A Homeland Security Whistleblower Goes Public About ICE Abuse of Solitary Confinement

Ellen Gallagher was stunned when she first learned that immigrants detained by Immigration and Customs Enforcement were sometimes placed in isolation with no human contact for 22 hours a day. It was February 2014, only a few months into her stint as a policy adviser at the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, where she thought she’d be empowered to ensure that the department did not violate the rights of those who came into its crosshairs.

For the next several months, Gallagher educated herself on solitary confinement, a controversial practice used frequently in penal institutions, but rare, she believed, in a civil context like immigration detention. She pored over weekly segregation reports that ICE produced and shared with her office.

There were a few cases in particular that caught her eye: a detained immigrant who was sentenced to 14 days in disciplinary segregation after being punched repeatedly by another detainee — even though he did not physically retaliate. Another person was placed in disciplinary segregation for 15 days after threatening to kill themselves. And there was a person with a history of mental illness, including a suicide attempt, who was sentenced to two nearly consecutive stints in disciplinary segregation, totaling 24 days, including 11 days for “engaging in sexual acts,” which was actually a consensual kiss with another detained immigrant.

“I could not believe that so many people who were listed as suffering with serious mental illness, for example, were being assigned extended periods in solitary confinement,” said Gallagher, who worked as an advocate for mentally disabled school children in New York before joining the federal government in 1995. She knew from her early advocacy work that solitary was particularly dangerous for the mentally vulnerable. An attorney by training, she is prone to long pauses before delivering careful, often legalistic sentences about her work in government.

It appeared to her that ICE’s widespread use of segregation, particularly with regard to individuals with “special vulnerabilities” — such as those with serious mental illness — violated the agency’s policies and procedures. Her review of the weekly reports and related case files showed that segregation, meant to be used as a last resort in many cases, was often the first and only option.

Gallagher, whose first job in the federal government was as a lawyer working to deport immigrants, embarked on a yearslong process to raise the alarm about what was taking place in ICE detention centers. She first appealed to everyone she could reach within the Department of Homeland Security, then escalated her concerns to several government watchdogs, including the Office of Special Counsel, an independent watchdog that solicits disclosures of wrongdoing from federal government employees; Homeland Security’s Office of Inspector General, which is meant to provide independent oversight over the department; and the Senate Judiciary and House Oversight and Government Reform committees, which oversee ICE. (Gallagher now works at Homeland Security’s Office of Inspector General, where she holds a supervisory role.)

She found the experience of being a whistleblower both isolating and silencing, especially because of the many calls, emails, and other requests that went unanswered. “In that space of silence and isolation,” Gallagher said, “I questioned my own capabilities, lost a lot of sleep, struggled with high stress and anxiety, and mainly worried about individuals being harmed in detention. What I knew to be unfolding left me with feelings of helplessness and deep sadness.”

Ellen Gallagher looks through information about solitary confinement in her home office on May 8, 2019, in Mansfield, Mass.

Her concerns about the use of segregation in ICE detention centers are consistent with findings of a monthslong investigation by The Intercept and the International Consortium of Investigative Journalists. Our review of more than 8,400 solitary confinement incident reports spanning 2012 to early 2017 show that in nearly a third of the cases, detained immigrants were described as having a mental illness. The records show at least 373 instances of individuals being placed in isolation because they were potentially suicidal, and another 200-plus cases of people already in solitary confinement being moved to “suicide watch” or another form of observation — in many cases another solitary cell.

The Department of Homeland Security, the DHS Office of Inspector General, and the Office of Special Counsel all declined to answer specific questions about Gallagher’s allegations.

Hours of interviews with Gallagher, as well as a review of memos and email communications with the various watchdogs, raise serious questions about the efficacy of the mechanisms meant to oversee ICE, an increasingly powerful force in U.S. immigration policy.

Gallagher has now decided to tell her story, she said, because “until there are enough people that do that, then this same set of circumstances will not stop, and I think it’ll actually get worse.”

Proper Channels

In 2013, ICE released a directive on the use of segregation, meant to complement existing detention standards that immigration facilities are supposed to abide by. The directive listed reporting requirements, including whether the placement was used as a last resort for individuals put in segregation due to special vulnerabilities. The directive also created a Detention Monitoring Council to review segregation reports. The council comprised members of a number of ICE offices, and it included a non-voting representative of Homeland Security’s Civil Rights and Civil Liberties office.

“The purpose of having a CRCL staff member on a committee like that was so CRCL could hear what was going on and make arguments and suggestions about what should happen,” said Margo Schlanger, who was the CRCL officer in 2010 and 2011 and helped draft the segregation directive as an adviser to the secretary of Homeland Security.

It was because of CRCL’s involvement with the Detention Monitoring Council that Gallagher was able to view segregation reports, which she first learned about from an intern in her office. “From the first time, I saw a full segregation report, for a one-week period at that time in February of 2014,” she said. “I was deeply disturbed.”

A small portion of a collection of information that Ellen Gallagher researched and used during the process of trying to understand the scope of the use of solitary confinement in immigration detention.

In May 2014, Gallagher requested that Megan Mack, the officer for Civil Rights and Civil Liberties at the time, raise the issue with then-Secretary of Homeland Security Jeh Johnson. In response to Gallagher’s request, Scott Shuchart, a policy adviser who was the acting team lead of CRCL’s immigration section, noted that there is more oversight of special housing in ICE detention than there is in any other detention authority in the country. “I am not clear on what you are asking us to do — for S1 to declare no use of administrative segregation for any purpose?” he wrote, using a shorthand for the secretary of Homeland Security. “The policy is already that nobody can be in seg solely on the basis of disability (including mental health or disability). Is the concern that the policy isn’t followed?” Shuchart, who resigned in protest of the Trump administration’s family separation policy last year, declined to comment.

Gallagher continued to push CRCL leadership to act, in the process testing the limits of how far the office would go to get involved in individual cases, as opposed to using those cases to inform future policy recommendations. “I learned over a period of several months that the approach within CRCL was essentially not to address the specifics of individual cases, that the role CRCL was playing vis-à-vis the segregation reports and the information contained within them was a far more modest role, and that was to try to work to help ensure what was termed ‘the integrity of the data,’” said Gallagher, who speaks with a pronounced New England accent, thanks to her upbringing in Massachusetts.

In other words, according to Gallagher, CRCL’s review of the segregation reports was often limited to making sure they were filled out correctly. CRCL has the legal authority — but not obligation — to investigate individual cases, and in her perspective, the office ought to have been pushing ICE to explain its rationale for certain segregation placement decisions and to intervene on behalf of individuals who were being harmed.

“Both data integrity and specific information are important,” said Schlanger. “The data are very important to problem-solving, because one of the ways you figure out whether you have a problematic institution is by looking at its solitary confinement usage rate. If the data are crappy, you can’t evaluate usage. You need the data to be correct in order to use it in a diagnostic way.”

CRCL’s Compliance Branch investigates “all allegations related to segregation, leading to the opening of numerous investigations related to ICE’s use of segregation,” a DHS spokesperson said in a statement. With regard to the office’s involvement in the Detention Monitoring Council, the spokesperson added, “CRCL uses these reviews to inform CRCL as to the issues and concerns related to segregation. This may result in a focus on similar concerns arising from independently received complaint allegations.”

In July 2014, on the advice of ethics counsel, Gallagher sent a detailed memo to then-Deputy Secretary of Homeland Security Alejandro Mayorkas, emphasizing that segregation was not in fact being used as a last resort in many instances, contrary to ICE policy. “Essentially, where a detainee’s behavior or characteristics are perceived to be disruptive, evidence of noncompliance, or a threat to the general population or ‘good order’ of the facility,” she wrote, “segregation serves as a default remedy.”

Ellen Gallagher’s journal from August 2015 in her home office on May 9, 2019. This page has notes reflecting her communication with the Office of Special Counsel, her outreach to members of Congress, the Franco Gonzalez litigation, and a range of other issues.

A Bureaucratic Labyrinth

Discouraged by the lack of responsiveness within the Department of Homeland Security, Gallagher decided to escalate her concerns to the Office of Special Counsel. She also reached out to the DHS inspector general, members of Congress, and congressional committees. Her complaints were met with a maze of bureaucratic indirection and indifference. The Office of Special Counsel closed Gallagher’s file in June 2015, punting to the inspector general. She filed two requests for reconsideration, most recently in June 2016. The one significant response came from Sen. Chuck Grassley, the Iowa Republican who had chaired the Senate Judiciary Committee. In June 2015, Grassley and then-Sen. Al Franken, a Minnesota Democrat who sat on the panel, sent a previously unreported letter to Johnson at DHS citing Gallagher’s findings and demanding an explanation.

When the Office of Special Counsel denied Gallagher’s first request for reconsideration, it said the inspector general was investigating Gallagher’s allegations about segregation and planning to conduct “unannounced, broad, and inclusive” checks of ICE facilities. The inspector general also planned to audit ICE oversight of contracted detention centers and the way in which CRCL receives and manages complaints. The inspector general said in a plan for the 2016 fiscal year that it intended to investigate whether CRCL was effectively meeting its mission mandate, including the protection of members of the public. That audit never happened, according to Erica Paulson, a spokesperson from the inspector general’s office.

Those steps are in line with the inspector general’s overall mission, which includes undertaking systemic reviews, as well as investigating individual allegations of mistreatment and abuse. However, the inspector general is “only able to open investigations into a small percentage of complaints we receive,” owing to the large volume of individual complaints (40,600 in the 2018 fiscal year), Paulson wrote in an email. “Most often, complaints that we do not open are referred to DHS components.”

The inspector general did indeed perform site inspections of ICE detention centers,  finding in a December 2017 report that some ICE facilities “may have misused segregation.” The office also conducted other inspections to review ICE’s oversight of detention facilities and contractors. Some of those visits culminated in a September 2017 report titled “ICE Field Offices Need to Improve Compliance with Oversight Requirements for Segregation of Detainees with Mental Health Conditions,” which found shortcomings in the way that ICE field offices were maintaining records on segregation.

One of the facilities covered in that report was the Buffalo Federal Detention Facility, which the inspector general visited in conjunction with the Buffalo Field Office, according to August 2016 emails obtained by Harvard Law School’s Immigration and Refugee Clinical Program and shared with The Intercept. A partially redacted write-up of the meeting at the detention center, obtained under the Freedom of Information Act, shows that someone from the inspector general’s office asked whether field office staffers “had any safety concerns about the fact that detention officers aren’t told which detainees have mental health conditions and may act erratically.” In response, an ICE officer said, “Any officer that is on his toes and has people skills can figure out who ‘isn’t all there.’ There is also word of mouth between officers, but there is no official flagging system on the detention officer side.”

Still, the work the inspector general had done was narrower than what it had said it would investigate, Gallagher wrote in a December 2017 email to the Office of Special Counsel, making her request for reconsideration all the more prudent.

Nearly three years after Gallagher filed that request, The Intercept asked the Office of Special Counsel what, if any, action it had taken on the still-pending request. The next day, May 10, without acknowledging our questions, one of the lawyers who had handled Gallagher’s file called and left her a voicemail message.

“We have reviewed this matter and considered it, and we are going to defer to the IG investigations in this case,” said the OSC attorney who reviewed Gallagher’s request. “The case will remain closed.”