American Civil Liberties Union

This was cross-posted to The Huffington Post. 

Today, the Senate Judiciary Committee will hold a hearing entitled "Building an Immigration System Worthy of American Values," where I will testify. The hearing will address how our immigration system currently fails to live up to our Constitution because it does not ensure the due process right to a fair day in court before locking someone away for months in an immigration prison or permanently banishing them from our country. Furthermore, although immigration law is formally termed as "civil," this is legal fiction; in reality, it has the hallmark harshness of the criminal justice system. The outcomes of this system are often devastating, not only for the immigrants themselves, but also for their families.

This week and next, the House and Senate will hold hearings (including this one today) to address the reported release of between several hundred and several thousand immigration detainees from U.S. Immigration and Customs Enforcement ("ICE") custody. Although complete information about the releases is not yet available, ICE's justification that it had determined these individuals could be "placed on an appropriate, more cost-effective form of supervised release" raises a fundamental question, posed among others by Secretary Janet Napolitano herself: why were these individuals detained in the first place?

Apparently as a result of sequester-induced budget cuts, Immigration and Customs Enforcement recently released hundreds of immigration detainees that it found were not risks either to flee or endanger public safety. The fact that these detainees were locked up in the first place confirms a startling truth about our immigration detention system: the government routinely detains people for no good reason. Even Department of Homeland Security Secretary Janet Napolitano promised to examine why these detainees were in jail, saying: "That's a good question. I've asked the same question myself...so we're looking into it."

Cell phone searches are a common law enforcement tool, but up until now, the public has largely been in the dark regarding how much sensitive information the government can get with this invasive surveillance technique. A document submitted to court in connection with a drug investigation, which we recently discovered, provides a rare inventory of the types of data that federal agents are able to obtain from a seized iPhone using advanced forensic analysis tools. The list, available here, starkly demonstrates just how invasive cell phone searches are—and why law enforcement should be required to obtain a warrant before conducting them.