 Welcome to Working Together on Think Tech Hawaii, where we discuss the impact of change on workers, employers, and the economy. I'm your host, Cheryl Crozier-Garcia, inviting you to join in the conversation. Please call us with your questions or comments at area code 808-374-2014 or tweet us at thinktechhi. Today the news media is full of news of alleged law-breaking both by those in high political office and at the U.S.-Mexico border. We've all seen the pictures and heard the audio recordings of crying children, of babies being taken from their parents, and of kids sleeping on concrete floors in detention centers. We've also seen people with significant connections to the White House doing the walk of shame into and out of courthouses. Today retired Judge Randall Lee is going to help us understand what's happening in the media by explaining what all the legal terms we hear actually mean in the legal profession. Welcome Judge Lee. Welcome. And thank you for taking the time to be with us. Thank you for inviting me. Your expertise is so important right now, not only you, but everybody in the legal profession, because we're, there are just so many things happening that the average person can't understand. We don't have the necessary education or training to know what we're seeing and to understand whether something is correct or incorrect, legal or illegal, right or wrong. So please help us. Well, it's not only difficult to understand, but it's an unusual situation because the general public normally don't see something like this happening in this day and age. So it's something that the public generally don't expect to be happening. Right. Well, not in the U.S. anyway, but we have seen refugee camps across the borders of other countries. We've seen Syrian refugees pouring into Europe. We've seen folks from Macedonia in Greece and Turkey. We've seen groups of people being literally turned away from the countries they're trying to enter. But we've never seen that in the U.S. Why why do you think this particular type of action is happening now? I really can't put a finger on it. I don't know if it's a situation where the media is focusing on it. I don't know if it's a situation where the number of people coming attempting to come into the country is is flaming the few behind this. I don't know if it's a situation or the policies that were being implemented, whether or not it's a combination of the all three. It could be. A lot of the people who are trying to enter the U.S. from Mexico are trying to claim some kind of asylum. As a legal term, what is asylum? Well, asylum is where you have a legal justification to come into the country because you are either being punished or persecuted because you disagree with with the government. In that particular case, the person has political reasons why they they have to come in because if they remain there, their safety is in jeopardy. So a lot of people claim asylum because that if they are not allowed into the United States, they will be in harm's way. So the folks at the U.S.-Mexico border, I mean, there is a lot of violence in Honduras, Guatemala, and the other countries that people are coming from. But I don't know if that's a politically generated situation or is it just street crime run amok. We don't know and that and that the that's the problem here is there's a balance. On one hand there's the humanistic argument, you know. These people are being persecuted. We need to provide some sort of safe haven. On the flip side, there's the security issue and the security issue is we need to vet these people before we can let them in. So in the meantime, they're stuck between a rock and a hard place because where are they to go? So they are confined and you know most people feel that it's an unjust situation because you are being confined like a jail. Right. Without having been convicted of any crime. Yeah, so it's really difficult because I can see both sides. Right. I really can because just because someone claims asylum, you need to verify it somehow. I don't know what the test is, how you can test to verify by something like that, but there needs to be some sort of vetting system and the problem is I don't think there is a set mechanism to vet these kind of things. Yeah, that's true and it's a lot harder I think than it may have been in the past. Like I remember the Russian Refuseniks, folks like Andrey Sakharov and Elena Bonner, Alexander Solzhenitsyn, they were actually imprisoned in Siberian labor camps and gulags because of their political beliefs. And so it became clear that they really did need a safe place to go. So they were allowed into the United States. What compounds it also is the number of people coming through. Just the sheer number, the increase in number makes the whole vetting system even more difficult and prolonged. Now if the folks coming for asylum have sponsors within the U.S. and they already have family members here who are here legally, couldn't they just sponsor their relatives to come in the way any other immigrant family would with relatives from other countries? My understanding is that if you are either a naturalized citizen or you are a permanent resident, you got permanent resident status, you could sponsor your immediate family. The problem again is the vetting. How do you determine the person is related to that person or constitutes their immediate family? The current situation that is in the forefront of the media about children being separated from their parents, these people are undocumented, meaning there is no documentation like a birth certificate. So how do you determine that child is that person's parent and vice versa? It becomes a real difficult situation, the vetting process. And we couldn't just presume that because I have carried, say a nine month old baby all the way from Guatemala to the Mexico U.S. border, we couldn't presume that that's my child. Like I really could pick up some strange baby somewhere and just carry them in the hopes of getting across the border. Well, one would like to presume that if you went through that whole process, you did so because of your love for that child. Right. But you can't just presume it. You can't, unfortunately, you can't presume it. I think part of the other part of the problem is that the laws, the immigration laws are not as clear or has have been amended or modified to address the current situation. Right. So I think there needs to be an amendment to the immigration law to see perhaps we can address some of the situations that you raise. Well, I agree that immigration laws need to be changed and clarified so that it becomes readily apparent who might qualify for asylum, who might not. How do we define political violence or economic violence or sexual violence within the context of people wanting to flee from their homes maybe to the U.S. or to another place of safety that certainly that needs to happen. But I think the other thing, too, is that we need, when we look at, and it's especially timely now because tomorrow is Independence Day for the U.S., but when we look at this issue of immigration and everybody being either their child or grandchild, we're a nation of immigrants unless you're Native American, your blood came from someplace else. Right. The part of the problem, too, is that we look at the Statue of Liberty and the poem on the bottom, give me your tired, your poor, your hungry, your huddled masses yearning to breathe free. I had to memorize it in Girl Scouts. But we look at that and we take that as law. But it's not really law, is it? No. It's a poem. Well, it's an aspirational. It's your mission. Right. It's the mission that America stood for, namely that we are a welcoming country. Unfortunately, we enacted laws. And part of that laws have procedures that have to be followed. Right. And that's where the dilemma we have right now, because the people are coming through and not following those procedures. So it cuts, it cut both ways. I understand their dilemma. But how do you not only vet these people, but what do you say to the people who actually waited in line, filled off the paperwork and struggled, did the procedure and struggled to get through the vetting process and become citizens? Yeah. I mean, do you tell them that it's not important anymore? So we're a country of laws. I understand that. So the question really is, is, do we enforce the laws strictly? Or do we ignore the law? Or do we amend the law? I think Congress has the authority to amend the law. And I think Congress should try to address the situation. Unfortunately, we have a stalemate. And I think everyone puts the shift on the president by using an executive order. And if you recall history, that's something America wanted to get away from. We wanted to get away from the king's rule. We didn't want one person making the rule. Right. And that's why we created the United States, we created Congress, we created the separation of power, executive branch, the judicial branch, and the legislative branch so that everybody can check and balance. Right. We've moved away from that. And unfortunately, you know, the people want to have one person set the ground rules. And it's unfortunate because that, you know, if someone's idea of the ground rules is different from yours, that's why we have a lot of unrest. Yeah, that's true. Well, there have been times when executive orders have been done in the face of a oppositional Congress that turned out to be a good thing. Yes. Executive order 11248, for example, which is the one that created the Equal Employment Opportunity Commission and brought about what is now affirmative action. Congress really did not want to play ball with the president at that time. And so the president said, Okay, for the good of the nation, I'm going to do this by executive order. It's my right as president to do this. But I don't think past presidents have used the executive order with the quantity that this current president has and with the alleged, with the results that he is trying to obtain. Well, you have to understand, I think a lot of times reasonable minds can disagree. And we're in a time where society is polarized in opposite directions. Yeah, that's true. And as much as we'd like to think Congress or presidents are doing things for the right reason, sometimes politics get in the way. And because of this polarized positions that people take, they bunker down. And as a result, we either nothing gets done or something gets done, but to the detriment of others. Right. Yeah. You know, can you hang around and talk about this for a moment? We need to go to break so that we can show you some of the other great programming here on think tech Hawaii. I'm Cheryl Crozier Garcia, and we will be back in 60 seconds. Hello, Dave Stevens, host of the Cyber Underground. This is where we discuss everything that relates to computers that's just kind of scare you out of your mind. So come join us every week here on think tech Hawaii.com 1pm on Friday afternoons. And then you can go see all our episodes on YouTube. Just look up the cyber underground on YouTube. All our shows will show up and please follow us. We're always giving you current relevant information to protect you. Keeping you safe. Hello. Welcome back to Working Together on think tech Hawaii. I'm Cheryl Crozier Garcia, and we are talking to Judge Randall Lee about the law, specifically immigration law and recent happenings in the news media. I've got to ask you a question because you're a judge. We now have an opening on the Supreme Court. Justice Kennedy, Kennedy, yes. Justice Kennedy has said he's going to retire and so now the president gets to nominate a new person. Why is it that it is so important to know what a Supreme Court justices mindset is liberal versus conservative or things like that? I think a lot of times the general public or the public and as a whole like to think that how a judge or what a judge does or how a judge thinks would affect how they decide cases. As a judge you cannot set you have to set aside your personal feelings and judge the case solely on the facts and the law. As you know I was a prosecutor for 25 years and a lot of people believe that because I was a prosecutor for 25 years I was pro-prosecution and therefore I would rule in favor of the prosecutors. It was interesting that during my confirmation and later in the years the people who came out to support me were the defense bar. Sometimes people like you like to think that judges are predisposed. I'd like to think otherwise. I still have faith in the system whereby judges rule according to the rule of law and according to the facts and judges keep an open mind. There are different types of judges. You have judges who like to legislate from the bench and there's judges who do not legislate and they strictly apply the rule of law. I'd like to think that judges should not legislate and the reason I say that is because that's why we have the separation of powers. Now there are times that you have to legislate because the legislature creates a law that is vague and you have to explain what it means. A good example is like burglary, breaking and entering into a home. What does breaking mean? Most people like to think breaking means you have to break the window or break the door down. No, you didn't have to break the window or the door and but that had to come through the courts where the courts explain breaking just means breaking the plane of a house. Right? So coming in without permission. Right. Okay. For example, does dwelling mean the garage? Okay. The law was vague on that. So the courts had to determine that because the garage is part of the dwelling, the garage is a dwelling even though you don't sleep in the garage. So we have to use some legislative judging so that the laws can be applied fairly and with logic. What I'm talking about legislating from the bench is when you literally change the law. Okay. That's why we have the separation of powers that the legislative body is the body that should create the laws. Right. The president or the executive branch within this particular case the governor enforces the law and the judicial branch merely applies the law and does review on the other levels of government to make sure that everybody's following the law. The most recent Supreme Court decision on the travel ban. It was a close vote five to four. I read Justice Sotomayor's dissent and she actually read it from the bench which apparently means she was really upset. It's not just I respectfully dissent or I dissent or in her case it was like I dissent and y'all are a bunch of knuckleheads for finding it this way. And here's kind of what got me thinking about this. We're hearing a lot now in the media about the idea of settled law. So the Supreme Court has made a decision on something so we don't have to revisit it again because they've already said what the law means in this particular case. With the travel ban folks had used the Korematsu decision from World War II kind of as a precedent to say in the interest of national security the president is saying we're going to ban travel from these countries and the precedent for that is Korematsu where the president decided that for the national security people of Japanese ancestry could be imprisoned in internment camps even though they had not been convicted of a crime. So I'm not sure now that we can really say there's anything such as settled law because Korematsu was overthrown. Well okay Korematsu is a little different from what the travel ban and the reason I say that is because in Korematsu people are removed from their homes and placed in internment camps. In the travel ban situation people are being restricted from coming into the country. Okay so they're not being removed from their homes. As a general proposition settled law means what we call it star idiocyces which means this we call it case law and as a general rule judges would follow what prior rulings occur. However facts change a good example. At one time marijuana was illegal. The circumstances changed though. There was medicinal and some positive things that needed to be that could be used with marijuana. As a result laws change and rulings change. Okay so circumstances can change but in the travel ban case you saw how settled case law was actually applied in the sense that the five justices that ruled that the travel ban was upheld they were not legislating from the bench. So they basically said the four corners of the Constitution provides authority to the president to deal with immigration. We're not going to change the Constitution and therefore if the four corners of the Constitution says the president can has the power to handle immigration matters we're not changing the Constitution. So they followed what Justice Scalia was was basically we look at the four corners of the document and if it within the four corners of the document it says ABC we're not adding D in there. So how so then could the president use his executive power of pardon he's already pardoned Joe Arpaio of Arizona could he use that power to pardon himself if he were convicted of song wrongdoing. Well I I don't really know I mean that's an interesting issue because I would assume that if if someone committed a wrongdoing they would be stripped of those powers before they would have a chance to pardon themselves but let's assume he or she had the power as a president to pardon someone. I don't think that would be something that's politically acceptable in society I think it would be a fatal error to do so. But would it be constitutional? If you follow the four corners of the law and it says that the president could I assume they could but again I would first assume that if there was a wrongdoing there would be either some sort of impeachment type of proceedings and the powers would be removed from the the president. Yeah one would hope. One I mean I don't know I mean I don't this has never occurred. The closest it came was with President Clinton but he the impeachment process failed and so we never crossed that bridge. Right well and in the Nixon example he was pardoned by President Ford for anything he may have done. Right. Nothing was ever brought to light that he actually took part in law breaking but he may have known about it or you know kind of turned a blind eye to it. Well that would be a good example of how the president I guess could pardon himself where Nixon appointed Ford and then Ford then parted Nixon so in that sense it would be Nixon pardoning Nixon because Ford was his appointee. Right but they followed the Constitution in that. Right. President Ford became president because he was the minority leader at the time and so after Vice President Agnew was indicted on cheating etc. Yeah you know I wish we could talk about this longer. Will you come back and see us again soon? Good because we've got to wrap up now. Half an hour goes by way too quickly. Thank you Judge Lee. You're welcome. You know we've all got opinions about what's happening in the areas of politics, immigration and the criminal justice system. Justice is supposed to be blind and it may be but the law enforcement and criminal justice systems are run by humans and humans are imperfect even if we could exclude money, race, gender, national origin and other factors from the discussion. Human fallibility would still create mistakes. All we can do is take the time to inform ourselves about what's happening in the world and then to the degree that we're able work to change what we don't like. That's all the time we have today. On behalf of all of the citizen journalists here at Think Tech Hawaii, I'm Cheryl Crozier Garcia. Working together will be back in two weeks. Till then take care.