Secretary John Kelly lashed out at critics of President Trump’s current Department of Homeland Security deportation force this week. Displaying impatience at a time when enforcement practices are being scrutinized for deporting non-criminals and DREAMers, Kelly told members of Congress that if they don’t like his department’s enforcement practices, “they should have the courage and the skill to change those laws. Otherwise, they should shut up and support the men and women on the front lines.” His message was clearly meant to pummel advocates as well: he added that DHS personnel are “frequently convicted in the court of public opinion on unfounded allegations testified to by street lawyers and street spokespersons.”
The ACLU and our allies are proud to be some of the “street lawyers and street spokespersons” defending the Constitution and winning. Kelly’s implementation of Trump’s Muslim bans has led to legal defeats galore. As a cabinet secretary he should not prejudge the validity of any misconduct complaints — including about airport interrogations by Customs and Border Protection personnel this year. Indeed, Kelly’s most astounding assertion is how willfully he ignores the track records of abuse by DHS enforcement personnel. His see-no-evil praise is starkly at odds with CBP and Immigration and Customs Enforcement’s recent past, and assessments by independent law enforcement leaders with conclusions like “CBP’s disciplinary system is broken.” Pretending that problems don’t exist does a disservice to the many men and women at DHS who aim to perform their duties with integrity, because their colleagues’ misconduct and violence go unaddressed and reinforce a culture of impunity.
Instead of suppressing discussion with “shut up,” Secretary Kelly should speak with the families of Cruz Marcelino Velásquez Acevedo and Anastasio Hernández Rojas. His department this year is spending $2 million dollars to settle their wrongful death cases against CBP. Kelly should watch this video of Anastasio’s brutal killing and ask why DHS personnel inflicted such injuries on a surrounded, handcuffed man lying face down.
Kelly should also talk to once-aspiring CBP employee Jessica Cooke, who Border Patrol agents decided to teach a lesson by throwing her to the ground and tasing her in upstate New York when she bravely refused to shut up about her constitutional rights (watch here). He should listen to José Antonio Elena Rodríguez’s grieving relatives, long awaiting the criminal trial of a Border Patrol agent who shot their unarmed teenager 10 times in the back across the border.
There isn’t always footage to review alleged abuses, however, which is why Secretary Kelly should commit to full transparency in DHS operations. Why does the nation’s largest police force not have any body-worn cameras, along with a policy that ensures privacy and accountability? Secretary Kelly is positive that racial profiling and religious questioning don’t happen: “When you hear a report of a family, an individual, whatever, at an airport being put into secondary screening or being refused entry into the United States, believe me, it’s not because of their skin color, it’s not because of the part of the world they come from, it’s not because of their religion . . . there is always, always, always more to the story.” Then why doesn’t DHS follow best practices like collecting and reporting demographic data to ensure bias-free enforcement and prohibit questioning about religious or political topics unrelated to travel?
Secretary Kelly’s enforcement messages are couched in terms of letting officers and agents "do their jobs." White House Press Secretary Sean Spicer has added that the “shackles” are off for immigration enforcement agents. The Border Patrol’s union — which relished denouncing even small-scale Obama administration reforms like an award for agents who deescalate potentially lethal situations — is thrilled that “handcuffs” have been removed from their enforcement activities. Make no mistake: these self-conceptions of tough law enforcement are in fact a green light for abusive enactment of Trump’s anti-immigration agenda.
Trump and Kelly’s DHS touts a new era of fidelity to the law, but in fact selects which laws to enforce. Kelly emphasized in his speech, “We will never apologize for enforcing and upholding the laws of this country.” But when, Secretary Kelly, will you uphold the Fourth Amendment against unreasonable searches for border cell phone searches or interior checkpoints 100 miles from the border? Where is your commitment to domestic violence prevention and the Violence Against Women Act when DHS agents are scaring survivors away from courthouses and Border Patrol lies about how they arrested a woman seeking a restraining order? Why aren’t you addressing the illegal turning away of asylum-seekers at the border and systemic DHS violations of the Trafficking Victims Protection Act? Are you proud of your ruse threatening separation of mothers and children so you could claim credit for reduced migration from violence in Central America?
Secretary Kelly often says he’s not a lawyer, but he knows that law enforcement is quintessentially about discretion, not zero tolerance of any offense. Members of Congress who have very different immigration philosophies have in unison emphasized that deportations without discretion are contrary to the law’s intent. Immigration is no different from other areas of civil law by requiring careful judgment in enforcement. Claiming in this instance that they have no choice but to make the law function as an inhumane crackdown, Kelly’s DHS is violating the letter and spirit of the very laws it claims to be enforcing.
Secretary Kelly knows better than to give DHS enforcement a clean bill of health. On NBC’s Meet the Press he acknowledged “very limited numbers of [DHS] people will break the law and you put the systems in place to catch them.” Why then is there currently a weakening of DHS hiring standards to hire new members of Trump’s deportation force? Disastrous excessive force, corruption, and other abuses were the result of last decade’s DHS hiring surge, yet the same mistakes loom again. CBP’s polygraph requirement, for example, which DHS is trying to water down, was instituted by Congress as a reaction to cartel infiltration of CBP and many other poor hiring decisions. ICE doesn’t have a polygraph for applicants.
A renowned general telling Congress, us as advocates, and you the public to “shut up and support” his DHS troops insults our freedom and democracy. It disrespects the oath of office Kelly has frequently and honorably taken to uphold and defend the Constitution. Secretary Kelly should instead focus on an agenda of DHS transparency and accountability, with independent oversight to investigate his claims that every DHS abuse is a concoction. There’s undoubtedly an admirable and impressive person hidden behind John Kelly’s political rhetoric: the distinguished warrior-turned-public servant whose career has embodied fighting for American values. Too bad that for now, it seems Kelly’s fair judgment and compassion have gone missing.
