Unmonitored Detention Centers: An Abuse of Enforcement Power

Recently I’ve been thinking a lot about immigration detention centers. Why are they largely unmonitored and why doesn’t our political democracy care enough to find out what’s going on?

Oversight of immigration detention centers falls under the jurisdiction of Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security. ICE is an enforcement agency tasked with “protect(ing) the security of the American people.” Its methods leave me wondering at what cost it will seek to carry out this initiative, and what casualties will result.

ICE law enforcement practices are not governed by constitutional law, at least to any tangible extent. The U.S. Constitution protects U.S. citizens. It does not protect citizens of other countries and it offers only limited protections for foreign citizens who visit the U.S. I think most of us acknowledge that this makes sense. After all, isn’t that why we encourage foreign residents in the U.S to apply for citizenship? So that they can enjoy the protections afforded U.S. citizens under the Constitution?

So far, so good. But what I can’t understand is why there doesn’t seem to be a middle-ground between being protected by the Constitution and having any rights at all. In a country that ostensibly holds governmental accountability in high regard, shouldn’t we offer non-citizens regulations that at least serve the spirit of our Constitution?

U.S. citizens who are arrested for the alleged commission of a crime have the right to an attorney. They also have a right to a phone call, in order to contact an attorney. U.S. citizens accused of committing a crime are imprisoned in federal, state or local penitentiaries that are required to provide certain basic human services, such as food, access to water, a toilet and a bed.

These prisons are listed in the phone book.  If you want to arrange to visit a friend or relative who is being held in jail, you simply need to call the prison where they are being held and find out what the visiting hours are. You can Google-map the prison, or, if you just can’t be bothered, you will probably see signs directing you while you are driving on the freeway.

All of this sounds pretty familiar, right? And I think that most of us don’t pause too long to consider why our criminal justice system is relatively transparent, and why it offers the accused certain basic protections. Many of the rights afforded to individuals charged with committing a crime are the product of impassioned fights fought when this country was still in its infancy. To many, the reality of a justice system that does not offer these basic protections is no longer a threat worth contemplating.

Except that, contrary to every principle that our Constitution defends, we are in the process of building a parallel justice system that offers no rights to the accused and no transparency whatsoever.

Foreign citizens who are arrested in the U.S. for allegedly failing to hold lawful immigration status do not have the right to an attorney. In no circumstances will an attorney be provided free of charge, and in many circumstances detained immigrants will find that they do not have any access to an attorney at all. Immigrant detainees have no right to a phone call.  They may be held in detention centers that are unmarked and unknown to Immigration Attorneys, Immigration Advocates and even to the residents of the community that serves as host to the facility. They may be held in facilities that have no beds or chairs or access to toilets. They may be held in conditions where they are not fed, and where they have no ability to exercise, or even so much as move their limbs. These prisons may not be listed in the phone book, and since the facilities are often unmarked, if someone outside the facility did somehow realize that a friend or relative was incarcerated there, they would find it difficult to locate.

And this parallel justice system continues to grow, un-checked, because the incarcerated prisoners are not U.S. citizens.

Detention centers that are unmonitored and completely outside the scope of any regulatory oversight undermine the principles that underpin our country’s concept of social justice. We might not be able to viscerally remember why it is good to have transparency in our country’s law enforcement system, but we know it is good.  We believe that this transparency somehow distinguishes us from countries that are known for perpetual human rights violations, countries regularly monitored by agencies like Amnesty International and our very own State Department.

I am beginning to wonder how we can bear the hypocrisy of pointing our soiled finger at countries that do not provide basic human rights protections, when in our own country, shameful abuses are taking place against a class of prisoner that has little recourse to defend itself.

Examples of such abuses lie beneath a veil of government reticence and public indifference. In 2008, a Chinese computer engineer was dragged from a Rhode Island immigration jail and mocked by guards as he screamed in pain from undiagnosed cancer and a broken spine. ICE ignored his requests for treatment, and it took an unusual court-ordered injunction to have the man hospitalized. He died shortly thereafter. In another case, a Salvadoran detainee held for two years in a California detention center was denied a biopsy for a painful penile lesion, though government doctors suspected the cancer that eventually required amputation of his penis. Stories of immigrants who have “disappeared” in the network of ICE detention centers are harder to track.

We must do something to make ICE accountable for its detention practices. If we are unmoved by the knowledge that the U.S. government is committing human rights violations, or that we are allowing our government to violate the principles that serve as the underlying foundation of our system of government, then let’s consider that we are heading down a slippery slope that will ultimately affect U.S. citizens as much as it affects the unprotected immigrant.

No agency tracks incidents of “accidental” incarceration of U.S. citizens in immigration detention centers, so statistical totals are not available; however, anecdotal reports show that individuals with Hispanic ancestry have good reason to fear unlawful imprisonment at the hands of ICE, regardless of holding U.S. citizenship. And ultimately, no U.S. citizen can successfully refute a charge of failing to maintain status unless he or she is carrying a passport, certificate of citizenship or birth certificate, or is able to persuade a sympathetic officer that a mistake has been made. How exactly is a U.S. citizen supposed to convince an ICE officer of his citizenship if he has no access to an attorney, is not allowed a phone call, and if none of his friends or family know that he has been detained, let alone where he is being held?

There is no federal database that contains the names of all U.S. citizens, and ICE and the other agencies that fall under the umbrella of the Department of Homeland Security are notorious for misplacing files and records, and for slavishly obeying name checks, even in the absence of any information that confirms that the accused is, in fact, the same person as the “flagged” individual whose name appears in the database. The practices that justify this parallel justice system may be targeted at unlawful immigrants, but its affects will continue to be felt by citizens and non-citizens alike.

So OK, the U.S. Constitution does not protect foreign citizens. But shouldn’t foreign visitors in our country be regulated by laws that at least operate in the spirit of the Constitution? And if your answer is no – because of national security, or pragmatic considerations, or a desire to scare the hell out of people who commit immigration violations- then shouldn’t you at least pause to consider that in denying inalienable rights to others, you put your own rights at stake?

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