ICE Announces the Arrest of War Criminals and Persecutors: an Institutional Look Back

By Dan Cadman on September 6, 2019

Immigration and Customs Enforcement (ICE) has issued a press release announcing the arrest of 39 aliens who, it alleges, managed to make their way into the United States despite backgrounds in their home countries as war criminals, human rights abusers, and persecutors.

That such a thing should occur is not a surprise, and is no new phenomenon. The Justice Department's Nazi hunters — the Office of Special Investigations (OSI) — was created after Congress became irate that the then-extant Immigration and Naturalization Service (INS) failed to do an adequate job of weeding out former concentration camp guards and others in the decades after World War II.

Of course, there is irony in that fact that some very famous cogs in the Nazi machine (e.g. Wernher von Braun, father of the German V-2 rocket produced by slave labor at Peenemünde, and also father of our own NASA program) were brought to the United States under the auspices of the federal government. In fact there was a race between the Western allies and the Soviet Union to sweep up many of the most prominent scientists who had served the Third Reich and "import" them for their knowledge. But I digress.

While attention was paid to tracking down Nazis, little has been done since, as other war crimes and human rights abuses were committed on a large scale: Mao's purge of China during the "Great Leap Forward"; Cambodia's Khmer Rouge killing fields; Rwanda's genocide; and the Balkan conflict, including the Srebrenica massacre, to name a few. The history of the human race is replete with atrocities.

This neglect was, in a direct and significant way, a repeat of the mistake that INS made when it showed itself timid in initiating investigations against Nazis. Nothing can be more important to the vitality and integrity of a nation's immigration and refugee processes than to safeguard them against misuse by the very perpetrators who force individuals to migrate and seek safe haven from their persecutors to begin with.

In the late 1990s, the National Security Unit (NSU) within INS attempted to establish a foothold in this area, concomitant with its other responsibilities. One of its first hires was a distinguished former OSI investigator (who had migrated to OSI from INS to begin with). Another hire was provided to the State Department's Office of War Crimes on long-term detail.

But, at least initially, there was a surprising amount of institutional resistance within certain pockets of the Justice Department, of which INS was a part. It was felt that such investigations should be left to the FBI or the OSI — even though the latter organization had no mandate or authority then to conduct anything except Nazi investigations, and even though INS clearly had the statutory authority and jurisdiction to conduct such investigations. Both the exclusion and deportation charges found within the Immigration and Nationality Act render an alien removable for engaging in acts of persecution. (See 8 U.S.C. Sec. 1182(a)(2)(G), 1182(a)(3)(E)(ii) and (iii), and 1182(a)(3)(G) for the grounds of inadmissibility; and 8 U.S.C. Sec. 1227(a)(4)(C) through (F) for the deportation grounds.)

In the end, though, it was not the institutional resistance that held back these nascent efforts on the part of INS's National Security Unit: The timing was inauspicious, because it coincided with a breaking of the dam, if you will, where international terrorism was concerned and NSU (always a small entity) was obliged to dedicate nearly all of its productive hours to working with the FBI, CIA, and other government agencies on the first World Trade Center bombing and other like matters, culminating of course with the infamous 9/11 attacks.

Even so, that part of the NSU mission was never fully abandoned, and however mixed my feelings are about the merger of the INS and Customs investigative arms in other subject matter areas — mostly because I think many immigration enforcement efforts have been strangled by ICE's Homeland Security Investigations division — one thing that ICE's leaders did right was to breathe new life into its efforts at detecting and removing, and sometimes prosecuting for visa or naturalization fraud, persecutors from all parts of the globe.