An Examination of Conscience for Immigration Enforcement, Part 2
"What I have done, and what I have failed to do."
Yesterday, I published the first part of an “examination of conscience” for those involving in making or enforcing immigration policy. I considered the many groups who are involved in making or enforcing immigration policy and who may experience conflicts of conscience in carrying out their work. But what are the ethical dilemmas these various groups might encounter, and what principles should guide their consciences as they face those dilemmas? In the second part of this examination of conscience, I finally get to these meaty questions.
The US Catholic bishops, together with the bishops of Mexico, outlined a comprehensive set of principles in their 2005 pastoral letter Strangers No Longer: Together on the Journey of Hope, and they have elaborated on those principles in countless statements issued over the years in response to various legislative proposals and executive actions. One could also look to Pope Francis’s more recent teachings on migration. I won’t summarize these principles here, but they serve as the foundation for what follows.
In The Challenge of Peace, the US bishops likewise summarized the principles of the just-war tradition and then applied those principles to a number of concrete questions, most of them related to the potential use of nuclear weapons. The bishops issued moral judgments intended to form the consciences of those responsible for formulating and implementing nuclear policy. Although this is not made entirely explicit in the letter, these moral judgments can be divided into three categories:
Actions that are categorically forbidden, such as the deliberate use of nuclear weapons (or any weapon, really) against civilian populations or the use of nuclear weapons that would indiscriminately lead to civilian deaths.
Actions that are presumptively immoral, but where moral judgment is not absolutely certain. This category might also include actions that may be justified under very limited circumstances but that should otherwise be considered unethical. Examples from the pastoral letter include the bishops’ judgments that the “proportionate” first use of nuclear weapons in response to a conventional attack should be avoided, as should the limited retaliatory use of nuclear weapons. They argue that the difficulty of conducting a “proportionate” nuclear strike and the danger of escalation make these types of strikes presumptively unethical, even if these are not absolute judgments.
Actions that may or may not be considered unethical after a prudential consideration of the circumstances. These are actions that need to be seriously weighed by one’s conscience but where individuals may legitimately reach different conclusions. For example, the bishops conclude that the possession of nuclear weapons as a deterrent could be justified if it is a step toward nuclear disarmament, but they recognize that others might in good conscience conclude that deterrence of any kind is morally unacceptable. Prudential judgments about the morality of a particular war, in light of the just-war criteria, would also fit into this category, as might the decision to reject violence entirely. This category would also include actions that may be morally acceptable in themselves but that unintentionally further unjust policies.
Catholic ethics also distinguishes between directly carrying out an unethical action, carrying out an action that in some way facilitates the unethical action of another, and participating in carrying out a set of policies that have unjust outcomes. Directly carrying out an unethical action is always wrong, but facilitating someone else’s unethical action or participating in implementing unjust policies (usually described as material cooperation) may or may not be unethical depending on one’s role and the concrete circumstances.
An examination of conscience for those involved in the enforcement of immigration policy, therefore, will draw on the magisterial statements on migration mentioned earlier as a starting point, and then make use of the three categories of actions outlined above and the traditional ethical considerations regarding material cooperation to flesh out a set of moral guidelines. The following list is by no means exhaustive and should be seen as a starting point for moral reflection.
Actions that are categorically forbidden
The following are examples of actions that Catholics and all people of good will should never carry out or participate in because they are violations of a person’s dignity:
Arresting or detaining a person without probable cause; arresting or detaining a person based on their perceived ethnicity or for speaking a non-English language; arresting or detaining a person simply to meet an arrest quota.
Physically or verbally abusing a person while they are being arrested or detained; physically or verbally abusing individuals being held in detention centers; using unnecessary force when arresting or detaining an individual.
Deliberately forcing detained persons to experience inhumane or unsanitary conditions like sleeping on the floor, extreme temperatures, lack of adequate food or water, overcrowded rooms, and exposure to unsanitary bathrooms; knowingly creating such conditions via policy.
As an attorney or witness, lying to the court during an immigration proceeding or court hearing; withholding relevant information, particularly exculpatory information or information that may help an individual obtain legal reprieve.
As an immigration judge, rendering judgments when an individual has been grossly deprived of due process.
Implementing a “quota” for arrests. This creates incentives for law enforcement officials to arrest people without probable cause, to take shortcuts in protecting the rights of those they arrest and detain, and to prioritize non-criminal immigration offenders over serious criminals, who are harder to arrest but pose a much greater risk to the community.
Deporting or detaining individuals without due process, that is, without a chance to challenge their deportation or detention in court.
Detaining individuals in detention centers outside of US territory (such as the Guantanamo Bay detention camp) or arranging for their detention in foreign prisons without a criminal trial; imposing indefinite detention on an individual, whether in a domestic or foreign detention center. Individuals detained outside of US territory lack adequate access to attorneys and to courts, and they are inhumanely deprived of contact with family members.
Deliberately keeping a detained individual’s whereabouts unknown to the public, or capriciously moving them from one location to another, in both cases to make it difficult for the individual to file a habeas corpus petition or to otherwise have access to an attorney or to the courts.
Actions that are presumptively immoral
The following are examples of either actions that may be morally permissible under very limited circumstances but that generally should be avoided by Catholics and others of good will, or actions that there are very strong, although not certain, reasons to conclude are immoral:
As a law enforcement officer, conducting sweeps or arrests using unmarked vehicles, wearing masks, wearing plainclothes, and without identifying yourself or your agency. While these tactics might be justified in certain serious criminal investigations, they are not justified for day-to-day enforcement of immigration violations. They create uncertainty that could lead to a violent situation, invite criminals to impersonate law enforcement officers, and create resentment among the public.
Conducting warrantless searches or sweeps and carrying out unnecessary collateral arrests, that is, the arrest of individuals who happen to be nearby when law enforcement officers carry out a warrant. Warrantless searches and sweeps antagonize the public, are unlikely to lead to the arrest of actual criminals, and can make the arrest and detention of individuals without probable cause more likely. Collateral arrests may be justified under some circumstances, but they can also hinder more serious investigations by making immigrants unwilling to cooperate with law enforcement.
As a law enforcement officer, failing to report physical or verbal abuse of a suspect or detainee, or failing to report other violations of the rights of a suspect or detainee.
As an official with responsibility for a detention center, tolerating a situation in which detainees experience inhumane or unsanitary conditions like those mentioned in the previous section. Those in positions of authority have a responsibility to rectify these conditions or to strenuously insist on receiving the necessary resources from higher authorities.
As a government attorney, advocating in court for policies that involve actions that are categorically forbidden, like those listed above, or defending such actions against legal challenges raised by the victims of such actions.
Deporting individuals to a country with which they have no connection; deporting an individual who has been in the United States since they were a child to their “home” country with which they have little connection; deporting individuals to a country that is unsafe or where their rights will not be respected. In April, the Trump administration deported a refugee from Iraq to the African nation of Rwanda, and plans were being developed to deport more to that country. The administration also attempted to deport several immigrants, most of whom were from Southeast Asian or Latin American nations, to South Sudan, leading to a legal standoff in which the immigrants and the officers accompanying them were stranded at a US military base in Djibouti, living in a shipping container. With some exceptions, deportations to third party countries are cruel and unnecessary. Likewise, it is unfair to deport “Dreamers,” undocumented immigrants brought to the US as children, to countries they barely know and where they may not even speak the language.
Supporting legislation, or implementing immigration policies, at the state or federal level, that focuses exclusively on enforcement without providing greater legal opportunities for those immigrants and refugees with legitimate aspirations. As Archbishop Gomez stated in his recent message, such an approach “is not policy, it is punishment, and it can only result in cruel and arbitrary outcomes.”
Actions that require prudential consideration
The following are examples of actions related to the enforcement of immigration policy that may be morally complex and therefore about which people of good will might reach different moral judgments, actions whose morality might depend on a careful consideration of the circumstances, or actions that involve participation in policies with unjust outcomes. In each case, these actions require careful moral consideration:
As a law enforcement officer, participating without protest in an arrest quota policy or participating in warrantless searches and sweeps ordered by a higher-ranking officer.
As an employee of a detention center without policy-making authority, failing to report inhumane conditions for detainees.
Support staff (such as those responsible for food preparation or medical personnel) employed at detention centers where detainees experience inhumane conditions.
As a local law enforcement agency not primarily responsible for immigration enforcement, entering a cooperation agreement with ICE to participate in immigration enforcement. These cooperation agreements take resources away from investigations of other crimes and damage the relationship between law enforcement agencies and the communities they serve by making immigrants afraid to cooperate with the police when the former are victims of crime or when the latter are investigating crime in the community.
As a government attorney, advocating in court for policies that are presumptively unjust, even if not categorically forbidden.
Numerous other examples of individuals who participate to one degree or another in implementing policies for which they are not directly responsible, in addition to those already mentioned, could also be provided.
What should a Catholic or any person of good will do if they find themselves in a situation like those listed above in which they experience the pangs of conscience? In the first part of this article, I cited a handful of examples in which individuals either resigned to avoid doing something unethical or were fired because they insisted on doing what they believed was right. In some cases, individuals may ultimately be called to take these drastic measures, but in many cases resigning may not be the only option.
Report Abuses or Advocate for Change
In many cases, there are mechanisms for those who witness abuses carried out by others to report them. Government employees should also be able to express to their supervisors disagreements with policies they are expected to implement or to advocate for changes to policies they find objectionable. Some of the time, particularly when others have expressed similar sentiments, a change in policy may be possible. In other cases, policies may be set at a higher level and advocacy by employees has little effect. And in yet other cases reporting abuses or advocacy for change can lead to retaliation (which in some situations may be illegal), leading to more serious personal consequences.
Speak Out
For some individuals, their conscience may lead them to make public the abuses or unethical practices their office or agency is carrying out. Most of the time, such public whistleblowing should only be done if advocating for change internally fails or is not possible. It is certainly an escalation in tactics, and it is more likely to lead to personal repercussions.
Do the Right Thing
In some cases, a person may be required to participate in implementing policies they consider unjust, but they can do their utmost to make sure that their own personal conduct is morally upright and respects the rights of those individuals they interact with. For example, a soldier may in good conscience decide that a certain war fails to meet a particular just-war criterion but nevertheless participate in it, ensuring that their own conduct is consistent with the criteria governing conduct in war and with the international laws of war. Similarly, one could imagine an ICE officer who disagrees with the Trump administration’s policies and aims and who decides to primarily focus on arresting those with criminal records, to identify themselves when conducting enforcement operations, and who treats detained individuals with respect and dignity. Or a federal attorney may try to conduct themselves with integrity and honesty even while advocating for immigration policies with which they personally disagree. These are morally ambiguous situations about which people can disagree, and in some cases, like that of Erez Reuveni, whom I mentioned in the first part of this article, they may nevertheless result in negative personal and professional consequences.
Resign
If one’s line of work inescapably involves carrying out actions that are categorically forbidden, then in good conscience one should resign from that position. Even if a position necessarily involves actions that are presumptively immoral, an individual in that position should strongly consider resigning, especially if ensuring that their own personal conduct is upright is not sufficient to rectify the situation. In more morally ambiguous situations, for example a position that involves issues involving prudential consideration, the decision to resign will depend on one’s conscience and other factors like the other professional opportunities that are available and one’s responsibilities to their family. The decision to resign, or to face professional consequences for standing up for what is right, is not easy, but as the US bishops explain, being a disciple of Christ means being willing to make sacrifices when necessary, even to the point of sacrificing one’s life.
We should not have to face these decisions alone, however. As I’ve been emphasizing throughout this whole series on conscience, the Church is called to be a Community of Conscience. The Church’s ordained pastors and other ministers should provide pastoral support to those struggling with their consciences. The Church community should provide support to those who face professional setbacks or who resign from their positions as a result of their Catholic convictions. As a worshipping and praying community, the Church should provide people with a spiritual foundation that empowers them to act on their consciences. Although each individual is responsible for their own conscience, we are all responsible for encouraging and supporting one another as members of a community of disciples.
As I noted yesterday in the first part of this article, this examination of conscience is intended as a sketch. Some of my points are not fully developed, and some may be in need of revision or correction. If you disagree with any of the points I made above and you are willing to share, please let me know in a comment. If there are any actions you think should be included in my examination of conscience that I failed to consider, I want to hear it! And please let me know if there are other ways people can act on their consciences in carrying out their work.
And as I said yesterday, if you have been responsible for making or enforcing immigration policy and experienced a conflict of conscience, and if you are willing, please share your story in the comments.
Thank you for speaking out about this. I have been so discouraged that more in the Church, especially those who claim to be orthodox Catholics have not spoken out about this.
I have no comment on grammar or similar superficial aspects of the essay.
As to the content: wow, that's an eye-opener! We need to examine our collective conscience as a nation and also as individuals, badly. Thank you, Matthew