U.S. attorney is ignoring the law to prosecute aid workers he thinks are 'misguided'

Humanitarian aid is not a crime, but Arizona United States Attorney Michael Bailey refuses to acknowledge that simple fact.

Humanitarian aid worker Scott Warren’s first felony trial ended in a hung jury; eight jurors found him innocent. Bailey refused to accept that verdict, insisting instead on a retrial.

After a second jury exonerated Warren for allegedly “harboring illegal aliens” – deliberating for only two hours – Bailey vowed, “…[w]e won’t distinguish between whether somebody is trafficking or harboring for money or whether they’re doing it out of, you know, what I would say is a misguided sense of social justice or belief in open borders or whatever.”

The harboring law is straightforward: Prosecutors must prove the defendant “harbored, concealed or shielded from detection aliens with the intent to violate the law.” A defendant who harbors aliens for humanitarian reasons – as opposed to an illegal reason, like to profit from smuggling – has not committed any crime. Humanitarian aid, by definition, is not a crime.

Commit no crime? You still get a felony

Bailey’s refusal to honor the jury verdict and his promised continued prosecutions of humanitarians is significantly more than “sour grapes” or being a poor loser. He is blatantly promising to pass moral – not legal – judgment on humanitarians and prosecute them not for breaking the law, but for having a “misguided sense of social justice.”

If Bailey decides your sincere belief that helping migrants survive is “misguided,” he will charge you with a felony.

That outrageous and illegal scenario is precisely what happened to Scott Warren. For two years the federal government sought to imprison him for providing aid to migrants in Ajo.

Agents opened an investigation into Warren and the group No More Deaths because of their open support for migrants’ rights and their work placing water and supplies along the routes where more than 3,000 corpses of undocumented border crossers have been recovered.

Scott Warren's arrest exposes this farce

Just hours before his arrest, No More Deaths issued a report documenting Border Patrol’s systematic vandalism of more than 3,000 water containers No More Deaths had placed in the desert. The report contained video of Border Patrol agents destroying water caches.

Border Patrol supervisors emailed the report to other law enforcement. But Bailey’s prosecutors refused to ever concede BP agents knew about the video before arresting Warren.

In Warren’s second trial, however, agents admitted watching the video just before driving, without warrant, onto the humanitarian aid station property where Warren and other volunteers were giving aid to two young migrants.

That Border Patrol investigated Warren for supporting migrants’ rights, then arrested him after No More Deaths criticized Border Patrol, is flagrantly illegal and unconstitutional but also not surprising.

Prosecutor is deliberately ignoring the law

What is surprising, however, is a previously time-honored institution, the Department of Justice, prosecuting humanitarian aid workers for completely legal acts – simply because Bailey considers humanitarian actions to be “misguided.”

The law is clear: What matters is whether a person helps aliens for humanitarian or illegal purposes, not whether a government official thinks humanitarian help is misguided.  

Michael Bailey is not simply mistaken, as prosecutors sometimes are; he knows what the law is but has deliberately chosen to ignore it and prosecute humanitarian aid workers, knowing full well their humanitarian actions are legal.

Humanitarian aid is not a crime. Arizona needs a U.S. attorney who will investigate crimes and prosecute criminals, not people he decides have misguided beliefs.

Greg Kuykendall served as Scott Warren’s lead defense lawyer. Reach him at greg@kuykendall-law.com.