Reagan's Ghost Haunts GOP on Immigration and Torture
Name an issue, foreign or domestic, and Republicans will turn to the holy ghost of Ronald Reagan for wisdom and guidance. But for two of the biggest controversies in the news this week--immigration and torture--conservatives won't like the answer they get when they ask, "What would Reagan do?" After all, President Reagan didn't just sign an amnesty bill for three million undocumented immigrants in 1986. He then acted unilaterally to keep thousands of immigrant families together by using the exact same executive authority President Obama turned to on Thursday night. And when it comes to the ongoing national shame that is the Bush administration's regime of detainee torture, it was Reagan who in 1988 signed the Convention Against Torture that not only codified waterboarding as a crime, but demanded that the United States prosecute those who ordered and perpetrated it.
As Foreign Policy and many other outlets have documented, the Obama administration and Senate Intelligence Committee Chairwoman Dianne Feinstein are battling over the final, declassified version of the long-overdue Senate torture report. But while that the confrontation continues in Washington over that purportedly scathing assessment, last week in Geneva the United States made a very matter of fact admission that it had, in fact, committed torture. As the New York Times reported:
In a two-day presentation in Geneva, the American delegation acknowledged that the United States had tortured terrorism suspects after the Sept. 11 attacks. It emphasized, however, that the government had since tightened its rules, including with a 2005 statute against using cruelty and a 2009 executive order by President Obama that limits interrogators to a list of techniques in an Army field manual.
During the required quadrennial review by the UN panel monitoring international compliance with the Convention Against Torture, Committee expert Alessio Bruni asked Assistant Secretary of State Tom Malinowski "f the delegation could give an example of prosecution of public official violating this legal provision, which is contained in section 1003 of the Detainee Treatment Act."
Ronald Reagan would have asked the same question. In his May 20, 1988 signing statement on the Convention Against Torture, Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:
The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.
To put it another way, American and international law doesn't give Barack Obama the choice to decide whether "to look forward as opposed to looking backwards" when it comes to torture practiced by the United States. As Marjorie Cohn detailed in October 2012, the United States has "a legal duty to prosecute torturers":
The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.
As Scott Horton pointed, that's especially the case when the perpetrators proudly confessed to the crime, as Dick Cheney and George W. Bush did repeatedly.
But while the President does not enjoy "prosecutorial discretion" in complying with the nation's treaty agreements on torture, immigration enforcement is another matter. As Greg Sargent explained in the Washington Post:
Immigration statute empowers the president to deploy a specific tool -- known as "deferred action" -- to shield people from deportations, and courts have recognized executive authority to apply it to whole categories of people.
Well before the Obama presidency, Congress enshrined in statute the tools to institute such enforcement priorities. One tool is called "deferred action," and this includes work authorization. This status is merely a temporary reprieve (more on this later) and does not make the path to eventual legal status any more assured.
As the National Journal has documented, virtually every president since FDR has availed himself of deferred action to enable millions of Mexicans, Europeans, Vietnamese, Cubans, Haitians and countless other nationalities to remain in the United States without fear of deportation. Among them was President Ronald Reagan, who repeatedly used his executive authority as President Obama seeks to do now.
After the passage of the 1986 Immigration Reform and Control Act which provided "amnesty to more than 3 million immigrants who had come here illegally but had been working in the country since at least 1982," President Reagan still faced a quandary. "The new law did not address the fate of the spouses and children of those to whom it gave a path to legalization," Jay Bookman recounted, meaning." A father or mother who had been legalized through IRCA still faced the very real prospect of seeing their spouses and children taken from them and deported."
After Congress made sporadic and unsuccessful efforts to address what became known as the "family unity" issue, Reagan decided to act on his own. Citing his executive authority, he issued "Family Fairness Guidelines" in 1987 that ordered immigration enforcement officials to cease deporting children who were here illegally as long as both their parents -- or one parent in a single-parent household -- had qualified for amnesty.
That wasn't the only time The Gipper exercised his executive authority to defer action on immigration enforcement. As Erwin Chemerinsky and Samuel Kleiner detailed in the New Republic:
In 1987, the Reagan administration took executive action to limit deportations for 200,000 Nicaraguan exiles, even those who had been turned down for asylum.
Of course, Republicans don't call Ronald Reagan an "emperor" or a "monarch" for having done pretty much what Barack Obama is about to do now. That's why the GOP and its conservative allies aren't invoking the spirit of Ronald Reagan right now. They know exactly what Reagan would do.