Mandatory detention in the US began in 1988 as part of the War on Drugs. The Anti-Drug Abuse Act created new grounds to deport non-citizens convicted of an "aggravated felony" including murder, drug trafficking or arms trafficking. The Act was the first instance that forced immigrants convicted of an aggravated felony to face mandatory detention by federal authorities without a bond hearing. Detention of non-citizens pending removal hearings was made mandatory. There were several court rulings that this was unconstitutional as it violated the due process rights of the accused. The act was amended accordingly only to be reintroduced in 1996 by a Republican dominated Congress with the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) which reinstated mandatory detention without bond for non-citizens convicted of an "aggravated felony." The Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), passed in the same year, added to the number of offenses requiring mandatory detention. According to qualified legal opinion, both Acts only "expanded the increasingly bloated aggravated felony category, and thus mandatory detention, to encompass still more types of crimes." Non-citizens detained under this act had no possibility of release on bond prior to removal hearings. Laws passed in 2001 and 2011 enhanced and expanded federal authority in pursuing the mandatory detention of non-citizens.
The consequences of this legal approach has been to create a constitutionally highly questionable form of administrative detention which "is the practice of imprisoning people without any consideration of whether incarceration is necessary or appropriate...[and] without any individual assessment of their risk to public safety or flight or of their vulnerability in detention..." during administrative proceedings. In a recent book entitled Undocumented: How Immigration Became Illegal, Aviva Chomsky, citing ACLU statistics, aptly sums up the consequences of nearly three decades of administrative detention of non-citizens.
According to the American Civil Liberties Union, the detention of immigrants has reached "crisis proportions." "Over the last 15 years the detention system more than quadrupled in size, growing from more than 6,300 beds in 1996 to the current capacity of 33,400 beds. In 2010, the Department of Homeland Security (DHS) held 363,000 immigrants in detention in over 250 facilities across the country." Meanwhile, ICE's detention operations budget jumped from $864 million in 2005 to over $2 billion in 2012. (A. Chomsky; 2014; 102)
In October, 2011, the US Congress passed HR 1932 which "...would codify and modify the conditions for post-removal order detention. The bill would allow DHS to detain indefinitely, subject to six-month reviews, an alien under orders of removal...The bill would limit habeas corpus reviews of such detention and related actions or decisions to the U.S. District Court for the District of Columbia. Also, the bill would permit unlimited detention of certain aliens during pending removal proceedings."
Administrative detention is unconstitutional and a highly disturbing trend in how America's "small government conservatives" have been reacting to vexing problems such as drug abuse, national security and immigration. I'm not submitting to hysteria about the creeping dictatorship and concentration camps of Alex Jones' conspiracy obsessed fantasy world. However, this is a disturbing trend made all the more so by its stealth and imperceptibility.
One recent argument against legislation such as HR 1932 comes from a CSR brief cited above which states,
"...the criminal justice and civil commitment systems already exist to keep dangerous individuals away from the public...H.R. 1932 would allow for the prolonged, unnecessary, and expensive detention of asylum seekers and other immigrants by preventing bond determination hearings and limiting habeas corpus review to the U.S. District Court for the District of Columbia."
The USA Patriot Act, passed hastily in the wake of the September 11 attacks on the World Trade Center in NYC ten years prior to H.R. 1932, only worsened an already complicated issue. According to the Stanford Law School blog,
As the USA Patriot Act went into effect, several hundred immigrants remained in government detention under a separate emergency order allowing them to be held without charge for an extended period. The lengthy detention of so many aliens, few of whom were suspected of involvement in the terrorist attacks, generated concern that efforts to protect national security in the wake of September 11 had infringed on the constitutional rights of noncitizens. In 2002, civil liberties organizations mounted several legal challenges on behalf of individuals detained after September 11, including a class action lawsuit asking a federal district court to declare the detention of a group of Muslim men unconstitutional.
In FY2014, the National Defense Authorization Act (NDAA) reaffirmed several past provisions of the Act to allow the military powers of indefinite detention of persons it deems a threat to national security. This followed two previous reaffirmations of such powers by federal authorities. In the fall of 2014, several women fleeing dangerous conditions in various Central American countries were stopped at the US border in Texas and detained by the border patrol. They ended up in the Karnes County residential facility in Texas which is a detention center for undocumented immigrants. They are being kept there according to the DHS "no release policy" instead of being released pending further action as has been standard procedure. Over the course of the next several months, thousands of asylum seekers ended up in the moral equivalent of internment camps, often under deplorable conditions, with no legal representation or constitutional protections legally due anyone on US soil.
On February 20, 2015, a US District Court judge, James Boasberg, ordered a temporary injunction against the detention of asylum seekers apprehended at the US/Mexican border. He argued that the action was aimed at deterring future asylum seekers for entering the US without proper documentation. Boasberg argued that asylum seekers are entitled to protection under the Due Process clause of the US Constitution in protecting their liberties. Indefinite detention of those currently held in Texas is thus unconstitutional.
According to a recent NYT report, "In late July, Judge Dolly M. Gee of Federal District Court for the Central District of California ordered the release of all children from immigrant family detention centers, along with any mothers not deemed a flight or national security risk." The judge was motivated by reports of the deplorable and often dangerous conditions in many of the detention centers particularly some of them of the more notorious ones in Texas. The US Department of Justice asked the Judge to not to implement the decision because it would complicate DHS efforts to quickly process the detainees. Of course, no such process existed prior to the judges decision and conditions in many of the detention centers violated the Flores accords of 1997 which legally stipulated minimum health and treatment standards for those interned as undocumented immigrants.
According to immigration attorney Raul Reyes, America's vast and expanding immigrant detention network, the largest in the world, has become a national disgrace. Most of the current detainees are only guilty of being in the country without authorization which is only a civil offense and not a criminal one. It has been shown that non-detention methods of controlling the movement of undocumented persons entering the country are a much cheaper, just and humane manner of monitoring individuals pending an asylum or other legal status decision.
According to the ACLU, private firms such as Behavioral Interventions (BI), a division of the private prison firm GEO, which contract with ICE, use such methods of monitoring as, "...electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants." In 2013, ICE detained nearly 441,000 people with BI supervising fewer than 41,000 such persons through their Intensive Supervisory and Appearance Program (ISEP) or fewer than ten percent of the total that year for a fraction of the cost of incarcerating the people in detention centers. In 2013, BI reported "...a 99.6% appearance rate at immigration court hearings for Full-Service participants, and a 79.4% compliance rate with removal orders for the same population." This processing system is preferable to those that profitably warehouse thousands of people in deplorable conditions in the private prison system. The frequent use of ankle monitors is increasingly coming under attack by human rights groups and immigrants. It is regarded as dehumanizing for its stigmatizing mere immigrants and asylum seekers as dangerous criminals. Users complain that they are often inconvenient and physically painful. Use of GPS ankle monitoring should not be routinely used and reserved exclusively for high risk cases such as persons with criminal histories.
The mass internment of foreign entrants is unconstitutional and violates traditional American values as a place of refuge and opportunities for those fleeing poverty, persecution, tyranny and life threatening circumstances. It should be scrapped for more humane methods of coping with this problem. Any alternative should conform to traditional American standards of treatment of those who are in US custody. Concentration camps, whether for criminal suspects, prisoners of war, asylum seekers or those who are simply here without proper legal authorization is unAmerican and should immediately cease!
