Ice is a tool of illegality. It must be abolished

The United States is in a legal and moral emergency, and lawyers have a special responsibility to speak up. Lawyers, as the protectors of the rule of law, must demand the end of indefinite family detention centers, must insist that all children get guaranteed legal representation, and should join the growing movement to abolish US Immigration and Customs Enforcement (Ice).

It is not an accident that Donald Trump can use Ice and Customs and Border Protection (CBP) as tools of unconstitutional illegal behavior: it is part of the structural flaw of the agencies themselves. Ice undermines what we aspire to be as Americans, and is an unaccountable and inhumane political tool, treating all immigrants as national security threats.

Ice and CBP are tools of lawlessness, so rife with substantiated abuse incidents that we cannot treat these incidents like a few bad apples. Ice and CBP are so politicized that they are not credible as law enforcement agencies, and so deeply connected with illegal behavior that they are no longer credible as self-governing agencies. Instead, they have become tools of arbitrary power and cruelty; the opposite of law.

The Trump administration has been ruthlessly separating families at the border, failing to reunite them. In response to the collective outrage, the president then committed to an inhumane and illegal public policy of indefinite detention, ostensibly so the families can be kept together, replacing one atrocity with another.

On Sunday, Trump doubled down and took direct aim at our constitutional order when he tweeted: “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”

This is a direct affront to the most foundational principles of public morality and law. Our constitution insists that “no person shall be … deprived of life, liberty or property, without due process of law”. It should not need saying, but undocumented immigrants are persons.

Even if some process is slapped together despite Trump’s outrageous tweet, what kind of due process exists when a six-year-old child must represent herself in immigration proceedings?

But the problems with Ice and CBP go far deeper than this ongoing atrocity. Ice is stunningly unaccountable, by design, and the horrors that we see today are part of a structural problem that George W Bush created and that we can and must fix.

Let’s be clear: Ice is a fairly recent development. When the George W Bush administration successfully pushed to place immigration enforcement within the Department of Homeland Security (DHS), it transformed decades of past practice where internal immigration policy was conducted by the justice department. The new policy sent a clear and chilling signal: immigrants should be treated as criminals and a national security threat.

The criminalization of immigrants came into stark view at Trump’s State of the Union, where Trump publicly praised an Ice officer as a “leader in the effort to defend our country” who gets “dangerous criminals off our streets”. The “dangerous criminals” that Ice in fact targets includes families and individuals who have lived in the country for decades with no criminal record.

By treating immigrants as criminals and national security threats, Ice – and CBP, also placed with DHS in 2003 – enhanced its own power and decreased oversight. The new design makes it hard to stop abuse and lawlessness, as Ice and CBP operate in the shadows, largely free from public scrutiny.

Unsurprisingly, an unaccountable structure has led to rogue behavior. There is a long history of illegality within Ice and CBP. According to documents from the Department of Homeland Security’s office of inspector general, which reviews complaints against Ice and Border Patrol, there were 1,124 allegations of sexual abuse and assault from 2010 to 2017, primarily from detainees in Ice custody. In fact, Department of Homeland Security OIG officials earlier indicated that they had received some 33,000 abuse complaints from 2010 to 2016.

Remember, these assaults and abuses are visited upon people who have already faced unimaginable hardship. People traverse the dangerous journey to the US because of deep fear. They are often escaping brutality, even life-or-death situations. There are reports that before making the trek, women start taking birth control because it’s almost expected that they’ll get raped on the way. They come to the US out of desperation and devastation, and then, with our current policy, are confronted with mass trials, with lack of process, often with a failure to respect international refugee treaties, and with the threat of having their children taken and lost. The children are treated as tools at the most vulnerable developmental times in their lives.

We won’t rest until every family is reunited and until the policy of indefinite detention is totally abandoned. And as attorney general, I will use my powers to block the federal government’s illegal programs, to use the full reach of New York law to get information from the administration about the family separation program, and to protect the rights of separated children and parents.

But we need to go beyond the current moment and deal with the structural threat. We, as lawyers, must point out that unrestrained power is almost always abusive. Power corrupts; absolute power corrupts absolutely. It is not an accident that Ice and CBP have become tools of illegality: it is part of the design. Therefore, we must abolish Ice.

Zephyr Teachout is a candidate for attorney general of New York, and an associate professor at Fordham Law School