By kvetching to the Arizona Republic and KTAR 92.3 FM's Jay Lawrence over the weekend about his brand-spanking new, 287(g) jails contract with ICE, has Arpaio thereby violated his agreements with ICE, both old and new?
In Section XVIII, paragraph two of the freshly minted Memorandum of Agreement, the recently released document, signed by Arpaio on September 30, states that,
"The MCSO hereby agrees to coordinate with ICE prior to releasing any information relating to, or exchanged under, this MOA, including any SOPs [Standard Operating Procedures] developed for the implementation of this MOA."
The agreement re-states this language in the third paragraph of the same section, reading, "The MCSO hereby agrees to coordinate with ICE regarding information to be released to the media regarding actions taken under this MOA."
You can peruse the new MOA, here. According to Maricopa County Board of Supervisors spokesman Richard DeUriarte, the new agreement will be on the agenda for Wednesday's Supervisors' meeting.
Other than Arpaio and a representative of the Maricopa County Attorney's Office, no one else has signed the agreement. Thus, the new MOA remains in legal limbo. The space for the signature of top ICE honcho John Morton is blank, as are spaces for the Chairman and the Clerk of the county Board of Supervisors.
Even if Arpaio is operating under the old MOA with ICE, which dates back to early 2007, he's still apparently in violation of it. The 2007 MOA states, in similar language, "The LEA [Law Enforcement Agency] hereby agrees to coordinate with ICE before releasing information to the media regarding actions taken under this MOA."
According to my sources, Arpaio did not coordinate with ICE before making his statements to the Arizona Republic and KTAR.
A niggling matter? On the contrary, the willingness of Arpaio to violate his understanding with ICE -- right out of the gate in the case of the new MOA -- should signify to what extent Arpaio can be trusted by the feds to comply with the MOA's language. Also, Arpaio is plainly not entering into this new understanding "in good faith," as he should be doing.
Indeed, in a July 28 letter from Arpaio's D.C. lawyer Robert Driscoll to Department of Homeland Security Director Janet Napolitano and DHS Inspector General Robert L. Skinner, Driscoll complained that Matthew Allen, the top ICE guy in Arizona, "threatened to immediately terminate MCSO's involvement in the 287(g) program because the sheriff contacted the media without first obtaining approval from DHS."
This was after an incident in which the MCSO tape-recorded communications between sheriff's deputies and ICE officials over the release of a handful of undocumented individuals without criminal records. At the time, Arpaio played these communications to the media in a "gotcha" moment.
Assuming Driscoll's letter was accurate in its depiction of events, Arpaio's abrogation of the terms of the agreement was viewed by Allen as grounds for termination of Arpaio's 287(g) authority.
Talk about deja vu. This Sunday, Arpaio vowed during an interview on KTAR 92.3 FM that he would in the future further violate the terms of his jails agreement with ICE by taking into custody suspected aliens and shipping them down to the border himself if ICE refused to take them.
Yet the new agreement states, "The MCSO is expected to pursue to completion all criminal charges that caused the alien to be taken into custody and over which the MCSO has jurisdiction."
That language was concocted as a legal prophylactic, to prevent scalawags, such as our septuagenarian sheriff, from using pretextual stops to pull over Hispanics in order to question them about their nationality, then conveniently forgetting about the reason for the stop to begin with. (Note: For you anti-brown nativists out there, racial profiling happens to be illegal.)
The new agreement makes clear that ICE will only take custody of an alien if they've been convicted of a state, local or federal crime, or if an ICE muck-a-muck decides to make an exception.
Arpaio stated on the radio Sunday that his intention is to operate counter to these strictures:
"If we find during the arrests that that there are illegals, we arrest them. Now the only difference [is] we're going to take 'em down to ICE. I hope they accept them, if they don't, I'll bring 'em myself to the border."
Why would the feds want to sign on someone who announces an antagonistic relationship with them from jump? What's the point? Why are they so grotesquely miscalculating this penny-ante Tony Soprano, this bush league Jimmy Cagney?
More gravely, Joe's proposed new jails understanding states that "participating MCSO personnel are bound by all federal civil rights laws, regulations, guidance," etc. This includes the U.S. Department of Justice's own guidelines and Title VI of the Civil Rights Act of 1964, "which prohibits discrimination based upon race, color or national origin..."
Already, the DOJ is investigating Arpaio for racial profiling and civil rights abuses. And the MCSO is being sued in federal court because the agency has racially profiled legal residents and U.S. citizens, believing them to be illegal. It makes no sense to grant Arpaio another day of federal power given his department's past history of abuses; i.e., marching 200 Mexican immigrants to a segregated Tent City, breaking the arms and busting the jaws of women prisoners, holding law abiding citizens and green card holders in handcuffs for hours on end, and so on.
County Supervisor Mary Rose Wilcox says she is reviewing the new MOA, and is waiting to talk to ICE head John Morton before making a commitment either way.
"All of those things weigh really heavy on my mind," said Wilcox of the civil rights abuses in Arpaio's gulags. "I wish ICE had just suspended the whole nine yards of it. But they didn't, so it's a dilemma, and I'm trying to sort it out."
Wilcox is the lone Democrat and often the lone voice of reason on the BOS. Still, it would certainly seem logical for the Supervisors to, at the very least, table the issue until ICE has officially signed off on a jails agreement.
Phoenix civil rights leader Salvador Reza told me he plans to attend the BOS meeting Wednesday and speak out against the new MOA. Similarly, Lydia Guzman head of the local pro-immigrant organizations Respect/Respeto and Somos America also indicated that she would oppose an MOA leaving 287(g) in Arpaio's jails.
Beyond the confines of Sand Land, Frank Sharry, founder of the D.C.-based immigration reform movement America's Voice, excoriated the Obama Administration for not suspending all of Arpaio's federal power.
"My take on Arpaio re-signing is the following," Sharry told me via e-mail. "DHS should be ashamed of themselves. Despite attempts to make it look like they are reining him in, the fact remains the Obama Administration is extending federal authority -- and therefore its legitimacy -- to the Bull Connor of our generation.
"It seems to me the more sensible course of action," he continued, "would be to suspend all aspects of any 287g agreement with Arpaio, at least while the Department of Justice is conducting an investigation into his department's widespread violations of civil rights."
Let's go a step farther. Let's end the 287(g) system that allows pernicious lawmen to flourish. Arpaio took advantage of a federal offer under the Bush administration to metastasize. Now it's the federal government's responsibility to apply as much radiation as possible, till the cancer is finally in remission.
