US Prosecutes Religious Workers for Attempted Life-Saving
By William Boardman, Reader Supported News
23 January 19
No More Deaths is a humanitarian organization based in southern Arizona. We
began in 2004 in the form of a coalition of community and faith groups,
dedicated to stepping up efforts to stop the deaths of migrants in the
desert and to achieving the enactment of a set of Faith-Based Principles for
Immigration Reform. We later developed into an autonomous project. Since
2008 we have been an official ministry of the Unitarian Universalist Church
of Tucson.
- No More Deaths web page
It is a measure of American corruption that the Trump administration has
officially criminalized selected acts of Christian mercy. It is a further
measure of American corruption that the official criminalization of actions
taken to save lives goes little reported and less discussed. Those
conclusions are aptly illustrated by the selective prosecution of four women
volunteers with No More Deaths for leaving water and food in a desert where
thousands of migrants have died in recent years.
Federal Magistrate Judge Bernardo Velasco convicted the women of all the
nine misdemeanor charges against them. Each charge carries the potential
penalty of a $500 fine and six months in federal prison. He delivered his
verdict on January 18, the day after a trial that lasted three days. There
was no jury. The court will schedule a sentencing hearing sometime in
February. The judge found that the women's placing of water and food in a
lethal environment violated statutes against trespass and littering. There
is no dispute that the women did these things in August 2017. The women's
defense rested in part on their assertion that their acts of conscience were
protected by the Religious Freedom Restoration Act passed by Congress in
1993 (42 USC 2000bb-1).
Judge Velasco, in his three-page (650-word) verdict, begins by
mischaracterizing the complex 803,48-acre region of the Cabeza Prieta Refuge
and Wilderness Area, which has a variety of names and sub-names, and parts
of which are subject to the jurisdiction of various federal agencies
(including the Departments of Defense and Interior, the US Border Patrol,
and the Fish and Wildlife Service, as well as the Department of Justice as
needed) and the Tohono O'odham Indian Nation. The northern section of the
wilderness, to which the Department of Defense allows no public access, is
the Barry Goldwater Bombing Range, which is irrelevant to the case against
No More Deaths. Twice in his order, Judge Velasco emphasizes the "pristine
nature" of the area. Nevertheless, the judge also falsely characterizes the
wilderness in an apparent effort to impugn the defendants' good judgment:
. the preserve is littered with unexploded military ordinance, the detritus
of illegal entry into the United States, and the on-road and off-road
vehicular traffic of the U.S. Border Patrol efforts to apprehend illegal
entrants/undocumented immigrants.
The judge refers to the federal law requiring "people who access Cabeza
Prieta to obtain a permit authorizing entry," although he does not cite the
law. He asserts ex cathedra and inaccurately that:
Violators of the access regulations may be verbally admonished to comply
with the rules of the Refuge, cited for a violation of the pertinent
regulations, banned from the area, or summoned into Court for criminal
prosecution. The choice of action to be taken is at the sole discretion of
the Refuge's law enforcement officer, except the latter, which requires the
U.S. Attorney's exercise of its discretion to authorize the criminal
prosecution.
There's much to unpack in this paragraph, which amounts to an invisible
masking of federal actions during the Trump administration that bear
directly on the case at hand. During the trial, Judge Velasco commented:
"This trial is not about the government's obligations."
This case is the first federal prosecution of its kind since the Bush
administration. The prosecution of No More Deaths volunteer Dan Millis for
littering in a different wildlife refuge ended in conviction in 2009. That
was overturned the following year by the US Court of Appeals ninth circuit
(with a dissent by Judge Jay Bybee, better known for his pro-torture memos).
The majority based its ruling in part on the government's obligation to be
clear and precise in its rules and regulations:
We begin by noting that the rule of lenity "requires courts to limit the
reach of criminal statutes to the clear import of their text and construe
any ambiguity against the government.". The rule of lenity applies "only
where 'after seizing every thing from which aid can be derived, the Court is
left with an ambiguous statute.' ". In such a case, fundamental principles
of due process mandate that "no individual be forced to speculate, at peril
of indictment, whether his conduct is prohibited."
Or in layman's language, the court required that Millis be able to tell,
from the language of the statute, what he was and was not allowed to do.
After a painstaking analysis of the statutory language, the court concluded
that the arresting officer (and the dissenting judge) was trying to punish
Millis for doing something that was not precisely prohibited in the law.
This is a standard of legal clarity that is not only reasonable but a clear
protection against abuse of authority.
Judge Velasco does not mention this precedent, the only previously
adjudicated case similar to the one before him. Nor does he examine the
particular language of the rule under which the No More Deaths women were
charged. From the judge's analysis, there is no way to assess whether the
rule, as it was written in 2017, was legitimate. We know, from extensive
reporting in The Intercept, that early 2017 was a time when the Trump
administration was ratcheting up pressure on migrant-rights groups, in
particular No More Deaths. Attorney General Jeff Sessions visited Tucson in
April 2017 to demand tougher immigration control.
During the Obama administration, Border Patrol and No More Deaths had
reached an agreement that the Border Patrol would not interfere with a
humanitarian aid facility run by No More Deaths, but would treat it as a
medical facility. In mid-June 2017, the Border Patrol broke the agreement
and raided the camp with 30 agents, 15 trucks, 2 ATVs, and a helicopter. A
No More Deaths volunteer published an op-ed predicting the Border Patrol
raid would lead directly to more migrant deaths in the Sonoran Desert: The
raid "sends the message that people crossing the desert are unworthy of
medical care, food, and water: unworthy of life. Tougher border policy is
not just political rhetoric - it is death by dehydration, without a
funeral." The written agreement had protected migrant lives for thirteen
years. No More Deaths responded to the raid with a statement that said in
part:
Obstruction of humanitarian aid is an egregious abuse by the law enforcement
agency, a clear violation of international humanitarian law and a violation
of the organization's written agreement with the Tucson Sector Border
Patrol.
During the same period, Fish and Wildlife manager for the Cabeza Prieta
Refuge set about tightening rules, including seeking voluntary compliance
from No More Deaths. No mutual understanding was reached and a new rule went
into effect July 1, 2017, requiring visitors getting permits to enter the
refuge to sign a pledge not to leave any food or water behind. At a July
meeting, an assistant US attorney was heard to say the US had no interest in
prosecuting volunteers for dropping off water and food. Without mentioning
the rule of lenity, Slone later said the new rule was intended to "make it
really clear so there's no question in someone's mind what the rules are."
On August 13, when the four women from No More Deaths entered the refuge,
they did not seek a permit. There is no certainty as to what they knew or
didn't know. They knew they were committing something of an act of civil
disobedience, but their action was not designed as a direct challenge to the
law. They may have known - and No More Deaths almost surely knew - that in
recent years, none of the citations issued in the refuge had been referred
to the Justice Department for prosecution. Judge Velasco's 2019 recitation
of the risk of prosecution is at best disingenuous as applied to 2017 when
it simply was not happening as he explains it. The No More Deaths women were
cited in August 2017, and then nothing happened.
Months passed. Border Patrol pressure increased. Border Patrol agents
sabotaged or destroyed caches of water and food. Border Patrol agents raided
a No More Deaths aid station. On January 17, 2018, No More Deaths released a
lengthy report documenting arguably criminal behavior by Border Patrol
agents. The report described agents destroying humanitarian aid and included
videos of agents pouring water on the ground. Within days after the report
came out, the four women were charged for their action five months earlier.
Five other No More Deaths volunteers were also charged in that period. All
of these prosecutions, as Judge Velasco points out, had to be approved by
the Justice Department under Jeff Sessions.
The only such prosecutions approved by the Justice Department have all been
against No More Deaths volunteers. No More Deaths has asserted that it is
being selectively prosecuted. The four defendants presented evidence
including Fish and Wildlife records that they said showed they were being
singled out for prosecution. The government denied that. Judge Velasco does
not address the question in his verdict.
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William M. Boardman has over 40 years experience in theatre, radio, TV,
print journalism, and non-fiction, including 20 years in the Vermont
judiciary. He has received honors from Writers Guild of America, Corporation
for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination
from the Academy of Television Arts and Sciences.
Reader Supported News is the Publication of Origin for this work. Permission
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