About the Institute

Now in its fourth year, the Drexel Summer Theory Institute is a workshop for Drexel students with summer public interest law internships in the greater Philadelphia area. The Institute is modeled after a similar program founded in 2008 by two public interest lawyers, Nisha Agarwal and Jocelyn Simonson, for Harvard law students with public interest internships in New York City. Institute Fellows will meet with the co-conveners one evening each week to discuss works of social and critical theory as they relate to the Fellows’ public interest work. Although the conveners will seek to tailor the readings to the interests of the group, some examples of the kinds of thinkers we might engage with include Pierre Bourdieu, F.A. Hayek, bell hooks, K. Anthony Appiah, and Martha Nussbaum.

The Summer Theory Institute will involve a significant but not overwhelming commitment on the part of the Fellows. The Fellows will be required to attend all ten evening sessions, prepare for each meeting ahead of time, write short response papers to the readings, participate in the discussions, and lead one week’s discussion. We may also arrange joint sessions or events towards the end of the summer in New York or Philadelphia with our counterparts from the Harvard Summer Theory Institute.

The mission of the Institute is to encourage thoughtful public interest practice by providing a space in which students can think critically about and reflect more deeply upon their everyday experiences practicing public interest law, using social theory as a lens through which to do so. Working together to think through the role that social theory can play in legal practice and activism allows the Fellows to engage more meaningfully with their institutions’ methods of pursuing justice on a day-to-day basis. By creating the space to discuss larger theoretical concepts outside of the work environment, the Institute enhances the Fellows’ senses of the potential for intellectual rigor and personal fulfillment in public interest work. The Institute also aims to foster a community of leaders who will bring their enthusiasm for pursuing social change through the law back to the Drexel community at the end of the summer.

No academic credit will be granted for participation in the Institute. If any Fellows are interested in reflecting more formally on the relationship between theory and practice in their summer public interest experiences, the Institute will try to connect them to Drexel faculty who might be willing to supervise larger writing projects for academic credit when they return to the law school.

How to Apply

If you are a 1L or 2L interested in becoming a Fellow in the Drexel Summer Theory Institute, please submit (1) a resume and unofficial transcript, and (2) a one page statement of interest by Wednesday, April 10, 2013. Statements of interest should be emailed to dsti2013 [~at~] kalhan (-dot-) com [please use the following subject header: DSTI 2013 APPLICATION]. In your statement of interest, please explain:

1. Your anticipated (or desired) public interest internship plans for the summer;
2. Any prior public interest experience, both legal and non-legal; and
3. Why you are interested in participating in the Summer Theory Institute.

No prior experience with social or critical theory is necessary to participate. Instead, we are looking for a group of Fellows who are excited about public interest work and open to thinking in innovative and sometimes critical ways about that work.

While we understand that not all students may be able to finalize their summer plans until after the application deadline, all Fellows must eventually secure a public interest internship in the greater Philadelphia area. Fellows must be located in the Philadelphia area for the full ten weeks of the program so that they can attend all ten sessions.

About the Co-Conveners

The 2013 Drexel Summer Theory Institute will be convened and facilitated by Arianna Freeman, Ryan Hancock, and Anil Kalhan.

Arianna Freeman is an attorney with the Capital Habeas Unit of the Federal Community Defender Office for the Eastern District of Pennsylvania, where she represents death-sentenced prisoners in post-conviction proceedings in state and federal court. Prior to joining the Capital Habeas Unit, she served as a law clerk to the Honorable James T. Giles (Ret.) and the Honorable C. Darnell Jones, II, both of the Federal District Court for the Eastern District of Pennsylvania. She is a 2007 graduate of the Yale Law School.

Ryan Allen Hancock is a civil rights attorney with the Pennsylvania Human Relations Commission. Mr. Hancock received his law degree from Rutgers School of Law in 2003 and subsequently clerked in Camden County Superior Court, Criminal Division for two years, after which he joined the PHRC. Mr. Hancock is also the Co-Director of the Philadelphia Chapter of the National Lawyers Guild’s (NLG) Criminal Record Expungement Clinic, Co-Founder of the Rule of Law Institute, and supervising attorney for the University of Pennsylvania Law School’s International Human Rights Advocates (IHRA). Mr. Hancock is also a frequent commentator on discrimination, civil liberties, and the rule of law in Pakistan, and was part of an 8-member NLG delegation which published Defending Dictatorship: U.S. Foreign Policy and Pakistan’s Struggle for Democracy, following their two-week fact-finding mission to Pakistan in January 2008.

Anil Kalhan is an Associate Professor of Law at Drexel University, and has taught immigration law, criminal law, First Amendment, comparative constitutional law, and international human rights law. He is an affiliated faculty member at the University of Pennsylvania South Asia Center, chair-elect of the Section on Law and South Asian Studies of the Association of American Law Schools, and a faculty advisory board member for the Drexel University Center for Mobilities Research and Policy. He is a member of the International Human Rights Committee of the Association of the Bar of the City of New York, and previously has been a member of its International Law Committee and Immigration and Nationality Law Committee. He previously worked at Cleary Gottlieb, Steen & Hamilton, where he served as co-coordinator of the firm’s immigration and international human rights pro bono practice group, and the ACLU Immigrants’ Rights Project.

Questions

Questions may be directed to dsti2013 [~at~] kalhan (-dot-) com. A list of Fellows from 2010, 2011, and 2012 may be found here.

Many countries exist in a “gray zone” between authoritarianism and democracy. For countries in this conceptual space—which is particularly relevant today given the halting path of change in the Arab world—scholars, judges, and rule of law activists conventionally urge an abstract notion of “judicial independence” as a prerequisite for successful democratic transition. Only recently, for example, Pakistan’s judiciary was widely lauded for its “independence” in challenging the military regime. However, judicial independence is neither an all-or-nothing concept nor an end in itself. With the return of civilian rule in Pakistan, a series of clashes between Parliament and the Supreme Court has raised concern that the same judiciary celebrated for challenging the military regime—while invoking exactly the same abstract notion of judicial independence—might now be asserting autonomy from weak civilian institutions in a manner that undermines Pakistan’s fragile efforts to consolidate democracy and constitutionalism.

In this Article, I challenge the conventional view by examining these recent developments in Pakistan, which are instructive for other countries in this gray zone. Over many decades, as Pakistan has cycled between military and weak civilian rule, the military and its affiliated interests have entrenched their power, and the judiciary has played a central role in facilitating that process. The result has been an enduring institutional imbalance that has undermined Pakistan’s weak representative institutions. This process of entrenchment has never gone entirely unchallenged, and Pakistan’s current shift to civilian rule offers genuine potential for the long-term consolidation of democracy and constitutionalism. But this persistent institutional imbalance and continued military dominance remains a significant obstacle to fully realizing that potential. Accordingly, I urge an understanding of judicial independence that goes beyond abstract, unqualified notions of judicial autonomy and instead contemplates an appropriate balance between autonomy and constraint—one that not only enables representative institutions to strengthen their governance capacities and power to rein in the military, but also enhances mechanisms of judicial accountability to reinforce the democratic legitimacy of the judiciary’s role. Pakistan’s experience also has broader significance, suggesting lessons—or at least notes of caution—about the relationship between entrenched status quo interests and an “independent judiciary” in other countries, such as Egypt, that risk languishing in the gray zone between authoritarianism and democracy but seek a more complete shift to democracy.

Full article available here….

Last week, the New York Civil Liberties Union filed a lawsuit challenging the state of New York’s routinized use of solitary confinement and other forms of extreme isolation in its prison system as violating the Eighth Amendment. According to the complaint, which draws from a report that the organization published earlier this year, New York uses extreme isolation as an administrative sanction more extensively than any other prison system in the country. From 2007 to 2011, the state imposed over 68,000 extreme isolation sentences for violations of prison rules, and on any given day, it holds approximately 4,500 individuals – constituting fully 8 percent of its total prison population – in its “Special Housing Unit” isolation cells.

As the NYCLU recounts, the circumstances and consequences of such extreme forms of confinement are exceptionally severe:

Every day, nearly 4,500 prisoners across New York live in extreme isolation, deprived of all meaningful human interaction or mental stimulation, confined to the small, barren cells where they spend 23 hours a day. Disembodied hands deliver meals through a slot in the cell door. “Recreation” offers no respite: An hour, alone, in an empty, outdoor pen, no larger than the cell, enclosed by high concrete walls or thick metal grates. No activities, programs or classes break up the day. No phone calls are allowed. Few personal possessions are permitted. These prisoners languish in isolation for days, weeks, months and even years on end.

* * *

Extreme isolation harms prisoners and corrections staff. . . . The emotional and psychological harm prisoners experience in extreme isolation is compounded by the formal and informal deprivation of basic necessities, including food, exercise and basic hygiene. Prisoners buckling under the emotional and psychological weight of isolation and deprivation often lack access to adequate medical and mental health care. For corrections staff, working in extreme isolation has lasting negative consequences that affect their lives at work and home.

* * *

Extreme isolation negatively impacts prison and community safety. People in extreme isolation find its psychological effects fuel unpredictable and sometimes violent outbursts. . . . Prisoners carry the effects of extreme isolation back into the general prison population. They also carry them home. Nearly 2,000 people in New York are released directly from extreme isolation to the streets each year. [link]

Prison rules confer broad discretion upon corrections staff to determine which disciplinary infractions warrant extreme isolation as a sanction, with limited independent oversight or procedural protections for individuals charged with violations. The NYCLU’s investigation reveals the extensive, arbitrary use of extreme isolation to punish a sweeping array of minor rules violations, including “smoking in an undesignated area,” “wasting food,” “littering,” and “untidy cell or person.” Far from confining its use to short periods of confinement for truly exceptional circumstances, New York officials have instead relied upon extreme isolation “as a disciplinary tool of first resort for violating almost any prison rule, no matter how minor” – and in many cases, for prolonged and indefinite periods extending for months and even years. Even the Commissioner of New York’s Department of Corrections and Community Supervision, Brian Fischer, has publicly acknowledged that the state’s prison system “overuse[s]” extreme isolation.

* *

New York, of course, is hardly alone within the United States in its widespread use of excessive isolation. Conservative estimates indicate that tens of thousands of individuals nationwide – along a continuum ranging from short-term disciplinary segregation in isolation cells for days or weeks to long-term confinement under circumstances of extreme sensory deprivation in dedicated “supermax” facilities – are confined at any given time under circumstances of extreme isolation, which has become a central instrument in the criminal justice system’s strategy of “exclusion and control.” Indeed, Sharon Dolovich goes further to suggest that the logic of supermax might be “critical to the success of the entire carceral enterprise,” insofar as it seeks to “neatly contain” any possibility of disorder or disruption within prisons – and thereby to ensure that the very existence of individuals in prison, much less the circumstances of their incarceration, need not intrude upon the public consciousness.

Still, it is widely understood, as Keramet Reiter puts it rather plainly, that “[s]olitary confinement makes people crazy.” Even seemingly short periods of time in isolation can cause grave harms. In a 2011 report, the U.N. Special Rapporteur on Torture, Juan Mendez concluded that as implemented in many countries, including the United States, solitary confinement amounts to cruel, inhuman, or degrading treatment or punishment – and can even rise to the level of torture. Mendez concluded that solitary confinement should never exceed 15 days, given the potentially irreversible psychological harms that can result and, even when used for shorter periods, should only be used in exceptional circumstances as a last resort, and should be limited to definite terms that are as short as possible, communicated to incarcerated individuals, and subject to daily review by qualified medical and mental health professionals.

In recent years, lawyers, scholars, activists, journalists, bar associations, officials, and prisoners themselves have been increasingly effective in bringing concerns about extreme isolation into public view, documenting the ways in which solitary confinement and other forms of extreme isolation cause severe physical, emotional, and psychological harms and compromise safety prison and community safety – particularly when individuals are subjected to prolonged or indefinite periods of isolation. Activists Shane Bauer and Sarah Shourd, for example – who were subject to prolonged solitary confinement in Iran after being detained while hiking near the Iran-Iraq border in 2009 – have effectively used their ordeal in Iran as a springboard to draw attention to concerns over extreme isolation in the United States. The NYCLU’s lawsuit was preceded earlier this year by a lawsuit challenging California’s use of prolonged solitary confinement, and just last month, a federal district court in Massachusetts held that a prisoner’s solitary confinement for 10 months (for throwing pudding at another prisoner) without due process was unlawful. A number of states, including Mississippi, Colorado, and Maine, have taken steps to reduce the number of individuals subject to solitary confinement. And in Washington, Sen. Dick Durbin convened the first congressional hearing drawing attention to solitary confinement in June. As with other aspects of the criminal justice system, reform advocates seeking to curtail these extreme practices – which also are extremely expensive – have ample reason to regard the present moment as one for cautious optimism.

* *

By comparison, little sustained attention has been given to concerns over solitary confinement and other forms of excessive isolation in the nation’s massive immigration detention system, which holds an average of approximately 34,000 individuals on any given day, and close to 400,000 individuals over the course of each year, in over 250 facilities around the country. But the limited information that has been documented paints a similarly grim picture. In 2010, a report on immigration detention in the United States by the Inter-American Commission on Human Rights raised concerns about the use of isolation in a number of facilities as an effectively punitive mechanism, particularly for LGBT individuals, religious minorities, and individuals with mental illness. And earlier this year, the National Immigrant Justice Center and Physicians for Human Rights jointly published the only report to date that specifically investigates the use of segregation and solitary confinement in immigration detention facilities, which frequently commingle individuals held for both immigration and criminal justice purposes:

ICE has failed to enforce consistent segregation standards in its detention facilities. As a consequence, jails often apply local correctional policies to manage both immigration and non-immigration detainees, leading to the widespread use of solitary confinement. . . . Investigators found that solitary confinement in immigration detention facilities is often arbitrarily applied, significantly overused, harmful to detainees’ health, and inadequately monitored.

* * *

Guards have unfettered power over immigrants, who have no legal recourse for unfair custody decisions. Investigators found instances in which jails justified the use of solitary confinement to discriminate against non-English-speaking immigrants and to punish immigration detainees for violations as trivial as dressing improperly or putting their feet on tables. Failure to speak English when able; watching Spanish channels on TV; sitting on counters, tables, or railings; leaning back on chairs; horseplay; pulling pranks; and singing loudly can all lead to 23-hour lockdown according to existing policies.

* * *

According to [ICE’s 2011 detention standards] and many county policies, detention facilities have 30 days to notify ICE when they place an individual in segregation. But facilities can easily avoid ICE oversight. . . . It is unclear whether ICE tracks information related to the segregation of detainees who have been held for less than 30 days. . . . Investigators spoke with a detainee at the Oakdale Federal Detention Center (Louisiana) who was held in solitary confinement for nearly eight months without review. Guards told him they “could hold him as long as [they] wanted” and that he was not going to be released from solitary confinement. [link]

These comparable harms raise distinct concerns in the context of immigration detention, which is a form of civil custody, not criminal punishment. In 2009, the Obama administration pledged to reconstruct this quasi-punitive detention regime into what ICE director John Morton termed a “truly civil detention system.” However, as Human Rights First has documented, those ambitious proposed reforms have thus far failed to transform the detention system away from the underlying criminal correctional paradigm that has characterized immigration detention since the 1980s and 1990s. Moreover, as the NYCLU report illustrates, simply documenting the nature and scale of excessive isolation is a challenging endeavor. In the immigration detention system, these same documentation challenges are compounded by the use of hundreds of facilities across the country – facilities that are often geographically isolated, and to which independent observers often lack meaningful access – and by the overwhelming lack of access to attorneys for many detainees. ICE’s own oversight and information tracking capacities have long been criticized. As the NIJC/PHR report notes, ICE’s nonbinding detention standards do not even require facilities to report their use of segregation for 30 days – a full 15 days after the point at which the UN Special Rapporteur regards solitary confinement to presumptively violate international human rights legal standards.

The apparently routinized use of solitary confinement documented by NIJC and PHR offers perhaps the sharpest illustration of ICE’s lack of progress in transforming the detention system to date. After all, one would be hard pressed to reconcile the routine use of solitary confinement and other forms of excessive isolation – which often rises to the level of cruel, inhuman, or degrading treatment or punishment or even torture in the criminal justice context – with a paradigm of custody meant to be “truly civil,” rather than punitive in nature. It certainly remains possible that as ICE continues to implement its reform initiatives, both oversight and conditions of confinement will improve. With respect to solitary confinement and other forms of extreme isolation, however, a basic and more fundamental challenge – for both the agency and reform advocates – appears to be documenting and drawing attention to the nature and scale of the problem.

(Cross-posted at ImmigrationProf Blog)

Posted at Dorf on Law

Among the more striking comments at the event convened last week in New Orleans by Human Rights First, Dialogues on Detention: Lessons from Criminal Justice Reform for Immigration Detention, were those by Louisiana State University Law School Professor Ken Mayeaux, who directs the school’s immigration clinic. In the day’s final panel, on access to counsel, Mayeaux painted a grim picture concerning the ability of noncitizens detained within Louisiana – whose immigration detention beds comprise 6 percent of the total number of ICE detention beds in the country, but 90 percent of whose detainees have been transferred from out of state – to obtain legal representation, either for bond hearings or to defend against removal itself. He offered up the Oakdale Federal Detention Center for particular scorn. Back in the 1980s, he said, “someone had the brilliant idea to build a 900-bed detention facility in the middle of nowhere.” Today, in practice, Mayeaux asserted, “there is no access to counsel at Oakdale.”

Even when individuals are not detained, the complexities of immigration law make the role of counsel for noncitizens in removal proceedings – who, unlike criminal defendants, have no right to government-appointed assistance of counsel – exceptionally important. For example, a 2011 study of cases initiated in New York – which was jointly conducted by the Vera Institute of Justice and the Immigrant Representation Study Group convened by Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit – found that while 74 percent of non-detained individuals represented by counsel secured successful outcomes in their cases (defined as either relief from removal or termination of proceedings), that figure dropped to 13 percent for non-detained individuals who lacked legal representation. But as with the criminal justice system, in which individuals held in pretrial detention fare worse in their cases than individuals who are not detained, noncitizens in immigration detention fare considerably worse in their cases: only 18 percent of legally represented individuals in detention secured successful outcomes, while a scant 3 percent of unrepresented detainees were able to do so.

Moreover, the likelihood of obtaining legal representation in the first place is considerably lower for detained noncitizens – and lower still when ICE transfers those individuals long distances to remote detention facilities that are far from major urban centers, as the 2011 New York study found to occur with approximately 64 percent of individuals originally taken into custody in New York. According to Human Rights First, approximately 40 percent of ICE’s total detention bed space (which currently totals approximately 33,000 beds) is at least 60 miles away from an urban center – and in many cases even more remote. The consequences of rendition into this archipelago of facilities can be dramatic. A 2009 study by the National Immigrant Justice Center found that 80 percent of all detainees were held in facilities that were underserved by legal aid organizations. While non-detained individuals who remained in New York were represented by counsel in approximately 73 percent of all cases, only 21 percent of individuals who were transferred to these remote detention centers were legally represented in their proceedings. Those figures are broadly consistent with earlier data indicating that as few as 16 percent of detained individuals nationwide are represented by legal counsel in their proceedings. (Two reports by Human Rights Watch, one published in 2009 and one published in 2011, further document the massive scale of detainee transfers to remote detention facilities and the implications for access to counsel.)

Of course, immigration detention is not, strictly speaking, a “legal black hole” in the sense that Lord Steyn characterized Guantanamo: a place “beyond the rule of law, beyond the protection of any courts, and at the mercy” of government officials altogether. But for many noncitizens, their rendition to remote detention facilities where they lack any meaningful access to lawyers – and for that matter, where they also lack the protection of binding detention standards, or recourse to effective mechanisms of holding their jailers accountable to the non-enforceable standards that do exist – can operate as its functional equivalent. For these individuals, geography often becomes destiny.

* *

In his posthumously published 2011 book, The Collapse of American Criminal Justice, William Stuntz draws attention to the role played by geography in the evolution of the politics of crime in the United States:

The vice wars of the late nineteenth and early twentieth centuries … invited voters in America’s small towns and countryside to weigh in on the character and consequences of crime outside of their own jurisdictions, chiefly in America’s cities. State and national politicians learned a crucial lesson: they could win votes in some places by attacking crime in others. [p.191]

In more recent years, the political geography of mass incarceration has contributed further to this underlying dynamic, as the incarceration of offenders in remote locations, far from their home communities, has given those remote communities tangible interests in maintaining or increasing those levels of imprisonment. While prison expansion has occurred in both urban and remote locations, it has had particularly significant consequences for smaller communities. In many instances, prison expansion has been pitched to these communities as offering significant economic benefits, even as the actual evidence concerning those supposed benefits has been more equivocal. Moreover, since the Census counts incarcerated offenders as “residents” of the jurisdictions in which the prisons are located, rather than their own home communities – even in situations in which those individuals are ineligible to vote – some remote communities have reaped political windfalls from the incarceration of these new “residents” in their communities when the boundaries of federal, state, and local political districts have been apportioned.

Thus, the “carceral bargain” (to draw upon Sharon Dolovich’s concept) by which the government excludes and maintains control over prisoners has an equivocal aspect. On the one hand, the bargain depends upon prisoners being largely invisible from the typical citizen’s day-to-day consciousness – so that, as Dolovich argues, “society as a whole . . . need not think about them again until they are released.” At the same time, however, that bargain is also reinforced, at least partially, by the ways in which prisoners’ local presence while incarcerated is tangibly felt and experienced in the communities where prisons are located.

The political geography of immigration detention offers an interesting variant on this dynamic. Immigration detention does not provide the opportunity for so-called “prison-based gerrymandering” presented by criminal incarceration, but local communities often are lured by similar hopes that detention might offer economic benefits. As Immigration Judge Wayne Stogner noted during last week’s HRF event in New Orleans, “there is only one reason why the Oakdale facility was built in the middle of nowhere: money.” When the facility was built back in 1985, Oakdale (population 7,100 at the time, and population 7,780 as of 2010) had endured significant economic hardships due to plant closings that prompted the loss of almost 1,000 jobs. With an unemployment rate of almost 32 percent, the promise of over 300 jobs as a result of a detention facility with almost 1,000 beds was an inviting one – indeed, a town meeting on the project reportedly drew hundreds of supporters and no opponents. When the town ultimately was awarded the facility, the local newspaper proclaimed, in a three-inch, red-inked headline, “WE GOT IT!”

For the federal government, recounted Stogner at the HRF event, Oakdale offered a location less costly than its competitors. But advocates suspected from day one that detaining individuals in such a remote location would interfere with individuals’ access to counsel.  The ACLU and Lawyers Committee for Human Rights (the predecessor to Human Rights First) even filed suit to block INS from opening the facility, as the Houston Chronicle reported at the time:

Now, with the center nearing completion on a 30-acre fenced enclosure hardly three miles from City Hall, Oakdale’s rather offbeat crusade would seem a sure thing – except for some meddling New York lawyers.

“The ACLU,” said Oakdale civic booster James Sandefur, accenting each initial of the American Civil Liberties Union the way a civil rights leader might say, KKK.

The ACLU has filed suit in Washington challenging the use of the Oakdale center to house aliens, arguing that the new prison is so far out in the sticks that immigrants would be automatically precluded from justice.

“The problem is that the city of Oakdale, in a rural area of Louisiana, only has five lawyers,” said Arthur Helton, director of the political asylum project of the Lawyers Committee for Civil Rights, which has joined the ACLU in the lawsuit.

Helton, careful to add that “while I’m sure that those five lawyers will do what they can,” said they would be too few to handle the hundreds of political asylum cases the detention center is likely to generate.

* * *

“There is a terrible tragedy in the offing,” Helton said, arguing that if asylum cases are sent to Oakdale, the migrants will be processed and deported without a chance to adequately argue claims that they face political persecution back home.

Helton indicated suspicion that the INS may have picked rural Oakdale for exactly that reason: to avoid the free legal defense apparatus to aid aliens already in place in urban centers like Miami, San Francisco, New York and Houston. [link]

Helton was prescient, describing precisely what ultimately came to pass. (Indeed, above and beyond the lack of access to counsel that Helton predicted, mass transfers of detainees from the places where they were arrested to Oakdale and other facilities in Louisiana have often afforded the government the benefit of substantive legal standards that have been less favorable to the noncitizens’ claims for relief in removal proceedings, as Nancy Morawetz and Human Rights Watch have both documented.) But the ACLU and LCHR lawsuit was dismissed, and Oakdale became a foundational paradigm, of sorts, for what we might understand as an immigration detention variant of the “carceral bargain,” as state, local, and private actors have enthusiastically lined up in hopes of benefiting from the federal dollars that flow in their direction when they contract with ICE to detain noncitizens.

* *

The Obama administration’s detention reforms since 2009 have sought to temper some of these excesses, most notably by limiting the use of remote local jails and building greater detention capacity closer to the places where detainees live and are initially taken into custody. Through these adjustments, ICE hopes to limit the overall extent to which noncitizens are routinely transferred to locations far from their lawyers, families, and other community ties. These changes in ICE’s policies and practices could eventually contribute to greater access to counsel for many noncitizens in removal proceedings. However, as I have argued elsewhere, the immense and growing overall scale of immigration detention and enforcement makes the ultimate success of these initiatives deeply uncertain. Especially given the immense, unfulfilled need for access to quality legal representation for noncitizens – whether detained or not – transforming the political geography of immigration detention, along with its corresponding carceral bargain, remains a long-term challenge.

(Cross-posted at ImmigrationProf Blog.) ]]> http://www.kalhan.com/2012/12/access-to-counsel-political-geography-immigration-detention/feed/ 0 http://www.kalhan.com/2012/11/lessons-from-criminal-justice-reform-for-immigration-detention/ http://www.kalhan.com/2012/11/lessons-from-criminal-justice-reform-for-immigration-detention/#comments Fri, 30 Nov 2012 02:00:37 +0000 Anil Kalhan http://www.kalhan.com/?p=976 (Posted at Dorf on Law)

This fall, I have been privileged to participate as a moderator and panelist in a terrific series of events convened across the country by Human Rights First, Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System. The fourth of these day-long events will be held tomorrow (Friday, November 30) at Loyola University New Orleans Law School. As described on the HRF website:

The Dialogues convene experts, academics, policymakers, practitioners, advocates, and the private bar working in the immigration detention and corrections/criminal justice fields, as well as formerly detained individuals, to share knowledge, experiences, and best practices. We aim to help shift the national conversation on immigration detention, build alliances between stakeholders in both fields, and lay the groundwork for future improvements in policy and practice.

* * *

Although detention in each context occurs under different legal authorities and with different purposes, immigration detention, jails, and prisons together comprise the broader system of mass incarceration in the United States and as such must contend with related concerns. The immigration detention system should not be modeled after the prison system. However, immigration detention stakeholders can learn from the depth of expertise and rich scholarship among criminal justice and prison reform experts. Ultimately, our objective is to secure reforms to the immigration detention system so that immigrants and asylum seekers are not detained unnecessarily and in ways that are inconsistent with human rights standards. [link]

A list of background readings is available here, including a fact sheet on immigration detention in Louisiana. You can also read dispatches from the previous events in Texas, California, and Arizona by HRF Senior Associate Ruthie Epstein, who conceived and organized this event series to follow up on a comprehensive 2011 report documenting a wide range of human rights problems arising from immigration detention.

* * *

In recent years, a growing number of states and localities have undertaken important initiatives to temper the scale and severity of criminal incarceration and pretrial detention, including the expanded use of evidence-based risk assessment tools and alternative forms of pretrial custody; decriminalization of low-level drug offenses; reduction or elimination of sentencing disparities between crack and powder cocaine; elimination of mandatory minimum sentences; expansion of opportunities for earned credit towards periods of imprisonment, parole, and probation; expansion of eligibility for parole by elderly prisoners; and increased use of non-prison sanctions for technical parole and probation violations. Strikingly, despite the longstanding, conventional view that criminal justice reform constitutes one of the many proverbial “third rails” of American politics, many of these initiatives have garnered significant bipartisan support. As David Dagan and Steven Teles write in this month’s issue of Washington Monthly, a growing number of evangelicals and libertarians – perhaps most prominently as part of the Texas Public Policy Foundation’s “Right on Crime” campaign – have joined forces with liberal reformers to advance these initiatives, after “[d]iscovering that the nation’s prison growth is morally objectionable by their own, conservative standards.”

Source: nola.com via Pinterest

In Louisiana, for example – which incarcerates more individuals per capita than any other state, and has been dubbed by state’s own Times-Picayune as "the world’s prison capital" – Gov. Bobby Jindal signed a series of reforms into law earlier this year that, among other things, grants prosecutors discretion to waive mandatory minimum sentences for non-violent, non-sexual offenders; provides an earlier opportunity for certain non-violent, non-sexual repeat offenders to obtain a parole eligibility hearing; allows certain non-violent offenders sentenced to life imprisonment (including life without parole) an earlier opportunity for release; and expands pilot programs designed to facilitate reentry from prison. Among the arguably unlikely proponents of these reforms was Blueprint Louisiana, a civic organization whose leaders draw extensively from the state’s business community and which evidently concluded that criminal justice reform is important to help make the state’s residents “rightly proud to say, ‘I live in Louisiana,’” as the group describes its mission.

For its part, Congress has also adopted bipartisan criminal justice reforms in recent years, enacting both the Prison Rape Elimination Act in 2003 and the Second Chance Act in 2007 with limited if any opposition. Even the Supreme Court has gotten in on the act with its 2011 decision in Brown v. Plata, which upheld by a 5-4 margin a three-judge district court’s order that (notwithstanding the limits imposed by the Prison Litigation Reform Act) California reduce its prison population to remedy conceded Eighth Amendment violations arising from severe prison overcrowding. The Court’s decision was sufficiently significant to prompt Jonathan Simon to contemplate the prospect that it might signal the revitalization of human dignity as a meaningful constitutional value in the United States.

* * *

So how are these criminal justice reform initiatives potentially instructive for efforts to similarly temper the scale and severity of immigration detention? Whether in the criminal justice system or the immigration enforcement context, incarceration is extremely expensive compared to its alternatives, and to a considerable extent, these reform efforts have been driven by fiscal considerations, particularly in the wake of the financial crisis. For example, in signing Louisiana’s reforms into law, Jindal highlighted their importance in “streamlin[ing]” criminal justice processes and making them “more efficient.” At least to date, however, fiscal considerations have not similarly exercised any gravitational pull upon efforts to reform immigration detention and enforcement, since Congress has proven willing to commit additional enforcement resources largely without regard to cost. (Witness, for example, Rep. Lamar Smith’s comments dismissing altogether the relevance of immigration detention’s extraordinary costs during a hearing last year on his bill to expand prolonged and potentially indefinite detention – and doing so at a moment when debate already had been raging over whether Congress should raise the debt ceiling without exacting major reductions in government programs in return.)

More fundamentally, this emphasis on costs has serious potential limitations. As scholars including Sharon Dolovich have cautioned, reform programs based on fiscal constraints and other practical flaws in the prevailing approaches to mass criminal incarceration may not prove durable insofar as they leave intact the underlying logic and ideology of “exclusion and control” that dominates public discourse and criminal justice practices:

[F]or reductions in the prison population to be sustained over the long term, they must be complemented by the provision of effective drug treatment programs, educational and vocational training for those in custody, and assistance for former prisoners seeking to assemble the components of a stable life on the outside (home, job, drug treatment, family reunification, etc.). Otherwise, it is just as likely that many of the people granted early release will eventually reoffend. And when that happens, so long as the mindset of exclusion and control remains undisturbed, their subsequent offenses will be traced, not to the state’s shortsightedness in releasing people from prison in a worse position than when they went in, but to a willful and deliberate refusal on the part of former prisoners to obey the law—a refusal that may only seem all the more galling because undertaken despite the state’s beneficence in granting early release. Even assuming the present fiscal crisis were to generate a contraction in the carceral apparatus, unless there is a fundamental shift in society’s commitments away from exclusion and control as a matter of principle, this contraction would only last until the economy revives. [link]

The uneven staying power of some recent state experiments with expanding early release from prison, as documented by Cecelia Klingele, offers but one example suggesting that Dolovich’s cautionary note is warranted. And such hazards are no less present with efforts to reform immigration detention and enforcement. Indeed, as I have previously argued, the worthy detention reforms undertaken by the Obama administration since 2009 have been hindered by an analogous failure to dismantle the quasi-punitive logic and institutional practices that have emerged in immigration enforcement over the past two decades. Indeed, quite to the contrary, the administration has only reinforced that underlying logic by expanding quasi-punitive enforcement practices to an even greater extent than its predecessors – leaving the ultimate fate of its important and ambitious detention reform project in considerable doubt.

None of this is to suggest that these reform initiatives are not important simply because they have been triggered by fiscal considerations. Dagan and Teles maintain that these recent shifts in the criminal justice reform agenda rest upon far more than simply budgetary concerns. And Dolovich herself fully acknowledges that these recent reform initiatives are indeed “bright spots” that might eventually contribute to the more fundamental paradigm shift necessary to dismantle, in a more durable manner, what she terms society’s existing “carceral bargain.” In fact, Dagan and Teles go much further, contending that these reform initiatives offer more far-reaching lessons on “how bipartisan policy breakthroughs are still possible in our polarized age” across any number of policy areas.

So advocates of criminal justice reform can certainly regard the present moment as one offering legitimate reasons to be hopeful. But for the reasons to which Dolovich draws attention, it remains deeply uncertain whether these nascent reforms will effect a meaningful, politically viable paradigm shift. Whether they offer potentially transferable lessons for other policy domains, including immigration detention and immigration reform more generally, remains even more so. In a subsequent post, I will offer some very preliminary thoughts on whether the current reckoning over immigration reform by leading Republicans – owing to their self-perception of having fallen off the demographic cliff as a political party during the recent election — foreshadows the kind of paradigm shift necessary to transform immigration policy, including detention and enforcement, in a durable, politically sustainable way.

* * *

For those of you able to be in New Orleans, I hope to see some of you tomorrow at Loyola. Judging by the earlier events in the series in Texas, California, and Arizona, the conversations tomorrow in New Orleans should be rich and worthwhile. For those of you unable to attend in person, you can follow along and contribute to the dialogue from afar on Twitter, using the hashtag #HRFDetention.

(A version of this post has been cross-posted at the ImmigrationProf Blog.)

SYMPOSIUM: Building Global Professionalism: Emerging Trends in International and Transnational Legal Education

As the practice of many areas of law — including those conventionally regarded as wholly domestic — has come to have international and transnational dimensions, it has become increasingly important for graduating law students to have greater knowledge and understanding of international, comparative, and transnational legal perspectives as part of their basic legal education. While most U.S. law schools have not traditionally placed these aspects of legal education, legal practice, and the legal profession at the core of their pedagogical missions, a growing number of law schools have sought to more proactively develop the place of these global perspectives in their educational programs. This symposium examines and assesses a series of conceptual and practical themes at the leading edge of these developments, including innovative approaches to integrating international, transnational, and comparative perspectives into the law school curriculum; pioneering methods of bringing these perspectives into experiential and legal methods programs; and critical perspectives on all of these emerging ideas and trends.

Symposium hosted by the Drexel Law Review and the Drexel International Law and Human Rights Society.

Registration information here.

Program and agenda available here.

Watch a live video stream here.

SPEAKERS:

Keynote Speaker:
MARTIN FLAHERTY
Professor of Law and Co-Director, Leitner Center for International Law and Justice, Fordham University School of Law

RAQUEL ALDANA
Professor of Law and Founder and Director, Inter-American Program, Pacific McGeorge School of Law

LARRY CATÁ BACKER
W. Richard and Mary Eshelman Faculty Scholar and Professor of Law and International Affairs, Pennsylvania State University Dickinson School of Law

KERSTIN CARLSON
Assistant Professor of Political Science, The American University of Paris

DIANE PENNEYS EDELMAN
Professor of Legal Writing and Director of International Programs, Villanova University School of Law

JORGE LUIS ESQUIROL
Professor and Director of International and Comparative Law Programs, Florida International University College of Law

KATHERINE HALL
Senior Lecturer in Law, Australian National University College of Law

ANIL KALHAN
Associate Professor of Law, Drexel University Earle Mack School of Law

KIMBERLY KIRKLAND
Professor of Law, University of New Hampshire School of Law

ALANA KLEIN
Assistant Professor of Law, McGill University

HOLNING S. LAU
Associate Professor of Law, University of North Carolina School of Law

VASUKI NESIAH
Associate Professor of Practice, New York University Gallatin School of Individualized Study

FERNANDA NICOLA
Associate Professor of Law, American University Washington College of Law

SARAH PAOLETTI
Practice Associate Professor of Law and Director, Transnational Legal Clinic, University of Pennsylvania Law School

PAMMELA QUINN SAUNDERS
Assistant Professor of Law, Drexel University Earle Mack School of Law

ELISABETH WICKERI
Executive Director, Leitner Center for International Law and Justice, Fordham University School of Law

RICHARD WILSON
Professor of Law, Director of the International Human Rights Law Clinic, American University Washington College of Law

LEIGHANNE YUH
Executive Director, Korea Summer Program, Fordham University School of Law

* *

SCHEDULE:

First Floor

8 a.m. – 8:30 a.m.
Registration & Breakfast

Room 140

8:30 a.m. – 8:45 a.m.
Welcoming Remarks
Dean Roger Dennis; Anil Kalhan

8:45 a.m. – 10:30 a.m.
Models of Internationalization
Larry Catá Backer; Jorge Luis Esquirol; Vasuki Nesiah; Fernanda Nicola

10:45 a.m. – 12 p.m.
Globalizing Experiential Education
Sarah Paoletti; Elisabeth Wickeri; Rick Wilson

12:15 p.m. – 1:30 p.m.
Lunch and Keynote Address
“But for Wuhan?: Do Foreign Law Schools That Operate in Authoritarian Regimes Have Human Rights Obligations?”
Martin Flaherty

1:45 p.m. – 3:30 p.m.
Learning and Working Across Legal Systems
Raquel Aldana; Kerstin Carlson; Alana Klein; Holning S. Lau

3:45 p.m. – 5 p.m.
Global Professionalism
Diane Penneys Edelman; Katherine Hall; Leighanne Yuh

5:00 p.m. – 5:15 p.m.
Closing Discussion
Anil Kalhan; Pammela Quinn Saunders

3rd Floor Gallery

5:15pm – 6:30pm
Reception

* *

When: Fri, Oct 12, 2012, 8:30am

Where: Drexel University Earle Mack School of Law, Rm 140
3320 Market Street, Philadelphia, PA

Dialogues on Detention: Applying Lessons From Criminal Justice Reform to the Immigration Detention System

From Human Rights First:

This fall, Human Rights First’s Public Dialogues Series, Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System, will convene experts, academics, policymakers, practitioners, advocates, and the private bar working in the immigration detention and corrections/criminal justice fields, as well as formerly detained individuals, to share knowledge, experiences, and best practices. We aim to help shift the national conversation on immigration detention, build alliances between stakeholders in both fields, and lay the groundwork for future improvements in policy and practice.

The Dialogues will focus on four issues: conditions of confinement, mandatory detention/mandatory minimum sentencing, alternatives to detention, and access to quality legal representation. Click here for an overview of the series.

The four day-long events will consist of talks and expert panels at our local university partners in Austin, Irvine (California), Tempe (Arizona), and New Orleans. Human Rights First will host a culminating event in early 2013 to bring lessons learned across the country back to Washington, D.C.

Click here for reading materials related to the Dialogues.

Agendas for the Dialogues will be linked below as speakers are confirmed.

• Wed, Sept 12th: The University of Texas at Austin
• Mon, Sept 24th: University of California – Irvine
• Fri, Oct 12th: Arizona State University
• Fri, Nov 30th: Loyola University New Orleans

Register for the events using the form here. For more information, please contact Ruthie Epstein at epsteinr@humanrightsfirst.org.

Applying Lessons From Criminal Justice Reform to the Immigration Detention System

From Human Rights First:

In September and October 2012, Human Rights First’s Public Dialogues Series, Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System, will convene experts, academics, policymakers, practitioners, advocates, and the private bar working in the immigration detention and corrections/criminal justice fields, as well as formerly detained individuals, to share knowledge, experiences, and best practices. We aim to help shift the national conversation on immigration detention, build alliances between stakeholders in both fields, and lay the groundwork for future improvements in policy and practice.

Confirmed speakers for the series include Erwin Chemerinsky (Dean, University of California – Irvine School of Law), Dr. Dora Schriro (New York City Commissioner of Correction), Oren Root (Director of Vera Institute of Justice’s Center on Immigration and Justice), Steve J. Martin (former General Counsel of the Texas prison system), James Austin (corrections management and planning consultant), Ahilan T. Arulanantham (Deputy Legal Director, ACLU of Southern California), Ana Yanez-Correa (Executive Director, Texas Criminal Justice Coalition), Texas State Representative Jerry Madden (R-67), Arizona State Representative John Kavanagh (R-8), and senior ICE officials.

The Dialogues will focus on four issues: conditions of confinement, mandatory detention/mandatory minimum sentencing, alternatives to detention, and access to quality legal representation. Click here for an overview of the series.

The four day-long events will consist of talks and expert panels at our local university partners in Austin, Irvine (California), Tempe (Arizona), and New Orleans. Human Rights First will host a culminating event in early 2013 to bring lessons learned across the country back to Washington, D.C.

Click here for reading materials related to the Dialogues.

Agendas for the Dialogues will be linked below as speakers are confirmed.

• Wed, Sept 12th: The University of Texas at Austin
• Mon, Sept 24th: University of California – Irvine
• Fri, Oct 12th: Arizona State University
• Date TBD: Loyola University New Orleans

Register for the events using the form here. For more information, please contact Ruthie Epstein at epsteinr@humanrightsfirst.org.

Applying Lessons From Criminal Justice Reform to the Immigration Detention System

From Human Rights First:

In September and October 2012, Human Rights First’s Public Dialogues Series, Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System, will convene experts, academics, policymakers, practitioners, advocates, and the private bar working in the immigration detention and corrections/criminal justice fields, as well as formerly detained individuals, to share knowledge, experiences, and best practices. We aim to help shift the national conversation on immigration detention, build alliances between stakeholders in both fields, and lay the groundwork for future improvements in policy and practice.

Confirmed speakers for the series include Erwin Chemerinsky (Dean, University of California – Irvine School of Law), Dr. Dora Schriro (New York City Commissioner of Correction), Oren Root (Director of Vera Institute of Justice’s Center on Immigration and Justice), Steve J. Martin (former General Counsel of the Texas prison system), James Austin (corrections management and planning consultant), Ahilan T. Arulanantham (Deputy Legal Director, ACLU of Southern California), Ana Yanez-Correa (Executive Director, Texas Criminal Justice Coalition), Texas State Representative Jerry Madden (R-67), Arizona State Representative John Kavanagh (R-8), and senior ICE officials.

The Dialogues will focus on four issues: conditions of confinement, mandatory detention/mandatory minimum sentencing, alternatives to detention, and access to quality legal representation. Click here for an overview of the series.

The four day-long events will consist of talks and expert panels at our local university partners in Austin, Irvine (California), Tempe (Arizona), and New Orleans. Human Rights First will host a culminating event in early 2013 to bring lessons learned across the country back to Washington, D.C.

Click here for reading materials related to the Dialogues.

Agendas for the Dialogues will be linked below as speakers are confirmed.

• Wed, Sept 12th: The University of Texas at Austin
• Mon, Sept 24th: University of California – Irvine
• Fri, Oct 12th: Arizona State University
• Fri, Oct 26th: Loyola University New Orleans

Register for the events using the form here. For more information, please contact Ruthie Epstein at epsteinr@humanrightsfirst.org.

Applying Lessons From Criminal Justice Reform to the Immigration Detention System

From Human Rights First:

In September and October 2012, Human Rights First’s Public Dialogues Series, Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System, will convene experts, academics, policymakers, practitioners, advocates, and the private bar working in the immigration detention and corrections/criminal justice fields, as well as formerly detained individuals, to share knowledge, experiences, and best practices. We aim to help shift the national conversation on immigration detention, build alliances between stakeholders in both fields, and lay the groundwork for future improvements in policy and practice.

Confirmed speakers for the series include Erwin Chemerinsky (Dean, University of California – Irvine School of Law), Dr. Dora Schriro (New York City Commissioner of Correction), Oren Root (Director of Vera Institute of Justice’s Center on Immigration and Justice), Steve J. Martin (former General Counsel of the Texas prison system), James Austin (corrections management and planning consultant), Ahilan T. Arulanantham (Deputy Legal Director, ACLU of Southern California), Ana Yanez-Correa (Executive Director, Texas Criminal Justice Coalition), Texas State Representative Jerry Madden (R-67), Arizona State Representative John Kavanagh (R-8), and senior ICE officials.

The Dialogues will focus on four issues: conditions of confinement, mandatory detention/mandatory minimum sentencing, alternatives to detention, and access to quality legal representation. Click here for an overview of the series.

The four day-long events will consist of talks and expert panels at our local university partners in Austin, Irvine (California), Tempe (Arizona), and New Orleans. Human Rights First will host a culminating event in early 2013 to bring lessons learned across the country back to Washington, D.C.

Click here for reading materials related to the Dialogues.

Agendas for the Dialogues will be linked below as speakers are confirmed.

• Wed, Sept 12th: The University of Texas at Austin
• Mon, Sept 24th: University of California – Irvine
• Fri, Oct 12th: Arizona State University
• Fri, Oct 26th: Loyola University New Orleans

Register for the events using the form here. For more information, please contact Ruthie Epstein at epsteinr@humanrightsfirst.org.

The Art of the Profile: Writing About China, One Life at a Time
A discussion in connection with the launch of Chinese Characters: Profiles of Fast-Changing Lives in a Fast-Changing Land (Angilee Shah & Jeffrey Wasserstrom eds., Univ. of California Press, 2012)

SPEAKERS:
Angilee Shah, Journalist and Co-Editor, Chinese Characters
James Carter, Professor of History, St. Joseph’s University

In connection with the launch of the book Chinese Characters: Profiles of Fast-Changing Lives in a Fast-Changing Land, contributor James Carter and co-editor Angilee Shah will discuss everyday life in China today and why it should matter to American readers. Carter is professor of history at St. Joseph’s University in Pennsylvania and his chapter in Chinese Characters looks at the life of a religious figure who has moved between China and the U.S. Shah is a journalist whose work has been featured in LA Weekly, the Far Eastern Economic Review and Mother Jones, among other outlets.

ABOUT THE BOOK:

An artist paints landscapes of faraway places that she cannot identify in order to find her place in the global economy. A migrant worker sorts recyclables and thinks deeply about the soul of his country, while a Taoist mystic struggles to keep his traditions alive. An entrepreneur capitalizes on a growing car culture by trying to convince people not to buy cars. And a 90-year-old woman remembers how the oldest neighborhoods of her city used to be. These are the exciting and saddening, humorous and confusing stories of utterly ordinary people who are living through China’s extraordinary transformations. The immense variety in the lives of these Chinese characters dispels any lingering sense that China has a monolithic population or is just a place where dissidents fight Communist Party loyalists and laborers create goods for millionaires.

Chinese Characters is a collection, as Pankaj Mishra writes in his foreword, “to herald a new golden age of journalism about a ceaselessly fascinating country.” Contributors include a Pulitzer Prize winning journalist, a Macarthur Fellow, the China correspondent to a major Indian newspaper, and scholars whose depth of understanding is matched only by the humanity with which they treat their subjects. Their stories together create a multi-faceted portrait of a country in motion and an introduction to some of the best writing on China today.

Contributors include: Alec Ash, James Carter, Leslie T. Chang, Xujun Eberlein, Harriet Evans, Anna Greenspan, Peter Hessler, Ian Johnson, Ananth Krishnan, Christina Larson, Michelle Dammon Loyalka, James Millward, Evan Osnos, Jeffrey Prescott, Megan Shank, with cover photos by Howard French.

* * *

When: Wed, Sep 19, 2012, 5:15pm

Where: Drexel University Earle Mack School of Law, Rm 240
3320 Market Street, Philadelphia, PA

Reception to follow.

Sponsored by Drexel Law School International Law and Human Rights Society, Drexel Brehons, Drexel American Constitution Society Chapter

Last week, Chicago Mayor (and former Obama White House Chief of Staff) Rahm Emanuel reentered the national political fray, advising Mitt Romney that he should “stop whining” about the attention being given to his record at the helm — or was it “retroactively” not at the helm? I can’t keep track any more — of Bain Capital. Emanuel did not add, but might have, that it was not, after all, as if anyone had sent Romney a dead fish.

That same week, however, Emanuel made an even more consequential, if less widely noted splash with his announcement of the proposed “Welcoming City Ordinance,” which (it has been reported) he may formally introduce at the City Council meeting scheduled for later this morning. The ordinance would clarify and extend existing policies restricting the circumstances under which Chicago police officers may inquire about immigration status during encounters with members of the public:

The ordinance builds on an existing ordinance and longtime City policy that prohibits agencies from inquiring about the immigration status of people seeking City services, and provides that the Chicago Police Department will not question crime victims, witnesses and other law-abiding residents about their legal status. It will now be expanded to ensure that undocumented Chicagoans will only be detained if they are wanted on a criminal warrant by local or federal authorities, if they have been convicted of a serious crime and remain in the United States illegally, or if they are otherwise a clear threat to public safety or national security.

The ordinance provides for CPD training in conjunction with immigrant advocacy groups to build trust within immigrant communities; and the development of public marketing materials that outline the services that law abiding immigrants can safely access in the city of Chicago. CPD will continue to cooperate with federal authorities in investigating and apprehending violent criminals who may be undocumented immigrants. [link]

The proposed ordinance is the latest in a slew of initiatives designed — as Emanuel has repeatedly put it since taking office — to make Chicago the “most immigrant-friendly city” not just in the United States, but “in the world.” (Emanuel discussed his overall vision for immigration in Chicago during an interview with Univision last summer.) In his inauguration address, Emanuel endorsed the Illinois version of the DREAM Act, which was adopted into law later that summer. Soon after taking office, Emanuel also established a new Mayor’s Office for New Americans, an immigrant integration initiative intended to facilitate immigrants’ access to city services and programs by (among other things) improving language access, enhancing opportunities for immigrant small businesses, and increasing the involvement of immigrant parents in Chicago’s schools.

Now, if you had been asked to predict an Obama administration official likely to become a strong champion for immigrant-friendly policies, Emanuel probably would not have been your first choice. While serving in the congressional leadership and the Obama White House, he repeatedly clashed with immigrants’ rights and immigration reform advocates for urging caution on moving forward with comprehensive immigration reform, which he openly characterized as the “third rail of politics.” In fairness, Emanuel’s record on immigration while in Washington was always more nuanced than some critics were prepared to acknowledge. Still, by the time of the 2011 mayoral race, Emanuel had sufficiently disheartened immigrants’ rights advocates with his “terrible” record on immigration to make immigration a significant campaign issue – prompting Representative Luis Gutierrez, a fellow Chicagoan and leading immigration reform advocate in Congress, to blast Emanuel for standing in the way of reform over a period of several years:

“He has not stood up for immigrants. He has not moved comprehensive immigration reform forward. He has not made the right decisions, he has made political decisions,” Gutierrez said. “That’s not what the immigrant community deserves in the next mayor of the city of Chicago.”

Gutierrez considered a run of his own for mayor before deciding to return to Washington and support Gery Chico’s bid for city government’s top spot. [link; video]

But now, a year and a half later, Emanuel and Gutierrez appear to have patched up their differences. Indeed, Gutierrez apparently has been sufficiently satisfied with Emanuel’s record on immigration-related issues as mayor that when Emanuel proposed his Welcoming City Ordinance last week, Gutierrez was there by his side to show his support:

“If the mayor of the city of Chicago is going to work to make Chicago a model city with respect to policy and its treatment of immigrants, then I’m going to stand with that mayor,” Gutierrez told reporters. [link]

At another level, Emanuel’s shift to a more aggressively “immigrant-friendly” stance after coming home again should not be altogether surprising. After all, as mayor, Emanuel has had plenty of other contenders for the title of “third rail of politics,” such as closing police stations to address budget shortfalls. And long before Emanuel assumed office, Chicago could already have staked a strong claim to being the nation’s most “immigrant-friendly” city, and Illinois to being its most immigrant-friendly state.

In recent years, Illinois has been at the national forefront in developing new programs to promote immigrant integration, beginning with former Governor Rod Blagojevich’s “New Americans” initiatives in 2004 and 2005. Moreover, in contrast to states like Arizona, which require employers within their states to use the federal government’s E-Verify pilot program to verify their employees’ work eligibility, in 2007 Illinois sought to prohibit use of E-Verify within the state until concerns about the accuracy, effectiveness, and privacy of the new federal database system could be resolved. Last year, in addition to adopting its DREAM Act, Illinois became the first of several states to attempt to opt out of the federal government’s controversial “Secure Communities” program, which seeks to enlist state and local police in day-to-day federal immigration enforcement activities. Also in 2011, Cook County, in which Chicago is located, adopted an ordinance apparently similar to the one that Emanuel has proposed now, prohibiting county officials from detaining individuals longer than their criminal cases require even if ICE lodges a detainer requesting that they be held beyond such periods of time for immigration enforcement purposes. (For good measure, even CBS’s hit TV show “The Good Wife,” which is set in Chicago, has repeatedly presented the city and its residents in an immigrant-friendly light.)

Although news coverage has emphasized the potential for a clash between Emanuel and his erstwhile colleagues in the Obama administration — who have aggressively championed state and local involvement in immigration enforcement through Secure Communities and other initiatives — Rahmmigration presents an even sharper and more notable contrast with Romneygration. During the primary campaign, Romney embraced, as a “model” for immigration policy, a series of initiatives almost diametrically opposed to those taken by Illinois and Chicago:

In last night’s debate, for example, he was asked about his preferred approach to immigration policy, and Romney responded, “I think you see a model in Arizona.”

* * *

Romney is an inflexible opponent of the DREAM Act; he’s palling around with Pete Wilson and Kansas Secretary of State Kris Kobach; he endorses a “self-deportation” agenda; he’s critical of bilingualism; and his casual dismissals of “amnesty” and “illegals” are a staple of his campaign rhetoric.

Romney, by any reasonable measure, is the most right-wing candidate on immigration of any competitive presidential hopeful in generations. [link]

Ummm, talk about your “dead fish.” To date, Romney appears not to have publicly commented on Emanuel’s proposed ordinance — which is hardly a surprise, given that since becoming the presumptive Republican nominee, Romney has scrupulously avoidedsaying anything non-squishy on the subject of immigration at all. Other immigration restrictionists, however, have taken note of the contrast between Arizona and Illinois. At a hearing before a House subcommittee – held the same morning that Emanuel appeared with Gutierrez in Chicago to announce his proposed ordinance – ICE Director John Morton got an earful from Republican members of Congress pressing the administration to move as aggressively against some of the immigration-related policies being implemented in Illinois as it did against Arizona’s SB 1070 and Alabama’s HB 56. Morton signaled that legal action against Cook County may indeed be on the horizon – in which case action against Chicago might not be too far behind if it adopts Emanuel’s apparently similar proposed ordinance.

Chicago, Cook County, and Illinois are not the only subnational jurisdictions vying to be “anti-Arizonas” on the subject of immigration. In recent weeks, Washington, D.C., has adopted an ordinance influenced by the Cook County ordinance, and the California Senate adopted the TRUST Act, which would establish essentially the same policy on ICE detainers statewide in California. In these jurisdictions and others, a significant impetus for legislation has been concern that ICE — contrary to its stated enforcement priorities — has been using state and local police to target individuals who lack serious criminal records or outstanding warrants, and that the net result has been diminished trust and cooperation with the police among members of immigrant communities.

So is a “showdown” looming between the Obama administration and jurisdictions such as Cook County, Chicago, Washington, D.C., and California? If so, the administration may find itself fighting on a lot of fronts — especially with litigation against Arizona, Alabama, and other enforcement-oriented jurisdictions continuing in the wake of the Supreme Court’s split decision in Arizona v. United States. Moreover, the legal case against laws like the Cook County ordinance hardly seems a slam dunk. Although ICE Director Morton insists that the Cook County ordinance violates federal law, and has referred the matter to the Justice Department to assess measures that might be taken, even an aggressive reading of Arizona v. United States makes that conclusion rather arguable. While 8 U.S.C. § 1373(a) prohibits local governments from “prohibit[ing], or in any way restrict[ing], any government entity or official from sending to, or receiving from [ICE] information regarding the citizenship or immigration status . . . of any individual,” the decision by these state and local jurisdictions not to treat ICE detainers as authorizing longer periods of detention does nothing by itself to inhibit such information exchange. To the contrary, treating ICE detainers as authorizing or, for that matter, requiring detention of individuals for immigration enforcement purposes beyond the period otherwise authorized for criminal law enforcement purposes would appear to raise significant concerns under both the Fourth and Tenth Amendments. (Even in Arizona v. United States, the Court emphasized that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.”) While Morton has also argued that Cook County’s position might jeopardize federal funding to reimburse the cost of detaining non-citizens who are potentially deportable on criminal grounds, the ultimate strength of this legal argument also remains unclear. Perhaps it is no surprise, therefore, that ICE has sought a negotiated resolution of its dispute with Cook County, whose position might be understood — along with those of Chicago, California, and other jurisdictions resisting ICE’s efforts to dragoon state and local governments into federal immigration enforcement matters — as an effort to shape the national debate over immigration policy by engaging in what Heather Gerken has termed “dissenting by deciding.”

These disputes illustrate some of the ways, as I have discussed elsewhere, that traditional assumptions concerning the relationship between immigration and federalism may be incomplete. Traditionally, immigration law has been understood to constrain state and local involvement in the regulation of immigration in part based on the premise — entirely understandable, so far as it goes — that non-citizens are more likely to face hostility, discrimination, or disadvantage at the hands of state or local governments than at the hands of the federal government. While non-citizens may indeed often be vulnerable to hostility or discrimination by state and local government actors, as many conclude to be the case in states like Arizona and Alabama, when the federal government itself has become more aggressive in its regulation of immigration status, such as with programs like Secure Communities, non-citizens have often — contrary to prevailing assumptions concerning immigration and federalism — found greater receptiveness for the protection of rights and liberties in state capitals and local city halls, rather than in Washington.

Understood in this context, the apparent contrast between Congressman and Chief of Staff Rahm Emanuel, the Washington politician avoiding a “third rail” of national politics, and Mayor Rahm Emanuel, the “immigrant-friendly” Chicago politician, seems less remarkable. Perhaps technical legal questions of immigration preemption and immigration federalism also are less important in this context than the ultimate political questions: how will Congress and the President choose to navigate between and respond to the competing impulses of pro-enforcement jurisdictions like Arizona and Alabama, on the one hand, and more “immigrant-friendly” jurisdictions like Chicago, Washington, D.C., and California, on the other, at a time when both sets of impulses to “dissent by deciding” are becoming ever more forceful and assertive?

About the Institute

Now in its third year, the Drexel Summer Theory Institute is a workshop for Drexel students with summer public interest law internships in the greater Philadelphia area. The Institute is modeled after a similar program founded in 2008 by two public interest lawyers, Nisha Agarwal and Jocelyn Simonson, for Harvard law students with public interest internships in New York City. Institute Fellows will meet with the co-conveners one evening each week to discuss works of social and critical theory as they relate to the Fellows’ public interest work. Although the conveners will seek to tailor the readings to the interests of the group, some examples of the kinds of thinkers we might engage with include Pierre Bourdieu, F.A. Hayek, bell hooks, K. Anthony Appiah, and Martha Nussbaum.

The Summer Theory Institute will involve a significant but not overwhelming commitment on the part of the Fellows. The Fellows will be required to attend all ten evening sessions, prepare for each meeting ahead of time, write short response papers to the readings, participate in the discussions, and lead one week’s discussion. We may also arrange joint sessions or events towards the end of the summer in New York or Philadelphia with our counterparts from the Harvard Summer Theory Institute.

The mission of the Institute is to encourage thoughtful public interest practice by providing a space in which students can think critically about and reflect more deeply upon their everyday experiences practicing public interest law, using social theory as a lens through which to do so. Working together to think through the role that social theory can play in legal practice and activism allows the Fellows to engage more meaningfully with their institutions’ methods of pursuing justice on a day-to-day basis. By creating the space to discuss larger theoretical concepts outside of the work environment, the Institute enhances the Fellows’ senses of the potential for intellectual rigor and personal fulfillment in public interest work. The Institute also aims to foster a community of leaders who will bring their enthusiasm for pursuing social change through the law back to the Drexel community at the end of the summer.

No academic credit will be granted for participation in the Institute. If any Fellows are interested in reflecting more formally on the relationship between theory and practice in their summer public interest experiences, the Institute will try to connect them to Drexel faculty who might be willing to supervise larger writing projects for academic credit when they return to the law school.

How to Apply

If you are a 1L or 2L interested in becoming a Fellow in the Drexel Summer Theory Institute, please submit a one page statement of interest by Friday, April 6, 2012. Statements of interest should be emailed to dsti2012 [~at~] kalhan (-dot-) com [please use the following subject header: DSTI 2012 APPLICATION]. In your statement of interest, please explain:

1. Your anticipated (or desired) public interest internship plans for the summer;
2. Any prior public interest experience, both legal and non-legal; and
3. Why you are interested in participating in the Summer Theory Institute.

No prior experience with social or critical theory is necessary to participate. Instead, we are looking for a group of Fellows who are excited about public interest work and open to thinking in innovative and sometimes critical ways about that work.

While we understand that not all students may be able to finalize their summer plans until after the application deadline, all Fellows must eventually secure a public interest internship in the greater Philadelphia area. Fellows must be located in the Philadelphia area for the full ten weeks of the program so that they can attend all ten sessions.

About the Co-Conveners

The 2012 Drexel Summer Theory Institute will be convened and facilitated by Arianna Freeman, Ryan Hancock, and Anil Kalhan.

Arianna Freeman is an attorney with the Capital Habeas Unit of the Federal Community Defender Office for the Eastern District of Pennsylvania, where she represents death-sentenced prisoners in post-conviction proceedings in state and federal court. Prior to joining the Capital Habeas Unit, she served as a law clerk to the Honorable James T. Giles (Ret.) and the Honorable C. Darnell Jones, II, both of the Federal District Court for the Eastern District of Pennsylvania. She is a 2007 graduate of the Yale Law School.

Ryan Allen Hancock is a civil rights attorney with the Pennsylvania Human Relations Commission. Mr. Hancock received his law degree from Rutgers School of Law in 2003 and subsequently clerked in Camden County Superior Court, Criminal Division for two years, after which he joined the PHRC. Mr. Hancock is also the Co-Director of the Philadelphia Chapter of the National Lawyers Guild’s (NLG) Criminal Record Expungement Clinic, Co-Founder of the Rule of Law Institute, and supervising attorney for the University of Pennsylvania Law School’s International Human Rights Advocates (IHRA). Mr. Hancock is also a frequent commentator on discrimination, civil liberties, and the rule of law in Pakistan, and was part of an 8-member NLG delegation which published Defending Dictatorship: U.S. Foreign Policy and Pakistan’s Struggle for Democracy, following their two-week fact-finding mission to Pakistan in January 2008.

Anil Kalhan is an Associate Professor of Law at Drexel University, and has taught immigration law, criminal law, First Amendment, comparative constitutional law, and international human rights law. He is an affiliated faculty member at the South Asia Center at the University of Pennsylvania and serves on the council of advisors for South Asian Americans Leading Together and the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He previously has worked at Cleary Gottlieb, Steen & Hamilton, where he served as co-coordinator of the firm’s immigration and international human rights pro bono practice group, and the ACLU Immigrants’ Rights Project.

Questions

Questions may be directed to dsti2012 [~at~] kalhan (-dot-) com. A list of Fellows from 2010 and 2011 may be found here.

Right in time for Valentine’s Day, the Supreme Court of Pakistan has sent Prime Minister Yousaf Raza Gilani a love letter – in the form of charges for contempt of court.  That handwriting had been on the wall for weeks now, but was sealed with a kiss on Friday, when a bench of the Court led by Chief Justice Iftikhar Muhammad Chaudhry denied Gilani’s appeal to dismiss the contempt notice served upon him last month.  The appeal hearing itself appears to have been a stormy affair, with Chaudhry and other judges reportedly “almost shouting” at Gilani’s lawyer, Aitzaz Ahsan – who happened to serve as the Chief Justice’s own lawyer during the happier days of the lawyers’ movement back in 2007.  “How can you being a senior lawyer write this?” snapped the Chief Justice. “We are very embarrassed by remarks [in your filing].”  He apparently closed the hearing by simply saying, “Sorry, Aitzaz.”  (With great warmth and affection, I am sure.)  If Gilani is convicted of contempt, that almost certainly will disqualify him from serving in Parliament and, therefore, lead to his ouster as Prime Minister.

How did Pakistan find its way to this lovefest? At issue in the contempt case is the government’s unwillingness to fully implement the Court’s 2009 judgment invalidating the National Reconciliation Ordinance, an order promulgated in 2007 by then-President Gen. Pervez Musharraf granting amnesty to thousands of bureaucrats and politicians charged with corruption and other offenses in the years before Musharraf’s 1999 coup.  The NRO was born out of a U.S.-brokered courtship between Musharraf and former Prime Minister Benazir Bhutto in 2007, when the lawyers’ movement was ascendant, Bhutto in self-imposed “exile,” and Musharraf’s own grip on power slipping away.  (Geo TV’s romantic imagining of the Musharraf-Bhutto courtship can be seen here. Rest assured that the video is SFW; Musharraf does not take off his uniform.)  Channeling its inner desi auntie, the Bush Administration was determined to play matchmaker, hoping that by arranging the political marriage of Bhutto to its loyal friend Musharraf, it could help Musharraf stay in power.  But for Bhutto to be willing to return to Pakistan, she wanted Musharraf to drop corruption cases against her and her husband, Asif Ali Zardari, arising from her tenure as Prime Minister during the 1990s.

Needless to say, Bhutto’s leading rival, former Prime Minister Nawaz Sharif, felt rather jilted by these developments – since only the previous year he and Bhutto, along with the leaders of thirteen other civilian political parties, had signed and agreed to the Charter of Democracy, a preconstitutional declaration which explicitly pledged it signatories not to cut side deals with the military that might advance their own political fortunes but undermine democracy by sustaining the military’s political power. (My thoughts at the time about the Charter of Democracy and the Musharraf-Bhutto courtship can be found here and here.) And rather than raise Musharraf’s popularity, Bhutto’s own standing took a tumble.  As it happened, the relationship between Musharraf and Bhutto fell apart, but the NRO became law anyway, granting amnesty to thousands of individuals, including Bhutto, Zardari, and other senior politicians in Bhutto’s Pakistan People’s Party.

Almost immediately, the Supreme Court suspended the NRO’s operation, and eventually – after an extended saga that, to refresh your recollections, included (1) Musharraf’s extraconstitutional state of “emergency”, during which he ousted two-thirds of Pakistan’s superior judiciary, cracked down on political opponents, and purported to amend Pakistan’s constitution to preserve his ability to serve as president, (2) Bhutto’s assassination and Zardari’s ascension to become co-chairman of the PPP, (3) elections in February 2008 which decisively repudiated Musharraf and brought a PPP-led government to power, (4) Musharraf’s resignation, and the ascension of Bhutto’s widower, Zardari, to the presidency, and (5) the new civilian government’s eventual (though fitful) restoration of the judges ousted by Musharraf in March 2009, following continued pressure from the lawyers’ movement and Sharif – eventually, after all of that, the restored Supreme Court issued a final judgment invalidating the NRO in December 2009.  The government has dragged its heels on fully implementing that judgment, balking in particular at the Court’s order to write Swiss officials to reinstate an earlier request seeking assistance in pursuing corruption cases against Zardari under Swiss law – a letter that apparently had been withdrawn, owing to adoption of the NRO.

Now, the Court has become “intellectually emotional” about the government’s refusal to implement its 2009 judgment.  In January, the Court enumerated six “unpleasant” options that it was weighing to address the government’s recalcitrance – ranging from outright disqualification of the President and Prime Minister for violating their oaths of office or the initiation of contempt proceedings against the Prime Minister, at one end of the spectrum, to leaving the matter in the hands of Parliament or the people, at the other.  In between, the Court floated the idea creating a commission to monitor implementation of its order.  The less severe options might have exposed the Court as incapable of fully enforcing its order.  But as a practical matter, the Court faces that prospect anyway, since it seems likely that no matter what it does, there will be no effective effort to revive the proceedings in Switzerland before the applicable limitations period runs.  In that light, perhaps avoiding the smackdown that is about to ensue would have been a good enough reason for the Court to exercise the passive virtues in this instance and instead move on, as human rights lawyer Asma Jahangir has suggested, to take up the “thousands of other pending cases” that will necessarily get put on the back burner because of this soap opera.

For its part, why won’t the government simply write the letter to Swiss officials and put this game of chicken to an end, as Jahangir also has urged?  Formally, the government has argued that it cannot do so because now that he is President, Zardari is constitutionally immune from criminal prosecution.  More likely, the move is simply calculated to protect Zardari from legal exposure – and to at least try to avoid the political hit that would result from going on record to request criminal charges against its own head of state and party co-chairman.  At this point, however, as a practical matter that political hit may be hard to avoid no matter what happens.

So both the government and the Court appear to have staked out the most aggressive positions possible when it’s not entirely clear how much either side will gain in the end from doing so.  And the NRO case is only one of several recent instances in which the Court has been clashing with the government over highly charged political issues – including the Court’s implicit invalidation of Parliament’s constitutional amendments to the judicial appointments process in 2010 and its current investigation into the so-called Memogate scandal, which has put the civilian government directly in the crosshairs of the military.  While the Supreme Court during Chaudhry’s tenure has asserted its autonomy from the military, that has not by any means been the Court’s traditional approach – to the contrary, Pakistan’s superior judiciary has a much longer tradition of acquiescing and validating the military’s extraconstitutional moves to usurp power from civilian rulers.

Placed within that broader context, the Supreme Court’s recent assertiveness raises other issues. In their simplest forms, discussions of “judicial independence” – which of course was the principle repeatedly invoked by the lawyers’ movement in 2007 – tend solely to consider the balance between the judiciary’s autonomy and accountability vis-à-vis the executive and legislature.  As scholars have emphasized, however, a more complete understanding of judicial independence requires attention to that balance across a number of additional dimensions and axes. In Pakistan, that requires attention to the looming, shadowy presence of what Kamran Shafi refers to as the “Deep State” – the security establishment and its network of affiliated interests in the bureaucracy and private sector, which has played a dominant role in Pakistan’s politics, economy, and society under both military and civilian regimes.  Indeed, the underlying discourse that has justified the Court’s aggressiveness in these recent cases – an aversion to “corrupt” and/or “incompetent” politicians in the NRO case, the imperative to protect Pakistan’s sovereignty and security from being undermined by those same politicians in the Memogate case – is entirely continuous with the discourse upon which the military’s own interventions have traditionally been justified.  As Muneer Malik – one of the leaders of the lawyers’ movement in 2007 – said last week, “In the long run this is a very dangerous trend. . . . The judges are not elected representatives of the people and they are arrogating power to themselves as if they are the only sanctimonious institution in the country. All dictators fall prey to this psyche — that only we are clean, and capable of doing the right thing.”

Another lawyer active in the lawyers’ movement, Faisal Siddiqi, similarly argues that by setting themselves up as “arbitrators of democratic righteousness,” the Supreme Court judges are playing a dangerous game:

[W]hat are the consequences of the SC deciding the eligibility of politicians on the intellectually tenuous grounds of dishonesty or being ‘ameen’ or a violation of the latter’s oath? And of disqualifying prime ministers, removing presidents and ordering regime change on other grounds? This order signifies a possible transition from a judicially activist court to one that follows the jurisprudence of a legal empire. This new jurisprudence signifies that it is the SC which will determine what an honest/ameen democratic system should look like. . . .

This possible transition to a legal empire is based on the misleading presumption that the panacea for all major problems facing the democratic system lies in the laws and judicial system. Sadly, neither our history nor a comparative political analysis of other countries proves such a legally biased thesis.

What is required is a strong democratic constitutionalism determined by politics, the law and the legitimate use of force. Yes, action should be taken for contempt but no institution should presume a monopoly over democratic integrity and wisdom.

It is precisely because of the limitations of the law vis-à-vis democratic problem-solving that the judiciary should be self-critical and humble in its approach. [link]

The Court’s defenders respond by noting that even as it has challenged civilian politicians, it simultaneously has been standing up to Deep State interests as well.  And indeed, in recent days the Court has moved forward on two sensitive cases involving the Inter-Services Intelligence Directorate.  Still, many observers are skeptical that the Court will manage to be genuinely evenhanded in its treatment of civilian versus military interests over the longer term.

In the short term, as Omar Waraich notes, the “most immediate victim is likely to be the government’s ability to function”:

[T]he crisis will consume the energies of an already weak, unpopular and shaky government. As survival becomes a priority, other pressing concerns such as Pakistan’s crucial fight against militancy, its faltering economy, and its desperate energy shortages will be neglected. [link]

And in the meantime, the Deep State can just bide its time.  Pakistan has not been showing the military much political love in the last few years, but if Parliament and the Supreme Court continue to beat each other up, the military’s political fortunes could of course change rapidly – just as they did between 1971 and 1977.  As Siddiqi warns:

It would be a constitutional tragedy if the path leading to the weakening of the present presidency and this PPP government also leads to the unintended consequence of the strengthening of the unconstitutional powers and role of the military establishment. If that happens, it will be of little constitutional significance as to who is to blame. [link]

However weak the military might seem on the surface right now, the Deep State’s tentacles run, well, deep. If Pakistan’s politicians and judges are unable to fashion a workable modus vivendi to consolidate democracy and constitutionalism, in the same spirit as the Charter of Democracy, there’s certainly no guarantee that the country won’t eventually find itself caught in a bad romance with military rulers once again.

Civil Liberties Ten Years After 9/11

A symposium co-sponsored by the Justice Action Center, the American Constitution Society, and the Federalist Society.

Friday, September 9, 2011
10:00 a.m.–5:00 p.m
(Registration begins at 9:00 a.m.)
New York Law School, Events Center
185 West Broadway, New York, NY 10013

Hosted by the Justice Action Center at New York Law School and the New York Law School Law Review.

If you have any questions, please contact Lisabeth Jorgensen at Lisabeth.Jorgensen@law.nyls.edu.

REGISTRATION AND CONTINUING LEGAL EDUCATION

Admission to the Symposium is free for NYLS faculty, staff, students and alumni, and for non-NYLS students with school I.D. General admission is $25.00 for non-students who are not affiliated with NYLS.

This CLE program has been approved for a maximum of six hours of CLE credit in professional practice for both transitional and non-transitional attorneys. New York Law School offers tuition assistance for attorneys who may have difficulty attending CLE events due to cost considerations. Click here to see if you qualify.

To register, please click on the following link or copy and paste it into a separate browser window: https://nyls.wufoo.com/forms/civil-liberties-10-years-after-911/

CONFERENCE SCHEDULE

9:00 a.m.–10:00 a.m.
Registration
Continental Breakfast, Registration, and Opening Remarks

10:00 a.m.–Noon
Panel 1: Separation of Powers: The Roles and Inter-Relationships of the Executive, Legislative, and Judicial Branches since 9/11
2 CLE credits available in Professional Practice

This panel will discuss the appropriate scope of and limits on the powers of each branch of government since 9/11, including specific exercises of power by each branch that some have criticized as violating the Constitution’s checks and balances.

• Moderator: Linda Greenhouse, Yale Law School; Columnist, The New York Times
• David Cole, Georgetown Law School
• Richard Epstein, New York University School of Law; The Hoover Institution; University of Chicago Law School
• Peter Shane, Ohio State University Moritz College of Law
• Vince Warren, Executive Director, Center for Constitutional Rights
• John Yoo, University of California, Berkeley Law School; Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice 2001–03)

Noon–2:30 p.m.
Panel 2: National Security and Civil Liberties: A Decade of Striking a Delicate Balance, or a False Choice?
Lunch will be available starting at noon
2 CLE credits available in Professional Practice

This panel will address not only the overarching (alleged) tensions between liberty and security, but also specific measures that the government has implemented since 9/11 that affect particular civil liberties as well as the rights of particular groups of individuals.

• Moderator: Caroline Fredrickson, Executive Director, American Constitution Society
• Muneer Ahmad, Yale Law School
• Jamil N. Jaffer, Senior Counsel, House Intelligence Committee; Associate Counsel to the President, White House, 2008–09; Counsel to the Assistant Attorney General, National Security Division, U.S. Department of Justice, 2007–08
• Anil Kalhan, Drexel University Earle Mack School of Law
• Sigal Mandelker, Proskauer Rose LLP; Deputy Assistant Attorney General, U.S. Department of Justice, Criminal Division 2006–09
• Joanne Mariner, Director, Human Rights Program, Roosevelt House Public Policy Institute, Hunter College
• Geoffrey Stone, University of Chicago Law School

2:30 p.m.–4:00 p.m.
Panel 3: Courts, Accountability, and Justice: Forums for Assuring that Justice Is Served
This panel will begin immediately after lunch is cleared and may start as early as 2:00 p.m.
2 CLE credits available in Professional Practice

This panel will discuss efforts to bring to justice individuals who have been accused of responsibility for the 9/11 attacks and other actual or planned acts of terrorism, as well as government and military officials and their contractors who have been accused of abuses. It will consider the appropriate judicial and non-judicial forums and procedures for ensuring that those who are responsible for acts of war, crimes, and abuses of power will be held accountable, consistent with principles of fairness and justice, and that those unjustly accused are exonerated.

• Moderator: Chief Judge Dennis Jacobs, Chief Judge, U.S. Court of Appeals for the Second Circuit
• Michael Chertoff, Covington & Burling LLP; Secretary of the Department of Homeland Security 2005-09
• Eugene Fidell, Yale Law School; President, National Institute of Military Justice
• Martin Flaherty, Fordham Law School; Princeton University
• Andrew McCarthy, Co-Chair, Center for Law and Counterterrorism; Assistant U.S. Attorney for the Southern District of New York 1993–96
• Anthony Romero, Executive Director, American Civil Liberties Union

4:00 p.m.–5:00 p.m.
Wine and Cheese Reception

Up to one quarter of the world’s population is estimated to be landless, including 200 million people living in rural areas. For many of these people, the condition of landlessness threatens the enjoyment of a number of fundamental human rights. Access to land is important for development and poverty reduction, but also often necessary for access to numerous economic, social and cultural rights, and as a gateway for many civil and political rights. However, there is no right to land codified in international human rights law. This article, which was originally written as a briefing paper for the “Forum on Land, Business, and Human Rights” convened in Manesar, India by the Institute for Human Rights and Business in June 2009, provides a brief overview of the legal implications of access to land for a broad range of human rights. Land is a cross-cutting issue, and is not simply a resource for one human right in the international legal framework. Rights have been established in the international legal framework that explicitly relate to land access for particular groups, such as indigenous people and, to a more limited extent, women. In addition, numerous rights are affected by access to land, including the rights to housing, food, water and work, and general principles in international law also provide protections relating to access to land, such as equality and nondiscrimination in ownership and inheritance.

Full article available here….

9/11/2001-9/11/2011 — A Decade of Advocacy: A Practical Lawyering Perspective

Sponsored by the Drexel University Earle Mack School of Law, American Constitution Society – Drexel Chapter, Drexel International Law and Human Rights Society, Drexel Middle Eastern Law Students Association, National Lawyers Guild – Drexel Chapter, Drexel Philosophy Club

Panelists:

Deepa Iyer
Executive Director, South Asian Americans Leading Together

Deepa Iyer is the Executive Director of South Asian Americans Leading Together (SAALT), a national, non-profit organization in the Washington DC area. Iyer has guided SAALT’s direction on policy advocacy, programs and partnerships since 2004. An attorney by training, Iyer has previously worked at Asian American legal organizations as well as the Civil Rights Division of the U.S. Department of Justice, where she addressed the post-September 11th backlash facing South Asian, Muslim, Sikh and Arab American communities. Regarded as an expert on the impact of September 11th on immigrants and minority communities, Iyer is the Executive Producer of a documentary on hate crimes, has written extensively on the post 9/11 backlash, and taught classes at Columbia University, Hunter College and the University of Maryland. Most recently, she is the guest editor of Race/Ethnicity, a journal on the 10-year anniversary of September 11th which is forthcoming from the Kirwan Institute for Race and Ethnicity at Ohio State University in August 2011. For her work around 9/11 issues, Iyer has received community leadership awards from the Asian Pacific Institute for Congressional Studies (APAICS) and Chhaya CDC. Iyer serves as Vice Chair of the National Council of Asian Pacific Americans and on the Board of Directors of the Applied Research Center.

Moein Khawaja
Executive Director, Council of American-Islamic Relations of Pennsylvania

Moein Khawaja was born and raised in Springfield, IL and has a Bachelor’s degree in Psychology from the University of Illinois. His extensive activism experience began during his undergraduate years at the University of Illinois. Along with substantial involvement with the Muslim Students Association at the University of Illinois, Moein developed the first CAIR chapter for a university and an extensive leadership training program. He also facilitated the logistics of the MSA-national Central Zone Conference and was an intern at the Environmental Protection Agency. For his work, he earned the Illinois Leadership Certificate. In addition to owning and managing a small contracting business, Moein devoted a considerable amount of time in 2008 to the Barack Obama Presidential campaign as a volunteer coordinator. Moein is currently a fellow at the American Muslim Civic Leadership Institute, a program of the University of Southern California Center for Religion and Civic Culture. In September 2009, he was hired as CAIR-PA’s new Civil Rights Director, and began in his capacity as Executive Director in May 2010. Through CAIR, Moein is dedicated to protecting the rights of all Americans and to promote the understanding and integration of Islam into the American experience.

Mary Catherine Roper
Staff Attorney, American Civil Liberties Union of Pennsylvania

Mary Catherine Roper is a staff attorney at the American Civil Liberties Union of Pennsylvania’s Philadelphia Office, where she coordinates litigation on a broad range of civil liberties issues, including freedom of speech, religious liberty, racial and ethnic justice, equality for lesbians and gay men, student rights, privacy, prisoners’ rights and police misconduct. Prior to joining the ACLU, Mary Catherine was a partner in the firm of Drinker Biddle and Reath, where she was well known for her commitment to pro bono work. Mary Catherine is a graduate of Bryn Mawr College and the University of Pennsylvania Law School. After law school, she clerked for the Honorable Anita B. Brody of the United States District Court for the Eastern District of Pennsylvania and served a year with the Disabilities Law Project as the first recipient of the Philadelphia Bar Foundation Public Interest Fellowship.

* * *

When: Wed, Sep 7, 2011, 5:00pm

Where: Drexel University Earle Mack School of Law, Rm 140
3320 Market Street, Philadelphia, PA

Reception to follow.

Born in 1929, Mr. Kannabiran obtained master’s degree in Economics and a degree in law from the Madras University before shifting to Hyderabad to set up legal practice in 1961. Since the late 1960s, he began to defend political dissenters that eventually marked the beginning of his over three-decade-long civil liberties and human rights work.

He was the president of Andhra Pradesh Civil Liberties Committee between 1978 and 1994 and went on to become the national president of People’s Union for Civil Liberties (PUCL).

* * *

He was a member of Concerned Citizen’s Tribunal that inquired into the Gujarat carnage. Earlier, he was appointed as senior counsel by the CBI in the prosecution of the accused in the Shankar Guha Niyogi murder case in Madhya Pradesh.

During the Emergency, he defended numerous political detainees and appeared in four major conspiracy cases — three of them in Andhra Pradesh — that had been filed to suppress political dissent.

In 1971, he filed a writ petition successfully challenging the Andhra Pradesh Preventive Detention Act, 1970, under which writers, poets and intellectuals had been arrested. [The Hindu]

Many of Kannabiran’s writings are collected in a 2004 book, “The Wages of Impunity: Power, Justice and Human Rights.”  His funeral was conducted “quietly” soon after he passed away, as his wife, Vasanth Kannabiran, explained in a guest post on Kafila:

As per his wishes and ours, and based on previous discussions we declared that the last rites would be simple, speedy and secular. The secular part we ensured. There were no flowers, no lamps, no mantras, no ceremonies. But the clamour for progressive “traditions” was what I found troubling in the extreme. In doing away with religious orthodoxy, all we have done is replaced it with other orthodoxies….

We all need symbols and some reassurance. But the slogans we raise however loud and clear – can Kanna hear them? Will they, like the traditional mantras, take his soul to heaven? Who are we reassuring? Why are we afraid of silence? Why are we making our radical orthodoxies more rigid and meaningless than the reactionary ones? What is reactionary and what is radical? Why are we in such haste to raise monuments to the people we love? If Kannabiran cannot live in the hearts of people, are tributes and memorials going to bring him to life? To be loud in praise is easy. It dies out in a moment….

* * *

Instead of recreating the dead man in imaginative ways that would bring him alive to the public that loved him, we would rather show the dreary details of his funeral. How many people? How many placards? How many organizations? … It is not enough to write obituary pieces and hold meetings without any reflection of our conduct and attitudes.

The dead need no reification. Kannabiran was the voice of the poor. He never projected himself. He never needed to. [Kafila]

Here are a handful of remembrances reflecting upon Kannabiran and his work. Continue reading at SAJAforum…

One year ago this month, the Obama administration announced ambitious plans to overhaul the immigration detention system, based on a comprehensive review conducted for Immigration and Customs Enforcement (ICE) officials by detention and corrections expert Dora Schriro. How has the administration fared in implementing these reforms?

First, some background, drawing from my recent piece in the Columbia Law Review Sidebar. Since the mid-1990s, the number of individuals in immigration detention has skyrocketed, fueled by enforcement policies that subject ever-larger categories of noncitizens to removal charges and custody – most notably individuals alleged to be removable on many criminal grounds, which now include a sweeping array of offenses, both serious and minor. Many of these individuals have been deemed ineligible for the individualized bond hearings to which individuals ordinarily are entitled, and have therefore been categorically detained without regard to whether they present any flight risk or danger. Immigration officials now spend over $1.7 billion each year to run the “largest detention system in the country,” holding nearly 400,000 individuals per year in a sprawling network of hundreds of federal, state, local, and private facilities nationwide.

With the onset of this vast system of mass immigration detention, longstanding detention-related problems have not simply persisted, but have widely proliferated. Literally dozens of reports within the last three years alone by advocates and government agencies have documented serious and widespread detention-related concerns, including overly restrictive and severe forms of custody, abusive and inadequate detention conditions, lack of access to counsel and family members, lack of adequate medical and mental health care services, sexual harassment and abuse, frequent and large-scale transfers of detainees between facilities, and prolonged and indefinite detention.

In her report, Schriro confirmed important aspects of this picture. She emphasized that although immigration detention is a civil form of custody, not criminal punishment, the facilities, personnel, and standards used to hold immigration detainees all inappropriately draw from criminal justice models, causing most immigration detainees to be held – systematically and unnecessarily – under overly severe and restrictive circumstances that are inappropriate to their status as civil detainees. In response to Schriro’s report, the Obama administration pledged reforms intended to overhaul and reconstruct this quasi-punitive detention regime – which might be termed a system of “immcarceration” – into what one official characterized as a “truly civil detention system.”

So one year later, how’s that hopey changey, “truly civil” stuff working out for ya?

Well, as immigrants’ rights advocates acknowledge, the Obama administration can point to a few significant changes in policies and practices, including the creation of an online detainee locator system designed to prevent individuals from “disappearing” in the detention system altogether and the restoration of an earlier policy encouraging parole and release from detention of arriving asylum-seekers who present neither a flight risk nor any security threat. Officials have also taken initial steps to expand “alternatives to detention” and to detain some individuals in less restrictive settings, based on more refined and particularized determinations of the risks presented by individuals subject to immigration custody.

Nevertheless, despite an apparently sincere commitment by senior officials to make detention conditions more humane, implementation of these reform initiatives has proceeded rather sluggishly. Conditions of confinement are not the only factor contributing to detention’s excessiveness, and at least so far the administration’s efforts leave intact a range of other practices that contribute to the excessive and quasi-punitive nature of detention for many noncitizens. Moreover, while one certainly shouldn’t expect transformational change to happen overnight, as advocates have documented large numbers of noncitizens continue to be detained – often for prolonged periods of time – under abusive and improperly punitive conditions:

Immigrant advocates nationwide continue to report widespread due process and human rights violations, including the overreliance on incarceration, mistreatment by guards, denial of access to legal service providers, inadequate medical care, misuse of solitary confinement, and discrimination against sexual minorities. These violations demonstrate that the commitment to reform made by ICE leadership has yet to have any substantive impact on the ground. Further, the actual or perceived fear of retaliation expressed by detained immigrants and advocates alike during the fact-finding stage of this report reiterate the urgent need for ICE leadership to strongly reinforce its detention reform policies among agents, personnel, and private contractors working in the field. . . .

Oversight, transparency and accountability are critical to achieving reform, and yet these are the weakest features of the reform process thus far. Over the past year ICE appointed regional detention managers and created a Detention Monitoring Council at ICE headquarters. However, despite these changes, there is little evidence that ICE leadership’s intention to improve oversight practices and precipitate a cultural shift within the agency has been meaningfully achieved . . . . [link]

There’s an even more fundamental dilemma, however, standing in the way of the Obama administration’s detention reform aspirations. While the administration has pledged to make the circumstances of detention civil and non-punitive, it simultaneously has demonstrated a clear commitment to expanding its predecessors’ aggressive, quasi-punitive interior immigration enforcement policies more generally – policies which reinforce a broader convergence between immigration and criminality in law and public discourse. ICE officials have long made clear that notwithstanding their proposed detention reforms, mass immigration detention will continue “on a grand scale.” And sure enough, just last week Homeland Security Secretary Janet Napolitano proudly announced that the Obama administration had deported more individuals than any other administration in U.S. history – facilitated most notably by aggressively expanding efforts, such as the so-called “Secure Communities” program, to enlist state and local law enforcement in the large-scale identification of potentially deportable non-citizens. Even though the majority (and fastest growing group) of individuals detained and deported through these expanded enforcement initiatives – as Schriro herself noted in her report – have either no prior convictions or relatively minor criminal histories, officials have gone to great lengths to emphasize that many of these individuals have been deported on account of prior criminal convictions.

In this context, the administration’s detention reform initiatives are in deep tension with its overall approach to immigration control and interior enforcement. With a rapidly increasing number of potential detainees identified through programs such as Secure Communities, the government will face mounting pressures not only to hold even more noncitizens in its custody, but to do so at minimal cost. And by reinforcing the convergence between immigration and criminality in public discourse, the administration has made itself increasingly vulnerable to attacks – such as the scathing “vote of no confidence” recently leveled by the ICE detention officers’ union – over any initiatives that would devote time, energy, and not least money to making detention more humane and less punitive and severe.

One overall result has been a pattern of reactions that echo the “confusing and deeply contradictory” criticisms that the Obama administration faces in other policy areas: “[Obama] is a liberal zealot, in the view of the right; a weak accommodationist, in the view of the left.” The administration finds itself even further mired in that purgatory by its unwillingness or inability to move forward on comprehensive immigration reform – an initiative which could, depending on how it were crafted, help begin to roll back the decades-long convergence between immigration and crime control in law, policy, and public discourse. While congressional dysfunction and other legislative priorities obviously have played major roles in the inability to enact major immigration reform legislation, the Obama administration even appears unwilling to use its considerable administrative powers to move immigration policy in its preferred direction.

One could, with Edward Alden, conclude that the combination of detention conditions reform, on the one hand, and aggressive interior enforcement, on the other, show that “it’s possible to be tough without being unfair and inhumane.” However, absent a broader reconsideration of immigration control policies that are premised upon convergence with criminal enforcement – and some efforts to move forward on more fundamental immigration reform – the inherent tensions between those two sets of initiatives make it likely that the administration’s ever-increasing “toughness” will undermine any meaningful efforts to show “fairness” and “humanity” when it comes to immigration detention.

Via Climate Progress:

[T]he big new Time magazine cover story for their European, Asian, and South Pacific editions, Through Hell And High Water, doesn’t make the cut for the U.S. edition’s cover (as the screen capture [below] shows).  In fact, can someone tell me if it made the print edition at all, since I can’t find the story in the table of contents?

Equally significant, the Time story itself never mentions the link to climate change or global warming at all, even though it is pretty basic physics…. [link] 

What does in fact “make[] a school great,” you ask?  You won’t find this in TIME Magazine, but at least according to a pair of reports [one, two] reprinted on the Asia Society website back in September 2008, it is “crucial” for U.S. schools to improve students’ development of “international knowledge and skills.” Ahem.

[HT: Manan Ahmed]

Related post on SAJAforum: NATURAL DISASTERS: How you can help the Pakistan flood victims

The recent floods caused by torrential monsoon rains have affected as many as 14 million people in Pakistan, more than the combined total of the 2004 Indian Ocean tsunami, the 2005 Kashmir earthquake and the 2010 Haiti earthquake. The area affected equals the size of the State of Florida.

Please join the South Asian Bar Association of New York (SABANY) and help with the flood relief efforts in Pakistan. $10 minimum donation. Cash only or checks only. *This is not open bar.*

All proceeds will be donated to Relief4Pakistan:

Relief4Pakistan is a grassroots donation campaign designed in response to the deadly floods in Pakistan and the millions impacted. The campaign is a partnership between Pakistani Peace Builders, a new initiative of Pakistani-Americans and concerned global citizens, and ML Resources Social Vision, a private venture philanthropy dedicated to supporting innovative organizations and initiatives with expected high social returns.

Relief4Pakistan aims to centralize donations toward the emergency first response relief efforts in Pakistan in order to maximize impact. By directing funds to Mercy Corps, you can be part of a large and effective campaign to support relief efforts on the ground and raise much-needed public awareness of the large-scale disaster that is rapidly unfolding.

Why Mercy Corps?

Both Pakistani Peace Builders and ML Social Vision deliberated over which of the numerous organizations that are currently operating in Pakistan (all of whom are doing incredible work) should be the recipient of our efforts. After an enormous amount of thought and due diligence, Mercy Corps was chosen as a vehicle to assist those is need in Pakistan. Our selection was made based on the organization’s transparency, efficiency, and previous efforts in Pakistan.

Currently, there is an urgent need for food, shelter and clean water and Mercy Corps staffers are on the ground in Pakistan working to provide clean water, staple foods and clean-up tools for affected families. Mercy Corps’ efforts at this time are concentrated in the Swat Valley and the Sindh Province (where Mercy Corps’ team is assessing the specific needs), two of the most affected areas in this disaster.

Mercy Corps demonstrates both transparency and efficiency in their aid efforts, and is able to respond quickly to emergencies, working with local organizations and communities in Pakistan for a more sustained and strategic impact.

Who is Mercy Corps?

Mercy Corps is a global aid agency that focuses on disaster response, sustainable economic development, health services, and emergency and natural disaster relief. The organization exists to alleviate suffering, poverty, and oppression by helping people build secure, productive, and just communities.

Mercy Corps is known and respected for its expertise in responding to global emergencies such as this one, as well as its long-term commitment to Pakistan. It has been working in Pakistan since the Afghan Refugee crisis in 1986 and has played a key role in relief and recovery efforts during both the 2006 earthquake and the 2009 Internally Displaced Person (IDP) crisis.

Mercy Corps has long been recognized as an excellent steward of the resources entrusted to it. Over the last five years, Mercy Corps has used 88 percent of their resources for programs that help people in need. According to their website, “ensuring that resources are wisely spent is the cornerstone of our values, vision, and strategy for growth in the future.”

* * *

Gstaad, 43 West 26th StreetDATE: Monday, September 13, 2010
TIME: 7:00-10:00pm
LOCATION: Gstaad, 43 W 26 St, New York, NY 10010
DONATION: $10 minimum donation. Cash only or checks only. *This is not open bar*

* * *

About SABANY:

The South Asian Bar Association of New York (SABANY) is an organization of South Asian attorneys practicing in the New York City metropolitan region. SABANY is dedicated to the needs, concerns, and interests of lawyers of South Asian heritage. We are committed to promoting the professional development of the South Asian legal community through networking, advocacy, and mentoring. Each year we host panels, CLE courses, and workshops on career development, social justice issues, and current events. We also organize monthly networking events, a Public Interest Fellowship Benefit, and a Leadership Awards Gala. SABANY is dedicated to ensuring the civil liberties of the South Asian community in New York, by acting as a conduit between the South Asian community and legal services and educational programs in the area. It is our goal to educate South Asian Americans about their legal system and to encourage more participation by our community in the legal profession.

Marc Galanter
“Whither Indian Law? Impending Changes and Possible Futures”

Sponsored by the Drexel University Earle Mack School of Law, the University of Pennsylvania South Asia Center, the University of Pennsylvania Center for the Advanced Study of India, and the Drexel Law Review

Marc Galanter, the John and Rylla Bosshard Professor of Law and South Asian Studies at the University of Wisconsin – Madison and LSE Centennial Professor at the London School of Economics and Political Science, studies litigation, lawyers, and legal culture. He is the author of a number of highly regarded and seminal studies of litigation and disputing in the United States (including “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” one of the most-cited articles in the legal literature. His work includes pioneering studies on the impact of disputant capabilities in adjudication, the relation of public legal institutions to informal regulation, and patterns of litigation in the United States. He is also co-author of Tournament of Lawyers (with Thomas Palay, 1991) which is widely viewed as the most robust explanation of the growth and transformation of large law firms.

He is an outspoken critic of misrepresentations of the American civil justice system and of the inadequate knowledge base that makes the system so vulnerable to misguided attacks.

Much of his early work was on India. He is recognized as a leading American student of the Indian legal system. He is the author of Competing Equalities: Law and the Backward Classes in India (1984, 1991) and Law and Society in Modern India (1989, 1992). He is an Honorary Professor of the National Law School of India, served as advisor to the Ford Foundation on legal services and human rights programs in India, and was retained as an expert by the government of India in the litigation arising from the Bhopal disaster. He is currently engaged in research on access to justice in India.

A leading figure in the empirical study of the legal system, he has been editor of the Law & Society Review, President of the Law and Society Association, Chair of the International Commission on Folk Law and Legal Pluralism, a Guggenheim Fellow, and a Fellow of the Center for Advanced Study in the Behavioral Sciences. He is a member of the American Law Institute and a Fellow of the American Academy of Arts and Sciences. He received degrees in philosophy and law from the University of Chicago. In addition to the University of Wisconsin and the London School of Economics, he has taught at Chicago, Buffalo, Columbia, and Stanford.

* * *

When: Tue, Aug 31, 2010, 4:15pm

Where: Drexel University Earle Mack School of Law, Rm 240
3320 Market Street, Philadelphia, PA

Reception to follow.

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated – to the point where some commentators resist the very term “detention” in this context as sanitized and misleading, masking quasi-punitive circumstances that approximate criminal “incarceration” or “imprisonment.” If convergence of immigration control and criminal enforcement more generally has given rise to a system of crimmigration law, as some observers maintain, then perhaps excessive immigration detention practices have evolved into a quasi-punitive system of immcarceration.

A recent report by Dora Schriro, a senior Homeland Security official, gives official imprimatur to crucial aspects of this picture, acknowledging explicitly that most detainees are – systematically and unnecessarily – held under circumstances inappropriate for immigration detention’s noncriminal purposes. In response, the Obama Administration has pledged reforms to reconstruct this regime as a “truly civil detention system.” This essay considers the possibilities and limits of these initiatives, which target excessive conditions of confinement but leave other excessive practices intact. Notwithstanding these proposed reforms, the expansion of existing enforcement initiatives means that the government will continue to detain noncitizens, in the words of its own head of Immigration and Customs Enforcement, “on a grand scale” – which may constrain its ability to dismantle many of the detention regime’s quasi-punitive features. While excessive detention conditions may well be tempered for many individuals, large-scale immcarceration seems here to stay for the foreseeable future.

Full article available here….

Guest Editor’s Preface
by: Anil Kalhan | download this article (pdf)

This symposium issue of the Drexel Law Review marks the anticipated launch of a new section on Law and South Asian Studies of the Association of American Law Schools, including several contributions that were initially presented during a session of the proposed section at the AALS Annual Meeting for 2010. The proposed AALS section comes at a moment of heightened interest in the region among lawyers, policymakers, and the public at large in the United States, and is part of a rapidly growing constellation of scholarly initiatives on law in South Asia that have emerged internationally in recent years.

Foreword: World of Our Cousins
by: Marc Galanter | download this article (pdf)

Most of the people who live under some version of the common law today live in South Asia, as do a large portion (perhaps a majority) of those who live under a working constitutional democracy. Nevertheless, until very recently this part of our world was quite invisible to the American legal academy and profession. It is a pleasure to introduce this symposium, apparently the first of any mainstream American law review to focus on South Asian law. Its appearance is one of several markers that the neglect of South Asia by American law schools is being left behind.

The Substance of the Constitution: Engaging with Foreign Judgements in India, Sri Lanka, and South Africa
by: Shylashri Shankar | download this article (pdf)

The last two decades have seen an expansion of judicial power in developing and newly democratizing countries across the globe. The enhanced role for the judiciary, which some scholars have categorized as a “juristocracy,” has accompanied a dialogue or at least a tendency for judges to look beyond their national borders at other courts for assistance in resolving difficult national, legal, and political disputes. The Supreme Court of Pakistan has drawn on the rationale of India’s apex court to support public interest litigation, while India’s courts have referred to judgments from South Africa, the United States, Canada and the European Convention on Human Rights (ECHR) to argue for a right to life with dignity. Such engagement with foreign laws has provoked criticism from influential judges like Justice Antonin Scalia of the U.S. Supreme Court for eroding national sovereignty and even imposing foreign interpretations on culturally contextual national issues.

No Justice, No Peace: Conflict, Socio-Economic Rights, and the New Constitution in Nepal
by: Elisabeth Wickeri | download this article (pdf)

One day after the signing of the November 21, 2006 Comprehensive Peace Accord (CPA) between the Nepali government and the Communist Party of Nepal (Maoist), Kathmandu’s The Himalayan Times editorial board declared, “Nepal has entered into a new era of peace, democracy and governance.” The CPA formally ended the more than ten-year conflict waged by Maoist insurgents since 1996. Over the next thirteen months, a new interim constitution was adopted, the royal family’s property was nationalized, and a republic was declared, dissolving the world’s last Hindu royal kingdom. National elections were held the following year. For hundreds of thousands of Nepalis, peace was a welcomed change. In the southern plains and hill regions, where much of the guerilla fighting had been concentrated, farmers were finally able to return to work.

Uterine Prolapse and Maternal Morbidity in Nepal: A Human Rights Imperative
by: Payal Shah | download this article (pdf)

In 2008, the Supreme Court of Nepal recognized what maternal health advocates in Nepal had known for decades: the status of reproductive health of women in Nepal is in a serious state, and it is also clear that no plan has been made to address this problem. In the present context, there are approximately six hundred thousand women suffering from the problem of uterus prolapse and it is also evident that no preventive or remedial programs focusing on problems relating to reproductive health and uterus prolapse have been initiated. The Supreme Court’s proclamation in this case, Prakash Mani Sharma v. Government of Nepal (Sharma), marked the first time that a legal body, international or national, has recognized explicitly that a high incidence of uterine prolapse may constitute a violation of human rights, including specifically women’s reproductive rights.

The Jammu and Kashmir State Subjects Controversy of 2004
by: Sehla Ashai | download this article (pdf)

In 2004, the Jammu and Kashmir Legislative Assembly passed the Jammu and Kashmir Permanent Residents Disqualification Bill (the “Disqualification Bill”), which proposed that women who married nonstate subjects could no longer claim state subject status and would thereby lose both preferential treatment in government hiring and the ability to acquire new property in the State. Various political actors decried the Disqualification Bill’s violation of Kashmiri women’s fundamental rights under the Indian Constitution, while proponents of the Disqualification Bill issued apocalyptic pronouncements about the end of constitutionally guaranteed autonomy for Jammu and Kashmir if the Disqualification Bill failed to pass. Arguments for and against the Disqualification Bill fell largely along the lines of a false and dangerous dichotomy, casting feminism and Kashmiri autonomy as inherent opposites.

Political Censorship and Indian Cinematographic Laws: A Functionalist-Liberal Analysis
by: Arpan Banerjee | download this article (pdf)

India produces more motion pictures than any other country. Indian cinema is synonymous with the extravagant musicals of “Bollywood,” a portmanteau word that the Oxford English Dictionary credits the British detective novelist H.R.F. Keating with inventing. There also exists a parallel arthouse genre of Indian cinema. Internationally, the most well-known proponent of the latter school is probably the late Bengali director Satyajit Ray, whose many laurels include an honorary Oscar for Lifetime Achievement. Throughout history, these two divergent cinematic schools have shared an unfortunate common characteristic—that of rigorous state censorship.

You are cordially invited to the
7th Annual
SABANY Public Interest Fellowship Event
Please join us and spread the word!

Tickets on sale now

Wednesday, April 21, 2010
7:00pm-10:30pm

Aicon Gallery
35 Great Jones Street
New York, NY

Our famous Lychee Martinis, Wine, Beer & Food will be served.

SABANY established the Public Interest Fellowship to help support law students who spend their summers working in unpaid legal internships that provide services to underserved communities in the New York area.

Guest Speaker Sameer Ashar

Sameer Ashar is the Associate Dean for Clinical Programs, Associate Professor of Law at CUNY School of Law and teaches the Immigration and Refugee Rights and Community Economic Development Clinics. He received his J.D. cum laude from Harvard Law School, where he was Lead Articles Editor for the Harvard Civil Rights-Civil Liberties Law Review and edited and organized symposia on political lawyering and economic justice. He received his B.A. in politics and economics with high honors from Swarthmore College.

Professor Ashar has served as a Skadden Fellow with the Lawyers’ Committee for Civil Rights in San Francisco, worked as an associate at Paul, Weiss, Rifkind, Wharton & Garrison, and was a law clerk to the Honorable Deborah A. Batts of the U.S. District Court, Southern District of New York. He has taught the NYU School of Law Immigrant Rights Clinic and the University of Maryland School of Law Civil Rights Clinic. He is the author of law review articles on immigration, race, public interest law, and clinical legal education. Professor Ashar has presented at the Association of American Law Schools (AALS) conferences, annual meetings of the Law and Society Association, and at numerous law schools, including Berkeley, Seton Hall, Stanford, and Washington University. Professor Ashar is Chair-elect of the Poverty Law Section of AALS, a member of the Board of Trustees of the Law and Society Association, and a former board member of the Asian American Legal Defense & Education Fund and Swarthmore College.

Tickets on sale now:

SABANY Members:

$30.00 for Private Sector Attorneys
$15.00 for Public Interest Sector and Non-Attorneys
$10.00 for Law Students

SABANY Non-Members:

$40.00 for Private Sector Attorneys
$25.00 for Public Interest Sector and Non-Attorneys
$15.00 for Law Students

Tickets Purchased at the door:

SABANY Members:

$40.00 for Private Sector Attorneys
$25.00 for Public Interest Sector and Non-Attorneys
$15.00 for Law Students

SABANY Non-Members:

$50.00 for Private Sector Attorneys
$35.00 for Public Interest Sector and Non-Attorneys
$25.00 for Law Students

If you are unable to join us on April 21st, please consider purchasing a $50 donation ticket to help support the SABANY Public Interest Fellowship Program.

[Link]

About the Institute

The Drexel Summer Theory Institute is a new initiative for 2010 for Drexel students with public interest law internships in the greater Philadelphia area. The Institute is modeled on a similar program established by two public interest lawyers, Nisha Agarwal and Jocelyn Simonson, for Harvard law students with public interest internships in New York City. Institute Fellows will meet with the facilitators one evening a week to discuss works of social and critical theory as they relate to the Fellows’ public interest work. Although the conveners will seek to tailor the readings to the interests of the group, some examples of the kinds of thinkers we might engage with include Michel Foucault, F.A. Hayek, bell hooks, Martha Nussbaum, and Pierre Bourdieu.

The Summer Theory Institute will involve a significant but not overwhelming commitment on the part of the Fellows. The Fellows will be asked to attend all ten evening sessions, prepare for each meeting ahead of time, write short response papers to the readings, participate in the discussions, and lead one week’s discussion. If feasible, we may also arrange a joint session or event towards the end of the summer in New York with our counterparts from the Harvard program.

The goal of the Institute is to provide a space in which students can think critically about and reflect more deeply upon their everyday experiences practicing public interest law, using social theory as a lens through which to do so. Working together to think through the role that social theory can play in legal practice and activism allows the Fellows to engage more meaningfully with their organizations’ methods of pursuing justice on a day-to-day basis. By creating the space to discuss larger theoretical concepts outside of the work environment, the Institute enhances the Fellows’ senses of the potential for intellectual rigor and personal fulfillment in public interest work. The Institute also aims to foster a community of leaders who will bring their enthusiasm for pursuing social change through the law back to the Drexel community at the end of the summer.

How to Apply

If you are a 1L or 2L interested in becoming a Fellow in the Drexel Summer Theory Institute, please submit a statement of interest by April 26, 2010. Statements of interest should be emailed to dsti2010 [at] kalhan-dot-com. In your statement of interest, please explain:

1) Your anticipated internship plans for the summer;
2) Your interest in the Summer Theory Institute.

No prior experience with social or critical theory is necessary to participate. Instead, we are looking for a group of Fellows who are excited about public interest work and open to thinking in innovative and sometimes critical ways about that work. Fellows must be located in the Philadelphia area for the full ten weeks of the Institute.

About the Conveners

The 2010 Drexel Summer Theory Institute will be convened and facilitated by Umbreen Bhatti, Anil Kalhan, and Blair Thompson ’11.

Umbreen Bhatti is the Staff Attorney at the American Civil Liberties Union of Delaware, where she conducts litigation and non-litigation advocacy on a broad range of civil liberties issues, including free speech, religious liberty, racial justice, privacy, students’ rights, prisoners’ rights, and police misconduct. Umbreen is the Delaware State Bar Association’s Roxana C. Arsht Fellow, a Fellow of the American Muslim Civic Leadership Institute, and a member of the board of Public Allies Delaware. Prior to joining the ACLU, Umbreen was an associate in the Washington, DC office of Latham & Watkins, LLP.

Anil Kalhan is an Associate Professor of Law at Drexel University, where he has taught immigration law, criminal law, First Amendment, and comparative constitutional law. He is an affiliated faculty member at the South Asia Center at the University of Pennsylvania and serves on the board of directors of the South Asian Bar Association of New York, the council of advisors for South Asian Americans Leading Together, and the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He previously has worked at Cleary Gottlieb, Steen & Hamilton, where he served as co-coordinator of the firm’s immigration and international human rights pro bono practice group, and the ACLU Immigrants’ Rights Project.

Blair Thompson is a second-year law student at Drexel University. Since starting law school, she has been an intern at the Juvenile Division of the Public Defender in Baltimore, the Juvenile Law Center in Philadelphia, and a co-op student at Philadelphia Legal Assistance. Before law school, Blair taught in Hong Kong and in Cape Town, South Africa, where she implemented a program in high schools involving group discussion of classical texts. She graduated from St. John’s College in Annapolis, Maryland where she studied philosophy and the history of math and science.

Questions

Questions may be directed to the conveners at dsti2010 [at] kalhan-dot-com.

Links:

• Harvard Summer Theory Institute – Overview
• Harvard Summer Theory Institute – Final Report for 2008
• Harvard Summer Theory Institute – Final Report for 2009
• Nisha Agarwal & Jocelyn Simonson, Thinking Like a Public Interest Lawyer: Theory, Practice, and Pedagogy, 34 N.Y.U. Rev. L. & Soc. Change __ (2010)

The South Asian Bar Association of Philadelphia
invites you to a

Chai Chat

with

Professor Anil Kalhan
Associate Professor of Law
Drexel University Earle Mack School of Law

“Rethinking Immigration Detention”

Tuesday April 6, 2010
5:30pm to 7:00pm

at the offices of
Kolsby Gordon Robin Shore & Bezar LLP
2000 Market Street – 28th Floor
Philadelphia, PA 19103

Chai and other light refreshments will be served.

For planning purposes, RSVPs to andersonsk@ballardspahr.com by April 2, 2010 are appreciated, though not required.

Seven months later, how does the situation look for internally displaced persons? Writing at Changing Up Pakistan, Kalsoom Lakhani provides an update, arguing that although the IDP situation has been “out of the headlines,” the crisis remains severe….

Continue reading at SAJAforum….

Come hear Nisha Agarwal, Director of the Health Justice Program at New York Lawyers for the Public Interest, discuss NYLPI’s use of law and organizing to address issues of racial and ethnic health disparities in New York City. Her talk will focus on two innovative campaigns: (1) improving access to pharmacies for limited English proficient individuals and (2) eliminating race and class segregation in academic medical centers. She will describe how these campaigns have evolved from community education and organizing to legal action to legislative victories and how law students can get involved in these projects and others.

Nisha Agarwal is the Director of the Health Justice Program at New York Lawyers for the Public Interest, where she began her legal career as a Skadden Public Interest Fellow. Ms. Agarwal’s work at NYLPI focuses on bringing a racial justice and immigrant rights perspective to health care advocacy. In collaboration with community-based organizations and coalitions across New York City, Ms. Agarwal is working on campaigns on language rights in pharmacies, racial discrimination in hospitals, medical deportation, and the closure of community hospitals and clinics in medically under-served areas. Nisha is also active in the South Asian Bar Association of New York, where she serves as Vice President for Public Interest, and is the co-founder of the Harvard Law School Summer Theory Institute for public interest law students. Ms. Agarwal earned her BA, summa cum laude, from Harvard College in 2000 and received a British Marshall Scholarship for graduate studies at Oxford University. She received her JD from Harvard Law School in 2006.

* * *

When: Wed, Mar 31, 2010, 4:15pm

Where: Drexel University Earle Mack School of Law, Rm 240
3320 Market Street, Philadelphia, PA

[Because of immigration patterns, "Asian" is the UK word for South Asians.]

Today, however, the Asian Network’s future is very much in doubt. On the eve of British general elections, a strategy review by BBC management proposes major changes in the BBC’s operations — including the closure of the Asian Network (and another network, BBC 6 Music) altogether….

Continue reading at SAJAforum….

The Indian Supreme Court is widely recognized as a complex and dynamic institution. It has been the subject of much acclaim, as well as criticism. The Court has even been charged with overreaching itself and intruding into the domains of the executive and the legislature. In an era of globalization and judicial activism, the experience of India, offers a valuable perspective on the role judges play in a vibrant democracy.

What explains the choices that India’s Supreme Court justices make? Do judges make distinctions between the religious and political affiliations of the accused when adjudicating anti-terror cases? If so, why, and under what conditions?

In an era of globalization, India’s experience offers a valuable perspective on the role judges play in a vibrant democracy. Hear Shylashri Shankar address these questions, in a talk drawing from her recent book, Scaling Justice: India’s Supreme Court, Anti-Terror Laws, and Social Rights.

Shylashri Shankar is a Senior Research Fellow at the Centre for Policy Research, New Delhi. She was previously an Assistant Professor in the Government Department at the University of Texas at Austin, and a Postdoctoral Fellow at the Centre on Religion and Democracy at the University of Virginia, Charlottesville. She has received degrees from the University of Delhi, University of Cambridge, the London School of Economics and Political Science, and Columbia University. She is the author of Scaling Justice: India’s Supreme Court, Anti-Terror Laws, and Social Rights (Oxford Univ. Press 2008). She has written several articles in edited books on secularism, the judiciary in India and Sri Lanka, India’s courts and religious conversion, cross-judicial borrowing and national constitutions, among others. She has also written op-eds in national newspapers and magazines on democratic transition and consolidation in South Asia and the Middle East, judicial independence, ethnic conflict, and terrorism.

* * *

When: Mon, Jan 11, 2010, 4:30pm

Where: Drexel University Earle Mack School of Law, Rm 340
(reception to follow in 3rd Floor Gallery)
3320 Market Street, Philadelphia, PA

Open Program on Law and South Asian Studies
Annual Meeting, Association of American Law Schools
New Orleans, LA
Saturday, January 9, 2010

This session will consist of (1) a panel on contemporary issues in constitutional law and fundamental rights in South Asia (the papers from which will be published in the Drexel Law Review as part of its Symposium on Law and South Asia) and (2) a short business meeting on the formation of the proposed AALS Section on Law and South Asian Studies.

Opening Remarks:

• Marc Galanter, John and Rylla Bosshard Professor of Law and South Asian Studies, University of Wisconsin, Madison, WI, and Centennial Professor, Department of Law, London School of Economics and Political Science

Panelists:

• Sehla Ashai, Staff Attorney, National Immigrant Justice Center, Heartland Alliance, Chicago, IL — “Competing Constitutions: The State Subject Controversy of Jammu and Kashmir”

• Payal Shah, Legal Fellow for Asia, Center for Reproductive Rights, New York, NY — “Maternal Mortality in Nepal: A Case for Using International Law for Accountability and Justice”

• Shylashri Shankar, Senior Research Fellow, Centre for Policy Research, Delhi, India — “The Spirit of the Constitution: Engaging with Foreign Judgments: India, Sri Lanka, and South Africa”

• Elisabeth Wickeri, Executive Director, Leitner Center for International Law & Justice, Fordham University Law School, New York, NY — “Towards a Lasting Peace in Nepal: Economic, Social, and Cultural Rights in the New Constitution”

Moderator:

• Anil Kalhan, Drexel University Earle Mack School of Law, Philadelphia, PA

Registration and other details for the AALS Annual Meeting are available here.

How Does It Feel to Be a Problem?
Being Young and Arab in America

Just over a century ago, W.E.B. Du Bois posed a probing question in his classic The Souls of Black Folk: “How does it feel to be a problem?” he asked. Today, Arab and Muslim Americans, the newest minorities in the American imagination, are the latest “problem” of American society, and their answers to Du Bois’s question increasingly define what being American means today.

In a wholly revealing portrait of a community that lives next door and yet a world away, Moustafa Bayoumi introduces us to the individual lives of seven twentysomething men and women living in Brooklyn, home to the largest number of Arab Americans in the United States. Through telling real stories about young people in Brooklyn, Bayoumi jettisons the stereotypes and clichés that constantly surround Arabs and Muslims and allows us instead to enter their worlds and experience their lives. [link]

Panelists:
Drexel University Earle Mack School of Law- Moustafa Bayoumi, Associate Professor of English, Brooklyn College
- Jimmy Yan, General Counsel, Office of Manhattan Borough President
- Yasmin Dwedar

* * *

When: Thu, Dec 3, 2009, 4:30pm

Where: Drexel University Earle Mack School of Law, Rm 140
(reception and book signing to follow in 3rd Floor Gallery)
3320 Market Street, Philadelphia, PA

The Drexel Law Review is pleased to announce a symposium issue focusing on law and policy in South Asia to be published during Spring/Summer 2010. We invite the submission of articles, essays, and book reviews on any topic related to law or public policy in one or more countries in South Asia, including Afghanistan, Bangladesh, Bhutan, Burma/Myanmar, India, Iran, Maldives, Nepal, Pakistan, Sikkim, or Sri Lanka.

Submission guidelines:

• There are no minimum or maximum length requirements for submission, but we encourage submissions ranging between 10-65 journal pages (between 3,000 and 20,000 words, including text and footnotes). We encourage authors to target the lengths of their submissions to this range.
• Please include with your submission (1) a short cover letter explaining your interest in publishing in the symposium issue and the scholarly contribution that your article makes, and (2) a curriculum vitae.
• Articles should be fully supported and citations should conform to The Bluebook: A Uniform System of Citation (18th ed.) (http://www.legalbluebook.com)
• We accept Adobe PDF or Microsoft Word submissions, but authors should be prepared to use Microsoft Word 2003 or 2007 during the editing process.

Submissions should be sent by email to lawrev@drexel.edu, with the subject heading: 2010 Symposium Submission. In the email, please include your name, institutional affiliation, email address, postal address, and phone number.

Please direct any questions to the Symposium Editor at lawrev@drexel.edu.

Submission deadline: Submissions will be accepted and reviewed on a rolling basis through December 31, 2009.

For more information about the Drexel Law Review visit:
http://drexel.edu/law/lawreview

Inquiries should be directed to the Symposium Editor at lawrev@drexel.edu.

http://www.thefacultylounge.org/2009/11/call-for-papers-articles-essays-and-reviews-about-south-asia.html

From the very beginning it was evident that the government had underestimated the human cost of the military operation. As several camps were hastily set up to cater to the massive influx of IDPs, reports about the lack of even basic amenities in these camps began to emerge. Excessive heat (daytime temperatures soaring to 40°C and above), no electricity, food and water shortages, poor sanitation, and lack of proper health care are some of the immediate problems being faced by IDPs….

Lack of proper toilets and sanitation, unsafe drinking water, infrequent bathing, high air temperatures, inadequate disposal of solid waste, and the complete absence of a proper drainage system at the refugee camps are the main causes of worry for relief health workers. “This is the making of a disaster. These camps have been established on open tracts of land used for agricultural purposes. There are snakes, rats, and scorpions here. At night, when it is pitch dark because of no electricity, people sleep on the ground and are vulnerable to snakebites”, said M Idrees Mirza, a doctor who runs a private clinic in Rawalpindi city and is working voluntarily in the
camps.

“Conditions in these camps make them perfect breeding areas for mosquitoes and many varieties of insects. In my opinion, there is a very high probability of an outbreak of any disease like mumps, measles, scabies, malaria, diarrhoea, polio, and leishmaniasis”, said another health worker working for a respected NGO who spoke to The Lancet on condition of anonymity. “We need medicines, doctors, and qualified health workers. And we need them urgently. Any delays might result in a human catastrophe of unimaginable proportions.”….

Eager to establish its writ over the Swat Valley, the government seems to have created a health crisis which it may not be able to overcome. [link; registration req'd]

Two letters in the same issue of The Lancet offer additional details. But as dire as the situation has become within the camps, K.M. Bile and Assad Hafeez note in one of those letters that the government camps house only 20 percent of the IDPs — who may now total as many as 2.5 million individuals, almost half of them children:

Without counting the great costs to themselves, families in the local community are looking after more than 1·73 million people, in accordance with the local tradition of hospitality. Most displaced people have been accommodated within family homes; others are in schools, mosques, and other community buildings…. Although a proportion of host families are related to or friends of the displaced people, many have welcomed strangers. [link; registration req'd]

Continue reading at SAJAforum….

Land access, land tenure security, and related land rights are fundamental bases for the right to an adequate standard of living and are tied to the indigenous, ethnic, and cultural identities of peoples. Yet the problem of landlessness is growing worldwide: A quarter of the world’s population is landless. In Nepal, estimates suggest that over half the population is functionally landless.

For two weeks beginning May 9, Fordham Law School Professors Elisabeth Wickeri, Martha Rayner, and James Kainen will lead a delegation including eight law students on an overseas project to investigate and document the impact that inadequate access to land has on the rights of landless and land-poor people in Nepal, a country of 29 million in South Asia where landless people are disproportionately indigenous, of lower castes, and are women.

The Leitner Center delegation will document the impact that inadequate access to land has on human rights, including the rights to housing, food, water, and political participation. The delegation will also examine the evolving legal framework for landless people to secure their rights in a country emerging from ten years of conflict.

Professors Wickeri, Rayner, and Kainen will be joined by two additional human rights experts, Professors Anil Kalhan and Aoife Nolan. The Fordham Law School students participating in the documentation project are Crowley Scholars Amal Bouhabib, Corey Calabrese, Millie Canter, Benjamin Goldstein, Ganesh Krishna, Noushin Ketabi, David Mandel-Anthony, and Amisha Sharma. The delegation is happy to be working with the Kathmandu-based Community Self-Reliance Center.

The delegation will conduct wide-ranging interviews with members of the government, the judiciary, academics, lawyers, non-governmental and inter-governmental organizations, land rights organizers, men and women in rural landless communities, landlords, and local leaders whose expertise will inform a deeper understanding of the issues.

The delegation spent the spring semester studying human rights and Nepali culture and history. Following the fieldwork, the Leitner Center will publish a report of their findings which will be distributed in Nepal and internationally.

The Leitner Center for International Law and Justice at Fordham Law School promotes teaching, scholarship, and advocacy in the field of public international law. The Center sponsors programs designed to prepare law students for work as human rights lawyers and seeks to have a real and measurable impact on the level of respect for international human rights standards.

Contact: Elisabeth Wickeri
Email: wickeri@law.fordham.edu
Website: http://law.fordham.edu/Leitner.htm

QUESTION: Hi, Mr. President.

OBAMA: How are you?

QUESTION: Thank you for choosing me. I’m very well. I’m (inaudible) from the Times of India.

OBAMA: Wonderful.

QUESTION: You met with our Prime Minister Manmohan Singh. What did you — what are you — what is America doing to help India battle terrorism emanating from Pakistan?

OBAMA: Well, first of all, your prime minister is a wonderful man.

QUESTION: Thank you. I agree.

(LAUGHTER)

I agree.

OBAMA: You know, did you have something to do with that?

(LAUGHTER)

You seem to kind of take credit for it a little bit there.

(LAUGHTER)

QUESTION: We’re really proud of him, so…

OBAMA: Of course. You should be proud of him. I’m teasing you. I think he’s a very wise and decent man and has done a wonderful job in guiding India, even prior to being prime minister, along a path of extraordinary economic growth that is a marvel, I think, for all the world…. [link]

Must-see video of the entire exchange (including Obama’s full response) is above, and the rest of Obama’s answer appears after the jump. No word on whether Prime Minister Singh is now “walking on air” as well. However, the next time someone tells me that Sree Sreenivasan and Arun Venugopal are “wonderful men,” I’ll be tempted to interrupt and say “thank you.”

Unfortunately, Ghuman’s pride in her Prime Minister stole some of the media oxygen from the actual response to her own question. However, as the Associated Press notes, in his response Obama said that “in a nuclear age, at a time when perhaps the greatest enemy of both India and Pakistan should be poverty, … it may make sense to create a more effective dialogue between India and Pakistan.”

Continue reading at SAJAforum….

Warning that the loss of life may reach “catastrophic levels,” [Pillay] urged the government and Liberation Tigers of Tamil Eelam (LTTE) rebels to halt hostilities to allow the evacuation of civilians trapped on the northeastern coast.

Pillay said the government had repeatedly shelled the designated “no-fire” zones for civilians and also cited reports the separatist
guerrillas were holding civilians as human shields and had shot some as they tried to flee.

“Certain actions being undertaken by the Sri Lankan military and by the LTTE may constitute violations of international human rights and humanitarian law,” Pillay said in a statement.

“The world today is ever sensitive about such acts that could amount to war crimes and crimes against humanity,” added the former
U.N. war crimes judge, who is a member of the Tamil ethnic group and grew up in South Africa.

Pillay called on Sri Lanka’s government to grant full access to U.N. and other aid agencies to monitor human rights and humanitarian conditions amid reports of “severe malnutrition” among those trapped. [link]

Pillay stated that as many as 2,800 civilians have been killed and over 7,000 injured since January, and that as many as 180,000 civilians may be trapped in the conflict zone.

Others in the international community have raised similar concerns. According to the International Committee for the Red Cross, the humanitarian situation faced by civilians in the conflict zone is “deteriorating by the day.” Former special advisor to the UN Secretary General Lakhdar Brahimi says that the humanitarian crisis places Sri Lanka “on the brink of catastrophe.” In a phone call to to Sri Lanka’s President Mahinda Rajapaksa, U.S. Secretary of State Hillary Rodham Clinton expressed “deep concern” about escalating civilian deaths and urged the Sri Lankan Army “not [to] fire into the civilian areas of the conflict zone.” The European Union has also called for a cease fire to permit trapped civilians to escape the fighting.

Sri Lanka disputes the UN’s figures — the LTTE, the government asserts, has “infiltrated certain personalities into these agencies” — and has rejected calls for a cease fire. More details are available in two stories from the BBC World Service’s Evening Report, linked above (and here and here). However, according to the Christian Science Monitor:

[T]he sensitive data aired by Ms. Pillay were based on firsthand daily reporting by UN national staff and aid workers trapped in the no-fire zone. A copy of a recent UN briefing paper that was obtained by the Monitor listed similar casualty figures and described mounting casualties in the squalid, densely packed coastal strip. “Daily incoming artillery and mortar fire has caused large number of casualties with a noted increase since 26 Feb,” it said.

The briefing paper said several weeks of food and medicine shortages had led to deaths from malnutrition and from preventable diseases. [link]

Meanwhile, SAJAer Angilee Shah has published a feature article in the Far Eastern Economic Review (which was reported from Colombo, Singapore, and Los Angeles with the support of a SAJA Reporting Fellowship) critically examining the consequences of the Rajapaksa government’s aggressive approach to prosecuting the civil war:

Continue reading at SAJAforum….

TV, radio and online news will be disrupted on Friday 3 April and Thursday 9 April after nearly 800 members of the National Union of Journalists chapel at the BBC today voted in favour of industrial action in a national ballot.

More than 1,100 of the union’s nearly 4,000 members at the corporation took part in the vote, 77% of whom voted in favour of a strike.

The most urgent threat of compulsory cuts is at the World Service’s South Asian section, where up to 20 members are at risk, the union has said. Staff in Scotland are also understood to be under threat.

The NUJ general secretary, Jeremy Dear, said: “Journalists at the South Asian services have been fighting a heroic struggle against the outsourcing of their jobs … now they have the weight of thousands of NUJ members at the BBC behind them.” [link]

In late February, journalists within the South Asia services held their own one-day strike to protest the proposed restructuring. In addition to worrying about lost jobs in London, the journalists fear that shifting operations to the subcontinent would compromise the quality and independence of the BBC’s coverage:

Staff are concerned that moving production of these BBC language services abroad will result in poorer output and a loss of independence which is integral to the BBC World Service.

One member commented: “If the BBC’s succeeds in imposing change, the tendency will be for the output to become more and more India-centric, in the case of the India service, as they try to compete with local FM broadcasters.

“This moves away from the World Service’s USP: impartial news with a global perspective. Why should the British taxpayer end up paying for a local Indian radio station?” [link]

The International Federation of Journalists has echoed these concerns, asserting that “the BBC management’s off-shoring plans will put at risk seventy years of first-class journalism and expose their journalists to political and commercial pressures beyond their control.” On the eve of last month’s one-day strike, John McDonnell, a Labour MP for west London, elaborated upon these concerns even further:

Continue reading at SAJAforum….

The Pakistan government agreed on Monday to reinstate Iftikhar Chaudhry as Supreme Court chief justice to end a political crisis that has gripped the Muslim nation, a government official said.

The official added that a constitutional package would also be presented.

President Asif Ali Zardari had hitherto stonewalled calls from the opposition led by former prime minister Nawaz Sharif and a lawyers’ movement to restore the judge.

Chaudhry was dismissed in late 2007 by then-president and army chief
Pervez Musharraf, but Zardari regarded the judge as too politicized and
feared he could pose a threat to his own presidency if restored. [link]

No solid confirmation as yet, but Prime Minister Yousaf Raza Gilani is scheduled to address the nation shortly.

Continue reading at SAJAforum….

On the heels of an emergency crackdown earlier this week, in which the government of President Asif Ali Zardari responded to the “Long March” organized by the lawyers movement by banning public gatherings and reportedly detained hundreds of opposition lawyers and political workers, Zardari has also moved to block transmission of Geo TV throughout the country:

On the direct order of President Asif Ali Zardari, the transmission of the Geo News was blocked by cable operators in various parts of the country on Friday, which drew flak from across the country.

The transmission was blocked in some parts of Karachi, Hyderabad,
Islamabad, Rawalpindi, Lahore, Quetta, Multan, Rawalakot, Muzaffarabad, Deepalpur, Sargodha, Nawabshah, Faisalabad, Gujranwala and Dera Murad Jamali. [link]

Geo and other TV news channels were previously blocked — for much the same reasons as the present ban by Zardari — by Gen. Pervez Musharraf, first as the lawyers’ movement was gaining momentum in the spring of 2007 and later after Musharraf declared a state of “emergency” in November 2007.

The Geo ban has apparently prompted the resignation of Information Minister Sherry Rehman, a leading member of the Pakistan People’s Party and close confidante of the late former Prime Minister Benazir Bhutto:

Continue reading at SAJAforum….

Both the New York Times and Time have published stories within the past month discussing the prevalence of so-called “encounter killings” in India:

Numbering in the thousands every year, “encounters” or “encounter killings” are shootouts between the Indian police or army and any criminal element, from terrorists to petty thieves. Many Indians believe that at least some are stage-managed — with, say, a police officer placing a gun in the hands of a dead person — leading to the popular phrase, “fake encounter killing.”…

In almost all, India’s limited forensics capabilities make investigating the claims of either side hard to verify. But the national news media often accept the police’s version,which puts them in harmony with many in their middle-class audience who fear rising crime and terrorism. Meanwhile, Bollywood and Indian media lionize “encounter specialists” — soldiers or policemen who, like Dirty Harry, specialize in shootouts. [NYT]

* * *

Human rights activists have for years protested the growing incidence of encounters, some of them allegedly staged. “Encounters have become the norm,” says Vrinda Grover, lawyer and human rights activist. “They have become the police’s preferred method to deal with not just terrorists, but criminals of all kinds.” Legends of “encounter specialist” cops abound, and one of them was even the subject of the Bollywood film Ab Tak Chhappan (“So far 56″, implying the number of people he had killed).

Activists allege that in numerous instances, evidence has been planted after a shooting in order to justify police claims that officers had acted in self defense. Encounters are meant to be probed by a magistrate following a post-mortem, but critics point out that the investigative work in such probes is undertaken by the police themselves. They also allege that such tactics enjoy tacit approval from the authorities in areas plagued by insurgencies. [Time]

Continue reading at SAJAforum….

Perhaps it’s fitting that Pakistan’s latest crisis has come just as the television series Battlestar Galactica (whose final episode airs next week) is drawing to a close. Between the Musharraf Supreme Court’s controversial decision to declare Pakistan Muslim League-N leaders Nawaz Sharif and Shahbaz Sharif ineligible to hold public office, President Asif Ali Zardari’s decision to crack down on the lawyers’ movement and other opponents, and the State Department’s apparent decision, at least initially, to respond to the crisis somewhat tepidly, one is left, wearily, with the irresistible sense that all of this has happened before, and all of it will happen again.

To refresh our collective recollection, Zardari’s ascent to power last September came on the heels of an unprecedented movement in which Pakistan’s lawyers and ultimately its electorate decisively rejected then-General-cum-President Pervez Musharraf’s interference with the independence of Pakistan’s judiciary and his authoritarian, martial law-like crackdown on his opponents in the guise of “Emergency.” Like Benazir Bhutto before him, Zardari pledged on many occasions after the election to fulfill the key demands that stirred this mass movement to action: restoration of the judges unlawfully ousted by Musharraf, and in particular, restoration of Chief Justice Iftikhar Muhammad Chaudhry. Zardari also promised to roll back the powers accumulated in the presidency by Musharraf, restoring the supremacy of Pakistan’s parliament. Well over a year has passed since Pakistan’s electorate delivered that mandate. However, Zardari’s government has neither restored Chaudhry to his position, nor rolled back any of the other extraconstitutional actions taken by Musharraf during the Emergency, nor repealed the sweeping executive powers instituted by Musharraf.

Now, with Musharraf’s still-lingering Supreme Court declaring Zardari’s PML-N rivals ineligible to hold office, Zardari’s government has dismissed the PML-N government in Punjab and imposed Governor’s Rule, leading to civil and political unrest throughout the province. In response to this week’s second anniversary of Chaudhry’s suspension by Musharraf, the lawyers’ movement already had planned a second “Long March” on Islamabad, from March 12 to 16, seeking restoration of Pakistan’s pre-November 2007 constitution and reinstatement of all judges ousted during the Emergency.

Apparently feeling the political heat, Zardari then discovered his inner Musharraf — not on the golf course, as he previously had told the world he would have preferred, but rather in the authoritarian laws inherited from the British:

[P]olice and intelligence officials carried out early-morning raids across Punjab and Sindh, arresting more than 300 lawyers and political activists…. The crackdown began late Tuesday night, with the government invoking Section 144 of the 1860 Penal Code, a law from the British colonial era that forbids public gatherings of four or more people. As whispers of imminent arrests gathered momentum and local television channels exhibited lengthy lists of intended targets, many prominent lawyers and politicians went into hiding, just as they did during a crackdown operated by former President Pervez Musharraf….

Indeed, many of the people allegedly on the lists were last arrested in late 2007, when Musharraf imposed emergency rule….

Athar Minallah, a prominent lawyer, maneuvered himself out of being arrested from the driver’s seat of his car. “I locked myself in the car, and the police didn’t know how to get me,” he said. “So I called the television cameras who were only two minutes away. I began giving live interviews from the car, addressing the Interior Minister, Rehman Malik, directly. After a while, Mr. Malik came down himself and shouted the police officers away.” [link]

Perhaps seeking to out-Musharraf Musharraf, Zardari’s government has even played the terrorism card.

During the 2008 campaign, President Obama sharply criticized the Bush administration’s approach to Pakistan, asserting that by

coddl[ing] Musharraf, we alienated the Pakistani population, because we were anti-democratic. We had a 20th-century mindset that basically said, ‘Well, you know, he may be a dictator, but he’s our dictator.”….

That’s going to change when I’m president of the United States. [link]

So how has the new administration responded to this week’s events? State Department spokesperson Robert Wood’s initial response did not go all that smoothly:

‘You haven’t been clear at all about where the US stands on what’s going on in Pakistan,’ said a journalist.

‘I have given you what our position is. I can’t give you an assessment of what’s taking place right at this moment on the ground,’ said Wood.

‘That’s not what I’m asking. I’m asking, what is your position on reinstatement of the chief judge,’ the journalist asked.

‘That’s something that’s going to have to be determined by the Pakistanis in accordance with their laws and their constitution. I can’t go beyond that,’ said Wood.

‘But when President Musharraf installed a state of emergency to avoid the reinstatement of the judges, you had called for the reinstatement of the judges,’ the journalist reminded him.

‘Look, I’m giving you what the policy is right now. And as I’ve said, this is something that needs to be worked out within Pakistan’s political sphere in accordance with its laws. That’s about the best I can give you,’ said Wood. [link]

Still, to their credit, Wood and other diplomats, including special envoy Richard Holbrooke, have publicly expressed concern about Zardari’s restrictions on freedom of assembly and freedom of speech, and have urged Pakistan to act in accordance to the rule of law. Will it make any difference? As when the crisis over the judiciary first began, hum dekhenge. Again, and still.

“[the United States's] patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus – and non-believers. We are shaped by every language and culture, drawn from every end of this Earth.”  [link]

This morning, at the Washington National Cathedral, the Inaugural Prayer Service extended Obama’s message of spiritual pluralism by including participants from a variety of different religious traditions. Ingrid Mattson, president of the Islamic Society of North America, and Uma Mysorekar, president of the Hindu Temple Society of North America, were two of the six participants to give responsive prayers during the service.

SAJAforum readers may recall Mysorekar from her appearance on The Colbert Report and her efforts to have Diwali placed on New York City’s official “parking holiday” calendar. Mattson, who is a professor of Islamic Studies and Christian-Muslim Relations at Hartford Seminary, is “the first woman, the first nonimmigrant and the first Muslim convert” to be elected as ISNA’s president.

The video of the service is available here, and the text of both Mattson’s and Mysorekar’s responsive prayers appears in the official program for the service:

Continue reading at SAJAforum…

Fast forward sixteen years: The president-elect is a biracial, second generation American who grew up in Hawaii and considers himself desi. South Asians and other Asian Americans feature prominently in both the transition and the new administration’s significant appointees. And in contrast to that one Capitol Hill reception in 1993, Washington is chock full of Asian American events in connection with the inaugural celebration, including several South Asian-oriented gatherings.

South Asians for Obama got a jump on the festivities on Saturday evening, hosting an informal happy hour which drew over 300 attendees. One of the group’s cofounders, Hrishi Karthikeyan, took some time out of his inaugural week schedule to answer a few questions.

Continue reading at SAJAforum…

Given the controversy, Etheridge was “stunned” to learn that Warren would be giving the keynote address at the Muslim Public Affairs Council’s annual convention in California — where Etheridge herself was scheduled to appear with Junoon’s Salman Ahmad to perform “Ring The Bells,” a song they had co-written “call[ing] for peace and unity in our world.” (Since December, apparently, is “Using Music to Change the World Month,” the MPAC performance was intended to initiate a broader “Ring the Bells for Peace” Campaign, which you can read more about here.)

Etheridge says that she initially contemplated canceling her appearance at MPAC on account of Warren’s appearance. However, as she recounts at the Huffington Post, Etheridge ultimately decided on a different approach to the situation:

Continue reading at SAJAforum…

Continue reading at SAJAforum…

However, the attacks and their aftermath are certainly being experienced rather acutely throughout the South Asian subcontinent itself and within South Asian diaspora communities in other parts of the world. Take, for example, Sri Lanka. Certainly, the people of Sri Lanka have plenty else on their minds these days, with military clashes between the government and the Tamil Tigers proceeding apace and major floods destroying thousands of homes and displacing tens of thousands of people, many of whose lives already had been disrupted by the ongoing fighting. Nevertheless, these serious events — each worthy of greater international media attention in its own right — have not kept Sri Lankans from also experiencing the ramifications of this week’s Bombay terrorist attacks.

Continue reading at SAJAforum…

Chaudhry is the eighth individual to be conferred honorary membership by the New York City Bar. Prior recipients include former Chief Justice of the United States William Rehnquist, former Chief Justice of India P.N. Bhagwati, and Judge Thomas
Buergenthal of the International Court of Justice.

Continue reading at SAJAforum….

Musharraf himself is now gone from the political scene, having resigned in August, but the legacy of his Emergency is being remembered today in Pakistan and around the world.

Amnesty International’s Asia-Pacific Director, Sam Zarifi, laments that one year later, Pakistan “is still suffering from the abusive policies [Musharraf] put in place” during last year’s crackdown:

In Pakistan, lawyers and others have marked the occasion with protests. Lawyers have rallied across the country, calling on new President Asif Ali Zardari‘s government to fully roll back all of Musharraf’s extraconstitutional measures, including his removal of Chief Justice Iftikhar Muhammad Chaudhry:

Continue reading at SAJAforum….