Patriotism

We need to be searching for a better definition of patriotism in our country than what is currently on display.  It should have something to do with a willingness to sacrifice one’s own wishes and comforts to serve a higher ideal.  It has little to do with whether one stands or kneels during the national anthem, or whether one wears a flag pin, or observes any of a number of symbolic gestures.  It certainly has nothing to do with loyalty to the president or any particular political party.  For the president to suggest, therefore, that a staffer’s criticism of him is treasonous is way off base.  The president does not embody what it is to be an American, and our favor or disfavor of him does not encapsulate love for the country.

What higher ideals should we adhere to as Americans?  How about, all people are created equal and endowed by their creator with certain inalienable rights – among those, life, liberty, and the pursuit of happiness?  How about the ideals enshrined in the bill of rights to the Constitution?  Free speech, freedom of the press, freedom of religion, freedom of assembly and association, due process, equal protection, and so on. When these ideals are sacrificed for expediency, or for the convenience of some temporary leader, patriotism is lost, not gained.

By this standard, someone who kneels during the anthem to bring attention to the fact that not everyone is treated equally in this country is, in my mind, more patriotic than those who insist on conformity while ignoring injustice that shames the country.  That person is willing to endure the scorn of others and more for the sake of a higher ideal that America embodies in its foundational documents.

Unfortunately, our president embodies none of these ideals.  He is no true patriot to insist on loyalty to himself above our foundational ideals and the constitution.  He sacrifices nothing for his position of leadership.

When people are judged by the color of their skin, or their religion, or nationality, rather than the content of the character (as MLK, Jr. would say), the notion of what it means to be an American is violated.  When immigrants and the poor are despised and the wealthy and powerful favored in our laws, the notion of what it means to be American is violated.  Even seemingly small things like campaign finance reform, or ending the gerrymandering of congressional districts, are patriotic because they seek to give voice to the powerless in our society.  To oppose them for the sake of retaining power in one party, regardless of which party, is anti-patriotic because it violates our ideals of human equality.

The recent passing of Sen. John McCain illustrates this well.  Though flawed in many ways like all of us, he was willing to sacrifice his own comfort and safety for a higher ideal of honor and solidarity with his fellow soldiers.  What has the President sacrificed?  He won’t even give up his business interests temporarily to serve the country.  He won’t disclose potential conflicts of interest by revealing his taxes.  He insists on absolute loyalty to himself rather than the democratic ideals of the country.  He desires to destroy a free press and free speech as an “enemy of the people” rather than endure criticism of himself.  He pardons criminals that praise him and leads chants for prison for his political enemies. He demands respect of himself but refuses to respect others (unless they praise him).  He suggests that libel laws should be changed so that it is easier for him to sue and crush those that criticize him.  He suggests that protesting should not be allowed – at least not if it is critical of himself or his policies.

These are not the actions of an American patriot.  They are the opposite.

Independence Day.  2018

Almost three years ago I spent a week helping to represent women and children in a “family detention” prison in South Texas.  This group was part of the “surge” of asylum seekers from Central America, overwhelmingly from three countries: El Salvador, Guatemala, and Honduras.

I wasn’t that well prepared for this.  But I wanted to help support an initiative to provide legal representation for these women and children.  In my early years of practice as an immigration lawyer, I had been heavily involved in asylum work, mostly with people arriving from Somalia, Ethiopia, etc.  Ramon, my associate and a native Spanish speaker, did the heavy lifting in working with these women, and then later returned for several months to continue working with them.

Lots of people have chronicled the detention of women and children at Dilley, Texas, and I don’t need to go over all that ground again, except to point out a few things.  Prior policies had been to permit asylum seekers to enter the country if they could show a “credible fear” of persecution.  They would be given notice for a future court date and released to prepare for that eventual hearing.  As the surge intensified, the administration sought to discourage the flow and began detaining families, sometimes for extended periods.  In the early days of this policy, more than 90% of the families arriving were determined not to have a credible fear and were sent back.  As volunteer lawyers started showing up, that number dropped dramatically. 

But prolonged detention was still a real humanitarian problem.  Lawsuits resulted in the Flores decision which set limits on how long children could be detained in certain kinds of facilities (like the private prison at Dilley).  Cynical attempts were made to qualify the Dilley prison as a “child care facility” so that detention could be maintained.  Finally, women and children began being released with ankle monitors or bonds to ensure attendance at their asylum hearings. 

I should clarify that these events took place during the Obama administration.  We did not support family detention for asylum seekers during that time, and do not now.  Children do not belong in prison, even with their mothers.  But that is not to be confused with the current attempts at “deterrence” by the Trump administration, which have included charging asylum seekers with criminal entry and forcing the separation of children from their families, a situation that has still not been rectified, and is nothing short of a humanitarian evil.

It should also be noted that although the Trump administration has announced no more family separations, the apparent plan is to provide for long term family detention.  They have sought to modify the Flores requirements.

Again, children do not belong in prison.  We referred to the prison at Dilley as “baby jail.”

This would seem to be self-evident, that children don’t belong in prison.  Lots of people have described the damaging effects on developing children to undergo this kind of loss of freedom.

Make no mistake.  These private prisons like the one at Dilley are real prisons.  Guards are everywhere.  We had to go through metal detectors every day.  I had a can of peanuts confiscated because, although the can was cardboard, the bottom was aluminum.  One female attorney was told she couldn’t enter the facility with high heels.  We weren’t allowed to touch or hug the children.  We weren’t allowed to even bring in crayons and coloring books.  I would bring in M&Ms for myself and then slip one to a child every now and then when the guards weren’t looking.

We prepared affidavits describing the abuse of the families that took place at this private prison (I emphasize “private” because it is a “for profit” institution, whose purpose is to make money for its investors).  Children were not given proper medical treatment.  On more than one occasion we saw children who had 101+ degree fevers for days, made to wait in line in the Texas sun to see a doctor, only to be told to “drink more water.”

The legal situation there was also a mess, with the government trying to move as many people through the system as quickly as possible, and worn out legal staffers working around the clock trying to keep up with the workload and with clueless volunteers like myself, and give the families a chance for a minimal amount of preparation before their credible fear interviews.

A lot could be said about all that, but what I remember most about Dilley are the women.  They sat across from us, often cradling an infant, and told horrific stories.  Stories of rapes, death threats, businesses destroyed by gangs, extortion, murder and terror.  They told about reporting these things to the police and being ignored, or having their attacker arrested, and then released the next day only to terrorize again.  They told about trying to escape to another part of the country for safety, and still being pursued and found.  They told about their sons being recruited by the gangs that run the country as soldiers and their daughters as “wives” for the gang members. 

And the children.  Some almost comatose and unresponsive, staring into space, not acknowledging us.  Others were still keen eyed and even smiled at us.  Almost all of them seemed sick in one way or another.

These were not “economic migrants” as the current administration wants to characterize them.  Indeed, although they should not have been treated as criminals and placed in prison, I didn’t meet one that said they would prefer returning home.  They didn’t belong in prison, but they preferred that to returning.

And they hoped.  Hoped America would fulfill the promise they had grown up with.  A promise of compassion from the “Mother of Exiles” for the wretched, poor, and tired.

As I looked at these women, my overwhelming conviction was not one of pity, or even of anger at our defective system.  But admiration.  Admiration for the courage these women showed in taking their most precious possessions – their children – and making the dangerous crossing through Mexico (where they were often robbed, raped, beaten, and turned back many times before making it across), and then arriving in the U.S. only to be detained and treated as criminals.  But still having hope and a steely determination.

These are courageous people.  These were heroic journeys they had undertaken.  Not everyone has the courage to leave their home, even in the most catastrophic circumstances.  But these ladies risked their own lives and futures to protect their children.  What an abomination for them now to be characterized as criminals or drug dealers or freeloaders, wanting to find loopholes and take advantage of American generosity.  They aren’t asking for a handout – only the opportunity to breathe free.

There was a saying in the early days of U.S. immigration and the settlement of the west:

“The cowards never started. The weak died on the way. Only the strong arrived. They were the pioneers.”

I still see immigrants that way.  The most patriotic Americans you will ever see are immigrants.  If you don't believe me, attend a naturalization ceremony some day.  I picture these ladies as just like our lionized ancestors that settled this country.  They are the new Irish, the Italians, the Chinese, etc. – once despised as unworthy arrivals but contributing immeasurably to the fabric of the country.  Brave, free, strong, and hopeful for the future. 

On this Independence Day, I choose to recognize that the spirit of courage that settled this country decades ago continues to rest in these strong families seeking refuge and opportunity. 

My Response to Congressman Sam Graves about DACA

 Congressman,

Thank you for your response to my email.  As an immigration lawyer and one who works with immigrants on a daily basis, I feel the obligation to rebut some of your assertions below.  First, my email, I believe, was in support of the Dream Act, but your response referenced DACA.  They are two separate things.  I support both but, of course, we wouldn’t need DACA if a Dream Act is passed.  I hope you will consider it favorably.

Regarding DACA, you state, without authority that it is unconstitutional.  That is your opinion, but it is not well supported.  As you know, under our form of government, it is the U.S. Supreme Court that has the final word on whether an action of the administration, or Congress, is constitutional.  To my knowledge, no court has determined it to be unconstitutional and in fact, claims of unconstitutionality have been rejected by the courts that have considered it.  The issue has not reached the U.S. Supreme Court.  “DAPA,” that is protection for parents of “Dreamers” was blocked by a lower court (in a split decision), although not on constitutional grounds, and the U.S. Supreme Court split 4-4 on the issue, letting the lower court decision stand.  Not so with DACA.   In fact, more than 100 legal scholars signed onto a letter at the time DACA was established in 2012 stating their opinion that it was constitutional.  Very similar actions have been taken unilaterally, by executive order, by previous presidents to protect immigrants, including George W. Bush and George H.W. Bush, etc.

By their nature, executive orders are unilateral.  That, in itself, does not affect their viability or their constitutionality.  If you think that executive orders by their nature are unconstitutional, then I trust you are carrying that same attitude toward the plethora of executive orders issued by the current administration.  If fact, with the exception of the recent tax bill, very little has been done by this administration with the cooperation of Congress, but very much has been done by “unilateral” executive order.

So if you oppose DACA, I think you should look elsewhere for justification than your conclusory statement that it is unconstitutional.  And if your opinion as to constitutionality is based on the simple fact that it was done by executive order, you are plainly wrong.

You also cite DACA as a reason for the recent surge of immigrants at the southern border.  I don’t know your sources for this, but it is also wrong.  I’ve personally worked at the southern border with those recent border crossers in our detention facility at Dilley, Texas.  They are overwhelmingly from three countries: Honduras, El Salvador, and Guatemala.  Not Mexico.  In fact, there is a net negative immigration from Mexico.  Of those border crossers, none cite DACA as a reason for coming to the U.S.  They are fleeing horrible, persecution situations in their home countries, and they are seeking refuge in the U.S.  They are, in fact, refugees.  The proof of this is that well over 98% are found, upon examination by asylum officers, to have a “credible fear” of persecution and eligible to present claims for asylum to an immigration judge.   They don’t “sneak” into the country, but present themselves at the border and ask for safety and the opportunity to apply for asylum.  They have the legal right to do that, and we have the legal obligation as a country to consider their plea and treat them humanely as they present it.

In this country, our history and our noble aspirations have been to welcome hard working immigrants that will contribute to the betterment of our country. 

Finally, I don’t doubt the sincerity of your views.  In my experience, however, people take stances such as yours when they agree with the effect it has on people’s lives, rather than on some abstract notion of separation of powers.  Yes, Congress should act on this issue.  Until it finds the courage to do so, I respectfully don’t find your approach to this issue consistent with our history or our values.

__________________________________________________________________________

Roger McCrummen  ∙  Attorney at Law

From: Congressman Sam Graves [mailto:MO06ima@mail.house.gov]
Sent: Monday, December 18, 2017 3:06 PM
To: roger@mhaf.org
Subject: Message from Congressman Sam Graves

December 18, 2017 Mr. Roger Kent McCrummen Kansas City, Missouri 64118 Dear Roger: Thank you for contacting me with your concerns regarding Deferred Action for Childhood Arrivals (DACA). I appreciate hearing from you and welcome the opportunity to respond. In 2012, President Obama decided to unilaterally order the federal government to stop deporting certain illegal immigrants brought here as children. This policy, known as Deferred Action for Childhood Arrivals (DACA), is cited as one of the main reasons for the surge at our southern border. This program was not only implemented without the input of Congress, but also violated the Constitution in doing so. Only Congress can pass legislation providing immigration benefits to individuals, but President Obama used his executive authority to circumvent the federal government’s legislative body. Simply put, the means by which DACA became law is unconstitutional. However well-intentioned DACA may have been, I defend the constitutional right of Congress to review and pass legislation. Our country was built on the rule of law and an unconstitutional executive order granting amnesty to illegal immigrants has no place in our legal system. Although we may disagree with this issue, I hope you can appreciate the sincerity of my views as I do yours.  Again, thank you for contacting me regarding this important issue. Please feel free to call (202) 225-7041 should you have any further questions or concerns about this or any other issue, or visit my website at www.graves.house.gov for more information.