Important Stuff to Know About: Building the ICE Gulag, Part 1 - Laying The Foundation

A Steady State Firepit Publication | by James Petrila

This is the first in the series of four articles that examines the way in which the Immigration and Customs Enforcement Department (ICE) under Trump has created a vertically integrated structure that relies on a massive multi-year appropriation from Congress, its newly recruited paramilitary detention force, Roberts Court Shadow Docket decisions, and the ability to operate without fear of serious legal consequences to apprehend, detain, and remove thousands of undocumented individuals currently residing in the United States.

Part I: : How all three branches of government with the assistance of Big Tech enable this unprecedented round up of immigrants through the use of emergency powers.

According to recent reports, ICE is looking to spend over $38 billion to build detention centers in the United States as part of its massive deportation plan. In order to populate this detention archipelago, ICE needs to detain tens, if not hundreds, of thousands of undocumented people on a continuing basis. The billions of dollars available to recruit the paramilitary detention force and to construct the ICE Gulag are contained in the so-called “big beautiful bill”. As a result of this funding, ICE efforts to expand its detention force and build, service, and maintain detention camps are not affected by the current DHS shutdown. A compliant Congress whose Republican members are beholden to the President has been unwilling to address long standing legal problems with immigration law. Congress under Republican control remains unwilling to require the ICE paramilitary detention force to follow basic constitutional requirements.

In order to detain all of those apprehended, ICE’s current playbook is focused on spending billions of dollars to purchase existing warehouses scattered throughout rural America, sometimes paying above market prices for the facilities. Despite growing public opposition, these windowless warehouses, which were not constructed with human habitation in mind, will be converted into detainee holding tanks with up to 10,000 inhabitants until the detainees can be removed from the United States. Open ended detention in these facilities depends on aggressive ICE and DOJ legal interpretations that claim the Government is obligated to detain all undocumented individuals that it apprehends. While this approach faces legal challenges, the Fifth Circuit Court of Appeals, the most MAGA friendly in the country, recently agreed that this is how the law should be interpreted, even though most every other court that has heard this argument has held otherwise.

The administration has made no secret of its intent to deport as many undocumented individuals as possible, and has demonstrated its willingness to disrupt countless lives in large and small communities across the United States by apprehending and detaining law abiding individuals who in many cases have lived in their communities for years. The final step is removal, either through deportation to country of origin or rendition to a third country, to include such notorious destinations as El Salvador and unlikely ones as Cameroon and South Sudan, enabled by the Supreme Court’s Shadow Docket decisions.

There has been significant pushback by Federal District Court judges, particularly in response to ICE apprehension and detention operations in Minnesota. Courts are hamstrung by the frequency with which ICE ignores its orders, something that both ICE and the Department of Justice have been doing with disturbing regularity since the round up of immigrants began in the early days of the current administration, and which has only accelerated as the number of apprehensions skyrockets. Courts are limited in how to respond to such systematic executive branch contempt for court orders. Republicans in Congress have rewarded such defiance with at least one confirmation to an Appellate Judgeship. Shadow Docket rulings of the Supreme Court have made apprehensions much easier, to include so-called “Kavanaugh stops” based on racial profiling as justification for apprehension and subsequent long term detention.

Supporting this effort, and being handsomely compensated for its effort, are such tech companies as Palantir and other major government contractors. By making massive amounts of data available to ICE, these companies have allowed ICE to create a warrantless surveillance state with no judicial supervision and no concern for the Fourth Amendment that allows ICE to locate and apprehend individuals nationwide. Use of big data assists in the ICE apprehension efforts through warrantless collection of personal and government data. This data also is being used to harass and threaten US citizens who have been peacefully protesting against ICE.

When history judges this multifront assault on both immigrants and the rule of law, the list of complicit actors will be shamefully long, with comparisons to the Japanese internment camps of World War II. The next articles will address how these various pieces are connected in support of a multi-front attack on non-citizens resident in the United States.

Next: How ICE interprets the law to enable the massive apprehensions that are required to populate the Gulag.

James Petrila spent over thirty years as a lawyer in the Intelligence Community, working at the National Security Agency and, for most of his career, at the Central Intelligence Agency. He has taught courses on counterterrorism law and legal issues at the CIA at the George Washington University School of Law. He is currently a senior advisor to the Institute for the Study of States of Exception and is a member of The Steady State.

All statements of fact, opinion, or analysis expressed are those of the author and do not reflect the official positions or views of the US Government. Nothing in the contents should be construed as asserting or implying US Government authentication of information or endorsement of the author’s views.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 400 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.