ICEpick Leak of DHS Employee Data Could Bring the U.S. One Step Closer to Transitional Justice
Dictators love secrecy because it enables them to deny the obvious; they rely on lies to deflect criticism about their violence. I have watched a lot of dictatorships end, and I’ve noticed that as democracy is reestablished, the first thing that civil society demands is the truth about who did what to whom. This is crucial for Americans to remember right now.
I’ve built databases, analyzed perpetrator institutions, and conducted statistical analysis for ten official truth commissions from El Salvador to South Africa to East Timor. I’ve been an expert witness for the prosecution in trials for war crimes, crimes against humanity, and genocide. And I’ve used data to analyze petitions for amnesty for grave crimes in Colombia and to vet military officers for international assistance in the Democratic Republic of the Congo. When these processes accompany the end of dictatorship and the reestablishment of democracy, they are called transitional justice.
The moment is coming to use the methods the global human rights movement developed in other countries to address the human rights crisis created by the Trump Administration. I’ve learned from human rights leaders that one of the first steps is to identify the agents doing the violence and to prepare evidence linking those agents to their violent acts. Democracy activists in the US have just gotten a terrific head start on that work.
Last week, hackers published a database containing the contact information of 41,000 Department of Homeland Security employees, including tens of thousands of ICE and U.S. Customs and Border Protection (CBP) staff. The dataset was released by Distributed Denial of Secrets, a U.S. nonprofit that publishes a library of leaked documents of public interest (the hackers were from a separate group).
ICE and CBP agents have been accused by victims’ families and by local prosecutors of severely injuring and killing US citizens and dozens of noncitizens. There may soon be criminal charges, such as those filed by Harris County, TX, prosecutors against ICE agent Mario Alberto Morales for second-degree aggravated assault with a deadly weapon for hitting a man with his SUV.
This newly published dataset of ICE and CBP agents could prove useful in future efforts to hold agents criminally and civilly liable for the killings and other violence. As we know from more than three decades working in transitional justice, identifying individual agents is a key step in establishing command responsibility and seeking transitional justice following a change in leadership.
Information about agencies that have committed violence is a great start, but it’s only one half. The other half is the victims’ stories. Right now these are all over the media, social media posts, and in people’s personal phones and laptops. Organizing this information is beyond HRDAG’s work; it is the work of social movements, political movements, and human rights organizations as they prepare for the transition.
To be clear, I am not arguing that ICE and CBP agents have or have not committed gross human rights violations (some acts may be criminal, some may be human rights violations, most violent acts are both, but there are some differences between the international treaties and US law). There are endless reports in the media interpreted by opinion writers from every point in the US political spectrum for that conversation. If the US manages to create a transitional justice process in the future, that process will define its own evidentiary standards for determinations of agents’ responsibility for grave crimes. We may have criminal trials, proceedings to grant amnesty, or determinations about whether agents’ behavior means they should be prohibited from holding police, military, or political roles in the future (called lustration, a key feature of the peace accords in El Salvador).
Whatever the scope, definition, and jurisdiction of future transitional justice mechanisms may be, they’re going to need the evidence of the violent acts and of the agents who committed the violence. That begins with the command structure of the state agencies: who reports to whom?
The importance of understanding the command structure
The principle of “command responsibility” allows leadership to be held accountable for abuses committed by subordinates by matching evidence of violations with orders issued from above. But what’s “above?” Who reports to whom?
The key problem pro-democracy activists face after dictatorship is that the most violent agencies tend to be secret. This is the challenge that future US pro-democracy activists may face when trying to use victims’ videos and testimony in which the agents’ faces are obscured by masks, their badges hidden, and in which the agents refuse to identify even the agency they serve.
There are many other ways that the agents’ identities will eventually be established, from the agents’ cell phone location records, to their testimony against one another once the hearings begin, to the CBP and ICE records and logs that will become part of future transitional justice hearings and trials. By knowing the command structure long before the transition begins, pro-democracy activists can more efficiently prepare.
Once we can begin to reconstruct the organizational structure, and once we know the names of a few agents accused of excessive force, we can begin to connect the victims’ stories and evidence with specific agents, and to see how violence likely accumulates disproportionately with certain subagencies and commanders. That work can begin now.
The opportunities are clear. Vanessa Romo, reporting for NPR, pointed out that the recently leaked personnel data explicitly revealed command authority: “[T]he really interesting thing about the way the online tool works is that every personnel file includes the names of supervisors and direct reports. So you can actually follow the chain of command, which we haven’t been able to see before in such an explicit way.”
Linking command structure and reports of violent events
As we’ve written, dictatorships generate a lot of data. All governments, including authoritarian ones, delegate the authority to commit violence in the name of the state to military, police, or paramilitary groups. To ensure agents carry out orders, leaders create bureaucratic systems that formalize policies and record actions down the chain of command. State-sponsored violence relies on directives flowing down from commanders to subordinates, as well as operational reports sent back up to leadership. We have analyzed these structures for trials in Chad and Guatemala.
El Salvador offers one of the earliest examples of using modern datasets to establish command responsibility. Throughout the 1980s during the civil war between the guerrillas of the FMLN and the Salvadoran government, communities documented acts of violence committed by military and police forces. Victims and witnesses shared testimonies with lawyers, while photographers documented visual evidence and forensic anthropologists exhumed the remains of people killed and disappeared by the military. The war ended in 1992 with Peace Accords between the government and the FMLN. One part of the Accords established the Ad-Hoc Commission which was given the responsibility of determining which military officers had committed the worst violence – and requiring them to retire.
In 1991-1993, I worked for the non-governmental Human Rights Commission of El Salvador (CDHES in the Spanish acronym). I developed software that linked the career histories of roughly 400 top military officers with 10,000 witness testimonies to demonstrate which officers consistently commanded the most abusive units. Our work (and similar work by other human rights groups) was successful: the Ad Hoc Commission’s report identified the same 100 officers we documented, and after a bit more public debate, they retired.
The work in El Salvador marked the first time databases and statistical methods helped non-governmental organizations fight impunity. Since then, this methodology has been replicated globally in countries seeking reconciliation after periods of state violence.
I mentioned above our work in Chad, where we used testimonies from the Chadian Association of Victims and Political Prisoners (AVCRP in the French acronym) with records from the secret police; analyzing the secret police’s command structure was a key part of one of our reports.
In Guatemala, my 2013 testimony in the trial of former director of the National Police Col. Héctor Bol de la Cruz showed how the police bureaucracy’s information flow in the disappearance of Edgar Fernando García, a student and labor leader, was the same as the information flow in other cases: plans and orders came down the chain, and reports from agents who executed orders flowed back up the chain. We were thereby able to rebut the defense’s claim that Col. Bol de la Cruz did not know about the disappearance and that it was somehow an aberration in his effort to reform the police.
Personnel records identifying individual agents—similar to those published by Distributed Denial of Secrets—were crucial to constructing those cases.
For an example of using community and open source records to map violence by police in the United States, see mappingpoliceviolence.org.
For more research on command responsibility, I recommend looking at Security Force Monitor. Inside the United States, we have the Louisiana Law Enforcement Accountability Database, the National Police Index, Watch the Watchers, and the Police Records Access Project, among others.
While transitional justice remains a relatively new concept in the United States, it provides a proven framework that other nations have used to address periods of state violence. Establishing accountability begins with collecting and securely archiving evidence, including video footage, testimonials, and leaks like the ICEpick dataset.
Photo credit: Armed Federal Agents on Park Avenue in Minneapolis. Photo by Chad Davis, CC BY 4.0, via Wikimedia Commons
