Accountability, transparency, and trust must be centerpieces of \u201cNew ICE.\u201d<\/b>
\n\u201cAbolish ICE\u201d is the cause of the moment, but that end point seems unlikely; many of the functions that Immigration and Customs Enforcement undertakes must be done, and are part of any normal presidential administration.
The best-case scenario is not abolition but reform\u2014true, fundamental reform\u2014to turn ICE into a law-enforcement agency that respects the Constitution and laws of America. That sort of extensive reform is not easy, and developing a post-Trump vision for immigration enforcement must start now, so that the country has something to move toward if it eventually leaves Trump\u2019s approach behind.
Meaningful reform would address four distinct areas: personnel, operations, accountability, and organizational culture. It would do so across the agency that actually is ICE and the others that are colloquially referred to as ICE today because of their ongoing participation in the enforcement surge, such as Homeland Security Investigations and the Border Patrol. Fundamentally, the reforms would seek to restore accountability, transparency, and trust, enabling \u201cNew ICE\u201d to transform itself into an agency of which the American people can be proud.
All of this starts with personnel\u2014who is recruited and how they are trained. To satisfy President Trump\u2019s demand for overly aggressive enforcement, ICE has lowered its standards for recruitment and shortened the training period, bringing in a flood of new recruits. The results are inevitable: lower-quality enforcement agents and more mistakes.
New ICE would restore the minimum recruitment age back to 21, which had been lowered to 18 in August. Recruitment priorities will need to focus on applicants with relevant experience, not just those with aligned political views. Additional educational requirements should be considered. In the end, if \u201cpersonnel is policy,\u201d as Ronald Reagan\u2019s director of personnel, Scott Faulkner, is reputed to have said, then whom you hire defines what you do.
Once you have the new hires, they need to be well trained. Before the Trump administration\u2019s expansion of ICE, most trainees received four to six months of training. To a large degree, ICE\u2019s lengthy training period arose because of a language module for Spanish instruction. But even leaving that module aside (it has been cut completely), training today is shorter than it had been\u2014approximately eight weeks, which some say is really 47 days as an homage to Trump. There can be no doubt that today\u2019s new ICE recruits are less physically fit, that agents are receiving roughly half the training that their predecessors received, and that educational standards have been lowered.
The training is not only shorter; it is also substantively worse\u2014teaching future agents aggressive tactics that must be left behind. Reports suggest that ICE agents may be receiving training that standardizes some of the new operational changes, such as entry into homes with only administrative warrants, that are so controversial.
A reformed New ICE would need much better\u2014and more\u2014training. Congress or the president should mandate that the training program be at least four months long, and that the curriculum be modified to include enhanced training on constitutional law, while significantly reducing its emphasis on SWAT-like uses of force.
Once people are recruited and trained, the question becomes what those personnel are instructed to do: operations. ICE right now is an organization whose actions, and the policies that guide those actions, are a reflection of overly aggressive enforcement priorities set by Trump, many of which are beyond the agency\u2019s normal capacity. Border Patrol agents (who normally patrol the Texas frontier) and HSI agents (trained in sophisticated transnational-smuggling investigations), in particular, are being tasked with duties outside their core mission and not consistent with their training or experience. And many of the ICE agents deployed on the streets today have not been trained to operate in urban environments with high levels of civilian protest activity.
The results are inevitable: illegal, improper, and dangerous behavior. As Federal District Court Judge Kate Menendez recently recounted in an exhaustive 83-page opinion, many of ICE\u2019s actions have been at odds with legal requirements. Among the apparently unlawful actions recounted by Menendez are the arrest of peaceful protesters and legal observers, the stop and sometimes arrest of drivers monitoring ICE, and the indiscriminate use of pepper spray, likely in violation of the First and Fourth Amendments. To this one can readily add ICE agents\u2019 violations of constitutional restrictions on the use of force, breaches of their own use-of-force policies when confronting protesters, and the unconstitutional disregard of Fourth Amendment warrant restrictions.
Even many of ICE\u2019s lawful actions are unwise, immoral, and outside the bounds of appropriate behavior for an American law-enforcement agency. ICE policy, for example, allows for the wearing of masks. Border Patrol agents may undertake immigration enforcement within 100 miles of an external border (which, because the border includes the Great Lakes, makes Chicago a border town). A revised policy allows Border Patrol and ICE agents to enter previously safe-haven areas such as hospitals, churches, and courts in search of immigrants. And ICE is reportedly planning to use controversial (but legal) big-data technology to target its enforcement priorities.
Worse yet than the terrible legal policies are the lawless actions. ICE agents have, for example, recently\u2014according to ICE itself\u2014unlawfully arrested an individual because he refused to show identification (the detainee\u2019s family disputes whether ICE even requested ID at all). Likewise, they have unconstitutionally demanded that a U.S. citizen submit to their facial-recognition app or be arrested. And ICE is alleged to have denied detainees access to lawyers.
ICE\u2019s acts have also resulted in the illegal detention of more than 150 U.S. citizens. Just recently, one agent was filmed arresting a U.S. citizen based on the suspicion that he was an alien because he had a foreign accent. Other agents wrongly arrested a U.S. citizen and forced him to leave his home dressed only in underwear and a blanket in below-freezing temperatures. Public reports suggest that ICE agents in Minneapolis are searching for Hmong residents. These actions are being conducted despite all constitutional protections to the contrary.
All of this must go. All of it can go. ICE policies can be changed. The laws governing ICE behavior can be revised and strengthened. Agents can be prohibited from entering safe havens; they can be required to show their faces and identify themselves. They can be prohibited from using pepper spray or relying in any way on ethnic indicators, such as appearance, language, and accent, as a basis for their probable cause to arrest. Border Patrol agents can be subjected to stricter geographical restrictions, limited to land borders and, say, a 10-mile corridor. They could, likewise, be statutorily prohibited from performing the enforcement-and-removal function altogether.
Perhaps more fundamentally, ICE agents could, if Congress wishes, be deprived of all criminal-arrest power and the authority to execute judicial warrants. Rather, much as with the TSA officers at screening checkpoints, ICE agents could, by law, be limited to quasi-civil enforcement authorities, such as detention and seizure. The majority of ICE agents could be disarmed.
That said, all the good policies in the world are of no use if they are mere dead letters, gathering dust in the corner. How can anyone ensure that New ICE agents follow the new rules?
Speaking of Congress, the single most effective thing to advance accountability would be for Congress to discard its supine posture and reinvigorate its crucial oversight functions. Meanwhile, we could also return to a time of robust internal accountability (such as a restored internal-affairs division and a better protected inspector general\u2019s office), including, where appropriate, Department of Justice investigations of alleged criminal activity and, in extreme cases, federal or state criminal prosecution.
Finally, a future president must attempt to change the culture of the organization. Firing bad leaders is one thing, but as any football fan knows, that\u2019s not enough. A new coach needs to imbue the team with a changed character\u2014reformed habits of behavior and, sometimes, wholesale changes in personnel at many levels of the hierarchy.
The new culture would be one focused on ICE\u2019s core mission\u2014supporting national security by conducting high-value investigations of transnational crime and interior immigration-enforcement action against dangerous criminals. The New ICE culture would elevate and enhance its compliance with law, championing policies that are supported by the public. New ICE would forgo broad sweeps in urban environments for targeted enforcement against identified subjects. And a refocused ICE would welcome external accountability and transparency, recognizing that the trust of the American people must be earned, not demanded.<\/p>\n