Bad Watchdog S2 E5: Behind the Curtain

Content Note: This episode discusses suicide and sexual violence.


 

After a years-long legal fight from the Department of Homeland Security, a court order finally gave Nick and other investigators access to 33 reports detailing conditions in Immigration and Customs Enforcement (ICE) detention facilities. The documents showed a disturbing pattern of abuse that extended far beyond the gates of Adelanto Detention Center, spreading throughout ICE detention facilities across the United States. In this episode, Maren gets into the conditions in ICE detention and raises the question: What needs to change for this broken system to be fixed?

Maren breaks down the reports with POGO’s Senior Investigator Nick Schwellenbach and former Senior Researcher Freddy Martinez. She talks with activists Berto Hernandez and Arely Westley about their experiences of the conditions in ICE detention, and she visits a Louisiana airport with LA-AID volunteer Sarah Jones to meet people who were recently released from ICE facilities. Finally, to untangle just how immigration policy became entwined with counterterrorism — and how we can fix it — Maren talks with POGO’s Katherine Hawkins, the Brennan Center for Justice’s Spencer Reynolds, and The Ohio State University Professor César Cuauhtémoc García Hernández.

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Bad Watchdog is a member of the Airwave Media network and a part of The Democracy Group, a network of podcasts that examines what’s broken in our democracy and how we can work together to fix it.


 

As this episode was in production, Immigrations and Customs Enforcement provided the below statement to POGO in response to our request for comment.

U.S. Immigration and Customs Enforcement (ICE) respects a detained noncitizen’s right to exercise self-expression and medical autonomy by refusing nourishment and medical care. At the same time, these cases can be extremely challenging. ICE Health Service Corps (IHSC), the division within ICE that ensures each detained noncitizen receives the appropriate and timely healthcare, balances a noncitizen’s exercise of self-expression and medical autonomy through a hunger strike with its duty to prevent imminent serious bodily harm or death that may result from prolonged malnutrition. IHSC continues to fulfill its duty to provide the detained noncitizen adequate medical care through compassionate and humane treatment in a safe, secure, and orderly environment.

IHSC provides involuntary medical treatment only to prevent imminent life-threatening harm or death. Medical staff provide treatment, only to medically stabilize the patient, bringing the detained noncitizen outside imminent harm, incapacitation, or death. The treating physician determines medical stability by considering the noncitizen’s age, pre-existing medical and mental health conditions, overall degree of illness, extent of weight loss and malnutrition, and any other relevant factors that affect the detained noncitizen's well-being. If medically necessary, the detained noncitizen will be transferred to a community hospital or a detention facility that is appropriately equipped for treatment. Medical personnel may monitor the detained noncitizen in a single-occupancy observation room, when medically advisable, and taking into consideration the detained noncitizen's mental health needs. This decision is reviewed every 72 hours. During hunger strikes, ICE continues to provide three meals a day, delivered to the detained noncitizen's room, and an adequate supply of drinking water or other beverages.

The safety and wellbeing of those in ICE custody is one of the agency’s top priorities. As a result, ICE’s detention standards, which govern ICE’s detention facilities to ensure a safe and secure detention environment for staff and detained noncitizens, provide guidance for these challenging cases. Each set of detention standards provides hunger strike guidance for facilities housing individuals in immigration detention. All staff working with detained noncitizens in ICE detention facilities must be trained initially and annually thereafter to recognize the signs of a hunger strike and to implement the procedures for referral for medical assessment and management of a detained noncitizen on a hunger strike. 

ICE’s detention standards concerning hunger strikes may be access at ICE.gov/doclib/detention-standards/2011/hunger_strikes.pdf

U.S. Immigration and Customs Enforcement (ICE) is committed to ensuring that all those in the agency’s custody reside in safe, secure, and humane environments under appropriate conditions of confinement. ICE continually reviews its immigration detention centers nationally, monitoring the quality of life and treatment of detained individuals, among other factors relevant to the continued operation of each facility.


 

Further Reading

From POGO:

Elsewhere on the web:

Host Maren Machles: Before you listen, we want to give you a heads up that today’s episode discusses sexual violence and suicide. 

Last time on Bad Watchdog...

POGO Senior Investigator Nick Schwellenbach: But we had asked for a lot more reports beyond these three. And CRCL, like, wouldn’t give us any more reports. We had to fight for like four more years to get the other reports.

POGO Senior Paralegal Lance Sims: We’re not trying to cause problems. What we’re trying to do is defend people who can’t necessarily defend themselves — and to have the government fight tooth and nail to keep this information hidden is offensive. 

[Audio from driving around Louisiana.]

Maren: Oh, okay. Well, thank you for escorting me.

[LA-AID volunteer, Sarah Jones, laughs.]

Maren: I’m driving through rural Louisiana to meet with people who were just released from ICE detention and are headed to the closest airport in Lafayette. I’m with Sarah Jones. She’s a volunteer with Louisiana Advocates for Immigrants in Detention, or LA-AID. 

I’ve spent nearly a decade reporting on the criminal justice system, from policing tactics to the U.S. prison system, to jails on tribal lands. And one thing I know from my experience is that it’s incredibly hard to get first-hand accounts about how people are being treated inside these types of facilities.

Louisiana is home to eight ICE detention facilities. More people are detained here than in almost every other state. It’s second only to Texas. While the average daily population in ICE detention doubled around the country from March 2015 to July of 2019, in that same time frame in Louisiana it quadrupled, from around 2,000 to nearly 8,000. Post-2020, when lots of people were let out due to the COVID-19 pandemic, the number dropped. And as of May 2024, it’s a little over 6,000.

Sarah will sometimes drive to the detention centers themselves and says that in Louisiana, ICE facilities are far from New Orleans, which is where we’re driving from. The closer ones are about a three-hour drive. New Orleans also happens to be where the only enforcement and removal field office is located in the state. 

LA-AID volunteer Sarah Jones: This is also—

[Sarah laughs.]

Sarah Jones: So usually I’m used to making this drive by myself. Um, like going to some, well, particularly to Winn, to the Winn Detention Center. Um, thankfully, like when I’ve gone to Jackson and to Richwood, which are also like in the northern part of the state, like I’ve had other people with me, but this is like my least favorite part of the drive. Um. It’s just going like because I like, like, I’m like what if I get a flat tire and like what if this happens? And then I have to pull over? Like, what if a police car is coming my way? And then like what do I say to them? Like, if I get pulled over and they’re asking like what are you doing out here? Do I say like I’m going to a detention center? You know, like.

Maren: The remoteness makes her skeptical of how much oversight there really is in these facilities.   

 Sarah Jones: When you think about, like, these detention centers being under the New Orleans field office, they’re not in close proximity to well, to the city at all, yeah. And so it gets into that other idea of like the field office saying like, we know what’s going on inside of our detention centers. We’re making sure that they’re safe. We’re doing like, we know all of this X, Y and Z. But it’s like, how much do you actually know? Like, right, like there’s this lack of oversight.  

Maren: Nonprofits like LA-AID and journalists like me have to get permission from ICE to even enter these facilities, and there’s no guaranteed entrance. 

Today we got lucky, because some people have just been released from the South Louisiana ICE Processing Center, a women’s detention center three hours from where I’m staying in New Orleans. They’re headed to the Lafayette Airport where they will catch flights to be with family, loved ones, or sponsors as they await the decision on their pending immigration cases. Sarah is taking me to interview them as they wait for their flights.

Sarah Jones: Oh, maybe they’re over here.

Airport announcement: Smoking is permitted in designated areas only. 

Sarah Jones: Luis? Are you Luis? Hi, Luis!

Maren: Hi! 

Maren: We find the other LA-AID volunteers. They’re here to give people supplies like meals, some basic toiletries, and water for their journey. The advocates told us some of the women have never even been on a plane before. Imagine navigating an airport for the first time, after you’ve been in detention for months in a foreign country. You only have the clothes, money, supplies you came to the U.S. with. Oh, and everything’s in a language you may not speak. One of the volunteers, Luis, is explaining the process of going through security to three women from Venezuela. He and his wife, Elaine, introduce me to them.

Maren [in interview]: Hola, mi Español es muy mal, lo siento.

LA-AID volunteer Elaine: Quieres tu hablar con ella? 

Elizabeth: Si.

Maren: Si? Si, está bien?

Elaine: Puede. Si, Puedes. 

Maren: I sincerely apologize for my godawful Spanish, but I’m asking one of the women, Elizabeth, about the conditions in the ICE facility.

Maren [in interview]: Cómo son las condiciones? 

Elaine: Cómo son las condiciones?

Elizabeth: Son bien normal. Bueno, preso es preso. 

Maren: And she says, they’re good, normal. But then adds, “Well ... prison is prison.”

Maren [in interview]: Normal? 

Elizabeth: Preso es preso. 

Maren: As you can probably tell, this conversation is pretty sparse. And it’s another reason why it’s hard to get information about treatment in detention. Even when you can talk to people, they may not want to share their experiences. It could be for a number of reasons, like the fact that many of them have pending asylum cases, that they may have experienced trauma that’s difficult to talk about, or just that they want to put the whole thing behind them.

Another tricky part about this kind of reporting is that sometimes you might get lucky enough to hear firsthand about the conditions, but it can be so hard to corroborate somebody’s story. It’s also hard to determine if this person’s experience is indicative of a larger pattern.

That’s why documents are so important. And that’s why POGO fought so hard to get the rest of the subject matter expert reports from the Office for Civil Rights and Civil Liberties, or CRCL. After the three Adelanto reports revealed widespread abuses, including lack of adequate medical and mental health care and “shocking” use of solitary confinement, our investigators were determined to get their hands on the rest of the documents to find out if Adelanto was the only place this was happening.

It wasn’t. 

[Theme music plays.]

Maren: This episode, we are going to finally pull back the curtain on conditions in ICE immigration detention centers. What was happening inside these facilities? And did DHS know about it? Now that we’ve heard about POGO’s battle with the Office for Civil Rights and Civil Liberties, we can ask: Why did the federal government fight so hard to keep these records out of public view? And what does that say about preventing future abuses in ICE detention? 

This is a podcast about finding the truth and holding the powerful accountable. What happens to people who are thrown into the Department of Homeland Security’s detention facilities, with the presumption that they may be a national security threat? This season we dig into POGO’s exclusive investigations uncovering the agency’s treatment of people in detention — all justified in the name of homeland security, and all overshadowing the most dangerous threat: far-right violent extremists. 

I’m Maren Machles and from the Project On Government Oversight, this is Bad Watchdog

Episode 5: Behind the Curtain

[Theme music out.]

Maren: After a long legal battle, Nick finally got his hands on 33 subject matter expert reports on immigration detention facilities around the country. The reports span over 500 pages. Freddy Martinez, who you met at the end of last episode, started working with Nick to go through these much-anticipated documents.

Former POGO Senior Researcher Freddy Martinez: You know, after reading them two or three times, what kind of emerged was this national story that these kinds of abuses aren’t located at one specific facility, um, or — that they’re not sort of one particular type.

[Music plays.]

Maren: Here’s what they found. From 2015 through May 2018, CRCL’s contracted subject matter experts reported the extensive use of solitary confinement, years of inadequate medical care, shortcomings in rape and sexual assault prevention. They also found that lack of access to translation services, or being a part of a marginalized identity often led to or compounded the likelihood of abusive treatment.  

I’m going to unpack many of these findings with Freddy, but one big finding that may sound familiar is the improper use of solitary confinement at ICE facilities across the country. 

Remember the solitary confinement data Nick uncovered as part of an earlier investigation? It showed that 2,579 people with mental illness were put in solitary, and nearly a thousand of those individuals were held for more than 15 days.

Freddy Martinez: It was basically in every detention center. What’s happening in these facilities was, even by DHS’s his own standards, far from proper, very extensive, very prolonged use.

Maren: Newly obtained expert reports further corroborated that pattern of overuse.

Freddy Martinez: But we would also find people being placed in solitary confinement for seeking medical care. We had CRCL experts saying that people would not ask for medical care because they thought they would be placed in medical isolation. We asked DHS, like, what’s the difference between medical isolation and solitary confinement? And, you know, no one would answer those questions.

Maren: The West Texas Detention Facility had two confirmed examples of overuse of medical isolation or solitary confinement. One accounted a woman, who was separated from her child as she awaited deportation in the same region of the country where the Trump administration was piloting family separation. The report said quote, “The detainee was placed into suicide watch on October 22, 2017, after reporting being deported without her daughter. She remained on suicide watch in a suicide resistant gown for five days: three days after all thoughts of self-harm had dissipated.” As a side note, a suicide gown or smock is meant to be tear-resistant, making it hard for people experiencing suicidal ideation to make nooses out of their clothes. 

The second example detailed how an individual was placed into medical isolation after showing signs of suicidal ideation. 

According to ICE’s suicide prevention policy, people who are being held in isolation are supposed to be assessed by a mental health provider every eight hours to determine if isolation is still necessary. The expert found that even though the suicidal ideation had subsided within a day, he was kept in isolation for 16 more days. The CRCL report suggests this could dissuade people from coming forward when they are experiencing suicidal ideation or mental health challenges. The mental health expert wrote, “Extended isolation with minimal property and little contact with others may act as a deterrent to honesty.” 

[Music out.]

Maren: The reports also revealed poor medical care and mistreatment in facilities around the country. 

Freddy Martinez: We would see things about people not getting access to their medicine. We would see things like people transferred without their paperwork. 

Maren: When Freddy says “paperwork,” he’s talking about their medical records. For example, at the West Texas Detention Facility, people were often sent to a new ICE facility without their complete prescription records, leaving up to half of them “at risk for a possible psychotic or deteriorating mental health event,” one report said.

Freddy Martinez: With mental health in particular, we were noticing things like just a very, very high number of patients to staff. 

Maren: The reports showed various types of discrimination that compounded abuse. 

Freddy Martinez: We saw situations where people in detention were being, um, denied access or given different benefits just based on who they were. One that really stuck out to me was there were transgender migrants who were being denied medical care.

Arely Westley: Um, well, my name is Arely Westley. Uh, my pronouns is she, her, hers.

Maren: Arely is an activist advocating for trans immigrants in Louisiana and, like Sarah, she works to help people who are held in ICE detention. 

Arely Westley: I’m original from San Pedro Sula, Honduras, and I come to the United States when I was like 12 years old, so basically I grew up here, in New Orleans.

Maren: This fight is personal for Arely, because she told me she’s spent time in immigrant detention facilities. 

Arely Westley: The experience that I had to go through as a trans woman living in the United States and undocumented was hard because not only I had to face, you know, the discrimination by me being, uh, undocumented trans person, but also being trans. So I had to like, carry a double, uh heaviness. 

Maren: Arely said she was 17 when she was picked up by ICE for deportation the first time around. 

Arely Westley: I was actually doing drag shows in some of the, in one of the clubs in Bourbon and I spent my night over at one of my friend’s house. My friend was having some issues and the police come in and I think they was coming to arrest them. When they saw me, they was asking for my ID and asking me what I was doing in the house. To me and another trans friend that we was there, they asked us for our IDs, but we don’t have IDs, and at the same time I was not speaking English that well.

At the time, New Orleans Police Department used to work with immigration on partnership. They used to call immigration when they see some Latino person who doesn’t speak English.

Maren: Because her English wasn’t as strong at the time, Arely said she unwittingly signed her own deportation papers and was sent back to Honduras. 

Arely Westley: I cannot live in my country because, you know, being a trans person in my country is very dangerous, and at the time it was even more.

Maren: Arely says her mom sent her money to cross through Mexico back into the U.S. 

[Music plays.]

Maren: She was about to turn 20 when she says she was picked up again by ICE and taken to an ICE facility to be deported. When Arely was brought to the facility, she says she was put in solitary confinement for her own protection. A few months before she was detained, Arely says she was diagnosed with tuberculosis. She says she was supposed to be continuing a course of medication for nine months while she was recovering. 

Arely Westley: And they was not giving me the right treatments in there. They was not giving me the medication immediately. My doctor had to keep calling the detention center and pushing them through to give me my medication. 

Maren: Before her doctor called to intervene, Arely said she didn’t have to access her hormone medication either. 

Arely Westley: They said they don’t have my records, and they cannot do that. But of course, the whole protocol is, is so long.

Maren: Arely is out of the detention center now, and told me she’s still fighting for asylum in court. Arely described spending five or six months isolated, and her time in isolation has had a lasting impact on her mental health.  

Arely Westley: When I get home, I even have to sleep with my TV on because I’m scared about being alone. I’m scared to be in a space that’s quiet because everything remind me about the cell that I was with. I don’t even have the capacity to actually say that I can be by myself without community or my partner because I’m afraid to be alone because of the months and the days that I had to spend on those cages. 

Maren: Today, Arely is working with other advocates to raise awareness about the conditions people face in ICE detention in Louisiana and continues to advocate for the rights of LGBTQ+ immigrants.

[Music out.]

Maren: Freddy and Nick found that mistreatment of transgender people held in ICE detention went beyond solitary confinement. 

Freddy Martinez: Transgender migrants, there’s a lot of reports about them um, you know, being misgendered, being called the wrong names, um, being denied access to health care.

Maren: In the expert reports, Nick and Freddy found instances where people were denied access to medication, just like Arely had been.

Freddy Martinez: For example, like they told one woman, “If you ever miss your medical appointments, we will take your hormone replacement therapy away and you’ll never be able to access it again.” The CRCL experts said there’s, there’s no medical basis for, for doing this.

Maren: During their research, Nick and Freddy also learned that people from majority-Black countries held by ICE are put into solitary at disproportionate rates. 

Freddy Martinez: The majority of the people who are in solitary confinement are also from majority-Black countries, even though they sort of don’t represent a huge population of ICE detention. To put some numbers on it, migrants from Africa and the Caribbean are only about 4% of the total population between 2013 and 2017. And in those four years, they were about a quarter of all people in isolation. 

Maren: University of California researchers found in a 2020 study that, quote, “Solitary confinement cases involving immigrants from Africa and the Caribbean are vastly overrepresented” in ICE detention. In 2022, the advocacy groups UndocuBlack Network, Black LGBTQIA+ Migrant Project, Black Alliance for Just Immigration, and Freedom for Immigrants released a study about the disproportionate complaints of abuse of Black migrants in immigrant detention. The report said quote, “In a few facilities in Alabama, Georgia, and Louisiana, Black migrants were almost twice as likely to experience abuse inside detention than other non-Black migrants” and that “Black non-binary migrants were three and a half times more likely to experience abuse in detention.”

Freddy Martinez: These do reflect sort of an anti-Blackness that we see in detention everywhere in the U.S. 

Maren: Another major problem that CRCL’s experts found was ICE’s persistent language barriers, or a lack of language access, period. Experts found that ICE and its contractors often failed to produce resources in the first language of the people detained, especially for people who spoke Indigenous languages from Central America. Even though the CRCL experts didn’t find a lack of access to Spanish translation, in conversations with Berto, it became apparent that even Spanish speakers face issues in detention. Remember when Berto was detained in Adelanto, and how visibly upset they were? Well, Berto said, in an attempt to console them, one of the guards pointed out that Berto’s facility with English actually gave them a leg up. 

Berto Hernandez: I was crying, and this person that found me, they were like, “But you speak English, you’re gonna be fine.” They can view you after worst, being chained, being transported like cattle and still tell you, “You’re gonna be fine.” The hypocrisy in that “you’re going to be fine,” I still think I’m like, wow, really? 

[Music plays.]

Berto Hernandez: I began to really, um, understand what that meant in that context and in that place. That began to like resonate as to why they thought of me as somehow more deserving than those other folks.

Maren: In fact, language access was a huge part of why Berto started helping people with their cases. Here’s Freddy again. 

Freddy Martinez: We saw people unable to access interpreters, lawyers. People were being asked to sign legal paperwork that they don’t understand. We would see things like people being put in solitary confinement for breaking rules that they don’t even understand, right? Because they don’t speak the language.

Maren: Freddy flagged how the different types of abuses they uncovered intersect with each other.

Freddy Martinez: A lot of these issues tend to bleed together in very unique ways that are hard to sort of detangle from each other.

Maren: And that particularly shows up when we looked at language barriers. Take, for example, how that would intersect with medical care.  

Freddy Martinez: How do you describe pain in a language that, you know, you don’t speak, right? 

Maren [in interview]: Mmm.

Freddy Martinez: Is it a throbbing pain? Is it a shooting pain? And so, you know, to get adequate medical care, um, will be much more challenging when you don’t speak the language. It’s hard for the contractor to find people who speak, you know, Indigenous languages, much less like have people on staff at the, at the facilities. It means that ICE can’t meet its burden to keep people safe from things like, uh, sexual assault, or suicide, or provide medical care.

Maren: One of the most horrific accounts from the reports describes the sexual assault of a minor at the Karnes detention center in Texas. The subject matter expert report confirmed the assault and found the facilities’ policy of housing minors 12 years and older separately from their parents allowed the assault to happen. The expert also found that ICE officials failed to respond appropriately once the assault was reported.

Karnes is run by the GEO Group. When Freddy and Nick reached out to the GEO Group for comment, it stated that it quote “strictly complied” with the DHS’s Family Residential Standards and that it has a quote “zero tolerance towards all forms of sexual abuse and harassment.”

These stories are heartbreaking. These reports confirmed that Adelanto wasn’t just a bad apple; there’s a whole bunch. These problems showed up in facilities around the country and they clearly amount to a pattern of abuse.

And just like with Adelanto, the reports didn’t just show that abuses were rampant across facilities. They show that ICE knew these problems were rampant. CRCL had told them — and in many cases, made recommendations to fix them. 

[Music out.]

Maren: It’s hard to tell if DHS has even implemented these recommendations. While we’ve requested interviews with ICE and DHS for this podcast, we’ve not heard back. Additionally, ICE failed to respond to our request for comment before the deadline we gave them. 

However, as we were in the final stages of production, an ICE spokesperson reached out with a statement in regard to the allegations around Adelanto and our investigations into ICE’s use of solitary confinement there. The spokesperson said quote, “U.S. Immigration and Customs Enforcement or ICE is committed to ensuring that all those in the agency’s custody reside in safe, secure, and humane environments under appropriate conditions of confinement. ICE continually reviews its immigration detention centers nationally, monitoring the quality of life and treatment of detained individuals, among other factors relevant to the continued operation of each facility.” You can read the entirety of ICE’s statement in the episode’s show notes or on our website.

So why would CRCL — an office that’s tasked with protecting civil rights and civil liberties — fight with us for years not to release these reports?

The Constitution Project at POGO Senior Legal Analyst Katherine Hawkins: When I went to law school, one of the forms of law I was interested in was immigration law, um, but this was soon after September 11th and there were overlaps with the war on terror.

Maren: Katherine Hawkins is a senior legal analyst at POGO who focuses on national security, immigration, and human rights. She’s actually spent the majority of her career looking at how suspected terrorists have been treated by the U.S.

Katherine Hawkins: I wrote my law school paper on this case of a Canadian citizen who was transferring planes at JFK and was taken off the planes and sent to Syria and tortured there. Um, it’s called extraordinary rendition. I remember reading about that case in law school thinking it was an ordinary deportation gone wrong. Um, actually, it-it turned out that was different. It was not an ordinary deportation. It was, uh, you know, the CIA’s program of sending terrorism suspects overseas to be tortured. But after September 11th, immigration law got very entangled with counterterrorism. Under the Trump administration, especially, I turned my focus back to immigration.

Maren: Because of Katherine’s background looking at the treatment of people in government custody, she has a lot of thoughts when it comes to the Office for Civil Rights and Civil Liberties and potentially, some answers for my questions around why the office fought so hard and for so long to keep these records out of our hands.

Katherine Hawkins: There are definitely reports where CRCL has found things that most of the other agencies within ICE have missed.

Maren: Despite its meticulousness, Katherine says CRCL has limited power within DHS. Since CRCL doesn’t have the power to subpoena, they can’t compel ICE or any other component within DHS to produce evidence. This means they have to rely on friendly, collaborative relationships with the very agencies they’re investigating in order to access their facilities and records. Here’s Nick again. 

Nick Schwellenbach: Some of the negative publicity that could come out of making these reports public, I think from CRCL’s perspective could inhibit those relationships or impair those relationships. CRCL is not really independent of the Department of Homeland Security. They have a, they have a weird position also, because they’re often trying to influence policies from the inside. And I think sometimes they don’t want to anger these other components of DHS.

Maren: In the agency’s latest report to Congress, it named that the office is also just over 100 people, in a department with over 260,000 employees.

Katherine Hawkins: They receive complaints from people who are detained, but it’s not as if they can get a complaint about even a severe abuse and then drive, drive in the next day to see what’s going on.

Maren: CRCL often notifies ICE before they go on a site visit. This raises questions about whether the facilities are being stage managed when the experts visit the facilities. And when CRCL does find problems ... 

Freddy Martinez: They can’t really force ICE or the contractors to make changes.

Maren: So this office makes non-binding recommendations to agencies like ICE that it has to play nice with to get compliance with its investigations. 

Nick Schwellenbach: A lot of times these components at DHS like ICE ignore CRCL anyways.  And that’s something we found when we looked at a lot of these CRCL reports that we finally pried loose this year, is when you read through these CRCL reports, sometimes they’re visiting the same ICE detention facility year after year after year. And they’ll say, “We made a recommendation years ago. It still hasn’t been implemented.”

Freddy Martinez: What we overwhelmingly saw is just a lot of CRCL reports where people would come back once or twice or three times with the same recommendations that were just never implemented. 

Maren: If CRCL’s internal reviews didn’t compel ICE to make changes, then why didn’t they turn to another approach — the “sunlight is the best disinfectant” one? Why did they drag their feet to release the records to POGO and other news outlets? 

Nick Schwellenbach: If I were to speculate, I think they didn’t want the negative publicity that would come from the release of these reports. I go back to this sort of moment where they did release information to us. And when they did, it led to this very critical, hard-hitting story that we published, in fall of 2019. And shortly after that, they didn’t want to give us anything else.

Maren: Freddy points to the secrecy around these CRCL reports as a concealment of what was happening inside those facilities. 

Freddy Martinez: It’s sort of like an active process by which they deny that abuses occurred. The reality is that people take overt steps to deny people’s lived experiences and fundamental human rights. 

Maren: Okay, so if CRCL is compromised, what other accountability mechanisms are there? Well, another entity that could step in is the Office of the Inspector General. But, we spent the entirety of Season 1 talking about how the current head of that office, Joseph Cuffari, is failing to investigate waste, fraud, and abuse within DHS, and in fact has buried reports on misconduct produced by his own office. And just to give an update, because everybody asks me so often, yes. He is still in that office. 

Congress also has some power over DHS, through a patchwork of committees, but because DHS is so vast, there are almost too many oversight committees, which Katherine and other experts have said points to diffuse and lacking oversight. 

Okay, so what about the media? What about oversight from the public? Well, as we learned last episode, it’s very difficult for the public to get access to records from within DHS. And that’s not just because the agency is throwing up roadblocks; there’s a huge FOIA backlog. According to a DHS review, the backlog at the end of Fiscal Year 2023 was more than 60,000. 

And, to be honest, even when journalists publish stories about abuses in ICE detention facilities, both using internal records and firsthand experiences, even still, abuses continue.

Spencer Reynolds is a senior counsel at the Brennan Center for Justice, a nonpartisan law and policy think tank that advocates for criminal justice reform. Spencer works in its Liberty and National Security Program. 

Senior Counsel Spencer Reynolds: Human and civil rights abuses that occur in some DHS counterterrorism programs are absolutely not necessary for counterterrorism. In fact, they’re, they’re counterproductive. Abuses undermine safety and security, and it should be the case that civil rights and civil liberties are just as important as privacy and just as important as security and safety.

Maren: He laid out a few ideas that could make civil rights and civil liberties a much higher priority for DHS. First off, Spencer suggests that Congress could give the Office for Civil Rights and Civil Liberties more power and scope. 

Spencer Reynolds: That would provide, uh, an additional roadmap for what that office should be doing, what they should have access to, uh, the powers that they can employ to carry out their work.

Maren: For example, Congress could give CRCL stronger authority to investigate, and enshrine their right to access documents. Congress could give CRCL subpoena powers as well. This isn’t unprecedented — another oversight office inside of DHS that has these types of powers is the Privacy Office. This is an office within DHS tasked with ensuring all DHS operations consider privacy and transparency concerns. Without Congress giving CRCL more authority, the agency is forced to rely on the goodwill of ICE and other DHS components to comply with their requests for information and allow them to conduct site visits.  

So what about the system itself? Can there be reform not only in the mechanisms of accountability but also in the way that DHS and ICE are organized that would limit the possibility for abuses to occur in the first place? Remember, immigration detention on a massive scale hasn’t always been used in the U.S.

Katherine Hawkins: It’s a relatively recent phenomenon for the U.S. government to detain non-citizens in supposedly civil immigration by the thousands and thousands. From the ’50s and ’60s to the ’70s, we did not detain many people. If you look at the numbers over the time, in the late ’70s, beginning of the Reagan administration, the average number of people per day in immigration custody is about 2,000-odd. And if you look at the numbers over time, they, they grow and grow. 

Maren: Here’s our detention historian, César, again.

The Ohio State University law professor and author César Cuauhtémoc García Hernández: And in 1996, the Congress sends to President Clinton the Antiterrorism and Effective Death Penalty Act, which certainly target terrorist activity. It makes it easier, for example, to wind up in with capital punishment and, and the federal system as a result of such activities. But it also devotes an enormous amount of, of its text, um, to targeting uh, migrants and, and, and, and changing, uh, immigration law.

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Katherine Hawkins: As immigration came to be seen as a national security issue, lots and lots of resources get thrown at enforcement. And many fewer resources get put into actually hearing people’s claims of protection, deciding the outcome of a deportation case. So the number of ICE agents increases. The number of detention beds increases.

All these resources are, you know, towards fortifying the border, all kinds of surveillance equipment, all kinds of Border Patrol agents, all kinds of deportation officers. It’s both cruel and doesn’t make sense to, you know, force people to stay in detention while you hear their case. And you’re not providing nearly enough resources to actually decide their case. But that is the direction we’ve gone in.

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Maren: In some cases — where there’s damning evidence of poor conditions and abuse — advocacy groups are fighting hard to get immigration detention facilities shut down. LA-AID recently cosigned a letter to DHS Secretary Mayorkas along with the RFK Human Rights organization, the ACLU, Detention Watch Network, and many more calling for the closure of one ICE facility in Louisiana, Winn Correctional Center, because of alleged abuses and poor conditions. ICE, Winn Parish, and LaSalle Corrections — the private prison company that operates the facility — did not return our request for comment. 

And Berto is fighting alongside other advocates and community members to shut down Adelanto as well. They’ve described this fight as restorative in a way.

Berto Hernandez: I remember like, I just like feeling this, like this, this feeling of community and connection and autonomy and being kind of like slowly returning into my body with all of this like, like fight that I had in me, right?

Maren: In 2023, seven formerly detained people sued the GEO Group, the contractor that runs Adelanto, for allegedly spraying so much cleaning agent during the beginning of the COVID pandemic that people were effectively poisoned. According to one of the plaintiffs, they were spraying the cleaning agent every 30 minutes, 24 hours a day, seven days a week. The GEO Group did not respond to our request for comment on this. 

Because of a COVID outbreak in 2020, a federal judge ordered the release of many detainees and a pause in new intakes. The order remains in place. And the facility has been at risk of closure since last year, but will stay open until at least September of 2024. Katherine says that picking off these detention centers one by one may not be enough.

Katherine Hawkins: I’m not that confident that there’s not another equally bad facility that we don’t know about conditions in yet. I think reducing the number of people in ICE detention is helpful and that is particularly important for people who have serious disabilities or medical or mental health problems.

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Maren: Here’s César again.

César Cuauhtémoc García Hernández: We do not have to detain migrants. That is a policy choice.

Maren: And Sarah from LA-AID.

Sarah Jones: Like we’re always having this conversation as an organization of like, okay, we’re doing this right now in post-release, but like our larger goal is making sure that this does not even exist. That people are not experiencing these conditions from the jump and that there is like actual proper, whatever that means, right? Proper resettlement at the border so people do not even have to get inside of these cages and experience all of this chaos.

And Arely.

Arely Westley: We have been seeing many trans people uh, dying in detention center, and not only trans people. We have, uh, a person that we lost a couple of months ago. There was actually said it’s a heart attack. This person never have this condition outside, but you provoke that with all the depression and all the stuff that is happening inside those cells. We are dying in those cages. And if we’re not dying, we come out of there with trauma. The whole system need to change, and I feel like first we need to shut down detention centers.

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Maren: As we know, ICE, the agency that oversees immigration enforcement and a sprawling infrastructure of immigrant detention centers, was formed under the banner of the Department of Homeland Security after the September 11th attacks. Immigrant detention falls under the mandate of national security. So, how is DHS doing in tackling what’s been, empirically, the most dangerous threat to national security over the past 20 years?

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Maren: Next time, on the season finale of Bad Watchdog, we’re going back to we where we started this season, to take a closer look at the threat posed by far-right violent extremists. And one group in particular that was not only heavily involved in the January 6th insurrection, but has infiltrated the very agency charged with protecting the homeland.

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Bad Watchdog is a production of Investigations and Research at the Project On Government Oversight. It’s co-written and produced by Padmini Raghunath and me, Maren Machles, and based on investigations by Nick Schwellenbach, Freddy Martinez, Mia Steinle, Andrea Peterson, and Katherine Hawkins. Additional research by Julienne McClure. Edited by Julia Delacroix, Brandon Brockmyer, and Henry Glifort. Fact checking by Amaya Phillips. This episode was mixed by me. This episode was mastered by Verenda Lowe. Our theme music was written and recorded by Will Wrigley. POGO’s director of Investigations and Research is Brandon Brockmyer. POGO’s editorial director is Julia Delacroix. Find out more about our work to investigate and improve the federal government at www.pogo.org.   

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This podcast is part of The Democracy Group.