the nation’s economic stability. As incoming Mexican President Andrés Manuel López Obrador recently took office this month, he had to balance the promises he made during his campaign of softening immigration policies while avoiding Trump’s ire and risk a complete cutoff of US aid. According to Professor Javier Urbano of the Ibero-American University in Mexico during an interview for the Guardian (https://www.theguardian.com/world/2018/nov/09/migrant-caravan-mexico-response-rich-poor-supplies-complaints), Mexico’s recent tightening of its borders have ironically resulted in an increase in migrant caravans. Since Mexico’s borders are tighter with greater numbers of border security, migrants had opted to take more dangerous routes through the northern region forcing many to travel in groups for safety purposes resulting in the current migrant caravan situation. In one attempt to help alleviate the pressure along the border cities, President Obrador had even promised to offer migrants temporary work visas with healthcare and education benefits and help fund job creation programs angering many local Mexican citizens who are currently suffering rising unemployment and poverty rates. Moreover, evidence of such programs being developed are still up in the air as the new administration is trying to calm the citizenry along its borders. With respect to the temporary work visas, journalists have reported that some migrants from the caravan have been skeptical and feared that such offers were lures, a ruse to trick them into detention and eventual deportation prompting some to dismiss some offers out of fear; while, others have agreed to enter legally and presented themselves to a few shelters.

According to reports from some NGOs like Al Otro Lado and CHIRLA, many migrants who arrive at the border to apply for asylum do want to cross legally but both US and Mexican immigration officials have purposely stalled or have engendered processing obstacles delaying many to apply expeditiously forcing many to wait up to 45 days to a couple of months for some.

Here’s an interview by Rise to Reunite founder, Angeline Chen interviewing Erika Pinheiro from Al Otro Lado on the current obstacles facing asylum applicants at the border:

Frustration eventually sets in for many migrants, and they attempt to cross along other areas at the border forcing border agents to respond and arrest them. Videos and photographs of migrants taking extreme measures to cross borders have circulated during media outlets like the clips of migrants crossing the Suchiate River along the Guatemalan and Mexican border. Immigration rights attorneys and advocates have consistently stressed that such stalling acts are in direct violation of both US and international laws—specifically the UN Refugee Convention of 1951 along with US anti-human trafficking laws. According to the UN 1951 Refugee Convention and the subsequent 1967 Protocol to the Status of Refugees, asylum seekers may not be turned down or sent back to their country of origin if sufficient evidence/cause is determined that such return would endanger the lives of the applicants. Among US anti-trafficking laws, the more commonly referenced by advocates is the US Victims on Human Trafficking and Violence Act of 2000. According to the law, victims who were victims of human trafficking can seek assistance if they admitted/presented evidence showing they were victims of human trafficking and are willing to prosecute their traffickers. Sadly, migrant families are at a greater risk of falling victim to human traffickers as they trek the perilous journey to the border, and they still face danger from them the longer they stay on the streets by the border. Reports of cartel kidnappings are well documented in federal DOJ reports and in academic journals like those archived in the National Criminal Justice Reference Service (NCJRS).

Considering that less than 100 asylum cases are generally reviewed daily and the number of migrants in the caravan are numbered in the thousands, processing asylum requests have no doubt presented challenges for both US and Mexican officials as they try to manage an already beleaguered immigration system. With recent US immigration policies calling for either a postponement or a reduction of additional asylum petitions during and soon after the US mid-term elections back in November, migrant families have been left in limbo until US authorities review their petitions for consideration and adjudication effectively extending the wait time thus increasing pressure on Mexican officials to deal with these families at the border.

SUMMATION

There is no doubt by either side of the immigration debate that the current political environment has placed a spotlight on the inadequacies and overall short-comings of immigration policies and enforcement. In the struggle to balance effective border enforcement and human rights advocacy as global economics, national security, and the rule of law along with international laws and treaties intersect throughout the discussion, the one group most affected are the people who risked everything and traveled thousands of miles through perilous conditions to find refuge from severe poverty and acute violence back home.  Returning for most would mean certain death. As such, these families are left without a home and have effectively become less like human beings seeking help but instead political pawns subject to ridicule and xenophobia. As 2018 comes to a close and 2019 is welcomed with jubilation, policy makers and the judiciary in both the US and abroad should redirect their energy and political capital towards seriously finding multitudes of practical solutions if only to reduce the human casualty witnessed at the border. The rule of law should indeed be followed; however, when the laws have proven to operate in contrast to the spirit of the collective moral standards of human decency and utilitarianism, change is required.

Special thanks to Jose Lopez and the rest of the Dancers Giving Back (DGB) team for allowing me to join them and help distribute humanitarian aid to the migrants we encountered at Benito Juarez.

bebdf9d8-3104-48ac-8c8c-6c4fb4bbbfca

Also, special thanks to Eduardo Avila who helped us gather the families and speak about his experiences. Gracias Don Eduardo. Espero que llegues bien a tu país con salud y tranquilidad. Tus palabras serán escuchadas y se iluminará una luz en esta historia.

For additional information on Dancers Giving Back and how to donate along with upcoming scheduled events, they can be reached at:

DANCERS GIVING BACK
738 W 99th St
Los Angeles, CA 90044
(323) 807-9487
Email: dancersgivingbackofficial@gmail.com
Facebook Page: www.facebook.com/dancersgivingbacklosangeles

 

 

“Rise to Reunite!!!!”–A grass roots call for all to address the Trump Zero-Tolerance Immigration Policy

IMG_1449

written by James Rodriguez Daza, June 30, 2018

Pasadena—During the early part of the 20th century, the United States received millions of immigrants from all over Europe, Canada, Latin America, as well as the Far East. According to Kraut (1982)*, an estimated 9 million immigrants had arrived during the early decades mostly from Northern and Western Europe having dropped a bit during the 1920s due to conditions left after WWI. Many who did arrive at Ellis Island, NY at the time were escaping persecution, severe impoverishment, political violence, natural disasters, or severe state health and safety conditions beyond their control. The Statue of Liberty soon became a symbol of refuge from such conditions for many immigrants arriving to the US for years that followed….until recently.

As far back as the early 1990s, immigration policy has been a hotly-contested, persistent political minefield for congressional players that culminated in the creation of several laws addressing it that eventually led to the denigration of immigrants among US society today.

“…we [the US] started to understand that immigration into this country was a problem. It was a problem that we needed to take to respond to in a militarized fashion. That’s the reason why President Bill Clinton had signed a number of laws in 1996 that made it harder for immigrants to seek asylum. It ramped up the militarization of our borders. I say that to suggest that what we are facing today is the imminently crueler, harsher version of what’s been really a consensus of a bipartisan problem we’ve had in this country. I’m heartened by folks [recently] on the left and by Democrats now who are starting to understand that particular problem and starting to say that, ‘Maybe voting for tons and tons of money to police our border today is not something that’s tenable any longer. And that maybe when we did that in 1996 was a mistake.’”—Mohammad Tajsar, ACLU Immigration Attorney, 2018.

After three presidential administrations and increased border enforcement, the debate continues with increasing fervor as the Trump administration took the debate into a much harsher place with the implementation of a zero-tolerance immigration enforcement policy that separated families and galvanized both the nation and the world to decry against it. An estimated 600 grass roots assemblage of concerned communities and professionals had gathered in less than a month throughout the country to discuss ways to address the current immigration policy and work toward ending it. One such effort took place over the weekend at the Flintridge Retreat Center in Pasadena, CA. aptly named “Rise to Reunite: Panel and Action Workshops”.

IMG_E1416

The event offered an approximately 150 attendants a full afternoon of workshops intended on setting up actionable campaigns to lend a voice to both the affected undocumented migrant families and the numerous concerned citizens, professionals, and advocates who were outraged by the current US government actions that led to the current immigration dilemma. Several organizations were represented. They included the ACLU of Southern California Pasadena Foothills Chapter, YWCA Pasadena – Foothill Valley Chapter, the Pasadena/Altadena Coalition of Transformative Leaders (PACTL), the National Immigration Law Center (NILC), the Central American Resource Center (CARECEN), the Law Office of Carl Shusterman, Day One, and the Coalition for Humane Immigrant Rights (CHIRLA). In fact, Congresswoman Rep. Judy Chu (D-CA) of the 27th District of California was present to speak to attendants recanting her experience visiting the detention facilities at the border emphasizing the importance of such grass roots efforts like that displayed on the streets in DTLA and in workgroups like Rise to Reunite.

The event started with a panel discussion (overseen by senior counsel for the Law Offices of Carl Shusterman, Angeline Chen, and moderated by public speaker, Ernest Fenelon, Jr.) had key experts in the field who addressed numerous issues related to the current debate on immigration policy, the effects of the separation of undocumented migrant families, and first-hand accounts of site visits of some of the detention facilities where the children were held waiting to appear in immigration court. PACTL executive director, Yoland Trevino briefly gave a history of how US-CIA intervention in Guatemala during the Cold War helped sow the seeds to the political upheaval that eventually engulfed the country in acute cases of violence and poverty prompting an exodus of migrants to the US where they endured substandard living conditions and living in a constant state of fear and uncertainty.  ACLU attorney Mohammad Tajsar gave a general description of the current immigration policy and explained the historical events that led up to it stressing that the problem had continued under both Democratic and Republican administrations. NILC communications director, Adela de la Torre provided a heart-wrenching, first-hand account of her organization’s visit to the Artiga detention facility in New Mexico where they inspected the facility and interviewed both staff and migrants in order to confirm that all immigration legal detention requirements concerning the care and treatment of the detainees including the children were being adhered satisfactorily. A video of the panel discussion is provided below.

Interestingly, the most important take-away from the panel discussion was the importance of helping attendants understand the current problems facing undocumented migrant families under the zero-tolerance policy and identify areas of focus to direct their efforts at establishing a coherent and actionable campaign to end it. So, participants were separated into four discussion workgroups after the conclusion of the panel discussion. The groups included advocacy, fundraising, community organizing, and general volunteering coordination. Each were headed by group leaders to brainstorm ideas, identify target audiences, identify actionable steps for goal execution, and more importantly group direction which would maintain the overall sustainability of group actions. Attendants actively engaged in their corresponding groups discussing possible solutions and voicing their personal feelings on how friends and families were directly affected during the enforcement of the contentious immigration policy.  Many feared the repercussions and direction toward which the country was heading and understandably expressed their frustrations. IMG_1437The general consensus from the community organizing group (at least) was the importance of providing a face and/or voice to the undocumented migrants in order to humanize them and educate both advocates and naysayers alike of the real immigrant experience that follow them as they pass through an immigration system that Adela de la Torre had described as a “labyrinth that is difficult to navigate” for anyone caught in the process without adequate legal counsel, counsel which is generally not provided to immigrants who seemingly do not have the rights to it. Moreover, the direction that the workgroups emphasized was collective inclusion and fact-based campaigns to help persuade a larger consensus to support undocumented migrants and keep their families together. As one attendant noted, it doesn’t matter how much planning and coordination is done, if the other side of the immigration debate cannot be swayed to veer the pendulum toward a more moderate, coherent, and humane immigration policy, all their efforts would be in vain.

What are the current problems presented by the Trump administration’s zero-tolerance immigration prosecution policy onto undocumented immigrants?  

06-19-18-MICROSOFT-ON-IMMIGRATION-VO-12.transfer

According to the policy that was announced by US Attorney General Jeff Sessions on April 11, 2018, any undocumented person that has been caught crossing the US Border will be detained and criminally prosecuted for illegal entry into the United States. If they were requesting asylum at any recognized port of entry, they would not be arrested and prosecuted; instead, they would start application proceedings for asylum. However, if undocumented families were caught crossing the US Border other than a recognized port of entry, the families would be detained. Since only the adults can be prosecuted, the children as young as infant-aged would be removed and held separately. In the meantime, the adults await adjudication–most often than not–without the benefit of legal representation. To complicate matters further, a 1997 Supreme Court ruling called the Flores Consent Decree stated that the then-Immigration and Naturalization Service (now U.S. Customs and Border Protection) cannot detain undocumented, unaccompanied minors for more than 20 days at which point they must be released from their custody. With respect to the zero-tolerance immigration policy, children who were separated from their families are then reclassified as “unaccompanied minors” and subject to the Flores Consent Decree. Once the 20 day limit is reached and they have not been reunited with any member of their families, they are released from US Customs custody. Since the US cannot simply release unaccompanied minors without being placed under the care of a designated adult custodian other than a relative, these children are subsequently remanded to the custody of the US Health and Human Services where they would be assigned to foster care anywhere in the country while they wait to appear at a court hearing to decide their fate (i.e. deportation, asylum, etc.) Again, legal representation is less likely to be provided and the probability that they speak or understand English sufficiently to compose an adequate defense is very low. Considering that children younger than 3 years old are also separated from their families at the border, they too would be required to present their case in court.

Considering the varying bureaucracies at each stage of the immigration process, the policy implications present several areas of concern. Immigration experts point out that these children and their parents may wait several months before seeing a judge to decide on each case leaving affected families separated for extended periods of time potentially permanently keeping them apart especially if the parents are deported before the children are located and reunited with them. Another point of contention includes the fact that an overwhelming number of families arrive at the border seeking asylum from the extreme violence and poverty in many of their home countries that the designated points of entries at the Southern US Border are backlogged leaving asylum seekers to wait weeks to be seen. Frustrated, desperate, and often requiring medical attention due to the perilous journey to the border, they look to claim asylum at other points on entry not recognized by US officials resulting in their criminal arrest. In addition, US staff is severely undermanned to attend to the number of children housed in the facilities that have resulted in a decrease in the quality of care and trained personnel. Due to US child protection laws, detention facility staff and visitors are prohibited from touching, holding, or hugging children crying for their families in order to provide needed comfort from the trauma of family separation. According to the American Academy of Pediatrics,

“Studies of detained immigrants have shown that children and parents may suffer negative physical and emotional symptoms from detention, including anxiety, depression and posttraumatic stress disorder. Conditions in U.S. detention facilities, which include forcing children to sleep on cement floors, open toilets, constant light exposure, insufficient food and water, no bathing facilities, and extremely cold temperatures, are traumatizing for children. No child should ever have to endure these conditions.” (https://www.aap.org/en-us/about-the-aap/aap-press-room/Pages/AAP-Statement-on-Executive-Order-on-Family-Separation.aspx).

separated-children

Such areas of concern only briefly describe the Rubicon that the current policy presents. The initial effect was both national and international outrage. In the 2 months that followed the implementation of the zero-tolerance immigration policy, reports of the separation of thousands of families had displaced well over 2,370 children in holding facilities, tent camps and shelters. As stories of babies being torn away from nursing mothers, a father committing suicide after losing his children, and pictures, videos, and audio recordings of children being held behind cages and crying for their parents began surfacing, a world-wide rebuke of the controversial policy rang through every form of media. The United Nations Human Rights Office in fact had declared that the United States had violated the human rights of these families and in turn had violated international law stressing that the practice of criminalizing what for all-intensive purposes was considered an “administrative offense” is detrimental to the general welfare of the children and constituted a flagrant violation of the their human rights. The Organization of American States (OAS), which is an international, continental body of 35 independent states (including the US) that promotes regional solidarity and cooperation throughout the Americas, had approved a resolution at the end of June 2018 that called for the US, its headquartered base, to abandon its migrant child separation policy at the border and increase family reunification efforts immediately or risk possible injunctions from its Inter-American Commission on Human Rights.  British Prime Minister, Theresa May, had also gone before Parliament herself and denounced the policy. “This is wrong. This is not something that we agree with. This is not the United Kingdom’s approach”.  Even a French government spokesman, Benjamin Griveaux, chimed in questioning the moral direction the US policy has taken.

The pressure was much more tumultuous nationally spurring outcries from different fronts. A majority from both Democrat and Republican camps publically repudiated the Trump policy on the floor of the House and Senate while former First Ladies Laura Bush, Michelle Obama, Hilary Clinton, Roslyn Carter, and the president’s own Melania Trump publically spoke out against it on Father’s Day.

“…Our government should not be in the business of warehousing children in converted box stores or making plans to place them in tent cities in the desert outside of El Paso. These images are eerily reminiscent of the internment camps for U.S. citizens and noncitizens of Japanese descent during World War II, now considered to have been one of the most shameful episodes in U.S. history…Americans pride ourselves on being a moral nation…We pride ourselves on acceptance. If we are truly that country, then it is our obligation to reunite these detained children with their parents — and to stop separating parents and children in the first place.…[C]an we not as a nation find a kinder, more compassionate and more moral answer to this current crisis? I, for one, believe we can.” –Former First Lady Laura Bush (https://www.washingtonpost.com/opinions/laura-bush-separating-children-from-their-parents-at-the-border-breaks-my-heart/2018/06/17/f2df517a-7287-11e8-9780-b1dd6a09b549_story.html?utm_term=.3b8c7fa3e315)

Numerous non-profit, advocacy groups, national, professional organizations, like the American Medical Association, and faith-based organizations such as the Evangelical Immigration Table, the National Association of Evangelicals, and the US Attorney General’s own Methodist Church denounced the zero tolerance policy. As more stories, pictures, and videos like those taken from the former Walmart warehouse in Brownsville, TX or the detention facilities in San Diego, CA, came to light, US public opinion toward the separation of migrant families had begun to gather the attention of many more government officials (for some) whose seats were up for grabs this year. According to a Quinnipiac University poll in mid-June, for example, 66% of respondents opposed the policy while only 27% supported it. Government officials who were moved morally to respond demanded an end to the infamous immigration policy and called for an expedited reunification process for the families that have already been affected.  17 State Attorneys General led by New Mexico AG (Hector H. Balderas) wrote a letter to US Attorney General Jeff Sessions vehemently opposing the order while 3 state governors, Govs. John Hickenlooper (D-Col.), Andrew Cuomo (D-N.Y.) and Charlie Baker (R-Mass.) signed an executive order prohibiting state agencies from participating in the policy’s enforcement.

 

The political backlash that resulted backed US President Trump and his administration against a wall forcing him to reluctantly postpone separation efforts and demand that the US Congress pass an immigration bill that he could sign (which would have to include increased funding for his proposed border wall) in order to put the immigration debate to bed highlighting Trump’s efforts on using immigrant children as a political bargaining chip to fulfill his hard-lined immigration campaign promises. Predictably, after a week of political wrangling, no bill could pass through the House of Representatives that had a realistic chance of being signed into law by the President. Frustration, demoralization, and national polarization continued to increase. So much so, that national protests were organized and took place over the weekend demanding a complete end to the zero-tolerance policy. Since AG Sessions’ announcement of the strict enforcement on April 11 and Trump’s announced postponement of its family separation enforcement on June 21 due to political and international pressure, approximately 500 children had been reunited with their families while thousands more await their turn to see their families; however, the complexities related to family reunification due to the lack of proper comprehensive planning and protocols may potentially slow the process or potentially leave many children permanently separated prompting grass roots efforts like Rise to Reunite to overturn the immigration enforcement policy completely.

DTLA Protest2

Tajsar summarizes this grass roots push best when referring to the immigration enforcement that had affected many Central American immigrants during the past decade as an example:

“They have been met with a series of brutal responses from the US that date back to Bill Clinton but also through the Bush administration and unfortunately into the Obama administration. And chief among them is the idea, the principle of the jailing of families is the right approach to this problem. So, we start from the baseline of heightened amounts of detention and jailing of families of migrants that are coming into this country. That was a problem that predated Trump. But what Trump has since done is announce this policy, a policy of zero tolerance. This was a policy that was announced in [April] but it was a policy that they were already starting to consider as early as March 2017. …There have been approximately 66 children separated from their families every day since April.  What we have to do now is figure out a plan, a response to that problem.”

IMG_1447

Ultimately, the purpose of immigration advocates and these community events is to remind the country of the basic principles on which the United States was founded: It is a nation of immigrants that represents the best of each culture while serving as a beacon of hope to the disenfranchised and offer a chance at a new life where persecution and intolerance has been abandoned. Instead, justice, tolerance, and hope ring louder in the US than any other nation on the planet. When immigrants traveled to this country so many years ago, the Statue of Liberty was a symbol of those hopes and dreams. The efforts currently being laid out by such grass roots efforts are an attempt to remind this country of that very ideal and take action to preserve it. For that reason alone, the fight to help these families continues with such urgency and passion. President Trump and his base of supporters may argue that America has fallen into disarray due to poor policy and leadership promising instead that their own policies and vision for the country will help make America great again. On the contrary, it is important to let them know that America HAS ALWAYS BEEN great. Some were just too blind by ignorance, bigotry, and their own short-comings to see that. Now, it’s this country’s moral imperative to help others see it too.

*Kraut, Alan, The Huddled Masses: The Immigrant in American Society, 1880-1921 (1982); Handlin, Oscar, The Uprooted (1951)

 

The quest for the Holy Grail: An examination of the international community’s effort to establish international peace and security in light of the elusive nature of terrorism and 9/11

TERRORISM PIC4

Los Angeles–written by James Rodriguez Daza (Sept 2003).

In the wake of September 11, 2001, both the United States of America and the whole international body realized that the new threat facing the 21st century is terrorism and its affects on both security and international law. On a domestic level, the U.S. had to weigh the importance of preserving its constitutional ideals and internal security. Questions concerning methods of reducing terrorism and prosecuting terrorists have arisen inspiring multi-lateral cooperation among the member states of the United Nations while considering new innovative legal and law enforcement strategies. However, tackling this problem effectively and legally has spurred debate among scholars and law enforcement professionals. Nevertheless, all do agree on one important point, in an effort to truly fight terrorism, a multi-lateral approach is necessary employing both domestic and international resources upon which domestic and international laws are adhered. Although, inter-governmental agency cooperation are presented with both legal and logistical problems that may stiffen any effort to combat terrorism effectively. Therefore, an examination of both these efforts and obstacles are required in order to propose possible solutions.

Before any such analysis can begin, terrorism must first be described and assessed as to the degree it can affect a society. Unfortunately, defining terrorism is as easy as decoding the human genome. Currently, consensus as to what is terrorism still eludes legislators and scholars alike (Taylor 2002, Weiss 2002, Sucharitkul 2002, Glennon 2002, Smith 2001, Mueller & Mueller 2000, Sheptycki 1995, and Austin 1991). Austin (1991) used Jack Gibbs’s 1989 definition to create his theoretical propositions concerning terrorism’s impact on a Philippine community. He defined it as pertaining “to illegal interpersonal violence, including threatened violence, associated with political (or political-religious) extremism and subversion (p.34).” Weiss (2002) provided two characteristic principles defining terrorism even further. “It is intended to inflict death or seriously bodily harm upon civilians or other persons (presumably military personnel) not taking part in hostilities and its purpose is to intimidate a population or persuade a government or international organization to adopt a certain policy (p.2).” The 1937 Convention on the Suppression of International Terrorism defined it as a set of “criminal acts directed against a state and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public (Sucharitkul 2002:3).” Mueller and Mueller (2000) simply perceived it as a set of pathetic actions perpetrated by weak and desperate persons.

TERRORISM PIC2

So, one can see a certain range of descriptions that span from political motivations to desperate acts that slowly widens the net of potential terrorist activity. However, why have there been such discrepancies in describing terrorism? Conflicting political interests are partly to blame. Several states (particularly Arab nations) want to insure that persons, who are considered freedom fighters by their own people are not targeted, persecuted, nor have their movements confused with criminal campaigns by the rest of the world. Such a label might inadvertently hurt their cause (Taylor 2002 & Smith 2001). The other reason is more of a legal concern. Since terrorism is considered an international problem, some states who have fallen victim to terrorist acts of violence would like to try them in their own countries, yet the accused may have foreign origins complicating the situation by intruding on a nation’s legal jurisdiction.

TERRORISM PIC6

In fact, the issue of extradition has caused some countries to choose between previous treaties and current ones obligating them to cooperate in the “war on terrorism” (Greenwood 2002, Taylor 2002, Turk 2002, Keramidas 2002, and Zubel 1999). For example, European states would not be able to extradite accused terrorists to the U.S. if their fates involve capital punishment because they are parties to the European Convention on Human Rights (1950), and some are bound to Protocol VI. These agreements forbid any signatories from extraditing anyone in their custody to another state where the death penalty would be applied since they have held that capital punishment is inhumane and in violation of human rights (Greenwood 2002). Taylor (2002) described another example of extradition complications in Australia. Australian legislators had to decipher the difference between an act of terrorism and an ordinary crime in order to classify the offense under both refugee and extradition law. Under refugee law, the Australian government cannot return a refugee to his country of origin for persecution. Under extradition law, “a fugitive criminal is extradited to face prosecution (Taylor 2002:130).” As a result, legislators must weigh the consequences of both persecution and prosecution when dealing with a refugee suspected of terrorist affiliations and perpetration. So, they created the term, “serious non-political crime” in order to resolve the discrepancy between both laws (p.130). Now, if the offense is considered solely politically motivated, extradition is implemented regardless of refugee standing.

Such conflicting international obligations explain why many international treaties and anti-terrorism conventions have rarely been successful at arriving on an international consensus on terrorism. The definition itself will determine where a state’s political allegiance will reside. Only two recent conventions have been able to ascribe working descriptions (the 1997 International Convention for the Suppression of Terrorist Bombings and the 1999 International Convention for the Suppression of the Financing of Terrorism). However, they are limited to the acts themselves since consensus is still lacking on the term. Actually, describing acts of terrorism in lieu of defining it has become a temporary solution for most international legislation (Weiss 2002 & Turk 2002). Smith (2001) has even ascribed 15 U.N. conventions and 2 draft conventions naming offenses like hijacking, piracy, or assassinations as acts of terrorism; while, Weiss (2002) referred to a U.N. website listing two protocols in addition to 8 U.N. conventions spanning 23 years. The list of offenses are as varied as “hijacking, attacks on diplomatic agents and other internationally protected persons, hostage taking, theft of nuclear material and unlawful acts against maritime navigation and fixed platforms located on the continental shelf (p.2).” So, the debate continues despite international efforts to properly define terrorism.

Still, regardless of the difficulty in defining terrorism, its effects on a society are not as hard to conceptualize. Two case studies of the very impact of terrorism were observed in which theoretical propositions were presented and an examination of the degree it can take on a society were observed. Although both studies spanned a decade apart, their relevance continues to resonate on current events. Austin’s (1991) study of a Philippine province, Lanao del Norte, used an interesting conceptual scheme similar to that used to study the social and psychological effects that followed a natural disaster. His conceptual choice may imply that he may have viewed terrorism as a natural phenomenon that may have a catastrophic effect on a society. When looking at Bibes’s (2001) study of Colombia’s struggle against terrorism, Austin (1991) may have been correct in his choice. In Colombia, the state has lost so much internal stability that legislators are too afraid to pass any level of anti-terrorist or criminal laws because guerilla forces (who also have some drug trafficking connections) may wind up assassinating them. Subsequently, such violence only adds to the increasing crime rate experienced in most of the metropolitan areas (Bibes 2001).

TERRORISM PIC14

When observing Austin’s (1991) theoretical propositions, they can still be compared to the reality of Colombia’s current situation. For example, Austin’s (1991) sixth proposition states that “[n]ormative changes resulting from on-going terrorism generate feelings of anger and resentment among the citizenry (p.40).” In Colombia, paramilitary groups were formed by rural peasants to protect themselves from and (in most cases) to hunt down leftist guerrillas whereby adding to the violence and increased human rights violations plaguing the country (Bibes 2001). In another example, Bibes (2001) described the amount of territorial control some guerrilla forces have in the country partly due to their connections to the drug cartels and due to some government concessions that afforded almost 40% of the country’s land to them. This obviously affects travel and tourism for both citizens and tourists since they could be killed or kidnapped while exploring some of these controlled areas. According to Proposition 9 from Austin’s (1991) theoretical conceptualization, terrorism may affect tourism and business investment ventures as well as travel and education.

Of most importance, though, is the point Austin (1991) made about social controls determining the extent terrorist operations can flourish. According to his observations, terrorism seemed to flourish more in urban centers (cities) where the government is mandated to care and protect the citizenry. It is least prevalent in areas where “informal” social controls dominate. This would make sense since a major characteristic of terrorism involves building on a community’s distrust or disdain for their government (Austin 1991). Interestingly, he also noted that local anti-terrorist groups are more likely to arise in rural areas where social ties are strongest. Bibes’s (2001) study reinforced Austin’s (1991) propositions by noting that most guerrilla activity occurred in urban areas where rebel factions not only attack targets but interact with the populace; whereas, in very rural areas, more paramilitary group activity flourished. This is sensible since both paramilitaries and guerrilla forces are trying to kill each other. Given the complexity of this problem and the very real potential results that may occur if it is left unchecked, efforts to stop terrorism carry an even greater responsibility.

TERRORISM PIC10

As a result, both domestic and international efforts have been made to combat and reduce terrorist activities. In a way, this growing need to coordinate various international law enforcement agencies exemplifies Sheptycki’s (1995) thesis on post-modernization of the police force. According to him, transnational policing is a natural progression from a time when policing a state was only restricted within its borders. Never before was there a need to work beyond them. To him, the “police agency” represented an administrative tool that kept the state in check by controlling the social operation that kept the market going and maintained relative “industrial” order. However, as communication technologies improved and global markets became more constricted, the more opportunities existed for cross-border crimes igniting a global response.

The U.S., for example, has taken steps to bridge the gap between its federal agencies and other foreign police forces. The Federal Bureau of Investigations (FBI), following a strategic 5-year plan between 1998 and 2003, had developed five support agencies that would assist it in dealing with terrorist and criminal acts abroad that threatened national security. One in particular, the FBI’s International Training and Assistance Unit (ITAU) allows the agency to exchange law enforcement “training, assistance, and liaison cooperation with foreign law enforcement (King & Ray 2000: 387).” In addition, the U.S. Congress established the Law Enforcement Interagency Working Group in order to make recommendations regarding training and assistance given to Eastern Europe, Russia, and the Newly Independent States of the Former Soviet Union (NIS). The FBI also offers international need assessments for inviting host countries relating to law enforcement needs whereby recommendations are then provided as to how the agency can assist them. Also, numerous training seminars are offered for foreign agencies by the FBI in which investigative techniques and administrative tools are refined (King & Ray 2000). The Practical Case Training Initiative is a good example. Through it, the FBI invites

TERRORISM PIC15

foreign law enforcement officers to participate in actual investigation of mutual concern. On-the-job training, under the purview of the Criminal Investigative Division, stresses the importance of sharing case information and investigative techniques to combat criminal elements. Under the auspices of the PCT, agents also travel to foreign countries to work joint investigations there (King & Ray 2000: 341).

Though the United States’ commitment to enhance international cooperation to battle terrorism has advanced, domestic efforts have also shown improvement in the past that has led to the aforementioned evolution of the federal agencies. Before the 1980s, the federal government had made it virtually impossible to investigate American citizens suspected of domestic or international terrorism due to the political nature of such crimes and legal complications they might provide if suspects went to court. After 1983, investigative rules changed allowing thorough investigations of domestic cases. In fact, separate guidelines for investigating international terrorists were created (Turk 2002).

Local law enforcement had also evolved to deal with domestic, although less extreme, terrorism. The formation of the Special Weapons and Tactics (SWAT) teams occurred because police department resources were insufficient to deal with a crisis and maintain regular police supervision concurrently in the communities. Over time, SWAT teams had refined their tactics (particularly pertaining to hostage crisis) to a point where the situation would be dealt with slowly through negotiations and non-lethal means. Unfortunately, the nature of certain crimes such as mass high school shootings taught SWAT professionals that time is not always a luxury for negotiations to be conducted especially if the suspect cannot be dissuaded from murder. Therefore, “active shooter” training for police officers had been developed in order to resolve the situation quickly (Klinger & Grossman 2002).

International law enforcement efforts also have adapted to meet the threat of terrorism. A prime example is the creation of Interpol. Created as the International Criminal Police organization in 1956, after its predecessor (the International Commission of Criminal Police) was reactivated following World War II and its constitution modified, Interpol functions as a communications network for international law enforcement agencies.

TERRORISM PIC12

This organization (founded by a group of police officers working independently of their respective governments) originally handled ordinary crimes and excluded investigating offenses of a political, military, or racial nature. It was not until 1983 did the U.S. entitled it as a Public International Organization, and many key Interpol positions occupied by U.S. personnel spawned new efforts to investigate terrorist-related offenses that were considered political and militaristic (Sheptycki 1995 & Bossard 1988). Other international agencies surfaced afterward to deal more specifically with international terrorism—TREVI, the Police Working Group (PWGOT), the Mutual Assistance Group (MAG), and the Comite Europeen pour la Lutte Anti-Drogue (CELAD) (Sheptycki 1995). A major player is the Schengen Agreement. “[It] provides one of the key intergovernmental fora for police co-operation in Europe…The primary objective…has been to ‘harden’ the external borders of the European Community (now Union) and thus make it possible to dissolve the internal ones (Sheptycki 1995: 622).” Another player is Europol. It is designed to act as a law enforcement entity similar to the FBI in the U.S. Unlike Interpol, it does have law enforcement powers (Sheptycki 1995).

TERRORISM PIC13

Given the amount of international coordination, conflicts and organizational problems are inevitable. One issue relates to the coordination of international training. If not careful, coordinating countries, like the U.S., may design a training program that addresses a single, specific country’s needs while minimizing others. This could develop animosity between participating states and most likely weaken ties the agencies have worked so hard to establish (King & Ray 2000). Another issue is the overlapping of law enforcement agencies domestically and internationally that must cooperate with each other in order to solve transnational crimes. The overlap may lead to a divisive, competitive working relationship that may make networking difficult (if not) impossible (Sheptycki 1995). Also, the sharing of criminal intelligence between nations has caused some problems. According to Sheptycki (1995), advancing telecommunications and management information systems are key indicators of growth in transnational policing. When there is a continued resistance to computer information networking between states, more barriers are being built toward police co-operation. Part of the problem, he thought, originated from current political and legal institutions keeping the formation of a unified information system from occurring. Apparently there are certain legal barriers that involve data protection that have led to their resistance demonstrating the legal obstacles with which domestic and international law enforcement agencies must deal (Sheptycki 1995).

Nevertheless, in order for domestic and international agencies to effectively reduce terrorist activity, they must deal with both domestic and international laws. As a result, an examination of the legal responses that terrorism has inspired should be observed and assess the issues that have arisen in light of recent events specifically pertaining to the terrorist attacks on September 11, 2001. Domestically, the United States’ legal policies toward terrorism has been conflicting and in some cases contradictory particularly after 9/11. Traditionally, the manner in which the courts prosecuted accused terrorists are divided under two categories—domestic and international terrorism. Domestic cases were treated as terrorism cases if specified targets had been attacked and the political motives were present, yet the courts had minimized those motives (Turk 2002). The reasoning behind it lies on the fact that previous prosecutions were not successful; instead, they became more politicized by the defendants who were always charged with seditious conspiracy, and the “juries were reluctant to convict persons already in prison for crimes related to the conspiracy (Turk 2002: 346).” As a result, the U.S. Congress added a chapter on “terrorism” in the Federal Criminal Code whereby the offense was defined by its specified targets allowing prosecutors to dismiss political motivations from the offense. Thus, juries would be able to convict the accused more easily (Turk 2002).

Although, juries were more likely to convict if the evidence linking defendants was strong and the severity of the offense was high (Smith & Damphousse 1998). According to the “liberation hypothesis” (first proposed by Kalvin and Zeisel in 1996 in response to their study on jury behavior) and a study testing it on two comparison groups—terrorist and non-terrorist—results demonstrated that jurors would exercise broader discretion in finding defendants guilty when the evidence was weak and the crimes were less severe (Smith & Damphousse 1998). So, it would not had mattered if the political motivation would have been excluded if the crime produced a sufficient amount of intensity, a conviction would have been highly likely. Interestingly, domestic cases of terrorism were prosecuted more often under racketeering and RICO statutes in order to secure convictions; whereas, international cases classified by the courts as “terrorism” were convicted less frequently than their domestic counterparts. This is due to the fact that the U.S. government is understandably more reluctant to reveal intelligence for them and because defendants consistently pleaded not guilty forcing to take the cases to trial where proving guilt is more politically difficult than plea-bargaining (Turk 2002). In fact, Smith and Damphousse (1998) noted that terrorist defendants rarely, if ever, plea guilty explaining why cases that do get convictions show a positive relationship with sentence length. Therefore, the U.S. government was faced with a problem. If it follows the criminal law and procedures to the letter, accused terrorists are less likely to receive convictions. If military tribunals are used, the fact that some due process rights (which are usually afforded in criminal courts) will be lacking will receive public condemnation. It is a violation of human and civil rights. If defendants are handed over to foreign courts, there is no guarantee that their punishments will fit their crimes nor reach trial for that matter (Turk 2002). So, a solution was needed.

In a way, the events of September 11, 2001 resolved some but few issues. Instead, more questions arose, and the international response was both supportive and critical. On September 12, 2001, the U.N. Security Council adopted U.N. Resolution 1368 that condemned the terrorist attacks of 9/11 and expressed an international determination to fight terrorism. Resolution 1368 also identified terrorism as a threat to international peace and security. On September 28, 2001, U.N. Resolution 1373 was adopted reiterating 1368’s characterization, but it also called for all states to fight terrorism and those that support and assist in its activities (Greenwood 2002). Keramidas (2002) explained further that Resolution 1373 not only called for a multi-lateral effort but it also “imposes very strict responsibilities on all member states (p.149).” It required that they coordinate both information and investigative efforts in order to become signatories to both bilateral and multi-lateral legal agreements (Keramidas 2002). The fact that the U.N. responded to 9/11 is not surprising; it is that it not only denounced the attacks, but it demanded member states to act against similar attacks that threaten international peace. The U.N. had made previous resolutions describing terrorism as a threat to international peace, but it never demanded any action to be taken. For example, the U.N. passed Resolution 748 (1992) describing Libya’s failure to show that it had broken terrorist ties, but it did not state the consequences of its non-compliance; instead, it passed Resolution 883 reaffirming 748. The U.S. embassy attacks in Dar-es-Salaam and Nairobi are other examples (Greenwood 2002).

TERRORISM PIC5

Consequently, member states had to modify their own policies in order to adhere to Resolution 1373. The United Kingdom, for instance, had implemented the Proceeds of Crime Bill 2001 giving police extra powers to seize property at the beginning of an investigation before any change is made relating to terrorist financing and/or activities. International cooperation and assistance is also a condition of the bill adding to two previous measures the U.K. had initiated—the Anti-terrorism, Crime, and Security Act 2001 and the Terrorism Act of 2000. In the U.S., Congress passed the Patriot Act so that terrorist activities can be tracked within its borders investigating offenses related to money laundering, financing, and planning (Keramidas 2002). In Australia, the Migration Act and the Refugees Protocol had been modified altering immigration, visa applications, and asylum laws and practices (Taylor 2002). Section 46A(1) under the Migration Act, for example, stated that a visa application can be invalidated to an “offshore entry person” if he is considered by the Australian government as an “unlawful non-citizen” (Taylor 2002: 127).

Although with all the international support the U.S. had received since the events of 9/11, it was the subsequent attack on Afghanistan that divided the world and raised questions regarding a state’s right to defend itself under Article 51 of Chapter VII of the U.N. Charter. In addition, it also addressed how the exercise of that right applied to both state-sponsored terrorism and non-state terrorist groups like Al Qaeda. On October 6, 2001, the U.S. attacked Afghanistan bombing areas the de facto ruling regime, the Taliban, had controlled. According to Smith (2001), the U.S. did a good job building its case against the Taliban connecting them with Osma Bin Laden’s Al Qaeda network. Beard (2002), Greenwood (2002), and Byers (2003) agreed that the connection was undeniable. The Taliban had harbored Bin Laden and allowed his terrorist network to operate from their territory. Despite U.N. demands to surrender Bin Laden to the U.S. after being indicted for the East Africa U.S. embassy bombings in 1998, the regime refused to adhere the international organization’s demands. Even after two official U.N. resolutions (1267 and 1333) condemning and calling to sever ties to the terrorist network (not to mention various economic and diplomatic sanctions), the Taliban again refused to surrender Bin Laden (Beard 2002). After 9/11, the Taliban continually refused to hand him to the U.S. Thus, the U.S. attacked the desert region. On October 7, 2001, the U.S. sent a letter to the U.N. Security Council announcing its right to exercise Article 51’s provision regarding a member state’s right to defend itself against an armed attack.

This stirred debate among scholars over the appropriate use of Article 51 with respect to the attack on Afghanistan (Byers 2003, Greenwood 2002, Smith 2002, Sucharitkul 2002, and Smith 2001). Byers (2003), for example, did not think the U.S. needed it since there was enough evidence to support a military campaign. Sucharitkul (2002) would have disagreed citing that the attacks were conducted in order to prevent possible future ones motivating preemptive measures to secure the nation. Glennon (2002) would disagree about the effectiveness of the article noting inconsistencies in the language and the reality of state behavior, which restrains the U.S. from properly defending itself. Smith (2002), on the other hand, believed Article 51 had given the U.S. enough freedom to act on the Taliban regime and Al Qaeda. While, Weiss (2002) believed that the Bush administration misinterpreted the article’s provisions so that they could justify their already U.N. sanctionless military strikes.

AFGHANISTAN-TIMELINE/ C

Although, the United States’ use of the article justifying military retaliation against another state under the blanket of self-defense is not a new practice. According to Beard (2002), the U.S. used it when it bombed Libya in 1986 in response to a bombing of a German nightclub where an American was killed. Apparently, the U.S. claimed that the bombing was one of many planned attacks on Americans by Libyan-based terrorists. Zubel (1999) corroborated by citing the Pan Am flight 103 bombing over Lockerbie, Scotland as among the many terrorist attacks planned by Libyan terrorists. In both instances, the U.S. demanded the extradition of the suspected culprits and was denied by the Libyan government. So, the U.S. launched attacks against Libya. Another example involved the 1993 cruise missile attack on Iraq in response to a failed assassination attempt on U.S. President George Bush, Sr. The day following the strikes, the U.S. claimed that it acted in self-defense under Article 51. In another incident, the U.S. attacked Afghanistan in 1998 in response to the U.S. embassy bombings in Tanzania and Kenya. Again, the U.S. claimed self-defense under the article (Beard 2002).
However, the exact meaning in the words of the article is still debated. Article 51 of the U.N. Charter states:

TERRORISM PIC17

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security (Beard 2002: 569).

According to Greenwood (2002) and Glennon (2002), the concept of “armed attack” generally referred to the use of military force by states limiting the scope of who can be targeted. Since Afghanistan did not send any of its troops on the 9/11 suicide attacks or used arms against U.S. citizens on them, Glennon (2002) would agree that the U.S. acted outside the article’s provisions. Greenwood (2002) believed that such a restraint should not be imposed on this matter since the recent U.N. resolutions (1368 and 1373) recognized the U.S. right to self-defense and therefore implied that the 9/11 attacks constituted an “armed attack” under the article. Beard (2002) agreed citing Article 2(4) of the same U.N. charter that specifically states that “every State has a duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed toward the commission of such acts, when such acts involve a threat or use of force (p.566).” For Beard (2002), Article 2(4) is basically holding states accountable for any state-sponsored act of terrorism. Interestingly, both Article 2(4) and 51contradict each other making U.N. response to any “armed Attack” difficult to ascertain when faced with terrorism (Glennon 2002).

Another issue related to the U.S. right to use the self-defense provision under Article 51 to justify U.S. military strikes on Afghanistan is the level of need and proportionality of such strikes. Although a state may be acting in accordance with its legal right to self-defense, the use of force must be limited to a degree necessary to defend against the attack, and it must be proportional to it (Beard 2002).

In addition, the right to use force in self-defense can be preempted when the Security Council takes measures necessary to maintain peace and security. A final condition is that a state which has not itself been the victim of an armed attack may use force by way of collective self-defense only if a state which is the victim of such an attack invites it to do so (Greenwood 2002: 311).

Two problems are noted that challenges the U.S. position on self-defense. First, according to a classic definition of a state’s right to self-defense under international law—the Caroline Formula—the requirement for the necessity condition must be immediacy. Meaning, the threat in question is immediate such that there is no room or time for any form of deliberation to prevent an attack. The time gap between the 9/11 attacks and the military response by the U.S. on October 6 was such that the need to repel the attack was absent. Instead, the U.S. attack on Afghanistan would be seen more as a reprisal or retaliatory act in the eyes of the international community. In fact, the U.N. Charter and customary international law forbids any armed retaliation against another state (Beard 2002 & Greenwood 2002). Although. Greenwood (2002) did argue that since the “Caroline Formula” is a classic argument for self-defense, it did not rely on the fact that the attack was not by a state or that it matters. In addition, it made no distinction as if the formula applied to armed attacks by non-state actors. Therefore, it may not be applicable to the current situation in question.

TERRORISM PIC18

The second problem facing the U.S. position on the Afghanistan operation is culpability. The 9/11 attacks were committed by Al Qaeda, yet the military response occurred in Afghanistan without the consent of the Taliban. Although, the Taliban were also targeted, and it was not recognized as an official government by most states. However, the U.S. did not accuse Afghanistan of participating or planning the 9/11 attacks. Therefore, as some would argue (Byers 2003, Weiss 2002, and Smith 2001), the U.S. should not have targeted Afghanistan (Greenwood 2002). Greenwood (2002), nevertheless, disagreed with this criticism. The Taliban had violated international law by allowing Al Qaeda to operate in the region. The Taliban is a de facto government that controlled the country, and, thus, their actions can be classified as state actions. The Taliban were in U.N. violation by refusing to extradite Bin Laden under two U.N. resolutions. Finally, they had harbored Al Qaeda after 9/11 thus permitting the U.S. to respond in accordance with the “Caroline Formula” describing a state’s right to defend itself (Greenwood 2002).

As for the issue of proportionality, if in the process of a state defending itself responds in a degree that is disproportionate to the threat it is designed to meet and not by what occurred in the past, than it can no longer claim that it is acting in self-defense (Greenwood 2002). Greenwood (2002) believed that the amount of force applied on Afghanistan by the U.S. was proportionate enough to oust the Taliban regime. Smith (2001) disagreed citing that a worldwide consensus may see the U.S. acting out on the people of Afghanistan for the events of 9/11. If that were so, then they would be at a diplomatic disadvantage because the people were not culpable. Any military operation would then be considered as bullying and might generate sympathy and support for the terrorists by the populace thus creating more enemies (Turk 2002).

TERRORISM PIC7

Considering the complexity of terrorism and its regulation, some recommendations are offered in order to help alleviate the problem if only slightly reducing its potency. Weiss (2002) suggested that the U.S. (for its own part) should try to pursue a more sensible foreign policy that addresses issues such as the environment, poverty, racism, gender inequality, or nuclear weapons that all have some impact on terrorism. Mueller and Mueller (2000) suggested that the U.N. should reconsider imposing economic sanctions on difficult states as a punitive measure because its results are as destructive as any weapon of mass destruction that could unforeseeably promote further terrorism. According to Turk (2002), terrorism rises out of a people’s hopelessness and injustice that makes it more (if not) inevitably appealing. An alternative might be an “export control process” that could control a difficult state’s ability to import certain types of goods (Mueller & Mueller 2000: 178).

TERRORISM PIC9

Aside from that, the establishment of an International Criminal Court may be needed to resolve extradition issues concerning apprehended terrorists (Greenwood 2002, Turk 2002, and Smith 2001). Currently no such court exists. The only ones that may resemble one that are active are restricted to Yugoslavia and Rwanda, and even then, they are limited to trying certain crimes. The International Court of Justice could have been a nice substitute, but it does not have any criminal jurisdiction (Greenwood 2002). Interestingly, an International Criminal Court would have been active if it had gathered the necessary 60-state ratification, but it did not (Greenwood 2002). Some scholars blamed the U.S. for refusing to ratify it and influencing other states to do the same (Turk 2002 & Smith 2001). Although, an International Criminal Court would not have been able to try the accused co-conspirators of the 9/11 attacks despite receiving ratification; it would have been established after that horrific date thus prohibiting it from trying it retroactively (Greenwood 2002). In the case of 9/11, the only way the international community could try the co-conspirators would be if the Security Council had created an International Criminal Tribunal for that specific purpose.

Another avenue scholars recommend is the initiation of a form of judicial review for U.N. resolutions. Currently, the U.N. Charter does not give the International Court of Justice the authority to review the legal actions of the Security Council. Although, Article 96 of the U.N. Charter does give the Security Council and the General Assembly the authority to seek legal advice from the International Court of Justice (Zubel 1999). However, it is not the same especially when U.N. resolutions become contradictory to other past resolutions affecting the state of the issue in question. According to Glennon (2002), the International Court of Justice has not taken an active role in settling disputes between states. Why? Zubel (1999) might say that a standardized system of determining precedent does not currently exist.

Thus, upon examination of the issues facing the “war on terrorism,” a legal and humanitarian approach may be seen as the most sensible and effective way to reduce terrorism, yet that does not mean that law enforcement should be marginalized in retrospect since it is needed to find the culprits responsible for perpetrating terrorist activities. Most importantly, an international consensus must exist on defining the word, “terrorism,” and describing its many subcategories. Otherwise, any effort to reduce it will be wasted. If there is a lesson to be learned from September 11, 2001, it is that terrorism affects everyone in the international community. Therefore, an international, multi-lateral, joint effort is demanded. No. It is imperative and thus crucial for establishing and maintaining international peace and security.

TERRORISM PIC3

References

Austin, T. (1991). Toward a theory on the impact of terrorism: The Philippine Scenario. International Journal of Comparative and Applied Criminal Justice, 15 (1), 33-48.
Beard, J.M. (2002). America’s new war on terror: The case for self-defense under international law. Harvard Journal of Law & Public Policy, 25 (2), 559-591.
Bibes, P. (2001). Transnational organized crime and terrorism. Journal of Contemporary Criminal Justice, 17 (3), 243-258.
Bossard, A. (1988). Interpol and law enforcement: Response to transnational crime. Police Studies, 11 (4), 177-182.
Byers, M. (2003). Letting the exception prove the rule. Ethics & International Affairs, 17 (1), 9-17.
Glennon, M.J. (2002). The fog of law: Self-defense, inherence, and incoherence in Article 51 of the United Nations Charter. Harvard Journal of Law & Public Policy, 25 (2), 539-559.
Greenwood, C. (2002). International law and the ‘war against terrorism’. International Affairs, 78 (2), 301-317.
Keramidas, G. (2002). International cooperation and mutual assistance under the Proceeds of Crime Bill 2001. Journal of Money Laundering Control, 6 (2), 141-150.
King, L.E. & Ray, J.M. (2000). Developing transnational law enforcement cooperation. Journal of Contemporary Criminal Justice, 16 (4), 386-408.
Klinger, D.A. & Grossman, D. (2002). Who should deal with foreign terrorists on U.S. soil?: Socio-legal consequences of September 11 and the ongoing threat of terrorist attacks in America. Harvard Journal of Law & Public Policy, 25 (2), 815-835.
Mueller, J. & Mueller, K. (2000). The methodology of mass destruction: Assessing threats in the New World order. Journal of Strategic Studies, 23 (1), 163-187.
Smith, B.L. & Damphousse. (1998). Terrorism, politics, and punishment: A test of structural-contextual theory and the “liberation hypothesis”. Criminology, 36 (1), 67-92.
Smith, W.C. (2001). Legal arsenal. ABA Journal, 87, 42-46.
Sheptycki, J.W.E. (1995). Transnational policing and the making of a postmodern state. British Journal of Criminology, 35 (4), 613-635.
Sucharitkul, S. (2002). Lecture: Jurisdiction, terrorism and the rule of international law. Golden Gate University. Retreived at http://web.lexis-nexis.com on 6/12/2003.
Taylor, S. (2002). Reconciling Australia’s International protection obligations with the ‘War on Terrorism’. Pacifica Review, 14 (2), 121-140.
Turk, A.T. (2002). Confronting enemies foreign and domestic: An American dilemma? Criminology & Public Policy, 1 (3), 345-350.
Weiss, P. (2002). Terrorism, counter terrorism and international law. Arab Studies Quarterly, 24 (2/3), 11-25.
Zubel, E. (1999). The Lockerbie controversy: Tension between the International Court of Justice and the Security Council. Annual Survey of International & Comparative Law. Retrieved at http://web.lexis-nexis.com. on 6/12/2003.