What Just Happened: The Budget Bill and the Future of DHS and ICE

The massive budget bill that passed this month allocates tens of billions of dollars to the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), and Homeland Security Investigation (HSI). The influx of funding of that scope and size will significantly expand the role DHS and immigration enforcement agencies play in American life.

What are the the institutional constraints on the FBI and law enforcement agencies compared to those on DHS and immigration enforcement? 

 To help unpack what these differences might mean for achieving policy objectives while protecting civil liberties and providing political accountability, host David Aaron is joined by Steve Cash, who comes with a wealth of high-level experience in Congress and the executive branch and who most recently served as Senior Advisor to the Under Secretary of the Department of Homeland Security.  

Show Note:

• Just Security’s FBI Archive 
• Just Security’s DHS Archive

Transcript

David Aaron: I'm happy to announce that we've resumed production of the what just happened series of the Just Security Podcast. I'm David Aaron. The goal of the podcast is to explain the implications of legal and policy developments that may not be immediately apparent. We bring our own national security and government experience to the table and bring in guests to share theirs. With that collective experience, we can shed light on the significance of events in the news. 

Today, we're going to look at an issue that has been very visible and that has been growing in significance on one level. This is an issue that does not need to be pointed out, but there's more to the story, and our discussion today will explain why this development warrants even more attention than it's getting. We're talking about the increasingly prominent role ICE and other DHS law enforcement agencies are taking on in the United States, and the increasing use of legal processes other than the traditional criminal justice system to achieve policy goals. There's an important point I'll make at the outset. We are going to talk about how government organizations can abuse power and their monopoly on the use of force, and we're going to talk about how removing checks and balances can take a country down the road toward unrestrained government power. That's going to involve some historical comparisons. We may talk about historical authoritarian governments, and we may also talk about the Church Committee and the early days of federal domestic security here in the United States. This is not in any way intended to equate any of those with each other, or to equate current events with past ones. But at the same time, we cannot ignore the lessons of history. We can note, for example, that a government actor is taking an action thematically similar to a past regime without accusing anyone of being just like that past regime. 

So, I'll set the scene for about 20 years, I was a prosecutor and National Security attorney in the government. I did a lot of criminal cases with the FBI and some with HSI and other DHS agencies. I also did some interagency work looking at national security issues relating to refugees, and I collaborated closely with DHS, the FBI, the State Department and others. And finally, I spent several years conducting oversight of the FBI and U.S. intelligence community agencies that operate under guidelines established by the Attorney General. That's where my perspective comes from. 

This past May, Aziz Haque published a piece in The Atlantic called America is watching the rise of a dual-state. The idea of a dual-state was first described by Ernst Frankel in 1941 and his thesis was that a dictatorship that arises in a capitalist country has to accomplish two things with its legal system. First, it has to target its enemies with a free hand. Second, it needs to keep things running normally for most people and businesses. As long as the system most people are used to stays in place for most people, what Frankel called the normative state, an emerging authoritarian government could shift its enemies into an alternate system, which Frankel labeled the prerogative state, and pursue its policy goals against those enemies in parallel with but outside the normative state. 

So, what does this have to do with ICE? First off, I want to be clear that I'm not likening individual ICE agents to historical examples of secret police officers. I sincerely think that most federal law enforcement officers are patriots and take their jobs for good reasons, and we'll talk about that in a bit, but the article made me think about the difference between the FBI and DHS law enforcement agencies, structurally. The FBI is not perfect, but after 100 years, including substantial abuses of power, internal and external investigations and rounds of reform. The FBI is a modern, well-regulated law enforcement and domestic security agency. 

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 DOJ and the FBI from the White House applied to DHS, which was only put together in the immediate aftermath of September 11. 

Putting all this together, we have to ask ourselves whether the FBI, which has generally operated in a non-political consistent manner, is operating within the normative state, while the ramp up of immigration enforcement forces, which are separate from the ordinary law enforcement and which operate in a less independent court system, create the risk of a parallel, prerogative state. 

Again, I don't want to draw direct comparisons to horrible moments in history, or suggest that anyone is intentionally driving us in that direction. But systems and institutions exist for a reason, and when an alternative system is presented or expanded, we need to look at why, how it functions, and what potential there is for things to go wrong. 

With that brief introduction, I'll introduce our guest, Steve Cash. Steve has had a wide range of interesting jobs in government. He started his career as an assistant district attorney in Manhattan. He then joined the Central Intelligence Agency's Office of General Counsel, where, among other things, he focused on CIA's interactions with law enforcement in national security matters. Steve then moved to CIA's Directorate of operations, where he served as an intelligence officer. After that, Steve worked on the Senate Select Committee on Intelligence under Senator Feinstein, and he worked on post 911 legislation, including the establishment of the Department of Homeland Security the Director of National Intelligence, and also worked on the USA PATRIOT Act. 

I don't have time to list all the other jobs in government Steve held, but after a stint in the private sector, Steve returned to government service during the Biden administration in DHS office of intelligence and analysis as senior advisor to the undersecretary for intelligence and analysis, he served until January 20th of this year. Since then, Steve has started serving as executive director of The Steady State, an organization of former national security officials that promotes democracy, rule of law and national security. With all of that, Steve has a lot of insight into law enforcement and national security within the U.S. government, as well as familiarity with law enforcement and security practices in other countries. Steve, thank you for being here.

Steve Cash:

Pleasure to be here, David, and thank you for having me looking forward to this discussion. You're hitting all of the kind of issues that both get me up in the morning and keep me up at night. 

David:

Steve, apart from your government service, tell me a little bit about The Steady State. What is that and what's your role?

Steve:

Well, I'm the Executive Director, which sounds impressive. We are a group of formers, mostly senior from all around the national security community, including the Department of Homeland Security, FBI CIA, all of those three letter agencies. We've come together because we believe there's an existential threat to American democracy. We want to help America. Think about this, understand what's at risk, understand the danger we are in, and frankly, get back to a functioning democracy that respects rule of law and civil liberties. You can find out more about us on our website, www.TheSteadyState.org, we're on this various social medias, Substack, Bluesky, Twitter, all of those, so you can read what we're saying. You can hear us speak. And we hope that we can help Americans understand a little bit better about what we know about our own national security community and what we learned from looking at other countries and what they have faced when grappling with how to be a democracy in a dangerous world.

David:

Well, look, the new budget has been passed, and it looks like ice in particular will have some money to spend before. We dive into what they might do with it. Can you give us an overview of what ICE and HSI are within the Department of Homeland Security?

Steve: 

Well, let me start with what is the Homeland Security Department, and how was it set up after 911. 

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. There are a bunch of components that exist semi-independently within the Department of Homeland Security. I'll probably come back to that, because 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. And I use that term because Ministry of Interior is what the Homeland Security agencies were called in the former Soviet Unions and in the Soviet Union itself--often associated with rather scary security services, which were usually part of the Ministry of Interior. Often paramilitary, they looked like armies, they had weapons like armies, they were big, but they were at home. And when you think KGB or Stasi, the MUP in Serbia, that's the internal service of the Ministry of Interior that often combined people who looked like soldiers, people who looked like and acted like intelligence officers, as well as you know, customs officers; “open up your bag, please, I got to see if you paid your tax.” It varied. 

We were worried about that. 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, reports to the Secretary of Homeland Security, but has sort of an independent power base. They've been picked by the president the United States, after all, and they've been confirmed by one of many different committees up on the Hill, and they retained a lot of their internal identity now that had valuable impact. In other words, it kept the department from becoming a Ministry of Interior. I can tell you, 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've we have been. ICE itself, and I'll end, what I'm saying here is where we are now, and I have a lot to say about it, but ICE was budgeted and acted a lot like a law enforcement organization, although a lot of what it did was regulatory, not law enforcement, in the sense that most people think about it--arrest a criminal who's presumed innocent until proven guilty before a jury and then will be sentenced by an Article III judge who has a lifetime tenure after being found guilty beyond the reasonable doubt by a jury of their peers. Most of what ICE does is pick up people, take them into custody and run the system that implements the regulations governing immigration, and that means, making a decision to send the person back, or working with another part of the department, USCIS, Citizen and Immigration Services. They're the people who can make you a citizen or give you a green card. They call it benefits or grant asylum. Together, they're the mechanism that deals with people coming into the United States. 

And it's regulatory. It 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 judge judges. They're called immigration judges, but they're not article three 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. I'll get this conversation started by the budget, because ICE, which was-- looked and sort of smelled --more like a law enforcement organization that badges and guns and handcuffs and often dressed in plain clothes, and sometimes had a uniform. So, they they wouldn't be all that unfamiliar to regular Americans, if you've ever dealt with FBI agents or local police. 

Well, they have a budget that's now bigger than all but six armies in the world. And if you are watching them on TV now, they're increasingly starting to look and act and be like, have tactics like, dress like, and are armed like an army. And they're big. They now have a budget bigger than the Marine Corps and bigger than the FBI, and while they are still implementing regulations, even the the bare minimum that we saw up until recently, administrative law judges, for instance, process that doesn't quite make it to court standards, but was due process, has been largely--although with a lot of ambiguity--replaced by what appears to be peremptory and summary decisions. And in fact, I think yesterday, the Justice Department, DHS, excuse me, issued a memorandum saying the new procedures you have: if they pick you up, they can give you six hours notice, no lawyer, and put you on a plane to any third country in the world. And the you in that sentence without any process, at least in my view, can be me or you. I'm a U.S. citizen, but if you pick me up and gave me six hours to prove that I was a U.S. citizen, I don't think I could do it. Think I have a passport around, not quite sure where it is. Sure, I don't have my birth certificate. Could get my mom on the phone. She would say I was born in New York, but she may not answer the phone. She's 90 years old.

David:

Let's hope it doesn't come to that. 

Steve: 

I hope it doesn’t. 

David:

A lot there to unpack, for sure. Let's start. Let's start just organizationally, and maybe we can move down to more tactical questions. You talked about the creation of the Department of Homeland Security, consolidation of different agencies and offices within DHS. So ,DHS, I mean, most people listening will understand: 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. 

David: 

Even before we get to the heavy-handed role that I would have as a prosecutor, 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: 

Yeah, well, there’s an exception to that. Let me talk about that but just in a second. I want to add something to what you 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. 

So it's not just keeping the public happy and legitimacy and confidence in the FBI. It's because Attorney Generals, one after another, after another, and the people who work for them, and FBI directors and their agents, one after another and after another--I know some Americans won't believe this, but it's been my experience: I've worked with a lot of FBI agents. They really believe in this, or they have they believe that civil liberties are important. They believe that Americans should not be afraid of the law enforcement agents of the federal government. They believe in in the trial by jury. They all of that. It's not like you had to impose the attorney general guidelines on an unwilling bunch of, you know, warriors who are just being barely restrained. It's a real consensus thing. 

Now, my pushback a little bit on you is in the area where I worked. I worked in the Office of Intelligence and Analysis, which is one of the two parts of DHS that are part of the intelligence community. And we are, in fact, governed by Attorney General guidelines-- a different set. They also happen to be called the Attorney General guidelines, just so everybody can be confused. But it's a different document with the same title that governs the intelligence activities of those elements of the intelligence community, and there are 18 of them, some of them you're familiar with--CIA FBI, a part of the FBI, at least, NSAm  DSA-- there's a whole bunch of three letter agencies.

David: 

All right, other than acting in an intelligence capacity, whatever the contours of that, are ICE agents as HSI agents in their tactical day to day operations are generally not accountable to the Attorney General the way an FBI agent would be. And at the same time, 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 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.” And the FBI would say, “we defend the nation,” and they have been pretty consistent on that, particularly in the post-Church, and you're leaving out poor Congressman Pike. You can't leave poor Congressman Pike. There were actually two committees, Church and Pike, and if you don't want to get yelled at by the grandchildren of Pike, you gotta say Pike too. 

And you're right, this idea that there was a separate mission which sometimes made its way into sort of ranks. The White House doesn't, well, up until recently, the White House doesn't just call up the Attorney General and say, “go arrest that guy.” I think when you were at NSD, you would have had a heart attack if you got a call from the Chief of Staff to the President who told you what to do with the case. I mean, your head would explode. Am I right about that head exploding?

David: 

Yeah, you know, there, there was a documented and careful separation, at least at the case level, the tactical level, between the White House and the Department of Justice, And yeah, I don't know if that was ever in place between the White House and DHS, but I think there just isn't that tradition of independence. And DHS, frankly, serves a different function. You know, you don't have that separation between the White House and a lot of parts of the executive branch, and that's by design and appropriate. 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. In addition to that, congressional oversight, which brought in sort of extra committees who could look at what we were doing. So, for instance, on the Senate side, there's a Homeland Security and Government Affairs Committee, but there's also a Judiciary Committee and a Senate Select Committee on Intelligence, all of whom would say they have oversight to make sure that the department and its constituent parts are not overstepping the bounds--are not doing what we were afraid they would do. 

And I will tell you, through the early 2000s, we actually didn't give all that much thought, or maybe not as much as we should have to how this new department could be abused by a President who was interested in going after enemies, or going after domestic enemies. The vision was, I mean, I was part of it, I've worked on these bills, and then in the years after, and so it's al Qaeda, al Qaeda and al Qaeda. And then they were, you know, every now and then a new terrorist group would pop up, and we'd sort of add them to our litany of why we exist. But that's why we existed, and the Department's intelligence role was really seen as being a conduit connection to state and local officials with Homeland Security responsibilities who needed to understand the scope and direction and vector of the danger from, for instance, al Qaeda.

David:

So okay, so we have kind of institutional differences that we've talked about, where the principles of each agency have different relationships with the White House, the agents themselves have different relationships with guidelines enforced by the Attorney General. 

You, mentioned the difference in the court systems that that each are involved in. And to be sure, ICE and particularly HSI, a bunch of their cases do end up in the 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. 

Criminal justice system, as our listeners know, plays out in Article III courts: a separate branch of government operates the courts, the judges have lifetime tenure, they don't answer to anyone in the executive branch. But immigration courts are different. 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. 

David: 

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 the 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” stand 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 role, 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. 

You mentioned the independence of the judges. I mean, the entire ALJ class--immigration judge class, I should say, they prefer to be called immigration judges--as I understand it, was fired. The entire most recent class. Everybody. To be replaced by immigration judges, more chosen by the Attorney General. I'll leave it at that. Very, very different systeml I know we have lots of lawyers listening to this. When a federal district judge says, all of us who appear there, we jump. The only question is, I can I stay within the well before I'm jumping? Not the same in the removal world and the rules are much freer.

David:

So let's kind of sum it up there, then, in terms of distinctions we have. We have ICE  being very large. We have the lack of oversight that we've talked about, you know, in terms of being answerable to the Attorney General. Then we take out also the kind of traditional role that prosecutors in the criminal justice system play in terms of imposing rules and consequences on the conduct of law enforcement officers. And then an adjudicatory system that functions very differently. There's far less autonomy on the immigration side, and the consequences, then, the output of all that, the consequences are very different. 

You know, if someone loses in the immigration system, they are-- they can be detained for some time. They can be deported. They can, as we've seen, they can be detained under some pretty onerous conditions overseas. But you know, they're not technically sentenced to prison within the United States. It's not a criminal sanction. And I wonder if segregating them from the country, deporting them or detaining them outside of the country, it takes them out of view. It takes them out of view of the country at large. People may notice people missing in their own communities, of course. But it's a different kind of sanction, and it's something that may not be as visible when it when it takes place off of U.S. soil. 

So when we look at this in the context of the of the Big Beautiful Bill, and we look at this in terms of ICE’s increased visibility, increased activity, increased use of ICE to promote domestic policy priorities, what do you see on the horizon with this substantial increase in funding, and what risks do you see ahead?

Steve:

Well, first, I think it's becoming increasingly hard to call them law enforcement or officers. We have lots of people around the United States who work for governments, who impose and carry out regulations. You go to the Department of Motor Vehicles and they take your license away, you wouldn't call that a law enforcement officer. And as you get farther and farther away from sort of the criminal law, it becomes harder and harder to say that they're law enforcement officers, as opposed to something else. 

The second thing that's happened, and you alluded to this, is with the rapid increase of in size and the focus on paramilitary, armament tactics and approach, my worry is we're increasingly not only making it less meaningful to call them law enforcement officers, but it's becoming more evidently inaccurate.  

They are more of a domestic paramilitary force or military force. At some point it becomes odd to say: “you're not in the criminal justice system, and we're not sentencing you to prison and we're not imposing any criminal sanctions, but we're going to put you in a locked cage in the middle of the Everglades for any amount of time, perhaps the rest of your life, we have no idea.” Or “we're going to send you to a foreign country, not repatriate you,”-- which is traditionally what deportation meant, “you know, you're going back to Ireland, enjoy the green”--we are sending people explicitly to be kept in foreign prisons, again, with as far as I can tell, as long as the foreign government is interested in keeping them. It's becoming increasingly difficult to say, “no, we're not imposing any sanctions. We're not sentencing them to prison. We're just putting them in putting them in a prison for a long, long time, but they're not sentenced.”

 Now, what I think some scholars would say, is that when you start putting people in places that have locked doors with the locks on the outside, and you don't call it a prison, and you don't say they're convicted, there are other words we use for that. So, yeah, it's very concerning. And when that quasi military—paramilitary—entity is so well funded and so big,

David

All right. So, we have, you know, substantial risk, we see arising from rapid expansion, rapid funding of this organization that already seems to be operating in some ways outside of the norms that we have established. They act in some ways like law enforcement officers, but they're not operating within a law enforcement system so much. And at the same time, I mean, I think everyone would agree that there is an important role for enforcing the immigration laws of the United States. And, you know, there's, there's a risk, I think, of delegitimizing an appropriate mission through overreach or through inappropriate targeting.

If you were, if you were back on the Hill, Steve, and you were advising a senator, or if you were a senator whose party was in the majority, what would you what would you be thinking about in terms of guardrails? What would be, what would be a way to let ICE do its important mission without being susceptible to being tasked to make large shows of force to promote policy goals, or without being viewed as an alternate domestic security organization.

Steve:

Well, I do a couple of things. I pull up and dust off the immigration bill that almost passed that was, at the very end, then President Donald Trump killed. I think that was a real good start to address some of the problems that clearly existed in the immigration system. 

Second, I would say, “hey, I think Church and Pike, and then the subsequent years, the SSCI and the House Permanent Selection Committee on Intelligence, they sort of got it right.” And I'd say, “let's do that here.”

I would look to the Attorney General to guide anybody in the federal government doing law enforcement. I think that system worked. I would definitely do that. 

I would recognize that no matter what your perspective is—and I know we always hear that, “oh, open borders people,” I haven't met any open borders people, I'm sure there are some, but I don't think I've met any—but I think we'll all acknowledge that there are a lot of people who want to come to the United States desperately, and some of them are bad people, and some of them are scofflaws, and some of them don't want to come through the system. We have to accept that, and we have to pay the funds for immigration judges, for a number of the beds that we need to house the people who really need to be kept in custody; not sort of everybody who's picking lettuce in a field and someplace in California. So we have to, we have to suck up to that. And we have to recognize that the there's elements of how we decide who gets to come into our country and who don't that seem inconsistent with American values, and wrestle with that. 

And then finally, we have to understand the pressures that are pushing people to come to the United States: instability in Latin America and South America, warfare in the Middle East. And, you know, those are issues that are systemic. That's what our State Department's for. Sometimes that's what our Department of Defense is for. That's what diplomacy is for. That's what international economics is for. And I mean, you know where I'm going on this. We just, we just fired a third of the people at the Department of State whose job it is to try to think about how we can keep their from being pressures from overseas, to have people desperately try to get into this country. So it's a whole government approach that's necessary. And I of course, say more oversight. I like the idea of me being a senator. I'd have a lot of hearings, and I'm gonna make myself chairman to the committee.

David;

No doubt, no doubt. And look, it's a good point that we can't, we can't pin all of the immigration problems facing the United States on ICE, and certainly we don't expect ICE to single handedly solve it. But I think the kind of kind of organizational and tactical oversight and accountability measures that you talked about would certainly, would certainly be a good way to bring under more transparent oversight, the activity of people patrolling the streets, as you say, with guns and handcuffs and badges, just like FBI agents.

Steve:

I can tell you, by the way, I do have to add this, something you said at the beginning. I work with a lot of ICE agents when I was when I was at the department. I know they're being portrayed in the press now as sort of bloodthirsty, jack-booted. That was not my impression. They recognized how hard this was. They were very focused on finding scarily bad people. And there are scarily bad people who came into the United States. I didn't meet a single person who, I think, who would have expressed comfort with what we're seeing now. They were good people who had a really hard job. They knew it was hard, and they took it on. I don't know who's out there now, I don't know who they're going to get to be. I don't remember, they want to hire 20,000 new ICE personnel in like, the next two weeks. I don't know how that's possible. This is not about ICE being bad. 

David: 

Right, it's not about ICE being bad. It's certainly not about ICE agents being bad. I think it's about a large armed part of the government that has grown in mission, grown in size, grown in resources. And you know, we've seen how agencies operate without appropriate oversight in the past, and we have an opportunity to take a look at that now here, whether guidelines should be implemented, and what we want government to do to make sure that important priorities are pursued, but in a way that doesn't raise some of the risks that we've talked about. 

This episode was hosted by me, David Aaron, and produced by Maya Nir, with help from Isaac Rubinstein, special thanks, of course, to our guest, Steve Cash, you can read all of Just Security's coverage of DHS, ice law enforcement and oversight on our website. And if you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.