The renewed calls to abolish ICE are an understandable reaction to an intolerable reality. ICE has become dangerous and unaccountable by design under the second Trump administration, with its deportation quotas, dehumanizing rhetoric about immigrants and extrajudicial pronouncements that agents have “absolute immunity.” The assault on Minneapolis has demonstrated what can happen when that toxic mix of incentives is unleashed on a community. ICE has operated more like an invading army than a force for public safety.
But the rot goes deeper at the Department of Homeland Security, the behemoth that controls ICE, Customs and Border Protection (C.B.P.) and myriad other federal agencies, from the Federal Emergency Management Agency to the Secret Service. Since its founding in 2002, a combination of organizational flaws and mission creep has allowed D.H.S. to evolve into the out-of-control domestic security apparatus we have today, one that views the very people it is supposed to protect as threats, not humans.
The last time we had a true debate about how the U.S. government should be organized to protect Americans and to protect what it means to be American was almost a quarter century ago. After the attacks of Sept. 11, 2001, politicians sparred over how to balance security and liberty, as if they sat on opposite sides of a scale. Our obsession with security — aided by politicians determined not to appear “weak” and Supreme Court decisions that empowered the presidency — has obliterated that balance. As it has in other countries, the pursuit of security paved the way for the consolidation of power. Now, Minnesota has neither security nor liberty.
Unwinding this will take time and is unlikely during the Trump administration. But the time to start this debate is now, and there is one answer available if you look to the not-too-distant past: End immigration enforcement at the D.H.S. and return it to the Department of Justice so that it is embedded in the rule of law. This goes beyond abolishing ICE in its current form; we must fundamentally overhaul D.H.S. and end the securitization of American life if we are to have just and lasting peace in this country.
In February 2001, Secretary of Defense Donald Rumsfeld wrote a memo in which he quipped: “The word ‘homeland’ is a strange word. ‘Homeland’ defense sounds more German than American.” Then came 9/11. In the immediate aftermath, every aspect of the plot was scrutinized. Why wasn’t information about threats from Al Qaeda shared across intelligence agencies? How did the terrorists obtain visas? How did they board planes with knives and box cutters?
The overwhelming instinct in Washington was to do something, lest we be caught unprepared again. In just over a year, Congress codified the largest reorganization of the federal government since the creation of the national security state after World War II. The agencies most responsible for preventing attacks — the F.B.I. and the C.I.A. — were strong enough to evade this reform. Instead, lawmakers created the alphabet soup of agencies that became D.H.S. They took the Immigration and Naturalization Service and the Border Patrol away from the Justice Department and put them under the umbrella of the newly formed Department of Homeland Security.
When President George W. Bush signed the legislation, he framed D.H.S. as a counterterrorism enterprise. Because of this new cabinet department, he said, “America will be better able to respond to any future attacks, to reduce our vulnerability and, most important, prevent the terrorists from taking innocent American lives.” He said nothing about immigration enforcement.
It was an odd marriage from the beginning. The only connective tissue among D.H.S.’s component parts was that they could hypothetically play a role in preventing — or responding to — terrorism. An ICE officer could deport a potential terrorist; FEMA personnel could respond to an attack; the Secret Service could rush the president to a secure location.
By the time Hurricane Katrina hit New Orleans in 2005, it was clear that this mega-counterterrorism wing of the government was going to be defined by other issues. Ever since, D.H.S. has been in search of a reason to exist, shifting its priorities to suit whichever president or political challenge was predominant: from terrorism to hurricane response, to cybersecurity, to counternarcotics, to border security and immigration enforcement.
The department’s one constant has been the DNA inherited from the war on terror. Any Americans who have taken off their shoes to board a plane understand this intuitively, even if they don’t know that the Department of Transportation used to oversee security screening at airports. All that inconvenience is due to a single individual’s trying (unsuccessfully) to ignite a bomb in his shoes in 2001. Yet by creating D.H.S., we chose to view all people and goods as potential threats. And by moving so many functions of government under its umbrella, we chose to make them — by design — part of fighting a war.
At first, the most visible and acute aspects of that war took place abroad in places like Afghanistan and Iraq. Each of those efforts morphed quickly into lengthy counterinsurgency campaigns with elements of mass surveillance, intelligence fusion centers, military patrols and targeted operations against threats — real or perceived.
That mind-set embedded itself at home. D.H.S. helped build the plumbing of a domestic security state, with its own fusion centers and expanding missions. A 2012 Senate report found that these centers produced little of value while endangering civil liberties. Alongside the Pentagon, D.H.S. also helped funnel the huge surplus of military equipment generated to fight the war on terror to local police forces and federal agencies — the armored vehicles, drones, body armor and assault weapons once used to fight insurgencies abroad.
ICE has become a poster child for this mission creep. Removed from the Justice Department, it was decoupled from the Immigration and Naturalization Service’s adjudication and naturalization functions. The result: a security force untethered from prosecutorial norms, judicial oversight or a culture that protects rights. After Congress failed to pass immigration reform, it plowed resources into enforcement — in the Obama years, we saw this as a down payment on legislation that would create a path to citizenship for undocumented immigrants. We were wrong.
As D.H.S. built out its intelligence and surveillance capabilities, ICE became a consumer of ever more sophisticated data to support a higher operational pace. In those operations, it used its growing stockpile of military hardware. As the hiring of agents surged, ICE unsurprisingly turned to veterans of post-9/11 wars to fill out its force.
Minneapolis has resembled a counterinsurgency campaign more than a law enforcement operation because that’s what it is — complete with tactics, equipment and legal authorities derived from the war on terror. Mr. Trump may have been the one who ordered the crackdown we’re living through, but it’s possible only because of the architecture of D.H.S. “homeland defense,” which is now beginning to feel German in the ways Rumsfeld feared.
Democrats have already proposed sound reforms for how ICE should operate: No masks. No operations at schools, churches and hospitals. Enhanced vetting of recruits and training in de-escalation. Focusing, as Mr. Trump promised, on people convicted of crimes. Prohibiting arrests without judicial warrants, which simply reinforces the law that ICE should be following in the first place.
The very need for those reforms makes the case for deeper structural change. By returning the functions of ICE and Citizenship and Immigration Services to the Justice Department, we can once again embed immigration enforcement and naturalization in the part of the government responsible for both enforcing and adhering to the law. This would end ICE as it is, without abandoning the necessity of immigration enforcement.
Of course, this change is hard to imagine during the Trump administration. Nor is the current version of the Department of Justice fit for this purpose. Under Mr. Trump, the Justice Department acts as an extension of the president’s prerogatives — policy and personal. But Americans are hungry for alternatives, and the current reality need not become permanent. Putting forward ideas for reform rejects the sense of inevitability that a strongman tries to create, and gives Democrats blueprints for how to rebuild when the opportunity presents itself.
Moving ICE and Citizenship and Immigration Services back into the Justice Department is not a radical idea; it would simply restore longstanding constitutional governance of our immigration system. Immigration laws would be enforced within a culture comfortable with judicial oversight, prosecutorial norms and the protection of civil and human rights. It would also locate these functions within the department already responsible for the judges who determine whether an immigrant should be removed from the United States. Yes, the Justice Department is susceptible to politicization, but it has built-in paths to transparency and accountability that the Department of Homeland Security clearly lacks.
Customs and Border Protection could stay within a smaller D.H.S., but it should focus on securing our borders — not enforcement operations within them. D.H.S. should not have domestic policing, enforcement, detention or intelligence-gathering functions. Let the Justice Department do that.
None of this diminishes real threats — from terrorism to hackers, from fentanyl to pandemics. But the lesson from past failures, including 9/11, is about the need for effective coordination by the government; instead, we have lived through the consolidation of power within it. D.H.S. should focus on working with others to secure the border, cyberspace, infrastructure and transportation — not on being part of a war or building fiefs like ICE.
Twenty-five years into it, the war on terror has become a war against ourselves. That forever war must come to an end. Enough with the military gear. Enough with the mass surveillance. Enough with the constant fear of an ever-shifting Other.
Democrats should not be afraid to make the case for this, or other, structural changes to D.H.S. and an immigration system in desperate need of comprehensive reform. Yes, Americans want a secure border. But most of us are also tired of war, wary of an intrusive militarized government, welcoming of immigrants, and protective of our core freedoms. Mr. Trump’s administration should be the period that concludes the post-9/11 era.
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