When Oakland Mayor Libby Schaaf warned activists about an impending immigration enforcement operation in her city, she was praised for her defiance of the Trump administration’s deportation agenda, and proudly claimed as a hero in the so-called resistance.
Schaaf is not the only local elected official that has stood up in opposition to President Donald Trump. Since the 2016 election, many mayors and state governors have begun implementing efforts to slow down the federal government’s attacks on immigrants and other vulnerable communities. In particular, “sanctuary cities” have committed to limiting their cooperation with federal immigration officials.
But do these gestures of resistance go far enough? Maybe not, according to a report released today by the American Civil Liberties Union of Massachusetts and the Century Foundation. Although words from anti-Trump politicians may have a pleasant ring, the report says, robust communication channels still exist between local authorities and federal agencies, which frequently lead to deportations, intrusive surveillance, civil liberties violations, and over-criminalization. States and cities could be doing more to roll back longstanding invasive policies as concerns arise about how the Trump administration might use them – what the report calls an “enhanced sanctuary city approach.”
“We need to hold agencies like the FBI or ICE with a fair amount of skepticism, and distance our state and local law enforcement from their operations.”
“I think that the moment we’re in right now is actually a fertile one, in the sense that state and local policymakers are much more likely to understand why these policies are so important now,” said Kade Crockford of the ACLU of Massachusetts, who authored the report. “In times like during the Obama era, it is less clear to, I think, progressives at the state and local level, that we need to hold agencies like the FBI or ICE with a fair amount of skepticism, and distance our state and local law enforcement from their operations.”
The report highlights the history of domestic surveillance in the United States and the extent to which the attacks of September 11, 2001, radically expanded federal surveillance powers. It also explains how local law enforcement became a critical part of the system.
Founded in 2002, the Department of Homeland Security created a surveillance infrastructure that connected local law enforcement and top-level intelligence agencies. Immigration and Customs Enforcement came into existence, overseeing an increase in deportations of undocumented immigrants. Attorney general guidelines preventing the FBI from spying on those not suspected of crimes were also significantly revised to give agents more leeway. New Joint Terrorism Task Force centers throughout the country established partnerships between local, state, and federal authorities. And the list goes on.
Effectively, every level of the government was connected in its surveillance practices, and the Obama administration only heightened these capabilities.
The report gives the example of a controversial information-sharing program called “Secure Communities,” or “S-Comm,” a Bush-era initiative which was fully implemented under Barack Obama in 2013. Historically, when someone was arrested by local police and sheriff’s departments, their fingerprints were sent to the FBI, which conducted a background check on them and let the local agencies know if the person was wanted for a crime in another state. Under Secure Communities, however, the FBI automatically shares fingerprints with ICE, who can then issue a “detainer request” to hold someone they want to deport.
“Under S-Comm, an arrest isn’t just an inroad into the local or state criminal punishment system,” the report reads. “It can be a flare shot up into the sky notifying ICE of the presence and location of a person in the United States on a visa or without documentation.”
Many so-called sanctuary cities are still using behind-the-scenes channels to alert federal agencies of people suspected of committing crimes.
After pressure from activists and pushback from local governments, the Obama administration replaced S-Comm with a program that still shared fingerprints, but had some limits as to when ICE could demand a detainer. Trump has reinstated Secure Communities, and while some cities have said they won’t comply with detainer requests, Crockford says that “the data-sharing aspect of the program, which is what the report focuses on, never went away under Obama.”
Crockford’s report argues that many so-called sanctuary cities are still using these behind-the-scenes channels to alert federal agencies of people suspected of committing crimes.
The Intercept reported earlier this year on the case of a longtime Chicago resident deported by ICE on the basis of information from a Chicago Police Department gang database – even though the city is officially a sanctuary, and police denied tipping off immigration authorities.
The ACLU and TCF report cites other similar cases to explain how immigrant communities and people of color are frequently caught up in the local-federal surveillance collaboration, and how discriminatory policing often topples the first domino in a destructive sequence of events.
The best way to stop ICE, the report argues, is to stop aggressive policing for small offenses. The report lists various ways that cities and citizens have moved forward on that front.
The best way to stop ICE, the report argues, is to stop aggressive policing for small offenses.
At the grassroots level, for example, New York City activists formed the Coalition to End Broken Windows, to pressure the city to stop “quality of life” policing that disproportionately targets the poor, working class, and people of color. Activists also organized the #SwipeItForward campaign, asking New Yorkers to share their MetroCard to make sure a low-income person does not face the threat of arrest for jumping a turnstile.
Denver, Colorado, recently reduced maximum sentences on municipal crimes to avoid tripping deportation requirements, while Portland, Oregon shut down a gang database over concerns that it was racially biased.
“We often see that those arrests disproportionately impact people of color and poor people; the very people who are actually harmed the most by an arrest,” Crockford said.
Other jurisdictions have instituted laws that can help strengthen civil liberties. In 2016, Santa Clara County, California, passed an ordinance requiring public notice and democratic debate on the usage of surveillance technology. Last year, San Francisco withdrew from its local JTTF, and the Boston Police Department announced they would throw out plans to buy a social media surveillance system after an ACLU-driven advocacy campaign.
The ACLU and TCF report recommends cities, counties, and states move forward with similar actions. The report lists five recommendations to soften the blow of expansive federal government overreach: Local authorities should decriminalize or stop arrests for certain low-level offenses, and police departments should demand a criminal requirement for intelligence collection and sharing, cut ties with programs like the JTTFs, institute local democratic transparency and a public process when acquiring surveillance technology, and limit the use of data collected for specific purposes.
With progressive candidates sweeping local elections throughout the country, the possibilities of fighting back against federal government attacks on civil liberties are widening.
Trump’s election acted like a splash of cold water to those asleep during Obama’s presidency, waking them to how the massive repressive state apparatus can be used against marginalized communities. Crockford says that for those who were willfully blind to civil liberties abuses under the Obama administration, the Trump administration can act as a crude reminder that the apparatus can switch hands at any point.
“We are very hopeful that we are in a political moment right now, where people who didn’t realize that for eight years are starting to really understand why policies like this are important, no matter who is in charge,” Crockford said.