Will the Border Wall Stand?
December 26, 2008 -- Frontera NorteSur
As the Bush Administration enters its final weeks, pressure is building to halt construction of the Department of Homeland Security’s unfinished US-Mexico border wall. The controversial project, which was originally slated to be completed by December 31 of this year, is the target of reinvigorated opposition from border residents, elected officials, indigenous communities, human rights activists, and environmentalists.
Buoyed by changes coming to Washington, border wall opponents are stepping up their lobbying of President-elect Barack Obama’s transition team to ensure the fencing is halted and even reversed.
In a letter sent to members of Obama’s Department of Interior transition team this week, the Lipan Apache Women Defense group of south Texas requested an end to fencing, demanded a halt to "illegal" seizures of border communities’ properties and appealed for respect of the rights of indigenous people.
In a telephonic press conference with reporters, tribal member Margo Tamez said fencing on the Lipan Apaches’ lands would constitute a gross violation of the human rights of land-based people who depend on border and river access for the collection of medicinal herbs and other cultural practices.
Tamez charged that the US government’s planned fences, border checkpoints and other measures are "criminalizing" her people. Indigenous lives, Tamez asserted, are being "radically altered" by the burgeoning border security complex. "We are assumed to be the criminals on our lands," Tamez said "We belong the lands, and the lands belong to us."
Tamez’s mother, Dr. Eloisa Garcia Tamez, credited public opposition to the border wall for preventing any construction on her land so far. Garcia Tamez said the border fencing planned near her home in El Calaboz Rancheria would actually be built one mile north of the Rio Grande boundary between Mexico and the US. Adding she first met Barack Obama during a campaign stop early last year in Brownsville, Texas, Garcia Tamez said she hoped the president-elect would prevent any additional fence construction.
"That is my hope, that is my prayer," she said.
As an Illinois senator, Obama voted for the 2006 Secure Fence Act that paved the way for the current round of border fencing. A border wall critic, however, Arizona Governor Janet Napolitano, has been nominated to serve as Obama’s secretary of Homeland Security. If confirmed by the Senate, Napolitano will have a critical role in the fate of the project.
The Opposition Expands
Lipan Apache border wall opponents are supported in their stance by many national and regional organizations, including the National Network for Immigrant and Refugee Rights, International Indian Treaty Council and Alianza Sin Fronteras.
The Lipan Apaches Women Defense group’s letter followed a similar appeal this month to Obama by elected officials from El Paso, Texas. Initial signatories of the El Paso letter included Texas state Senator Eliot Shapleigh (D-El Paso), El Paso city Councilman Steve Ortega and US Congressman Silvestre Reyes (D-El Paso). Reyes is a former Border Patrol sector chief for the El Paso area.
Citing close trade relationships with Mexico, as well as the economic and budget crisis, the letter urged the president-elect to "stop building these ill-conceived walls founded in current notions of racism."
In an interview with Frontera NorteSur, Sen. Shapleigh said he would like to see the new president "tear down this wall" and construct a new friendship with the Americas "like we have seen under Kennedy." The El Paso Democrat, who plans to travel to Washington next month to press the message conveyed in the letter, added that the sooner the wall is torn down, the better.
"If not tomorrow, in a month," he said. "If not in a month, in three months, but the important thing is begin with a strong and united border voice to make a new era in Washington, D.C."
On Capitol Hill, legislation to consider alternatives to border fencing is still pending in the House. Sponsored by Representative Raul Grijalva (D-Az.), H.R. 2593, the Borderlands Conservation and Security Act, proposes repealing Section 102 of the REAL ID Act that gives the DHS authority to waive laws for the border fencing, expanding local, state and tribal participation in border infrastructure decision-making, and funding initiatives to help mitigate damages from fencing to wildlife and cultural resources.
Inside the beltway, organizations like the Sierra Club vow to make the border wall an issue the new administration must reexamine.
"We’ll be looking to President Obama and Secretary Napolitano for that leadership," said Michael Degnan, the Sierra Club’s Washington representative for national forests and wildlife.
The Sierra Club earlier joined with Defenders of Wildlife in an unsuccessful lawsuit that challenged the authority of Homeland Security Secretary Michael Chertoff to waive dozens of environmental and other laws in order to proceed with the border wall construction.
"The beauty of democracy is that we do have the opportunity to make a difference," Degnan said, "and that’s what we’re looking to do. We need to repeal this waiver."
The Bush administration and border wall supporters insist the 670 miles of planned pedestrian and vehicle barriers are needed to stem drug trafficking, stop terrorism and curb illegal immigration. A recent blog posting linked to the Washington, D.C.- based Center for Immigration Studies website captures the sentiments of many border wall supporters.
Titled "Better Get That Wall Built" the posting consisted of a news summary of criminal violence in Ciudad Juarez and northern Mexico, including the November 13 murder of El Diario de Juarez reporter Armando Rodriguez.
In border areas where construction is underway, work crews have been busy in recent weeks. As of mid-November, the United States Customs and Border Protection agency (CBP), the division of DHS responsible for overseeing the fencing, stated on its website that about 375 miles the planned fencing and vehicle barriers had been completed. Less than five weeks later, on December 18, the DHS said more than 520 miles of barriers were done. The latest number means that about 145 miles of barriers were erected in a few weeks, according to the federal government.
CBP spokesman Lloyd Easterling recently told Frontera NorteSur that the government planned to have "90 or 95" percent of the fencing terminated by the end of December. The pace of construction, Easterling maintained, has been a "huge feat" so far.
Although the fencing is unfinished, Easterling said no further appropriations for the fencing will be requested from Congress. Earlier this year, the DHS was allowed to reprogram $400 million to cover cost overruns. Depending on the source, the total price tag for the massive project is estimated from $2 billion to $49 billion. Bills for maintaining the fencing from erosion, flooding, wear and tear, and other damages are expected to considerably push up the wall’s cost over time, according to many analysts.
Legal Challenges Move Forward
In addition to political opposition and civil disobedience, exemplified by the arrest of activist Judy Ackerman, who physically blocked a construction crew south of El Paso last week, the fencing project continues to face multiple courtroom challenges on constitutional and other legal grounds.
The County of El Paso, for instance, filed an appeal in its lawsuit with the US Supreme Court earlier this month. On another front, the Los Angeles-based Center for Human Rights and Constitutional Law and Texas Rio Grande Legal Aid (TRLA) are defending individual landowners, including Lipan Apaches, in property condemnation proceedings pursued by the federal government.
A big issue in the landowner cases is the 2008 Appropriations Act, which requires the DHS to consult with property holders to reduce the impact of walls on cultural, environmental and economic resources. Mandated by Congress, the consultation process between south Texas landowners and the DHS has been a thorny one so far, with federal officials, landowners and members of the Texas Border Coalition, a group of elected officials opposed to the wall, disagreeing over the scope, timing and make-up of the consultations.
Jerry Westervich, an attorney for TRLA who is defending two landowners in the US District Court for the Southern District of Texas, said he is trying to make sure the federal government complies with the 2008 law. "We have no idea what President Obama will do when he has the keys to the bulldozers," Westervich maintained.
A group of legal activists based at the University of Texas (UT), meanwhile, is exploring national and international law issues as they relate to the border wall, including the equal protection clause of the US Constitution.
Jeff Wilson, an assistant professor of environmental science at the University of Texas-Brownsville and a member of the UT law group, said researchers studied census data for Texas’ Cameron County to compare the socio-economic characteristics of border residents who would and would not be directly impacted by the fence construction.
Research revealed that that lower-income Latinos, especially immigrants, are disproportionately targeted for fencing on or near their properties, Wilson said, but more affluent residents and businesses such as River Bend Resort would actually escape having fences run through their lands.
Denise Gilman, a UT clinical law professor who is also a member of the activist group, said student and faculty activists delivered a report on the border wall to the Organization of American States’ Inter-American Commission on Human Rights in Washington, D.C. last October. Commission members are very concerned about the wall’s effects on cultural rights, Gilman said, but can’t take any action until domestic avenues for redress are exhausted. Criticizing the DHS’ project for lacking accountability and transparency, Gilman contended that the federal government has not fully responded to a Freedom of Information Act (FOIA) request filed by the UT law group last April.
Gilman told reporters that Washington finally sent her group a copy of the main border wall contract with the Boeing company this month, but sub-contracts and payment information which were also requested under the FOIA were not delivered. Asked if contract lock-in provisions that could tie Washington's hands regardless of the incoming administration’s policy desires were an issue, Gilman said, "It’s an area of concern."
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