DHS goes campaigning for Trump, and prepares for post-election unrest—10-30-20
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This week’s edition:
In The Big Picture, we look at DHS’s flagrant electioneering for Trump, and examine the department’s hyper-politicization.
In Under the Radar, we analyze the latest reports of medical neglect in ICE detention.
In Next Destination, we discuss the appointment of DHS’s first ombudsman for immigration detention.
The Big Picture
The news: In the home stretch of the U.S. federal election, which officially takes place—though probably will continue past—this upcoming Tuesday, November 3rd, senior Homeland Security officials have pulled out all the stops in supporting the reelection effort of President Donald Trump, while the department’s armed divisions prepare for violence and unrest post-election.
What’s happening?
Starting earlier this month, the immigration-focused components of the Department of Homeland Security, as well as the department’s senior leadership, have taken a series of steps of dubious operative benefit but more obvious electoral purpose. One of the first such moves was the decision to put up large billboards of “immigration violators” around Pennsylvania, one of the most crucial swing states and a consistent focus of the officials’ efforts.
As TIME’s Vera Bergengruen noted, officials have traveled there even when the enforcement actions they were touting happened in various states, and when such actions would normally warrant little more than an emailed press release. Ken Cuccinelli—colloquially referred to as acting deputy secretary of DHS, though his title is technically “senior official performing the duties of the deputy secretary,” a role to which the Government Accountability Office found he was illegally appointed—went to Pittsburgh to announce the arrest of fifteen student visa holders who had allegedly abused a work program. He also tweeted that Trump was “the greatest SCOTUS President since the founding era (at least), and possibly of all time.”
New Acting ICE Director Tony Pham (who is heading the agency after a short stint as its principal legal adviser, before which he had never held an immigration legal, policy, or enforcement role) went to Minnesota to hold a press conference on the arrest of 100 people, a relatively small number in the scope of the agency’s regular operations. Press conferences have been held in Pennsylvania, Minnesota, and Arizona in just the last few weeks.
Yesterday, Customs and Border Protection “senior official performing the duties of the commissioner” Mark Morgan shed any pretense of electoral impartiality and said that a Biden victory in the election would trigger an “illegal invasion,” echoing a prior tweet in which he used the same word. The remarks were made at a press conference celebrating the completion of 400 miles of new border wall, which also included Chad Wolf, the acting secretary of Homeland Security (also illegally appointed to his position, according to several federal judges). That spectacle was accompanied by a bizarre video apparently produced by DHS itself, which railed against doubters of the border wall project—another in the long list of initiatives that at least one federal appeals court has ruled unlawful—and was virtually indistinguishable from a campaign ad.
These performances have relied on presenting the specter of criminality, though often the cases highlighted by DHS personnel have involved people charged but not convicted of criminal conduct—often known as “innocent” in our domestic legal framework—or who have otherwise already been released from criminal detention. The department’s claims about crime prevention generally don’t hold up to scrutiny; for example, the insinuation that the new miles of border wall will prevent transnational smuggling are somewhat deflated by the fact that most seizures happen at legal ports of entry. There is no evidence that these efforts are combating terrorism, and plenty of evidence that undocumented immigrants commit fewer violent crimes than the general population.
In this case, the lawbreakers actually appear to be the DHS officials themselves, who are probably in violation of 5 U.S.C §§ 7323 & 7324, collectively known as the Hatch Act. Generally speaking, the law prohibits federal employees from using their office or duties in any way to, among other things, affect the results of an election. There are less restricted and more restricted employees, though all are barred from advancing a political agenda through their official functions, and senior DHS officials would fall under the more restricted category anyway. The watchdog group American Oversight sent a letter to the Office of the Special Counsel and to the DHS Inspector General requesting an investigation into the officials’ Hatch Act compliance, but there will probably be little consequence.
Separately, CNN reported that ICE and CBP personnel were being put on standby to respond to post-election violence. As we’ve written about before, immigration and customs agents have been redeployed to protest-response and civil unrest functions around the country, under a variety of legal authorities.
How we got here
If there’s any word that can best summarize DHS under Trump, it’s “unstable.” While the department has undoubtedly implemented a number of restrictive policies—Remain in Mexico, the third-country transit ban, and asylum cooperative agreements with Central American countries, to name a few—all of the administration’s policy wins came amid intense turmoil. More specifically, they were likely the result of immense turnover within DHS and its component agencies.
Homeland Security has had five secretaries in Trump’s first term alone: John Kelly, Elaine Duke, Kirstjen Nielsen, Kevin McAleenan, and Chad Wolf. All but two of them—Kelly and Nielsen—have served in an acting capacity. (Relying on “acting” officials lets the administration circumvent the Senate confirmation process.) McAleenan served in an acting role for more than 200 days; Wolf, the current acting secretary, has had his position for more than a year and was recently found to have been unlawfully appointed.
Neither the turnover nor the reliance on acting officials is limited to a single position within DHS. Pham, the agency’s current acting director, was not officially appointed to his position. Pham took over after Matthew Albence, the former acting director of ICE, retired in July. Albence himself replaced Mark Morgan—another former acting director—and also served as acting director before Morgan. Albence was preceded by Ronald Vitiello, who was named acting director of ICE in June 2018. The Trump administration had officially nominated Vitiello to head the agency, but “withdrew” the nomination in April 2019, allegedly because Trump wanted to go “in a tougher direction.”
And that’s just the list of ICE heads since 2018.
One reason for this seemingly endless turnover is that agency and department heads often find themselves being pushed out for not being loyal enough—or simply not being perceived as loyal enough—to Trump. Nielsen, for example, resigned from her position as DHS secretary in April 2019 after months of reports that Trump was unsatisfied with her performance. (Notably, she oversaw the “zero-tolerance” policy that led to the separation of thousands of migrant families at the U.S.-Mexico border.) According to the New York Times, Nielsen spent her time at DHS “battling back suspicion from the president.” Trump would often call her “at home early in the mornings to demand that she take action to stop migrants from entering the country, including doing things that were clearly illegal, such as blocking all migrants from seeking asylum.”
Those who manage to survive in Trump’s DHS are those who constantly prove their loyalty to the president and his allies, including adviser Stephen Miller, who is largely considered the mastermind behind Trump’s immigration policies.
A recent Vanity Fair profile of Chad Wolf, the current acting secretary, reveals how he plays the political game within the department. “Stephen Miller is the key to understanding Chad’s rise in this administration and his ultimate nomination to be secretary of Homeland Security by the president,” one anonymous former DHS official told reporter Abigail Tracy. Wolf served under previous DHS secretaries before his rise to the top of the agency, endearing himself to Miller all the while, per the Vanity Fair report. “Stephen really tried to be the shadow secretary of Homeland Security, and his vessel for doing that was Chad Wolf,” the anonymous official said.
Loyalty is rewarded, and perceived disloyalty is punished. Albence, one of the former acting ICE heads, reportedly clashed with the White House personnel office over attempts to install political appointees within the agency. According to Politico, the White House encouraged Albence to hire people who didn’t have enough law enforcement experience and weren’t qualified for any open positions. What they did have, however, was connections to the Trump campaign. The Politico report also claims that Albence and other officials “tangled” over Albence’s desire to “balance humanitarian concerns about the treatment of immigrants during the coronavirus outbreak with pressure from Trump administration officials who see the crisis as an opportunity to take more aggressive measures against those in the country illegally.”
The litany of officials and the constant pressure they face to enact hard-line policies—even if those policies are illegal—is indicative of a culture shift within DHS. Critics have accused the Trump administration of politicizing the department; one former official, who used to run DHS’s intelligence arm, claims he was retaliated against for not adhering to the administration’s agenda. That same official said DHS leadership attempted to minimize the national security risk of white supremacist ideology and violence, preferring to instead emphasize the threat posed by “left-wing” groups.
There’s no denying that DHS has changed under Trump. As Mother Jones reported last year, the department’s myriad agencies have been stacked with alumni of anti-immigrant lobbying groups like the Federation for American Immigration Reform and the Center for Immigration Studies. Julie Kirchner, the former USCIS ombudsman, for example, was FAIR’s government relations director from 2005 to 2007. Robert Law, a senior policy adviser within the same agency, worked as FAIR’s government relations director during the 2016 presidential election.
Of course, to say that the Trump administration “politicized” DHS implies that the department—which was created in the wake of the September 11 attacks amid a wave of counter-terrorist fervor—was apolitical before 2016. DHS has always been a political department, even though the detention and deportation of immigrants were considered bipartisan endeavors until very recently. Since the department’s inception, restricting immigration has been viewed through a bipartisan lens of “national security”—a justification some Democrats have used for limiting immigration.
That said, there’s no denying how hyper-politicized the department has grown under Trump.
What’s next?
There will probably be no consequences for these officials’ obvious attempt to nudge voters in Trump’s direction. The big question now is, will it make a difference, and what happens afterwards.
The DHS sub-agencies seem to have dedicated a lot of time and effort to preparing for civil unrest scenarios, with ICE spending a million dollars on “urban warfare” training, and $18 million on Taser devices. Current CBP leadership, for its part, views the agency as less a customs agency and more a premier national police force or even a kind of military. According to the CNN report, officials are preparing for widespread unrest under a Trump victory, but bafflingly seem to believe no such reaction would take place in the event of a Biden victory.
Taken together with the naked partisanship of agency leadership, this state of affairs presents a concerning menu of options as to what Homeland Security’s role could be next week. Among the most perturbing is the notion that it is prepared to step in at a national level and tamp down protest in the event that Trump prematurely declares victory, a situation that is certainly within the realm of possibilities.
Violent clashes between protesters and often amorphous federal agents might reinforce the image of an out-of-control process, which in turn could nudge the courts towards terminating the process and declaring a winner. Already, Justice Brett Kavanaugh has suggested that the appearance of an orderly system and the need to quickly determine a victor may outweigh the need to have all votes counted.
On the other side of the coin, there’s the possibility that the department will decline to respond to right-wing violence if Biden establishes a clear lead. Proliferating ultranationalist and fascist militias are already preparing for an extreme response. While not enormous groups, they are very motivated and well-armed, and have already displayed clear comfort with terrorism. While it’s not DHS’ role to combat these types of threats, it’s notable that its own armed components appear ready to deploy to one scenario and not the other, particularly if localities are counting on such support.
Under the Radar
New records reveal rampant medical neglect and abuse in ICE detention
More than 5,000 pages of internal ICE documents obtained by BuzzFeed News regarding deaths of immigrants in its custody suggest a troubling pattern of medical abuse and neglect across the agency’s detention facilities. The documents, obtained via a Freedom of Information Act lawsuit and published Thursday, shed new light on more than 40 in-custody deaths since 2017.
At both the Eloy Detention Center in Arizona (operated by private prison contractor CoreCivic) and the Adelanto Detention Facility in California (operated by the GEO Group, CoreCivic’s main competitor), guards falsified records of welfare checks for immigrants placed in solitary confinement.
At Eloy, a guard appears to have falsified three welfare checks in a 51-minute period for Huy Chi Tran, a detainee under medical surveillance. Tran was later “found unresponsive” and had CPR and “other lifesaving efforts” performed on him by Eloy’s medical staff before being taken to the hospital. After a week, Tran was pronounced dead after doctors determined he “could not breathe on his own.”
The records obtained by BuzzFeed News suggest that medical neglect in ICE custody isn’t limited to a single facility or a single contractor. Across the country, immigrants detained by ICE receive substandard medical care, often putting their lives at risk. The problem is systemic.
Moreover, the number of women alleging they were pressured into undergoing unnecessary medical procedures at the Irwin County Detention Center in Georgia, or actually underwent them, is now 57, according to a new report by John Washington and José Olivares at The Intercept. Earlier this month, the New York Times reported that the doctor at Irwin who approved many of these procedures—including hysterectomies allegedly done without full informed consent—is part owner of the Irwin County Hospital, where the procedures were often performed. According to the Times’ report, the doctor often “recommended surgical intervention, even when it did not seem medically necessary at the time and nonsurgical treatment options were available.”
Next Destination
DHS names new ombudsman for immigration detention
Luke Bellocchi has been named DHS’s first ombudsman for immigration detention, a position created in late 2019 amid Congressional outcry regarding conditions in immigration custody. The ombudsman position was created under an appropriations act that allocated $10 million for the office’s creation. The law required the ombudsman to be a “senior official with a background in civil rights enforcement, civil detention care and custody, and immigration law.”
Bellocchi previously worked as a deputy ombudsman for U.S. Citizenship and Immigration Services during the George W. Bush administration, and for Customs and Border Protection as an assistant commissioner for congressional affairs. He does not appear to facially meet the position’s statutory requirements and has long-standing Republican ties, though he also doesn’t appear to be a Trump-world figure or someone from the Tanton network of anti-immigrant think tanks.
As he’s the first person to hold the role, there isn’t much of a template for what it will look like, though it has the potential to illuminate exactly the sorts of detention abuses that have gone chronically unreported. His staff will have the power to conduct unannounced visits at detention centers, and investigative claims of abuse and mistreatment by detainees.