By Debbie Maimon – from this weeks Yated:

The shameful tapestry of events known as the Postville Prosecutions came under official scrutiny at last week’s Senate Judiciary Committee hearing that examined a number of judicial nominees for the federal bench.

U.S. Attorney Stephanie Rose, one such nominee, was asked by ranking member Senator Chuck Grassley, R-Iowa, to explain her role in the notorious 2008  ICE raid on the Rubashkin-owned Agriprocessors plant.

Critics have argued that the human rights violations committed during the raid make Rose—one of the highest-ranking officials in the U.S. Attorney’s office at the time—a poor choice for a federal judge.

Currently the U.S. Attorney herself since 2009, Rose has come under harsh criticism for the coercive prosecutorial tactics of her office that railroaded hundreds of immigrants into waiving their rights to a trial, and admitting to felony fraud that landed them in jail.

Rose told the Judiciary committee that she had no authority in these matters; she was only following orders from higher-ups.

JUST FOLLOWING ORDERS?

The question  of how much authority Rose wielded in the arrests and  prosecutions of the Postville workers refuses to die.  In response to the question, put to her by Senator Grassley, she answered in one word: “None.”

At the same time, she admitted that she negotiated 300 plea deals during the two weeks she spent at them makeshift court in Waterloo. But she was merely following her boss’s orders, she said, and had no discretion to alter any of the binding plea deals.

Many find the “just-following-orders” defense unconvincing.

“It’s just not credible. She was third in the chain of command, too highly placed to be given a purely ministerial role. This was a major law enforcement operation that her office was planning for three quarters of a year,” said David Leopold, an immigration attorney whose gave testimony to the 2008 Congressional committee investigating the raid.

WHITEWASHED NARRATIVE

During the Senate Judiciary Committee Hearing, Rose was asked ten “check list questions” about the raid by Grassley, a strong supporter of her nomination.

Rose’s description of the raid played it down enormously. It included no mention of the raid’s traumatic effect on the community, the reported mental and physical abuse suffered by the arrested workers and the unprecedented harshness meted out to them in sentencing.

Her whitewashed account to the Senate conflicted sharply with eyewitness reports and testimony given at a 2008 Congressional hearing. At that inquiry, questions were raised about alleged due process violations, how much involvement the federal court had in the raid, and why the immigrants were forced to accept plea deals that landed them in jail.

Illegal immigrants, once caught, are usually deported to their native country, where they can rejoin and sustain their struggling families. The Postville workers, however, were needed for what Iowa prosecutors considered  a higher cause than feeding starving families: serving as witnesses in the high-profile Rubashkin case.

Instead of being sent back to Guatemala or New Mexico, they were forced to languish in jail while prosecutors in the U.S. Attorney’s Office screened them as possible witnesses in the Rubashkin prosecution.

SCHEME CALLED FOR THREATENING SERIOUS JAIL TIME

A Department of Justice spokeswoman attested to this scheme at a July 24, 2008 Congressional hearing. On page 65 of the transcript, Deborah Rhodes, Senior Associate Deputy Attorney General, testified that  “local prosecutors made the decision to charge [the arrested workers] with a criminal offense,” as opposed to the usual procedure of processing and deporting them.

Rep. Zoe  Lofgren who chaired the committee, wanted to understand the reason for this severe tactic.

RHODES: There were two primary reasons: it was in order to obtain cooperation and–

REP. LOFGREN. Cooperation in what?

RHODES. Because a part of every one of the plea agreements was that the defendant would continue to cooperate in the government’s ongoing investigation. So the [the jailed workers] are here for the next 5 months. [No one wants another] Nebraska case in which authorities dismissed a case against a corporation precisely because the workers were no longer available——

REP. LOFGREN. So the government’s intention may be that we are to keep these individuals here past their sentence as material witnesses in the ongoing [prosecution]—is that what you are telling me?

RHODES. I can’t speak to that, but I can say that the [Rubashkin] investigation is ongoing and that cooperation was a key component to the criminal plea agreements [which workers were forced to accept, lest they be charged with the very serious felony of aggravated identity theft].

This DOJ spokeswoman could not have put it more bluntly: The prosecutors charged the  workers with a criminal offense as part of a  scheme to hold them in Iowa and force them to be witnesses against Sholom Rubashkin.

They were the “props” the prosecutors felt were indispensable to winning the Rubashkin case, likely one of the biggest cases in their careers. Sholom Rubashkin had not even been arrested—and would not be for six months following the raid—but prosecutors had already laid out the gameplan.

THE INCRIMINATING OP-ED

Stephanie Rose herself admitted this in a 2009 op-ed in the Des Moines Register in which she purported to correct widespread “misunderstandings” about government tactics in the raid.

She staunchly defended the tactics used by the government, blaming “various interest groups and people seeking notoriety” for inventing “mountains of information.”

The government’s charging procedures were not only necessary but “critical to the successful prosecution of Rubashkin and other management employees,” she insisted. “These cases could not have been effectively prosecuted if the illegal workers had not been arrested and detained.”

Ms. Deborah Rhodes had no problem reading from Rose’s playbook when it came to echoing the rationale for using the identify theft charge.  Allowing the DOJ to be saddled with the blame for the much-criticized operation, however, was a different matter.

When pointedly asked by Rep. Lofgren who crafted the policy to threaten the workers with the severe felony crime of aggravated identity theft, Rhodes answered unequivocally: the Iowa U.S. Attorney’s Office.

Rose however, shifted the blame to her superiors in Washington. She testified before the Senate Judiciary Committee on March 14 that the planning was overseen by the DOJ.

“Just about all the key decisions were made under the direction or with the blessings of the Department of Justice,” Rose told Senator Grassley.

‘THEY CAN’T BOTH BE TELLING THE TRUTH’

“They can’t both be telling the truth,” said Leopold. “So which is it? Either the policy decisions were made in Washington, as Stephanie Rose told the Senate committee, or they were made by the local career prosecutors in the U.S. Attorney’s Office,” possibly including Rose herself.

Perhaps the official transcript of the 2008 Congressional committee can yield some light.  The following excerpt is from page 65.

REP. LOFGREN: Did the decision to threaten the workers with aggravated identity theft charges that would require prison time of 2 years minimum come from the main Department of Justice, or was the final decision made in the U.S. Attorney’s Office?

RHODES. All of the charging decisions were made by the career prosecutors in the local office.

REP. LOFGREN. So DOJ didn’t have anything to do with it?

RHODES. DOJ was consulted because of the size of the operation and to ensure that all constitutional protections would be afforded. It was also consulted because it was a fast-track operation.

[Rhodes went on to explain, as cited earlier, he “two primary reasons” the local prosecutors felt they had to threaten suspects with serious jail time: a) they would then accept a plea deal that called for a much shorter sentence, but long enough to keep them “on ice” until the Rubashkin trial commenced and b) equally important—each would have to agree to testify against Rubashkin.”]

Could it be more clear who was driving this fast-track train?

For prosecutors about to try the most high-profile case of their careers, this heartless scheme was considered crucial to success. But in the end, few migrant workers were needed as witnesses because the immigration charges against Sholom Mordechai were dropped.

“These people were railroaded and fast-tracked,” Leopold told Yated in a phone interview. “They were herded to the cattle fair grounds just like cattle. And then they were used in legal game plans that had nothing to do with serving justice, but a whole lot to do with serving prosecutors’ ambitions.”

GLARING INCONSISTENCIES

In another clash with documented fact, Rose told Grassley at the March 14 hearing her role was “ensuring that the defense attorneys had the material that they needed, that they had access to their clients…my role was really as a key problem solver during that raid.”

Yet the record shows that far from allowing lawyers access to their clients, “several attorneys reported driving many hours to the raids site only to be turned away.”

Many Guatemalans understood no Spanish and had no clue about what the proceedings meant and what they were pleading guilty to.

With considerable bi-partisan support, Rose won approval by the Committee and now awaits a full Senate vote sometime in August. Op-eds and letters to the editor about her qualifications, however, continue to roil the Iowa press.

The notion that a highly placed official who witnessed severe abuse of civil rights aimed at a single ethnic group without protesting, and on the contrary, enabled the abuse by being “a problem-solver” and “liaison”, is deeply troubling to many.

“This is someone who will sit in judgment on countless people for the rest of her lifetime tenure. She needs to be a person  with a true capacity for independence of thought, reflection, someone with a passion for justice,” said Leopold, past president of AILA (American Immigrant Lawyers Association). “She has demonstrated none of these credentials.”

TRUE CHARACTER ON DISPLAY 

Rockne Cole, an Iowa City lawyer who was the first person to blow the whistle on what he saw as a sweeping abuse of federal power as the raid was underway, said Rose’s true character is on display in her Des Moines Register article, cited above.

“Her supporters praise her integrity, fairness and superb judgment,” he said in an interview with this writer. “But study her op-ed carefully. It reeks of bias and unfairness.”

He cited the lack of compassion and humanity in the way “Rose and her colleagues as a condition of the plea deal, required that the workers waive all forms of immigration relief [permission to stay in the country], before they consulted with immigration counsel. Worse, many immigration lawyers were barred from consulting with their clients.”

“This conduct was particularly inhumane since the authorities must have known that many of the defendants came from Guatemala, a violent, poverty stricken country still recovering from 30 years of civil war,” Cole said in the interview.

Cole said it was impossible to call Rose fair and ethical when you consider her apparent loathing of Rubashkin and how she lost all sense of proportion when writing about the case in the press.

ATTACKING SHOLOM RUBASHKIN WHILE APPEAL PENDING

“Look at how she attacked him in the media while an appeal was pending, referring to him “as a common criminal.”She publicly reviled him. What she did was a grave ethical breach that could prejudice his right to a fair trial in the future, in the event he wins a new trial. And if he had succeeded in his appeal, that article would have seriously eroded his right to a fair trial.”

In the same Des Moines Register op-ed, Cole noted, Rose slammed Rubashkin’s supporters and critics of the U.S. Attorney’s Office as  “various interest groups and people seeking personal notoriety, [who have] hijacked the true facts for their own purposes.

“Why doesn’t she identify these people who hijacked the true facts?” asked Cole. “Are they the protestors in Brooklyn? The members of the Jewish community who are shocked that her office invoked the ‘law of return’ to frustrate bail? Maybe she is referring to the 75 former AG’s and other law professors who signed the letter expressing concern about Sholom’s sentence…? Who are they?

“And what false claims is she referring to?

He said Rose and her colleagues ignore a more profound issue than whether it was legal to conduct the raid and prosecutions as they did. “Even if it was “legal” that does not mean it is was just,” he said, adding that lawyers have a duty to resist unjust laws that violate human dignity, especially “when it involves collective enforcement against one ethnic group.”

“Whom do we admire today,” he asked, “those who enforced the Fugitive Slave Laws, or those who openly flouted them through the underground railroad?”

“Instead of standing up for the dispossessed, Rose ‘followed orders’ and failed to stop the mass violation of human rights. As such, she is not qualified to wear the robes of justice.”