ICE's Push for a Seat at the Intelligence Community's Table

"There's a reason you separate military and the police. One fights the enemies of the state, the other serves and protects the people. When the military becomes both, then the enemies of the state tend to become the people." - Commander Adama, Battlestar Galactica

In December of 2002, a militia operating a checkpoint in Khost Province stopped a local taxi driver in his early 20s named Dilawar.  The militia turned Dilawar and his three passengers over to US personnel, who incarcerated the four at the Bagram Collection Point.  However, Dilawar and his passengers were detained solely on circumstantial evidence: the militia discovered items in the taxi and on the passengers which could have theoretically (but unlikely in reality) been used to conduct a rocket attack on Camp Salerno which had occurred earlier that same day.  Those items were the entire basis for detaining Dilawar and his passengers.  Additionally, US officials began to suspect the commander of the militia that had captured Dilawar and the others was actually behind the attacks, and had been covering his tracks by accusing innocent Afghans of his own crimes.  I brought up this story because it serves as an illustrative "absolute worst case" example of what can go wrong when the line between intelligence collection and law enforcement gets blurred, and it's relevant now because a recent news article has reported that Immigration & Customs Enforcement (ICE) wants to become a part of the US intelligence community.  The article isn't clear on exactly what kind of role ICE envisions for itself, so there's a lot of room for interpretation; however, in most scenarios it is an awful idea.

I didn't know a lot about ICE or what it does, beyond the vague opinion I formed based on news stories about it.  So, I went to its official website to learn more about it, and from what I can tell, the organization's core mission is to investigate any and all individuals and goods that have entered or exited (but mostly entered) the country unlawfully.  That's a pretty broad mission, and it covers these things, among others: immigration (obviously), human trafficking, gangs and organized crime, worker exploitation, fugitive extradition, drug smuggling, illegal weapons and ammunition, black markets, and of course, antiterrorism.  ICE's workload practically guarantees that it needs access to at least some of the intelligence that agencies such as the CIA and NSA collect and disseminate.  There are already (or should be) processes in place for that kind of thing, though.  For example, if the CIA comes across something that the DEA might need, there is most likely a DEA liaison working at a CIA office somewhere; all the CIA has to do is redact the intelligence so that anything the DEA only receives what's relevant to its specific mission.  Most intelligence and law enforcement agencies, if they're smart, have coordination offices set up to handle this sort of information-sharing.  I don't really have a problem with that kind of cooperation, but that's the best-case scenario.

A second scenario that I consider to be likely is that other agencies provide ICE with intelligence it shouldn't see, in ways that violate individuals' rights.  That's not so farfetched.  There's a shady-as-all-hell technique called "parallel construction", in which law enforcement officers conduct investigations and make arrests based on unlawfully-obtained intelligence (say, an NSA intercept), then fabricate a legal rationale for the investigation or arrest to conceal the fact that the intelligence played a role in the process.  According to TechDirt, the DEA has been using the practice for quite some time; and if ICE gets a place at the intelligence community table, it will very likely start doing the same thing.

But even if ICE doesn't start engaging in its own parallel construction, there's a good general reason why it should be kept at arm's length from the intelligence community.  The process of intelligence collection is vastly different from a law enforcement investigation.  Collected intelligence isn't required to meet legally-mandated standards for admissibility in a courtroom, nor is there a defense counsel to attack the prosecution's argument.  Concepts like "fruit of the poisonous tree" and "unreasonable search and seizure" don't constrain intelligence collection the way they do law enforcement investigations.  And while good intelligence is provable, it doesn't need to be.  Fairly often, the acceptable standard for intelligence is that it's plausible: the source is reliable, the intelligence has a ring of truth, and it dovetails with other available information. Intelligence-collection procedures don't transfer very smoothly into the law enforcement world, though; and that's by design.  When you receive tactical intelligence about an enemy tank battalion half a mile away or that a terrorist group wants to blow up a crowded concert venue, you don't evaluate it as if it needs to withstand scrutiny in the legal system. That's why there needs to be a very high wall dividing the two fields of intelligence collection and law enforcement.

ICE's current conduct is another reason to be uneasy about this push to join the intelligence community. ICE ultimately answers to the president, so its aggressive anti-immigration stance are meant to reflect the current president's political views.  That's normal in any boss-subordinate relationship.  However, rounding up individuals who have been upstanding and productive members of society, such as highly-educated chemistry teachers and combat veterans, shows extremely poor judgment and is obviously a way to pad ICE's productivity numbers, therefore making it appear useful.  These people being apprehended and deported are threats to nobody, and the country would be better served by ICE targeting the hardened criminals; but ICE is sucking up to the "boss" and also taking the lazy route.  Additionally, Congress still retains authority over ICE in a few important ways.  It ultimately approves or rejects ICE's budget, and it is responsible for crafting any legislation that would allow ICE to join the intelligence community.  Now, Congress is currently controlled by the GOP, so ICE's hardline stance is likely a reflection of that; however, the Democrats seem poised to retake at least one Congressional chamber this fall, so if ICE's aggressive stance is meant to curry political favor, it had better hope that Congress passes favorable legislation very soon. (Seeing how the government seems to be shutting down every other day lately, I wouldn't count on that happening.) It's such a shortsighted move that from a political perspective I'm surprised ICE is doing this.

The bottom line is that intelligence agencies operate without having to consider things the rule of law mandates, because their work rarely sees the inside of a courtroom.  That's necessary, considering an intelligence collector's mission. But when a law enforcement agency, which is duty-bound to respect the rights of the accused and obey laws concerning evidence collection/discovery and due process, wants to move closer to a world with a more permissive set of rules and norms, it is disabling a vital mechanism for accountability.  That should raise a serious red flag, especially after ICE's heavy-handed methods of late.

ICE doesn't need to build ties with the intelligence community beyond the intelligence-sharing relationships that already exist.  Period.