With a rapidly and vastly expanded budget, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) are set to assume a far greater presence in American life. This is a rapid influx of resources and power for a department that is relatively young. To understand the potential implications of this historic shift, it is useful to contrast the DHS and ICE with the organizational structure and systems of accountability in the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI).
On Friday, Just Security published a fascinating podcast discussion with two experts: David Aaron, who draws from his professional experiences in the Department of Justice, and Steven Cash, who draws from his professional experiences in Congress, the Department of Homeland Security and other parts of the executive branch.
I recommend listening to the full conversation (or reading the full transcript). I also thought it would be helpful to highlight some aspects of their discussion here.
1. Origins of the Department of Homeland Security: Inefficiencies by design
Steve: Let me start with what is the Homeland Security Department, and how was it set up after 9/11.
There was a perception that we needed something here to bring together the various parts of the federal government that kept us safe in what increasingly, then, was called “the homeland.” And that’s where that term came from.
And the idea was to bring in parts of the government that were all scattered around. So, for instance, immigration had been the purview of Immigration and Naturalization Service, which used to be called INS, which was in the Department of Justice. The Secret Service was in the Department of Treasury, the Coast Guard at different times, was in the Department of Treasury and in the Department of Transportation.
And, we brought all of those components in, created some new ones, mushed some of them together, and we ended up with the Department of Homeland Security. … It’s deliberate that they’re semi-independent. And ICE is one of them. HSI is part of ICE. ICE is what used to be INS, and it’s in charge of regulating and enforcing our immigration laws. It works closely with its internal investigative law enforcement element, which is HSI, sort of the equivalent of the FBI, in terms of making cases within the department.
And, so, let me set a little bit of the table there and the history. There was a lot of concern when the department was being created, certainly up on Capitol Hill, in the press, in the civil liberties world, and just ordinary Americans, that it sounded a little bit like we were creating what somewhat laughingly was called a Ministry of Interior. …
The solution was [to] bring all these entities together, but leave them semi-independent, so the components still have a leader who’s presidentially appointed, Senate confirmed. … It also built-in some inefficiencies. I used to joke when I worked at the department that the Congress and the President had deliberately made the gears not quite move as smoothly as they could to keep that engine from overheating. And of course, the problem is, if you work there, you work where those gears grind. So, it’s a little bit, sometimes unpleasant, a difficult place to work sometimes.
David: But that’s a feature, not a bug.
Steve: It was a feature, not a bug, unless you work there, in which case it was something that you complained about. And that’s where we have been.
2. Internal Executive Branch Constraints
David (from intro): After the Church Committee investigated abuses by the FBI and other agencies before and during the Watergate era, new structures were put into place to reduce the risk that the FBI would pursue arbitrary or politically motivated investigations. The FBI is now subject to Attorney General guidelines, which are publicly available, and those guidelines are the basis for the FBI’s very detailed Domestic Investigations and Operations Guide, or DIOG. Together those documents and other policies set rules for what the FBI can investigate and what investigative methods it can use based on the amount of evidence it has about its investigative subject. They establish high-level accountability for sensitive investigations and techniques, and they tell the American people what they can expect from the FBI. The FBI is also, of course, subject to functional oversight by prosecutors and the criminal justice system. Prosecutors can’t always tell the FBI what to do, but because most FBI investigations, at least potentially, will lead to criminal charges, all of the rules governing criminal law enforcement–constitutional rules, exclusionary rules, statutory limitations and best practices–inform and constrain what the FBI does.
It’s always been interesting to me, though, that even though the FBI, and even the Central Intelligence Agency, are subject to guidelines established by the Attorney General, DHS law enforcement agencies in their exercise of tactical law enforcement are not. And, while the FBI procedures are heavily informed by the potential for criminal prosecution, a lot of what ICE does will never surface inside of an Article III courtroom.
Finally, while every FBI agent has drilled into them the history of the FBI, including reforms and oversight, the DHS agencies just don’t have that history. And meanwhile, none of the rules, practices, traditions that have evolved since Watergate to insulate the DOJ and the FBI from the White House applied to DHS, which was only put together in the immediate aftermath of September 11.
3. Article III versus Article II immigration judges
Steve: [ICE] implements the Immigration and Nationality Act, and a large — it doesn’t really look like a courtroom–although some of the same terminology is used. For instance, they have administrative law judges. They’re called immigration judges, but they’re not Article III judges. They don’t have a lifetime tenure, and they’re not appointed by the President and confirmed by the Senate, and they could be hired and fired, and they actually work for the Department of Justice.
4. Direct authority under Attorney General and Interactions with Prosecutors
David: DHS is distinct from the Department of Justice, right? They’re headed by two separate cabinet level officials. Looking at ICE looking at HSI, they answer through their agency head to the Secretary of DHS, they don’t answer to the Attorney General. Correct?
Steve: That is correct. And I think we’ll get into some details, but that’s basically correct.
David: And they’re, you know, so that’s, that’s what, that’s what I think of when they are engaging in law enforcement, or law enforcement like practices out among the public, they’re not operating under the authority of the chief law enforcement officer of the federal government.
Steve: That’s right. And as you pointed out, because so much of what they do now is never going to court, they’re not even going to become under the authority and guidance of an Assistant U.S. Attorney or a trial attorney from the Department of Justice, like you were. So in many cases, even somebody who’s not directly reporting to the Department of Justice, they ended up in your office when they had a case to present. And if they needed a search warrant, they came to you. And if they had a question about whether they could do X, Y and Z, they came to you.
5. Attorney General Guidelines and Resulting Institutional Culture
David: I do want to spend a little time talking about agency guidelines. Right? Because, you know, the Church Committee documented what sounded in some parts of the Church Committee Report like a free for all. Sometimes, or often, motivated by well-intentioned agents who were told there was a serious problem to solve, and not given much guidance on the many, many guardrails. And, so, things got out of hand.
The Attorney General guidelines will lay out, you know, well, “if you have this amount of suspicion or predication, you can open this level of investigation. If you have this level of investigation, you can use these specific techniques, and if you want to use any particularly sensitive technique, you need approval by a supervisor at such and such a level.” And you know, a lot of those rules aren’t directly related to criminal procedure, but they’re necessary to maintaining public confidence and maintaining the regulation of how the FBI uses its authority.
And ultimately, through those procedures, those are issued by the Attorney General, or approved by the Attorney General, so everyone is accountable up the chain for those procedures to the Attorney General. And again, when we’re talking about ICE, for example, or HSI, they may have some internal guidelines, but they’re answering up to the Secretary of DHS, and they’re not operating under procedures that the AG approved.
Steve: … I want to add something to what you [said] about the Attorney General guidelines. Yes, they are there to ensure adherence to law, but they’re also there as a representation of long-standing– fundamental at the top levels of leadership– buy-in to the idea that we’re not just in the “lock them up” business. We’re also in the civil liberties business.
6. Insulation from White House/Politics
David: You talked about successions of FBI directors, we haven’t had quite as many DHS secretaries, and DHS has a much younger history, and I think DHS is generally much closer to the president and doesn’t have that kind of insulation from the White House that the FBI and DOJ have traditionally enjoyed, at least since the post-Watergate era. Would you agree?
Steve: Yeah, absolutely. There’s no question that the Attorney Generals, particularly the Attorney Generals, but almost derivatively, the FBI directors, have seen themselves, and presidents have seen them, as somehow standing apart. Not in a “you’re not in a democracy, we don’t have to listen to elected officials,” but in a deeply important conceptual way.
Again, David, I’ll talk to you on the Department of Justice, and they’d say “we are the nation’s law firm,” not “we’re the president’s law firm,” not “we’re the White House’s law firm.” …
David: …Here what’s interesting is that we have search authority, arrest authority, detention authority, vested in an organization that does not answer to the Attorney General, but answers to an official that that doesn’t have Attorney General-like separation from the White House, which, you know, creates some risk, I think.
Steve: A huge amount of risk. And that was understood at the formation of the department. I mentioned at the beginning of our talk the sort of deliberate inefficiencies built in there.
7. Incentives Created by Criminal Cases
David: You mentioned the difference in the court systems that each are involved in. And to be sure, ICE and particularly HSI, a bunch of their cases do end up in the criminal system, and they work with criminal prosecutors on those cases. I think every FBI agent, or almost every FBI agent, has in the back of their mind that a case they’re working on could end up in the criminal justice system.
… As you mentioned, there are immigration judges who are DOJ employees, and they can be fired. They can be told what policies to pursue, and how much discretion they have, or yeah, they can get fired if they don’t, if they don’t do as they’re told. And I think different Attorneys General, different administrations, have handled the independence or lack thereof of immigration judges differently. But the immigration judges at the end of the day are part of the executive branch.
So, Steve, you’ve been a prosecutor, and you’ve worked in the intelligence world, and you’ve worked in DHS. Everyone has heard of the exclusionary rule. You know, if law enforcement officers, you know, violate rights under the Fourth Amendment, Fifth Amendment, Sixth Amendment, there are direct consequences on the viability of a criminal case. There’s an immediate punishment, essentially, that serves as a deterrent to law enforcement misconduct. You don’t really see the same thing in the immigration system, do you?
Steve: Not at all, you know. And it’s two different– and this is worth making a note of: HSI is part of ICE. HSI really is more law enforcement like.
David: They do more of the criminal work.
Steve: They do more of the criminal work. That’s why the “I” stands for investigations. And you know, if you put a bunch of HSI, FBI and Secret Service agents, for instance, in a room, you know, you’d have a party. They all come from the same basic background. They have very similar training. They’d all know what the exclusionary rule was, and they would all buy into the exclusionary rule, is my guess, and some a little less happily with it, but they would share that. ICE is much bigger than HSI, ICE itself. And what we are seeing now is different parts of ICE that don’t do much law enforcement in the sense of presenting a case to a prosecutor and eventually going to court. There isn’t the kind of intrinsic checks and balances, and there aren’t the kind of rules: Fourth Amendment, Fifth Amendment and the like. They don’t exist.
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David and Steve also discuss the need to develop effective border enforcement and address serious criminal activity at the intersection of immigration and law enforcement. They also discuss options for Congress to be involved in balancing the competing risks and tradeoffs.
