Related - "Dyncorp at the Border?":
by Robert Koulish
July 20, 2007
The post-911 immigration regime originates in 2003 when immigration control shifted from the Department of Justice to the new Department of Homeland Security (DHS). The Immigration and Naturalization Service was abolished March 2003, and its functions were transferred into the newly created DHS, in a merger of some 180,000 employees from 22 different agencies.
The DHS has a mission to
Following these shouts, in 2005, the new Border Patrol mission prioritized preventing terrorists and terrorist weapons from entering the United States, while also reaffirming the agency's traditional mission of preventing the entry of illegal aliens, smugglers, narcotics, and other contraband.
The immigration function of post-911 efforts to combat terrorism directed executive measures at non-citizens. Immediately following 911, President Bush issued the Homeland Security Presidential Directive 2, "Combating Terrorism through Immigration Policies," which began the process of locking immigration and security together bureaucratically. Subsequent measures included cooperation between federal and state enforcement of immigration laws; cooperation between federal immigration enforcement and the military along the border; the privatization of military and law enforcement functions; a substantial increase in the numbers of aliens who are detained for long periods of time and those who are deported from the United States for reasons that have nothing to do with terrorism; the use of secret immigration hearings closed to families, press, and public; secret movement of detained non-citizens to new venues without giving notice to attorneys; and use of ethnic and racial profiling.
The decision to include immigration within the securitization arsenal was no accident. Deepa Fernandes suggests that the first major step linking immigration to the war on terror occurred with the creation of DHS which would include the Border Patrol, and the Agriculture Department's Animal and Health Inspection Service fell within the purview of the new Bureau of Customs and Border Patrol (CBP) under DHS. Also within DHS are the Bureau of Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS).4
The Bush immigration control strategy created symbolic capital by using Executive Order 13260 (March 21, 2002) to establish an advisory council which would be reconstituted by statute in the Department of Homeland Security and called the Homeland Security Advisory Council (HSAC).
The HSAC has several subcommittees. The Secure Borders and Open Doors Advisory Committee (SBODAC) focuses attention on border control. Its mission is
Right-wing academics and think tanks have provided the intellectual capital for the development of DHS strategy. Specifically, conservative academics, think tanks, and technology corporations serve on SBODAC as well as on the Academe and Policy Research Senior Advisory Committee (APRSAC), all of which comprise as "the brain of homeland security strategy."5
As one might expect, the policies resulting from SBODAC meetings along the HSAC process, for example including US-VISIT, are replete with references to privatization and militarization -- enforcement, detention, inspections and services -- placing immigrants in the hands of private contractors, mercenaries, and prison guards.6
The Customs and Border Protection's Expedited Removal Program has contracted with Kellogg, Brown, and Root, the Halliburton subsidiary, to oversee the expansion of the federal government's capacity to detain immigrants. This $385 million KBR contract would set up temporary processing, detention, and deportation facilities. Indeed, the KBR deal is part of an extraordinary mad rush to build new private detention sites. Private prison companies are competing for an immigrant "super jail" facility (2,800 beds) in Laredo Texas.7 and in December 2005, Corrections Corporation of America (CCA) announced a contract with ICE to hold up to 600 immigrant detainees in Tyler, Texas.8
Privatizing immigrant detention is nothing new. During the early 1980s, the federal government began experimenting with incarcerating people for profit, using immigrant detention as battering ram. According to some, the private prison industry was born in 1980 during a fundraiser in Nashville Tennessee for then presidential candidate Ronald Reagan. The Chairman of the Tennessee Republican party and the Corrections Commissioner of Virginia and his counterpart in Tennessee together set up what became known as the Corrections Corporation of America (CCA). In 1984, CCA, the private-incarceration leader, cut its first deal with the federal government to operate Immigration and Naturalization Service detention centers in Houston and Laredo, Texas. When asked how to sell his product -- prisoners -- Tom Beasley, a CCA co-founder said,
What is new is the expansiveness of privatization after 911 and its use in establishing a social control apparatus which is ostensibly for non-citizens but is applicable to citizens. According to Fernandes,
It can only be good, with the focus on people that are illegal and also of Middle Eastern descent . . . there are over 900,000 undocumented individuals of Middle Eastern descent. That's half our entire prison population. . . The federal business is the best business for us . . . and the events of September 11 (are) increasing that level of business.
As an outcome, the private prison industry is increasingly in a position to direct immigration detention policy. The question remains whether private immigrant detention is a good thing for public law. Private detention facilities are one-stop shops for immigrant processing. The DHS contracts are to train and supply security guards and screeners and to build, manage, and maintain detention facilities. Security guards and screeners make decisions related to political asylum and other forms of relief from deportation, arrest, recommendations on relief from detention, and hold quite a lot of everyday power over the conditions of confinement within the detention facility. Guards have control over access to phones, lawyers, visitors, food, restrooms, and medical care. Given the logic of private prisons, for example, which is to keep its beds full and immigrants locked up, privatization threatens the legal integrity of immigrant processing, which until recently has been premised upon the idea that non-citizens should not be incarcerated.
When private companies have control over the custodial functions of government, they assume quasi-judicial responsibilities that affect the legal status and wellbeing of immigrant detainees, raising important questions. According to Ira Robins,
To what extent for example, should a private corporation use force -- perhaps serious or deadly force -- against a prisoner? It is difficult enough to control violence in the present public-correctional system. It will be much more difficult to assure that violence is administered only to the extent required by circumstances when the state relinquishes direct responsibility. Another important concern is whether a private employee should be entitled to make recommendations to parole boards, or to bring charges against a prisoner for an institutional violation, possibly resulting in the forfeiture of good crime credits towards release. By dispersing accountability, the possibility for vindictiveness increases. An employee who is now in charge of reviewing disciplinary cases at a privately run INS facility in Houston told a New York Times reporter last year: "I am the Supreme Court.12
Private guards wear badges, uniforms, carry guns, and drive cars with sirens; they make arrests, and, as far as the individual targeted by them is concerned, represent the coercive force of the state. They wield as much power as any state actor but this fact is not recognized in law.
According to Burdeau v McDowell,
Further, private contractors are not considered state actors for purposes of Bivens or 42 U.S.C. 1983 "under color of law" liability.1415 According to the Court, there exists no basis for filing a federal civil rights lawsuit under 42 USC 1983 against an individual who is not a "state actor." For example, according to the Court in National Collegiate Athletic Association v Tarkanian, the only proper defendants in a Section 1983 claim represent the state in some capacity, whether they act in accordance with their authority or misuse it.16
Tarkanian raises serious questions about accountability and liability issues related to conditions of confinement within private facilities. The Office of Inspector General Report in 2003 reported on serious infractions against private immigrant detention facilities, including routine abuse of basic prisoner rights, denial of attorney access, mental and physical abuse, denial of health and medical treatment, prison overcrowding, and a lack of showers and toilets. Inmates in public facilities have channels for redressing grievances though the Office of Inspector General (OIG) and litigation, but similarly aggrieved counterparts in private facilities are additionally impaired by the lack of such redress.
Another problem with privatizing detention is the secretiveness of the process. Screeners and guards make decisions with virtually no oversight. Interviews and hearings are closed to the public and family. Further, non-citizens are secretly shuffled from one detention facility to another around the country, without giving notice to family or counsel. This shell game has been documented and has non-citizens ending up in facilities long distances from legal counsel and family.
The Patriot Act gives the Attorney General broad authority to detain immigrants who endanger national security. Title IV of the Patriot Act introduced several amendments tightening the Immigration and Nationality Act. Section 412 of the Act authorizes the Attorney General to certify and detain non-citizens if he has "reasonable grounds to believe" that they are engaging, or have engaged, in a terrorist activity or otherwise endanger national security. The Act allows for detention for a period of seven days, after which the Attorney General must commence deportation proceedings, bring criminal charges, or release the detainees.
Even severer provisions originating in the executive branch make use of exceptional powers over internment. Department of Justice regulations issued on September 20, 2001 extend detention powers of immigration authorities17 and illustrate dangers associated with privatizing screening and detention. The regulations allow immigration authorities to detain non-citizens suspected of being in violation of an immigration law without charge for up to forty-eight hours and for an "additional reasonable period of time" in the event of an "emergency or other extraordinary circumstance." The regulations fail to define the terms "reasonable period of time," "emergency," and "extraordinary circumstance."18 "No link with alleged terrorism need be made."19 As Daniel Moeckli adeptly summarizes:
The immigration authorities may even indefinitely detain individuals who are not charged with any crime or immigration law violation and against whom no deportation proceedings have been initiated. The detainees do not have to be informed of the reasons for their detention and are not guaranteed a right to contest it.20
There is nothing discrete about such legislation and regulations. They are part of a larger effort to enhance executive powers and diminish judicial review of immigration.
Even more extreme are militarization plans to create contingency plans that could detain and deport large numbers of immigrants "at the command of the president." The plan contains echoes of Japanese internment camps during WWII, as well as contingency internment plans for Middle-Eastern non-citizens established during the 1980s. On October 17, 2006, President Bush signed into law the John Warner Defense Authorization Act. It allows the President to declare a "public emergency" and station troops anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities, in order to "suppress public disorder."
In a manner reminiscent of government raids preceding Japanese internment during WWII and other notorious raids against immigrant communities during times of national insecurity, the Warner Act would facilitate militarized police round-ups and detention of protesters, so-called "illegal aliens," "potential terrorists," and other "undesirables" for detention in facilities already contracted for and under construction by Halliburton. In January 2006, the DHS awarded a $385 million contingency contract to KBR, the engineering and construction subsidiary of Halliburton, to establish temporary Detention and Removal Operation (DRO) facilities. Under the cover of a trumped-up "immigration emergency" and the frenzied militarization of the southern border, detention camps are being constructed right under our noses, camps designed for anyone who resists the foreign and domestic agenda of the Bush administration.
Indeed privatization has extended well beyond incarceration, exacerbating concerns about accountability and the rule of law throughout immigration processes. Current proposals for guest worker programs, for example, are replete with privatization references. Rep. Mike Pence, an Indiana Republican, has proposed deploying private "Ellis Island Centers" in foreign countries for the purpose of recruiting and managing guest workers. Such immigration control mechanisms share proprietary interests with some of the Iraq war's more notorious privateers.
After more than a decade of border militarization with "Operation Gatekeeper" and "Operation Hold the Line," the deployment of the National Guard and plans for 700 miles of fencing, the federal government in May 2006 solicited bids from military contractors Boeing, Lockheed Martin, Raytheon, Ericsson, and Northrop Grumman, for a multibillion-dollar contract to build a "virtual fence" of unmanned aerial vehicles, ground surveillance satellites, motion-detection video equipment, and databases to store information of the identity of millions of non-citizens along the border.
Once again, such militarization is not new. What is new is the depth and expansiveness of the current practice. During the 1970s and 80s, the militarization of the border made do with Vietnam era technology. During the Reagan era, the INS introduced high tech air support, OH-6 spotter-observation helicopters from the US Army, night-vision and infrared scopes, and low-light television surveillance systems. Within short order during this time, the Border Patrol introduced SWAT teams, military trained and armed BP officers who ride in armored personnel carriers, shoot M-16s, and keep grenade launchers handy.21
President George H.W. Bush intensified border militarization. Emphasis on drug enforcement at the border resulted in the purchase and deployment of more helicopters and additional electronic surveillance equipment. Among other things, Bush established the relationship between INS and the military. This complicates the border control situation. While Border Patrol agents are trained to use minimum force and to protect the constitutional rights of the accused, the military ethic presumes guilt and responds to situations with overwhelming force.22 According to Anthony Romero, ACLU Executive Director,
In recent years, the military role in border security has evolved. Joint Task Force North, a military unit affiliated with U.S. Northern Command, has lent services to the BP, and state governors in Arizona and Texas have dispatched National Guard Units from their states to the border. In all, as of summer 2006, about 6,000 National Guard Troops are assuming surveillance and infrastructure duties from the Border Patrol. According to DHS spokesperson Jarrod Agen, the National Guard is being assimilated into the border protection apparatus and may assume surveillance responsibilities and intelligence gathering for the Border Patrol.24
In addition to the National Guard, in 2002, the Department of Defense agreed to deploy its initial 1,600 federal soldiers as deputized Border Patrol and Customs Service agents at our borders, bringing state-of-the-art military technology coming via Iraq. Indeed, the Boeing deal and deployment of the National Guard brings the war on terror home. On September 20, 2006, Boeing, a major aerospace, defense, and aircraft contracting firm, was awarded a three year $2.5 billion contract with the DHS to create a virtual fence along the US-Mexico border. Described by a Secure Border Initiative Network (SBInet) subcontractor as a combination of law enforcement and surveillance systems,25 this new SBInet project will include up to 1,800 radar towers along the border, motion detectors, and cameras which can spot people from 14 kilometers away; the system can transmit images to border agents. In addition, it will include plans to develop infrastructure and logistical support to be able to "remove all removable aliens." Boeing also plans to use unmanned aerial vehicles that could be launched from the backs of Border Patrol trucks.
Boeing plans to delegate some of its workload and authority to subcontractors including Unisys and a division of L-3 Communications Holdings Inc., Perot Systems, Lucent, and others. According to Unisys vice president of homeland security, Brian Seagrave, Unisys will be in charge of the SBInet systems engineering and infrastructure, configuring and installing several key software, including the "common operating picture," which Seagrave describes as SBInet's brain.26 Unisys' experience in this field includes police departments systems and a range of surveillance and detection contracts.
The virtual fence gets its cache from its ability to track non-citizens long after they pass through the border. It becomes a metaphor for the entire border industrial complex. It works in several different ways, each of which helps describe how the border industrial complex functions both overtly and surreptitiously.
After 911, the government hastened its efforts to track the entries and exit of non-citizens from particular countries. The "National Security Entry-Exit Registration System" (NSEERS) program was introduced in 2002 requiring non-citizen men age sixteen and over from twenty-five predominantly Muslim countries to register with the government. NSEERS legitimated the use of profiling by national origins, ethnicity, and religion as a tool of immigration control. A total of 290,526 people registered, including almost 86,000 men already living within the US. Any of them found to be out of status were subject to immediate deportation. Of the total, 13,799 were placed in deportation proceedings, and 2,870 were detained. The NSEERS program netted no terror-related convictions, but instilled a great deal of fear in immigrant communities around the country.
The origins of efforts to track entries and exists actually can be found in Section 110 of the US Illegal Immigration Reform and Immigration Responsibility Act of 1996, which mandated the INS to develop an automated entry-exist control system that would
After 911, the use of security technology was subsumed under the rationale for the war on terror, exemplified by the NSEERS program. The Patriot Act included entry-exit provisions as did the Enhanced Border Security and Visa Entry Reform Act of 2002. Provisions accounted for the introduction of biometric technology and a combination of facial recognition and electronic fingerprint scanning. Coming as part of the post-911 response, the Enhanced Border Security Bill passed Congress with no opposing votes.
By January 2004, the NSEERS Program morphed into the US Visitor and Immigrant Status Indicator Technology (US-VISIT). US-VISIT requires all foreigners entering the US on short-term visas to be fingerprinted and photographed and submit biographical information. The official purpose of US-VISIT is to "enhance national security" and "ensure the integrity of the immigration system." Data collection begins in consular offices with the collection of finger scans and digital photographs, which are taken again upon arrival in the U.S. for verification purposes. According to the Heritage Foundation,
When completed, it will record visitors through the use of fingerprint scanners and digital photos and will integrate existing databases to push good information across agencies. In this way, it will pick out people who are security risks, while cutting costs. . . .29
The Smart Border reach extends beyond the border. According Washington Technology,
The US-VISIT program is also experimenting with RFID (radio frequency identification), miniscule microchips (half the size of a grain of sand). The RFID tag can be read silently and invisibly by radio waves from up to a foot or more away, even through clothing. It can also link to medical records and serve as a payment device when associated with a credit card. RFIDS provide additional capacity for tracking non-citizens already in this country. They are being embedded in I-94 entry documents, passports, and border-crossing cards, which non-citizens are urged to carry with them at all times. The future use of RFIDS as an immigration control mechanisms was not lost of former Secretary of Homeland Security Tom Ridge who became head of Savi Technologies, an RFID design and manufacturing company.32
It is important to note that RFIDS and other forms of technology-based monitoring systems are easily transferable from US-VISIT to other immigration programs, for example, proposed guest worker programs. The RFID watchdog group, "Spychips.com," reported May 18, 2006 that the Board Chairman of VeriChip Scott Silverman
bandied about the idea of chipping foreigners on national television Tuesday, emboldened by the Bush Administration call to know "who is in our country and why they are here." He told Fox & Friends that the VeriChip could be used to register guest workers, verify their identities as they cross the border, and "be used for enforcement purposes at the employer level." He added, 'We have talked to many people in Washington about using it. . . .
The transferability of data from program to program is facilitated by post 911 databases that combine data from criminal and terrorist investigations at the federal, state, and local level and that is accessible in the private sector. Regrettably, data from US VISIT and from border-crossing card entries are entered into the same databases. Further, the portability of technology is facilitated by post-911 business alliances that comprise important parts of the immigration control policy-making and administration team. Consider the cost of the US-VISIT Program, projected at over $10 billion. Accenture Ltd. was awarded the U.S. VISIT prime contract on May 28, 2004 and has entered into subcontracts with Raytheon, a runner up on the virtual fence contract, SRA Intl., and the Titan Corporation.33 Together this corporate team calls itself the "Smart Border Alliance."34 Accenture is an offshore company headquartered in Bermuda, which allows it to avoid paying US corporate income tax. Republican strategist and Bush donor Charles Black lobbied on Accenture's behalf to gain the US-VISIT contract.35 The contract gave Accenture so much discretion with which to shape the program that the nonpartisan group Taxpayers for Common Sense likened it to a "blank check."36
Further, the Anteon Corp. (now owned by General Dynamics), which led an alliance that lost the US-VISIT contract, was instead awarded the contract to provide secure identification and border-control card technology for the Homeland Security Department's Bureau of Citizenship and Immigration Services, with optical card scanners and technology to read almost 20 million border-crossing cards and permanent residency cards.37 In August 2004, Anteon received a $74 million surveillance-training contract for the DHS' Bureau of Customs and Border Protection.38 According to Anteon president and CEO Joseph Kampf,
We think border crossing security will continue to grow over the next two years, perhaps becoming one of the fastest paced markets in the federal government. . . . The whole concept of validating who people are as they travel and cross land, sea and air will, I think, would be an explosive marketplace. It will be one in which we have a significant footprint.40
Finally, the Homeland Security Information Network (HSIN) was designed via contract by Man-Tech International. It is worth noting that Congressman Richard Renzi (R-AR), one of House's most vocal advocates for increased funding for the DHS, is the son of the ManTech executive vice-president Eugene Renzi.41 ManTech was charged with developing an information-sharing system which is called the US public and private partnership (US P3), which links public-sector agencies and private sector to
Regrettably, few people in America are aware of Accenture, Anteon, and Man-tech, let alone the power they wield to develop and implement immigration control policy. Given the power such companies hold over individual immigrants, one would think that immigration authorities would care to see that only well trained professionals had access to HSIN and could input data, which is not the case. One of the perks of privatizing is that the masters of this virtual domain are less accountable for mistakes and outright abuse. They would also be less likely to have the training required to avoid such undesirable outcomes.
Add Blackwater Inc. and DynCorp, private security firms that have run mercenaries in Iraq and New Orleans and are negotiating a contract to train U.S. Border Patrol officers, and you get a virtual fence that has private contractors, guns for hire, the National Guard, and Border Patrol welcoming newcomers at ports of entry. Few are well trained, fewer are accountable to the constitution, and some are not liable for the misuse of coercive force.
The relevance of smart border technology should not be overlooked. Ellis Island Centers and guest worker provisions all require SBInet technologies, not so much to keep guest workers outside the country but to keep them in. Although NSEERS and US VISIT exempted foreigners from countries that didn't require visas to enter the US, guest-worker and border-crossing provisions provide similar controls for Mexican non-citizens, using a combination of biometrics, facial recognition, and RFIDs, and with data being entered in increasingly integrated databases.
Thus suspected undocumented immigrants and suspected terrorists can end up in the same database, subject to the same investigation, pursuit, and conditions of arrest and confinement. As the lines are blurred between national security and immigration, technologies designed ostensibly for the war on terror are being used interchangeably to pursue visa overstays and unauthorized entries. The billions of dollars spent on homeland security since 911 have not made us safer but have dramatically amplified technologies of social control.
1 Deepa Fernandes, Targeted: National Security and the Business of Immigration (NY: Seven Stories Press, 2006).
2 John Parachini and Lynn Davis, Homeland Security: A Compendium of Public and Private Organizations' Policy Recommendations, RAND White Paper Series (2003).
3 See Barry Buzan, Ole Weaver, and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Rienner Press 1998).
6 Parachini and Davis, op cit.; Rey Koslowski, "Immigration Reforms and Border Security Technologies," Social Science Research Council, 31 July 2006.
7 Suzanne Gamboa, "TX: Advocates Decry Detention 'Gold Rush,'" Associated Press, 3 February 2006.
9 Fernandes, op. cit. Buzan, Weaver, and Wilde, op. cit.
11 Tom Turpel,
12 Ira Robbins, "Privatization of Corrections: Defining the Issues," 40 Vanderbilt L. Rev. 813 (1987).
13 Burdeau v. McDowell, 256 S. Ct. 464 (1921).
14 Section 1983 is the dominant Act by which inmates or victims of mistreatment seek legal redress for a wide variety of constitutional violations.
15 Richardson v. McKnight, S. Ct. (1997).
16 National Collegiate Athletic Ass'n vs. Tarkanian, 488 S. Ct. 179 (1988).
17 Daniel Moeckli,
21 Raj Dhanesekaran,
23 Patrick Yoest, "DHS Does About-Face In Backing Use of National Guard to Seal Border," CQ.com, 15 May 2006.
25 Patrick Wachter, "DHS Awards Massive Border Security Contract to Boeing," DataMonitor Computerwire, 22 September 2006.
29 Daniel J. Mitchell, "Protectionist Politics and Border Security," The Heritage Foundation, 19 August 2004.
30 Rosanne Gerin, "Accenture Taps Subcontractors on U.S. Visit," Washington Technology, 3 September 2004.
35 Sarah Posner, "Security for Sale," American Prospect Online, 18 December 2005.
37 As an example of portability, it is important to note that when Mexicans receive a border-crossing card, their data is accessible by US VISIT.
38 Cynthia Webb, "Anteon's Mid-1990s Planning Hits Paydirt," Washington Technology, 9 May 2005.
39 Nick Wakeman, "Want It Big? Start Acting Like It," Washington Technology, 10 May 2004.
41 UPI, "Inquiry Focuses on US Rep. Rick Renzi," Washington Times, 26 October 2006.
42 Lara Jakes Jordan, "Homeland Security Information Network Criticized," Washington Post, 10 May 2005: A6.
Robert Koulish is a political scientist and France Merrick Professor of Service-Learning at Goucher College. He has written extensively about immigration and human rights at the Mexican border and Hungarian Roma and minority rights and presently is writing about the corporatization of the public sphere.