By Charles S. Clark
August 28, 2018
Fifteen years after its creation in the aftermath of the 9/11 terrorist attacks, the Immigration and Customs Enforcement agency has become a kind of Rorschach test for many Americans: Where some see a heroic mission, others see a despotic one.
As the wedge of the Trump administration’s “zero tolerance” policy of aggressively rounding up immigrants who entered or remain in the country illegally, the men and women of ICE are among the “brave heroes who enforce our immigration laws,” as President Trump said at an Aug. 20 White House ceremony to honor them and their colleagues at Customs and Border Protection.
Alternatively, the 20,000 uniformed ICE employees scattered in 400 offices in the country’s interior (and overseas) are viewed as actors in a horror show of family separations, home invasions and lengthy incarceration of desperate asylum seekers and economic refugees.
“The president is using ICE as a mass-deportation force to rip apart the moral fabric of our nation,” said Rep. Mark Pocan, D-Wis., in July when he introduced legislation to rethink the organization. “Sadly, President Trump has so misused ICE that the agency can no longer accomplish its goals effectively. As a result, the best path forward is this legislation, which would end ICE and transfer its critical functions to other executive agencies.”
When a movement to “abolish ICE” gained steam among leftist activists this summer, Republicans in the House considered (but canceled) a plan to force a quick floor vote to embarrass Democrats as being soft on illegal immigration. Straining to oppose a Trump immigration crackdown many view as racist, Democrats remain divided on how to handle an agency that, while performing needed tasks, comes across to many as a the tool of a government that lacks compassion.
The fine print of the legislation points to a less dogmatic solution. Rather than “abolish ICE,” it would establish a commission of experts.
With its $6 billion budget, “ICE is out of control—contracting much of its work out to private, for-profit contractors that cost the taxpayers far more than is necessary, failing to even identify and address deficiencies in their system and allowing deaths due to substandard care in their custody,” said bill co-sponsor Rep. Pramila Jayapal, D-Wash. “The agency is simply unable to do the work that is most necessary for national security, instead taking away necessary resources from functions that are critical to protect our national security, including investigating terrorism, drug smuggling, and trade fraud.”
Yet the fine print of the legislation points to a less dogmatic solution. Rather than “abolish ICE,” it would establish a commission of experts to look at transitioning essential ICE functions, within a year, to other, “more accountable” agencies to create an immigration system that is “more humane.”
Agreement, in part, came from a surprising quarter. In late June, 19 of ICE’s key top criminal investigation agents wrote to Homeland Security Secretary Kirstjen Nielsen asking that their division—the Homeland Security Investigations Unit, which is the department’s largest investigative force—be peeled off from ICE’s Enforcement and Removal Operations.
“HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross-border crimes impacting our communities and national security,” the special agents wrote. “The perception of HSI’s investigative independence is unnecessarily impacted by the political nature” of immigration enforcement, which, they added, has prompted many jurisdictions to refuse to work with the investigative arm of the agency.
The current political environment, however, does not seem conducive to reworking ICE. When the Trump White House and Justice Department launched the crackdown on illegal immigration in February 2017, a memo from then-DHS Secretary John Kelly was characterized as a plan to “take the shackles off” ICE and Customs and Border Protection. The administration has shown no signs of letting up.
Thomas Homan, the acting ICE director under Trump who left this summer, recently defended the aggressive approach while speaking to documentary makers for the PBS series “Frontline.” Separating parents from their children who cross the border illegally “is sad,” he said. “But when a government chooses to enforce the law and they separate the parents that’ve been prosecuted, just like every U.S. citizen, [a] person in this country gets separated when he gets arrested . . . People want a different set of rules for an illegal alien.”
“The issues being talked about now are fundamentally issues of policy and leadership, not structure.”
– Doris Meissner
Doris Meissner, who headed the Justice Department’s Immigration and Naturalization Service from 1993-2000 before those functions were folded into the Homeland Security Department, told Government Executive that abolishing ICE makes little sense. “The issues being talked about now are fundamentally issues of policy and leadership, not structure,” she said. “The most easy go-to answer—and the answer people newly in government typically give—is ‘Let’s reorganize,’ ” said Meissner, now with the Migration Policy Institute. “Sometimes structure is an impediment, but almost any reorganization falls short of what goals and stated intentions were. The deep, strong disagreement about ICE’s work is due to the policies it is being called upon to enforce.”
A Structure in Flux
Stood up in March 2003 as part of the new Homeland Security Department, ICE currently defines its mission as “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.”
But the debate over how to organize it has never stopped.
The basic move was to dismantle the Justice Department’s INS, and move functions related to legal immigration (administering benefits) to U.S. Citizenship and Immigration Services, leaving ICE and Customs and Border Protection to focus on enforcing the law and protecting the borders.
Trump’s aggressive approach—accompanied by a selective travel ban and nativist rhetoric with emphasis on images of violent gangs—may seem unique. But its roots lie in the government’s response to the 9/11 attacks—which created ICE with a structure in flux.
The concepts for ICE’s mission can be found as early as Oct. 8, 2001, when President George W. Bush issued an executive order establishing an Office of Homeland Security in the White House to counter terrorist attacks. That plan included working with federal, state and local agencies to “facilitate the exchange of information among such agencies relating to immigration and visa matters and shipments of cargo; and . . . ensure coordination among such agencies to prevent the entry of terrorists and terrorist materials and supplies into the United States and facilitate removal of such terrorists from the United States.”
Lessons learned from the U.S. failure to prevent 9/11 included, as noted in the December 2002 House and Senate Intelligence Committees report, a critique of the FBI’s status as the main domestic agency tracking internal threats from foreign nationals. “The FBI was unaware of what information it possessed relevant to internal terrorist threats, unwilling to devote serious time, attention, or resources to basic intelligence analytical work, and too organizationally fragmented and technologically impoverished to fix these shortfalls even had it understood them and really wished to do so,” the lawmakers wrote.
Similarly, the more formal 2004 post-mortem, The 9/11 Commission Report, described failures to connect the elements of the threat despite meetings between such varied agencies as INS, the Federal Aviation Administration, CIA, the Secret Service and the Coast Guard. “The domestic agencies were waiting for evidence of a domestic threat from sleeper cells within the United States,” that report said. As it turned out, the threat was foreign—”but from foreigners who had infiltrated into the United States.”
Before 9/11, Meissner recalled, “people used to think that if you kept these agencies separate, you wouldn’t get a big-brother government. But after 9/11, it became, ‘Please, government, protect us better, connect the dots’—that was the ultimate message from the commission.”
The subsequent legislation combining 22 agencies into a Homeland Security Department set up a version of ICE that at first included an array of other bodies. ICE gained the investigative and intelligence parts of the U.S. Customs Service and the criminal investigative, detention and deportation resources of the old INS. It also, for a time, housed the Federal Protective Service and the Federal Air Marshal Service (though those were later transferred to other DHS components—the National Protection and Programs Directorate and the Transportation Security Administration).
“DHS was created by a few people in the White House, and suddenly there was this bill to put everything under one unit,” said Ur Jaddou, the chief counsel for U.S. Citizenship and Immigration Services in the Obama administration who is now director of DHS Watch at the advocacy group America’s Voice. Under the old INS, “there weren’t serious demarking lines between duties and whom one reported to,” she told Government Executive. So there were concerns about whether it was the right thing for one agency with one commissioner to be the person to do all things—handing out benefits, prosecuting, supporting,” she said. “There were lingering big-picture questions about what should happen.”
The new ICE structure was questioned almost immediately. As early as 2005, the newly founded inspector general for DHS issued a 175-page report proposing a merger of the interior-focused ICE with the border- and port-of-entry-focused Customs and Border Protection. “The resulting consolidated border security agency with a single chain of command would be better positioned to coordinate mission, priorities, and resources to guarantee a comprehensive border security program,” wrote IG Richard Skinner. “We believe that this structural alternative would provide the best opportunity for strong, effective day-to-day coordination of interconnected operations and interdependent functions.”
DHS employees from all the subsumed agencies had trouble adjusting, recalled Tracey Valerio, the former head of management at ICE under the Obama and Trump administrations now with the Frontier Solutions business consulting firm. “Change is hard, and moving processes and procedures is how bureaucracy is run,” she added. “There really wasn’t time to say, ‘Okay, this is the rule we’ll follow in this scenario, and this rule in this situation.’ ”
On the plus side, Valerio noted, “there was an enormous amount of money floating around. And if you had a good idea on ways to make things better, there was a real openness to considering it.”
According to current acting ICE director Ron Vitello, today’s agency dovetails nicely with sister agencies, particularly in participating in the multi-agency and federal-state Joint Terrorism Task Force. ICE brings “special skill sets” in high-tech investigations of drug cartels and human traffickers, he told a White House panel discussion on Aug. 20. “At the border and globally, we react” to the arrests by Customs and Border Protection and the FBI, he said. And if other agencies that have detained a suspect have trouble making a legal case, ICE can facilitate their removal from the country using due process and visa violations.
Today, ICE functions with three operational directorates—Homeland Security Investigations; Enforcement and Removal Operations; and the Office of the Principal Legal Advisor. (A fourth directorate, Management and Administration, supports the three operational branches.)
As the political jockeying and immigration policy stalemate continue, ICE’s virtues remain in the eye of the beholder.
The Homeland Security Department on Aug. 20 released a statement hailing the public safety agenda of the Enforcement and Removal Operations directorate, which arrested, during fiscal 2017, 127,000 aliens with criminal convictions or pending criminal charges for such counts as assault, illegal weapons, kidnapping and homicide.
But news reports a day earlier focused on how ICE agents in San Bernardino, Calif., had detained a man from Mexico who was taking his pregnant wife to the hospital to give birth. That prompted outrage from critics, though ICE said the man was wanted for homicide in Mexico.
This summer’s request from agents in ICE’s Homeland Security Investigations to be separated from the more-controversial enforcement unit may not be welcomed by the National Immigration and Customs Enforcement Council, an employee association dominated by enforcement staff.
That union endorsed Trump for president and backed the Justice Department’s crackdown on sanctuary cities (though it later expressed disappointment over what it said were insufficient resources and consultation with staff in the field). Most recently, the council has backed legislation protesting officials in cities such as Portland, Oregon, for not protecting ICE facilities from protesters.
“One of the really tough things happening now is that the overall mission of the agency is getting swallowed up” by all the accelerating controversy, Valerio said. “With the talk about separating women from their children, with kids in diapers, the public is focused on ‘What in god’s name did a three-year-old do?’ ” But where ICE is effective is when the man involved could be a “drug dealer or exporting technology to Iran, so you could use civil immigration authority to get that person out of here.”
Theoretically, the civil immigration and criminal investigative messages can delivered by professionals working together inside the same house, Valerio said, and separating them could be expensive. It would require organizing a support apparatus of the functions she once ran, such as finance, information technology and human resources. Also, “there is extraordinary power for public safety in having authority in-house, she added, and “not having to call another agency and say, ‘Please make this a priority.’ ” That’s a civil authority ICE has that the FBI, for example, lacks.
The ability of ICE and related DHS agencies to coordinate on shared databases at ports of entry, for example, has improved over the years, Jaddou said. “But agencies now have become hardened in their roles and are not able to see the big picture of the overall mission,” which includes bringing in foreign nationals lawfully, she said. “ICE is so focused on its role of removing people at any cost, it is missing the forest for the trees.”
Under the Obama top policymakers, Jaddou pointed out, the agency had clearer priorities of focusing on dangerous criminals, while sister agencies such as U.S. Citizenship and Immigration Services had more of a role in overall immigration policy.
“ICE is so focused on its role of removing people at any cost, it is missing the forest for the trees.” – Ur Jaddou
Hence, the question of moving any immigration components around “is a red herring at the moment,” she said. While there may be problems with ICE and CPB that “need attending to,” the system has always experienced problems. “The problem worsened exponentially because of bad policy,” she said. Any commission for reorganization would have to be staffed with “the right people to facilitate the study and be honest about what those problems are.”
Meissner agreed that while the government can “certainly go through a commission exercise, it is in many ways a workaround to what the basic issues are—deep strong disagreement about ICE’s work due to policies it is called upon to enforce and ways it is called upon to enforce them.”
There’s a good argument 15 years after DHS’s birth that dividing the functions into agencies for the border, the interior and the benefits of immigration, she said, “has produced fragmentation that has already made for less coherent immigration activities.” Dividing ICE up might make coordination even more difficult—witness the need to bring in the Health and Human Services Department to run the new ICE detention facilities.
No reorganization, Meissner said, is likely to do away with the no-nonsense functions ICE performs in internal enforcement and deportation. “But even with all the heated rhetoric and efforts by Trump to deport more, the actual record is less than half of deportations done under Obama,” she said. “So, much of what’s going on is a change in tone and the use of fear and uncertainty as an enforcement tool.”
None of that would change, she said, by reorganizing ICE.
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