In his first public appearance since being unceremoniously ousted from office, Rex Tillerson addressed the graduating cadets at the Virginia Military Institute. Mr. Tillerson’s presentation impressed upon the cadets that respect for truth in government is paramount to the success of American democracy. Mr. Tillerson said, “If our leaders seek to conceal the truth, or we as people become accepting of alternative realities that are no longer grounded in facts, then we as American citizens are on a pathway to relinquishing our freedom.”  Mr. Tillerson’s remarks rang true for me.

President Trump has made it quite clear migrants fleeing violence and poverty in Central America are not welcome here. Attorney General Sessions ushered in a regressive and hostile immigration climate when he announced a cruel and inhumane policy change that would detain and criminally prosecute anyone here without an immigration status. This “one size fits all” approach to civil immigration detention is unnecessarily harsh. It’s out of touch with the concept of constitutional proportionality, offensive to our fundamental values as a nation and contrary to common sense. Yet, it has supporters. These supporters must be law and order folks who have been convinced the policy is for incacerating criminals, which would be the proper thing to do. It’s time to set the record straight. 

Unlike everyone else under the custody of state and federal correctional departments for criminal convictions, individuals in ICE’s custody are not there as punishment for having committed a crime. ICE has no detention authority over criminal proceedings. They are in custody simply because the Department of Homeland Security has decided that they might not have permission to remain in the country. Legally, they are civil detainees, not convicted criminals. The president needs to spend more time being truthful by explaining to Americans that non-immigrated residents are not criminals and he needs to do a better job of humanizing their plight.

In order for his incarceration plan to succeed, the president is gambling that Americans will buy into this perverse scheme. He needs us to believe he is telling the truth when he says parents who arrive here with their children seeking protection, a lawful act by the way, are a threat to our national security. They are not. We must believe that tearing children, including toddlers, away from their parents and incarcerating them separately is a proportionate and necessary response. It’s not. He must also convince us that the immigration problem in America is spiraling out of control. It’s not. So what are the facts?

The president is using the threat of immigration pain to pull in the welcome mat and dissuade potential asylum seekers from coming here. Sadly, President Trump sees immigrants as “political pawns” he can utilize to achieve a political end rather than as human beings in need. Carried to its logical conclusion, the incarceration order harbors the potential to surpass President Roosevelt’s Internment of Japanese Americans in its scope, inhumanity and cruelty. 

Immediately after the attack on Pearl Harbor politicians led US citizens to believe that Americans of Japanese descent represented a grave threat to our national security. Accordingly, from 1942 to 1945, it became the policy of the United States to place Japanese Americans, including women and children, in isolated internment camps scattered around the nation. During a 1988 bill signing ceremony which included an apology from the American people and provided restitution for Internment of Japanese-Americans, President Reagan remarked, “More than 40 years ago, shortly after the bombing of Pearl Harbor, 120,000 persons of Japanese ancestry, including women and children, were forcibly removed from their homes and placed in makeshift internment camps. This action was taken without trial, without jury. It was based solely on race, for these 120,000 were Americans of Japanese descent.” President Trump’s purely punitive detention policy has all the earmarks of Roosevelt’s internment order. It’s unwise, unworthy of a moral nation and worst of all we are being lulled into believing it’s the proper and necessary course of action based on hyperbole and falsehoods. 

Mass civil immigration detention has been used in various forms throughout our nation’s history but we have never used it to break up families. In 1954, with the closing of Ellis Island, mass immigration detention was suspended. However, with the sudden influx of large numbers of Cuban and Haitian refugees in the 1980’s, its use was reluctantly reinstated. Since then, despite a Congressional call for fiscal restraint in all areas of the federal budget, civil immigration detention has continued to see dramatic growth. Now, detention is the mandated form of control. One sure symptom of a mismanaged immigration system is exorbitant spending unnecessarily incarcerating hundreds of thousands of non-immigrated residents. 

In fiscal year 2013, for the first time in the nation’s history, more than 430,000 people were incarcerated while they waited to learn whether they would be allowed to remain in the country. This equates to slightly over 1,200 detentions daily. Today Congress has mandated 34,000 daily detentions. By years end, ICE plans to needlessly incarcerate 51,000 men, women and children daily. When the new incarceration goal is reached we will be spending more than $8,500,000 daily to rip families apart or more than $260,000,000 monthly on daily detentions alone. A close examination of the figures makes it clear the numbers behind civil immigration detention simply cannot be justified. They do not add up to sensible policy.

Automatic imprisonment should never be used in lieu of enlightened immigration law enforcement. In terms of detention, here is what would make sense. After a thorough vetting, only individuals who pose a danger to national security, our communities or who pose a significant flight risk should be detained. If, for the relatively few who require follow on monitoring less expensive alternatives to detention are used billions of taxpayer dollars could be saved yearly without degrading our national security. 

Currently detention in contract detention facilities costs, on average, $170 per day, per person. Costs for alternate forms of detention range between 70 cents to 15 dollars daily. Can 100% detention really be justified when immigrants, currently in the deportation process, who are not detained, show up for their hearing 99 percent of the time and comply with orders of removal 84 percent of the time? How did Americans come to believe that criminal and civil incarceration are the same thing? 

The current immigration system’s overreliance on criminal incarceration had its genesis in the 1980’s and 1990’s. Then, Republicans and Democrats alike were trying to win President Reagan’s War on Drugs. Since drugs were being smuggled into the country by foreign criminals (congress confused them with immigrants) legislation was enacted which exposed an urgent desire, on the part of Congress, to use immigration detention as a tool in fighting the nation’s proliferating war on drugs. Their legislative efforts intertwined criminal incarceration and civil immigration detention in such a way that they became indistinguishable. Wittingly or unwittingly, an immigration detention apparatus was created that blurred the line between criminal incarceration and civil detention to the point where both classes of detainees are now viewed as criminal.

Instead of correcting the confusion, presidents’ congress and the immigration elite embarked on a concerted effort to represent immigrants, in and out of deportation proceedings, as criminals. Non-immigrated residents were branded as threats to public safety and national security in the same manner as Japanese Americans after Pearl Harbor. Today, civil immigration detainees are housed in jails and contract detention facilities and managed in the same manner as criminals. Is it any wonder then that immigration detainees are viewed by the public as criminals? 

As reliance on automatic imprisonment escalates, policy makers are realizing that rapidly expanding civil detention is imposing heavy fiscal burdens on taxpayers and intangible social costs on the incarcerated families. Without thoughtful prior justification and leadership, exposing women, children and infants to the harsh conditions of criminal confinement, loss of employment, family break up and extreme financial hardships is patently wrong. In my opinion, it warrants a constitutional proportionality review pursuant to the Eighth Amendment’s Cruel and Unusual Punishment Clause. Yes, we are a nation of laws, but as Frank Zappa said, “We are a nation of laws randomly enforced.”

My major concern is not with the government’s authority to detain anyone who represents a threat to national security or good order. Most Americans agree legal authority to detain is necessary. My concern is with how that detention power is wielded. Remember, civil immigration detainees are not guilty of any chargeable crime. However;

  • Immigration detention has devolved into a system that is routinely used to criminally punish civil detainees. For example, incarcerating families, without any form of due process, in an effort to dissuade other refugees from attempting to seek asylum here is wrong.      
  • ICE’s civil immigration detention system functions to deprive non-immigrated residents of social and physical liberty in the same way as criminal incarceration does without any form of due process. That’s wrong.
  • Immigration detainees are incarcerated in the same jails and prisons and subjected to the same disciplinary regimen as convicted felons and criminal defendants. That’s wrong.
  • The lives of civil immigration detainees are regulated in the same way as the lives of those whose confinement results from a criminal conviction. That’s wrong.
  • Needless detention of non-immigrated residents is currently costing taxpayers more than $10,000,000 daily and under the president’s new incarceration order, the cost will unnecessarily soar into the hundreds of millions daily. That’s wrong.

Here is what Rex Tillerson’s message imparted to me. As citizens, we have a civil and moral responsibility to ensure that decisions of policy makers are firmly rooted in the Constitution. They can’t wield the law as they see fit. Their decisions and pronouncements must be just, practical and firmly tethered to the truth. We cannot allow the administration to lose sight of the fact each non-immigrated resident here represents a human being who counts on us to treat them fairly and in accordance with our laws. A “silent” public is a consenting public. We know what is really going on but as long as someone else’s ox is being gored it’s easier to remain silent. 

The current administration may rightly believe the struggle of individuals is of little consequence when compared to the national interest and social order. However, while conserving social order, we should not ruthlessly ignore or unnecessarily destroy the moral and social future of individuals who may be here without permission. That’s just plain wrong.

Ricardo Inzunza, a native of San Diego, California, was appointed Deputy Commissioner of the former Immigration and Naturalization Service (INS) by President Ronald Reagan. During his 8-year tenure, his office was the central source for the development, implementation and oversight of all immigration service policies and practices. Now as CEO of RIA International, Ltd, Ricardo is often asked to serve as a business consultant to clients such as the World Bank and the Peoples Republic of China. He can be reached at 662 418 0913 (O), 202 664 3274 (M), or riatria@aol.com