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.

Fabricated Memos and Credibility Problems

The much-hyped Nunes memo became public a few days ago, and I've been noticing a very interesting reaction to it in various corners of the internet; specifically, a lot of people are buying into it, lock, stock, and barrel.  Now, the memo is obviously a steaming poo pile, but here's the thing: there are a lot of people who believe the memo to be true have a plausible argument for that belief.  I don't mean the hardcore Trump supporters; at this point Trump could tell them he can walk through walls and they'd believe him.  The people I'm thinking of are the ones who have been holding a long-standing suspicion of the government.  All the government.  Because the truth is, there is plenty of good cause for suspicion.

The assorted government agencies tasked with protecting America and its citizens - from TSA to the FBI to the DEA to NSA to CIA - have a credibility problem of their own making.  It's not enough to say they all dropped the ball at one time or another, because "dropping the ball" implies that they failed because of something like bad luck or an innocent mistake.  That's not the case at all.  The credibility problem stems from the fact that these agencies misused their authority in a variety of unsavory ways.  Two successive presidents and countless members of Congress told us we had to accept infringements to our Constitutional rights to combat an amorphous terrorist threat.  The Director of National Intelligence perjured himself.  Police forces began to resemble military units and no-knock SWAT raids became more common.  An intelligence failure allowed an al-Qaida bomber onto a US-bound flight from Ghana through the Netherlands.  And those are only a handful of post-9/11 examples.  Do some digging, and there are many other historical ones: COINTELPRO, Watergate, the McCarthy hearings, the Pentagon Papers, the Tonkin Gulf Incident, and countless coups and covert wars. And all the documentation gets hidden behind a "TOP SECRET/NOFORN" label, nobody gets punished, and nothing changes.  Given these organizations' history of past transgressions, it's natural to be skeptical of the FBI.

So does that mean the Nunes memo is correct? No, absolutely not.  First, consider the source: Nunes, Trump, the GOP leadership.  They've all discredited themselves long before this memo became public.  Nunes was already caught trying to cheat on Trump's behalf once; and Trump's accusations fall short when you factor in that two individuals have already pleaded guilty for crimes pertaining to the Russia investigation, that there is a documented paper trail between Trump campaign officials and representatives of the Russian government, and, of course, there was a meeting at Trump Tower in June of 2016.  And those are just the things we all know about.  Add to that Trump and many of his cronies are well-known serial liars and conspiracy-theory peddlers.  Finally, remember that as president, Trump has the authority and the resources to expose any illegal spying if he chooses.  He can declassify NSA intercepts that targeted him, if they exist; he can order the Department of Justice to review the FISA warrants for impropriety.  Occam's Razor says the simplest explanation is more likely to be true.  Ask yourself: is it more likely that the investigation is legitimate and substantive or that the FBI is playing a central role in a broad "deep state" conspiracy against the small group of people in Trump's orbit?

Because that's what this is being packaged as: a deep, sinister conspiracy.  The people pushing this idea performed a very subtle sleight-of-hand, one that's easy to overlook if you're not paying attention.  They shifted the narrative from a claim that the government (in particular, the NSA) is collecting all Americans' communications (true) to an accusation that the government mobilized the resources of the entire intelligence/law enforcement community against the Trump clan in an unlawful attempt to neutralize it (horseshit.)  We're witnessing the birth of a conspiracy theory on par with "9/11 was an inside job" right before our eyes.  This "echo chamber" groupthink would normally be an object of ridicule, except that similar conspiracy theories have already driven people on the extreme fringes to violence not long ago.  That's not something to take lightly.

If we could trust our institutions, there wouldn't be an issue; but our politicians and political appointees have squandered that trust for decades.  Now we're reaping the bitter fruits of that wastefulness.  The agencies, and their civilian overseers, have misused and abused their authority so badly, that now many people reflexively think they're lying and choose to believe con artists like Nunes and Trump instead.  They're the spies who cried wolf, and just like the old fable goes, we're ignoring them at the very time when we should be believing them.

There needs to be serious reform once Trump is no longer president.  He's only the byproduct of some deeper issues, and we need system-wide reform.  He's a complete shit-show, so maybe he'll be the impetus that motivates the people in Washington to finally implement some long-overdue reforms.