That’s expected to change on Tuesday, Dec. 15, when Rep. Luis Gutierrez (D-Ill.) is expected to introduce the Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (CIR ASAP), along with members of the Congressional Hispanic, Black, Asian Pacific American, and Progressive Caucuses.

“We have waited patiently for a workable solution to our immigration crisis to be taken up by this Congress and our President,” Gutierrez said in a statement released today. The bill “is the product of months of collaboration with civil rights advocates, labor organizations, and members of Congress. It is an answer to too many years of pain —mothers separated from their children, workers exploited and undermined security at the border— all caused at the hands of a broken immigration system. This bill says ‘enough,’ and presents a solution to our broken system that we as a nation of immigrants can be proud of.”

If yesterday’s House Homeland Security Committee hearing is any guide, expect a protracted debate over every provision.

“A 2005 congressionally authorized bipartisan commission found that it wasn’t appropriate to detain asylum seekers in prisons,” said Franken. “That was four years ago. Now they’re still being detained in prison, put in jumpsuits and shackles. They’re even put in solitary confinement,” he said. “They aren’t criminals.”

Napolitano responded that part of the agency’s detention reform process, still being implemented, is “to really do a risk analysis for every individual who comes into our system.”

Franken persisted. “There’s a credible fear interview. Very often they continue to be detained even after it’s been determined that they have a credible fear if they go back.”

Napolitano did not deny the problem. “We’re working with officers to increase the speed by which they are paroled into the country if there has been a determination of credible fear.”

According to a recent report on the detention of asylum seekers by Human Rights First, the U.S. detention system for asylum seekers “is inconsistent with international refugee protection and human rights standards.”

This afternoon, an ICE spokesperson sent this response by e-mail:

“ICE is in the process of fundamentally overhauling our immigration detention system to establish consistent standards across the country, prioritize risk, strengthen oversight and increase efficiency. Already we have laid the ground work by creating the Office of Detention Policy and Planning, forming two advisory groups comprised of local and national stakeholders and establishing of the Office of Detention Oversight, an independent apparatus to inspect facilities and investigate detainee grievances. We are committed to improving detainee health and safety and are developing an assessment tool to identify detainee medical issues early on and place individuals in facilities commensurate with their risk. ICE will also soon submit a plan to Congress to implement an alternatives to detention program nationwide for low-risk individuals. These steps will not only enhance accountability and safety in our system, but will also reduce detainee transfers that can separate detainees from counsel and prolong their legal proceedings.”

Dobbs recently left CNN, reportedly with an $8 million payoff, after Latino and immigrants’ advocates campaigned the network to oust him for vilifying Latino immigrants on his nightly news show. In announcing his departure, Dobbs promised to continue to “be a leader in [the] national conversation,” which he’s suggested could include a run for political office.

That may be why he told Maria Celeste on Telemundo that “I am one of your greatest friends and I mean for us to work together.”

The Los Angeles Times notes that the wealthy Texas-born host lives on a 300-acre farm in Northwest New Jersey, where he could launch a run for a Senate seat. Unless his sights are already on the presidency.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

As the pressure grows on the Obama administration to close the prison camp at Guantanamo Bay by January, so too does the risk that some of the Guantanamo detainees cleared for release could be returned to countries where they’ll face persecution or torture, say human rights experts. The men remaining at Guantanamo mostly come from countries that are notorious for torturing prisoners. And the Obama administration has not ruled out returning the men to those places, even though, labeled “enemy combatants” by the Bush administration, they could face retaliation back home.

Meanwhile, it remains unclear whether the courts can step in and stop the administration from returning prisoners to countries known to torture. In April, the D.C. Circuit Court of Appeals ruled that the federal courts have no authority to interfere with where the administration wants to send a Guantanamo detainee. The lawyers on that case, Kiyemba v. Obama, plan to appeal to the Supreme Court this month, but in the meantime, men from Algeria, Tunisia, Libya and other countries notorious for abusing prisoners could be returned to those countries over their objections. Their lawyers are now scrambling to try to stop that.

Illustration by: Matt Mahurin

On Tuesday, the Supreme Court deferred its decision in a related case on whether to review a ruling that judges have no authority to order Guantanamo detainees released into the United States. The court’s punt came in the case of 13 Uighurs, the Chinese Muslim prisoners who have been cleared for release by the U.S. government but cannot return to China for fear of persecution there. But while the Uighurs in that case have been denied the right to be released into the United States, in a way, they’re lucky; the Obama administration has said it will not return them to China.

To be sure, the administration has also promised not to send any detainees to countries where they’re likely to be tortured. But it has also said that in some situations it will accept “diplomatic assurances” from those countries that it will treat the returning detainees humanely. These are, essentially, promises from a torturing country that it won’t torture a particular individual being sent there. But how reliable are those “assurances” really?

Human rights advocates say they’re not at all.

“The record on diplomatic assurances is extremely poor,” said Joanne Mariner, Director of the Terrorism and Counterterrorism program at Human Rights Watch. “It’s rare we see the text of the assurances, so it’s not clear what they consist of, and whether there’s a post-return monitoring mechanism. But there are some very well known cases in which people were sent to Egypt and Syria with diplomatic assurances, and then were tortured.”

Judy Rabinovitz, Deputy Director of the ACLU’s Immigrants’ Rights Project, agrees. “We think there are real problems inherently with the reliability of such assurances and the ability to monitor them,” she said. After all, she noted, most of these countries have signed the United Nations Convention Against Torture, but they’re still torturing prisoners. “When you have a country that’s notorious for torturing, how can diplomatic assurances be reliable? They know they’re not supposed to torture. They’ve signed a treaty. How is an assurance worth more than a treaty?”

One of the most infamous recent cases of torture following assurances from a foreign government involved the Canadian citizen Maher Arar, arrested at JFK airport and sent to Syria for interrogation, supposedly with diplomatic assurances that he’d be treated humanely. Arar says he was brutally tortured there. Human Rights watch has released several reports on the increasing reliance of the United States and other countries on such “diplomatic assurances,” and documented that in many cases, they have not worked. What’s more, it’s often impossible to know whether an individual returned has been tortured, since the country that returns the prisoner has no credible way of determining how he was treated, and both countries have an incentive to say the detainee was treated humanely.

Technically, the United States is bound by the Convention Against Torture and the International Covenant on Civil and Political Rights not to send people to countries where they face a real risk of torture. (The Bush administration argued those laws did not apply to prisoners held abroad.) But as Mariner explained, that often leads those countries to rely on “diplomatic assurances” to say the risk has been diminished. That’s exactly what the Bush administration said it did when it sent terror suspects for questioning under its “extraordinary rendition” program, and many of those suspects claim they were subsequently tortured.

The choice, says Mariner, is either to trust the discretion of the executive branch, or to have some sort of system for deciding the legitimacy of the prisoner’s fears. The D.C. Circuit ruling eliminated the possibility of the federal courts playing that role. That ruling took effect in early September, clearing the way for the U.S. government to begin to return Guantanamo detainees to countries known to torture prisoners.

The administration announced earlier this week that it has cleared 75 Guantanamo detainees for release. The list includes nine prisoners from Tunisia, seven from Algeria, four from Syria, three from Libya, three from Saudi Arabia, two each from Uzbekistan, Egypt, the West Bank and Kuwait, and one each from Azerbaijan and Tajikistan. None of these countries has a strong human rights record.

About 30 of the prisoners cleared for release fear return to their home countries, said Mariner.

Ahmed Belbacha is one such prisoner at risk. He fled his home country of Algeria in 1999 during a civil war between government forces and a militant Islamic group. A former soldier in the Algerian army, he was at risk from both sides. He sought asylum in the UK, where he worked cleaning rooms in a hotel. In 2001, however, while traveling in Pakistan where he was offered free Islamic education, he was captured by the Pakistani Army and turned over to the U.S. military shortly after the U.S. invasion of Afghanistan. The U.S. military deemed Belbacha an “enemy combatant” because he had attended prayer services led by a fundamentalist sheik, travelled on a fake French passport and received small arms training in Afghanistan. Belbacha was sent to the prison at Guantanamo Bay in 2002. But in 2007, the Bush administration decided that he did not pose a threat and cleared him for release. But by this time, Belbacha was afraid to go home; he fears retaliation and torture from both the Algerian government and radical Islamists.

In 2007, Belbacha’s lawyers told the court that they’d learned that the U.S. government planned to return their client to Algeria, and filed an emergency motion asking the court to prevent his transfer. The court ruled it did not have the power to do that, and Belbacha appealed. The court of appeals held off deciding the case though, while waiting for the Supreme Court to rule on whether detainees have the right to challenge their detention in federal courts. (It ruled they did last year in Boumediene v. Bush.) In the meantime, the court temporarily enjoined the U.S. government from sending Belbacha to Algeria.

Then, in April, the D.C. Circuit ruled in Kiyemba v. Obama that the courts have no authority over where the government sends the men. Now, Belbacha is worried again, and his lawyers are scrambling to keep the court from issuing an order that will allow the government to transfer Belbacha to Algeria. His lawyers say he’s now even more likely to be tortured by the Algerian government if he returns there because his struggle to avoid transfer there has drawn international attention and support from human rights groups. As his lawyers put in their brief to the court: “He believes that his strenuous and widely-publicized efforts to avoid transfer to Algeria place him in the government’s crosshairs.”

Belbacha’s lawyers have filed a motion with the court asking that his case be “held in abeyance” until the lawyers handling the Kiyemba case have an opportunity to file a petition to the Supreme Court, and then until the Supreme Court decides whether to hear the case. Holding the case off would leave in effect a June 2008 district court order prohibiting the government from transferring him to Algeria.

The Department of Justice, meanwhile, is vigorously fighting to lift that order, arguing that the D.C. Circuit has already decided that the courts don’t have authority to prevent a detainee’s transfer, and that the government has promised not transfer any detainee to a country where “he is more likely than not to be tortured.”

That’s not sufficient assurance for Belbacha and his lawyers, however. “The U.S. has not assured Belbacha that he won’t be sent back,” said David Remes, Executive Director of Appeal for Justice and a lawyer for Belbacha. As the law stands now, there is no court or independent arbiter to whom Belbacha can appeal.

Human rights advocates say that Algeria’s abusive treatment of two other prisoners recently returned there by the UK raises serious concerns. According to Human Rights Watch, the men were reportedly threatened and beaten in custody. Statements coerced from them were used against them at trial, and both were sentenced to several years’ imprisonment.

Lawyers for Guantanamo detainees from Libya and Tajikistan who similarly fear persecution if returned home have also asked federal judges to at least temporarily prevent their clients’ transfer until the Supreme Court can consider whether courts have any authority over the administration’s decisions about where to send them.

The Obama administration, in another context, has similarly indicated that it is willing to send people to countries known to torture. In making recommendations on the transfer of terror suspects to other countries for interrogation – commonly known as renditions – an Obama administration task force recommended that renditions be permitted to countries known to practice torture, so long as the administration obtains assurances that the suspect will be treated humanely. Although the Obama administration has promised to monitor and enforce those assurances, Human Rights Watch has found that “monitoring is no panacea” because the prisoners cannot be guaranteed confidentiality. Their reports of abuse to foreign monitors would be easily traceable to them, placing them at serious risk of retaliation.

It’s part of Department of Homeland Security Secretary Janet Napolitano’s tough-on-illegal immigrants strategy, and it wins President Obama points from conservatives who fear he’ll go soft on “illegals”. But the abuse of immigrants by local sheriffs like Joe Arpaio in Arizona have outraged immigrant advocacy groups, while even major law enforcement organizations oppose saddling local cops with federal law enforcement responsibilities that often undermine police forces’ ability to do their jobs.

Stepping up the pressure, on Tuesday, 521 different civil rights and advocacy organizations sent a letter to President Obama urging him to immediately terminate the program, known as 287(g) after the section of the immigration law that authorizes it.

Capitalizing on the President’s recent remarks acknowledging a history of racial profiling in the United States in connection with the arrest of his friend, Harvard Professor Henry Louis Gates Jr., the letter reads in part:

We applaud your recent remarks acknowledging, that “there is a long history in this country of African Americans and Latinos being stopped by law enforcement disproportionately.” However, DHS’s continued use of the 287(g) program exacerbates exactly this type of racial profiling. In light of well-documented evidence that local law enforcement agencies are using 287(g) powers to justify and intensify racial profiling, Secretary Napolitano’s July 10, 2009 announcement that DHS has expanded the 287(g) program to include 11 new jurisdictions is deeply alarming.

The letter comes on the heels of a recent admission by President Obama that he’s not likely to get an immigration reform bill passed this year, though he’d promised Latino groups he’d make that a priority when he was running for office.

Immigration experts say the continued crackdown on enforcement without providing an opportunity for legalization of otherwise law-abiding immigrants could dampen Latino voters’ initial enthusiasm for Obama, as well as for other Democrats in the next round of elections.

Analyzing previously unreleased documents obtained through litigation assessing the government’s compliance with 15 detention standards, the report finds “widespread and severe violations” of the standards. The standards pertain to issues such as visitation rights, legal representation, telephone access and disciplinary actions by ICE. The report also notes that reviews by the American Bar Association and United Nations High Commissioner for Refugees “routinely documented violations that government reviews failed to capture, even when reviews of the same facilities conducted by the government and an independent agency occurred within a few weeks or months of each other.”

Violations overlooked by DHS included, for example, that detainees were punished more severely than allowed for minor disciplinary infractions.

Part of the problem, claim some of the lawyers involved in producing the new report, is that the DHS rules are not judicially enforceable, so there’s no way to ensure the agency follows them. Last week DHS rejected a petition by immigrants’ rights advocates to promulgate rules that would be enforceable, concluding that “rulemaking would be laborious, time consuming, and less flexible, and could impede DHS’s ability to expeditiously respond to changed circumstances.”

Sheriff Joe Arpaio (Maricopa County Sheriff's Office)

Sheriff Joe Arpaio has made a name for himself using controversial tactics targeting illegal immigrants in Arizona. The chief law enforcement officer of Maricopa County and author of the book “America’s Toughest Sheriff,” Arpaio boasts that he’s arrested some 30,000 undocumented immigrants, many of whom he’s put to work on chain gangs, paraded in pink underwear before news cameras, and housed in sweltering plastic tents clustered behind coils of concertina wire.

Illustration by: Matt Mahurin

But as William Finnegan recently documented in The New Yorker, Arpaio’s publicity stunts – enabled by a federal immigration program known as 287(g) that deputizes local authorities to enforce federal immigration laws — aren’t just humiliating. Prisoners have filed thousands of legal claims of abuse against Arpaio and his deputies – and by families of those who’ve died under his watch. A federal investigation found Arpaio’s deputies used “stun guns” on inmates strapped into restraint chairs; some have died in those chairs. One lawsuit brought by a dead prisoners’ family ended in an $8 million settlement after “a surveillance video that showed fourteen guards beating, shocking, and suffocating the prisoners, and after the sheriff’s office was accused of discarding evidence, including the crushed larynx of the deceased.”

Although Arpaio is now the target of a federal investigation for civil rights violations, he’s never lost his authority to enforce the federal immigration laws under the 287(g) program.

Homeland Security Secretary Janet Napolitano is in charge of that program, and recently announced its expansion to 11 more jurisdictions. The former U.S. Attorney and then Governor of Arizona, Napolitano was reportedly allied with the politically popular Arpaio and long tolerated his abuses, referring at a press conference to the lawsuit she settled with him while a federal prosecutor as “lawyerly paperwork.”

In announcing the expansion of the 287(g) program, which conservative and restrictionist groups have long been encouraging, Napolitano hailed its success at supporting “local efforts to protect public safety by giving law enforcement the tools to identify and remove dangerous criminal aliens.”

“The 287(g) program is an essential component of DHS’ comprehensive immigration enforcement strategy,” said ICE Assistant Secretary John Morton on July 10. “The new agreement strengthens ICE’s oversight of the program and allows us to better utilize the resources and capabilities of our law enforcement partners across the nation.” Perhaps in part because of the 287(g) program, criminal prosecutions of immigrants over the past year were up almost 150% over five years ago.

That’s not an unmitigated success in the eyes of immigrants’ advocates, however.  Last week, 25 civil rights and community groups denounced DHS’s plans to expand the 287(g) program, citing previous findings of its abuse.

“DHS is fully aware that the abusive misuse of the 287(g) program by its current slate of agencies has rendered it not only ineffective, but dangerous to community safety,” said Andrea Black, Coordinator of the Detention Watch Network in a statement. “It is surprising Napolitano did not simply shut this program down,” she added. “Expanding this failed program is not in line with the reform the administration has promised.”

In addition to expanding the program’s reach, Napolitano promised to create new standardized agreements between DHS and local law enforcement authorities that would specify the extent and limits of local authority and emphasize that the point is to stop violent crime, not to apprehend undocumented immigrants. Those limits have been criticized by some restrictionist groups who support the current program.

Those changes attempt to respond to a report released in March by the General Accountability Office, which concluded that the 287(g) program, instead of concentrating on serious crime as intended, was being used by some local police to have immigrants deported for such minor infractions as speeding, carrying an open container of alcohol and urinating in public. Advocates have also claimed the program encourages widespread racial profiling.

The new standardized agreements do little to get at the problem, critics claim. In fact, it may make the situation worse by concealing how the program operates.

The changes make “no serious attempt at discouraging illegal racial profiling or reducing the conflict between sound community policing principles and the expansion of this program,” said Omar Jadwat, staff attorney with the ACLU Immigrants’ Rights Project, in a statement issued last week. In addition, “the new MOA [Memorandum of Agreement] actually takes several disturbing steps backward, particularly in the area of transparency.”

For example, the new agreement restricts the release of information about the program and its use, saying all information “obtained or developed as a result of this MOA is under the control of ICE and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations, and executive orders.” Documents created by the agency or developed pursuant to the agreement “shall not be considered public records.”

“ICE claims that they have responded to a lot of the concerns around the 287g program,” says Brittney Nystrom, legal director of the National Immigration Forum, an immigrants’ advocacy group. But “the language in the new standardized agreement is not substantially different than the old agreement. In some ways it’s even a step backward.”

The tightly controlled information is one of those steps back, she says. “More data is needed around the 287g program,” specifically concerning who is being arrested and whether the arrest is for a minor infraction or a serious crime. “That would address whether these are pretextual arrests” — arrests that use the immigration laws to target generally law-abiding immigrants — “or whether ICE is doing what it claimed, focusing on serious dangerous criminals. If most arrests are for things like traffic violations or fishing without a license, that would raise a red flag.”

The new agreement doesn’t specify whether DHS is collecting that kind of data, but it does specify that any data it does collect will not be made public. “Before it was not clarified one way or the other,” said Nystrom. “It’s always been a concern that data collection is insufficient. Any change that would limit the amount of data around these programs is a step in the wrong direction,” she said.

DHS shouldn’t have expanded the program without first determining whether the changes solve the problems, say many advocates. “Any changes should have been made first, and evaluated before expanding the program,” said Nystrom.

Past abuses of the program include the deportation of a developmentally disabled U.S. citizen to Mexico, the shackling of an undocumented pregnant women in labor, and the arrest of an immigrant who’d called on police to protect her sister from domestic violence. Many more have reportedly been deported under the program despite being lawful residents or having legitimate claims to remain in the United States.

Such incidents have generated widespread fear in immigrant communities, say advocates and many law enforcement officers. The head of a national police officers’ association in March testified to Congress that the program actually hurts law enforcement efforts because it drains resources and “undermines the trust and cooperation with immigrant communities that are essential elements of community policing.”

In February, Justice Strategies, a nonprofit research organization, found that 87 percent of jurisdictions participating in the program did not have high crime rates but were “undergoing an increase in their Latino populations higher than the national average.” Instead of focusing on serious crime, Justice Strategies found, “police resources are spent targeting day-laborers, corn-vendors and people with broken tail-lights.”

Although the new DHS agreements now state more clearly the program’s objectives, “not mentioned in there is how they’ll enforce those priorities,” said Joan Friedland, Policy Director for the National Immigration Law Center.

The new agreement attempts to address racial profiling and pretextual arrests by requiring law enforcement to pursue criminal charges to their resolution.  But advocates say it’s not clear what that means, or if that will really address the problem.

“Will police interpret that as, we have to convict people? What happens to deferred prosecution?” asked Friedland. In the past, police could defer prosecution for a minor crime in exchange for a monitored period of good behavior.

“If they’re trying to combat profiling and pretextual arrests we applaud them for their intent,” said Nystrom. “I’m just not sure this is the right path.”

Known as 287(g) authority because of the section of the immigration law that authorizes it, this delegation of federal law enforcement power to local police has sparked strong criticism from immigrants’ rights advocates for failing to prioritize the most serious crimes and allowing local sheriffs, like the notorious Joe Arpaio of Arizona, to target immigrants for the most minor crimes and allegedly engage in racial profiling.

The new standardized memorandum of understanding between DHS and local police, according to DHS, “defines the objectives of the 287(g) program, outlines the immigration enforcement authorities granted by the agreement and provides guidelines for ICE’s supervision of local agency officer operations, information reporting and tracking, complaint procedures and implementation measures.”

But the new agreement isn’t satisfying immigrants’ rights advocates.

“Not in there is how they’ll enforce those objectives and priorities,” said Joan Friedland, Policy Director for the National Immigration Law Center. It’s also not clear how they’ll prevent racial profiling, she noted, or whether they’ll start keeping relevant statistics to try to track it. Plus, the new agreement, in an effort to prevent local authorities from using criminal laws as a pretext for picking up immigrants for deportation, now requires law enforcement to pursue criminal charges to their resolution. Advocates say it’s not clear what that means.

“Will police interpret that as, we have to convict people? What happens to deferred prosecution?” asked Friedland. In the past, police could defer prosecution for a minor crime in exchange for a monitored period of good behavior.

The American Civil Liberties Union today released a statement expressing its disappointment with the new agreement.

“The new standardized MOA makes no serious attempt at discouraging illegal racial profiling or reducing the conflict between sound community policing principles and the expansion of this program,” said Omar Jadwat, staff attorney with the ACLU Immigrants’ Rights Project. “The Department of Homeland Security has claimed that the new MOA contains many significant improvements, but now that we actually have the document, it is clear that many of the claimed changes are really not changes at all, that the remaining changes have little or no positive operative effect, and that the new MOA actually takes several disturbing steps backward, particularly in the area of transparency.”

The new standardized agreement can be found here. The ACLU’s comparison of the new agreement with the old agreement with Maricopa County in Arizona is here.

Update: This afternoon a group of 25 civil rights and community groups issued a statement denouncing DHS Secretary Janet Napolitano’s plans to expand the 287(g) program to 11 more jurisdictions around the country.

Here’s the statement of Andrea Black, Coordinator of the Detention Watch Network:

DHS is fully aware that the abusive misuse of the 287(g) program by its current slate of agencies has rendered it not only ineffective, but dangerous to community safety.  It is surprising Napolitano did not simply shut this program down. Expanding this failed program is not in line with the reform the administration has promised.

Not only are most immigrants in detention centers imprisoned for months or even years despite not having committed a crime, as I wrote Monday, but, as Glenn Greenwald points out in Salon, while the heterosexual legal spouse of a U.S. citizen is allowed to live and work and apply for citizenship in the United States, gay spouses of U.S. citizens get no such privilege. Meanwhile, we have voters in California and elsewhere voting to make it impossible for gay people to get married and obtain that right. Whether intentionally or not, turns out they’re making an anti-immigration argument, too. The rule is estimated to be keeping thousands of people in committed same-sex relationships from even living in the same country.