Line of defense
Briefly, there was a Bush administration before September 11 that few today recall. An immigration deal seemed to be politically smart for the White House. Bush had just won a third of the Latino vote, and his pollsters believed he would have to do better to win reelection in 2004. Nativism was at a nadir, and wooing Latinos was a priority. A major legalization initiative connected to a guest worker program was a tantalizing possibility.168
“[Karl] Rove appears willing to do anything to try to expand alleged outreach to Hispanic voters,” complained FAIR executive director Dan Stein, referring to Bush’s political advisor.169
After Bush took office in 2001, his aides were busy discussing a legalization initiative. The president was negotiating with his Mexican counterpart, Vicente Fox, who made the reform a top priority. Fox’s foreign minister, Jorge Castañeda, wanted a major legalization program, “the whole enchilada.”170 The entire political climate seems in hindsight almost unrecognizable. States like Utah, North Carolina, and Tennessee were issuing driver’s licenses to undocumented immigrants.171 Bush was no Pete Wilson. He liked to break into Spanish at campaign events and touted a “compassionate conservative” agenda.172 “Where do they turn to? There’s no room for them to move,” said National Immigration Forum head Frank Sharry, referring to the nativist movement. “They’re reduced to praying for a severe recession, and hoping that will put wind in their sails.”173
Even then, however, the White House remained sensitive to the nativist right. Secretary of State Colin Powell insisted that the deal would not amount to “blanket amnesty.” The administration’s preferred term was “regularization.” But they weren’t fooling nativists who, despite a few years on the margins, immediately made it clear that they held veto power over Republican votes. “There’s a lot of euphemisms out there,” said Texas Republican representative Lamar Smith. “Whether it’s an immediate amnesty or an amnesty after five years, it’s still an amnesty.”174
The September 11 attacks and the response to it, however, cut the whole debate short, closing the briefly open window for bipartisan, establishment-led reform. Even some on the right clamored to protect immigration reform from the backlash. Republican senator Sam Brownback, a right-wing evangelical from Kansas and a key reform advocate, echoed New York mayor Rudy Giuliani’s warning against post-9/11 xenophobia.175 But as the US military rendered an expansive “Muslim world” into a battlefield, the country became a home base, the borders of which required maximal fortification. Most immediately, border traffic slowed to a crawl as customs agents undertook intensive car-by-car inspections.176 That the 9/11 attackers had lawfully entered the country carrying visas on airplanes predictably didn’t matter. The land border would only become an even more potent symbol of the country’s vulnerability to just about anything bad in the world. Under Bush, government directed a rush of funds toward protecting a country that had almost overnight been renamed “The Homeland” (a term strange to Americans, and with Nazi antecedents).177
In 2003, immigration and border enforcement were reorganized under the newly created Department of Homeland Security (DHS). Bush, undergoing a rapid-fire makeover from judicially imposed election cheat to wartime president, presided over the addition of thousands of new agents and signed a law that led to the construction of hundreds of miles of fencing. Immigration had officially become first and foremost a security matter; meanwhile, the entirety of security had been subordinated to the overriding goal of preventing the rarest of events: terrorist attacks. Border Patrol appropriations rose from $263 million in fiscal year 1990 to $1.4 billion in 2002, $3 billion in 2010, and $3.8 billion in 2015.178
Those figures are not adjusted for inflation. But if they were, the increase in expenditure would still be tremendous: a sevenfold increase in funding between 1990 and 2015.* And that does not include the billions more allotted in other border security spending. The militarism of the early war on terror briefly pushed immigration from the center of public debate. But it also revolutionized the government’s approach. The wars on drugs and immigrants had strengthened federal police forces; the war on terror consolidated that development, and linked it to an unprecedented machinery for permanent global conflict. The border became a virtual one that expanded outward: customs agents were deployed to foreign airports and foreign visitors required to submit to being fingerprinted and photographed.179 As the 9/11 Commission Report declared: “The American homeland is the planet.”180
A few years into the terror war, the Institutional Removal Program and Alien Criminal Apprehension Program, established in 1988 to target “criminal aliens,” were combined into the Criminal Alien Program, which, according to the Congressional Research Service, by April 2016 had “approximately 1,300 CAP officers … monitoring 100% of federal and state prisons, a total of over 4,300 facilities.” Appropriations for targeting “criminal aliens” rose from $23.4 million in fiscal year 2004 to $504.6 million in 2017.181
Within DHS, immigration and border security agencies were relocated to Customs and Border Protection (CBP), and massive funding was directed their way. A new reality demanded a new approach, regardless of that new reality being more the product of the government’s response than of the attacks. The Border Patrol was directed to develop a new National Border Patrol Strategy.182 The resulting document, released in 2004, reformulated the agency as a frontline defender against potential terrorists—including, critically, everyday migrants.183
“The priority mission of CBP, specifically including all Border Patrol agents, is homeland security—nothing less than preventing terrorists and terrorist weapons—including potential weapons of mass destruction—from entering the United States,” wrote CBP commissioner Robert C. Bonner in his introductory letter. “The Border Patrol’s traditional missions of interdicting illegal aliens and drugs and those who attempt to smuggle them across our borders remain important. Indeed, these missions are complementary. We cannot reduce or eliminate illegal entry by potential terrorists without also dramatically reducing illegal migration across our borders.”
Worry ensued that the government had no clue who was in the country “illegally,” and which among them might be what Attorney General John Ashcroft called “terrorist aliens.”184 This anxiety was exacerbated in 2002 when it was discovered that INS had mailed visa extensions to two 9/11 hijackers, by then long deceased along with their victims.185 The government, targeting people of Middle Eastern and South Asian descent, moved to petition for detained immigrants to be held without bond.186
After the attacks, hundreds of Muslim, South Asian, and Arab non-citizens were quickly jailed and held on immigration charges—often in what the Justice Department inspector general found to be physically and verbally abusive conditions—and then deported.187 Tens of thousands of visitors from a list of exclusively Muslim-majority nations—plus the token non-Muslim North Korea—were forced to register with authorities.188 The program was directed by Kris Kobach, a young White House aide who would later become a lawyer with the Immigration Reform Law Institute, FAIR’s legal arm, then Kansas’s secretary of state, and ultimately a leading legal architect of both the anti-immigrant and “voter fraud” movements that nakedly linked nativism, anti-black civil rights reaction, and the effort to secure white Republican political power.
The self-reinforcing dynamic of border security and immigration enforcement escalation during the Bush administration became conjoined to a paranoid national security state that scoured the earth for potential threats. The connections could be rather explicit. Deputy Assistant Attorney General John Yoo, the infamous “torture memos” author, cited the Haitian migrants’ case against the Clinton administration to argue that suspects indefinitely detained at Guantanamo had no legal recourse to US courts. Clinton had settled with the HIV-positive asylees in exchange for vacating the ruling so that the government could in the future maintain “maximum flexibility” at the base.189
Bush also followed Clinton in linking imm
igration enforcement to the criminal justice system. In 2002, the Florida Department of Law Enforcement signed the first-ever 287(g) agreement to deputize state and local law enforcement to enforce immigration law under IIRIRA, signed into law by Clinton in 1996.190 It was, according to the Miami Herald, “an unprecedented terrorism-fighting tactic” that Florida presumably required since “at least 15 of the 19 hijackers had Florida connections.”191 In 2005, the government launched Operation Streamline as part of its “enforcement with consequences” approach to target a much broader swath of migrants for illegal entry and reentry than in the past.192 Federal law enforcement used magistrate judges to oversee “cattle calls”: mass guilty pleas from as many as dozens of defendants at once, at times prosecuted not by assistant US attorneys but by immigration officials who were not even necessarily licensed to practice law.
Bush would return to immigration reform. But whatever had existed of its bipartisan support had been displaced by a growing anti-immigrant consensus on the right. Tanton-network powerhouse NumbersUSA and rabidly nativist representative Tom Tancredo mobilized enormous grassroots pressure against even a relatively modest proposed 2002 reform that would have allowed some undocumented immigrants to apply for legal status without leaving the country. Tancredo correctly predicted that large-scale Republican support for the nativist position would make reformers “think twice about the next play that they’re gonna call in this game.”193 “I had people come up to me on the floor of the House saying, ‘O.K., O.K., call off the dogs’—meaning Numbers USA.”194
Initially, Bush had hoped that border enforcement would be part of comprehensive legislation that included legalization. Indeed, the comprehensive bill that passed the Senate in May 2006 featured hundreds of miles of border fencing thanks to an amendment offered by Senator Jeff Sessions.195 Bush aggressively courted House nativists to support it, visiting a Border Patrol training center and pledging to “get this border enforced.” But the Senate bill failed in the House after nativist Republicans, true to form, revolted. So Bush gave Congress a tough-looking, stand-alone border wall law to campaign on instead: the Secure Fence Act of 2006, which accelerated the construction of the southern border fencing complex that had first taken root in 1990.196
Passed just ahead of the mid-term elections, the Act directed DHS to build fencing along at least 700 miles of the Southwest border.197 It won eighty votes in the Senate. Many liberals voted “no” but centrist Democrats like Barack Obama, Hillary Clinton, Joe Biden, and Dianne Feinstein joined all Republicans save for Rhode Island’s Lincoln Chafee to support it. Instead of being a component of comprehensive reform, intensified border enforcement became a down payment for a law that would never materialize. Instead of border enforcement succeeding at stopping migration, its failure to do so simply signaled the need for yet more border enforcement.*
DHS secretary Michael Chertoff cheered the Secure Fence Act, saying it would “enable the department to make substantial progress toward preventing terrorists and others from exploiting our borders and provides flexibility for smart deployment of physical infrastructure that needs to be built along the southwest border.” No foreigners plotting a terror attack, however, have ever been found to have entered the United States by illegally crossing the border with Mexico. Indeed, the State Department has asserted that “terrorist groups likely seek other means of trying to enter the United States.”198
In November 2005, DHS began to treat unauthorized immigrants even more like presumed criminals, moving to detain all non-Mexicans apprehended at the border as part of the Secure Border Initiative. Previously, most would have been released pending the outcome of deportation proceedings. To deal with the influx of inmates, DHS added two thousand new beds to the detention system.199
DHS entertained wild techno-fantasies, developing the SBInet surveillance program to integrate remote video surveillance, sensors, and other intelligence into a computer network and thus “ensure seamless coverage of the border,” a “virtual fence.” (The program was managed by Boeing, beset by criticism from the Government Accountability Office, deemed a technical failure, and ultimately shut down in January 2011 after $1 billion had already been spent on fifty-three miles.)200
South of the border, the professional smuggling business boomed as a crossing that could have previously been accomplished on one’s own or with a small-time coyote now necessitated skilled, more expensive expertise.201 In the 1980s, reported prices for a pollero were as low as $50 to $300. In 2008, they reached as high as nearly $3,000, rising alongside increased Border Patrol expenditures.202 In March 2017, DHS secretary John Kelly boasted that fees had skyrocketed to as high as $8,000.203 Recently, according to some US officials’ estimate, Central Americans pay fees as high as $15,000.204
Meanwhile, the intensification of border policing was accompanied by a radicalization of policy goals. The Secure Fence Act called for “operational control” of the border, defined as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband” (emphasis mine). There had been prior aspirations for “effective control” of the border. And the Clinton administration had in its first term sought “satisfactory management of the border,” which entailed a strategy of “prevention through deterrence” to make crossing so tough that it would dissuade most migrants from even trying.205
The Secure Fence Act’s aspirations for total control were extreme, reflecting the fact that border policy, for government and many of its constituents alike, became cruelly utopian. Although that utopia was by definition impossible to realize, it galvanized people to work toward its promise—and made them believe that that promise was realizable.* Endgame, the ICE Office of Detention and Removal’s 2003–12 strategic plan, struck a similar note: “As the title implies,” wrote DRO director Anthony S. Tangeman, “the endgame to immigration enforcement … is the removal of all removable aliens … We must strive for 100% removal rate.”206
Did any of it work? By the time construction on the new border fence was underway at the tail end of Bush’s second term, the era of mass undocumented Mexican migration that had begun in the 1970s was ending. DHS has found that the stepped-up enforcement increased the odds that migrants will give up attempting to cross.207 But as the Congressional Research Service put it, “Disentangling the effects of enforcement from other factors influencing migration flows is particularly difficult … because many of the most significant new enforcement efforts—including a sizeable share of new border enforcement personnel, most border fencing, new enforcement practices at the border, and many of the new migration enforcement measures within the United States—all have occurred at the same time as the most severe recession since the 1930s.”208
What militarization certainly accomplished was rendering the border region into something of a police state. For many in Texas, Arizona, New York and other states abutting Mexico and Canada, Border Patrol checkpoints have now long been a daily reality on local roads. Federal agents stop, search, and even assault drivers going about their daily lives even when they are not crossing an international boundary, and they do so without much regard for reasonable suspicion or probable cause. Checkpoints have seemingly had more success seizing motorists’ marijuana than they did detaining unauthorized migrants.209
Border Patrol agents have long regularly boarded trains and buses heading to and from domestic destinations to quiz people on their legal status. Between 2006 and 2011, Border Patrol agents based out of Rochester erroneously arrested nearly 300 people with legal status—including citizens, permanent residents, foreign students, and tourists—as part of its program targeting bus and train riders. 210 In 2017, CBP officers questioned passengers disembarking a domestic flight from San Francisco at New York’s John F. Kennedy Airport.211
The border is not just a place: it is a laboratory and a pretext. As far as the Border Patrol is concerned, it has the authority to conduct vehic
le searches within one hundred air miles of any border, and the right to question individuals and detain them anywhere within the United States—New York, Los Angeles, Washington, DC, Boston, Chicago, Miami. Roughly two-thirds of Americans live inside of an area that the Border Patrol treats as a “Constitution-free zone,” according to the ACLU.212 So much for norms and institutions.
Obama’s change
Obama inherited Clinton and Bush’s entanglement of civil immigration enforcement and criminal justice and took it to new heights. All, once again, to placate nativists and pave the way for comprehensive reform.
In 2014, Mexico launched Programa Frontera Sur, a US-backed operation to stop Central American migration to the United States. It forced migrants to “traverse longer segments of the route by foot through the wilderness, leaving them even more exposed to the elements and criminal predation,” as Noelle K. Brigden writes.213 That route had already become strikingly more dangerous since 2006, when Mexico launched its bloody drug war with strong US support.214 Domestically, Obama rolled out Secure Communities, a program initiated at the end of the Bush administration that uses local criminal justice systems to identify and deport immigrants, which I address in chapter 4. Obama also continued a shift toward formally deporting more migrants apprehended at the border who previously would have simply been returned to Mexico. The upshot was that those migrants would be barred from entering the country legally for years and subject to prosecution for the federal felony of illegal reentry if they tried to cross again. Tens of thousands of border crossers were behind bars at any given moment—in civil detention centers pending deportation but also in federal penitentiaries serving hard time for immigration-related criminal offenses.215 In fiscal year 2012, formal deportations that had been rising rapidly since 2003 surpassed four hundred thousand. It was a record annual total and more than double the number carried out in 2002.216
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