blog # 40

​Here is a speech by one of Dr. Scott Warren's lawyers, Greg Kuykendall. It's a great summary. Sue

Imprisoning Schindler: Responding to the legal vulnerability of those who aid refugees by Greg Kuykendall who acted as lead counsel for Dr. Scott Warren, a cultural geographer charged in 2018 with multiple federal crimes revolving around his humanitarian aid efforts in the western desert of Arizona.

After three trials over two years, Dr. Warren was acquitted of all charges. The United States government created then nourished an ever-growing humanitarian aid crisis over the last 25 years in the borderlands of Arizona. Many thousands have perished and many thousands more have suffered unconscionable hardship and horrific abuse as a direct result of this crisis of the government’s own making. Making matters excruciatingly worse, recently the Trump Administration’s Department of Justice escalated the crisis by prosecuting humanitarian aid workers for their life-saving actions.

To be clear, the creation of the crisis does not lie at the feet of the Trump Administration, as these killing fields are a direct product of a Clinton Administration declared policy to reduce unauthorized immigration. The Trump Administration’s new prosecutorial zeal, however, constitutes gas on a burning fire.

In 1994, the US government implemented the Malthusian border security policy officially known as Prevention Through Deterrence. The homicidal logic behind Prevention Through Deterrence is the following: 1) by massing law enforcement in populated border areas, migrants fleeing their native countries will decide to cross the border far away from those population centers in order to avoid apprehension, 2) their crossings consequently will take place in the most isolated and dangerous places along the 2,000+ mile US-Mexico border, 3) crossing the vast uninhabited desert will either a) kill huge numbers of migrants, thus keeping them from successfully entering the U.S., or b) cause the migrants eventually to conduct a risk-benefit analysis and decide to not migrate, after all. This facile but lethal logic has killed many thousands of people: more than 3,000 partial or whole corpses of people identified as “undocumented border crossers” – in the parlance of the Pima County Arizona Medical Examiner’s Office -- have been recovered since the year 2000. Reasonable estimates suggest ten times as many people may have actually perished in the expansive western deserts stretching between Nogales and Yuma, Arizona, but have never been discovered.

The inability to recover most of the human remains is due to, among other things, the enormous area where the remains could be, the rapid deterioration of the remains caused by the extreme environment, and government regulations on access to the areas where the bodies are. The ancestral home to the Tohono O’odham Nation runs along and across the international border separating Arizona and the Mexican state of Sonora. More than two million acres of virtually uninhabited desert – controlled almost exclusively by the federal government, including the Organ Pipe National Monument, the Cabeza Prieta National Wildlife Refuge, and the Barry M. Goldwater Bombing Range – separate Arizona’s southern border from the eastwest running Interstate 10 to the north. No ranches or occupied structures exist; that is to say, unlike most places, there is absolutely nowhere to seek help.

The poorest and most desperate migrants, many of whom cannot even afford a coyote to cross them – attempt to walk the 40 miles to Interstate 10 through the most extreme environment in North America. Temperatures often exceed 120 degrees Fahrenheit and, in the winter, drop well below freezing. Virtually no water exists, besides a few widely scattered mud holes used by wildlife. Crossing the Organ Pipe and Cabeza Prieta is virtually impossible. Even if successful to that point, a deserted but active military bombing range still stretches many miles between the migrant and Interstate 10.

The town of Ajo, home to 3,000, is the only outpost in this vast region. A single paved road connects Ajo to the rest of the world. Ajo currently houses a Border Patrol station with approximately 500 agents. These agents are ever present on the single road and venture into the desert in trucks and ATVs, on horseback, and in helicopters, running roughshod over the wilderness. In the wilderness they hunt and often “scatter” the migrants, then take the meager supplies that the migrants drop as they escape, even emptying their water bottles.

In reaction to the mounting human carnage that Prevention Through Deterrence causes, twenty years ago several humanitarian aid groups began systematically determining where the migrants were walking across the desert and placing life-saving supplies along those constantly shifting migrant trails. Each month, the Pima County Medical Examiner publicly provides GPS positions of the recovered human remains of undocumented border crossers and then humanitarian cartographers create an overlay onto US Geological Survey maps.

The humanitarian groups decide where to place the water and food based on these “death maps” and distribute them to a network of volunteers. The humanitarian aid groups not only place aid where it is most needed, they engage in search and rescue missions that Border Patrol often refuses to bother with. In coordination with various groups, the humanitarians seek information about missing individuals, try to identify the remains, and let the decedents’ survivors know has happened to their loved ones. One of the principal aid groups is No More Deaths, a faith-based collection of volunteers sponsored by the Unitarian Universalist Church of Tucson. No More Deaths not only coordinates and engages in all of the above-described activities, it also documents Border Patrol’s systematic and cultural abuse of migrants and humanitarian aid workers. An uneasy truce, but a truce all the same, has always existed between the humanitarian groups and Border Patrol, until the Trump Department of Justice chose to “disrupt” the humanitarian aid in the name of strengthening the Prevention Through Deterrence policy.

In a significant escalation of the Trump Administration’s war on migrants, on January 17, 2018, Border Patrol agents with the “Disrupt Unit” arrested a prominent member of No More Deaths, Dr. Scott Warren, while he was providing medical treatment to two young migrants at a humanitarian aid station in Ajo, Arizona. Federal prosecutors then charged him with a broad ranging conspiracy and two counts of harboring illegal aliens, charges exposing him to 20 years imprisonment.

Not coincidentally, just hours before his arrest, No More Deaths released to the media a report documenting the multiple methods Border Patrol agents routinely used to abuse migrants, including video footage of Border Patrol agents in the field vandalizing water, food and medical supplies No More Deaths left on known migrant trails. The video went viral, as did the documented intentional destruction by Border Patrol of more than 3,000 gallons of water cached by the volunteers. To reach the migrant trails No More Deaths volunteers must hike many miles through federally-controlled land carrying multiple gallon jugs of water, each weighing over eight pounds, along with canned beans and first aid supplies. Primitive “administrative” roads exist in these vast areas, but the federal land managers dictate who among the public can drive on the roads. These managers, in coordination with Border Patrol, refused to issue permission to humanitarian aid groups to use the roads. In a bizarre but telling twist, the managers do allow water to be trucked across those roads of water – but only water for intended for wildlife, which is then hunted.

In addition to the felony charges leveled in January 2018, the federal government also charged Dr. Warren with one misdemeanor for driving on the administrative roads without permission and another misdemeanor for “littering,” i.e., leaving water for migrants along the trail of death. These felony and misdemeanor prosecutions not only imperiled Dr. Warren’s freedom and future, they constituted an existential threat to the multiple humanitarian aid movements. Successful prosecutions against humanitarian aid workers would effectively prevent their lifesaving work from continuing. More people would die, as an emboldened federal government continued forcing migrants into a desert environment now weaponized by the government, and fewer humanitarians would be able help them survive their extraordinarily perilous trek.

Indeed, after Dr. Warren’s well-publicized arrest, enrollment in No More Deaths’ volunteer program descended precipitously. Consequently, we treated this case just like we treat the capital cases that are my firm’s bread and butter. To that end, among many, many other motions, we filed and litigated multiple motions to suppress, motions to dismiss for selective enforcement, motions to dismiss for violations of international law, motions to dismiss for violations of the Religious Freedom Restoration Act, and motions to reassign the case to a different judge. Although we lost most of these pre-trial motions, we gave the judge and the community a deep education before our trials ever began about what Dr. Warren and his compatriots were doing for humanity, as well as how profoundly reactionary and inhumane the federal government’s response was to the practice of basic Good Samaritan-ship to fellow human beings.

Ultimately, after 15 months of intense pretrial litigation, we won the misdemeanor case, winning on the basis of the Religious Freedom Restoration Act – another Clinton-era law that has been used lately by the religious right to prevent women from access to reproductive freedom. We then tried the felony case twice, each time for two weeks (the first jury hung 8-4 for acquittal, the second jury quickly acquitted). Notably, this was not a case of jury nullification. Rather, we defended on the dual basis of a grossly insufficient amount of evidence of guilt, and on the basis that the government could never prove Dr. Warren’s intent was criminal. Put another way, humanitarian intent is not criminal intent. Many strategies, people and influences combined to make these achievements possible. One very important strategy was the massive public education campaign by No More Deaths throughout Arizona. Huge numbers of yard signs, regular coverage in social and conventional media, and large gatherings of humanitarians of every stripe attending all of our many pre-trial hearings and trial days pounded home this easily digestible explanation: “Humanitarian Aid is Never a Crime.”

While this phrase would strike most of the civilized world as a truism, the abjectly racist and counter-factual narrative about migration and migrants that President Trump and his ilk have successfully spread in the United States, along with the normalization of treating migrants more poorly than we treat meat animals, caused “Humanitarian Aid is Never a Crime” to initially be perceived by many in Arizona as a radical statement. The success of our endeavor was due in large part by matching the drumbeat coming from the far right, thus enabling us to seat a jury that had been exposed to the notion of humanitarian aid being a positive good in the world, just as surely as they had been exposed to the racist and xenophobic rants coming from the right.

The effective messaging of No More Deaths – as well as the trial judge finally on the second go-round recognizing the need for extensive jury questionnaires and real voir dire, rather than the “you be fair, right?” drivel that constitutes most judicial questioning of the venire – created an opportunity for a fair fight. An impartial jury made to comprehend the life and death context in which aid workers provide their humanitarian service creates an opportunity for a fair trial, even in these desperate times.

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