The Texas Observer

(Update below)

We don’t usually write about rumors but this one has too many implications for what remains of our civil liberties to ignore. We have received a few emails and calls today about the possibility that Homeland Security Secretary Michael Chertoff may post notice in the Federal Register Friday that he is going to waive all environmental rules to build the border wall in South Texas. The waiver may blanket Texas or the entire Southern border from California to Texas in a giant mega-waiver.

Chertoff has that ability thanks to Congress and the Real ID Act of 2005. He has already waived environmental rules in California and Arizona to put the border wall on the fast track. His goal is to have 670 miles of fence built along the Southern border by December 31, 2008. In an Observer blog last week, we wrote about lawsuits filed by Sierra Club and Defenders of Wildlife challenging Chertoff’s imperial powers.

We called Homeland Security in Washington D.C. in an attempt to get confirmation on the waiver. A spokesperson for the agency Amy Kudwa would not confirm a waiver in the pipeline, and said Homeland Security had no announcements today about a waiver.

Next we called Noah Kahn, a refuge program manager for Defenders of Wildlife, in Washington D.C.. Kahn said he had heard several credible rumors swirling around D.C. in the last few days about a waiver in the pipeline.

“It would not surprise me if there is a Real ID waiver coming soon because Chertoff has a history of waiving laws and it’s no secret that the border wall is not appropriate for a wildlife refuge,” Kahn says. “We have heard the waiver could be coming Friday which is a day typical for these kinds of press announcements since it is the end of the week and the press won’t be paying as much attention.”

Kahn says he thinks a waiver in Texas is more likely than a sea-to-shining-sea waiver from California to Texas. “That would be an even more unnecessary abuse of power,” he said.

The current mood in Congress is lukewarm when it comes to stopping the construction of the border wall. “It’s not politically palatable to oppose the border wall in an election year,” he says. “Those in Congress who are against the wall are remaining silent about it, because as long as it is linked with illegal immigration they don’t want to touch it.”

While the Real ID act allows Chertoff to waive federal laws, it will be interesting to see how the waiver impacts constitutional law. Dr. Eloisa Tamez and several other Texas landowners are currently fighting to keep their land from being condemned by Homeland Security. They assert that Chertoff is violating their right to due process under the fifth amendment of the Constitution.

Update

No sign of a waiver being filed today (Friday) in the Federal Register. A good source in Washington D.C. shared some important information that language was passed in the appropriations bill restricting any funding for the fence until 15 days after notice is published in the Federal Register.  We’ll keep you posted if we hear anything from Washington. Also, thanks to Jay J. Johnson-Castro, Sr, of Border Ambassadors for sounding the alarm about the possibility of an impending waiver in the pipeline.

It came as a shock to us last year when we learned that Homeland Security Secretary Michael Chertoff has the authority to waive most any law that gets in the way of construction of a wall along the U.S.-Mexico border. It also precludes judicial review if someone asserts that Chertoff is overstepping his bounds. The power was stealthily given to him when Congress passed the REAL ID Act of 2005.

On Monday the Sierra Club and Defenders of Wildlife filed a petition asking the U.S. Supreme Court to review the authority. Here’s the press release. The filing, a pdf of which can be found here, argues that the REAL ID Act’s waiver provision contravenes the system of checks and balances guaranteed in the Constitution.

“Not only does the waiver authority extend to every federal, state, and local legal requirement, but the statute provides no right to a judicial determination that the Secretary’s exercise of this authority complies with the standard established by Congress. For that reason, this broad delegation of authority violates the principles recognized in the well-established nondelegation doctrine. The unchecked and unreviewable authority to waive any federal law in this case also violates the Constitution’s clear command…”

So far, Chertoff has used his authority to complete a wall near San Diego, to remove vehicle barriers and replace them with a wall in the Barry M. Goldwater Range in Arizona, and to build a border wall within the San Pedro Riparian National Conservation Area. There is speculation that Chertoff plans to waive environmental laws in Texas to build the wall as well. To date that has not happened but a controversial environmental impact statement may be a precursor to such action.

We were curious, given the radical turn of this Supreme Court, whether it might create some really bad law if the justices took this one on. We received a thoughtful response to that question from Bob Dreher, vice president for conservation law with Defenders of Wildlife.

First, we think it unlikely that the Court would grant review just to affirm the district court; if a majority of the Justices think the district court got it right, they will most likely just vote to deny review, leaving the decision as it stands. If they vote to grant review, therefore, we would view that as a positive sign that at least 4 Justices think there may be a serious constitutional problem with the waiver provision of the Real ID Act. The Court may nonetheless decide that issue against us, but in that case all they will have done is to ratify Congress’s existing understanding of their ability to delegate this sort of waiver authority to Executive Branch officials.

The enviros are not the only ones concerned by the use of REAL ID to waive longstanding laws that protect public health and the environment. Connecticut Sen. Joe Lieberman wrote to Chertoff last December about the waiving of environmental laws to build a fence through the San Pedro conservation area in Arizona.

Lieberman asked several questions, including this rather important one: In what circumstances will Chertoff use his new power to suspend laws?

Chertoff responded (pdf here) with a lengthy letter that is well worth a read. The secretary’s answer reasserts his unilateral authority to a) determine where the wall is needed, b) judge its impact on the environment, and c) set the timeline by which it will be built. The best part perhaps is where Chertoff makes the argument that an enormous wall topped with bright lights through a conservation area will be good for the environment because it will deter trash and human waste from migrants who pass through.

The irony to this whole dance is that even Chertoff has admitted that construction of a border wall is largely symbolic and will not have much impact on illegal immigration.

Maybe the Duval County Sheriff Santiago Barrera Jr. skipped over that whole bit in his oath of office about “protecting and defending the Constitution.” Maybe he just never got around to learning the First Amendment. The Associated Press reported yesterday that the South Texas sheriff threatened to lock up Alice Echo-News reporter Christopher Maher if he continued to write stories Barrera didn’t like. The paper reported the incident on January 29 but the publication of the AP article has made it a national story.

Barrera, 67, has been sheriff in Duval County for two decades. Over the years he has gained a reputation as an autocrat and acted as a law unto himself. In 2006, he released a 65-year old man arraigned on nine accounts of child sex abuse. Barrera put him on house arrest because he was a diabetic, according to the AP report. He also demoted a drug task force commander to a lesser position as punishment for announcing he planned to challenge Barrera for sheriff.

Nicole Perez, managing editor of the Alice Echo-News, said that given the volatility of politics in South Texas, the newspaper didn’t discount the sheriff’s remarks. “We took his threat very seriously,” she says. “He said that he hated our newspaper and didn’t like our stories.”

What triggered Barrera’s anger was recent coverage by Maher of the lawman’s son Miguel Barrera’s arrest for public intoxication and resisting arrest.

When Maher returned to the newsroom he told Perez about the incident. “He wanted it to be known in case something happened to him, ” says Perez who reported the incident to the Duval County attorney.

‘We are not pursuing charges, but we wanted it to be documented,” she says. “We hope to have a more positive working relationship with the next sheriff.”

On March 4, Barrera lost the sheriff’s race to challenger Ramiro Ramirez, the one who he had earlier demoted.

Reporter Maher will have to be on his guard for a few more months though. The new sheriff won’t ride in to town until next January.

Media reports last Friday said that Dr. Eloisa Tamez had won a significant ruling regarding Homeland Security and the condemnation of her property. It is expected that the court ruling will significantly impact other condemnation proceedings underway in Texas to build a border wall.

We contacted Brownsville nursing instructor Dr. Tamez today. She reports that U.S. District Judge Andrew Hanen has ruled that Homeland Security must negotiate a fair price with her before it files a condemnation lawsuit to take her land and build an 18-foot border wall.

Dr. Tamez, who was portrayed in the Observer story “Holes in the Wall” last month was served with a condemnation lawsuit in January. Tamez and her lawyer Peter Schey argued in a February court hearing that the 1996 Illegal Immigration Reform and Immigration Responsibility Act states that Homeland Security must negotiate a fair price for her three acres of land before suing to condemn her property.

While she is adamantly against the border wall, Tamez views Judge Hanen’s ruling as a positive sign. “Chertoff didn’t follow the law,” said Tamez. “It’s important that Homeland Security engage in negotiations. The Constitution can work if it is followed.”

Tamez said that Judge Hanen has given Homeland Security until March 21 to negotiate a fair price. “I am assuming they are going to make the first move,” she said.

Tamez’s lawyer Peter Schey, president of the Center for Human Rights and Constitutional Law in Los Angeles, had asked that she receive a jury trial but the motion was denied by Judge Hanen.

Tamez is a Spanish land grant heir. Her family was granted 12,000 acres of land in the 17th century. Tamez inherited three acres of the original parcel, which she planned to leave to her children and grandchildren.

Lawyer Marc Falkoff gave a harrowing description of life in Guantanamo at the Rothko Chapel in Houston Thursday. Falkoff who is part of the foundation’s speaker series, represents 16 Yemeni prisoners in Guantanamo. Of the 800 prisoners that were detained in Guantanamo, 500 have been released. The Europeans and Saudis have all gone home, he said, and those that remain are primarily Yemeni. Unfortunately, their government has little interest in lobbying the United States for their release.

He illustrated life in detention there through one of his clients Adnan who has deteriorated over the past five years into a shell of a man. Currently, on a hunger strike, Adnan is being force fed through a tube in his nose. Adnan, had been in Afghanistan near the Pakistani border seeing a doctor when 9-11 happened. After 9-11, the CIA dropped thousands of flyers over the region saying it would pay $5,000 a head for any Al-Qaeda member. Pakistani Security Forces under Pervez Musharraf rounded up anyone who looked Arab. Adnan was detained by the Security Forces and flown to Guantanamo in 2002 where he was kept outside in a cage. He has never been formally charged and is still waiting for his day in court.

Falkoff said over the years, he has tried to keep Adnan’s faith in the American legal system alive. “Death would be more merciful,” is what Adnan told him during their last meeting. Falkoff said he and other lawyers representing Gitmo detainees are having a hard time believing in the system themselves.

“Many of us lawyers feel we are fighting for America’s soul and the rule of law” he said.

Falkoff is currently part of a lawsuit to see whether his emails and phones are being tapped. “I believe the NSA has been monitoring my emails and phone for some time,” he said. One thing Falkoff has done to remind the American people about the plight of the detainees is to release a book of poems written by them called: Poems from Guantanamo: The Detainees Speak. Any written scrap of paper Falkoff collects from the detainees must be kept in a classified high security building in Virginia. All of the poems for the book had to be cleared by the Pentagon first.

The following poem is from detainee Jumah al Dosarri, a 33-year-old Bahraini national. The father of a young daughter, he has been held at Guantanamo more than five years. Falkoff said he had tried to kill himself 12 times, and on one occasion, his lawyer found him hanging by his neck and bleeding from a gash to his arm.

DEATH POEM

Take my blood.
Take my death shroud and
The remnants of my body.
Take photographs of my corpse at the grave, lonely.
Send them to the world,
To the judges and
To the people of conscience,
Send them to the principled men and the fair-minded.
And let them bear the guilty burden, before the world,
Of this innocent soul.
Let them bear the burden, before their children and before history,
Of this wasted, sinless soul,
Of this soul which has suffered at the hands of the “protectors of peace.”

As you may have heard, Texas Gov. Rick Perry, having aced his merit badge in self-hairstyling, has waded into the treacherous waters of ostensible authorship with On My Honor: Why the American Values of the Boy Scouts Are Worth Fighting For. The book, a bit astoundingly, debuted at #1 on the Washington Post bestseller list Monday (according to a press release paid for by Texans for Rick Perry), and it may have received a boost — in the lucrative homophobe market, anyhow — from a Sunday New York Times Magazine interview with the governor by a clearly astounded Deborah Solomon, excerpted below.

Solomon: On My Honor “draws on your experience as an Eagle Scout and champions the values of the Boy Scouts of America, to whom you are donating your royalties.”

Perry: “Yes, to their legal defense fund.”

Solomon: “Which has been fighting the A.C.L.U., to keep gays out of the scouts. Why do you see that as a worthy cause?”

Perry: “I am pretty clear about this one. Scouting ought to be about building character, not about sex. Period. Precious few parents enroll their boys in the Scouts to get a crash course in sexual orientation.”

Solomon: “Why do you think a homosexual would be more likely to bring the subject of sex into a conversation than a heterosexual?”

Perry: “Well, the ban in scouting applies to scout leaders. When you have a clearly open homosexual scout leader, the scouts are going to talk about it. And they’re not there to learn about that. They’re there to learn about what it means to be loyal and trustworthy and thrifty.”

Solomon: “But don’t you think that homosexuals might also be interested in being loyal and thrifty?”

Perry: “The argument that gets made is that homosexuality is about sex. Do you agree?”

Solomon: “No”

Perry: “Well, then, why don’t they call it something else?”

Like what, absurd reductivism?

We will let the governor — famously and a bit tiresomely both an Eagle Scout and the father of an Eagle Scout, and not even in the least tiny bit gay — slide on his title’s sentence-ending preposition (his grammar badge must be pending). But there’s no getting past the wrongheadedness of his message, which seems to be something along the lines of gay people are obsessed with sex and if they’re allowed anywhere near impressionable young minds, then you don’t even want to know what tomorrow’s Webelos will be doing after school in the garage with all those fancy knots.

That message wasn’t lost on Equality Texas, which Tuesday issued a statement decrying Perry’s narrowminded bigotry and — gotcha! — unseemly preoocupation with sex. The group invites gay scouts to attend Perry’s three scheduled Texas booksignings this week.

in case you’re interested, that’s Tuesday, Feb. 26 at 7:30 p.m. at Border’s Books in San Antonio; Wednesday, Feb. 27, at 7 p.m. at BookPeople in Austin; and Thursday, Feb. 28 at 7:30 at Borders Books in Dallas. Expect to find Perry set up at a signing table in the farthest possible corner from the Gay & Lesbian Literature section. Because you know, you can catch those cooties just by breathing too deeply in their proximity.

And Perry should know. Rumors about his own possibly closeted orientation have circulated for years, prompting the governor in 2004 to take the extraordinary step of denying them publicly.

So far no one has been cynical enough to suggest that the Perry book’s square-jawed broadside at the gay and gay-friendly communities is perhaps nothing more than a self-serving bulwark against that very rumor, which bulwark might come in handy if those other rumors — of Perry’s ambition for national office — ever turn out to be true.

But finally, lest mockery get the best of us, let’s pause just a moment to credit Gov. Perry for not encouraging his dog to write a book, as other governors have done. We all know what dogs have on their dirty little dog brains, and it’s certainly not loyalty and trust. And we’re pretty sure there’s no merit badge for it, either.

Remember back during the regular legislative session when there was an outcry over Gov. Rick Perry running the Texas Data Exchange (TDEx), a massive data system for police officials that its operators hoped would one day contain information on nearly every Texan. Within days of the Observer’s expose on the database, a bill was filed to move it out of the governor’s office where it could potentially be used for political purposes to the Department of Public Safety, a professional law enforcement agency presumably insulated from politics. The governor’s office through Homeland Security Director Steve McCraw and legislative allies fought the move. Despite the hue and cry, by session’s end the authoritarian wing of the Republican Party emerged victorious. TDEx remained with the governor. As San Antonio Republican Rep. Frank Corte crowed, “The governor is responsible for public safety.”

Well, on October 10, the governor quietly gave TDEx to DPS. Interestingly, the October agreement ceding control of TDEx was not signed by McCraw but by Brian Newby, the governor’s chief of staff. The program will now be under DPS’s Texas Crime Information Center, where, according to a DPS spokesperson, “there are strict rules about how information is placed into the system and how it is accessed.”

Could Perry’s national ambitions have something to do with this dramatic reversal?