Will we allow ICE to behave as a secret police?

I had missed the story from two weeks ago about what happened after (apparent) agents of the U.S. Immigration and Customs Enforcement (ICE), one wearing a balaclava to hide his face, seized two men at the Charlottesville, Va. courthouse. The sequel, as reported by the Daily Progress, the local paper, was that an *unnamed* (!) ICE spokesperson threatened to prosecute two persons at the scene who challenged the action and asked the agents to identify themselves or show a warrant. The headline read: “ICE promises bystanders who challenged Charlottesville raid will be prosecuted.”

Leave aside the question of when if at all it is proper to prosecute bystanders under these circumstances. Why is it considered acceptable for ICE enforcers to wear masks to hide their identity in the first place? They did so last week, video shows, when they arrested the mayor of Newark, N.J. as he protested at a detention facility, as well as in raids around the country. A casual news search reveals that ICE agents have worn face coverings, sunglasses, ski masks and the like in raids and stops reported from around the country. (Westminster, Md.; Douglas County, Colo.; Great Barrington, Mass.; Bellingham, Wash.) ICE agents wore masks when they abducted Turkish grad student Rümeysa Öztürk, recently freed by a judge. It’s now standard practice.

At what point have we as a nation crossed into having a secret police?

People who mask themselves before adversarial street confrontations ordinarily do so to avoid legal and public accountability, especially when they are up to no good.

You don’t have to take my word on this. In its letter sent to Harvard University April 11, the Trump administration insisted, as one of its demands to toughen student discipline, that “Harvard must implement a comprehensive mask ban with serious and immediate penalties for violation, not less than suspension.” Its rationale was straightforward enough: if student demonstrators could conceal their identity, they might break laws or rules with impunity.

So can ICE agents — or at least whoever is conducting these raids and stops in ICE’s name. Aside from the masking, agents in videos are often seen wearing apparel so random and ill-assorted as to have sparked speculation that they are persons borrowed from local or state law enforcement or even private agencies. It’s hard to know when evading identification is part of their plan.

Defenders of the practice say if the identities of arrest teams were known, they or their families might become targets for public shaming, shunning or even violence. Similar concerns haven’t deterred judges, who in the past year have come under a wave of threats, often serious. Despite the real fear, judges haven’t resorted — and in a free society, can’t resort — to secret trials.

Hypotheticals about whether masking might have proper uses under the most extreme circumstances — say, in arresting leaders of a drug cartel known for retaliating against law enforcement — are hardly relevant to the federal detentions in recent weeks, which have often targeted persons with no police record at all, let alone a record of violence. But masking — like overkill in weapons and in numbers of agents sent in — does convey a message of intimidation.

For the Trump administration, making masked raids a general and systematic practice is just part of a wider effort to dodge accountability for potentially illegal and unconstitutional actions. In the contempt proceedings over its alien removals, for example, the Department of Homeland Security has defied a judge’s insistence that it make clear which individual officials made key decisions, a necessary step if judges are to fix proper accountability.

And the administration’s newest rumbling — that it might try to suspend the writ of habeas corpus itself — can be viewed in one light as an even wider bid to escape identification and responsibility for misconduct. It is through habeas and similar proceedings, after all, that judges can ascertain that a particular raid detained the wrong person by mistake, or detained someone in the country legally or who is a citizen — mistakes that fuel public ire and demand for better controls on the process. (In practice, the hints of suspending habeas are lawless, because the Constitution puts Congress in charge of such a suspension and requires that it both occur in time of invasion or rebellion, which isn’t now, and that it separately be necessary for the public safety.)

Whether or not they follow through, the administration’s rumblings about suspending habeas show clearly where they’d like to head. No habeas? No public revelations about who was wrongly taken and what was wrongly done to them. And ever more impunity for an administration that seems hell-bent on trampling essential constitutional liberties.