Cultivated Compendium

I have written a piece for the Connecticut Law Tribune about four Muslim men alleging they were placed on the no-fly list because they refused to become FBI informants: 

A West Haven man claims he refused to become an FBI informant.

The result, Naveed Shinwari says in court papers, was he was put on the United States no-fly list and was unable to board a flight to take a temporary job in Florida. The Afghani American and practicing Muslim said he lost his expected income from that job and was out $4,000 total in expenses and fees from multiple lost flights. Additionally, Shinwari said he has been unable to visit his wife and other relatives in Afghanistan.

That's all according to his complaint filed in the U.S. District for the Southern District of New York in April. Shinwari and three other plaintiffs allege they are being deprived of due process by being placed on the Transportation Security Administration's no-fly list even though they argue they do not pose a threat to aviation safety.

The case is being prosecuted by the CLEAR Project, which is part of the City University of New York School of Law; the Center for Constitutional Rights; and Debevoise & Plimpton LLP.

Legal experts said that Shinwari's case is likely to be one of many in which plaintiffs go to court to challenge inclusion on the no-fly list. A California federal judge's recent decision requiring the government to remove the name of a Malaysian Muslim architect from all governmental terrorism databases is likely inspiring Shinwari's case, said Sudha Setty, a professor at Western New England University School of Law. Setty's national security research focuses partly on the inability of people to access the court system to address counter-terrorism abuses.

U.S. District Judge William Alsup, of the Northern District of California, ruled in Ibrahim v. Department of Homeland Security that Rabinah Ibrahim was placed on the no-fly list by mistake. An FBI agent filled out the form "in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit—human errors, yes, but of considerable consequence."

Even though Ibrahim was placed on the no-fly list by error, the derogatory information propagated through "the government's interlocking complex of databases [was] like a bad credit report that will never go away," the judge said.

The positive impact of the Ibrahim decision for "people interested in civil rights and civil liberties" is that those included on the no-fly list now have access to judicial review, Setty said. "That ends up motivating complaints like this one getting filed," she said. "They are looking at the Ibrahim case and saying, 'I can try to get my case heard.'"

Susan Hu, one of Shinwari's attorneys from the Center for Constitutional Rights, said that while a California court does not bind a New York court, "we're hopeful that the [California] decision will be a positive precedent for us."

There have been other challenges to the no-fly list before, Hu said, but what is novel about this case is the ways in which the FBI "exploits the secrecy of the no-fly list" to coerce people into becoming informants. "What we're really asking for this case is for the government to be transparent about its process and to be accountable for its misuse of power," Hu said.

In his lawsuit, Shinwari said he is a lawful permanent resident in the United States, and that in March 2012 he "declined to work as an informant because he believed that it was dangerous, and because it violated his sincerely held personal and religious beliefs."

Shinwari and the other plaintiffs — Muhammad Tanvir, Jameel Algibhah and Awais Sajjad — said people are supposed to be placed on the no-fly list only if there is reasonable suspicion they are known to be or suspected to be terrorists and there is some other "derogatory information" indicating they pose a threat of committing a terrorist act.

But the plaintiffs said the only thing they have done is exercise their constitutional rights.

Shinwari also stated that FBI agents offered to remove him from the no-fly list if he became an informant. But, if he truly posed a threat to aviation safety, there was no way they could actually remove him, he stated. The FBI's New York City press office declined comment.

The U.S. Court of Appeals for the Second Circuit has been a "mixed bag" in terms of plaintiffs getting access to the courts for review of counter-terrorism abuses, Setty said. The Ninth Circuit tends to be more concerned with civil rights and liberties, she said.

Generally, people who have been pressured into becoming informants have not been successful in prosecuting lawsuits on that fact alone, Setty said, because their unwillingness to work as informants is viewed potentially as providing material support to terrorists. But affecting someone's right to travel without due process could be another matter, Setty said.

Richard S. Kay, a constitutional law professor at the University of Connecticut, agreed the Ibrahim case has shown that courts do have jurisdiction over people's placement on the no-fly list and that people are entitled to some form of relief. The question for courts is if there was procedural due process before and after the plaintiffs' liberty to travel was curtailed and what the government's interest was in curtailing that right, Kay said.

The plaintiffs also argued being placed on the no fly list violates their First Amendment rights to freedom of speech, association and religion.

"Many American Muslims, like many other Americans, and many followers of other religions, have sincerely held religious and other objections against becoming informants in their own communities, particularly when they are asked to inform on the communities as a whole rather than specific individuals reasonably suspected of wrongdoing," the plaintiffs said. "Acting as an informant would require them to lie and would interfere with their ability to associate with other members of their communities on their own terms."

Kay said the First Amendment claim "seems a little strained on the face of it" and less compelling than the due process argument.

Shinwari said that in March he was able to get on a commercial flight for the first time in two years. According to court papers, he does not know if he was granted a temporary waiver to travel one time or if he is now removed from the no-fly list.

Hearst published a story (DNT20140426.pdf) I wrote about the lack of support young adults with disabilities and their families face after they age out of the public school system:

Jill Edelman’s daughter is 24, attended a boarding school on Cape Cod focused on special education, and now is living in an apartment with another young woman in Ridgefield and attending a day program that provides her with vocational opportunities.

Tucker Acocella’s son is 22 and attended a boarding school in the greater Boston area for people with visual handicaps. But Acocella’s son is now sitting at home alone every day, listening to the rock-and-roll music he loves.

Both Edelman’s daughter and Acocella’s son are young adults with disabilities. But once they age out of the public schools and the state’s legal obligation to provide them with an education, they found themselves on opposite sides of the law, which determines the eligibility for people with significant intellectual disabilities to receive services as adults.

The way those eligibility requirements play out can have serious consequences on families.

Edelman’s daughter is entitled to services because her IQ is low enough to qualify for services.

But Acocella’s son is not. His IQ was four points too high to qualify for services.

“Their motivation is to deny benefits, not to grant benefits,” Acocella says of the state Department of Developmental Services.

The success story for Edelman’s daughter is one that Edelman, a therapist who has written a book and blog about parenting a child with special needs, is very happy about. “One of the biggest concerns of a parent with a special needs young adult” is that they will regress if they are not exposed to new opportunities, stimulation and interaction with peers, Edelman said.

Young adults with disabilities of all types, both physical and intellectual are entitled to a public education up until around the age of 21. But then they and their families have to transition out of the public school system.

The cut-off age for receiving services from the state Department of Developmental Services is young adults, who at the age of 18, have a significant intellectual disability as measured by a standardized test and an IQ of 70 or lower. People with intellectual disabilities such as those on the autism spectrum or Prader-Willi syndrome can qualify, according to Thomas A. Dailey, a regional director for DDS.

After age 21 There is a whole group of people with disabilities who don’t meet the state criteria for assistance as adults because they are higher-functioning with an autism spectrum disorder or their IQ is above 70, said Lolli Ross, executive director of Abilis, which provides assistance to adults and children with developmental disabilities and their families in lower Fairfield County and parts of Westchester County.

But they still need support in daily life and can’t live completely independently, she said.

One such person is Sean Pultz, 28, who has autism. When he aged out of the system, he was highfunctioning enough that he did not qualify for assistance, yet he was unable to get a job or live on his own.

He is now about to graduate, cum laude, from Western Connecticut State University in Danbury with a bachelor’s degree in theater arts. Although he is able to live on his own, he still requires significant help.

The cost of teaching Sean the interpersonal and life skills he needed to be able to attend school has been high for his parents, both in terms of the time and money.

Sean’s mom, Marrietta Pultz, said they tried sending him to a year-long program after high school that was designed to teach him life and job skills, but he came out of it basically unemployable.

“He spent a year just sitting in his room,” Marrietta Pultz said.

At that point, Sean’s parents realized they had to somehow get him real job training. His functioning level had allowed him to find success performing as an actor from a young age — he has been performing with Stamford’s Curtain Call theater for years — so his social abilities were enough to build on.

They sent him to Gibbs College for a year, where with considerable support from his family, he was able to get far enough that he had the credits and life skills to enroll at Western, which has a special education class designed to help students like Sean.

He is now planning to parlay his Curtain Call experience and theater-related summer jobs and internships he’s had into an acting career. But it took six years, and many, many hours of support from his parents. And his parents will be left with tens of thousands of dollars in school loans.

But Sean Pultz’s story is an extraordinary one.

There are many other special needs adults who don’t qualify for ongoing services, and don’t have prospects for a full life.

In Connectiut, DDS provides support services to more than 21,000 Connecticut residents, including 16,000 adults, Dailey

said. In 2013, 400 people applied for DDS services, but he estimates that 50 or 60 were found ineligible.

Connecticut has a waiver where people with autism whose IQs are above 70 can still qualify for support from DDS, said Dailey and Nicholas Gelbar, a postdoctoral fellow with the University of Connecticut Health Center’s A.J. Pappanikou Center for Excellence in Developmental Disabilities.

However, not everyone is helped by the waiver, advocates said.

Another issue facing young adults with disabilities is the lack of planning that sometimes occurs for preparing for their transition into adulthood and out of the school system.

“It should be a seamless transition” out of the public-school system into DDS services, said Abilis Executive Director Ross. But it often is not, she said, due to poor funding, poor planning or poor support from Connecticut school districts.

Without that planning, special needs children who are high-functioning enough to learn life and job skills may end up requiring extensive assistance for life, presenting a serious problem when their parents die, said Monica Schlessinger Smyth, director of family resources for Abilis.

Gelbar, who researches how to incorporate people with disabilities into post-secondary education, said that growing up presents the normal challenges for teenagers with disabilities as it does for any teenagers.

“Individuals with disabilities are individuals,” Gelbar said. “They are experiencing the normal transition that everyone experiences. Everyone has some difficulty with these transitions. What’s special about individuals with disabilities is that they have this extra need of support. Going through that transition, there are more particular challenges for them, if the transition isn’t dealt with in a systematic and structured way.”

Back when Sean Pultz was at Westhill High School in Stamford some 15 years ago, his parents discovered transition services by accident. They were attending a conference for special needs artists in their ongoing quest to feed their high-functioning son’s interest in acting and film, when they heard about a group based in Bethel called Ability Beyond that provides ongoing education and job training for people with disabilities.

It was only when they began working with Ability Beyond that they learned of a state agency, the Bureau of Rehabilition Services, that is tasked with helping families with the transition.

Some of the best practices in assisting young adults with disabilities to make the transition out of the school system and into adulthood is getting them work and volunteer experiences so they can envision themselves in those worlds and articulate what support they would need to be employed or go on to post-secondary education, Gelbar said.

Many times people with disabilities want to live individually, Dailey said, which can be less expensive than living in a group home. Paying for someone to live in a group home costs an estimated $130,000 a year, and allowing higher functioning people to live on their own rather than in a group home allows another Connecticut resident who may not have other options to live there, Dailey said.

“What we want is for everyone to live self-determined lives … and that we afford them the opportunities to make choices,” said Marie Bennett, DDS director of individual and family support services.

Acocella, who is a single parent, said he is very concerned about his son’s future. His son not only has congenital glaucoma that has pretty much taken away all of his sight, but also has an intellectual disability.

Because his IQ was four points higher than the state’s cut-off, the only help Acocella said he has gotten from the government in transitioning his son from boarding school to adult life has been limited to a four-month program paid for by the state Department of Rehabilitation Services’s Bureau of Education and Services for the Blind.

Acocella’s son is now living away from him in a program to teach him some skills of independent living like cooking, managing money and doing household chores.

Besides volunteering at a local gas station and taking a music class in Bethel, Acocella’s son stays at home, he said.

“What happens if I die?” Acocella asks. “What happens to my son? Who takes care of him?”

Edelman, while her daughter is living independently and is receiving support from the government, also is worried about her daughter’s future when she and her husband pass away.

“The fact is she is vulnerable to much larger powers (including) government funding, federal and state,” Edelman said. “Hopefully, long after we’re gone, she’ll still be protected by these.”

 

The Connecticut Post and the Danbury News-Times published my piece (DNT20140428.pdf) about adoptees who are trying to change the law so they can have access to their birth certificates.

Joan DiGiulio doesn’t know who she is.

Until the age of 45, DiGiulio didn’t know she was adopted. She only discovered her past when she went to get her birth certificate in New York City before taking a trip to Europe.

DiGiulio will turn 76 next month, but the identity of the woman who gave birth to her remains a mystery. DiGiulio said she has given up actively searching for her birth family because it just makes her want to weep.

Although her adoptive parents never treated her as an outsider, it was hard to shake that sentiment.

“You’re an outsider even though you think you’re not,” said DiGiulio, who lived in Danbury for more than 40 years and now splits her time between Florida and Southbury.

While DiGiulio concedes it’s unlikely her birth mother is still alive, she wonders if she has any biological siblings. She is also interested in her medical history, hoping it could illuminate a medical condition that affects no one in her family but her daughter.

It’s just one more longshot in a lifetime of longshots.

DiGiulio is stymied in her search because New York and Connecticut seal adoption records. Undaunted, DiGiulio and many other adoptees hope Connecticut lawmakers will soon allow access to the birth certificates of those who have been adopted.

In Connecticut, adoptees have their original birth certificates sealed and are issued revised birth certificates that list their adoptive parents as their parents. Until 40 years ago, birth certificates were open records.

Right now, a bill is pending in the General Assembly that would give adult adoptees — and their children and grandchildren — the right to access the original birth certificates. The bill would set up a voluntary procedure for birth parents to specify if they want to be contacted by their adopted descendants. Adoption agency counseling records, and court records of adoption hearings and the termination of parental rights, would remain confidential.

Time is running out, however, for the law to be changed this legislative session, which ends May 7. A compromise is on the table that would restore access to birth certificates for those adopted Jan. 1, 1983, or later. The rationale for opening some, but not all birth certificates is a form has been given to birth parents since 1983 in which they are advised when terminating their parental rights, “the child or youth, upon reaching his or her 18th birthday, may have the right to information which may identify me or other blood relatives.”

State Rep. Fred Camillo, R-Greenwich, is a co-sponsor of the original legislation to open adoptee birth certificates.

Some legislators are reluctant to support the legislation because of the earlier implicit promise to birth parents that adoption records would be closed, Camillo said.

Others are concerned that if adoptions are no longer closed, birth mothers will choose abortions instead of adoptions, he said.

Camillo argues unsealing adoptee birth certificates will help adoptees search for their birth parents and access information about their health that could potentially save their lives.

Ultimately, he said, health trumps embarrassment.

Catholic Charities, Diocese of Norwich, and Catholic Charities, Archdiocese of Hartford, submitted testimony against House Bill 5144.

In its written testimony, Catholic Charities of Norwich said lawmakers should “respect the privacy rights of biological parents who were ensured confidentiality at the time that they made the decision to place their children for adoption. Releasing this information without their consent violates fundamental fairness and privacy rights which are the foundation of our laws.”

Karen Caffrey, another adoptee, is a psychotherapist who counsels adoptees and an activist with the grassroots adoption organization, Access Connecticut.

Caffrey said her group supports the compromise bill. If the bill passes this spring, Access Connecticut will work to restore access to the birth certificates of people who were adopted before 1983, she said.

Adoption secrecy was a social experiment to protect children from the stigma of being born outside of marriage and acquiring bastard status, Caffrey said.

Karen Waggoner, of Bethel, a retiree who gave her daughter up for adoption, said women had to drop out of school when they got pregnant.

Waggoner, who grew up in Greenwich, said the stigma continues today. Waggoner, who is in the middle of helping to plan her 50th high school reunion, said she has classmates who got pregnant as teenagers and are unwilling to come to the event.

“It was a hideaway era,” she said.

Penny Palmer, a Bethel resident who grew up in Greenwich, gave up her son for adoption in 1968. Palmer said she was the only young woman she knew of who got pregnant and wasn’t sent out of town.

Today, there’s far less social scorn about children being born to unmarried parents, she said.

But in the late 1960s, not only did women go through the trauma of giving up their children, everyone around them made them feel “so horrible” for getting pregnant out of wedlock, Palmer said.

“I do understand why people don’t get over that,” she said.

For Palmer, finding her biological son turned out to be a joyful experience.

After finding him at the age of 22 in 1990, her son’s adoptive parents became part of her family, and her two younger sons embraced their older half-brother, Palmer said. He has now been a part of her life for longer than he was out of it.

Krista Bradford, a Westport resident, grew up knowing she was adopted as a baby in California. But she still had compelling questions about her identity that her adoptive parents couldn’t answer.

Finally, the need to find answers led her to careers in journalism and executive recruitment, she said. Bradford eventually tracked down both of her birth parents. She also met her siblings.

People are realizing that closed adoptions do more harm than good, Bradford said, because adoptees tend to imagine one of two extremes about their birth parents — they’re either famous, exotic royalty or celebrities, or they’re villains with loose morals.

Secrecy tends to generate shame, Bradford said. It also deprives adoptees of their sense of identity, their sense of well-being and their birth family’s medical information.

“I believe in the power of sunlight,” Bradford said.