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Department of Homeland Security
New Report Analyzes Fatal Flaws of U.S. Border-Enforcement Strategy
06 days ago
The federal government’s current approach to border security is dangerously misguided. Border-enforcement resources are directed at what gets smuggled across the border—people, drugs, guns, money—rather than who is doing the smuggling; namely, the transnational criminal organizations based in Mexico which are commonly referred to as the “cartels.” If the U.S. government wants to get serious about enhancing border security, it will begin to systematically dismantle the cartels rather than just seizing the unauthorized immigrants and the contraband they smuggle and arresting a few low-level cartel operatives in the process.
This is the central message of a new report by former Arizona Attorney General Terry Goddard, entitled How to Fix a Broken Border: Disrupting Smuggling at Its Source. The report starts off by noting that when it comes to border security, “the prevailing assumption is that all we need to stop illegal crossings of drugs, people, cash, and guns are more Border Patrol agents, more National Guard troops, and more surveillance and sensors to cover the hundreds of rugged miles between lawful ports of entry.” Indeed, this has been the rationale for building 650 miles of border fencing along the U.S.-Mexico border, and for the massive expansion of the Border Patrol since the early 1990s. The Border Patrol now numbers 21,000 agents and has a high-tech arsenal that includes unmanned aerial drones.
Yet, in spite of all the fencing, agents, and technology, cross-border smuggling continues unabated. The reason for this is twofold. First, the cartels that do the smuggling are, as Goddard puts it, “superbly organized, technologically adept, and very well funded.” When it comes to fencing in particular, they “have the capacity to go over, under, around, and even through virtually any physical barrier.” The U.S. Government Accountability Office (GAO) reports that “during fiscal year 2010, there were 4,037 documented and repaired breaches” of border fencing.
Second, the U.S. government is focused on seizing different kinds of contraband—and assigns different kinds to different government agencies: Immigration and Customs Enforcement (ICE) gets unauthorized immigrants, the Drug Enforcement Agency (DEA) gets illegal drugs, and Alcohol, Tobacco, and Firearms (ATF) gets illegal guns. Missing from this division of labor is a coordinated assault on the cartels that do the smuggling. This is a losing proposition. As Goddard emphasizes:
Going after the contraband product or smuggled people, as this country has been doing for years, is destined to be an endless chase. The cartels will just regroup and continue operations, learning from their mistakes. If we are serious about stopping the threat on the border, we have to dismantle the criminal organizations that carry the contraband and take away the tools that make them so effective.
What is needed, says Goddard, is a border-defense strategy that is “intelligence driven and multi-level.” It must target both the cartel leadership and the many subcontractors who work for them. And it must target cartel organization from every possible angle:
Whatever makes the cartel organizations strong must be attacked. Their communication systems must be cracked, jammed, and shut down. Their leaders must be identified, arrested, and incarcerated. Most important, the illegal flow of funds across the border into cartel pockets must be disrupted, interrupted, and stopped.
Goddard is incredulous that “this country has hardly lifted a finger to stop over $40 billion a year in cartel funds pouring across the border.” He calls for the Department of the Treasury to become “a full participant in the effort to stop the cartels by cutting off the illegal transfer of funds” that occurs through banks, wire-transfer companies, import-export businesses, and businesses that issue “stored value instruments.” As he points out, the “physical border is irrelevant to the flow of money; it is the virtual border in cyberspace and currency exchanges that must be defended.”
The current border-enforcement strategy is designed to fail. Goddard writes that “pouring even more money and manpower into enforcement on the border will have little impact as long as the criminal organizations remain intact.” He concludes that “only when the smuggling organizations are dismembered will border defense efforts be equal to the threat. Only then can it truthfully be said that the border is ‘secure.’”
Photo by ICE.gov.
It’s Time to Improve Noncitizens’ Access to Counsel
02 weeks ago
In the United States, most immigration decisions impacting noncitizens are made by immigration officials in informal proceedings far from a courtroom. While the right to an attorney (at the noncitizens’ own expense) in immigration court proceedings is widely recognized, the right to counsel in administrative settings outside of a courtroom is often overlooked or explicitly not recognized. As a result, many noncitizens are forced to navigate the immigration process alone. For those noncitizens that are represented, the Department of Homeland Security (DHS) often restricts their access to their lawyers.
Without the assistance of an attorney well-versed in immigration law, noncitizens often lack the specialized knowledge needed to obtain a just outcome. And, given the serious consequences that can flow from DHS proceedings, the importance of meaningful access to counsel cannot be overstated. For example, a CBP official can quickly remove an individual from the United States without a hearing through “expedited removal,” based solely on information gathered during an inspection at the border. Questioning by ICE can lead to arrest, detention, initiation of removal proceedings, or removal. USCIS officers have the power to decide whether an applicant is entitled to lawful permanent residence, asylum, or naturalization based on statements made in an interview.
Over the past year, the American Immigration Council, along with the American Immigration Lawyers Association (AILA), has documented instances where the DHS immigration agencies—Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS)—have deprived noncitizens of access to counsel. For example, ICE also has taken the position that there is no right to consult with a lawyer during an interrogation. Likewise, many CBP offices outright deny access to all lawyers.
The restrictions USCIS imposes generally have been less severe, but have included limitations on communication during interviews, such as restricting where a lawyer may sit during an interview, preventing lawyers from submitting documents relevant to their client’s case during an interview, and conducting interviews without an attorney present. And we have heard about situations before all three agencies, where officials actively discourage noncitizens from hiring lawyers or appearing with their lawyers in immigration proceedings.
In response to calls from the American Immigration Council, AILA and other advocates last week, USCIS issued immediate changes to its policies to help ensure a meaningful role for lawyers in the immigration process. There is, however, still much to be done.
The new guidance responds to some access concerns. For example, it provides that a lawyer generally may sit next to his or her client during an interview, may be permitted to submit relevant documents to the USCIS officer, and may raise objections to inappropriate lines of questioning. However, USCIS did not adopt all of the Council and AILA’s recommendations related to counsel, and limitations on communication remain.
While it remains to be seen how USCIS will implement its new guidance, USCIS’ adoption of certain recommendations by stakeholders and recognition of the importance of counsel in immigration proceedings is an important first step. ICE and CBP should take note of USCIS willingness to revisit its guidance regarding counsel and engage in similar dialogue with advocates and stakeholders.
Now is the time to offer comments to USCIS’ guidance with more detailed recommendations for improvements in noncitizens’ access to counsel.
Photo by Lane V. Erickson.
ICE Releases Memo Outlining Justification for Making Secure Communities Mandatory
03 weeks ago
An October 2010 ICE memo from ICE Deputy Legal Advisor Riah Ramlogan to ICE Assistant Deputy Director Beth Gibson has finally been made public after a protracted legal battle. The nine page memo, obtained through Freedom of Information Act (FOIA) litigation, presents ICE’s legal arguments for making the Secure Communities Program mandatory for all jurisdictions in 2013. This memo overrides and contradicts an earlier ICE memo that argued that S-Comm was not mandatory.
This is the latest chapter in a lengthy debate over whether Secure Communities is mandatory or voluntary. Initially ICE claimed that the program—which runs the fingerprints of individuals booked in local jails through federal databases—was voluntary. However, when states attempted to opt out of the program, they were told that they could not. In August 2011, ICE terminated its Memoranda of Agreement (MOAs) with the states, stating that the MOAs were not necessary and that ICE would continue to expand the program unilaterally. Secretary of Homeland Security Janet Napolitano also clarified that all jurisdictions would be required to participate in Secure Communities by 2013.
For years, immigrant advocates have asked ICE on what legal basis they base making Secure Communities mandatory. The “mandatory memo” now points to three statutes that give the Attorney General the authority to collect and exchange criminal information, establish a cooperative framework between the states and federal government to exchange criminal information, and make the DHS and FBI databases interoperable. The memo also recalls a FY2008 bill that appropriated $200 million for ICE to “improve and modernize efforts to identify aliens convicted of a crime, sentenced to imprisonment, and who may be deportable, and remove them from the U.S. once they are judged deportable…”
None of these statutes, however, mention Secure Communities or create a mandatory program. As UncoverTheTruth.org points out, “the statutes predate Secure Communities by between six and sixty years” making this a “post-hoc justification for a policy” ICE is eager to implement.
The earlier memo voiced concerns that states may raise Tenth Amendment arguments and that a court may find that ICE cannot compel local law enforcement agencies to participate in Secure Communities. The new memo reaches the opposite conclusion, finding that “compelling participation in Secure Communities in 2013 does not raise constitutional concerns.”
It is obvious that ICE has put much time and energy into finding a legal justification for proceeding with their plans to implement Secure Communities in all jurisdictions, regardless of the desires of local jurisdictions. This justification completely ignores the many concerns about the program, including the concerns of the DHS-appointed Secure Communities Task Force, which have still not been addressed. The ultimate question is not whether ICE can make the program mandatory, but should it be mandatory.
Secure Communities has resulted in the deportation of thousands of immigrants with minor criminal records or no criminal records at all; it has jeopardized public safety by eroding community trust in the police; it has resulted in civil rights violations. Expansion of Secure Communities must be seriously re-considered.
Photo by miss mass.
USCIS Seeks to Unify Families Facing Separation through Revised Waiver Process
01 month ago
Today, the administration took another important step toward fixing one of the most notorious problems with our broken immigration system—the 3 and 10 year bars. The U.S. Citizenship and Immigration Services (USCIS) announced today that it was filing a notice of intent to change a rule which would streamline the application process for many relatives of U.S. citizens currently eligible for permanent resident status, thereby minimizing the amount of time that applicants would have to be away from their families before being admitted into the United States.
Under current rules, thousands of people who qualify for legal status must leave the U.S. to obtain their permanent resident status, but as soon as they leave, they are immediately barred from re-entering the U.S. for 3 or 10 years because of their unlawful presence in the United States. Many are eligible for a family unity waiver (which waives the bar to admission if extreme hardship to a spouse or parent can be established), but the way the law is currently implemented, the waiver can only be applied for from overseas That process can often take many months or even years, deterring otherwise eligible applicants from applying for legal status who instead remain unauthorized in the U.S. rather than risk separation from their families. (For more information on 3 and 10 year bar, see this fact sheet by the Immigration Policy Center.)
Under the proposed “in-country processing” rule change, spouses and children of U.S. citizens who apply for residence, but need a family unity waiver to re-enter the United States, will be allowed to apply for the waiver without leaving the U.S. The new rule seeks to help only spouses and children of U.S. citizens, not spouses and children of legal permanent residents, and does not alter or revise the eligibility standards for green cards or waivers. The proposed new rule would only affect persons whose sole need for a waiver is based on having lived in the U.S. without authorization (persons seeking a waiver on other humanitarian grounds must still leave the U.S.)
This “in-country processing” proposal means that USCIS could grant a provisional waiver here in the U.S, and many applicants would not face the same waiting period outside the country. It is important to note that applicants would still be required to depart from the U.S. before receiving final approval and legal status. But eligible immigrants will be encouraged to go through the process rather than remain unlawfully in the U.S.
Although the actual rule change will not go into effect for several months—a “notice of intent” to change the rules governing the adjudication of waivers for the 3 and 10 year bars was published in today’s Federal Register and will be followed by a call for comments and a comment period—the revision will make a huge difference in the lives of many U.S. families.
Applicants currently face long separations from their U.S. citizen family members as well as dangerous situations while they wait. Many waivers are processed in Ciudad Juarez, Mexico, a city wracked with violence over the last several years. This small step of allowing these family members to apply for and receive waivers inside the U.S. may save them from long, potentially dangerous separations from their families.
Some may argue that this rule change is an example of the president overstepping boundaries and bypassing Congress to reform the immigration system. These claims are wrong. While Congress writes the laws—including the 3 and 10 year bars—the executive branch decides how to execute the laws through rules and regulations which align with their priorities and current agency resources. The waivers are currently processed overseas because of an administrative rule, and the current administration has every right to change that rule, just as all administrations before them.
The Obama administration is proposing a rule change that will partially ameliorate one of the most contradictory rules of immigration law, thereby encouraging legal immigration and helping to keep U.S. families together.
Photo by Kevin Luu.
DHS Shuts Down 287(g) Agreement with Maricopa County Following DOJ Investigation, Restricts Secure Communities
01 month ago
Today, the Secretary of the Department of Homeland Security (DHS), Janet Napolitano, announced that DHS will terminate its 287(g) agreement with the Maricopa County Sheriff’s Office and restrict access to the Secure Communities program, following damaging findings released by the Department of Justice (DOJ). After a three year long civil rights investigation into the Maricopa County Sheriff’s Office (MCSO)—an office led by America’s “toughest sheriff” Joe Arpaio—the DOJ announced today that it had “reasonable cause” to believe the Sheriff’s Office has “engaged in a pattern or practice of misconduct that violates the Constitution and federal law.”
In addition to the excessive use of force, the failure to investigate allegations of sexual assaults and practices that prevented the protection of Latino residents, the DOJ found reasonable cause to believe the Sheriff’s Office participated in:
- Discriminatory policing practices including unlawful stops, detentions and arrests of Latinos;
- Unlawful retaliation against individuals exercising their First Amendment right to criticize MCSO’s policies or practices, including but not limited to practices relating to its discriminatory treatment of Latinos; and
- Discriminatory jail practices against Latino inmates with limited English proficiency by punishing them and denying them critical services.
As if that weren’t enough, the DOJ also found that the Sheriff’s Office failed to implement policies guiding policing practices, allowed the use of unconstitutional practices, provided inadequate training and supervision, and lacked sufficient oversight and accountability.
Maricopa County Sheriff Joe Arpaio is renowned for his “tough on immigration” media stunts, such as requiring detainees to wear pink underwear, segregating inmates, and marching shackled inmates to a tent city surrounded by an electric fence.
Following the investigation, the DOJ said that it will work with the Sheriff’s Office to develop and implement a comprehensive reform plan to address the violations and will even seek legal action if the office fails to cooperate. According to Assistant Attorney General for DOJ’s Civil Rights Division, Thomas E. Perez:
Effective policing and constitutional policing go hand in hand … MCSO’s systematic disregard for basic constitutional protections has created a wall of distrust between the sheriff’s office and large segments of the community, which dramatically compromises the ability to protect and serve the people … We hope to resolve the concerns outlined in our findings in a collaborative fashion, but we will not hesitate to take appropriate legal action if MCSO chooses a different course of action.”
Today’s DOJ findings validate what many immigration advocates have been complaining about for years—that the systematic abuse of state immigration enforcement programs cannot go unchecked. DHS’s response curtailing cooperation with Maricopa County’s Sheriff Office is a step in the right direction, but there are many states and local immigration enforcement programs out there operating without oversight, accountability or guidelines for policing strategies. While Maricopa County represents the most egregious of these, DHS will hopefully now take a closer look at immigration enforcement programs across the board.
Photo by Gage Skidmore.
One Too Many: New York Times Highlights American Citizens Detained Under S-Comm
01 month ago
The New York Times today exposed a persistent problem with the Department of Homeland Security’s immigration enforcement programs: American citizens are being unlawfully detained for extended periods.
In the report, the Times told the story of Antonio Montejano, an American citizen born in Los Angeles who was arrested while holiday shopping with his family, including his young children. “After his young daughter begged for a $10 bottle of cologne,” he inadvertently dropped it into a bag of items he had already purchased. When he left the store, he was arrested for shoplifting.
Antonio should have been able to post bond quickly at the Santa Monica police station for a minor charge. Instead, he was held on an immigration detainer issued by Immigration and Customs Enforcement (ICE) and transferred to the county jail despite a criminal court judge’s decision to let him go. He was not released until four days after his arrest.
Antonio was detained because of the Obama administration’s Secure Communities program. He was flagged by the system because he was mistakenly deported to Mexico in 1996 and his records were not corrected. But as the Times report indicates, U.S. citizens have been detained based on all sorts of flaws in the department’s databases.
“Unlike the federal criminal databases administered by the F.B.I., homeland security records include all immigration transactions, not just violations,” the article points out. “An immigrant who has always maintained legal status, including those who naturalized to become American citizens, can still trigger a fingerprint match.”
ICE issues detainers based on this incorrect information and local law enforcement officials therefore hold people for up to 48 additional hours.
Antonio said that despite his repeatedly telling police about his American citizenship, they did not believe him. ICE Director John Morton is quoted in the Times article as saying that all claims to U.S. citizenship receive “immediate and close attention.” That did not occur in Antonio’s case.
“Just because I made one mistake,” Antonio said, “I don’t think they should have done all those things to me.” He thinks the police doubted his citizenship because of how he looks: “I look Mexican 100 percent.”
Antonio is not alone. According to the Times, while there are no official statistics on the exact number of Americans held erroneously in immigration detention facilities, in one study 82 U.S. citizens were held from 2006 to 2008 at two immigration detention centers in Arizona, for periods as long as a year.
But even just one U.S. citizen wrongly swept up by S-Comm is one too many.
The ACLU has urged the Department of Homeland Security to stop Secure Communities across the country.
In the News:
- Homeland Security Today: Secure Communities Remains Under Fire From Opposite Sides
- Huffington Post: Democrats Say Secure Communities Needs More Safeguards Against Racial Profiling
Spanish Media:
- EFE News Service: El comité legislativo analiza los resultados del programa "Comunidades Seguras"
- La Opinion: Inseguridad de Comunidades Seguras http://www.impre.com/laopinion/noticias/2011/12/1/inseguridad-de-comunidades-seg-284898-1.html
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House Subcommittee Hearing Underscores Problems with Secure Communities Program
02 months ago
Congressman Steve King (R-IA), Subcommittee on Immigration Policy & Enforcement.
Today, the House Immigration Subcommittee held a hearing on the Secure Communities program (S-Comm)—an enforcement program that has been rife with controversy since its inception in 2008. Today’s hearing featured statements from a variety of witnesses and members of Congress which further underscored the problems inherent with the program and immigration enforcement in general. S-Comm is currently active in more than 1,700 jurisdictions and is on target to be nationwide by 2013.
Gary Mead of ICE described the current status of S-Comm and the reforms that ICE has made to the program in light of concerns that have been raised. Mead touted the record number of deportations in FY2011, and reported that ICE has deported more than 114,000 immigrants identified through S-Comm.
Julie Myers Wood, former Assistant Secretary of ICE, acknowledged that ICE’s resources are limited and prioritization is necessary. She also acknowledged that S-Comm would result in more identifications that ICE could handle and suggested that ICE improve it’s efficiency so more immigrants identified through S-Comm can be processed for potential deportation. If ICE does not have enough detention space, Wood continued, alternatives to detention and monitoring should be used so that ICE does not have to release anyone. Furthermore, Wood argued that expanded use of stipulated removal—in which the immigrant agrees to be deported—and Rapid Repatriation—through which immigrants can obtain early release from jail if they agree to be deported—can reduce the burden on the court process.
Sheriff Sam Page of Rockingham County, NC—who has relatively limited experience with S-Comm—said that he and other sheriffs are seeing an increase in illegal alien crime activity. He claimed that S-Comm works well in his community, does not cost his agency anything to implement and that the “program and protocol for ‘Secure Communities’ is reasonably simple.” He explained:
If it is determined that the arrestee was not born in the United States, the person is fingerprinted…and the prints are then compared against the Federal and Immigration and DHS print database. Then our trained booking officers notify ICE personnel whether there is a print match. Even if there’s not a match, we arrange an interview with an ICE agent and the arrestee.
This description of his agency’s process is not consistent with how S-Comm works, raising concerns about whether he and other local law enforcement agencies are properly implementing the program.
Finally, Art Venegas, former Chief of Police of Sacramento, testified about the challenges that S-Comm creates for community policing and community safety. When the program is activated, immigrants are fearful of contact with the police and crimes go unreported. Venegas explained how immigrants who are arrested and identified through S-Comm but then are not convicted of any crime are still deported. Venegas continued:
It seems we are agreeing to turn the long-stand principle of “innocent until proven guilty” on its head for certain groups of people. If you are an immigrant, and you are charged with a serious offense, you are “guilty until proven innocent” and you will be referred for deportation. As an immigrant myself, and as an American, I cannot support that differing standard.
Democratic members took the opportunity to point out the continuing concerns over S-Comm and its impact on racial profiling, community safety, and victims and witnesses (Gary Mead claimed ICE has never deported a victim of domestic violence.)
Republicans pushed their agenda, complaining that ICE had not provided information that had been requested and insisting that 300,000 “criminal aliens” had been identified by S-Comm and ignored or released by ICE. The source of the 300,000 number remains unclear. Representative Steve King questioned how Chief Venegas had arrived in the U.S. as an immigrant and repeatedly asked whether racial profiling was prohibited by federal statute. When Venegas mentioned the Civil Rights Act, King claimed that those who wrote the Civil Rights Act didn’t know what racial profiling was.
In summary, there was much grandstanding and talking past one another and very little constructive debate over the controversial program.
Photo by Gage Skidmore.
Detain First, Investigate Later: How U.S. Citizens Are Unlawfully Detained Under S-Comm
02 months ago
Editor’s Note: This is the second of five blogs in a series focusing on firsthand experiences with Secure Communities from across the country.
Detain first, investigate later — that is Immigration and Customs Enforcement’s (ICE) mantra when it comes to its Secure Communities (“S-Comm”) program, a program designed to immediately ensnare any immigrant in the deportation pipeline the moment they come into contact with the criminal justice system.
Under S-Comm, the fingerprints of every person arrested by the police are shared with ICE at the moment they are booked into police custody. Without investigating the person’s immigration status, ICE immediately sends an “immigration detainer” or a request back to the police if they want the person to continue to be detained for immigration purposes. Detain first, investigate later.
See a problem with this? Not only does it violate the Fourth Amendment’s basic prohibition against detaining a person without probable cause to do so, but it commonly ensnares the wrong people, including people who are not even immigrants, but United States citizens, causing them to be unlawfully detained.
Take, for example, the case of Antonio Montejano, a U.S. citizen who was born in Los Angeles. A few weeks ago, Antonio was arrested by the Santa Monica Police Department for shoplifting. He accidentally left a Sears store without paying for the candy his young children had taken and eaten while in the store. One of his children also placed a $10 perfume bottle in a bag that had already been paid for.
When security guards stopped Antonio, accusing him of stealing the perfume, Antonio explained that it was an honest mistake and that he would be happy to pay for it. After a long back and forth with the security guards, the police were called and Antonio was taken into custody.
Antonio normally would have been released from Santa Monica Police custody within hours of being booked into their custody. But ICE interfered through S-Comm. When Antonio was booked, ICE immediately placed an “immigration detainer” on him, instructing the local authorities to detain him until they could pick him up.
Antonio spent four haunting and unwarranted days in jail on the immigration detainer. For two of those days, Antonio was detained in a temporary holding cell in Los Angeles County Sheriff’s custody that only had chairs, no beds. The authorities forced him to sleep on the hard floor, depriving him of any mattress or blankets, a practice the federal courts have long denounced as flagrantly unconstitutional. Antonio repeatedly protested to jail authorities that he was a U.S. citizen. But only after the ACLU of Southern California contacted a senior ICE official four days later, did they finally agree to lift the detainer.
Romy Campos, a 19-year-old U.S. citizen born in Florida and a dual citizen with Spain, had a nearly identical experience, also a few weeks ago. Her arrest for shoplifting at a mall in Torrance, Calif., also resulted in ICE placing an immigration detainer on her and detaining her for four days in jail. For days, her attorney and family members sent her birth certificate to ICE officials pleading that they lift the erroneous detainer to no avail. Again, the detainer was only lifted once the ACLU of Southern California contacted a senior ICE official.
ICE, quite clearly, has no business arresting and detaining American citizens. But as described in a recent report by the Warren Institute at University of California — Berkeley, they do so over and over again through the fundamentally-flawed S-Comm program. (ICE’s own data in the first year of S-Comm activation revealed that five percent of persons identified by S-Comm were in fact U.S. citizens.) And they do so by enlisting the unwitting participation of local jail authorities in these unconstitutional practices.
The costs and consequences of S-Comm’s detain first, investigate later are borne out every day in the jails and police stations across the country where non-deportable citizens and noncitizens suffer needless detention, while they beg for ICE to finally investigate their cases so that they may be released from jail.
Sharing Prints: DOJ and FBI Must Take Responsibility for S-Comm Failures, Too
02 months ago
It’s long past time for the Department of Justice (DOJ) to stop passing the buck on Secure Communities (S-Comm) and take responsibility for the controversial immigration enforcement program. S-Comm has caused unprecedented harms to public safety and community trust in the police: DOJ must urgently take action to end this disastrous initiative.
S-Comm has been implemented by Immigration and Customs Enforcement (ICE) in 1,659 jurisdictions across the country, disregarding the opposition of numerous states and localities. Under S-Comm, the FBI shares the fingerprints of every arrested person with the Department of Homeland Security (DHS) — despite the fact that sharing these prints contravenes agreements made between the states and the FBI.
The FBI publicly acknowledges that it doesn’t own the fingerprints: “They’re owned by the states, by the 18,000 law enforcement agencies across this country. They submit them to us and allow us to use them, we hold them and distribute them per [our] agreements with each of the states. And every state has a different law governing what records can be distributed and what they can be used for.” Documents recently obtained in an ongoing Freedom of Information Act (FOIA) litigation by the Center for Constitutional Rights, NDLON, and Cardozo Law School demonstrate that FBI brass know they’re violating these agreements. Recently uncovered e-mail exchanges among top FBI officials prove it.
FBI Assistant Director Jerome Pender, then in charge of the Bureau’s Criminal Justice Information Services (CJIS) Division, wrote on May 10, 2011 about the dilemma S-Comm causes for the FBI: “[W]e are stuck in the middle of a nuclear war. I don’t think we need DHS direction. I think we need AG direction. If we have to decide, I don’t see how we can use the [fingerprints] in a way the [state] owner explicitly bans. This could cause the whole CJIS model to implode.”
His CJIS colleague replied: “I agree. Any way we go will contradict one of our partners.”
The FBI and DOJ have been lying low on S-Comm, deferring inquiries to DHS despite being the conduit for S-Comm’s fingerprint-sharing. But Attorney General Eric Holder has the obligation to weigh in on S-Comm by honoring the FBI’s agreements with the states — the undisputed owners of these fingerprints.
DHS plans to implement S-Comm nationwide by 2013, despite knowing that the program violates contractual obligations between the states and the FBI. S-Comm is wasteful, has been rejected by the governors of Illinois, New York, and Massachusetts, encourages racial profiling, and prevents immigrants from reporting crimes. It has led to the detention and deportation of innocent crime victims and witnesses, including domestic violence survivors.
The DOJ is aware of all these problems, too. The DOJ’s Civil Rights Division has reported on and is currently investigating a significant number of jurisdictions in which S-Comm has been implemented, for discriminatory policing targeting Latinos and other immigrants. Yet S-Comm continues to operate in these places.
The recent FOIA revelations provide yet another reason why DOJ isn’t an innocent party in the implementation of S-Comm. The nation’s leading law enforcement agency must not continue to breach its agreements with state and local partners, whose voluntary fingerprint submissions are the lifeblood of the FBI’s criminal investigations. DOJ must immediately re-commit to honoring its agreements with the states, and terminate the FBI’s involvement with S-Comm — a failed program that harms public safety every day.
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