“Our long nightmare will soon be over” is a phrase that one wouldn’t have been shocked to hear issued from the lips of liberal pundits or Joe Biden supporters as it slowly became apparent, in the days following the election, that the Trump presidency’s days were numbered. It was perhaps more surprising to learn that those same words were uttered by an unnamed official from the Department of Homeland Security in a BuzzFeed article published on November 7, in the last paragraph of a piece that interviewed some 20 officials from the department to gauge their reaction to the election results. Employees from a variety of agencies, including the U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection, anonymously and nearly unanimously expressed their relief that with the end of the Trump administration, “the chaos may end,” and they could finally “work with confidence” to “carry out our mission for the American people again.”
This message from DHS sharply abuts the reality of the last four years, particularly of ICE and CBP, agencies that willingly and, in some cases, enthusiastically carried out the most heinous of Trump’s “zero tolerance” immigration policies, which have in many cases blatantly disregarded international law. This has included the forceful separation of families at the border; the enforcement of the “Remain in Mexico” program; and the indefinite detention of refugees and migrants, including small children, in disturbing jail-like conditions. While some of these officials now cite their “relief” at being able to return to a more orderly state of affairs without having to “compromise” their “morals or ideals,” as one DHS employee put it in the article, it bears remembering that ICE’s union endorsed President Trump in both the 2016 and 2020 elections—a point that has somehow gone unnoted.
The uncritical tone of Buzzfeed’s article perhaps marks the beginning of a new and disturbing period for the media, one that features the sanitization of the reputation of ICE and other DHS bodies, as well as a willingness to paint over the atrocities committed by these agencies and simply move forward from them. Influential administration figures might pursue this path, as well. Last week, members of Joe Biden’s transition team seemed to advocate such a response, demurring on whether the incoming administration should investigate the atrocities of the Trump era in the name of not wanting to stoke divisions. Biden has promised to unravel some of the most horrific components of Trump’s immigration policies, but he has not yet committed to a broader rethinking of those policies or to a much-needed reckoning with the state-sponsored violence against immigrants that has taken place during the Trump era.
In this vein, Biden is far more likely to seek to restore the purported “professionalism” of the agency—which committed its fair share of abuses before Trump was president—than to, say, abolish it or to seriously question the framework of immigration enforcement in the first place, which will continue to perpetuate human rights abuses regardless of who is president.
It is hardly surprising, then, that the DHS agents interviewed by BuzzFeed don’t seem to be concerned about any reprisal for their own actions under the Trump administration but rather look forward to a return to business as usual, which will allow them to carry out many of the same immigration enforcement activities in a more orderly fashion. For the higher-ups in the agency, it’s unclear what manner of accountability might occur beyond shifts in policy and personnel.
The abuses that have occurred over the last few years are anything but normal and, in many cases, have amounted to human rights abuses under international law, planned at the highest level of government. And the thousands of migrants and refugees who have faced irreparable harm, trauma, and death over the past four years as a result of those same policies don’t have the luxury of simply erasing these abuses from memory and moving on.
“It’s impossible to move on without looking to the past, and without addressing these harms,” said Charanya Krishnaswami, the advocacy director for the Americas at Amnesty International. “The first step is, we need to have accountability so these things can never happen again.”
But what would accountability even look like, in this case? As Krishnaswami explained, Biden’s commitment to reversing the wrongs of the past administration is a vital first step. In the case of family separations, this would mean reuniting the families that were separated under the prior administration and giving them a legal way to return home or remain in the United States. A bill introduced by Texas Congressman Joaquin Castro and Connecticut Senator Richard Blumenthal last year seeks to do exactly this. Biden has also promised to end the “Remain in Mexico” program, surge the number of asylum officers and immigration judges at the border, and end private immigrant detention.
Advocates maintain, however, that the incoming administration must also acknowledge the gravity of the crimes committed by its predecessor and hold those responsible to account. As Colleen Murphy, a professor at the University of Illinois, Champaign, whose research focuses on transitional justice, underscored, “One of the goals of the transitional justice framework is to draw a line between conduct permitted in the past and conduct that will be acceptable moving forward.”
In postconflict societies across the globe—such as those that emerged from the Latin American dictatorships and civil wars of the 1970s, ’80s, and ’90s—transitional governments have created truth commissions to investigate state-sponsored human rights violations committed under their predecessors, often under or with support from international institutions, to varying levels of success. Such programs have identified those responsible for authoring and carrying out human rights abuses, as well as their victims. In the case of family separations, a truth commission could be convened by either Congress or executive branch agencies, or through a newly formed, independent commission, said Krishnaswami.
Lawmakers like Alexandria Ocasio-Cortez have called for a 9/11-style commission to contend with the horrors of the family separation policy. According to Murphy, such a commission could go far in terms of “publicly acknowledging” that what went on under the Trump administration was unacceptable, identifying the responsible parties.
Historically, many transitional justice processes have stopped here, offering amnesty to those who carried out human rights abuses in the name of keeping the peace and moving on. Others have secured convictions for the intellectual authors of human rights abuses, while providing amnesty to lower-level officers who were, as they say, simply following orders.
“Given that we know that these actions in many cases amounted to torture, there has to be some level of individual accountability,” said Krishaswami. This could take the form of criminal or civil sanctions or convictions. Such an avenue could certainly be warranted in this case—and it’s difficult not to feel satisfied by the idea of someone like Stephen Miller going to jail for developing the family separation policy.
But criminal convictions for DHS higher-ups might not prevent such crimes from reoccurring or keep the worst offenders of this era from worming their way back into public life. In post-dictatorship societies such as Brazil and Peru, postwar developing democracies such as Guatemala and El Salvador, or apartheid-era South Africa, a lack of perceived consequences for lower-level law enforcement officers who carried out abuses has in some cases allowed political parties and law enforcement agencies representing the same interests to remain within circles of power. For example, in Guatemala, even though the general and dictator Efraín Ríos Montt was convicted of genocide for the mass killing of Indigenous people during the country’s civil war, a number of postwar presidents were either former military officers from that period or backed by them. That political structure of impunity has played no small role in creating the conditions that have compelled so many to flee the country today.
So, even in the unlikely case that both Stephen Miller and Donald Trump will be convicted for crimes against humanity, their legacies could still live on. And the Republican Party, which turned a blind eye to and abetted their abuses, will continue to be a major political party under the influence of Trumpism.
Based on his recent comments, it is probable that Biden won’t seek prosecutions for Trump and his acolytes, a decision that might dampen the public’s demand for accountability. In October, liberal lawmakers, recognizing this possibility, sought international censure in a letter to U.N. Human Rights Commission chief Michelle Bachelet. Therein, they outlined the litany of abuses suffered by immigrants, particularly the recent allegations of doctors performing forced sterilization on women in detention. “While we pledge to do all that we can to investigate any and all allegations of human rights abuses domestically,” they write, “the variety of rights issues in question, the sheer number of complaints, and the serious nature of the allegations necessitates an international response. As the foremost U.N. official charged with protecting human rights, we call on you to lead that response.”
International investigation and condemnation could reinforce the political will within the U.S. to investigate these crimes, establish a mechanism for accountability for the perpetrators, and seek redress for victims.
Krishnaswami believes that any such redress must include financial compensation for what immigrants endured during the Trump era. While this is a long shot politically, she notes that there is some precedent, such as after the internment of Japanese citizens after World War II and for victims of the 9/11 terrorist attacks. In the former case, these reparations only occurred after decades of political activism and pressure. It’s hard to imagine something like this happening under any U.S. administration, much less for noncitizens, and without a broader commitment to reparations for all victims of state violence, such as the families of victims of police killings.
Redress will also require some self-reckoning. “The task of this administration is not only to address the abuses that happened during the Trump administration but also to take this to a better place and not to repeat the mistakes of the earlier Obama administration,” said Eunice Cho, senior staff attorney at the American Civil Liberties Union’s National Prison Project. For her, that means “broad policy change,” including ending immigration detention.
It is only through looking backward and seeking accountability that we can “really build the political will for a systemic overhaul of our immigration and asylum system and all of the cruelties that are allowed to proliferate within it,” said Krishnaswami. And that won’t happen if DHS and ICE officials are let off the hook.
Absent criminal prosecutions, there are perhaps other avenues for accountability outside the legal system, she continued. We shouldn’t underestimate the role of public naming and shaming. “Accountability can also look like making sure none of these people are ever able to sashay back into the private sector or some cushy lobbying job at a firm, or even back into the halls of power,” she said.
What lies ahead as the major challenge to restorative justice for those immigrants victimized by the Trump administration is simply the fact that the structure of our immigration system, which is in and of itself founded on decades of human rights abuses, is likely to endure. Neither Biden’s platform on immigration enforcement nor his recent Cabinet picks lend much hope for that changing anytime soon, despite cries to abolish ICE and a recent bill introduced in the House to overhaul the DHS. The abuses of that system existed long before Donald Trump took over. For the Democrats, contending with the wrongdoings of the Trump administration will, or should, force them to reckon with policies that they have either supported or developed themselves..