ICE: Intelligent, Competent, Enforcement? Not Quite

In yet another example of why, as the presidential candidates have so accurately and understatedly described, the workings of the federal bureaucracy need to change, Immigration and Customs Enforcement (ICE) continues to demonstrate that despite being part of the Department of Homeland Security, it simply is nowhere near on top of the national security game.

In a nutshell, an influential New Jersey Muslim leader whom U.S. authorities had sought to deport by proving his link to terrorist activity has won his fight to gain permanent U.S. residency. A federal immigration judge in Newark ruled last Thursday that Mohammad Qatanani, the spiritual leader of the Islamic Center of Passaic County, can remain in the U.S.

Through the obvious mishandling of a case which, based on its subject matter, had to be considered high profile and very sensitive, the leadership of ICE has once again proven that it cannot be trusted to competently meet its statutory obligation in the counterterrorism arena.

As reported, significant reasons for this outcome were public statements of support and the testimony of certain law enforcement officials on behalf of the suspected terrorist.

These were no ordinary officials. They included United States Attorney Christopher Christie, the Special Agent-in-Charge of the FBI's Newark Office, Assistant U.S. Attorney Charles McKenna, and at least two local sheriffs.

Additionally, the immigration judge tossed the case because ICE did not get the FBI and other involved agencies, foreign and domestic, to produce specific and credible evidence regarding Mr. Qatanani's supposed terrorist activities in the Middle East.

As a former federal litigator who has tried similar cases, I might just write this off as a "bad day in court" or "a case gone awry." However, because I am a former immigration prosecutor, I suspect that neither is anywhere close to the truth.

In a quick overview of how these types of cases work, the operative factor is that at ICE every national security case must be vetted and approved at headquarters before it can proceed. The command group of the ICE Office of Principal Legal Advisor (OPLA) insists on controlling every facet of the litigation—from strategy, to evidence, to pleadings, to arguments, and to even the actual examination of witnesses. They insist on this procedure for every case, no matter how experienced, knowledgeable, or accomplished the assigned field national security litigator is.

The OPLA command group consists of highly paid attorneys who, if they were once trial lawyers, typically have not tried a case in over a decade.

Moreover, unless things have drastically changed in the year since I left the agency, none of them has ever tried a national security case.

So, what could have gone wrong?

Cases like Qatanani's are almost never generated by ICE itself. Instead, they come to ICE from one of the federal agencies whose mission includes collecting intelligence on terrorists or spies. Because of the nature of intelligence sources, the information is almost always classified.

Thus, and as I taught national security litigators and agents at the old Immigration and Naturalization Service and at ICE, whenever you seek to proceed in a national security case, one of the first things you must do is to ensure "buy in" by ALL of the involved agencies. That is done by meeting face-to-face with all your involved agency principals and getting them to at least nod their heads in agreement in a room full of witnesses if they will not commit in writing.

Beyond that, and since ICE is not yet an independent intelligence collection agency, you have to get the documentary intelligence and usually classified evidence from the pertinent agencies. If those agencies really want you to take the case, they will always give up the information. Remember, in all but the rarest of cases, they ask ICE to take the case to do what the United States Attorney's offices can't or won't do because of the classified nature of the evidence. After locking up a copy in an appropriate safe, the next move is to have as much of the evidence declassified as possible so it can be introduced as evidence in the immigration removal proceeding.

Then, and only then, do you accept the case. And that is only if and when the appropriate agency commits to assign its agents to you for supplemental investigative purposes.

So what happened with Qatanani? A good guess is that the OPLA command folks forgot a couple of steps. The judge's ruling indicates they did not get the evidence up front and did not secure the commitment and assurances of everyone they needed before they ordered the case to proceed.

So, the unfortunate litigators on the hook went in without any insurance, without their evidence, and without the required witnesses. Instead, they were apparently authorized to present only one ICE agent and one FBI agent, neither of whom had real knowledge of Qatanani's background, as the witnesses who could serve to prove up their case.

But as the OPLA "commanders" controlling this litigation should know, federal law enforcement agents can testify only to what they have been allowed to see by the actual intelligence agencies, and to what they have been authorized to say about that evidence in open court.

In Qatanani's case, that wasn't very much. And thus the ICE effort in this case was on a nosedive to defeat before it even began.

But when an Assistant United States Attorney - with the permission of the U.S. Attorney himself - and two top members of local law enforcement were allowed to testify on behalf of the alien, the case went past defeat, and on to oblivion.

Beyond the fact that the testimony of these officials would adversely impact the ICE case, the testimony of the AUSA, in particular wreaked havoc on ICE's assertion of terrorism based on the perceived superior position of the U.S. Attorney's Office in the world of federal counterterrorism. The mere fact that the AUSA was allowed to testify unchallenged proves at the very least that the ICE effort was, at best, misplaced.

Moreover, any experienced federal attorney, litigator, jurist or senior official would know that federal officials of the Department of Justice cannot testify about matters pertaining to their official duties unless they have been cleared to do so under such regulations as 28 CFR Part 16. Absent other information, the judge would have had to presume that the AUSA had permission to testify on behalf of the alleged terrorist from the U.S. Attorney himself and even from the Department of Justice in Washington, D.C.

Additionally, experienced litigators know that such permission involves a request and approval process that, as bureaucracy would have it, results in the issuance of a piece of paper that serves as the authorization IF the official is allowed to testify.

In this case, maybe the AUSA had such consent. But if he did, why did the prosecution continue at great cost, monetarily and otherwise, to Mr. Qatanani, the U.S. taxpayer, and future efforts to deport foreign nationals involved in terrorism?

I'll go out on a limb and say that it is a pretty good guess that the AUSA didn't have written authorization. Otherwise, the matter would have quietly disappeared off the radar screen long before the judge threw it out of court.

What I don't have to guess about is that:

1) The US government was charging Mr. Qatanani with involvement in acts of terrorism abroad.

2) The US government should have had a good faith basis for doing so.

3) To have a good faith basis, ICE would have had to rely on one of the intelligence collection agencies for its evidence.

4) In the United States, the FBI has primary jurisdiction over counterterrorism matters and intelligence.

5) The U.S. Attorney should have been clued into Mr. Qatanani's activities, if he was in fact a suspected terrorist residing in his jurisdiction.

6) The U.S. Attorney should not have been allowed by the Justice Department to have one of his prosecutors testify in this effort to deport Qatanani as a terrorist.

And that leads to one last thing. An experienced and motivated litigator would have taken advantage of voir dire (the procedure allowing a lawyer to question a witness before they are allowed to testify fully to determine if they should be disqualified as a witness in the particular proceeding) to stop this car crash from happening. Such a knowledgeable immigration prosecutor would then have made a motion to disqualify the Department of Justice witness from testifying for the other side.

So, why wasn't the AUSA disqualified from testifying? He should not have had permission to do so from DOJ. He could not testify about everything that the U.S. Attorney's office may know about Qatanani. And as a federal prosecutor, his testimony was in conflict with the U.S. government's effort to deport an alleged terrorist.

Either the AUSA had permission to testify – pitting two arms of government against each other - or, as is more likely, the assigned ICE attorneys were not given permission by OPLA command to oppose his testimony.

Again, if the AUSA had permission to testify, OPLA never should have approved the case for prosecution.

And if he did not have such permission, ICE OPLA should have done its job and allowed the involved field prosecutors to use everything in their arsenal to prevent another representative of the federal government from literally destroying their case.

Whatever else really happened, two things are clear:

This case never should have gone forward - either because Qatanani is not a terrorist, or because ICE OPLA simply and obviously did not know what it was doing and how to do it.

And, if he has been involved in terrorism, Qatanani, courtesy of ICE, may have just managed to cripple the credibility, if not the careers, of the field litigators and agents, as well as ICE's future efforts in such cases as the terrorist removal action against one of the "Liberty City Seven" currently underway in Miami.

As the presidential candidates have said, major change is required in the federal bureaucracy.

Let me suggest that, whoever wins, they may have a really easy place to start.

Dan Vara was the INS District Counsel in Miami, Florida from 1990 until 2003. He was also the Chief Counsel, ICE, in Orlando, Florida from 2003 until 2006. As the highest ranking federal immigration attorney in the State of Florida, he was at the forefront of many significant immigration enforcement matters involving counterterrorism and counterintelligence. He was also an instructor on such matters at INS, ICE and FBI conferences. He is now in private practice in South Florida.