This week, President Trump announced that he has nominated Ronald Mortensen to be the assistant secretary of state for population, refugees, and migration, a move that further cements Trump’s extreme anti-immigrant agenda.

Mortensen must be confirmed by the Senate to oversee the State Department’s bureau to protect refugees, victims of conflict, and some of the world’s most vulnerable populations. 

Yet Mortensen’s record directly undermines the bureau’s core mission. Senators should be alarmed by Mortensen’s fiercely xenophobic rhetoric and long history of undermining the rights of refugees and immigrants.

He founded the Utah Coalition on Illegal Immigration and serves as a senior fellow for the Center for Immigration Studies (CIS), which is notorious for peddling dubious research on the supposed harms caused by immigrants. The CIS has supported Trump’s attacks on refugees and said that the government should prioritize non-Muslim refugees. Trump adviser Stephen Miller even cited a discredited CIS study to defend the administration’s Muslim ban. One CIS official backed a plan resembling “modern-day slave labor” to make incarcerated people build Trump’s southern border wall.

Mortensen shares CIS’ hardline views and has authored several troubling pieces for the group espousing these positions. For example, Mortensen believes it is “immoral” to grant any legal status to undocumented immigrants because they, in his words, “routinely commit multiple felonies” while residing in the U.S. Mortensen similarly criticized the Deferred Action for Childhood Arrivals (DACA) by vilifying Dreamers as criminals.

Mortensen called on Utah to repeal a law allowing the children of undocumented immigrants who live in Utah to pay in-state tuition when attending public colleges and universities. Instead, he urged state lawmakers to replicate Arizona’s controversial SB 1070 law, which authorized police to demand papers proving citizenship or immigration status from anyone they stop and suspect of being in the country unlawfully. It invited rampant racial profiling against Latinos, Asian-Americans, and others presumed to be “foreign” based on how they look or sound.

Doing little to hide his bigotry, Mortensen once sharply attacked Utah’s first Latina state senator, Luz Robles Escamilla, by insisting that she must “decide where her loyalties lie—is she a Utah State Senator representing the legal residents of Utah or is she is a representative of illegal aliens and the government of Mexico serving as a Utah State Senator.”

He said that her advocacy for the rights of immigrants helps facilitate “the criminal activity of illegal alien drug dealers who prey on Utah children” and is “sacrificing innocent Utah children for the benefit of illegal aliens,” including “human traffickers, sexual predators, identity thieves, gang members and a wide range of other criminals.”

He also went after Sen. John McCain, (R-Ariz.) over his years of work on behalf of immigration reform, saying that his “support for illegal aliens” will cause him to be seen as an ISIS “collaborator” who rolled out the red carpet for “ISIS terrorists on the Mexican side of the border with car bombs ready to go.”

Sens. Jeff Flake (R-Ariz.) and Marco Rubio (R-Fl.) have also faced his wrath, with Mortensen pillorying Flake as an “illegal alien crime denier” and Rubio as “exceptionally gullible or just plain dishonest” over their work on immigration bills.

Mortensen has even questioned the Church of Jesus Christ of Latter-day Saints for baptizing undocumented immigrants and appointing them to ecclesiastical positions like missionaries.

While Mortensen has little empathy for immigrants, he does believe there is one victim of today’s politics: Donald Trump. He calls Trump the target of “a silent coup d’etat,” engineered by government officials and the media, which may ultimately lead to violence.

Senators should ask Mortensen about his extreme hostility towards immigrants and his Trumpian rhetoric that demonizes immigrants as criminals. They should be skeptical of any attempt, by Mortensen or his supporters, to play down his extreme views.

Chase Strangio, Staff Attorney, ACLU LGBT & HIV Project & Amy Fettig, Deputy Director, National Prison Project

Jeff Sessions’ Department of Justice recently announced yet another attack on transgender people. This time, he’s targeting transgender people in the Bureau of Prisons with a new policy statement mandating placements based on assigned sex at birth except in rare cases and erasing hard-won changes to BOP policy that allowed transgender prisoners to be placed in accordance with their gender identity. We sat down with Chase Strangio, staff attorney with the ACLU LGBT & HIV Project, and Amy Fettig, deputy director of the ACLU’s National Prison Project, to discuss what this means for transgender people in prison and the ACLU’s work going forward.

Last Friday, the BOP announced a new rule concerning transgender prisoners and undid some Obama-era rules. Can you explain what changed and how it affects trans prisoners?

Amy: The former rules required that gender identity — a person’s authentic, core understanding of their own gender — play a central role in where a person is held in a male or female prison. Now, the BOP is saying gender identity doesn't matter really and what they call "biological sex" will determine placement. That is going to put a lot of people in danger.

Chase: The old policy — though certainly nowhere near perfect — was one that took decades of advocacy work to develop, and lots of prisoners fought and suffered to get to a better place with respect to BOP policy.

Notably, "biological sex" is never defined in the policy, and it seems to mean anything other than the gender that trans person knows themselves to be. Even though BOP attempted to undermine the safety of trans people in custody, they cannot change federal law, regulations, or the Constitution, and all of those things still protect trans people (however tenuously) and we will fight to ensure that they are enforced.

Amy: BOP is violating the law by not following the Prison Rape Elimination Act (PREA), which is mandatory for federal and state prisons and jails around the country. PREA requires that a person's own sense of where they will be safer be given real consideration. Now the BOP says that only in "rare" circumstances will anything beyond "biological sex" be considered. This is especially troubling because it sends the wrong message to prisons and jails around the country. If BOP doesn't follow the law, how can we expect others to?

You said that it took work from transgender people and advocates over the course of decades to create the previous rules. During that time, and since then, what have we learned about the conditions for trans people in the prison system.

Chase: The conditions for all people in prison are abysmal and inhumane, so we should start from that first premise. And then on top of that, trans people experience particularly harsh conditions because the sex-segregation of prison and the systematic anti-trans bias within the system make it almost impossible for trans people to survive.

Amy: In fact, trans people are the most vulnerable people in prisons and jails. Almost 40 percent of trans prisoners report being sexually assaulted in prison. And nearly 30 percent are placed in solitary confinement mostly because they are vulnerable.           

Chase: One California study found that 59 percent of trans women in men's prisons in California had experienced sexual assault, while less than 5 percent of the general population reported sexual assault.

Let's take a step back. What do we know about transgender people who are in our criminal justice system and how this community compares to our general prison population?

Chase: Our entire criminal legal system is the product of the over incarceration and policing of people of color and this is also true of transgender people of color. In one survey nearly 50 percent of Black trans women reported having been incarcerated at some point in their lives.

Due to family rejection, discrimination in schools and workplaces, housing discrimination, and lack of access to health care and ID, trans people are disproportionately living in poverty and homelessness. Since we criminalize poverty in this country, that also drives trans people into the criminal legal system.

Not to mention that trans folks are often profiled as sex workers or engaged in the drug and sex trades to survive.

Amy: Too often prison and jail are used to deal with issues that could be far, far better handled in the community. But we've left incarceration as the only social safety net available in this country. It makes no sense.

What about the ACLU's involvement here. Can you talk a little about the transgender people the ACLU has represented?

Chase: We have represented prisoners who have been denied access to health care related to gender transition, including a group of Wisconsin prisoners challenging a terrible law that tried to restrict any government funding for gender affirming care, Chelsea Manning in her challenge to the Department of Defense, and many others. We have also worked collaboratively with prisoners on many policy issues, including in the many rounds of providing comments on proposed PREA regulations.

Amy: Back in 1994, we represented Dee Farmer in front of the Supreme Court (Farmer v. Brennan) in what has become the seminal prisoner rights case.

Chase: And then for the 20th anniversary we organized a conference called Deliberate Resistance to commemorate all the work that Dee did.

Amy: I was actually on the phone with Dee last week, and she is still fighting for the rights of trans prisoners. She's a remarkable person. And I am proud that the ACLU was able to represent her.

Chase: We also have been involved in many cases on behalf of trans prisoners and detainees who have been subjected to violence in police lock-up, jail, and prison and have worked to ensure that they are able to have their day in court. Even though there is so much work that remains, some amazing people have fought back against the many inhumane and often torturous conditions they have faced.

Amy: Chase and I are working on a case right now about health care for transgender people in prison.  It's getting better in some places, but still too many prisons are denying people the lifesaving and life-affirming care they need.

Indeed, can you talk a bit about what would be a better set of conditions for transgender people in prison, and how the BOP rules supported those conditions?

Chase:  The most important thing is to first get people out of prison. We incarcerate too many people, and a lot of our work has to be about disrupting the drivers of incarceration. People should be able to survive while they are locked up, released sooner, and have access to basic survival needs when they do.

The former BOP policy that was rolled back allowed for the actual prisoner to assess the conditions that would be safest for them. We need policies that provide care that people need, that recognize the gender that people are, and that ensure that people receive safer housing and access to programming.

Amy: One of the first things that prisons should do is treat prisoners like people — not just numbers.

These changes are a profound culture shift in prisons. And it needs to happen if they are ever going to become anything but the warehouses of horror that they now are. BOP's policy rollback is in the exact wrong direction. And it sends a message of disrespect, discrimination, and disregard that will have implications down the line.

“Warehouses of horror” is quite the image. What is the ACLU doing at this point, with the rollback of the rules, to support transgender people in prison?

Chase: The ACLU is working in a broad coalition of groups to try to identify what trans people in custody need in confinement settings across the country. We will keep filing lawsuits to ensure people receive health care and are not subjected to unconstitutional, cruel, and violent conditions.

Amy: It's important that we let people know what's happening and why it's important. Prisons like to do things quietly so you won't know, especially because the majority of the public can't see what's happening. We have to make sure that people know and understand what undermining the rights of our most vulnerable people actually means.

In an increasingly interconnected digital world, strong cybersecurity is essential to safeguarding private data, financial transactions, personal communications, and critical infrastructure. Encryption is one of the few technologies we have that reliably protects sensitive data from identity thieves, credit card fraud, and other criminal activity.

Against this backdrop, high-ranking officials in the FBI and other law enforcement agencies have claimed for years that criminals are using strong encryption to frustrate information gathering in criminal investigations. They have dubbed this the “Going Dark” problem, conjuring a future in which criminals roam free from the reach of law enforcement. These officials say that encryption is too dangerous, and that it must be weakened with government-mandated back doors that would ensure investigators’ access to encrypted data.

FBI Director Christopher Wray claims that engineers can create back doors that don’t compromise security. But security experts agree that there’s no such thing as a back door that opens for the FBI but not for criminals or oppressive governments. Nevertheless, as support for this claim, Wray and other officials said on multiple occasions that agents were unable to access data on nearly 7,800 encrypted devices over the last year.

But it’s not true. The FBI has known for a month that it overcounted the number of devices it was having trouble decrypting by nearly 300 percent. The real number is something less than 2,000.

This latest news drives home that we can’t really trust the FBI when it comes to encryption policy. “Going Dark” is a major FBI policy initiative with one goal in mind: making it easier for the FBI to get whatever information it desires. Given the strenuous objections of the business, security, and civil liberties communities, it could not have been more important for the agency to get this number right — for good policy and for credibility.

This isn’t the only misrepresentation the FBI has made in service of its “Going Dark” campaign. We recently learned that the bureau was not entirely honest during its failed 2016 attempt to force Apple to help it get into the phone of one of the San Bernadino shooters. The FBI said that it had no way of unlocking the phone — but it turns out that some of their own specialists had never been asked whether they could do it. Instead the government sought major legal ruling by leveraging an emotionally and politically charged terrorist attack.

Ultimately, an outside vendor was able to provide a solution, and the FBI had to drop the case. But instead of being happy that investigators were now able to inspect the killer’s phone, a senior FBI official expressed disappointment because the case was a great “poster child” for the FBI’s effort to create government-mandated back doors. The ACLU just filed a Freedom of Information Act request seeking information about what the FBI knew during this process as well as records about the government’s use of classified hacking tools in criminal investigations more generally.

Encryption stops crime before it happens, and it also supports privacy, free speech, and human rights. The FBI has held itself out as a responsible arbiter of competing public interests here, but its easy arithmetic error shows it’s not capable of making that more complicated calculation.