Don't Ask, Do Tell

Outcry Over New City Policy on Reporting the Undocumented Stuns the Mayor

Those laws were part of the draconian welfare and immigration reform bills of 1996. Rudolph Giuliani challenged the constitutionality of these federal statutes, arguing that they infringed on the city's right to regulate the conduct of its own workers. His challenge was dismissed, and the dismissal was upheld on appeal as courts ruled that federal laws have supremacy over local ones.

But the court of appeals acknowledged that state and local governments do have a vital need to provide confidentiality in a range of instances, and it suggested that a valid policy would be one that was general—not directed solely at immigration authorities, but instead concerned with how to handle the whole array of information gathered in the course of official business. The Charter Revision Commission of 2001 stepped into that opening and recommended City Charter amendments—which were passed overwhelmingly—that would authorize generalized confidentiality protections, shielding such information as health or disability status, sexual orientation, and whether the person is a victim of domestic violence, as well as immigration status. But these measures have yet to be enacted.

For about a year, advocates had been urging Bloomberg to issue a new executive order with this more generalized language, while at the same time seeking to codify the principle into law with the Freedom of Access Bill, which was introduced by City Council member Hiram Monserrate and now has more than 33 endorsers. According to Monserrate, he and other advocates met repeatedly with the mayor to press for his support for this generalized approach, first in early May and then again on May 27.

City Councilmember Hiram Monserrate was "shocked" by Bloomberg's executive order: "We thought we were in negotiation."
photo: Jay Muhlin
City Councilmember Hiram Monserrate was "shocked" by Bloomberg's executive order: "We thought we were in negotiation."

Little did they know that in the meantime the mayor had quietly drafted and—on May 13—signed EO 34. At the May 27 meeting, advocates saw the measure for the first time and, says Monserrate, "expressed our concerns about the broad carve-out for law enforcement. We were told they'd consider our input." Days later, Monserrate opened Newsday and was "shocked" to see that the administration had announced EO 34 publicly. "We thought we were in a process of negotiation," he says. Monserrate met with Bloomberg again in late June and now awaits what he hopes will be a revision to the order.

For Councilmember Bill Perkins—a co-sponsor of the Access Without Fear Bill—EO 34 reveals a "Republican Patriot Act mentality" seeping into the administration. It also exposes, others suggest, the mayor's efforts to position himself favorably with his national party by bowing to pressure from Washington.

"This policy was not designed to respond to a group of conservative Republicans," scoffs Bhojwani. "The mayor is making a great effort to do what is right, and his willingness to work with council members and talk about the possibility of revision is a further indication of that commitment."

Even so, the mayor had to realize that EO 34 was issued in a context. Just as President Bush's insistence that he's pro-immigrant (and seeking Latino votes) coincides with his Justice Department's draconian crackdowns, the mayor's public support for an amnesty for the city's undocumented residents can coincide with policies that look less than friendly. It's not just that immigrant communities have been devastated by post-9-11 sweeps, widespread deportation, and strict registration requirements. The mayor himself has given them local reasons to be wary. His recruiting of former CIA operations director David Cohen as the NYPD's intelligence commissioner after 9-11 signaled new enthusiasm for sharing police information with the feds. Then the administration successfully challenged a long-standing city agreement that prevented police surveillance of New Yorkers unless there was some evidence of criminal activity. As a result, police can spy on political activists, worshipers at mosques, and anyone else they take an undercover fancy to.

It's an intimidating environment, to say the least, and immigrants have been feeling the chill. So it's no surprise that advocates would envision the worst-case scenarios that the letter of the law allows, no matter what the mayor claims EO 34 means. In the current climate, says the New York Civil Liberties Union's Donna Lieberman, "It's not enough just to say, 'Trust me.' "

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