William Fisher

NEW YORK, Apr 22 2005 (IPS) — Before Sep. 11, 2001, few people in the United States had heard of immigration detention, but in fact, a secretive parallel prison system run by the U.S. government has existed for more than two decades, says author Mark Dow.

IPS recently conducted an interview with Dow, who wrote the critically acclaimed “American Gulag: Inside U.S. Immigration Prisons” and co-edited “Machinery of Death: The Reality of America’s Death Penalty Regime”.

Q: You have been quoted as saying that the Department of Homeland Security (DHS) should not be running a prison system at all. In an ideal world, can you suggest a substitute that could be supported in the Congress and by the president, and become law? What should be done with illegal immigrants residing in the U.S.?

A: Immigration and Customs Enforcement (ICE)/Immigration and Naturalisation Service (INS) is an incompetent and corrupt agency that outsources most of its prisoners to isolated county jails and to private prison companies. It didn’t even have formalised detention standards until about 2001 – more than two decades after the contemporary era of detention began. And these “standards,” which ICE trots out to prove it treat detainees humanely – though it doesn’t – are not even legally enforceable.

In an ideal world, Congress and the President would repeal the 1996 laws forcing the detention and deportation of the hundreds of thousands of immigrants who are as much a part of this society as they are. They would stop targeting non-citizens to prove how tough they are. Instead, they would remind voters that the concept of citizenship is fluid – and that, for example, free descendants of slaves used to be ineligible for U.S. citizenship.

Q: Your book details a litany of abuses committed with the immigration prison system. Have any improvements been made since you wrote the book?

A: I’m not aware of any concrete improvements. ICE is using more ankle bracelets as alternative detention. That’s definitely preferable to being locked up. I assume ICE is doing this because it lacks detention space. But Congress recently authorised 40,000 more jail beds for ICE through 2010.

The DHS Office of Inspector General is conducting audits of several detention centres and jails. My sense is that it’s well-intentioned but that there is a serious disconnect between Washington offices and the lockups. But it’s an indication that increasing pressure from advocates and community groups is putting DHS on the defensive.

Q: Are you any more optimistic about changes in this system under Michael Chertoff, the recently confirmed head of the Department of Homeland Security, which oversees the immigration system?

A: I am not optimistic. First, because of Chertoff’s reported involvement in post-9/11 roundups and mistreatment of Arabs and Muslims. Second, because I listened to some of his confirmation hearing, and he is very slick.

But let me suggest a couple of areas where he might be pressured. During questioning by Senator (Joseph) Lieberman, Chertoff seemed to be saying that, in retrospect, post-9/11 immigration detainees should have been provided with counsel. Either he is being disingenuous, or he is endorsing the idea of providing counsel for all immigration detainees. The latter would be rather surprising considering that he was reportedly involved in making sure that post-9/11 detainees did not get lawyers.

Remember that Immigration and Customs Enforcement detainees have no right to counsel, despite the fact that they are subjected to an adversarial process. And INS/ICE have a long history of denying detainees access to counsel when they do manage to get lawyers.

Chertoff should state clearly and publicly that he supports a law creating the right to counsel for anyone detained on immigration charges.

Q: Does Congress bear any responsibility for the abuses you write about? What’s wrong with their oversight?

A: Congress bears a lot of the responsibility. They are the ones that have passed anti-immigrant laws to score political points – most relevant to my book, the 1996 laws that tripled the detained population by creating mandatory detention for hundreds of thousands of legal immigrants.

Congressional oversight has been practically nonexistent despite decades of documentation of the abuses that are part of the fabric of the immigration detention regime. When there is oversight – such as the post-9/11 Office of the Inspector General report – there is no meaningful follow-up.

Q: Does the privatisation of some detention facilities have an impact on the whole system?

A: Whether we’re talking immigration prisons or “regular” prisons, privatisation has given the government another buffer against accountability. Bringing a “bottom line” approach to feeding and caring for inmates has helped to dehumanise them further. Prison employees are often victimised too, for instance by losing health benefits.

Q: Do you think President George W. Bush’s guest worker proposal would do anything to mitigate the problem? How about Rep. F. James Sensenbrenner’s REAL I.D. proposal?

A: I once asked a Border Patrol supervisor what would happen if we simply took down the wall on the Mexico-U.S. border. This was a guy who loved ridiculing the American Civil Liberties Union and the “PC crowd.” And his answer was that “illegal immigration” is like drug use – and that it would probably just find its own level.

I’m not a policy expert, but I think our so-called debate about immigration is not really about immigration. For example, one of ICE’s banner operations right now is called Operation Predator (at least they’ve called themselves by the right name). The idea is to target immigrants connected to sex crimes. Some of those targeted had consensual sex with underage partners. ICE also targets people who were charged but not convicted.

When people like that are “administratively detained” and deported, it has nothing to do with immigration policy or “securing our borders.” This needs to be seen for what it is: a separate justice system for use against non-citizens.

At the same time, ICE has announced its involvement in targeting citizens with “sex crime” connections. So while the agency is enforcing the parallel justice system for non-citizens, it’s also now involved in law enforcement that has nothing to do with immigrants at all, legal or illegal.

This agency simply has too much unchecked authority. In my book, I write about cases in which INS/ICE has refused to release certain immigrants from detention unless they agree not to speak to the press about their cases. Nothing to do with national security, in case you’re wondering – just the possibility of bad press.

It’s the borders of the immigration agency itself that are out of control.