City Commissioners Vote to Buy Brownsville a Border Wall

By Scott Nicol

On June 2, the Brownsville City Commission finally capitulated to the Department of Homeland Security’s demand that they give away city property to build the border wall. They had attempted to do this twice before, first last July and again this past February. In both instances the commissioners backed down in the face of widespread opposition from Brownsville residents. This time, however, they stuck with DHS, ignoring the will of the people by voting to give away the city’s land and to commit to build a border wall through Brownsville at the city’s expense. No other city has done so much to help build the border wall.

When the City Commissioners considered this deal last February, they issued a press release praising it, saying that “The City of Brownsville is in the unique position to be the only border city between San Diego, California and the Gulf of Mexico to be offered the ability to remove the federally mandated border fence.” The Commissioners’ spin leaves out the fact that the initial border wall will only be removed after it is replaced with a border wall that will be far more permanent and imposing, and one for which Brownsville taxpayers will foot the entire multi-million dollar bill.

While the contract with DHS has been rewritten, the substance remains the same. The City of Brownsville will give up 15 acres of city property, which DHS valued at $123,100 when it initiated condemnation proceedings last September. The Department of Homeland Security will not pay a dime for the city’s land.

"Floating fence" border wall design in Cameron County, Texas

DHS will then build what they call a “floating fence” on the formerly city-owned property. While the City Commissioners may see the use of this border wall design as a victory, maps of the border wall released by DHS in July 2008 for their Environmental Stewardship Plan (ESP) clearly show “floating fence” on the city’s land. The ESP states, “Floating primary pedestrian fence consists of prefabricated floating fence panels placed on the levee. Floating fences are generally concrete barriers with pickets anchored on top.” This type of border wall has already been erected in parts of western Cameron County. So the floating fence is not a concession on the part of DHS, but what DHS had planned in the first place.

According to the contract, at some indefinite time in the future, the city will pay to build a levee-border wall in another unspecified location to replace the “floating fence.” It stipulates that the city must pay to buy the land for the new levee-border wall, and “construction shall be the responsibility of Brownsville, and shall not be performed by the United States or at any cost to the United States.” The bids for the levee-border walls in Hidalgo County ranged from $12 to $16 million per mile. Placing cost ahead of confidence in the quality of construction of our flood control levees, Hidalgo naturally went with the low bidder. Assuming that Brownsville does the same, the 2-4 miles of levee-border wall that will slice through the city will cost between $24 and $48 million, every dime of which must come from city coffers.

Levee-border wall under construction in Hidalgo County

Once Brownsville constructs the new levee-border wall, DHS will pay to take down the “floating fence.” Maybe. Homeland Security’s promise to pay to take down the first border wall is “subject to the availability of funding.” If they do not have the cash in hand, “then DHS shall provide Brownsville with appropriate access and authority to remove such sections and dispose of the removed material” at the city’s expense.

One new provision in the contract that the City Commission approved states that, “Brownsville shall, at its sole expense, preserve and maintain the Replacement Border Barrier.” So not only will Brownsville’s taxpayers have to pay to build a levee-border wall that none of them want, they must also pay to maintain it for decades to come.

Of course, it is unlikely that Brownsville will be able to come up with all of this money, so the “temporary” border wall will in fact be permanent.

But if they do, and private developers come through with millions more to build a riverwalk, we can look forward to long lines of tourists waiting to show their passports to go through the border wall to reach the trendy restaurants on the other side. What could be more appealing than fine dining in a no-man’s land that the Department of Homeland Security has walled off to keep “terrorists and terrorist weapons” from entering the rest of the United States?

Levee-border wall at the Old Hidalgo Pumphouse World Birding Center in Hidalgo County

Even if everything goes as the City Commission hopes, this deal defies all logic. It is as if someone took away your home, and rather than fight in court to either stop them or force them to pay you its market value of $123,100, you offered to buy them new land and build them a new house that would cost anywhere from $24 to $48 million, and you would then pay to maintain it. Accepting such a deal would certainly put you in a “unique position.”

Yet, this is the deal that Brownsville City Commissioners Anthony Troiani, Edward Camarillo, Ricardo Longoria, and Leo Garza voted to accept. Charlie Atkinson, who is a Border Patrol employee, abstained. Commissioner Carlos Cisneros and Mayor Pat Ahumada voted to reject it.

When public funds are used to build schools, hospitals, or other structures for the benefit of taxpayers, the politicians who approved the project can be counted on attend a ribbon-cutting ceremony and place a plaque telling future generations of their accomplishment. If the City of Brownsville manages to pull funds from schools, hospitals, or other projects to build the levee-border wall, I trust that the City Commissioners who voted for it will be on hand for the dedication ceremony. They can smile and wave and shake hands with the grateful residents of Brownsville, who will sleep better knowing that the border is no longer broken, that floods of terrorists no longer wash over Brownsville, and that it was their City Commission that brought about this shining moment. Engraved on a bronze plaque that will be bolted to the concrete slab of the border wall will be the names:

Anthony P. Troiani

Edward C. Camarillo

Ricardo Longoria

Leo Garza

Supreme Court Fails to Restore the Rule of Law to the Border

The Supreme Court’s refusal to hear arguments that the waiving of all state, local, and federal laws to build the border wall is unconstitutional is a tremendous blow for border residents and the principle of the rule of law. We had hoped that the court would honor its obligation to examine the constitutionality of section 102 of the Real ID Act, which is an unprecedented power grab by the Executive branch, and which creates unequal legal protections for U.S. citizens that are solely dependant upon what part of the country one lives in. In this instance the Supreme Court shirked its duty, leaving the border without the benefit of the rule of law that is enjoyed by the rest of our nation.

Section 102 of the Real ID Act allows for the suspension of all laws to build the border wall, stating, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.” No other United States citizen is granted this extreme power under any circumstance. Even the president does not have this power to waive our nation’s laws, no matter what crisis may arise.

When former Homeland Security Secretary Chertoff waived 36 federal laws in April 2008, he knew that in building border walls he would be violating those laws. Obeying the law is not voluntary, it is mandatory. In a nation of laws all laws must be respected, not just those that are convenient. Those laws were enacted to prevent the kind of damage that we see everywhere border walls have been built.

For plaintiffs such as the Frontera Audubon Society, the Friends of the Wildlife Corridor, and the Friends of Laguna Atascosa National Wildlife Refuge, the fate of the Lower Rio Grande Valley National Wildlife Refuge is of particular concern. Consisting of individual tracts of native habitat linked by the Rio Grande, it creates a wildlife corridor, providing federally endangered species such as the ocelot and jaguarundi sufficient territory to find food, water, and mates. Migratory birds also rely on it to rest and refuel on their annual journeys, as well as for nesting. The border walls that have been built, and those that are still under construction, slice through many refuge tracts and cut off others from the river. The wall is fragmenting habitat, blocking migratory pathways, denying animals access to fresh water, and isolating breeding populations of endangered ocelot and jagurandi. Because the Endangered Species Act, the Migratory Bird Treaty Act, the National Wildlife Refuge System Administration Act, and the National Environmental Policy Act were among the 36 federal laws that the former Secretary swept aside, none of the usual legal protections for these supposedly protected lands remain.

In addition, Texas border communities depend upon the Rio Grande for irrigation and drinking water. But former Homeland Security Secretary Chertoff waived not only the Safe Drinking Water Act and the Clean Water Act, but also “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” those, and 34 other, laws. So where the wall has been built, in El Paso and Eagle Pass and Hidalgo and Brownsville and other border communities that draw water from the Rio Grande, all laws “related to the subject of” water are no longer in effect. This absurd situation prompted the El Paso County Water Improvement District No. 1 and the Hudspeth County Conservation and Reclamation District No. 1 to take part in the challenge to the constitutionality of the Real ID Act’s waiver authority.

Equal protection under the law is meant to be a fundamental right shared by every American, but the Real ID Act makes the legal rights of citizens who live near the border conditional on the whims of an unelected Administration appointee. The Secretary of Homeland Security cannot waive the laws that protect citizens who live away from the border. Only border residents may have their legal protections waived.

When the Supreme Court decided not to hear these arguments without uttering so much as a word as to why, they shirked their duty as the final arbiters of the United States constitution and the principle of the rule of law that it enshrines. This precedent bodes ill for the rest of the nation, as any manufactured crisis may be used to enact a similar waiver. A “broken” northern border may be the pretext for a new bill waiving laws along the Canadian boundary, or an “energy crisis” may provide a convenient excuse to do away with laws that prevent drilling in the Arctic National Wildlife Refuge. The Supreme Court’s inaction will likely have repercussions beyond the destruction wrought by the border wall.

No More Deaths Volunteer Convicted of Littering for Leaving Water in the Desert

The group No More Deaths has been working to save immigrants who are funneled into the Arizona desert by the border wall. In 2006, even before the Secure Fence Act led to the construction of hundreds of miles of Arizona border wall, the Government Accountability Office found that immigrant deaths had doubled as a result of the first walls built in California. A number of No More Deaths volunteers have been charged with littering for leaving water for border crossers. In the Arizona desert, where summer temperatures regularly top 110 degrees, it is virtually impossible to carry sufficient water. No More Deaths issued the following press release regarding the conviction of one of their members for leaving water in the desert for migrants:

Humanitarian Who Left "Life-Sustaining Water" for Migrants Convicted of “Littering”

Walt Staton, a volunteer with the Tucson-based humanitarian aid group No More Deaths, was convicted today of "knowingly littering garbage or other debris" after he left clean drinking water for undocumented migrants crossing the desert on the Buenos Aires National Wildlife Refuge.

In response to this verdict, No More Deaths released the following statement:

“This is a sad day for human rights and for all of us in southern Arizona. By penalizing life-saving work, the United States is showing callous disregard for the lives of our neighbors to the south, whose only crime is to seek a better life. No More Deaths will continue to provide life-saving aid to those in need, and to do our part to clean up the desert. The era of border enforcement that uses death and human rights abuses as a deterrent must come to an end.”

After more than four hours of deliberation on Tuesday afternoon and Wednesday morning, the 12-member jury first stated to the court that they were not able to agree upon a verdict. Magistrate judge Jennifer Guerin then ordered the jury to go back and attempt again to reach a unanimous verdict. Staton's attorney, William Walker, objected to the order, stating that it was coercive to the jury. The jury reconvened and met for less than an hour before returning a guilty verdict.

On December 4, 2008, U.S. Fish and Wildlife officer James Casey cited Staton and three other humanitarians for littering after being contacted by Border Patrol agents who were following the volunteers. The US Attorney’s office later dropped the charges against the other three. Staton refused to accept guilt and pay the original $175 fine. He now faces the punishment of this criminal misdemeanor that could include up to one year of prison time and a large fine. Sentencing is set for August 11.

In Staton's court testimony, he said that he was compelled by his personal experiences of encountering severely dehydrated migrants in distress. He also explained how the organization uses a strategic system of maps and GPS equipment to place the water in strategic locations. "We try to be conscious as an organization to be the most effective in order to save lives," stated Staton during examination.

During closing arguments, defense lawyer Bill Walker held a full gallon jug of water in the air and declared: "When the government tells you this case isn't about water or this isn't about saving lives, they're wrong! This is valuable, life-sustaining water."

During jury selection nearly one third of the original 31 potential jurors were dismissed after stating they had strong emotions about providing humanitarian aid to migrants and would be unwilling to convict someone who was engaged in humanitarian aid. Public support was also evident during the two full days of the trial as the courtroom remained full with 40-50 humanitarian supporters from local groups such as The Samaritans, Humane Borders, American Friends Service Committee and the Unitarian Universalist Church of Tucson, among others.

Dan Millis, a fellow No More Deaths volunteer, received a similar ticket in February, 2008, for leaving water jugs on the Buenos Aires National Wildlife Refuge. Millis was found guilty last September after a bench trial before magistrate judge Bernie Velasco in Tucson. Dan appealed the case to the US District Court, where the original ruling was upheld. It is currently under appeal at the 9th Circuit Court. Staton also plans to appeal his case to the 9th Circuit.

“The Buenos Aires leadership needs to realize that we’re on the same team here,” Millis said. Millis works full-time for the Sierra Club’s Borderlands Protection Campaign. “They need to issue more permits allowing humanitarian groups to provide water and pick up trash on the refuge,” he said.

Letters of support for Walt Staton, Dan Millis and No More Deaths can be sent to media@nomoredeaths. org; they will be posted on our web site.

* Background on No More Deaths:

According to Pima County medical examiner's data, approximately 20 bodies of deceased migrants have been recovered from Buenos Aires National Wildlife Refuge since 2002. Dehydration is a factor that leads to many of these deaths. More than 5,000 bodies have been recovered from the US/Mexico border as a result of the U.S. Border Patrol’s strategy of deterrence, beginning in 1994 with Operation Gatekeeper.

Since 2004 No More Deaths has provided life-saving aid to migrants in distress along the Arizona/Mexico border. Thousands of volunteers have participated in these efforts, which include providing water, food and medical assistance. No More Deaths is a ministry of the Unitarian Universalist Church of Tucson and seeks to work with other religious groups, government, community partners, and individuals willing to work toward an end to the humanitarian crisis occurring in the Arizona desert.

No More Deaths is currently gearing up for its sixth summer of humanitarian action during the hottest, deadliest months of the year. We are accepting volunteer applications for the summer, and welcome any and all donations to support our work!

For an updated list of migrant deaths in Arizona, visit DerechosHumanosAZ. net.

Please take a moment to sign the following e-letter to participate in an international campaign declaring that "Humanitarian Aid Is Never A Crime!” This letter speaks to a case in which the Italian government is prosecuting two Germans for "smuggling" after they rescued a sinking raft in the Mediterranean Sea with 37 African refugees on board. Such prosecutions resonate with the efforts by the United States government, described above, to criminalize life-saving humanitarian work.