Friday, July 11, 2008

A New Haven For Terrorists

Somewhere along the line, the new policy of New Haven, Connecticut regarding illegal immigrants ran up against a thinking journalist, the Managing Editor of the Journal Inquirer in Manchester,Chris Powell, and the collision has produced sparks that may be of interest to those who sometimes worry about terrorists. Connecticut's commissioner of emergency management and homeland security James Thomas is not among their number.

With the blessing of Connecticut’s Freedom of Information Commission and the state’s commissioner of homeland security, New Haven, with perfect secrecy, may now hand out to illegal aliens identification cards that, in Powell’s estimation, “create identities --genuine or contrived -- for its illegal alien residents who have no genuine ID documents, so that their continued illegal residency in New Haven may be facilitated.”

If you are an illegal alien who has penetrated the porous borders of the United States on your way to New Haven, you may be rewarded with an identification card upon presentation to local authorities of utility bills and foreign consular ID cards, both of which are easily forged and easily obtained by using forged credentials.

For the moment, put aside the question whether people who are in the United States illegally should be permitted to remain illegally in the country and continue to flout the laws without being deported when it is discovered by public officials that they are violating the very laws the public officials are sworn to uphold. Forget for the moment that public officials in New Haven, by facilitating the creation of possible fraudulent identities, are not performing due diligence. Let us concentrate, for the purpose of this blog, on two questions:

Has the Freedom of Information Commission in its decision taken a perilous step towards self-extinction? And should Connecticut’s Homeland Security chief be looking for another job?

In both a column that will appear in the Journal Inquirer on Saturday and in a letter to the Freedom of Information Commission that appears with permission below, Powell makes a very strong case that Connecticut’s FOI has stepped beyond the pale.

At the Freedom of Information’ Commission’s hearing, the homeland security commissioner testified that he “took at face value” hearsay representations made by the city of New Haven. The commission itself accepted affidavits from people whose identities were concealed from the complainants and did not allow the complainants, Powell and Dustin Gold of the Community Watchdog Project, to cross examine the witnesses from whom the hearsay evidence was drawn. The commission then reached a decision based on a premise that undermines its own authority.

To put it in the baldest possible terms, the premise upon which the FOI decision rests is that the security of illegal aliens, some of whom may now or in the future be terrorists, trumps the clear language of the FOI law.

In a statement to the commission about its decision (reprinted below) Powell puts it this way: “The proposed decisions, would construe Connecticut General Statutes Section 1-210(b) (19) to mean that the openness of public records is determined by the degree of controversy generated by them. That is, I lose my ordinary rights to freedom of information if others make enough threats, even anonymous threats, or if others purport to be scared enough about disclosure. Is that really the standard your commission means to uphold? If so, Connecticut will never again know which documents are really public documents, for the standard for disclosure will not be intrinsic to documents themselves but rather to the controversy around them.”

Powell writes that in a stunning admission, Connecticut Homeland Security chief James Thomas told the FOI commission that “arch-terrorist Osama bin Laden himself already could have obtained a New Haven city ID card and Connecticut's homeland security department would not know about it, and his position was that the public should not be able to know about it either. It was, Thomas and New Haven's city administration said, a matter of protecting holders of the city ID cards against people who might assault them out of a resentment of illegal immigration.”

The answer to the second question posed earlier in this blog seems obvious. If Thomas has conspired with quasi-socialist Mayor of New Haven John DeStefano in sanctioning a process that he himself admits could be used to provide possibly false identities to committed terrorists, why should he continue in his office of Homeland Security commissioner? At the very least, should not his title be amended to read State Commissioner of Homeland Insecurity?


POWELL STATEMENT TO FOIC 7/8/2008

Dear Commissioners:

I endorse the legal memorandum that will be submitted by Dustin Gold and the Community Watchdog Project in connection with the proposed decisions in FIC 2007-498, Chris Powell vs. Mayor of New Haven, and FIC 2007-605, Dustin Gold and the Community Watchdog Project vs. Mayor of New Haven and New Haven Community Services Administrator. For the reasons in that memorandum and for the reasons that follow, please do not approve the proposed decisions.

1) The hearing in these cases was highly irregular and unfair to the complainants. The commission accepted affidavits from people whose identities were not provided to the complainants, and thus no cross-examination was possible.

2) The proposed decisions are based largely on hearsay, assertions in documents that were not formally placed in evidence and were not subject to any testimonial examination before the hearing. Note particularly Paragraphs 18a, 18b, and 18c in the proposed decisions. These paragraphs cite assertions made in documents that were submitted by the City of New Haven to the commissioner of the state Department of Emergency Management and Homeland Security and that, in turn, were submitted to the Freedom of Information Commission hearing by the commissioner as the basis of his decision in these cases. No witness testified that the assertions contained in these documents were actually made by the people to whom they are attributed. But the homeland security commissioner did testify that he made no inquiry of his own about any of the documents submitted by the city; he testified that he simply took them at face value. So I question how this commission can claim to have any direct knowledge about the Hal Turner radio program cited in Paragraph 18a, about the Anti-Defamation League publication cited in 18b, and about the Brian James radio program cited in Paragraph 18c. There was simply no testimony verifying these assertions and thus no opportunity for cross-examination. And yet these assertions, all hearsay, are the very core of the proposed decisions.

3) The proposed decisions uphold the decision of the homeland security commissioner to prevent disclosure of the documents requested. Yet the homeland security commissioner himself held no hearings on the requests for disclosure. He testified that he communicated only with New Haven city officials before making his decision. He never gave me or the other complainants in this case an opportunity to be heard in regard to his decision. Is that really the standard your commission means to uphold? Is that consistent with freedom of information and due process?

4) The proposed decisions would construe Connecticut General Statutes Section 1-210(b)(19) to mean that the openness of public records is determined by the degree of controversy generated by them. That is, I lose my ordinary rights to freedom of information if others make enough threats, even anonymous threats or if others purport to be scared enough about disclosure. Is that really the standard your commission means to uphold? If so, Connecticut will never again know which documents are really public documents, for the standard for disclosure will not be intrinsic to documents themselves but rather to the controversy around them.

5) You do not have to construe Section 1-210-(b)(19) this way. For you have construed it differently before. Construing 1-210(b) (19) to mean that the standard of disclosure is not intrinsic to the documents themselves but a matter of the controversy around them, the proposed decisions contradict the Freedom of Information Commission's decision in a case from two years ago, FIC 2006-343, Reitz and The Associated Press vs. Correction Commissioner. Your decision in the Reitz case specifically contradicts the legal construction adopted by the proposed decisions before you today. In the Reitz case, you construed 1-210(b)(19) to deal entirely with the security of government and public utility facilities and the people therein. Before you decide this case, please look at the
Reitz case and see if you can reconcile the decision there with the decisions proposed here. Or at least tell us that you mean to reverse the Reitz case and that you know very well what you're doing.

6) If, with these cases, you do reverse the interpretation you gave to Section 1-210(b) (19) in the Reitz case, you will destroy your own authority. This will become the Freedom of Information Commission only in name when someone feels threatened by disclosure, which, of course, is most of the time. In actual practice jurisdiction for freedom of information will be transferred to the homeland security commissioner. If that's what you do, I hope that the homeland security commissioner at least starts holding hearings and stops deciding cases in secret.

7) Section 1-210(b)(19) is Connecticut's homeland security statute. It was enacted in response to the massive deadly terrorism committed by illegal aliens on September 11, 2001. So is it really possible or plausible that our homeland security statute was meant to require secrecy for a government program undertaken precisely to confer identification documents on illegal aliens and to facilitate their remaining in the country illegally? That is what you are deciding here.
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