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The push to warehouse asylum-seeking women and children in a private facility as a deterrent violates US obligations to international law, says Mark Fleming of the National Immigrant Justice Center

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JAISAL NOOR, TRNN: The Obama administration bypassed public bidding and secretly gave the private prison giant Corrections Corporation of America, or CCA, a billion-dollar contract to detain asylum seekers. That’s according to a just-published expose in the Washington Post. Such private prisons have been strongly criticized over the conditions in which they house hundreds of women and children fleeing Central American violence. We’re now joined to discuss this by Mark Fleming. He is the national litigation coordinator for the National Immigration Justice Center. Thanks so much for joining us. MARK FLEMING: Thanks for having me. NOOR: So, Mark, why did the National Immigrant Justice Center demand these documents, file a Freedom of Information Act request over these documents? And you handed them over to the Post, which helped kind of blow the lid over this story. Talk about why you did that, and what you hope to achieve. FLEMING: Well, for a number of years, now, the administration, both the Bush administration and then the Obama administration, have been very secretive about how they open up these detention facilities, where they are. It tends to be the–it’s the largest detention system in the United States, and yet there’s very little known about them and the conditions in which people are held at these facilities. And it’s important to remember that these are individuals that have not been committed of–have not committed any crime, that they’re simply being held in order to make sure that they show up for court. And there are many ways to do that without having detention facilities. And so we have a longstanding project here at the National Immigrant Justice Center called our transparency project, in which we are seeking to expose the circumstances in which they are holding individuals all throughout the country, mostly in rural areas, and so have a longstanding FOIA request to DHS and looking to renew it now to get all of the major contracts and inspection reports from these facilities. With respect to the Dilley facility, it obviously is one of the more notorious ones, both for its size and the fact that the federal government is seeking to detain families, and holding little children as prisoners. And so we wanted to expose the circumstances of how that facility was built rather rapidly after an influx of refugees from Central America in 2014, and some of the ways in which DHS have skirted general government procurement laws in order to get that facility built in what I would describe as a sweetheart deal to CCA. NOOR: Right. It’s a sweetheart deal because unlike many other contracts that are handed out in this fashion, regardless of the number of people staying in the facility, CCA will still get this maximum level of funding for the facility. So regardless of whether the numbers decline or they increase, the payment is the same. And the other aspect of this reporting that many people would find sort of shocking, or concerning at the least, is that in the Post article they said the push to warehouse the women and children would be seen as an act of strength by the U.S. government, and also as a deterrent to further, to stop the, to stem the flow of refugees that are fleeing violence in countries like Honduras and El Salvador. What’s your response to that? FLEMING: Well, it’s not speculation that that is one of the reasons why they built this facility, why they’re warehousing women and children as prisoners, simply for being refugees. The federal government has in litigation, in federal litigation, has said so much in affidavits, saying that the intent of detaining these mothers and children are to deter other refugees, other victims of serious, serious violence from coming to the United States. One, it violates our obligations under international law and under our own laws, and it’s simply un-American given our long history of immigration and for providing refuge to individuals that are seeking protection from violence. With respect to the facility and the way in which the contracting was done, and the minimum guarantee, it’s unprecedented. While we have seen a trend in recent contracting with the private prison companies that they get a minimum guarantee of money, it’s unprecedented to get the full amount of money under a contract. Typically how these contracts have been drafted is that you get paid for each bed, each individual that is housed under the, under the contract on a day. So it is unprecedented in that way, and it is a handout of money to the private prison industry. And the way in which this contract was negotiated was also, did short shrift of the general procurement laws that the government usually needs to follow when contracting with private companies. NOOR: Sorry, go ahead. FLEMING: Well, that is intended to promote transparency of how taxpayer dollars are being spent, both as far as on what and the types of dollar amounts that we’re talking about for the various objectives of the federal government. NOOR: And so the courts have weighed in on this. You’ve referenced the affidavits, but the courts have said that, you know, this cannot be used as a deterrent. You can’t be holding women and children long-term, which has meant that the prison has sort of been emptied out over the last few months. And so now, you know–but now that the prison, the population fluctuates, but there’s no long-term detainees. So now the Post reported that in January it was virtually empty, but again, CCA was still getting this maximum fee for maintaining the prison. FLEMING: That’s correct. And again, it is completely unprecedented, let alone the amount that they are getting is unprecedented for any type of facility of this kind. More to the reasons that we wanted to expose this now is CCA and ICE are in negotiations as far as renegotiating that contract, or closing that contract for purposes of family detention, with the eye towards opening another facility. And so we thought it important both from a taxpayer’s perspective but also that they know not only the dollar amounts being spent on this, but on what they’re being spent on. That being detaining as prisoners little children and mothers who are fleeing violence. NOOR: Well, Mark Fleming, thank you so much for joining us. FLEMING: Thank you. NOOR: And we’re going to definitely keep following this story, and keep following the issue of private prisons, especially detaining refugees and other victims of war, and whether it’s abroad or right here on U.S. soil. Thank you so much for joining us.


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Mark Fleming is the national litigation coordinator for the National Immigrant Justice Center. His work focuses on strategic litigation around immigration enforcement and detention issues