Dead in Their Tracks

In America's latest border wars, Samaritans are arrested as smugglers and migrants keep dying.

Comments (0) By Marc Cooper Wednesday, Feb 22 2006

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“When we were being held, our medical people went to the Border Patrol station but were denied access to the three people we evacuated,” says Sellz, who along with Strauss spent 48 hours in custody and was officially charged.

“Omigod,” she adds with a sigh. “What a crazy ride it has been. It’s certainly made me more informed and unbowed. People know we are not a smuggling operation, come on. There’s been a hundred thousand post cards sent in to support us. So, on the community level, I feel optimistic. But you look at what’s coming out on the policy level and it’s appalling.”

One more cross to bear

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The defense team for Sellz and Strauss argued for dismissal of their case in a January pretrial hearing. The local Border Patrol chief at the time of the arrest, they claimed, had given prior assurances that Samaritans members would not be prosecuted for providing their usual sort of assistance, including medical evacuations. The prosecution, however, produced a tape recording of a meeting that contradicted the defense claim. The judge hearing the matter refused to dismiss the case, and the trial is expected to begin April 25.

What’s got some scratching their heads, however, is not the position of the Border Patrol but rather that of the U.S. attorney in Phoenix, Paul Charlton, who is prosecuting the case. His boss, George W. Bush, is fighting a political brushfire on his right flank. As the White House — with support of the business lobby and of liberal reformers as well — tries to squeak through a more realistic immigration-reform package, it’s simultaneously stirring a nativist revolt. In a classic intra-Republican battle, it’s Main Street versus Wall Street, the Minutemen versus the moderates, the close-the-border restrictionists to Bush’s right versus the pro-business wing of the party. Why do the Bushies want to further sate their restrictionist, anti-immigrant critics by persecuting the Samaritans? Or is it the opposite case? By throwing the get-tough-on-the-border crowd the bodies of the Samaritans, does the administration hope to win some more maneuvering space, temporarily appeasing these same critics while still pushing for its guest-worker programs?

Charlton himself has earned a reputation among some local observers as a fair and enlightened federal prosecutor who actually “gets” the border issue in all of its bedeviling complexities. Why was he all of a sudden prosecuting two humanitarian-aid workers who, he knew very well, weren’t smugglers? Indeed, if anyone knew what authentic smugglers were all about, it would be Charlton. He’s busted up some of the most violent and pernicious criminal gangs that traffic in humans.

Some theorized that the whole Samaritans case was, maybe, just an unfortunate snafu — that when Sellz and Strauss were arrested, it was a weekend, and that a lower-level assistant to Charlton had green-lighted an indictment that Charlton would have overlooked. Others shrug their shoulders and just wonder.

When I and the small group of other reporters who went out with the Samaritans have dinner with Charlton in Tucson, he seems — in fact — the most open and thoughtful sort of prosecutor. He readily explains the caseload burden that his staff lawyers face because of border-related arrests — as much as 20 times the average of other federal prosecutors. Arizona is now the major entry point for illegal border crossings — of people and narcotics. “We are in the vortex here,” he says. For that reason, he prioritizes his cases, focusing on large-scale smuggling and drug operations, traffickers of children and, recently, on the corruption of local officials. As part of “Operation Lively Green,” Charlton’s office and related federal agencies have nabbed more than 40 National Guard, Border Patrol and Customs officers involved in trafficking.

Nor does Charlton hesitate in saying that current border and immigration policies are out of whack, that enforcement alone is a failed approach and that some sort of liberalizing reform is in order. He doesn’t buy into a hard-line view of the migrants either.

“The vast majority of people coming here unlawfully,” he says in his soft-spoken, deliberate manner, “are coming here to work. They’re coming because they have no other options, and I don’t know that if I were in their position, I would do anything different.”

So why, then, is the federal government going to such an extraordinary effort to prosecute a couple of church workers who were only trying to extend some humanity to three of these same migrants in great need? “I looked at this case very carefully,” Charlton answers. “And I understand a commitment to act on faith. And while I know better than to predict whether or not a prosecution will be successful, I do know there’s enough here so that a jury should have a look at it.”

That is not much of an endorsement of his own case. Confident prosecutors, like cocky football players, never fail to make pre-game forecasts of certain and absolute victory. Throughout the course of this case there has been a lot of public speculation that the charges would be dropped or that a wrist-slap plea deal would be negotiated. But while Charlton isn’t pounding the table and demanding conviction, he doesn’t seem to crack open the door of compromise either.