The waning weeks and days of the U.S. presidential contest had no dearth of drama, culminating in the failed insinuation of anti-democratic insurrection by the incumbent. On the immigration front, though, things ended in a bit of a whimper.
Whereas immigration was the be-all end-all of the inextricably linked culture and political wars throughout much of the 2016 electoral season, the subject barely made a blip during the 2020 campaigns. This is partly a function of the fact that immigration itself was never a particularly fundamental concern to Trump, but rather a needle to tap the more primal vein of his base’s abject fear of losing their cultural primacy and power. Once in office, he was glad to hand that project over to Stephen Miller, a true believer who was remarkably successful at enacting his ethno-nationalist agenda and burning the system down, largely as background noise to an apathetic public that could be roused only temporarily by the administration’s most obvious abuses.
That undercurrent of bilious rage among those who sense their loosening grip on American society has nonetheless remained, and it was as enticing an electoral force as ever. Trump merely switched the needle, choosing this time to draw resentment out with always-sharp warnings of Black criminality and the specter of violent leftist groups financed by shadowy Jews or foreigners (or both). A consequence of this strategy was that there wasn’t much robust discussion about immigration from the Biden camp. They were probably happy to avoid the prickly issue—strong stances wouldn’t get him any more votes, but a misstep could enrage a progressive movement that already viewed his record with suspicion. Insofar as we got specifics, they were about relatively uncontroversial measures like reuniting separated families, stopping border wall construction, acting on behalf of Dreamers, and turning back asylum restrictions.
Already, the Biden team has talked up the idea of moving on, closing and setting aside an ugly chapter in U.S. history to heal the Divided Soul of Our Nation™.
Now, much of the focus is on which portions of the vast pool of Trump-era immigration policy shifts Biden will undo, and when, with a handful of affirmative executive actions thrown in; for example, recent reporting points to his ultimately instituting some kind of temporary deportation moratorium. Yet there’s also a third rail, a charged notion humming with potential energy that few wanted to touch pre-election: the possibility of bringing accountability to bear on the Homeland Security enforcers whose litany of known abuses are the tip of the iceberg. The daily churn of the immigration enforcement grinder is grisly enough that many prefer to tune it out. But it continues on regardless, letting people die of medically treatable conditions, coercing detainees into giving up their legal rights, and callously exposing those in its custody to Covid-19, among many other things.
So, the question is: What are we going to do about it? Already, the Biden team has talked up the idea of moving on, closing and setting aside an ugly chapter in U.S. history to heal the Divided Soul of Our Nation™. That’s all fine and well, except for the fact that all of this did happen, didn’t it? And it not only happened under Trump, it happened under Obama, under Biden’s own nose. To move on is not enough.
The first imperative is fact-finding. What we know now, we know from the work of journalists, the Government Accountability Office, the DHS inspector general, and the occasional Congressional committee report. These entities have all provided detailed looks into discrete abuses, but collectively, we’ve only scratched the surface of this unaccountable system’s depth of mistreatment and malice. All of us who report on this beat have had the experience of not being able to carefully parse the volume of vile allegations that come our way. For true reconciliation, we need a full accounting, and that requires a dedicated staff with the unabridged authority to fulfill its investigative mandate.
There are several ways to do this. Congress certainly has its own investigatory capabilities; a potential parallel might be the Senate Intelligence Committee’s report on the CIA’s torture practices, which took more than five years to complete and clocked in at over 6,700 pages. Unlike the CIA torture program, there would be no reason to have a Senate report classified and little argument for executive privilege to block its examination. While the question of which party ends up with control of the Senate next year is still in flux, with two runoff elections in Georgia looming, a Democratic House also has the ability to pursue such an investigation.
Alternatively, the executive branch could make a commitment to cleanse itself through an independent investigation, perhaps through the detailing of particular staff from the DHS Inspector General or the appointment of a special counsel at the Department of Justice. Last month, the first-ever immigration detention ombudsman was appointed within DHS after House Democrats forced the creation of the position as part of appropriations negotiations last year. The appointee is a Republican lawyer, and obviously the position has no track record to speak of yet. But statutorily, the ombudsman has the ability to investigate complaints of misconduct or rights violations and provide redress, “including referral for investigation to the Office of the Inspector General, referral to U.S. Citizenship and Immigration Services for immigration relief, or any other action determined appropriate”—a mandate that could include referral for criminal investigation. The ombudsman’s staff has the power to conduct unannounced visits to detention centers and issue recommendations, which agencies like ICE and CBP are mandated to respond to. It was given a decent budget of $10 million this year, but it’s the sort of role a new administration could give real teeth to.
“There are going to be people, and you saw this begin this weekend, who may think the best way to establish an effective agenda going forward is to right now turn the page,” said Tom Jawetz, former chief counsel for the Immigration Subcommittee of the House Judiciary Committee and now vice president of immigration policy at the Center for American Progress. “If you don’t have a process, look back, figure out what happened, hold people accountable, and make changes to ensure that these violations never take place again, all you do is basically complete the effort of diminishing the rule of law.”
Jawetz believes that the most effective way for the process to move forward would be through issue-oriented probes into specific realms of wrongdoing. For example, CAP is preparing a paper examining how the new administration could investigate the child separation issue. For it to be effective, he said the work has to start now, with the transition team asking for documents to be preserved and produced. “We expect at every level for there to be efforts to hide what happened, potentially destroying evidence and the like, so knowing what to ask for and actually collecting that information is extremely important.” (The Biden-Harris transition team did not respond to questions on this topic.)
Then there’s the international option. In late October, Representatives Rashida Tlaib, Ayanna Pressley, Ilhan Omar, Alexandria Ocasio-Cortez, Veronica Escobar, Mark Pocan, Alan Lowenthal, and Mary Gay Scanlon sent a letter to U.N. High Commissioner for Human Rights Michelle Bachelet, calling for an “international response” to mistreatment in immigration detention facilities. The letter leads with the now-infamous September whistleblower complaint that included allegations of forced hysterectomies at a Louisiana private detention center, but it specifies that the ask is for an inquiry into the totality of DHS medical neglect; the agencies’ heavy-handed response to racial justice protests earlier this year in Portland, Oregon; and physical abuse in detention, among other things.
Hannah Garry, the founding director of USC Gould School of Law’s International Human Rights Clinic, told me there are a few different international organisms that could step in: the UN Special Rapporteur on the human rights of migrants or the Human Rights Council could send a mission with a mandate to prepare a report for the General Assembly, or the United States could prepare and send its own report to the body. She also said she’d been thinking about the possibility of requesting an investigation from the International Criminal Court. Despite the United States not being a member, the transnational nature of some of the abuses could grant it jurisdiction. “There’s clearly systematicity, under Stephen Miller, and on-the-record statements that we have now with [former Attorney General Jeff Sessions saying] ‘We have to take away the children.’ You have clear intent there,” she said.
All of these measures would still require some amount of local buy-in to be effective, and they would require the United States to decide domestically what should result from the facts found. Because there indeed must be a concrete after-the-fact-finding. The record shows just how much DHS cares about public excoriation, stern admonitions, judicial reprimand, and even the plain language of the law: not one bit. The department wholesale ignored federal court rulings around the DACA program; ICE has impersonated local law enforcement officials without any concern for their independence and used unlawful methodologies to put children in adult detention; and CBP was the frontline staff in charge of the massively unpopular family separation program, sometimes enforced by misleading parents into believing their kids were being taken for a bath. Agency personnel’s conduct has ranged from merely immoral to against DHS policy to violating domestic and international law, and there must be consequences for at least the latter categories. “There’s criminal liability, there’s civil liability, there’s administrative liability,” said Jawetz, listing the different ways agency staff might be held accountable. The last two could involve staff being fired, demoted, and fined. The first is self-explanatory.
The record shows just how much DHS cares about public excoriation, stern admonitions, judicial reprimand, and even the plain language of the law: not one bit.
Here we step on another third rail: the possibility of prosecutions. There was a period during the popularization of the Abolish ICE slogan among political progressives a couple of years ago when a tentative, smaller #ProsecuteICE movement had its day in the sun. I had an exchange with a then-relatively little-known Alexandria Ocasio-Cortez on this issue, in which she expressed support for the idea. “I support a full congressional inquiry into the actions of ICE . . . If you’ve committed a crime, especially as someone that has a position of power, you have to be held accountable for it,” she told me in that June 2018 conversation. (Messages to her press secretary asking if this remains her position were not answered.)
It wouldn’t necessarily be easy to go after agency personnel who were acting under color of authority and potentially protected by qualified immunity. However, investigators could certainly determine that the carrying out of certain policies, if done in a matter that itself violated the law, are prosecutable. As Jawetz notes, any obstruction, obfuscation, and perjury that may have occurred after the fact could create more liability than the implementation of the policies themselves. As an example, “[Former Homeland Security Secretary Kirstjen] Nielsen seems to have very clearly lied to Congress about whether she had ordered limits on the number of people who could be processed, numerical limits, at ports of entry.”
It is precisely AOC’s group of emboldened progressive legislators, now doubled in size and free to train their firepower on Biden, who will largely determine the extent to which the new administration will open this Pandora’s box. For Biden, and the Obama alums who will probably staff his cabinet, this might be an unappetizing notion—not least because any such mandate could well stretch back to the pre-Trump era and their own culpability. These progressive legislators’ power within the party will only grow as they become a more significant part of a diminished Democratic House majority, and they will have a lot of leverage to push Biden on this issue if they choose. Yet they also won’t be alone: CAP is hardly a left-wing bastion, and it played a significant role during the Obama years. A Biden administration may find that some of the calls to not let bygones be bygones come from inside the house. A haste to move on could be another blow to tenuous Democratic party unity.
It might be more appealing to just close the chapter, cut the losses, and keep moving on. But this is a false comfort. We all like the idea of national healing, but to stitch up a festering wound without treating the underlying infection is to invite putrefaction, and there is already so much eating away at the tissue of American civic life. We need an antibiotic, and we need it now.