Abolish ICE? Absolutely — and DHS too

We might as well get this out of the way first, to preempt any swooning by the milquetoast wing of the Democratic Party: Yes, abolishing ICE would leave immigration statutes on the books, and those laws should be enforced. Anyone proposing to abolish ICE must also propose replacing it with a vastly improved successor organization.

But Democratic grandees have to get it through their heads that ICE is too politicized, too bloated and too corrupt to be reformed into anything like a legitimate agency of government operating under the rule of law. One might as well hope that the Ku Klux Klan could be reformed into a charitable social organization. ICE must be dismantled and another, different agency built over its bulldozed ruins.

To understand why that’s necessary may require a fuller examination of the history of Immigration and Customs Enforcement, the agency’s full title. It was conceived in a lie, birthed through political logrolling by panicky politicians who didn’t know what they were doing, and housed within an equally dysfunctional parent bureaucracy. As a professional staff member of Congress, I was present at the creation. It didn’t make much sense to me at the time, except as a congressional effort to be seen as “doing something,” and an attempt to divert attention from George W. Bush’s failure to take seriously the many warning signs that preceded the worst terrorist attack in our history. In retrospect, it looks even worse than that.

The attacks of Sept. 11, 2001, gave rise to many evils. One of the most pernicious and least recognized was the Bush administration’s scapegoating of federal intelligence and law enforcement over the disaster. That there was complacency and lack of focus in the bureaucracy is incontestable. There often is. But if there was complacency and lack of focus in the lower ranks, the responsibility lay with the captain of the ship — President Bush — and his executive officers, meaning the vice president and Senate-confirmed senior administration officials.

9/11 was less an intelligence agency failure than a cognitive intelligence failure of the Bush cabinet. In early August 2001, while Attorney General John Ashcroft (who relegated terrorism to a lower priority than the Clinton administration did) was staging a major press conference on the menace of internet porn, Bush was dismissing the CIA presenters of the President’s Daily Brief on Aug. 6, which stated, “Bin Laden Determined to Strike in US.” “You covered your ass,” Bush told them, before going back to golf and brush-cutting during his four-week vacation.

At the Pentagon, Donald Rumsfeld was fulminating over a Soviet-style bureaucracy in the Defense Department and dreaming of a future ballistic missile defense rather than attending to current threats. Ashcroft formally rejected a $50 million FBI request to hire additional counterterrorism agents and intelligence specialists on Sept. 10, the day before the attacks.

On the Navy’s principle that a ship’s captain is automatically responsible if the vessel runs aground or suffers some other avoidable mishap, Bush was clearly in charge and responsible, a circumstance aggravated by his flippant disregard of the CIA’s threat briefing. Given his nonfeasance and blame-shifting, a functioning parliamentary system would have removed him, just as the British Parliament forced the resignation of Neville Chamberlain after the Norway debacle in 1940. In this country, the supposed remedy is impeachment, but ever since Gerald Ford’s pardon of Richard Nixon, accountability for presidents has been practically nonexistent.

Congress, having bought into the Bush cabinet’s scapegoating of the bureaucracy, proceeded to solve this supposed bureaucratic failure by creating a lot more bureaucracy: the Department of Homeland Security, a brand new Cabinet agency with a huge budget, designed to perform a hodgepodge of functions loosely defined as securing the “homeland,” a sinister-sounding name rarely used in colloquial English. (We may wonder: Who pulled that name off the shelf?)

DHS pulled into its structure several preexisting agencies, such as the Coast Guard, which continued to perform their traditional missions. But now they performed them under an additional bureaucratic layer, DHS departmental management, which added no value. The department also contained wildly disparate functions: What does FEMA have to do with collecting customs duties, and what does either of those have to do with cybersecurity? Yet they were all thrown into the same department. DHS was and is less than the sum of its constituent parts.

As a new agency staffing up rapidly, DHS wanted to hire people fast. Thus it became a dumping ground for everybody’s brother-in-law or the sons of rich donors to the Republican National Committee. This aspect received national exposure after Hurricane Katrina devastated New Orleans, when we could all witness the sterling performance of FEMA director Michael D. Brown, whose previous disaster-relief experience consisted of breeding Arabian horses. His accomplishments also provided a catchphrase that summed up the competence of the Bush administration: “Heckuva job, Brownie!”

ICE itself was a classic bureaucratic creation. The legacy organizations dealing with immigration were the Immigration and Naturalization Service and the U.S. Border Patrol, both under the Department of Justice. It would have been logical to consolidate them into one agency within DHS, but some administrative genius made the Solomonic decision to form two different agencies with overlapping functions, Customs and Border Protection and ICE. CPB has gone on to greater infamy for its corruption (for instance, agents taking bribes from drug smugglers) and even for its cameo role in the Jeffrey Epstein saga: providing concierge service to the serial abuser during his frequent trips to Little St. James Island (which became known to Caribbean locals as Pedophile Island).

For a decade after its 2003 creation, DHS was a governmental orphan, given that even a nascent bureaucratic empire has to establish its headquarters in Washington, where space is precious and physical proximity to the Capitol or the White House correlates with access and influence. In 2013, DHS finally opened its headquarters on the disused tracts of St. Elizabeths Hospital, a mental institution best known as the postwar home of modernist poet Ezra Pound, whose wartime radio broadcasts from Rome on behalf of Mussolini were sufficiently unhinged that he was found mentally unfit to stand trial. In Washington, where everyone takes himself seriously, few saw the irony.

DHS has always been a problem child, but under the second Trump regime it has reached new levels of corruption. Under the stiletto heel of current secretary Kristi Noem, along with her presumed lover and de facto deputy secretary, Corey Lewandowski, the department decided to purchase a $70 million Boeing 737 MAX8, allegedly to deport illegal aliens. But the department has not explained why a jet supposedly meant as a flying prison van seats only 18 passengers while boasting showers, a kitchen, a bar and a bedroom with a queen bed, as well as four large flat-screen TVs. In the Trump Cabinet, having your own luxury jet is simply a means of keeping up with the Joneses.

With Noem’s attention focused on her need to travel in the style of a Persian Gulf emir, the actual administration of the department has suffered. Around 10 percent of all DHS employees have left in the past year, and 80 percent of senior management has been fired or demoted. Apparently, “leadership” in Noem’s world means instilling a culture of fear. Whatever institutional knowledge might have been built up over the last two decades is gone. America is in a highly precarious security situation because of this: Cyber-defenses against attacks on critical U.S. infrastructure are now weaker, and with Trump contemplating an attack on Iran, the potential for disastrous asymmetric retaliation has risen, even as DHS leadership concentrates its attention on its own perks and pursuing vendettas against career employees.

The current state of DHS and its components is exactly what a jaundiced observer of the Trump regime might have expected. Identifying, understanding and countering overseas terrorist threats is hard. Detecting and defending against cyber-hacking is perhaps harder, and requires both expertise and critical thinking. Such qualities are not in demand in Trump’s regime. On the other hand, abducting kindergarteners is easy. Teargassing bystanders is easy. Shooting protesters is easy, and requires no brains at all, just brute force and a pathological disposition. In retrospect, it is easy to understand this reprioritization — from keeping Americans safe to harassing and tormenting them — that DHS and its agencies have undertaken.

DHS is a disaster, but not just as a matter of bureaucratic complication, jobs for the boys and systemic corruption. In the long run, the more significant issue for both the rule of law and the concept of federalism was the creation of a single huge agency comprising both intelligence and law enforcement functions and with a wide remit that was fuzzily defined. Did Congress create a ministry of the interior like those found in authoritarian states, a centralized, politicized and unaccountable police function operating at the behest of an autocrat, and overriding local sovereignties and local law enforcement? At a remove of more than two decades, we can conclude that it did.

We are now seeing the results of 20 years of lax oversight of this bureaucratic monstrosity. It has only recently been reported that DHS has issued administrative subpoenas to Google, Meta, Reddit and Discord, demanding the names, addresses and phone numbers of social media users who criticized ICE or identified the location of its agents. All the companies except Discord have complied. One of the hallmarks of authoritarian regimes — as with Russia’s FSB investigating social media critics of Vladimir Putin, or Chinese security agencies “sanctioning” citizens imprudent enough to complain about their political masters — has firmly lodged itself in the so-called Land of the Free.

For decades, Congress has not done a competent job of exercising control over the agencies for which it appropriates money. In the case of ICE, the agency has slipped every bond of congressional oversight. How can Congress even attempt to perform oversight when its own members are barred from ICE facilities?

When the Republican majority rubber-stamped the Trump regime’s budgetary request last spring, it not only appropriated $10 billion for the agency’s “regular” budget, but a “supplemental” $75 billion. At the current rate of exchange, ICE’s current budget is slightly larger than the £62 billion budget for the entire British defense establishment, which includes an army of 75,000 troops, a nuclear submarine-equipped Royal Navy, and the Royal Air Force.

With its mammoth cash infusion, ICE has gone on a hiring spree that has more than doubled its personnel from 10,000 to 22,000 in less than a year. Even the most careful organization is unlikely to increase its personnel on such a scale and maintain quality. In the case of ICE, with its notorious reputation and its ability to wave $50,000 bonuses before potential recruits, it is easy to imagine the sort of people it will entice.

According to the testimony of former ICE counsel Ryan Schwank, the agency has cut 240 hours from its 548-hour recruit training program. The classes cut, Schwank said,

included classes on the fundamentals of the Constitution and the officers’ duties within the structure of our legal system. They cut out classes on — multiple classes on use of force, multiple classes on how to use their firearms safely. They took out testing requirements that were set to allow us to measure whether or not the cadets that were coming out of the academy could actually exercise their authority in a safe and lawful fashion. They took out classes that tied back to our understanding of due process within the legal system.

Add to that the ICE agents’ habit of wearing masks, a practice usually confined to criminals, Klansmen and Putin’s FSB, and any reasonable person can conclude that we now have an American secret police — not in embryo, but fully achieved.

Imagine the end of the Trump regime and the reinstitution of rule of law. Maintaining anything resembling ICE — ideologically extreme, disdainful of the Constitution, armed to the teeth and with access to real-time information on the location of the president and his Cabinet — and you have the recipe for a potential coup. If a motley rabble of civilians nearly overthrew the government on Jan. 6, 2021, future prospects with an intact version of the current ICE are much darker.

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ICE is broadly unpopular with the American public. While a plurality favors reforming it, as opposed to abolishing it or leaving it to operate as it does today, when offered a straight-up choice between abolishing or retaining ICE, a slight plurality already favors abolition. Even then, the public is responding without the full facts or a full context, as they do in most polls.

It is incumbent on Democrats to go on offense for once, to lead public opinion, to explain why this agency is so pernicious, and to impress upon low-information Americans who may still believe it only arrests undocumented aliens that ICE harasses legal residents and even citizens, and that the alleged “bad apples” among its personnel are so numerous that they’ve spoiled the whole barrel. If Democratic politicians cannot convince a majority of Americans that kidnapping 5-year-olds is intolerable, then either the party ought to fold its tent like the antebellum Whigs or there is something seriously wrong with the character of the American people — in which case the American experiment in democracy is over.

Some may object that abolishing ICE while creating another agency to perform the same functions (or at least those that are legal and constitutional) is purely symbolic. But symbolism is important in maintaining a democratic society under the rule of law. When the Allies occupied defeated Germany, they systematically removed the symbols and regalia of Nazi rule, as at the Nazi Party’s rallying grounds at Nuremberg. Does anyone think it would have been a good idea to keep an allegedly “reformed” Gestapo in place as a postwar law enforcement agency?

That same logic should apply to DHS, its parent agency. Perhaps the department’s cybersecurity operation, a new function that was only of great importance after 9/11, can be spun off as an independent agency, given the heightened government-wide role in countering hacking and cybercrime over the last two decades. As for its traditional functions, they should be reintegrated with their former parent departments, where once upon a time functioned with far less controversy, and where they would no longer constitute the building blocks of a secret police ministry.

It is long past time for America’s political class to admit that it made a dreadful mistake. DHS was yet another product of the Bush administration’s lies and Congress’ frequently buffoonish need to take action without understanding the problem. So let’s get rid of ICE for good, and break up DHS.

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