I blogged recently about the concerns I had when I read the statements Hilary Clinton made in her Senate confirmation testimony related to the issue of sex trafficking.  I heard little sign in her testimony of a desire to change policy from the crusade undertaken by the Bush Administration that overdetermined the problem of human trafficking in sexual terms (thereby ignoring the enormous problem of other forms of forced labor), driven largely by an evangelistic judgment about sex work more generally.

But the State Department through the policy set by its Secretary is not where we can find the front line of the federal government’s efforts to combat human trafficking.  That job falls to the Department of “Homeland” Security (I hate that term), particularly to ICE (Immigration & Customs Enforcement) which conducts raids of brothels and other workplaces where it suspects undocumented and/or trafficked persons may be working.   Indeed, ICE raids have been the U.S. government’s principal means of identifying victims of trafficking according to a recent GAO report.

So, was Janet Napolitano asked about her views on human trafficking in general, or sex trafficking in particular, when she came before the Senate Committee on Homeland Security and Governmental Affairs for confirmation?  Nope.

Did she volunteer anything about this issue, as did Clinton in her confirmation hearings?  Nope.

Surely Secretary Napolitano has views on this issue, but we don’t know them yet.  When you go to the “Homeland” Security website the 2008-2013 Strategic Plan, developed by the old Secretary Chertoff but still on the website, does not even mention trafficking.  Yet if you go to ICE’s “What We’ve Done Lately On Human Trafficking and Smuggling” Webpage they highlight all manner of good things they’ve been up to, but few of them are trafficking-related.  Lots of smuggling work (and trafficking is legally and socially a different thing from smuggling), and a bunch of arrests of “illegal aliens.” The two most recent trafficking cases involve raids of brothels in Seattle and  South Florida, both last November.

It’s too early to know what kind of policy will be set by Secretary Napolitano with respect to domestic enforcement of the Trafficking Victims Protection Act.  But she and her policy team are without question important players in setting a new agenda when it comes to the problem of relying too heavily on raids to deal with the protection of trafficked persons and the prosecution of traffickers.  (More about this below.)  For the moment however, we have some reason to be concerned.

Timothy Keefer remains as Napolitano’s Chief Counsel for Civil Rights and Civil Liberties at ICE.  Keefer, a graduate of William and Mary Law School worked for Covington and Burling after clerking a couple years.  In late 2000, after three months at the firm, he was sent to Florida to work on George W. Bush’s legal team seeking to secure him a win in the contested presidential election.  He was rewarded for that service by the new administration with an appointment as special assistant to the U.S. Department of Labor’s Acting Solicitor Eugene Scalia (Antonin’s son).  He could be a good guy, but …  So far, none of Napolitano’s senior appointments have much of a track record in dealing with gender issues.

(Keefer’s ongoing employment at ICE may signal a much larger problem for the Obama Administration – the presence of Bush loyalists deep into every crevice of the federal government, as both political and career employees.  It’s not obvious that the new administration has the will or the capacity to clear out the thousands of neo-cons who were given government jobs for ideological reasons.  The scandal of politically motivated appointments at the Justice Department is just the tip of the iceberg.)

As for ICE’s overreliace on raids to protect the victims of trafficking, the Sex Workers Project in New York has just issued a report, Kicking Down the Door: The Use of Raids to Fight Trafficking in Persons, in which it documents how in the name of “rescue” these raids often result in the arrest, detention and deportation of trafficked persons because they are undertaken by ICE, together with local law enforcement officers, who are poorly trained or ill-equipped in identifying victims of trafficking, and who are, after all, focused on arresting criminals, people who pose potential terror threats, are dealing drugs and/or are sans papiers, that is, found without necessary paperwork demonstrating legal presence in the U.S.

I urge all who are concerned about this issue to read the Sex Workers Project report and to monitor the new team and policy being developed at Janet Napolitano’s “Homeland” Security and ICE.

- Katherine Franke

Columbia’s Sexuality and Gender Law Clinic recently filed a brief in the European Court of Human Rights involving the right of victims of sex trafficking to a remedy under various European and International Laws.  My recent article in the European Lawyer magazine, which takes a somewhat different view from Professor Franke’s post, elaborates the trafficking/slavery linkage.  Here’s an excerpt (you can link to the full article here ):

The UK officially abolished the trans-Atlantic slave trade more than 250 years ago, but it turns out that the practice is far from dead.
A case recently filed in the European Court of Human Rights (ECtHR), M. v the United Kingdom, shows just how vigorous and heinous the slave trade continues to be. But the trade’s character has changed, with £5 billion generated each year largely from traffickers’ control of women and children, making trafficking in persons the second largest criminal activity in the world.
With clearer attention to the facts and more developed identification systems, the international community has begun to see these women and children for what they are – victims of severe human rights abuses.  M v the United Kingdom thus offers an important opportunity, during a crucial moment, for the ECtHR to clarify the obligations of Council of Europe member states to trafficking victims. A ruling in M’s favour would reinforce that sex trafficking is a modern form of slavery and should be treated with as much seriousness as we treat the trans-Atlantic slave trade of the past. It would also clarify and underscore states’ responsibilities to victims in their territories who have suffered human rights abuses, including the duty not to act in ways that expose victims to further harm.

Columbia Law School’s Sexuality and Gender Law Clinic yesterday secured asylum for a gay, HIV-positive man who feared persecution if forced to return to the Republic of Côte d’Ivoire (Ivory Coast) in West Africa. The U.S. Department of Homeland Security issued the grant of asylum.

“This case sheds light on the violence and abuse gay men and people living with HIV/AIDS face in Côte d’Ivoire,” said Suzanne B. Goldberg , who directs the Clinic. The extensive documentation of the horrific conditions faced by gay and HIV-positive Ivoirians that the Clinic students compiled is now available for all gay or HIV-positive asylum-seekers from Côte d’Ivoire.

The asylee, age 32, arrived in the United States in January 2004. His application for asylum describes the personal violence and abuse he was subjected to because of his sexual orientation. He has been raped and beaten by military and militia members and was subjected to constant verbal and physical abuse by his neighbors, classmates and his own father. His application also describes the lack of protection offered him at home in Côte d’Ivoire, where police too participate in the persecution of gay people.

“I feel really happy and blessed that I was granted asylum, because I was not expecting it,” the asylee said. “I am so happy that I can stay in the U.S. and live a happy and healthy life.” He added, “I am so grateful for all of the hard work of the Clinic students, Professor Goldberg and Immigration Equality.”

Since this past September, five students from Columbia’s Sexuality and Gender Clinic – Dana Kaufman ’09, Holly Chen ’09, Abbey Hudson ’09, Brad Mullins ’10 and Keren Zwick ’09 – have provided legal assistance to the asylee. Immigration Equality, a national organization focused on immigration rights for GLBT (gay, lesbian, bisexual and transgender) individuals, referred this asylum-seeker to the Clinic and provided important assistance on the case.

“Our client’s personal story reveals the perilous conditions for gay men in Côte d’Ivoire who are beaten, sexually assaulted and rejected by the military, police, militias, civilians and even their own families,” said Chen.

The Clinic students spent several months conducting interviews, drafting affidavits, researching country conditions, reaching out to HIV experts and filling out necessary forms to complete the asylum application. The students also accompanied their client to the asylum office in Rosedale, New York, for his asylum interview, where Chen and Kaufman asked follow-up questions and made a closing presentation to the asylum officer after the client’s testimony.

“We are thankful that our client will finally be able to live openly as a gay man, safe from government-sponsored persecution, and that he will be able to access the life-saving HIV medications that he would not have been able to obtain in Côte d’Ivoire,” added Kaufman. “We hope that our client’s case will help combat the misperception that Côte d’Ivoire is a safe place for gay people, and will let other Ivoirians who were persecuted because of their sexual orientation know that they are not alone,” said Kaufman.

Goldberg said, “This experience – where students are responsible for working through the challenges of a case that makes a real-world difference in an emerging and important area of law – is what the Sexuality and Gender Law Clinic is all about.”

Three Cheers to the students in the Sexuality and Gender Law Clinic!!!

Columbia University’s newspaper, The Spectator, ran a nice profile of Columbia Law School’s Sexuality & Gender Law Clinic as part of their reporting on AIDS Awareness Month.   The Clinic is doing important work successfully gaining asylum for HIV positive asylum seekers.  Read the article here: Clinic Fights for HIV Awareness in Courts.