ICE FOIA Budget Decisions Make Documenting Increasing Detention Harms Amidst Rising Detention Numbers in Real Time Impossible
With ICE’s Deadly Detention System Back at Pre-Covid Levels, Documenting Deadly Conditions Is Vital
Ramping Up Detention of Humans and Information
ICE is now imprisoning pre-pandemic levels of humans in its fatal1, for-profit2, secret3 migrant prisons, according to a new The Transactional Records Access Clearinghouse (TRAC) summary of ICE detention data released this week.
In a move remarkably similar to the Trump’s regime’s serial failures to make timely public releases of information about deaths in custody, and to the Biden administration’s earlier failure to do the same, ICE curiously released the Congressionally mandated data just hours after TRAC’s Austin Kocher pointed out it was missing on Monday.
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As we approach a looming federal government shutdown, one wonders how long the public might have gone along in the dark about Joe Biden’s ICE returning to detention numbers resembling the bad old days of Donald Trump’s ICE. The more humans ICE locks inside these spaces, the more likely it is that some of those humans won’t make it out alive. Death is not a relevant concern to the senior executive service professionals and political appointees at ICE who’ve filled and budgeted for the cages. It’s not a relevant concern for the Congressional appropriators who fund them, either: You can keep your ICE contract if the agency finds your negligence contributed to multiple humans’ deaths, because those findings are not included in the inspections Congress mandates facilities pass in order to maintain funding.
Even where ICE DHS-OIG urges ICE leadership to stop placing humans inside a facility, and even some at ICE concur, as Reuters reported today, and then a human dies a preventable death, ICE leaders and senior Biden DHS appointees will not heed the consensus. They will not cut the contract, close the facility, and send people somewhere else. That’s because excusing preventable death is a known and accepted part of the US government’s deterrence-by-detention program. Detention serves the genocidal US deterrence policy. State-orchestrated death has always been an acceptable policy outcome under the logic of US deterrence policies. And today’s detention system is no different.
A system of sheltering people on the move that is life-affirming would not deter migration. This is because it would not limit due process enough to rapidly dispose of valid legal claims. And it would be deeply unprofitable.
This is what the FOIA records we’ve obtained and all other available evidence demonstrates. That is why the federal government refuses to maintain a system capable of answering our FOIA requests in a timely manner. By “timely” we mean released promptly enough to present the proof of what we find to the public and policymakers so that they might act on it as a current event, rather than an historical one. One thing we know will come out of a government shutdown is that agencies will use temporary furloughs to further, lengthy delays in FOIA responses.
Timely information about the rapidly expanding secret, for-profit, deadly ICE detention population will be practicably inaccessible to the public via FOIA. The Biden administration demanded nearly three quarters of a billion dollars in emergency funds from Congress to imprison migrants—something it has ample discretion not to do.
But ICE demanded zero dollars to rescue the self-admittedly underfunded ICE FOIA office. transparency program capable of showing the public what’s happening inside. For what it’s worth, the spending level that would clear the ICE FOIA backlog and return the agency to compliance with statutory deadlines is probably somewhere in the neighborhood of what ICE spent the last time its FOIA office got down to zero backlogged requests in FY15. Back then, it was $12.3M. ICE FOIA spent only $8.8M in FY22. We’re talking about five million bucks. And they won’t simply ask for it.
In the absence of a FOIA office capable of honoring our statutorily guaranteed right to agency records, the public and decision-makers will be kept in the dark about what our government is up to when its ICE detention numbers get up to 35,589.
ICE’s refusal to fund compliance with transparency laws is an invitation for abandonment of those laws by communities who might use government records to tell truths about this detention system. Those trues often uplift and corroborate the voices and experiences of people locked and suffering inside this system. And they offer a protective armor of facts to the families and communities ICE cages tear apart and impoverish. We will no sooner abandon these FOIA rights than we will abandon these individuals, families, and communities.
Mass, for-profit migration at pre-COVID levels produced hundreds of preventable deaths in custody.
Federal courts have repeatedly issued judgments against ICE for unlawfully withholding information about these deaths from FOIA requestors, with at least one finding the agency has a pattern and practice of failing to respond until it gets sued. ICE presently asserts in federal court filings that it lacks the capacity to meet FOIA’s time limits. But, as one federal court observed, the agency repeatedly refuses to request from Congress the resources necessary to bring itself into compliance. This is a choice. That choice is secrecy. It is not lawful. Yet it persists. Congress could intervene. Appropriate committees could amend FOIA to require regular, in-person oversight in the form of written and oral testimony subject to questioning by agency FOIA officers whose backlogs grow, or whose agency components are found by federal courts to engage in a pattern and practice of timing violations.