When I read the statements Hillary Clinton had made in her Senate confirmation testimony regarding the issue of sex trafficking, I had a number of concerns.  I heard little sign in her testimony of a desire to change
policy from the ideological crusade undertaken by the Bush Administration that
overdetermined the problem of human trafficking in sexual terms (thereby
ignoring the enormous problem of other forms of forced labor), driven largely by
an evangelistic judgment about sex work.

But the State Department through the policy set by its Secretary is not where
we can find the front line of the federal government’s efforts to combat human
trafficking.  That job falls to the Department of “Homeland” Security (I
hate that term), particularly to ICE (Immigration & Customs Enforcement)
which conducts raids of brothels and other workplaces where it suspects
undocumented and/or trafficked persons may be working.   Indeed, ICE
raids have been the U.S. government’s principal means of identifying victims of
trafficking, according to a recent GAO report.

So,
was Janet Napolitano asked about her views on human trafficking in general, or
sex trafficking in particular, when she came
before the Senate Committee on Homeland Security and Governmental Affairs
for confirmation? 
Nope.

Did she volunteer anything about this issue, as did Clinton in her
confirmation hearings?  Nope.

Surely Secretary Napolitano has views on this issue, but we don’t know them
yet.  The 2008-2013
Strategic Plan for DHS, developed by the old
Secretary Chertoff but still on the agency’s website, does not even mention
trafficking.  Yet if you go to ICE’s “What
We’ve Done Lately On Human Trafficking and Smuggling” Webpage they highlight
all manner of good things they’ve been up to, but few of them are
trafficking-related.  Lots of smuggling work (and trafficking is legally
and socially a different thing from smuggling), and a bunch of arrests of
“illegal aliens.” The two most recent trafficking cases involve raids of
brothels in
Seattle and 
South Florida, both last November.

It’s too early to know what kind of policy will be set by Secretary
Napolitano with respect to domestic enforcement of the Trafficking Victims
Protection Act.  But she and her policy team are without question
important players in setting a new agenda when it comes to the problem of
relying too heavily on raids to deal with the protection of trafficked persons
and the prosecution of traffickers.  (More about this below.)  For the
moment however, we have some reason to be concerned.

Timothy
Keefer remains as Napolitano’s Chief Counsel for Civil Rights and Civil
Liberties at ICE.  Keefer, a graduate of William and Mary Law School worked
for Covington and Burling after clerking a couple years.  In late 2000,
after three months at the firm, he was sent to Florida to work on George W.
Bush’s legal team seeking to secure him a win in the contested presidential
election.  He was rewarded for that service by the new administration with
an appointment as special assistant to the U.S. Department of Labor’s Acting
Solicitor Eugene Scalia (Antonin’s son).  He could be a good guy, but
…  So far, none of
Napolitano’s senior appointments have much of a track record in dealing with
gender issues.

(Keefer’s ongoing employment at ICE may signal a much larger problem for the
Obama Administration – the presence of Bush loyalists deep into every crevice of
the federal government, as both political and career employees.  It’s not
obvious that the new administration has the will or the capacity to clear out
the thousands of neo-cons who were given government jobs for ideological
reasons.  The scandal of politically motivated appointments at the Justice
Department is just the tip of the iceberg.)

As for ICE’s overreliace on raids to protect the victims of trafficking, the
Sex Workers Project in New York
has just issued a report, Kicking
Down the Door: The Use of Raids to Fight Trafficking in Persons, in
which it documents how in the name of “rescue” these raids often result in the
arrest, detention and deportation of trafficked persons because they are
undertaken by ICE, together with local law enforcement officers, who are poorly
trained or ill-equipped in identifying victims of trafficking, and who are,
after all, focused on arresting criminals, people who pose potential terror
threats, are dealing drugs and/or are sans papiers, that is, found
without necessary paperwork demonstrating legal presence in the U.S.
As Napolitano’s DHS staff review this area of their work,
I hope they appreciate the dangers of over-reliance on raids, and under-reliance
on "harm reduction" approaches to the problem of human trafficking in general
and sex trafficking in particular. 

I urge all who are concerned about this issue to read the Sex Workers Project
report and to monitor the new team and policy being developed at Janet
Napolitano’s “Homeland” Security and ICE.

This piece is cross-posted from the Gender and Sexuality Law Program at the Columbia Law School blog.