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ICE Is Making Its Massive Data Collection Effort Secret As It Labels More and More Immigrants ‘Gang Members’

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ICE Is Making Its Massive Data Collection Effort Secret As It Labels More and More Immigrants ‘Gang Members’

In a new rule proposal, the Department of Homeland Security has moved to exempt large swaths of the Immigration and Customs Enformcement’s massive data collection system from the Privacy Act, making the type, sources, and accuracy of information ICE is collecting almost completely secret. By doing so, it would further obscure a law enforcement agency that has used its data system to label at least hundreds of immigrants as “gang members” as part of its efforts to ramp up deportations under the Trump.

The new rule focuses on ICE’s FALCON database, which, as the Intercept has reported, gathers information as far-ranging as local police reports, social media, criminal and civil asset forfeiture records, cell phone information and even data collected by the CIA and NSA. The Privacy Act had previously ensured that citizens and legal permanent residents had some access to information the government had been collecting about them, to ensure its accuracy, and to determine how the government had collected that information. Under the Bush and Obama administrations, that right was extended to undocumented immigrants as well. However, following an Executive Order by President Trump, that right was rescinded.

The new DHS rule would go even further however than the Executive Order, keeping both citizens and noncitizens alike from seeing the information that is being collected on them, or, in the case of deportations, used against them, through FALCON.

“This type of rule proposal is not unprecedented now, unfortunately,” said Jeramie Scott, the Director of the Domestic Surveillance Project at the Electronic Privacy Information Center (EPIC). “It has become a growing issue because of the amount of information that these agencies collect in their databases and the ways they disseminate this information. We’ve seen repeatedly that government databases, especially ones that have exempted themselves from Privacy Act safeguards, can contain a lot of inaccuracies.”

EPIC was one of the few organizations that commented on the proposed rule. It has filed a FOIA request with ICE to shed more light on ICE’s use of FALCON, which was designed by Palantir, a company co-founded by Trump-supporter Peter Thiel. Scott said previous rule proposals by DHS have regularly become policy, mostly unchanged from their proposals.

FALCON, which has been used by DHS since 2013 to “assist in the conduct of ICE criminal, civil, and administrative investigation,” helps flag individuals who would otherwise never be on ICE’s radar, like, for example, those who have been been put into local law enforcement gang databases (many of whom have never committed a crime).

It’s this type of information sharing that undermines many “sanctuary city” policies that are meant to help protect immigrants, immigrant advocates claim. The very same cities with “sanctuary city” policies like New York and Los Angeles, also run gang databases that ICE then uses to track people down. Police departments in these cities also engage in “broken windows” policing, where crackdowns on low-level offenses, such as turnstile jumping or drinking in public result in arrests where the arrestee’s fingerprints are shared with ICE, even if they’re not prosecuted.

“ICE has been throwing around the ‘gang affiliation’ tag left and right without any substance to them,” said Lee Wang, an attorney at the Immigrant Defense Project in New York. “What we’ve been seeing is a regular flow of information from local police departments in terms of people’s information and criminal histories to the federal government. Without a lawyer present, immigrants get ambushed by all this information the government has collected on you, and it’s very difficult to defend yourself. This is what we call the ‘‘information imbalance’ and it really matters.”

California’s gang database, for example, was found by a state auditor to be filled by errors and the police in Portland, Oregon recently annouced that it will end its gang list after a reporter with the Oregoinian found that 81 percent of those on the list were part of a racial or ethnic minority.

“We’re in a place where the government is constantly collecting data, while at the same time, we have less and less rights to see or correct that data,” said Neema Singh Guliani, a legislative counsel at the ACLU. “This should be viewed as part of the overall attempt by the Trump administration to view immigration enforcement in a way that is not respectful of the due process rights of immigrants.”

Once in ICE custody, there’s often no effective way for immigrants to challenge deportations based on the information that comes out of these databases, especially since the vast majority of immigrants are representing themselves in court.

“ICE brings these kids into custody, and says to the judge that they’re gang members, and what they can get away with, and what evidence they can put behind that claim is astonishing,” said Heidi Altman, the Director of Policy at the National Immigrant Justice Center. “I’ve seen evidence that’s a picture of a teenage boy that was posted on social media, and some immigration agent has literally drawn an arrow to another young person in the photo and scribbled in ‘gang member’.”

This “information imbalance” that immigrants experience when facing deportation is immense — often they’re not told exactly what has qualified them as a “gang member,” nor given the opportunity to correct records that local or federal law enforcement might be keeping on them. What this does, in effect, as Altman explained, is “use information to target communities simply for being where they’re from.” This has been especially prevalent in deportations of Central American immigrants, she said.

ICE did not respond to a request for comment about the rule proposal.

A similar, secretive surveillance initiative by the Department of Homeland Security, which also cast a wide net among a targeted community, was the FBI’s “No Fly List,” created in the aftermath of 9/11, and meant to restrict travel for those the government suspected of having ties to terrorism. Following a series of lawsuits alleging serious civil rights violations, the “No Fly List” was revealed to be inundated with inaccuracies.

“It’s not a transparent process, it’s ripe for abuse, the criteria are so vague, and even according to the watchlisting guide, the presumption is in favor of accepting a nomination for placement on the list,” said Naz Ahmad, a staff attorney at the Creating Law Enforcement Accountability & Responsibility (CLEAR) project at CUNY Law School. “There’s very little incentive to conduct proper reviews and see if someone should should be removed from the list, or how much of the list is based on outdated or inaccurate information.”

The buildup of the surveillance state at virtually every level of government, now operating unchecked by the very law meant to limit the amount of information the government can collect on citizens and noncitizens alike, goes far beyond the rights that were provided by the Privacy Act, EPIC’s Jeramie Scott argues.

“The growing collection of databases and the connections between them, as well as the effort to use software to data-mine and make connections between those databases will have a growing chilling effect on First Amendment rights, particularly those of association,” says Scott, pointing out that those rights for undocumented immigrants are protected under the constitution.

As ICE continues to kick its deportation machine into overdrive, and with gang policing growing increasingly prominent at the federal, state, and local level, immigrant advocates are finding that it is using these databases as pretense to criminalize entire communities. And with its data now protected from the eyes of the public it deigns to serve, there are even fewer ways to challenge it.

Indiana man free after misconduct leads to his murder conviction being thrown out

Indiana man free after misconduct leads to his murder conviction being thrown out

A Madison County man who had his conviction thrown out earlier this year due to misconduct will not be tried a second time.

Trondo Humphrey, 38, got out of jail earlier this month after being locked up for 21 years. Prosecutors originally planned to retry him after his original 60-year prison sentence was thrown out, but changed their mind days before his retrial was scheduled to begin. Humphrey, who was 16 when the crime occurred, is now a free man for the first time in his adult life.

Serious questions arose about the credibility of a key witness in the case, Roosevelt Brooks, who has admitted to lying to police. There was also questions about the competence of Humphrey’s original 1996 trial attorney.

Madison County Prosecutor Rodney Cummings, who was also the elected prosecutor during the original 1996 trial, said the credibility of Brooks made it impossible to retry Humphrey. But Cummings argued for years that Humphrey’s original trial went fine and also said the victim and his family had a right to a second trial.

Humphrey was convicted of the 1995 murder of Benjamin Laughlin. Laughlin and another man were driving around Anderson, Indiana in a truck looking to buy crack cocaine when they pulled into an alley and saw three men they believed to be drug dealers. One of those men got into the truck and pulled a gun on them. Laughlin attempted to grab the gun and it went off, with the bullet hitting Laughlin in the abdomen and eventually killing him.

Another man, Roosevelt Brooks, told police in an unsworn written statement that Humphrey was the man who got into the truck and ended up shooting Laughlin. But when Brooks was called to testify at trial he said he wasn’t with Humphrey the night of the shooting and only made that statement because of police pressure.

Still, Brooks’ original statement was admitted into evidence during Humphrey’s trial, and Humphrey’s attorney, Patrick Cunningham, did not object.

“After the unsworn statement had been admitted, defense counsel made repeated references to it throughout the remainder of the trial,” wrote Justice Robert Rucker in authoring the majority opinion throwing out the conviction. “ It was defense counsel — not the State — who read aloud in court the portion of Brooks’ unsworn statement that identified Humphrey as the shooter.”

The other man in the truck with Laughlin was unable to identify the man who got into the truck or the other two men in the alley.

Humphrey filed a petition for post-conviction relief, arguing that Cunningham had rendered ineffective assistance by failing to object to the admission of Brooks’ statement on hearsay grounds.

The Supreme Court agreed that Cunningham should have objected to the statement, and also said Cunningham should have objected to juror instructions where the trial judge told the jury they should consider Brooks’ unsworn written statement as evidence.

“The trial court explicitly asked trial counsel if he had any objection to the proposed, standard instruction and counsel answered in the negative,” Rucker wrote.

And Rucker also said there was reason to believe that the verdict might have been different if Cunningham had done his job effectively.

An editorial in The Herald Bulletin says the State of Indiana failed Humphrey.

“Humphrey’s case isn’t an isolated incident,” the editorial said. “The state owes it to Humphrey and each of its citizens to address the failures of the criminal justice system and do all it can to ensure this never happens again.”

Thanks to Josie Duffy Rice.

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Washington DA faces discipline over television appearance

Washington DA faces discipline over television appearance

Pierce County, Washington Prosecuting Attorney Mark Lindquist will likely face a disciplinary hearing for comments he made during a television interview on the Nancy Grace Show. Lindquist could face disbarment, as well as suspension from his elected position.

Lindquist appeared on Grace’s show in February 2016 to discuss the murder trial of Skylar Nemetz, which was ongoing at the time. During that appearance Lindquist said the actions of Nemetz, accused of killing his wife, “add up to murder.”

Lindquist told the Tacoma News Tribune that he went on the show to “communicate with the public about what we do and why.”

Nemetz was eventually convicted of first-degree manslaughter. He maintained the shooting of his wife was accidental.

Nemetz’ defense attorney, Michael Stewart, claimed Lindquist’s actions jeopardized Nemetz’s right to a fair trial and violated the professional codes of conduct.

“It’s unheard of. It’s astounding in the way it violates the rules,” Stewart argued to the judge when asking for a mistrial and sanctions against Lindquist. “It was designed to damage Mr. Nemetz during a trial, and your honor should impose sanctions for such behavior.”

Superior Court Judge Jack Nevin declined to declare a mistrial or sanction Lindquist, ruling that the jury did not hear the interview. But complaints were filed against Lindquist by local defense attorney John Cain with the Washington Bar.

In a highly unusual move, the Washington State Bar Association’s Office of Disciplinary Counsel recommended the hearing on Sept. 8. The Counsel’s rationale for doing so is that Lindquist’s appearance on the show might have violated the rules of professional conduct that govern public statements about a criminal defendant, as well as a rule that prohibits conduct prejudicial to the administration of justice.

The Tacoma News Tribune obtained the disciplinary counsel letter recommending a hearing. According to that letter, the two assistant prosecutors trying Nemetz and Lindquist’s spokeswoman all recommended that he decline the invitation to appear on Grace’s show.

Lindquist’s Attorney, Steven Fogg, claims the complaint is politically motivated and that there is no chance Lindquist will be suspended for his actions.

This is not the first time Lindquist has courted controversy during his seven year tenure in office. He has incurred almost $2 million in legal fees, at the taxpayers’ expense, including almost $600,000 spent in a dispute over whether the district attorney’s text messages are public records or private communications.

The Washington Supreme court unanimously ruled against Lindquist in that case, stating that he couldn’t claim all of his text messages were private because he was communicating from a private phone. The ruling asserted that Lindquist’s texts are public if public business is discussed.

Lindquist continues to argue that his texts are private, even though some involve communication with other county employees. His stance cost the county $118,000 in fees and fines when a judge ruled that Lindquist had to turn over text messages requested by a critic. That case also cost the county about $325,000 in legal fees, which was part of the $2 million figure..

There is also currently a whistleblower lawsuit pending against Lindquist. The lawsuit argues that he has been vindictive and has created a hostile work environment. The Pierce County Human Resources Department issued a 67-page report finding that Lindquist ordered his prosecutors not to strike plea deals with a group of defense attorneys who had angered him, bragged that he would get $100,000 in free publicity from the shooting of four police officers for his re-election campaign, and maintained that he had advanced the careers of some of his favorite employees in the hopes of making them judges.

“I elect judges, the people don’t,” Lindquist is quoted as saying in the report.

Lindquist’s office also has the highest rate of reversed convictions in the state.

The Seattle Times called for Lindquist to resign in a December 2015 editorial, writing that he “has managed to squander a once-promising career in public service. His unwillingness to accept responsibility for a dysfunctional office telegraphs his leadership style — and his values.”

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