R. Gary Klausner is a federal district court judge in the Central District of California. Unlike the president, who followed family tradition by tenaciously avoiding military service, he was a captain in the U.S. Army during the Vietnam War. Unlike many of the current crop of actual or semi-demi-United States Attorneys, he was a prosecutor. He was appointed to a state judgeship by a Republican governor, and to the federal bench by President George W. Bush. I set the stage thus as a blunt reminder that there is a difference between conservatism and authoritarianism or fascism, and as an almost pitying reminder that people who call themselves the former, while cheering or enabling the latter, are certainly lying to others, but may also be lying to themselves. These things do happen.
In an order issued on Friday, Judge Klausner addresses the case of Sonik Manaserian, a 70-year-old ethnic Armenian and member of the Baha’i faith who fled Iran in 1999, applying for asylum on arrival. She became subject to an order of removal in October of that year but was allowed to remain in the United States. In October 2008, also during the W. administration, she was placed under an order of supervision and unsupervised parole by ICE, with the obligation to keep checking in, and given an employment authorization document. Around Thanksgiving of this past year, while checking in, she was arrested and detained by ICE. According to the order, “[i]n arresting [her], ICE did not comply with its own regulations.” She “has a number of medical issues which cannot be addressed in the detention facility where she is located. While transferring [her] from a detention facility in downtown Los Angeles to Adelanto, ICE lost her medication. [She] was not allowed to attend a prescheduled medical appointment.” It is certainly not foreseeable that she will be removed to Iran. (No information on what happened to her medication. Maybe some enterprising agents sold it. Even when legal, such things used to be upsetting to conservatives.)
Judge Klausner’s order granting Manaserian’s habeas petition recites her arguments and then observes:
Respondents do not contest either of these claims—or, indeed, any of Petitioner’s other claims. Respondents’ Answer to the Petition consists of three sentences, two of which recite the procedural history of this case. (Ans. 2.) The remaining sentence reads, in full, “[a]t this time, Respondents do not have an opposition argument to present.” (Id.) They have not denied or contested any of the factual allegations in the Petition. They have not offered any additional facts or defenses. They have not argued that different statutes or regulations should govern this case. They have not lodged any relevant documents, despite being ordered to do so. (ECF No. 4.)
Thus, it appears that Respondents arrested a chronically ill, 70-year-old woman, who came to this country to avoid religious persecution and applied for asylum, who has lived here peacefully for 26 years and complied with all check-in requirements and other conditions of release, who has no known criminal record and poses no threat to anyone, without notice or the process required by their own regulations and without any plan for removing her from this country, then kept her in detention for months without sufficient medical care—and they do not have any argument to offer to even try to justify these actions. Further, having acknowledged that they have no opposition to present to Petitioner’s habeas petition, have they voluntarily released her? No. Thus, Petitioner remains in custody, and her counsel, and the Court, are required to expend resources and effort to address a matter that Respondents either cannot be bothered to defend or realize is indefensible.
I am quite willing to set aside any number of questions here. I do so partly because there is surely room to disagree about immigration law and policy in general and even over particular cases–although I think there is less room for argument among civilized people about whether the government should hanker to expend its resources on the detention of this particular 70-year-old woman. I also do so because those questions are clearly of little interest even to the very government that is enforcing the “law” here. Indeed, I dare say that little about this case was of interest to anyone involved in wielding force, except perhaps for the magic number: 3,000, the daily quota for immigration detentions set by de facto acting president Steven Miller. (Set and walked back, as the article I link to notes. I think it’s safe to disregard that part, on the view that Miller’s speech only ever falls into one of three categories: awful truths, vicious invective, and indignantly voiced lies.) It’s the combination of pointless detention, inability to defend it or lack of interest in doing so, and failure voluntarily to do much if anything about the apparently indefensible, despite the ethical and moral obligation to do so, that is so striking.
And two things more. First, it may be striking, but it’s not unique. The phrase “[we] do not have an opposition argument to present” appears three more times in recent Central District of California opinions–all of them involving immigration detentions, dating back to last month; all of them quoting a government filing; and none of them written by Judge Klausner. That doesn’t count the number of times the US Attorney’s office used the phrase in a filing without being quoted by a court. And given the difficulty lawyers and family members are having getting in touch with detainees at all, it certainly doesn’t approach the number of times its use would have been warranted. So the actual number of Central District of California cases in which the government’s apparent position is that it will deprive people of liberty, without having a legal argument it is willing to make in court, until it gets ordered to release them–one must perforce add, if then–is unknown. Unfortunately, the White House has left the office of U.S. Attorney for the Central District vacant, which I mean both literally and in the sense that the de facto U.S. Attorney there is Bill Essayli.
Also striking, in these days of masked paramilitary units, transparently excessive and dishonest national security claims, and nameless keyboard warriors seeking to make Nazi-adjacent policy statements with what one is obliged to call the full approval of the president, is the semi-anonymity of one of those filings. Perhaps it’s a quirk or a decision attributable to the judge that the AUSA in one of those cases, involving petitioner Shahmohamadian, is listed only by an identification number rather than by name. But that is hardly a given in the circumstances. One almost feels bad for pointing this out–not because of the threats some government officials have received, which I of course oppose, but because there is always a chance that offering a non-defense is the closest that remaining government lawyers with integrity can come to the loyal performance of their offices. On the other hand, citizens have not only a right to expect transparency from their government, but an obligation to demand it when the government is striving for a default condition of secrecy and anonymity.