Sooner or later, the US is going to face a serious choice: either (1) we accept that ICE agents were “just following orders” and therefore can’t be punished, or (2) we punish them for following orders. You can dress that up with whatever sophistries you like, but that’s what it boils down to. If we don’t punish them, you can be sure this will become a new normal — maybe here, maybe there, maybe soon, maybe later, but it will.
Only by making it plainly clear with concrete consequences can the US ensure that people will think twice before trying this again. Centrists and liberals — people whose politics are an ouroboros of learned helplessness — will argue *but if we do X, they’ll do Y!” ICE has already done Y: they’ve impose a dirty war on the US, complete with death squads and (as more people will learn soon) torture centers.
The fundamental aim of legal proceedings against ICE agents should not simply be to punish individuals, it should be to systemically ensure that evil is never repeated.
Investigating, charging, and prosecuting these people on an individual basis will not work and, frankly, would be a staggering waste of public resources. And affording them the presumption of innocence and due process — the precise things they violently denied to so many others — would be a waste of time of goodwill. Instead, we should treat short-term employment by ICE under Trump as (1) ipso facto incriminating and (2) an aggravating factor in any criminal proceedings, like the use of a weapon. But that’s not an analogy, it’s exactly how they’re abusing their protected status as federal employees.
At a bare minimum, everyone who was gained employment by ICE under Trump should face these civil penalties:
- they should be stripped of all job-related benefits (e.g., no pension)
- all compensation should be aggressively clawed back (bonuses, pay, and expenses)
Those two measures will address a fundamental principle, that the public should not be forced, as it’s said, to pay for the bullets used to execute it.
A more forward-looking measure aimed at containing the damage would be:
- a lifetime ban on employment in any position related to public law enforcement or private security
- treatment of short-term ICE employment as the equivalent of a serious felony conviction
Violations of that prohibition should be treated not just as crimes but as felonies; and it should be standard practice to investigate as well any employer that violated it.
We should assume for now that DHS, CBP, and ICE}s leadership will actively seek to destroy as many records as possible in order to insulate themselves, their employees, and their political project. For that reason, criminal proceedings — whether by public or private parties — against short-term ICE employees cannot be vulnerable to the absence of specific records. Instead, the normal assumptions and procedures of criminal prosecution should be inverted. Defendants should be assumed as a class to be guilty and given the opportunity to demonstrate their innocence — for example, through the production of location-based records that prove they were not present at a specific action, even, or setting.
Serious voices (or at least voices claiming to be serious) will argue that this approach is anathema — because it violates the Constitution, because it offends all sense of decency and decorum, because it will breed resentment and cause a backlash, and so on. These arguments all forget that the defendants (1) actively and aggressively violated the Constitution, (2) showed contempt for any standard of decency, and (3) are already fueled by resentment and engaged in a backlash. Scrupulously granting them all the normal protections afforded by the Constitution and the US legal system won’t change that, but it will — like the scrupulously cautious handling of J6, which turned out to be an utter failure — ensure that the risk becomes more serious.