FACT CHECK FOLLOW-UP: As U.S. Presents, Today, Gov. Brewer's Anti-UN/Anti-White House/Pro-SB1070 Rant Proved False

It was 6 1/2 months ago that Arizona Governor Jan Brewer teed off on the Obama Administration for mentioning Arizona and the anti-illegal immigration SB1070 in its review of human rights in Arizona.  She decried the innocuous mention as "internationalism run amok and unconstitutional", and promised that Arizona would fight the attempt "to make an international human rights case out of SB1070". 

Today, the United States presents its response to the recommendations made by other countries, and will tell them that it flat out rejects the idea - made by Ecuador and echoed by others - that the U.S. should "Repeal and do not enforce discriminatory and racial laws such as Law SB 1070 of the State of Arizona."  And, that will basically be the end of that.  The report and the response will be approved, there will be no vote on whether the U.S. should be forced to repeal Arizona's law or sanctioned if it does not.  That is it.  An anti-climactic, yet completely predictable, end to something that the governor pretended was going to be an historic capitulation of the United States to the world.

The State Department released its response to the 228 recommendations made by other nations last week to little fanfare.  For most, the Administration expressed support, or rejected the rhetoric while supporting the principle.  However, the Ecuadoran recommendation was one of the 57 that the U.S. is flatly rejecting.  The comment: "(T)he Federal Executive Branch lacks the authority to repeal or refuse to enforce laws enacted at the State level."

The U.S. did respond favorably to other, more general recommendations touching on issues raised in the wake of SB1070.  For example, Guatemala, Bolivia, Mexico, Uruguay urged the U.S. to attempt to restrain state initiatives which encourage racial profiling and/or criminalizing people who cross the border without permission.  The U.S. response expressed support for the principle expressed in those recommendations in a very interesting way:

We will continue to both conduct human rights training and awareness campaigns and, where appropriate, bring civil or criminal actions regarding racial profiling, police brutality, and excessive use of force, and other actionable civil rights violations against immigrants. While unlawful presence in the U.S. is not a crime, and the federal government does not support state initiatives that aim to criminalize mere status, we cannot support the parts related to the “criminalization” of migrants, as certain immigration offenses are subject to criminal sanction, e.g., illegal entry. (emphasis added)

In August, we fact checked Gov. Brewer's letter and concluded that it was "completely misleading".  And, unless something completely unexpected occurs, today's proceedings will support that conclusion and prove to be a predictable anti-climax to the Governor's UN-and-Obama-bashing rant.


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READ: Arizona's Counterclaim Against U.S. In S.B. 1070 Lawsuit

As announced earlier on Thursday by Gov. Jan Brewer and Attorney General Tom Horne, Arizona has (finally) filed an Answer to the legal action filed last year by the United States in the matter of Arizona's S.B. 1070 anti-illegal immigrant law.  Arizona also took the opportunity to file a counterclaim against the Obama Administration.

The Governor and AG first released a 6-page summary of the counterclaim, and later released the entire, filed Answer and Counterclaim.  The former presents (relatively) simple to understand synopses of the five counts in the Counterclaim.  Some are unsurprising, such as "Failure to Achieve and Maintain Operational Control of the... Border" (Count One), "Failure to Enforce/Follow Immigration Laws" (Count Three), and seeking reimbursement (Count Four). 

However, there are also a couple of eye-opening claims: failing to protect Arizona as required under the Constitution - requiring a redefinition of the constitutional term "invasion" (Count Two) and that the U.S. is violating the 10th Amendment by letting illegal immigrants in and then saying that Arizona cannot do anything about them once they are here (Count Five).

As is often the case in complex cases, both of the eye-openers require some creative legal gymnastics.  For example, the full counterclaim acknowledges that the court needs to redefine "Invasion" to include non-sovereign, non-military entrances by persons acting individually. (pp. 44-45)  The clause is found in Article IV, Section 4 of the United States Constitution. ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.")

The 10th Amendment claim requires the trier to acknowledge that the federal government does have the constitutional responsibility to control immigration - including detaining and deporting those who make it past the border.  But - the legal reasoning seems to state - once illegal immigrants are here, Arizona must be permitted to facilitate the detaining and deporting and it is then unconstitutional for the federal government to preempt Arizona's actions against illegal immigrants.  (pp. 51-54)

From a legal-wonky perspective, some of the affirmative defenses asserted by Arizona to the original complaint seem rather... unique.  The frequently-cited affirmative defense of "self defense" is usually thought of in the context of an individual taking otherwise-illegal action to protect him or herself;  yet, Arizona is claiming that S.B. 1070 is a self-defense right "under the Constitution".  An entire chapter could be written on that perspective.  (p. 14)

Another unique affirmative defense is that the original lawsuit should name executive branch departments (DOJ, DHS, State) as the real parties in interest; first, it is not a typical "affirmative defense" and second, it is part of an interesting motif in the Answer and Counterclaim trying to split the plaintiff (the U.S. Government) into the Obama Administration, the executive agencies and Congress.  This appears partly designed to make an argument that the necessary laws are in place but are not being executed - never mind that Congress also controls the purse strings and that there is always a matter of prosecutorial discretion - and partly, politically, to single out the White House as the true villain.  This is borne out in another interesting affirmative defense - often used in business disputes among individuals or businesses - that claims that the federal government has "unclean hands".

The bottom line seems to be that this pretty standard legal pleading and tactic - counterclaiming - probably got a lot more public attention than it normally would, but for the Governor and AG's well-publicized news conference.  While parts are creative, other parts are exactly the types of complaints that are practically required to be brought up as a counterclaim if you feel that you have your own gripes with the plaintiff.  And, we have repeatedly been told that the reason behind S.B. 1070 and other state measures is precisely because Arizona has gripes against the federal government.  An argument could be made that IF these had not been raised as a (compulsory) counterclaim, that Arizona would not be permitted to later file this as a separate action against the U.S. government.

(note, in case any reader has a way of getting the counterclaim amended, paragraph 180 inadvertently uses "Counterclaimants" instead of "Counterdefendants".  An easy-to-make-yet-hard-to-catch common mistake that nonetheless can jar the reader off the track that you were trying to take him or her on.





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WATCH: What Would YOU Do? ABC Airing Undercover Segment From Tucson On Racial Profiling; Preview/Teaser

Tomorrow night, ABC News is airing an undercover segment of "What Would You Do?" that was taped in a Tucson restaurant and focuses on racial profiling in the wake of Arizona's international attention resulting from last year's passage of SB1070.

The one-hour Primetime will air at 8:00p.m. on KNXV (Channel 15) in Phoenix and KGUN (Channel 9) in Tucson.

ABC has put up a news story detailing what happened when host John Quinones went undercover and also hired an actor to portray a White security guard who starts asking people for ID.  Non-Hispanic patrons confront the security guard/actor.

The video that ABC apparently has up on its site does not seem to be working properly, so the teaser below is taken from the Newsbusters' website that has already proclaimed the report as an example of liberal media stretching the boundaries of journalism.  The organization puts up the transcript from this morning's tease on Good Morning, America. 

(Interestingly, GMA host George Stephanoupoulos' Tweet on the subject links to the Newsbusters article and not ABC's own.)





I cannot help but wonder what the results of their undercover operation would have been if they (a) had tried it in Phoenix, and (b) if they had tried it at a restaurant that does not serve great Mexican food.

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FACT CHECK FOLLOW-UP: U.S. Urged To "Repeal" Arizona's SB 1070; Human Rights Review Process Nearing End

On Friday, the world had a chance to compliment and criticize the United States' human rights practices.  Ecuador recommended that Arizona's anti-illegal immigration law SB 1070 should be "repeal(ed)".  The U.S. delegation noted that it is already in the courts and re-expressed "the commitment to advancing comprehensive immigration reform."

In August, the United States State Department filed its self-survey of the status of human rights in the U.S.  Near the end of that mostly-positive report, it noted the ongoing legal action surrounding Arizona's anti-illegal immigration law.  This upset Arizona Governor Jan Brewer, who accused the Obama Administration of "trying to make an international human rights case" of SB 1070, and that it was "unconstitutional" and "internationalism run amok."  The State Department responded by noting that the federal court case (now before the U.S. 9th Circuit Court of Appeals) is a positive example of how a country should use the rule of law to deal with issues.

Arizona and SB 1070 did end up being discussed at the Working Group session on Friday, and thus being included in the (draft) report issued today.  The 228 recommendations and conclusions submitted by a large number of nations may be further responded to by the U.S. and will be forwarded to the U.N. Human Rights Council for rubber-stamping.  The U.S. will then act on some of the recommendations, reject others, and ignore the rest.  End of story.  There is no enforcement and there are no penalties.

Basically, the Universal Periodic Review ("UPR") is an opportunity to shine a light on every nation's human rights efforts and to give every nation and every NGO (non-governmental organization) a chance to sound off about each other.  For example, the United States made a number of recommendations when Iran was reviewed earlier this year; Iran rejected nearly all of them.

What happened on Friday? According to the draft report, "Mexico recognized the robust institutional infrastructure for the protection of human rights." (para. 19) There must have been some mention of Arizona in the first round of nation's statements, because the U.S. delegation virtually repeated its report word-for-word about SB 1070. (para. 37)

Discussion about racial profiling and immigration continued.  Later, the U.S. "assured delegations that it condemns racial and ethnic profiling in all of its forms, and is conducting a thorough review of policies and procedures to ensure that none of its law enforcement practices improperly target individuals based on race or ethnicity." (para. 72)  Regarding immigration, the U.S. stated that "it is committed to improving its immigration system", while noting that more than 9.4 million people have either become permanent residents (5.5M), naturalized citizens (3.5M) or resettled/granted asylum (nearly 425,000) in the U.S. in the past five years. (para. 73).

The draft report then turns to the recommendations and/or conclusions noted by the different nations.  Haiti urged the U.S. to ratify the 1990 "International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families". (para. 15).  A number of countries joined in on that suggestion, mainly from Central and South America.

Four countries then made recommendations which appeared to be referencing SB 1070.  Guatemala, Bolivia, Mexico, Uruguay urged the U.S. to attempt to restrain state initiatives which encourage racial profiling. (paras. 79, 101, 105, 108)  Finally, Ecuador came right out and urged the U.S. to "repeal and do not enforce discriminatory and racial laws such as Law SB 1070 of the State of Arizona." (para. 110)

Likely, the U.S. will respond to that entreaty by noting that the federal government can neither repeal nor prevent Arizona from enforcing the state law if the federal courts do not find in favor of the U.S. in the pending legal action. 

_____
Arizona's Politics wishes to commend the ACLU for posting the draft report and for quickly responding to its media inquiry.




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State Department Explains Why It Mentioned Arizona In Report (full text and link below); Fox News Headline Misleading

[[Yesterday morning, we published our Fact Check Analysis on Gov. Brewer's "Indignant, Offended, Misleading" letter to (U.S.) Secretary of State Clinton demanding removal of the "unconstitutional" mention of Arizona's S.B. 1070 law.  In concluding that the letter was "COMPLETELY MISLEADING", we noted that it can only be seen as an effort to appeal to and motivate a segment of the electorate, to further endear herself to conservative media, and to foment misunderstanding and distrust of the federal government.  Well, Fox News was paying attention.]]

A reporter at the State Department's Daily Press Briefing stopped spokesperson Phillip Crowley just before he wrapped it up, and asked him about S.B. 1070's inclusion in the State Department's human rights Universal Periodic Review ("UPR").  (If you can identify this reporter, please let us know.)  She asked what the State Department's "motivation" was in the mention.
Mr. Crowley's response was as simple and low key as the original mention in the UPR (and was very similar to our postulation).  Here is the text (verified with the video)(text/video are at end of briefing, 35:18 in video):
 
QUESTION: Wait, P.J., can I get one question in? For Secretary Clinton’s UN report that was submitted August 20th, she talked about the Arizona immigration law. What was the motivation for putting that into the UN report?


MR. CROWLEY: Well, we had a process where teams went around the country, and during the course of the preparation of our report, the issue of the Arizona immigration law came up. And that’s the reason why it was included in the report.

We’re very proud of our human rights record. We think it’s second to none around the world. But the universal periodic review, we believe, can be a model to demonstrate to other countries – even other countries on the Human Rights Council – this is how you engage civil society. And where issues arise from a genuine discussion and debate within societies, there can be issues that are resolved under the rule of law. And the Arizona immigration law is a good example of how we are debating this as a society. There is a legal case ongoing, and this issue will be resolved under the rule of law.

QUESTION: Under federal law?

MR. CROWLEY: Under federal, yeah.



Fox News apparently gave this story heavy airplay yesterday, as well (I am guessing the reporter who asked the question of Crowley was thus a Fox reporter or producer.)  According to this article, Fox interviewed both Gov. Brewer and Republican state Sen. Frank Antenori (Fox misspelled Mr. Antenori's name; corrected here). 

Forgetting that Fox apparently did not feature a viewpoint different from Brewer's and Antenori's, the headline of Fox News' website article is that "State Department Stands By Decision to Include Arizona in U.N. Human Rights Report." (emphasis added)  That is a bit of a stretch.  Crowley was not asked to respond to Brewer's letter (or Antenori's equally-insulted remarks).  Crowley was not asked if the State Department would remove the mention from the report (as if that would keep someone else from raising the question).  He was asked to explain the back story, the motivation.  And, that is all that he did.