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Trump administration criminalized migrants and used children as bait to target sponsors of minors for arrest

During the height of the public outcry over children being torn from their parents at the U.S. border, the Trump administration monitored those speaking out against the policy. Newly released documents obtained in response to Freedom of Information Act litigation expose for the first time how the Department of Homeland Security’s Office of Intelligence and Analysis disseminated lists of more than 600 protests that took place in June 2018 in cities across the country as well as internationally. The information was compiled by a private cybersecurity company contracted by DHS called LookingGlass, and shared with intelligence “fusion centers” across the country that employ homeland security officials, along with state and local law enforcement agencies. As Acting DHS Secretary Kevin McAleenan makes his case for more funding from the House Homeland Security Appropriations Subcommittee on April 30th, the new revelations raise questions as to why DHS considers online protest organizing a threat to security, and how the information was used by state authorities.

Photo of a family separation protest in Chicago in June 2018
June 2018 family separation protest in Chicago

The records were obtained in response to FOIA requests filed by the American Immigration Council, National Immigrant Justice Center, Kids in Need of Defense, Women's Refugee Commission, and Florence Immigrant and Refugee Rights Project, and through subsequent litigation by the American Immigration Council and the law firm WilmerHale. The new revelations follow a chilling pattern of recent exposures of government surveillance programs targeting social activists, journalists, and immigrant rights defenders. Fusion centers are known for being hubs for secret surveillance programs that pose serious threats to privacy, civil liberties, and civil rights.

McAleenan, who took over DHS following Kirstjen Nielsen’s departure, oversaw the surveillance and harassment of lawyers and reporters by U.S. and Mexican officials, which sparked congressional inquiries. Senators Ron Wyden and Chuck Grassley have demanded answers from McAleenan, and Representatives Bennie Thompson and Kathleen Rice wrote on March 7, “The appearance that CBP is targeting journalists, lawyers, and advocates, and particularly those who work on immigration matters or report on border and immigration issues, raises questions about possible misuse of CBP’s border search authority and requires oversight to ensure the protection of Americans’ legal and constitutional rights.” McAleenan missed the deadline to answer their questions, but this week’s hearing offers Congress an opportunity to ask them again directly.

Additional records obtained through the FOIA include a May 2017 document on a DHS “Smuggling Disruption Initiative,” which led to the arrest of more than 400 people between June and August 2017. This initiative was discussed in the secret December 2017 memo released by Senator Merkley as one of the policy options the administration recommended to expand to deter asylum seekers. The initiative had devastating effects, leading to coercion, misrepresentation, and circumvention of due process rights. NIJC and other organizations filed a civil rights complaint in December 2017, demanding an investigation and halt to the initiative. The newly available document provides a first-hand look at how the government started using children as bait to target sponsors, and falsely portray potential sponsors of migrant children as smugglers. The administration continues to manipulate information to perpetuate its ant-immigrant agenda and justify funding for cruel and extralegal enforcement practices (read NIJC’s policy brief on ways the Trump administration manipulates data).

From the onset of the Trump administration’s family separation policy, the administration worked to control the narrative and attack dissenting voices, while failing to meet legal obligations to reunify children. June 26 will mark the one-year anniversary of the federal court order to reunite all separated children with their parents; yet, the total number of victims of the policy remains unknown. The administration failed to track the children it tore away from their parents, and there has been no accountability for those responsible for the separation policy. Despite the administration’s claims that it is no longer engaging in systemic separation of families at the border, rights defenders, including NIJC, continue to document cases of separation, where children are transferred to ORR custody while their parents languish in the custody of ICE, or are deported.   
Members of Congress have issued a subpoena for records associated with the policy, including identification of every child, all locations and facilities, their status, and more. But those calls for answers continue to go unanswered.

So far, information that has come out about DHS’s decision-making behind the practice of family separation has been a result of efforts by transparency advocates, immigrant rights groups, and journalists. Last year, government accountability advocacy organizations Open the Government and the Project on Government Oversight obtained a memo dated April 23, 2018, in which McAleenan and other top-level officials urged criminal prosecution of parents crossing the border with children—the “zero-tolerance” policy that led to the crisis that continues today. The memo states that DHS could “permissibly direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted.” Importantly, contrary to McAleenan’s claims, the memo did not discuss any plan for reuniting separated families, or the harmful effects of separation on children, nor does it reflect any input from the government agencies who would be responsible for caring for the separated children. Senator Blumenthal has called on McAleenan to explain if he intended for the U.S. government to systematically separate parents from their children, and if so, why he thought it was permissible. It is likely he’ll be asked that question again this week.

Congress also should be asking why taxpayer resources are being used to surveil people, including U.S. citizens, who oppose policies that tear children from their parents.

Read and download the protest surveillance documents.

Jesse Franzblau is a senior policy analyst at the National Immigrant Justice Center.