is illegal immigration a crime?

Sort of.

Homeland Security Secretary Janet Napolitano said on State of the Union with John King this week that illegal immigration is not a crime.  She was asked to comment on Sheriff Joe Arpaio in Arizona, an outspoken supporter of strict immigration law enforcement and all-around hardass:

Arpaio has over 10,000 inmates in his jail system. In August, 1993, he started the nation’s largest Tent City for convicted inmates. Two thousand convicted men and women serve their sentences in a canvas incarceration compound. It is a remarkable success story that has attracted the attention of government officials, presidential candidates, and media worldwide.

Of equal success and notoriety are his chain gangs, which contribute thousands of dollars of free labor to the community. The male chain gang, and the world’s first-ever female and juvenile chain gangs, clean streets, paint over graffiti, and bury the indigent in the county cemetery.

Also impressive are the Sheriff’s get tough policies. For example, he banned smoking, coffee, movies, pornographic magazines, and unrestricted TV in all jails. He has the cheapest meals in the U.S. too. The average meal costs about 15 cents, and inmates are fed only twice daily, to cut the labor costs of meal delivery. He even stopped serving them salt and pepper to save tax payers $20,000 a year.

Anyway, this is the exchange:

SHERIFF JOE ARPAIO, MARICOPA COUNTRY, ARIZONA (on a video tape): I want the president, I want the politicians to say, we are going to enforce all of the illegal immigration laws and if you come into this country illegally, you’re going to be prosecuted and put in jail.

Let them say that. I’m waiting for them to say that.

NAPOLITANO: Well, you know, Sheriff Joe, he is being very political in that statement, because he knows that there aren’t enough law enforcement officers, courtrooms or jail cells in the world to do what he is saying.

What we have to do is target the real evil-doers in this business, the employers who consistently hire illegal labor, the human traffickers who are exploiting human misery.

And yes, when we find illegal workers, yes, appropriate action, some of which is criminal, most of that is civil, because crossing the border is not a crime per se. It is civil. But anyway, going after those as well.

But the notion that you’re going to fill every prosecutor’s time, every law enforcement official’s time, and that’s literally what he’s talking about, on immigration, he doesn’t answer the other question, which he has been criticized for, by the way, in Maricopa County, because he is not going after murders, armed robberies, other more serious crimes, because he is so focused on this one.

It is not criminal to be an illegal immigrant in the US. The term “illegal immigrant” is a misnomer; it’s not stictly illegal to be in the US without a proper visa or status.  Instead, it’s unlawful–the same way that if you fill out your taxes incorrectly, you may have to pay a civil penalty but you won’t be arrested, prosecuted, and sentenced.  For unlawful immigrants, the consequence is detention (sometimes) and removal.  Although the detention seems like a criminal penalty (and sometimes unlawful immigrants are detained in prisons) both detention and removal are civil penalties.  All of our immigration laws are located in Title 8.

There is no crime in Title 18 for being an illegal immigrant or crossing the border illegally. Title 18 is where all our federal criminal law is located.  It addresses trafficking and such, but not solely crossing the border.

But, 8 U.S.C. section 1325(a) does create a criminal penalty for crossing the border illegally. It says:

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under Title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under Title 18, or imprisoned not more than 2 years, or both.

Part (b) applies civil penalties as well.  Note that courts have determined that the act of entering illegally is consummated at the actual entry, so the five-year statue of limitations starts at the time of entry (rather than calculating it as a continuing wrong, effectively eliminating the statute of limitations).  See US v. Rincon-Jimenez, 595 F.2d 1192.

So here’s the distinction: If you cross the border without inspection, that’s a crime.  If you enter with inspection lawfully but then fall out of status, that is not a crime.

are embassies considered “united states territory”?

Sort of.

Diplomatic and consular premises are NOT extraterritorial. This is the most common misconception about embassies, and something you see in movies and TV all the time.  For example, in an episode of The Simpsons the family travels to Australia and eventually takes refuge on the grounds of the U.S. embassy where they can’t be arrested because it’s “technically U.S. soil.”

In reality, that’s not the case.  U.S. embassies are on the soil of the host country.  This was made clear in Persinger v. Iran, where a marine who was held hostage for 15 months at Embassy Tehran sued his captors, the government of Iran, under the Foreign Sovereign Immunities Act. 729 F.2d 835 (D.C. Cir. 1984).  Although other countries are generally immune from the jurisdiction of federal and state courts, the FSIA created certain exceptions.  One of these exceptions is when the tortious act occurs on U.S. soil.  This makes sense–if Japan injures you in Ohio, you should be able to sue them in Ohio.  But the FSIA said U.S. soil, not “U.S. states.”  So what does “U.S. soil” mean?  28 U.S.C. section 1603(c) has the answer:

“United States” means “all territory and waters, continental or insular, subject to the jurisdiction of the United States.”

The marine argued that it should be considered part of the U.S. since the Embassy was substantially removed from the jurisdiction of the receiving state and was subject to the concurrent jurisdiction of both the sending and receiving states, but the Court of Appeals didn’t go for it.  Instead, they deferring to the language of the statute, its legislative history, and the consequences of finding embassies part of the U.S.–in the end, he wasn’t allowed to sue Iran.  Notably the court didn’t decide if Congress could extend jurisdiction to U.S. embassies; they merely decided that Congress didn’t.  For extreme nerds, the Restatement (Third) of Foreign Relations Law and the Office of the Legal Adviser, U.S. Department of State,  agree with this decision.  The OLA opinion is at Vol. II, 1430-1432, 1440 (1994).

But even though embassies are not part of the U.S.’s territory, the U.S. still exercises substantial control over its embassies and consulates, including enforcing American law. This is done mostly through treaties and bilateral conventions.  For example, judicial assistance between the U.S. and Japan is governed by:

1. Article 5(f) of the Vienna Convention on Consular Relations, 21 UST 77.
2. Article 17 of the U.S.-Japan bilateral Consular Convention of 1963, 15 UST 768.
3. the U.S.-Japan bilateral Mutual Legal Assistance in Criminal Matters treaty, Treaty Doc. 108-12.
4. the multilateral Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters, 20 UST 361.
5. Customary international law
6. Applicable U.S. law and regulations
7. Applicable Japanese law and regulations

As you can imagine, international law gets rather complicated as you’re flipping through nine or ten sources of law.  The most important treaties can be found here.

In conclusion, embassies are not U.S. territory, but are still controlled pretty heavily by the U.S.  Now you know!

are police dogs “technically officers of the law”?

No.

This won’t stop actual officers of the law from trying to convince you otherwise.  Only a few weeks ago, as I was applying for my SENTRI pass at the Brownsville border crossing, a Customs and Border Patrol officer warned me to keep my dog on a leash whenever I cross the border.  “We don’t want your dog to jump out of the car and get into a fight with one of our dogs–after all, our dogs are technically officers just like me.”  I was almost certain this wasn’t true, so I asked, “Are you sure?  I don’t think dogs are officers.”  “On yes,” she said, “they even have little badges on their collars.”

Well, a police dog is no more an officer than Mudpie is a diplomat.  It’s true that the law enforcement dogs get little badges and have their own swearing-in ceremonies (Sometimes they’re even trained to bark in affirmation to the oath.  Mudpie does not have a diplomatic passport and has not been sworn in.).  And when a police dog dies, police officers are understandably upset:

“The way we feel about it, they (police dogs) are no different from an officer,” said Matt Forsyth, the department’s K-9 unit supervisor and trainer. “They’re one of our partners and another officer.”

Even though police dogs are not officers, they do receive heightened protection.  Under 18 U.S.C. section 1368(a):

Whoever willfully and maliciously harms any police animal, or attempts or conspires to do so, shall be fined under this title and imprisoned not more than 1 year. If the offense permanently disables or disfigures the animal, or causes serious bodily injury to or the death of the animal, the maximum term of imprisonment shall be 10 years.

Section 1368 is located in the “Malicious Mischief” section between “Interference with the Operation of a Satellite” and “Destruction of Veterans’ Memorials.”  Most states also have laws protecting police dogs.  Georgia’s law, at O.C.G.A. section 16-11-107(b), is:

Any person who knowingly and intentionally destroys or causes serious or debilitating physical injury to a police dog or police horse, knowing said dog to be a police dog or said horse to be a police horse, shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years, or a fine not to exceed $10,000.00, or both. This subsection shall not apply to the destruction of a police dog or police horse for humane purposes.

For some perspective on the level of punishment for harming a police dog, anyone who merely “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal officer can be imprisoned for up to one year, or up to 8 years if he touched the officer or intended to commit another felony, or up to 20 years if he uses a deadly or dangrous weapon or inflicts bodily injury, 18 U.S.C. section 111.

So, shooting a dog is serious, but no more so than touching a federal officer.

the pirate bay verdict: winning for losing

The operators of The Pirate Bay, a website that enabled people to download copyrighted music, movies, and games, were found guilty of contributory copyright infringement last week by a Swedish court.  They were sentenced to a year in prison and to pay millions of dollars in restitution money.  Now that all is said and done, the dust has settled, the sky has cleared, I can be confident when I say this: The Pirate Bay has won.

First, there’s a low chance that this verdict will stand.  Sure, it’s nice to send a message to all those troublesome kids out there–download music and you could be thrown in the slammer!  But I have a feeling that the appellate court, more insulated from corporate pressure, will find this sentence unreasonable.  After all, we’re talking about only 33 songs and movies.

Second, even if The Pirate Bay has to pay the full $13 million in damages, they made money off this trial.  Since the trial, the site has ballooned to 22 million users, and thousands of them are paying the site for an anonymization service.  This is compounded by The Pirate Bay’s distributed network, meaning that they have computers spread all over the world that can pick up the slack from the disabled Swedish computers.  Kinda like the hydra, there’s no way to shut The Pirate Bay down.

Third, this verdict has galvanized anti-copyright people without bringing anything new to the table.  The trial played out along familiar lines: some people believe copyrights are too restrictive; the companies that hold them want the copyrights enforced.  Now the anti-copyrighters are joining Sweden’s Pirate Party in droves (I know, I was surprised they have a pirate party too).

Verdicts like this don’t really do anyone any good.  Look at the RIAA: suing college students and single mothers over copyright infringement was a huge PR nightmare that the RIAA eventually abandoned.  The problem isn’t with the infringers, or the programs that help them infringe, or the websites that point to the content.  The problem is that the product has been let out of the barn, and no amount of litigation will get it back in.

I predicted this a long time ago, back when Kazaa was still popular but before iTunes was invented.  Using a stick won’t work, so media companies have to go with a carrot.

Case-in-point: I remember spending hours trying to find good copies of the latest Foo Fighters CD on Kazaa.  Nothing was more irritating than spending 20 minutes downloading a track (Internet was slow back then) only to find out that it was the first 20 seconds of the song looped over and over again.  That’s what prompted me to use the iTunes music store.  Not that I was excited about paying $1 per song or that it synced with my iPod or anything like that.  The iTunes music store took way less time and effort than actually assembling a whole CD of quality tracks.

Today, media companies need to realize that their valuable commodity is no longer the actual song. Weird, isn’t it?  The actual product can no longer be controlled–so what’s left?

1.  The celebrity of major musicians

This has always been profitable.  The music of Britney Spears isn’t profitable per se, but packing 40,000 of her fans into an area sure is.  Not only that, but the Britney Spears name and image are highly valuable–why else would someone buy Britney’s perfume?  Or watch MTV’s “expose” about Britney?  Or buy a magazing with Britney’s picture on the cover?

But this is value that the media companies can’t really create.  It’s like farming–the media company can throw a bunch of seeds out there and harvest whichever ones sprout, but they can’t force the actual sprouting.  So what about all the unsprouted seeds?

2.  Tell me what music I as an individual will like based on what I listen to now.

Discovering new music is the most difficult thing ever.  Mark my words: this is the big untapped moneymaker in music.  Think of services like LastFM.  It makes a list of every song I listen to in iTunes and then will play me songs that it thinks I will like.  Pandora does the same thing, except you type in a song or artist and then it plays things similar to that song or artist.  iTunes has started getting into this with its “genius” recommendations.

This is the new valuable commody–the connections between artists and songs.  If someone could create something that would predict which bands I should listen to–and be pretty accurate–I would definitely pay for it.

Putting money into this will be a good investment for the media companies.  Suing copyright infringers–not so much.

LATER:  I just thought of this.  Websites like The Pirate Bay and the P2P networks it enables must have tons of data on the usage patterns of its users, all unconstrained by price.  It’s like someone asked the question, if you could have any music you wanted and as much of it as you wanted, what music would you take?  This is a gold mine of info–for example, if you found out that the majority of people who downloaded The Fray also downloaded Maroon 5, I bet ticket sales for their concerts would increase if you paired them together.  You could use it to decide which songs off albums become singles, or for the more sinister purpose of deciding which song the band’s new songs should sound like.

If the record companies offered immunity to websites like The Pirate Bay in exchange for this data, I wonder if they’d make more money than if they tried to sue the websites out of business.

THE NEXT DAY:  There’s a study out that says people who pirate music are TEN TIMES more likely to buy music online than people who do not pirate music.  Also, in the 15-20 years old range, half of the participants bought a CD within the last 6 months.  Tapping this market would be huge!

white house releases more torture memos

I won’t write about it in-depth because I get too riled up, but the White House released more memos regarding our interrogation policy under President Bush.  You can download them from the following links: memo 1, memo 2, memo 3, memo 4.  A really great roundup of the media response can be found over at How Appealing, here.

The release of the memos is somewhat surprising, considering how hard the CIA fought to block their release.  But their release may have come at some cost:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

…

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

A good response to this is here at Opinio Juris.  Essentially, OJ argues that CIA interrogators who unreasonably rely on OLC advice should be prosecuted (and that, in this case, the bar is even lower because the OLC advice was so ambivalent on the legality of the various interrogation methods–“although we cannot predict with confidence whether a court would agree with this conclusion…the question is unlikely to be subject to judicial inquiry.”)  Additionally, OJ argues that the waterboarding used by CIA interrogators was much harsher than the regime approved by the DOJ, so those interrogators would be unable to use the good faith reliance defense.

But don’t our treaty obligations mean we have to prosecute them?  Sonja Starr answers that question here.  The short answer: yes, but so what if we don’t.

law students shouldn’t vote in the GSA election

Law students are members of the UGA Graduate Student Association, even though we earn a “professional degree” and not a graduate degree.  Recently (and maybe for the first time), we’ve been courted by GSA candidates for president.  Nevertheless, we should not vote in the GSA election.

1.  Our interests do not align with other graduate students and the GSA.

Law students are a special breed.  We do not teach courses for undergrads, receive assistantships, work for research labs, seek summer fellowships, or publish articles (outside of a handful of people on law journals).  Most law students are young and umarried, and few have children.  Can the GSA really represent us when we’re so different from the other graduate students?

Note that we’re not without our own student government body: the Student Bar Association.  The SBA is sensitive to our particularized interests and provides us better services than the GSA could provide.

2.  What has the GSA done for us lately?

I didn’t even realize we were members of the GSA until today.  Doesn’t that say something?  I’ve never received an email from the GSA, seen a flier, or met one of their officers.  As far as I know, the first time someone from the GSA entered the law school was during this election.  Of course they want our votes–we’re like some gigantic untapped state, recently discovered by the politicking GSA candidates–but what has the GSA ever done for us?  What will they do for us in the future?

3.  We shouldn’t involve ourselves in graduate student affairs because we’re not part of that body.

Graduate students have legitimate interests and concerns and probably get a lot of value from the GSA.  We don’t share those same interests and get zero value from the GSA.  We shouldn’t be influencing their election when we have no stake in the outcome.  What basis will we even use to vote, especially when it’s unclear if the GSA can ever offer us any benefit?

Law students shouldn’t vote in the GSA election, especially when the candidates are only pandering to us for the purpose of winning, not because they’re championing our interests.  Thanks but no thanks, GSA.

Bob Vander Plaats is the biggest idiot in Iowa

If I were interviewing to be an attorney and said I was interested in the position because I have a deep-seated passion for riding around in a van and solving mysteries, I wouldn’t get the job.  Why?  Because lawyers don’t ride around in vans and solve mysteries; they sit at desks for 9 to 10 hours, drink heavily, and play golf on the weekends.

Bob Vander Plaats has a similar problem.  He’s a Republican candidate for governor in Iowa.  In response to the Iowa Supreme Court recently ruling that the Equal Protection Clause of the Iowa Constitution requires marriage be available to all Iowians, Platts has some fighting words:

Republican candidate for governor Bob Vander Plaats demanded Culver immediately intervene rather than wait as gay-marriage opponents work to get a constitutional amendment on the ballot. The earliest voters could see the issue would be in 2012, and that seems unlikely given opposition by Democratic leaders in the Legislature.

“I don’t want to wait two years,” said Vander Plaats. “I want this governor to issue an executive order that says there will be a stay on all same-sex marriages until the people of Iowa have the right to vote. If I were governor today, I would issue that executive order immediately.”

Plaats has one small problem: Governors can’t issue executive orders staying Supreme Court decisions.  This is one of the bedrock principles of American jurisprudence that’s been established at the federal level since 1803 (Marbury v. Madison, perhaps the most famous case ever) and in Iowa since probably soon after (I don’t feel like looking it up because it’s such a fundamental principle of law that it’s practically self-apparent.).

Plaats might want to read up on, you know, what the executive branch does–especially since he isn’t a lawyer.

Second-in-line for biggest idiot in Iowa is conservative activist Bill Salier, who was quoted as saying to voters, “Let the Supreme Court know, thanks for your opinion, it’s just that and this law is still on the books.”  I imagine he views opinions from the Iowa Supreme Court regarding Iowa’s law like he views opinions from his next-door neighbor regarding lawns–“Thanks for your opinion, Steve, but I think I can handle the crabgrass in my own yard.”

This kind of thing has always amazed me.  When baseball players step onto the field, they know the rules of baseball.  If you’re going to run for office, you should probably know the rules of our government.

57 percent or sloppy polling?

Politico reported today that 57 percent of poll respondents support a military response to eliminate North Korea’s nuclear capabilities.  Does this really reflect what Americans think?

Probably not.  Look at the actual Rasmussen poll here.  This is the actual question:

3* If North Korea launches a long-range missile, should the United States take military action to eliminate North Korea’s ability to launch missiles?

57% Yes
15% No
28% Not sure

First, does North Korea really have a long-range missile capability?  The Wall Street Journal says no:

The three-stage rocket failed during its second stage and plunged into the Pacific Ocean about 1,300 kilometers east of Japan, according to analysts in the U.S., Japan and South Korea. On Monday, Russia, a country more friendly to North Korea than the other three, also announced that the missile appeared to fail before reaching its third stage, according to news reports.

However, this poll was conducted two days before the rocket failed.  Back then, it was kinda scary that North Korea was about to launch a missile; now, we realize that they can’t launch a long-range missle.  Would this poll question come up differently if it was polled two days after the rocket failed?  Maybe.

Second, here’s the question that immediately preceded the military action question:

2* How concerned are you about the possible threat of North Korea using nuclear weapons against the United States?

39% Very concerned
34% Somewhat concerned
20% Not very concerned
5% Not at all concerned
2% Not sure

Right after answering a question about North Korea using a nuke against the US (which experts believe could only happen via airplane, not missile), the respondents answered a question about North Korea’s missile capability.  This is called “priming” — where an early stimulus influences response to a later stimulus.  The Pew Research Center explains this phenomenon in their FAQ, explaining why they ask presidential approval first in their surveys:

For example, if the survey first asks about the economy and then asks about presidential approval, the respondent may still be thinking about the economy when answering the latter question. While economic conditions may be important in assessing the president’s overall performance, so are many other issues. If the respondent is only thinking about the economy because we brought up the issue, his or her response about the president may be biased by what we call a context effect: in this case we would be priming the respondent to consider the economy in an assessment of the President.

This poll isn’t an accurate reflection of what Americans think–or if it actually is, we can’t be sure because of sloppy polling methodology.

surprise surprise, torture doesn’t work

A few days ago, The Washington Post broke this story:

When CIA officials subjected their first high-value captive, Abu Zubaida, to waterboarding and other harsh interrogation methods, they were convinced that they had in their custody an al-Qaeda leader who knew details of operations yet to be unleashed, and they were facing increasing pressure from the White House to get those secrets out of him.

The methods succeeded in breaking him, and the stories he told of al-Qaeda terrorism plots sent CIA officers around the globe chasing leads.

In the end, though, not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced, they said.

Here’s a Washington Post blog entry that puts the final nail in the coffin:

All the calculations the Bush White House claims to have made in its decision to abandon long-held moral and legal strictures against abusive interrogation turn out to have been profoundly flawed, not just on a moral basis but on a coldly practical one as well.

Indeed, the Post article raises the even further disquieting possibility that intentional cruelty was part of the White House’s motive.

The most charitable interpretation at this point of the decision to torture is that it was a well-intentioned overreaction of people under enormous stress whose only interest was in protecting the people of the United States. But there’s always been one big problem with that theory: While torture works on TV, knowledgeable intelligence professionals and trained interrogators know that in the real world, it’s actually ineffective and even counterproductive. The only thing it’s really good as it getting false confessions.

So why do it? Some social psychologists (see, for instance, Kevin M. Carlsmith on NiemanWatchdog.org) have speculated that the real motivation for torture is retribution.

And now someone with first-hand knowledge is suggesting that was a factor in Zubaida’s case.

Quoting a “former Justice Department official closely involved in the early investigation of Abu Zubaida,” Finn and Warwick write that the pressure on CIA interrogators “from upper levels of the government was ‘tremendous,’ driven in part by the routine of daily meetings in which policymakers would press for updates…

“‘They couldn’t stand the idea that there wasn’t anything new,’ the official said. ‘They’d say, “You aren’t working hard enough.” There was both a disbelief in what he was saying and also a desire for retribution — a feeling that ‘He’s going to talk, and if he doesn’t talk, we’ll do whatever.'”‘

To review: in 24, torture is a good idea and works all the time.  In real life, torture is a bad idea and doesn’t work at all.