Blog of Rights

Sharing Prints: DOJ and FBI Must Take Responsibility for S-Comm Failures, Too

By Chris Rickerd, ACLU Washington Legislative Office at 3:32pm

It’s long past time for the Department of Justice (DOJ) to stop passing the buck on Secure Communities (S-Comm) and take responsibility for the controversial immigration enforcement program. S-Comm has caused unprecedented harms to public safety and community trust in the police: DOJ must urgently take action to end this disastrous initiative.

S-Comm has been implemented by Immigration and Customs Enforcement (ICE) in 1,659 jurisdictions across the country, disregarding the opposition of numerous states and localities. Under S-Comm, the FBI shares the fingerprints of every arrested person with the Department of Homeland Security (DHS) — despite the fact that sharing these prints contravenes agreements made between the states and the FBI.

The FBI publicly acknowledges that it doesn’t own the fingerprints: “They’re owned by the states, by the 18,000 law enforcement agencies across this country. They submit them to us and allow us to use them, we hold them and distribute them per [our] agreements with each of the states. And every state has a different law governing what records can be distributed and what they can be used for.” Documents recently obtained in an ongoing Freedom of Information Act (FOIA) litigation by the Center for Constitutional Rights, NDLON, and Cardozo Law School demonstrate that FBI brass know they’re violating these agreements. Recently uncovered e-mail exchanges among top FBI officials prove it.

FBI Assistant Director Jerome Pender, then in charge of the Bureau’s Criminal Justice Information Services (CJIS) Division, wrote on May 10, 2011 about the dilemma S-Comm causes for the FBI: “[W]e are stuck in the middle of a nuclear war. I don’t think we need DHS direction. I think we need AG direction. If we have to decide, I don’t see how we can use the [fingerprints] in a way the [state] owner explicitly bans. This could cause the whole CJIS model to implode.”

His CJIS colleague replied: “I agree. Any way we go will contradict one of our partners.”

The FBI and DOJ have been lying low on S-Comm, deferring inquiries to DHS despite being the conduit for S-Comm’s fingerprint-sharing. But Attorney General Eric Holder has the obligation to weigh in on S-Comm by honoring the FBI’s agreements with the states — the undisputed owners of these fingerprints.

DHS plans to implement S-Comm nationwide by 2013, despite knowing that the program violates contractual obligations between the states and the FBI. S-Comm is wasteful, has been rejected by the governors of Illinois, New York, and Massachusetts, encourages racial profiling, and prevents immigrants from reporting crimes. It has led to the detention and deportation of innocent crime victims and witnesses, including domestic violence survivors.

The DOJ is aware of all these problems, too. The DOJ’s Civil Rights Division has reported on and is currently investigating a significant number of jurisdictions in which S-Comm has been implemented, for discriminatory policing targeting Latinos and other immigrants. Yet S-Comm continues to operate in these places.

The recent FOIA revelations provide yet another reason why DOJ isn’t an innocent party in the implementation of S-Comm. The nation’s leading law enforcement agency must not continue to breach its agreements with state and local partners, whose voluntary fingerprint submissions are the lifeblood of the FBI’s criminal investigations. DOJ must immediately re-commit to honoring its agreements with the states, and terminate the FBI’s involvement with S-Comm — a failed program that harms public safety every day.

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