Tag Archives: Constitution

Reclaiming Congress’s War Powers

An American flag lines the inside of a U.S. Soldier’s helmet at Forward Operating Base Azim Jan Karez in Kandahar, Afghanistan, Dec. 16, 2012. (Photo: DOD / D. Myles Cullen)


[James] “Madison wrote, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”


“Article I of the Constitution gives Congress the sole power to declare war, raise and fund an army and navy, and “make Rules for the Government and Regulation of the land and naval Forces.” But the United States has been at war continuously since September 18, 2001, and Congress last voted to authorize force in 2002. Children born that year will soon be eligible to serve in the military.

There are signs that Congress is trying to reassert its constitutional authority in the wake of the United States’ killing of Iranian general Qassem Soleimani this January in Iraq. On February 13, the Senate passed a resolution intended to block war with Iran, by a bipartisan vote of 55-45. The House of Representatives passed a similar measure soon after the strike against Soleimani. More recently, the House voted to repeal the 2002 Iraq war authorization (which President Donald Trump invoked as a justification for the Soleimani strike), and to forbid the use of federal funds for an attack on Iran.

Congress’s overdue efforts to reclaim its authority over the use of military force are very welcome. But they’re unlikely to be effective in restraining the executive in the short run. Trump has threatened to veto these measures, and none has passed with the two-thirds majority required for an override.

It is rare for Congress to unite across party lines by a large enough majority to override a presidential veto. The framers of the Constitution did not intend to give the president unilateral authority to start and expand wars unless two-thirds of Congress stopped him. James Madison warned in 1793 that presidents would inevitably be tempted to start, expand, and prolong wars: “War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them.” Because of this, Madison wrote, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

Nearly 50 years ago, in 1973, Congress did enact a law designed to prevent “prolonged engagement in undeclared, Presidential war.” The War Powers Resolution states that the president can only deploy the military into actual or imminent hostilities under “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The resolution requires troops deployed without statutory authorization to be removed within 60 days, or immediately upon a vote by a majority of both the House and the Senate.

The vote requiring the removal of troops from a conflict was originally supposed to take the form of a “concurrent resolution,” which is not subject to a veto by the president. But a 1983 Supreme Court decision, INS v. Chadha, held that “legislative vetoes” of executive action are unconstitutional.

The executive branch has weakened the limits imposed by the War Powers Resolution over time.

Perhaps most significant in recent years has been the executive branch’s contorted interpretation of existing authorizations to use force to cover new conflicts—in some cases, to cover conflicts with groups not even in existence at the time the authorizations of force were adopted.

Just days after the September 11 terrorist attacks, Congress passed an authorization for use of military force, known as an “AUMF,” permitting the use of force “against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” The 2001 authorization, however, has been interpreted so broadly since it was adopted that presidents have invoked it to conduct military operations in at least 19 countries, including at least seven where operations are ongoing, according to the Congressional Research Service.

Congress last passed an AUMF in October 2002, when it authorized President George W. Bush to go to war with Iraq. The U.S. government overthrew Saddam Hussein’s government shortly after the war began, and held a ceremony marking the official end of the conflict in 2011. But the Trump administration has threatened to veto the repeal of the 2002 war authorization, and has made the absurd claim that the 2002 war authorization has “long been understood to authorize the use of force” to address “threats directed by Iran.”

In other cases, presidents have claimed that their military actions fell short of war, or of “hostilities” under the War Powers Resolution. The Trump administration used this justification for its military strike against the Syrian government in 2018 and the Obama administration made the same claim when it intervened in Libya in 2011.

It will not be easy for Congress to stop these unauthorized uses of force and reassert its constitutional authority. But a growing number of members of Congress from across the political spectrum recognize the necessity for action. The Project On Government Oversight (POGO) recommends that, beyond votes addressing specific uses of force, Congress reform the War Powers Resolution itself to close the loopholes that have prevented it from fulfilling its original purpose.

Reforms should include:

Requiring that war authorizations include proper nouns and end dates

The executive branch’s expansion of the post-September 11 war authorization to include “associated forces” of al-Qaida that did not exist at the time of the attacks demonstrates the need for greater specificity. Any resolution authorizing the use of military force should include a sunset date, and specify the name of the enemy (whether it is a foreign state or a terrorist group) and geographical locations where the military may use force. Existing authorizations, including the 2001 and 2002 AUMFs, should also be repealed or given an expiration date.

While it is not possible to prevent a future Congress from passing a vague authorization, Congress could provide for expedited consideration of resolutions to authorize force only if they include these specifics.

Defining “hostilities”

The 1973 War Powers Resolution did not define “hostilities,” one of its key terms. For decades, presidents have used that omission to argue that military action did not qualify. In 2011, the Obama administration argued that the United States’ involvement in a military campaign against Muammar Gaddafi’s regime in Libya—which lasted over six months, included a U.S. bombing campaign and the deployment of 11 naval ships, and ended in Gaddafi’s violent overthrow and death—did not amount to “hostilities.” In order to close this loophole, Congress should define “hostilities” to include, at a minimum, “armed conflict” or “clear and present danger of armed conflict,” and should make clear that armed conflict includes drone warfare and other situations where U.S. personnel take deadly action even where they face limited risk of casualties.

Requiring increased transparency from the executive branch about all uses of force

The executive branch has not only used the September 2001 AUMF to justify military force against an increasing number of terrorist organizations in an increasing number of countries, but it has also refused to publicly acknowledge many of these actions. In 2013, the Pentagon told members of Congress that the full list of al-Qaida “associated forces” with whom the U.S. was at war was classified. The secrecy has been even greater with respect to CIA paramilitary airstrikes in Pakistan and Yemen. For years, the executive branch has withheld crucial information about the drone campaign from most members of Congress. A new war powers resolution should include requirements for meaningful, prompt consultation with Congress whenever U.S. government employees are involved in armed conflict, and public notice with only very narrow exceptions.

Creating a mechanism for judicial review

Efforts to enforce the 1973 War Powers Resolution in court have not been successful, but Congress needs to keep trying. Unless the courts step in to enforce legal limits on the president’s commander-in-chief power, the Office of Legal Counsel and other executive branch lawyers will have the last word. The Office of Legal Counsel, the entity within the Department of Justice that offers legal advice to the executive branch, has repeatedly concluded that the president may use military force without congressional authorization if doing so serves the United States’ national interest—a test that “provides no meaningful constraint on presidential power,” in the words of former office head Jack Goldsmith and law professor Curtis Bradley. Congress should explicitly authorize the speaker of the House, the Senate majority leader, or the foreign affairs committee of either body to bring suit on its behalf, and instruct the courts that the executive’s compliance with a new war powers resolution is not a political question and thus is subject to judicial review.”


A Day Without the Fourth Amendment


4th Amendmant


“Accompany our hero on his journey through a fictional world without the Fourth Amendment.”

“Brad Rayburn wakes up at 6:45 a.m. The government knows he woke up because he told his home assistant to turn off his alarm and start playing the news, and a few minutes later asked it about the day’s weather. His government-managed surveillance log notes that Brad has woken up at this time for the last four straight days. The most recent break from this behavior was last Saturday morning, when Brad woke up at home of Elisa Peters, whom he met at a bar the prior evening, after a one-night stand. The surveillance log knows they met at the bar because they had no history of contact by phone, text, or on dating apps, and because the location history for their phones shows they were never at the same place at the same time, other than at Madison Square Garden during a basketball game two years ago. The log knows it was a one-night stand because according to data scraped from their phones, neither entered the other’s contact information into their address books.

At 7:14, Brad Rayburn feeds his cat after taking a shower. The government knows this because the microphones on his phone, computer, and home assistant record the noises of a shower from 7:03 to 7:19, and then the cat meowing for several minutes until 7:15. Brad then exercises for approximately 30 minutes, which the log determines based on accelerated heart rate recorded by the fitness bracelet he wears. The government cannot confirm what his exercise routine is this morning because his laptop is facing the window, but based on past times its video camera has recorded him he likely did three sets of pushups, followed by three sets of sit-ups, followed by squats, and then jumping jacks. Brad also does yoga, but only on Sundays, following instructions from a YouTube playlist.

Brad leaves his apartment building at 8:15. This is recorded in his surveillance log based on the GPS and cell site data from his phone, which is used to track his movements. Most mornings, he either walks straight to work or stops in a coffee shop four blocks north of his apartment. Today, Brad does stop in the coffee shop, and according to the store purchase log, buys a vanilla latte with skim milk. His purchase history shows this is by far his most frequent morning drink. He occasionally buys a cold brew instead; the only pattern for this appears to be a minor correlation with lower levels of sleep. Brad also sometimes orders an extra-large iced black tea, but his surveillance log shows he only does this after spending at least two hours at a bar the previous evening.

The coffee shop is the focus of real-time, human-overseen surveillance, rather than the continuous automated log that is underway for Brad and most other Americans. This has nothing to do with Brad, but rather Portia Laurens, a reporter investigating corruption in the district attorney’s office. Portia is not carrying a phone or any Internet-connected electronics that could be used to track her movement, but facial recognition on a video feed from a red-light camera identifies her as she enters the coffee shop. Any official from the district attorney’s office who enters the coffee shop while Portia is there will immediately become a suspect in an ongoing investigation to find who is leaking information to Laurens and several other reporters.

Brad leaves the coffee shop at 8:27 and walks for 28 minutes to work. While he is walking he texts his older brother Dennis, who lives in Kansas City. Their surveillance logs record the text of this conversation, which is about last night’s basketball game between the Celtics and the Lakers. Both watched the game the prior night—logs record that Dennis watched on cable while Brad streamed the game on his laptop using their parents’ cable account. The automated scan of one of Brad’s texts set off an alert for immediate human review because it contained a reference to a bomb and Madison Square Garden, but an analyst quickly concluded his statement that “Rondo sucks hes gonna bomb at MSG next week” was not a security threat.

Brad arrives at his office at 8:55, and conducts research at his cubicle throughout the morning, except when he walks to the office kitchen at 10:25 and when he goes to the bathroom at 11:13. On both occasions his phone was in his pocket, which kept a log of his movements. Brad leaves the office and walks two blocks east to buy lunch at a food truck—where he is the fifty-seventh customer of the day—at 12:30. While Brad is getting lunch, his colleague Ben Jeremy passes by his office computer and looks directly at the screen for 20 seconds. This is logged by a facial-recognition scan of the camera above the monitor, and based on computer analysis of his eye movements, the surveillance log estimates with a high degree of confidence that Ben was reading a draft email Brad was in the middle of writing. According to Ben’s log, he has likely or definitely snooped on seven work colleagues’ computers, and usually does so at least once a week.

For the rest of the afternoon Brad continues research work. The only website he visits that isn’t related to work is to check the hour-by-hour weather forecast for the remainder of the day. It is logged along with all his personal and work web-browsing activities. At 3:50, there is a period of inactivity on his work computer, during which the log of his phone indicates he played Clash of Clans for 25 minutes, followed by seven minutes on Tinder, although he does not communicate with anyone. He browses sports blogs on his phone for the next eight minutes, then activity on his work computer resumes.

Brad leaves the office at 6:25 and walks home, jaywalking on two occasions. He purchases a six-pack of beer at a liquor store three blocks from his apartment. After he arrives at home at 7:13, his log indicates based on meowing recorded on the microphone of his phone that he immediately feeds his cat. For the next 40 minutes, Brad browses sports threads on Reddit. Brad puts on The Godfather, which he has saved on an external hard drive attached to his Xbox. He downloaded it and a dozen other movies from a torrent two years ago, which the government has logged but will not threaten to prosecute him for unless he becomes a significant social agitator or his cooperation is needed for a separate investigation. Brad orders a chicken parm sandwich from a nearby Italian restaurant through a delivery app, which arrives at 8:20. He has ordered dinner from this restaurant 67 times this year, making it the second-most-frequent place Brad gets delivery from.

Brad tells his home assistant to play a playlist he has labeled “Sleepy Time Music” at 11:30. Logs indicate Brad almost always listens to pop and hip hop, but his Sleepy Time Music playlist is smooth jazz. He usually listens to this playlist or an extended “Rainforest Sleep Track” when he falls to sleep, but his log indicates there is no pattern. He sets a sleep timer for 45 minutes, but data from his fitness bracelet notes that he fell asleep within 10 minutes. His surveillance log records from his microphone indicate that he woke up and went to the bathroom at 2:14 a.m., but Brad will not even remember doing this when his alarm wakes him up at 6:45 once again.”


Slave Labor Widespread at Immigration and Customs Enforcement Detention Centers


ICE Slave Labor

As Huge Corporations Benefit


“As POGO previously reported, the majority of America’s detention centers are run by a handful of companies that are largely secretive about what goes on in these taxpayer-funded facilities. What’s no secret is how much money these companies earn.

CoreCivic and GEO Group are two of the largest private detention contractors in the country. In 2016, CoreCivic reported over $1.8 billion in revenue, while GEO Group reported over $2.1 billion, according to the companies’ official filings with the Securities and Exchange Commission.”

“There are nearly 200 federal detention centers across the country. Here, people suspected of violating U.S. immigration laws wait for court hearings to find out if they’ll stay in the United States or be deported. While they wait, many detainees work as part of the Immigration and Customs Enforcement (ICE) “voluntary work program.” They clean, they cook, they do laundry, and they garden—some advocates say they keep the facilities running.

For their labor, the detainees are supposed to be paid at least $1 per day, or just under $0.13 per hour for an 8-hour work day. This arrangement has the blessings of both ICE and Congress, the latter of which set the rate over a half a century ago and hasn’t changed it since.

However, a growing body of legal experts says paying detainees $1 per day not only violates state minimum wage laws, but also violates the 13th Amendment of the Constitution, which abolished slavery and involuntary servitude in all instances except as punishment for people convicted of crimes. Experts argue that, because the majority of detainees have not been convicted of crimes, they should be fairly compensated for their labor.

From California to Colorado to Massachusetts, detainees have recently taken legal action against the for-profit companies and local governments that operate the majority of ICE detention centers. The detainees argue they should be paid minimum wage—some allege that they weren’t even paid the minimum $1 per day. They also allege that the voluntary work program is sometimes not voluntary at all, and that they face violent retaliation from guards if they refuse to work.

Many of these lawsuits will play out as the Administration ramps up its enforcement of immigration laws, including the possible end of the Deferred Action for Childhood Arrivals (DACA) program—which protects 800,000 undocumented immigrants from deportation—indicating that the number of people held in detention centers will likely increase in the coming years.

Meanwhile, the companies in question have crafted a lucrative business model in which the U.S. government pays them billions of dollars to operate federal detention centers. While the companies promise to bring jobs and other economic benefits to the communities where they set up shop, many experts say these promises are overblown because the companies rely on low-paid detainee labor instead.

Blurring the Line Between Detention Centers and Prisons

The detainee voluntary work program was created decades before ICE itself was created in 2003. In 1950, Congress passed a law to make money available for the U.S. government to pay non-citizens for work they performed while in detention. While the law did not specify the wage, Congress appropriated funds to pay detainees $1 per day, which had the same buying power that about $10 per day has today.

While Immigration and Naturalization Service, a now defunct federal agency that was a precursor to ICE, requested that Congress increase the rate to $4 per day in 1982—again, equivalent to about $10 today—Congress did not do so, and the rate has remained “at least $1 per day.” As recently as December 2016, ICE listed the rate in its voluntary work program manual.

Anita Sinha, director of the International Human Rights Law Clinic at the American University Washington College of Law, told the Project On Government Oversight (POGO) that participation in the voluntary work program is often not a voluntary matter for detainees, which, coupled with the low pay, raises questions as to the program’s constitutionality.

“Involuntarily labor is only permissible if it’s due to a punishment of a crime,” she said, referring to the 13th Amendment, which abolished slavery in most instances, but includes a carve-out for anyone convicted of a crime. “Immigration detention is not meant to be punishment for a crime. It’s a civil issue.”

However, all of the experts POGO spoke to said that the ICE detention centers look a lot like prisons, and detainees are often treated like prisoners. While a 2016 report by the Homeland Security Advisory Council notes that “ICE has been clearly on record as favoring a civil detention model, rather than a model designed for the criminal-justice process, because ICE detention is not based on a criminal charge or on punishment,” the report also states that “The full potential of the civil model has not been realized.”

Sinha explained that one reason for this is the companies that run the majority of ICE detention centers are also major players in the prison contracting world. A significant percentage of detainees are actually housed in local jails rather than detention centers. And, in some cases, former prisons are converted into detention centers.

“You have the same exact brick and mortar,” she said of the facilities.

Maru Mora Villalpando, co-founder of NWDC Resistance, an advocacy group for detainees at a detention center in Tacoma, Washington, told POGO, “The detention system is just an extension of the prison system.”

The major difference? The prison system, which is largely government-run as opposed to company-run, is far more transparent. And, as POGO previously reported, the federal Bureau of Prisons proactively provides much more information to the public about its facilities and the people it houses than either ICE or its detention center operators do.

According to Villalpando, who described the conditions at detention centers as “inhumane,” the companies who operate detention centers are only interested in making money.

“If there was real oversight, all of these places would be shut down already,” she said.

“You Want to Go to the Hole?”

In the first class-action lawsuit of its kind, nine former detainees from the Aurora Detention Facility outside of Denver are suing detention center operator GEO Group (formerly Wackenhut Securities) on behalf of over 60,000 detainees who have gone through the doors of the detention center.

The lawsuit alleges that GEO Group coerced Aurora detainees into participating in the ICE voluntary work program under threat of being thrown into solitary confinement.

”GEO pays detainees $1 per day, or no wages at all, for their labor,” according to the complaint, which calls this practice a violation of Colorado minimum wage law.

In signed legal declarations, Aurora detainees described how they or other detainees were forced to work—under threat of solitary confinement—cooking, cleaning, and performing other tasks necessary to keep the contractor facility running.

“None of us got paid anything for the work we did on the cleaning crews,” Carlos Eliezer Ortiz Muñoz, who was detained in 2014 and 2015, wrote. “People who refused to clean were put in solitary.…Some of the guards would threaten us by saying: ‘¿Quieres ir al oyo?’ – ‘You want to go to the hole?’”

Another former Aurora detainee, Lourdes Argueta, wrote that she was assigned to clean the detention center’s medical unit. She wrote that her work involved “cleaning up blood, feces and urine” of other detainees.

Several of the detainees wrote that, when they asked GEO Group guards if they could be paid more, they were told the company was not allowed to increase their wage.

A spokesman for GEO Group said the company denies the lawsuit’s allegations and that the standards and pay for the voluntary work program are set by the federal government, not GEO Group.

“Our facilities, including the Aurora, Colo. Facility, are highly rated and provide high-quality services in safe, secure, and humane residential environments pursuant to the Federal Government’s national standards,” he said in a written statement to POGO.

This response echoes arguments the company made in 2014, when it filed a motion to dismiss the Aurora lawsuit. GEO Group noted then that the $1 per day rate was set by Congress decades ago, and that ICE includes it in the contracts it makes with companies like GEO Group.

ICE did not respond to POGO’s requests for comment on either the Aurora lawsuit or the agency’s detention center system in general.

A Systemic Issue

The Aurora lawsuit, while unprecedented in its scale, is only one of a growing number of lawsuits recently filed by detainees.

In 2006, a detainee in Tacoma, Washington, filed a lawsuit alleging that GEO Group failed to pay him all of the wages for work he did as part of the voluntary work program. The detainee alleged that the failure of payment was tantamount to slavery. A judge dismissed the case, saying that the detainee had submitted his complaint of non-payment too late, and that the detainee “was not compelled to work but participated in a voluntary work program.”

In 2015, a detainee in Boston filed a class action lawsuit against the local county sheriff’s department saying that he and other detainees should be paid Massachusetts minimum wage for participating in the voluntary work program. The detainee is one of thousands of ICE detainees who are held in local jails rather than in federal facilities.

And in June, detainees in San Diego filed a class action lawsuit against private detention center operator CoreCivic (formerly Corrections Corporation of America) alleging that they and thousands of other detainees were threatened with punishment—including solitary confinement and physical restraint—if they refused to participate in the voluntary work program. In addition to providing services for fellow detainees, the San Diego detainees say they also performed clerical work for CoreCivic, cleaned the medical staff’s offices, and helped cater meals for law enforcement events hosted by CoreCivic.

Detainees at other facilities have similar complaints about the voluntary work program, although they haven’t taken legal action.

In 2011, detainees at a CoreCivic-operated detention center in Georgia told the ACLU of Georgia that they were threatened with solitary confinement for not participating in the voluntary work program—an assertion that CoreCivic confirmed.

“Three weeks ago, some detainees who worked at the kitchen wanted to stop working. The guards told them that if they stopped working, they would be charged by the disciplinary board. The guards then tried to get them to sign a document,” Josue Cervantes told the ACLU. “The detainees refused to sign the document and shortly thereafter they were transferred from the blue to the orange unit for a couple days as punishment.”

The “orange unit” is another name for a segregation unit—essentially solitary confinement—where the sanitation was so bad some detainees referred to these units as “portable toilets.” CoreCivic told the ACLU that it investigated the incident and confirmed that it occurred. The company said it took action, such as counseling its guards.

And earlier this year, detainees in the Northwest Detention Center in Tacoma, Washington, made news when as many as 750 detainees staged a hunger strike in protest of their $1 per day wages and poor living conditions, The Seattle Times reported in April.

Villalpando of NWDC Resistance told POGO that, despite detainees’ widespread frustration with their wages, detainees often chose to participate in the voluntary work program—in fact, she said there is a waiting list for the program at the 1,575-person Tacoma facility. The reason? Detainees have few activities to fill their days while they wait for their immigration hearings.

According to ICE’s Performance-Based National Detention Standards manual, which was last updated in December 2016, this is one of the reasons the voluntary work program exists.

“The negative impact of confinement shall be reduced through decreased idleness, improved morale and fewer disciplinary incidents,” the manual says of the work program.

Villalpando told POGO that, in the Tacoma facility, detainees are allowed only one hour per day to work on their legal cases in the detention center library. Some detainees passed the time playing dominos—that is, until the detention center outlawed the game, according to Villalpando. And other detainees use discarded food wrappers to create art to decorate their “pods,” or living areas—until detention center guards almost inevitably pull down the artwork to throw it away, she added.

“All of this means people try to find something to do,” she said of the work program. “They [GEO Group] make you feel like you are the one requesting the job.”

The Business of Detention

As POGO previously reported, the majority of America’s detention centers are run by a handful of companies that are largely secretive about what goes on in these taxpayer-funded facilities. What’s no secret is how much money these companies earn.

CoreCivic and GEO Group are two of the largest private detention contractors in the country. In 2016, CoreCivic reported over $1.8 billion in revenue, while GEO Group reported over $2.1 billion, according to the companies’ official filings with the Securities and Exchange Commission.

A significant portion of the companies’ profits come from government contracts. CoreCivic was awarded nearly $1 billion in government contracts in 2015, while GEO Group was awarded $1.3 billion the same year.

And profits for these companies are up from 2015, which financial analysts attribute to President Trump’s campaign promise to be tough on people who violate immigration laws. 2017 may be an even better year for detention center companies, given that ICE agency awarded GEO Group a $110 million contract for a new detention facility outside of Houston in April.

Both GEO Group and CoreCivic told investors in early August that, despite the fact Customs and Border Protection apprehended fewer people than usual illegally crossing the U.S.-Mexico border at the beginning of 2017, the Administration’s proposed immigration policies will be good for business.

According to GEO Group CEO George C. Zoley, the company expects to win a contract by the end of the year to manage a 700-bed ICE facility in Florence, Arizona.

And CoreCivic CEO Damon Hininger told investors on a call that the Administration’s plan to increase immigration enforcement in the interior of the country means more opportunities for the company.

“…it is clear to us based on kind of mostly some of the numbers we are seeing, but also the feedback we are getting from our Federal partners that they are making us big investors,” Hininger said.

However, despite the sizeable government contracts these companies win, sources who spoke to POGO said GEO Group and CoreCivic wouldn’t be nearly as profitable—if at all—if it weren’t for the $1 per day detainee work program. The Aurora lawsuit alleges that detainees perform “vital functions” for the GEO Group facility. In fact, the facility employs only one full-time janitor who is not a detainee, the Associated Press reported.

ICE does not proactively disclose how many detainees participate in its voluntary work program, but The New York Times reported in 2014 that at least 60,000 detainees were part of the program the previous year.

While detention center companies looking to construct new facilities try to woo locals with the promise of jobs, the companies’ reliance on detainee labor means that many of the centers actually provide few jobs for locals, according to the Detention Watch Network.

Villalpando told POGO that the Tacoma facility only employs a few overworked, undertrained guards—many of whom live out of town.

And Jacqueline Stevens, a professor of political science and legal studies at Northwestern University and director of the school’s Deportation Research Clinic, told POGO, “Facilities hire a small number of guards through private security firms; they often complain about their own poor treatment.”

“The vast bulk of the labor running the facilities, including dining services, repairs, cleaning, painting, and even hair cutting is by those locked up for slaving wages of $1 to $3 [per] day or on threat of solitary confinement, not workers hired from the community,” she said.

Stevens has extensively studied ICE’s voluntary work program and has successfully obtained documents that shed insights into it. Based on these documents, Stevens has calculated that, by paying detainees at the Aurora detention center in Colorado $1 per day—well below both the federal minimum wage of $7.25 per hour and Colorado’s recently increased minimum wage of $9.30 per hour—GEO Group saves itself over $4 million each year.

So what would happen if detention companies started paying detainees minimum wage? According to Sinha of the International Human Rights Law Clinic, detention companies would make significantly less money—but it might not be enough to shut them down. As long as the federal government continues to award these companies billions of dollars in contracts, the companies will continue to operate detention centers and build new ones.

“Their contracts are sizeable,” she said of detention companies. “They’ll still profit, but they’ll think twice.”


Now more than ever, Congress must conduct more oversight of ICE and its detention center system. Based on this investigation, the Project On Government Oversight recommends the following actions for Congress:

  1. Appropriate funds to ICE to increase the minimum wage for detainees who participate in the voluntary work program while in detention.
  2. Implement greater oversight of contractor-run ICE detention centers to ensure that detainee participation in voluntary work programs is not coerced and that detainees have better channels to file complaints.
  3. Investigate detention center company claims that new detention centers benefit local communities’ economies and job growth.”





Why Police Spying On Americans Is Everyone’s Problem



“The American tradition of prohibiting military involvement in domestic policing is designed to ensure that we maintain democratic and civilian control over an extraordinarily powerful fighting force. An army designed and equipped to protect Americans should never be turned against Americans except to quell active rebellion.

But just as the drug war fueled increased military participation and militarization in domestic policing, the war on terrorism is driving the militarization of domestic intelligence operations. Unlike the purchases of armored vehicles, military weapons, and SWAT gear, domestic intelligence activities take place mostly in the dark and neither the public nor policymakers really know what is happening.

First, military agencies are conducting domestic intelligence collection against Americans, and providing that information to law enforcement officials. The National Security Agency scoops up domestic telephone calling data, as well as the content of U.S. international communications (“inadvertently” grabbing tens of thousands of purely domestic calls each year in the process). The FBI has direct access to this material, and can use it for general criminal purposes through so-called “back door searches.”

Military officials also collect domestic intelligence for “force protection.” A military unit that was caught spying on anti-war protesters under this authority was disbanded in 2008, but the Defense Intelligence Agency picked up its “offensive counterintelligence” duties and re-established an intelligence database in 2010. National Guard units and civilians working at military agencies have been caught illegally spying on domestic protesters, and more recently, engaging in undercover law enforcement activities in violation of the Posse Comitatus Act, a law prohibiting U.S. military personnel from enforcing criminal laws.

Second, military agencies and personnel participate in formal and informal information sharing programs on the federal and state level, including between FBI Joint Terrorism Task Forces, state and local law enforcement intelligence fusion centers, and information sharing networks like the Navy’s Law Enforcement Information Exchange (LInX), and the FBI’s eGuardian program. Though there are legal limits to the type of work military officials can do within these programs and the information they can share, there is little to no oversight conducted to ensure they follow the law.

Third, military intelligence tactics and attitudes rub off on law enforcement personnel assigned to intelligence matters. Most nations outlaw espionage, so foreign intelligence activities have to be carried out through stealth and deception. Avoidance of the law and contempt for the truth can become habitual among intelligence officials, but they simply have no place in a democratic government’s interactions with its own citizens. Yet, throughout the history of domestic intelligence operations in the U.S., law enforcement officials have gone to the military intelligence toolbox in selecting their methods.

In 1976, the Church Committee called the tactics J. Edgar Hoover brought to bear against civil rights and peace activists in the United States “techniques of wartime” better suited for use against agents of hostile foreign nations like the Soviet Union. The Attorney General issued guidelines to ensure future FBI intelligence activities would focus on criminal activity. The Justice Department imposed similar regulations restricting state and local law enforcement criminal intelligence systems.

Restricting domestic intelligence collection to suspected criminal activity is essential to the concepts of limited government and individual liberty, whose foundation lies in what Supreme Court Justice Louis Brandeis called “the right to be left alone.” It also reinforces the rule of law. Methods used in criminal intelligence gathering tend to get exposed in the prosecutions that follow their effective use. Defendants can then challenge their legality, while judges, juries and the public can weigh whether the government tactics are appropriate. Law enforcers can’t be law breakers.

Unfortunately, the federal government has loosened or ignored law enforcement guidelines restricting intelligence gathering in the years since 9/11, removing or weakening the criminal predicates necessary to ensure a proper focus on illegal activity. The results were predictable —increased police spying on minorities and political dissidents and increased efforts to escape judicial and public oversight. Federal law enforcement agencies have adopted policies of “parallel construction” to mask the surveillance methods they use to gather evidence, misleading courts and depriving defendants of their right to challenge their constitutionality. Where evidence of improper FBI surveillance has leaked to the public, the Justice Department invoked “state secrets” to shut down litigation. And at the request of the State Police and FBI, the Virginia legislature exempted its intelligence fusion center from open government laws.

In a recent interview, Erik Dahl, a former Navy intelligence officer and now a professor at the Naval Postgraduate School, explains why someone who trained to spy on the Soviet Navy shouldn’t be involved in domestic intelligence gathering.

Trained by the military to spy on hostile foreign nations, Dahl cautioned that “you wouldn’t want to hire me to conduct domestic surveillance.” His statement should serve as a warning to those in Congress who authorized the NSA to play a major role in seizing Americans’ electronic communications (and want to give it more authority over U.S. cyber security), and sat silent as the FBI has transitioned into a domestic intelligence agency.

It should also serve as a warning to federal, state and local law enforcement officials. As these agencies have increasingly claimed a role in intelligence collection, they’ve looked to the military and foreign intelligence agencies for tactics, expertise and personnel, without sufficiently recognizing the important distinctions between domestic and foreign intelligence.

The negative public reaction to recent militarized police tactics and equipment is an indication of the unease Americans will feel with militarized law enforcement intelligence efforts. Americans trust the NSA far less than their local police. But when the local police begin adopting intelligence methods used by the NSA and other foreign intelligence agencies, they will begin to lose that essential public support.

No one disputes that there are violent criminals, spies and terrorists within our country and that our law enforcement officials need adequate intelligence tools to catch them. Requiring that police focus on illegal activity doesn’t impair their mission, it puts these threats squarely in their cross-hairs. It is no surprise that Dahl’s research on successfully prevented terrorist attacks show that traditional law enforcement techniques are far more effective than NSA mass surveillance programs.

As Dahl suggests, we need to have a “much better public discussion about intelligence.”

To read an edited transcript of Erik Dahl’s interview, click here