April 1, 2011

From the Desk of Judicial Watch President Tom Fitton:

JW Sues DHS — Twice! — for Records Detailing Obama “Stealth Amnesty” Plan

The President was on record earlier this week saying he has no plan to suspend deportations for illegal aliens. The evidence, however, suggests otherwise. So Judicial Watch is going to court — again — to try to force the truth out of the Department of Homeland Security (DHS).

This week we filed two Freedom of Information Act (FOIA) lawsuits against the DHS to obtain records detailing the Obama administration’s alleged plan to grant legal status to illegal aliens without going through Congress, a strategy commonly known as “stealth amnesty.”

On July 2, 2010, Judicial Watch sent a FOIA request to the DHS to obtain the following information: “Any and all records of communications between the Department of Homeland Security and any of the following entities, concerning ‘deferred action’ or ‘parole’ to suspend removal proceedings against a particular individual or group of individuals for a specific timeframe; as well as records of communications concerning ‘selective reprieve’ to the segment of the population holding expired visas: The White House; The Executive Office of the President; any third parties.” We’re also after internal DHS communications regarding “deferred action or parole.”

Then on August 30, 2010, Judicial Watch followed up with yet another FOIA request to DHS looking for the following information:

• Any and all records of, and/or records concerning, Department of Homeland Security briefings regarding a systematic review of pending immigration cases against suspected illegal immigrants in Houston, Texas.
• Any and all records of general guidelines issued to Department of Homeland Security attorneys, allowing dismissal of pending immigration cases.
• Any and all records detailing the determination and implementation of a systematic review of pending immigration cases against suspected illegal immigrants in Houston, Texas.
• Any and all correspondence with non-governmental organizations…concerning the process for US Immigration and Customs Enforcement to give consideration of possible dismissal of pending immigration cases.

The DHS acknowledged receipt of our FOIA requests. However, to date the agency has failed to provide a single document. The agency has also failed to indicate when a response will be forthcoming. In both cases the statutory allotted timeframe for response has long since passed, which is why we sued. (Of course this is unsurprising. Reporting by The Associated Press suggests that the DHS’s political appointees have improperly delayed FOIA requests on politically sensitive topics. And this week Rep. Darrell Issa’s (R-CA) House Government and Reform Committee released a devastating report detailing this lawlessness.)

So what is this illegal alien deportation scandal all about?

As you know if you’ve been reading this space for some time, the Obama administration has been heavily criticized for its alleged plan to bypass Congress and enact “stealth amnesty” by executive fiat. In fact, in June 2010, the press uncovered a U.S. Citizenship and Immigration Service “draft” memo that outlined a variety of ways to grant legalization to illegal aliens without going through Congress. A couple of months later we learned this “stealth amnesty” plan was not a theoretical exercise. It was already in full operation.

According to the August 24, 2010, edition of The Houston Chronicle: “The Department of Homeland Security is systematically reviewing thousands of pending immigration cases and moving to dismiss those filed against suspected illegal immigrants who have no serious criminal records…Culling the immigration court system dockets of noncriminals started in earnest in Houston about a month ago and has stunned local immigration attorneys, who have reported coming to court anticipating clients’ deportations only to learn that the government was dismissing the cases.”

It appears the Obama administration has initiated a policy to selectively deport illegal alien lawbreakers, while allowing others off the hook entirely!

As I mentioned earlier, the President was asked to comment on these suspended deportations on Monday. And despite evidence to the contrary, Obama claimed that he has no such plan. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as president,” Obama said.

That is certainly true. But since when has the Obama administration cared a whit about immigration “laws on the books?” His Justice Department, while attacking Arizona’s get-tough illegal immigration law, has already announced it will not enforce federal immigration laws “on the books” to prosecute sanctuary cities. So why should deportations of illegal aliens be any different?

Obama may deny he has a plan to suspend deportations but this runs counter to the experience of immigration attorneys in Houston. And that’s why it’s critical that Homeland Security follows the open records FOIA law and turns over these records.

The American people need to know if the Obama administration has decided to flout our immigration laws (again) by enacting stealth amnesty for illegal aliens who are unlawfully here in the United States. And, as always, stonewalling by the “transparent” Obama administration suggests it has something to hide.

JW Obtains New Documents Detailing Controversial Provenge “Review”

The Centers for Medicaid and Medicare (CMS), under enormous public pressure, proposed that Provenge, a Food and Drug Administration (FDA) approved treatment for prostate cancer, be covered by insurance following a controversial “review.” A final decision on the issue is expected to be published 60 days after the public comment period for the proposed decision has ended.

On the same day as the CMS decision, Judicial Watch released hundreds of pages of documents from the Obama Department of Health and Human Services (HHS) detailing how and why the review was instituted. And here’s one of our major finds: While the Obama administration claimed the cost of Provenge had nothing to do with their review, these documents suggest otherwise. (Remember Medicare and the FDA are legally prohibited from denying approval of a medical treatment based solely on cost.)

As you may recall, we filed a FOIA request with HHS over Provenge after the press reported the CMS had taken the rare step of calling for a review Provenge to see if it is “reasonable and necessary” and should be covered by Medicaid and Medicare.

The move caused widespread panic among those patients who depend on the treatments to live, as well as anyone else who had heard all about health care rationing and “death panels” under Obamacare. (Let’s not forget, Obama named “Death Panel Donald” Berwick to head CMS and Berwick is on record supporting the idea of health care rationing, so these fears are not unfounded.)

When HHS stonewalled our FOIA request, we sued for the documents on January 3, 2011. And just this week we got our hands on some pretty interesting material.

Now, according to these new documents, the purpose of the Provenge review, deemed a National Coverage Determination (NCD), is to determine if the FDA-approved treatment should be reimbursed on a uniform and national level. The CMS claims the review was triggered by the fact that local Medicare contractors were not uniformly providing coverage for the Provenge, leading to multiple complaints by patients. Some contractors withdrew coverage in the middle of treatment.

Here are some other highlights from the documents, beginning with an interesting excerpt regarding the cost issue:

• The documents include a CMS Q&A sheet that denies cost was a factor in the decision to review Provenge. However, a June 8, 2010, internal email from William D. Rogers, Director of the CMS Physicians Regulatory Issues Team, to Louis B. Jacques, CMS Director of Coverage Analysis Group, states: “We discussed this on the last CMD [Contract Medical Director] call. $93,000 per treatment adds four months to life, 27,000 patients a year $2.6 billion dollars a year.” Obama administration officials have denied that the review of Provenge had anything to do with the treatment’s costs.

• A July 28, 2010, letter to Louis Jacques from Hans Bishop, Chief Operating Officer of Dendreon, the company that manufactures Provenge, and Mark Frohlich, Dendreon’s Chief Medical Officer, objecting to the “highly unusual” review of Provenge.

  While noting the “overwhelming clinical evidence” of Provenge’s effectiveness, and the FDA’s rigorous approval process, Dendreon asked the CMS to shut down the NCD: “We remind you that the patients we serve have late-stage cancer and few, if any, appealing treatment options available to them, with only chemotherapy as an FDA-approved alternative. Not only is Provenge clearly reasonable and necessary…but it provides an unambiguous survival benefit and real hope for patients battling their disease.” Dendreon argued to keep the system’s status quo, with local contractors making coverage decisions as coverage variations have “subsided.” The letter also suggests that coverage is required by law as a result of the FDA’s prior approval of the Provenge treatment for prostate cancer.

• An internal CMS email indicating that the government hired health insurance giant Blue Cross Blue Shield, identified in public documents as an “external entity,” to conduct a technological assessment of Provenge’s clinical effectiveness. The involvement of Blue Cross Blue Shield raises serious concerns about a potential conflict of interest, as private insurers use Medicare’s coverage determinations in setting their own coverage limits.

• The documents include back-and-forth discussions between CMS and Dendreon about “comparative effectiveness.” In response to Dendreon’s request for clarification regarding the term “comparative effectiveness,” Jacque’s writes in a July 22, 2010, email to a CMS colleague: “Why do they need clarification?…We need to maintain an arms [sic] length relationship with them. We do no[t] owe them any questions.” Many have criticized comparative effectiveness research as a method to limit needed health care in order to reduce costs (i.e., death panels).

A number of the documents expressing concern over the review were distributed to CMS Administrator Donald Berwick himself.

Clearly, there is enormous public interest in the CMS decision to review Provenge, given all of the talk of health care rationing and death panels associated with Obamacare. The American people get very nervous when the government decides to meddle in their health care and they have every right to be nervous given that we have unaccountable czars like Donald Berwick running Medicare and Medicaid.

If you read these documents for yourself, you’ll see there was a strong bias against Provenge in the Obamacare bureaucracy. Fortunately, pressure from patients, the public, Congress and groups like Judicial Watch forced the government’s hand.

I’m willing to bet that HHS bureaucrats gave Provenge a pass (as the law seems to require), because they knew that Judicial Watch was set to expose their questionable decision-making process.

Still, this decision most certainly does not put an end to the issue of health care rationing. A recent study shows that in 2010, only two of the 11 National Coverage Determinations led to “unrestricted positive coverage decisions.” The remaining decisions mandated restrictions of coverage of one type or another.

Donald Berwick said it himself. It’s not a matter of if we ration healthcare, it’s a matter of when.

Judicial Watch Targets ACORN Voter Registration Fraud in Testimony before PA State Legislature

Voter fraud was front and center in the 2008 elections, with the “community organization” ACORN at the center of a slew of voter registration fraud scandals. Remember this is the same organization that paid “lazy crack heads” to fraudulently register voters, including names like “Mickey Mouse” and “Donald Duck.”

Well, Judicial Watch has taken the lead in exposing ACORN. As part of JW’s campaign, one of our attorneys, Michael Bekesha, provided testimony on March 21 to the Pennsylvania State Government Committee on Voter Fraud. Specifically, Michael provided his analysis of two pending Pennsylvania bills, HB 934 and HB 647.

As we head into election season again, voter registration fraud will continue to be a hot-button issue, especially since it appears ACORN has done nothing to mend its ways. At last count, approximately 27 states around the country are in the process of passing or have just enacted new laws to prevent voter fraud in the future. As the Supreme Court (Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)) stated:

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.

We agree. So Michael took the trip to Harrisburg to give his analysis of the ways in which the integrity of the electoral process can be protected from ACORN and other corrupt groups. Here are a few excerpts from JW attorney Michael Bekesha’s testimony. (But I hope you’ll read it in full here.)

• As part of our mission to investigate and prosecute government corruption, Judicial Watch sought access to FBI records related to voter fraud. Specifically, we uncovered election law violations and voter fraud in Missouri and Connecticut. According to FBI records, in 2007, the FBI investigated and ultimately arrested eight St. Louis, Missouri, workers from the “community organization” Association of Community Organizations for Reform Now (ACORN) for violation of election laws and voter fraud.

  The FBI records include handwritten notes from FBI investigators interviewing canvassers working with Project Vote, an ACORN affiliate. The FBI found that those working for Project Vote and ACORN sought to “cause confusion on election day to keep polls open longer,” “allow people who can’t vote to vote,” and “allow [people] to vote multiple times.” Moreover, the FBI found instances of canvassers thinking that if they “used a completely fake name it would be less like ID theft.” These are just a few examples of how voter fraud may occur. Unfortunately, these are not isolated incidents.

• According to Judicial Watch’s ongoing investigation, ACORN and its various affiliates (most notably Project Vote) have been implicated in at least 35 well-documented election fraud schemes in 17 states.

• Reports of ACORN’s demise have been greatly exaggerated. Although ACORN’s vast network has been nominally disbanded, many of its former state-level branches have been reconstituted as distinct and legally independent nonprofit entities. Nearly all of these “new” organizations are led by former ACORN executives and employees, and most occupy former ACORN office space. They continue to perform the same type of work that was previously done by ACORN, ACORN Housing, and their state-level offices. In essence, it is the same organization operating under different names.

• In Pennsylvania, after the last election, there were media reports that organizations, such as ACORN, were busing people from New Jersey and New York to vote in Philadelphia. Moreover, a former ACORN staffer pled guilty last year to charges stemming from his involvement in ACORN voter fraud in Pittsburgh. Six fellow ACORN employees were indicted along with him. In 2008, the organization was found to have submitted tens of thousands of fraudulent voter registrations in Philadelphia alone.”

During his testimony Michael also analyzed measures that states are taking to avoid voter registration fraud, including enhanced identification measures. And specifically, Michael provided his thoughts on the two pieces of Pennsylvania legislation intended to deal with this problem, which Michael deemed imperfect, but a “step in the right direction.”

As I say, please check out his full testimony. And look for an upcoming Judicial Watch special report on ACORN’s rebranded affiliates. More details to come.

Until next week…

Tom Fitton
President

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